This is an appeal against the judgment of the High Court of Zimbabwe ordering the return of all the goods belonging to the first and second respondents attached pursuant to a default judgment granted earlier by the same court against the second respondent.

The judgment appealed against also ordered that the returned goods remain under judicial attachment until the finalisation of the proceedings between the parties.

The facts of this matter are common cause. I summarise them hereunder.

The appellant rendered legal services to the second respondent and others which services were not paid for. The appellant sued for the unpaid fees in the High Court and was granted a default judgement against the second respondent. To satisfy the judgment, the third respondent attached certain goods and chattels at the residence of the first and second respondents, which is their matrimonial residence. The attached goods were removed.

The second respondent approached the High Court seeking an order staying the execution process that was underway. That court, being of the opinion that the application to stay execution had been brought after the event, the goods having been removed, declined to hear the application and accordingly dismissed it on the turn without going into the merits of the matter.

The first respondent approached the court a quo, on a certificate of urgency, seeking an order returning all the attached property that had been removed by the third respondent. The court a quo granted the application as prayed, prompting the appellant to note this appeal.

In attacking the decision of the court a quo, the appellant raised four grounds of appeal as follows:

1. The court a quo erred in finding that the matter was urgent;...,.

In University of Zimbabwe v Kwanele Muriel Jirira and Others SC45-13, this court had recourse to the nature of the decision that the court a quo had made to determine whether or not the judgment appealed against was interlocutory or final and definitive. This is what it had to say:

“What is to be determined in casu is the nature and effect of the decision of the court a quo.

Prior to that decision, the respondents had obtained a writ of execution against the movables of the appellant to satisfy the sum of US$291,214=13 awarded by the arbitrator. They had also proceeded to serve an application for a garnishee order on the applicant and its bankers, which operated to freeze the appellant's bank account. Thus, as at the time of its urgent application, the appellant was exposed to the imminent disposal of its library books, computers and other equipment, as well as the inability to access its bank account.

On these facts, we take the view that the court's refusal to deal with the matter as being urgent, whether correctly or otherwise, had the effect of finality. In that sense, the decision was final and definitive and not merely interlocutory.”

In the result, it found that the court had made a final pronouncement on the particular issue that was before it - the issue of whether or not the matter deserved to be treated urgently....,.

I turn to deal with the first ground of appeal.

This is an appeal against the judgment of the High Court of Zimbabwe ordering the return of all the goods belonging to the first and second respondents attached pursuant to a default judgment granted earlier by the same court against the second respondent.

The judgment appealed against also ordered that the returned goods remain under judicial attachment until the finalisation of the proceedings between the parties.

The facts of this matter are common cause. I summarise them hereunder.

The appellant rendered legal services to the second respondent and others which services were not paid for. The appellant sued for the unpaid fees in the High Court and was granted a default judgement against the second respondent. To satisfy the judgment, the third respondent attached certain goods and chattels at the residence of the first and second respondents, which is their matrimonial residence. The attached goods were removed.

The second respondent approached the High Court seeking an order staying the execution process that was underway. That court, being of the opinion that the application to stay execution had been brought after the event, the goods having been removed, declined to hear the application and accordingly dismissed it on the turn without going into the merits of the matter.

The first respondent approached the court a quo, on a certificate of urgency, seeking an order returning all the attached property that had been removed by the third respondent. The court a quo granted the application as prayed, prompting the appellant to note this appeal.

In attacking the decision of the court a quo, the appellant raised four grounds of appeal as follows:

1....,. 

2....,. 

3. The court a quo erred at law in granting an interdict in circumstances where there was an alternative satisfactory remedy;...,.

In the third ground of appeal, the appellant contends that the court a quo erred in awarding an interdict in circumstances where there was a satisfactory alternative remedy.

As correctly argued by counsel for the respondents, in my view, the first respondent had the option to approach the court as she did or to approach the third respondent for the issuance of an interpleader notice in terms of the High Court Rules, 1971.

In approaching the court as she did, the first respondent was not only contending that she has a proprietary interest in the attached property, she also contended that the default judgment pursuant to which the property was attached was granted in error and in her absence as an interested party and that she had approached the court for such erroneous judgment to be set aside. In the interim she prayed for the return of the attached property.

The decision by the court a quo was clearly a value judgment. In its words:

“…, in the face of the application for rescission, it would make little sense to permit the goods to be sold off at this point.”

The court a quo proceeded to observe that “it would also make little sense for the goods to remain in storage accumulating high storage charges pending hearing of the matter”, before it ordered the release of the goods to the first respondent.

A different court, faced with the same facts, may have exercised its discretion differently and come to a different conclusion. This court may have come to a different conclusion were it the court of first instance. This is inevitable with decisions based on the exercise of judicial discretion.

There is no one standard answer.

The law recognises this diversity in values as expressed in value judgments and has sought to protect the exercise of discretion by restraining the Appeal Court from substituting its own discretion for that of the lower court in the absence of an error on the part of the lower court.

The settled position at law holds that it is not sufficient that the Appeal Court considers that if it had been in the position of the court a quo it would have arrived at a different decision. For the Appeal Court to interfere with the discretion of the court a quo, “…, 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 considerations, then its determination should be reviewed and the Appellate Court may exercise its own discretion in substitution…,.”; per GUBBAY CJ in Barros & Anor v Chimponda 1999 (1) ZLR 58 (S).

I find no error in the manner that the lower court reasoned and exercised its discretion.

In the absence of a finding of an error on the part of the court a quo, this Court is constrained to respect and recognise the exercise of discretion by the lower court.

After hearing counsel in this matter we dismissed the appeal against both conviction and sentence. We indicated that our reasons would follow in due course. These are they.

The appellant was convicted of one count of murder and three counts of assault as defined in section 47(1)(b) and section 89 respectively of the Criminal Law Codification Act [Chapter 9:23].

He was sentenced to 18 years imprisonment in respect of the murder charge. The three counts of assault were treated as one for purposes of sentence and he was accordingly sentenced to 3 years imprisonment which was to run concurrently with the sentence on the murder conviction.

The appellant has noted an appeal against both convictions on all the counts and the sentences.

The events leading to the conviction of the appellant occurred on 23 September 2011. At the time, he was a duly attested member of the Zimbabwe Republic Police holding the rank of Chief Superintendent. He was based at Chiadzwa Diamond Fields where he was the second in command. The police had been deployed at the diamond fields to flush out and arrest suspected illegal diamond panners.

On the day in question, the deceased, Tsorosai Kusena, his brother Onesai Kusena, their cousin Pikirai Kusena and one John Gwite were arrested in the diamond fields by security personnel employed by Mbada Diamonds on suspicion of being illegal diamond panners. They were handed over to the police and detained.

A few hours later they escaped from custody and ran off in different directions. They were pursued and captured.

The appellant was one of the details involved in the pursuit.

Thereafter, the deceased and his companions were returned to the base where the appellant forced each of them to stand on the ground on their heads with their feet in the air. He then proceeded to assault each of them on the small of the back and the buttocks with a switch/baton stick. The assault was sustained and lasted for a considerable period.

After a while, the deceased was no longer in a position to assume the position and collapsed onto the ground. The appellant persisted with the assault on all the victims. Despite his condition and obvious difficulty, the deceased was not spared from this assault.

Sometime in the evening, Mandizvidza, one of the junior officers, took the switch/baton stick from the appellant stopping the assault. He threw the weapon into the fire.

After the assault had been halted, the deceased and the complainants were placed in cells and the deceased was heard to complain that he had been injured badly. He also expressed the fear that due to the injuries sustained from the assault he would not last.

After a short while he was seen to have died.

A post-mortem report, compiled by the pathologist, confirmed that the deceased had bruises all over the back. No other injuries were found. The cause of death was recorded as traumatic shock as a result of assault.

On these facts, the appellant was found guilty of murder with constructive intent.

The grounds of appeal are the following:

(i) The court a quo erred in respect of all counts by failing to attach sufficient weight to the discrepancies that were manifest in the evidence of the State witnesses.

(ii) The court a quo erred in respect of the count for murder in accepting that the cause of death was assault when the doctor who testified told the court that he did not do a full post-mortem (sic). No examination was done to establish if death was not caused by diarrhoea or vomiting which attacked the deceased prior to his death.

(iii) The court a quo misdirected itself by finding the appellant guilty of murder with constructive intent when the evidence before it did not show that the appellant foresaw that death would result from his conduct. The court a quo must have made a finding that the appellant ought to have foreseen that death would ensue.

(iv) The court a quo misdirected itself by rejecting the appellant's evidence that the complainants and some police officers connived to incriminate him yet the complainants themselves told the court that they were tipped off to escape from lawful custody by the police officers who were guarding them.

(v) The honourable court a quo erred by failing to warn itself of the dangers of relying on the evidence of the State witnesses, the majority of whom fell into either the category of suspect witnesses, or outright biased witnesses with a discernible motive to falsely incriminate the appellant.

(i) A sentence of 18 years imprisonment, in respect of the charge for murder, is too excessive in view of the circumstances of this matter.

(ii) The court a quo misdirected itself by failing to treat the three counts of assault as one for purposes of sentence.

As to the first ground of appeal, it was contended, on behalf of the appellant, that the court a quo erred in failing to attach sufficient weight to the manifest discrepancies in the evidence of the witnesses called by the State. It was argued that the evidence of the witnesses, regarding the number of sticks used to assault the deceased and the complainants, was full of contradictions.

We were not persuaded by this submission.

Contrary to the contention by the appellant, the court a quo found that the witnesses all gave evidence that the appellant had used one stick in the assault, which, from the description, could be a thick stick or a baton. In its judgment, the court a quo commented that although quite a number of the witnesses had spoken of the appellant having a number of sticks in his possession, in their evidence the witnesses did not suggest that the appellant had used more than one stick. The court found that they had all maintained that he had assaulted the victims with one stick.

Indeed, this finding is borne out by the evidence of the witnesses.

Onesai Kusena, the complainant in the second Count, gave evidence that the appellant was holding five sticks. In describing the assault on him, he only mentioned one stick as being the assault weapon. He also stated that Mandizvidza disarmed the appellant of the stick he had been using. The appellant had then left with the remaining four sticks.

The complainant in Count 3, Pikirai Kusena, gave evidence to the effect that the appellant used a switch to assault all four of them including the deceased.

John Gwite was the complainant in the fourth Count. Like the other two witnesses, the tenor of his evidence was to the effect that the appellant had used one stick to assault all the victims.

Indeed, the police witnesses also corroborated the evidence of the complainants and confirmed that the appellant had used one stick to assault the victims.

Constable Senda Nkuli stated that the appellant had prepared three switches but he saw him using one. Constable Bhobho confirmed that the appellant had one stick which he took from the vehicle.

It was suggested to him that some witnesses mentioned more than one stick.

The witness was adamant that he had only seen the appellant holding one stick. This witness's evidence is consistent with that of Philleman Manatsa and Edson Mandizvidza. In fact, the last witness disarmed the appellant of the weapon and threw it into the fire.

In my view, the court a quo cannot be faulted in the manner that it considered the evidence of the witnesses on the weapon used to assault the victims. The court was correct in its finding that despite the mention by some witnesses of the appellant having several sticks, the consistent story from all the witnesses was that only one stick was used. All the witnesses stated that Mandizvidza threw the weapon into the fire.

Like the court below, I find no inconsistencies regarding the assault on the four victims.

In relation to the second ground of appeal, it was contended, on behalf of the appellant, that the court a quo erred in concluding that the deceased had died as a result of an assault when the doctor who testified in court admitted that he had not conducted a full post mortem examination.

The postmortem report produced by Dr Kasongo was admitted into evidence by consent.

The doctor gave evidence in support of the report and confirmed that the deceased had died as a result of traumatic shock following an assault. He observed bruises all over the body of the deceased. He indicated that he had not been informed that the deceased had vomited prior to his death. He had also not been informed that the deceased had had a bout of diarrhoea on the night in question. His opinion was that neither the vomiting nor the diarrhoea would have been the cause of death in the case of the deceased. His evidence was that a person would not die after suffering from a bout of diarrhoea for a day unless the diarrhoea was due to cholera. He said that there was no evidence of cholera in Mutare during the relevant period. His evidence was to the effect that it was not necessary, in every case, to conduct an internal examination for a postmortem unless the cause of death is not obvious. It was his opinion that in the case of the deceased it was obvious that he had been severely assaulted.

The Investigating Officer, Musutani Chifumuna, confirmed receipt of a memorandum instructing him to investigate the death of the deceased.

According to the memorandum, the deceased had fallen and hit against a rock as a result of which he sustained injuries leading to his death. According to the witness, an initial examination of the body of the deceased did not show, nor confirm, any injuries consistent with the deceased having fallen as suggested in the memorandum. For instance, there were no injuries to the head, forehead or neck, which injuries one would expect to find in a victim alleged to have fallen as suggested had happened to the deceased in the memorandum.

As a result of the absence of injuries consistent with a fall he decided to examine the body of the deceased. He removed the clothing of the deceased and found the following injuries; namely, bruising on both knees, right shoulder, the region between the buttocks and the back. He observed clotting just under the skin. There were also signs of red and black marks which led the witness to conclude that there might have been internal bleeding or that blood had clotted under the skin. There were blisters on the soles of both feet.

He caused photographs to be taken of the injuries he had observed.

Initially, the death of the deceased was treated as a sudden death, but, after further investigations, it was decided to open a criminal investigation against the appellant on a charge of murder.

The court a quo was alive to the fact that there had not been an internal examination of the deceased, and that the post-mortem report was based on an external examination. The court dealt with that aspect of the evidence as follows:

“The court wishes to take judicial notice of the fact that it is not everybody that is taken for post mortem that a doctor seeks to open in establishing a cause of death. Even if Doctor Kasongo is not a pathologist he compiled a postmortem report.

If the body had been taken before pathologists, where the cause of death is obvious, the issue of opening up for purposes of internal examination is not relevant. Where the cause of death is obvious there really is no need to open the body. It is only where the cause of death is hazy, or in circumstances where chemical situations are alluded to as a cause of death, that internal organs have to be opened up and examined.

In this case, the doctor had been given the history of assault which is supported on the record and he then made his own professional observations leading him to a conclusion as to a cause of death. The other complainants were examined by different doctors who confirmed that they had been assaulted. This tallied with the manner in which Doctor Kasongo compiled the post-mortem, as he also observed injuries on the back and lower back on more or less the same area as the other complainants confirming the area of assault.”

The evidence of the assault perpetrated on the deceased is overwhelming.

It is common cause that when the deceased was arrested he was in good health. He was fit enough to escape from lawful custody together with his companions. Members of the police, which included the appellant, chased them for a considerable distance through the bush. When the deceased was re-arrested he was able to walk, climb into the police vehicle, and disembark without being assisted.

A few hours later he lost his life after the sustained attack by the appellant.

The conclusion by the doctor, that the cause of death was obvious, cannot be impugned and the court a quo cannot be faulted in accepting the conclusion by the doctor that the deceased died as a result of traumatic shock due to the assault.

It is contended, on behalf of the appellant, that the court a quo misdirected itself in making a finding that the appellant was guilty of murder with constructive intent when the evidence before the court did not establish that the appellant subjectively foresaw that death would ensue from the assault of the deceased.

Section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides, in relevant part:

“(1) Any person who causes the death of another person -

(a) Intending to kill the other person; or

(b) Realizing that there is a real risk or possibility that his or her conduct may cause death, and continues to engage in that conduct despite the risk or possibility; shall be guilty of murder.”

In S v Mugwanda 2002 (1) ZLR 574…, CHIDYAUSIKU CJ, in describing the test to be applied in determining the question of intent in a murder had this to say:

“On the basis of the above authorities, it follows that for a trial court to return a verdict of murder with actual intent it must be satisfied beyond a reasonable doubt that:

(a) Either the accused desired to bring about the death of his victim and succeeded in completing his purpose; or

(b) While pursuing another objective foresees the death of his victim as a substantially certain result of that activity and proceeds regardless.

On the other hand, a verdict of murder with constructive intent requires the foreseeability to be possible (as opposed to being substantially certain, making this a question of degree more than anything else).

In the case of culpable homicide, the test is: he ought to, as a reasonable man, have foreseen the death of the deceased.”

In order to prove its case against the appellant, the State called six witnesses to the assault, three of whom were complainants in the assault charges. The other three were police details.

All the witnesses gave graphic details of a horrific assault upon the victims and especially the deceased. The victims were made to stand on their heads. The appellant would then assault each, in turn, with a switch whose diameter was estimated by one of the police details as 3cm or 4cm. This same witness stated that the appellant would direct the assault at the end of the spine, just above the victims' buttocks. He was using severe force. The witness assumed duty at about 6pm. The appellant was already in the process of assaulting the victims. The assault was stopped at about 7pm.

It was only stopped due to the intervention of Mandizvidza, a junior ranking officer to the appellant.

According to the witness, after the appellant left the cells where the assault victims were, the deceased was lying on the floor groaning. He was no longer able to walk and had to be assisted to go outside in order to relieve himself.

The witness was emphatic that the deceased was not, at the time, suffering from diarrhoea. However, he kept vomiting. At times he would heave, without any vomit coming out.

The witness was about to go off duty when he decided to wake up the victims so that he could hand them over to his relief. He attempted to wake up the deceased and realized that he had died.

It was his evidence that all the victims had injuries on the back, knees, and bottom of the feet.

Mandizvidza, the officer who disarmed the appellant, described the switch/baton stick as being between 50 and 70cm in length. He described its diameter as 5cm. He told the court that the appellant had assaulted the victims for a protracted period and was using severe force. The deceased died shortly after he had stopped the assault.

In the post mortem report, the pathologist recorded that he “found bruises all over the body.”

There is no direct evidence of the mens rea of the appellant in this case. Therefore, it cannot be stated that it was the appellant's avowed intent to kill the deceased. As such, the appellant's intent can only be inferred from the circumstances surrounding the offence.

The appellant was a senior police officer at the time that the events leading to the death of the deceased occurred. He was a Chief Superintendent. At the time the appeared in court for the trial he had been in the service of the police for twenty-six years. It is safe to say that he had considerable experience as a police officer.

He confirmed that, as a police officer, he was aware, through experience, of people who had died as a result of being assaulted. Yet, with full knowledge of the consequences that an assault may lead to the death of a victim he subjected the deceased to a sustained assault on the spine.

The evidence before the trial court was that, after a time, the deceased was unable to keep his body in an upright position as demanded by the appellant. He was no longer able to place his head on the ground and was lying on his stomach, unable to block the blows. Still, the appellant persisted with the assault stopping only as a result of the intervention of a junior officer.

The post mortem report speaks to bruises all over the body and it was the evidence of the doctor that an internal examination was not necessary because the cause of death was obvious due to the external injuries he observed.

After the assault, the deceased could not stand, walk, or squat. He had to be assisted in relieving himself.

From the evidence of the State witnesses, it is safe to infer that the reason why the deceased could not stand was due to the fact that his spine had been badly injured from the assault. The appellant ordered his victims to assume a position from which he could inflict the most severe damage to their bodies.

In my view, the appellant must have, and in fact did, foresee the possibility that the assault would result in the death of the deceased.

The court a quo cannot be faulted in its reasoning on intent.

The further contention by the appellant was that the trial court misdirected itself in rejecting the appellant's evidence that there was connivance on the part of the witnesses to incriminate him of the offences. It was suggested that proof of the connivance could be gleaned from the evidence of the civilian witnesses that they had been tipped off to escape from lawful custody by some of the police witnesses.

The complainants to the assault charges all gave evidence.

Their evidence was consistent in so far as it dealt with the assault. The only discrepancy in the evidence was whether the appellant had more than one weapon. Despite this, all of the witnesses, including the police witnesses, stated that the appellant had only used one switch/baton stick in the assault.

Apart from the witnesses to the assault, the State called the investigating officer to testify.

His evidence was clear that the death of the deceased had been reported as a sudden death arising from a fall. The memorandum prepared in relation to the death of the deceased was false. The investigating officer discounted the report and investigated the death as a suspicious death.

The cause of death was obvious.

The appellant was the only person who was seen assaulting the victims and there was no evidence placed before the court a quo of a conspiracy by the witnesses.

The complainants told the court that they had been warned, by some of the officers, to escape because the appellant had a history of assaulting suspects. This warning was confirmed in the actions that the appellant thereafter took. He badly assaulted the suspects leading to the death of one of those suspects.

I find no misdirection.

As for the contention that the witnesses were suspect witnesses and that there was a risk that they would falsely implicate the appellant, I find no substance in the contention.

There is, on record, ample evidence of a vicious assault on the deceased and the other three victims. The medical evidence is on the record. The photographs produced in relation to the assault provide mute testimony of the severity and brutality with which the assault was perpetrated. They capture the horrific injuries sustained by the complainants.

In my view, the reports and photographs confirm, in all respects, the witnesses' evidence of the assaults on themselves as well as the deceased. The doctors who examined the complainants and compiled the medical reports were not known to the complainants or the deceased.

The appellant was not able to give a credible reason why the complainants and his colleagues would conspire to lie against him and falsely implicate him.

All the evidence pointed at the appellant as the assailant.

The fact that the three assault victims were suspected diamond panners cannot detract from their evidence that they were assaulted.

The appellant was not the only police officer engaged in the operation that netted the illegal diamond panners. The charges against the appellant are not related to the panning. The charges relate to the assault on them. There is no suggestion from the appellant that someone else assaulted them.

All he says is that they were never assaulted.

Further, the fact that the other police details could have faced disciplinary charges has no bearing on the cogency of their evidence. The appellant was not the only senior officer at the base, he was the second in command and the appellant has not substantiated his allegation of conspiracy by the witnesses.

I find no misdirection on the part of the court in convicting the appellant of murder with constructive intent.

In relation to the sentence, counsel for the appellant conceded that there was no basis for attacking the sentence imposed. He accepted that the court a quo imposed an appropriate sentence.

The concession was, in my view, proper in the circumstances.

Both grounds of appeal against sentence were not well taken.

The first, that the court a quo misdirected itself by not suspending a portion of the sentence of eighteen years imprisonment on the murder conviction cannot be sustained for the simple reason that the law does not permit the suspension of any portion of such sentence.

Section 358(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] provides, in relevant part:

“(2) When a person is convicted by any court of any offence, other than an offence specified in the Eighth Schedule, it may —

(a) Postpone for a period not exceeding five years the passing of sentence and release the offender on such conditions as the court may specify in the order; or…,.”

In turn, the Eighth Schedule reads as follows:

“EIGHTH SCHEDULE (Section 358) OFFENCES IN RELATION TO WHICH POSTPONEMENT OR SUSPENSION OF SENTENCE, OR DISCHARGE WITH CAUTION OR REPRIMAND, IS NOT PERMITTED

1. Murder, other than the murder by a woman of her newly born child.

2. Any conspiracy or incitement to commit murder.

3. Any offence in respect of which any enactment imposes a minimum sentence and any conspiracy, incitement, or attempt to commit any such offence.”

Whilst the court a quo had a discretion in the duration of the sentence of imprisonment that it could impose, it had no power to suspend any portion of such sentence.

Turning to the sentence imposed in respect of the three counts of assault that the appellant stands convicted of, it is common cause that the court took all three counts as one for purposes of sentence. It also ordered that the sentence of three years should run concurrently with the sentence in respect of the murder conviction.

The approach of the court cannot therefore be faulted in any way.

It was for the above reasons that we dismissed the appeal in its entirety.

This is a chamber application for an order for direct access to the Constitutional Court (“the Court”) in terms of Rule 21(2) of the Constitutional Court Rules, S.I.61 of 2016 (“the Rules”).

The applicant intends to file the substantive application with the Constitutional Court in terms of section 85(1)(a) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”).

The substantive application the applicant intends to make, in terms of section 85(1)(a) of the Constitution, should leave for direct access be granted, alleges that the decision of the Supreme Court, dismissing an appeal against a decision of the High Court upholding his conviction and sentence of imprisonment for bribery violated his right to a fair trial enshrined in section 69(1) of the Constitution.

The applicant had to show that it is in the interests of justice for an order for direct access to be granted.

The applicant was employed by the Zimbabwe Republic Police as the Officer-In-Charge of Guruve Criminal Investigation Department.

On 24 October 2014 he was arraigned before the Magistrate's Court facing a charge of bribery, as defined in section 170(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code”). It was the respondent's case that on 3 April 2014 the applicant unlawfully and intentionally received $200 from one Biggie Chipfunde in order to influence investigations in a criminal case involving the latter as an accused. The criminal case was pending before the Magistrate's Court.

The applicant denied the charge of bribery. He said that he received the money from Biggie Chipfunde, genuinely believing that it was a donation to a fundraising campaign.

After a full trial, the applicant was convicted of bribery. He was sentenced to twelve months' imprisonment, of which four months were suspended for a period of five years on conditions of good behaviour.

The applicant noted an appeal to the High Court against the conviction and sentence. The grounds of appeal against conviction were that the trial magistrate ignored glaring inconsistencies in the evidence of the respondent's witnesses; that the respondent failed to prove its case beyond a reasonable doubt; and that the authority to organise entrapment had not been properly obtained.

The ground of appeal against sentence was that a non-custodial sentence was more appropriate given the circumstances of the case.

The High Court upheld the conviction. The appeal against sentence was also dismissed by the High Court.

The applicant noted an appeal to the court a quo against the judgment of the High Court. The court a quo found that the appellant's grounds of appeal, against conviction, did not emanate from the High Court's ratio decidendi. It held that no proper grounds of appeal had been placed before it. The court a quo also upheld the sentence, after finding no misdirection on the part of the High Court. The appeal was dismissed in its entirety.

It is against this background that the applicant filed the application for leave for direct access to the Constitutional Court. He alleged that the court a quo breached his fundamental right to a fair trial.

The contention was that the proceedings in the Magistrate's Court were tainted with gross irregularities which resulted in a substantial miscarriage of justice. He alleged that the trial magistrate “deliberately ignored analysing and evaluating the defence case and its documentary exhibits which rebutted all essential averments in the State case.”

The applicant further alleged that the subsequent upholding of the trial magistrate's decision, by the High Court, was irregular, as that court relied on section 170(2) of the Criminal Law (Codification and Reform) Act (the Code) as the basis for dismissing the appeal when the trial magistrate did not rely on the provision in question to convict him.

He alleged that section 170(2) of the Criminal Law (Codification and Reform) Act is invalid. He argued that the section is an unconstitutional provision which casts a reverse onus on the applicant to prove his innocence, thereby breaching section 70(1)(a) of the Constitution which guarantees an accused person the right to be presumed innocent until proven guilty.

Lastly, the applicant averred that the court a quo omitted to exercise its review powers provided for under section 25(2) of the Supreme Court Act [Chapter 7:13]. He contended that failure to exercise the powers provided for by law was an infringement of his right to have the case reviewed by a higher court, guaranteed under section 70(5)(a) of the Constitution.

The applicant averred that granting leave for direct access to the Constitutional Court would be in the interests of justice as it would vindicate his right to a fair trial guaranteed under section 69(1) of the Constitution.

The application was opposed by the respondent.

Counsel for the respondent submitted that the court a quo properly evaluated the evidence adduced by the State and concluded that the High Court had reached the correct decision in dismissing the appeal against conviction and sentence. The applicant was not happy with the manner in which the evidence was assessed by the court a quo. That does not mean that the decision of the court a quo is in violation of the applicant's fundamental rights.

The jurisdiction of the Constitutional Court is provided for under section 167(1) of the Constitution.

The Constitutional Court is the highest court in all constitutional matters. It decides only constitutional matters and issues connected with decisions on constitutional matters. The Constitutional Court has the power to make the final decision on the question whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter.

Direct access is an extraordinary procedure which is granted only in deserving cases and has been sparingly granted. Before a party can be granted leave to approach the Constitutional Court directly, in terms of section 85(1)(a) of the Constitution, he or she or it has to satisfy all the requirements set out in Rule 21(3) of the Constitutional Court Rules. The requirements are as follows:

“(3) An application in terms of subrule (2) shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out —

(a) The grounds on which it is contended that it is in the interests of justice that an order for direct access be granted; and

(b) The nature of the relief sought and the grounds upon which such relief is based; and

(c) Whether the matter can be dealt with by the Court without the hearing of oral evidence or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.”

It is peremptory for an applicant to set out facts or grounds, in the founding affidavit, the consideration of which would lead to the conclusion that it is in the interests of justice to have the matter placed before the Constitutional Court directly.

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Ltd and Anor CC11-18, the Court had occasion to deal with the requirements to be satisfied in an application of this nature. It held as follows…,:

“The Court turns to determine the question whether the applicant has shown that direct access to it is in the interests of justice. Two factors have to be satisfied.

The first is that the applicant must state facts or grounds, in the founding affidavit, the consideration of which would lead to the finding that it is in the interests of justice to have the constitutional matter placed before the Court directly, instead of it being heard and determined by a lower court with concurrent jurisdiction.

The second factor is that the applicant must set out, in the founding affidavit, facts or grounds that show that the main application has prospects of success should direct access be granted.”

Where the jurisdiction of the Constitutional Court is sought to be invoked on the allegation that the decision of a subordinate court, on a non-constitutional matter, violated a fundamental human right, the applicant must show that the violation was a result of failure by the subordinate court to act in accordance with the law governing the proceedings concerned leading to an arbitrary decision.

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Ltd and Anor CC11-18 the Court held as follows…,:

“The theory of constitutional review of a decision of the Supreme Court, in a case involving a non-constitutional matter, is based on the principle of loss of rights in such proceedings because of the court's failure to act in terms of the law, thereby producing an irrational decision. There must, therefore, be proof of the failure to comply with the law. The failure must be shown to have produced an arbitrary decision.”

What amounts to a constitutional matter is defined in section 332 of the Constitution as meaning a matter in which there is an issue involving the interpretation, protection or enforcement of the Constitution.

In Moyo v Sergeant Chacha and Ors CC19-17, the Court explained the import of section 332 of the Constitution in the following words…,:

“The import of the definition of 'constitutional matter' is that the Constitutional Court would be generally concerned with the determination of matters raising questions of law, the resolution of which require the interpretation, protection or enforcement of the Constitution.

The Constitutional Court has no competence to hear and determine issues that do not involve the interpretation or enforcement of the Constitution or are not connected with a decision on issues involving the interpretation, protection or enforcement of the Constitution.”…,.

The mere allegation that a fundamental human right enshrined in Chapter 4 of the Constitution has been infringed does not mean that a constitutional issue has arisen from a decision of a subordinate court.

A decision of a subordinate court, on any matter within the ambit of its jurisdiction, would not be found to have given rise to a constitutional matter on the basis of a founding affidavit complaining about an alleged incorrectness of the decision of the subordinate court.

The question of whether or not the court a quo correctly assessed and evaluated the evidence before it is a factual matter that does not involve the interpretation, protection or enforcement of the Constitution.

A contention that the court a quo did not take some evidence into account in reaching its decision cannot be used as a ground to allege that the applicant's right to a fair trial, enshrined in section 69(1) of the Constitution, was violated.

In General Council for the Bar of South Africa v Jiba and Others [2019] ZACC 23 it was held as follows…,:

“The apparently incorrect determination of facts by the majority in the Supreme Court of Appeal and the erroneous application of the three-stage test to those facts also do not raise a constitutional issue. This is because the standard is well established and the determination of facts, whether right or wrong, does not amount to a constitutional issue.”

Du PLESSIS, PENFOLD and BRICKHILL, Constitutional Litigation, 1edn, Juta & Co Ltd, Cape Town, 2013 state as follows…,:

“While the ambit of the phrase 'constitutional matter' is clearly very wide, it is not unlimited. Most significantly, the Constitutional Court has indicated that a purely factual matter does not amount to a constitutional matter.

For example, in S v Boesak 2001 (1) SA 912 (CC) the appellant contended that the decision of the Supreme Court of Appeal upholding his conviction for fraud and theft contravened his right to a fair trial (and particularly the right to be presumed innocent) and to freedom and security of the person.

The basis for this contention was the allegation that the Supreme Court of Appeal erred in its evaluation of the evidence and in finding that Boesak's guilt had been proved beyond reasonable doubt.

The Constitutional Court rejected this argument, holding that 'the question whether evidence is sufficient to justify a finding of guilt beyond reasonable doubt cannot itself be a constitutional matter' or, put differently, disagreement with the Supreme Court of Appeal's assessment of facts is not a breach of the right to a fair trial.

The court thus held that '[u]nless there is some separate constitutional issue raised…, no constitutional right is engaged when the appellant merely disputes the findings of fact made by the [Supreme Court of Appeal].'”…,.

No constitutional issue can arise from a contention that evidence was incorrectly assessed by the subordinate court.

The Constitutional Court does not assume jurisdiction when it is being called upon to reverse factual findings of the court a quo on non-constitutional issues. The remedy of an appeal is available to a litigant who is dissatisfied with an outcome of a matter on the merits. A litigant defines the boundaries of the appeal through the grounds of appeal.

This is a clear remedy which was available to the applicant.

In defining his appeal before the court a quo, the applicant raised five grounds against the conviction and one ground against the sentence.

The judgment of the court a quo shows that three of the grounds of appeal against conviction were abandoned. The abandoned grounds attacked the correctness of the High Court's decision on the allegation that proof beyond a reasonable doubt had not been led by the respondent. The abandoned grounds of appeal also raised the issue regarding the lawfulness of the entrapment authority.

At the hearing of the application, the applicant sought to argue that the court a quo should have detailed the reasons why he abandoned some of the grounds of appeal. The allegation was that the grounds were not voluntarily abandoned by his legal practitioner.

The legal practitioner acted in the interests of his client.

Having abandoned some of the grounds of appeal, the applicant could not seek to revive those grounds of appeal in an application to the Constitutional Court, alleging that there are irregularities which amounted to a substantial miscarriage of justice.

Once a party abandons some of the grounds of appeal, he or she or it cannot seek to attack the Appeal Court for accepting the abandonment.

On the basis of the grounds of appeal that remained, the court a quo made a finding that the applicant was properly convicted on the basis of the evidence that was led in the Magistrate's Court. The court a quo held that the High Court upheld the conviction of the applicant for the offence charged on the basis of the assessment of the evidence which was adduced in the Magistrates Court.

This is contrary to the applicant's averment that the High Court relied on section 170(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code) as a yardstick to validate his conviction.

In Mukondo v The State HH277-17…, the High Court said:

“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 (RA); S v Kamtande 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.”

It is apparent that the ratio decidendi applied by the High Court, in dismissing the appeal, was that there was sufficient direct evidence adduced by the prosecution to prove the guilt of the applicant beyond reasonable doubt. Reference to section 170(2) of the Criminal Law (Codification and Reform) Act is not evidence of the factors which the court took into account and which influenced its mind in making the determination it made. Reference to section 170(2) of the Criminal Law Code was made after the court had reached the conclusion, based on the analysis of the evidence adduced by the State, that the applicant had been properly convicted of the offence of bribery, as the evidence had proved his guilt beyond reasonable doubt.

The court a quo was also alive to the issue of the effect of the reference by the High Court to section 170(2) of the Criminal Law (Codification and Reform) Act.

The court a quo noted that the High Court commented on section 170(2) of the Criminal Law (Codification and Reform) Act. The court a quo found that the issue regarding the section in question was a red herring because the conviction was not predicated on that provision.

At p5 of the cyclostyled judgment in Mukondo v The State SC44-19 the court a quo said:

“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). Finally, and more importantly, the remarks by the court a quo, on section 170(2), 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 obiter 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.”

The Constitutional Court does not interfere with non-constitutional findings of the lower courts, which findings are arrived at after a careful assessment of the evidence as a whole.

Even if it is assumed that the court a quo erred in the assessment of the evidence before it, that would not amount to a violation of the right to a fair trial. The Constitution could not possibly have sought to protect litigants against 'wrong decisions'.

In Lane and Fey NNO v Dabelstein and Ors 2001 (2) SA 1187 (CC) the Constitutional Court of South Africa held…,:

“Even if the [Supreme Court of Appeal] erred in its assessment of the facts, that would not constitute the denial of the ['right to a fair trial and to fair justice']. The Constitution does not and could hardly ensure that litigants are protected against wrong decisions. On the assumption that section 34 of the Constitution does indeed embrace that right, it would be the fairness and not the correctness of the court proceedings to which litigants would be entitled.”

In Williams and Anor v Msipha N.O. and Ors 2010 (2) ZLR 552 (S)…, the Supreme Court, sitting as a Constitutional Court, said:

“The Constitution guarantees to any person the fundamental right to the protection under a legal system that is fair but not infallible.

Judicial officers, like all human beings, can commit errors of judgment.

It is not against the wrongfulness of a judicial decision that the Constitution guarantees protection. A wrong judicial decision does not violate the fundamental right to the protection of the law guaranteed to a litigant because an appeal procedure is usually available as a remedy for the correction of the decision.

Where there is no appeal procedure there cannot be said to be a wrong judicial decision because only an Appeal Court has the right to say that a judicial decision is wrong. See Maharaj v AG of Trinidad & Tobago (No.2) (PC) [1979] AC 385 at 399D–H; Boordman v Attorney General [1996] 2 LRC 196 at 205I–206B.”

A reading of the judgment of the court a quo shows that it did not make any determination on a constitutional issue.

The court a quo held that the constitutional question which the applicant purportedly intended to raise in his grounds of appeal had no basis. The reason was that the High Court had not confirmed the applicant's conviction on the basis of section 170(2) of the Criminal Law (Codification and Reform) Act (the Criminal Law Code). The court a quo also noted that the constitutionality of section 170(2) of the Criminal Law Code was not an issue before the trial court. Neither had the presumption of a contravention of section 170(2) of the Criminal Law Code, upon proof by the State of the fact of obtaining, accepting or soliciting a gift or consideration, been relied upon in convicting the applicant.

Counsel for the applicant conceded, in the court a quo, that the provision had not been relied on.

The court a quo correctly held that there was no basis for seeking to raise, as a question of any relevance in the hearing and determination of the appeal against the decision of the High Court, the applicability of the provisions of section 170(2) of the Criminal Law (Codification and Reform) Act.

A perusal of the papers before the Constitutional Court shows that the applicant is basically dis-satisfied with the manner in which the evidence was assessed and evaluated by the trial court. He is further dissatisfied by the fact that the court a quo did not set aside the conviction and sentence on account of alleged irregularities.

The Court finds the application for an order for direct access to be a disguised appeal against the decision of the court a quo which upheld the conviction and the sentence. This can be gleaned from the applicant's founding affidavit, where he states that:

“…, if leave for direct access is granted, I seek for a relief to set aside the proceedings conducted under case number B1361/14, and the subsequent upholding of the foregoing proceedings under case numbers HH935/14 and SC820/17 as being inconsistent with the right to a fair trial guaranteed under section 69(1) of the Constitution of Zimbabwe.

I further pray for remittal of the case for trial de novo to Guruve Magistrate Court before a different magistrate.”

The relief sought is the same as the relief that was sought on appeal to the Supreme Court.

In Prosecutor General v Telecel Zimbabwe 2016 (2) ZLR 422 (CC)…, the Constitutional Court said:

“…, while the applicant did not specifically state so in his application, in reality, the matter was an appeal brought to this Court under the guise of an application. This is abundantly evident from the relief that is outlined in his draft order. It is even more evident from his summary of the background to the intended application, as already indicated.

He indicated that he wished to approach this Court 'for an order setting aside the Supreme Court judgment…,.'.”

The applicant is seeking to appeal against the dismissal of the appeal by the Supreme Court.

The application is hereby dismissed with no order as to costs.

This is a chamber application for leave to appeal to the Constitutional Court (“the Court”) against a decision of the Supreme Court (“the court a quo”) in terms of Rule 32(2) of the Constitutional Court Rules S.I.61 of 2016 (“the Rules”), as read with section 167(5)(b) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”).

The Court holds that it is not in the interests of justice that the applicant be granted leave to appeal against the decision of the court a quo because no constitutional matter arose or was raised in the decision of the court a quo. Consequently, the application has no merit and cannot succeed. The reasons for the decision are set out below.

In February 2015 the applicant was charged in the Magistrates' Court at Bulawayo with fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code”). The background to the charge is that the applicant was the legal practitioner representing one Lungisani Sibanda (“Lungisani”), who was serving a seven-year prison sentence at Khami Maximum Prison for the offence of car theft. After a failed attempt was made to obtain liberty for Lungisani Sibanda, it was alleged that the applicant obtained a fake warrant of liberation misrepresenting that Lungisani had been granted bail pending appeal. It was alleged that the fake warrant of liberation was given to Lungisani's sister Lilian. She was the one to present the fake warrant of liberation of her brother from prison to the relevant authorities. In the statement she gave to the police, Lilian implicated the applicant.

After a full trial, the applicant was convicted of the offence and sentenced to forty-eight months' imprisonment, of which twelve months were suspended for five years on conditions of good behaviour.

