This is an appeal against the judgment of the Harare Magistrates Court delivered on 17 February 2010 in which the court a quo granted the following order:-

“Custody of the two minor children is hereby awarded to the respondent with the appellant having reasonably access.”

The facts giving rise to this appeal can be summarised as follows:-

The appellant and the respondent entered into an unregistered customary law union sometime in 2001 and two children, namely, Blessed Muzengi (born on 14 September 2001) and Gracious Muzengi (born on 1 June 2006) were born out of the union. The appellant apparently fell ill sometime in 2009 and she had to go to her parents' home for treatment which culminated in the separation between the parties, and, consequently, the dissolution of the union. At that relevant time the two minor children remained in the respondent's custody on account of the appellant's ill-health.

It would appear from the facts, that, before the parties separated, the appellant had obtained a Maintenance Order in respect of the two minor children.

When the appellant had recovered she apparently failed to obtain custody of the two minor children and proceeded, on 28 January 2010, to file an application for custody of the two minor children with the Magistrates Court. In her affidavit in support of the application for custody the appellant stated that it is in the best interest of the children that she be awarded custody and briefly gave the following reasons;

(i) That the two minor children are of tender age (then 11 years and 4 years respectively), and, as such, need the care of their mother.

(ii) That the appellant had the means to contribute to the welfare of the two minor children as she is now engaged in horticulture business in Shamva and is able to provide, to a great extent, for the daily upkeep of the minor children.

(iii) That the respondent is not a suitable parent to have custody of the minor children as he has no time for the children and has neglected the children and had taken the eldest child to his parents in rural Chivhu.

(iv) That the two minor children have a right to a family and hence should not be separated from each other.

The record of proceedings reflects that the respondent did not file any opposing affidavit although during the brief hearing in the court a quo the respondent seemed to make reference to “his papers filed of record”. However, on the hearing date, on 11 February 2010, the respondent opposed the application by the appellant and gave the following reasons:-

(a) That the parties separated due to irreconcilable differences and the appellant left the children in his custody.

(b) That when the appellant recuperated she asked for the children on 14 December 2009 and that the children were to be returned to him after the new year since he had paid some cattle to the appellant's parents as “chiredzwa”.

(c) That he subsequently reached an agreement with the appellant that the appellant would have custody of the younger child, but, the appellant later reneged on this promise as she also wanted custody of the elder child which prompted the respondent to take the elder child to his parent's rural home in Chivhu.

(d) That the elder child has always been staying with the respondent's parents in rural Chivhu since the time he was weaned and that he is more close to the respondent's mother than the biological mother - the appellant.

(e) That the appellant is not a suitable parent to look after the children as she has in the past misused the money paid by the respondent as maintenance for the children; has failed to ensure that the children attend school at all material times; and, at one point, assaulted one of the minor children.

The appellant, in response, vehemently denied that she ever agreed to surrender custody of the minor children to the respondent and that the arrangements made were temporary as the appellant was unwell.

The appellant said the elder child was to attend school in Harare and not to be taken to rural Chivhu where the respondent's parents are supposed to take care of the child. The appellant denied assaulting any of the minor children, and, instead, said it is the respondent who assaulted the child and boasting that he could do as he pleases since the child was his.

It was after hearing the brief oral submissions outlined above, from the parties, that the court a quo, without giving reasons, granted the order referred to supra.

On 25 March 2010, the appellant asked for the reasons for the ruling made on 17 February 2010 to enable the appellant to pursue the matter on appeal. The trial magistrate responded on 29 March 2010 and gave the following reasons for the order granted on 17 February 2010:

“After having considered submissions made by both sides, the court is of the view that it will be in the best interests of the children for custody to be awarded to the respondent.”

Dissatisfied with the reasons given by the court a quo the appellant caused a notice of appeal to be filed with this court on 29 March 2010...,. 

In..., the court relied on the ordinary rule of law that an order made by a court cannot (except by way of appeal or review in a higher court) be varied except by the court itself.

The issue takes on a broader jurispudential dimension as it deals with the relationship between two courts both having jurisdiction over the same matter, the situation that obtains between the High Court and the Juvenile Court and other lower courts.

The point was made with much clarity and simplicity by McNALLY J in..., where he opined that:

"It seems to me that the question here is not which court is the senior, but which course is more conducive to stability of administration. It is clearly undesirable that I should interfere with an order made by the Juvenile Court. Indeed, since I have no power to intervene by way of appeal, and since I have already confirmed the order by way of review, it would be quite wrong, in my view, for this court to make an order in conflict with the existing order of the Juvenile Court."

The learned Judge went on to remark that a similar view had been taken by VAN DEN HEEVER in..., and that he found the approach to be both sensible and practical.

It would appear to me that this court has, over the years, adopted the approach that where there is an existing order by a court of competent jurisdiction, another court cannot make an order competing with or overriding it, even if the court making the original order is inferior to the High Court. By the same token, and in reverse order, the position, in my view, is that where there is an order of this court regulating custody of minor children, the lower court cannot make an order seeking to compete or vary such order. The issue is not that the Juvenile Court is an inferior court, but as pointed out by McNALLY J..., the courts have to adopt a sensible and practical approach to the matter and avoid dealing with orders that are properly before another court of competent jurisdiction, save as is provided for under the procedure of review.

I am much persuaded by the reasoning that having made the original order of custody with the..., undisputable condition that such is subject to variation on changed circumstances, this court was seized with the custody issue and in the circumstances, the Juvenile Court could not exercise its parallel jurisdiction in the matter at first instance nor could it purport to vary the order in a matter before this court.

The third point taken by the applicants was that as the matter is under appeal in the Supreme Court, and since that court had made an order suspending the order of this court, then this court has no jurisdiction to entertain this application.

As to whether the fact that the matter is pending in the Supreme Court counsel for the first respondent argued that the present proceedings are not the same as the matters under appeal. In any event there is nothing preventing this court from entertaining an application of this nature as it is completely different from that with which the Supreme Court is seized.

The other two points in limine taken by counsel for the applicants both raise the issue of jurisdiction.

First was that the matter is currently pending before the Supreme Court, and, therefore, this court has no jurisdiction to entertain it. No authority was cited for this proposition but reliance was placed on the words of the Chief Justice…, where he stated that the effect of his order was to suspend the 24 September judgment of this court. He urged this court to find that it cannot rescind an express order of a superior court. Second was that there is another pending matter before this court where the same issues are raised by the applicants.

With respect to counsel for the applicants, I do not see how an inquiry into whether or not this court was wilfully misled into giving the judgment which it gave could be said to overturn the judgment of the superior court. In any event, there is ample authority for the proposition that there is nothing, in principle, preventing a party from pursuing an application for rescission while an appeal of the same judgment is pending. (See HERBSTEIN and VAN WINSEN 4^th Ed…,.) The learned authors express the view that the pursuit of an appeal is no bar to the success of an application for rescission. (See also Tshivhase Royal Council & Another v Tshivhase & Another, Tshivhase & Another v Tshivhase & Another 1992 (4) SA 852…, where NESTADT J pointed out -

“Mr Zeiss made one further submission, namely that the first appeal was a bar to the application for rescission. I disagree. In principle, I can see no reason why Kennedy and Ligege were not entitled to pursue this quite separate and independent remedy, irrespective of the pending first appeal. Rule 42(1)(c) does not (unlike s36(c) of Act 32 of 1944) require that no appeal should be pending. Nor, as counsel suggested, were the appellants put to any election between pursuing the appeal and applying for rescission. They could do both.”

I am in respectful agreement with the opinion of that court which is highly persuasive on the point if regard is had to the similarities between the Rule under interpretation in that matter and our very similarly worded equivalent.

It was on the basis of the above that I declined to uphold the points raised in limine on behalf of the applicants.

The plaintiff, as represented by its Managing Director, Ms Elizabeth Chidavaenzi, issued summons out of this court on 9 June 2008 seeking the ejectment of the defendant from Stand number 3182 of subdivision A of Stand 159 Prospect in Harare ('the property').

On 2 October 2008 the defendant filed her plea and sought the dismissal of the plaintiff's claim on the basis that she was a legitimate possessor and occupier of the property in question, the right, title and interest in the property having been lawfully transferred to her by virtue of “the declaratory order issued by this court under case number HC7594A/06”.

It was further the defendant's contention that she was in occupation of the property pursuant to a sale agreement entered between herself and a company called Champion Constructors (Pvt) Ltd.

Alternatively, it was contended, by the defendant, that the plaintiff was estopped from denying that the seller, Champion Constructors (Pvt) Ltd, was the holder of rights, title and interest in, and was entitled to dispose of the property in the manner it allegedly did.

The Evidence

In support of its contention, the plaintiff relied on the evidence of its Managing Director and representative, Ms Elizabeth Chidavaenzi. Several documentary exhibits were tendered in support of the plaintiff's position which was mainly an unequivocal denial of Champion Constructors (Pvt) Ltd having been authorized to dispose of the property in the manner it did or at all.

The defendant relied on her own evidence together with the testimony of two former workers of Fingold Real Estate Agents which was said to have been mandated by Champion Constructors (Pvt) Ltd to dispose of the property to the defendant. In addition, reliance was also sought on several documentary exhibits…,.

The Issues

At the pre-trial conference which was held on 9 July 2007 the parties were unanimously agreed that the matter be referred to trial on basically two issues, viz;

(1) Whether the defendant has right of occupation over Stand number 3182 of subdivision A of 159 Prospect; and

(2) Whether the plaintiff has the right to evict the defendant from the property in question.

The Plaintiff's Evidence

The thrust of the plaintiff's representative's evidence was to demonstrate to the court that the plaintiff was the registered owner of the property in issue and that no mandate was given to anyone to sell the property.

The evidence, as presented by Ms Elizabeth Chidavaenzi, its Managing Director, who happens to be a major and controlling shareholder in both the plaintiff and Champions Constructors (Pvt) Ltd was that the property in issue was owned by the plaintiff as one of the 39 subdivisions of Stand 159 Prospect. Ms Elizabeth Chidavaenzi produced a title deed to confirm the ownership of this property by the plaintiff….,.

As regards the relationship between the plaintiff and Champion Constructors (Pvt) Ltd, it was Ms Elizabeth Chidavaenzi's testimony that the latter was contracted by the plaintiff to service the land and develop residential houses on the subdivisions and would be paid in kind for its services or in the form of completed houses which it would in turn sell to prospective home owners in order to recoup its expenses.

It was Ms Elizabeth Chidavaenzi's testimony that whilst in the past the plaintiff, through Champions Constructors (Pvt) Ltd, had mandated an estate agent called Fingold Real Estate to dispose two of its properties, it did not sanction the sale of the property in issue. According to this witness's testimony, this explains why the agreement pertaining to the defendant was not signed by the seller. To put it bluntly, she said it was a fraudulent sale which was masterminded by John Chagaresango (an employee of Finglold Real Estate) who is a close relative of the defendant.

Ms Chidavaenzi believed that John Chagaresango acted in collusion with his erstwhile fellow sales agent Ms Mutodi. It was the witness's further testimony that her attention to the 'agreement' signed by the defendant on 26 September 2006 was drawn to her for the first time ever when the defendant's legal practitioners sent her a letter of demand in November 2006 in which the lawyers were demanding that she signs the 'agreement' and that her immediate reaction was simply not to ratify such a fraudulent agreement.

It was significant that, according to this witness's testimony, Fingold Real Estate, the supposed agent of Champion Constructors (Pvt) Ltd did not present the 'agreement' to her for her signature. The witness strongly believed that Fingold sales agents, who had had the privilege of doing work for her company in the disposal of two houses earlier on, took advantage of their inside knowledge of the project to fraudulently 'sell' the property in question to the defendant.

The witness was quite adamant that for the two properties which Fingold Real Estate Agents had been mandated to sell she had herself given Fingold Real Estate Agents written sale instructions on behalf of Champion Constructors (Pvt) Ltd as is the norm in the industry.

Through her testimony, the witness challenged Fingold Real Estate sales agents to produce her written instructions to them authorising them to sell the property in question.

No such written instructions were produced.

It was Ms Elizabeth Chidavaenzi's further testimony that even if one were to lean backwards and accept for a moment that there had been a proper agreement between the defendant and Champion Constructors (Pvt) Ltd, the defendant had not even made the slightest attempt to comply with various provisions of that agreement to the extent that the defendant would not have been able to enforce it. It is significant that this breach was accepted by the defendant and both Ms Mutodi and John Chagaresango, both of whom sought to justify it on the strength of some other oral promises allegedly made by Ms Elizabeth Chidavaenzi.

Ms Chidavaenzi commented on the final order granted in favour of the defendant…, She said this order was confirmed in default and that an attempt was made to oppose the confirmation of this order but failed on some technicality. The witness further said that the poor handling of this particular case was one of the reasons she severed ties with her erstwhile legal practitioners, namely, Messrs Mandizha and Company. Ms Chidavaenzi further explained that, at the time, herself and Champion Constructors (Pvt) Ltd were barred leading to the granting of the final order in question the parties were engaged in negotiations to try and amicably resolve this matter.

Ms Chidavaenzi's understanding was that the final order in question did not give the defendant the right of occupation but the right to enforce the agreement. She stated that from the time the defendant obtained the order in question she has made no attempt to enforce that order and that even if she had attempted to do so she would not have succeeded.

It was further the evidence of Ms Chidavaenzi that having discovered this fraudulent agreement which involved the defendant, purely out of compassion and consideration for the defendant she initiated negotiations to try and resolve the impasse and that the only original but heavily amended (in pen) document from Fingold Real Estate (which bears the name of Betty Kanyuchi as a replacement of Miss Sibongile Kaziboni) must be looked at within this context.

Indeed, correspondence…, confirm there were in fact some discussions which were carried out on a “without prejudice' basis.

The Defendant's Evidence

In summary, the witness's evidence dealt with how she came to be involved in the “purchase” of the property in issue having been assisted to do so by a close family member, John Chagaresango, a son to her elder sister. She said John Chagaresango was working for Fingold Real Estate Agents.

It was her accepted evidence that she had told John Chagaresango that she wanted to buy a house and that having seen a completed sample house and the house now in issue under construction, she was invited by her nephew, John Chagaresango, to sign an agreement of sale on 26 September 2006 which was witnessed by John Chagaresango, Mr Phiri, her advisor, and one Faith Muzungu a younger and literate relative of hers.

It was her testimony that after signing the agreement…, she commenced to pay in three different instalments on 28 September 2006, 9 October 2006 and 3 November 2006 a total Z$32,500,000=. She had difficulties in explaining why she paid an extra Z$500,000= if the price of the property was pegged at Z$32,000,000=.

She said that sometime in November 2006, after she had made three payments, she went to view progress of construction on site where she met Ms Chidavaenzi for the first time. It was her evidence that, on confronting her on delay in the construction, Ms Chidavaenzi commented that the witness was troublesome and that the house would be finished soon. The record of proceedings will show that despite this being a very critical part of the defendant's case, Ms Chidavaenzi was never cross-examined on her alleged encounter with the defendant.

It was the defendant's evidence that the terms of the agreement which she signed were never explained to her and that she was assured by John Chagaresango that Ms Elizabeth Chidavaenzi would sign the agreement upon full payment of the purchase price of the property.

The defendant further explained that she moved onto the disputed property and started making improvements towards finishing the house. Under cross examination she told the court that Ms Chidavaenzi did not authorise her to make any improvements. It was very clear that the defendant blindly signed the agreement of sale….,.

The Evidence of Evis Monica Mutodi

She was the second witness called by the defendant to bolster her case.

The witness has a fairly balanced academic background and her chain of qualifications were given as follows:- a Bachelar's degree in Chemistry and a Certificate in Education (both from University of Zimbabwe), a qualified examiner with Zimsec and a Diploma in Real Estate with the Estate Agents Council of Zimbabwe. She is a member of the Estate Agents Council of Zimbabwe. The witness said she had 4 years experience in real estate.

It was the witness's evidence that at the relevant time she was employed by Fingold Real Estate as a Sales Negotiator and had previously sold two properties on behalf of Champion Constructors (Pvt) Ltd in the same scheme as the house in issue. The witness said she did not know and never dealt with the plaintiff in this case but dealt with Champion Constructors (Pvt) Ltd.

Ms Mutodi said she got to know of the defendant through her then workmate, John Chagaresango, who introduced her as someone who was looking for a house to buy. She said she then telephoned Ms Chidavaenzi who positively responded by referring her to the house in issue as being available for sale. She then drove to the site with the defendant, John Chagaresango, and another member who she could not remember. On site they were cleared to view a completed sample house first before they proceeded to Stand 3182 (the Stand in issue). The defendant, having shown interest, expressed the desire to purchase the property after which the witness said she telephoned Ms Chidavaenzi to advise of the defendant's interest. It was her evidence that she advised Ms Chidavaenzi that John Chagaresango would be reporting to her office in pursuit of this transaction. She understood, thereafter, an agreement was drawn up but she did not take part in drawing up that agreement.

The witness was emphatic in her evidence in chief that she did not deal with the defendant other than driving her to the construction site. She also remembered that when they visited the Stand in question no work had commenced on that Stand.

Under cross-examination, the witness confirmed that when they visited the property in question no work had commenced on it. However, with further probing she appeared uncertain of what the exact position of the property was.

The difficulty with this witness's evidence was that her alleged telephone conversation with Ms Elizabeth Chidavaenzi, important as it was given the nature of the plaintiff's declaration…, was never put to Ms Chidavaenzi in cross-examination.

Secondly, Evis Monica Mutodi's evidence was characterized by unmistakable prevarication.

In her evidence in chief she said the initial instruction to sell the property in question was given to her by Ms Chidavaenzi. When questioned by the plaintiff's counsel in what form the instruction came, she said it was Ms Chidavaenzi's practice to put instructions on an agreement of sale for Fingold Real Estate.

Probed further, she said such instructions had been given to her over the telephone.

When that averment was further tested, under cross-examination, she changed and said the instructions were in fact given to Mrs Alec over the telephone in her presence but conveniently claimed not to have heard everything that was said.

In one breadth she said she was given the instructions in agreement form and that she had herself taken that initial instruction to the defendant's lawyers. When further probed she changed her story and said that those initial instructions to sell the property were in fact given to Fingold Real Estate typists.

The record of proceedings, particularly where this witness was cross-examined, will reveal a sorry state because at the end of her evidence she had presented a hopelessly confusing piece of evidence.

It must be remembered that this witness was very critical to the defendant's case in that she was supposed to provide the nexus between the original instructions to Fingold Real Estate by Ms Elizabeth Chidavaenzi leading to the alleged contractual agreement with the defendant.

That nexus was heavily compromised by the prevarication which characterized Ms Mutodi's evidence.

Against that prevarication is the clear and concise evidence of Ms Chidavaenzi which was to the effect that she did not authorize or mandate Fingold Real Estate or anyone for that matter to dispose of the property in issue.

It is also significant that the much talked about written initial sale instructions to Fingold Real Estate were never tendered in court. Ms Chidavaenzi was quite categoric that there were no such instructions, and, in my view, the probabilities are firmly in her favour.

There were other aspects of Ms Mutodi's evidence which were far from convincing. It is common cause that both Ms Mutodi and John Chagaresango were employed by Fingold Real Estate Agents as sales agents or negotiators. They had worked together for a fairly reasonable length of time. However, when pushed, under cross examination, Ms Mutodi said she did not know whether or not John Chagaresango was a registered estate agent. She also said she did not know John Chagaresango's qualifications.

Further, her evidence under cross-examination was not consistent with that of the defendant even on the purchase price.

The defendant said the purchase price was pegged at Z$32,000,000= but Ms Mutodi said she told the defendant that the price was Z$32,500,000=. Not only that, but Ms Mutodi told the court in her evidence under cross examination that she disclosed to the defendant about some clauses in the sale agreement. Compare this with the defendant's evidence who said she was never told anything including any escalation in the event of delayed payment and any other clause in the agreement. In fact, the defendant's explanation was that when it came to the agreement itself she dealt with her cousin John Chagaresango and not Ms Mutodi.

