The respondent also raised a third preliminary issue, arguing that the interim relief sought was not competent. 

The provisions of section 4 of the Legal Practitioners Regulations are mandatory.

The appellants could not lawfully practice as legal practitioners on their own account except in compliance therewith. They would therefore have had to have been employed by legal practitioners of a minimum of four (4) years standing for a period of three (3) years before they could practice on their own account.

The fact that they accepted briefs in their own names, charged their own fees and accounted to no one for their time, was evidence that they were practicing as principals on their own account. The letter of admission from Advocates Chambers could not legalize their unlawful conduct. The court a quo was therefore correct both in its assessment of the law and in its refusal to grant the order sought.

On the question of costs, which normally follow the event, the respondents generously declined to pursue their prayers for costs as prayed in their opposing affidavits.

The Mining Commissioner, in his letter to Kwekwe Consolidated Gold Mines (Pvt) Ltd, dated 29 February 2012, advised as follows:

“Dear Sir

REF: Current status of Tribute Agreement No. U/R05/06 - KCGM in favour of RBZ

Please be advised that according to records in this office, the above tribute lapsed on 3 February 2012 after six years to 2 February 2012.

Any person who is mining under the former agreement is doing so in contravention of Mining Law and should be reported to the police and section 289 of the Mines and Minerals Act (Chapter 21:05) should be invoked.”

The court a quo correctly found, in my view, that the appellant was mining in contravention of the law when he approached the court for the second provisional order on 9 March 2012. On page 4 of the cyclostyled judgment, the court said:

“The applicant of the provisional order granted on 9 March 2012, under case number HC800/12, was clearly mining in contravening of the mining law. This ought to have been clear to the applicant yet it still sought to have the provisional order confirmed when, in fact, it does not even have a prima facie right or real right to permanently interdict the owners from retaking their mining claims. There is no document filed of record from which the applicant in that case could derive a right.

Whether the court erred in enforcing a contract which was found by it to be illegal and which was, in any event, prohibited by section 39 of the Regional Town and Country Planning Act.

The court a quo decided the matter on the basis that it was dealing with a contract that was illegal by virtue of its contravention of section 44 of the Stamp Duties Act [Chapter 23:09] (“the Stamp Duties Act”). For completeness the section is set out below:

“44 Agreements to evade duty shall be void

Every contract, agreement or undertaking made for the purpose of evading, defeating or frustrating the requirements of this Act as to the stamping of instruments, or with a view to precluding objection or inquiry relative to the due stamping of any instrument shall be void.”

In his heads of argument, as also in his submissions before this Court, counsel for the respondent made the concession that the Agreement of Sale between the parties also contravened the provisions of section 39 of the Regional Town and Country Planning Act [Chapter 29:12] and that, consequently, the appeal from the court a quo's judgment ordering the transfer of the Stand ought to succeed. 

He submitted, however, that since both parties were in the wrong, this Court should relax the in pari delicto rule and remit the matter to the court a quo to ascertain the present value of the property with a view to granting a refund to the respondent of the value paid for the property in order to avoid a situation where the appellant is enriched at the expense of the respondent.

This submission was resisted by counsel for the appellant who contended that the court a quo ought to have granted the counter application as it was the respondent who would be enriched at the expense of the appellant….,.

Section 39 of the Regional Town and Country Planning Act [Chapter 29:12] (“the Act”) reads, in relevant part, as follows:

“39 (1) Subject to subsection (2), no person shall -

(a) Subdivide any property; or

(b) Enter into any agreement -

(i) For the change of ownership of any portion of a property; or

(ii)…,.

(iii)…,.

(iv)…,.

(c) Consolidate two or more properties into one property; except in accordance with a permit granted in terms of section forty:”

It is common cause that the Agreement in casu was for the sale of an un-subdivided portion of a Stand and that at the date of conclusion of the Agreement, there was, in existence, no permit granted in terms of section 40 of the Regional Town and Country Planning Act [Chapter 29:12]. Therefore, in terms of clear authority emanating from this Court, the agreement was illegal and unenforceable at law. See X-Trend-A-Home (Pvt) Ltd v Hoselaw Investments (Pvt) Ltd 2000 (2) ZLR 348 (SC) where McNALLY JA…, stated as follows:

“…, s 39 forbids an agreement for the change of ownership of any portion of property except in accordance with a permit granted under s 40 allowing for a subdivision. The agreement under consideration was clearly an agreement for change of ownership of the unsubdivided portion of a Stand. It was irrelevant whether the change of ownership was to take place on signing or on an agreed date, or when a suspensive condition was fulfilled. The agreement itself was prohibited.”

It follows from the above that the grant of the remedy sought by the respondent in the court a quo would amount to an enforcement of the illegal contract.  That was the substance of the concession made by counsel for the respondent.

It is now established that an illegal agreement which has not yet been performed, either in whole or in part, will never be enforced by the Court. See York Estates Ltd v Wareham 1950 (1) SA 125…, where LEWIS ACJ said:-

“The Court has no equitable jurisdiction to grant relief to a plaintiff seeking to enforce a contract prohibited by law. See Matthews v Rabinowitz 1948 (2) SALR 876 W.L.D. In fact, the Court is bound to refuse to enforce a contract which is illegal even though no objection to the legality of the contract is raised by the parties. Cape Diary and General Livestock Enginners v Sim 1924 AD 167 (supra)…,.” 

This rule is absolute and admits of no exception. It is expressed in the maxim ex turpi causa non oritur actio. See Dube v Khumalo 1986 (2) ZLR 103 (SC)…,.

It is based on the principle, expressed variously, that the Court cannot aid a party to defeat the clear intention of an ordinance or statute; that Courts of justice cannot recognize and give validity to that which the legislature has declared shall be illegal and void; and that the courts will not permit to be done indirectly and obliquely what has expressly and directly been forbidden by the legislature.

In Dube v Khumalo 1986 (2) ZLR 103 (SC) GUBBAY JA…, put it this way:

“There are two rules which are of general application: The first is that an illegal agreement which has not yet been performed, either in whole or in part, will never be enforced. This rule is absolute and admits no exception. See Mathews v Rabinowitz 1948 (2) SA 876 (W) at 878: York Estates Ltd v Wareham 1950 (1) SA 125 (SR) at 128. It is expressed in the maxim ex turpi causa non oritur actio. The second is expressed in another maxim in pari delicto potior est conditio possidentis.”…,.

The principle which emerges from the decided cases is that the courts will not enforce an agreement prohibited by law. The order of the court a quo, having, as it did, the effect of enforcing the illegal contract concluded by the parties, cannot be allowed to stand. 

However, that is not the end of the matter.

I turn to determine the third issue, which will involve a consideration of the application of the second maxim.

Whether the court erred in finding that the appellant would be unjustly enriched if the counterclaim were granted.

THE PAR DELICTUM (or the IN PARI DELICTO) RULE  

The name derives from the maxim in pari delicto potior est conditio defendentis which literally means that if the plaintiff and the defendant are tainted by turpitude ('in the wrong'), the position of the defendant is stronger, and that the plaintiff must fail, DU PLESSIS : The South African Law of Unjust Enrichment…,.; or in pari delicto potior est conditio possidentis which  may be translated as meaning where the parties are equally in the wrong, he who is in possession will prevail.

The effect of the rule is that where something has been delivered pursuant to an illegal agreement, the loss lies where it falls, the objective of the rule being to discourage illegality by denying judicial assistance to persons who part with money, goods or incorporeal rights, in furtherance of an illegal transaction. Dube v Khumalo 1986 (2) ZLR 103 (SC).

The distinctive character of the two maxims was explained by STRAFFORD CJ in Jajbhay v Cassim 1939 AD 537 as follows:

“In my view, the first maxim prohibits the enforcement of immoral or illegal contracts and the second curtails the right of the delinquents to avoid the consequences of their performance or part performance of such contracts.”…,.

And at p542:

“I repeat that the two maxims, although they have a common inspiration and purpose, are clearly distinct in that they deal with different types of claim. The maxim ex turpi causa is self-explanatory and requires no elucidation. It is complete and unquestioned in our Courts as in the Courts of England. But, we must leave it in its own department where it reigns supreme and not unwarrantably extend it to the province of the other maxim which is designed to supplement the deficiencies of the first in regard to deterring illegality. The two, separately operating and properly applied, are, I venture to think, adequate for that designed purpose. When I say that the law is not settled, I mean in regard to the application only of the second maxim in pari delicto potior conditio defendentis. This is the only maxim which, in my judgment, concerns us in the present case, for the appellant is not seeking enforcement of the illegal contract but seeks release from its operation. This maxim is not so self-explanatory as the first, for the nature of the plaintiff's claim is not immediately indicated and the degree and nature of the delinquency is but vaguely defined.”…,.

The harsh effect of the unqualified application of the par delictum rule is illustrated in the case of Brandt v Bergstedt 1917, C.P.D. 334. The plaintiff, who had sold his cow to the defendant on a Sunday, in contravention of an ordinance which prohibited any form of trading on a Sunday, was not assisted by the court when he sought payment from the defendant for the cow. The defendant had set up the defence, inter alia, that he was not obliged to pay because the sale was prohibited by statute (the Court in Jajbhay v Cassim 1939 AD 537 was of the view that this was one of the cases where the plaintiff ought to have been assisted by the Court…,.).

No doubt there are many similar cases in which the courts have strictly applied the maxim.

However, in Jajbhay v Cassim 1939 AD 537…, the appellate division of the Supreme Court of South Africa, headed by STRAFFORD CJ, held that the general rule expressed in the maxim is not one that can, or ought, to be applied in all cases and that it is subject to exceptions which, in each case, must be found to exist only by reference to the principle of public policy.

It was there said that:

“Courts of law are free to reject or grant a prayer for restoration of something given under an illegal contract, being guided in each case by the principle which underlies and inspired the maxim. And in this last connection, I think a court should not disregard the various degrees of turpitude in delictual contracts. And when the delict falls within the category of crimes, a civil court can reasonably suppose that the criminal law has provided an adequate deterring punishment and therefore, ordinarily speaking, should not, by its order, increase the punishment of the one delinquent and lessen it of the other by enriching one to the detriment of the other. And it follows from what I have said above, in cases where public policy is not foreseeably affected by a grant or a refusal of the relief claimed, that a court of law might well decide in favour of doing justice between the individuals concerned and so prevent unjust enrichment.”…, 

The above passage was quoted with approval by GUBBAY JA in Dube v Khumalo 1986 (2) ZLR 103 (SC).

At page 543 of the judgment, Jajbhay v Cassim 1939 AD 537, the learned Chief Justice expressed his view that:-

“The case of Brandt v. Bergstedt (1917 CPD 344) and the decision of the Transvaal Provincial Division in Rex v Maseko (1915 TPD 1) appear to me to be in conflict. In the first, the reasoning implies that the learned Judge felt himself bound by the authorities he quoted to refuse relief to the plaintiff, whereas I respectfully suggest that he should have approached the matter from the more fundamental point of view as to whether public policy was best served by granting or refusing the plaintiff's claim. If the learned Judge had so approached the case and had considered that as an equitable Judge he was free (as I think he was) to order the restoration of the cow, I cannot doubt that he would have granted the relief prayed.  Indeed, the facts of that case afford a typical example which called for a decision on which side public policy is best served”…,.

Where a party to an illegal contract seeks not to enforce the illegal contract but to obtain relief from the consequences of his illegal action, the courts have, in order to prevent an injustice or to satisfy the requirements of public policy, or obviate a situation where one party is unjustly enriched at the expense of the other, intervened and granted relief from the rigid application of the rule.

Thus, while the general rule is that illegal transactions will be discouraged by the courts, the exceptions show that where it is necessary to prevent injustice, or to promote public policy, the courts will not rigidly enforce the general rule. The identification of the exception to the rule, however, is a task which the court must undertake in each case. As WATERMEYER JA observed at page 550 of the same judgment;

“The real difficulty lies in defining, with any degree of certainty, the exceptions to the general rule which it (the Court) will recognize.”

In Dube v Khumalo 1986 (2) ZLR 103 (SC)…, it was said that:

“…, in suitable cases, the courts will relax the par delictum rule and order restitution to be made. They will do so in order to prevent injustice, on the basis that public policy “should properly take into account the doing of simple justice between man and man.”

It would seem quite clear that the appellant seeks to benefit, unjustly, from the transaction. Having sold the property and received the proceeds through his agent, he now seeks the return of the property and thus, so to speak, 'have his cake and eat it'. The respondent, on the other hand, has parted with the full value of the property and stands to incur great financial prejudice if an order for eviction is granted in terms of the counter claim. It would appear then, that the court a quo was correct in its finding that the appellant sought to benefit from its own wrongdoing. It said:

“It is clear to me that the 1^st respondent seeks to benefit from its own wrongdoing. Therefore, rigid application of the ex turpis causa rule will result in an unjust enrichment of the party who engineered the result of the illegality. It is on this basis alone that the counter application should fail. In the result, therefore, the application is granted and the counter application dismissed with costs.”

DISPOSITION

Both parties sought the enforcement, in whole or in part, of the illegal agreement. The respondent, in moving the court to order the transfer to him of the property on the basis that he had paid the full purchase price of the property, prayed, in effect, for specific performance of the contract. The appellant, in his counter application for eviction on the basis that vacant possession of the property was given by him to the respondent in the mistaken belief that the latter had complied with clause 2 of the general conditions of the Agreement and paid the purchase price when, in fact, he had not, was seeking relief from the Court on the basis of an alleged breach of the illegal contract by the respondent.

While the provisions of section 39 of the Regional Town and Country Planning Act [Chapter 29:12] may not have been present to their minds at the time of conclusion of the Agreement in this matter, no comfort can be gained by the parties from that fact since ignorance of the law is no excuse. In any event, the contravention of the Stamp Duties Act [Chapter 23:09] was agreed upon by both parties - albeit with some persuasion, as the court found, from the appellant. They were both in the wrong. They fell squarely within the ambit of the in pari delicto maxim.

After hearing submissions by counsel at the hearing of the appeal, the parties were afforded time in which to attempt a settlement of the matter. Part of the delay in writing this judgment is attributable to this postponement of the hearing. Needless to say, the parties were unable to reach agreement and I must now consider the real issue to be determined in this appeal which is whether the present case is a suitable one for a departure from the general rule or, as it was put by the parties, for a relaxation of the par delictum rule, by the Court.

In that connection, it appears that the court a quo confused the two maxims. It referred to relaxing the ex turpi causa rule. The tenor of the judgments of this court is that the ex turpi causa rule does not admit of exceptions. York Estates Ltd v Wareham 1950 (1) SA 125; Dube v Khumalo 1986 (2) ZLR 103 (SC).

It cannot be relaxed.

Different considerations apply, however, where the in pari delicto maxim is concerned. Dube v Khumalo 1986 (2) ZLR 103 (SC). Judging by the reference to his judgment in Logan v Sibiya 2002 (1) ZLR 531, it seems likely that the learned Judge meant to relax the application of the in pari delicto maxim. In that case, where an applicant sought the return of money paid to a respondent in pursuance of an illegal contract, the court found it to be an appropriate case in which to relax the par delictum rule in order to prevent the unjust enrichment of the respondent at the expense of the applicant.

A strict application of the par delictum rule in the instant matter would result in a situation where the appellant holds the title deeds but the respondent retains possession of the property. While neither party could resort to the courts for enforcement of the contract, it is quite conceivable that the appellant could transfer title to a third party against whom the respondent might have no recourse. In the circumstances of this case, it seems to me that public policy would not countenance the unjust enrichment of the appellant at the expense of the respondent. Indeed, it might well be thought that the respondent had been the subject of a great injustice and the Court would be expected to come to his assistance. A failure by the Court to assist the respondent might, far from deterring illegality, prove to be to the advantage of some unscrupulous members of the public. In this regard, I am in respectful agreement with the following remarks by STRAFFORD CJ in Jajbhay v Cassim 1939 AD 537:

“It may be said that contracts of that nature are more discouraged by leaving the bereft plaintiff unhelped and the doubly delinquent defendant in possession of his ill-gotten gains. I cannot agree with this view, which I think would not so much discourage such transactions but would tend to promote a more reprehensible form of trickery by scoundrels without such honour as even thieves are sometimes supposed to possess, and public policy should properly take into account the doing of simple justice between man and man.”

In my judgment, this is a suitable case for making an exception to the strict application of the par delictum rule. The justice of the case would be met by remitting the matter to the court a quo for the reasons advanced by counsel for the respondent. Such a course would enable the respondent to recover the value of the money paid under the illegal contract, and the appellant, on payment of compensation, to recover possession of the property….,.

Accordingly, it is ordered as follows:-

1. The appeal is allowed in part with each party paying its own costs.

2. The judgment of the court a quo, ordering transfer of the property to the respondent, is set aside with each party to pay its own costs.

3. The matter is remitted to the court a quo for hearing of evidence to enable it to determine:-

(i) The value of the property, including any improvements made thereon by the respondent;

(ii) The amount by which the appellant has been enriched at the expense of the respondent;

(iii) The amount by which the respondent should be compensated by the appellant; and

(iv) To make such order as to it seems appropriate in order to achieve justice between the parties.

The court in X-Trend-A-Home (Pvt) Ltd v Hoselaw Investments (Pvt) Ltd 2000 (2) ZLR 348 (SC) 351 had to consider section 39 of the Regional, Town and Country Planning Act [Chapter 29:12].

In order to crystalize the issue that was before it, the court posed the question; “Does s 39 of the Regional, Town and Country Planning Act [Chapter 29:12] prohibit persons from entering into an agreement for the change of ownership of any portion of a property, even where the agreement is made, expressly or impliedly, conditional upon the obtaining of a permit for subdivision of that portion?”

Section 39 of the Regional, Town and Country Planning Act [Chapter 29:12] reads in relevant:

“39 No subdivision or consolidation without permit

(1) Subject to subsection (2), no person shall -

(a) Subdivide any property; or

(b) Enter into any agreement -

(i) For the change of ownership of any portion of a property; or except in accordance with a permit granted in terms of section forty.”

The court examined the origins of the section dating back to the Southern Rhodesian Country Land Sales Restriction Regulations, 1943. The court carefully examined all the cases that had been decided under the Regulations and the statutory instruments that followed in an endeavour to identify the mischief intended to be cured by the legislation. The court went on, later in the judgment, and held:

“The agreement with which we are concerned is clearly "an agreement for the change of ownership" of the un-subdivided portion of a Stand. What else could it be for? Whether the change of ownership is to take place on signing, or later on an agreed date, or when a suspensive condition is fulfilled, is unimportant. It is the agreement itself which is prohibited.”…,.

Also see Tsamwa v Hondo and Others 2008 (1) ZLR 401 (H) for a general discussion of the issue.

Applying the above quoted principle to the facts in casu, the only conclusion to be arrived at is that the “agreement” which the court a quo found to exist between the parties was illegal.

A sale of rural land before the relevant Minister has expressed his disinclination to buy the same is prohibited. It is clear that the appellants had not complied with section 3 of the Land Acquisition (Disposal of Rural Land) Regulations, S.I.287 of 1999.

The courts do not give effect to illegal agreements.

On 20 February 2014, the High Court, in HC3546/13, issued an order in the following terms:

“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.

3. Respondent be and is hereby ordered to pay the costs of suit.”

This is an appeal against the whole judgment of the High Court captioned above.

The Facts

The appellant invited interested parties to apply for different programmes that were on offer at the University of Zimbabwe through an advertisement that was flighted on 24 October 2010. The Faculty of Law offered a course called Diploma in Law (Conciliation and Arbitration). The respondents applied for the course and were accepted. There were several other courses offered by several faculties including Agriculture, Arts, Engineering and most of these were Masters' Degrees.

In casu, the problem arose when, after graduation, the respondents went to collect their transcripts and certificates. Their certificates were inscribed “Diploma” only, yet the respondents believed that they had been studying for and were therefore expecting to receive not mere Diplomas but Post Graduate Diplomas.

The facts suggest that at all relevant stages after the respondents' responses to the advertisement until after the respondents' graduation, the parties dealt with each other on a footing that the respondents were pursuing a postgraduate diploma course. It was only after their graduation that the respondents realised that their certificates were endorsed that they had successfully pursued a diploma and not a post-graduate diploma programme.

The admission or acceptance letters that were written to the respondents read, in part:

“ADMISSION IN THE YEAR 2011 TO THE POST GRADUATE DIPLOMA IN LAW- CONCILIATION AND ARBITRATION

I am pleased to inform you that your application for admission to the above mentioned degree programme has been accepted. (the underlining up to this stage of the letter is mine)…,..

I would like you to note that this offer is made without prejudice to the rights which the University may have to withdraw or cancel in the event of you or the University being unable to meet the conditions of the offer.

Kindly note that the admittance to the University is made subject to your accepting the conditions set out in this letter and your registering for the programme. Failure to do so may result in the University withdrawing your name from its list of successful applicants for the 2011 admission year.”

In the court a quo, the appellant, which was then the respondent, argued that the prerogative to offer any course of study, to regulate it, and even withdraw it lies not with the then applicants, who are the respondents herein, nor with the court nor with anyone else, but solely with the respondent's Senate.

Notably, however, the appellant withdrew the respondents' post graduate diplomas, in circumstances where the acceptance letter empowered it to withdraw or cancel the offer only in the event of either the appellant or the respondents failing to meet the conditions of the offer.

It is the respondents' contention that the conditions of the offer, as stipulated in the letter, related to the registration times, the starting times for lectures and the payment of various fees for tuition and for registration, among other things expected from a student at a university. They contend that they adhered to the conditions and that the two parties had entered into contracts. They contend that they fulfilled the contractual obligations but the appellant breached the contract by failing to give the respondents the post graduate diplomas that they had studied for.