Dissatisfied with the decision of the trial court, the applicant noted an appeal against both conviction and sentence to the High Court on the following grounds:

“Ad conviction

1. The learned magistrate in the court a quo erred, at law, in holding that Absolom Hlupo's evidence was admissible as against his co-accused, who, in this case, was the appellant.

2. The learned magistrate erred in holding that the Warrant of Liberation was fake when no evidence was led from the Clerk of Criminal Court's office in the Provincial Magistrates Court, that no record existed thereat where such bail had been granted warranting the Clerk of Criminal Court's stamp to be used.

3. The learned magistrate erred, at law, in holding that the call history regarding the cellphone was admissible as evidence against the appellant without considering, at all, the veracity, authenticity, and reliability of such evidence. A fortiori, the learned magistrate erred at law in holding that such evidence was admissible when it also clearly infringed on the appellant's constitutional rights and was obtained using a secondary legislation that is not supreme to the Constitution of Zimbabwe. Such evidence, in any event, had not been tendered in terms of the law.

4. The learned magistrate erred in accepting and considering Lilian Tapera's evidence admissible when she testified without being cautioned in terms of the law.

5. The learned magistrate further erred in seeking to have Lilian Tapera's evidence corroborated when, in the first place, it had been taken outside the purview of the law, had clear contradictions, prevarications (sic) and could not be relied upon. Despite this, the learned magistrate held that she had acquitted herself very well totally ignoring the aforesaid.

6. The learned magistrate erred in holding that Lilian Tapera's evidence was adequately corroborated by Joyce Sibanda and Richard Bhebhe's evidence totally ignoring, in the process, the glaring inconsistencies in her evidence and also between her evidence and that of these two witnesses.

7. The learned magistrate erred in holding that the envelope which Lilian Tapera saw at the appellant's office was one and the same envelope which was then delivered at Khami Prison and from which a Warrant of Liberation was discovered, and, on 23 December 2014, not on 24 December 2014 as appeared in the charge.

8. The learned magistrate further erred in holding that appellant's visit to Lilian Tapera's house was the reason why the said witness then gave a different statement at CID Frauds totally ignoring many factors that proved that such a finding was inconsistent with Lilian's own behaviour, her own evidence, and that of her mother, Joyce Sibanda, and the appellant.

9. The learned magistrate erred, at law, in totally disregarding the appellant's evidence which was most probable and accusing him of taking his legal role to the witness stand, and, in the process, ignoring the fact that he stood firmly and gave his evidence clearly.

The learned magistrate's sentence was excessive and harsh to the extent that it induced a sense of shock in light of:

(a) The grounds of appeal highlighted above.

(b) Its inconsistency with the factors highlighted in mitigation i.e. the appellant's personal circumstances and that no prejudice was suffered.

(c) The fact that it basically amounted to paying lip service to the mitigating factors.”

The High Court found no merit in the appeal against conviction. It was dismissed.

The appeal against sentence succeeded.

The High Court held that the sentence was unduly harsh and excessive. It noted that the applicant was a young lawyer who was at the inception of his career. It was of the view that, in passing sentence, his immaturity as a lawyer had to be considered. As a result, the applicant's sentence was reduced from forty-eight months to thirty-six months' imprisonment, twelve months of which were suspended for five years on condition that the applicant did not within that period commit an offence involving dishonesty for which upon conviction he was sentenced to imprisonment without the option of a fine.

Still aggrieved, the applicant noted an appeal against the confirmation of his conviction to the court a quo.

In his grounds of appeal, he argued that the High Court erred in accepting the evidence of the two witnesses who testified that the Warrant of Liberation was fake, as such evidence was not in conformity with the law regulating the authenticity of public documents. He further argued that the High Court erred in failing to regard Lilian Tapera as an accomplice witness. The argument was also made that the High Court erred in dismissing the applicant's challenge against the admissibility of the call history of his cellphone. Lastly, it was argued that the High Court erred by failing to rule against the admissibility of the confession by the appellant's co-accused in convicting the applicant.

The court a quo was of the view that the warrant of liberation was fake beyond a reasonable doubt and that the evidence adduced put this fact beyond any doubt. As regards the issue whether Lilian Tapera was an accomplice witness or not, the court a quo held that the High Court was correct in finding that she was not an accomplice, as there was no evidence that she participated in the generation and presentation of the fake warrant of liberation. Further, the court a quo found that the call history from the applicant's cell phone could be used as evidence against him because his objections to its use in the trial court were not substantiated, and that, in any event, he had consented to it being adduced as evidence.

It was the court a quo's finding that, in terms of section 259 of the Criminal Procedure and Evidence Act [Chapter 9:07] (the “CPEA”), the confession of one Hlupo could not be used against the applicant. As such, it was held that the trial court erred in admitting the confession into evidence against the applicant. However, the court a quo found that, even excluding the confession, there was sufficient evidence against the applicant to prove beyond a reasonable doubt that he had committed fraud in contravention of section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The appeal was accordingly dismissed.

On 19 February 2019 the applicant filed the present application for leave to appeal in terms of Rule 32(2) of the Rules, as read with section 167(5)(b) of the Constitution. He alleged that his right to equal protection and benefit of the law in terms of section 56(1) of the Constitution was violated by the court a quo when it upheld the authenticity of the call records.

The applicant further alleged that his right to a fair trial, as enshrined in section 69(1) of the Constitution, was violated by the court a quo. The allegation was that the applicant's right to challenge evidence was violated because he was not given the opportunity to “cross-examine the person who informed Lungile Moyo that the warrant was fake.”

The applicant also averred that his right under section 70(1)(k) of the Constitution, not to be convicted of an act that was not an offence when it took place, was violated. He alleged that if investigations were still to be completed, the delivery of the warrant of liberation was not an offence at the time of the trial.

It was also the applicant's allegation that his right to be presumed innocent, in terms of section 70(1)(a) of the Constitution, was infringed upon by the court a quo. The applicant challenged the finding by the court a quo to the effect that “that the provincial court had issued a warrant was not only remote but fanciful.”

The application was opposed by the respondent.

Its argument was that the findings of the court a quo were correct because the evidence proved beyond a reasonable doubt that the warrant of liberation was fake. It was further denied that there were any infringements of the applicant's constitutional rights. Therefore, no constitutional issues arose for determination. It was prayed that the application be dismissed.

In terms of section 167(5)(b) of the Constitution, the Constitutional Court Rules must allow a person, when it is in the interests of justice and with or without leave of the Constitutional Court, to appeal directly to the Constitutional Court from any other court. Rule 32 of the Rules gives effect to section 167(5)(b) of the Constitution. It provides, in relevant part, as follows:

“32. Leave to appeal

(1)…,.

(2) A litigant who is aggrieved by the decision of a subordinate court, on a constitutional matter only, and wishes to appeal against it to the Court, shall, within fifteen days of the decision, file with the Registrar an application for leave to appeal and shall serve a copy of the application on the other parties to the case in question, citing them as respondents.”…,.

Section 167(1)(b) of the Constitution makes it clear that the jurisdiction of the Constitutional Court is limited to deciding only constitutional matters and issues connected with decisions on constitutional matters. It is the highest court in all constitutional matters.

The case of Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18 is instructive with regards to the specialized jurisdiction of the Constitutional Court. At p9 of the cyclostyled judgment the Court said:

“The Court is a specialised institution, specifically constituted as a Constitutional Court, with the narrow jurisdiction of hearing and determining constitutional matters only. It is the supreme guardian of the Constitution and uses the text of the Constitution as its yardstick to assure its true narrative force. It uses constitutional review predominantly, albeit not exclusively, in the exercise of its jurisdiction.”

In Muza v Saruchera and Ors CC05-19 the Court noted that the purpose of the right of appeal granted to a person under Rule 32(2) of the Constitutional Court Rules, the procedure of an application for leave to appeal provided therein, and the contents of the application required under Rule 32(3)(c) of the Rules, are premised on the existence of a decision by a subordinate court on a constitutional matter.

The purpose of the Constitutional Court Rules is to ensure proper exercise of jurisdiction by the Constitutional Court.

The matter that gives rise to the need for the Constitutional Court to exercise its jurisdiction must be a constitutional matter decided by the subordinate court.

In Sadziwani v Natpak and Ors CC15-19 the Court emphasised the need for protecting its jurisdiction and process from abuse. It stated the following…,:

“Jurisdiction is the power or competence of a court to adjudicate on, determine and dispose of a matter.

In this regard, the Court is a creature of the Constitution. The principle of constitutional supremacy, as enshrined in section 2 of the Constitution, guarantees that the Court only exercises jurisdiction over matters which are specifically set out in terms of section 167, as read with section 332, of the Constitution.

The principle also ensures that the jurisdiction of the Court, as the highest court on constitutional matters and connected issues, cannot be ousted by legislation.

The Court's power to adjudicate on constitutional matters ought to be construed as a means by which life can be given to the objectives set out in section 3 of the Constitution. The Court, as the highest and most authoritative tribunal in constitutional matters, is tasked with the responsibility of safeguarding the values and objectives of the Constitution. It is charged with the duty of ensuring that these objectives are realised and given effect to. Thus, it is imperative that the Court is not unduly saddled with cases that have no bearing on the interpretation, enforcement or protection of the Constitution.

It is incumbent upon the Court to guard its jurisdiction jealously and eliminate the abuse of its powers. The integrity of the Court is of utmost importance and it ought to be protected.

The deliberately narrow jurisdiction of the Court is meant to shield it from abuse and ensure that it only adjudicates upon that which it is constitutionally mandated to adjudicate on.”

The object of the exercise of jurisdiction by the Court is always the protection, promotion and enforcement of the supremacy of the Constitution. Where there is no decision by a subordinate court to justify the allegation of actual or threatened violation of a constitutional provision, the Constitutional Court will have no cause for the exercise of its jurisdiction.

Section 332 of the Constitution defines a constitutional matter as “a matter in which there is an issue involving the interpretation, protection or enforcement of this Constitution.”

It is the applicant's case that the decision of the court a quo violated his right to equal protection and benefit of the law, enshrined in section 56(1) of the Constitution, when it upheld the authenticity of the call records and upheld the reliance of the trial court upon them.

With regards to the admissibility of the call history as evidence against the applicant, the court a quo held the following at paragraphs 46-49 of the cyclostyled judgment in Tungamirai Nyengera v The State SC67-18:

“The record indicates that the issue that was before the court a quo is whether or not the call histories were admissible.

The appellant contended that they were not as the evidence 'clearly infringed on the appellant's constitutional rights, and were obtained using secondary legislation that is not supreme to the Constitution of Zimbabwe.'

Clearly, there is no merit in this ground.

The right to privacy given in the Constitution is derogable and the law under which the call history was ordered by the Magistrates' Court is an example of one such derogation.

The rules governing the admissibility of documentary evidence in criminal trials are aimed at ensuring a fair trial through the elimination of any potential prejudice to an accused person, who is clearly the weaker of the two adversaries involved in a criminal trial.

All these rules, however, yield and fall by the wayside when an accused person consents to the production of documents tendered by the State.

Before the trial court, the appellant consented to the production of the call histories without any demur. There was therefore no issue before that court regarding the admissibility of the call histories.”

The court a quo dismissed the applicant's argument regarding the call history because the applicant had consented to the production of the records at his trial. The finding by the court a quo was a finding of fact, which was made after an assessment of the laws of evidence.

Where an accused person consents to the adduction of incriminating evidence, he cannot turn around and challenge a conviction which was secured based on that evidence.

In coming to this conclusion, the court a quo did not decide a constitutional matter because there was no need to interpret, enforce or protect the Constitution in order to come to the conclusion that the call history was admissible as evidence against the applicant. As such, the applicant's argument in this regard ought to fail.

The applicant also argued that his right to a fair trial, as enshrined in section 69(1) of the Constitution, was violated.

In this regard, he asserted that his right to challenge evidence was impinged upon because the evidence of one Lungile Moyo was at odds with section 253 of the Criminal Procedure and Evidence Act, in that he was not given the opportunity to “cross-examine the person who informed Lungile Moyo that the warrant was fake.”

The position of the law is that a purely factual matter does not amount to a constitutional issue.

In S v Boesak 2001 (1) SA 912 (CC), LANGA DP put this position beyond doubt when he stated the following…,:

“A challenge to a decision of the SCA, on the basis only that it is wrong on the facts, is not a constitutional matter.

In the context of section 167(3) of the Constitution the question whether evidence is sufficient to justify a finding of guilt beyond reasonable doubt cannot in itself be a constitutional matter. Otherwise, all criminal cases would be constitutional matters, and the distinction drawn in the Constitution between the jurisdiction of this Court and that of the SCA would be illusory.

There is a need for finality in criminal matters.

The structure of the Constitution suggests clearly that finality should be achieved by the SCA unless a constitutional matter arises.

Disagreement with the SCA's assessment of the facts is not sufficient to constitute a breach of the right to a fair trial.

An applicant for leave to appeal against the decision of the SCA must necessarily have had an appeal or review as contemplated by section 35(3)(o) of the Constitution. Unless there is some separate constitutional issue raised therefore, no constitutional right is engaged when an appellant merely disputes the findings of fact made by the SCA.”

As a result, the question whether evidence is sufficient to justify a finding of guilt beyond reasonable doubt is not, for the reasons given above, a constitutional matter.

The applicant also averred that his right under section 70(1)(k) of the Constitution, not to be convicted of an act that was not an offence when it took place, was violated.

He alleged that if investigations were still to be completed, the delivery of the warrant of liberation was not an offence at the time of the trial.

It is common cause that the applicant was charged with and convicted of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It is also common cause that the Criminal Law (Codification and Reform) Act was in force at the time the applicant's trial commenced. The allegation that the conduct for which the applicant was convicted was not an offence at the time of his trial was not made in seriousness and must be dismissed.

The applicant further advanced the argument that the finding by the court a quo that the warrant of liberation was fake infringed his right to be presumed innocent until proven guilty, as enshrined in section 70(1)(a) of the Constitution.

This finding by the court a quo is also alleged to be a violation of section 165(1)(a) of the Constitution, which guarantees that justice must be done to all irrespective of status.

The applicant further argued that section 70(1)(a) of the Constitution must be read together with section 18(1) of the Criminal Law (Codification and Reform) Act. Section 18(1) of the Criminal Law (Codification and Reform) Act provides:

“18 Degree and burden of proof in criminal cases

(1) Subject to subsection (2), no person shall be held to be guilty of a crime in terms of this Code or any other enactment unless each essential element of the crime is proved beyond a reasonable doubt.”

As already found, the findings of the court a quo, regarding the authenticity of the warrant of liberation, are within the realm of the law of evidence, particularly the assessment thereof, and do not give rise to a constitutional issue.

A decision as to the sufficiency of evidence that is required to sustain a conviction in a criminal prosecution does not ordinarily involve the interpretation or application of any provision of the Constitution. Neither does it involve the application of a law inconsistent with the Constitution, or have any other connection with the Constitution that would make that decision a constitutional matter.

The Constitution must be involved in some way before such a finding can be said to raise a constitutional issue within the jurisdiction of the Court. The fact that there was no constitutional matter that was raised before and determined by the court a quo cannot be meaningfully disputed. The applicant was merely aggrieved by the non-constitutional findings of the court a quo and this means that the jurisdiction of the Constitutional Court is not triggered in the circumstances.

In De Lacy and Anor v South African Post Office [2011] ZACC 17…, the Constitutional Court of South Africa held as follows regarding an applicant's dissatisfaction with the factual findings of a lower court:

“Then, the essence of their contention was that the Supreme Court of Appeal should have held that indirect intent was sufficient to render an organ of State vicariously liable for the wrongs of its employees and that on the evidence they had established that the Post Office's employees had acted with indirect intent to defraud.

That was the applicants' constitutional focus.

And yet the bulk of its papers were devoted to an exhaustive critique of the factual findings of the Supreme Court of Appeal. Their grievance had all the hallmarks of a mere dis-satisfaction with factual findings.

The Post Office opposed the application. On 9 July 2009, this Court dismissed it for lack of prospects of success.”…,.

See also Chiite and Ors v The Trustees of the Leonard Cheshire Homes Zimbabwe Central Trust CC10-17.

Consequent to the above, the issue relating to the hierarchy of courts, in non-constitutional, matters arises. In this regard, section 169(1) of the Constitution is paramount. It provides as follows:

“169 Jurisdiction of Supreme Court

(1) The Supreme Court is the final court of appeal for Zimbabwe, except in matters over which the Constitutional Court has jurisdiction.”

In Rushesha and Ors v Dera and Ors CC24-17 GWAUNZA JCC…, interpreted this provision in the following manner:

“The import of this provision needs no elaboration. Only where the Supreme Court determines a constitutional issue, may one appeal to this Court for a final determination. Because the Supreme Court in this matter did not determine any constitutional issue, the decision it rendered was final and not appealable.”

Section 26(1) of the Supreme Court Act [Chapter 7:13] reaffirms the above position. It states:

“26 Finality of decisions of Supreme Court

(1) There shall be no appeal from any judgment or order of the Supreme Court.”

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18, the Constitutional Court held that the principles that emerge from section 169(1) of the Constitution, as read with section 26 of the Supreme Court Act, are clear. At p22 of the cyclostyled judgment, the Court said:

“A decision of the Supreme Court, on any non-constitutional matter in an appeal, is final and binding on the parties and all courts except the Supreme Court itself. No court has power to alter the decision of the Supreme Court on a non-constitutional matter. Only the Supreme Court can depart from or overrule its previous decision, ruling or opinion on a non-constitutional matter.

The onus is on the applicant to allege and prove that the decision in question is not a decision on the non-constitutional matter.”

There was no constitutional issue raised before and determined by the court a quo. The dismissal of the appeal by the court a quo remains final. It cannot be appealed against. As such, the application has no merit and it ought to be dismissed.

The application is dismissed with no order as to costs.

This is an appeal against the decision of the High Court granting an order evicting the appellant and requiring him to pay holding over damages and costs of suit.

The respondent alleged that he was the registered owner of the property in question, situated in Meyrick Park, Harare, and that the appellant was occupying the property without his consent, entitling him to claim holding over damages in the sum of $500 per month from 1 November 2011.

The appellant himself also claimed title to the property.

He denied having transferred the property to the respondent or to any other person. He had borrowed $19,000 from one Frank Buyanga and was made to sign a purported Agreement of Sale in respect of the property. After he failed to settle his loan debt, Frank Buyanga sold the property to an entity called Gildastone Holdings (Pvt) Ltd.

The appellant disputed that the respondent was a bona fide purchaser or that he was entitled to holding over damages and punitive costs.

The court a quo found that the respondent was the registered owner of the property, having purchased it from Gildastone Holdings - without having been told of any disputed sale. He paid $55,000 for the property and his current rental claim was not disputed by the appellant who was still occupying the property. His evidence was credible and not controverted under cross-examination.

Conversely, the court found that the appellant's evidence was too complicated. He had either sold the property to Lalapanzi Properties (Pvt) Ltd or had failed to service his loan agreement bringing the Agreement of Sale into fruition.

On either of his versions, he had agreed to the sale of his house.

He placed no evidence before the court to support his bald assertion that Frank Buyanga was behind the fraudulent sales of properties in similar circumstances.

As regards the appellant's point in limine, that the instant matter be deferred until another matter in Case No. HC2469/13, dealing with the ownership of the property, is determined, the court noted that this was a later case instituted several years after the instant case. The court found that the appellant's point in limine was an afterthought and was not genuinely raised. In any case, although the respondent's claim was for eviction, it was based on the actio rei vindicatio and therefore required the court to determine the true ownership of the property. The point in limine accordingly failed and was dismissed.

The court reiterated that the respondent had provided a title deed to show that he was the holder of legal title to the property. The appellant was in occupation of the property and had to show that he was vested with some right to remain which was enforceable against the registered owner. He had failed to raise any recognisable defence to the respondent's claim for eviction or holding over damages. Consequently, the court ordered the appellant to vacate the property forthwith. The appellant was also ordered to pay holding over damages of $500 per month, from 1 November 2011 to the date of vacation or eviction, and costs of suit.

The grounds of appeal herein are essentially twofold:

(i) The primary ground of attack is that the court a quo erred in ordering eviction despite the matter pending in the High Court to resolve the substantive question of ownership. The court therefore misdirected itself in failing to stay eviction proceedings during the pendency of Case No. HC2469/13, wherein Frank Buyanga and his associated companies were cited and which was therefore better placed to resolve the question of ownership....,.

The gist of the appellant's position a quo was that there was an action pending in Case No. HC2469/13 to determine the true ownership of the property in question and that the interests of justice, convenience, and finality to litigation demanded that the real substance of the dispute, i.e. ownership of the property, be ventilated and determined first.

In essence, the appellant raised the defence of lis alibi pendens.

The defence or objection of lis alibi pendens is usually invoked in litigation where a civil suit is already pending between the parties and another suit is instituted involving the same parties in relation to the same cause of action and in respect of the same subject matter. See HERBSTEIN and Van WINSEN: The Civil Practice of the Superior Courts in South Africa (3rd ed.)…,.

As is pointed out by the learned authors, it lies within the discretion of the court to allow or decline the defence. This point is aptly elaborated in D.W. Hattingh & Sons (Pvt) Ltd v Cole N.O. 1991 (2) ZLR 176 (SC)…, as follows:

“The court has a discretion to order or refuse a stay of proceedings on the grounds of lis alibi pendens, and, in the exercise of that discretion, it will have regard to the equities and to the balance of convenience in the matter.”…,.

What emerges from this passage is that the court seized with a request for the stay of proceedings must have regard to all the relevant circumstances of the case. In short, considerations of fairness and convenience are decisive in the exercise of the court's discretion. Thus, it is not an immutable rule that the matter or suit which was commenced first should be proceeded with and determined before the matter that is instituted at some later stage. The particular facts and issues involved in both matters must be taken into account in granting or refusing a request for the stay of proceedings.

In dismissing the appellant's objection in limine to the continuation of the proceedings a quo, the learned judge reasoned as follows:

The instant matter was filed in 2011 well before the matter in Case No. HC2469/13. At that time, there was no similar matter pending between the parties. The defence of lis alibi pendens applies to a pending earlier matter involving the same parties, the same subject matter and the same cause of action. Therefore, the action which was first commenced should be decided first. The defence raised by the appellant was an afterthought. In any event, although the instant claim was for eviction, it still required the court to determine the question of ownership of the property. Consequently, the learned judge dismissed the point in limine and proceeded to find that the appellant had no recognisable defence to an actio rei vindicatio or to the claim for holding over damages.

Having regard to what I have stated earlier, the learned judge was clearly wrong in taking the position that the defence of lis alibi pendens only applies to a pending earlier matter and that the action which was commenced first should be decided first.

In my view, the correct principle to be applied in the case of dual or multiple proceedings is not that of “first come first adjudicated”. Rather, it is one of having regard to all the relevant circumstances and balancing the interests of justice and convenience to all the parties involved as well as the court system.

The court a quo failed to do so and misdirected itself by applying the wrong principle in the exercise of its discretion in determining whether or not to stay the instant proceedings.

Equally significantly, the learned judge appears to have committed a further critical error in her adjudication of the question of ownership.

At an early stage during the trial a quo the appellant's counsel applied for a postponement of the trial on the ground that there was a pending chamber application for the consolidation of the two matters in question. It was argued that it was convenient for both matters to be heard at the same time.

The learned judge declined the application for postponement on the basis that the application for consolidation was belated and had been overtaken by events.

While the learned judge cannot be faulted for having taken this robust approach, it seems to me that she could not have been in any position to make conclusive findings on the question of ownership without having examined the record in Case No. HC2469/13. That is the matter in which the issues of ownership and several transfers of title in the disputed property are to be fully ventilated.

It is not in dispute that neither Gildastone Holdings nor Lalapanzi Properties have filed any notice of opposition to the appellant's claim in that matter. It is also not in dispute that the principal player in the purported loan-cum-sale arrangement over the property, ie Frank Buyanga, has been evasive hitherto but has since been served with process by edictal citation pursuant to a court order dated 4 April 2019.

In short, the proceedings in Case No. HC2469/13 have progressed to a stage where they can be expedited by the parties themselves, or, if necessary, by appropriate directions from the court.

As I have already noted, the appellant did initially raise the question of lawful title and ownership in October 2012. However, these issues were omitted from the joint pre-trial conference minute filed in February 2013, at the time when the appellant was not legally represented. Subsequently, he issued summons in Case No. HC2469/13 on the basis that he was still the legal owner of the property.

His uncontroverted averment in this regard is that he did so pursuant to the indications of the judge presiding at the pre-trial conference, to the effect that it was not meaningful for him to challenge the last transfer to the respondent without challenging the initial transfer.

That being so, it cannot be said, as was rather unfairly found by the court a quo, that the defence raised by the appellant was merely an afterthought.

It is common cause that the appellant possessed initial title in the disputed property. His position is that he inadvertently signed what he was led to believe and understood to be simply a loan agreement and that he did not sign anything else relating to the transfer of the property.

At present, title to the property is registered in the respondent's name.

However, it is trite that a title deed is not conclusive proof of ownership.

In casu, the presumption of ownership being vested in the respondent has been challenged and possibly dislodged by the absence of evidence proving the various transfers of title from the appellant to Lalapanzi Properties and then to Gildastone Holdings and eventually to the respondent.

In the final analysis, I am satisfied that the court a quo erred and misdirected itself in declining to stay the proceedings before it pending the disposition of Case No. HC2469/13, notwithstanding that the latter case had been instituted after the former.

In the exercise of its discretion, the court acted on the wrong principle. Moreover, it failed to take into account crucially relevant facts pertaining to title in and ownership of the property.

If the judgment a quo were to be enforced, resulting in the appellant being evicted from his only home, he would no doubt be rendered destitute pending the possible restoration of the status quo ante. Conversely, if the eviction of the appellant were to be delayed pending the finalisation of Case No. HC2469/13 and if the respondent were to succeed in that matter, the latter could be compensated by an award of holding over damages coupled with an order of punitive costs, if appropriate, and would therefore suffer minimal prejudice. In other words, the balance of convenience clearly favours the appellant.

In the premises, I take the view that the real dispute between all of the parties involved is still pending in Case No. HC2469/13.

In this particular instance, the matter that fully and definitively resolves the issues of ownership and title should be heard and determined first. This would resonate not only with the interests of justice and the balance of convenience between the parties but also with the need to bring finality to the protracted contestation in this matter.

The court a quo should have exercised its discretion accordingly and its decision to the contrary cannot be allowed to stand.

As regards costs, I have earlier indicated that the appellant was prepared, in the event that the appeal succeeds, to forego the costs a quo as well as the costs of the appeal. It is accordingly ordered as follows:

1. The appeal be and is hereby allowed with no order as to costs.

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

“(i) The matter be and is hereby stayed pending the determination of Case No. HC2469/13.

(ii) There shall be no order as to costs.”

This is an appeal against part of the judgment of the High Court upholding the respondent's claim of a 50% share of an immovable property registered in the appellant's name pursuant to the distribution of property upon divorce.

The appellant and respondent were married in 1970 in terms of an unregistered customary law union. In 1971, they solemnised their marriage in terms of the African Marriages Act [Chapter 105]. On 27 May 2005 they upgraded their marriage by solemnising it in terms of the Marriage Act [Chapter 5:11]. The union was blessed with four children who are now adults.

Sometime in 2010, the respondent issued summons for divorce in the High Court seeking the following order:

“(a) A decree of divorce.

(b) Maintenance for the plaintiff.

(c) Distribution of property as listed in paragraphs 10 and 11 of the papers.

(d) That each party bears his/her own costs."

The respondent claimed that the marriage had irretrievably broken down and there were no prospects of the restoration of a normal marriage relationship. She alleged that the appellant was involved in adulterous affairs with other women and bore children out of wedlock whom he brought to the matrimonial home to be taken care of by her among other factors.

The appellant conceded that the marriage had indeed irretrievably broken down. He argued that it was the respondent who was in fact involved in adulterous affairs with other men and denied ever committing adultery.

The appellant admitted that he acquired House Number 114 Lomagundi Road, Harare (hereinafter referred to as "the immovable property") during the subsistence of the marriage but submitted that he did so without the respondent's direct contribution. He, therefore, argued that there was no basis for the proposed equal sharing of the immovable property.

At the pre-trial conference, the parties agreed that the following two (2) issues be referred to trial:-

“1. Whether or not the immovable property is matrimonial property?

2. If it is matrimonial property, what is the equitable distribution thereof?”

At the trial before the court a quo, the respondent gave evidence to the following effect: That during the subsistence of the marriage the parties acquired movable and immovable property through joint and complementary efforts in that although she was not gainfully employed, she took care of the family as well as the children born out of wedlock by the appellant. She told the court a quo that she used to sew clothes and chair backs to raise income which she handed over to the appellant.

She told the court a quo that they started off in Goromonzi where the appellant was employed as a police officer. Thereafter, they moved to Ruware Park in Marondera upon the appellant's promotion to the Criminal Investigation Department. The appellant was again promoted and they moved back to Harare and acquired a house in Cranborne.

In 1982, the appellant took a second wife with whom they stayed together at the Cranbone house before moving to the Lomagundi house. The second wife bore three children to the appellant but divorced him after 22 years. After the second wife left, the respondent took care of her three children and two others born out of wedlock over and above her four children with the appellant. Although she accepts having been assisted by maids at various stages in her life, she asserts that she remained the primary care-giver in the family. She stood by the appellant when he was dismissed from employment, in 1985, fending for the family in the best way she could until the appellant got a job at Sandawana in 1996.

The second wife would buy groceries but she divorced the appellant between 1990 and 1991 leaving the respondent to stand with the appellant until he was employed by Sandawana in 1996. The respondent told the court a quo that she was 65 years old.

The appellant's former second wife, Viola Nyasha Nemaunga, testified on behalf of the respondent supporting the evidence she gave in the court a quo.

The appellant did not contest most of the evidence given by and for the respondent save to say that the respondent was not entitled to a share in the immovable property.

He submitted that the respondent did not contribute financially towards the acquisition of any of his immovable properties. He insisted that since his marriage to the respondent was out of community of property, he had no obligation to tell her what his intentions were with his monies and this justified why he did not tell her about the properties he bought during the subsistence of the marriage. He disputed that the respondent took care of the children and contributed towards the welfare of the family in any material respects as he hired a maid to take care of the children when he was not at home.

The appellant further testified that although the respondent did a cake-making and sewing course, no income was realised from those ventures as he stopped her from pursuing them. His evidence was contradicted by his former second wife who told the court a quo that the respondent's ventures raised income which she surrendered to the appellant.

The appellant told the court a quo that although he stays elsewhere, he still has an interest in the immovable property and produced several receipts before the court a quo to prove that he was responsible for the maintenance of that property.

After hearing the testimonies of the parties, and listening to submissions by counsel, the court a quo held that taking into account the provisions of the Constitution of Zimbabwe 2013, section 7(4) of the Matrimonial Causes Act [Chapter 5:13], and international law, the respondent was entitled to a 50% share of the Lomagundi house.

It held that the interpretation of the Matrimonial Causes Act should be in conformity with the Constitutional provisions on gender equality. The court a quo also took into consideration the fact that the respondent was now 65 years old and had passed her prime age with no income. It held that the respondent looked after nine children, including five who were not her own, and had to endure the humiliation of having another wife brought into the marriage.

The court a quo held that although the appellant was 73 years old he was still receiving his pension. It also took into consideration the fact that the respondent's evidence, on the indirect contributions she made, remained unchallenged.

It was on the basis of these findings that the respondent was awarded a 50% share in the immovable property.

Aggrieved by the decision of the court a quo, the appellant appealed to this court on the following grounds:-

“1. The court a quo erred in failing to find that the appellant was entitled to 100% or at least 70% share of the immovable property taking into account his direct and indirect contribution in the acquisition and maintenance of the immovable property.

2. The court a quo erred and grossly misdirected itself at law and fact in finding that the respondent was entitled to a 50% share in the immovable property without giving due weight to the evidence placed before it.

3. The court a quo misdirected itself by proceeding as if it was determining a gender equality issue when the only issue before it was about the distribution of the matrimonial asset purely on the weight of each party's contribution.”

The appeal raises one issue for determination:

Counsel for the appellant submitted that the court a quo erred in awarding the respondent a 50% share of the immovable property. She argued that the respondent had not contributed anything in the acquisition of the property hence the court a quo erred in not awarding the appellant 100%, or, at least, a 70% share in the property. Counsel for the appellant contended that the court a quo diverted its attention to gender equality issues which were not before the court. She submitted that the court a quo adopted the notion of equality narrowly, and with bias, as it based its judgment on section 46(1) of the Bill of Rights in the Constitution.

Counsel for the appellant further submitted that the value and principle of justice outweighs equality but the court a quo's view was otherwise thus it erred in that regard. She further contended that the court a quo ought to have considered other founding values and principles of the Constitution particularly the rule of law and the nation's diverse cultural, religious, and traditional values and not only focus on gender equality.

Counsel for the appellant submitted that the net effect of the court a quo's judgment was to disregard the decision reached in Takafuma v Takafuma 1994 (2) ZLR 103 (S) to the effect that in distribution of property, upon divorce, a party is entitled to get what is his/hers first before getting a share in jointly acquired property. She further argued that the immovable property was acquired by the appellant, and that, had the court a quo exercised its discretion judiciously, it would have made a finding to that effect.

Counsel for the appellant submitted that the court a quo's construction of the conduct of the parties with regard to section 7(4) of the Matrimonial Causes Act was against the "no-fault” concept in divorce matters and in the distribution of property which was laid to rest in Ncube v Ncube 1993 (1) ZLR 39 (S). She submitted that the court a quo had considered the conduct of the appellant in the distribution of property.

Consequently, she prayed that the judgment of the court a quo be set aside as it had failed to use its discretion judiciously in the distribution of property.

Counsel for the respondent submitted that the court a quo judiciously exercised its discretion in terms of section 7 of the Matrimonial Causes Act. She argued that a court's discretion can only be interfered with if it is shown that it was grossly unreasonable, which, in casu, the appellant failed to prove. Counsel for the respondent contended that in exercising its discretion, in interpreting section 7 of the Matrimonial Causes Act, the court a quo had to be guided not only by precedent but also by the Constitution.

Counsel for the respondent further submitted that the case of Shenje v Shenje 01-HH-145-2001 (1) ZLR 160 (H), HH145-01 outlined the principle which is applied in the distribution of property. She stressed that the needs of the parties is the primary consideration not their respective contributions. She submitted that the court a quo applied this principle as it considered that the respondent was 65 years old and had passed the prime of her life, and, was unlikely to remarry; that the appellant was receiving a pension; that the respondent was sick; and that the appellant had alternative accommodation.

Counsel for the respondent submitted that, in terms of section 7 of the Matrimonial Causes Act, a court can take into account the conduct of parties in the distribution of property and this was not necessarily a resuscitation of the "no-fault” principle.

In relation to the issue of gender equality, counsel for the respondent submitted that the court a quo took into account real and substantial considerations which point to gender as a crucial factor in determining the needs and contributions of the parties. She argued that taking into consideration all these factors, cumulatively, justifies the awarding of a 50% share of the immovable property, hence, the court a quo cannot be faulted for exercising its discretion in that regard.

Section 26(c) and (d) of the Constitution provides that the State must ensure that there is equality of rights and obligations of spouses during marriage and at its dissolution, and, in the event of dissolution, whether through death or divorce, provision must be made for the necessary protection of spouses.

Article 16(1) of the Universal Declaration of Human Rights (1948) provides that men and women of full age are entitled to equal rights as to marriage, during marriage, and at its dissolution.

This means there must be a fair and equitable division and distribution of property at the dissolution of marriage.

The importance of gender equality in this era cannot be over-emphasized.

The appellant's counsel can therefore not be correct when she alleges that the court a quo turned this matter into a gender issue. The court a quo merely took into account gender equality as a crucial factor in determining the needs and contributions of the parties…,.

The division and distribution of assets of the spouses at divorce are governed by section 7 of the Matrimonial Causes Act [Chapter 5:13].

It is trite that in matters involving the distribution of property, the court has to exercise its discretion in deciding what is a just and equitable distribution of the parties property. As a result, a lot of authorities, in construing the provisions of section 7 of the Matrimonial Causes Act, as a whole, refer to the need to achieve an equitable distribution of the assets of the spouses - consequent upon the grant of a decree of divorce.

This Court's view, on the discretion of the trial court on the distribution of assets of the parties, was aptly stated in Ncube v Ncube 1993 (1) ZLR 39 (S)…, where the court said:

"The determination of the strict property rights of each spouse in such circumstances, involving, as it may, factors that are not easily quantifiable in terms of money, is invariably a theoretical exercise for which the courts are indubitably imbued with a wide discretion."…,.

The trial court's discretion was also commented on in Gonye v Gonye 09-SC-015-2009 (1) ZLR 232, SC15-09…, where MALABA JA…, said:

"It is important to note that a court has an extremely wide discretion regarding the granting of an order for the division, apportionment or division of the assets of the spouses in divorce proceedings. Section 7(1) of the Act provides that the court may make an order with regard to the division, apportionment or distribution of the assets of the spouses including an order that any asset be transferred from one spouse to the other. The rights claimed by the spouses under section 7(1) are dependent upon the exercise by the court of the broad discretion."

The exercise of discretion by an appropriate court, as required in terms of section 7 of the Matrimonial Causes Act, has been the subject of scrutiny by the courts within this jurisdiction. It is trite that in giving effect to the broad discretion bestowed on it by section 7(1) of the Matrimonial Causes Act, the court must have regard to the factors set out in section 7(4) which are:-

(a) The income-earning capacity, assets and other financial resources which each spouse and child has or is likely to have in the foreseeable future:

(b) The financial needs, obligations and responsibilities which each spouse and child has or is likely to have in the foreseeable future;

(c) The standard of living of the family, including the manner in which any child was being educated or trained or expected to be educated or trained;

(d) The age and physical and mental condition of each spouse and child;

(e) The direct or indirect contribution made by each spouse to the family, including contributions made by looking after the home and caring for the family and any other domestic duties;

(f) The value to either of the spouses or to any child of any benefit, including a pension or gratuity, which such spouse or child will lose as a result of the dissolution of the marriage;

(g) The duration of the marriage;

and in so doing the court shall endeavour as far as is reasonable and practicable and, having regard to their conduct, is just to do so, to place the spouses and children in the position they would have been in had a normal marriage relationship continued between the spouses."…,.

It is trite that in matters involving the exercise of discretion by a lower court the Appellate Court cannot interfere unless the trial court misdirects itself, acts on a wrong principle, allows itself to make its decision on extraneous or irrelevant matters or does not take into account some relevant consideration. It can only do so in extraordinary circumstances where there is evidence of gross misdirection, unreasonableness and illogicality.

The position was clarified in the case of Barros & Anor v Chimphonda 99-SC-001-1999 (1) ZLR 58 (S), SC01-99…, where the court said:

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

See also The Civil Practice of the Supreme Court of South Africa (HERBSTAIN and Van WINSEN) 4th ed by L Van WINSON, AC CILLIERS and C LOOTS…,; Tjospomie Boedey (Pvt) Ltd v Drakensberg Bottliers (Pvt) Ltd & Anor 1989 (4) SA 31 (T)…,; and Ex-parte Neethling & Anor 1951 (4) SA 331A.

In casu, the appellant did not properly challenge the decision of the court a quo in that regard as no gross misdirection, illogicality, and unreasonableness has been alleged in the appellant's grounds of appeal. It is not enough for the appellant to seek to impugn the decision of the lower court on an exercise of discretion without showing that such discretion was not exercised judiciously.

The nub of the matter is whether or not the court a quo erred in distributing the immovable property equally between the parties.

The appellant alleges that the court a quo did not take into consideration the fact that the immovable property was acquired by the appellant without any direct contribution from the respondent. On the other hand, the respondent did not dispute that she did not contribute financially towards the acquisition of the immovable property. She, however, gave evidence on how she looked after and brought up the appellant's three children with his second wife and two born out of wedlock over and above their four children.

That, in my view, is outstanding indirect contribution which entitles her to a share higher than that deserved by a wife of longstanding who contributed through looking after her husband and their own children.

In the case of Shenje v Shenje 01-HH-145-2001 (1) ZLR 160 (H), HH145-01, GILLESPIE J…, commenting on what should be considered in the division and distribution of property in terms of section 7(4) of the Matrimonial Causes Act upon divorce said:-

“The factors listed in the subsection deserve fresh comment. One might form the impression, from the decisions of the courts, that the crucial consideration is that of the respective contributions of the parties. That would be an error. The matter of the contributions made to the family is the fifth listed of seven considerations.

The first four listed considerations all address the needs of the parties rather than their duties. Perhaps, it is time to recognise that the legislative intent, and the objective of the courts, is more weighted in favour of ensuring that the parties' needs are met rather than that their contributions are recouped."…,.