The witness was categoric that the purchase price of the property was Z$32,500,000 when everyone else involved in this transaction, including the defendant and John Chagaresango, including the written copy of the supposed agreement, reflect Z$32,000,000 as the purchase price.

As the cross-examination took its toll on her, Ms Mutodi reneged from her earlier evidence that she had personally negotiated the agreement itself with the defendant but rather had dealt with John Chagaresango.

There was more confusion when the defendant's counsel sought to put things right in re-examination. The witness again changed her story and stated that the instructions to sell were given to her and she passed them on to John Chagaresango.

I think, in all fairness, it would be extremely dangerous for this court to seek to be guided by the evidence of this witness. She sufficiently discredited herself and the record of proceedings will confirm this observation.

If Evis Monica Mutodi's evidence was so porous and unconvincing then perhaps it is time to move and look at the evidence of John Chagaresango.

The Evidence of John Chagaresango

This witness was the last one for the defendant and is closely related to the defendant in that he is a son to the defendant's older sister.

The witness told the court that he went as far as Standard Six and did undergo some in-house training as a sales agent at Fingold Real Estate. At the time, he had worked for Fingold Real Estate, as a sales agent, for about 3 and a half years.

From his own testimony, it was clear the witness was quite conversant with his work. He said he was involved in advertising houses for sale, taking potential purchasers to view houses for purchase, verifying ownership of houses by checking title deeds through the Surveyor General's office, and handling agreements of sale.

The witness confirmed that the defendant was indeed closely related to him and that she had mandated him to look for a house to purchase.

The witness told the court that he knew Ms Chidavaenzi as they worshipped at the same church and then later interacted with her at Fingold Real Estate as Ms Chidavaenzi was not only a friend of Ms Violet Alec, the owner of Fingold Real Estate, but had given Fingold Real Estate the mandate to sell certain of her properties.

It was the witness's evidence that he was familiar with the sale of the property in question. Throughout his testimony, he referred to the property in question as Stand 1382. However, the truth is that the correct reference of the property is Stand 3182.

It was quite revealing that John Chagaresango vividly remembered Ms Chidavaenzi instructing Fingold Real Estate to dispose three of her properties but conveniently he said he was only involved in the sale of this particular property which incidentally is linked to his aunt and is the subject of this dispute.

In contrast with the evidence of Evis Monica Mutodi, John Chagaresango told the court that prior to the defendant visiting the site for construction Mrs Violet, Ms Mutodi, Ms Chidavaenzi and himself had been to the site.

John further told the court that it was to him that Ms Chidavaenzi disclosed the purchase price of the property in issue. Compare this with the testimony of Ms Mutodi who had earlier on told the court that it was to her that this same disclosure was made.

John vividly remembered that the agreement of sale was prepared at Fingold Real Estate with him and Ms Mutodi present and having some imput in it. This was inconsistent with the evidence of Ms Mutodi who said, among other things, that she handed the original instructions to John and that once she did that she had nothing further to do with that agreement.

There was further confusion created by John Chagaresango's evidence when he suggested that once the agreements were done, he, together with Evis Monica Mutodi took those copies, together with the original instruction copy, to Ms Chidavaenzi at her office at Robinson House to have the copies signed. It was his evidence that Ms Chidavaenzi then asked them to leave those copies for her to scrutinize after which she would telephone them. John went on to say that when he later followed up on those documents, Ms Chidavaenzi told him not to worry as she would sign the documents.

This piece of John's evidence presented quite some challenge to the court for basically three reasons;

(i) Firstly, it was in sharp contrast with the evidence of Ms Mutodi who clearly stated that once she gave the original instructions to John Chagaresango she never had anything to do with this agreement. She did not herself testify on the visit to Robinson House.

(ii) The second reason why the court had difficulties with this evidence was that, important as it appeared in as far as the plaintiff's declaration was concerned, Ms Chidavaenzi, who was subjected to quite some long and searching cross-examination, was never specifically asked about this visit to her offices by both Ms Mutodi and John Chagaresango as well as John Chagaresango's follow ups.

(iii) Thirdly, and more importantly, is the fact that after the trial had started the defendant filed a supplementary summary of evidence in which she undertook to produce “the original draft agreement with handwritten alterations by Miss E Chidavaenzi which alterations she made at the time of sale before the final draft was produced. This is evidence of her mandate from Ms Chidavaenzi.”

The assumption was that this document was available and would be produced in court. Alas! it was never produced and the explanation by John Chagaresango as regards the fate of this document runs contrary to what the defendant's summary made on the 11^th hour with the indulgence of the court sought to portray.

John further told the court, under cross-examination, that he did not explain all the terms of the agreement to his aunt, the defendant. Asked to explain his reasons for not doing so he retorted as follows:

“I did not because the sale of this property was done on trust between Ms Chidavaenzi and myself.”

In cross examination, the witness was directed to specific clauses of the agreement which were apparently not complied with by the defendant, and all the witness could do was to repeat that this agreement was not based on what the defendant and himself and others (as witnesses) had signed for but on other verbal assurances by Ms Chidavaenzi.

Assuming the agreement was indeed entered into, it was quite curious to the court that given the experience of John Chagaresango in real estate business, he would have failed to appreciate the significance of a written contract, particularly a contract with a variation clause which is as specific as clause 8 of the agreement which is sought to bind the parties in this case.

Surely, if the agreement was to be based on some other verbal assurances by Ms Chidavaenzi, would it have been prudent for a man in the mould of John Chagaresango to encourage his aunt to sign an agreement which was in sharp contrast with such verbal assurances. An inevitable question would then arise, why sign the agreement if one desires not to be bound by the terms above one's signature?

General Assessment of the Evidence

The evidence of the plaintiff's representative and Managing Director of both the plaintiff and the alleged seller, Champion Constructors (Pvt) Ltd, was precise and to the point. The witness was consistent throughout her testimony – firstly, in her plea, followed by her summary of evidence, her evidence in chief, and in her evidence under cross-examination that she did not give Fingold Real Estate, or anyone for that matter, the mandate to dispose of the property in issue and that what happened was tainted with fraud. She was quite clear that she only got to know about the alleged sale which had supposedly taken place on 26 September 2006 in November of the same year when a letter of demand had been dispatched to her by the defendant's legal practitioners and that she decided not to ratify such a fraudulent agreement.

The court was unable detect anything sinister in Ms Chidavaenzi being a major shareholder in both the above entities, that is Champion Constructors (Pvt) Ltd and the plaintiff.

The witness was subjected to a focused and thorough cross-examination, and, in my view, she acquitted herself extremely well and emerged unscathed.

One of the several pointed questions which was thrown at the witness in cross examination which demonstrated her focus and open-mindedness, which, in the court's view, gave some indication as to the possible motives behind the conduct of Evis Monica Mutodi and John Chagarasango in coming up with this idea of this 'sale' is captured in the record of proceedings as follows:-

“Q. Is there any probable reason why Ms Mutodi would go on to sell a specific Stand in respect of which she has no mandate?

A. A human being is not predictable, and, in this case, the most probable reason could have been money because on each sale they made they would earn a commission and Fingold confirms it that Monica Mutodi and John both shared the commission they earned from the unlawful sale.”…,.

As a witness, I found Ms Elizabeth Chidavaenzi focused, emphatic, confident, and convincing throughout the proceedings. Her evidence proclaimed loudly and boldly that there was no contract to talk about between Champions Constructors (Pvt) Ltd and the defendant.

The same cannot be said of the evidence of Evis Monica Mutodi and John Chagaresango. I have already tried to highlight some of the obvious shortcomings in their testimonies. Their evidence, individually and combined, was quite suspect as it failed to tally where it mattered most.

The evidence of the two witnesses was critical to the defendant's case because it was through them or one of them that the defendant's case was supposed to be anchored.

After listening to, and carefully weighing that evidence it became clear to the court that Fingold Real Estate could not possibly have been mandated to sell this property to the defendant by Champion Constructors (Pvt) Ltd or anyone for that matter. If my reading of the evidence is correct (which I am certain it is) then Fingold Real Estate could not possibly have acted as an agent of Champion Constructors (Pvt) Ltd.

We have a scenario where, at most, John Chagaresango acted as an agent of his aunt, the defendant, in looking for a house to purchase. If John abused his position at Fingold Real Estate then the defendant, by initiating this litigation, has targeted the wrong party. She is simply 'barking up the wrong tree.” The defendant's recourse should be against either Fingold Real Estate Agents or its identified former employees, John Chagaresando and Monica Mutodi, if it is true they shared the commission derived from the money paid by the defendant (which allegation incidentally stands unchallenged in the record of proceedings).

The effect of the order of this Honourable Court

That order was an order by default and it was affecting the parties cited therein, viz, the defendant in the instant case, Champion Constructors (Pvt) Ltd and Elizabeth Chidavaenzi.

Paragraph (a) of that order clearly stated that it was “legally binding and enforceable against Champion Constructors (Pvt) Ltd.”

It is common cause that the holder of title of the property in question is the plaintiff in this case, which was not cited in the proceedings of 19^th September 2007. It appears quite clear to me that this order could not possibly have been fully enforced without the citation of the holder of title - the plaintiff.

This might possibly explain why almost three years after obtaining that order the defendant has not attempted to enforce it. The defendant might have fully appreciated the futility of pursuing that route.

In any event, it is doubtful that if the court sitting on 19 September 2007 had been fully armed with the evidence presented in this fully fledged trial would have granted that order. In my view, the court would have been constrained to grant that order given that the title holder was not party to those proceedings. No court desires to be associated with a brutum fulmen decision.

The first and second applicants are directors of the third applicant, which operates safari activities in the Zambezi Valley Area.

The first and second respondents are directors of the third respondent, which is also a safari operator.

The fourth respondent is the National Parks and Wildlife Management Authority (the Authority) responsible for managing all safari operations in Zimbabwe.

Background

The applicants were granted two written concessions to operate hunting safaris in the Rifa Safari Area for a period of 10 years expiring on the 31st of December 2007.

Before this date, on the 18th of October 2007, the National Parks and Wildlife Management Authority (the Authority) conducted an auction for a new 5 year concession in respect of the applicants' concession area. At that auction, the applicants were prevented from bidding for the concession because they had failed to furnish the requisite Bank guarantee.

According to the first applicant, he then approached the first respondent who undertook to bid on behalf of the applicants after exhausting the respondents' own bidding limit.

The first respondent won the final bid for the sum of $750 billion.

The first applicant then thanked him and was congratulated by all present for having retained the concession.

Subsequently, on the 20th of October 2007, the respondents reneged on their arrangement and sought to retain the concession for themselves.

The respondents deny the applicants averments.

They contend, that, all bidders at the auction were fully aware of the Bank guarantee stipulation, as was clearly stated in the National Parks and Wildlife Management Authority's prospectus, and that there was no arrangement between the parties prior to the auction.

They did, subsequently, discuss the possibility of sub-letting part of the concession area to the applicants but nothing concrete materialised thereafter.

They further aver, that, if their Concession Agreement with the National Parks and Wildlife Management Authority (the Authority) were to be cancelled, they would suffer irreparable harm.

The National Parks and Wildlife Management Authority (the Authority) avers, that, the application is fatally defective in that it does not cite the Minister of Environment and Tourism (the Minister) as required by the Parks and Wildlife Act [Chapter 20:14].

Moreover, the Parks and Wildlife Act stipulates a maximum period of 10 years for hunting concessions and, therefore, the applicants cannot be granted any further extension....,.

The issues for determination herein, as I perceive them, and as concurred by counsel, are as follows:

1....,. 

2. Whether the Parks and Wildlife Act [Chapter 20:14] precludes the grant of hunting concessions to any safari operator beyond the period of 10 years....,.

Section 37 of the Parks and Wildlife Act [Chapter 20:14] empowers the grant of leases and hunting rights in safari areas as follows:

“The Authority, with the concurrence of the Minister, may —

(a) Lease sites in a safari area to such persons and for such purposes as it deems fit;

(b) Grant hunting or other rights over or in a safari area to such persons as he deems fit; subject to such terms and conditions as he may impose:

Provided that —

(a) The period of a lease in terms of paragraph (a) shall not exceed twenty-five years;

(b) The period of hunting or other rights in terms of paragraph (b) shall not exceed ten years;

(c) A grant of hunting or other rights, in terms of paragraph (b), shall not prohibit persons from entering into the safari area concerned for purposes other than those for which the rights have been granted.”...,.

Maximum Period of Hunting Concessions

At the hearing of this matter, counsel for the first, second and third respondents did not persist with this point, but, counsel for the fourth respondent reiterated the National Parks and Wildlife Management Authority's stance, that, the applicants were precluded, by section 37 of the Parks and Wildlife Act [Chapter 20:14], from being granted any hunting concession beyond the limit of 10 years.

Proviso (b) to section 37 of the Parks and Wildlife Act stipulates that “the period of hunting or other rights in terms of paragraph (b) shall not exceed ten years.”

What this clearly means is that any single hunting concession granted under the section cannot exceed the period of 10 years. It may, at any one time, be granted for the maximum period of 10 years or for any shorter period.

However, the provision does not, in my view, preclude the grant of a further concession to a prior holder who has held one or more concessions amounting to 10 years, so long as the new concession does not exceed the maximum period prescribed.

It follows, that, the National Parks and Wildlife Management Authority's contention in this regard cannot be sustained and that the applicants are therefore not barred from being granted further hunting rights under the Parks and Wildlife Act.

The applicant is a duly registered company in terms of the laws of this country. It is in the business of importing and marketing fuel in terms of licence number 000228 issued by the respondent Ministry on the 2^nd of January 2009.

It is common cause that on the 4^th of September 2009 a consignment of 476,427 litres of diesel was imported into the country from Sasol South Africa through the Beitbridge boarder post. The diesel was delivered to Zimbabwe in train wagons to be off-loaded at NOCZIM, Beitbridge but destined for Chiredzi. The transporter was unable to off load the product on the instructions of the second respondent, a director in the first respondent's ministry.

The second respondent's functions include:

1. Managing, monitoring and reviewing all Government-initiated or sponsored liquid fuel supplies contract and all fuel safety and quality standards; and

2. Providing leadership and facilitating the strategic management process to guide the operation of the Petroleum Department and the oil industry.

The applicant's complaint is basically that the second respondent is abusing his authority and has taken the law into his own hands by placing an embargo on the product when there is no law which authorizes him to do so.

The responsible Minister in the respondent's ministry has since filed an affidavit dated 8^th October 2009 ratifying the second respondent's conduct. In that affidavit he acknowledges responsibility for his conduct in the following terms:

"4. On the 14^th September 2009 I ordered the return of substandard diesel imported by a company called BSKY because it did not meet the quality specifications that we have determined. The level of 4400ppm imported by BSKY was too high and thus unacceptable.

5. Moreso is the fact that the high sulphur content of 50ppm to 500ppm is a Regional standard that has been agreed upon by South Africa, Zimbabwe, Tanzania, Mozambique, and Malawi. This position has been approved by Cabinet.

6. This Cabinet position is known and was communicated to the oil industry leading to the setting up of the National Procurement Committee to enforce quality and prices monitoring, and, sometimes, control.

7. Soon after we liberated the importation of fuel the rule of practice in the industry to set the quality has now been breached by BSKY.

8. There is no understanding the damage that can be caused by high sulphur diesel being imported in the knowledge of the serious corrosive effect.

9. The imported diesel is hazardous to property and I believe, as Minister of the State of Zimbabwe, I have a duty flowing from the Constitution to protect our citizens and property posed by such dangers knowingly caused by a licensed company because it believes there may be a gap in the law in terms of quality level stipulation by statutory instrument.

10. I am reliably informed that the diesel is a hazardous substance therefore is limited in its use as it damages the environment.

11. I am informed, in terms of the Environmental (Hazardous Substances Pesticides and Other Toxic Substances) Regulations, 2007 such substance(s) can only be imported under notification and license from the Environmental Management Agency.

12. I am also informed that counsel for the applicant has failed to produce the same under law.

13. The licence issued by my ministry is not for the importation of the substandard fuel."

Upon placing an embargo on the fuel in dispute the ministry constituted an investigating team comprising Ministry and NOCZIM staff. The team's terms of reference were to inspect the product by way of reading documents or breaking seals and taking samples for testing. Thereafter, the team would gather information and report on the quality of fuel being imported by various companies through the Beitbridge boarder post.

In discharging its mandate, the team was supposed to work in conjunction with ZIMRA staff. ZIMRA however objected to the intended investigations particularly the breaking of seals and taking of samples pointing out that it was unlawful. With much reluctance ZIMRA management finally granted the team access to the relevant documents. The team then proceeded to discharge its mandate by restricting itself to perusing the documents without breaking the seals and analyzing samples. In its written report the investigating team made the following findings:

"Findings

(a) We found that all fuel from SASOL was of the high sulphur type (0.5/500ppm). This is far above Zimbabwe spec.

(b) All companies importing SASOL products were dumping its product on poor countries (Zambia, Zimbabwe, DRC and other countries).

(c) ZIMRA had no legal mandate to check fuel quality as there was no instrument to that effect.

(d) We have always been using high sulphur diesel in our engines, so there is no new harm that can be done now.

(e) Ministry, in collaboration with EMA and ZIMRA, to draft an instrument on fuel specifications that is legally binding.

(f) ZIMRA to act on the basis of the instrument on fuel specifications so that they deny product on entry.

(g) SASOL to be advised of Zimbabwe's required fuel specifications.

(h) BSKY fuel is released as demurrage charges may be charged to the Ministry upon losing its case.

(i) Fuel samples should be collected at destinations as companies may possibly change their paper work without changing their product quality.

OPTIONS

Option One

Stopping high product entry.

Implication of Option One

It has some legal implications as there is no instrument to that effect. This may also result in critical fuel shortage…,.

Option Two

To continue business while putting the required legislation in place.

Implications of Option Two

This will ensure a smooth change over to agreed specs without interrupting product inflow into the country."

The above report is expertly written and presented such that one cannot imagine a better report or recommendations.

What emerges quite clearly from the report is that Zimbabwe has no legal instrument which entitles the respondents, or anyone, to regulate the quality of fuel being imported into the country. This stark reality has left both the Minister and the second respondent groping in the dark for legal authority to justify what is clearly unlawful conduct.

Both the first and second respondents have conveniently made no reference to the above report in their detailed opposing affidavits. As things stand, one cannot but surmise that they have deliberately sought to steer away from the report because it is not to their liking and yet they are unable to challenge its findings. That kind of conduct smacks of a deliberate attempt to mislead the Court by silence particularly on the part of the second respondent whose function includes advising the Minister on policy issues such as these.

On the facts before me it is doubtful that the report was drawn to the Minister's attention before he endorsed the order to place an embargo on the fuel in dispute or at the time he executed his opposing affidavit.

The attempt to conceal the investigating team's report tends to confirm the applicant's allegation that the second respondent was motivated by some improper motive, malice or ill-will in placing an embargo on its fuel when its competitors were importing the same fuel without let or hindrance from the same respondents. The applicant's Managing Director makes the telling point, in paragraph 10 of the applicant's founding affidavit, when he says:

"It will also be seen from the letter from Sasol, dated 1^st October 2009, that apart from the applicant, fifteen other companies are importing the same diesel as the one imported by the applicant in this case. These other companies have been allowed to have their diesel imported into the country without any obstruction. I must point out that Redan, the largest private importer and retailer of fuel in Zimbabwe are importing the same Sasol diesel. This can be seen from the letter from Sasol mentioned above and which I attach as Annexure "E".

The letter from Sasol reads in part:

"As from the 29^th of September 2009 Sasol Oil sold approximately 1,500m³ of Diesel 5000ppm into Zimbabwe. This is to let you know that Diesel 5000ppm is also sold in Zambia and the DRC in considerable quantities. The following companies all moved diesel 500ppm into Zimbabwe for the month of September 2009: UTEC, Nettrade Marketing, Redan, FX International, Petrotrade, Tradimex, Imvuselelo, Cargo Carriers, Lydon, Lemino, Zelda, Stoner Trading, Khumbulani and Bojas."