Aggrieved by the appellant's decision to reduce their postgraduate diplomas to mere diplomas, the respondents applied to the High Court for a declaratory order.

The High Court has the power to grant the same in terms of section 14 of the High Court Act [Chapter 7:06]. The High Court granted the order that was sought, in the terms captured at the beginning of this judgment. The High Court confirmed that the respondents had studied for a Post Graduate Diploma in Law (Conciliation and Arbitration). The appellant was ordered to issue the respondents with post graduate diplomas.

Aggrieved by the decision of the court a quo, the appellant filed the instant appeal on the following grounds:

“The Court a quo failed to judiciously exercise its discretionary power in issuing a declarator in favour of Respondents in the circumstances, particularly that it:

(a) Failed to properly take into account the undesirable consequences of interfering with the recommendations of the Appellant's Senate in respect of the conferment, withdrawal or restoration of degrees, diplomas and any other award;

(b) Failed to properly take into account the nature of the advertisement flighted by the Appellant inviting applications for the programme in issue and the respective responses by Respondents to the said invitation.”

In its prayer, the appellant prays for the appeal to be allowed with costs and for the order of the court a quo to be set aside and substituted with an order dismissing the application with costs.

Counsel for the appellant submitted that the appellant is a creature of statute and that it is in the exercise of its statutory, as opposed to its administrative, functions that it determines, through its Senate, the Degrees, Diplomas and other programmes that it offers and the contents thereof.

He cited sections 11 and 15 of the University of Zimbabwe Act [Chapter 25:16] in support of his submission.

He also submitted that the relationship between the appellant and students is not purely contractual but is also governed by administrative rules. He submitted that Degree content and other related issues are not contractual issues but are issues for the appellant's Senate to deal with and that in casu the Senate had made an error; the question then arising being whether the appellant should be held to the error.

It was counsel for the appellant's further submission that the error that he was referring to was stated in the appellant's Vice Chancellor's opposing affidavit in the court a quo as being an error in the admission letter which referred to a post-graduate diploma when this was not in the contemplation of the parties at the time of offer and acceptance. The respondents had applied for a Diploma in Law (Conciliation and Arbitration) and not a post graduate diploma. He submitted that, as stated by the Vice Chancellor, the error was a result of some “stereotyped minds” in the University Administration system who, unfortunately, did not care to verify the correctness of the diploma title as aptly described in the advertisement. He further submitted that there is a caveat in clause 9.1 of the “REGULATIONS GOVERNING THE POST GRADUATE DIPLOMA IN LAW (CONCILIATION AND ARBITRATION)”, (the Regulations) which reads:

“9 CLASSIFICATION

9.1 The classification of the Diploma shall be done in accordance with University of Zimbabwe regulations.”

Counsel for the appellant went on to submit that subjects such as conciliation, mediation, and arbitration fall within the sphere or domain of Alternative Dispute Resolution (ADR) and not Law. He made further reference to para 2.1 of the Regulations Governing the Post Graduate Diploma in Law (Conciliation and Arbitration) which provides:

“2. ADMISSION CRITERIA

2.1 A person may be considered for admission as a candidate for the Postgraduate Diploma in Law if the person has obtained a first degree in Law of an appropriate standard from this or another university. Candidates with first degrees in other disciplines may be considered if they have achieved an appropriate academic standard or have relevant professional experience and work accomplishments in the proposed field of study on such conditions as Senate may specify. Further, a person who holds any other academic or professional qualifications which Senate have approved may be admitted to the Diploma.”

He further submitted that whilst the appellant readily accepts that an embarrassing situation has arisen, the respondents were aware that the invitation to apply stated that what was being offered was a diploma and that is what was intended by the appellant when it conceived the programme.

It was counsel for the appellant's submission that the matter be referred back to the appellant for it to hear and consider the respondents' representations and take corrective action and thereby protect its reputation. In this regard he referred to ERF 167 Orchards v Great Johannesburg Metropolitan Council 1999 (1) SA 104 (S).

It will be recalled at this juncture that in its Notice of Appeal the appellant prayed for its appeal to be allowed with costs and for the order of the court a quo to be set aside and substituted with a dismissal of the application with costs.

Counsel for the appellant finally submitted that no one, the respondents included, can have a legitimate expectation for something that is contrary to law or to prevent a functionary from exercising its lawful functions. He referred the Court to University of the Western Cape & Others v Member of Executive Committee for Health and Social Services & Others 1998 (3) SA 124 (C).

Counsel for the respondents submitted that the narrow issue that disposes of this matter is whether or not the court a quo properly exercised its discretion in interfering with the appellant's authority or exercise thereof. It was his submission that the court a quo was alive to the principle that courts are loathe to interfere with administrative authority and also to the exception to that principle to the effect that where an administrative body exercises its authority whimsically or capriciously, the court can interfere.

Regarding the submission by counsel for the appellant that the matter be referred back to the appellant, counsel for the respondents' response was that the court a quo, in the exercise of its discretion, did not find this to be a proper course to take in the circumstances of this case. He also submitted that the issue of error was raised in the court a quo but it found that it was not a justus error. He further submitted that he conceded that the appellant, being the offeror of the course, is in a better position than the court to grant the qualification, but the respondents' disgruntlement was caused by the way in which the appellant handled the matter. He highlighted that in the court a quo the appellant sought the dismissal of the respondents' application with costs.

A question was posed to counsel for the respondents' by the Court whether an order by the court a quo to refer the matter back to the appellant would tie the appellant's hands in correcting the error by recalling all its degrees.

In response, counsel for the respondents' submitted that a referral back to the appellant by the court a quo would not tie the appellant's hands and that the appellant would have to exercise its functions or authority properly.

The court a quo exercised its discretion in terms of section 14 of the High Court Act [Chapter 7:06] which provides:

“The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequent upon such determination.”

The appellant is of the view that the court a quo misdirected itself by failing to take into account the fact that the conferment of diplomas, degrees and honours is a complex process which is done by the appellant through its Chancellor, Council and Senate. It is also of the view that the court a quo erred in granting the order sought, in the face of sections 7 and 13 of the University of Zimbabwe Act [Chapter 25:16]. The sections provide as follows:

“7. The Chancellor

The Chancellor shall be the chief officer of the University who shall have the right -

(a)…,.

(b) On the recommendation of the Council and the Senate, to confer degrees, diplomas and other awards and distinctions of the University and to withdraw or restore any such awards.”

“13. Powers of the Council

Without derogation from the generality of any other powers conferred on the Council by this Act, the Council shall have the following powers –

(a)…,.

(b) To receive recommendations from the Senate for the conferment, withdrawal or restoration of degrees, including honorary degrees, and diplomas and other awards and distinctions of the University and, if approved, to submit them to the Chancellor.”

It is the appellant's contention that the court a quo misdirected itself in substituting the appellant's decision to withdraw the post graduate diplomas when the withdrawal was solely governed by the appellant's administrative Board.

The issue for determination in this matter is whether or not the court a quo properly exercised its discretion when it interfered with the appellant's decision to confer on the respondent's Diplomas instead of Postgraduate Diplomas.

In their heads of argument filed of record, both parties are agreed that this is an issue for determination by this Court. The appellant's heads of argument, however, raise a second issue couched as: “whether the court a quo properly assessed the effect of the advertisement sent out by the appellant as well as the responses thereto by the respondents.” 

In my view, this need not be a stand-alone issue but can, and will be sub-sumed in the determination of the first issue identified.

Without reproducing the court a quo's detailed examination of the facts, the following snippets or pieces of undisputed facts will show how and why the court came to the conclusion that it did.

Although the advertisement flighted by the appellant did not describe the programme as a Post-Graduate Diploma in Law, under entry requirements against the Diploma in Law, the advertisement stated:

“A good first degree in law. Applicants with other professional qualifications and experience in Labour Law and Labour Relations may be required to sit a qualifying examination.”

The respondents responded to the advertisement and applied. They were accepted. The acceptance letter has already been quoted earlier in this judgment…,. It will therefore not be necessary to repeat its contents. Suffice to state that it informed them of their admission to a post graduate diploma course.

The student enrolment form had the denotation “PDL” for Post Graduate Diploma in Law with the code for each subject in the course starting with the letters “LLD.” That is the code that the respondents filled in for the course subjects. The Faculty signed, thereby giving the requisite departmental and Faculty approval for the course of study.

The whole programme was done over two semesters. The results slips for the two semesters had the following heading:

“EXAMINATION RESULTS FOR 2011 SEMESTER…,. PDL POST GRAD DIPLOMA IN LAW (CONCILIATION & ARBITRATION).”

In addition to the student enrolment form there was also another form titled:

“POSTGRADUATE ADMISSION APPLICATION FORM”

All the application forms handed to the respondents had “PDL” inscribed by the appellant, in long hand, on the top right hand corner. The student identity documents issued for those doing the course had “PDL” inscribed on them.

It is not disputed that “PDL” stands for “Post Graduate Diploma in Law.”

Also issued to the respondents was a document titled: “REGULATIONS GOVERNING THE POST GRADUATE DIPLOMA IN LAW (CONCILIATION AND ARBITRATION).”

The document, under the heading “ADMISSION CRITERIA” read:

“A person may be considered for admission as a candidate for the Postgraduate Diploma in Law if the person has obtained a first Degree in Law of an appropriate standard from this or another university.”

The Regulations also state, in paragraph 2.3, that the “Senate may, in advance, approve an individual course or courses offered by another university, as a course which, if completed, will allow credit for and exemption from a course prescribed for the Postgraduate Diploma in Law.”

Paragraph 9.1 then provides that “the classification of the Diploma shall be done in accordance with University of Zimbabwe Regulations.”

Paragraph 3 proceeds to state:

“3. COURSES UNDER THE PROGRAMME

3.1 The following shall be the Post Graduate Diploma in Law courses:…,.”

The course outlines and course objectives that were presented to the respondents by the lecturers in the various departments, for the various subjects to be taught all had “POST GRADUATE DIPLOMA IN LAW” as part of the headings.

All examination papers were marked “POST GRADUATE DIPLOMA IN LAW (CONCILIATION AND ARBITRATION.”

On graduation day, the Dean of Law presented to the Chancellor graduands for the POST GRADUATE DIPLOMA IN LAW (CONCILIATION AND ARBITRATION) whereupon the respondents were capped by the appellant's Chancellor.

After graduation, some of the participants in the programme collected their academic transcripts showing the list of subjects that they had passed as well as the grades that they had attained. The transcripts were marked “POST GRADUATE DIPLOMA IN LAW (CONCILIATION AND ARBITRATION.”

Three graduates from the respondents' class collected their certificates. The designation on them, as in the certificates for students in previous intakes who attended and successfully completed the same programme with the same content in the preceding years, was “POST GRADUATE DIPLOMA IN LAW (CONCILIATION AND ARBITRATION).

It was only when the respondents went to collect their academic transcripts and/or certificates that the appellant claims that it realised that there was an error in the admission letter referring to a Post Graduate Diploma in Law as it was only a Diploma in Law (Conciliation and Arbitration) that was in the contemplation of the parties at the time of offer and acceptance.

The prejudice occasioned to the respondents by the appellant's decision is also exhibited by their undisputed averments in the following respects. The first respondent secured funding to embark on the programme from his employer on the basis that it was post-graduate diploma. During the course of the programme, he diligently furnished his employer with progress statements by way of semester results which showed that he was studying for a postgraduate diploma. Other respondents secured employment on the strength of a result statement which consolidated all the results for the programme and indicated that they were for a post graduate diploma that had been successfully completed.

The court a quo, after carefully scrutinising all these factors in detail, found that the appellant's conduct was irrational. The learned judge found that the decision to withdraw the “postgraduate” designation from the diploma for only a section of the students in the respondents' class could not possibly be blamed on an error by 'stereotyped minds' in the appellant's administration as claimed by the appellant. He found that the purported downgrading of the course by the appellant to a diploma was irrational in the Wednesbury sense and granted the relief sought by the respondents.

The term “Wednesbury unreasonableness” refers to one of the common law grounds of judicial review of administrative action as formulated in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223. It denotes a reasoning or decision that is so unreasonable that no reasonable person acting reasonably could have made it.

The court a quo relied on, amongst other authorities, Affretair (Pvt) Ltd & Anor v M K Airlines1996 (2) ZLR 15 (S) wherein McNALLY JA quoted the following excerpt from BAXTER, Administrative Law…,:

“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 Legislature." 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.”

The learned author also stated that a court will normally interfere in the sphere of practical administration only if:

(a) The end result is a foregone conclusion and it would be a waste of time to refer the matter back.

(b) Where further delay could prejudice the applicant.

(c) 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.

(d) Where the court is in as good a position as the administrative body to make the decision

The court a quo found that all the four criteria were met and proceeded to substitute the decision of the administrative authority.

The learned judge found that the case of Mhanyami Fishing & Transport Co-operative Society Limited v Kubatana Nharira Fishing Co-operative Limited & Others HH92-11 was distinguishable. This was on the basis that the court therein found itself unable to substitute its own decision for that of the Parks officials for the reason, and rightly so, that there was not sufficient information placed before it in order for it to grant the licences that were sought.

He found that in Gurta AG v Afaras Mtausi Gwaradzimba NO HH175-14, the court rightly substituted its decision for that of the administrative functionary after setting aside the functionary's decision as all the four criteria listed by the author in BAXTER, Administrative Law, existed.

Before us, the case of Potwana v University of Kwazulu Natal (5347/2012) [2014] ZAKZHC 1 (24 January 2014) (unreported judgment of the High Court of KwaZulu Natal, South Africa) was cited in the appellant's heads of argument with special reliance being placed on the following portion of paragraph 33 which reads:

“There is indeed authority that Courts have long deferred to universities' decisions to expel students on grounds of academic misconduct. Ms Gabriel referred me to a journal article which cited the decision of Board of Curators on University of Missouri v Horowitz [1978] USSC 31; 435 U.S. 78 (1978) where the Supreme Court held [at p. 91] that 'judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint'. The focus of the Court's attention was directed more at the students' rights of procedural fairness. Once this threshold was satisfied, the Court found no basis to interfere in the university's decision.”

The underlined portions of the excerpt above were omitted from the quote as presented in the appellant's heads of argument. The omission of the first underlined portion may not be of any moment in the proper understanding of the principle sought to be leant on. It therefore need not detain us. It is different with the second underlined portion, and particularly so with the portion that is not only underlined but also italicised. My understanding of this portion of the quoted passage is that once the threshold of the students' rights of “procedural fairness” was reached in that case, the court found that it had no basis to interfere in the decision of the university.

In my understanding of the court a quo's judgment (in casu), the court went beyond procedural fairness and addressed the substantive fairness of the appellant's decision. It addressed the University's substantive decision itself.

A reading of Potwana v University of Kwazulu Natal (5347/2012) [2014] ZAKZHC 1 (24 January 2014) also shows that the position in South Africa might be slightly different from ours. It appears that the courts in South Africa can interfere with the decisions of an academic Board. The case makes it clear that in a situation where a university decides to withdraw a degree or a diploma, the action has to be sanctioned by a court. The issues for determination by the court in that matter were stated in para 24 as;

(i) Firstly, whether the University of KwaZulu Natal had the power, in the absence of any express legislative provision, to withdraw the applicant's degree, without an application to court; the inquiry being said to be based on the common law position. 

(ii) The second was stated to be whether the provisions of the Higher Education Act No.101 of 1977 could be interpreted in a manner so as to confer on the University authority to withdraw degrees in the absence of an express authority to do so.

In casu, the court a quo was asked to exercise its discretion in terms of section 14 of the High Court Act [Chapter 7:06], and this Court may only interfere with the decision if the learned judge a quo failed to exercise his discretion judiciously.

The Potwana v University of Kwazulu Natal (5347/2012) [2014] ZAKZHC 1 (24 January 2014) case is thus not of any significant assistance to the appellant. The procedural unfairness attendant to this matter is in addition to the substantive unfairness of the appellant's decision and therein lay the justification of the court a quo's exercise of its discretion.

In casu, despite the advertisement referring to a Diploma, the acceptance letter that was issued to the respondents was to the effect that they had been admitted to a Post Graduate Diploma and they accepted the offer by following or meeting the conditions set out in the acceptance letter. As already seen above, literally all the subsequent documents and conduct thereafter referred and related to a post-graduate diploma. In any event, the advertisement gave, as the entry requirement, a good 'first degree.' The diploma that was being offered could therefore only be a Post Graduate Diploma regard being had to the definition of the word or phrase “post graduate.”

The Oxford English Dictionary gives the meaning of 'postgraduate' as “relating to or denoting a course of study undertaken after completing a first degree.”

Importantly too, it was only a year later, and after the public and obviously joyous graduation of the respondents, that the appellant purported to unilaterally effect the downgrading and that being done to some and not all the students in the respondents' class.

Furthermore, the respondents were not heard before the decision was made, thus violating the audi alteram partem rule. In Taylor v Minister of Education and Another 1996 (2) ZLR 772 (S)…, the following was stated:

“The maxim, audi alteram partem, expresses a flexible tenet of natural justice that has resounded through the ages. One is reminded that even God sought and heard Adam's defence before banishing him from the Garden of Eden. Yet the proper limits of the principle are not precisely defined. In traditional formulation, it prescribes that when a statute empowers a public official or body to give a decision which prejudicially affects a person in his liberty or property or existing rights, he or she has a right to be heard in the ordinary course before the decision is taken. See Metsola v Chairman, Public Service Commission & Anor 1989 (3) ZLR 147 (S) at 333 B-F.”

The respondents had a right to be heard before an adverse decision affecting them was made. See Guruva v Traffic Safety Council of Zimbabwe SC30-08.

They were not accorded this right by the appellant.

They therefore decided, in the circumstances, to approach the High Court in terms of section 14 of the High Court Act [Chapter 7:06] for a declaratory order. There was no impediment to them adopting this course of action. In Bulawayo Bottlers (Pvt) Ltd v Minister of Labour, Manpower Planning and Social Welfare & Ors 1988 (2) ZLR 129, the following was stated:

“…, my understanding of the law is that there is nothing to prevent the petitioner from applying for and obtaining a declaratory order, even if it was open to him to commence review proceedings, provided that the court is satisfied that the applicant is an interested person in an existing future or contingent right or obligation and that the case is a proper one for the exercise of its discretion in granting the order…,.”

On the facts before the court a quo, can the court be said to have exercised its discretion improperly?

I think not.

In our view, the irrationality of the appellant is only too blatant. It is palpable. The unfairness of the appellant's decision and action has not, and cannot, be justified on the facts of this case. The lower court cannot, in the circumstances, be said to have failed to exercise its discretion judiciously. The learned judge was alive to the applicable law in matters of this nature and of the undesirability and reluctance of the courts to take over functions of an administrative authority. It was also alive to the permissible circumstances for a court's interference which circumstances it found to be met and it thereafter proceeded to interfere.

The submission made before us that the matter be referred back to the appellant finds no justification. This is further compounded by the appellant's failure to explain the basis of the difference in treatment between the respondents and their classmates whose postgraduate diplomas the appellant has not sought to downgrade to diplomas.

The appeal is without merit. The settled grounds for interference with the exercise of judicial discretion have not been established. Costs will follow the outcome.

Accordingly, it is ordered as follows:

In arguing the matter, counsel for the applicant submitted that delegated or subsidiary legislation can be declared invalid on the grounds of unreasonableness.….,.

Counsel for the applicant also went on to deal with the test for reasonableness. He submitted that no reasonable Regulator fully exercising its mind would reach such fees. He said that section 134(c) of the Constitution provides that every piece of subsidiary or delegated legislation must be consistent with the Act of Parliament under which it is made. He said that the fees which were set by the Postal and Telecommunications (Licensing, Registration and Certification) (Amendment) Regulations, 2013 (Statutory Instrument 122 of 2013) are so high and irrational that when Parliament gave the second respondent the power to set the fees, in terms of section 99 of the Postal and Telecommunications Act [Chapter 12:05], it could not have intended that the Minister would set such fees which do not have any reasonable basis or justification. He referred to the case of Satelite Users Association v PTC HH225-91 wherein the court set aside the Radio Communication Sevices (Amendment) By-Laws, 1990 (No.8) (S.I.145 of 1990) prescribing fees for television receive-only station licences for being ultra vires. 

Counsel for the applicant argued that the Regulator must show that it has taken certain factors into account before setting a specific fee. He submitted that a reasonable Regulator would;

(i) Conduct research on the cost of administration relating to its licensing regime.

(ii) Consult with stakeholders regards the fees.

(iii) Conduct research on the effect of the proposed licence fees on current and prospective licensees and the industry.

(iv) Consult with parent Minister in respect of trends of telecommunications in the Region and elsewhere in the world.

Counsel for the applicant argued that in setting the fees, the Regulator did not use the reasonable man's test or the International Telecommunications Union guidelines. He said that there is no evidence of any research and consultation having been done and there is no evidence that the Parliamentary Legal Committee looked at this Statutory Instrument before it was promulgated. There is no evidence of how the US$5.5million was arrived at. He said that as such, the applicant is entitled to reach the reasonable inference that the amounts set were thumb suck. He said that there is no rational link between the fees that were set and any of the grounds of reasonableness. He said that the Minister, as an administrative authority, is bound by the Administrative Justice Act [Chapter 10:28]. He said that section 3 of the Administrative Justice Act [Chapter 10:28] binds all administrative authorities to act lawfully, reasonably, and fairly towards a person with an interest, right or legitimate expectation. He said that the Minister is in breach of the legitimate expectation of the applicant to have licence fees that are transparently and reasonably set.