The needs of the parties are an important consideration because section 7(4) of the Matrimonial Causes Act ends by requiring the court to, after taking all factors into consideration, place the spouses and children in the position they would have been in had a normal marriage relationship continued between the spouses.

The normal family life the court should use as a standard does not depend on contributions but provision for the family out of parental and spousal love and care. The actual words used by the Legislature are:

"and, in so doing, the court shall endeavour, as far as is reasonable and practicable, and, having regard to their conduct, is just to do so, to place the spouses and children in the position they would have been in had a normal marriage relationship continued between the spouses."…,.

The use of the words 'shall endeavour' means the court must, in balancing the seven factors of section 7(4) of the Matrimonial Causes Act, ask its self whether its decision will put the divorcing spouses and their children in a position they would have been in if a normal marriage had continued. The use of the words "shall endeavour" also means the court must try very hard to come up with a decision which places the spouses and children in the position they would have been in had a normal marriage relationship continued between the spouses.

Such an endeavour calls upon the court to search beyond mere contributions in arriving at a decision which places the spouses, and their children, in the position they would have been in had a normal marriage relationship continued.

It requires the court to look into the family's standard of life and needs after which the court's orders must be made with a view to maintaining that standard of life and meeting the divorcing spouses' family's needs.

Further, the approach which a court should adopt in apportioning the assets of parties following the dissolution of a marriage was set out in the famous case of Takafuma v Takafuma 1994 (2) ZLR 103 (S). In that case, the court…, said:

“The duty of a court, in terms of section 7 of the Matrimonial Causes Act, involves the exercise of a considerable discretion, but, it is a discretion which must be exercised judicially. The court does not simply lump all the property together and then hand it out in as fair a way as possible.

It must begin, I would suggest, by sorting out the property into three lots, which I will term 'his', 'hers' and 'theirs'. Then, it will concentrate on the third lot marked 'theirs'. It will apportion this lot using the criteria set out in section 7(3) of the Act.

Then, it will allocate to the husband the items marked 'his', plus the appropriate share of the items marked 'theirs'. And the same to the wife. This is the first stage.

Next it will look at the overall result, again applying the criteria set out in section 7(3), and consider whether the objective has been achieved, namely, 'as far as is reasonable and practicable, and, having regard to their conduct, is just to do so, to place the spouses…, in the position they would have been had a normal relationship continued'…,. Only at that stage, I would suggest, should the court consider taking away from one or other of the spouses something which is actually 'his' or 'hers'."

How can one quantify, in monetary terms, the contribution of a wife and mother, who, for 39 years, faithfully performed her duties as wife, mother, counsellor, domestic worker, house keeper, day and night nurse for her husband and children? How can one place a monetary value on the love, thoughtfulness and attention to detail that she puts into all the routine and sometimes boring duties attendant on keeping a household running smoothly and a husband and children happy? How can one measure, in monetary terms, the creation of a home and therein an atmosphere from which both husband and children can function to the best of their ability?

In the light of these many and various duties how can one say, as is often remarked: 'throughout the marriage she was a housewife. She never worked?'

In my judgment, it is precisely because no monetary value can be placed on the performance of these duties that the Act speaks of the 'direct or indirect contribution made by each spouse to the family, including contributions made by looking after the home and caring for the family and any other domestic duties.

A fair approach is that set out by PROFESSOR NCUBE in his book 'Family Law in Zimbabwe'. At p178 he said:-

'Our courts, when formulating a legal approach to the re-allocation of property on divorce, should not attempt to attach a monetary value to the intangible and un-quantifiable domestic contributions of a housewife.'"…,.

This case establishes the factors which constitutes indirect contributions.

Indirect contributions encompasses much more than the performance of domestic duties. It encompasses all aspects of a spouse's role in the life of the other spouse and their children in the day to day running of a family.

In this case, the court a quo considered the respondent's indirect contributions and came to the conclusion that she should be awarded a 50% share of the immovable property.

In my view, the court a quo properly exercised its wide discretion on such matters. The ambit of the Matrimonial Causes Act, as a whole, is to leave the parties in a position they would have been in had a normal marriage relationship continued.

The court a quo took into consideration the indirect contribution made by the respondent in taking care of the family and the household, through the non-financial means, for a period of close to five (5) decades. It also took into consideration the fact that the respondent also took care of three children of the appellant and the other wife and two of the appellant's children born out of wedlock. The court considered the 47 years of marriage and the indirect contributions, and expectations, flowing from such a long marriage.

It also took into account the age of the respondent (65 years) and that she was past her prime age and there was no possibility of re-marriage. It also factored in the various ailments that the respondent is suffering from and the attendant needs arising from such ailments.

Her evidence on such ailments was not challenged by the appellant.

The court a quo also considered that although the appellant was 73 years old, he was receiving his pension and had alternative accommodation at a house he said belonged to his former employer, Sandawana.

In my view, taking into consideration all these circumstances, the court a quo correctly awarded the respondent a 50% share of Number 114 Lomagundi Road. The respondent deserved a share which is commensurate with the duration of the marriage of close to five (5) decades and her indirect contributions which included looking after the appellant's three children from the second marriage and two born out of wedlock over and above their four children.

The court a quo considered all factors upon which such an enquiry should be made. It therefore properly exercised its discretion.

The court a quo also took into consideration the conduct of the appellant in the distribution of property as provided under section 7(4) of the Matrimonial Causes Act [Chapter 5:13].

The appellant took issue with that approach and alleged that it was a resuscitation of the fault principle in divorce matters which was laid to rest in Ncube v Ncube 1993 (1) ZLR 39 (S).

Section 7(4) of the Matrimonial Causes Act provides that, in the distribution of property upon divorce, the court shall endeavour, as far as is reasonable and practicable, and, having regard to "their conduct.”

The appellant mistook this conduct to be that which leads to the breakdown of the marriage.

A contextual reading of section 7(4) of the Matrimonial Causes Act makes it clear that this is not the conduct envisaged in the Matrimonial Causes Act but that which has a bearing on the distribution of property.

I am of the view that the conduct envisaged in section 7(4) of the Matrimonial Causes Act is that which seeks to hinder or frustrate a proper consideration of what consequential orders can be made upon divorce. The repercussions of such conduct are aptly illustrated in Shenje v Shenje 01-HH-145-2001 (1) ZLR 160 (H), HH145-01…, where GILLESPIE J had this to say:-

"The task of assessing a fair division of property can be difficult enough when appropriate evidence is led of the wealth, assets, and means of the parties. It is potentially much more difficult when a party seeks to conceal his circumstances. The various suggested approaches to a division ('a one-third rule' or a 'his, hers, theirs.' approach) are rendered useless where one does not have any clear idea of what is available for distribution."…,.

In casu, the appellant confessed that he used to conceal information about properties he acquired during the subsistence of the marriage from the respondent. He lied to the respondent that they were renting the house in Marondera which he had bought. Apart from the Marondera house, the appellant also owned another house in Highfield which he disposed of when the respondent was not aware of its existence. There is therefore a possibility that the appellant may have other properties the respondent did not claim due to ignorance of their existence as information on such properties was being deliberately concealed from her.

The appellant's contention is that he acquired these properties on his own and the respondent was not entitled to them and/or any knowledge about them.

This is, however, not correct in view of the importance of indirect contributions in marriage as reiterated in Usayi v Usayi 03-SC-011-2003 (1) ZLR 684 (S), SC11-03.

The appellant's inclination towards hiding information about properties was a bid to frustrate a proper distribution of the same, which conduct the Matrimonial Causes Act requires to be taken into consideration.

Such conduct must be held against the perpetrator in the distribution of property.

I am of the view that the court a quo correctly deliberated on such conduct in this context which, amongst other factors, consequently justified its decision of a 50% share of the property to the respondent.

In Shenje v Shenje 01-HH-145-2001 (1) ZLR 160 (H), HH145-01…, the court had this to say in making a determination on the distribution of property:-

“In this case, I find merit and justice to be heavily weighed on the defendant's side. Although there is no clear indication that the plaintiff, at this minute, has the means to afford it, I propose to order in her favour a substantial capital settlement and maintenance for a limited period until that settlement is paid in full. The justification for doing so is that the plaintiff has, until relatively recently, had access to funds sufficient to meet the amount. It is, moreover, my conviction that he retains these funds hidden elsewhere than in the amounts disclosed."…,.

For these reasons, I do not agree with the appellant's counsel's construction of section 7(4) of the Matrimonial Causes Act in relation to conduct. It does not relate to conduct which led to the breakdown of the marriage as I have alluded to above.

I respectfully agree with the court a quo's construction and approach of the same in this regard.

Courts have, over the years, awarded considerable shares in immovable property to spouses who did not make a direct contribution to their acquisition. However, it must be noted that each case is dealt with according to its circumstances and merit.

In Mufunani v Mufunani 16-HH-032, HH32-16, a case which is almost on all fours with this case, a wife who was not formally employed but contributed indirectly to the needs of the family and had been a devoted housewife for over forty years was awarded a 50% share of the immovable property. The court took into consideration all the factors under section 7 of the Matrimonial Causes Act and also highlighted that: “the fact that the plaintiff may not have made a direct financial contribution is outweighed by the indirect contribution she made over the four decades of marriage.”

In Mutizhe v Mutizhe 18-HH-483, HH483-18 a wife who had no formal training for any job and had been a housewife for over 20 years was awarded a 35% share of the immovable property to which she had made no direct financial contribution.

In Sithole v Sithole & Anor 94-HB-014, HB14-94 the court held that even if a wife made only indirect contributions she cannot leave empty-handed merely because she did not contribute financially towards the acquisition and development of the matrimonial home. The indirect contributions in the long marriage of 10 years could not be overlooked. The wife, in that case, was awarded a 40% share of the immovable property.

In Usayi v Usayi 03-SC-011-2003 (1) ZLR 684 (S), SC11-03, this Court upheld a High Court decision to award a 50% share to a non-working 60 year old housewife of 35 years giving weight to her indirect contribution to the family for over three (3) decades.

In Muteke v Muteke 94-SC-088, SC88-94 the wife made no direct financial contribution except as a housewife but the court awarded her a house in Kambuzuma, a house in Chitungwiza, and $23,000 being her share of the sale of a house in Southerton. Her contribution had been through looking after the household, her husband, and a child. The marriage had lasted for 32 years. The court, in that case, mainly considered her indirect contributions, needs, and expectations - which is what the court a quo did in casu.

After a careful analysis of the cases referred to above, I am of the view that the longer the duration of the marriage, the lesser the weight to be attached to direct contributions as the value of indirect contribution increases as the duration of the marriage increases.

However, it must be borne in mind that each case must be dealt with according to its own circumstances and merit.

I am of the view that the circumstances of this case justify the awarding of a 50% share of the immovable property to the respondent.

There is no reason why the award of costs in this case should not follow the result of the appeal.

The order of the court a quo should be amended by prefixing it with an order granting a decree of divorce.

After considering the evidence led before the court a quo and the law applicable in the distribution of the assets of the parties on divorce, I find that the appellant's appeal has no merit.

In the result, it is ordered as follows:-

1. The order granted by the court a quo is amended by prefixing it with the following:

"A decree of divorce be and is hereby granted.”

2. The appeal is dismissed with costs.

The appellant in this matter was convicted of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] by the Provincial Magistrate sitting in Bulawayo.

He was sentenced to 48 months imprisonment with 12 months imprisonment suspended on the usual conditions.

Dissatisfied with both conviction and sentence he then approached this court.

At the hearing of the appeal, we dismissed the appeal against conviction and allowed the appeal against sentence with reasons to follow. Here are they:

In the Notice of Appeal, which I will not reproduce herein, the appellant is not satisfied with the manner with which the court a quo treated the evidence of the witnesses.

The appellant avers that the evidence of Absolom Hlupho was inadmissible as against the appellant as it was accomplice evidence. That the court a quo erred in finding that the warrant of liberation was fake and that the court a quo erred in finding that the cellphone call history was admissible. Also, that the learned magistrate erred in accepting Lilian Tapera's evidence and in finding that it had been adequately corroborated.

On the sentence, the appellant is of the view that the sentence imposed by the learned magistrate is unduly harsh and excessive.

The facts of this matter, in a nutshell, are that the appellant, a legal practitioner by profession, with the assistance of Absolom Hlupho, a prison officer, sought to cause the release of a convicted and serving prisoner through a misrepresentation that the prisoner had been granted bail pending an appeal and a warrant had thus been issued for his liberation.

The State case hinged on the evidence of Lilian Tapera, the sister to the serving prisoner whose release it is alleged the appellant sought to clandestinely secure.

She gave the court a detailed account of what transpired and how she paid the appellant $1,500 for his services.

The court rightfully found her as a credible witness, in our view, for there are no pointers to lack of credibility in her evidence.

As for Absolom Hlupo's evidence, this court does not find any issues with it.

Absolom Hlupo expressly told the court that he realized that lies would not take him anywhere and he decided, midway through his cross-examination, to tell the court the truth. He confirmed that the warrant of liberation came from the appellant.

The findings of the trial court, with regard to these witnesses' testimony, cannot be faulted.

On the authenticity or otherwise of the warrant of liberation, the evidence of Lungile Moyo and that of Freedom Potera, the clerk of the Regional Court, amply covered that point to the satisfaction of the court.

On the constitutionality or otherwise of the cellphone history which the appellant decided not to respond to on the merits, we find that there is absolutely no basis for the challenge being proffered, for, the right to privacy enshrined in the Constitution, is not absolute.

As correctly held in the case of Tendai Biti v Chief Superintendent Majuta HH156-11 BHUNU J held that where the police have reasonable cause to investigate crime the subject's rights to privacy must, of necessity, give way to common good and public interest to fight crime.

There is therefore absolutely nothing wrong with the production and the acceptance of the cell phone history by the trial court.

Lilian Tapera could not be held to be an accomplice when in fact she told the court that she genuinely believed in the whole process that the appellant engaged in and she actually thought there was nothing amiss. On page 47 of the record she actually told the court that, as she waited for the processing of her brother's release papers at Khami, the appellant phoned her and advised her to quickly leave the place (Khami prison) - that she should run away.

She said she decided to wait there.

Surely, if she had been part of the clandestine plan to release her brother she could have fled at that juncture. Her decision to wait shows that she did not appreciate that there was a serious problem with the whole plan.

In the case of Chimbwanda v Chimbwanda SC28-02 it was held, by ZIYAMBI JA, as follows:

“It is trite law that an Appellate Court will not interfere with the findings of fact made by a trial court and which are based on the credibility of witnesses. The reason for this is that the trial court is in a better position to assess the witnesses from its vantage point of having seen and heard them….,.

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

We have found no misdirection in the manner with which the trial court dealt with the evidence before it.

We have already canvassed the evidential issues herein.

We found that in fact the evidence against the appellant was overwhelming and that the court a quo rightly convicted him....,.

(a) The conviction is confirmed.

The question that arises for determination is whether such a judgment can be said to be valid and binding as against Jayesh Shah and Shaleetha Mahabeer.

In Hundah v Murauro 1993 (2) ZLR 401, the point was made, that, for a party who has a real interest in the matter in dispute before a court to be bound by a judgment of the court, such party should be cited. At p404E-G the court stated:

“We have drawn attention to this point previously on a number of occasions: see e.g. Munemo v Muswera 1987 (1) ZLR 20 (S) at 21G-H; often in conjunction with the other important point that the local authority should be cited in proceedings of this kind since it has real interest in the property in dispute: see e.g. Ncube v Mkandla SC123-89. If it indicates, in writing, beforehand, that, it is happy to accept whatever the court decides, well and good. But, otherwise, it should be cited, if only to ensure that it is bound by whatever judgment is given. Such an order does not bind it if it was not a party.”

What remains in issue, however, is the decision made by the court, pursuant to the exercise of its jurisdiction, to set aside the appointment of the appellant as the substantive Chief Marange.

The court a quo proceeded on the basis that the commissions of inquiry established by the Minister were not provided for in the current Constitution or in the Traditional Leaders Act. One such Commission identified the appellant as a suitable candidate for the position of Chief Marange. This, according to the learned judge, offended section 283 of the Constitution. Both the Commission and the Minister acted ultra vires the Constitution. Their actions were nullities and therefore could not be allowed to stand.

The Minister was called upon to revisit the matter “properly guided by section 283 of the Constitution of Zimbabwe as read with section 42(3)(b) of the Traditional Leaders Act.”

In the event, the court was satisfied that the applicant (the first respondent herein) had proved his case on a balance of probabilities. It accordingly ordered that the appointment of the first respondent (the appellant herein), as the substantive Chief Marange, be set aside.

Both counsel are in agreement that the court a quo relied upon and applied the wrong provisions in setting aside the decision of the Minister and the appointment of the appellant.

As I have concluded earlier, section 283 of the Constitution is not directly applicable to the resolution of the dispute in casu.

As for section 42(3)(b) of the Traditional Leaders Act, which was referred to by the court a quo, there is no such provision in the Act. This provision simply does not exist.

It is clear, therefore, that the learned judge a quo mis-apprehended and mis-applied the law governing the appointment of chiefs. He consequently set aside the decision of the Minister and the ensuing appointment of the appellant, as Chief Marange, on the wrong legal basis.

This is an appeal against the judgment of the High Court dismissing an application for the rescission of an earlier judgment granted in favour of the fourth respondent in Case No. HC1589/13. The application was dismissed with costs to be borne by the estate of the late Brian James Rhodes, of which estate the applicant (the appellant herein) is the executor dative.

Prior to his demise, on 29 July 2006, the deceased, B.J. Rhodes, had established two companies, namely, Beverly East Properties (Pvt) Ltd and Karoi Properties (Pvt) Ltd. The appellant, as I have said, is the executor dative of the deceased estate. He was not a party to the proceedings in Case No. HC1589/13 wherein the court granted a declaratory order in favour of the fourth respondent.

In his application before the court a quo, the appellant sought the rescission of that order on the ground that it had been obtained through fraud, and, alternatively, that it had been granted in error.

In Case No. HC1589/13, the court dismissed the claims over the two companies by the first respondent (Gideon Hwemende), who had purported to appoint the fifth to the tenth respondents (Valentine Mushore, Alfred Chademana, Joel Tenderere, Oliver Chibage, Farai Mutizwa and Calisto Vengesai) as directors in the companies in order to protect his own interests.

The court ruled that the lawful shareholder of the two companies was the Phoenix Trust, the assets of which included corporate stock in the two companies.

It found that the fourth respondent (Terrence Cobden Rhodes) was a trustee of the Trust and a Director in both companies owned by the Trust. The court also found that the fourth respondent (Terrence Cobden Rhodes), as trustee, had legal title to the trust property and that any benefits accruing to the companies, including accumulated rentals in the sum of US$70,000, in turn, accrued to the Trust as the shareholder of the companies.

In granting its order, the court imposed the condition that the fourth respondent (Terrence Rhodes) should furnish evidence that the Trust legally owned the companies before the Registrar could release to the Trust the sum of US$70,000 that was deposited with him.

In the application a quo, the appellant adduced the supporting affidavit of the deceased's widow (Elizabeth Anne Rhodes). The admission of this affidavit was challenged by the fourth respondent (Terrence Rhodes) on the ground that it did not comply with the provisions of the High Court (Authentication of Documents) Rules, 1971. The court a quo agreed and held that the affidavit was not admissible as it had not been properly authenticated.

More importantly, the fourth respondent (Terrence Rhodes) also took the point in limine that the applicant did not have locus standi to bring the application because he was only the curator bonis of the deceased estate.

The appellant had initially deposed, in his founding affidavit, that he was acting in his capacity as the executor dative of the estate. However, he had attached the letters of his confirmation as curator bonis rather than his Letters of Administration in respect of the estate. Subsequently, through his answering affidavit, he then attached the Letters of Administration appointing him as the executor dative of the estate. The letters of confirmation were issued on 1 November 2013, while the Letters of Administration were issued on 26 February 2014.

As regards the appellant's locus standi, the court a quo found that, as at 20 November 2013, the appellant could not have engaged in Case No. HC1589/13 in terms of section 22(2) of the Administration of Estates Act [Chapter 6:01]. He would therefore not have had locus standi to seek the rescission of the order granted in that matter. That rendered his actions in casu nugatory as the absence of a cause of action could not be cured through the substitution of his capacity in his answering affidavit. He could not properly cure the defect in the founding affidavit pertaining to locus standi through the production of an authorising document in his answering affidavit.

The court accordingly held that his case must fail due to lack of legal standing.

Having found that the application should be dismissed for want of locus standi, the court nevertheless proceeded to address the merits of the matter.

As regards the alleged fraud, the court observed that this was not a ground for setting aside the earlier judgment under Rule 449(1)(a) of the High Court Rules, 1971. The court found that there was clearly no error committed, as envisaged in the Rules, as the earlier judgment had directed that the fourth respondent (Terence Rhodes) was to furnish proof that the deceased had transferred the shares in the two companies to the Trust.

With reference to the allegation that the fourth respondent (Terrence Rhodes) had fraudulently claimed that the deceased had transferred the shares, the court found that the appellant did not produce any authentic documents to counter the alleged fraudulent documents. No documentary evidence was adduced to prove what the appellant alleged to be the correct shareholding in the two companies. The appellant simply attacked the authenticity of the official documents produced by the fourth respondent (Terrence Rhodes), which showed that the Trust owned the entire shareholding in the companies, without any proof to controvert the fourth respondent's evidence.

Consequently, the earlier judgment must stand because it had not been shown that the court had relied on fraudulent evidence in assessing the facts before it.

In the event, the court a quo held that the relief of rescission sought by the appellant must be refused and accordingly dismissed the application on the merits.

There are three grounds of appeal in this matter:

(i)...,. 

(ii)...,.

(iii) The third ground is that the court erred in holding that no basis had been established for seeking rescission on the ground of fraud, despite the absence of proof of the donation or transfer of the shares in the company to the Trust.

The relief sought by the appellant is that the appeal be allowed and that the order of the court a quo be set aside and substituted with an order dismissing the point in limine relating to authority and granting the application for rescission with costs, or, alternatively, striking the matter off the roll for want of proof of authority....,.

With reference to the alternative argument premised on supposed error in the earlier proceedings, counsel for the fourth respondent quite correctly submitted that the third ground of appeal only related to the alleged fraud.

There was no appeal founded on error within the scope of Rule 449(1) of the High Court Rules.

In his response, counsel for the appellant agreed that the first ground of appeal was irrelevant. He also conceded that the third ground of appeal was confined to the allegations of fraud and that sub-ground (c) of the third ground was meaningless and was therefore to be abandoned.

In light of these concessions by both counsel on what are essentially technical issues, which concessions were properly made so as to obviate the trappings of formalism, the Court remains seized with the critical and substantive nub of this appeal: and that is whether or not the appellant had established an adequate basis for seeking the rescission of the earlier judgment on the ground that it had been obtained by fraud.

It is trite that he who alleges any positive fact carries the burden of proving that fact. Put differently, a party who makes a positive allegation bears the onus of proving such allegation: see Astra Industries Ltd v Chamburuka SC258/11, SC27-12; ZUPCO Ltd v Pakhorse Services (Pvt) Ltd SC13-17.

In the particular context of an application for the rescission of a judgment at common law, it is settled that the party seeking rescission must demonstrate sufficient cause for the relief sought to be granted. A judgment can only be rescinded under the common law on one of the grounds upon which restitutio in integrum would be granted, such as fraud or some other just cause, including justus error: see Mudzingwa v Mudzingwa 1991 (4) SA 17 (ZS).

It is also well established that an Appellate Court will not readily interfere with findings of fact made by a lower court: see Beckford v Beckford 2009 (1) ZLR 271 (S).

The Appellate Court will only interfere with such findings in very limited circumstances, for instance, where the lower court has misdirected itself by failing to appreciate the facts at all or by making findings of fact that are contrary to the evidence presented: see Reserve Bank of Zimbabwe v Corrine Granger SC34-01.

Counsel for the appellant refers to the condition imposed by the High Court in the earlier judgment requiring the fourth respondent (Terrence Rhodes) to lodge the Trust Deed in question. What this Deed shows is that the properties concerned were never transferred to the Trust by the deceased. This, so he submits, is where there was fraudulent misrepresentation by the fourth respondent.

Counsel for the fourth respondent (Terrence Rhodes) refers to the relevant share certificates and register of share allotments and transfers. He argues that the first two shares were probably issued in anticipation of the Trust being created two months later. The remaining bulk of the shares were issued to the Trust a year later. This is the reason why the list of Trust assets only includes the assets of the Trust when it was created and does not cover the assets acquired by the Trust thereafter.

Counsel for the fourth respondent further submits that the appellant never produced any evidence, including the forensic audit that he allegedly carried out, to prove that the Trust was a sham. The onus was on the appellant to make out his case and he did not produce any document or affidavit to prove that there was any fraud.

Counsel for the appellant retorts that not all the relevant share certificates have been produced by the fourth respondent. The duty of the appellant, as executor dative of the estate, is to ensure that all the relevant documents and assets are accounted for. The facts placed before the court in the first case were not correct. There was clear misrepresentation and the court, in that case, would not have granted the order in favour of the fourth respondent had it been made aware of all the relevant facts.

It is pertinent, at this juncture, to capture the two critical components of the order granted by the court in the first case:

(i) Firstly, it was declared that the fourth respondent “as claimant in his capacity as Trustee of Phoenix Trust in whom [sic] the companies are held is the lawful shareholder of the two companies.”

(ii) Secondly, it was ordered that the fourth respondent “upon lodging with this court a valid Trust document effected by the deceased during his life time transferring the properties to the Trust” would become entitled to the sum of US$70,000 deposited with the Registrar.

The crucial instrument in casu is the Notarial Deed of Donation and Trust, executed by its signatories on 13 April 1988.

It was signed by the deceased, B. J. Rhodes, as the donor and as trustee and also as a beneficiary of the Trust. The deceased appointed himself and two others, namely, N. J. MacDonald and N.C. Ralston, as trustees. The beneficiaries, apart from the deceased himself, were his children and their lawful issue.

In the event of the deceased ceasing to be a trustee for any reason, T. C. Rhodes, the fourth respondent, was to succeed him as a trustee.

In terms of clause 4 of the Trust Deed, the settlement and donation took effect on the date of execution of the Deed.

By virtue of clauses 3 and 5, the Trust Fund was constituted by the assets set forth in the Schedule, as well as any further assets or shares or income accrued or received by the Fund from time to time, including any further assets donated by the deceased before his demise.

As at 13 April 1988, the Schedule of Assets listed two items, i.e. a loan account of $110,720=93 in Brian Rhodes (Pvt) Ltd and a loan account of $41,052=93 in Karoi Properties (Pvt) Ltd.

The company known as Beverly East Properties (Pvt) Ltd was not mentioned in the Schedule.

Turning to the relevant share certificates, the record shows two certificates executed on 1 February 1988:

The first certificate (No.3) states that Phoenix Trust is the registered proprietor of one fully paid share (No. 1).

The second certificate (No.4) states that B. J. Rhodes, as nominee for the Trust, is the registered proprietor of another fully paid share (No.2).

Both certificates relate to the shareholding in Beverly East Properties (Pvt) Ltd.

The third certificate (No.5), also relating to the shareholding in the same company, states that Phoenix Trust is the registered proprietor of 499,998 shares (Nos.3 to 500,000 inclusive).

It is common cause that the first two certificates were executed before the Trust was created, on 13 April 1988, while the third certificate was executed thereafter, on 20 July 1989.

A further relevant document is a special resolution of the company, passed on 14 April 1988 and confirmed on 21 April 1988, increasing the nominal share capital of the company from $32,000 to $500,000 by the addition of 468,000 shares, to rank pari passu with the existing shares.

The resolution was passed by B. J. Rhodes (the deceased) and N. J. MacDonald and signed by the former as Chairman of the company.

The Form CR14, signed by the Secretary of the company on 29 March 1988, shows that the abovenamed two individuals were Directors of the company, appointed to those positions on 1 February 1988.

The Form CR2, i.e. return of allotments, filed on 20 July 1989, shows that there were two (2) shares previously allotted and 499,998 shares freshly allotted to Phoenix Trust.

This is confirmed by the minutes of a Directors meeting, held on 20 July 1989 and attended by the same two directors, B. J. Rhodes and N. J. MacDonald, where it was resolved to allot 499,998 shares to Phoenix Trust.

The above status of directorships and total shareholding in the company is further confirmed by various company returns filed between 14 July 1989 and 17 April 1997.

Lastly, there is the company's register of allotments and transfers.

This shows that two individuals, N. C. Ralston and C. A. Mollatt, the original holders of the first two shares (Nos.1 and 2), held those shares by virtue of the founding share certificates (Nos.1 and 2) executed on 25 January 1988.

These two shares were then transferred to Phoenix Trust and B. J. Rhodes, as nominee for the Trust, under new share certificates (Nos. 3 and 4) executed on 1 February 1988.

The register also reflects the allotment of 499,998 shares (Nos.3 to 500,000 inclusive) to Phoenix Trust under the last share certificate (No.5) executed on 20 July 1989, resulting in the Trust holding the total of 500,000 shares in the company.

As is evident from the appellant's letters of confirmation and administration, B. J. Rhodes died on 29 July 2006. The foregoing analysis of the documents furnished by the fourth respondent (Terrence Rhodes) demonstrates that, during the deceased's lifetime, Phoenix Trust became the sole shareholder of all 500,000 shares in Beverly East Properties (Pvt) Ltd.

In this regard, the appellant's assertion that the relevant share certificates and company resolutions are fraudulent and/or fabricated is difficult to comprehend.

The special resolution of the company, confirmed on 21 April 1988, was signed by the deceased himself, while the share certificates executed on 1 February 1988 and 20 July 1989 were signed by N. J. MacDonald. The latter also signed the minutes of the Directors meeting held on 20 July 1989, whereat it was resolved to allot 499,998 shares to Phoenix Trust. It is not in dispute that he was a Director of the company at the relevant time as well as being a trustee of Phoenix Trust.

While it is clear that the Trust was, at the relevant time, the sole shareholder of Beverly East Properties (Pvt) Ltd, there is nothing in the documents filed of record to demonstrate the shareholding of the Trust in the second company, Karoi Properties (Pvt) Ltd.

This is obviously a critical issue in satisfying the condition imposed by the High Court in the earlier Case No. HC1589/13.

As I have already indicated, the order granted in that case requires the fourth respondent (Terrence Rhodes) to lodge with the court “a valid Trust document effected by the deceased during his lifetime transferring the properties to the Trust.”

What the court presumably intended was for the fourth respondent to furnish proof that the shareholding in both companies had been transferred to the Trust.

Although this is strictly not an issue for consideration in the present appeal, it may well arise for determination in any future litigation between the parties, insofar as concerns ownership of the properties held by the two companies and entitlement to the rentals accrued from those properties.

Be that as it may, what is clear for present purposes is that the appellant has failed to substantiate his allegation of fraudulent misrepresentation by the fourth respondent (Terrence Rhodes) as the basis for seeking the rescission of the earlier judgment on the ground of fraud.

In short, the appellant has made the allegation of fraud but failed to discharge the onus of proving that allegation.

Consequently, it cannot be said that the court a quo misdirected itself, whether grossly or otherwise, by failing to appreciate the facts at all or by making findings of fact contrary to the evidence presented, in dismissing the application for rescission on the ground of fraud.

It follows that the third ground of appeal lacks merit and must therefore be dismissed.

In the process of executing a judgment of the High Court against B.M. Graphics (the judgment debtor), the Sheriff placed under judicial attachment certain movable property found at Stand No. 499 Goodwin Road, Willowvale, Harare.

The appellant lay a claim to that property resulting in interpleader proceedings being instituted.

In a judgment delivered on 20 November 2019, the High Court dismissed the appellant's claim to the property in question and declared it executable. The appellant appealed against the whole judgment of the High Court to this Court. After hearing argument, we dismissed the appeal and stated that the reasons would follow. These are the reasons.

The facts of the matter are clearly set out in the judgment a quo. They are that a consent order was granted by the court a quo on 21 August 2017 in terms of which the judgment debtor was required to pay to the first respondent (the judgment creditor), the value of 2,000 square metres of Stand No. 449 Goodwin Road, Willowvale, Harare together with improvements thereon. On his part, the first respondent would vacate the Stand in question, which he was occupying, within a given period of time.

Following valuation of the property in terms of the order of the court, the judgment debtor failed to pay. The sheriff attached an assortment of property found at Stand No. 499 Goodwin Road, Willowvale, Harare which he believed belonged to the judgment debtor.

The property was claimed by the appellant as its own.

The High Court correctly found, that, in inter pleader proceedings, the onus was on the claimant to prove ownership of the property in dispute on a balance of probabilities.

The claimant does so by setting out facts which establish ownership of the property in question on a balance of probabilities.

The court a quo noted, that, the basis of the appellant's claim to the property was that it owned the Stand where the property was found by virtue of being the sole shareholder of a company known as Jon's Engineering (Private) Limited. It is the latter company which is said to be the registered owner of Stand No. 499.

The court a quo observed that the judgment debtor was initially the holder of two ordinary paid up shares in Jon's Engineering (Private) Limited. It then sold its shares to the appellant.

The argument before the court a quo was that given the fact that the property in dispute was attached in execution as an immovable property owned by a company wholly owned by the appellant, that property belonged to the appellant and the onus was on the first respondent, as judgment creditor, to prove that it belonged to the judgment debtor.

The appellant's claim was rejected by the court a quo which found discrepancies in the purported sale agreements involving the immovable property. The court a quo found, that, despite the two agreements allegedly signed by the appellant and the judgment debtor, initially on 30 October 2015, and a second one signed on 28 October 2016, the judgment debtor had consented to the court order being executed. It was the reasoning of the court a quo that the judgment debtor would not have consented to a court order on 21 August 2017, in terms of which an immovable property it had already sold was to be valued and its value paid to the judgment creditor.

The court a quo concluded from those facts, that, the agreement of sale was a most recent fabrication, an afterthought meant to stem the appellant's claim that it had purchased the entire shareholding in Jon's Engineering (Private) Limited. The claim by the appellant, that it bought the immovable property from the judgment debtor and took occupation as far back as 28 October 2016 was rejected because the evidence before the court showed that the judgment debtor had in fact been in occupation of same at the time of the consent order on 21 August 2017.

The court a quo further found that the appellant's claim could not succeed for yet another reason.

It is that the appellant is not the owner of the Stand at which the movable property was attached for sale in execution. The Stand is owned by Jon's Engineering (Private) Limited, a separate legal entity from the appellant.

There was no suggestion before the court a quo that Jon's Engineering (Private) Limited was a subsidiary of the appellant.

By virtue of the separate legal persona principle, that, once a company is incorporated, it exists independently and separately from its members, the appellant could not possibly claim ownership of property belonging to a separate registered company.

The court a quo found that the appellant had failed to discharge the onus resting on it to prove ownership of the movable property placed under attachment. It found that not a single piece of evidence was submitted by the appellant to show that it owned the property in question. That way, the appellant's claim was dismissed.

The appeal was motivated on three grounds speaking to the same issue. They are that:

1. The court a quo grossly misdirected itself when it found that the property attached by the Sheriff did not belong to the appellant despite the evidence presented.

2. The court a quo misdirected itself in finding that the agreement of sale between the judgment debtor and the appellant was not authentic.

3. The court a quo erred at law when it concluded, that, the appellant did not have possession of the attached goods at the time.

From these grounds of appeal, there can only be one issue for determination on appeal. It is:

Whether the court a quo erred in finding that the appellant had failed to prove ownership of the goods placed under attachment.

It is settled that a party claiming ownership of a property placed under judicial attachment in inter-pleader proceedings must produce clear and satisfactory evidence to prove such ownership. Such a party bears the onus to prove ownership on a balance of probabilities: see Sabarauta v Local Government Pension Fund & Anor SC77-17.

I should add, however, that, in situations where the goods are attached in the possession of the claimant, there is a presumption that they belong to the claimant. In those circumstances, the execution creditor has the onus to prove otherwise.

It is probably for that reason, that, in this case, having clearly failed to adduce direct evidence of ownership of the movable goods, the appellant deployed all its energies at trying to prove ownership of the venue of the attachment.

Unfortunately, this may not have been a useful investment of time and energy.

Apart from the fact that ownership of land does not equate to possession of the movable items on the land, the appellant did not even begin to prove ownership even of the land.

The concept of separate legal personality of a company is the cornerstone of our company law. It has its parentage in the case of Salomon v Salomon & Co Limited [1897] AC 22.

The concept of corporate personality is that a company, once it is registered, acquires a personality of its own quite distinct from its members or shareholders.

Courts of law will not lightly disregard a company's separate legal personality except in very limited circumstances where fraud, dishonesty, or other improper use of a company's personality are found to exist. Before a court of law can disregard the veil of incorporation or lift the veil, a case for doing so must be made.

Before the court a quo, the appellant did not submit any tangible evidence of ownership of the listed items placed under attachment. It was content to try and make a case merely out of a claim for ownership of the Stand where the property was found by the sheriff.

I mention, in passing, that, ownership of the land was not the issue before the court a quo. Ownership of the movable property placed under judicial attachment was.

I have said that by seeking to prove ownership of the land on which the movable property was attached the appellant hoped to stand on possession of the disputed property in order to shift the onus onto the first respondent.

If the appellant was in possession, then, the first respondent, as judgment creditor, would have to prove that, despite such possession, the property belonged to the judgment debtor and was therefore executable.

The court a quo made a factual finding that the appellant was not in possession of the property when it was placed under attachment.

In the court a quo's view, the agreement of sale between the appellant and the judgment debtor, upon which the appellant claimed ownership, was a clumsy fabrication.

As I have already pointed out, the court a quo took the view that there existed no explanation why the judgment debtor would have consented to a court order, on 21 August 2017, involving the Stand in question, if it had alienated it more than a year earlier.

In addition to that, the court a quo also made a factual finding, that, at the time of the grant of the consent order, the judgment debtor had been in possession of the Stand and not the appellant as it claimed.

It accordingly found, that, the appellant's testimony was untruthful.

It is trite that an Appellate Court may only interfere with the factual findings of a lower court on the ground of gross unreasonableness: see Chioza v Siziba SC16-11.

No gross unreasonableness in the findings of the court a quo has been alleged or established.

Quite to the contrary, there is an existing order of the High Court showing that, as at 21 August 2017, the judgment debtor was in occupation of the premises. In that regard, the court a quo was standing on firm ground when it concluded that the appellant's story, that it had moved into the premises in 2016, was unbelievable.

It cannot be faulted at all.

On appeal, it was argued, for the appellant, that, the finding by the court a quo, that the appellant did not own the attached goods was faulty because it owns the entire shareholding in Jon's Engineering (Private) Limited. The court a quo, so the argument goes, should have found that the appellant is the beneficial owner of the property owned by Jon's Engineering (Private) Limited.

That argument should not detain this Court.

To begin with, it is not clear why, if indeed the property belongs to Jon's Engineering (Private) Limited, the latter did not lay a claim to it.

In advancing the argument, counsel for the appellant relied on authorities in which remarks were made that courts have a general tendency to ignore the separate legal entities of various companies within a Group and regard them as one economic entity where the parent company owns all the shares of the subsidiaries: see DHN Food Distributors Limited v London Borough of Tower Hamlets [1976] 3 ALL ER 462 (CA)…,.

The court a quo's finding, that the appellant had not shown that Jon's Engineering (Private) Limited was its subsidiary, cannot be faulted.

In this case, the appellant is a distinct entity from Jon's Engineering (Private) Limited which owns the Stand on which the property was attached. The subsidiaries argument is not available to the appellant.

More importantly, the court a quo made a factual finding that the agreement of sale relating to the shares in Jon's Engineering (Private) Limited was a façade.

I have stated that there is no legal basis for interfering with that finding.

Either way, the appellant cannot ride on Jon's Engineering (Private) Limited in laying a claim to the property that was attached.

The appeal is without merit.

Regarding the issue of costs, there is no way the appellant can avoid meeting the costs having prosecuted an appeal devoid of merit. The costs should follow the cause.

In the result, it is ordered as follows:

The appeal be and is hereby dismissed with costs.

Counsel for the appellants pointed to this contradiction as proof of collusion, or, at the very least, that the information from the Ministry of Mines could not be relied upon.

Counsel for the second respondent strongly defended the judgement of the court a quo.

He submitted that sufficient proof of ownership of the property in dispute was produced by the second respondent in the form of the certificate of registration of the mining claims in the second respondent's name and the confirmation letter from the Mines Ministry.

Counsel for the second respondent insisted that the court a quo was correct in finding that the second respondent had managed to adduce prima facie evidence of ownership.

Counsel for the second respondent further submitted that the court a quo could not possibly pierce the corporate veil because the appellants never asked it to do so.

In addition, so it was argued, there exists no grounds for piercing the veil in the circumstances of this case.

In my view, that argument is misleading.