That much is common cause as the respondents have not been able to challenge those factual dispositions.

In his opposing affidavit, the first respondent nevertheless deposed that in imposing the embargo he was exercising his Constitutional mandate to give general direction and control over his ministry and departments in terms of section 31D of the Constitution which provides that:

"(3) Subject to the provisions of this Constitution and any Act of Parliament, where any Minister has been charged with responsibility for any Ministry or department he shall exercise general direction and control over that Ministry or department, and, subject to such direction and control, any such Ministry shall be under the supervision of a Secretary."

It must be noted that the Constitutional mandate restricts the minister's authority to his ministry in so far as the section states that "…, he shall exercise general control and direction over that Ministry" and not any other Ministry.

While it is correct for the first respondent to say, as Minister, he has a Constitutional duty to exercise general direction and control over his ministry or departments, that Constitutional mandate must be exercised within the strictest confines of the law. It cannot, and must not, be used as a vehicle to act outside the strict confines of the law. The words of PROFESSOR FELTOE, in his booklet, A Guide To Administrative Law…, are instructive when he says:

"All administrative powers (other than those exercised by domestic tribunals) derive from statute and the nature and extent of those powers are to be found in the statutory provisions whereunder these powers have been granted. Such powers are not unlimited. The legislature will not give unlimited power, but, instead, it will give power for specific purpose only or subject to special procedures or with some other kinds of limits. In other words, the limits upon the power are to be discovered by examining the statutory provisions in order to determine what powers the legislature has expressly or impliedly granted. The exercise of a power by an administrative official or body will be invalid unless the official or body is authorized to exercise that power. If an administrator purports to exercise a power he does not have or acts in excess of a power he possesses, his action will be invalid on the basis that it is ultra vires."….,.

Thus, the first respondent cannot use the general powers granted to him by the Constitution to arrogate to himself specific administrative powers which have not been granted to him by the legislature.

His resort to cabinet authority and directives as justification of his unlawful conduct is equally misplaced and without merit because cabinet has no legislative authority. It is trite that laws are made in Parliament and not in Cabinet.

The first respondent also sought to argue that as a Government Minister he placed the embargo on the diesel in the public interest because it constituted a harmful substance in terms of the Environment Management Act [Chapter 20:27] as read with the Environment Management (Hazardous Substances, Pesticides and other Toxic Substances) Regulations, Statutory Instrument 12 of 2007.

In other words, the first respondent is claiming that he has authority to administer the Environmental Management Act simply because he is a Government Minister.

Section 2 of the Environment Management Act [Chapter 20:27], however, defines Minister in the following terms:

"'Minister' means the minister of Environment and Tourism or any other minister to whom the President, may, from time to time, assign the administration of this Act."

What that means is that for the purposes of administering that Act, the law does not recognize any other Minister other than the Minister of Environment and Tourism or any other Minister specifically assigned the task of administering that Act by the President.

In this case, it is common cause that the first respondent, as Minister of Energy and Power Development, he is neither the Minister of Environment and Tourism nor has he been assigned by the President the right to administer the Environment Management Act. For that reason, he cannot assign to himself the power to administer the Environment Management Act without usurping both the President and the Minister of Environment and Tourism's functions.

That being the case, the first respondent's conduct, in assuming responsibility over the Environment Management Act, without Presidential authority, was unconstitutional, and, to that extent, unlawful. In legal parlance his conduct was ultra vires the Constitution as read with the Environment Management Act [Chapter 20:27] and the Environment Management (Hazardous Substances, Pesticides and other Toxic Substances) Regulations, S.I.12 of 2007.

Looked at from a different angle, a perusal of the Constitution, the Environment Management Act [Chapter 20:27] and the Environment Management (Hazardous Substances, Pesticides and other Toxic Substances) Regulations, S.I.12 of 2007 shows that nowhere do they authorize any Minister to place an embargo on any fuel on the basis that its specifications constitute a hazardous substance or is harmful to motor vehicles. This explains why the responsible Minister, that is to say, the Minister of Environment and Tourism has wisely chosen not to interfere with the importation of the diesel in question.

Resorting to the Constitution, the Environment Management Act [Chapter 20:27] and the Environment Management (Hazardous Substances, Pesticides and other Toxic Substances) Regulations, S.I.12 of 2007 could not assist the respondents achieve their purpose considering that in the case of Minister of Justice and Law and Order and Another v Musarurwa and Others 1964 RLR 298 the Appellate Division held, per BEADLE CJ, that:

"(3) When several Acts are used together for the single purpose of producing a desired result, all the Acts must be looked at together as comprising one scheme, If, in its pith and substance, such scheme is unlawful, what was done under each Act must be regarded as having been unlawfully done."

In the same case, QU'ENET JP weighed in with the observation that:

"In exercising his powers of restriction, the Minister was not influenced by a desire to give effect to the purpose of section 50(1)(b) of the Law and Order (Maintenance) Act [Chapter 39], but by a desire to achieve a result not contemplated by the section, viz, to regulate the visits of other persons to the area of restriction. The existence of such ulterior motive invalidated the orders."

In this case, the Minister's resort to section 72 of the Environment Management Act was not motivated by a desire to advance the purpose of that section but to bar the applicant from importing the diesel in circumstances where others were importing such diesel without let or hindrance. I come to that conclusion because the section does not authorize anyone to bar the importation of such diesel. It reads:

"72 Hazardous waste

(1) The Standards and Enforcement Committee shall, in consultation with the Agency, recommend to the Board standard criteria for the classification of hazardous wastes with regard to determining —

(a) Hazardous waste;

(b) Corrosive waste;

(c) Flammable waste;

(d) Toxic waste;

(f) Radioactive waste;

(g) Any other category of waste the Board may consider necessary.

(2) The Board shall, on the recommendation of the Standards and Enforcement Committee, issue guidelines and recommend to the Minister the making of regulations for the management of each category of hazardous waste determined under subsection (1).

(3) Regulations referred to in subsection (2) may prescribe the procedure and criteria for:

(a) The control of imports and exports of toxic and hazardous chemicals and materials permitted to be so imported or exported;

(b) The distribution, storage, transportation and handling of chemicals and materials."

As can be seen, the section simply authorizes the responsible Minister to make regulations controlling the importation of hazardous waste. Diesel with a high sulphur content is however not waste. The section does not prohibit the importation of substandard fuel.

The general rule of law is that what is not prohibited is allowed. As the importation of sub-standard fuel is not prohibited by law it means its importation is legally permissible.

It follows, therefore, that the Investigating Committee and ZIMRA were absolutely correct in advising the second respondent that his conduct was unlawful.

He disregarded that sound advice at his own peril.

His conduct becomes especially malicious and objectionable if one takes into account that he singled out the applicant for victimization in circumstances where fifteen (15) others were not penalized at all and continue not to be penalized for the same alleged misdemeanor. This discriminatory conduct offends both against the Constitution and all notions of justice and fairness.

Being an adviser to the first respondent, the second respondent appears to have misled his principal by concealing and deliberately not disclosing to him the Investigating Committee's report.

That kind of conduct cannot be tolerated by these courts.

By consciously ignoring sound advice, thereby deliberately straying into the wilderness of costly illegality, the second respondent cannot cry foul when he is personally visited with adverse costs.

Granted, the second respondent was acting in the course of duty as a civil servant but while going about his duties he was not entitled to act unlawfully thereby trampling on other people's rights.

A civil servant, or any other employee for that matter, who acts unlawfully in the course of duty attracts personal liability for the simple reason that he is not employed to discharge his duties contrary to law. People must not cause harm to others under the guise of executing official duties. There is therefore no merit in the second respondent's objection to being sued in his personal capacity.

While the importation of substandard fuel is undesirable and harmful to public interest, there is absolutely nothing the respondents can do about it in the absence of the necessary legal instruments as recommended by the Investigating Committee. This is what the cherished rule of law is all about.

It is accordingly ordered that a provisional order be and is hereby granted in the following terms:

TERMS OF THE FINAL ORDER SOUGHT

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

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

(a) That the respondents pay demurrage costs to the amount of South African R308,660=.

(b) That the respondents pay costs of suit on an attorney client scale.

INTERIM RELIEF GRANTED

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

(c) That the Respondents release to the Applicant diesel or its agent fuel held at Beitbridge being a total of 476,427 litres without any conditions.

(d) That the Respondents are interdicted from unlawfully frustrating or preventing Applicant from carrying out its business of trading in fuel including importing and distributing fuel in the country.

The dispute in this matter revolves around an estate belonging to the late Panganayi Elias Mashita who died, testate, in South Africa on 10 December 1983.

He was survived by his wife, the first defendant, and two minor children being the third and fourth defendants. In terms of his Will, dated 27 June 1978, the first defendant was appointed executor of his estate.

He left, in his estate, an immovable property known as the remainder of subsection B of subsection C of Lot 9 of Hatfield Estate measuring 6,359 square meters otherwise known as Number 11 Chedgelow Road, Logan Park, Hatfield Harare (“the property”) which was to devolve upon his two minor children.

The second defendant was the brother of the first defendant. He was mandated by the first defendant to administer the estate on her behalf through a general power of attorney.

Following the registration of the estate and the issuance of the Letters of Administration by the Master of the High Court (the Master) the first and second defendants entered into an Agreement of Sale with the plaintiff and sold the property. Transfer was not effected to the plaintiff. In 2005 the third and fourth defendants sold and transferred the property to the fifth defendant.

The plaintiff issued summons out of this court seeking a declarator that transfer of the property to the fifth defendant by the third and fourth defendants is wrongful, unlawful and fraudulent as he had already purchased the property from the estate. He seeks an order for the cancellation of the transfer and an order for specific performance in terms of his contract. In the alternative, he seeks an order for damages against the first and second defendants in the sum of Z$4,5 billion….,.

Section 122 of the Administration of Estates Act [Chapter 6:01] deals with disposal of estate property where minors have an interest in such property.

Section 122 of the Administration of Estates Act provides as follows:

"In cases where minor heirs are interested in property inherited from the estate of any deceased person, the Master may apply, through the chamber book, to a judge in Chambers for authority for the lease, mortgage, sale or other disposition of such property, and the judge make such order as in the circumstances he considers advisable."…,.

In this case, the Master of the High Court's consent was never sought in accordance with section 122 of the Administration of Estates Act [Chapter 6:01].

Where a provision prescribed by statute is not followed then it renders the contract void.

In the case of Schiourt v Minister of Justice 1926 AD 99…, INNES CJ held as follows:

"It is a fundamental principle of our law that a thing done contrary to the prohibition of the law is void and of no effect. So that what is done contrary to the prohibition of the law is not only of no effect but must be regarded as never having been done - and that whether the law giver has expressly so decreed or not; the mere prohibition operates to nullify the act."

The same sentiments were expressed by SANDURA JA in the case of Mugwebie v Seed Co Ltd & Anor 2000 (1) ZLR 93 where the respondents had not complied with the provisions of the Code of Conduct in suspending an employee. He stated as follows;

"There is no doubt in my mind, whatsoever, that it was null and void. It was a complete nullity. In this respect, I can do no better than quote what LORD DENNING said in McFoy v United Africa Co Ltd [1961] 3 ALL ER 1169 (PC) at 11721:

'If an act is void then it is, at law, a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without further ado though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.'"

Turning to the facts at hand, it is my view that the plaintiff's case falls on this basis.

The agreement which he entered into with the executor of the estate was null and void as it related to property in which minors had an interest and no authority to sell was sought either from the Master of the High Court or from the court for such sale.

When the matter was heard on the 28^th of October 2009, the parties informed me that they had discussed the matter and reached common ground on the approach in this matter.

The essence of their agreement is that the relief sought as interim relief is essentially the same as the relief on the return date.

They agreed that the best approach is for the matter to be fully argued on an urgent basis on the validity of the statutory provisions raised in the papers. I went along with the suggested route as it was adopted by the Supreme Court in 1,2, and 3 Combined Harare Residents Assn. and Another v Registrar General and Others 2002 (1) ZLR 83 (H) and also by the High Court in Econet v Ministry of Information 1997 (1) ZLR 342 (H).

The parties filed all their papers and argued the matter fully on 20 November 2009.

The parties married on 13 December 1992 in terms of the Marriage Act [Chapter 5:11]. Two children were born of the marriage, Diana Musonza (born 24 March 1993) and Tafadzwa Musonza (born 24 January 2000). The parties resided at Number 3 Dunmore Avenue, Queensdale.

The marriage was an unhappy one filled with physical and emotional abuse. The plaintiff left home on numerous occasions but always returned in the hope that the marriage would work. In October 2006, however, things came to a head and the plaintiff decided that she had had enough. The plaintiff moved out of the matrimonial home and left the two minor children in the care of the defendant. In February 2007, following an incident between the defendant and his daughter, Diana, the plaintiff obtained custody of both children.

In June 2007, the plaintiff instituted summons seeking a decree of divorce, custody, and maintenance of the minor children and division of the parties' matrimonial estate.

The defendant, whilst conceding that the marriage had broken down, opposed the claim for custody, maintenance, and the proposed division of the estate. At a pre-trial conference, held before a judge in chambers, the following issues were referred to trial:

1. Who should be awarded custody of the minor children?

2. If the plaintiff, how much maintenance should be paid by the defendant for each child?

3. What constitutes a fair and equitable distribution of the matrimonial estate?

At the commencement of the trial, it appeared to me, from the pleadings, that there was a further issue between the parties in that they were not in agreement as to the constitution of the estate. With the consent of both parties, a fourth issue was introduced, being what constitutes the matrimonial estate....,.

There are two children born out of the union and the plaintiff claims custody of both children. The eldest child is a girl who is 16 years old. It was the plaintiff's evidence that she requires her mother's love and support during this period of puberty. Tafadzwa is aged nine and needs his mother's love and attention.

When she left the matrimonial home she left the children with the defendant. The defendant has shown that he cannot look after the children as she was given the children at the police station after the defendant had been convicted of assaulting Diana. She stated that when she took the children she had to stay with her mother as she did not have suitable accommodation. At that time, Tafadzwa's grades went down as he changed schools on no less than three occasions because the defendant would steal him from school. She testified that the defendant was not a fit and proper parent to be granted custody of the children. In March 2008 she received a phone call from a neighbor advising her that the defendant was ill-treating the children and had badly assaulted Diana. She made a report to the police and the defendant paid an admission of guilt fine....,.

The defendant also gave evidence and told the court as follows:...,.

When the plaintiff left him he continued to look after the children with the assistance of his young brother and son from a previous relationship. Diana was attending school at Roosevelt High School whilst Tafadzwa was at David Livingstone Primary School. He denied that he had ever ill-treated the children. He however admitted that he had paid an admission of guilt fine at Police Braeside after he had assaulted Diana with a belt. He stated that he had assaulted her because she had lied to him.

He produced a custody order from the Magistrates' Court awarding him custody of the two minor children....,.

It was apparent, from the evidence, that the defendant was convicted of an assault on Diana and he paid an admission of guilt fine at the police station in 2007. Whilst he initially denied that this had happened he later conceded the point after the plaintiff obtained proof of the payment. It was also clear that it was on that occasion that the plaintiff took custody of the children whom she had left with the defendant when she left the matrimonial home....,.

It was not in dispute that both children have been living with the plaintiff from February 2007. It is not in dispute that the defendant had a court order granting him custody of the children, but, the plaintiff had de facto custody after they were handed over to her at the police station following the assault.

This is an urgent chamber application for a provisional order whose interim relief sought was couched in these terms:

“1. That the second respondent be and is hereby ordered to stay ejectment of applicant from the premises known as 93 Coventry Road, Harare pending the hearing of this urgent application for stay of execution.

2. In the event of the second respondent having ejected applicant from the premises known as 93 Coventry Road Harare, he is hereby directed, temporarily, to return possession of the premises to applicant pending the outcome of the application for stay of execution.”

The terms of the final order sought include, inter alia;

“That second respondent be and is hereby ordered to stay execution permanently against applicant pending the outcome of the Civil Appeal 251/10 ref CIV “A” 423/10.”

The background of the matter is briefly as follows:

The applicant and the first respondent entered into a lease agreement in respect of 93 Coventry Road wherein the applicant was the lessee.

On 9 September 2009, the first respondent's estate agents, Guest and Tanner, invited the applicant to come and discuss an increase in fair rental from $1,200 per month. The first respondent's representatives went for the discussion but the estate agents' representative missed the appointment, and, consequently, no discussion about the issue was ever held.

Subsequently, the applicant offered to increase the rental to $2,400 per month which was accepted by the first respondent. The estate agents communicated acceptance of the offer by a letter dated 21 October 2009 wherein they also gave the applicant a six month notice to vacate the premises on the ground that the first respondent required the premises for its own use. The notice period endured up to 30 April 2010.

Came 30 April 2010, the applicant did not vacate the premises.

On 17 May 2010, the first respondent filed an application for eviction of the applicant in the Magistrates' Court. On 7 June 2010, the Magistrates' Court granted the application. On 8 June 2010, the applicant noted an appeal in this court against the order for its eviction.

Since the noting of the appeal had the effect of suspending the judgment appealed against, the first respondent filed an application for leave to execute pending the appeal.

That application was granted.

The applicant, again, noted an appeal against the order granted to the first respondent to execute pending appeal. Thereafter, the applicant filed this urgent chamber application for the provisional order. The chamber application was accompanied by a certificate of urgency.

At the hearing, counsel for the first respondent raised the following points in limine:

(1) The application lacks urgency in that six months notice to vacate was given. Applicant sat back and it was only on 28 April 2010 (two days before expiry of the notice to vacate that the applicant, in vain, attempted to cajole the first respondent into signing an agreement it had drafted to have the notice period extended.

(2) If relief to stay the execution is granted, this would be tantamount to this court overruling the magistrate's decision to execute pending appeal. Effectively, the applicant was asking this court to determine the appeal when it is not sitting as the Appeal Court.

(3) The court should determine whether there is a valid appeal against the magistrate's decision to grant leave to execute pending appeal.

There is no appeal in this respect because that order to execute pending appeal is not a final or definitive one. It is merely an interlocutory order and such an order is not appeallable. Over and above that, the Notice of Appeal pertaining to that order is fatally defective in that it falls foul of Rule 7 of the Supreme Court Miscellaneous Appeal and Reference Rules, 1975 by not stating all the aspects required in a Notice of Appeal.

In the event, so the argument went, there is no appeal that was noted and the applicant has no basis to come before this court.

Counsel for the applicant, in response, contended that the matter was urgent in that the applicant believed that instead of the matter being brought by way of application, it should have been brought by way of summons since there existed a dispute of fact, viz whether the first respondent required the premises for its own use. Further, the urgency arises because of the first respondent's insistence on eviction before the applicant's appeal is heard.

Regarding the point that if relief to stay execution is granted, this would amount to overruling the magistrate's decision, he said it is interwoven with the one whether the judgment being appealed against is final or not. He submitted that the judgment is final in that once the applicant is evicted, the purpose of its appeal is frustrated.

On whether the Notice of Appeal is fatally defective, he denied that the same rules are applicable. Even if they are, the Notice is sufficiently clear, on the papers, regarding which judgment is being appealed against, the second one granting leave to execute pending appeal. He submitted that the prayer that the judgment of the court a quo be reversed is the standard practice in this regard....,.

2. Would granting of the relief to stay execution amount to overruling the magistrate's decision and also amount to determining the appeal when this court is not sitting as an Appellate Court?

I think it would and this would set a bad precedent.

If granted, the relief sought would reinstate the effect of the noting of the appeal. There is no way this court can upset the magistrate's decision without delving into the merits of the appeal yet the court will not be sitting as an Appellate Court. In any event, and more importantly, the so-called appeal's validity is being impugned and no legal basis for its validity has been established...,. 

This is an urgent chamber application in terms of which the applicants are seeking an interim interdict along the following lines;

“That the police be and are hereby interdicted from interfering with applicants possession and ownership of their vehicle being a Toyota Registration number ABD 2925 (now registered as ADM1793) and shall forthwith return same to applicants, at any rate within 24 hours of this order.”