Counsel for the first respondent, in arguing the matter, challenged the procedure that the applicant adopted in bringing this application as an application for a declaratur. She argued that this court has no expertise or statutory authority to determine the appropriate level of licence fees that should be payable by licencees, so it cannot therefore usurp the functions and powers of the first respondent which is the licensing authority. Citing the case of Tsvangirai & Anor v Registrar-General & Ors 2002 (1) ZLR 251 (H), counsel for the first respondente further submitted that this court has no jurisdiction to intervene in administrative decisions. In that case the applicants had made an application for an order compelling the first respondent to extend the voting days by one in respect of Presidential, council and mayoral elections. The court held that a court has no general jurisdiction to intervene in administrative decisions or to direct administrative authorities on how they should act in the absence of illegality, irrationality or procedural impropriety….,.

Counsel for the first respondent further argued that S.I. 122/2013 is not ultra vires the Postal and Telecommunications Act since section 99(2) of the Postal and Telecommunications Act [Chapter 12:05] empowers the Minister, in consultation with the Postal and Telecommunications Regulatory Authority of Zimbabwe to make such Regulations. She submitted that S.I.122 of 2013 falls squarely within the ambit of section 99(2) of the Postal and Telecommunications Act [Chapter 12:05]. She also queried what it will mean for the future if the licence fees of US$5.5million are set aside. She questioned what will happen to all those that have paid that amount so far.

Counsel for the second respondent argued that the Regulations are not ultra vires the the Postal and Telecommunications Act as the Minister acted within his powers by promulgating the Regulations. She further argued that the presumption of validity works in favour of the Statutory Instrument. She said that the applicant cannot seek to challenge the Regulations simply because it has failed to raise the required fees. Just like counsel for the first respondent, she argued that affordability is not what determines if the licence fees are reasonable or not.

In determining this matter, I propose to deal with the reliefs that the applicant is seeking in its draft order.

(i) That the decision by the 3^rd respondent, in consultation with the 1^st respondent, setting the Class “A” License Fees at US$5,500,000= be set aside

This relief makes it clear that the applicant wants the decision of the Minister, in setting the licence fees at US$5.5 million, to be set aside. In wanting the decision to be set aside, the applicant has mentioned quite a number of irregularities that it alleges were made by the first and third respondents in arriving at the amount of US$5.5 million. In summary, it averred that the first and third respondents did not carry out the necessary consultations and research with the relevant stakeholders; they did not make use of the International Telecommunications Union guidelines and did not present the Statutory Instrument to the Parliamentary Legal Committee for scrutiny before making it into law. It is clear that the applicant is alleging gross irregularities in the process leading to the decision of setting of the licence fees at US$5.5 million.

The applicant also alleges that the amount set is grossly unreasonable.

Setting aside of a decision or proceedings is a relief normally sought in an application for review (Geddes Ltd v Towonezvi 2002 (1) ZLR 479 (S)…,.), yet the present application has not been brought as such, but as an application for a declaratur. When I look at the grounds upon which this relief is being sought, I am inclined to agree with counsel for the first respondent that this application ought to have been brought as an application for review. In Geddes Ltd v Towonezvi 2002 (1) ZLR 479 (S), the court held that:

“In deciding whether an application is for a declaration or review, the court has to look at the grounds of the application and the evidence produced in support of them. The fact that an application seeks a declaratory relief is not itself proof that the application is not for review. The court should look at the grounds on which the application is based, rather than the order sought.”

Section 27 of the High Court Act [Chapter 7:06] sets out the grounds on which any proceedings or decisions may be brought on review. The provision reads;

“27 Grounds for review

(1)  Subject to this Act and any other law, the grounds on which any proceedings or decision may be brought on review before the High Court shall be –

(a) Absence of jurisdiction on the part of the court, tribunal or authority concerned;

(b) Iinterest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case may be;

(c) Gross irregularity in the proceedings or the decision.”

Section 27(1)(c) of the High Court Act [Chapter 7:06] states gross irregularity in the proceedings or the decision as one of the grounds. Under common law, grounds for review are irrationality, illegality, and gross unreasonableness.

In the present application, by citing the irregularities that the first and third respondents made, and the unreasonableness of the amount that was set, the applicant is basically asking this court to review the decision of the first and third respondents so as to render their decision void. This makes it clear that the application should have been brought as an application for review.

Consequently, I cannot make a determination on its merits as it does not meet the requirements of an application for a review.

In terms of Order 33 Rule 259 of the High Court Rules, 1971, an application for review should be made within eight (8) weeks of the proceedings in which the irregularity or illegality complained of is alleged to have occurred and in terms of Rule 257, the grounds upon which the applicant seeks to have the proceedings set aside or corrected should be stated shortly and clearly.

In the result, I cannot set aside the decision of the third respondent setting the Class 'A' licence fees at US$5.5 million.

(ii) That the Postal and Telecommunications (License, Registration and Certification) (Amendment) Regulations, 2013 (No.6) (S.I.122 of 2013) prescribing license Fees for Internet Access Provider Licences be declared ultra vires the Postal and Telecommunications Act [Chapter 12:05]

As was correctly submitted by counsel for the applicant, subsidiary legislation may be struck down on the grounds of unreasonableness.

The cases that he cited are pertinent and spot on.

From outside this jurisdiction, he cited the following cases: Slatter v Naylor Cas (1888) 13 APP 446…,.;  Kruse v Johnson (1898) 2 QB 91…,.; Minister for Primary Industries & Energy v Austral Fisheries (Pty) Ltd [1993] FCA 46; and Mixnam's Properties Limited v Chertsey Urban District Council (1964) 1 QB 214. In this jurisdiction, he referred to the cases of State v Nyamupfukudza 1983 (2) ZLR 43 (SC)…,; and PF Zapu v Minister of Justice 1985 (1) ZLR 305 (SC).

In short, all these cases say that delegated legislation may be declared invalid on the ground of unreasonableness if it leads to manifest arbitrariness, injustice, and partiality that a court would say, 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires.'

However, the onus is on the person challenging a Regulation as being unreasonable to show that it is unreasonable. See Satellite Users Association v PTC HH225-91.

This means that if the applicant shows the court that the licence fees are unreasonably high that can render the Statutory Instrument setting them unreasonable and ultra vires the Postal and Telecommunications Act.

In casu, what is pertinent to note is that the unreasonableness of the amount of the fees that the applicant is alleging is based on the ground that the Minister, in the process of setting the fees, made a number of gross irregularities which I have already outlined in relief (i) above. It is the applicant's averment that it is the gross irregularities that the first and third respondents made when they were in the process of determining the appropriate fees which resulted in them setting fees that are unreasonably high. The issue of the gross irregularities being central to the issue of unreasonableness, it is my considered view that the applicant adopted the wrong procedure in bringing this application as an application for a declaratur. As I have already said above, it should have been brought as an application for review with a request seeking the setting aside of the Minister's decision of setting Class A licence fees at US$5.5million. The request for a declaratory order that the Regulations prescribing the licence fees be declared ultra vires the the Postal and Telecommunications Act for being unreasonable would have been sought as a species of relief under the review application. In the absence of a review of the Minister's decision on how he arrived at US$5.5 million, the court has no way of determining if the amount is reasonable or not.

The second respondent submitted his report in terms of Rule 248 of this Court's Rules.

He has, as usual, chronicled the history of the matter and the reasons for the previous Executor's removal from office. Also, he indicated that the sale of one property is to enable the first respondent to take care of the liabilities so that the estate is finalised. Finally, he is of the view that the first respondent is in charge of the assets and since he has been issued with authority, in terms of section 120 of the Administration of Estates Act [Chapter 6:01], he should not be stopped from doing his work….,.

There is…, one disturbing feature in this case. 

The authority granted by the second respondent, in terms of section 120 of the Administration of Estates Act [Chapter 6:01], filed as Annexure I by the first respondent, was issued four days before the first respondent applied for it. See Annexure H which is a letter addressed to the second respondent by the first respondent. 

The first respondent conceded that it is improper and illogical for the authority to have been issued before the reasons for such a request had been communicated to the second respondent. 

The first defendant has cited the Civil Protection Act [Chapter 10:06]…, as the basis for using the plaintiff's farm. 

In the written submissions on the absolution from the instance application, the first defendant went further and cited section 23 of the Civil Protection Act [Chapter 10:06].

I have looked at section 23 of the Civil Protection Act [Chapter 10:06]. It has onerous provisions for the State which begin with a Declaration of Disaster by the President in terms of section 27 for three months which may be extended; communication of the declaration to Parliament in terms of section 28 and service of written notice to the person possessing the land. Since the first defendant is relying on the Civil Protection Act [Chapter 10:06], the steps which were taken to comply with sectionss 23, 27 and 28 are facts which are “peculiarly within the knowledge of the first defendant.” 

So the first defendant will have to give evidence on these aspects of the case as well before a final determination can be made.

Section 23(3) of the Civil Protection Act [Chapter 10:06] gives the possessor of the land room to raise objections and if the authority persists in wanting to seize the land, then it goes to the Administrative Court. Section 23(6) says the land seized shall be “promptly returned in the condition in which it was at the time of such taking of possession or control” while section 23(7) provides for adequate compensation.

So the court is eager to hear what the first defendant did in compliance with section 23 of the Civil Protection Act [Chapter 10:06] in its evidence because that section provides for service of written notice upon the possessor of the land yet in the present case, the plaintiff testified that the first defendant did not even inform the plaintiff throughout the period it allowed the second defendant to use Dagbreek Farm as a Distribution Centre.

Sections 23(6) and 23(7) of the Civil Protection Act [Chapter 10:06] refer to the land being returned as it was and to compensation.

In essence, that is what the plaintiff is claiming in this case, that her farm be returned to what it was before the first defendant and the second defendant used it as a food distribution centre. The spirit behind section 23 of the Civil Protection Act [Chapter 10:06] is to help the needy while at the same time preserving the possessors' property rights so from a factual point of view, the court expects evidence from the first defendant on what it did in fulfilment of the provisions of section 23 of the Civil Protection Act which it is relying on in its defence because that evidence is “peculiarly within” the first defendant's knowledge.

Section 23(10) of the Civil Protection Act [Chapter 10:06] says if the property is owned by the State then the authority seizing the land must get the consent of the Minister responsible for land. The evidence before me, so far, is that it is the Ministry of Lands which eventually advised the plaintiff to bring the matter to court after she had advised them of the degree of the damage to her property. So, once again, the first defendant will have to give evidence on this issue of obtaining the Minister's consent since it is the one relying on section 23 of the Civil Protection Act [Chapter 10:06].

So there are a lot of factual issues which cannot be given a final determination without hearing the first defendant's evidence because the outstanding evidence is peculiarly within the first defendant's knowledge.

Given the facts outlined above, of the first defendant turning Dagbreek Farm into a Distribution Centre without the plaintiff's prior knowledge or consent, I am of the view that the first defendant owed the plaintiff a duty of care. It was reasonably foreseeable that huge numbers of hungry and needy villagers of up to 300 or 400 getting into the farm using scotch carts and hired cars to carry donated goods would compromise the security of the plaintiff's property on the farm; leading to vandalism and theft of the plaintiff's property during the food distribution or afterwards.

In the face of section 223A of the Customs and Excise Act [Chapter 23:02], it was futile to argue that the Zimbabwe Revenue Authority (ZIMRA) did not have the power to carry out post clearance audits on goods previously cleared by it.

Furthermore, the suit the applicants have given the respondent notice of, is not one to challenge the constitutionality of section 223A of the Customs and Excise Act [Chapter 23:02] and/or others complement it in giving the Zimbabwe Revenue Authority such wide-ranging powers. Rather, the suit is to argue that the Zimbabwe Revenue Authority's powers interfere with one's rights of enjoyment of one's property under section 71 of the Constitution.

The point is: if the Zimbabwe Revenue Authority's powers, under section 223A of the Customs and Excise Act [Chapter 23:02], remained unchallenged, then the real dispute between the parties will remain unsolved.

Honourable ZHOU J must have been confronted by a problem similar to the one presented by this case when he decried the penchant by individuals in this country to want to reap where they did not sow. He stated in Southmark Trading (Pvt) Ltd and Others v Karoi Properties (Pvt) Ltd and Others HH52-13:

“The biblical aphorism: 'whatever a man sows, that he will reap' has lost its meaning in our society. This matter presents a sordid picture of a culture of wanting to reap where persons did not sow.”

He proceeded later in that cyclostyled judgment:

“The fourth respondent was aware that he could not just wake up to find himself as the holder of all the shares in a company for free. He would know too that the indigenous legislation does not operate in the manner that he sought to portray to justify his claim to a 100% shareholding in the first respondent.”

The applicant in this matter, especially with the benefit of legal counsel, should know that it is standing on sinking sand; it having no legal right that it can possibly enforce at law. It invaded land belonging to the fourth respondent in Msasa Park, Harare, parcelled it out to land seekers and then approached the owner seeking to legitimise an illegal occupation of that land.

It has now been favoured with a taste of its own medicine by the first, second and third respondents whom the applicant claims invaded its offices, changed the locks, and barred the applicant from there with the help of party youths.

The applicant claims that on 13 May 2015, those respondents began parcelling out Stands to their sympathisers and selling others to the public even though the Stands had already been allocated by the applicant to its own members.

There can be no better way of demonstrating that the applicant has no right to protect in a court of law than to cite the very documents it relies upon in making this application; the letters from F.G. Gijima and Associates, legal practitioners representing the fourth respondent dated 3 December 2014 and 23 April 2015. In the former letter they were inquiring from the applicant, in response to a proposal it had made, how much hectrage it had occupied, how many Stands it had marked, how much it was proposing to pay among other pertinent issues. It would appear that the negotiations came to nothing because on 23 April 2015 those legal practitioners wrote again in the following:

“RE: MUKUVISI TASHINGA HOUSING CO-OPERATIVE

We write to you in the above matter and in reference to previous correspondence and conferences. Our client instructs us to advise you that it would seem that an amicable agreement cannot be reached in the matter as the parties remain polarised on the price per square metre. By way of final compromise, our client insists on $25= per square meter. The other material terms remain unchanged and that is:

(a) That the extend of the vacant land in issue to be measured and pegged by a professional surveyor.

(b) An agreed deposit to be paid within seven (7) days of the parties entering into the agreement.

(c) The balance to be paid as monthly instalments over an agreed period but not more than one year.

(d) An approved plan to be procured within thirty (30) days of the parties entering into the agreement.

(e) Transfer of individual title only to commence upon payment of the full purchase price.

Any other terms and conditions to be agreed shall be negotiated once the parties agree on the above material terms and conditions.

We are instructed to advise you that unless an agreement is reached by 30 April 2015, our client shall not be amenable to any further negotiations and shall proceed to act upon the court order to evict your clients and demolish any structures that would have been built.

We advise you accordingly

Yours faithfully

F.G Gijima

F.G. GIJIMA AND ASSOCIATES”…,.

What is clear, therefore, is that there has been no agreement between the owner of the land and the applicant. The purchase price has not been agreed. The land being parcelled out has not been surveyed. No deposit has been paid. No approved plan exists. Terms and conditions of any intended sale have not been negotiated. The deadline of 30 April 2015 has come and gone with no agreement in sight.

Notwithstanding that, the applicant has come to court seeking to enforce “a settlement whose contents are indicated in the letters” I have referred to above. The applicant seeks the following relief:

“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. The 1^st to 3^rd (respondents) and all those acting through them be and are hereby barred from interfering in any way with the applicant's operations in Msasa Park.

2. The 1^st to 3^rd respondents to pay costs of suit.

INTERIM RELIEF (GRANTED)

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

(i) That the 1^st to 3^rd respondents are hereby ordered to vacate the offices of the applicant in Msasa Park and all those acting through them.

(ii) The 1^st to 3rd respondents are hereby ordered not to interfere in any way with the operations and activities of the applicant.

(iii) That the Zimbabwe Republic Police be and are hereby directed to arrest the respondents and all those acting through them and bring them before the court for contempt of court in the event that they do not comply with this court order.”

Section 39(1) of the Regional Town and Country Planning Act [Chapter 29:12] provides:

“Subject to subsection (2), no person shall -

(a) Subdivide any property; or

(b) Enter into any agreement –

(i) For the change of ownership of any portion of a property; or

(ii) For the lease of any portion of a property for a period of ten years or more or for the lifetime of the lessee; or

(iii) Conferring on any person a right to occupy any portion of a property for a period of ten years or more or for his lifetime; or

(iv) For the renewal of the lease of, or right to occupy, any portion of a property where the aggregate period of such lease or right to occupy, including the period of the renewal, is ten years or more, or

(c) Consolidate two or more properties into one property, except in accordance with a permit granted in terms of section forty.”

In X-trend-a home (Pvt) Ltd v Hose Law Investments (Pvt) Ltd 2000 (2) ZLR 348 (S)…, McNALLY JA said:

“The agreement with which we are concerned is clearly 'an agreement for the change of ownership of the undivided portion of a Stand. What else could it be for? Whether the change of ownership is to take place on the signing, or later, on an agreed date, or when a suspensive condition is fulfilled, is unimportant.

It is the agreement itself which is prohibited.

The evil which the statute is designed to prevent is clear. Development planning is the function and duty of planning authorities, and it is undesirable that such authorities should have their hands forced by developers who say 'but I have already entered into conditional agreement, major developments have taken place, large sums of money have been spent. You cannot possibly now refuse to confirm my unofficial subdivision or development.'”

It is therefore settled law that you cannot sell or subdivide land without a permit.

I have said that the applicant did not purchase the land from the fourth respondent and therefore has acquired no rights which it can protect in a court of law. What is shown by the papers before me is an attempt at legalising what the applicant did illegally. It has engaged the fourth respondent with a view to reach an agreement over land it has not only occupied already but has also gone ahead to parcel out to individuals. No agreement has been reached and the owner of the property is in fact threatening eviction against the applicant.

Even if an agreement had been reached with the fourth respondent, such would be unlawful for want of a survey which has not been commissioned and a subdivision permit. The applicants' only saving grace is that I have not been requested to determine the right of ownership. What I am required to do is to determine whether an act of spoliation has been committed and, if it has, to restore the status quo ante until such time that the respective rights of the parties shall have been determined.

In a spoliation application, all the applicant is required to do is to prove possession and that he was unlawfully dispossessed. The lawfulness or otherwise of such possession does not come into it.

I associate myself fully with the remarks of REYNOLDS J in Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 240 (H)…, that:

“It is a well-recognised principle that in spoliation proceedings it need only be proved that the applicant was in possession of something and that there was a forcible or wrongful interference with his possession of that thing – that spoliatus ante omnia restituendus est (Beukes v Crous & Another 1975 (4) SA 215 (NC)). Lawfulness of possession does not enter into it. The purpose of the mandament van spolie is to preserve law and order and to discourage persons from taking the law into their own hands. To give effect to these objectives, it is necessary for the status quo ante to be restored until such time that a competent court of law assesses the relative merits of the claims of each party.

Thus, it is my view that the lawfulness or otherwise of the applicant's possession of the property in question does not fall for consideration at all.”

See also Moyo v Chinhamo HB111-11.

Ordinarily, I would have been inclined to restore the status quo as lawfulness and ownership are not required - but for two factors raised by counsel for the first, the second, the third and the fifth respondents.

He submitted that in HC10561/13, this court, per MATANDA MOYO J, granted an order on 25 June 2013 in favour of the fourth respondent for the eviction of the applicant from the property. Although the order had not been executed, the applicant's continued stay at that property was in violation of the court order requiring it to vacate.

In addition, the same applicant approached this court, in HC4050/15, in which it cited the first, the second and the third respondents and sought the same relief, as in the present application. The matter was placed before HUNGWEJ on 6 May 2015 who refused to deal with it as urgent and removed it from the roll of urgent matters.

The applicant can therefore not come back, having only added the fourth and the fifth respondents as parties but seeking no relief against them and expect to be heard on an urgent basis.

Counsel for the fourth respondent confirmed that the property indeed belongs to the fourth respondent which does not have a development permit or approved survey diagram for the parcelling out of Stands. He confirmed that the fourth respondent indeed has an order directing the applicant to vacate.

Although lawfulness of possession and ownership are not pre-requisites for the grant of spoliation relief, in my view, it would be taking the point too far to assist a party who has long been ordered to vacate a piece of land, to return to that land in violation of a court order. While I cannot condone self-help by the respondents, I cannot grant relief which is in conflict with an order of this court….,.

The issue of whether the High Court can direct cession in the face the Magistrates Court has ordered cession of rights to Newman Munyika by the first defendant is one that would have effectively disposed of the matter if Sithokozile Munyika had been cited as a party to that action.

The High Court will not interfere with an order of the Magistrates Court outside the accepted channels of a review or an appeal.

See Berly-Lynn Surtee v Mohammed Hassin Surtee HH07-08; Raath v Carikas 1966 (1) SA 756; Kunz v Pretorius 1982 (2) ZLR 24 (HC); Walkinshaw v Walkinshaw 1971 148 (NC); Karimatsenga v Tsvangirai & Ors HH369-12; Nyaguwa v Gwinyai 1981 ZLR 25…,.; Damson v Ushamba HH335-14.

However, this cannot be the case in relation to a matter in which a party who has an interest in a matter was not made a party to that action. Should such a person bring their own independent claim it should be entertained and dealt with on its own merits. This is core to the meaning of equality before the law.

Although the matter before me relates to the same property under dispute, it is not a matter that involves the exact same parties. At most, this court can take cognisance of the matter without necessarily precluding the rights of a party who was not part of the case.

It is for this reason that I go ahead to determine this case before me on its own merits.