On that issue, the court a quo pronounced itself…, thus:

“Still, on lifting the corporate petticoat (sic) of Gurta and peering behind it, I see no other exceptional circumstance justifying the same. The judgment creditors told me, both in heads of argument and at the hearing, that, Maranatha Ferrochrome (Private) Limited, the judgment debtor, and the claimant are a single economic entity. I was therefore invited to go behind the claimant's skirt (sic), disregard the three companies' separate corporate personalities and order execution of the mining claim even though registered in the claimant's name to satisfy the judgment debt owed by Amble Mining (Private) Limited.

Mr Zimudzi referred me to Deputy Sheriff Harare v Trinpac Investments (Private) Limited and Anor HH121-11.

That case is distinguishable.

Here, there is no evidence at all as to who the shareholders of the claimant are. There is completely no evidence to prove that they are the same persons as the shareholders of the judgment debtor and its holding company, Maranatha Ferrochrome (Private) Limited. Neither is there any evidence that the directorship of the claimant is the same as that of the other two companies. The bare allegation that claimant is a 'baby' of the 'Ghezzi family' was not substantiated. I therefore refuse to interfere with claimant's corporate regalia.”

It is apparent from the foregoing passage in the judgment that indeed the court a quo was invited to lift the corporate veil. It considered the submissions made justifying such course of action and rejected them.

The issue before this Court now is the correctness of that finding.

Although the evidence of ownership of the mining claims was discredited by the appellants; in my view, the case turns on whether the second respondent, as the claimant, could be said to be a different entity from the judgment debtor sufficiently to dis-entitle the appellants from executing against the mining claims.

The position of the law regarding the separate legal persona principle is well established. It was succinctly articulated by PATEL J…, in Deputy Sheriff Harare v Trinpac Investments (Private) Limited and Anor 2011 (1) ZLR 548 (H)…, where the learned judge quoted with approval Cape Pacific Limited v Labner Controlling Investments (Private) Limited & Ors 1995 (4) SA 790 (A)…,:

“It is undoubtedly a salutary principle that our Courts should not lightly disregard a company's separate personality, but should strive to give effect to and uphold it. To do otherwise would negate or undermine the policy and principles that underpin the concept of separate corporate personality and the legal consequences that attach to it.

But, where fraud, dishonesty, or other improper conduct (and I confine myself to such situations) is found to be present, other considerations will come into play.

The need to preserve the separate corporate identity would, in such circumstances, have to be balanced against policy considerations which arise in favour of piercing the corporate veil…,; and, a court would then be entitled to look to substance rather than form in order to arrive at the true facts; and, if there has been a misuse of corporate personality, to disregard it and attribute liability where it should rightly lie. Each case would obviously have to be considered on its own merits.”

This court approved that judgment is Stylianou & Ors v Mubita & Ors SC07-17.

The courts have purposely refrained from attempting to define all the circumstances under which the corporate veil will be lifted. This has been done, commendably, to avoid unnecessarily fettering with what is clearly the exercise of a wide judicial discretion.

What comes out from the authorities is that the court will disregard a company's separate personality where an element of fraud or other improper conduct in either the establishment or use of a company or in the conduct of the company's affairs exists.

When refusing to lift the veil of incorporation, the court a quo was exercising judicial discretion.

An Appeal Court is generally loathe to interfere with the exercise of discretion. The basis for interference, on appeal, is however well settled in this jurisdiction.

An Appeal Court may interfere where it appears that some error has been made in the exercise of discretion. Where the lower court acts on 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; the Appeal Court will review the lower court's decision and substitute its own discretion: see Barros and Anor v Chimphonda 1999 (1) ZLR 58 (S)…,.

I am of the firm view that the court a quo completely disregarded important facts pointing to the inseparable nature of the second respondent and the judgment debtor. The court a quo completely ignored the evidence showing that even the alleged sale of the mining claims by the judgment debtor to the second respondent was a hoax.

The Board resolution, which stood as proof of the sale agreement, there being no agreement of sale at all, shows that a director of the seller also represented the purchaser. Andrew Lawson attended the meeting which resolved to sell the claims to the second respondent as a director of the judgment debtor. He was part of the decision-making process.

At the same time, he was the holder of a power of attorney issued to him by the second respondent. It empowered him to take delivery of the mining claims from the judgment debtor on behalf of the second respondent. He literally acted as both the seller and the purchaser.

If that does not point to a sham, nothing will.

That is not all.

The court a quo completely overlooked the lease agreements relied upon by the second respondent. I have already stated that those agreements were written on Maranatha Ferrochrome (Private) Limited letterhead. They show that Amble Mine (Private) Limited, the judgment debtor, was also listed as one of the lessors of the premises being leased out. More importantly, they show that rentals were being paid to Maranatha Ferrochrome (Private) Limited, which is literally the judgment debtor by virtue of its controlling authority over the judgment debtor.

These factors, together with the absence of any evidence pointing to the existence of a proper agreement of sale, and the payment of the purchase price, can only lead to one conclusion. It is that there was collusion between the judgment debtor and the second respondent.

Indeed, there is no distinction between the judgment debtor and the second respondent. They are one and the same thing. The purported transfer of the mining claims from the judgment debtor was an elaborate scheme designed to confound creditors.

This is a classic case for disregarding the separate corporate personality of the companies in order to assign liability where it belongs.

Corporate personality is being misused in order to dodge liability, and, for that reason, policy considerations require that it be disregarded.

The appeal has merit given that the court a quo clearly misdirected itself in material respects.

The appellants asked for costs to be awarded on the higher scale owing to the dishonest manner in which the second respondent conducted itself.

No good case for such a punitive measure has been made, but, there is no reason why costs should not follow the result in the usual manner.

In the result, it is ordered as follows:

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

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

“(a) The claimant's claim to all the property which was placed under attachment in execution of the judgment in case number HC5852/17 be and is hereby dismissed.

(b) A certain chrome mine, comprising of the mining claim, being a block of 25 mining claims known as BEE 47, registered as number G31 OBM be and is hereby declared executable.

(c) The claimant shall bear the costs.”

More importantly, the appellant did not discharge the onus of setting out exceptional circumstances that would trigger the exercise of discretion in favour of withholding a winding up.

As if that was not enough, even the further evidence adduced on appeal, almost a year after the court a quo determined the matter, does not show that the appellant is out of the woods.

There is no basis upon which this Court may interfere with the judgment of the court a quo. The appeal is demonstrably devoid of merit and ought to be dismissed.

On the issue of costs, they normally follow the result. It has not been suggested that the usual position should be departed from and I see no reason why that should be resorted to.

Accordingly, it be and is hereby ordered that the appeal is hereby dismissed with costs.

This is an appeal against the judgment of the High Court dismissing the appellant's application for variation of bail conditions.

The details of this case can be summarised as follows:

The appellant was, in 2018, injured during a bomb blast in Bulawayo. She sustained injuries on her arms. She sought medical treatment in South Africa. Until her arrest, on 4 December 2019, she was receiving treatment from a South African specialist doctor.

On her arrest, she was charged with:

1. Six (6) Counts of contravening section 5(1)(a) of the Exchange Control Act [Chapter 22.05] 'exporting foreign currency.'

2. Six (6) Counts of contravening section 8(2) of the Money Laundering and Proceeds of Crime Act [Chapter 9.24] 'concealing, disguising the true nature, source, location, disposition, movement or ownership of or right's with respect to property, knowing or suspecting that such property is proceeds of crime.'

3. One (1) Count of contravening section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9.23] (fraud).

She was subsequently charged with the attempted murder of her husband and assault for assaulting their maid.

According to documents attached to Form 242s in the applicant's application for variation, the appellant's charges of 6 (six) counts of contravening section 5(1)(a) of the Exchange Control Act are based on the following facts:

Count One: That she sent her driver Carrington Kazingizi and Terrence Mutandwa to China with US$114,000 without any declaration being made to the authorities.

Count Two: That she instructed Memory Chakuinga to issue a proforma invoice for the supply of event tents and chairs which were sent to CBZ Bank and the appellant. The appellant then applied to CBZ Bank for the transfer of US$201,846-=81 by telegraphic transfer into Falcon Projects Suppliers (Private) Limited's South African FNB bank account no 62576755105.

Thereafter, the appellant instructed Memory Chakuinga to divert the money from the purchase of event tents and chairs to Range Rover Centre Menyln towards the purchase of her personal vehicle, a Range Rover Autobiography, which she registered in South Africa, in her name, bearing registration number HW40JNGP.

Count Three: That she instructed Memory Chakuinga to raise a proforma invoice for the supply of household electric meters which she sent to CBZ Bank and the appellant. The appellant used that proforma invoice to cause CBZ Bank to transfer US$307,545=05 into Falcon Projects Suppliers (Private) Limited's South African FNB Bank account number 62576755105.

Thereafter, the appellant instructed Memory Chakuinga to divert the funds towards purchasing House Number 1309 Kingstone Heath Close, Waterkloof Golf Estate, Pretoria, South Africa. The house was registered in the name of LaChelle Travel and Tours (Pty) Ltd South Africa of which the appellant is the sole shareholder.

Count Four: That the appellant requested Judith Gamuchirai Goredema to source for three million rands for the purchase of the appellant's two cars, a Range Rover and a Ranger.

Thereafter, the appellant gave Judith Gamuchirai Goredema US$230,769=23. The Range Rover was registered in South Africa in the appellant's names bearing registration number HX61PSGP. The registration details for the Ranger had not been established at the time the charges were preferred.

Count Five: That the appellant externalised US$36,923=08 for the purchase of furniture for her South African House Number 1309 Kingstone Heath Close, Waterkloof Golf Estate, Pretoria, South Africa.

Count Six: That the appellant instructed Memory Chakuinga to prepare an invoice for the supply of prepaid meters. Thereafter, the appellant used it to cause CBZ Bank to transfer US$142,859=30 into Bonnette Electrical (Pty) Ltd's South African Standard Bank account number 371164540.

Instead of the money being used to purchase prepaid meters, the appellant instructed Memory Chakuinga to divert it towards the purchase of her second house being, Number 149 Valderana Close, Pretoria, South Africa.

The allegations involve the unlawful externalisation of US$1,033,943=10.

The other 6 (six) counts are for money laundering.

The charge of fraud is for misrepresenting to the Judge President and the Acting Chief Magistrate that her husband had consented to the solemnisation of their marriage when he had not, resulting in marriage arrangements and documents being prepared and the Acting Chief Magistrate going to No. 614 Nick Price Drive, Borrowdale Brooke to solemnise the marriage which did not take place.

The attempted murder charge is based on what she is alleged to have done in South Africa when her husband, who was critically ill, had been airlifted to South Africa for treatment.

It is alleged, that, she, instead of taking him to hospital, kept him in a hotel room for more than 24 hours until her husband's security personnel intervened and took him to hospital. Thereafter, the appellant visited her husband who was in a private ward and on life saving Intra Venous Giving Set as well as Central Venous Catheter in order to sustain his life. She requested for privacy with her husband. Her husband's security personnel left the ward after which the appellant removed the life-saving equipment from the complainant who started bleeding profusely. She is alleged to have pushed him off the bed and left the ward. Thereafter, her husband's security personnel, on seeing what had been done to the complainant raised alarm and hospital staff came and reconnected the life saving equipment.

The assault charge is based on allegations that she assaulted their maid who she had met at their children's school.

Her bail applications in the Magistrate's Court were dismissed. She appealed to the High Court which granted her bail for the initial charges, on the following conditions:

1. That she deposits RTGS$50,000 with the Clerk of Court at Harare Magistrate's Court.

2. That she reside at 614 Nick Price Drive, Borrowdale Brooke, Harare.

3. That the Clerk of Court shall accept as surety the property known as Lot 1 of Lot 343A Highlands Estate measuring 3,642 square metres held by KM Auctions (Private) Limited, under Deed of Transfer 2244/2006 accompanied by the necessary resolution of the directors and shareholders of KM Auctions (Private) Limited, Keni Mubaiwa and Helga Junior Mubaiwa.

4. That applicant shall surrender her diplomatic passport to the Clerk of Court at Harare Magistrate's Court.

5. That the applicant shall report at Borrowdale Police Station once a fortnight on Friday between 6am and 6pm.

6. The applicant shall not interfere with State witnesses.

In respect of the attempted murder charge, the none-monetary conditions imposed in respect of the initial charges were ordered to cover this charge in addition to her being ordered to pay additional bail in the sum of RTGS$10,000. The condition that she resides at No.614 Nick Price Drive, Borrowdale Brooke was varied to No.64 Follyjon Crescent Glen Lorne, Harare.

In respect of the assault charge, the following bail conditions were ordered by the High Court:

1. That she deposits $1,500 with the Clerk of Court, Harare Magistrates Court.

2. She resides at Number 64 Follyjon Crescent, Glen Lorne, Harare until the matter is finalised.

3. She reports at Borrowdale Police Station every fortnight on Friday between 6am and 6pm.

4. She does not interfere with State witnesses, including Delight Munyoro and Batsirai Furukiya. She does not attend at Hellenic Primary School except in connection with consultations with school authorities.

Thereafter, the appellant's initial bail conditions were altered to include the surrendering of her ordinary passport number CN701555 which had not been previously disclosed when bail was granted by the High Court, to the Clerk of Court at Harare Magistrates Court.

Subsequently, the appellant applied to the court a quo for the variation of her bail conditions.

She sought the release to her of her ordinary passport so that she could travel to South Africa for medical treatment by Dr Van Hedeen, a specialist on lymphoedema. She also sought the temporal suspension of the condition that she reports to Borrowdale police every fortnight on Fridays. This was to enable her to travel to South Africa where she was to receive treatment for a period which would result in her not being able to meet the reporting condition.

In her application for variation, the appellant concentrated on the condition of her health. She did not explain how the interests of justice should be balanced with her need for medical treatment if her application was to be granted.

She merely said she would not abscond as she could not risk the forfeiture of her parents' property which was offered as surety when she was granted bail by the High Court.

On the other hand, the first respondent opposed the application alleging that the appellant has strong ties with South Africa and that most of the charges preferred against her involve the externalization of foreign currency to South Africa.

The attempted murder is alleged to have occurred in South Africa.

The first respondent also opposed the application for variation on the basis that the evidence led by the appellant left grey areas on the issue of whether or not there are specialists in Zimbabwe who can treat the appellant's condition.

The court a quo accepted that the appellant needed medical treatment by specialists. It accepted that prior to her arrest she was being attended to by Dr J Van Hedeen, a South African specialist. The court a quo however did not accept the evidence of Dr J Van Hedeen who authoritatively spoke about the appellant's current condition without disclosing how he got that information as the appellant has not travelled out of Zimbabwe since her arrest on 4 December 2019. It also did not accept the evidence of specialist neurologist, Mr Makarawo, on his statement that there are no specialists on lymphoedema in Zimbabwe.

It held that the appellant's application was based on inadequate evidence.

The court a quo gave its reasons for dismissing the appellant's application on pp33 to 34 of the record as follows;

“What I have before me by way of applicant's medical condition is one-sided. It is true that first respondent concedes that she is unwell. It is true also that she needs treatment. But that cannot be the end of the matter.

Indeed, papers from her own doctors contain some grey areas. Mr Makarawo first attended to her on 6 November 2020. He diagnosed her with lymphoedema and recommended that she be treated in South Africa because he believes that there are specialists there. I have already rejected his assertion that there are no lymphoedema specialists in Zimbabwe. I have explained why I have done so.

Dr J Van Heeden may have been treating applicant before the later's arrest on 4 December 2019. But, no evidence was presented before me to prove that he or she has attended to her since then. Applicant concedes that she has not travelled out of the country since her arrest. But, in October and November 2020, Dr J Van Heeden is giving a fairly detailed narration of applicant's medical condition and the specialist care required.

Applicant says she sought medical treatment in Zimbabwe post 4 December 2019. She says those efforts have not alleviated her condition. Instead, her health has deteriorated. She has produced neither medical reports nor other medical records to substantiate her assertion that she has failed to obtain the care that she needs in this country. I only have Mr Makarawo's letter, written on 6 November 2020. So there is that gap in the evidence.

Applicant has placed inadequate information before the court to warrant alteration of her bail conditions.

In the result, the application is dismissed.”

It is for these reasons that the court a quo dismissed the appellant's application without considering the issue of whether or not it was in the interest of justice to vary the appellant's bail conditions, and, if so, on what conditions.

Aggrieved by the court a quo's decision, the appellant appealed to this Court on grounds of appeal which raise the following issues:

1. Whether the court a quo misdirected its self when it held that the applicant's evidence left gaps which justified the dismissal of her application for variation.

2. Whether, on the evidence on record, it was established that the alteration of bail conditions sought by the appellant is in the interest of justice.

In view of the lockdown due to Covid-19, I did not call the parties to appear before me to make oral submissions. I however invited their counsels to file Heads of Arguments as provided by Part III paragraph (4) of the Chief Justice's Practice Direction No.2 of 2021.

Counsel for the appellant submitted that the court a quo erred when it dismissed the appellant's application on the basis that the applicant had given the court inadequate information on whether or not there are lymphoedema specialists in Zimbabwe who could treat her locally.

She submitted that the court a quo erred when it relied on the armchair evidence of Dr Magure while disregarding that of neurologist, Mr Makarawo, who had examined the appellant and formed the opinion that her condition required the attention of specialists on lymphoedema in South Africa as there are no specialists on lymphoedema in Zimbabwe.

Counsel for the appellant further submitted that the court a quo also erred by dismissing the application without deciding the issue of whether or not it was in the interest of justice to vary the appellant's bail conditions.

She also argued that the first respondent had alleged that the appellant will abscond if variation is granted as she has roots in South Africa without leading evidence on that aspect.

She, in conclusion, urged this Court to allow the appeal and grant the appellant's application for variation.

Counsel for the first respondent, in response, submitted, that, the court a quo had correctly held that the evidence led by the appellant left the court with inadequate information on whether or not her condition could not be treated locally. She submitted that the evidence led from neurologist, Mr Makarawo, and Dr J Van Heeden, had gaps which left the court with inadequate information.

On the issue of whether or not the State had led evidence on the likelihood of the appellant absconding because she has ties with South Africa, she submitted that it is not a rule of thumb that evidence has to be led in bail applications in rebuttal of what is placed in issue. The written documents and affidavits sufficed.

She further argued that she had, through her written response and in oral argument, urged the court a quo to strike a delicate balance between the two conflicting interests.

She further submitted that the court a quo considered the totality of the evidence and properly dismissed the application....,.

In her heads of argument, the appellant's counsel submitted that the court a quo misdirected itself when it disbelieved Mr Makarawo's evidence that there are no specialists on lymphoedema in Zimbabwe.

A reading of the record establishes that the court a quo did not disbelieve Mr Makarawo's evidence on the condition of the appellant and her need for a specialist to treat her condition.

It is a well-known fact that doctors refer their clients to specialists if they cannot treat them themselves. It is a notarious fact courts can take judicial notice of.

The court a quo could therefore only disbelieve Mr Makarawo's evidence on the basis of evidence to the contrary being led that there are indeed specialists on lymphoedema in Zimbabwe.

The court a quo said it relied on the evidence of Dr Tsitsi Mildred Magure.

A reading of her evidence establishes that she did not say there are specialists on lymphoedema in Zimbabwe. She, in her statement, said:

“I cannot therefore commit myself to whether we have expertise locally to manage the condition or not without knowing the underlying cause of the lymphoedema. Determination of which expertise is best placed to manage the case depends on the cause and grade of the lymphoedema. Assessment by a multi-disciplinary team might conclude which expert to lead the management.”…,.

The questions which the Prosecutor General's office had asked were not answered directly.

The Prosecutor General's office had asked the Ministry of Health, which forwarded the question to Dr Magure:

1. Whether medication and the necessary facilities for its cure are readily available in Zimbabwe; and

2. Whether there are any lymphoedema specialists in Zimbabwe.

Dr Magure's response did not address the question whether medication, and the necessary facilities for its cure, are readily available in Zimbabwe. She also refused to commit herself as to whether or not there are specialists on lymphoedema in Zimbabwe.

Her suggestion, that, a “multi-disciplinary team might conclude which expert to lead the management” suggests that an experiment has to be undertaken to establish which expert can lead the management.

This does not prove that there is readily available medication and the necessary facilities for the cure of lymphoedema in Zimbabwe.

The question whether there are specialists on lymphoedema in Zimbabwe could have been answered by simply saying yes and stating the names of the specialists.

I am therefore satisfied that the court a quo misdirected itself when it preferred the evidence of Dr Magure to that of specialist neurologist Mr Makarawo.

The finding by the court a quo, that Dr Van Hedeen's evidence left a grey area as to when he examined the appellant, cannot be faulted.

It is the duty of an applicant to lead evidence which can satisfy the court and enable it to make a finding in its favour.

The court a quo correctly observed that the appellant had not left Zimbabwe since her arrest on 4 December 2019. The court a quo therefore correctly questioned how Dr Van Hedeen, who lives in South Africa, could have examined the appellant to enable him to give a detail narration of the appellant's current condition.

The court a quo also correctly held that the appellant had not substantiated her claim that she had sought treatment locally in Zimbabwe without success. It observed that no supporting documents were placed before the court in support of that claim, from doctors who were attending to her.

A reading of the record proves that the appellant did not produce such documents.

I am however of the view that the omission was cured by Mr Makarawo's report to the effect that there was gross swelling of the appellant's arms and legs and the first respondent's concession that the appellant is unwell.

That, on its own, is proof that whatever treatment she might have received after her arrest had failed to cure the lymphoedema.

While the court a quo's observation is correct, it is an irrelevant and unnecessary quest for further evidence in circumstances where the first respondent had made a concession.

It is trite that what is not disputed need not be proved.

I therefore agree with counsel for the appellant, that, the appellant had, through the evidence of Mr Makarawo, proved that her condition required a specialist's attention in South Africa where she was receiving treatment before her arrest.

The appellants are nine cooperative societies which have been dishing out residential Stands at a piece of land known as Saturday Retreat Estate (the land) for quite some time. The land is held by the first respondent by Deed of Transfer number 4035/86 and was acquired by the Government of Zimbabwe for urban development by Acquisition of Land Order dated 20 March 2014.

Following the acquisition, the second respondent herein, who is the acquiring authority, filed an application against the first respondent in the Administrative Court (the court a quo) for confirmation of the compulsory acquisition order.

The matter was settled between the parties as a result of which a consent order was issued by the court a quo on 13 January 2015.

The consent order confirmed the compulsory acquisition and made provision for compensation due to the first respondent in terms of the agreement of the parties therein.

Almost five years after the consent order was granted in the matter involving the two respondents, the appellants approached the court a quo seeking a rescission of that judgment in terms of Rule 449 of the High Court of Zimbabwe Rules, 1971.

The basis of the rescission of judgment application was that the judgment was granted either in error or fraudulently in the absence of the appellants.

Before the court a quo, the first respondent raised a number of points in limine, namely;

(i) That the application was filed out of time without seeking condonation for the delay;

(ii) That the appellants lacked locus standi in judicio to seek a rescission of an agreement in which they were not a party; and

(iii) That there was no fraudulent misrepresentation in the grant of the consent order.

By judgment delivered on 6 March 2020, the court a quo upheld the preliminary points. This appeal is against that judgment of the court a quo.

This Court finds that the appeal is completely devoid of merit. It ought to be dismissed with costs.

By Government Gazette Extraordinary published on 7 September 2001, a preliminary notice in terms of section 5(1) of the Land Acquisition Act [Chapter 20:10], of the intent to acquire the land for resettlement purposes, was issued.

Subsequent to that, the acquisition for resettlement was not pursued, presumably upon a realisation that the land was earmarked for urban settlement.

Notwithstanding that, the appellants later occupied the land and started parcelling out residential Stands to their members. Their case is that they were offered the land for that purpose by the Government as it was by then State land given that a preliminary notice of intent to acquire the land had been published in 2001.

As I have said, it was not until 20 March 2014 that the Government commenced the process of the lawful compulsory acquisition of the land for urban development.

On that date, the second respondent issued an acquisition of land order. As required by law, the second respondent brought an application before the court a quo, under case number LA6/14, for confirmation of the compulsory acquisition and compensation to the first respondent.

The proceedings in the court a quo led to the signing of a settlement between the first and second respondents, on 18 December 2014, which was incorporated in the consent order sought to be rescinded. The Order reads:

“BY CONSENT IT IS ORDERED THAT:

1. The compulsory acquisition of the immovable property, being the remaining extent of Saturday Retreat Estate situated in the District of Salisbury measuring One Thousand and Fifty Seven comma three eight one (1,057,3810) hectares held under Deed of Transfer 4035/1986 (“the Property”) by the respondent be and is hereby confirmed.

2. The respondent is entitled to full compensation for the compulsory acquisition of its urban land.

3. The manner of compensation shall be as set out in the Memorandum of Agreement entered into between the Government of Zimbabwe and the respondent, dated 18 December 2014, a copy of which is annexed to this order as Annexure A.

3.1 The respondent be and is hereby allocated the unoccupied portion of the property measuring 401 hectares.

3.2 The respondent is hereby appointed the sole and exclusive developer of the property defined in the Deed of Settlement measuring 401 hectares.

3.3 The terms and conditions of such appointment shall be governed by the Agreement entered into between Government of Zimbabwe, represented by the Ministry of Local Government and Urban Development, and the respondent, a copy of which is annexed to this order as Annexure A.

4. The Government of Zimbabwe shall sign all such documents, pass all such instruments, give such instructions, and do all things necessary to give effect to this Court order.

5. There shall be no order as to costs.”

Following the consent order, the Deed of Transfer, in terms of which the first respondent held the land, was endorsed on 18 December 2015 to the effect that it now vests in the President.

It is common cause that the appellants became aware of the grant of the court order sought to be rescinded as far back as 2015. The application for rescission of judgement was only filed on 13 December 2019, about 4 years later, without seeking condonation.

Before the court a quo, the appellants' case was that the court a quo was misled into granting the consent order and therefore granted the order in error.

The error was in the sense that the first respondent was not the owner of the land in question, it having been acquired by the Government in 2001, and, following such acquisition, it was allocated to the appellants.

Further, the appellants have an interest in the land and had to be consulted before the consent order was granted.

In addition, the appellants contended that the consent order was fraudulently obtained in the sense that the first respondent fraudulently misrepresented to the second respondent, and the court, that, it had entered into agreements with them in terms of which the occupants agreed to pay $4 per square metre of land occupied by them. According to the appellants no such agreements were entered into.

The first respondent's case before the court a quo was that the application for rescission of judgment was filed out of time without seeking condonation at the time they had become aware of the consent order and had thus been complicit for years.

Further, the first respondent took the view that the appellants did not have locus standi to contest an agreement entered into in settlement of an application for confirmation of compulsory acquisition of urban land and compensation thereof.

As they lay a claim through the Government, the appellants could not possibly be cited in proceedings brought in the process of acquisition.

Regarding the agreement relating to payment for the land occupied by the appellants' members, the first respondent insisted that indeed it had agreements with individual occupiers. The appellants had been in illegal occupation of the land which was only lawfully acquired in 2014. The first respondent maintained that it had separate arrangements with some of the occupiers who are paying for the land directly to it.

The court a quo found that the delay of almost 5 years in bringing the application was too long, and, as such, condonation should have been sought giving an acceptable explanation for failure to act expeditiously.

It found, further, that there was need for relative certainty and finality in litigation.

On the aspect of the alleged fraudulent misrepresentation to obtain the consent order, the court a quo found that none had been proved in court.

Regarding the appellants' locus standi, it was the court a quo's finding that none of the appellants were privy to the agreement entered into between the first and second respondents. As such, they had no legal standing to seek a rescission of an agreement they were not party to.

As I have already stated, the court a quo upheld the points in limine.

The appellants were aggrieved by the judgment of the court a quo and noted an appeal to this Court on four grounds of appeal. They are:

1. The learned judge a quo erred at law in failure to dispose of the first point in limine by the first respondent.

2. The learned judge a quo erred at law in holding that the appellants lacked locus standi to apply for rescission of the judgment granted by the court on 13 January 2015.

3. The Honourable Court erred at law, in so far as it may be taken to have upheld the first point in limine, in holding that there was need for the appellants to apply for condonation of the late noting of the application for rescission and that the appellant failed to prove fraud.

4. The honourable lower court erred at law in allowing a judgment obtained through fraudulent means to stand.

The grounds of appeal are inelegantly crafted, they are repetitive and lack clarity and conciseness required by the Rules.

Be that as it may, only two issues for determination on appeal arise from them. They are:

1. Whether there was a need for the appellants to seek condonation before filing the rescission of judgment application in terms of Rule 449 of the High Court Rules.

2. Whether the appellants had locus standi.

I propose to deal with the issues in turn.

Counsel for the appellants submitted that the judgment of the court a quo is not clear whether condonation was necessary or not.

He submitted that Rule 449 does not fix any time-frame for bringing the application. To that extent, there was no need to seek condonation as it could not be said that the application was out of time.

Per contra, counsel for the first respondent submitted that the mere fact that Rule 449 contains no time frame for the filing of an application made under it is not a licence for bringing the application anytime without seeking condonation.

I agree.

There appears to exist a misconception among legal practitioners that Rule 449 provides a gas station for all those who have failed to act timeously to re-fuel and breathe life into a cause that has run its course.

It was never the intention of the framers of the Rules that there must exist a remedy for eternity.

The policy of the law is that there should be legal certainty and finality in the relationship of parties after the lapse of a certain period of time. It is for that reason that society is intolerant to stale claims, generally, as a result of which a party that fails to enforce a right timeously, or within a reasonable time, loses the right altogether: see Ndebele v Ncube 1992 (1) ZLR 288 (S)…,.; John Conrad Trust v The Federation of Kushanda Pre-Schools Trust & Ors HH503-15…,.

It ought to be appreciated that Rule 449 provides for discretionary relief to be granted or refused in the exercise of discretion by a judge or court.

The case of Grantully (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (S) is authority for the proposition that the court may, in the exercise of its discretion, dismiss an application made in terms of Rule 449 by reason of the inordinate delay in bringing it. At pp365H-366D this Court said:

“Even if the learned judge was wrong in deciding that the judgment granted by MTAMBANENGWE J was not erroneously sought or obtained, I consider that he was justified, in the exercise of his discretion, in dismissing the application by reason of the inordinate lapse of time. After all, Rule 449 is 'a procedural step designed to correct, expeditiously, an obviously wrong judgment or order': per ERASMUS J in Bakoven's case supra at 471E-F: see also Firestone South Africa (Pty) Ltd v Genticuro AG supra at 306H.

In First National Bank of Southern Africa Ltd v Van Rensburg NO & Ors; In re First National Bank of Southern Africa Ltd v Jurgens & Ors 1994 (1) SA 677 (T) ELOFF JP (with whom VAN DER WALT and PREISS JJ concurred) stressed the important need to proceed rapidly in applications of this nature. He said at 681E-G:

'It is in the interest of justice that there should be relative certainty and finality as soon as possible concerning the scope and effect of orders of court.

Persons affected by such orders should be entitled, within a reasonable time after the issue thereof, to know that the last word has been spoken on the subject.

The power created by Rule 42(1) is discretionary (see Tshivhase Royal Council & Anor v Tshivhase & Anor, Tshivhase & Anor v Tshivhase & Anor 1992 (4) SA 852(A) at 862 in fine – 863A) and it would be a proper exercise of that discretion to say that, even if the appellant proved that Rule 42(1) applied, it should not be heard to complain after the lapse of a reasonable time. A reasonable time in this case is substantially less than the three years referred to.'

I respectfully agree with these observations.”…,.

In my view, Rule 449 is not an open cheque to bring an application for rescission, even where it applies, at any time in the life of a person.

It is an expeditious remedy which should be deployed rapidly the moment the party seeking to rely on it becomes aware of the existence of the order.

Where, for some reason, the application is not so made, an acceptable explanation must be rendered for failure to act timeously. Such an explanation can only be made in an application for condonation.

The court a quo cannot be faulted for upholding that preliminary point.

The appellants sought rescission of judgment on the basis that it was induced by fraud and that they should have been consulted before any compromise was reached between the Government of Zimbabwe and the first respondent.

Their interest in the land, so they contended, lay in the sense that the land had long been acquired by the State, in 2001, and allocated to them about 2004.

According to the appellants, the first respondent had lost any rights in the land upon its acquisition in 2001, with the rights in the land having been transferred to them by the Government.

They asserted that the first respondent misled both the Government and the court a quo into believing that there existed agreements between it and the appellants when no such agreements were concluded.

A distinction must be drawn between locus standi to seek a rescission of judgment in terms of Rule 449 and the right to overturn a Deed of Settlement concluded between the Government of Zimbabwe and the first respondent.

In my view, the former is a procedural issue which can be determined on the preliminary arguments made before the court a quo. On the other hand, the latter is a substantive issue going to the merits of the case.

I entertain no doubt that any party affected by the judgment of the court, even when not cited in the proceedings, has locus standi to bring an application for the rescission of the judgement granted in its absence.

That is the furthest one can go.

As to whether, having made the application for rescission of judgment, the appellants made a case for such rescission, that is an issue going to the merits of the application and not locus standi to litigate.

In finding that the appellants had no locus standi to rescind the agreement the court a quo was deciding the merits of the case.

It was unnecessary to do so having upheld the other points taken in limine.

Our finding in that regard, however, does not assist the appellants in this appeal given that the upholding of the other points in limine by the court a quo cannot be faulted.

Regarding the question of the acquisition of the land, this court settled the issue of the legal effect of a section 5 Notice not pursued after being gazetted in the case of TBIC Investments (Pvt) Ltd & Anor v Mangenje & Ors SC13-18.

In that case, this Court stated that the effect of section 16B(2)(a) of the former Constitution, providing that all identified agricultural land vested in the State was to revive, resuscitate, and validate the acquisition of all identified agricultural land listed in the 7th Schedule of the then Constitution.

At p7 of the cyclostyled judgment BHUNU JA, writing for the court, stated:

“The language used in section 16(2) of the former Constitution is clear and unambiguous admitting no ambivalent interpretation. The only meaning to be ascribed to the section is that once land is gazetted and listed in Schedule 7 it automatically stands acquired by the State with full title by operation of law. The mere fact that the notice was at one time withdrawn or expired is irrelevant.”

That the land in question was acquired by the State in 2001 does not advance the appellants' appeal in any way. This is because the case was determined on preliminary points raised by the first respondent and not on the merits.

Even the contestation of the agreements allegedly concluded by the first respondent with individual occupiers did not yield any positive results for the appellants.

The first respondent presented evidence, in its opposing affidavit, which the court a quo accepted, to the effect that it had concluded agreements with the individual occupiers of the land for them to pay for it directly to the first respondent.

This may have annoyed the co-operative societies as they would have wanted the money paid to them.

Their annoyance, however, is of no moment in the administration of justice.

The finding made by the court a quo, that no fraud was proved, was a factual one based on its acceptance that indeed agreements had been made with the individual occupiers.

It is well settled that an Appellate Court will only interfere with the factual findings of the lower court where the decision is irrational to the extent that no sensible court could have made it.

That view was repeated in Shuro v Chiuraise SC20-19…, where the following passage appears:

“It is an established tenet of our law that an Appellate Court should be slow in interfering with the factual findings made by a lower court and that this should happen only where it is clear that the decision of the lower court is irrational, in the sense that no sensible court, seized with the same facts, could have reached such a conclusion…,.

In short, an Appellate Court can only interfere with the findings of a lower tribunal where it is convinced that the findings by the lower court are not supported by the evidence or are otherwise irrational: see Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S).”

It has not been shown that the findings of the court a quo are irrational or that they are not supported by evidence.

Quite to the contrary, the court a quo considered the evidence and found no fraud as it certainly was not there. No basis for interference has been established.

None of the grounds of appeal, in terms of which the appeal was motivated, have merit.

Clearly, this is a case of disgruntled illegal land occupiers who are frustrated by the decision taken by the Government to intervene and restore order and sanity in the allocation of land for urban settlement.

There is no basis in law for reversing the lawful acquisition of land, and the agreement as to compensation, which resulted in the consent order sought to be impugned.

The appeal is lacking in merit. There is no reason why the costs should not follow the event.

Accordingly, it be and is hereby ordered that the appeal is dismissed with costs.

This is an appeal against the refusal of bail (pending trial) in the Magistrates' Court in terms of section 121 of the Criminal Procedure and Evidence Act [Chapter 9:07] on the following grounds:

“1. The Magistrate misdirected himself in law in failing to find that 'compelling reasons' demanded by section 50(1)(d) of the Constitution of Zimbabwe, 2013 had not been established by the State, particularly in that:

1.1 There was neither evidence nor any other basis from which it could be said that appellant was likely abscond;

1.2 There was neither evidence nor any other basis from which it could be said that appellant would interfere with witnesses;

1.3 Reference to 'public outcry' is, in itself, never a compelling reason given that it is the people themselves that entrenched a presumption of innocence in the Constitution;

1.4 The State did not address any of the bail conditions offered by the appellant, thereby failing to discharge the onus thrust upon it by law. A compelling reason is one that remains notwithstanding bail conditions.

2. The decision to deny bail, on the basis of the above grounds, is so outrageous in its defiance of logic or common sense that no reasonable magistrate, applying his/her mind to the facts and conscious of the right to liberty, could ever have reached that conclusion, particularly in that:

2.1. No reasonable magistrate could have failed to find that the bail conditions offered by the appellant overwhelmingly addressed and answered each of the grounds upon which bail could be refused;

2.2. No reasonable Magistrate could have failed to find that the appellant, in the circumstances, met all the requirements set out in law for release on bail.”

The appellant is a former Member of Parliament and Cabinet Minister. He was arrested on 15 November 2017 at his home in Mount Pleasant. He stated that on the night in question, he heard an explosion at around midnight of 14 November 2017 but did not wake up until he had heard the sound of a second explosion which shook his house.

His wife had woken up at the sound of the first explosion upon which she had observed certain persons jumping into the property. The appellant got up to investigate whereupon his bedroom door burst open and 5 to 8 men armed with AK47 rifles burst into the room (who he described as being soldiers), pointed the guns at him, and handcuffed him whilst blindfolding him with his T-shirt.

He stated that the men were dressed in 'military uniform (green camouflage) including shoes.'

The appellant stated that he was forced out of his home, barefooted and blindfolded, and placed lying sideways in a lorry with occupants securing his body, head, and middle to prevent him from wiggling out of the vehicle.

He described that after travelling for about an hour he was interrogated with accusations that he had not run his Ministry (Ministry of Home Affairs) well, with one of the assailants or detainers complaining that the appellant had failed to provide him with a Stand when he was Minister.

He was taken to an undisclosed location and detained there for some days.

He told the court that on the second day of his detention, his captors allowed him to write a note so that they could collect his medication from his home. He also stated that he also requested a shirt and trousers and toiletries. At some point, his captors brought his doctor to attend to him whilst he was so detained.

During his time in captivity, over the next few days, he was interrogated by four to six men about decisions he had taken as Minister of Local Government. He said that he was guarded at all times by two to three people.

He told the court that he was never assaulted by his captors and that they made efforts to meet his requests for provisions because he is diabetic with other illnesses.

The day before he was taken to court, they removed his blindfold and drove him to his home. Upon arrival, the appellant noticed policemen sitting in a car which was parked outside the gate of his house. He told the court that the police who were blocking the entrance to his home, complied with an authoritative request made by his captors for them to move their vehicle out of their way.

His captors dropped him off.

At his house, his abductors allowed him to make a request to his wife to bring him his spectacles. His captors left and the police who were at his house took over and basically ferried him away.

He recalled the specific date of his abduction as being 15 November 2017 because he had attended a Cabinet meeting earlier on the same day. The appellant vehemently denied that he had been arrested on 23 November 2017 which is the date of arrest reflected on the charge sheet. His charge sheet shows that he was arrested on three counts for the following crimes as alleged:

“1. Count One - Section 4 of the Prevention of Corruption Act [Chapter 9:16] - 'Does anything that is contrary to or inconsistent with his duty as a Public Officer.'

2. Count Two - Criminal Abuse of Duty as Public Officer in terms of section 174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

3. Count Three- Fraud.”

Count One pertained to actions allegedly taken by the appellant in 2004 to 2009. Count Two pertained to alleged criminal acts by the appellant on 13 December 2006 and 25 March 2008. Count Three pertained to a fraud allegedly committed by the appellant between 8 December 2005 to 26 January 2006.

The appellant immediately applied for bail. The State opposed his application on the following grounds:

“1. Considering the seriousness of the offence, and the stipulated sentence if convicted, the accused is likely to abscond so as to evade prosecution.

2. Accused is the former Minister of Local Government who had access and control of the personnel hence the accused is likely to interfere with witnesses.

3. The current political situation is not favourable to the accused's safety. It is therefore proper for the accused to be remanded in custody for his safety.”

The reasons given by the State, both in opposing bail in the court a quo, and in opposing bail on appeal, are not founded in fact.