The facts of this matter, as summarized in the outline of the State case attached to the first three respondents opposing papers are as follows.

The State is preferring fraud charges against one Raymond Gallufa Chidanyika for his alleged criminal conduct which resulted in this matter. According to the State outline, Raymond Gallufa Chidanyika is alleged to have been Tristar Insurance Company's agent and in that capacity he had brokered the fifth respondent, The Zimbabwe Association of Church Related Hospitals, into insuring its vehicle fleet with Tristar Insurance Company. On April 2008, a Zimbabwe Association of Church Related Hospitals vehicle, namely a Totota Hilux Double Cab registration number ABD2925, was involved in an road accident and was extensively damaged. The matter was referred to Tristar Insurance Company through Raymond Gallufa Chidanyika so that Tristar Insurance Company would meet the repair costs. Because of the economic situation at the time, the vehicle was not attended to for a year. In the meantime, it is alleged that Raymond Gallufa Chidanyika approached the Zimbabwe Association of Church Related Hospitals and misrepresented to them that Tristar Insurance Company had considered the said vehicle to be a write off and were to pay the Zimbabwe Association of Church Related Hospitals $27,000= as compensation in terms of the insurance cover. Tristar Insurance Company were to take the wreck. Acting on the misrepresentation by Raymond Gallufa Chidanyika, it is alleged that the Zimbabwe Association of Church Related Hospitals surrendered the motor vehicle's registration book and its keys to Raymond Gallufa Chidanyika. Armed with the registration book and car keys, it is alleged that Raymond Gallufa Chidanyika approached Supreme Panel Beaters, the company which was holding the vehicle for repairs in its garage, and informed them that the Zimbabwe Association of Church Related Hospitals was selling the vehicle. Supreme Panel Beaters then offered to purchase the vehicle for $6,000= and requested Raymond Gallufa Chidanyika to bring an Agreement of Sale in respect of the motor vehicle. It is further alleged that in order to facilitate the sale of the vehicle, Raymond Gallufa Chidanyika manufactured or caused to be manufactured a fake Agreement of Sale bearing a purported letterhead for the Zimbabwe Association of Church Related Hospitals which was dated 3 April 2009. The document is purportedly signed by the Zimbabwe Association of Church Related Hospitals National Director, a Mrs. Chitimbire and the Deputy Director for Projects, a Mr. Mbengwa. Using the fake Agreement of Sale, Raymond Gallufa Chidanyika went on to sell the motor vehicle to Supreme Panel Beaters. He instructed Supreme Panel Beaters to deposit the payment for the vehicle into the Zimbabwe Association of Church Related Hospitals Barclays Bank Account. On 29 May 2009 Supreme Panel Beaters made a bank transfer of $2,000= into the Zimbabwe Association of Church Related Hospitals account. When the Zimbabwe Association of Church Related Hospitals received the deposit of $2,000= from Supreme Panel Beaters, Raymond Gallufa Chidanyika is alleged to have further misrepresented to them that the money was from Tristar Insurance Company which money Tristar Insurance Company had initially paid to Supreme Panel Beaters for the repair of the vehicle, which had been refunded and had been directed to them towards the payment for the damaged vehicle. Raymond Gallufa Chidanyika is alleged to have further misrepresented to Tristar Insurance Company that the Zimbabwe Association of Church Related Hospitals had given an instruction to terminate the insurance cover for the vehicle fleet and therefore wanted a premium refund. Acting on the misrepresentation, Tristar Insurance Company deposited $15,843=36 into the Zimbabwe Association of Church Related Hospitals account as premium refund; and when the Zimbabwe Association of Church Related Hospitals received the deposit, Raymond Gallufa Chidanyika is again alleged to have misrepresented to them that the money was part of $27,000= which was being paid for the vehicle wreckage.

Walter Chigwada, who is the deponent to the founding affidavit, confirms the background to this matter and adds that he purchased the vehicle in question for his wife, the second applicant, from Supreme Panel Beaters for the sum of $24 00. 00. The applicants say they then used the vehicle as a family vehicle, inter alia, for the generation of income. Mr. Chigwada goes on to say that sometime last year he was approached by two police detectives who wanted to recover the vehicle on the basis that he had acquired it illegally; after sometime, without following up on the matter, the police removed the vehicle from the garage where he had left it for repairs on 18 February 2011. The applicants said that there was no legal basis for the police to interfere with their possession and ownership of the vehicle. They said they had acquired it through a lawful and transparent process.

Samson Mangoma, the Officer Commanding C. I. D. Serious Frauds, who is the first respondent, said, in his opposing affidavit, that the police were investigating a case which had been reported by Tristar Insurance Company pertaining to the vehicle in question. He said that the police were not interfering with the rights of the applicants as the police had a right to recover exhibits when investigating a criminal offence in terms of section 49 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The vehicle was being held as an exhibit under Vehicle Theft Squad Exhibit Book number 42/2011 in which one, Raymond Chidanyika was the Accused person, having allegedly committed the crime of fraud when he was an agent for Tristar Insurance Company. The Officer added that the vehicle was currently being held at Southerton Police Station's Vehicle Theft Section. He also stressed that the purported Agreement of Sale, in terms of which the vehicle is said to have been sold, was fake and that Raymond Chidanyika had admitted to that fact. He further said that the procedure adopted in the registration of the vehicle was not proper. The proper procedure should have been to register the vehicle from the Zimbabwe Association of Church Related Hospitals to the second applicant, not from Supreme Panel Beaters to the second applicant as was the case in this matter. Supreme Panel Beaters were never the registered owners of the vehicle.

Mr. Mangoma emphasized that the police were acting, not as agents of Supreme Panel Beaters or the Zimbabwe Association of Church Related Hospitals, contrary to allegations by the applicants, but were fulfilling their mandate in protecting the interests of justice.

The fifth respondent, the Zimbabwe Association of Church Related Hospitals, strongly opposed the application.

Their position is that its letterhead is different from the one on which the so-called Agreement of Sale was drafted and that the signatures of Mrs. Chitimbire and Mr. Mbengwa, as they appear on the purported Agreement of Sale, were forged. The said signatures are not those of the said officials of the fifth respondent. The fifth respondent also corroborated what the second respondent said, ie that Raymond Chidanyika had admitted that the document in question had been forged by him.

The Zimbabwe Association of Church Related Hospitals added that it did not at any time sell the vehicle in question to Supreme Panel Beaters. The fifth respondent indicated that they would want the vehicle to be held by the police until the criminal proceedings were completed, where-after it would want to vindicate the vehicle. They argued that if the vehicle was released at this juncture, the administration of justice would be defeated because the vehicle could be sold or destroyed in an accident or be driven beyond our borders.

It is my considered view that the applicants can only succeed in this application if they manage to prove that the police acted outside the law. More particularly, if they prove that the vehicle in question was not taken in terms of section 49 of the Criminal Procedure and Evidence Act [Chapter 9:07].

It seems to me that the applicants have failed to discharge that onus.

Section 49(a) of the Criminal Procedure and Evidence Act [Chapter 9:07] provides that:

“The State may, in accordance with this part, seize any article –

(a) Which is concerned in or is on reasonable grounds believed to be concerned in, the commission or suspected commission of the offence, whether within Zimbabwe or elsewhere;“

The first respondent has clearly indicated that the motor vehicle was recovered as part of the investigations into a report made to the police by Tristar Insurance Company against one Raymond Chidanyika who has since been arrested and confessed to have played a part in the fraudulent sale of the vehicle. The vehicle is now under police custody as an exhibit. The trial of Raymond Chidanyika has been set down for the 15 March 2011 at Harare Magistrates Court.

I am satisfied that the police did not act as agents of either Supreme Panel Beaters or the Zimbabwe Association of Church Related Hospitals. They acted in fulfillment of their constitutional mandate and in the best interest of justice. There is no mala fides on the part of the police.

It has been argued, in favour of the applicants, that the motor vehicle in question does not need to be produced in the pending criminal trial. It was argued that the court can proceed without the need to have the vehicle produced in court as an exhibit and that therefore there was no need for the police to take the vehicle as an exhibit.

Whilst exhibits are treated as pieces of evidence and are for the courts to see and view, they are also needed for any order the trial court may want to make in terms of the law. In casu, the court may consider, if it so wishes, to make an order as regards the vehicle itself, in the event of  an application by any of the interested parties or meru motu. See Part XIX of the Criminal Procedure and Evidence Act [Chapter 9:07].

The applicants have therefore failed to prove that the police acted outside the law when they took the vehicle away as an exhibit. They have also failed to prove that the vehicle was not required as an exhibit. They further failed to meet the requirements for an interim order on an urgent basis. Their application cannot therefore succeed.

It is accordingly ordered that the application be and is dismissed with costs.

The first and third respondents are business partners. Some time ago, the date has not been specified, the two agreed to enter into a joint venture involving gold mining in the country. The first respondent, a foreign national, then joined forces with the third respondent, and others, culminating in the formation of the second respondent and its subsequent incorporation as a limited liability company. There is some dispute as to whether or not the third respondent is a Director in the second respondent, but, in my view, that dispute is not pertinent for the resolution of this application. At any rate, the first respondent is a Director in second respondent.

In his founding affidavit, the applicant avers that he was, in September 2009, approached by the third respondent who advised him that, he, the third respondent, and his “partners” in the second respondent had purchased gold claims in Masvingo. The third respondent had revealed that his “partners” had abandoned the venture and that the claims were about to be forfeited due to non-payment for statutory licences to the Ministry of Mines. The applicant avers that he had been advised by the third respondent that the second respondent, the first respondent, and two others, had purchased mining claims from one Elborn Tinago in October 2007 but that the foreign Directors and the first respondent had lost interest in the venture and had consequently pulled out of it. The third respondent advised the applicant that in total only US$15,000= had been invested in the venture by the first respondent and the partners to the venture. The third respondent confirmed his interest within the second respondent by exhibiting share certificates to the applicant which information he verified with the Registrar of Companies. The applicant, thereafter, visited the site and ascertained that there was no activity. He then entered into an agreement with the third respondent which resulted in him purchasing the latter's shareholding in the second respondent on 7 September 2009. The 500,000 shares which the third respondent held in second respondent were then transferred to the applicant. Because there was an imminent threat of forfeiture the applicant paid the fees for the licences with the Ministry of Mines. Thereafter, the applicant proceeded to pay out monies for the development of the site, purchasing equipment and ensuring that environmental impact reports were done. He also engaged forty locals to work at the site.

On 5 May 2010, the second respondent was, under case number HC2813/10 granted a provisional order by PATEL J. The interim relief granted by his Lordship was in the following terms-

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

1. That upon service of this order the respondent and anyone claiming occupation through him be and is hereby interdicted from mining, milling of gold ore, or from being within  5,500 metres of the Gold Reef claims known as 20, 21 and 6 being claim numbers 7651, 8804 and 8817 situate at Avonmore Farm near Masvingo town.

2. That the respondent and anyone claiming occupation through him be and are hereby interdicted upon service of this order from removing the electric transformer, building materials, the bore mill and any material currently being utilized at the aforesaid claims until the determination of the court application lodged with this Honourable court in case number HC2814/10.

3. That in the event that the respondent disobeys this order the officer in charge ZRP Masvingo Central Station be and is hereby directed with the powers bestowed upon the police to stop disobedience of this order and to arrest any culprit for contempt of court.”

The third respondent herein was the only respondent cited under that case number, the applicant was not a party.

The applicant, then, in turn under case number HC3604/10 approached the court, again on a certificate of urgency, citing the second and third respondents herein as parties thereto.

This application was for directions in respect of an application for joinder filed by the applicant under case number HC3603/10. The terms of the interim relief granted to the applicant are as follows:

“2) Pending the finalization of this matter, application is granted to the following interim relief:

(a) The court application for joinder filed under HC3603/10 be and is hereby allowed to be heard urgently with the parties being directed as follows:

(i) The respondents are to file their opposing papers three (3) working days after being served with the application.

(ii) The applicant be and is directed to file his answering affidavits, if any, within two (2) working days after service upon his legal practitioners of the respondent's Notice of Opposition.

(iii) The applicant be and is hereby directed to file his Heads of Argument within three (3) working days after filing the answering affidavit, if any, is to be filed or alternatively within five (5) days after receiving the notice of opposition.

(iv) The respondents be and are hereby directed to file their heads of arguments within two (2) working days after receipt of the applicants heads of arguments.

(v) The Registrar of the High Court is to set the matter down before the duty Judge within five (5) working days from the date of filing of heads of arguments for the respondents absence of which within five (5) days of filing of the applicant's heads of arguments.

(b) The provisional order granted under HC2813/10 be and is hereby deemed to be in operational against the applicant and or his agents, employees or assignees pending the finalization of the urgent chamber application.”

The applicant avers, in his founding affidavit, that the provisional order of 5 May 2010 did not bestow any rights of occupation on the first and second respondents but that it simply interdicted mining operations by the third respondent and all those claiming occupation through him. The applicant averred, further, that in terms of the provisional order that he sought and obtained on 1 June 2010 the status quo ante was restored between them meaning that whilst the third respondent could not carry out any mining operations at the site, he, the applicant, could, in terms of the provisional order of 1 June 2010, in particular the paragraph reading as follows: “that the provisional order granted under Case No HC2813/10 be and is hereby deemed to be in operational against the applicant or his agents, employees or assignees pending the finalization of the urgent chamber application.”

The applicant has now approached this court seeking an order for restoration of peaceful and undisturbed possession of the Gold Reef claims, a temporary interdict against interference in mining operations by the first and second respondents, an order that they keep the peace, and an order for their eviction from the premises.

Counsel for the first and second respondents raised two points in limine; firstly that the matter was not urgent and secondly that the application was inappropriate….,.

I turn to the second point raised in limine, that of the propriety of the application.

The applicant accepts, in his founding affidavit, that the initial order by PATEL J under case number HC2813/10 is still extant. That order interdicted the third respondent and anyone claiming through him, from mining, milling of gold ore and further prevented the third respondent and anyone claiming through him from approaching within 500 metres of the claims. The applicant herein was not cited as a party to that dispute but as he claimed occupation through the third respondent the provisional order perforce applied to him. There is no legal basis upon which he could claim immunity from the operation of the order.

Counsel for the first and second respondents contends that whilst the application before me purports to be one for a mandament van spolie, the real issue is the order granted on 1 June 2010 in that the applicant seeks to contend that in terms of the order of 1 June 2010, if it deems so, it is submitted that the order of 5 May 2010 does not operate against the applicant.

In his submissions, counsel for the applicant contended that the applicant has been in possession of the site since buying shares from the third respondent and has been on a massive development program on the site and that everything thereon, except for the transformer, belongs to the applicant. He contended that the applicant was never removed from the site, and that the respondents simply came on his own and imposed persons unknown onto the site.

It seems to me that the submissions by the applicant's counsel are basically skating over the facts. In his founding affidavit the applicant makes the following averment -

“5.2. On the strength of its urgent application, the first respondent obtained a provisional order the terms of which basically interdict the third respondent and all those claiming occupation through him from carrying on any mining operations and occupying claims number 7651, 8817 and 88094 otherwise known as Good 20, 21 and 6 situate in Masvingo. Further it stops anyone from removing any equipment thereat.”

The applicant was obviously aware of the terms of the order of 5 May 2010. He was aware that it sought to interdict the third respondent and himself not only from carrying out mining operations but from approaching within 500 metres of the disputed mining site. Under case number HC3604/10 this fact appears in the certificate of urgency filed in accompaniment of the application. The pertinent part of the certificate reads-

“1.The applicant is running a mining operation situate in Masvingo under Gold Reef claims known as 20, 21 and 6 being claim Reef claims known as number 7651, 8804 and 8817 of Avonmore Farm. This operation employees 40 people and only the applicant is running operations. It has, however, been stopped from operating by virtue of an interim provisional court order of this Honourable court granted on 5 May 2010 under case number HC2813/10. The applicant is not a party to those proceedings, though he is the sole operator of the mining operations…,.”

It seems to me that on the strength of the statements in the certificate I can safely conclude that the applicant had sight of the provisional order and became aware of the terms thereof, to wit, that neither himself nor the third respondent could operate the site and mine thereon. He was also aware that he and the third respondent were prohibited from approaching within 500 metres of the site. This is the reason why he sought the provisional order of 1 June 2010 in an effort to avoid the interdict. It is not my mandate to interpret the terms of the order that the applicant sought and obtained and indeed it is not pertinent that I do so for the determination of this point in limine.

As the matter stands, the order by PATEL J interdicting him from mining, milling gold ore or from being within 500 metres of the claims, is extant and has not been set aside. If I were to grant the provisional order that he seeks, that is “restoring him possession” of the site, this would be tantamount to a review of that order.

Both PATEL J and myself are judges of this court and hence we enjoy parallel jurisdiction. I cannot give an order that seeks to vary or alter an order of a judge of the High Court. Although the order in question is a provisional order, it is still a judgment of this court and cannot generally be varied or altered. In Matanhire v BP Shell Marketing Service (Pvt) Ltd 2005 (1) ZLR 140 (S)…, CHIDYAUSIKU CJ stated -

“The only jurisdiction that a court has is to make incidental or consequential corrections. The position was stated as follows in the case of Kassim v Kassim 1989 (3) ZLR 234 (H) at p242C-D where it was stated that:

“In general, the court will not recall, vary or add to its own judgment once it has made a final adjudication on the merits. The principle is stated in Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A) at 306, where TROLLIP JA stated:

'The general principle, now well-established in our law, is that, once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement it. The reason is that it thereupon becomes functus officio: its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased.'”

In Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A)…, the court further stated that -

“The principal judgment or order may be supplemented in respect of accessory or consequential matters, for example costs or interest on the judgment debt which the court overlooked or inadvertently omitted to grant.”

Further on, at 307C-G, the court went on to say -

“The court may correct a clerical, arithmetical or other error in its judgment or order so as to give effect to its true intention…,.The exception is confined to the mere correction of an error in expressing the judgment or order; it does not extend to altering its intended sense or substance.”

In West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173 it was stated that -

“The court can, however, declare and interpret its own order or sentence, and likewise correct the wording of it, by substituting more accurate or intelligent language so long as the sense and substance of the sentence are in no way affected by such correction; for to interpret or correct is held not to be equivalent to altering or amending a definitive sentence once pronounced.”

The above principles were fully reaffirmed in Thompson v South African Broadcasting Corporation 2001 (3) SA 746 (SCA)…,: See also…, Brightside Enterprises (Pvt) Ltd v Zimnat Insurance Co 1998 (2) ZLR 229 (H)…,.

In S v Wells 1990 (1) SA 816 (A) the principles were stated as follows -

“According to the strict approach a judicial official is functus officio upon having pronounced his judgment which is a sentential stricti juris, and, as such, incapable of alternation, correction, amendment or addition by him in any manner at all…,. A variant of this strict approach permits a judicial officer to effect linguistic or other minor corrections to his pronounced judgment without changing the substance thereof…,.The more enlightened approach, however, permits a judicial officer to change, amend or supplement his pronounced judgment, provided that the substance of his judgment is not affected thereby (at 819-820).

In Parker  v Parker & Ors 1985 (2) ZLR 79 (H), it was held that an order giving directions is not an incidental order and that a judge of the High Court cannot vary or alter an order of a judge of parallel jurisdiction, short of expanding on it (see at pp 84-85).”

I find that there is, therefore, merit in the submissions by counsel for the first and second respondents that the import behind this application is not that of spoliation but an attempt, on the part of the applicant, to avoid the interdict granted by PATEL J in favour of the second respondent on 5 May 2010. The application, in fact, seeks a variation of the order by PATEL J permitting the applicant, his employees and assignees to bypass the interdict and continue operations on the site on the basis of an order of this court. As the third respondent has disposed of his entire shareholding in the enterprise to the applicant herein, the effect of an order in the terms sought by the applicant would be to nullify the interdict granted in favour of the first and second respondents.