The applicant seeks temporary relief to the effect that:

“(2) 3^rd and 4^th respondents be and are hereby interdicted, pending the finalization of this matter, from accepting any person seconded to them by 1^st and 2^nd respondents to fill in the vacancy left after the expulsion of applicant from the Senate.”

I hold the view that this relief is impracticable in that the seat that was held by the applicant in the Senate has already been declared vacant, there are Constitutional and electoral provisions that necessarily ensue after such has occurred.

Section 159 of the Constitution provides that:

“Wherever a vacancy occurs in any elective public office established in terms of the Constitution, other than an office to which section 158 applies, the authority charged with elections to that body must cause an election to be held within 90 days to fill the vacancy.”

This clause, by implication, would apply to a proportional representation seat. It is my considered view that it should also be filled within 90 days in terms of the Constitution. Now, if the applicant wants this Honourable Court to stop the selection of a candidate pending this court action, it means the court order would fly in the face of section 159 of the Constitution.

Again, section 39(3) of the Electoral Act [Chapter 2:13] provides for notification of the Zimbabwe Electoral Commission of a vacancy in Parliament as soon as the Senator becomes aware of it.

It is my considered view that the operation of law started by the provisions of section 129(1)K of the Constitution cannot be interfered with by this court as it is impracticable to do so as it would result in an undesirable situation that is not supported by the provisions of a Constitution. The undesirable situation would be that of a vacant seat in Parliament which is left as such until a determination has been made on the internal squabbles of the MDC-T.

Refer to the case of Abednico Bhebhe and Others v The Chairman, National Disciplinary Committee and Others HB85-09….,.

I accordingly dismiss the application with costs.

This matter has got a chequered history indeed.

The applicant is an incorporation which provides national cellular telecommunications service in Zimbabwe, among other services, by virtue of a licence issued in terms of the Postal and Telecommunications Act [Chapter 12:05] (the Act) by the first respondent, which is the statutory authority established in terms of the Act to superintend the licencing and regulation of telecommunication service in this country under the watchful eye of the second respondent, the Minister charged with the administration of the Postal and Telecommunications Act [Chapter 12:05].

The applicant was initially issued with a national cellular telecommunications licence in May 1998. It was issued with a revised licence on 26 June 2002; a licence which, in terms of its clause 4, was valid for 15 years from the date of its signing. That licence contains the terms and conditions under which the applicant is required to provide the service.

I have said that the relationship between the parties has had its fair share of problems. At some point, because of the squabbles relating to the applicant's shareholding, which the regulatory authority insisted did not comply with the country's indigenisation laws, and, more importantly, with the terms of the licence, the authority cancelled the licence on 9 August 2007. The applicant appealed that cancellation to the responsible Minister, in terms of section 96 of the Postal and Telecommunications Act [Chapter 12:05], on 10 August 2007, and approached this court by urgent application, in HC4301/07, for interim relief. This court, per MUSAKWA J, issued a consent order on 15 August 2007 to wit;

“It is hereby ordered that:

1. Pending the determination of the appeal by the second respondent, the order cancelling the licence and directing the applicant to switch off its telecommunications, issued by the first respondent, be and is hereby suspended.

2. There is no order as to costs.”

Just as well the applicant had the presence of mind to seek the suspension of the cancellation order, because it was not until 29 April 2010 that the Minister finalised the appeal - almost 3 years later. The Minister's decision, communicated by the Secretary for Transport, Communications and Infrastructural Development on that date, is helpful:

“RE: TELECEL ZIMBABWE LICENCE

Your minute AM/mn/342/10 dated 28 April 2010 refers. The Ministry holds the view that cancelling Telecel Zimbabwe's licence is not tenable vis-a-vis the thousands of subscribers the mobile operator now has and the many negative messages such action would convey to potential investors both in the sector and across the whole economy.

Thus, at a meeting between Honourable Minister NT Goche (MP) and Telecel's chief, Mr Kia Uebech, on 1 April 2010, Government's requirement that Telecel Zimbabwe reverts back to its original 60:40 position in respect of its local:foreign shareholding was stated/indicated. Telecel undertook to address this challenge. Clearly, it will be difficult for the Government to support the renewal of the licence come 2013 should Telecel fail to comply with Government's pre-condition. In our view, the ball is now in Telecel Zimbabwe's court.”

That way, the licence was reinstated on the understanding that the shareholding would be regularised to meet Government requirements.

Since 2010, the parties have been engaged in dialogue over the shareholding which went on and on with no end in sight. A lot has happened, including an agreement signed by the parties on 6 August 2013. However, not happy with what the applicant had done, the first respondent again cancelled the applicant's licence, on 28 April 2015, on the basis that the applicant had failed to comply with the Postal and Telecommunications Act [Chapter 12:05]. It then set about issuing a raft of provisions in its final regulatory order which reads:

“11. REGULATORY ORDER

HAVING REGARD to the provisions of the Act, Telecel licence conditions, persistent compliance default, all relevant evidence, and the submissions made by Telecel Zimbabwe Limited, POTRAZ hereby makes the following order in the exercise of its power under the Act.

11.1 Telecel's licence to provide National Cellular Telecommunications Service is hereby cancelled with effect from the date of this order.

11.2 Telecel immediately notifies its subscribers and relevant stakeholders of the termination of its licence upon receipt of this order.

11.3 Telecel ceases to operate its cellular telecommunications network and ceases to offer any communication service upon receipt of this order.

The effect of the cancellation is as follows:

(a) Radio frequency spectrum allocated to Telecel for the provision of cellular telecommunication services are hereby withdrawn with effect from the date of receipt of this order (see Annex 01 for the detailed spectrum information).

(b) Radio frequency spectrum allocated to Telecel for the establishment of Microwave Fixed Links in 7, 8, 13, 18, 22 and 23 GHz bands are hereby withdrawn with effect from the date of receipt of this order.

(c) Radio frequency spectrum allocated to Telecel for the establishment of a C-band VSAT Earth Station are hereby withdrawn with effect from the date of receipt of this order.

(d) The number resources used by Telecel Zimbabwe Limited to offer telecommunication services are hereby withdrawn with effect from the date of this order.

12. SPECIAL DISPENSATION TO TELECEL

NOTWITHSTANDING the provisions of sub-paragraphs 11.2 and 11.3 above, however, and being mindful of the disruptive effect of an immediate cessation of operations upon the subscribers and other stakeholders of Telecel, POTRAZ hereby grants a special dispensation to Telecel for it to continue with its operations for a period of thirty (30) days from the date of receipt of this order. The purpose of the dispensation will be to afford Telecel an opportunity, among other things, to:

12.1 Facilitate the migration of subscribers from Telecel to other licenced telecommunications operators.

12.2 Notify its employees and agents of the cancellation of its operating licence.

12.3 Notify its stakeholders in the mobile financial services sector of the cancellation of its licence.

12.4 Notify the general public of the cancellation of its licence.

12.5 Begin the process of decommissioning its telecommunications equipment which process has to be completed within ninety (90) days calculated from the date of receipt of this order.”

Hence, on the stroke of the pen, and by Regulatory decree, scores of employees had lost employment and a number of subscribers had lost a service, never mind other stakeholders and never mind the labour laws of this country dealing with notice of termination of employment.

The applicant has now come to court on an urgent basis seeking the following relief:

“TERMS OF FINAL ORDER SOUGHT

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

1. That pending determination of the finalisation of the appeal by the applicant, pursuant to the provisions of s 96 of the Posts and Telecommunications Act [Chapter 12:05], that Regulatory Order No.1 of 2015 and special licence and concomitant dispensations imposed by the Postal and Telecommunications Regulatory Authority of Zimbabwe (POTRAZ) be and are hereby suspended.

2. That pending finality to the appeal process, as provided by the Posts and Telecommunications Act [Chapter 12:05], applicant shall not dispose of any movable assets or infrastructure without notice to the first, second and third respondents.

3. That there be no order as to costs.

INTERIM RELIEF (GRANTED)

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

(a) That first to third respondents be and are hereby interdicted from in any way of (sic) interfering with the normal business activities of the applicant pursuant to the provision of its telecommunication services and related business activities to the public and its subscribers in Zimbabwe.

(b) The dispensation time periods mentioned in Regulatory Order No.1 of 2015, and the cancellation of applicant's licence, be and are hereby suspended until such time as there has been a final determination of (sic) a final order sought in terms of this application.”

In its founding affidavit, deposed to by Angeline Vere, its General Manager, the applicant states that after all its attempts to reduce its foreign shareholding to a level acceptable to the first respondent were rejected by the latter, which retains the exclusive right of approval in terms of clause 12 of the licence, the first respondent resorted to the drastic action of cancelling the licence on terms set out in the Regulatory Order aforesaid.

Clause 12 of the licence provides:

“12.1 Ownership

12.1.1 Foreign Investment and Shareholding Structure

1. The holder of this licence must be incorporated in Zimbabwe. The licencee shall ensure that the foreign ownership shall be limited to forty nine percent (49%).

2. Changes in the shareholding structure, at any stage, must be approved by the Authority before it is effected.

3. In the event that the licencee's initial shareholding structure does not conform to the provisions of clause 12.1.1.1 the licencee shall, within five (5) years from date of signing of the licence, ensures (sic) that the foreign ownership is reduced to forty nine percent (49%.).”…,.

Over the years, the applicant has tried to comply by introducing a new partner to assume ownership of the 11 per cent balance of the 60 per cent shareholding held by the foreign partner, Telecel International Limited (TIL), but the first respondent either rejected the proposed partner or insisted it had to be approved by the Minister. At one stage, the applicant was told the 11 per cent shareholding could only be sold to the fourth respondent which holds the other 40 per cent stake.

The applicant introduced an Employees Share Ownership Scheme (ESOP), in terms of which its employees would own the 11 per cent shares currently in the hands of Telecel International Limited (TIL) in order to move the shareholding to indigenous people. This was rejected. It proposed listing on the Zimbabwe Stock Exchange as another option - which was also rebuffed. Instead, the first respondent cancelled the licence. The reason given for the cancellation appears in paragraph 1 of the first respondent's 'judgment' of 28 April 2015 which reads:

“1. INTRODUCTION

This case concerns Telecel Zimbabwe Limited (hereinafter referred to as 'Telecel') non-compliance with licence conditions, provisions of the Postal Telecommunications Act [Chapter 12:05] (hereinafter referred to as 'the Act') as read with Indigenisation and Economic Empowerment laws. The Postal Telecommunications Regulatory Authority of Zimbabwe (hereinafter referred to as 'POTRAZ') has to determine whether the licence issued to Telecel to provide National Cellular Telecommunication Services should be cancelled or not and issue an appropriate order.”

The applicant stated that following the cancellation and the “appropriate order” it has appealed to the second respondent, the responsible Minister, but, meanwhile, the Regulatory Order remains extant as the appeal does not have the effect suspending the order appealed against. Whichever way, it is unlikely that the Minister will dispose of the appeal before the expiration of the period of 30 days it has been given to close shop; a period which is unreasonable in the circumstances given that it employs more than 700 direct employees (at the hearing counsel for the employees corrected that figure, there are 820 direct employees) whose employment contracts would have to be terminated. In addition, in terms of the Postal and Telecommunications Act [Chapter 12:05], they are entitled to 28 days during which to lodge an appeal.

The applicant therefore craves the interim relief aforesaid.

While the other respondents did not oppose the application; in fact, counsel for the fourth respondent supported it, and counsel for the second and third respondents had no submissions to make except that the Minister would await the appeal, the first respondent surprisingly opposed the application vehemently as if everything depended on the cancellation of the licence and the closure of the applicant….,.

The first respondent gave notice of an intent to cancel the licence and invited the applicant to make representations as to why such cancellation should not be effected. This was as it should have been in terms of the procedure set out in section 43(2) of the Postal and Telecommunications Act [Chapter 12:05]. The applicant made those representations, which did not find favour with the first respondent and it duly cancelled the licence on 28 April 2015 - issuing an order which ignored, completely, the applicant's right of appeal to the Minister….,.

What the applicant seeks is a temporary, interim or interlocutory interdict. HOLMES JA set out the requirements for the grant of such an interdict in Ericksen Motors (Welkon) Ltd v Proten Motors, Warrenton and Anor 1973 (3) SA 685 (A)…, (quoted with approval by SANDURA JA in Charuma Blasting and Earthmoving Services (Pvt) Ltd v Njainjai and Ors 2000 (1) ZLR 85 (S)…,.) as:

“The granting of an interim interdict pending an action is an extraordinary remedy within the discretion of the court. Where the right it is sought to protect is not clear, the matter of an interim interdict was lucidly laid down by INNES JA in Setlogelo v Setlogelo 1914 AD 221 at p 227. In general, the requisites are:

(a) A right which, 'though prima facie established, is open to some doubt'.

(b) A well-grounded apprehension of irreparable injury.

(c) The absence of ordinary remedy.

In exercising its discretion, the court weighs, inter alia, the prejudice to the applicant if the interdict is withheld against the prejudice to the respondent if it is granted. This is sometimes called the balance of convenience. The foregoing considerations are not individually decisive, but are interrelated; for example, the stronger the applicant's prospects of success the less the need to rely on prejudice to himself. Conversely, the more the element of 'some doubt' the greater, the need for the other factors to favour him…,. Viewed in that light, the reference to a right which, 'though prima facie established is open to some doubt'; is apt, flexible and practical, and needs no further elaboration.”

See also Bozimo Trade and Development Co (Pvt) Ltd v First Merchant Bank of Zimbabwe Ltd & Ors 2000(1) ZLR 1 (H)…,.

In respect of the establishment of a prima facie right, counsel for the applicant alluded to section 96 of the Postal and Telecommunications Act [Chapter 12:05] which gives the applicant a right to appeal the decision of the first respondent to the Minister and to section 71 of the Constitution of Zimbabwe relating to the right to protection of property.

On the other hand, counsel for the first respondent submitted that the applicant would not possibly have any right, prima facie or otherwise, when it has been operating outside the law; that is, without compliance with the indigenization laws of this country, which counsel for the applicant countered by submitting that the Indigenization and Economic Empowerment Act [Chapter 14:33] only came into effect in April 2008 long after the licence had been issued on 26 June 2002.

Counsel for the fourth respondent brought a new dimension to the issue.

He submitted that to the extent that the cancellation is premised on indigenization laws, as stated in the first respondent's 'judgment', the cancellation is invalid because the first respondent is not the enforcement authority of the Indigenization and Economic Empowerment Act [Chapter 14:33]; the Minister of Youth, Empowerment & Indigenisation is in terms of section 5 thereof. It is him who initiates the process of cancellation for want of compliance with that Act.

It is not necessary for me to determine all those issues because that is the province of the second respondent when dealing with the appeal. I am sitting only be decide whether a case had been made for an interim interdict.

I think it has been.

Section 96(1) of the Postal and Telecommunications Act [Chapter 12:05] provides:

“Subject to this section, any person who is aggrieved by -

(a) A decision of the Authority not to issue a licence or certificate; or

(b) Any term or condition of a licence issued to him, or a refusal by the Authority to specify a term or condition in a licence; or

(c) A refusal by the Authority to review a licence or certificate; or

(d) Any amendment of a licence or a refusal by the Authority to amend a licence; or

(e) The suspension or cancellation of a licence; or

(f) The grant or refusal to grant any approval or authority in terms of this Act; or

(g) The outcome of any mediation by the Authority of a dispute between licensees; or

(h) Such decision of the Authority as may be prescribed;

may, within twenty eight days after being notified of the decision or action of the Authority concerned, appeal, in writing, to the Minister, submitting with his appeal such fee as may be prescribed;

Provided that such appeal shall not suspend the operation of any licence or certificate issued by the Authority.”

After cancelling the applicant's licence, the first respondent issued a special licence effective from 28 April 2015 to 26 May 2015 to facilitate only the winding up of the applicant's operations - presumably including the termination of the employment contracts of 820 employees. Such termination would ordinarily require three (3) months' notice where there are good grounds in terms of the labour laws of this country. The applicant cannot lawfully employ those employees after 26 May 2015. All that against the backdrop of the applicant's right of appeal to the Minister; which right subsists until the expiration of 28 days, on 28 May 2015, if one includes weekends and public holidays.

By the time the applicant's right of appeal expires, the applicant would have closed down in terms of the Regulatory Order. What that means, therefore, is that the Regulatory Order effectively obliterates the applicant's right of appeal reposed to it by section 96 of the Postal and Telecommunications Act [Chapter 12:05].

Clearly, therefore, that Regulatory Order is not only unreasonable in the extreme in its effect, it also infringes upon the right of appeal given to the applicant by the Postal and Telecommunications Act [Chapter 12:05]. That right has been taken away.

More importantly, there is the possibility that the Minister may take a while to determine the appeal. There is no time limit given by the Postal and Telecommunications Act [Chapter 12:05] for him to determine an appeal. Section 96(3) of the Postal and Telecommunications Act [Chapter 12:05] only requires him to make an order on appeal “after due and expeditious inquiry.”

A precedent has already been set in that regard. When the applicant appealed another cancellation by the first respondent, in August 2007, the Minister took almost 3 years to determine the appeal….,.

Where an administrative authority makes a decision which renders nugatory the right of the affected party to appeal, that decision cannot be said to accord with the dictates of administrative justice…,. It cannot be rational neither can it be fair, and, in fact, borders on unlawfulness.

I therefore entertain no doubt that the requirements of an interdict have been met.

The applicant does have a prima facie right to appeal which has been curtailed - if not negated. There has been an infringement of that right, which, if allowed to perpetuate, would adversely prejudice the applicant and its employees. It would have to close before it has exhausted remedies available to it.

In weighing the balance of convenience, as I am required to do, I can conceive of no prejudice that may be sustained by the first respondent except for a wounded ego which perhaps is the only reason why it chose to oppose the application. It is a truism that the first respondent has acted in an overzealous and precipitate manner without regard to the rights of stakeholders in this matter. It has, in fact, proceeded rough-shod over the rights of those that it is sworn to superintend, and, in so doing, it has created a train smash of gigantic proportions.

It is for these reasons that I granted the provisional order, as amended, the interim relief of which is in the following:

“INTERIM RELIEF GRANTED

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

(a) That first to third respondents be and are hereby interdicted from in any way interfering with the normal business activities of the applicant pursuant to the provision of its telecommunication services and related business activities to the public and its subscribers in Zimbabwe.

(b) The dispensation time periods mentioned in Regulatory Order No.1 of 2015 and the cancellation of applicant's licence be and are hereby suspended until such time as there has been a final determination or a final order sought in terms of this application.”

In his opposing affidavit, the first respondent has stated a lot of things not relevant to the present inquiry.

He has also made the point that the relief being sought by the applicant, in the main, is not competent because this court, per ZHOU J, in HC11372/14, has already settled the issue of possession of the Bentley in his favour which provisional order was confirmed by MAKONI J on 28 January 2015.

He has also annexed to his affidavit the judgment of MANGOTA J in re The National Prosecuting Authority HH152-15 delivered on 16 February 2015 in which the learned judge ordered the first respondent not to dispose of the Bentley “until all proceedings which relate to the car have been finalised.”

In my view, those decisions will certainly become relevant when deciding whether to grant the final order being sought or not. It is significant that they were made before the conclusion of the criminal trial and before the trial magistrate had made findings to the effect that ownership of the Bentley resides with Ndabazinengi Shava.

Those findings triggered the application of section 61(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] which I have cited….,.

I am mindful of the fact that MANGOTA J did issue an order similar to the one sought by the applicant in this matter. However, the relevant part of the order is rather general and does not specify which proceedings are affected. As it is, criminal proceedings have been completed where the magistrate did not issue a Disposal Order in respect of the exhibit.

That Order also does not relate to the use of the Bentley which the present application intends to prevent.

At the centre of the present urgent chamber application is a Bentley Continental G.T. motor vehicle with registration number ACO 1759. The motor vehicle was imported from the United Kingdom. Its landing price was $240,000= and duty payable on it was assessed at $60,000= which its importer(s) paid.

On landing onto Zimbabwe, the vehicle changed hands from the importer (s) Anderson Tagara and Ndabazinengi Shava, for and on behalf of whom Anderson Tagara allegedly acted in the importation of the vehicle.

Ndabazinengi Shava alleged that, in Mid- May 2013, one Uebert Angel, of Spirit Embassy Church, conned him into parting with the vehicle. He stated that Mr Angel assured him that he would, on donating the vehicle, receive a manifold of blessings in the form of similar motor vehicles and cash within eight months of surrendering the vehicle to Mr Angel. He said Mr Angel told him that, if the promised blessings did not materialise, Mr Shava could freely get back his vehicle from him.

It is alleged that after the eight months had lapsed, and Mr Shava having received no blessings as had been promised, the latter phoned Mr Angel over the failure of the promises which he had made. Uebert Angel, it is claimed, started by ignoring the phone calls and later he blocked Mr Shava's calls. Mr Shava stated that when he made further inquiries about the matter, he discovered that the vehicle had been sold to one Phibeon Busangabanye. He said he called at Mr Busangabanye's place of work where he confirmed that Mr Angel had indeed concluded an agreement of sale of the motor vehicle with Mr Busangabanye.

He said the issue of the sale of the motor vehicle caused him to file a report of fraud with the police against Mr Angel who, it is claimed, is currently staying in the United Kingdom.

Mr Shava's report to the police triggered the latter's investigations of the matter which related to the motor vehicle. The investigations, it is claimed, revealed that Mr Tagara registered the motor vehicle in his name and sold it to one Benjamin Mutamiri whom he said was acting for and on behalf of Mr Angel. This resulted in the state preferring charges of fraud against Mr Angel and Mr Tagara.