The court a quo was not furnished with reasons or evidence upon which it could make a determination regarding whether or not the interests of justice would be best served by remanding the appellant into custody.

Section 117(1) and (2) of the Criminal Procedure and Evidence Act [Chapter 9:07] states as follows:

“117 Entitlement to Bail

(1) Subject to this section and section 32, a person who is in custody in respect of an offence shall be entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed, unless the court finds that it is in the interests of justice that he or she should be detained in custody.

(2) The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of the following grounds are established —

(a) Where there is a likelihood that the accused, if he or she were released on bail, will —

(i) Endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; or

(ii) Not stand his or her trial or appear to receive sentence; or

(iii) Attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

(iv) Undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system; or

(b) Where, in exceptional circumstances, there is the likelihood that the release of the accused will disturb the public order or undermine public peace or security.”

No reasons were provided, nor any evidence led in support of the State's grounds for opposing bail. Neither did the court a quo make any enquiry to establish the veracity of the State's reasons for opposing bail, as would have been expected of it, prior to arriving at its determination refusing bail.

The State didn't provide the reason for believing that the appellant would abscond save to just merely allege that the appellant may abscond; neither did it identify which witnesses the appellant was likely interfere with if he was let out on bail.

The court also failed to make an enquiry into the State's allegation that “the current political situation was not favourable to appellant” to the extent that the appellant needed to be remanded in custody.

The State case consisted of mere allegations; and the court misdirected itself in lending credence to those grounds of opposition by simply accepting them without enquiry.

The court a quo grossly misdirected itself in its findings: see Aitken v Attorney-General & Anor v Aitken 1992 (1) ZLR 249 (S); Air Zimbabwe v Phiri 1988 (2) SA 696; S v Ncube 2001 (2) ZLR 556.

The errors and omissions committed by the court a quo, in arriving at its determination to refuse the appellant bail, are so egregious that they warrant me invoking my powers of review in terms of section 27(1)(c) of the High Court Act [Chapter 7:06].

I deem that the proceedings a quo were not in terms of real and substantial justice. The gross errors committed a quo require correcting.

The decision made a quo was unconstitutional to the extent that the court did not observe, as it was obliged to, the provisions of section 50 of the Constitution.

The appellant was subjected to inhumane and undignified treatment at the hands of his captors. He was not informed of the reason for his abduction, at the time that he was arrested in the dead of night at his home, or at any time prior to being brought to court on 23 November 2017.

Contrary to the peremptory provisions of section 50(2)(b) of the Constitution, the appellant was held for far beyond 48 hours in an undisclosed location.

I was troubled by the comments made by the court a quo in remaining complicit with the State's misleading statement that the date of arrest was when the police arrested the appellant, in circumstances where the appellant had been abducted and kept incommunicado by State agents several days before the police 'arrested' the appellant.

It's obvious that the police were in cahoots with the mysterious Sate agents given the fact that they took off where the State agents left off.

The appellant was detained by State agents on 15 November 2017 and only bought before a court of law a whole week later. To that end, the court sanctioned a breach of section 50(5) of the Constitution.

The appellant was kept incommunicado and thus denied his right to remain in communication with family or to consult, in private, with his lawyer or doctor during the period of his detention per section 50(5)(c) of the Constitution:

“(5) Any person who is detained, including a sentenced prisoner, has the right —

(a) To be informed, promptly, of the reason for their being detained;

(b) At their own expense, to consult, in private, with a legal practitioner of their choice, and to be informed of this right promptly;

(c) To communicate with, and be visited by —

(i) A spouse or partner;

(ii) A relative;

(iii) Their chosen religious counsellor;

(iv) Their chosen legal practitioner;

(v) Their chosen medical practitioner; and

(vi) Subject to reasonable restrictions imposed for the proper administration of prisons or places of detention, anyone else of their choice;

(d) To conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material, and medical treatment; and

(e) To challenge the lawfulness of their detention in person before a court, and, if the detention is unlawful, to be released promptly.”

When looking at the reasoning of the court a quo, in denying the appellant bail, it is my overall view that the court a quo got swept up by the sensationalism of the case and allegations surrounding the appellant's arrest.

The Magistrate lost sight of the fact that she was seized with an ordinary application for bail because she did not deliberate upon the meaning and intention behind section 50(1) of the Constitution which reads:

“50 Rights of arrested and detained persons

(1) Any person who is arrested —

(a) Must be informed, at the time of arrest, of the reason for the arrest;

(b) Must be permitted, without delay —

(i) At the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and

(ii) At their own expense, to consult, in private, with a legal practitioner and a medical practitioner of their choice; and must be informed of this right promptly;

(c) Must be treated humanely and with respect for their inherent dignity;

(d) Must be released unconditionally, or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention; and

(e) Must be permitted to challenge the lawfulness of the arrest in person before a court and must be released promptly if the arrest is unlawful.”

The arrest and detention of the appellant were, in my view, illegal.

The unfortunate and illegal actions which preceded the appellant's appearance before the court a quo, and which illustrate the manner by which the appellant was dealt with by State agents and the police, ran afoul to the presumption of innocence weighing in his favour.

However, as appalling as his treatment was, I am mindful of the fact that the charges would still not have been tainted: see Jestina Mukoko v Attorney General 2012 (1) ZLR 117 (SC).

The appeal before me is for bail pending trial.

In my view, this is a proper case for setting aside the decision of the court a quo on the basis that the court a quo grossly erred in denying the appellant bail.

Accordingly, I order as follows:

1. The appeal succeeds.

2. The appellant be and is hereby admitted to bail on the following conditions stated hereunder:

(a) The appellant deposits an amount of US$5,000 with the Clerk of Court, Harare Magistrates' Court.

(b) The appellant to reside at 847 Golden Stairs, Mt Pleasant, Harare.

(c) The appellant to report three times a day one between the hours of 6am to 10am; 1am to 2pm; 4pm–6pm at Marlborough Police Station, Harare.

(d) The appellant to surrender title deeds to his residential property.

(e) The appellant to surrender his passport and any other travel documents he may possess.

(f) The appellant is not to interfere with witnesses or tamper with evidence.

(g) The appellant is not to visit the offices of the Ministry of Local Government and those of the Reserve Bank of Zimbabwe.

On 24 February 2017, the Labour Court granted, with no order as to costs, an application for review brought by the respondent against the appellant. It thereby set aside the decision of the appellant to dismiss the respondent whom it reinstated with no loss of salary and benefits with effect from the date of the dismissal. In the alternative, and if reinstatement was untenable, it ordered that the appellant pays damages to the respondent.

This is an appeal, with leave, against that order.

The respondent was employed by the appellant as a bus conductor. Suspecting that she had committed an act of theft or fraud, the appellant brought the respondent before a disciplinary committee. The disciplinary committee failed to reach a decision in the matter. Instead of referring the matter to the Chief Executive, as is provided for in the governing code of conduct, the deadlocked disciplinary committee referred the matter to the Division Operations Manager, who, clearly oblivious of his incompetence in the matter, found the respondent guilty and dismissed her from employment.

On the sole basis that the referral of the matter to the Division Operations Manager was a nullity, the respondent approached the court a quo, on review, seeking to have the decision dismissing her set aside.

At the hearing of the matter a quo, the court held the appellant barred for want of filing heads of argument on time. It however proceeded to determine the matter on the merits.

It granted the application.

After setting aside the appellant's decision to dismiss the respondent, it made the additional order of reinstatement detailed above.

Aggrieved by the order of reinstatement, the appellant noted this appeal.

In the appeal, the appellant raised one ground of appeal as follows:

“The learned judge in the court a quo erred at law in ordering reinstatement of the respondent, or, alternatively, payment of damages in lieu of reinstatement, in an application for review where only a procedural irregularity was determined.”

Quite clearly, and correctly so, the appellant did not challenge the correctness of the court a quo's order to set aside the decision of the Division Operations Manager to dismiss the appellant as a nullity and therefore as unlawful. This therefore considerably narrows down the issues that fell to be resolved in this appeal.

The sole issue that arose in this appeal is whether, after setting aside the dismissal of the respondent as unlawful, it was competent for the court a quo to order the reinstatement of the respondent with no loss of salary and benefits with effect from the date of the dismissal, or in lieu thereof, the payment of damages.

Whilst the appellant argued, both in its heads of argument and orally before the court, that the only relief the court a quo could grant in the matter was a remittal of the matter to the appellant, the issue of the appropriate remedy a quo does not arise in this appeal. This is so because the issue was not raised in the sole ground of appeal that I have reproduced above.

Whilst it may be regarded as a point of law that can be raised at any time, no procedural foundation was laid for the raising of the point.

In any event, and, more importantly in my view, the power to remit a matter to a lower court or tribunal is a common law power inherent in the High Court and in the court a quo by virtue of section 89 of the Labour Act [Chapter 28.01], used in its discretion and in circumstances where it is not possible or desirable for the court to substitute its own discretion in the matter.

There has been no proper attack on the exercise of the court's discretion in this regard. I will therefore disregard this issue as it has not been properly raised.

This is an appeal against the decision of the High Court upholding an arbitral award handed down by the third respondent on 10 July 2018 in terms of which the appellant's claim was dismissed for want of prosecution and the first respondent's counter claim was granted.

Prior to January 2006, the appellant and the first and second respondents owned mines which are in close proximity situate in the Mutoko and Mudzi districts. In January 2006, the parties concluded a shareholder's agreement governing their respective shareholding in a joint venture company called Quarrying Enterprises (Pvt) Ltd (QE). As contribution towards their shareholding to Quarrying Enterprises (Pvt) Ltd (QE) the parties contributed, inter alia, mining claims.

Alleging breach by the first and second respondents of the shareholder's agreement, the appellant approached the arbitral tribunal seeking an order declaring the shareholder's agreement of no force or effect, restitution of its mining claims and movable assets it contributed to the joint venture, eviction of the first and second respondents from the mining claims, and payment of damages in the sum of US$21,693,374.

The first and second respondents resisted the claim and filed a counterclaim wherein they alleged that the appellant was in breach of the shareholders agreement. They sought an award declaring that the appellant was in breach of the shareholders agreement and that the other shareholders were entitled to cancel the agreement and acquire the appellant's shareholding in accordance with the agreement.

In 2015, the parties referred the dispute to arbitration before the third respondent ('arbitrator'). After various interlocutory applications and several postponements requested by the appellant, the arbitrator scheduled the final hearing on 28 May 2018.

At the commencement of the hearing, the appellant's Managing Director, Mr Smit, appeared in person and sought a further postponement. He averred that Mr Samukange, the appellant's counsel of choice, was unavailable to argue the matter as he was involved in elections and was not sure when he would be available. He stated that it was in the interests of justice to have the appellant's legal practitioner of 20 years to represent it in the matter.

The first and second respondents opposed the postponement and argued that the appellant's right to legal representation was not absolute and proceedings could not be forestalled because of the unavailability of a particular legal practitioner.

Counsel for the first and second respondents insisted that the respondents had a right to the prompt resolution of the dispute. He further indicated that the appellant had ample time to enlist the services of another legal practitioner but failed to do so.

In any event, it was submitted, it had been indicated to the appellant at the last postponement of 2 May 2018 that the respondents would make an application for the dismissal of the claim for lack of prosecution. Consequently, the respondents moved for the dismissal of the appellant's claim for want of prosecution.

The arbitrator refused the postponement and proceeded with the matter.

On 10 July 2018, the arbitrator handed down his award dismissing the appellant's claim for want of prosecution in terms of Article 25(d) of the UNCITAL Model Law. as set out in the Arbitration Act [Chapter 7:15] (Model Law).

This was upon a finding that the appellant was 'virtually absent' as Mr Smit, the appellant's representative, was not in a position to prosecute the appellant's case or defend the counterclaim without the assistance of a legal practitioner. The arbitrator held that the appellant's conduct exuded an unwillingness to prosecute its case as it sought to forestall the arbitration from October 2017.

After dismissing the appellant's claim, the arbitrator proceeded to deal with the respondent's counterclaim, and, after analysing the evidence placed before him, he upheld the counterclaim.

In the result, he declared that the appellant was in breach of the shareholder's agreement signed by the parties and that the other parties retained their right to cancel the agreement and to acquire the appellant's shareholding.

Dissatisfied with the award, the appellant approached the court a quo in terms of Article 34(2) of the Model Law, Arbitration Act [Chapter 7:15] to have the arbitral award set aside.

It argued that the arbitrator violated its right to be heard by directing that the hearing proceeds despite the unavailability of the appellant's legal practitioner of choice. Thus, the appellant contended, its constitutional right to legal representation by counsel of choice had been infringed.

It also stated, that, by imposing a date of hearing, the respondents violated its right to a fair, speedy hearing within a reasonable time before an independent judiciary.

It further submitted that the arbitrator's finding that its claim was not prosecuted was contrary to the evidence and amounted to a misrepresentation of facts in order to frustrate the appellant's claim.

In its opposing papers, the first respondent argued that the postponement was rightfully denied as the appellant's selection of a lawyer, who was known to be unavailable, had the effect of delaying, indefinitely, the determination of the parties' rights.

It further contended that the appellant was not left without representation as it could engage counsel who represented it at the initial stages.

The first respondent also indicated that the appellant had ample opportunity to regularise its affairs as it had been granted several adjournments prior to the final hearing but failed to do so.

The first respondent was of the view that the appellant was abusing the arbitration proceedings as evidenced by its numerous unmeritorious applications in the High Court.

Regarding the arbitrator upholding its counterclaim, the first respondent averred that the evidence against the appellants was overwhelming as it established the unrebutted fact that the appellant was in breach of the shareholders' agreement.

In response, the appellant insisted that Mr Samukange was well versed with the facts and issues surrounding the main case and would effect proper representation.

Concerning the counterclaim, the appellant submitted that due to Mr Samukange's absence, Mr Smit was incapable of addressing the technical arguments made by the respondent's counsel. However, it was highlighted that the allegations of breach were refuted by Mr Smit. The appellant also argued that the postponement sought could not be classified as an 'indefinite delay' and that it occasioned no prejudice to the respondents.

The appellant took a further point in its heads of argument, that, the arbitrator adopted a wrong procedure in dismissing its claim for want of prosecution wherein, in terms of Article 25(c) of the Model Law, Arbitration Act [Chapter 7:15] he could make an award on the merits based on the evidence placed before him.

The court a quo dismissed the application.

It held that the arbitrator properly exercised his discretion in refusing a postponement, after considering the applicable principles. The court held that the appellant's right to legal representation was not absolute. It reiterated that the unsuitability of a date for a legal practitioner is not good enough reason to seek a postponement where no reason is advanced as to why other legal practitioners could not be engaged. It reasoned that the refusal of a postponement was justified considering the duration of the matter and the legitimate reasonable needs of the respondents to have the matter resolved expeditiously considering that the arbitrator had allowed another postponement on 2 May 2018 on similar grounds. The court was of the view that the appellant had ample time, between 2 May 2018 and 28 May 2018, to enlist the services of other legal practitioners. It found that the appellant's right to be heard had not been breached because Mr Smit consciously elected not to participate in the proceedings when it was indicated that there would be no postponement.

The court further held that the arbitrator properly invoked Article 25(d) of the UNCITAL Model Law. as set out in the Arbitration Act [Chapter 7:15] (Model Law). It reasoned that Article 25(c) of the Model Law, Arbitration Act [Chapter 7:15] was inapplicable since the appellant was duly represented by Mr Smit who had participated in making an application for postponement although he was 'absent' for other purposes.

Aggrieved by that decision, the appellant noted an appeal to this Court on the following grounds:

“GROUNDS OF APPEAL

1. The learned judge erred in finding that the Appellant's constitutional right to a lawyer of his choice had not been infringed by the arbitral tribunal and erred in finding that Appellants insistence on being represented by a legal practitioner of his choice was unreasonable in the circumstances.

2. The learned judge erred in finding that the Appellant was obliged to retain the services of an alternative counsel in the circumstances.

3. The learned judge misdirected himself in finding that the arbitral tribunal had not breached Appellants rights in terms of section 69(4) of the Constitution in the circumstances.

4. The learned judge erred in finding it was reasonable of the arbitral tribunal to impose a date for the resumption of the hearing on the Appellant when its legal practitioner of choice had previously advised the arbitral tribunal it was not available.

5. The learned judge erred in finding that a postponement of the arbitration was not merited and reasonable in the circumstances.

6. The learned judge erred in concluding that the delay in proceedings was occasioned by Appellants remissness and hence he was not entitled to a postponement in the circumstances.

7. The learned judge misdirected himself in finding that the arbitral tribunal acted properly in proceeding without Appellant's legal practitioner.

8. The learned judge misdirected himself in finding that the arbitral tribunal was correct in proceeding under Article 25(d) of the Arbitration Act instead of Article 25(c) which required the arbitral tribunal to consider the matter on the merits.

9. The learned judge erred in finding that the Appellant was not in default on the day in question and hence that the arbitral tribunal was correct in dismissing Appellants claim for want of prosecution.”

Counsel for the appellant argued that the arbitrator's undue refusal of a postponement infringed on the appellant's constitutionally guaranteed right to counsel of choice. He submitted that since a plausible explanation for the unavailability of the appellant's counsel of choice was proffered, the arbitrator's denial of postponement, in the circumstances, was an infraction of effective legal representation.

He also submitted that it was improper for the arbitrator to invoke Article 25(d) of the Model Law, Arbitration Act [Chapter 7:15] as opposed to Article 25(c) in disposing of the appellant's claim.

He argued that such a technical approach to the matter was unwarranted as the appellant's claim and defence to the counterclaim, both of which were before the arbitrator, were not adjudicated on.

He argued that by resorting to Article 25(d) of the Model Law, Arbitration Act [Chapter 7:15], the arbitrator made an order akin to a default judgment in arbitration proceedings yet such an order is the preserve of a proper court of law.

Counsel for the appellant contended, that, where pleadings are closed, Article 25(d) of the Model Law, Arbitration Act [Chapter 7:15] cannot be employed. The arbitrator is obliged to deal with the merits of the matter. Accordingly, he argued that Article 25(d) applies where a defaulting party has not yet filed documents on the merits of the dispute.

Counsel for the appellant submitted that had Mr Smit not attended the hearing, Article 25(c) of the Model Law, Arbitration Act [Chapter 7:15] would have been applicable and the arbitrator would have dealt with the matter on the papers placed before him. To that end, he argued that since Mr Smit was present at the hearing but failed to participate, there was no reason for the arbitrator to be excused from determining the merits of the matter.

Upon being asked by the court if a case had been made for the setting aside of the arbitral award on the grounds that it was contrary to public policy, counsel for the appellant stated that the arbitral award was contrary to the public policy of Zimbabwe in two respects:

(i) Firstly, in that the arbitrator did not afford the appellant attendance of its legal practitioners; and

(ii) Secondly, that the arbitrator failed to determine the appellant's claim or the defence to the respondent's counter-claim.

Although the appellant has raised several grounds of appeal, its case hinges on a determination of the following issues:

1. Whether or not the court a quo erred in holding that the arbitrator's refusal of the appellant's request for a postponement was justified.

2. Whether or not the court a quo erred in finding that the arbitrator properly invoked Article 25(d) of the UNCITAL Model Law, Arbitration Act [Chapter 7:15] in dealing with the appellant's claim.

It is settled law that postponement of a matter is not a right obtainable on demand but is at the court's indulgence: as such, it involves an exercise of discretion which discretion must be exercised judicially. This position was enunciated by this Court in Apex Holdings (Pvt) Ltd v Venetian Blinds Specialists Ltd SC33-15, where it was held that:

“An application for the postponement of a matter which has been set down for hearing is in the nature of an indulgence sought, the grant of which is in the discretion of the judge or court before which it is made. The applicant must therefore show that there is good cause for the postponement or that there is a likelihood of prejudice if the court refuses the indulgence being sought.”

In exercising the discretion to postpone a matter, several factors have to be considered cumulatively.

In Persadh v General Motors SA (Pty) Ltd 2006 (1) SA 455 (SE)…, the court succinctly set out the applicable legal principles when a party applies for a postponement as follows:

“(i) First, as that party seeks an indulgence he or she must show good cause for the interference with his or her opponent's procedural right to proceed and with the general interest of justice in having the matter finalised;

(ii) Secondly, the court is entrusted with a discretion as to whether to grant or refuse the indulgence;

(iii) Thirdly, a court should be slow to refuse a postponement where the reasons for the applicant's inability to proceed has been fully explained, where it is not a delaying tactic, and where justice demands that a party should have further time for presenting his or her case;

(iv) Fourthly, the prejudice that the parties may or may not suffer must be considered; and

(v) Fifthly, the usual rule is that the party who is responsible for the postponement must pay the wasted costs.”…,.

In casu, the court a quo found that the arbitrator was alive to the salient factors surrounding the grant or refusal of a postponement and he applied them judicially.

Having considered that the appellant's conduct sought to frustrate the arbitration proceedings by filing several un-meritorious applications; seeking several postponements; that the appellant failed to indicate when the arbitration would continue if postponed, why the legal practitioner of choice was unavailable, and why other legal practitioners who had handled the matter previously could not act for the appellant, the court a quo held that the appellant's insistence on representation by Mr Samukange in the circumstances was unreasonable. The court found that the appellant had ample time to enlist the services of other legal practitioners.

The court a quo's reasoning cannot be faulted.

It was a proper case to deny a postponement as the reasons for the appellant's inability to proceed had not been fully explained and postponement had been employed as a delaying tactic.

Over and above that, the mere fact that a party's counsel of choice is unavailable is not a good ground upon which to grant a postponement. This position was laid out in D'Anos v Heylon Court (Pty) Ltd 1950 (1) SA 324 C…, where the court held that:

“…, the non-availability of counsel cannot be allowed to thwart the bringing before the court of the matter in issue. In all but the rarest of cases suitable counsel will be available. This is not the convenience of counsel; it is the reasonable convenience of the parties, and by that I mean both parties, and the requirement of getting through the court's work which must be the dominant considerations. The availability of counsel is a subsidiary consideration. A party's predilection for a particular counsel to take his case can, in my view, seldom, if indeed ever, be regarded as a decisive objection to a date of set down which is in all other respects reasonable and acceptable to both parties.”…,.

The parties' interests must be taken into consideration.

In the present case, the arbitrator further considered the respondent's interest in respect of its counterclaim which required speedy determination which could not be delayed further by the appellant who did not wish to prosecute its case.

That finding cannot be impeached.

In any event, it is a salutary principle of law that there should be finality in litigation: see Ndebele v Ncube 1992 (1) ZLR 288 (S)…,.

Therefore, the arbitrator's refusal of postponement was justifiable. The appellant failed to show good cause for the grant of the indulgence it sought. The arbitrator, and the court a quo, cannot be faulted for holding that the appellant had not made a good case for a further postponement of the hearing.

This leaves one issue for consideration, namely:

The appellant contends that the arbitrator and the court a quo ought to have found that Article 25(d) of the Model Law was inapplicable notwithstanding that it was in default. The thrust of its argument is that where pleadings are closed, and all documents are before the arbitrator, the arbitrator is obliged to make a decision on the merits notwithstanding any reasons for the default.

Article 25 of the Model Law provides the course an arbitrator can take where a party is in default as follows:

“ARTICLE 25

Unless otherwise agreed by the parties, if, without showing sufficient cause —

(a) The claimant fails to communicate his statement of claim in accordance with article 23(1), the arbitral tribunal shall terminate the proceedings;

(b) The respondent fails to communicate his statement of defence in accordance with article 23(1), the arbitral tribunal shall continue the proceedings without treating such failure in itself as an admission of the claimant's allegations;

(c) Any party fails to appear at a hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings and make the award on the evidence before it;

(d) The claimant fails to prosecute his claim, the arbitral tribunal may make an award dismissing the claim or give directions, with or without conditions, for the speedy determination of the claim.”…,.

Subsections (c) and (d) are apposite to the determination of the present case.

Under (c) an arbitrator has a discretion to consider the evidence before him and to render a ruling notwithstanding that a party is in default. However, under subsection (d), the arbitrator may dismiss the claim or give directions for the speedy determination of the claim where the claimant fails to prosecute its claim.

Our Article 25 is worded exactly as Article 25 of the Arbitration Act 1996 of New Zealand which provides that:

“25 Default of a party

Unless otherwise agreed by the parties, if, without showing sufficient cause —

(a) The claimant fails to communicate the statement of claim in accordance with Article 23(1), the arbitral tribunal shall terminate the proceedings:

(b) The respondent fails to communicate the statement of defence in accordance with Article 23(1), the arbitral tribunal shall continue the proceedings without treating such failure in itself as an admission of the claimant's allegations:

(c) Any party fails to appear at a hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings and make the award on the evidence before it:

(d) The claimant fails to prosecute the claim, the arbitral tribunal may make an award dismissing the claim or give directions, with or without conditions, for the speedy determination of the claim.”

Similarly, the Arbitration Act of Kenya [Chapter 49] is couched as follows:

“26 Default of a party

Unless otherwise agreed by the parties, if, without showing sufficient cause —

(a) The claimant fails to communicate his statement of claim in accordance with section 24(1), the arbitral tribunal shall terminate the arbitral proceedings;

(b) The respondent fails to communicate his statement of defence in accordance with section 24(1), the arbitral tribunal shall continue the proceedings without treating such failure in itself as an admission of the claimant's allegations;

(c) A party which fails to appear at a hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings and make the award on the evidence before it;

(d) The claimant fails to prosecute his claim, the arbitral tribunal may make an award dismissing the claim or give directions, with or without conditions, for the speedy determination of the claim;

(e)…,.

(f)…,.

(g)…,.”

A point to note is that the UNCITRAL Model Law does not have subsection (d) in its Article 25. It only has subsections (a) to (c). Subsection (d) is one of the few provisions that were expressly added by the Zimbabwean legislature to the Model Law.

There is a dearth of case law interpreting Article 25(d) in the stated jurisdictions. It appears that our courts have also not dealt with the import of the subsection and the powers bestowed on an arbitrator therein.

However, it can be gleaned from the above that subsection (d) gives the arbitrator final and definitive powers in the disposition of a claimamt's claim for lack of prosecution.

It is necessary to mention that Article 25 of the Model Law involves the exercise of a discretion by an arbitrator as to the course of action to follow in disposing of a claim before him where default has been established.

That discretion may be interfered with where the primary court acts upon a wrong principle; allows extraneous or irrelevant matters to guide or affect it; mistakes the facts; or does not take into account some relevant consideration: see Barros v Chimponda 1999 (1) ZLR 58 (S).

These guidelines ought to be measured against both the arbitrator and the court a quo's findings.

The arbitrator invoked Article 25(d) of the Model Law having found that the appellant's conduct exhibited an unwillingness to prosecute its case. The court a quo also reasoned that sub-section (c) was inapplicable as the phrase “fails to appear” did not apply to the appellant which was represented by Mr Smit who had participated in the proceedings by seeking postponement.

The question is whether, in the circumstances, the arbitrator was obliged to determine the merits of the matter.

This can only be determined by ascertaining the legislative intent in promulgating the section.

This Court, in Thandikile Zulu v ZB Financial Holdings (Private) Limited SC48-18, had this to say;

“The rules of statutory interpretation dictate that the words of a statute shall be given their ordinary grammatical meaning unless doing so leads to an absurdity. In the case of Venter v Rex 1907 TS 910, INNES CJ said the following at 914-5:

'It appears to me that the principle we should adopt may be expressed somewhat in this way: that when to give plain words of a statute their ordinary meaning would lead to absurdity so glaring that it could never have been contemplated by the legislature, or where it could lead to a result contrary to the intention of the legislature, as shown by the context or by such other consideration as this court is justified in taking into account, the court may depart from the ordinary effect of the words to the extent necessary to remove the absurdity and to give effect to the true intention of the legislature.'”

This approach was followed by McNALLY JA in Chegutu Municipality v Manyara 1996 (1) ZLR 262 (S)…, where he said:

“There is no magic about interpretation. Words must be taken in their context. The grammatical and ordinary sense of the words is to be adhered to, as Lord Wensleydale said in Grey v Pearson (1857) 10 ER 1216 at 1234, 'unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified as to avoid that absurdity and inconsistency - but no further.'”

See also Zimbabwe Revenue Authority & Anor v Murowa Diamonds (Pvt) Ltd SC41-09...,.

In my view, the wording employed in Article 25(c) and (d) of the Model Law is clear and unambiguous. There is no need to resort to tools of interpretation to get the intention that motivated the enactment of the provisions.

What differentiates subsections (c) from (d) is the claimant's conduct upon which the arbitrator's decision to either consider the evidence before him or to dismiss the claimant's claim respectively is based.

It appears that Article 25(d) is invoked in the extreme situations where, as in casu, a party is present, is asked to motivate its case, and fails or refuses to do so.

The party would have consciously made a decision not to participate in the proceedings.

It must be borne in mind that that party would be the claimant and hence the dominus litis in the matter.

The Article gives the arbitrator power to deal with an otherwise obstructive litigant.

In casu, the proceedings would have stalled were it not for Article 25(d) of the Model Law and the applicant would have achieved its intended desire of having the matter moved forward.

It has, therefore, the effect of terminating stale or unnecessarily protracted arbitral proceedings.

On the other hand, Article 25(c) of the Model Law is resorted to where “a party fails to appear at a hearing or to produce documents.”

That is the major distinction between the two provisions.

Its akin to the procedure in terms of Rule 238 of the High Court Rules 1971 where the court can exercise its discretion to deal with the matter on the merits.

Accordingly, counsel for the appellant's argument, that, an order by the court under Article 25(d) of the Model Law is akin to a default judgment, which an arbitrator has no power to make, is misplaced.

His further contention that a party has better protection under Article 25(d) is neither here nor there.

If it was the intention of the legislature to give the same rights to a party who fails to appear and one who refuses to prosecute its claim it would have specifically stated so.

More importantly, the arbitrator, in a detailed analysis of the appellant's conduct since the commencement of arbitration proceedings, held that the appellant was unwilling to prosecute its case. He remarked thus:

“Without any indication from the claimant as to when the arbitration would continue if postponed; without any good enough reason why the preferred legal practitioner, Mr Samukange, was unavailable; without a date as to when he would be available; without any explanation as to why Mr McGown, who handled the matter on the previous occasions, was unable to act for the claimant; without any explanation as to why Advocate Wood would not appear for the claimant; and, in the face of a long history of obstructive steps by the claimant in the form of requests for postponement and unmeritorious applications, I was satisfied that the claimant did not wish to prosecute its claim.”…,.

The court a quo also made some pertinent observation, and correctly so, when it stated:

“Mr Smit cannot be regarded as having been present for the purpose of making an application for a postponement but 'absent' for other purposes.”

I find no fault in these findings by the arbitrator and court a quo.

I can only interfere with the findings where they are grossly irrational: see Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S). I have not found irrationality in the above reasoning.

In any event, a high threshold has been set for setting aside arbitral awards under Article 34 of the Model Law on the basis that it is contrary to public policy.

An arbitral award will not be contrary to public policy merely because the reasoning or conclusions of the arbitrator are wrong in fact or in law. It is in those instances where “…, the reasoning or conclusion in an award goes beyond mere faultiness or correctness and constitutes a palpable inequity that is so far-reaching and outrageous in its defiance of logic or acceptable moral standards that a sensible and fair-minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the award; then, it would be contrary to public policy to uphold it. The same applies where the arbitrator has not applied his mind to the question or has totally misunderstood the issue, and the resultant injustice reaches the point mentioned above.”

See Zesa v Maposa 1999 (2) ZLR (S)…,.

In the present case, the threshold has not been met.

I have come to the conclusion that Article 25(d) of the Model Law was properly invoked in the circumstances of this case.

A finding that the appellant failed to prosecute its case empowered the arbitrator to dismiss the appellant's claim. Consequently, in the circumstances of this case, the appellant cannot seriously argue that the arbitrator failed to determine the matter placed before him. The appellant also has not demonstrated that the arbitrator's refusal of postponement was grossly unreasonable.

Although this would have been a proper case to award costs against the appellant, this Court will not make such an order for the reason that the respondents, being in default, did not motivate a claim for costs.

In the result, I make the following order:

The appeal be and is hereby dismissed.

This appeal arises from the judgment of the High Court in which the court a quo ordered the appellant to pay the respondent the sum of US$89,000 with interest at the prescribed rate calculated from 11 December 2012 to the date of full payment.

The appellant is a gold mining company. It is registered in terms of the laws of Zimbabwe. It owns a gold mine located in Shurugwi (Sky Rocket 16485).

The respondent is a private individual of Chinese origin. He is a foreigner investor based in Zimbabwe.

On 13 January 2011, the appellant and the respondent entered into a joint venture agreement. In terms of the agreement, the parties would constitute a new company. The appellant would provide mining claims and the respondent would be responsible for exploration and providing investment of capital and equipment in respect to the mining venture.

In terms of the agreement, the respondent would get 75 per cent and the appellant 25 per cent of the proceeds from the mine.

The respondent was obliged to grant a loan to the new company in the sum of US$150,000. The loan was to be paid back to the respondent through deductions from profits that would accrue to the appellant when such profit was realized by the company.

The respondent had to pay a down payment in the sum of US$50,000 within ten days of coming into effect of the agreement. In return, the appellant would give the respondent 'blocks of claims' certificate and the company certificate “after agreement of signature of ten days.” (sic)

The new company was to be established before 1 March 2011, and, thereafter, the respondent would pay the remaining US$100,000 to the appellant within ten days after 1 March 2011.

Failure by the respondent to bring reasonable mining equipment and to have the project take off by July 2011 would entitle him to be paid back the loaned amount within six (6) months.

Following signing of this agreement, the respondent, through his erstwhile legal practitioners, wrote a letter to the appellant dated 13 May 2011. In this letter, the respondent informed the appellant that there was a misconception on the terms and conditions of the agreement which had been agreed to by the parties on 13 January 2011. As such, the respondent informed the appellant that he was cancelling the agreement and demanded a refund of the sum of US$88,099 which he had paid to the appellant as a loan amount in terms of the agreement.

Following the letter cancelling the agreement, the parties thereafter entered into a new agreement on 3 October 2011.

In terms of the new agreement, the appellant admitted that it owed the respondent the sum of US$89,000. It was also agreed that the full loan amount, as agreed by the parties, was US$150,000.

It was further agreed that the respondent would recover the loan amount through a tribute to operate and extract ores from the mine. The respondent was to take over the appellant's workers and general control of the mine and recover the amount due to him.

Payment of the loan balance of US$61,000 was to be made before the respondent could take up occupation of the mine.

On 11 December 2012, the respondent issued summons against the appellant claiming the sum of US$89,000 being the amount advanced to the appellant as well as interest at the prescribed rate and cost of suit.

In his declaration, the respondent averred that the new agreement between the parties did not come into fruition due to the appellant's (represented by Philemon Mubata who was cited as the second defendant a quo) failure to perform in terms of the agreement by excluding him from the operations at the mine and using the loan contrary to the provisions of the agreement.

The respondent further averred that he had no choice but to cancel the agreement as the appellant had breached it.

In its plea, the appellant did not dispute entering into a joint venture agreement with the respondent but argued, instead, that, the respondent had not sought to recover his money by mining ore equivalent to the loan sum of US$89 000. It was the appellant's argument that according to the agreement, the appellant was entitled to six months in which to repay the loan. The appellant thus stated that the issuance of summons proceedings was premature.

On 20 November 2013, the appellant amended its plea and averred that the respondent had breached the agreement and failed to provide equipment necessary to carry out exploration work at the mine.

Following breach of the first agreement by the respondent, the parties entered into a second agreement.

The appellant further averred that the second agreement had a suspensive provision to the effect that the respondent had to pay the full amount of US$150,000 before he could recover his monies from production on the mine.

The appellant also filed a counter claim against the respondent with the amended plea for the sum of US$61,000 being payment of the balance of the loan in fulfilment of obligations which the respondent had undertaken in order to fulfill the terms of the agreement.

In response to that claim, the respondent alleged that a condition had to be satisfied, prior to the payment of the US$61,000, which condition was his involvement in management and operations at the mine at the inception of the loan agreement. The respondent averred that he was frustrated by the actions of the appellant. This was the reason why he failed to fulfill his obligation and led to the cancellation of the whole agreement.

At a Pre-Trial Conference, the agreed issues for determination were stated as follows:

“(a) Whether or not the plaintiff was, in accordance with the joint venture agreement, obliged to pay the sum of US$150,000 towards financing the gold mining venture.

(b Whether or not the first and second defendants frustrated the contract resulting in non-fulfillment of the terms and conditions of the agreement between the parties.

(c) Whether or not the first and second defendants were in breach of the fundamental terms of the agreement causing the plaintiff to cancel the whole agreement and demand repayment of the loaned sum of US$89,000.”

During the trial the respondent, Ms. Ding (his assistant at the time when the agreement was made) and one Mr. Wei Ren (the respondent's mining manager from 2005 to 2010-2011) gave evidence.

The three witnesses all testified to the effect that the appellant and respondent entered into two agreements which never materialized and that the appellant denied the respondent access to the mine so that he would recover his monies. Ms Ding further clarified that the second agreement was prepared by Mr Mubata. She denied that the respondent had breached any of the terms of the agreement and insisted that it was the appellant which had breached the terms of the agreement by denying the respondent access to the mine.

Two witnesses led evidence on behalf of the appellant.

Mr. Mubata (the second defendant a quo) testified that the agreement failed to materialize because the respondent failed to bring the requisite equipment to the mine and that the respondent cancelled the agreement because the appellant had refused to sell the mine and transfer the registration certificates to him. The second witness was Mr. Mhere, the appellant's Finance and Administration manager. He testified that the respondent failed to pay the full loan amount which had been agreed between the parties leading to the breach of the agreement.

In its judgment, the court a quo found that the respondent had had the agreement explained to him in Chinese and therefore they were valid agreements.

The court believed the evidence of the appellant that the respondent paid the loan in 'dribs and drabs' contrary to the terms of the agreement. The court a quo also found that the respondent was in breach of both agreements.

The court, however, decided to apply the principle of equity on the basis that the respondent's grasp of English was so bad that he may not have understood the terms of the agreement and decided to reimburse the respondent the amount that he had loaned the appellant. The court stated as follows:

“I (sic) persuaded that it would be appropriate to utilize the equitable principle in coming to a resolution of this matter. I hold the view primarily because the court was uneasy with the plaintiff's level of understanding of the terms of both agreements.”

The court made the following order:

“In the result, it is ordered that:

1. The plaintiff's claim against the 2nd defendant be and is hereby dismissed with costs.

2. The defendant's counter-claim against the plaintiff, for payment of USD$61,000, be and is hereby dismissed with costs.

3. Plaintiff's claim, as against the 1st defendant, Big Valley Masters Private Limited, in the sum of US$89,000, is allowed, together with interest thereon at the prescribed rate calculated from 11 December 2012 to the date of payment in full.

4. 1st defendant shall bear the costs of suit.”

The appellant was dissatisfied and appealed on the following grounds:

1. The court a quo erred in law in deeming the partnership dissolved by a letter at a future date contrary to the principle that dissolution of a contract is exercised ex nunc.

2. The court grossly misdirected itself in adjudging that the respondent was entitled to recover US$89,000 when he was in clear breach of the parties' agreement.

3. The court a quo grossly misdirected itself by allowing the respondent to derive a benefit from his own wrong.

4. The court a quo erred in failing to uphold the appellant's defence of the exceptio non adimpleti contractus.

5. The court a quo further erred in allowing interest on the sum of US$89,000 to run up to the date of payment thus contravening the in duplum rule.

6. The court a quo grossly misdirected itself in awarding costs in favour of the respondent where it had failed to fully succeed in the matter.

In my view, from the appellant's grounds of appeal, and from submissions made, the issue that resolves the appeal is the following:

Counsel for the appellant…, submitted, in the main, that, the court a quo erred in determining the matter before it on the basis of the principle of equity as such principle is not part of the Zimbabwean law.

Counsel argued that the principle could only be resorted to where a statute provides for its application.

It was counsel's submission that the terms of the agreement were clear and should have been complied with. With these submissions, whilst not abandoning the other grounds, counsel prayed that the appeal be allowed.

Per contra, counsel for the respondent…, argued that the court a quo did not misdirect itself when it applied the principle of equity. It was his submission that the principle is part of our law in terms of the common law. Counsel further argued that the breach of the agreement by the respondent could be attributed to the fact that there had been difficulty in communication as the respondent could not communicate fluently in English. Counsel thus submitted that the case was one which justified the application of the principle of equity so as to ensure that the appellant would not be unjustly enriched.

The court a quo found in favour of the respondent on the basis of the principle of equity. The court stated as follows;

“A modern interpretation of the equitable principle, one that takes into account the situation prevailing in our economy, may not favor an insistence that the plaintiff cannot succeed in his claim until he has performed in full, the terms of the October agreement. The court can exercise its discretion in the plaintiff's favor despite his partial performance of the January agreement (by advancing a loan up to US$89,000) and his non-performance of the October agreement.”