A morass of conflicting orders from this court can only result in confusion, and, in my view, would not result in justice being done between the parties.

Counsel for the first respondent submitted that the applicant was improperly before the court in that an application for a stay of execution had been made by the applicant to the Magistrates Court and had been dismissed. He wondered whether the applicant was seeking a review or an appeal against the decision of the Magistrates Court.

The magistrate had apparently dismissed the application on the premise that the noting of the appeal had suspended the operation of that judgment. Counsel for the applicant, incorrectly in my view, submitted that the applicant was not dissatisfied with that judgment as it was a correct statement of the law. Accepting, as the applicant did, that it was a correct statement of the law, the applicant would appear to have decided to approach this court for the exact same relief denied it by the magistrate. What it has done, however, is to mount the same application to this court and ignore totally the order of the court a quo dismissing the application for a stay of execution. The order of the court a quo dismissing the application for a stay is still extant, and, in my view, this court cannot be seen to be giving an order differing from that order whilst it is still extant. This would result in two orders from two different courts which would be in conflict of each other.

Which order would then be binding upon the parties?

To do so would constitute a clear departure from rules of procedure and an open invitation to litigants to treat the orders of court with contempt, because that is what my order would constitute.

Having abandoned the rescission of the court order, the applicant cannot have the judgment declared invalid or void by the same court which granted it. It is only a superior court which could do that i.e. the Supreme Court.

If the applicant is not satisfied with the determination of the magistrate it can seek review thereof.

There is no basis for interference in this case as I am not seized with an application for review of the forfeiture by the magistrate. In effect, it is the magistrate who forfeited the applicant's liquor and authorized its disposal. The applicant is barking up the wrong tree. It should have cited the magistrate and challenged his/her said order of forfeiture and disposal of the liquor.

I brought this issue to the attention of the applicant's legal practitioners and there was no attempt to remedy the problems, and, as such, costs should be borne by the applicant.

A point in limine has been raised in the affidavit to the effect that the matter is not urgent.

In argument, counsel for the applicant contended that in so far as urgency was concerned there was a sword of Damocles hanging over the applicant, given the peremptory powers that the respondent enjoys under the Revenue Authority Act [Chapter 23:11]. These powers include the power to appoint a bank as agent for purposes of collecting money on behalf of the Zimbabwe Revenue Authority. The existence of a dispute between the applicant and the respondent pointed to a strong possibility that the respondent would exercise one of his peremptory powers under the Revenue Authority Act [Chapter 23:11].

As regards the issue of urgency, it was contended, on behalf of the respondent, that this matter has been conducted by the parties in a professional manner through the exchange of correspondence since March 2010.

The first letter on record from the office of the Commissioner General indicating that withholding taxes for 2009 were outstanding is actually dated 25 January 2010. This was responded to by the applicant's legal practitioners on 4 March 2010. The record reflects that a further letter was written by the legal practitioners, on 24 August 2010, which the Commissioner General responded to on 29 September 2010. It is in the penultimate paragraph of this letter where the applicant is put on terms to pay the outstanding taxes by 5 October 2010 failing which recovery measures would be instituted against the applicant. This application was filed on 19 October 2010 and by that date there had been no recovery measures put in place by the Commissioner General.

In order to decide whether or not this matter can be considered urgent, it is necessary to scrutinize the relief being sought. The applicant seeks a provisional order which is framed as follows:

“TERMS OF FINAL ORDER SOUGHT

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

1. That the respondent be and is hereby prohibited from appointing agents in terms of s48 of [Cap 23:12] until such time as the applicant's indebtedness, if any, to the respondent has been determined in accordance with the procedure relating to the Declaratory Order to be instituted by the applicant against the respondent.

2. The cost of this application will be borne by the respondent on the scale of costs as recommended by the Law Society as between legal practitioner and own client.

TEMPORARY RELIEF GRANTED

The applicant is granted the following relief:

1. That the respondent be and is hereby prohibited from appointing agents in terms of s48 of [Cap 23:12] pending the return date of this order.

2. A copy of this application will be served on the respondent by the applicant's legal practitioners.”

The applicant has not denied that the withholding tax is due and owing.

As far back as July 2009, the applicant had concluded that it had overpaid the respondent by US$215,878=54. It sought to engage the respondent in dialogue to have the issue resolved. By January 2010, the respondent had put his position clearly to the applicant that there had been no overpayment. Given the attitude of the respondent, in the event that the applicant felt strongly, as it seems to do, that there had been overpayment, it would have been prudent for the applicant to then have instituted proceedings for the dispute to be settled.

It has not done so.

The respondent has the power, under section 58 of the Income Tax Act [Chapter 23:06], to appoint an agent for the collection of tax due by a person. The applicant accepts that this power has been bestowed on the respondent by the legislature to enable the respondent to comply with his obligations under the Revenue Authority Act [Chapter 23:11].

It cannot be argued by the applicant that the exercise by the respondent of his powers under the empowering legislation is improper where monies are admitted to be due and owing. It seems to me that this court can only be enjoined by a litigant to bar the respondent from exercising those powers on the basis that the respondent is acting improperly or that there exists some irregularity in the manner in which the powers are being exercised, or that the sums sought to be collected from the exercise are not in fact owed to the fiscus.

The first issue is the effect of the dismissal of the respondent's application for rescission in case no. HC3953/05.

The effect of the dismissal of the application in case no. HC3953/05, is, in my view, that the order in case no. HC59/05 reversing the cession into the respondent's name remained extant.

I am of the view that the reasons for judgment are necessary only in so far as a court is required to determine the correctness of an order arrived at.

I am not being asked to consider the correctness of the order in case no. HC3953/05. It is not competent for me to even consider that case given that it is an order of this court. Such consideration would amount to a review of this court's own decision.

I therefore do not believe it is competent for me to consider the submissions raised by the respondent which were raised in his application for rescission in case no. HC3935/05.

This is an urgent chamber application in which the applicants seek a Provisional Order in the following terms:

“TERMS OF FINAL ORDER SOUGHT

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

1. That first, second, and fourth respondents and/or their agents shall not interfere in any manner whatsoever with applicants' possession of Glencairn Mine or the assets thereat.

INTERIM RELIEF GRANTED

Pending the determination of this matter, the applicants are granted the following relief:-

2. That first, second, and fourth respondents be and are hereby ordered to remove all the locks on the 3 gold concentrators, carbon room, 4 fuel pumps, workshop, and gates leading to the mining areas at Glencairn Mine.

3. That the first, second, and fourth respondents restore possession of the Nissan NP 300 (registration no. ABP 0456) and Nissan Hardbody 2.5 (registration no. ABG 4956) to the applicants.”

At the onset of proceedings, counsel for the first, second, and third respondents raised four preliminary points for determination by the court before the matter could be heard on the merits:

(i)...,.

(ii)...,.

(iii)...,.

(iv) The fourth point raised in limine is that the matter is lis pendens as the applicants have filed both an appeal and an application for review in relation to an order granted by the Magistrates' Court in which the parties have been ordered to co-exist. The proceedings in both the appeal and the review are pending before this Court yet the present application seeks to reverse the Magistrates' Court's order of co-existence.

In paragraph (b) of the interim relief sought, the applicants seek to interdict the respondent from conducting the business of Tobacco Auction Floors on the premises until the resolution of all disputes relating to, or arising from, the lease agreement which are currently pending in this court.

It is common cause that the applicants have been denied a tobacco auction floor licence by the Tobacco Industry Marketing Board. The Tobacco Industry Marketing Board indicated in its letter of 29 November 2010 that it resolved to award the respondent a licence to operate an auction floor in 2011 subject to the respondent “and the premises…, fulfilling requirements of the Tobacco Marketing and Levy Act [Cap 8:20] and S.I.29 of 2000,…., the Tobacco Industry and Marketing (“Marketing”) Rules, 2000.”

The effect of paragraph (b) of the interim relief sought appears to me to be to bring the court into the fray or realm of the issuance of licenses by the Tobacco Industry Marketing Board. However, any disgruntlement on the part of the applicants at the issuance of a licence to the respondent is not a matter that is before the court. The relationship between the parties, in casu, is that of landlord and tenant. The operation or conducting of the business of Tobacco Auction Floors would be done in terms of an appropriate licence granted for the purpose. The relief sought in paragraph (b) is therefore not for this court to entertain in these proceedings. There should ordinarily be a proper procedure provided by the relevant legislation in such situations. It was not contended that there is no procedure provided in the relevant regulations in the event of a party being aggrieved by the refusal or grant of a licence.

Dr Tendayi Mahachi states that the applicant occupied the premises until 30 September 2012 by virtue of the written lease agreement. Its stay subsequent to that was validated by the City Treasurer's letter of 1 October 2012 which allowed the applicant to remain in occupation until 31 December 2012. Therefore, as the applicant remained in occupation after 31 December 2012 the respondent issued a notice in terms of section 18(2) of Statutory Instrument 109/79, S.I.109 of 1979, which notice it was entitled to issue because the applicant occupied the premises without the consent and/or authority of the respondent.

In order to succeed in an application for an interim interdict, the applicant must establish the following:

(1) A prima facie right to the relief claimed, even though open to some doubt;

(2) A well-grounded apprehension of irreparable harm if the interim relief is not granted and the applicant ultimately succeeds in establishing that right;

(3) A balance of convenience in favour of granting the interim relief; and

(4) The absence of any other satisfactory remedy.

The papers before me show that the last three of the above cited requirements for the grant of an interim interdict do exist. This is because the respondent has already given notice of its intention to summarily evict the applicant from the premises and demolish any structures on the land; such action being imminent, there is a well-grounded apprehension of irreparable harm.

The dispute between the parties over the premises certainly does not give rise to a train smash situation on the part of the respondent regard being had to the fact that the applicant has operated a car sales business at the same place since 2009 by virtue of a valid lease agreement. Even after the expiry of that lease, the respondent still allowed the applicant to conduct that business - albeit in a state of what the respondent called “winding up” - for another three months until 31 December 2012. In my view, the balance of convenience would seem to favour the applicant.

It would appear that there would be no other remedy available to the applicant short of the interim relief that is sought. Indeed, counsel for the respondent did not advance any argument against the satisfaction of the last three requirements for an interim interdict.

It is, however, the requirement for a prima facie right which is strongly contested.

Counsel for the applicant advanced a lot of arguments on that point but they all boil down to the applicant's assertion that it is entitled to remain in occupation of the premises because, although the lease agreement terminated by effluxion of time on 30 September 2012, it was relocated after that by the conduct of the parties. In that regard, counsel for the applicant submitted that the respondent continued to accept rent from the applicant and even published a notice in the newspaper in December 2012 which notice listed all car sale garages which were operating legally in Harare, which conduct he claimed, shows tacit relocation of the lease.

Counsel for the applicant strongly argued that once the lease agreement had been relocated, all its provisions remained in force including the dispute resolution provision, clause 11, providing that the parties shall make every effort to resolve disputes amicably by negotiation and in the event that negotiation fails, the dispute must be referred to arbitration. He went on to say that it was incompetent for the respondent to invoke section 18 of the Regulations (S.I.109 of 1979) on 9 January 2012 without reference to arbitration. In any event, the applicant is now challenging the statutory instrument.

What I therefore have to decide is whether, the applicant has a right, even if open to doubt, which it can seek to protect. If it does, then interim relief must be granted but if the conclusion is that no such right exists then the application must fail….,.

The conduct of the applicant is also consistent with a party which was aware of the day of reckoning. Although the lease had expired on 30 September 2012, it did not do anything visible to try and renew the lease. Although the applicant was aware of the notice given to all car sales operators by the respondent, which notice was published in the newspaper in December 2012, it did nothing to challenge that notice until it was served with a notice in terms of the Regulations which the respondent invoked. I say the applicant was aware of the published notice because it specifically says so in paragraph 6 of its founding affidavit which reads:

“In or about October and November 2012, the respondent started demolitions of car sale garages which it deemed illegal. It is common knowledge that the respondent published a notice in the newspaper in December 2012 in which it publicized the names of car sale garages which were legally in operation….,.”

What the applicant omits is to mention that the notice in question, as published in the newspaper, had the following preamble:

“Pursuant to the on-going crackdown on illegal car sales, illegal billboards, vending and other illegal activities, below is a list of registered car sales/parking garages operating in the City.

Their operations were approved by the City Council and validated via the issuance of leases. Operators are advised to cease operations when their leases expire. Operators not on this list must cease immediately.

Failure to comply with this notice will result in UNRELANTING ENFORCEMENT ACTION being taken against defaulters.”

Rocket science is not required to deduce that the applicant, which is one of those operators listed on the notice, was aware that the lease had not only terminated but that even the express relocation up to 31 December 2012 was not going to be considered for renewal at all. Accordingly, the applicant was left with no right whatsoever to protect at law.

That brings me to the issue of the applicant's signal failure in this application to disclose material facts which it was aware of. I have already found that the letter of 1 October 2012 relocating the lease agreement for a fixed period up to the end of year 2012 was indeed served on the applicant. It was therefore imperative for the applicant to disclose the existence of that letter in its founding affidavit. It did not.

That brings me to the issue of the applicant's signal failure in this application to disclose material facts which it was aware of. I have already found that the letter of 1 October 2012, relocating the lease agreement for a fixed period up to the end of year 2012, was indeed served on the applicant. It was therefore imperative for the applicant to disclose the existence of that letter in its founding affidavit.

It did not.

By his own admission, the applicant did have sight of the newspaper publication that I have cited above which means that it was aware that the respondent had specifically directed that the applicant should cease operations on 31 December 2012. This was a very material fact which the applicant was obliged to disclose in its application.

It, again, did not. Instead, the applicant elected to attach a document omitting the preamble damning in its effect on the applicant's case.

Indeed, true to its outlook, when the applicant was served with a notice in terms of the Regulations, on 9 January 2013, which notice advised of its imminent summary eviction, the applicant proceeded the following day, on 10 January 2013, to pay the rent for January 2013. In doing so, the applicant was clearly not acting in good faith because it was aware of the position of the respondent. It cannot, therefore, be allowed to rely on the payment of the January 2013 rent to build a case which it does not have…,.

I conclude that the applicant has not shown to my satisfaction that it has a prima facie right which it can protect through the medium of a temporary interdict. While the applicant is at liberty to contest the propriety of S.I.109 of 1979 that does not translate to a prima facie right which entitles the applicant to interim relief of an interdict.

(c) That the application is bad at law moreso in light of the recent Supreme Court judgment, Commercial Farmers Union & Ors v Minister of Lands and Rural Resettlement and Ors SC31-10 which clearly stated that spoliation cannot confer jurisdiction where none exists and that the common law remedy cannot override an Act of Parliament nor can a court protect a party defying the law.

The contention by the second and third respondents is that the Notarial Deed of Servitude registered in the Deeds Office under MA 406/2004 under the Deeds Registry Act, which is an Act of Parliament, cannot be rendered nugatory by the relief sought by the applicant.

Whether that application is bad at law

My view is that this argument cannot be dealt with as a point in limine but rather relates to the merits of the application.

Furthermore, counsel for the second respondent went, leave of this court had not been obtained for the application to be filed as required in terms of para A(5) as read with para B(3) of the provisional order of 1 December 2010.

It is..., correct that in terms of Rule 87 of the High Court Rules..., I can proceed to determine the real issues between the parties. I, however, believe that in casu such a move would be a betrayal of the need to follow laid down procedures. Our courts have always insisted that laid down procedures should be adhered to.

In casu, not only has the applicant failed to make a proper application as is its right under section 301(2) of the Companies Act [Chapter 24:03] and also failed to cite the relevant parties, the applicant has further proceeded to ignore the directions given in the provisional order that it seeks to vary. Paragraph A(5) of  the provisional order as read together with para B(3) of the said order reads as follows:

“All actions and applications and the executions and of all writs, summons and other process against the first, second, third, fourth, fifth and sixth respondent companies shall be stayed and not proceeded without the leave of this Court.”

The above direction was given in terms of section 301(1) of the Companies Act [Chapter 24:03] which states:-

“A provisional judicial management order shall contain:-

(a) ...,. 

(b) ...,. 

(c) Such other directions as to the management of the company, or any matter incidental thereto, including directions conferring upon the provisional judicial manager the power, subject to the rights of the creditors of the company, to raise money in any way without the authority of shareholders, as the court may consider necessary;

and may contain directions that while the company is under judicial management, all actions and proceedings and the execution of all writs, summonses and other processes against the company be stayed and be not proceeded with without the leave of the court. …,.

(2) ...,.”

The above direction is contained in the provisional order that the applicants seek to vary.

A variation of the provisional order of 1 December 2010 in the manner proposed would certainly, in different ways, affect any of the parties to it, namely the companies under provisional judicial management. There was therefore need to seek leave of court to proceed with an application that would certainly have an impact on the management of the companies under judicial management.

There would also still be a need to re-advertise the varied provisional order reflecting the varied terms.  The original parties ought therefore to be cited. It is those same parties who remain entitled to be heard on the return date.

It is further important to understand that judicial management means that the court, through the Master of the High Court, is managing the affairs of the entities placed under judicial management - whether provisional or final. The provisional judicial manager only operates under the direction(s) of the Master of the High Court. Given this scenario, it is therefore important and reasonable that any party wishing to vary the original directions of the court to the extent suggested in casu, must seek leave to do so. Accordingly, in the absence of such leave being granted, any attempt to proceed in terms of Rule 87 of the High Court Rules 1971 would be improper.

I am therefore not persuaded to proceed in terms of Rule 87 of the Rules of the High Court.

I believe such a move would amount to me assisting the applicants' to properly reconstruct their case and yet there is no leave of court for them to proceed with the application. This also means that the proposed amendment would be of no consequence since it would not cure that irregularity.

All in all, my finding, based on the issue of non-joinder, as considered together with the provisions of section 301(2) of the Companies Act [Chapter 24:03], is that the applicants are not properly before the court. That point in limine is therefore upheld. Having upheld that point in limine it means I am disabled from considering all the other preliminary issues raised including the merits of the case. I cannot proceed to do that in the absence of a proper application before me. I therefore order as follows:-

The order by CHITAKUNYE, J in HC1057/09, on 15 October 2009, seemed to have put the matter to rest. However, nine months later the applicant in casu lodged this application on 15 July 2010 the subject matter of this judgment.

I now turn to deal with the basis of this application which, in effect, seeks to have the order by CHITAKUNYE J, in HC1057/09, set aside (although the order prayed for is not couched on such explicit terms).

The applicant's founding affidavit is instructive in that regard. Let me refer to the relevant paragraphs of the applicant's founding affidavit:

“13. Following the judgment in HC1057/09, I have caused a forensic report to be prepared consequent to an examination of my late mother's signatures on the 21^st November 2005 will and one on the 13^th March 1981 will. The examination was carried out by L.T. Nhari, a forensic specialist in the employment of Screenlab (Pvt) Ltd. I attach a copy of his report hereto as annexure 'A'.

14. As more fully appears in annexure 'A' the examination was carried out by comparing standard uncontested signatures by my mother with the contested (sic) signatures on the will of 21 November 2005.

15. Again, as more fully appears from annexure 'A', the expert found the design and construction of the signatures on 21^st November 2005 will dissimilar and inconsistent with my mother's standard signatures.

16. Further, the expert concludes that the said differences and inconsistencies in the signatures are not attributable to natural variation of my mother's signature. His final conclusion is that the standard signatures and the contested signatures do not have common authorship. Put differently, the expert concludes that my mother did not sign the will of 21 November 2005.

11. I am advised, which advice I believe to be true and correct, that the presence of such new evidence of this point in dispute, which had not been at the court's disposal at the original hearing of the matter, places a significantly different complexion on the whole issue.

12. I am further advised that where new evidence which is material to an issue that has been decided, becomes available after such decision, there are grounds, by that fact, warranting the revisiting of the issue by the court. This is my contention in this matter.

15. Such evidence is of immense relevance to this honourable court in this issue and it is highly likely that this court would have reached a materially different conclusion as to the validity of the 21^st  of November 2005 will had this evidence been before it”. (I have deliberately not followed the sequence of the paragraphs as they appear in the founding affidavit as the paragraphs are mixed up).