It is the State's case that Mr Tagara and Mr Angel cooked documents with a view to concealing a fraud which they committed. The State said Mr Tagara is scheduled to appear at the Regional Court, Harare, on Tuesday 17 February 2015. The applicant wants the vehicle, which is at the centre of the parties' wrangle, produced as an exhibit in court. The vehicle is currently in the possession and control of Mr Busangabanye who allegedly purchased it from Mr Angel.

It is in his undisturbed possession and control by virtue of an order of this court which was filed under case number HC11372/14.

The matter which relates to the order was brought to court under the mandament van spoliae relief. Mr Busangabanye approached and moved the court on an urgent basis for that relief when, on 24 December 2014, police made an effort to seize the vehicle from him and have it parked at their Vehicle Theft Squad Parking yard in Southerton. The provisional order was granted to Mr Busangabanye on 25 December 2014, and, on 28 January 2015, that order was, in default of the respondents, confirmed as a final order of this court.

Mr Busangbanye was, accordingly, conferred with the authority to retain control and possession of the motor vehicle….,.

The police, being part of the State which is desirous of prosecuting Mr Tagara could not, and did not, oppose the application. All they wanted was a direction from this court as regards the way forward on the matter which related to the production of the car as an exhibit during the trial of Mr Tagara.

Mr Busangabanye opposed the application.

His opposition, however, centred more on why he was not cited as a party to the application than it dwelt on the fact that he did not want to have the car produced as an exhibit.

There is no doubt that the car is the subject of a number of proceedings criminal and/or civil - before this and other courts. Its ownership remains in the balance between Mr Shava, Mr Angel and Mr Busangabanye. Criminal proceedings have been, and will be instituted against certain individuals on charges which range from forgery right through to fraud.

The car cannot, therefore, be disposed of in any way until the dust which surrounds its ownership, possession and control has settled.

In this regard, the car will remain with Mr Busangabanye to whom the court conferred possession and control of the same. He will, however, be required to produce the car and to avail it to the court which is dealing with the matter which relates to the car as and when the State, or any litigant, calls upon him to do so. He, on his part, stated through counsel for him during the hearing of this application that he was not averse to the due administration of justice. He accepted the position that he will avail the car to court as and when he is required to do so.

The order which the court made in his favour, under case number HC11372/14, remains valid until it is varied or rescinded by the court. It protects his possession and control of the motor vehicle.

The court has considered all the circumstances of this case. It is satisfied that the applicant proved its case to the extent of having the motor vehicle produced as an exhibit only. It proved that case on a balance of probabilities.

It is, in the result, ordered as follows:

(a) That Mr Busangabanye continues to retain possession and control of the motor vehicle in terms of the High Court Order HC11372/14.

The applicants' prayer is that pending the return date the respondents be interdicted from interfering with or suspending their mining activities at Pitlochry Estates.

However…,. other than the prospecting licence, the applicants have no certificate of registration which confers them with mining rights.

Section 27(2) of the Mines and Minerals Act [Chapter 21:05]makes it clear that a prospecting licence does not confer mining rights.

There is no way the applicants can seek to rely on the letter that was written by the first respondent on 3 December 2014 because an ordinary letter cannot confer mining rights and replace a certificate of registration. That letter never said the applicants now had mining rights….,.

In the absence of a certificate of registration, the applicants have not shown that they have locus standi to make this application for an interdict. They have no prima facie right to carry out mining activities or even to start mining preparations. So, they cannot be entitled to the relief they are seeking.

The applicant was evicted by virtue of a court order.

I now have to resolve the issue of whether the filing of an application for review in this court entitles the applicant to an interdict.

In that regard, we are covering ground that has already been traversed. A Suitability Board is convened by the first respondent in the exercise of his Constitutional mandate as the supreme commander of the police service appointed in terms of section 221 of the Constitution. In that capacity, he has command, control, and authority over the police service.

The convening of a Suitability Board is an administrative function carried out in terms of section 50 of the Police Act [Chapter 11:10] which provides;

“(1) A Board of inquiry consisting of not less than three officers of such rank not being below that of superintendent, as may be considered necessary by the Commissioner General may be convened by the Commissioner General to inquire into the suitability or fitness of a Regular Force member to remain in the Regular Force or to retain his rank, seniority or salary;

Provided that no officer who is a material witness or has a personal interest in the matter shall be appointed to such a Board.

(2)…,.

(3) If a Regular Force member, other than an officer, is found, after inquiry by a Board, to be –

(a) Unsuitable or inefficient in the discharge of his duties; or

(b) Otherwise unfit to remain in the Regular Force or to retain his rank, seniority or salary; the Commissioner General may -

(i) Discharge the Regular Force member; or

(i) Reprimand the Regular Force member.”

What is clear, therefore, is that a Suitability Board does not decide only the discharge from service of a member. It may, after the inquiry, decide on the change of rank, seniority or salary of a member. It is not the Board which decides the fate of a member as its brief is only limited to making recommendations to the Commissioner General who still retains the discretion to act as provided for in subsection (3) of section 50(3) of the Police Act [Chapter 11:10].

With that in mind, one then wonders why all the hullabaloo by police officers the moment a Suitability Board is convened.

For our present purposes, I must point out that the Police Act [Chapter 11:10] reposes upon the Commissioner General, in his sole discretion, the administrative authority to convene such a Board. Accordingly, a Board so constituted is in accordance with the law and it performs its duty according to the provisions of that law, the Act. I have already expressed myself on that issue in Nkululeko v Commissioner General of Police and Others HB11-16 where I stated that for an applicant to succeed in interdicting the proceedings of a Suitability Board, he or she must establish all the requirements of an interdict, namely;

(i) A prima facie right;

(ii) An injury actually committed or reasonably apprehended;

(iii) The absence of similar protection afforded by any other ordinary remedy; and

(iv) A balance of convenience favouring the grant of the interdict.

In that matter, I drew the following conclusion, which I still adhere to:

“The convening of a Suitability Board by police authorities is provided for in the Act. In Tamanikwa v Board President (Chief Superintendent Baleni) and Another HH676-15, I expressed the view that in an application such as the present the establishment of a right presents serious difficulties for the applicant because the convening of a Board to inquire into the suitability of a police officer to remain in the police service, to retain his rank, salary or seniority is provided for in the law. Section 50(1) of the Police Act reposes authority upon the Commissioner General to convene such a Board. An event conducted in accordance with the law cannot lawfully be interdicted unless if, in so doing, the convener commits an irregularity or violates the law in terms of which he is so acting.

I stand by that pronouncement.”

This matter is on all fours with the cases I have cited and is not distinguishable at all. What it means is that the primary requirement for an interdict, namely, the existence of a right, has not been proved because the first respondent has acted in accordance with the law.

Counsel for the respondent has drawn my attention to similar remarks made by MALABA DCJ in the case of Jangara v The Board President and Another SC288-15. It is not a judgment but an endorsement on a matter placed before the learned Deputy Chief Justice whose force of law remains binding on me. He said:

“The application seeks to interdict the convening (of) a Suitability Board that was due to sit on 3 June 2015. By the time the papers were placed before me, the Suitability Board had sat. A court cannot interdict a past event. In any case, a Suitability Board can be convened for many reasons relating to the performance of duty by a police officer. A court cannot interdict the convening of a Suitability Board which is authorised by law.”

Having said that, the matter is resolved….,. In the result, it is ordered that:

1. The application is hereby dismissed.

2. Each party shall bear its own costs.

The applicant is a police constable based at ZRP Beatrice. A Board of Inquiry - Suitability has been convened to inquire into his suitability to remain in the force or to retain his rank, salary or seniority. The Board was due to sit on 24 July 2015 causing him to file this application seeking to stop the proceedings before the Suitability Board.

The reason for seeking a stay of the proceedings is that after the Commissioner General of Police confirmed the conviction and sentence of the applicant on 23 June 2015 he noted an appeal to this court in terms of section 70(5) of the Constitution. He had been convicted of contravening paragraph 34 of the Schedule to the Police Act [Chapter 11:10] and sentenced to 10 days imprisonment.

The applicant states that he sees no reason why an appeal to the High Court should not suspend the decision appealed against. Proceeding with the hearing has the effect of undermining the authority of this court. He will be prejudiced if the suitability proceedings continue - although he does not state how. He will suffer irreparable harm as he “will definitely be discharged” from the force. Again, he does not say why he is so sure that he will be discharged when the Board's terms of reference are to look into his suitability or fitness “to remain in the Police Service, retain his rank, salary or seniority.” Discharge is not the only outcome of the inquiry….,.

The central issue to be determined in this matter is whether the applicant has established the requirements of an interdict.

In order to succeed in interdicting the respondents from conducting the Suitability Board proceedings, the applicant must establish the traditional requirements for a temporary or final interdict, namely;

1. A clear or prima facie right;

2. An injury actually committed or reasonably apprehended;

3. The absence of similar protection afforded by any other ordinary remedy; and

4. A balance of convenience favoring the grant of the interdict.

See Setlogelo v Setlogelo 1914 AD 221…,; Boadi v Boadi & Anor 1992 (2) ZLR 378; Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 (2) ZLR 52 (S)…,.

In my view, the establishment of a right presents serious difficulties for the applicant because the convening of a Board to inquire into the suitability or fitness of a police officer to remain in the police service, to retain his rank, salary or seniority is provided for in the law. In terms of section 50(1) of the Police Act [Chapter 11:10], the Commissioner General has authority to convene such a Board. An activity conducted in accordance with the law cannot lawfully be interdicted, unless, if in so doing, the convenor commits an irregularity or violates the law in terms of which he is so acting.

Faced with that obvious difficulty, counsel for the applicant sought to argue that while the applicant cannot lawfully prevent the Suitability Board proceedings, he can lawfully secure a temporary interdict until such time that his purported appeal has been determined.

I cannot, in all fairness, understand what that means.

Where a temporary interdict is granted against proceedings conducted in terms of the law, a paradox arises. It can only mean that the interdict itself is what is unlawful or irregular.

I must say that if an applicant cannot establish the first requirement of a clear right (in respect of a definitive or permanent interdict) or a prima facie right (in respect of a temporary or interim one), but is able to establish the other requirements, that will not be enough even though the requirements are complimentary.

The absence of a right is fatal to the application.

It is sometimes said that surprises always abound in the practice of law.

As to how and why a litigant whose property has been attached and removed for sale in execution of a judgment of this court thinks it is possible for one of the items so attached to be released to enable it to use that item, a Toyota Land Cruiser motor vehicle on a safari, is indeed a mystery.

That is especially so when a Director of the litigant claimed the property forcing the Sheriff to institute interpleader proceedings which have now been concluded and the property declared executable by this court by virtue of an order issued on 11 February 2016.

In essence, the court order granting relief to the first respondent and that declaring the property executable are both extant and binding. They were issued by the same court which the applicant has now approached, by urgent application, seeking the release of the motor vehicle.

The applicant believes it is entitled to drive away merely because its Director has filed two applications for rescission of judgment without more. This court is not in the habit of contradicting itself. It has granted an order which should be executed. There is, in fact, no impediment to that execution, but it is now being asked to release the property in the middle of execution.

In its founding affidavit, deposed to by Thulani Matiwaza, another Director, the applicant states that the inter-pleader applications made by the Sheriff, in HC2209/15 and HC2234/15, following a claim to the property placed under attachment in execution of a writ issued in HC2708/14 was dealt with in default of the claimant. In fact, the claimant in both matters was one Bianca Schultz who happens to be a Director and shareholder of the present applicant company and the wife of the judgment debtor, one Timothy John Schultz.

This court, per MAKONESE J, granted orders on 11 February 2016 in HC2209/15 and HC2234/15 in favour of the Sheriff in which it declared the property placed under attachment which was being claimed by Bianca Schultz (and not by the present applicant), executable and dismissed the latter's claim. The default orders were granted because the claimant had been served with the interpleader application on 21 August 2015 and only purported to file opposition on 13 October 2015 well after the expiration of the dies inducae which expired on 9 September 2015, triggering an automatic bar against the claimant.

As I have said those court orders are valid and remain extant.

What has happened is that Bianca Schultz, ably assisted by her husband, Timothy Schultz, as second applicant, have filed rescission of judgment applications in both matters, namely, HC677/16 and HC768/16 simultaneously filed on 16 March 2016. The import of those applications is to seek to revive interpleader proceedings which have been determined by this court. It is important to note that there has been no stay of execution of the court order which the first respondent is executing which also remains effectual and binding.

Although the present applicant is not a party to the two applications for rescission of judgment and the inter-pleader applications, it has now filed this urgent application seeking the release of a Toyota Land Cruiser motor vehicle registration number ACG 0981 to enable it to use it for hunting purposes with its clients who were due to arrive for that purpose on 21 March 2016. The applicant says the vehicle is owned by it and as proof of such ownership it has attached a Sale Agreement purportedly entered into between itself, represented by none other than the judgment debtor himself, Timothy John Schultz, and one Calvyn Jan Da Nobrega on 20 December 2013 in terms of which the vehicle was purchased for $24,500=.

No explanation is given as to why change of ownership has not been effected. Clearly, I am not sitting to decide the interpleader applications because they have already been determined, neither am I deciding the rescission of judgment applications which appear to have their own frailties. I am required to decide whether there is a basis for the release of property which is the subject of judicial attachment pending the determination of rescission of judgment applications in which the applicant is not even a party.

Counsel for the applicant could not point to any legal basis upon which that can be done.

Goods are attached in order to facilitate the recovery of the judgment debt. It has not been suggested that the debt has been liquidated. A person who is not the applicant lays a claim to those goods which claim necessitated inter-pleader proceedings. The proceedings have been determined against the claimant who was demonstrably tardy in the pursuit of the claim. She has tried to revive the interpleader but that does not, on its own, alter the fact that the judgment being executed is valid and has to be satisfied.

Significantly, execution has not been stayed, and, as such, this application, which seeks to derail lawful execution, is an exercise in futility. There can be no lawful basis for the release of the motor vehicle which is the subject of judicial attachment in the circumstances of this case….,.

Accordingly, the application is hereby dismissed with costs on a legal practitioner and client scale.

ULRIC HUBER, Jurisprudence of My Time…, put it very well when he said:

“The duty of the judge is, in general, to give his decision according to the dictate of the law and custom…,. Everything, therefore, which is done by a judge contrary to the precepts of the law or the established essentials of a transaction is ipso facto and immediately null and void by force of law.”

The applicant has made this application seeking interim relief staying the order of the magistrate on the grounds that it was issued without their involvement and in breach of the law.

In terms of the proviso to paragraph (c) of subsection (9) of section 193 of the Customs and Excise Act [Chapter 23:02];

“…, no court sitting as a criminal court for any purposes of this Act shall make an order for the return of articles seized in terms of this section, and no such articles shall be returned except by the Commissioner General acting in accordance with this Act or by order made by a court of appropriate jurisdiction in which the person from whom the articles have been seized has instituted separate civil proceedings for their return.”

The respondents did not institute separate civil proceedings for the release of the goods. Instead, they unprocedurally approached a criminal court which was not even seized with the matter and had no business dealing with it after prosecution had been declined.

I agree with counsel for the applicant that the court in question did not have jurisdiction.

It is not clear in terms of what law that court received the application or ordered the release of the goods. Section 61(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] reposes in a judge or magistrate presiding at criminal proceedings the discretion to order the release of exhibits at the conclusion of those proceedings to the person from whose possession the articles were obtained where that person may lawfully possess them. In my view, that section has no application to the present matter because the magistrate was not presiding over criminal proceedings which had been concluded.

Section 59 of the Criminal Procedure and Evidence Act [Chapter 9:07], which was cited by the first respondent in her letter to “Tredgold Court”, has no application either.

More importantly, the section is not a right-endowing provision upon which the first respondent could approach the court seeking release of the fuel and it was not used to seize the fuel which was only seized in terms of section193 of the Customs and Excise Act [Chapter 23:02].

The inescapable conclusion, therefore, is that the magistrate acted contrary to the precepts of the law. What he did was therefore ipso facto null and void. I am therefore satisfied that the applicant has made out a case for the relief that is sought.

Accordingly, the provisional order is hereby granted in terms of the draft order.

Even if I am wrong in concluding that this matter is hampered in its tracks by procedural irregularities of a judgment in place which has not been set aside, the issue of whether this is a proper case for the exercise of the court's discretion in light of the circumstances and arguments advanced by the applicant needs to be considered.

The import of the Deeds Registry Act on real rights

A real right is defined, in section 2 of the Deeds Registry Act [Chapter 20:05], as 'any right which become is a right upon registration'. Section 14 of the Deeds Registry Act [Chapter 20:05] essentially deals with how such real rights are transferred. For instance, ownership of land is transferred from one person to another through a Deed of Transfer executed or attested by a Registrar.

The reality of having the property registered in one's name is that during the course of ownership they can dispose of it at will. Where, however, a party owns one half of the property then a party has the right to dispose of that half share.

See Linda Mudawadzuri v Kingdom Bank and Ors HH95-15.

Counsel for the applicant attributes the real problem in failing to make headway on this issue, with regards to matrimonial property, to what he sees as slavish adherence to precedents. Yet, from examining the above legal provision on real rights, the applicant's problem is not one that emanates from any inherent bias in the application of the law but, more fundamentally, from the legal rights that are accorded any property owner regardless of their sex. When courts accord centrality to real rights they are thus governed by the meaning as articulated in the appropriate legislation. It is the content of the law that accords the person with registered title full legal rights to that property.

The order by MUSAKWA J was not, in any manner or form, erroneously granted since the title deeds upon which the Bank sought to execute were in the husband's name. It cannot be said that legally the husband acted wrongfully in using the title deed that was in his name to secure the loan. The Bank was right in accepting the Deed at face value in terms of who the owner of the property was. In entering into the loan agreement and accepting the Deed, the Bank did not act outside any legal parameters. It relied for its security on the title deeds which were clearly in the borrower's name.

Thus, for all intents and purposes, the agreement that the Bank had with the husband was in accordance with procedural and substantive requirements relating to real rights.

The principle that an interdict cannot be granted to prevent the occurrence of a lawful act has become part of our law.

In other words, a court of law has no competence to make such an order which is by nature and effect contrary to the rule of law.

In Minister of Lands v Paliouras; Minister of Lands v Wiggill 2001 (2) ZLR 22 (S), CHIDYAUSIKU ACJ…, stated as follows:

“The respondents' contention that the appellant is prohibited from exercising any of the above powers which he is expressly authorised by Parliament to exercise raises the fundamental issue of jurisdictional competence. Can a court interdict the appellant from acquiring land for redistribution in accordance with explicit provisions of an Act of Parliament? Not only is this a debatable point, but the wisdom of such an interdict is questionable. The interdiction of patently lawful conduct can hardly further the rule of law. That issue however is not before the court and will have to await determination another day.”

The determination of the issue came in Airfield Investments (Pvt) Ltd v Minister of Lands, Agriculture and Rural Resettlement and Others 2004 (1) ZLR 511 (S). The Court said…,:

“When the appellant lodged the application for the interim relief before the court a quo the acquisition of the land by the State was a fait accompli; all rights of ownership having been extinguished on its part. The acquiring authority having done everything it was obliged by the law to do to acquire the land for resettlement purposes, there was no outstanding act against the performance of which the acquiring authority could be temporarily interdicted.

An interim interdict is not a remedy for prohibiting lawful conduct.

At the time the first respondent made the order by which the appellant was deprived of ownership of the land, he acted lawfully in the exercise of the power conferred upon him. Subsection (1) of section 8 of the Act gave him the power to make the order and its effect reflected the legal consequences of that lawful act.

To suspend the effects of the order of acquisition lawfully made and intended by the legislature would amount to striking down the Act of Parliament or rendering it completely ineffective, thereby creating a vacuum pending determination of the constitutionality of the impugned sections of the Act. That would be improper for the court to do because the clear intention of the legislature was that an order of acquisition, properly made in terms of subsection (1) of section 8 of the Act, should have the effect of depriving the owner or occupier of the rights of ownership in the land and vesting them in the acquiring authority.”

GOWORA AJA weighed in on this principle in Zimbabwe Revenue Authority v Packers International (Private) Limited SC28-16 where…, she held:

“An interdict serves to protect a right not an obligation. The papers filed on behalf of Packers did not identify any right that ZIMRA had threatened. The court a quo found, as a matter of fact, that ZIMRA had acted in terms of the law in assessing VAT which remained unpaid. Once this finding was made, including the further finding that the agent had been appointed lawfully, there was no lawful justification at law for suspending payment for a week.

I am fortified in this view by the remarks of the learned DEPUTY CHIEF JUSTICE MALABA in the Mayor Logistics case supra to the following effect:

'The subject of the application is not the kind of subject matter an interdict, as a remedy, was designed to deal with. An interdict is ordinarily granted to prevent continuing or future conduct which is harmful to a prima facie right pending final determination of that right by a court of law. Its object is to avoid a situation in which, by the time the right is finally determined in favour of the applicant, it has been injured to the extent that the harm cannot be repaired by the grant of the right.

It is axiomatic that the interdict is for the protection of an existing right. There has to be proof of the existence of a prima facie right. It is also axiomatic that the prima facie right is protected from unlawful conduct which is about to infringe it.

An interdict cannot be granted against past invasions of a right nor can there be an interdict against lawful conduct. Airfield Investments (Pvt) Ltd v Minister of Lands & Ors 2004 (1) ZLR 511 (S); Stauffer Chemicals v Monsato Company 1988 (1) SA 895; Rudolph & Another v Commissioner for Inland Revenue & Others 1994 (3) SA 771.'