The appellant has argued that the court a quo erred in applying the principle of equity in this matter as the principle is foreign to this jurisdiction. With that, the appellant seeks to show that the court misdirected itself in finding for the respondent resulting in him deriving a benefit from his own wrong.

The second agreement had a provision, under paragraph 8, which stated as follows:

“(8) PAYMENT OF LOAN BALANCE ($61,000) SHOULD BE PAID TO SUM IN FULL BEFORE OCCUPATION OF PLANT WILL BE TAKING AFTER MR SHI IS BACK”(sic)

It was not in dispute that the provision under paragraph 8 was not fulfilled by the respondent.

It was also an agreed fact that at no point did the respondent mine or recover any profits from the mine.

The appellant submits that the court a quo erred by ordering it to pay the respondent his money in circumstances where he had breached the contract.

The respondent argued, before the court a quo, that, he was denied entry on to the mine by the appellant. This prevented him from being productive to recover his monies as agreed between the parties in the second agreement. The appellant counter-argued that the respondent was never refused access to the mine from the date when the first agreement was signed to the signing of the second agreement.

The court a quo believed the appellant's arguments and found that the respondent failed to honor some of the provisions of the agreement and was never denied access to the mine.

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.

The respondent, in making his claim for the amount which had been advanced to the appellant, had to prove that he was owed such money.

It is pertinent to note that the standard of proof in all civil matters is on a balance of probabilities.

The concept of proof on a balance of probabilities was enunciated in British American Tobacco Zimbabwe v Chibaya SC30-19 wherein the court quoted with approval the case of Miller v Minister of Pensions [1947] 2 All ER 372, 374 and explained the concept of balancing probabilities as follows:

“It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say 'we think it more probable than not', the burden is discharged, but if the probabilities are equal it is not.”

This was further emphasized in the book, Principles of Evidence, 4th ed (2016) Juta: Cape Town, wherein the authors SCHWIKARD PJ and Van der MERWE SE stated that:

“In civil proceedings, the inference sought to be drawn must also be consistent with all the proved facts, but it need not be the only reasonable inference: it is sufficient if it is the most probable inference.”

The rule on onus of proof was pronounced in ZUPCO Ltd v Pakhorse Services (Pvt) Ltd SC13-17 where the Court stated that:

“The cardinal rule on onus is that a person who claims something from another in a Court of law has to satisfy the Court that he is entitled to it.”

The respondent managed to discharge the onus of proof which was required of him in making his claim.

Indeed, it was conceded, by the appellant, that, the sum of US$89,000 was paid to it by the respondent. It was also conceded that during the subsistence of the agreement the respondent did not mine any gold or recover any profit from the use of that money.

The resultant effect was that the appellant ended up unjustly enriched by the respondent's US$89,000 which the respondent did not benefit from.

The appellant, in motivating the point that the court a quo erred in finding that the respondent could recover money he had paid to the appellant, relied on the ground that the court erred in failing to uphold its defense of exceptio non adimpleti contractus.

This point was not pursued in the appellant's heads of argument and was never pleaded a quo.

Clearly the appellant was wrong in submitting that the court a quo erred by not dealing with the point.

It is a trite principle that it is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be onerous or oppressive as this is a matter of public policy: see Magodora and Others v Care International Zimbabwe SC24-14.

This Court must interpret the second agreement literally.

It can be deduced from the agreement that the respondent had to pay the full loan amount first before taking occupation of the mining claims. The respondent failed to do so and this resulted in a breach of the contract. Once the respondent failed to fulfil his end of the agreement, and a breach occurred, the agreement was terminated and the respondent would ordinarily not be entitled to recover his money.

However, for a wholesome resolution of this matter, it is in the interests of justice that the principle of equity be looked at as that was the basis of the court a quo's decision.

The scholar R.H. CHRISTIE, Business Law in Zimbabwe, 2nd Ed, Juta & Co Ltd…, provides that the principle of equity may be resorted to where there is incomplete performance of a contract. The principle is based on unjust enrichment.

The court, in Carlis v McCusker 1904 TS 917, observed that:

“In view of the well-known maxim of law, that no man should be allowed to enrich himself at the expense of another, this court would not permit a man who had verbally agreed to sell landed property, and had, on the faith of that agreement, received the whole or portion of the purchase price, to retain both the money and the land. It would, under such circumstances, come to the relief of the purchaser,”

See also Matipano v Gold Driven Inv (Pvt) Ltd SC225/12.

This principle is clearly discretionary and is applied by a court on the basis of the particular circumstances of a case which warrant the use of such a principle.

I would, however, venture to suggest that the principle of equity should be sparingly used as it has the effect of undermining the contract entered into between the parties.

In this case, the respondent paid a known sum of money to the appellant on the basis of the first agreement. The respondent never acquired any minerals from the appellant's mine. Although the first agreement was dissolved, the court a quo, in the exercise of its discretion, took into account that the second agreement did not have an operational clause to deal with what would happen if any of the parties breached the agreement.

In the first agreement, it was an agreed provision, that, in the event that the respondent failed to bring equipment to the mine he would be entitled to a refund of his money within six (6) months. The appellant, in its own plea, stated that it was an agreed provision that if there was failure to pay the debt it would settle the debt over a period of six months.

It seems to me that even though the second agreement did not have a provision for settlement between the parties, in the event that the respondent failed to fulfill his obligations, the court a quo was correct to exercise its discretion and be guided by the spirit of the provision in the first agreement. It was quite apparent that the second agreement flowed from the first agreement between the parties.

This is a matter where equity may properly be applied.

It would be unjust for the appellant to remain in possession of the US$89,000 which was paid to it by the respondent when the respondent himself did not get anything from the deal. The agreement between the parties was an investment on the part of the respondent that was going to jointly benefit both parties. The loan paid by the respondent was to be paid back through production on the mine.

Production did not happen.

Despite the respondent's breach of the agreement, justice will be met if the parties are returned to their status quo ante.

The appellant did not, either in its grounds or in argument, seek to challenge the application of discretion by the court a quo in applying the principle of equity in these circumstances.

Indeed, in my view, the appellant would have been hard pressed to make such a submission in view of the concession it had made that it had received the money.

It would appear, however, that an order for interest on the sum is not justified.

The respondent accepted, in his evidence, that he was in breach of the agreement between the parties. He did not fulfil his obligations which would have resulted in him occupying the mine and getting his money back.

He thus cannot benefit by being awarded interest in view of the fact that he did not comply with the terms of the agreement.

However, the special circumstance of the respondent justifies the approach by the court a quo.

The respondent's understanding of the English language was so bad that the court felt the need to intervene. It would be a travesty of justice to hold the respondent to the terms of the agreement in circumstances that clearly show that he did not grasp that he was obliged to pay the full amount before he could recover his money. This was in circumstances where the appellant not only retained the profits from the mining operations but also retained the respondent's money.

The court a quo did not err in finding that it was just and equitable for the appellant to return the respondent's loan of US$89,000. Indeed, it was clearly accepted by the appellant that it had received the money from the respondent. The court, however, erred in awarding interest on the sum at the prescribed rate when such interest was not justified where the court was applying principles of equity.

The appeal thus succeeds on this point.

With regards to costs, the respondent has successfully defended the appeal in the main and I thus find no reason why costs should not follow the cause.

In the result, it is accordingly ordered as follows:

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

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

“3. Plaintiff's claim, as against the 1st defendant, Big Valley Masters (Private) Limited, in the sum of US$89,000 is allowed.”

On 26 January 2017, this Court, in SC01-17, adjudicating over the parties' dispute, remitted the matter to the Labour Court (the court a quo) for a determination of the following issues:

“To determine, on the basis of specific provisions of the Works Council Agreement concluded in September 2010, and the minutes accompanying the Agreement, and having regard to sworn evidence from the signatories to the agreement, whether or not the salaries and benefits stipulated in that agreement were intended to apply to the appellants.”

After considering the parties' submissions, and evidence led, the court a quo dismissed the appellants' claim against the respondent. The court a quo held that the appellants failed to discharge the onus on them of proving that they were covered by the Works Council Agreement upon which their claim of salaries and benefits was founded.

This is an appeal against that judgment.

The appellants are 153 former employees of the respondent who were employed as security guards on fixed-term contracts renewable every three months.

The period of employment ranged from 2007 and 2008 up until January and April 2011 when their contracts expired by effluxion of time and were not renewed.

In July 2010, the respondent, 1,078 of its employees, and its workers' committee approached an arbitrator (Nasho) in a bid to negotiate the regularisation of the employees' contracts in line with the new multi-currency regime and to ascertain the salary arrears due to the respondent's employees.

Arbitrator Nasho ordered the payment of back-pay from 1 March 2009 to the date of the award, in line with the multi-currency system.

In accordance with that award, the parties concluded a Works Council Agreement, on 15 September 2010, which set the back pay due to all employees of the respondent and the salary structure for non-managerial employees from 1 January 2010 onwards. It was agreed that all employees across the board, for the period of 1 March 2009 to 31 December 2009, were to be paid a net salary of $500 per month.

Following this agreement, and in a different matter, the appellants challenged the termination of their employment on the basis that their contracts had become permanent upon repeated renewal.

A second arbitrator (Mugumisi) dismissed their claim of unfair dismissal on 4 April 2012. On appeal, the arbitral award was upheld by the Labour Court.

On 10 December 2012, following the dismissal of their claim by arbitrator Mugumisi, and as confirmed by the Labour Court, the appellants filed another claim for the payment of arrear salaries and benefits which was dealt with by the third arbitrator (Mambara) who awarded the payment of arrear salary and benefits, in accordance with the 2010 Works Council Agreement, from 1 January 2010 to the date when each claimants' contract of employment was terminated.

Dissatisfied by that decision, the respondent applied to the Labour Court for a review of the award. The Labour Court upheld the review on 12 September 2014 and dismissed the appellants' claim.

Irked by that decision, the appellants appealed to this Court which remitted the matter to the court a quo for a comprehensive analysis of whether the appellants were covered by the 2010 Works Council Agreement.

In making that order, the court noted that although both the arbitrator and the Labour Court, in its review proceedings, referred to the minutes and the agreement of September 2010, the relevant portions of the agreement were not reproduced.

Additionally, the court reflected that the Labour Court failed to call evidence from the signatories to the agreement to explain its provisions and clarify its scope of coverage.

It further did not proceed to consider the precise ambit of the agreement and its implications for the appellants' claim before the arbitrator.

As a result, it did not make a finding on this critical aspect of the matter despite noting some causal nexus between the Nasho award and the 2010 Agreement.

The court further reasoned that it appeared common cause that the present appellants were part of the 1,078 claimants who were beneficiaries to the Nasho award and that since the Works Council Agreement was made in September 2010, they would have a justifiable claim to the benefits accruing from that agreement. The court concluded as follows:

“In the circumstances, it seems just and equitable that this matter be remitted to the court a quo to clearly determine whether or not the scope of the 2010 Agreement extended to all of the respondent's employees - including the appellants in casu. This will not only serve to ensure that justice is attained but also to secure finality to the protracted and costly litigation between the parties.”

Hence the proceedings in the court a quo which are the subject of this appeal.

The remittal proceedings commenced with the appellants' Statement of Claim, to which the affidavit of Joseph Lungu, the first appellant, was attached.

Mr Lungu averred that the appellants were part of the 1,078 workers in whose favour the arbitral award by Nasho was made. In support of this position, Mr Lungu relied on a list attached to a memorandum which was addressed to one Mr Rwatirera on 5 September 2012.

The respondent's notice of opposition was supported by affidavits from different personnel in the respondent's employ.

The first deponent was Mr Rwatirera, a member of the respondent's Works Council that negotiated the September 2010 Works Council Agreement.

He averred that there was no list of the claimants who appeared before Arbitrator Nasho as none was furnished or attached to those arbitral proceedings. As such, he argued that the list produced by the appellants was tailor-made for the proceedings.

He thus, denied approving or signing the list produced by the appellants.

Mr Rwatirera further indicated that the employees who were covered by the 2010 Agreement were permanent, non-managerial employees and not fixed term contract employees since the latter's terms and conditions were regulated by their individual contracts of employment and were not subject to any Works Council negotiations nor Workers Committee representation.

He also averred, that, it was generally accepted by the respondent, the then Worker's Committee representatives, the general body of the respondent's permanent employees, and most of the fixed-term contract employees, that, fixed term contract employees were not within the scope of the arbitral proceedings before Nasho and the subsequent Agreement of 2010.

He also asked the court to note that the appellants signed fixed term contracts of employment providing for a salary of $250 per month well after the September 2010 Agreement was concluded.

The second deponent, Mr Mugabe, the chairman of the Workers Committee and a member of the Works Council in September 2010, attested that the salaries and benefits of the Work's Council Agreement were intended to apply to permanent employees in Grades 1 to Level 2 and not to fixed-term contract employees.

The third deponent, E Makaha, a former vice-chairman of the Worker's Committee and a member of the Works Council confirmed Mr Mugabe's averments.

The fourth deponent was Mr Mavengano, the former Vice Secretary of the Workers Committee and a member of the Works Council who authored the list dated 12 September 2012.

He disputed the authenticity of the list produced by the appellants.

The fifth and sixth deponents, A. Saburi and T. Hungwe, respectively, who were management representatives in the Works Council Agreement, averred that the Worker's Committee did not, at any time, represent fixed-term contract employees in negotiating their salaries and benefits.

In response, the first appellant disputed the respondent's averments in their totality.

At the hearing, the respondent took a point in limine that the founding affidavit of Mr Lungu, was improperly before the court as he was not a signatory to the Works Council Agreement of 2010 as required by the remittal order.

To the contrary, counsel for the appellants argued, that the order in SC01-17, which remitted the matter to the court a quo, was not restrictive, but left it open for the court to receive any other sworn evidence apart from that of signatories to the Works Council Agreement.

The court a quo upheld the preliminary objection and expunged the affidavit of the first appellant from the record.

Thereafter, two witnesses testified for the appellants.

The first witness, Mr Muronzi, averred that the applicants participated in the proceedings before arbitrator Nasho and contributed $2 towards arbitration costs. However, he stated that he was not a member of the Workers Committee and was not a signatory to the September 2010 Agreement and was cognisant of patent irregularities on the appellants' list.

The second witness, Mr Mushayabasa averred that he was on a specific term contract and was one of the employees who contributed $2 for arbitration costs before Arbitrator Nasho following an address by one Ziki, a member of the then Workers Committee.

The respondent led evidence through Mr Rwatirera, who, apart from reiterating the averments in his founding affidavit, testified that it had always been the respondent's practice that fixed term employees were excluded from the Works Council.

Work's Council members were voted into office by permanent members of staff only.

He also testified that the Workers Committee only represented permanent members of staff.

He further confirmed the fact that the applicants signed further contracts of employment, with a different salary from that of permanent employees, long after the September 2010 Works Council Agreement was concluded.

He reiterated that all the employees on fixed-term contracts were not part of the Nasho proceedings.

The court a quo dealt with the issue of whether or not the appellants had discharged the onus on them of proving that they were included in the September 2010 Works Council Agreement.

The court had regard to the specific provisions of the September 2010 Works Council Agreement, the minutes accompanying that Agreement, and sworn evidence from the signatories to the Agreement.

The relevant clause on which the appellants base their claim provides as follows:

“The Works Council resolved to recommend to the Board that;

(i) A net salary of $500 per month be paid to all employees across the board for the period 01 March 2009 to 31 December 2009. (This is inclusive of transport allowance of $50 per month and rental support of $200 per month).

(ii) A thirteenth cheque should be paid to all employees for the same period.”…,.

Regarding the September 2010 Works Council Agreement, the court a quo found, that, the reference to “all employees” in the agreement was not determinative of whether or not the applicants were entitled to the salaries and benefits stipulated under that agreement. This was because the respondent had several employees ranging from fixed-term, permanent term, to those contracted for casual work or seasonal work.

Accordingly, it posited that the use of the term “all employees” was vague and it was unable to decide which of the meanings applied by both parties was correct.

The court then held that the provisions of the September 2010 Works Council Agreement did not assist the appellants to discharge their onus.

Concerning the minutes accompanying the Agreement, the court a quo found, that, they were no different from the Works Council Resolutions in that there was no indication whether or not the mentioned employees were on fixed term or permanent employment.

Accordingly, it was unable to decide whether the appellants were included in the term 'employees' as it appeared in the minutes. Therefore, the court ruled that the minutes of the Works Council meeting did not assist the appellants to discharge the onus on them.

As regards the sworn evidence from the signatories to the Agreement, the court noted that the two witnesses who testified for the appellants were not signatories to the agreement or members of the Works Council.

It proceeded to disregard their evidence for non-compliance with clause 3.1 of the order for remittal.

The court a quo further found, that, in any event, the evidence before it was that of sworn affidavits of members of the Works Council who were present when the agreement was reached stating that the appellants were not covered by the agreement.

Further, the authenticity of the list of names relied upon by the appellants was put in issue.

After analysing the list tendered by the appellants, the court remarked, that, on a balance of probabilities, the appellants names were interposed on an existing list. It opined that the list on which the appellants names appeared might have been a combination of documents that were prepared for different purposes.

In the result, it held that the document could not be taken as proof of the people who were involved in the arbitration proceedings before Arbitrator Nasho.

The court concluded that the appellants had not been able to discharge the onus of proving that the salaries and benefits stipulated in the September 2010 Works Council Agreement were intended to apply to them.

It then dismissed the appellants' claim with costs.

This decision prompted the appellants to note the present appeal on the following grounds:

“1. The court a quo erred in coming to the conclusion that the founding affidavit of Joseph Lungu was not properly before it and accordingly striking if off and in consigning the viva voce evidence given on behalf of the appellants to the same fate.

2. A fortiori, the court a quo erred in renouncing the essence of the responsibility that had been placed upon its shoulders by the Supreme Court.

3. The court a quo seriously misdirected itself, such misdirection amounting to an error in law in not requiring respondent to account for the 1,079 claimants who were before Arbitrator Nasho and in not requiring it to show how it could be said the appellants were not part of those claimants, all the circumstances of the matter (sic).

4. Having found that the agreement on which appellants sued, and the minutes giving birth to it related and made reference to 'all employees', the court a quo erred in coming to the conclusion that such reference was not determinative of the issue and that it still left room for the conclusion that the appellants were not contemplated by the words 'all employees'.

5. The court a quo erred in not coming to the conclusion that though appellants could not lead the evidence of the signatories to the agreement and that for reasons that were beyond them, all the objective evidence which the Supreme Court had related to and directed be taken into account led to the inexorable conclusion that appellants were covered by the agreement.

6. The court a quo erred in not coming to the conclusion that appellants were on the list of employees which formed part of the Supreme Court record and which respondent had dishonestly tried to amend after the fact that there had accordingly never been a dispute as to their inclusion in the agreement.

7. The court a quo seriously misdirected itself, such misdirection amounting to an error in law in not concluding that the discrepancies on the numbers of the employees appearing on the lists were explicable on the basis that some of the employees who had made their contributions had not appeared in the Nasho list.”

Counsel for the appellants argued, that, the court a quo misdirected itself in ignoring the fact that the only list that contained the names of the 1,079 employees that were covered by the September 2010 Works Council Agreement was the list provided by the appellants.

He submitted that the failure by the respondent to produce the original list of 1,079 employees, covered by that Agreement that it relied on, but, instead, attaching a list with 237 employees indicated that the only list of employees that could be relied on was that produced by the appellants.

He further submitted, that, since the respondent had not disputed the authenticity of the list of 1,079 employees produced by the appellants in this Court when the matter initially came on appeal, it could not seek to do so during remittal proceedings.

Counsel for the appellants also argued that the phrase “all employees” as used in the resolution of the Works Council Meeting, and the Minutes that followed, was unambiguous and applied to all the respondent's employees without discrimination.

This, he submitted, was supported by the fact, that, during the dollarisation period, all the respondent's employees were getting allowances instead of salaries and the object of the arbitration proceedings, held before Arbitrator Nasho, was to discuss the regularisation of all employees' contracts of employment regardless of whether they were permanent or on fixed term contracts.

As such, he contended that there was no justifiable basis upon which the respondent could exclude the appellants.

Further, that regard being had to section 5 of the Labour Court Act [Chapter 28:01], which provides for the protection of employees against discrimination, there was no justification in distinguishing the salary payable to fixed term employees and permanent term employees in the regularisation process.

Counsel for the appellants also submitted that the court a quo erred in taking a rigid approach in resolving the matter leading it to irregularly striking out part of the appellants' evidence.

He submitted that the fact that the evidence was unnecessary does not mean that the appellants did not have a valid claim.

He also submitted, that, the court a quo should not have found that the list of 1,079 employees produced by the appellants was doctored in the absence of expert evidence to that effect.

He also submitted that the Works Council minutes refer to “all employees”.

There was no application to rectify the minutes and it leads to one conclusion - that they applied to all employees.

He further contended, that, there was uncontroverted evidence that the appellants contributed money towards the costs of the arbitration.

Conversely, counsel for the respondent submitted, that, the court a quo could not be faulted in finding that the appellants had failed to discharge the onus upon them of proving that they were included as beneficiaries in terms of the September 2010 Works Council Agreement.

He contended that the onus was on the appellants to prove that they were covered by the Agreement.

He submitted that the court a quo was correct in restricting itself to the parameters set by this Court when it remitted the matter, hence, part of the appellants' evidence was struck out.

It was also his argument that the court a quo had made a factual finding that the list of employees provided by the appellants had patent irregularities and that such factual finding could not be upset by this Court unless the appellants established that such a finding was grossly unreasonable.

Furthermore, he submitted that the court a quo, having found that the text used in the Works Council Meeting, and the subsequent Minutes, did not help the appellants' case, correctly determined that no evidence had been put before it by the appellants to prove that they were part of the 1,079 employees who appeared before Arbitrator Nasho.

Although the appellants have raised several grounds of appeal, I take the view that the appeal can be determined on the following issue:

In determining this issue, it is necessary to first consider the import of the order in SC01-17 remitting the matter to the court a quo.

That order enjoined the court a quo to determine whether or not the salaries and benefits stipulated in the September 2010 Works Council Agreement of 2010 were intended to apply to the appellants; and, if so, the quantum thereof. Put differently, the court a quo had to determine if the appellants were included in that Agreement.

An examination of the court a quo's ruling reflects that the court a quo did not make this finding.

Having considered the specific provisions of the September 2010 Works Council Agreement and the Minutes accompanying the Agreement, as directed by this Court under SC01-17, the court a quo remarked that it was unable to decide whether or not the appellants were included under the agreement.

The court a quo then invoked the principle of onus to the effect that the appellants failed to prove that they were covered by the 2010 agreement.

The court a quo's decision was premised on the inability to resolve the issues in dispute.

I regurgitate the relevant portions of the court a quo's judgment:

“(1) The specific provisions of the Works Council Agreement of September 2010

In our view, the text of the Works Council meeting resolutions of September 2010 does not resolve the issue.

It therefore follows that provisions of the Works Council Agreement of 2010 does not help the applicants to discharge the onus upon them.

The minutes of the Works Council meeting of 16 September 2010 leaves the court in the same position as after considering the Works Council Resolutions of September 2010.

The minutes of the Works Council meeting of 16 September 2010 therefore do not assist the Applicants to discharge the onus upon them.”…,.

It follows that the court a quo failed to make a determination on the pertinent issue upon which the matter was remitted.

The court a quo's inability to make a finding is a serious misdirection. It is tantamount to not making a decision at all.

In PG Industries (Zimbabwe) Limited v Bvekerwa & Ors SC53-16…, the court opined on the effect of a court's failure to determine an issue in dispute as follows:

“The position is settled, that, where there is a dispute on a question, be it on a question of fact or point of law, there must be a judicial decision on the issue in dispute. The failure to resolve the dispute vitiates the order given at the end of the proceedings.

Although the learned judge may have considered the question as to whether or not there was an irregularity in the citation of the employer, there was no determination on that issue. In the circumstances, this amounts to an omission to consider and give reasons, which is a gross irregularity.”…,.

In casu, the court a quo, whilst accepting the parties' dispute regarding the import of the September 2010 Works Council Agreement and the minutes thereto, did not make a finding on whether in light of this evidence, the appellants were included in the September 2010 Agreement.

The court could not have failed to determine this crucial issue as the relevant facts upon which it could reach an objective decision were before it.

The irregularity is apparent in the court a quo's assessment of the specific provisions of the September 2010 Works Council Agreement and the minutes accompanying that Agreement.

The finding by the court a quo, that the appellants failed to discharge the onus placed on them to prove that they were covered by the 2010 Agreement did not dispose of the matter. This is so because the question remained whether or not the appellants were covered by the Agreement regard being had to the evidence placed before the court a quo.

This was not an issue the court a quo could ignore. The court was obliged to making a finding.

It failed to do so.

Having found that the court a quo grossly misdirected itself, in failing to make a clear cut determination, the pertinent question that arises is whether the subsequent finding by the court, that the appellants failed to discharge the onus cast upon them, to prove that they were covered by the September 2010 Agreement, was correct.

In Pillay v Krishna & Another 1946 AD 946…, the court made the following remarks regarding the burden of proof in a matter:

“…, the duty which is cast on the particular litigant, in order to be successful of finally satisfying the Court that he is entitled to succeed on his claim, or defence, as the case may be, and not in the sense merely of his duty to adduce evidence to combat a prima facie case made by his opponent.

The second is that, where there are several and distinct issues, for instance a claim and a special defence, then, there are several and distinct burdens of proof, which have nothing to do with each other, save of course that the second will not arise until the first has been discharged.

The third point is that the onus, in the sense in which I use the word, can never shift from the party upon whom it originally rested.

It may have been completely discharged once and for all, not by any evidence which he has led, but by some admission made by his opponent on the pleadings (or even during the course of the case) so that he can never be asked to do anything more in regard thereto; but the onus which then rests upon his opponent is not one which has been transferred to him: it is an entirely different onus; namely, the onus of establishing any special defence which he may have.”…,.

From these remarks, one can note, that, the burden of proof is the obligation upon a litigant to establish facts which persuade the court to rule in his or her favour.

It invariably involves a court's weighing of an applicant's claim together with the probabilities which arise from the circumstances of the case to decide whether he is entitled to the relief sought.

Therefore, the question of whether or not a party has discharged the onus upon it cannot be determined by a court's indecision. This is particularly so in an instance where the court can evaluate the facts and evidence and decide which version is more likely than not to be true.

It is on this basis that I have concluded that the court a quo did not correctly apply the principle of onus of proof to the matter before it.

Counsel for the appellants urged the court to consider, that, on a holistic approach to the matter, there was sufficient material for this court to make a finding that the appellants were part of the September 2010 Works Council Agreement.

That would be tantamount to asking this Court to be a court of first and last instance.

This Court cannot do so for the reason that the general position of law is that for the Supreme Court to consider a case, a lower court or tribunal must have made a relevant order. Its duty is to determine whether those decisions should be confirmed, changed, or reversed. This is because the Supreme Court exercises appellate jurisdiction which is conferred on it by sections 9 and 21 of the Supreme Court Act [Chapter 7:13] and section 169 of the Constitution of Zimbabwe, 2013.

The undesirability of having an Appellate Court sitting as a court of first instance was put across in Dormehl v Minister of Justice and Others [2000] ZACC 4; 2000 (2) SA 825, where the court dealing with issues of direct access to the Constitutional Court of South Africa stated:

“(b) It is not ordinarily in the interests of justice for a court to sit as a court of first and last instance, without there being any possibility of an appeal against its decisions…”

In any event, there is need for the leading of evidence which the court a quo is best suited to do as is provided in terms of sections 89(2)(a)(i) and 89(5) of the Labour Act [Chapter 28:01].

The court a quo's failure to determine whether, in terms of the specific provisions of the September 2010 Works Council Agreement and the Minutes accompanying the Agreement, the appellants were entitled to the benefits therein, constitutes a material misdirection justifying interference by this court.

It is also a matter which the court a quo is in as good a position to address, thus, a remittal is appropriate in the circumstances.

The matter would be remitted to be heard before a single judge who shall not be any of the judges who determined the matter previously.

In the result, the appeal succeeds in respect of Ground 2 and is dismissed in respect of the rest of the grounds. It would be fair, in the circumstances of this case, that each party bears its own costs.

It is accordingly ordered as follows:

(1) The appeal be and is hereby allowed.

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

(3) The matter be and is hereby remitted to the court a quo, before a different Judge, for a proper determination of whether, on the basis of specific provisions of the Works Council Agreement concluded in September 2010, and the minutes accompanying the Agreement, the salaries and benefits stipulated in that agreement were intended to apply to the appellants.

(4) If the answer is in the affirmative, to quantify the salary and benefits due to each appellant in terms of the Agreement, from 1 March 2009 to the respective date of termination of each appellant's contract of employment, subject to the deduction of such payments as each appellant may have received by way of salary and benefits during the relevant period.

(5) Each party shall bear its own costs.

This is an appeal against part of the judgment of the Labour Court (the court a quo) handed down on 26 January 2018. The appeal is against that part of the judgment which upheld the arbitrator's award granting the respondent's members an 11 percent wage increase.

The facts giving rise to this appeal are by and large common cause. The undisputed facts are that the appellant is the owner of a group of companies whereas the respondent is a trade union representing employees of Gold Star, a trading division of the appellant.

The parties deadlocked during collective bargaining negotiations for wage increases for the period 1 January 2011 to 30 June 2011. The respondent was claiming a basic salary increase from US$157 to US$180 per month.

It did not claim any increase for housing allowance on behalf of its members.

On the other hand, the appellant objected to the respondent's members being awarded any increase pleading economic hardship.

Both parties proffered evidence before the arbitrator. Having carefully considered the evidence before him, he issued the following order:

“I herein award as follows:

(a) Basic salary is increased from US$157, by 11 percent, to US$174.27 per month for the lowest paid employee.

(b) Housing allowance is increased from US$50, by 11 percent, to US$56.50.

(c) The total award per lowest paid employee is US$230.77.”

In coming up with that award, the arbitrator took into account the employees basic needs and weighed them against the employer's economic hardship.

In exercising his discretion, he came to the conclusion, that, although the company was in economic dire straits, with proper management and re-alignment of its operations, it could afford an increase of 11 percent across the board for both wages and housing allowances.

This is what the arbitrator had to say at p2 of his award:

“The 2011 financial statement also showed a loss of US$16,375,557. Clearly, the fortunes of the company are not that bright. The cost of employment seems to be on the higher side, but, it appears the management salaries chew also a huge chunk. Those are some of (the) things that also need alignment. The other costs were for was sugar (sic) production which seems to be on the higher side.

However, the cost should be recovered from sale through proper pricing.”

In assessing the basic needs of the employees, the arbitrator accepted and took into account that it was common cause that rentals in the high density suburbs were pegged at US$60 to US$80 per month. He also found, that, it was common cause that groceries amounted to US$100 per month per person.

The arbitrator also took into account the comparative evidence placed before him, that employees in related sub-sectors earned a total of between US$250 to US$281 per month.

In conclusion, he remarked that…,.:

“For the avoidance of doubt, I have taken into consideration the harsh environment the employees are in and the company…,. However, had the company been performing, I would have awarded a US$300 basic salary increase and housing allowance of over US$100 - but that would be to bury the company.”

Aggrieved by the arbitrator's award, the appellant appealed to the court a quo with partial success.

Its complaints were that the arbitrator erred in relying on financial statements of the entire Group of companies instead of only on those of Gold Star.

It further complained that the arbitrator awarded the employees an increase in housing allowance which they had not asked for.

The court a quo upheld the appellant's complaint that the arbitrator had misdirected himself in awarding an increase in housing allowances which no one had asked for. It however dismissed the appellant's appeal against the award on wage increases of 11 percent.

The appellant's grounds of appeal raise a single issue for determination by this Court.

The sole issue for determination is whether or not the court a quo erred in upholding part of the award granting the employees an 11 percent salary increase.

Whether or not the court a quo erred in upholding the arbitrator's award, of an 11 percent wage increase, is a question of fact.

It is trite and a matter of elementary law, that, for the appellant to succeed, it must prove, on a balance of probabilities, that, the award was so irrational in its defiance of logic such that no arbitrator properly exercising his or her discretion would have made such an award: see Hama v National Railways of Zimbabwe 1996 (1) ZLR 64 (S) and Sable Chemical Industries Ltd v Easterbrook 2010 (2) ZLR 342 (S).

The appellant's appeal is premised on the well-known principle of Company Law, to the effect that a company has a separate and distinct existence from other personalities as enunciated in the familiar case of Salomon v Salomon & Co Ltd [1897] AC 22 (HL).

In that case, LORD HALSBURY LC had this to say:

“It seems to me impossible to dispute, that, once a company is legally incorporated it must be treated like any other independent person with its rights and liabilities appropriate to itself: and that the motives of those who took part in the promotion of the company are absolutely irrelevant in discussing what those rights and liabilities are.”

The principle of law laid down in Salomon v Salomon & Co Ltd [1897] AC 22 (HL) has found wide recognition in our jurisdiction in a plethora of cases.

In Deputy Sheriff Harare v Trinpac Investments (Pvt) Ltd & Anor HH121–11, PATEL J…, restated the legal principle as follows:

“The cardinal principle of Company Law, as enunciated in Salomon v Salomon & Co Ltd [1897] AC 22 (HL) and Dadoo Ltd & Others v Krugersdop Municipal Council 1920 AD 530 at 550 is that a company is a separate entity distinct from its members.”

Applying the timeless dictum laid down in Salomon v Salomon & Co Ltd [1897] AC 22 (HL), it is plain that entities comprising a Group of companies maintain their separate and distinct legal personalities although they fall under one umbrella or legal owner.

Latching onto that doctrine, learned counsel for the appellant argued, that, as the appellant had a separate and distinct legal personality, the arbitrator erred in having regard to the financial statements of the whole Group. He ought to have restricted himself to the financial statements of Gold Star; so the argument goes.

The rule in Salomon v Salomon & Co Ltd [1897] AC 22 (HL) is however not cast in stone.

It is only a general rule subject to exceptions, particularly in labour matters, where the courts and tribunals are enjoined to dispense equitable social justice.

In DHN Food Distributors Ltd v London Borough of Tower Hamlets [1976] 3 All ER 462 (CA)…, the court observed that:

“PROFESSOR GOWER, in his book on Company Law, says:

'There is evidence of a general tendency to ignore the separate legal entities of various companies within a Group and to look, instead, at the economic entity of the whole group.'

This is especially the case when the parent company owns all the shares of the subsidiaries, so much so that it can control every movement of the subsidiaries. These subsidiaries are bound hand and foot to the parent company and must just do what the parent company says….,.

This Group is virtually the same as a partnership in which all the three companies should, for present purposes, be treated as one and the parent company should be treated as that one.”

The principle that emerges quite clearly from DHN Food Distributors Ltd v London Borough of Tower Hamlets [1976] 3 All ER 462 (CA), is that, in appropriate cases involving Group or holding companies and their subsidiaries, the court or tribunal is not strictly bound by the dictates of the doctrine of separate corporate legal personality.

This enables them to look at the economic outlook of the whole Group in order to do real and substantial justice between the parties as the economic perspective of the Group and its subsidiaries may be intricately interwoven and difficult to unravel unless holistically considered.

It is ironic, that, the appellant is objecting to being treated as a partner of Gold Star when it sowed the seeds of implied partnership by intervening on behalf of Gold Star and litigating on its behalf. By so doing, it became the employer, in partnership with Gold Star, which was not a party to the proceedings.

At p17 of the record of proceedings, learned counsel for the appellant acknowledged that the appellant was legally obliged to produce the questioned statements in terms of section 76(1) of the Labour Act.

The section provides as follows:

“76 Duty of full disclosure when financial incapacity alleged

(1) When any party to the negotiation of a collective bargaining agreement alleges financial incapacity as a ground for his inability to agree to any terms or conditions, or to any alteration of any terms or conditions thereof, it shall be the duty of such party to make full disclosure of his financial position, duly supported by all relevant accounting papers and documents, to the other party.”

It is common cause, that, it is the appellant that was pleading financial incapacity to pay the increased wages claimed by the respondent.

Thus, by virtue of section 76(1) of the Labour Act, it was obliged to produce its own financial statements to justify financial incapacity to pay the amounts claimed.

Gold Star was not obliged to produce any financial statements as it was not a party to the proceedings and had not pleaded incapacity to pay the amounts claimed.

In any case, at p12 of the record of proceedings, the appellant makes it clear that there were no separate financial statements for Gold Star. Learned counsel for the appellant submitted that:

“There is need for full disclosure; we have consolidated accounts for the whole Group it does not make individual company (statements) financials.”

That statement puts this case squarely within the ambit of DHN Food Distributors Ltd v London Borough of Tower Hamlets [1976] 3 All ER 462 (CA). This is for the simple, but good, reason that the appellant was in absolute control of the Group's finances to the exclusion of its subsidiaries - including Gold Star.

This explains why it litigated in its capacity as the employer, without joining Gold Star, which it now alleges is the real employer separate and distinct from it.

Had it been so, then the appellant would undoubtedly have joined Gold Star to the proceedings considering that it was ably represented by counsel at every stage of the protracted proceedings.

This it did not do, thereby exposing itself as the real employer. Had it not been the real employer, it could not have fought Gold Star's battles in its absence and without its mandate.

Section 3(1) of the Labour Act only applies to employers and employees except those excluded under section(3). The appellant, not being one of those excluded by the Labour Act, it is fully bound by the Labour Act as the employer.

Thus, the arbitrator's award binds the appellant, and not Gold Star, which was not a party to the proceedings.

That being the case, we find no merit in the appellant's protestations that the arbitrator improperly pierced the corporate veil.

We come to that conclusion because the appellant appeared before the arbitrator and argued the case in its capacity as the employer and not a proxy of Gold Star; thus, the arbitrator correctly treated it as such.

The appellant's reliance on the cases of Mkombachoto v Commercial Bank of Zimbabwe & Anor 2002 (1) ZLR 21; Sheriff & Ors v Dube & Ors 2014 (2) ZLR 688…, and Pacific Ltd v Lubner Controlling Investments (Pty) Ltd & Ors 1993 (2) SA 784 (C) is misplaced as the award had nothing to do with ordering the appellant to pay anyone's debts or piercing the corporate veil.

The appellant was simply being ordered to pay, in its personal capacity, as the employer.

We now turn to consider whether the arbitrator's award was irrational, as alleged by the appellant, or at all.

The appeal is premised on the argument that the award is irrational in that it was made in circumstances where the appellant was in financial distress and in no capacity to pay the salary increase of 11 percent as ordered by the arbitrator.

On the other hand, the respondent countered, that, the appellant was obliged to pay a decent living wage to its employees.

In argument, it was submitted, that, Zimbabwe, having ratified the United Nations instrument on the Universal Declaration of Human Rights 1948, it was bound by its provisions.

It is pertinent to note, that, Zimbabwe has not ratified this Universal Declaration of Human Rights. However, it is an instrument that is universally recognised and applied in this jurisdiction.

Article 23(3) of the Universal Declaration of Human Rights 1948 states that:

“Every person who works has a right to just and favourable remuneration ensuring for himself and herself an existence worthy of human dignity, and supplement, if necessary, by other means of social protection.”

Further reliance was placed on Article 11(1) of the International Covenant on Economic, Social and Cultural Rights 1966, which provides that:

“The States Parties to the present Covenant recognise the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing, and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.”

The principles set out in the two instruments are of fundamental universal importance bidding the judiciary and tribunals to uphold and preserve human integrity and the dignity of workers.

Although acknowledging that the respondents are entitled to a living wage, the arbitrator found it imperative to balance the employees interests against the employer's capacity to pay the increased wages.

As alluded to elsewhere in this judgment, the arbitrator made a careful analysis of the facts before him and arrived at a delicate balance of the two competing interests before him. He finally came to the conclusion, that, although the appellant had made a loss, its employees were entitled to a modest 11 percent wage increase.

Comparative evidence proferred by the respondent shows that, even after the increase, its members were some of the least paid in the industry.

It appears that the appellant is labouring under a serious mis-apprehension that an employer who makes a loss cannot be ordered to pay its employees any increase in wages.

The mere fact that an employer is operating at a loss is no licence for it to pay slave wages not worthy of human dignity.

We are of the considered view, that, an employer operating at a loss may still be ordered to pay a reasonable wage increase to its employees to avoid them falling into destitution and loss of human dignity.

An employer who cannot pay decent wages pertaining to the industry has no business continuing to operate subjecting its employees to slave wages.

The appellant's plea of incapacity to pay lacks merit in circumstances where it was unable to rebut the respondent's allegation that its management were being paid huge salaries. It also failed to rebut the evidence to the effect that it could afford the increase if it were to shed excess labour in the form of casual labour.