On why such new evidence was not placed before CHITAKUNYE J in case HC1057/09, the applicant had this to say;

“16. At the time of arguing HC1057/09 I was unable, due to lack of counsel and lack of funds, to cause a forensic examination, such as that espounded in Annexure 'A', for purposes of the hearing. My failure to produce such a report was occasioned by any laxity in the handling of my defence in that matter. My averment has consistently been that the signature on 21^st November 2005 will was forged I only did not have the requisite resources and proper counsel (which I have secured) to have the report produced (sic).

17. I am advised that in such circumstances, the court can allow a matter to be revisited to allow the inclusion of such evidence.”

To my mind, it is therefore clear that the applicant, a far back as in case no. HC6552/06, contented that the will dated 21 November 2005 is not the last will and testament of the late Nellie Helen Morris but a contrived and forged document which should be disregarded. This is the same argument raised by the applicant (then first respondent) in case No. HC1057/09 in opposing the rescission of the default judgment in case No. HC6552/06 - to no avail.

In casu, this is the same argument raised - albeit now on the basis of the forensic report....,.

In his oral submissions in court, counsel for the applicant, in a rather incomprehensible and confusing manner, sought to introduce a new dimension to the basis of this application. I was unable to follow the logic of his argument save to discern that his point was that the applicant was not introducing new evidence but merely providing proof - whatever that means.

The first respondent's argument can be summed up as follows:-

1. That the judgement by CHITAKUNYE J, in case No. HC1057/09, was of a definitive nature hence the matter raised by the applicant is res judicata.

In terms of procedure the first respondent's contention is that it was improper and irregular for the applicant to seek a declaratory order by way of court application without first seeking to rescind or to have set aside the judgment by CHITAKUNYE J which remains binding and of force and effect. The first respondent's view is that the dispute surrounding the 2005 will has been common between the parties and was dealt with in both HC2134/09 and HC1057/09. On that score alone the applicant should have realised that such a dispute cannot be resolved on the papers filed of record alone but through the process of trial where evidence should be led.

2. That there is no legal basis for this court to grant the order sought by the applicant since the common law exception to the principle of res judicata is applicable in this case.

3. That on the merits, the first respondent has been able to show that the 2005 will is valid. The first respondent, in all the applications referred to…, has maintained that the 2005 will was prepared and executed in her presence and that the two witnesses who also signed in her presence are available to corroborate her version of events.

The first respondent, in her opposing affidavit, states that the differences in signatures which could have been noted by the forensic scientist between the 1981 will and 2005 will cannot only lead to the conclusion the forensic scientist arrived at. The first respondent's contention is that the forensic scientist had no relevant background history as regards the nature and extent of the late Nellie Helen Morris's ailment when she signed the 2005 will. The applicant's contention is that her late mother was afflicted with what is called stage 4 cancer and at the material time was very ill. She was suffering from cancer of the spine and at the relevant time could hardly hold a cup hence could not have been expected to sign her normal signature in 2005 as in 1981. The first respondent said medical evidence is available to corroborate her assertion in the form of a report by an oncologist who attended to her late mother at the material time in 2005 which report (or evidence) may be insightful on how the spinal cancer had badly affected the late Nellie Helen Morris's limbs. All these issues are not new but were raised by the first respondent in previous applications save for the comment in relation to the forensic report.

It is therefore clear that there are serious disputes of facts in this matter. In addition to that, the forensic report on its own, generates further controversy.

The question, therefore, is whether, in view of this, the procedure adopted by the applicant is proper in the first place.

I do not believe so.

The first respondent also contends that the applicant has not correctly interpreted the Consent Order, and, as a result, she finds herself in the predicament in which she now is.

I heard these three applications together. The first two applications seek similar relief.  The applicant in the third application seeks to be joined as fourth respondent in the first application. The respondent in the second application is not opposed to the relief sought and the application for joinder in the third application has since been withdrawn. This judgment, therefore relates, in the main, to the issues raised in the first application.

In that application, the applicant sought, on an urgent basis, a provisional order in the following terms:

“TERMS OF THE FINAL ORDER SOUGHT

That the applicant be and is hereby excused from performance of the order granted in Case No. HC1222 of 2012.

INTERIM RELIEF GRANTED

That the applicant be and is hereby excused from performance of the order granted in case No. HC11222 of 2012 provided that harmonised elections are held on or before the 29^th June 2013.”

The respondents are opposed to the grant of this order.

The background facts of this matter may be summarised as follows:

The three respondents were elected members of the National Assembly in the 2008 General Elections. They were elected under the ticket of their party, the MDC, and were duly sworn in as Members of Parliament for Nkayi South, Lupane East and Bulilima East constituencies respectively. They were subsequently expelled from the party and their membership of Parliament terminated at the behest of that party.

As a result, the Speaker of the House of Assembly proceeded to notify the applicant of the three Parliamentary vacancies so created as required of him in terms of section 39(1) of the Electoral Act [Chapter 2:13]. The applicant did not take the necessary steps to fill the vacancies as required by law. The respondents, under case number HC1485/10, then approached this court for an order compelling the applicant to gazette a date for elections to fill the vacancies in the three constituencies. After hearing arguments from the parties, NDOU J granted the relief sought in the following terms:

“IT IS ORDERED THAT:

1. The 3^rd respondent (applicant in the instant case) be and is hereby directed to gazette a date for elections within fourteen days of service of this order on him in the following House of Assembly constituencies, Nkayi South, Lupane East and Bulilima East.

2. There is no order as to costs.”

The order was granted on 13 October 2011.

The applicant, displeased with that result, filed an appeal with the Supreme Court. After hearing argument from counsel, the Supreme Court, under Civil Appeal No.SC267 of 2011, made the following order on 12 July 2012:

“IT IS ORDERED THAT:

(1) The appeal is dismissed with costs.

(2) The order of the lower court is altered to read as follows -

'(a) The application is granted.

(b) The respondent (the President of the Republic of Zimbabwe) is hereby ordered to publish in the Gazette a notice ordering new elections to fill the vacancies as soon as possible but by no later than 30 August, 2012.

(c) There will be no order as to costs.'”

Under case no. HC9781/12, the applicant sought and was granted, by consent of the parties, the following order:

“1. The period within which to comply with the order granted in case no. SC267/11 be and is hereby extended to the 1^st October 2012.

2. There be no order as to costs.”

This order is dated 30 August 2012.

Under case number HC11222/12, the applicant sought and was granted another extension to 31^st March 2013.

In the present application, the applicant seeks to be excused altogether from the performance of that order.

The founding affidavit is deposed to by P.A. Chinamasa, the Minister of Justice and Legal Affairs. It is to the following effect. The deponent is authorised by the applicant to swear to that affidavit. The applicant was ordered by this Honourable Court to publish in the Gazette a notice ordering by-elections to fill three vacant House of Assembly seats in the Nkayi South, Lupane East and Bulilima East constituencies by 30 August 2012. This date was later extended to 31^st March 2013. The applicant has to comply with the said order by that date. The applicant is unable to comply with the order for the following reasons. In terms of the Global Political Agreement, a referendum was held on 16 March 2013 to adopt a Draft Constitution. The electorate voted to adopt that Draft. A Constitutional Amendment Bill has since been gazetted. The Bill will be debated in both Houses of Parliament. It is anticipated that the Bill will take 4 days to complete its passage through Parliament. Thereafter, the Bill should be assented to by the President who will enact it into law. In terms of paragraph 3(1) of the Sixth Schedule to the Draft Constitution provisions of the new Constitution relating to elections will be brought into effect. Thereafter, amendments to the Electoral Act will be gazetted with a view to align the electoral laws with the new Constitution. It is expected that Parliament would take 4 days to debate and pass these amendments leading to assent by the President. Thereafter, the electoral process will commence. It is anticipated that a proclamation for harmonised elections will be published immediately after 8 May 2013. In terms of the Constitution the life of Parliament terminates on 29 June 2013 by which date harmonised elections must be held. According to the applicant, it does not make economic or practical sense to conduct a parallel process leading to the holding of by-elections about the time it is anticipated to hold harmonized elections. Compliance with the order to hold by-elections in the three constituencies is therefore no longer feasible as a General Election is now imminent. It is for these reasons that the applicant seeks the court's indulgence to be excused from performance of the order requiring him to publish a proclamation for by-elections in the three constituencies by 31^st March 2013.

The opposing affidavit is deposed to by the first respondent, Abedinico Bhebhe. It raises a number of preliminary issues.

It is averred that the application seeks relief that is beyond the court's jurisdiction as the court has no power “to suborn, condone or in the very least countenance” disobedience of its order…..,. The respondents also allege lack of probity on the part of the applicant stating that the applicant has all along lied to the court in seeking extensions under the pretext of lack of funding when, in fact, it had contrived to bring the present application at an opportune moment.  That, avers the respondents, constitutes abuse of court process, and, for that reason the application should not be heard….,.

On the merits, the respondents insist that they have vested rights to participate in the by-elections regardless of the fact that General Elections may be imminent. Besides, it is argued that there is no guarantee that General Elections will be held by 29 June 2013, and, in any event, the applicant has not told the court what would happen if General Elections are not held by that date. They insist that the court order to hold by-elections must be obeyed. It should not be sacrificed on the altar of economic or practical sense.

The applicant has filed a detailed answering affidavit. His averments may be summarised as follows:

The applicant's complaint is that it has been constructively evicted from premises that it has been leasing for a very long time. It contends that it was in peaceful and undisturbed possession of the premises until it was despoiled by the respondent through its officials who sealed off its pumps on 19 September 2013. Resultantly, it can longer operate the service station that it was operating as the pumps are sealed off. It also contends that the respondent, by its action, has resorted to self-help which the law frowns upon. It is contended that the respondent ought to have followed the correct procedure as laid down in section 39 of the Petroleum Act [Chapter 13:22]….,.

On 19 September, 2013 the respondent, the Zimbabwe Energy Regulatory Authority (ZERA) issued an order, purportedly in terms of section 39 of the Petroleum Act [Chapter 13:22], stopping the use of the facilities at 35 Coventry Road, Harare. Against the section calling for “Licence condition contravened” the order issued by the respondent reads:-

“operating without a licence.”

The respondent's counsel, in his submissions to the court, stated that the reference to section 39 of the Petroleum Act [Chapter 13:22] was in error as the provision in terms of which the respondent acted is in fact section 55 of the Petroleum Act [Chapter 13:22]. The respondent denied having acted outside the law and maintained that as the regulatory authority it acted within the confines of the law and, in particular, in terms of the powers granted to it in terms of the Petroleum Act [Chapter 13:22]….,.

The respondent also states, in its opposing affidavit sworn to by Gloria Magombo its Chief Executive Officer, that the applicant cannot claim to have been in peaceful and undisturbed possession of the property when the site on which it wishes to be licenced in terms of the Petroleum Act [Chapter 13:22] is subject of a dispute.

Annexure “H” to the application is a letter dated 9 September 2013 to the Managing Director of the applicant from the respondent. It states, inter alia,:

“…, on the 21^st of June 2013, ZERA responded to your application advising of its intention not to issue you with a license on the basis that the issuance could potentially infringe on the rights of another licensee. ZERA emphasised that it reserves the right not to issue a license for the said property pending the finalisation of the dispute….,.”

It further also states:-

“…, ZERA is confirming its position, as stipulated in the letter dated 21 June 2013, that it is not in a position to issue Trek Petroleum with a license until the matter before the court has been finalised. ZERA is currently in receipt of a High Court matter, case no.3047/13 (hereto attached), wherein Engen Oil Zimbabwe (Pvt) Ltd (plaintiff) and A. Springer Holdings (Pvt) Ltd (1^st defendant) and Trek Petroleum (2^nd defendant) are cited as parties to the litigation. The matter is to bring finality with regards to the lease dispute referred above.

ZERA hereby orders you to close your site with immediate effect pending the finalisation of the matter before the courts. Any continued operation would be in breach of the provisions of the Petroleum Act. Failure to comply with the order will result in legal action being pursued against Trek Petroleum.”

A perusal of the Petroleum Act [Chapter 13:22] brings to the fore section 35 of the Petroleum Act [Chapter 13:22] which provides in pertinent excerpts:

“(1) An application for a licence shall be made to the Authority…,.

(2) …,.

(3) Subject to subsection (6), if, on consideration of an application in terms of subsection (1), the Authority is satisfied that - 

(a) …,.

(b) The grant of the license does not infringe the rights of any other licencees; and

…, the Authority shall issue the appropriate license to the applicant.”

In casu, the respondent refused to issue the applicant with a licence on the basis that such issuance could potentially infringe on the rights of another licencee and that it was not in a position to issue such license until the matter pending before the court is finalised. It advised the applicant accordingly on 21 June 2013.

It is of particular significance that before the letter of 9 September 2013, the Zimbabwe Energy Regulatory Authority (ZERA) had, on 1 August 2013, written to the applicant to the following effect:

“Reference is also made to our telephonic conversation on the 30^th of July 2013 wherein you intimated that the matter between Springer Holdings and Engen before the courts might have been finalised. Pursuant to the verbal representations made by you on the 19^th of July 2013 it is ZERA's request that you obtain the court order in the said matter. This will help expedite the processing of your licence in the event that it is proven that you are the holders of the lease for the land in dispute.

In the interim, let it be known that you are operating in contravention of the Petroleum Act [Cap 13:22] and the Energy Regulatory Authority Act [Cap 13:23]. In view of the foregoing, ZERA may opt to impose the penalty for operating without a licence in the event that the requested documents are not availed within 7 days from the receipt of this letter.”

The response from the applicant, given in a letter dated 14 August 2013, was to the effect that the applicant did not at any time intimate that the court case between Engen and Sprinter Holdings had been finalised and also that it did not have any knowledge of the then current position of the court case.

What emerges from the above, and from a perusal of the papers and submissions made in this case, is that sometime in April 2013 the applicant applied to the respondent for a retail petroleum license. On 21 June it was advised of the respondent's refusal to grant the same and the reasons therefore. The reasons pertain to a dispute over the premises which dispute is pending before the courts. In so doing, the respondent was acting within the powers given to it in terms of the Petroleum Act [Chapter 13:22]. More significantly though, it appears to me that the existence of the dispute, which is not denied by the applicant, puts paid to the applicant's claim that it has been in peaceful and undisturbed possession of the property.

Furthermore, and if I should be wrong in making this conclusion, the respondent was, in any event, acting within the confines of the law in taking the action that it did. Section 55(9) of the Petroleum Act [Chapter 13:22] in terms of which the respondent acted, empowers it to so act. It provides:

“(9) An inspector or police officer may, in the exercise of the powers conferred upon him or her by this section, seize any - 

(a) Petroleum products or storage apparatus which he or she has reasonable cause to suspect is being used by or is the possession or under the control of a person in contravention of this Act.”

It appears to me that the respondent did not take the law into its own hands. Rather, the law was put into the respondent's hands by virtue of the Petroleum Act [Chapter 13:22] in terms of which it took the action now complained of. In terms of section 29 of the Petroleum Act [Chapter 13:22] no person other than a licensed petroleum company shall procure, sell or produce any petroleum product.

In casu, the applicant was operating without a licence in contravention of the Petroleum Act [Chapter 13:22]. The respondent then, after communication was entered into between the two as detailed above, invoked the powers that section 55(9) of the Petroleum Act [Chapter 13:22] gives to it as the regulatory authority. It seems to me that the nature of the industry or product that the respondent regulates is well served by the provisions of the Petroleum Act [Chapter 13:22] with particular reference herein to section 55(9) of the Petroleum Act [Chapter 13:22].  Furthermore, and in any event, the applicant could have pursued the recourse provided for in section 56 of the Petroleum Act [Chapter 13:22], appealing to the Administrative Court. Against such a background, there can, in my view, be no basis for treating this matter as urgent...,.

The facts that gave rise to this dispute are as follows:

In January 2010, the first applicant, Givemore Sambadzi, purchased certain immovable property known as Stand 2048 Chadcombe Township of Stand 1257 Chadcombe Township from one Charity Nyarai Mupaya and a Deed of Transfer was made in his favour.

In November 2010, the first applicant then entered into an agreement of sale with the second applicant, Salatiel Nhubu, regarding this property.

However, he could not effect transfer to the second applicant as by then XN caveats had been placed on the property by one McDonald Freeman Tsambwa, who had also instituted proceedings with this court on the basis that the said property belonged to his two minor children Chido Jacquline Tsambwa, born 24 July 1998, and Chikomborero Ronald Ralph Tsambwa, born 23 August 2002, and had in fact been fraudulently sold by his wife Charity Nyarai Mupaya.

McDonald Tsambwa filed his principal application in Case No. HC461/11, in January 2011, to which the first applicant in this case filed his notice of opposition which was answered by McDonald Tsambwa.

Heads of argument were filed by the first applicant in that matter (as respondent) but it appears, thereafter, despite correspondence, McDonald Tsambwa did nothing to pursue his matter to finality.

It was on this basis that a Chamber Application was brought dismissing his case for want of prosecution.

This dismissal was the basis upon which the applicants in this case brought an unopposed application, through their lawyer, to get the respondent in this present matter, the Registrar of Deeds, to effect transfer to the second applicant.

In response to various correspondence written by the applicants lawyers, Messrs P Chiutsi, seeking transfer, the respondent wrote, on 7 March 2012, stating that certain discrepancies had been noted in the sale of the property in question to the first applicant which warranted cancellation of the Deed of Transfer 1559/2010.

These were to the effect that transfer from minors, Chido Jacquline Tsambwa and Chikomborero Ronald Ralph Tsambwa, required the Master's consent and that this had not been obtained.

Moreover, Charity Mupaya, who had appointed Wesley Thabang Khanda as conveyancer, did not appear anywhere in the previous Deed DT.8339/2007.

He also noted that the extending Deed made reference to one Lloyd Mudiwa Kativu instead of the two children.

Furthermore, the Zimra certificate was for transfer Kativu to Tsambwa which meant no capital gains certificate was issued for the transfer.

A discrepancy in the rates certificate was also observed.

The Deeds office had indicated that the matter was under investigation as the transaction appeared not to have been properly done.

The applicants, through their lawyer, sought an order, through an unopposed application, for transfer of the property to the second applicant in line with the agreement of sale entered into by the parties.

The first applicant challenged the respondent's refusal on the basis that it is the respondent and the seller who can explain the alleged discrepancies as he was merely an innocent purchaser.

They filed an unopposed application which was set down for hearing on the 4th of April 2012 whereby the Court directed that a copy of the chamber application for want of prosecution be attached. The matter was then postponed to 02 May where I raised the following queries:

(1) The property was originally in the names of the two minor children, Chido and Chikomborero Tsambwa born in 1998 and 2002 respectively.

(2) The property was transferred from them in contravention of the law in that there was no involvement of the Master or authorisation of the Court as required by the law.

If so, then, the purported transfer from the two minor children was fraudulent, and, to that extent, a nullity and of no force and effect at law. What this means is that whoever purchased the property might have acquired defective title incapable of transmission to any other person.

(3) The purported previous transfer is fraught with other irregularities for want of compliance with statutory requirements regarding payment of capital gains tax and rates. This again points to fraud which vitiates the validity of the transfer.

(4) The caveats in question were placed pending police investigations. There is no proof that the investigations have been completed.

The Master of the High Court was accordingly directed:

(1) To appoint a curator bonis for the two minor children, Chido and Chikomborerero Tsambwa, and to render a report to the Court.

(2) To report this matter to the Anti-Corruption Commission which shall communicate its findings to the Master of the High Court.

(3) In the meantime, the caveats in question to remain in force.

The applicants' lawyers attempted to circumvent this order by filing yet another chamber application challenging this order and seeking upliftment of the caveats and seeking an order that the property be registered by the respondent into the names of the second applicant in line with the dismissal of the case for want of prosecution.

It is trite that for an applicant to succeed in an application for an interdict he must establish a clear right. In this case it cannot be said that the applicant has established a clear right when the basis of the application is founded on what appears to be a nullity.