The applicant accepted, in the founding affidavit, that the respondent acted lawfully in enforcing the obligation to pay the tax notwithstanding the noting by it of the appeal to the Fiscal Appeal Court against the correctness of the assessment. It did not allege any unlawful conduct on the part of the respondent which would justify the granting of an interdict. It also accepted that at the time the respondent put in place measures to collect the tax, the provisions of sections 36 of the VAT Act and 69(1) of the Income Tax Act were binding on it. That means that the applicant had no prima facie right in existence at the time not to pay the amount of tax it was liable to pay to the fiscus. Sections 36 of the VAT Act and 69(1) of the Income Tax Act protect a duty, not a right.”

See also Judicial Service Commission v Zibani and Others SC68-17.

After hearing argument from counsel, the court decided that the appeal should be allowed with no order as to costs. We further indicated that reasons for judgment would be handed down in due course. Those reasons are as follows:-

The Parties

This is an appeal against the decision of the High Court granting an urgent Chamber Application filed by the first respondent. The appellant is the Judicial Service Commission, a Constitutional Commission established in terms of section 189 of the Constitution of Zimbabwe. It is enjoined, by section 180 of the Constitution, to invite candidates for appointment to judicial office, including that of Chief Justice, to conduct public interviews of prospective candidates and, thereafter, to prepare and submit a list of three qualified nominees for consideration and appointment by the President.

The first respondent is a final year law student at the University of Zimbabwe.

The second respondent is the President of Zimbabwe, while the third respondent is the Vice President who is also responsible for the Ministry of Justice, Legal and Parliamentary Affairs.

The first and third respondents are opposed to this appeal….,.

The fourth respondent was the incumbent Chief Justice and Chairman of the Judicial Service Commission. He was due to retire at the end of February 2017.

The fifth, sixth and seventh respondents are incumbent judges of both the Constitutional and

Supreme Courts of Zimbabwe. They applied as candidates for appointment to the office of Chief Justice and were subsequently interviewed for that position.

The eighth respondent is the Judge President of the High Court of Zimbabwe who also applied for appointment as Chief Justice but did not attend the public interviews conducted for that purpose.

None of these respondents participated in the proceedings before the court a quo or in this Court….,.

The Background

As already indicated, the fourth respondent was due to retire from the office of Chief Justice at the end of February 2017. The fact of his impending retirement was duly communicated to all the relevant functionaries. Thereafter, in conformity with its Constitutional mandate, the appellant set in motion the prescribed processes for interviewing prospective candidates for appointment to that esteemed office.

Four candidates applied and the requisite logistical arrangements were duly put in place for the conduct of public interviews scheduled to be held on 12 December 2016.

The urgent chamber application under consideration was filed in the High Court on 7 December 2016. The gist of the first respondent's averments was that the conduct of interviews, as arranged, was “not feasible, not transparent, and not fair” and that the long-term solution was to amend the Constitution to “allow the appointing authority unfettered powers to appoint persons to the post of Chief Justice.”

His application was successful.

The interim order granted by the court a quo interdicted the appellant from conducting the scheduled interviews for the purpose of submitting names to the President for his consideration in appointing the new Chief Justice. The final order sought on the return date was to suspend the aforesaid interview process set in motion by the appellant pending the finalisation of the proposed amendment to section 180 of the Constitution….,.

The learned judge a quo handed down his very detailed reasons for judgment (16 pages in all) later that same day.

High Court Judgment

Before determining the merits of the matter before it, the court a quo attended to several preliminary objections raised by the appellant herein. These related to the questions of urgency and the certificate of urgency, recusal of the judge, citation of the wrong parties, locus standi of the applicant, and the need for leave to sue some of the respondents.

All of the objections raised were duly dismissed by the court, with detailed reasons, which are not of direct relevance to the disposition of this appeal.

The court below held that the applicant had demonstrated a prima facie right to a fair and transparent process culminating in any appointment to public office. Relying on the values embedded in the preambular provisions of the Constitution as having been designed to attain higher democratic ideals, the court accepted that the Executive functionaries assigned to administer peace would promote appropriate legislation to deal with the exigencies of any possible infraction of the peace not anticipated by the Legislature.

In the instant case, there was a public perception of possible bias emanating from the close relationship between the Chief Justice and the candidates for appointment to that office. That being so, the responsible Minister had decided to amend section 180 of the Constitution in the interests of the integrity of the appointment process. This was a policy issue that he was equipped to address in order to deal with an unforeseen eventuality.

The courts are required to take notice of such Executive intention and must allow elected representatives to safeguard liberal values and objectives. They must also take into account the relevant historical, economic, social, cultural and political context and interpret the Constitution in a manner that advances the rule of law and contributes to good governance. Thus, the judiciary must be politically accountable as regards its selection, tenure and conditions of service and in relation to inter-branch relations. In similar vein, the Judicial Service Commission must be independent but also politically accountable to the elected representatives of the people by dint of the prevailing social contract. This was a necessary pre-condition for its legitimacy in a democratic society.

In the case at hand, the court a quo noted that the responsible Minister had revealed an intention to canvass the public for a change in the law through his draft memorandum to the Cabinet. The appellant herein was bent on a process challenged by the policymaker - entailing a possible but unnecessary conflict between two arms of the State. Consequently, the court could not disregard the intentions of the policymaker and the probable infringement of the applicant's prima facie right. Moreover, the balance of convenience favoured the applicant because the relief that he sought was not opposed by the responsible Minister.

Accordingly, the court granted the interim order with no order as to costs.

Grounds of Appeal and Relief Sought

The stated grounds of appeal herein relate to the merits of the judgment a quo. They may be summarised as follows:

1. The court a quo had no authority or power to interdict the appellant from carrying out a lawful process authorised by section 180 of the Constitution.

2. The Constitution cannot be abrogated, superseded or suspended by intended Executive action relating to its provisions.

3. The first respondent did not establish a prima facie case on the facts and at law to justify the grant of the interdict sought.

In the event of the appeal succeeding, the appellant prayed that the order granted by the court a quo be set aside and substituted with an order dismissing the urgent application with costs.

Supremacy of the Constitution

It is axiomatic that Zimbabwe is a Constitutional in contradistinction to a Parliamentary democracy. See Biti & Anor v Minister of Justice, Legal and Parliamentary Affairs & Anor 2002 (1) ZLR 177 (S)…,. This fundamental principle and its concomitant legal ramifications and obligations are codified in section 2 of the Constitution as follows:

“(1) This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.

(2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative and judicial institutions and agencies of government at every level, and must be fulfilled by them.”

Section 3 of the Constitution enshrines the founding values and principles of Zimbabwe. In its relevant parts it provides that:

“(1) Zimbabwe is founded on respect for the following values and principles -

(a) Supremacy of the Constitution;

(b) The rule of law;

(c) Fundamental human rights and freedoms;

(d)…,.;

(e)…,.;

(f)….,.;

(g)…,.;

(h) Good governance; and

(i)…,.

(2) The principles of good governance, which bind the State and all institutions and agencies of Government at every level, include -

(a)…,.;

(b)…,.;

(c)…,.;

(d)…,.;

(e) Observance of the principle of separation of powers;

(f) Respect for the people of Zimbabwe, from whom the authority to govern is derived;

(g) Transparency, justice, accountability and responsiveness;

(h)…,.;

(i)…,.;

(j)…,.;

(k)…,.; and

(l)…,.”

By virtue of the foregoing principles, the Constitution demands strict compliance with its substantive provisions and all laws enacted under its aegis. It also demands meticulous adherence to the procedures and processes prescribed under the Constitution. These principles bind everyone, including the appellant, which, as an Executive institution, is expressly bound to comply with the substantive and procedural requirements of the Constitution.

Authority to Interdict Lawful Constitutional Process

The critical provision of the Constitution, for present scrutiny, is section 180, which provides for judicial appointments as follows:

“(1) The Chief Justice, the Deputy Chief Justice, the Judge President of the High Court and all other judges are appointed by the President in accordance with this section.

(2) Whenever it is necessary to appoint a judge, the Judicial Service Commission must -

(a) Advertise the position;

(b) Invite the President and the public to make nominations;

(c) Conduct public interviews of prospective candidates;

(d) Prepare a list of three qualified persons as nominees for the office; and

(e) Submit the list to the President;

whereupon, subject to subsection (3), the President must appoint one of the nominees to the office concerned.

(3) If the President considers that none of the persons on the list submitted to him or her in terms of subsection (2)(e) are suitable for appointment to the office, he or she must require the Judicial Service Commission to submit a further list of three qualified persons, whereupon the President must appoint one of the nominees to the office concerned.

(4) The President must cause notice of every appointment under this section to be published in the Gazette.”

(I note that section 180 was amended in September 2017, some seven months after the decision in this matter was handed down in February 2017. However, this amendment clearly does not affect the applicability of section 180 in its original form at that time or the reasoning of the Court in arriving at that decision).

In the instant case, the appellant duly invited nominations to fill the vacancy in the office of Chief Justice. The nominees were then invited to attend public interviews. In short, it is common cause that the appellant fully complied with its obligations under the Constitution. It is therefore difficult to perceive what wrong the appellant can be said to have committed or how the first respondent's rights have been violated so as to justify the issuance of an interdict against the appellant from conducting the interviews as scheduled in terms of a valid and binding Constitutional provision.

A court of law simply has no power to interdict a constitutional body from performing its constitutional obligations.

It cannot be doubted that the courts are bound not only to respect the provisions of the Constitution but also to enforce them insofar as they dictate substantive and procedural requirements to be fulfilled by Constitutional bodies. In the absence of any Constitutional fiat to do so, it is clearly not within the ambit of the power or authority of a judge of the High Court to over-ride or purport to suspend or limit the operation of an unambiguous provision of the Constitution under the pretext of pending Executive action.

As was lucidly enunciated in The State v Mabena & Anor [2006] SCA 132 (RSA)…,:

“The Constitution proclaims the existence of a State that is founded on the rule of law. Under such a regime legitimate State authority exists only within the confines of the law, as it is embodied in the Constitution that created it, and the purported exercise of such authority other than in accordance with the law is a nullity. That is the cardinal tenet of the rule of law. It admits of no exception in relation to the judicial authority of the State. Far from conferring authority to disregard the law, the Constitution is the imperative for justice to be done in accordance with the law. As in the case of other State authority, the exercise of judicial authority otherwise than according to law is simply invalid.”

The principal argument posited on behalf of the third respondent (the Minister) was that the majority of the interviewing panellists would have little or no knowledge of the law as compared to the candidates to be interviewed. Thus, so it was argued, the public's expectation of good institutional governance cannot be met where a prospective Chief Justice is subjected to public interview by persons who are junior in terms of experience and the prevailing hierarchy.

It was further argued that there is no timeframe prescribed in the Constitution to fill any vacancy for the post of Chief Justice. Given that section 181(1) of the Constitution expressly provides for the Deputy Chief Justice to act in place of the Chief Justice during such vacancy, there was no need for the appellant to insist on conducting interviews in light of the Constitutional amendment proposed by the Executive.

What these arguments overlook is the paramount need to strictly adhere to constitutionally prescribed procedures.

Where a constitutional body has a positive duty to carry out certain functions and processes and fails to do so, its omission would constitute a violation of the Constitution attracting judicial censure.

In this case, the Constitution prescribes how the vacancy in the office of Chief Justice is to be filled and the governing provisions have been duly adhered to. In these circumstances, no interdict can possibly arise against a constitutional body performing its constitutionally-prescribed mandate.

As regards the supposed absence of any specified time-frame for filling the vacancy, the third respondent's argument is palpably untenable in light of the peremptory injunction embodied in section 324 of the Constitution which demands that:

“All constitutional obligations must be performed diligently and without delay.”….,.

The plain wording of section 324 of the Constitution is clear and unequivocal. In the present context, the appellant was duty-bound to carry out its functions under section 180 of the Constitution to fill the impending vacancy - not only diligently but also without delay. This is so notwithstanding the transitional filling of that vacancy, in an acting capacity, in terms of section 181 of the Constitution.

A court of law has no power to stop the lawful and diligent performance of a Constitutional process or Constitutional obligation imposed upon the appellant on the basis of an alleged intention of the Executive to amend the Constitution.

Generally speaking, it is not permissible for a court to interdict the lawful exercise of powers conferred by statute. See Gool v Minister of Justice & Anor 1955 (2) SA 682 (CPD)…,. This approach applies a fortiori where a court is called upon to interdict the lawful and bona fide performance of a Constitutional duty….,.

To conclude on this aspect of this case, there can be no doubt that the decision of the court a quo to interdict the scheduled public interview process was fundamentally flawed for the following reasons:

(i) Firstly, there was no cogent allegation by the respondents of any breach or violation of the Constitution. The allegation that the public interview process is unfair, lacks transparency, is contrary to the precepts of good governance, and is, therefore, unjust, has no factual or legal basis and is entirely unsustainable.

(ii) Secondly, there was no finding by the court that the appellant either breached any provision of the Constitution or otherwise violated the first respondent's rights. Indeed, the court accepted that the appellant was carrying out a legitimate Constitutional process.

In effect, it purported to interdict the appellant in a legal vacuum….,.

“The rule of law requires that no power be exercised unless it is sanctioned by law and no decision or steps sanctioned by law may be ignored based purely on a contrary view we hold. It is not open to any of us to pick and choose which of the otherwise effectual consequences of the exercise of constitutional or statutory power will be disregarded and which given heed to.” (per MOGOENG CJ in Economic Freedom Fighters v Speaker of the National Assembly & Others [2016] ZACC 11)….,.

Whether Applicant Established Prima Facie Case for Grant of Interdict

This question has been rendered somewhat academic by the conclusions already made upholding the principal grounds of appeal. Nevertheless, it may be necessary and instructive to deal with it for the sake of completeness.

The requirements for the grant of interim or temporary interdicts are trite.

The applicant must establish a prima facie right, a well-grounded fear of irreparable injury, the absence of any other remedy, and that the balance of convenience favours the applicant. See ZESA Staff Pension Fund v Mushambadzi SC57-02…,.

Insofar as concerns the first requirement, it is settled, in principle, that the grant of an interdict is based upon the existence of a right, which, in terms of the substantive law, is sufficient to sustain a cause of action. To sustain such cause of action, the applicant must prove a legal and not merely a moral right and that this right is being infringed or threatened with infringement. Where the alleged interference is in terms of an admittedly legal process, no legal right is established unless the applicant shows a right not to be disturbed in terms of such process. This is so because a party cannot have a right, whether prima facie or clear, contrary to the law. Thus, an interdict cannot ordinarily be granted where the allegedly offending conduct is properly premised on statutory authority. This principle must apply with even greater force where the conduct in question is, as it is in casu, predicated upon and mandated by the Constitution itself.

The court a quo appears to have proceeded upon the basis that the first respondent had a right to good governance which precluded the application of section 180 of the Constitution. This approach was highly questionable in the absence of any assertion or finding that section 180 of the Constitution was either internally inconsistent or otherwise constitutionally impeachable. Accordingly, the court could not have found the existence of any prima facie right or valid cause of action justifying the grant of an interdict.

In essence, the first respondent's case, in the court below, was founded upon his imagined fears and facile opinion on what would occur if the scheduled public interviews were to proceed in terms of section 180 of the Constitution in its prevailing state. The application was an abstract one, driven by surmise and conjecture, and which sought to invoke the jurisdiction of the court on imagined factual circumstances without any cogent foundational basis. In other words, the first respondent had no right, whether prima facie or otherwise, to have the unequivocal provisions of the Constitution applied in a manner that might have accorded with his distorted perception of how they should have been applied.

It follows that the court a quo gravely, and grossly, misdirected itself in finding that the first respondent had any prima facie or other right and by consequently granting the interim relief sought by him.

Disposition

For the foregoing reasons, the Court was of the unanimous view that the appeal should be allowed. It was accordingly ordered that:

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

2. The judgment of the court a quo is set aside and substituted as follows:

“The application be and is hereby dismissed with costs.”

I am mindful that there has been no mention of whether the applicant has been charged for unlawful occupation of the disputed farm.

Regardless of whether criminal charges have been preferred, it is not in dispute that the applicant is in breach of the law as it remains in occupation of the farm without lawful authority….,.

In Commercial Farmers Union and Others v Minister of Lands and Others 2010 (2) ZLR 576 (S)…, CHIDYAUSIKU CJ had this to say -

“It was submitted that the orders were issued in spoliation proceedings. Spoliation proceedings cannot confer jurisdiction where none exists. A court of law has no jurisdiction to authorise the commission of a criminal offence. In any event, spoliation is a common law remedy which cannot override the will of Parliament. A common law remedy cannot render nugatory an Act of Parliament.

Apart from this, there is the principle that a litigant who is acting in open defiance of the law cannot approach a court for assistance. See Associated Newspapers of Zimbabwe (Private) Limited v Minister of State for Information and Publicity and Others 2005 (1) ZLR 222 (S). Indeed, if this point had been raised as a preliminary point, the probabilities are that this application would have been dismissed on that point alone. A former owner who is in occupation of acquired land in open defiance of the law cannot approach the courts for assistance.”

Similar sentiments were expressed in Airfield Investments (Pvt) Ltd v Minister of Lands and Others 2004 (1) ZLR 511 (S) which is referred to in the first respondent's heads of argument.

REQUIREMENTS OF AN INTERDICT NOT ESTABLISHED

Once it had been accepted that the farm had been lawfully acquired by the State and that full title in the property now vested in the Government, interdictory relief could not have been granted.

In Airfield Investments (Pvt) Ltd v The Minister of Lands, Agriculture and Rural Resettlement & Others 2004 (1) ZLR 511 (S)…, MALABA JA.., stated:

“The appellant was not in a position to show the existence of a prima facie right of ownership in the land…, because at the time it applied for interim relief all the rights of ownership it had in the land had been taken by means of an order of acquisition and vested in the acquiring authority. When the appellant lodged the application for the interim relief before the court a quo the acquisition of the land by the State was a fait accompli - all rights of ownership having been extinguished on its part…,.”

A party who has possession of agricultural land must show that he/she has lawful authority for such possession. In Commercial Farmers' Union and Others v The Minister of Lands and Rural Resettlement and Others 2010 (2) ZLR 576 (S), this Court made it clear that for one to have lawful authority, one must be in a possession of an offer letter, permit or land settlement lease.

The law is now established that an interim interdict will not be granted to a person whose rights in a thing have already been taken by operation of law at the time he or she makes an application for interim relief - Airfield Investments (Pvt) Ltd v The Minister of Lands, Agriculture and Rural Resettlement & Others 2004 (1) ZLR 511 (S).

Indeed, once a farm has been acquired, the rights over such farm vest in the State. That being the position, the former owner and title holder has no locus standi to approach the court for an interdict because he or she cannot establish a clear right – Cedor Park Farm (Pvt) Ltd v Minister of State for National Security and Ors 2010 (2) ZLR 158 (H)…,.

Having regard to the above authorities, the appellant was therefore not in a position to establish a clear right. In the circumstances, interdictory relief, even on an interim basis, could not, and should not, have been granted….,.

DISPOSITION

There being no merit to this appeal, it is dismissed with costs.

[e] The merits: Whether or not Grandwell Holdings (Private) Limited is entitled to an order mandament van spolie and to an interdict

The remedy of spoliation, or mandament van spolie, is designed to restore, at once, possession that has been deprived unlawfully: see SILBERBERG and SCHOEMAN'S The Law of Property, 5^th ed…,. See also Kama Construction [Pvt] Ltd v Cold Comfort Farm Co-operative & Ors 1999 [2] ZLR 19 [SC].

The applicant must show that;

(i) He was in peaceful and undisturbed possession of the thing; and

(ii) That he was unlawfully deprived of such possession.

Kama Construction [Pvt] Ltd v Cold Comfort Farm Co-operative & Ors 1999 [2] ZLR 19 [SC] and Botha & Anor v Barrett 1996 [2] ZLR 73 [S]…,.

Spoliation is a quick remedy. Its rationale is to prevent anarchy in society: see Muller v Muller 1915 TPD 29…,.People must not resort to self help each time they want to recover things they feel belong to them and which may be in the possession of another.

In Shoprite Checkers Ltd v Pangbourne Properties Ltd 1994 [1] SA 616 [W], the rationale was expressed this way…, per ZULMAN J:

“All of this of course is based upon the fundamental principle that no man is allowed to take the law into his own hands and that no one is permitted to dispossess another forcibly or wrongfully and against his consent 'of the possession of property, whether movable or immovable' and that if he does so 'the Court will summarily restore the status quo ante and will do that as a preliminary to any enquiry or investigation into the merits of the dispute.'”…,.

In casu, the respondents argued that the dispensation by which Mbada Diamonds (Private) Limited was able to be mining the diamonds, to be on the site, and to be enjoying all the rights that went with the joint venture agreement and the shareholders agreement, had since expired. This dispensation was the Special Grants. They had not been renewed. Some had expired way back in 2010 and others in 2013. Although a third lot suggested that the period of expiry was still open, there was nothing of the sort. Despite the agreements purporting to grant a perpetual right to the diamonds, the Mines and Minerals Act [Chapter 21:05] gave no such right. Mining rights are granted, or are required to be granted, for specified periods which have to be spelt out and incorporated in the Special Grants. In this case, the respondents submitted, those Special Grants said to be still open had to be deemed to have been valid for twelve months only as had been stated in them. Relevant portions of section 291 of the Mines and Minerals Act [Chapter 21:05] say:

“291 Issue of special grants

[1] The Secretary may issue to any person –

[a] A special grant to carry out prospecting operations; or

[b] A special grant to carry out mining operations or any other operations for mining purposes; upon a defined area situated within an area which has been reserved against prospecting or pegging under section thirty-five for a period which shall be specified in such special grant and on such terms and conditions, including terms and conditions relating to the amendment or cancellation thereof, as may be approved by the Minister and shall be incorporated in such grant.”