It is also ironic that the appellant accuses the arbitrator of irrationality by suggesting that one of its subsidiaries, Country Choice, which made a profit, could prop up Gold Star. This is because Country Choice was already financially assisting another distressed unit of the respondent in Bulawayo.

This prompted the Arbitrator to remark, at p149 of the record of proceedings, that:

“The respondent submitted, that, its business is facing viability challenges since the inception of the US dollar in 2009 to the effect that its Bulawayo Plant was forced to close. The Bulawayo Plant's financial burdens are being incurred by the Harare Plant and Country Choice Foods….,.”

There is therefore no irrationality in the suggestion that Country Choice Foods could assist its distressed sister company financially.

In the result, we come to the conclusion, that, there is absolutely no merit in this appeal. Costs will follow the result.

It is accordingly ordered that:

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

2. The appellant bears costs of the appeal.

This is an appeal against the entire judgment of the High Court, dated 4 September 2019, in which the court a quo granted a declaratur and consequential relief sought by the respondents against the appellants and dismissed the application for a declaratur sought by the appellants against the respondents.

The order of the court a quo erroneously confirmed the terms of a provisional order of the initial urgent chamber application that had, by consent of the parties, been removed from the roll of urgent chamber matters, on 8 October 2018, and enlisted on the opposed roll. The provisional order was substituted by an “amended draft order” filed together with the respondents answering affidavits and heads of argument on 2 November 2018.

The erroneous order was, with the consent of the parties, corrected by this Court in terms of section 22(1)(a) of the Supreme Court Act [Chapter 7:13] in Civil Appeal No. SC527/2019, which was specially lodged by the respondents for that purpose and heard just before the present appeal.

The corrected order of the court a quo, therefore forms the basis of the present appeal.

The appeal concerns a church dispute between two formations for the control and leadership of the Apostolic Faith Mission in Zimbabwe (the AFM or the church).

The appealed judgment is a consolidation of two applications that were filed separately by the parties.

The first application, HC9149/18, was filed by the first five respondents (Apostolic Faith Mission in Zimbabwe, Aspher Madziyire, Amon Madawo, Munyaradzi Shumba and Tawanda Nyambirai) against the seven hominal appellants (Cossam Chiangwa, Amon Chinyemba, Nathan Nhira, Shepherd Sebata, Donard Mdoni, Arthur Nhamburo and M. Mashumba) on 4 October 2018; while the second application, HC179/19, was filed by the first five appellants (Cossam Chiangwa, Amon Chinyemba, Nathan Nhira, Shepherd Sebata and Apostolic Faith Mission in Zimbabwe) against the second (Aspher Madziyire), third (Amon Madawo), sixth (Clever Mupakaidzwa), seventh (Briton Tembo) and eighth (Christopher Chembere) respondents on 10 January 2019.

In the first application, the respondents sought the nullification of a meeting held by the appellants on 22 September 2018, and all subsequent acts flowing from it while in the second application the appellants sought recognition as the duly elected office bearers of the church and consequential relief.

The High Court granted the first application and dismissed the second, with costs.

The church is a universitas with a written Constitution and consequent regulations, which inscribe its foundational values, confession of faith, mission and governance structures and reposes the power to sue and be sued in its national office bearers in clauses 1.2, 1.3, 1.4 1.4. 6(f) and 12.4.1, respectively.

The dominant protagonists in the two applications were the second respondent (Aspher Madziyire) and the first appellant (Cossam Chiangwa), respectively, who were elected President and Deputy President of the church at the triennial elections in April 2015. The third (Amon Madawo) and fourth (Munyaradzi Shumba) respondents were elected, at the same elections, as General Secretary and National Administrator.

Between August 2015 and 15 September 2018, the Church, led by the Apostolic Council and Workers Council, conducted a Constitutional Review Process (CRP) through a Constitutional Review Committee (CRC) chaired by the fifth respondent (Tawanda Nyambirai), a co-opted member of the Apostolic Council.

The Constitutional Review Process (CRP) was designed to address acute electoral, financial, and governance shortcomings through the amendment of the Constitution and geared to deliver free, fair and credible church elections; strengthen accountability and transparency; and engender parity and equity in the conditions of service of the clergy and development programs of the church in both rural and urban areas.

The Constitutional Review Process (CRP) culminated in the Extraordinary General Meeting (EGM) of the Workers Council of 10 February 2018, which resolved to hold the triennial Provincial and Workers Council elections, due on 28 April 2018, after “the Workers Council considers, and, if deemed fit, passes, with or without amendment, the proposed amendments to the Constitution of the Apostolic Faith Mission in Zimbabwe in terms of the attached draft” at its scheduled meeting of 28 April 2018.

The meeting of 28 April 2018 was terminated unceremoniously without resolving the proposed resolution.

Tonderai Mathende took the Church, the first (Apostolic Faith Mission in Zimbabwe), second (Aspher Madziyire) and fifth (Tawanda Nyambirai) respondents and the first appellant (Cossam Chiangwa) to court under HC4756/18 and obtained an order compelling the 2015 office bearers to reconvene and conclude the aborted Workers Council meeting of 28 April 2018.

By a letter dated 31 July 2018, the second respondent (Aspher Madziyire) called for a Workers Council Meeting to be held on 15 September 2018 in compliance with the court order issued under HC4756/18.

On 15 September 2018, the Workers Council met and considered the proposed Constitutional amendments and “accepted” them subject to the suspension of all the provisions, except for the provisions relating to the conduct of elections, in order to give other church members an opportunity to propose further amendments to the amendments.

The resolution was carried by 2,021 votes, inclusive of the appellants votes, against 35, with no abstentions.

The optimum number of councillors supplied by the respondents was 3,475 councilors against 2,056 provided by the appellants.

On 21 September 2018, the Apostolic Council met to consider the dates and rules for the impending triennial elections.

The provincial elections were to be held on 29 September and 3 October 2018, while the national elections would be on 3 November 2018.

The first appellant (Cossam Chiangwa) told the meeting that “he would go his own way because he did not accept the resolution that was passed by the Workers Council on 15 September 2015.”

Whereupon, he served written notice, dated 20 September 2018, and co-signed by all the appellants (Cossam Chiangwa, Amon Chinyemba, Nathan Nhira, Apostolic Faith Mission in Zimbabwe, Donard Mdoni, Arthur Nhamburo and M. Mashumba), except the fourth (Shepherd Sebata), on his fellow national office bearers of the meeting of 22 September 2018.

Paragraph 2 of the notice implored the targeted audience to:

“Please note that this is a National Workers Council of all those councilors who strongly feel the adoption of the DRAFT resulted in the formation of a totally different church and is in itself a departure from the church that they have always cherished and loved. It is, therefore, a National Workers Council of those councilors who would like to remain in the AFM in Zimbabwe Church which is governed by the old Constitution which the 15th September National Workers Council attempted to repeal.”…,.

The meeting of 22 September 2018, was purportedly attended by 2,056 councillors, comprised of 1,562 delegates and 567 pastors from 513 assemblies with apologies from 137 assemblies.

The attendees ignored the cease and desist call from the second respondent (Aspher Madziyire).

The meeting, inter alia, reviewed and nullified the resolution of 15 September 2018, and, by a total 1,557 affirmative votes, dismissed the serving national bearers, other than the first appellant (Cossam Chiangwa), arrogated to themselves the power to conduct triennial elections on 6, 13 and 20 October 2018 and incited the members to revolt against the defrocked office bearers.

On 25 September 2018, the Apostolic Council abandoned the saved electoral amendments because they were in complete dissonance with the preserved governance structures of the amended Constitution.

On 26 September 2018, the appellants (Cossam Chiangwa, Amon Chinyemba, Nathan Nhira, Shepherd Sebata, Apostolic Faith Mission in Zimbabwe, Donard Mdoni, Arthur Nhamburo and M. Mashumba) spurned the cease and desist order and call to return to the mainstream fold issued by the third respondent (Amon Madawo).

They appointed their own 26 provincial overseers and the fourth appellant (Shepherd Sebata) as the National Administrator to whom church funds were to be remitted.

They also urged all church members to ignore the triennial dates set by the Apostolic Council.

On 27 September 2018, the appellants were suspended without pay and benefits and subsequently charged with participating in an illegal meeting and formenting rebellion, disharmony, confusion, destabilization, disorder, and disturbances against the church; forming a splinter group and usurping the powers of the Apostolic Council and the other office bearers in violation of clauses 1.4.2 and 1.4.6 of the Constitution.

They snubbed the charges and notices of hearing, and were dismissed from their official positions on 15 October 2018 with effect from their respective dates of suspension.

They refused to vacate church premises and surrender church assets in their possession or under their control.

They were permanently replaced as office bearers at the national elections held by the respondents (Apostolic Faith Mission in Zimbabwe, Aspher Madziyire, Amon Madawo, Munyaradzi Shumba, Tawanda Nyambirai, Clever Mupakaidzwa, Briton Tema and Christopher Chembere) on 3 November 2018.

The appellants conducted parallel provincial elections on 3, 6, 7, 13 and 14 October 2018 and Worker's Council elections on 20 October 2018, where the first four appellants (Cossam Chiangwa, Amon Chinyemba, Nathan Nhira and Shepherd Sebata) were elected as President, Deputy President, General Secretary and National Administrator.

It was in their collective capacity, as purported office bearers, that they lodged the second application.

In the first application, the respondents submitted, that, they were the duly elected office bearers of the church, who had legal standing to sue on its behalf for the vindication and protection of its assets through a declaratur and an interdict.

They contended that they had satisfied the requirements for a declaratur prescribed in section 14 of the High Court Act [Chapter 7:06] and the common law requirements for a final interdict and were thus entitled to such relief.

They argued that the meeting of 22 September 2018 was ultra vires the Constitution in that it violated the notice and quorum requirements stipulated in clause 12.7.1 as read with 12.3, clause 13.3.1 of the Regulations and clauses 12.6 and 12.9 and the financial probity arrangements enshrined in clause 12.5 and 12.6 of the Constitution.

They also argued that the vote of no confidence was not only alien to the Constitution but also violated the audi alteram rule.

Lastly, they contended that the appointment, instead of election, of office holders in the church, was anathema to the Constitution.

The appellants took five preliminary points. These were;

(i) That the application was not urgent;

(ii) The respondents did not have locus standi to represent the church as their tenure of office, as national office bearers, had expired on 28 April 2018 and had not been renewed;

(iii) The matter was lis pendens in Mujokeri v Madziyire HC4583/18, in which judgment had been reserved;

(iv) The application was a disguised review of the outcomes of the meeting of 22 September 2018 which could not be sought urgently, on review, or through a declarator; and

(v) Lastly, that there were material disputes of fact, pertaining to the quorum of the meeting of 22 September 2018, which could not be resolved on the papers.

On the merits, the appellants implicitly conceded that their meeting was not convened in terms of the Constitution by ascribing the call to “a big constituency of the church which was clearly not happy with the way the church was going about the Constitutional changes.”

They, however argued, that, this amorphous grouping had the power to dis-appoint just as it had the power to appoint the respondents.

They strongly contended that the resolution of 15 September 2018 was in breach of the mandatory procedural requirements of the two-thirds quorum prescribed in clause 12.6 of the Constitution.

In the second application, the appellants, who baptized themselves as 'the Originals' submitted, that, as the office bearers elected by the church at the triennial elections of 20 October 2018, they had the power to vindicate and protect the assets of the church from the respondents, whom they christened 'the Reform Side' whose tenure of office expired by the effluxion of time on 28 April 2018.

They further submitted, that, the respondents, by violating the amendment clause, clause 12.6 to the Constitution, had, by public acclamation, forfeited their claims to the leadership of the church to the appellants.

The respondents took two preliminary points:

(i) They contended, that, the appellants had no locus standi to represent the church as their election to the national offices was tainted by the illegality of the meeting of 22 September 2018 from which they traced their authority.

(ii) The second was that there were material disputes of fact on the procedure, substance, and effect of the meeting of 22 September 2018 which could not be resolved on the papers.

On the merits, the appellants contended, for the first time in argument, that, the respondents had seceded from the church on 22 September 2018 and therefore did not have locus standi to represent the church.

They argued, that, the respondents sought to overhaul the Constitution and reframe the church in their own image by abandoning the confession of faith and the fundamental doctrines of the church.

The court a quo criticized both parties for raising preliminary points “in such a contentious matter.” It prefaced its decision on the preliminary objections by remarking that:

“Both Madziyire and Chiangwa should have realized that preliminary matters, though permissible in terms of the rules of court, served no purpose in such a contentious matter as the present one.

They should have remained alive to the fact, that, the same required the court to consider the merits of the case as opposed to having the same resolved on the basis of technical issues.

Any technical issue which is not capable of resolving the dispute of the parties is not worth the paper on which it is written. It becomes a time-wasting exercise which does not enhance the work of the court. It should, therefore, be avoided as it constitutes an exercise in futility which is of no benefit to anyone. It does not benefit the party which raises it, let alone the party against which it is raised.

Apart from the issue of lis pendens, which Chiangwa raised, I shall, therefore, deal with all the parties preliminary issues in the body of this judgment. They all relate to the reasons which prompted Madziyire and Chiangwa to file their respective applications.”

In regards to the preliminary objections moved by the appellants in the first application, the court a quo ruled, that, the question of urgency was no longer a live issue; lis pendens could not be sustained as the pending judgment in Mujokeri v Madziyire HC4583/18 had been handed down on 25 March 2019, prior to the hearing before it; there were no material disputes of fact on the quorum of 15 September 2018; and the use of a declarator rather than a review, in the circumstances of the application, was proper, as a nullity could not be reviewed; and, lastly, that, as the respondents were the only office bearers of the church at the time the proceedings were instituted, they had the requisite locus standi to do so.

On the merits, the court a quo, found, that, on a proper application of the operative Constitution of the church, the respondents had established their case on a balance of probabilities and granted them the relief set out in the amended draft order filed on 2 November 2018, as corrected by this Court.

It specifically found, that, they were the office bearers of the church vested with the power to call for, hold, and preside over the Workers Council meetings.

It also held, that, although the triennial anniversary date had passed, on 28 April 2018, clause 13.3.1 of the Constitution as read with clause 13.1.1 of the Regulations, preserved their term of office until the holding of triennial elections in the calendar year in which the triennial year fell; and, in the alternative, that, the common law extended their appointment beyond the triennial anniversary date to the date of the investiture of their elected successors.

It thus found, that, the respondents had proved that the conduct of the appellants, on 22 September 2018, had been motivated by selfish ambition to “illegally snatch power within the church through a coup” and “split the church in their quest for power” and not over any constitutional reform dispute - which reforms they voted in favour of.

It further determined that the meeting of 22 September 2018 suffered from fatal and incurable extrinsic and intrinsic irregularities that were in violation of the Constitution, which rendered the meeting void ab initio.

Lastly, it held that any outcomes that flowed from that meeting were also void and of no force or effect.

On the preliminary issues raised by the respondents in the second application, the court a quo ruled that there were no material disputes of fact which could not be resolved on the averments on quorum on the papers of the appellants in respect of the meeting of 22 September 2018; it upheld the respondents objection on locus standi; it found that the meeting violated the Constitution of the church; further, that, as the Workers Council elections held by the appellants on 20 October 2018 were premised on the meeting of 22 September 2018 they were tainted by these violations; it found both the meeting and the elections invalid and of no force or effect.

On the merits, it held that the appellants bore the onus of establishing, on a balance of probabilities, that the respondents had seceded from the mainstream church and formed a new church by abandoning the church Constitution and adopting the proposed amendments to that Constitution.

It found that the appellants had not placed any evidence capable of discharging the onus.

They had not filed the proposed amendments nor particularized the clauses in the accepted but suspended Constitution that violated the operative Constitution.

Rather, they had produced and relied on the same Constitution as the respondents.

The court dismissed the appellants contention, that, at the time the meeting of 15 September 2018 was held, the respondents tenure of office had expired on two grounds:

(i) The first was that clause 13.3.1 of the Constitution as read with clause 13.3 of the Regulations allowed the office bearers to continue in office beyond the triennial anniversary of their election to any date within the calendar year of such anniversary.

(ii) The second was that the common law abhorred a vacuum and thus allowed office bearers of a universitas to continue in office until elections were held to replace them.

It was on the basis of these findings that the court a quo granted the first application and dismissed the second application with costs.

The five grounds of appeal raised by the appellants were framed as follows:

“1. The High Court erred in failing to find that the adoption of a new Constitution by the second to eighth respondents and their followers, on 15 September 2018, was unprocedural and not in accordance with the provisions of the Constitution of the fifth appellant.

2. The High Court consequently erred in failing to find that the second to eighth respondents and their followers seceded from the church of the fifth appellant as from 15 September 2018 and therefore had not locus standi to challenge the proceedings of the fifth appellant's church subsequent to that date.

3. The High Court further erred in finding that the appellants had no locus standi to institute the proceedings in case number HC179/19, and, having so found, in going ahead to determine the merits of that application.

4. The High Court further grossly erred in finding that the new Constitution, adopted by the second to eighth respondents, was not a renunciation of the fifth appellant's Constitution when the said Constitution was not placed before the court by the respondents who had the onus to place it before the court.

5. The High Court further erred in finding that the appellants could not seek consequential relief upon the grant of a declarator unless it was combined with an interdict or a claim for a vindicatory relief.”

The cumulative import of the first four grounds of appeal was that the court a quo grossly misdirected itself in finding that the respondents, and not the appellants, were the proper office bearers of the church imbued with the requisite legal standing to act on its behalf.

The last ground of appeal interrogates the correctness of the observation of the court a quo that the declarator sought by the appellants was fatally defective for want of vindicatory consequential relief.

The two issues for determination on appeal that arise from all the grounds are:

1. Whether the court a quo was correct in finding that the respondents, and not the appellants, were the recognized office bearers of the church who had locus standi to act on its behalf.

2. Whether the declarator sought by the appellants was not conjoined with consequential relief and therefore fatally defective.

In this Court, counsel for the appellants submitted that the respondents did not have locus standi to institute or defend legal proceedings on behalf of the church because they seceded from the church on 15 September 2018.

He contended that the adoption of the constitutional amendments by the Workers Council, on 15 September 2018, constituted the act of secession in two respects:

The main one was that the adoption was in breach of the peremptory notice and quorum requirements prescribed in clause 12.6 of the Constitution: and, the alternative was that the very adoption of the amendments, whose content was materially at variance with the content of the amended Constitution constituted a renunciation of the original Constitution, and was therefore an act of secession.

He also contended, that, the duty to place the constitutional amendments before the court a quo, which would have established secession, lay on the respondents.

He argued, that, the effect of the act of secession was that the respondents ceased to be office bearers of the church and concomitantly lost the right to represent the church in any legal proceedings lodged after that date.

He further contended, that, it was remiss of the court a quo to further determine the second application on the merits once it had decided the issue of locus standi against the appellants.

Lastly, he contended that the finding of the court a quo, that the relief sought in the second application was fatally defective for failing to con-join the declarator with an interdict cum vindication was incorrect.

Counsel for the respondents submitted, that, the secession argument could not be properly raised in the court a quo or in this Court because it had not been pleaded by the appellants in their opposing affidavits in the first application and founding affidavits in the second application.

He contended, that, the appellants case, in both claims, was based on the purported illegal stay in office subsequent to 28 April 2018.

In the alternative, he argued that the resolution accepting and immediately suspending the constitutional amendments, other than those relating to elections, did not constitute secession.

He contended, that, the respondents remained the only office bearers of the church imbued with the power to represent it in all legal proceedings launched by or against the church.

In reply, counsel for the appellants argued, that, the oblique reference to the negation of the “foundational and fundamental doctrines of the AFM in Zimbabwe and of the AFM International” in the appellants memorandum of 24 September 2018, and the averments in paragraph 46 to 49 of the appellants founding affidavits sufficed to found secession as a cause of action.

The law concerning universitas, and the power of the courts to interfere in their affairs, is reproduced in BAMFORD's The Law of Partnerships and Voluntary Associations in South Africa, 3rd ed…, and restated in various cases such as Dynamos Football Club (Pvt) Ltd & Anor v ZIFA & Ors 2006 (1) ZLR 346 (S)…,; Independent African Church v Maheya 1998 (1) ZLR 552 (H)…, and Independent African Church v Maheya 2000 (1) ZLR 39 (H).

It is that courts generally construe the Articles of Association or Constitution of voluntary associations strictly. Thus, any conduct which falls outside the strict requirements of the Constitution of a universitas would generally be adjudged to be invalid.

This is because the Articles constitute the primary documents in which the nature, manner, and scope of voluntary associations are reposed. It is also from these Articles that voluntary associations derive universal recognition by the courts.

Another established principle of our law is that an applicant's cause stands or falls on his founding affidavit and not in an answering affidavit, while the defence of a respondent stands or falls on his opposing affidavit: see Steinberg v Cosmopolitan National Bank of Chicago 1973 (4) SA 564 (RA)…,; Austerlands (Pvt) Ltd v Trade and Investment Bank Ltd & Ors SC 2006 (1) ZLR 372 (S)…,; Moyo v Zvoma SC28-10; Bonnyview Estates (Pvt) Ltd v Zimbabwe Platinum Mines (Pvt) Ltd SC15-18; and Pountas Trustee v Lahamas 1924 WLD 67…,.

The principles on which secession is based are well settled in this country. They are crystallized in the case of The Church of the Province of Central Africa v Diocesan Trustees, Harare Diocese 2012 (2) ZLR 392 (S).

In that case…, and in Sibanda & Ors v The Apostolic Mission of Port Oregon (Southern African Headquarters) SC49-18…, secession was equated to schism and unilateral declaration of independence and was authoritatively defined as “the separation of a Church into two Churches or the secession of a group owing to doctrinal, disciplinary differences.”

Again, the common law principle governing the expiration of fixed tenure of office bearers was settled in the cases of Padayiche v Pavadai NO & Anor 1994 (1) SA 662 (W)…, and Exparte United Party Club 1930 WLD 277…,.

It is that the tenure of office of elected office bearers is not terminated by the effluxion of time but by subsequent elections that are held for new office bearers.

The appellants nailed their colours on the secession argument.

In so doing, the appellants lost the opportunity to attack the bases upon which the court a quo held that the respondents, and not the appellants, were the proper office bearers of the church who had the legal standing to represent it in legal proceedings.

The case pleaded by the appellants, in the second application, was predicated on the expiration of the triennial tenure of the respondents on 28 April 2018. This was expressly stated in paragraphs 17 to 19 of the appellants main founding affidavit deposed to by the first appellant.

That was why the court a quo relied on clause 13.3.1 of the Constitution as read with clause 13.3 of the Regulations and the common law principle stated in Padayiche v Pavadai NO & Anor 1994 (1) SA 662 (W) and Ex parte United Party Club 1930 WLD 277 for its decision.

The secession argument was raised by the appellants for the first time in their supplementary heads of argument filed a quo some two months after the respondents had filed their own heads.

The supplementary heads were not based on the pleadings before the court a quo.

The failure to plead secession hamstrung the appellant's case in that they failed to particularize the changes rendered to the Constitution, which overhauled rather than amended the Constitution, was the basis for the finding a quo that the appellants had failed to discharge the onus on them to establish secession.

It is for these reasons that I agree with the submission made by counsel for the respondents, in this Court, that, the appellants could not properly premise their grounds of appeal on a cause of action which they did not plead a quo.

The correctness of the submission is borne out by the well-established principle of our law that a case stands or falls on its founding affidavit. It does not stand on the answering affidavit or in correspondence exchanged between the parties before the institution of litigation.

Thus, the contention by counsel for the appellants, that, the oblique reference to the breach of “foundational and fundamental doctrines of the AFM in Zimbabwe and of the AFM International” in the appellants memorandum of 24 September 2018, coupled with the averments made in paragraphs 46 to 49 of the appellants founding affidavit, sufficed to found secession as a cause of action, is incorrect.

The letter addressed to the respondents, on 24 September 2018, is not a pleading. The contents of that letter were not pleaded in the appellants founding affidavits and they do not, standing on their own, constitute pleadings.

Paragraphs 46 to 49 of the appellants founding affidavit merely summarized the schism that existed in the church in the aftermath of the unconstitutional meeting held by the appellants on 22 September 2018, and constituted the concluding remarks of the cause of action raised in paragraphs 17 to 19 of the same affidavit.

These paragraphs do not plead secession to be a derivative of the meeting of 15 September 2018.

The submissions made by counsel for the respondents, in this respect, have merit and must be upheld.

The import of this finding is that the appeal should really be dismissed at this stage.

I, however, proceed to deal with the appeal in the further respects that were argued for the sake of completeness.

Counsel for the appellants contended that the failure to strictly abide by the requirements of clause 12.6 of the Constitution invalidated the meeting of 15 September 2018 and the outcomes that flowed from it.

Per contra, counsel for the respondents argued, that, that meeting, together with its outcomes, was valid.

In terms of clause 12.9.1 of the Constitution, the quorum required for a valid meeting for the dispatch of a constitutional amendment is a simple majority of the full complement of the Workers Council.

Whether reliance is placed on the 3,475 total membership figure provided by the respondents or 2,056 figure supplied by the appellants, the quorum was achieved by the recorded total number of 2,056 councillors in attendance on 15 September 2018.

Clause 12.6 of the Constitution provides that:

“To amend this Constitution, written notice shall be given to the General Secretary by Provincial Workers Council, the Apostolic Council, at least six months before the next Workers Council meeting. In the said notice, details must be given of the proposed amendment. Such notice shall then be forwarded to all Provincial Workers Councils in preparation for the next Workers Council Meeting. A two-thirds majority of the Workers Council shall decide whether the Constitution should be amended or not.”

The cumulative and conjunctive requirements to pass a valid Constitutional amendment are that:

1. Six months written notice from either the Provincial Workers Council or the Apostolic Council, or both, be given to the General Secretary before the Workers Council meeting at which the amendments are to be considered;

2. The details of the proposed amendments must accompany the notice;

3. The notice, and the detailed amendments, must be sent to all Provincial Workers Councils before that Council meeting;

4. The quorum for passing the amendment is a two-thirds majority of the optimum membership of the Workers Council.

Counsel for the appellants correctly contended, that, clause 12.4.1 and 12.3.1 of the Constitution enjoins the Workers Council and the Apostolic Council and the office bearers, acting of their own accord, to strictly abide by the letter and spirit of the Constitution. He also correctly contended that the courts are enjoined, by case law, such as Dynamos Football Club (Pvt) Ltd & Anor v ZIFA & Ors 2006 (1) ZLR 346 (S) to generally construe the constitutions of universitas, like the church, strictly.

The meeting of 15 September 2015 was, however, convened on a month's and not six months notice.

The notice emanated from the President and General Secretary and not the Workers Council or Apostolic Council. However, the notice, together with the proposed amendments, were dispatched to the Provincial Councils for the next Workers Council meeting, by the General Secretary.

The parties were at variance on whether the resolution of that day was passed by the two-thirds quorum prescribed in clause 12.6.

The second (Aspher Madziyire) and third (Amon Madawo) respondents did not convene that meeting of their own accord. They did so in obedience to a judicial command emanating from the unopposed Mathende application.

They were commanded to convene the Workers Council meeting on 30 days notice to the members of the Workers Council. The 30 days were to be calculated to commence within 7 days of the service of the order on the last of the respondents cited in that order.

The onus to establish, on a balance of probabilities, the date on which the last of the respondents in HC4756/18 was served with the court order was on the appellants.

They did not adduce any evidence to that effect in their papers.

In the absence of that evidence, the argument by counsel for the appellants, that 15 September 2018, fell outside the outer limits of the court order is unsustainable.

It seems to me, that, the failure of the respondents to abide by the constitutional time frame would not affect the constitutional validity of the meeting for the reason that the time limits for convening the meeting of 15 September 2018 were prescribed by a duly constituted court of law.

It is trite that extant court orders must be obeyed.

This principle was affirmed by this Court in Econet Wireless (Pvt) Ltd v Minister of the Public Service, Labour and Social Welfare & Ors SC31-16…, where BHUNU JA aptly remarked that:

“The doctrine of obedience of the law until its lawful invalidation was graphically put across by LORD RADCLIFFE in Smith v East Elloe Rural District Council [1956] AC 736 at 769 when he observed that:

'An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of illegality on its forehead. Unless the necessary procedures are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.'

If it were not so, and every litigant challenging the validity of any law was excused from obeying the law pending determination of its validity, there would be absolute chaos and confusion rendering the application of the rule of law virtually impossible. This is because anyone could challenge the validity of any law just to throw spanners into the works to defeat or evade compliance with the law.”

To the same effect is Hodkinson v Hodkinson (1952) 2 ALL ER 567 (CA) at 569C:

“It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it even extends to cases where the person affected believes it to be irregular or even void.”

That order was extant on the date of the meeting.

It, therefore, conferred the imprimatur of validity to the meeting, notwithstanding that it was not in accordance with the constitutionally stipulated six month notice period and that the notice did not come from the constitutionally mandated source.

It is clear to me, that, the first three requirements prescribed by clause 12.6 were met.

The only issue that has exercised my mind was whether the two-thirds threshold of the optimum membership of the Workers Council was met.

If the full membership was the tally sheet figure of 3,475 supplied by the respondents, then the 2,021 councillors who passed the proposed amendments would have been short by 296 of the 2,317 members required to pass the resolution.

My burden was removed by the finding of the court a quo on this aspect.

It accepted the figure of 2,056 councilors, furnished by the appellants, as the established optimum number of the Workers Council.

That finding was not appealed.

The effect of this finding is that the proposed amendments were passed by 98 per cent of the total Workers Council membership - which figure exceeded the minimum 67 per cent constitutional threshold.

Consequently, the resolution of 15 September 2018 met all the procedural requirements prescribed in Clause 12.6.

The alternative contention, on secession, submitted by counsel for the appellants is unsustainable.

The import of the submission is to deny the Church the constitutional power to reframe itself in tandem with evolving contemporary religious developments and thought, which would impact on its shared fundamental religious doctrines and principles.

The Constitution of any organisation is a living document, which must evolve and be amenable to necessary periodic reviews to remain relevant to its vision, mission, and core values.

The church is no exception. It cannot remain trapped in a time warp of a bygone era.

In casu, there were no entrenched or pillar clauses in the church Constitution which precluded the Workers Council from amending the Constitution.

Rather, the Constitution contemplated its own amendment - including the clauses relating to the church's confession of faith, ecclesiastical doctrines, governance, worship, and discipline.

All that was required of the Workers Council was to follow the requirements of Clause 12.6 and the prescribed consultative processes.

It did so subject to the intervening order of court that had to be obeyed in accordance with the doctrine of obedience to the law; an aspect the rule of law.

In any event, a reading of The Church of the Province of Central Africa v Diocesan Trustees, Harare Diocese 2012 (2) ZLR 392 (S)…, suggests that the passing of an invalid resolution does not constitute a renunciation of the fundamental doctrines of the church but merely makes the resolution void ab initio.

I am unable to find, that, by passing an invalid resolution, the Workers Council evinced an intention to secede from the Church.

A void ab initio resolution would be of no force or effect. It would have preserved the subsisting status quo ante, thus guaranteeing the continued validity of the subsisting Constitution and tenure of the elected office bearers.

The alternative submission, predicating secession on the content of the constitutional amendments, would, therefore, be dismissed for lack of merit.

There is a further basis for dismissing the secession argument.

It is, that, the appellants were aware, before their meeting of 22 September 2018, that, the resolution had suffered a still birth at inception and would not be applied to the impending triennial elections.

The awareness is shown by the following factors:

(i) Firstly, the appellants characterized the resolution in the notice of meeting of 20 September 2018 as an “attempt to repeal” the Constitution.

(ii) Secondly, they boasted, in their memorandum of 26 September 2018, that, their unsanctioned meeting had prompted the Apostolic Council to abandon the electoral amendments.

(iii) Lastly, they declined to return to the mainstream fold when entreated to do so on 26 September 2018.

There was therefore no secession by the respondents emanating from the adoption of the resolution at the time the appellants held the meeting of 22 September 2018, conducted their own triennial elections in September and October 2018 and lodged the second application in January 2019.

The further contention by counsel for the appellants, that the appellants were prevented from particularizing the decimation of the subsisting Constitution by the respondents failure to attach the constitutional amendments to their pleadings a quo is clearly disingenuous.

This contention, which relates to the fourth ground of appeal, seeks to place the onus of placing the amendments on the respondents.

In so doing, the appellants overlooked the trite principle of our law, that, he who alleges must prove.

This point was emphatically restated by this Court in Zimbabwe United Passenger Company Limited v Packhorse Services (Pvt) Ltd SC13-17…, as follows:

“The cardinal rule on onus is that a person who claims something from another in a Court of law has to satisfy the Court that he is entitled to it: see Pillay v Krishna 1946 AD 946 at 952–953. It is also settled that he who alleges must prove: see MB Investments (Pvt) Ltd v Oliver & Partners 1974 (3) SA 269 (RA).”

See also Goliath v Member of the Executive Council for the Eastern Cape [2014] ZASCA 182…,.

It is trite that the existence of secession is a question of fact.

The appellants bore the onus to establish secession by producing the proposed constitutional amendments.

They disingenuously claimed that the amendments were hidden from them by the respondents when it was common cause that both hard and soft copies of the documents had been dispatched to all structures on 18 February 2018 and 31 July 2018.

It is clear that the appellants did not attach the proposed amendments to their own pleadings because they were not necessary to establish the case they pleaded in the second application.

This last point on secession is also unmeritorious.

The appellants failed to establish the jurisdictional facts upon which they sought to predicate the secessionist argument.

Accordingly, the first four grounds of appeal must fail.

In the premises, the respondents wielded the power to institute legal proceedings for and on behalf of the church and were entitled to the declaratory order and consequential relief sought, which were designed to protect the assets of the church from the interlopers in the parallel formation.

They properly exercised that power and obtained judgment in their favour in the court a quo, which judgment correctly declared the appellants meeting of 22 September 2018, and all its subsequent outcomes, invalid.

It is trite that all outcomes flowing from an invalid act are also invalid: see Osman v Jhavary & Ors 1939 AD…, and Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S)…,.

The meeting of 22 September 2018 was the genesis of the appellants secession from the mainstream church which had matured by the time they held their own parallel elections in October 2018 and filed the second application in January 2019.

The finding a quo, that it was the appellants who seceded, is therefore unassailable.

I uphold the finding a quo, that, election year referred in clause 12.9.1 of the Constitution as read with 13.3.1 of the Regulations, correlated to the 2018 calendar year in which the triennial cycle fell.

Again, Padayiche v Pavadai NO & Anor 1994 (1) SA 662 (W) and Ex parte United Party Club 1930 WLD 277 are authority for the proposition that office bearers continue to hold office even beyond their prescribed time until replaced by election.

The finding of the court a quo, to the same effect, is unassailable.

The finding that the meeting of 22 September 2018 was a nullity undermines the basis upon which the second application was conceived.

It was premised upon the legitimacy of the 20 October 2018 elections, which, in turn, derived efficacy from the invalid meeting of 22 September 2018. The appellants brought this application as office bearers of the Church, which they were not. They therefore lacked the legal capacity to do so.

The court a quo correctly held, that, they did not have the locus standi to institute proceedings on behalf of the Church.

It is correct that the court a quo then proceeded to deal with other ancillary issues.

The issue of locus standi had been raised by both parties as a preliminary issue in their respective applications.

The finding that the respondents had locus standi, while the appellants did not, adequately resolved the dispute between the parties. It was not necessary for the court a quo to delve into the other issues....,.

This is an appeal against the judgment of the Labour Court confirming, with an amendment, a ruling by a Labour Officer that the appellant was guilty of an unfair labour practice and that the appellant pays to each of the respondents arrear compensation due to them for the period March 2011 to September 2015.

The appellant seeks an order setting aside the confirmation, and, in its place, another order dismissing the application for confirmation with no order as to costs.

Having gone through the papers filed in this matter, and after hearing counsel, I am not persuaded that the Labour Court was, except for part of its order, wrong in confirming the ruling by the Labour Officer.

The first respondent herein, Fungai George Mutasa, is a Labour Officer to whom an allegation of unfair labour practice was referred by the second to the eleventh respondents (“the respondents”) (A.B. Morar, A.J. Bosch. E. Eston, E. Gavaza, A.J. Van Rensburg, R.T. Karidza, L. Mabika, D.I. Mackintosh, I. Middleton and Mushoriwa).

He unsuccessfully attempted to settle the matter by conciliation following which he then heard the parties in order to come up with a draft ruling in terms of section 93(5)(c) of the Labour Act [Chapter 28:01] (“the Act”).

The respondents are employed by the appellant and fall in what the appellant calls the E Band employment grade. The appellant is a wholly-owned subsidiary of Tongaat Hullett, a South African company.

In addition to the benefits they enjoyed in Zimbabwe, in terms of their conditions of employment commensurate with their grade, the respondents also enjoyed membership of the Tongaat Hullett Pension Fund, a South African registered pension fund as well as the Discovery Essential Saver Plan, which enabled them to access medical services in South Africa.

On 21 February 2011, the respondents were advised of the intention to terminate their entitlement to both the Pension Fund and the Discovery Essential Saver Plan with effect from 28 February 2011.

It was indicated, in that communication, that, the respondents would each be paid accrued benefits in cash or alternatively such benefits would be transferred to a retirement annuity or pension preservation fund held in each employees name with a registered entity of the employee's choice in South Africa. It was further indicated that the cost related to the current monthly fund contributions would be incorporated into each employee's monthly United States Dollar package in Zimbabwe with effect from 1 March 2011.

As regards the Discovery Essential Saver Plan, compensation was to be paid by incorporating the monthly member contributions, which translated to a hundred per cent contribution by Tongaat Hullett, into each employee's monthly United States Dollar package in Zimbabwe.

The exchange of correspondence between the parties reveals that the respondents made several follow-ups to have the compensation paid and the contributions incorporated into their cash packages.

This was to no avail.

The papers further show that the appellant demanded that the respondents move from the Triangle Senior Staff Pension Fund (TSSPF) to the Money Plan Pension Scheme to enable these benefits to be processed.

Owing to the stalemate, the respondents approached the High Court, and, in an order dated 26 February 2015, the court determined that the Triangle Senior Staff Pension Fund (TSSPF) remained valid and binding and that there was no obligation on the respondents to migrate to the Money Plan. The court consequently ordered the appellant to commence making its contributions and to actuate the Triangle Senior Staff Pension Fund (TSSPF). The appellant was further ordered to pay the costs of the application.

That order remains extant as it was not appealed against.

Notwithstanding that order, the appellant did not pay compensation or incorporate the monthly contributions into the employee's monthly United States Dollar package.

In their statement of claim before the Labour Officer, the respondents averred, that, in addition to benefits accruing in Zimbabwe, their conditions of service also provided for contractual entitlements to the Tongaat Hullett Pension Fund and the Discovery Essential Saver Plan, both of which were operational in South Africa.

They further averred, that, it was the appellant that undertook to pay to each employee the accrued fund benefits or to transfer such fund to a retirement pension preservation fund and to incorporate the monthly fund contributions into the cash packages in Zimbabwe.

They averred, further, that, the pension fund and Saver Plan were open to all employees in the E Band regardless of the nature of one's pension in Zimbabwe.

The decision not to pay the respondents was a punitive measure because the respondents had dared to assert their rights to membership of the Triangle Senior Staff Pension Fund (TSSPF) in the High Court.

The respondents further alleged, that, the appellant had accepted its obligation to compensate the respondents when it communicated its decision to terminate the two benefits.

The appellant had then proceeded to pay those employees who had agreed to join the Money Plan Pension Scheme in Zimbabwe but had then withheld compensation to the respondents.

They therefore submitted, that, by withholding the compensation, the appellant and its directors were guilty of an unfair labour practice.

They therefore asked for a ruling directing the appellant to cease the unfair labour practice and to pay the arrear compensation. They further averred that the amounts should be paid “without any additional tax losses” by them.

In its response to the complaint, the appellant stated that the benefits which formed the subject of the matter were availed as a measure to cushion the employees from the harsh economic situation obtaining in Zimbabwe at the time and that these benefits were being administered by Tongaat Hullett, a South African company and the holding company of the appellant.

The benefits did not become vested in the contracts of employment of the respondents and remained discretionary on the part of the holding company. Therefore, so the appellant argued, whatever obligations the holding company created pursuant to the grant of these benefits do not bind the appellant. The benefits were paid and administered by Tongaat Hullett, and, consequently, the appellant, as a subsidiary, had no obligation to actuate those benefits.

The appellant further submitted, that, any claims that had arisen more than two years before the hearing of the matter were prescribed in terms of section 94 of the Labour Act. In other words, if it was found that an unfair labour practice resulting in the underpayment of the respondents had taken place, then the monthly underpayments would constitute separate causes of claim.