Viewed from a different angle, there was no appeal against the police's bid to proceed in terms of section 54(2)(a) and (b) of the Criminal Procedure and Evidence Act [Chapter 9:07]. There is also no order barring the police from proceeding in terms of that section.

On the facts before me, the allegations made by the police give rise to a reasonable suspicion that an offence may have been committed emanating from Ms Petronella Chishawa's trips abroad. It is not denied that Ms Chishawa works in the Ministry of Finance where the applicant is the responsible Minister. Whether or not the applicant showed favour to her when she embarked on the said trips is a matter of evidence. It is not unreasonable for the police to suspect that such evidence may be found in the record of the history of calls he might have made to his subordinates or colleagues. For that reason, I have no basis for barring the police from proceeding in terms of section 54(2)(a) and (b) of the Criminal Procedure and Evidence Act [Chapter 9:07]. There being a reasonable suspicion, the question of invasion of privacy does not arise…,.

In this case, as the police appear to be acting according to the law, the application cannot succeed. Not surprisingly, the fourth respondent has pledged to abide by the decision of this court and not take sides one way or the other.

It is accordingly ordered:

1. That the application for an interdict barring the first, second and third respondents from accessing any information concerning the applicant's calls be and is hereby dismissed.

2. That the applicant's application for an interdict barring the fourth respondent from providing the first, second and third respondents with any information concerning the applicant's calls be and is hereby dismissed.

3. The fourth respondent shall abide by this Court's decision.

It is clear from the provisions of section 58(2) of the Income Tax Act that the definition of tax includes penalties under the Act. It is therefore competent to garnishee a bank to recover penalties under the Act - Edgars Stores Ltd v Commissioner of Taxes 1996 (2) ZLR 747 (S).

Further, section 69 of the Income Tax Act clearly states that the obligation to pay and the right to receive any tax chargeable under the Act shall not be suspended pending the decision of any objection or appeal unless the Commissioner directs otherwise. This clearly shows that the Income Tax Act safeguards and protects the interests of the fiscus more where assessed taxes are still being disputed than it does the interest of the tax payer. The taxpayer has to pay first and should a decision against the Zimbabwe Revenue Authority be made by a court later, then the Zimbabwe Revenue Authority will have to refund any amounts that would have been found to have been not due.

The applicant seeks, under a certificate of urgency, an order to override the statutory provisions in section 69(2) of the Income Tax Act. This is incompetent - 1, 2, 3 Combined Harare Residents Assn and Anor v Registrar-General & Ors 2002 (1) (ZLR 83 (H)…,.

Counsel for the respondent then sought to argue that the percentage of the contributions made to the applicant cannot be legal because that was determined before dollarization.

I did not hear counsel for the respondent to say there was no statutory provision for those deductions but merely that they are unfair. That cannot be a defence at all....,.  

In his founding affidavit, the applicant says he is a resident of Number 61047 Pelandaba Township in Bulawayo, is a registered voter, and Ward Chairman of the Bulawayo Progressive Residents Association. He is also a ratepayer of the Bulawayo City Council. He says, as such, he has locus standi to institute this action. He says he is challenging the appointment of the fourth and fifth respondents to the City Council as Special Interest Councillors and seeks to interdict them from attending City Council meetings. He says the appointments are irregular in that they are made when the term of the City Councillors is coming to an end by operation of law in the next month or so, and, as such, the appointments shall not benefit the City Council, but will, instead, drain financial resources to which he is a contributor. He says the swearing in of the two respondents was done secretly in a ceremony hidden from the public on 25 February 2013 when the swearing in of councillors is a public matter. He submitted that the appointment of the two respondents is actuated by a desire other than genuine concern to ensure that the special interest groups are catered for, and the appointment is void ab initio for gross unreasonableness. He alleges that the appointments have serious consequences for ratepayers like himself. The appointments are regarded as irrational and in defiance of logic that no person at all who has applied his mind to the mater may act in such a manner.

When the urgent chamber application was placed before me I ordered that it be served on the respondents and that they appear in chambers for the matter. When they so did, the respondents had not had time to file their papers so that matter was postponed to enable the first respondent to do so. When the matter resumed, the first respondent had not filed any papers but opted to make opposing submissions verbally.

After hearing the applicant's legal practitioner, the first respondent's legal practitioner submitted that the first respondent acted in terms of section 4(a) of the Urban Councils Act [Chapter 29:15] and the appointments were proper. However, he could not explain why the appointments were being made so late and towards the end of the councilors' term of office. He said the Minister could make the appointments at any time.

Indeed, the Urban Councils Act [Chapter 29:15] gives the first respondent power to appoint Special Interest Councillors in section 4. The assumption is that these councillors sit in Council and take part in the deliberations of the Council with special concern for special interest groups.

No explanation was given as to why, the first respondent, the Minister, who had these powers, did not make the appointments of these special interest councillors for the whole life period of the Council, which is five (5) years, and only decided to do so when the period of the Council concerned is due to end in a month's time. It is difficult to imagine what interest of the special groups will be served by Councillors who are appointed to the Council for less than a period of about a month. I am inclined to agree that no purpose will be served by these appointments. It is too late to make them. The unreasonableness of the first respondent's action raises questions from any person properly applying his mind to the matter. It is clear that the Council's term will come to an end before the appointees even understand the business of Council, and, as such, cannot be in a position to be of any benefit to the special group for which the appointments are made….,.

In any event, this court cannot lawfully order the release of the consignment of potatoes as doing so would override the provisions of sections 47, 182 and 188 of the Customs and Excise Act [Chapter 23:02]. Triangle Ltd v Zimra HB12-11.

The goods were the subject of an offence and in terms of section 188(1) of the Customs and Excise Act [Chapter 23:02] they are liable to forfeiture. The first respondent seized the goods in pursuance of that provision. It would therefore be incompetent for me to order their release as doing so would cut against the clear provisions of the statute. Therefore, even on the merits, the application cannot succeed.

The respondent has raised three points in limine. One of those is that the interim relief sought is not competent at law as it seeks, under the guise of a certificate of urgency, an order that overrides the statutory provisions of the Minerals Marketing Corporation of Zimbabwe Act [Chapter 21:04] and the Customs and Excise Act [Chapter 23:02].

It is trite that it is not competent to seek an order that overrides a statutory provision under the guise of a provisional order – 1, 2, 3 Combined Harare Residents Association & Anor v Registrar General & Ors 2002 (1) ZLR 83 (H)…, and Triangle Limited v Zimbabwe Revenue Authority HB12-11.

The applicant does not want to regularize the exportation of the metal in question by going through all the statutory procedures at the Ministry of Mines. Section 42 of the Minerals Marketing Corporation of Zimbabwe Act [Chapter 21:04], which deals with the prohibition of sale or export of minerals otherwise than through the Mines and Minerals Corporation of Zimbabwe (MMCZ), stipulates that:

“(1) Subject to this Act, no person other than the Corporation shall -

(a) …,.

(b) Export any mineral from Zimbabwe except -

(i) In terms of a contract in sub-paragraph (ii) of paragraph (a); or

(ii) When authorized to do so by the Corporation in terms of section 43 and in accordance with the terms and conditions of such authority.”

In fact, in terms of such-section 2, any person who sells or exports any mineral in contravention of sub-section 1 shall be guilty of an offence and liable to a fine or imprisonment.

In terms of section 61 of the Customs and Excise Act;

“1. If the exportation of any goods is restricted or controlled by enactment, such goods shall only be exported in conformity with the provisions of such enactment.

2. Any person who exports or assists in exporting of any goods the exportation of which is prohibited by enactment and any person who exports and assists in exporting any goods in contravention of any enactment which restricts or control the exportation of such goods shall be guilty of an offence.”

Clearly, once the Mines and Minerals Corporation of Zimbabwe (MMCZ) states that the used wagon monoblock wheels constitute a mineral as defined in the Minerals Marketing Corporation of Zimbabwe Act [Chapter 21:04], the applicant cannot seek to export same without proving its case that it is not a mineral.

The provisional order is clearly incompetent.

The respondent should not be compelled to allow the exportation of banned or restricted goods. To do so would defeat the whole purpose of the legislature making the respondent the enforcer of controls on exports and imports. Irreparable harm will be suffered by the fiscus. Such irreparable harm has already been suffered in respect the first erroneous clearance of the four trucks on 27 July 2011….,.

I therefore uphold the point in limine raised by the respondent. It is unnecessary for me to consider the other two points raised.

During argument, I kept asking how the applicant's situation could be said to be any different from that of any other taxpayer who objects to an assessment and appeals to the Commissioner General but against whom the provisions of section 69 of the Income Tax Act [Chapter 23:06] are nonetheless invoked.

Counsel for the applicant submitted that the respondent's tax assessments in issue were grossly unreasonable in the Wednesbury sense.

A decision that is grossly unreasonable in the Wednesbury sense is a decision that is irrational. It is a decision that is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the issue to be decided would have arrived at it: see CCSU v Minister for the Civil Service [1984] 3 All ER 939 (HL)…, which was quoted with approval by DUMBUTSHENA CJ in Patriotic Front – ZAPU v Minister of Justice, Legal and Parliamentary Affairs 1986 (1) SA 532 (ZS)…, (also reported in 1999 (2) ZLR 305 (SC).

The Wednesbury principle derives from the English case one of whose parties bore that name. This was the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 9 (CA). As McNALLY JA observed in the case of City of Harare v Parsons 1985 (2) ZLR 293 SC…, the Wednesbury principle was laid down by LORD GREENE MR in the Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 9 (CA) case…, in the context of a judicial review. LORD GREENE had said…,:

“When an executive discretion is entrusted by Parliament to a body such as the local authority in this case, what appears to be an exercise of that discretion can only be challenged in the courts in a strictly limited class of cases.” 

It appears, though, that the Wednesbury principles have been developed to apply to virtually every exercise of power by executive authority or statutory functionary such as the respondent in casu.

If a decision is so grossly unreasonable as to be outrageous in its defiance of logic or of acceptable moral standards then it is grossly unreasonable in the Wednesbury sense. In such a situation, the court will ask whether the executive authority or statutory functionary whose decision is being impugned had taken leave of his senses. This undoubtedly is a very high standard indeed.

In this matter, counsel for the applicant highlighted a few examples of the alleged gross irrationality of the respondent's tax assessments. He said the respondent would in one year raise tax assessments with substantial sums of money said to be due, only to reverse them in the following year, sometimes even carrying forward negative balances or losses. In response, counsel for the respondent submitted that the assessments were always reviewable and that the amounts were sometimes reversed upon the supply of more information by the applicant

That, to me, is quite a rational explanation.

Counsel for the applicant pressed on with the issue of shareholder funds, particularly in relation to the immovable premises and the renovations thereto. He also referred to the respondent's treatment of related party borrowings involving Pedalball Investments (Private) Limited. He referred to the treatment of Dr Munyaradzi Kereke's terminal benefits and his severance package from the Reserve Bank of Zimbabwe. He referred to Dr Munyaradzi Kereke's complaint about the respondent's heavy handedness and the high degree of scrutiny his transactions were subjected. Such conduct, he argued, was manifestly an abuse of statutory power. The respondent could have easily got the information it wanted from the Reserve Bank of Zimbabwe itself or from its lawyers at the time.

Counsel for the respondent countered that the applicant was the author of its misfortune. It been extremely uncooperative. The onus had been upon it to supply all the information required to the satisfaction of the respondent. For example, there was no reason why a basic finance document like a balance sheet should remain outstanding years after it had been requested. He said even by the time of the hearing certain of the information was still outstanding.

On the issue of an irreparable harm and the preponderance of equities, counsel for the applicant submitted that the balance of convenience favoured a suspension of the garnishees. He said the applicant had established a prima facie right by showing a gross unreasonableness on the part of the respondent. The applicant stood to suffer irreparable harm if the garnishees were not suspended. The applicant was on the verge of liquidation. Only US$10= remained in its Stanbic Bank account. Employees had not been paid for months. The pharmacy department had shut down. The cancer unit would inevitably shut down and thereby put many cancer patients in jeopardy. Creditors were descending on the hospital and one of them had already made an attachment of some of the applicant's assets. But despite all that, the applicant argued, the situation could still be managed if revenue streams were unblocked. On the other hand, there would be no significant prejudice to the respondent. At any rate, since inception, the garnishee had yielded only US$172,000= (which the respondent corrected to US$132,000=).

In response, counsel for the respondent submitted that the garnishees had nothing to do with the applicant's plight. The litigation against it had commenced well before the onset of the garnishees. The applicant had simply failed to prudently manage its affairs and should not cry foul when the law was taking its course.

The applicant is not without my sympathy. It is undoubtedly in dire straits. It has made a very strong and persuasive moral argument for the hardships it is facing. But one should not be dazzled by that. The argument is short on law. The respondent has the law on its side. It must be assumed that Parliament was alive to the hardships or unfairness of the application of section 69 of the Income Tax Act [Chapter 23:06]. The law says in spite of any objection or any appeal, the tax, as charged, is payable. Any overcharge is refunded should the objection or the appeal succeed.

I find nothing peculiar in the circumstances of the applicant to warrant a treatment that is different from the rest of the other taxpayers that may find themselves with objectionable tax assessments against which they will have appealed. The garnishees may worsen the applicant's bad situation, but, regrettably, those are some of the natural consequences of the application of the law. I have found nothing outrageous or grossly unreasonable in the respondent's conduct. The applicant was offered the chance to avert the garnishees by offering an acceptable payment plan. Before it filed the urgent chamber application none had been submitted. The one submitted after the launch of the application was rejected by the respondent. The respondent made a counter offer. The applicant said the counter offer was way beyond its means. But that does not make the conduct of the respondent grossly unreasonable in any sense.

Furthermore, the applicant had defaulted on a previous payment plan. Admittedly, there would have been reasons for such default. But in such circumstances, I am unable to find fault with the respondent's conduct, let alone anything that would amount to conduct so grossly outrageous in its defiance of logic or accepted moral standards as to be liable to impeachment by the court.

The respondent referred to section 16 of the University of Zimbabwe Act [Chapter 25:16] and argued that only its Senate had the exclusive power to confer Degrees and Diplomas - and even to withdraw them. It was argued that the process of arriving at such decisions was an administrative action. It was said such a decision is arrived at after taking into account academic considerations which this court is not placed to undertake.

The portions of section 16 of the University of Zimbabwe Act [Chapter 25:16] cited by the respondent read as follows:

“The Senate, as the academic authority of the University, shall have the following powers and duties –

(a) …,.

(b) To be responsible for academic policy, the regulation of courses of study and the examinations held by the University.

(c) To regulate the admission of students to the University and to the courses of instruction held by the University.

(d) To recommend to the Chancellor, through the Council, the conferment of degrees, including honorary degrees, diplomas and other awards and distinctions of the University and the withdrawal and restoration of any such award…,.”

The respondent's argument was illusory.

The University of Zimbabwe Act [Chapter 25:16] is irrelevant. The respondent is an administrative authority. Like all administrative authorities, its decisions are subject to review. It must not act wrongfully or unlawfully or irrationally or whimsically or capriciously. If it does, its decisions will be set aside.

Although not well developed, it was the essence of the respondent's argument that, as a rule of Administrative Law, the court will refrain from usurping the functions of an administrative functionary. It will avoid substituting its own decisions for that of the administrative functionary. Reference was made to the case of Mhanyami Fishing and Transport Co-operative Limited & Ors v Director General Parks & Wildlife Authority NO & Ors HH92-13.

In that case, MAKONI J declined to grant certain fishing licences that the applicants had been denied by the respondents. Such licences had been continuously and routinely issued to them for the previous ten years. In turning down the application, the learned judge had felt that to grant the order sought would have been tantamount to substituting the decision of the court for that of the administrative functionary.

As noted by MAKONI J in the Mhanyami Fishing and Transport Co-operative Limited & Ors v Director General Parks & Wildlife Authority NO & Ors HH92-13 case; by MATHONSI J in the case of Gurta AG v Afaras Mtausi Gwaradzimba NO HH353-13 and by myself in the case of CJ Petrow & Company Limited v Afaras Mtausi Gwaradzimba NO HH175-14, the approach in such matters was as set out by McNALLY JA in the case of Affretair (Pvt) Ltd & Anor v M K Airlines (Pvt) Ltd 1996 (2) 15 (S). Quoting from BAXTER, Administrative Law…, the learned judge of appeal said…,:

“The function of judicial review is to scrutinize the legality of administrative action, not to secure a decision by a judge in place of an administrator. As a general principle, the courts will not attempt to substitute their own decision for that of the public authority; if an administrative decision is found to be ultra vires, the court will usually set it aside and refer the matter back to the authority for a fresh decision. To do otherwise 'would constitute an unwarranted usurpation of the powers entrusted [to the public authority] by the Legislator'. Thus, it is said that: '[t]he ordinary course is to refer back because the Court is slow to assume a discretion which has, by statute, been entrusted to another tribunal or functionary. In exceptional circumstances, this principle will be departed from. The overriding principle is that of fairness.”…,.

Thus, in exceptional circumstances, a court will substitute its own decision for that of the administrative functionary. There are four criteria:

1. Where the end result is a foregone conclusion and it would be a waste of time to refer the matter back;

2. Where further delay could prejudice the applicant;

3. Where the extent of bias or incompetence is such that it would be unfair to the applicant to force it to submit to the same jurisdiction;

4. Where the court is in as good a position as the administrative body to make the decision.

(See Affretair (Pvt) Ltd & Anor v M K Airlines (Pvt) Ltd 1996 (2) 15 (S) …,.)

Mhanyami Fishing and Transport Co-operative Limited & Ors v Director General Parks & Wildlife Authority NO & Ors HH92-13 is clearly distinguishable. The court held that it could not substitute its own decision for that of the Parks officials because there had simply been no sufficient information laid before it to grant the licences sought. That position, with due respect, was correct on the facts of that case.

In Gurta AG v Afaras Mtausi Gwaradzimba NO HH353-13, the court substituted its decision for that of the administrative functionary after it had set aside his decision. It found that all the four criteria above existed. Again, that decision was, with due respect, correct.

In casu, I considered that all the four criteria existed to enable me to substitute my own decision for that of the respondent. In the premises, I granted the order in terms of the draft. The order was as follows:

“IT IS ORDERED THAT

1. The Diplomas issued to the Applicants be and are hereby declared [to be] Post-Graduate Diplomas in Law (Conciliation and Arbitration).

2. The Respondent be and is hereby ordered to issue to the Applicants the Diplomas referred to in (1) above.

The respondent's argument is that by virtue of section 8 of the City of Harare's water by-laws S.I.164 of 1913 as read with section 198(3) and section 69 of the Third Schedule to the Urban Councils Act [Chapter 29:15] it is clothed with unfettered discretion to disconnect water supplies to a citizen at will without recourse to the courts of law. The by-law provides as follows:

“8. The council may, by giving 24 hours' notice, in writing without paying compensation and without prejudicing its rights to obtain payment for water supply to the consumer, discontinue supplies to the consumer: 

(a) If he shall have failed to pay any sum which in the opinion of the Council is due under the conditions or the water by-law.

(b) …,.”

The applicant has countered that the by-law relied upon by the respondent is ultra vires section 198 as read with section 69(2)(e) of the Third Schedule to the Urban Councils Act [Chapter 29:15] and section 77 of the Constitution. 

Section 198(3) of the Urban Councils Act [Chapter 29:15] provides as follows:

“198 (3) Subject to this Act, Council shall have power to do any act or thing which, in the opinion of the Council is necessary for administering or giving effect to any by-laws of the Council.”

Section198 is, however, subject to section 69(2)(e) of the Third Schedule to the Urban Councils Act [Chapter 29:15] that specifically provides for the disconnection of water supplies to a consumer. That section deliberately omits the words 'in the opinion of'. It reads:

“(2) Without derogation to the generality of subparagraph (1), by-laws relating to matters referred to in that subparagraph may contain provision for all or any of the following - 

(e) Cutting off the supply of water after not less than twenty-four hours' notice on account of failure to pay any charges which are due.”