Both counsel for the first respondent and counsel for the second to fourth respondents argued, forcefully, that, without the right to mine, Mbada Diamonds (Private) Limited or Grandwell Holdings (Private) Limited's continued presence at the site had become illegal. The Special Grants had expired by reason of their own failure to renew. That the joint venture agreement and the shareholders' agreements might have provided for certain rights in perpetuity could not override the provisions of an Act of Parliament which are superior to any provisions of a private agreement.

The Minister is the regulator of all mining rights. The action that he took was to restore the law….,.

Counsel for the applicant and counsel for the fifth respondent blasted the respondents' attempted reliance on the expired Special Grants. They argued that, among other things, in terms of the agreements, the obligation to renew those Special Grants and to ensure their continued validity had been thrust on Marange Resources (Private) Limited, the Government company. That they had not been renewed on expiry was the Government's own fault. As such, the respondents were precluded from trying to profit from their own wrong.

The law says no one maintains an action from his own wrong: see Riggs v Palmer [1899] 115 NY 506, NE 188;

“All courts may be controlled in their operation and effect by general, fundamental maxims of the common law. No one shall be permitted to profit from his own fraud, or to take advantage of his own wrong, or to found his own claim upon his own inequity or to acquire property by his own crime.”

But, the major argument by counsel for the applicant and counsel for the fifth respondent was that the matter before me was not about the rights and wrongs of the respective parties. It was not about the validity or otherwise of Mbada Diamonds (Private) Limited's title to mine. That was a matter for another court on another day. Spoliatory relief was confined to the restoration of rights of possession not ownership. Grandwell Holdings (Private) Limited had shown that Mbada Diamonds (Private) Limited had been in peaceful and undisturbed possession of the mining site immediately prior to 22 February 2016. The respondents had taken the law into their own hands and had deprived Mbada Diamonds (Private) Limited of such possession. On that basis Mbada Diamonds (Private) Limited was entitled to relief….,.

In my view, the respondents' actions were classically an act of spoliation. The matter before me was not about the right to possession [ius possidendi]. It was about the right of possession [ius possessionis] having been lost. The purpose of the mandament van spolie is to restore, at once, possession to the possessor where he has been unlawfully deprived of it.

This is so, in order to prevent people, Governments included, from taking the law into their own hands: see Mans v Marais 1932 CPD 352…,.

The purpose of spoliatory relief is merely to restore the right of possession, to restore the status quo ante.

As ZULMAN J said in Shoprite Checkers Ltd v Pangbourne Properties Ltd 1994 [1] SA 616 [W]:

“…, the Court will summarily restore the status quo ante and will do that as a preliminary to any enquiry or investigation into the merits of the dispute.”

If the respondents suddenly discovered that the Special Grants had expired and wanted to terminate the marriage they were obliged to follow the law. They were not entitled to take the law into their own hands and cause the forcible closure of the mine. At any rate, in the circumstances of this case, the respondents' actions are difficult to understand. It seemed true that some of the Special Grants had indeed expired in 2010 and others in 2013 - yet Mbada Diamonds (Private) Limited had remained mining. For action only to be taken as late as February 2016 seemed to lend credence to the complaint by Grandwell Holdings (Private) Limited that the Government was punishing the foreign investors for seemingly dragging their feet, or refusing to comply, with the consolidation scheme.

Furthermore, the claim in the letter from the Minister's Permanent Secretary, on 22 February 2016, among other things, that it had come to his attention that the Special Grants in question had since expired seemed to suggest a sudden discovery of that fact. Yet, as early as 30 September 2015, the Zimbabwe Mining Development Corporation (ZMDC) had written to the Permanent Secretary himself, expressly pointing out that the Special Grants had expired and seeking a further exemption. The Government did not move in to shut down the mine then. The Government had had all the time to act lawfully.

So why the rush? Why the sudden emergency?…,.

Therefore, in my finding, an act of spoliation was committed by the respondents on Mbada Diamonds (Private) Limited.

However, that is not the end of the matter. I must deal with the nature of the relief sought.

[f] The nature of the relief sought

The substance of the relief sought by Grandwell Holdings (Private) Limited is a return to the status quo ante so that the operations at the mine may resume as before and continue unhindered by the respondents. The order seeks that respondents 1 to 4, their agents, or anyone acting on their behalf, or under their instructions or authority, be ordered to vacate the mining site.

In principle, and in my view, such a remedy would be available under normal circumstances. If one lends one's vehicle to another, with permission for the borrower to drive it anywhere and everywhere, but with instructions to return the car on a particular day, the owner/lender is precluded, by law, from forcibly recovering his vehicle if the borrower should fail to return the vehicle by the given date. If the owner/lender forcibly recovers the vehicle, the law will brand his action as self-help, i.e. an act of spoliation. The court will order the owner/lender to restore, at once, possession of the vehicle to the borrower until he comes to court for an order to recover his vehicle. The issue of his ownership of the vehicle or of his instruction which was disobeyed, will not be determined at that stage. However, in ordering the restoration of the status quo ante, it would be, in my view, contrary to public policy were the court to allow the borrower, or create a situation where the borrower, can drive the vehicle everywhere and anywhere as before, when, to the court's knowledge, the vehicle's licence and/or roadworthy permit and/or third party insurance has/have expired - these being the basis upon which the owner/lender may have lent the vehicle to the borrower.

In the present case, whilst the issue pertaining to the propriety of the Minister's desire to consolidate all the mining companies at Chiadzwa into a single conglomerate in the face of the contractual agreements; the issue whether or not Mbada Diamonds (Private) Limited's title to mine had expired, and, if so, the issue as to whose fault it was, were not the primary matter before me, nonetheless, it seems obvious that the relevant Special Grants in question had expired. With that, Mbada Diamonds (Private) Limited's right to possession [ius possidendi] had terminated. Efforts to renew the Special Grants in September 2015 failed. In terms of section 291 of the Mines and Minerals Act [Chapter 21:05], a Special Grant is the authority that grants one the title to the minerals. In terms of section 2 of the Mines and Minerals Act [Chapter 21:05], the dominium in, and the right of searching, mining and disposing of all minerals is vested in the State President.

In casu, to allow Mbada Diamonds (Private) Limited to resume mining operations as before, when the right to do so expired, is to sanction an illegality. That, in my view, is contrary to public policy. In the circumstances, the remedy that Mbada Diamonds (Private) Limited, or Grandwell Holdings (Private) Limited, may be entitled to cannot be one that entitles the enjoyment of the rights accorded by the Special Grants when title to them has not been regularised….,.

But an order of spoliation is a final order. It does not have an interlocutory nature: see Mankowitz v Loewenthal 1982 [3] SA 758…, and SILBERBERG and SCHOEMAN, The Law of Property, 5^th ed…,. The two elements of spoliation, namely, peaceful and undisturbed possession, and the act of spoliation, have to be proved on a balance of probabilities. Thus, Grandwell Holdings (Private) Limited, having proved spoliation on a balance of probabilities, it is entitled to a final order….,.

[h] DISPOSITION

The following final relief is hereby granted:

1. It is hereby declared that the actions of the respondents, on 22 February 2016, amounted to an act of spoliation against the fifth respondent in respect of its occupation of, and operations at, the diamond mining site at the Chiadzwa Concession.

2. However, notwithstanding the declaration in paragraph 1 above, but subject to paragraph 7 below, the rights normally accorded by the relevant Special Grants in respect of the Chiadzwa Concession as they pertain to the fifth respondent, shall not be restored until such time that the validity of such Special Grants has been regularised in accordance with the law.

3. The costs shall be in the cause.

(ii) The following interim relief is hereby granted:

4. Once the validity of the Special Grants aforesaid has been regularised, as envisaged in paragraph 2 above, the first, third, fourth and sixth respondents, their agents, or anyone acting on their behalf, or under their instructions, shall be interdicted from interfering with the fifth respondent's lawful operations at the mine.

5. The first, second, fourth and sixth respondents are hereby interdicted from inducing, or forcing, or in any manner procuring, a breach of the third respondent's contractual relationships with the applicant and the fifth respondent.

6. Furthermore, the first and fourth respondents are hereby interdicted from inducing, or forcing, or in any manner procuring, a breach of the contractual relationships between the applicant and the fifth respondent on the one hand, and the second and third respondents on the other.

7. For the purposes of safeguarding assets, all of the fifth respondent's security personnel, with all their chain of command, shall be entitled, authorised and empowered to remain at the fifth respondent's mining site at Chiadzwa Diamond Concession, as directed in paragraph 2 of the order of this court on 29 February 2016, until the resolution of this matter.

On the 19^th of August 2015, the Honourable Mr Justice BERE, sitting at Harare, issued a Provisional Order in the following terms -

“TERMS OF INTERIM RELIEF GRANTED

It is hereby ordered that, pending the determination by this Honourable Court of the issues referred hereinabove, it is ordered that;

1. The 1st Respondent, be and is hereby barred from demolishing the Applicants' homes in Budiriro 4 in the absence of the order of a competent court.”

The issue that lies for determination by this court, at this stage, is whether or not the demolition of the applicants' houses in Budiriro 4, by the first respondent, in the absence of a Court Order, is lawful or not.

The applicants contend that in the absence of a court order, any demolitions carried out by the first respondent amount to self-help and are unlawful in view of the provisions of section 74 of the Constitution of Zimbabwe.

On the other hand, the first respondent strenuously argued that by operation of the Urban Councils (Model Use and Occupation of Land and Buildings) By Laws of 1979 (herein after referred to as S.I.109 of 1979) it is entitled to demolish structures it deems illegal in the absence of a court order. The first respondent further argued that as S.I.109 of 1979 has not been declared unconstitutional it is not necessary to seek a court order before any demolitions are carried out.

The applicants, however, argued that on the 17^th of March 2013, the majority of Zimbabweans voted for the overhaul of the 1979 Constitution and the establishment of a new Constitutional order. In particular, the applicants relied on the provisions of section 74 of the new Constitution. The section says -

“74 Freedom from arbitrary eviction

No person may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances.”

Further, the applicants submitted that Clause 10 of Part 4 of the 6^th Schedule to the Constitution provides that 'subject to this Schedule, all existing laws continue in force but must be construed in conformity with this Constitution.'

They therefore argued that to the extent that the Urban Councils (Model Use and Occupation of Land and Buildings) By-Laws of 1979 (S.I. 109 of 1979) is inconsistent with the Supreme law of the land, it is unconstitutional.

In support of their contention, the applicants relied on the case of Kombayi & Others v Minister of Local Government & Another HB188-15 where MOYO J interpreted Clause 10 of Part 4 of the 6^th Schedule in the following terms -

“My understanding of this clause is that the current Constitution did not repeal all existing laws; they are still in force, but, rather, they should be construed in conformity with the Constitution meaning that they should be applicable where they conform with the Constitution, and, where they are inconsistent with the Constitution, obviously, they should be amended and re-aligned to it. It is my considered view that the interpretation, as submitted by counsel for the respondents, would lead to an absurdity as this interpretation would fly in the face of the principle of legality in that Acts that are inconsistent with the Constitution, and are therefore ultra vires, are nonetheless construed to be in conformity with the Constitution.

How can an inconsistency be construed to be in conformity?

Such an interpretation would result in an absurdity and an illegality for the simple reason that the Constitution would cease to be the supreme law and will now be subservient to the non-conforming Acts.”

Simply put, it means that from the effective date of the new Constitution, the first respondent was obliged to consider the Constitutional implications of legislation passed before that date, such as the Urban Councils (Model Use and Occupation of Land and Buildings) By Laws of 1979 (S.I.109 of 1979) and could not conduct business as usual.

According to the applicants, this view is cemented by a consideration of the views of KENTRIDGE JA in Du Plessis v De Klerk 1996 (3) SA 850 wherein he stated:

“…, there may be cases where the enforcement of previously acquired rights would, in the light of our present constitutional values, be so grossly unjust and abhorrent that it could not be countenanced, whether as being contrary to public policy or on some other basis.”

Be that as it may, the first respondent submitted that a law which remains on the Statute Book remains enforceable unless declared unconstitutional by a court of competent jurisdiction. The first respondent, therefore, submitted that the Urban Councils (Model Use and Occupation of Land and Buildings) By Laws of 1979 (S.I. 109 of 1979), which gives it power to demolish structures without a court order, has not been declared unconstitutional.

Among other things, the first respondent argued that section 74 of the Constitution should not be read in isolation, but should be read with section 86 of the Constitution which provides that -

“(1) The fundamental rights and freedoms set out in this Chapter must be exercised reasonably and with due regard to rights and freedoms of other persons.

(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable, in a democratic society based on openness, justice, human dignity, equality and freedom taking into account all relevant factors including:-

(a) The nature of the right or freedom concerned;

(b) The purpose of the limitation, in particular, whether it is necessary in the interest of defence, public safety, public order, public morality, public health, regional or town planning or the public interest;

(c) The nature and extent of the limitation;

(d) The need to ensure that the enjoyment of rights and freedoms by any person does not prejudice the rights and freedoms of others;

(e) The relationship between the limitation and its purpose, in particular, whether it imposes greater restrictions on the right or freedoms concerned than are necessary to achieve its purpose; and

(f) Whether there are any less restrictive means of achieving the purpose of the limitation.”

The first respondent therefore submitted that in light of the provisions of section 86 of the Constitution, the right enshrined in section 74 is not absolute….,.

In my view, the Constitution of Zimbabwe is the supreme law of the land. Any law that is inconsistent with the provisions of the Constitution is ultra vires the Constitution. The provisions of section 74 of the Constitution are clear and unambiguous. Before any person, whatsoever, can lawfully demolish the houses or homes of any person, that person has to first of all obtain a court order. Consequently, it follows, logically, that, before the first respondent can lawfully demolish the houses of the applicants, or any other illegal structures within its area of administration, it has to first approach a court and obtain a court order. Failure to do so renders the conduct of the first respondent unlawful and unconstitutional.

Therefore, the first respondent cannot rely on the Urban Councils (Model Use and Occupation of Land and Buildings) By-Laws of 1979 (S.I.109 of 1979) in as far as it is inconsistent with the provisions of the current Constitution of Zimbabwe….,.

In the result, it is ordered that -

(a) The demolition of houses in Budiriro 4, in the absence of a court order, be and is hereby declared unlawful.

This is an appeal against the entire judgment of the High Court dismissing the appellants' application for the following order:

“IT IS DECALRED THAT:

1. The purported acquisition of Duncanston, Kopje Alleen, The Beach, and Rustfontein by the first Respondent is invalid.

2. The occupation of Kopje Alleen, The Beach, and Rustfontein by the Respondents and all those claiming title through them is illegal.

IT IS ORDERED THAT:

1. The Respondents and all those claiming title through them be ejected from Kopje Alleen, The Beach and Rustfontein.

2. The Respondents, jointly and severally, the one paying the others to be absolved, pay the costs of suit.”

The facts leading to the dismissal of the application are as follows:

The first and second appellants are registered companies. The third appellant is the Managing Director and principal shareholder of the first two appellants. The second appellant asserted that it owned the two farms that were contiguous, namely, Kopje Alleen and The Beach, and all the movable assets thereon through the acquisition of the entire issued share capital of the second appellant by the third appellant under two separate agreements on 21 September 2000.

Upon acquiring the farms, the title deed to the two farms was passed in favour of the second appellant.

It is further alleged that on 25 October 2001, the appellants acquired all rights of occupation and use of another farm, called Rustfontein, from one Jacobus Johannes Erasmus and that farm was the Administration Centre for all three farms including Kopje Alleen and The Beach.

On 20 October 2000, the first respondent proceeded to give notice in the Government Gazette that it intended to compulsorily acquire Rushfontein Farm for resettlement purposes under General Notice 483G of 2000. The notices were given in terms of section 5(1) of the Land Acquisition Act [Chapter 20:10] (“the Act”). The first respondent gave the same notice with respect to Kopje Alleen Farm in the Government Gazette, under General Notice 591 of 2001 on 16 November 2001. On 3 September 2004, the first respondent then gave notice of its intention to compulsorily acquire The Beach Farm in the Government Gazette under General Notice 449 of 2004.

It is common cause that all three Government Notices were listed under Schedule 7 of the former Constitution.

The appellants made an objection to the acquisition of the farms in terms of section 5(1)(a)(iii)A of the Land Acquisition Act [Chapter 20:10]. In turn, the first respondent made an application for the confirmation of the compulsory acquisition of the farms in the Administrative Court, on 11 February 2002, in terms of section 7 of the Land Acquisition Act [Chapter 20:10]. At the hearing of the application, on 20 February 2003, it is averred that the first respondent withdrew the application and the Administrative Court held that the “withdrawal nullifies section 5 notices and the section 8 order issued in respect of the two properties.”

The first respondent then gave the second to fourth respondents the authority to occupy all the farms, including Rustfontein Farm. As a result, it is averred that those who claimed occupation of the three farms through the appellants were violently ejected from the farms by the second to fourth respondents. It is on that basis that the appellant approached the High Court, on 2 February 2015, for an order as captured earlier on.

According to the appellants, their removal from the farms was unlawful because they were violently removed from the farms which they were in peaceful occupation of. Therefore, it is alleged, at the time that the appellants approached the High Court, the second to fourth respondents illegally occupied the said farms. The appellants further stated that as long as the Administrative Court order was extant, the three farms were not validly gazetted since that order had declared the Government notices invalid.

The first respondent, having been given time to file their Notice of Opposition out of time, opposed the application by stating that, in effect, the Administrative Court order was overtaken by events when section 16B of the former Constitution came into force.

It is common cause that section 16B of the former Constitution provided that agricultural land that was identified on or before 8 July 2005 in the Gazette or Gazette Extraordinary, under section 5(1) of the Land Acquisition Act [Chapter 20:10], as listed under Schedule 7 of that Constitution, and was required for resettlement purposes, was acquired by and vested in the State with full effect from 8 July 2005.

According to the first respondent, the acquisition of the farms was beyond his control. He also asserted that the second to fourth respondents occupied the farms legally on the basis of valid offer letters that he issued to them.

The second to fourth respondents asserted that they were legal occupants of the farms because they were given offer letters to occupy the farms. They also argued that since the three farms had been gazetted and were listed under Schedule 7 of the former Constitution that was conclusive proof that the farms had been compulsorily acquired and that acquisition could not be challenged in a court of law.

The second to fourth respondents also disputed the allegation that they despoiled the appellants. It was further asserted that the appellants' remedy was to seek compensation for any improvements on the farms and not to allege that the acquisition of the farms was discriminatory since the farms were owned by black persons. The second to fourth respondents also maintained that the order of the Administrative Court, with regards to the notices made in the Government Gazette for the compulsory acquisition of the farms, did not in any way invalidate the listing of those farms under Schedule 7 of the former Constitution.

The High Court found that the farms were properly identified in terms of the Land Acquisition Act [Chapter 20:10]; that they were lawfully listed in Schedule 7 of the former Constitution; and that the second to fourth respondents held validly issued offer letters. On that basis, therefore, the court was of the view that the appellants could not have been entitled to the relief which they sought but only to claim compensation for improvements on the farms. The application was therefore dismissed.

The appellants were aggrieved by that dismissal and appealed to this court on the following grounds:

GROUNDS OF APPEAL

1. The court a quo erred at law in condoning the failure by the first respondent to file opposing papers on time in circumstances where:-

1.1 There is no finding that the explanation for the delay was adequate.

1.2 There is no finding, in fact, that the first respondent had met all the requirements for an application for condonation and/or application for upliftment of bar.

1.3 The application was fatally defective as it did not comply with Rule 84 of the High Court Rules (1971).

2. The court a quo erred, in fact, in concluding that the ownership of the Kopje Alleen and Beach farms was questionable or not clear when the facts on record show that:

2.1 Second appellant, at all material times, always owned Beach Farms and Kopje Alleen.

2.2 Third appellant acquired the entire issued share capital of the second appellant on 21 September 2000.

2.3 Second appellant duly applied to the first respondent for a Certificate of No Present Interest.

2.4 The acquisition of the entire issued share capital of the second appellant, by the third appellant, became unconditional according to law when the first respondent failed to issue a Certificate of No Present Interest by 11 December 2000, upon the expiry of the 90 days from 11 September 2000 as prescribed by law.

2.5 First respondent only purported to compulsorily acquire these farms on 20 April 2001, long after the acquisition of second applicant's entire issued share capital by third appellant had become unconditional; payment having already been effected and the appellants in possession of the two farms.

3. The court a quo erred, in fact and in law, in finding that there was no “admissible evidence on record to controvert” the bald denials by the second to fourth respondents that they did not take part in the forcible removal of the applicants from their farms when the record is replete with evidence that the forcible removal was done at their instance and/or for their benefit.

4. The court a quo erred, at law, in finding that the Estate of the Late General Mujuru or the former Vice President needed to be cited in order for the court to properly evaluate the allegations of despoliation made by the appellants when in fact no substantive relief was being sought against them.

5. The court a quo erred, at law, in finding that the appellants had been forcibly ejected from their farms by, or at the instance, or for the benefit, of the respondents who did not have lawful authority to do so at the time.

6. The court a quo misconstrued section 12 of the High Court Act in holding that a declaratory order “cannot be directly enforced”, and thus erred at law.

7. The court a quo erred in finding that the appellants' farms were properly and lawfully identified under section 5 of the Land Acquisition Act and itemized under schedule 7 of the former Constitution when:-

7.1 It was common cause that the notices under which these farms had been identified were nullified by the Administrative Court and no fresh subsequent notices were issued.

7.2 The decision of the Administrative Court is extant.

8. The court a quo erred in finding that the appellants' farms constituted agricultural land required for resettlement purposes, as required by section 16B of the former Constitution, when the farms were already owned, or occupied by people who fall in the category of people for whose benefit land reform was implemented in terms of section 16A of the former Constitution.