In his analysis of the evidence and submissions made on behalf of the parties, the Labour Officer found that the letter of 21 February 2011 unequivocally placed an obligation on the appellant to compensate the respondents and to incorporate the monthly fund contributions and member contributions into the respondents United States Dollar cash package in Zimbabwe with effect from 1 March 2011.

He further found, that, the fact that the pension fund was administered by another agency other than the appellant itself did not mean the employees were employed by that agency.

He therefore concluded that the payment of compensation of accrued benefits was a right.

This was moreso given the fact that the other employees in the same grade as the respondents, who had migrated to the Triangle Money Plan, have accessed their pension fund contributions and have had their Saver Plan incorporated into their monthly cash package in Zimbabwe.

On the question of prescription, he found, that, as the parties had been communicating over the issue, the matter was of a continuous nature and therefore the claim had not become time-barred.

Lastly, he found, that, when the appellant's Managing Director wrote to the respondents, at no stage did he indicate that he was not writing on behalf of the appellant and that he was doing so on behalf of the holding company.

Consequently, he concluded, that, by withholding the benefits, the appellant was guilty of an unfair labour practice. He therefore ordered that the appellant cease such unfair labour practice and pay individual arrear compensation to each of the respondents.

Having made the above draft ruling, the Labour Officer referred the same to the Labour Court for confirmation in terms of section 93(5)(a) of the Labour Act.

In its submissions before the Labour Court, the appellant argued that the Labour Officer had grossly erred in finding that the benefits, the subject of this matter, had become vested in the contracts of employment entered into by the respondents. The benefits remained discretionary on the part of Tongaat Hullett.

It further argued that whatever obligations Tongaat Hullett may have created were not binding on the appellant, a mere subsidiary.

Lastly, the appellant submitted that the Labour Officer had misdirected himself in not finding that some of the claims by the respondents had prescribed.

Having submitted their complaint to the arbitrator in September 2015, the respondents would only have succeeded on those claims that had arisen after September 2013, i.e. within the period of two years from the date when the unfair labour practice or dispute arose. The monthly underpayments would have constituted separate causes of action. Therefore, the pensions claimed from March 2011 to September 2013 would have become prescribed.

In their submissions before the Labour Court, the respondents stated as follows:

The appellant was attacking findings of fact made by the Labour Officer. There was no allegation that such findings were irrational.

On prescription, they submitted that the unfair labour practice was continuing at the time the matter was referred to the Labour Officer and that, in terms of section 94(2) of the Labour Act, the claims had not prescribed.

The Labour Court agreed with the Labour Officer, but for a different reason; that the unfair labour practice was continuing and therefore the claim was not prescribed in light of section 94(2) of the Labour Act.

The court agreed with the other factual findings made by the Labour Officer but was of the view that the order directing the Managing Director and Board of Directors to effect payment was irregular as they had not been heard before the order was made.

The court accordingly confirmed the draft ruling but amended it to remove the reference to the Managing Director and Board of Directors from the order.

Unhappy with the outcome of the confirmatory proceedings, the appellant noted an appeal to this Court. It alleged that the Labour Court had erred:

(i) In determining that the respondents claim was not prescribed.

(ii) In confirming the finding by the Labour Officer that the appellant had an obligation to pay the respondents when it was apparent that the benefits claimed had arisen from an agreement to which the appellant had not been a party.

(iii) In making a finding as regards the respondents attendant tax obligations and placing an obligation on the appellant to pay any ensuing tax penalties.

(iv) In assuming review and/or appellate jurisdiction during the confirmation proceedings when the court has no such power.

In its heads of argument before this Court, the appellant has submitted as follows:

Section 94 of the Labour Act provides for a prescriptive period of two years from the date when the dispute or unfair labour practice first arose. Having submitted their claim to the arbitrator on 9 September 2015, any claims by the respondents prior to 9 September 2013 would have become prescribed as each monthly underpayment constituted a separate cause of action.

The appellant further submitted, that, the benefits were initially offered by Tongaat Hullett, its South African holding company, which subsequently terminated the benefit. Its own attempts to incorporate the benefits into the respondents contracts of employment were not accepted by them and consequently never became a contractual entitlement. The benefits could therefore be extinguished without the consent of the respondents.

It further submitted, that, not being privy to the agreement between the respondents and Tongaat Hullett, it had no obligation to pay any of the benefits, and, consequently, no unfair labour practice has been perpetrated by it.

On the order directing the appellant to pay ZIMRA tax penalties, it was its submission that this was a declarator which the court a quo had no jurisdiction to make. The court had determined a contingent right, being the contingent tax penalty which had not arisen and may not arise at all.

Lastly, it submitted that the Labour Court misconstrued its powers during confirmation proceedings. It could not, in terms of the law, rehear the matter. Nor could it amend the ruling to remove reference to the Managing Director.

The respondents pray that the appeal be dismissed with costs. They have submitted as follows:

In terms of section 94(2) of the Labour Act, prescription does not apply to a dispute or unfair labour practice which is continuing at the time it is referred to a Labour Officer. The appellant continues to discriminate against the respondents and has refused to pay them their monthly dues. The wrong was a continuous one and the respondents claim was therefore not prescribed.

The respondents have further submitted that they had no relationship with Tongaat Hullett outside of their employment contracts, which contracts entitled them to the benefits now the subject of this matter. The appellant had at all times accepted its obligation to pay the benefits.

They further argue, that, the order directing the appellant to pay tax penalties was proper and that the court a quo correctly exercised its confirmatory jurisdiction.

During oral argument, counsel for the respondents raised an objection to the submission by the appellant's counsel, that section 94(2) of the Labour Act did not arise because the matter between the parties was a dispute and not an unfair labour practice.

She submitted that this was a new point being taken on appeal for the first time.

The effect of that submission was that section 94(2) of the Labour Act would not arise because the issue before the Labour Officer was a dispute and not an unfair labour practice. At no point had the appellant taken the position that the matter between the parties was a dispute and not an unfair labour practice.

She submitted, that, in any event, regard being had to section 6(1)(e) of the Labour Act, the appellant's conduct constituted an unfair labour practice as the latter had withheld the benefits due to the respondents as punishment for having sought recourse in the High Court. This conduct, in addition to the failure to pay the benefits, falls squarely within the ambit of an unfair labour practice as defined in section 8 of the Labour Act.

Moreover, the challenge in the first ground of appeal is whether or not the unfair labour practice was continuous and not whether the conduct was an unfair labour practice in the first place.

Counsel for the appellant denied that it had changed its submission on the question of prescription, thereby taking the respondents by surprise.

He submitted, that, it was the appellant's primary position, that, there was no unfair labour practice and that even if it were so, the two year prescriptive period would still apply. The respondents cause has always been that the conduct by the appellant, of withholding compensation, was their basis for alleging an unfair labour practice. The appellant has always argued that the claims were prescribed and that no reliance could be placed on section 94(2) of the Labour Act. What the court a quo determined was the time when the dispute arose. On a proper appreciation of the common cause facts, the respondents claims for compensation were prescribed.

From the foregoing, it seems to me that four issues arise for determination by this Court:

(i) The first issue relates to the question whether the matter referred by the respondents to the Labour Officer was referred as a mere dispute or an unfair labour practice, and, concomitantly whether the claim by the respondents had become prescribed.

(ii) The second issue is whether the court a quo was correct in confirming the Labour Officer's ruling that the appellant had an obligation to pay the benefits.

(iii) The third is whether the court a quo correctly confirmed the order directing the appellant to pay additional tax losses by the respondents.

(iv) The last is whether the court a quo could, in confirmation proceedings, re-hear submissions and amend the ruling....,.

It was the finding of the labour officer, subsequently confirmed by the court a quo, that the appellant was under an obligation to pay the various outstanding amounts, notwithstanding its claim that it was not privy to the agreement that gave rise to the conferment of those benefits by its parent company.

The labour officer, in his draft ruling, found that the appellant had an obligation to compensate the respondents. He found that the appellant had authored the letter of 21 February 2011 to the individual employees undertaking to make such compensation. At no stage did the letter make reference to the compensation being a privilege or that the obligation to do so lay on its parent company.

The labour officer also found, that, it is common practice for an employee's pension to be held or administered by an entity other than the employer itself.

He also found it strange, that, whilst denying liability on the basis that the agreement was between the employees and the appellant parent company, the appellant was prepared to pay them had they agreed to move to the Triangle Money Plan.

The labour officer made findings of fact.

That these were made in the context of a draft ruling is neither here nor there. Those findings were not inconsistent with the evidence before him.

The labour officer accepted the position that the pension fund was administered by the Tongaat Hullett Pension Fund. The correspondence that forms part of the record confirms that the respondents enjoyed the benefits in question by virtue of their membership of the Pension Fund. Nowhere does the appellant show the existence of a separate agreement between the respondents and the holding company. Had there been such an agreement, the appellant would, no doubt, have produced it.

It did not do so.

What is apparent is that the respondents enjoyed these pension benefits by virtue of their employment with the appellant and not because the holding company had separately entered into agreements with the respondents to provide these benefits. Indeed, it was not in contention that the respondents did not have any other connection to the Tongaat Hullett Pension Fund except in their capacities as employees of the appellant.

In the letter of 21 February 2011, the appellant accepted that the “letter and conditions contained therein are part and parcel of the revised terms and conditions of employment.”

The court a quo agreed with the findings of the labour officer that it was the appellant that had the obligation to pay the benefits.

This was a finding made on a consideration of all the evidence. Such a finding cannot be impugned unless the appellant shows that it was irrational: Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…,.; Edward Misihairambwi & 14 Ors v Africare Zimbabwe SC22-17.

Absent demonstrable, material misdirections, and clearly erroneous findings, the Labour Court was bound by the findings.

No such finding can be made on the facts of this case.

The appellant brought an urgent chamber application in the High Court for a stay of the execution of a judgment obtained by the first respondent against the second and third respondents on 12 February 2018 in the sum of US$352,851=30 together with interest and costs of suit.

By judgment delivered on 21 August 2020, the High Court dismissed the application with costs.

This appeal is against that judgment dismissing the appellant's urgent application.

The third and fifth respondents, who are husband and wife, hold title to Stand 67 Guildford Estate Township of Subdivision H of Guildford of Borrowdale Estate, also known as No.67 Guildford Crescent, Borrowdale, Harare (the house) by Deed of Transfer Number 1447/2009.

On 15 November 2013, they entered into a Deed of Sale in terms of which they sold the house to the appellant for US$380,000 payable in certain instalments from 30 November 2013 to 30 June 2014.

There is no convergence between them as to whether the full purchase price was paid.

The appellant alleges having paid part of the purchase price through the sale of his own neighbouring house, through the agency of the second respondent, and part of it through the sale to the third respondent of his Mercedes Benz S Class motor vehicle.

The appellant alleges, further, that, although he failed to pay the cash balance of the purchase price in accordance with the agreement, he has however paid it in full.

On the other hand, the third and fifth respondents position is that the appellant defaulted in his payments, and, after giving him the requisite 30 days notice, in terms of the Deed of Sale, they duly cancelled the agreement.

Notwithstanding such cancellation, the appellant still sued the second, third, and fifth respondents in case number HC11367/15, which was filed on 20 November 2015, for an order compelling transfer of the house to himself and for their eviction from it.

The summons action in question was defended and does not appear to have been prosecuted with any zeal thereafter.

Meanwhile, the second and third respondents were sued by the first respondent, in case number HC11601/17, which summons action was filed on 14 December 2017. He obtained judgment against them on 12 February 2018 in the sum of US$352,851=30 plus interest and costs of suit aforesaid.

A writ was thereafter issued which the fourth respondent was instructed to execute. In pursuance whereof the house in dispute was placed under judicial attachment.

Following the attachment, the appellant lay a claim to the house motivating the fourth respondent to institute interpleader proceedings under case number HC7525/19.

By judgment delivered on 9 June 2020, in The Sheriff for Zimbabwe v Humbe & Anor HH378-20, CHINAMORA J dismissed the appellant's inter-pleader claim and declared the house executable.

The judgment remains extant and has not been appealed against.

Instead, the appellant filed a further application, on 21 July 2020, under case number HC3805/20. He sought an order setting aside the writ of execution in terms of which the house was attached.

The basis of the application was that the Sheriff was enjoined by Rule 326 of the High Court Rules to first diligently pursue the attachment of a debtor's movable property before going against immovable property.

In addition, the appellant took the view that the house could not be the subject of execution as it was res litigiosa having been the subject of litigation in HC11367/15.

In the same application, the appellant also sought a declaration that his rights in the house “preceded” those of the first respondent. He also sought an order that the house be transferred to him.

This, the appellant sought, in spite of the judgment of CHINAMORA J, issued on 9 June 2020, which, as I have said, remains extant.

At the same time that the appellant filed the court application, in case number HC3805/20, he also filed the urgent chamber application for interim relief of a stay of execution which is the subject of the present appeal.

The application was opposed by the first, second, third, and fifth respondents.

The stay of execution was sought pending the finalisation of his claim in HC11367/15 and his application for a declaratory order and the setting aside of the writ which is case number HC3805/20.

The court a quo found, that, the appellant had failed to pay the full purchase price for the house in terms of the Deed of Sale. In doing so, the court a quo was fortified by the fact that the Deed of Settlement signed by the appellant and the third respondent, on 12 December 2017 which, although later repudiated by the third respondent as having been procured by duress, acknowledged that there was still an outstanding sum of US$50,000.

The court a quo recognised that both Rules 326 and 327 of the High Court Rules provide for options to a party which applied for the issuance of a writ. They do not provide a remedy to the appellant.

After criticizing the interim relief sought by the appellant, which was the same as the final order sought, the court a quo wondered how the appellant could have filed further applications in the face of the judgment of CHINAMORA J which I have alluded to above.

It was the court a quo's finding, that, given that the house was registered in the names of the third and fifth respondents, they hold real rights over the house.

The appellant never acquired any real rights over it.

The attachment of the house by the Sheriff, in pursuance of a writ of execution, gave the first respondent, as the judgment creditor in whose favour the writ was issued, a pignus judiciale on it created by the attachment. That is to say, an attachment creates a judicial mortgage on the property so attached.

The conclusion of the court a quo was that the appellant failed to establish a prima facie right over the house as would entitle him to a stay of execution.

His claim, through inter pleader proceedings, having failed, and the house declared executable, the appellant was seeking “to mount a second bid based on essentially the same facts.” He was precluded from doing so because the court a quo had already pronounced itself on the issue.

Overcome by grief as a result, the appellant launched this appeal on grounds set out below:

1. The court a quo erred in fact and grossly misdirected itself in finding that the appellant breached the contract of sale by failing to pay the full purchase price by the date that the price was due.

2. The court a quo erred in fact and grossly misdirected itself in finding that the appellant caused the arrest and prosecution of the fifth respondent on fabricated allegations of fraud and coerced the third respondent to sign the Deed of Settlement using the fifth respondent's arrest.

3. The court a quo erred at law and grossly misdirected itself in finding that the dispute between the parties, in the instant matter, is res judicata.

4. The court a quo erred at law and grossly misdirected itself in disregarding that the property in dispute is res litigiosa and in further failing to give any reasons for such discount.

5. The court a quo erred at law and grossly misdirected itself in disregarding that the application was an application for stay of execution pending a court application in terms of Rule 340 of the Rules of the High Court and in failing to give any reasons for such discount.

6. The court a quo erred at law and grossly misdirected itself in determining that the interim relief was the same as the final relief, and, as such, the relief could not be granted when in fact the interim and final reliefs were different; and, even if the reliefs were the same, the court could and it ought to have granted it either way even if it were to be found to be the same.

7. The court a quo erred at law and grossly misdirected itself in exercising its discretion without addressing the requirements of and purpose for proceedings for stay of execution.

8. The court a quo erred at law and grossly misdirected itself in finding that Rule 326 of the High Court Rules can only be invoked by a person who applied for the writ of execution.

Clearly, the grounds of appeal stray from the field of discourse. They seem to attack every pronouncement in the judgment a quo without identifying the ratio decidendi.

The court a quo dismissed the application because it made a finding that the appellant failed to prove a prima facie right over the house. This was moreso regard being had that the same court had already pronounced itself when it declared the house executable.

In that regard, only one issue commends itself for determination in this appeal: it is whether the court a quo erred in dismissing the application for stay of execution.

The appellant approached the court a quo for a stay of execution pending the prosecution of a summons claim to compel transfer of the house to himself, which by then had been pending for five (5) years, and a court application which seeks both a declaratory order that he possesses superior rights in the house and that the house be transferred to him.

The court application also seeks the setting aside of a writ issued in favour of the first respondent against a house not registered in the appellant's name but those of the judgment debtors in that suit.

The execution of a judgment is a process of the court.

The court therefore retains an inherent power to manage that process having regard to the applicable rules of procedure.

What is required for a litigant to persuade the court to exercise its discretion in favour of granting a stay in the execution of the court's judgment has been stated in a number of cases.

In Mupini v Makoni 1993 (1) ZLR 80 (S)…, this Court stated the position of the law quite clearly:

“In the exercise of a wide discretion, the court may, therefore, set aside or suspend a writ of execution, or, for that matter, cancel the grant of a provisional stay. It will act where real and substantial justice so demands. The onus rests on the party seeking a stay to satisfy the court that special circumstances exist.

The general rule is that a party who has obtained an order against another is entitled to execute upon it.

Such special reasons against execution issuing can be more readily found where, as in casu, the judgment is for ejectment or the transfer of property, for, in such instances, the carrying of it into operation could render the restitution of the original position difficult: see Cohen v Cohen (1) 1979 ZLR 184 (G) at 187C; Santam Ins Company Limited v Paget (2) 1981 ZLR 132 (G) at 134G–135B; Chibanda v King 1983 (1) ZLR 116 (H) at 119C-H; Strime v Strime 1983 (4) SA 850 (C) at 852A.”

It is settled in this jurisdiction, that, a judgment creditor is entitled to attach and have sold in execution the property belonging to the judgment debtor. This is so even in a situation where a third party has a personal right against such a debtor in respect of the same property. The position is the same even where the personal right of the third party preceded the attachment of the property: see HERBSTEIN and Van WINSEN, Civil Practice of The Superior Courts in South Africa 3Ed…, (quoted with approval in Maphosa & Anor v Cook & Ors 1997 (2) ZLR 314 (H)…,.).

To that should be added the hallowed principle of our law, that, the conveyance of ownership in immovable property from person to person is achieved through the registration of transfer at the deeds registry. Real rights in an immovable property are held only by registration at the Deeds Registry.

This was underscored by this Court in the seminal remarks made in Takafuma v Takafuma 1994 (2) ZLR 103 (S)…,;

“The registration of rights in immovable property, in terms of the Deeds Registries Act [Chapter 20:05], is not a mere matter of form. Nor is it simply a devise to confound creditors or the tax authorities. It is a matter of substance. It conveys real rights upon those in whose name the property is registered. See the definition of 'real right' in section 2 of the Act. The real right of ownership, or jus in re propria, is 'the sum total of all the possible rights in a thing' – see WILLE's Principles of South African Law 8ed p255.”

A party which lays a claim to property which has been placed under judicial attachment by the Sheriff, in the discharge of his or her duties as the executive of the court, has remedies provided for in the Rules of Court.

Such a party is required to submit a claim to the Sheriff in order to trigger the institution, by the latter, of interpleader proceedings in terms of Order 30 of the High Court Rules.

The court resolves the conflicting claims of parties in inter-pleader proceedings by either upholding the claimant's claim or dismissing it.

Where it finds the claimant's claim to be without merit, the court, in addition to dismissing the claim, ordinarily declares the property under attachment executable. The result is the opposite where the claim is upheld.

In the present case, after raising essentially the same arguments as in the urgent chamber application, the subject of this appeal, the appellant's interpleader claim was dismissed by the court a quo. It declared the house executable at the instance of the first respondent.

The first respondent has an extant judgment in his favour issued against the second and third respondents. The judgment is sounding in money, and, it was in pursuance of it, that a writ of execution was issued against the house.

The house is registered at the Deeds Registry in the name of one of the judgment debtors. It is the same house which the appellant lays a claim to by virtue of a Deed of Sale which ran into turbulence.

The dispute between the appellant and those of the respondents who sold the house to him had not been resolved by the courts at the time that the first respondent instructed the Sheriff to attach the house for sale in execution.

On the authorities that I have made reference to above, the judgment creditor, who is the first respondent, was entitled, at law, to have attached and sold in execution, the house which is registered in the name of his debtor.

The appellant is a third party who only has personal rights exercisable against the debtor in respect of the ownership and possession of the house.

As much as those personal rights came about prior to the attachment, or may have arisen prior to the first respondent's cause of action - that is of no moment in law.

The court a quo cannot be faulted for its finding that the attachment of the house in execution created a judicial mortgage or pignus judiciale.

The appellant's situation is exacerbated by the failure of his interpleader claim and the prior declaration made by the court a quo, that the house was executable in favour of the first respondent.

In dismissing the appellant's claim to the same house, CHINAMORA J, who determined the interpleader, relied on a line of authorities to the effect, that, where the house is registered in the name of the judgment debtor, he or she remains the owner of the property. For that reason, it is susceptible to execution.

The learned Judge concluded:

“In casu, the judgment debtor has title to the property. It is indeed immovable property. However, I propose to equate possession in the case of movable goods to title in respect of immovable property. To the extent that possession and title raise a rebuttable presumption of ownership, the principle in Zandberg v Van Zyl 1910 AD 258 at 272 applies to immovable property. The starting point is to examine the legal implication of title. Title confers real rights in immovable property. It cannot be gainsaid that a title deed is prima facie proof that a person enjoys real rights over the immovable property defined in the deed.”

The Sheriff for Zimbabwe v Humbe & Anor HH378-20.

It is against the foregoing background that the appellant approached the court a quo, for the second time, seeking a stay of execution to enable him to pursue the determination of the parties rights in the house all over again.

Those rights had already been determined by the same court in a judgment that was not impugned and remains extant.

In my view, the court a quo cannot be faulted for coming to the conclusion, that, after the appellant had chosen to pursue interpleader proceedings, which failed, he could not mount a second bid in the same court based, essentially, on the same facts.

It is true that the court a quo had already pronounced itself on the status of the house having declared it executable.

It is not the number of times that a litigant approaches the court seeking recourse which determines a matter in the litigant's favour - but the existence of a sustainable cause of action.

In this case, there was none.

I have set out what an applicant for a stay of execution is required to establish in order to motivate the exercise of the court's discretion in his or her favour, namely, that special circumstances exist for the court to halt its own execution process.

The appellant dismally failed to discharge that onus.

This is a case in which the same property had been declared executable by judgment of the same court. He had not appealed that judgment leaving it binding against the parties.

It would have been extremely incompetent for the court a quo to grant a stay of two judgments of its own definitively settling the rights of the parties.

In addition, the house, lawfully registered in the name of a judgment debtor, had been placed under attachment in execution of a valid judgment.

The appellant only possessed personal rights against the debtor which could not override real rights in law.

There was no legal basis for a stay and certainly no special circumstances as would invite the court to grant it.

I do not agree with counsel for the second, third, and fifth respondent's submissions that the appropriate order should have been the striking off of the application from the roll.

The reasons advanced for that proposition are clearly wrong.

The application was determined on the merits, the court having found that it lacked merit. It could only be disposed of by its dismissal.

Regarding the question of costs, this is an ill-conceived appeal, wholly without merit, and predicated on extraneous grounds. I see no reason why costs should not follow the result.

In the result, it be and is hereby ordered as follows:

1. That the appeal is dismissed.

2. That the appellant shall bear the costs.

This is an appeal against the judgment of the High Court sitting at Masvingo, delivered on 24 June 2020, which dismissed with costs the application made by the two appellants for a declaratory order and an interdict.

The two appellants are sugar-producing giants in the Lowveld while the first respondent (Zimbabwe Revenue Authority) is the statutory body charged with revenue collection in Zimbabwe. The remainder of the respondents are either sugar cane farmers or associations representing such farmers (Zimbabwe Sugarcane Development Association, Zimbabwe Cane Farmers Association, Mkwasine Sugarcane Farmers Trust, Commercial Sugarcane Farmers Association of Zimbabwe, Hippo Valley Productive Farmers Association, Zimbabwe Sugarcane Development Association Royal Trust, Chipiwa Mpapa Mill Group, Chiredzi Productive Cane Growers, Farai Dumo Augustine Musikavanhu and Roy Bhila).

The respondents will be referred to in this judgment, for convenience, as Zimbabwe Revenue Authority and the farmers respectively.

The appellants and the farmers entered into two types of agreements, either a “Cane Milling Agreement” or a “Cane Purchase Agreement” in terms of which the appellants would either provide milling services to the farmers and market their sugar and molasses or outrightly purchase the sugar cane.

The dispute which arose between the parties did not involve the outright purchase and sale of sugar cane. As such this judgment does not deal with that scenario at all. The judgment concerns itself with the cane milling agreements entered into between the parties.

In terms of the cane milling agreements, the charge for milling and marketing services, payable by the farmers to the appellants, was calculated in terms of a pre-determined ratio referred to as the “Division of Proceeds” (DoP) ratio. It was fixed at 23 percent of the proceeds the farmers would get; meaning that, the appellants would retain 23 percent of the proceeds while remitting the balance of 77 percent to the farmers.

Regrettably, in fixing the milling and marketing charge, the appellants did not include Value Added Tax (VAT) as required by law. It follows, that, no Value Added Tax was paid by the appellants to the Zimbabwe Revenue Authority in that regard.

It was in the process of auditing the appellants Value Added Tax (VAT) assessments for the period 2009 to 2017 that the Zimbabwe Revenue Authority decided that the milling and marketing charges of 23 percent of the proceeds levied by the appellants against the farmers attracted VAT.

The Zimbabwe Revenue Authority proceeded to issue assessments of value added tax (VAT) for those years and demanded payment of same from the appellants. These assessments related to the past supplies where the appellants ought to have, but failed, to collect and remit VAT to the Zimbabwe Revenue Authority.

The appellants objected to the assessments which objections were all disallowed by the Zimbabwe Revenue Authority. The appellants appealed to the Fiscal Appeals Court but paid the assessed value added tax (VAT) to the Zimbabwe Revenue Authority notwithstanding.

An appeal does not exonerate a tax payer from paying the assessed tax.

After effecting payments to the Zimbabwe Revenue Authority, the appellants sought to recover such value added tax (VAT) from the farmers on the basis that they were obliged to charge and collect the VAT from the consumers of the service, the farmers, but had not done so.

The appellants were of the view, that, it was only fair and reasonable that the farmers should re-imburse them of the value added tax (VAT) paid by them to the Zimbabwe Revenue Authority.

There being no convergence between the farmers, who had obtained advice from the Zimbabwe Revenue Authority, that, the 23 percent Division of Proceeds ratio was inclusive of value added tax (VAT), and the appellants, the latter filed an application in the court a quo.

In their application, the appellants sought declaratory relief that they were legally entitled to continue charging and collecting value added tax (VAT) from the farmers - over and above the 23 percent milling charge.

The appellants also sought to be reimbursed the monies they paid to the Zimbabwe Revenue Authority on past assessments.

In addition, they accused the Zimbabwe Revenue Authority of interfering with contractual issues between them and the farmers by rendering advice to the farmers on the value added tax (VAT) dispute.

Accordingly, the appellants sought an order interdicting the Zimbabwe Revenue Authority from what they called “gratuitously interfering in pricing and contractual issues” between them and the farmers.

The application was opposed by the Zimbabwe Revenue Authority and most of the respondents.

It was the view of the court a quo, that, the entire dispute revolved around the interpretation of section 69 and section 72 of the Value Added Tax Act [Chapter 23:12].

Regarding the past supplies of sugar cane to the appellants, the court a quo found, that, the literal meaning of section 69 of the Value Added Tax Act suggests, that, it is irrelevant whether the registered operator has charged VAT or not. If the price does not reflect the tax component, section 69 of the Value Added Tax Act operates such that there is a presumption that a price not reflecting VAT included that tax.

It was the finding of the court a quo, that, the section serves to “estop” a registered operator, who has not reflected value added tax (VAT) on the price, from denying that the price includes that tax.

It also found, that, section 69 of the Value Added Tax Act precludes such registered operator from subsequently claiming VAT not reflected on the price.

In the court a quo's view, permitting the appellants to recoup value added tax (VAT) in retrospect would render nugatory the deeming provision of section 69 of the Value Added Tax Act as the deeming provision cannot be interpreted to mean different things to two different people.

Regarding the claim for value added tax (VAT) on present and future supplies of sugarcane, which the contracts of the parties are still silent on, the court a quo took the view, that, it was up to the parties to re-negotiate or clarify the terms of their contracts in order to plug the existing lacunae.

If they do not, then, section 69 of the Value Added Tax Act will continue to apply.

The court a quo was not persuaded that a case was made for an interdict against the first respondent.

It recognised, that, the appellants had made a formal request to the first respondent to intervene and educate the farmers on the tax implications of their agreement. They could not, thereafter, cry foul after such intervention.

In addition, the court a quo found no evidence of the first respondent's interference with the pricing issues between the appellants and the farmers.

On the question of costs, the court a quo found no basis for departing from the general rule, that, costs follow the result. It dismissed the application with costs granted in favour of only those respondents who participated in the suit.

The appellants were aggrieved. They noted this appeal to this Court on the following grounds;

1. The learned judge of the court a quo erred and misdirected himself in finding that section 69 of the Value Added Tax Act [Chapter 23:12] operated to preclude the appellants from recovering value added tax (VAT) for past supplies on an alleged milling service which the first respondent considered to have been rendered to farmers.

2. Further, the court a quo erred and misdirected itself in failing to pronounce, definitively, on the appellants right and entitlement to charge, levy, and collect value added tax (VAT), and the farmers respective obligation to pay same, in addition to the value of the alleged milling service, with respect to current and future supplies pursuant to the first respondent's decision to impose tax.

3. The learned Judge of the court a quo erred and misdirected himself in failing to find, that, the letter by the first respondent to the farmers, with respect to the farmers tax obligations, strayed upon purely contractual matters which it was not competent for the first respondent to prescribe to parties.

4. The court a quo erred in awarding costs against the appellants, and in favour of the respondents in general, and, at any rate, most especially as it relates to the second (Zimbabwe Sugar Cane Development Association), fifth (Commercial Sugar Cane Farmers Association of Zimbabwe), seventh (Zimbabwe Sugar Cane Development Association Royal Trust), eighth (Chipiwa Mpapa Mill Group), and tenth (Farai Dumo Augustine Musikavanhu) respondents in particular.

The grounds of appeal may be four, but they speak to essentially two narrow issues for determination in this appeal. They are:

1. Whether or not the court a quo erred in refusing to grant the declaratur and the interdict.

2. Whether or not the court a quo erred in granting costs against the appellants.

Counsel for the appellants anchored his arguments on the legal effects of the decision taken by the first respondent, contained in its letter dated 9 September 2019. Following meetings held by the parties, the first respondent determined that:

“1. The VAT Act, under section 6, provides that VAT shall be charged and levied where a service is provided. Facts at hand indicated that millers provide milling services to the farmers and they retain 23% from the sugar proceeds…,.

Given the above legislative requirements, VAT is therefore applicable on the milling fees, and, as discussed in the meeting, VAT is recovered as depicted in the following scenario…,.”

It was submitted, that, the moment the first respondent made the decision to commence recovering value added tax (VAT) on milling services, when, prior to that, it had not done so, the provisions of section 72(1) of the Value Added Tax Act [Chapter 23:12] were triggered.

The section provides:

“(1) Whenever the value added tax is imposed or increased in respect of any supply of goods or services in relation to which any agreement was entered into by the acceptance of an offer made before the tax was imposed or increased, as the case may be, the registered operator may, unless agreed to the contrary in any agreement in writing and notwithstanding anything to the contrary contained in any law, recover from the recipient, as an addition to the amounts payable by the recipient to the registered operator, a sum equal to any amount payable by the registered operator by way of the said tax on increase, as the case may be, and any amount so recoverable by the registered operator shall, whether it is recovered or not, be accounted for by the registered operator under this Act as part of the consideration in respect of the said supply.”

To the extent that value added tax (VAT) was only imposed on the milling fees, by letter quoted above, so the argument goes, when it had not been claimed previously, the appellants were entitled to recover it from the recipients of the milling services by virtue of that provision.

It was submitted, further, that, the deeming provisions of section 69 of the Value Added Tax Act do not preclude the appellants from recovering the value added tax (VAT) paid to the first respondent. This is so because the section is a shield in the hands of the revenue collector. It is an administrative tool for the facilitation of easy collection of taxes without disruptive disputes with registered operators.

In counsel for the appellants view, section 69 of the Value Added Tax Act cannot be used to estop the operator from recovering value added tax (VAT) paid to the collector.

Per contra, counsel for the first respondent submitted, that, given that the contracts for milling services did not reflect value added tax (VAT), section 69 of the of the Value Added Tax Act applies. To that extent, in respect of past supplies, the contract price is deemed to be inclusive of VAT.

It was submitted further, that, in the absence of an agreement with the farmers to vary the contract price, even by the application of basic principles of Contract Law, the appellants could not unilaterally vary the price by levying value added tax (VAT).

On the effects of section 72 of the Value Added Tax Act, it was submitted, that, the section may be regarded as a law–changing provision. In the event that the law changes to include value added tax (VAT), where it was not applicable, so it was argued, or to increase the applicable VAT, then, by dint of section 72 of the Value Added Tax Act, the agreement is varied accordingly.

The net effect of those submissions is that the section has no application where value added tax (VAT) was excluded in the agreement when it should have been included.

Regarding the alleged interference with contractual rights and obligations by the first respondent, counsel for the first respondent submitted, that, the advice rendered by the first respondent was not only at the invitation of the appellants themselves but also in fulfilment of a statutory obligation. The first respondent is obliged to educate taxpayers on their tax obligations.

The requirements for an interdict were not met.

Counsel for the rest of the respondents in attendance, in chorus, associated themselves with submissions made on behalf of the first respondent.

In as much as the record of appeal and the submissions made by counsel are heavy, what has to be decided has become very narrow indeed. The entire appeal turns on the effect of the deeming provision in section 69 of the Value Added Tax Act [Chapter 23:12].

In particular, whether it operates to prevent a registered operator who has fallen foul of the law, by not reflecting value added tax (VAT) on the price of goods and services, from later recouping the VAT demanded by the first respondent from the consumer.

A fortiori, whether section 72 of the Value Added Tax Act applies to a situation where the registered operator has excluded or not reflected value added tax (VAT) on the price of goods and services even though the law required such registered operator to levy and reflect VAT on the price.

Section 72 of the Value Added Tax Act varies the contract price by the margin of value added tax (VAT) imposed or increased subsequent to the contract being concluded.

I agree with counsel for the first respondent, that, it is a law-changing provision as it clearly relates to the imposition of a new tax or the increase of an existing tax.

It is common cause that the burden of paying value added tax (VAT) lies with the consumer of goods and services.

The system of value added tax (VAT) collection existing in this jurisdiction was succinctly summarised by the court in Zimbabwe Revenue Authority v Packers International (Private) Limited 2016 (2) ZLR 84 (S)…, thus:

“The system of collection of VAT, as embodied in the VAT Act, involves the imposition of tax at each step along the chain of manufacture of goods or the provision of services subject to VAT.

Consequently, every registered operator is required, in terms of section 28 of the VAT Act, to submit returns to the Commissioner of Taxes ('the Commissioner') every month, calculate the VAT due on the return, and make payment of such VAT.

Due to the sheer volume and complexity of the VAT collection system, ZIMRA lacks the capacity and manpower to effectively monitor each and every transaction liable to VAT, and, as a consequence, it is heavily reliant on the self-assessment process by registered operators.

However, in order to ensure that operators comply with the requirements to render returns and collect VAT, ZIMRA conducts periodic investigations as well as audits.”

In terms of the value added tax (VAT) collection system which is in place, while the burden to pay resides with the consumer of goods and services, the registered operator bears the burden of collecting VAT and remitting it to the revenue collector.

Where the registered operator has omitted, as required by section 6(1) of the Value Added Tax Act, to include value added tax (VAT) on the price, section 69(1) of the Value Added Tax Act is activated to deem VAT to be included in whatever price is pegged by the operator.

Section 6(1) of the Value Added Tax Act is very clear in its wording, it provides:

“Subject to this Act, there shall be charged, levied, and collected, for the benefit of the Consolidated Revenue Fund, a tax, at such rate as may be fixed by the Charging Act, on the value of -

(a) The supply, by any registered operator, of goods or services supplied by him on or after the 1st January 2004, in the course or furtherance of any trade carried on by him:”

What it means is, that, by failing to charge, levy, and collect value added tax (VAT) from the consumers of their milling services, the appellants breached, to their peril, the peremptory provisions of section 6(1) of the Value Added Tax Act.

By operation of section 69(1) of the Value Added Tax Act, the 23 percent charge for milling services was taken to include VAT for all intents and purposes.

The court a quo cannot be faulted for finding, that, whether by inadvertence, oversight, or misinterpretation of the nature of the contract, the consequence of the failure to specifically include value added tax (VAT) are that it is deemed included in the milling price.

The deeming provision cannot be applied differently on the registered operator and the consumer.

As regards the question whether section 72(1) of the Value Added Tax Act rescues the appellants from the consequences of their failure to comply with the peremptory provisions of section 6(1)(a) of the Value Added Tax Act, it is clearly a matter of statutory interpretation.

In my view, the simple grammatical meaning of the words “whenever the value added tax is imposed or increased in respect of any supply of goods and services…,” is that, in the first instance, there would be no tax on such supply and the law steps in to impose a tax.

In the second instance, the law would have imposed a tax on the supply but it moves in to increase the value of tax.

In both instances, the parties would have contracted in certain terms before the law changes.

Upon change of the law, section 72(1) of the Value Added Tax Act comes in to vary the terms of a pre-existing contract to either impose or increase the tax.

I do not agree with counsel for the appellants submission, that, upon conducting an audit which revealed that the appellants were rendering a taxable milling service while not levying and collecting tax, the first respondent imposed a tax.

In my view, the law had already imposed the tax, but the appellants were committing an infraction by not reflecting it.

Again, the court a quo was correct in concluding, that, there was no imposition of a “new tax” nor an increase of chargeable tax.

Accordingly, section 72(1) of the Value Added Tax Act has no application and is certainly not available to the appellants.

Counsel for the appellants did not prosecute the issue of the interdict sought against the first respondent with any degree of enthusiasm.

It is not without reason that this is so:

(a) Firstly, evidence placed before the court a quo shows, that, the appellants invited the first respondent to intervene and educate the farmers on the tax implications of their contracts with the appellants. That the first respondent interpreted their contracts in a manner not favourable to the appellants can scarcely found a cause of action.

(b) Secondly, and more importantly, the requirements for the grant of an interdict were not met.

I can only advert to the fact that the court a quo made factual findings relating to the failure by the appellants to prove that the first respondent had interfered with the contractual issues.

It also made a finding that the advice rendered by the first respondent was only confined to value added tax (VAT) matters falling within the statutory province of the first respondent as a revenue collector.

Surely, one cannot be interdicted from carrying out a lawful duty.

The court a quo also made a finding that the use of the term “gratuitously interfering” was too imprecise and unenforceable.

On appeal, the appellants failed to set out a basis for interference with those findings.

It is trite, that, it is only where the factual findings of the lower court are clearly irrational, to an extent that no sensible court seized with the same facts could have reached such a conclusion, that the Appellate Court will interfere: see Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S); Shuro v Chiuraise SC20-19.

No such threshold was attained in the present case. As such, this Court cannot interfere.

It remains for me to deal with the question of costs.

The court a quo granted costs against the appellants in favour of those respondents who participated in the proceedings.

It premised its decision on the general rule that costs follow the result.

Its attention was not drawn to the widely held principle, in tax cases, that, the High Court or the Special Court, is loathe to make an order as to costs save where the claim is held to be unreasonable or the grounds of appeal are frivolous: see section 65(12) of the Income Tax Act [Chapter 23:06].

On appeal, counsel, again, did not address that issue at all.

It occurs to me, that, the court a quo was incapacitated in respect of costs by the failure to bring its attention to the prevailing jurisprudence on such costs. As a result, it misdirected itself, a misdirection entitling this Court to interfere with its exercise of discretion.

There is nothing in this case suggesting that the appellants case was unreasonable or that it was frivolous.

Quite to the contrary, they raised quite pertinent issues which required the court to embark on a detailed interpretation of the law. The same applies to the appeal.

In my view, this is a classic case in which the costs, both a quo and in this Court, should not be awarded to any party.

In the result, it be and is hereby ordered as follows:

1. The appeal, in respect of grounds of appeal 2.1, 2.2, and 2.3 is dismissed with each party to bear its own costs.

2. The appeal, in respect of ground of appeal 2.4, is upheld.

3. The judgment of the court a quo is amended by the deletion of paragraph 5 and its substitution with the following:

“5. Each party shall bear its own costs.”