It is abundantly clear that section 69(2)(e) of the Third Schedule to the Urban Councils Act [Chapter 29:15], which takes precedence over section 198(3) of the Urban Councils Act [Chapter 29:15],  deliberately omits the words “in the opinion of”. The effect of that omission is to divest the respondent of the unfettered discretion upon which it seeks to rely on in justifying its unlawful conduct. Thus, the respondent retained the words 'in the opinion of' in its by-law in order to unlawfully confer on itself a discretion not granted to it by the enabling parent Act.

In other words, when it comes to disconnection of water on account of failure to pay, the City Council's opinion does not matter. It can only disconnect water supplies on no less than 24 hours' notice upon proof that the consumer has failed to pay any charges which are due. What this means is that the respondent cannot lawfully disconnect water from a consumer unless it has established that the amount claimed is actually due.

That then brings us to the question as to who is to determine whether or not the amount claimed is actually due.

The respondent has sought to arrogate to itself the right to determine when the amount claimed is due by simply laying claim to payment without proof by due process or recourse to the courts of law.

What it seeks to do is to oust the jurisdiction of the courts so that it can operate as a loose cannon and a law unto itself. It seeks to extort money from the applicant without the bother of establishing its claim through recognised judicial process. The disconnection of water supplies without recourse to the courts of law is meant to arm-twist and beat the applicant into submission without the bother of proving its claim in a court of law.

The right to water is a fundamental right enshrined in section 77 of the Constitution of Zimbabwe which provides as follows:

”77. Right to food and water

Every person has the right to -

(a) Safe clean and portable water; and

(b) Sufficient food;

And the State must take reasonable legislative and other measures within the limits of the resources available to it to have a progressive realisation of this right.”

Section 44 of the Constitution of Zimbabwe imposes a duty on the State and all its institutions and agencies to respect fundamental human rights and freedoms. It reads:-

“The State and every person, including juristic persons, and every institution and agency of the government at every level must respect, protect and fulfil the rights and freedoms set out in this chapter.”

The respondent, being a public body and institution of local government, it follows that it cannot deny a citizen water without just cause. It is trite that it is the function of the judiciary to interpret and enforce the law when a citizen complains that his human rights have been violated. Section 162 of the Constitution of Zimbabwe clothes this Court with judicial authority and section 165(1)(c) of the Constitution of Zimbabwe provides that;

“The role of the courts is paramount in safeguarding human rights and freedoms and the rule of law.” 

In the words of FRANCIS BENNION in his book Statutory Interpretation, 1984, the courts are best suited to interpret and give effect to the law when he says…,:

“A Court is an agency charged with the function of exercising the judicial power of the State. Only a court, as thus defined, has the power authoritatively to determine what the law is, and therefore what is the legal meaning of a relevant enactment.”

Those sentiments accord with section 171 of the Constitution of Zimbabwe.

In terms of section 171 of the Constitution of Zimbabwe, this Court, as the High Court of Zimbabwe, has full original jurisdiction over all civil and criminal matters throughout the country. It has unlimited jurisdiction save where its power has expressly been curtailed by Parliament for instance in labour matters. See Tuso v City of Harare 2004 (1) ZLR 1 (H). This court, having been conferred with the necessary jurisdiction to hear and determine this matter by the supreme law of the land, it cannot abdicate its function on account of an illegal municipal by-law crafted by municipal authorities contrary to the Constitution of Zimbabwe and the enabling statute.

Above all, it is the function of the court to do justice according to law so that justice may be seen to be done and that the question of the law in dispute may be known.

Section 8 of by-law 164 of 1913 contradicts both the Constitution of Zimbabwe and the enabling statute in more respects than one. Firstly, it authorises the respondent to arbitrarily deprive citizens of their fundamental right to water without compensation contrary to section 85 of the Constitution of Zimbabwe which entitles an aggrieved person to appropriate compensation whenever his fundamental human rights have been violated. Secondly, in the event of a disputed bill, it unlawfully confers the respondent with the sole jurisdiction to arbitrarily determine the dispute without recourse to the courts of law contrary to the provisions of section 69 of the Third Schedule to the Urban Councils Act [Chapter 29:15] as read with section 165(1)(c) of the Constitution of Zimbabwe. By so doing, the by-law allows the respondent to be the sole arbiter in its own case contrary to the well-established common law maxim that no one should be a judge in his own case.

It is a basic principle of our legal policy that law should serve the public interest. As we have already seen, every person has a fundamental right to water. It is therefore, clearly, not in the public interest that a city council can deny its citizens water at will without recourse to the law and the courts. While the City Council has a right to collect its debts it cannot do so by resorting to unlawful means for every person, including the City Council, is subject to the law.

I take comfort in that the Supreme Court of South Africa, in a related case of City of Cape Town v Strumpher (104/11) (2012) ZASCA 54, came to the same conclusion on facts that are on all fours with this case….,.

In the final analysis, the application can only succeed. It is accordingly ordered that a provisional order be and is hereby granted in the following terms:

TERMS OF THE FINAL ORDER SOUGHT

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

1. That the termination by the respondent of the applicant's water supplies on the basis of a disputed water bill, and in the absence of any order of Court, is unlawful self-help.

2. That the respondent and all its employees be and are hereby interdicted from interfering whatsoever with disrupting or terminating the applicant's water supply without the authority of a Court Order.

3. That the respondent shall pay costs of suit on the higher scale of legal practitioner and client only if it opposes this application.

INTERIM RELIEF GRANTED

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

1. That respondent be and is hereby ordered to immediately restore water supply to the applicant's rented premises, being 12 Northcliff Flats, Harare.

2. That pending finalisation of this matter, respondent and its employees and assigns be and are hereby interdicted from interfering with applicant's possession of the premises by interfering with or terminating water supply.

The reasons I dismissed the applications are the following.

It is trite law that the applicant, as a former owner or occupier, whose land has been acquired by the acquiring authority in terms of section 16B(2)(a) of the Constitution of Zimbabwe cannot challenge the legality of such acquisition in a court of law. The jurisdiction of the courts has been ousted by section 16B(3)(a) of the Constitution – Mike Campbell (Pvt) Ltd & Ors v Minister of National Security responsible for Land, Land Reform and Resettlement & Anor SC49-07 and Commercial Farmers Union & Ors v Minister of Lands and Rural Resettlement & Ors SC31-10.

Further, the effect of section 16B of the Constitution of Zimbabwe is that it renders agricultural land occupied under the Bilateral Investment Protection Agreement liable to compulsory acquisition if the acquiring authority considers that it is required for resettlement purposes or any other purpose prescribed under section 16B(2)(a)(iii) of the Constitution of Zimbabwe – Commercial Farmers Union & Ors v Minister of Lands and Rural Resettlement & Ors SC31-10…,.

One would be inclined to cast a sympathetic view on this application if, on the merits, there was something for them to argue. Regrettably, I am not persuaded the applicants have any case even on the merits.

The farm occupied by the applicants was gazetted as State land in July 2002. The two (2) respondents are holders of offer letters issued to them by the acquiring authority in terms of the law, in respect of the two (2) pieces of land occupied by the applicants. They therefore possess the right of occupation of the land in question which right has been lost by the former farm owner.

The applicants have sought to argue that they occupy the land in terms of a Bilateral Agreement between the Government of Zimbabwe and that of Germany, which Agreement permits them, as German nationals, to occupy Marcedale Farm. 

This is the sole defence advanced in the applicants' plea in case number HC1019/11.

However, that issue, along with others, has long been determined by the Supreme Court to the extent that there is nothing else to be argued before this court. In Commercial Farmers Union & Ors v Minister of Lands and Rural Resettlement and Ors SC31-10…, CHIDYAUSIKU CJ stated as follows in respect of Bilateral Investment Protection Agreements…,;

“The effect of section 16B of the Constitution is that it renders agricultural land occupied under Bilateral Investment Protection Agreements (BIPAs) liable to compulsory acquisition if the acquiring authority considers that it is required for resettlement purposes or any other purpose as prescribed under section 16B(2)(a)(iii) of the Constitution.”

On the continued occupation of farmland by former occupiers, he stated…, as follows:

“On the other hand, section 3 (of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28]) of the Act criminalises the continued occupation of acquired land by the owners or occupiers of land acquired in terms of section 16B of the Constitution beyond the prescribed period. The Act is very explicit that failure to vacate the acquired land by the previous owner after the prescribed period is a criminal offence. It is quite clear from the language of section 3 of the Act that the individual applicants, as former owners or occupiers of the acquired land, have no legal right of any description in respect of the acquired land once the prescribed period has expired.”

On the rights of holders of offer letters, the Supreme Court stated…, as follows:

“An offer letter issued in terms of the Act is a clear expression by the acquiring authority of the decision as to who should possess or occupy its land and exercise the rights of possession or occupation on it. The holders of the offer letters, permits or land settlement leases have the right of occupation and should be assisted by the courts, the police, and other public officials to assert their rights.”

As holders of offer letters, the respondents approached this court seeking the eviction of the applicants from the farm. This court has granted that relief and for the applicants to rescind that judgment they must show more than just the lack of diligence by their legal practitioners in failing to file heads of argument. After all, the cornerstone of our justice system is that there must be finality to litigation.

It would be an improper exercise of discretion for this court to stay execution of judgment in circumstances where the respondents' claim is unassailable in order to allow the applicants to file a rescission of judgment application which is unlikely to succeed. Before a judgment of this court is rescinded, it behoves an applicant to show, not only the lack of willingness in the default, but also the bona fides of the applicant's defence on the merits. I am not satisfied that the applicants' intended rescission of judgment application passes that test. Perhaps that explains why they have failed to put it together and file it up to now.

The question that arises for determination is whether the circumstances are such that this court can intervene and accede to the relief that is sought in the face of certain statutory provisions that appear to give the tax collector absolute power to impose and collect taxes. This is an urgent chamber application for a provisional order in which the applicant seeks the following interim relief:

 INTERIM RELIEF GRANTED

1. That the respondent uplifts the garnishee order and/or letter of appointment of agency placed/served to applicant's bank, FBC Bank, immediately and forthwith.

2. That respondent revokes and/or withdraws the appointment of applicant's FBC Bank as its agent in terms of section 58 as read with section 59 of the Income Tax Act [Chapter 23:06] immediately and forthwith.

3. That the respondent shall not unlawfully interfere with applicant's business operations and day to day activities, including the placing of its officers or agents at applicant's business premises….,.

MERITS

The cannons of statutory interpretation are well established.

“It is a generally accepted rule of interpretation that the use of peremptory words such as 'shall', as opposed to 'may' is indicative of the legislature's intention to make the provision peremptory. The use of the word 'may' as opposed to 'shall' is construed as indicative of the legislature's intention to make a provision directory. In some instances, the legislature explicitly provides that failure to comply with a statutory provision is fatal. The difficulty arises where the legislature has made no specific indication as to whether failure arises where the legislature has made no specific indication as to whether failure to comply is fatal or not.” See Moyo & Ors v Zvoma & Anor SC28-10; Dr Daniel Shumba & Anor v The Zimbabwe Electoral Commission & Anor SC11-08.

FRANCIS BENNION, in his book Statutory Interpretation…, writes as follows:

“Where a duty arises under a statute, the court, charged with the task of enforcing the statute, needs to decide what consequences Parliament intended should follow from breach of the duty. This is an area where legislative drafting has been markedly deficient. Draftsmen find it easy to use the language of command. They say that a thing 'shall' be done. Too often they fail to consider the consequences when it is not done…,.”

It has been suggested that breach of a mandatory duty which is set out in a statute invalidates the thing done. Section 36 of the Value Added Tax Act [Chapter 23:12] provides that:

“36 Payment of tax pending appeal

The obligation to pay and the right to receive and recover any tax, additional tax, penalty or interest chargeable under this Act shall not, unless the Commissioner so directs, be suspended by any appeal or pending the decision of a court of law, but, if any assessment is altered on appeal or in conformity with any such decision or a decision by the Commissioner to concede the appeal to the Fiscal Appeal Court or such court of law, a due adjustment shall be made, amounts paid in excess being refunded with interest at the prescribed rate (but subject to section forty-six) and calculated from the date proved to the satisfaction of the Commissioner to be the date on which such excess was received, and amounts short-paid being recoverable with penalty and interest calculated as provided in subsection (1) of section thirty-nine.”…,.

My reading of section 36 of the Value Added Tax Act [Chapter 23:12] is that the liability to pay remains extant until the appeal is finalised, or, in the alternative, unless the Commissioner directs that the obligation falls away pending appeal is finalised.

The applicant in this matter has not argued that the effect of the noting of the appeal is to extinguish its obligation to pay. Section 33 of the Value Added Tax Act [Chapter 23:12] provides for the circumstances in which an aggrieved person can appeal to the Fiscal Court against the exercise of discretion by the Commissioner. The right to appeal against the exercise of discretion by the respondent's officers, to the Commissioner, is provided for in terms of section 32 of the Value Added Tax Act [Chapter 23:12]. My reading of section 32 of the Value Added Tax Act [Chapter 23:12] is that when the Commissioner notifies, in writing, a person who is liable to pay tax to the respondent, of any decision or assessment made against that person, then that person may lodge an objection, also in writing, specifying the grounds of the objection, to the Commissioner, within a specified time period. Section 32(1)(a)(i), (ii), (iii), 32(1)(b), and 32(1)(c) of the Value Added Tax Act [Chapter 23:12] provide all the prescribed circumstances where the Commissioner must give a decision in writing, which decision must be objected to, in writing. These circumstances include:

(a) Refusal to register that person in terms of the Value Added Tax Act [Chapter 23:12].

(b) Cancellation of that person's registration in terms of the Value Added Tax Act [Chapter 23:12] or refusal to cancel registration.

(c) Refusal to make a refund.

(d) An assessment made in terms of sections 31, 36, and 37.

(e) Any direction or supplementary action made by the Commissioner in terms of section 52(3), 52(4).

The applicant has appealed to the Fiscal Court against an assessment made in terms of section 31 of the Value Added Tax Act [Chapter 23:12]. It is clear that the applicant correctly appealed to the Fiscal Court against the dismissal of its objection in terms of section 32(1)(d) of the Value Added Tax Act [Chapter 23:12]. The respondent itself advised the applicant to appeal to the Fiscal Appeal Court if it was dissatisfied with the dismissal of its objection to the tax assessment. In terms of section 32(4) of the Value Added Tax Act [Chapter 23:12], the Commissioner, on receiving an objection is entitled to:

“(4) After having considered the objection, the Commissioner may -

(a) Alter any decision pursuant thereto; or

(b) Alter or reduce any assessment pursuant thereto; or

(c) Disallow the objection.”

In this case, the Commissioner exercised his discretion and disallowed the objection to the tax assessment in terms of section 32(4)(c) of the Value Added Tax Act [Chapter 23:12].

So which exercise of discretion by the Commissioner is being challenged by the applicant in this application?

It appears as if the applicant is challenging the Commissioner's appointment of agents in terms of section 48 of the Value Added Tax Act [Chapter 23:12], and the consequences that flowed from such appointment, the imposition of a garnishee order on the applicant's account. The Commissioner's power to appoint agents is found in section 48 of the Value Added Tax Act [Chapter 23:12]:

“48 Power to appoint agent

(1)…,.

(a)…,.

(b)…,.

(c)…,.

(d)…,.

(2) The Commissioner may, if he thinks it necessary, declare any person to be the agent of any other person, and the person so declared an agent shall be the agent of such other person for the purposes of this Act, and, notwithstanding anything to the contrary contained in any other law, may be required to pay any amount of tax, additional tax, penalty, or interest due from any moneys in any current account, deposit account, fixed deposit account or savings account or any other moneys -

(a) Including pensions, salary, wages or any other remuneration, which may be held by him…,.

(b)…,.”…,.

My reading of section 48 of the Value Added Tax Act [Chapter 23:12] is that the Commissioner of Taxes has a discretion to declare any person to be the respondent's agent, and that once such a declaration is made, the proposed agent has no choice but to pay any amount of money held on behalf of the applicant, to the respondent, as long as it is required for purposes of fulfilling tax obligations, and must even pay to the respondent money that will be held in an account for wages.

This obligation, on the part of the appointed agent, is not subject to any other law except section 48 of the Value Added Tax Act [Chapter 23:12].

Section 48 of the Value Added Tax Act [Chapter 23:12] overrides anything that is contrary to it which may be set out in any other law. In my view, section 48 of the Value Added Tax Act [Chapter 23:12] does not override the Constitution, and the discretion exercised by the Commissioner is reviewable because of the use of the word 'may' which is not peremptory. I hold the firm view that the intention of the legislature was that section 48 of the Value Added Tax Act [Chapter 23:12] protect the designated/appointed agents of the respondent from litigation in terms of other laws for the act of forwarding money in their client's accounts to the respondent. Its purpose is to absolve the designated agents from liability if their act of forwarding their client's money to the respondent results in loss or prejudice to their clients, the account holders. I hold the respectful view that it could not have been the intention of the legislature to put the exercise of discretion by the Commissioner beyond the reach of the law. However, I respectfully decline to accede to the relief sought by the applicant, to direct the respondent to revoke the appointment of FBC Bank as its agent. There is no evidence before me that the discretion exercised by the Commissioner in making the appointment, violated any of the tenets by which the exercise of administrative justice ought to be guided.

I accept the argument proffered by counsel for the respondent that the act of designating an agent was lawfully done by the respondent as provided by the law, section 48 of the Value Added Tax Act [Chapter 23:12]. What I find difficulty with is whether that exercise of discretion which resulted in a garnishee order being placed over the applicant's account, is reviewable for compliance with the tenets of administrative justice. Section 14 of the Fiscal Appeal Act provides that:

“14 Suspension of tax on noting of appeal

Where any person has given notice of intention to appeal in accordance with section eleven or thirteen, payment of so much of the tax which he has been called upon to pay as would not be payable by him if the appeal were allowed shall be suspended until the appeal has been decided, unless the Commissioner, whose decision is the subject of the appeal, otherwise directs.”

My interpretation of this Act is that the applicant in this case should not be required to pay the twenty million dollars that the respondent has garnished its accounts for. I hold the considered view that, the noting of the appeal suspended actual payment of only that portion of the twenty million dollars that the applicant is disputing liability for. This interpretation is subject to the rider: “…, unless the Commissioner…, otherwise directs.” It is arguable that, by directing that a garnishee order in that sum be imposed, the Commissioner has directed that the full amount of the tax assessed be paid. In my view, however, the Commissioner is required to expressly say this, and to reduce his direction to writing, and notify the applicant of his direction, in writing, which was not done in this case. In the circumstances, I maintain that, only the approximately one million dollars that the applicant admitted to owing in its founding papers would, on the face of it, remain payable until the appeal to the Fiscal Court is finalized.

It should be emphasized that my reading of section 14 of the Fiscal Appeal Act is that the obligation to pay is not suspended, otherwise that would result in conflict with section 36 of the Value Added Tax Act [Chapter 23:12]. The obligation/liability to pay is not suspended by the noting of the appeal. The appeal will establish whether the taxpayer is indeed liable to pay the assessed sum. What is suspended is the actual payment of the assessed sum in full. I am fortified in my view by certain orbiter dicta in the case of Metcash Trading Limited vThe Commissioner for the South African Revenue Service & The Minister of Finance CCT3/2000…, as follows:

“…, common law judicial review as now buttressed by the right to administrative action under s33 of the Constitution, and as fleshed out in the Promotion of Administrative Justice Act…,. The Act nowhere excludes judicial review in the ordinary course…, it leaves intact all other avenues of relief.” 

For the scope and origin of the common law judicial review, see Johannesburg Consolidated Investment Co v Johannesburg Town Council 1903 TS 111. At page 104, paragraph 71 of that judgment, the South African Constitutional Court stated that:

“…, that does not mean that a court is prohibited from hearing an application for interlocutory relief in the face of a pending VAT appeal, or from granting other appropriate relief. Nor does it mean that the jurisdiction is theoretically extant but actually illusory.”