9. The court a quo erred in that it addressed itself to the wrong issue, of whether the purpose of land reform is to take away land from Zimbabweans of white descent and redistribute it to Zimbabweans of black descent, when the correct issue it must have addressed itself to and resolved, as set out in section 16A of the former Constitution, was whether land already owned or occupied by people sought to be protected under section 16A (whatever their race), can be said to be land “required for resettlement purposes” within the meaning of section 16B(2)(a) of the former Constitution….,.

On appeal, counsel for the appellants accepted that by virtue of section 16B of the former Constitution, all agricultural land identified under gazettes listed under Schedule 7 of that Constitution was State land. He however insisted that the first respondent had illegally acquired the three farms as the notices which had been placed in the Government Gazettes, as required by section 5(1) of the Land Acquisition Act [Chapter 20:10] had been declared invalid by the Administrative Court. According to counsel for the appellants, section 16B(2)(a)(i) of the former Constitution only recognised land to have been compulsorily acquired if it was identified on or before 8 July 2005 in the Gazette or the Gazette Extraordinary. The appellants argued that by virtue of the Administrative Court order, which remained extant at all material times, the three farms were no longer lawfully identified as required by section 16B(2)(a)(i) of the former Constitution. The coming into effect of section 16B of the former Constitution did not regularise the striking down of the notices by the Administrative Court and the listing of those farms under Schedule 7 of the former Constitution was therefore a nullity. On that premise, therefore, counsel for the appellants submitted that, effectively, at the time that the appellants were removed from the farms and at the time that the first respondent gave offer letters to the second to fourth respondents, the offer letters were also invalid hence their occupation of the farms was not sanctioned by law. The acquisition of the farms was therefore not in accordance with the law.

Per contra, counsel for the first respondent submitted that the court had no jurisdiction to inquire into the validity of the acquisition of the farms by virtue of section 16B(3)(a) of the former Constitution. It was also his argument that as long as the farms in question were identified under Schedule 7 of the former Constitution then they were compulsorily acquired in terms of the law.

Counsel for the second to the fourth respondents was of the view that whatever rights the appellants had to possession of the farms were taken away by the coming into effect of section 16B of the former Constitution. Section 16B of the former Constitution made an inquiry into the validity of the compulsory acquisition a factual matter. All that had to be proven was that the agricultural land in question was identified under Schedule 7 of the former Constitution. Upon showing that, then that land was compulsorily acquired in terms of the law.

With regards to the appellants' argument on the import of the order of the Administrative Court, counsel for the second to the fourth respondents asserted that as long as the farms in question were identified under Schedule 7 of the former Constitution, the nullification of the notices in the Administrative Court was inconsequential.

ISSUES FOR DETERMINATION

From the arguments advanced by the parties;

(i) It must first be determined whether the court had the jurisdiction to inquire into the legality of the compulsory acquisition of the farms.

(ii) The second determination will be on the effect of the Administrative Court order on the notices that were made for the compulsory acquisition of the farms in question.

APPLICATION OF THE LAW TO THE FACTS

The question on the jurisdiction of the court can be determined by reference to section 16B(2) and the relevant court decisions made under it:

“16B Agricultural land acquired for resettlement and other purposes

(1) In this section -

“acquiring authority” means the Minister responsible for lands or any other Minister whom the President may appoint as an acquiring authority for the purposes of this section;

“appointed day” means the date of commencement of the Constitution of Zimbabwe Amendment (No.17) Act, 2005.

(2) Notwithstanding anything contained in this Chapter -

(a) All agricultural land -

(i) That was identified on or before the 8^th July 2005, in the Gazette or Gazette Extraordinary, under section 5(1) of the Land Acquisition Act [Chapter 20:10], and which is itemised in Schedule 7, being agricultural land required for resettlement purposes; or

(ii) That is identified after the 8^th July,2005, but before the appointed day, in the Gazette or Gazette

Extraordinary, under section 5(1) of the Land Acquisition Act [Chapter 20:10], being agricultural land required for resettlement purposes; or

(iii) That is identified in terms of this section by the acquiring authority after the appointed day in the Gazette or Gazette Extraordinary for whatever purpose, including, but not limited to -

A. Settlement for agricultural or other purposes; or

B. The purposes of land re-organization, forestry, environmental conservation or the utilization of wildlife or other natural resources; or

C. The relocation of persons dispossessed in consequence of the utilization of land for a purpose referred to in subparagraph A or B;

is acquired by and vested in the State with full title therein with effect from the appointed day, or, in the case of land referred to in subparagraph (iii), with effect from the date it is identified in the manner specified in that paragraph; and

(b) No compensation shall be payable for land referred to in paragraph (a) except for any improvements effected on such land before it was acquired.

(3) The provisions of any law referred to in section 16(1) regulating the compulsory acquisition of land that is in force on the appointed day, and the provisions of section 18(1) and (9), shall not apply in relation to land referred to in subsection (2)(a) except for the purpose of determining any question related to the payment of compensation referred to in subsection (2)(b), that is to say, a person having any right or interest in the land -

(a) Shall not apply to a court to challenge the acquisition of the land by the State, and no court shall entertain any such challenge;

(b) May, in accordance with the provisions of any law referred to in section 16(1) regulating the compulsory acquisition of land that is in force on the appointed day, challenge the amount of compensation payable for any improvements effected on the land before it was acquired.

(4) As soon as practicable after the appointed day, or after the date when the land is identified in the manner specified in subsection (2)(a)(iii), as the case may be, the person responsible under any law providing for the registration of title over land shall, without further notice, effect the necessary endorsements upon any title deed and entries in any register kept in terms of that law for the purpose of formally cancelling the title deed and registering in the State title over the land.

(5) Any inconsistency between anything contained in -

(a) A notice itemised in Schedule 7; or

(b) A notice relating to land referred to in subsection (2)(a)(ii) or (iii);

and the title deed to which it refers or is intended to refer, and any error whatsoever contained in such notice, shall not affect the operation of subsection (2)(a) or invalidate the vesting of title in the State in terms of that provision.”…,.

In Mike Campbell (Pvt) Ltd & Ors v Minister of National Security Responsible for Land, Land Reform and Resettlement & Anor 2008 (1) ZLR 17 (S), MALABA JA…, commented on the import of section 16B of the former Constitution…, as follows:

“By the clear and unambiguous language of s16B(3) of the Constitution, the Legislature, in the proper exercise of its powers, has ousted the jurisdiction of courts of law from any of the cases in which a challenge to the acquisition of agricultural land secured in terms of s16B(2)(a) of the Constitution could have been sought. The right to protection of law for the enforcement of the right to fair compensation, in case of breach by the acquiring authority of the obligation to pay compensation, has not been taken away. The ouster provision is limited, in effect, to providing protection from judicial process to the acquisition of agricultural land identified in a notice published in the Gazette in terms of s16B(2)(a). An acquisition of the land referred to in s16B(2)(a) would be a lawful acquisition. By a fundamental law, the Legislature has unquestionably said that such an acquisition shall not be challenged in any court of law. There cannot be any clearer language by which the jurisdiction of the courts is excluded.”

At page 44E-H, the learned judge went on to observe:

“Section 16B(3) of the Constitution has not, however, taken away, for the future, the right of access to the remedy of judicial review in a case where the expropriation is, on the face of the record, not in terms of s16B(2)(a). This is because the principle behind s16B(3) and s16B(2)(a) is that the acquisition must be on the authority of law. The question whether an expropriation is in terms of s16B(2)(a) of the Constitution, and, therefore, an acquisition within the meaning of that law is a jurisdictional question to be determined by the exercise of judicial power. The duty of a court of law is to uphold the Constitution and the law of the land. If the purported acquisition is, on the face of the record, not in accordance with the terms of s16B(2)(a) of the Constitution a court is under a duty to uphold the Constitution and declare it null and void. By no device can the Legislature withdraw from the determination by a court of justice the question whether the State of facts on the existence of which it provided that the acquisition of agricultural land must depend, existed in a particular case as required by the provisions of s16B(2)(a) of the Constitution.”…,.

Mike Campbell (Pvt) Ltd & Ors v Minister of National Security Responsible for Land, Land Reform and Resettlement & Anor 2008 (1) ZLR 17 (S) makes it clear, therefore, that a court of law only has jurisdiction in a case where the aggrieved party seeks compensation for the improvements of the compulsorily acquired farms and where they allege that the acquisition was not in terms of the law, that is, it is not in terms of section 16B(2)(a) of the former Constitution.

The appellants questioned the validity of the acquisition of the farms by the first respondent hence it is the court's view that the court has jurisdiction in the matter. In effect, the appellants questioned whether the identification of the farms under Schedule 7 of the former Constitution was proper….,.

The next inquiry, therefore, is whether the first respondent acquired the farms in terms of the law.

The court is of the view that the appellants' argument, with regards to the effect of the order of the Administrative Court, is untenable at law. Section 5(7)(a) of the Land Acquisition Act [Chapter 20:10] provides as follows:

“(7) An acquiring authority may, at any time -

(a) Withdraw a preliminary notice, by publishing notice of its withdrawal in the Gazette and serving notice of its withdrawal on every person on whom the preliminary notice was served;…,.” …,.

It is common cause that the first respondent did not withdraw the Government notices in terms of section 5(7)(a) of the Land Acquisition Act [Chapter 20:10]. Therefore, once the preliminary notices were then listed under Schedule 7 of the former Constitution, as required by section 5(7)(a) of the Land Acquisition Act [Chapter 20:10], the three farms were compulsorily acquired in terms of the law. In the absence of evidence to the contrary, the appellants failed to convince the court that the compulsory acquisition of farms which they previously had an interest in had not been done in terms of the law.

Their argument in that regard was therefore without merit and is accordingly dismissed.

Since the appellant approached the court a quo challenging only the validity of the compulsory acquisition of the farms, and the court having found no merit in their case, the appellants are not entitled to an order declaring the compulsory acquisition of the farms by the first respondent invalid.

There is ample support for the conclusion reached above in the recent case of TBIC Investments (Pvt) Ltd & Ors v The Minister of Lands and Rural Development & Ors SC469/13…, where BHUNU JA, with the concurrence of GWAUNZA JA…, and GOWORA JA held that by virtue of section 16B(5) “the expirations, errors and withdrawals complained of by the appellant” could not invalidate or adversely affect the vesting of title in the State:

“The effect of the above section (s16B(5)) was to revive, resuscitate and validate the acquisition of all identified agricultural land listed in the 7^th Schedule for resettlement purposes prior to 8 July 2005 regardless of any errors or withdrawals in the acquisition process. No limitation has been imposed on the acquisition process once the land is shown to have been gazetted and listed in the 7^th schedule prior to 8 July 2005.

The language used in s16B(5) of the former Constitution is clear and unambiguous admitting no ambivalent interpretation. The only meaning to be ascribed to the section is that once land is gazetted and listed in Schedule 7 it automatically stands acquired by the State, with full title, by operation of law. The mere fact that the notice was at one time withdrawn or expired is irrelevant. The same applies to any errors contained in the acquisition process.”…,.

In the light of the findings made above, there is no need to traverse the other matters raised in the grounds of appeal.

DISPOSITION

Accordingly, it is the court's view that the appeal lacks merit and it ought to and is hereby dismissed. Costs for both the application for leave to adduce further evidence and for the appeal itself are to be borne by the appellants.

This is a case whose circumstances present the proverbial can of worms or Pandora's Box scenario, which nevertheless must be opened, examined, and adjudicated upon, in the interests of justice.

The question that is exercising the mind of the court is this;

In what instances would it be proper for this court to exercise its jurisdiction of judicial review and consider whether agricultural land which was purportedly identified in terms of the Land Acquisition Act [Chapter 20:10], and subsequently listed in Schedule 7 of the former Constitution in terms of section 16B of Constitutional Amendment Number 17 of 2005, was acquired lawfully - ten years after such 'identification, listing and acquisition'….,.

This is a court application in which the applicants seek the following relief;

“That it be declared that;

1. The purported acquisition of Duncanston, Kopje Alleen, The Beach and Rusfontein by the 1^st respondent is invalid.

2. The occupation of Kopje Alleen, The Beach and Rusfontein by the respondents and all those claiming title through them is illegal…,.”

(d) The requirements of a declaratur

Section 14 of the High Court Act [Chapter 7:06] provides that:

“14 High Court may determine future or contingent rights

The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

This is the basis of this court's jurisdiction - to issue a declaratur.

It is a discretionary remedy which involves a finding by the High Court as to a person's legal status, rights or obligations. It cannot be directly enforced.

The applicants will not be able to use such a declaratur as a cause of action to evict the second to fourth respondents. The applicants must show that the second to fourth respondents do not hold valid title which authorizes them to occupy the farms in question first.

Even then, it is only the first respondent, the Constitutional current holder of title in the farms, pursuant to Schedule 7 of the former Constitution, which can cancel the fourth to sixth respondent's offer letters and offer the land to the applicants, and issue the applicants with legally recognized authority to occupy the agricultural land such as an offer letter, a permit or a land settlement lease. If the applicants persuade this court to declare that the acquisition of their farms was contrary to the stipulated procedure, they would have to approach this court, again, on notice to the first respondent, for an order de-listing their farms from Schedule 7. Such an order would be subject to confirmation by the Constitutional Court, being an order which purportedly alters the former Constitution in its Schedule 7.

What remains to be seen is whether the applicants are entitled to the declaratur that they seek.

(e) The Land Acquisition Act and section 16B (Constitutional Amendment Number 17 of 2005)

Section 16B(2)(a) as read with section 16B(3)(a) of Constitutional Amendment Number 17 of 2005 of the former Constitution provided that all land which had previously been identified for resettlement purposes vested in the State, with full and unchallengeable title, with effect from the effective date.

The case of Chisvo & Anor v Peter & Ors HH23-06 is authority for this proposition, as read with Campbell (Private) Limited & Anor v the Minister of National Security Responsible for Land, Land Reform & Resettlement & Anor SC49-07 and Commercial Farmers Union & Ors v The Minister of Lands & Rural Resettlement & Ors SC31-10.

The court in Chisvo & Anor v Peter & Ors HH23-06 took time to expound on the procedures which governed land acquisition before section 16B came into force as follows;

“The procedures governing the acquisition of agricultural land for resettlement purposes are presently embodied in Part III of the Land Acquisition Act [Chapter 20:10]. To a significant extent, these procedures have been superseded by the provisions of section 16B of the Constitution of Zimbabwe. Section 16B was promulgated and came into force on the 14^th of September 2005. In terms of section 16B(2)(a) as read with section 16B(3)(a), all agricultural land that was previously identified for resettlement purposes vested in the State, with full and unchallengeable title therein, with effect from that date.

For present purposes, however, the Court is seized with events which occurred well before the enactment of section 16B of the Constitution and must therefore be guided by the relevant provisions of the Land Acquisition Act. Section 5(1) of the Act requires the acquiring authority to give a Preliminary Notice of its intention to acquire any land. Section 5(3) enables the acquiring authority to withdraw any such Preliminary Notice at any time.

Section 8(1) empowers the acquiring authority to issue an Acquisition Order in respect of any land identified for compulsory acquisition. By virtue of section 8(3), the effect of an Acquisition Order is to immediately vest title of the land concerned in the acquiring authority, whether or not compensation therefor has been agreed upon, fixed or paid in terms of Part V or VA of the Act.

In terms of section 9(1)(b), the making of an Acquisition Order constitutes notice, in writing, to the owner or occupier to vacate the land within 45 days after the order is served upon him and to vacate his living quarters within 90 days of such service.

Where the acquisition of the land is challenged, section 7(1) enjoins the acquiring authority, within 30 days of issuing the Acquisition Order, to apply to the Administrative Court for an order confirming the acquisition. In terms of section 7(4)(b), the Administrative Court may only confirm the acquisition of rural land if it is satisfied that the acquisition is reasonably necessary for the utilisation of that land for, inter alia, settlement for agricultural or other purposes.

Also pertinent is section 10A(1) of the Act which enables the acquiring authority to revoke an Acquisition Order within 6 months after making the order. In terms of section 10A(2), such revocation must be effected by notice in the Gazette followed by written notice served on the landowner.”

The section 5 Preliminary Notice of intention to acquire land was to be published in the Government Gazette once a week for two consecutive weeks in the area where the land was situated. It is common cause that all of the applicants' farms had valid Preliminary Notices duly gazetted. It is also common cause that the first respondent sought to confirm the acquisition of Kopje Alleen Farm and Rusfontein Farm only, and that the applications for confirmation were withdrawn before the Administrative Court, which ruled that the withdrawal rendered the section 5 and section 8 notices null and void.

In terms of section 5(2) of the Land Acquisition Act [Chapter 20:10], once a Preliminary Notice had been published, the owner of the land was not at liberty to dispose of the land or to alienate it without the permission of the acquiring authority.

So, on 21 September 2000, when the third applicant purported to acquire shares in the second applicant, the agreement did not contravene section 5(2) of the Land Acquisition Act [Chapter 20:10] because the risk and profit passed to the third applicant only when the purchase price was paid. The evidence on record is that the third applicant obtained a loan, secured by a mortgage bond over the farms, to pay for the acquisition of the farms sometime in 2001. It is not clear whether the purchase price was paid in full as at 2001, in light of the affidavit of Mr. Firimon Mvarume, which is dated 6 March 2001, and the letter of Mr. F. Zimuto, which is dated 9 July 2002.

What is clear from the papers filed of record is that, as at 9 July 2002, the third applicant owed NMB Bank the sum of USD$39,997,367= in respect of the 'acquisition costs of the farms and working capital'. We are not told whether the acquisition costs had been paid in full. We do know that the Bank loan was secured by mortgage bonds and that the Bank had custody of the title deed to the farms. It is not clear when, if at all, risk and profit in the second applicant passed to the third applicant. The Management Agreement, in respect of the first applicant…, presents its own special brand of problems.

The agreement purports to appoint the first applicant, the owner of Rusfontein Farm, as its manager and supervisor on 25 October 2001, for a fee of seven million dollars and payments of US forty thousand a month from 31 September 2001 to 31 January 2002. There is no doubt, whatsoever, in my mind that this Management Agreement contravened the provisions of section 5(2) of the Land Acquisition Act [Chapter 20:10] which prohibited the alienation of land which had been identified for compulsory acquisition by being gazetted.

The parties hatched an elaborate plot to defeat the purpose of section 5 of the Land Acquisition Act [Chapter 20:10]. We know this because the parties expressly say so themselves in their agreement.

Clause 8…,; the first applicant was granted an option to purchase the farm subject to the condition that 'in the event of the farm being removed from the list of designated rural land in terms of the Act, the owner undertakes to take such steps as may be necessary to transfer the property' to the first applicant, and, in particular, to obtain a Certificate of No Present Interest as stipulated in the Regulations.

Clause 8.4 goes on to stipulate that in the event of the farm being acquired, as specified in the Act, any compensation adjudged to be payable to the owner under the Act, or any other law, shall be payable to the first applicant.

The owner ceded its rights to compensation to the first applicant.

Although the wording of the 'Management Agreement' is clever, and on the face of it appears to comply with the provisions of section 5 of the Land Acquisition Act [Chapter 20:10], it is more probable than not that it was an elaborate scheme designed to sell Rusfontein Farm to the third applicant and to cede; which is the same as alienating the rights of the owner in the farm to the third applicant whilst delicately negotiating the legal minefield and appearing to comply with the Land Acquisition Act. Cession of rights is tantamount to alienation or disposal of rights which would have been contrary to section 5(2)(c) of the Land Acquisition Act [Chapter 20:10] in the absence of permission or consent by the acquiring authority.

A look at section 11 of the agreement between the parties will show how true this is.

There was to be no further exchange of remuneration when or if the option to purchase was exercised, and in the event that the farm was acquired, the first applicant was to be entitled to any compensation payable to the owner. The probabilities support the conclusion that the applicants did not have full title to the farms on the dates when the first respondent caused them to be gazzetted. The evidence is not clear as to the exact dates when the applicants became vested with full rights and the title between 2000-2002 when the Bank took possession of the title deeds. The third applicant admitted that the relevant forms at the company's office were only filed sometime in 2002.

How then was the first respondent expected to acquire knowledge of the change of directorship and/or ownership?

Preliminary Notices remained in force for a period of ten years from the date of first publication in a Government Gazette. The prescribed method for the withdrawal of a Preliminary Notice was set out in section 5(7) of the Land Acquisition Act [Chapter 20:10] as follows;

“(7) An acquiring authority may, at any time -

(a) Withdraw a preliminary notice, by publishing notice of its withdrawal in the Gazette and serving notice of its withdrawal on every person on whom the preliminary notice was served;

(b) Withdraw a notice in terms of subsection (3) by serving written notice of its withdrawal on every person on whom the first-mentioned notice was served.”

It is common cause that the first respondent withdrew the application for confirmation of acquisition of the applicants' farms before the Administrative Court which ruled that the section 5 Preliminary Notice was rendered null and void by such withdrawal.

With all due respect to the Administrative Court, section 5(7) of the Land Acquisition Act [Chapter 20:10] expressly stipulated that the Preliminary Notice could be withdrawn by publishing a notice of withdrawal in the Government Gazette and serving notice of withdrawal on every person on whom the preliminary notice was served.

This was not done.

An order of nullity ought to have been accompanied by an order that the first respondent comply with the provisions of section 5(7) of the Land Acquisition Act [Chapter 20:10]. In my view, in the absence of publication in the Government Gazette of a notice to withdraw the Preliminary Notice, it remained in force for a period of ten years from the date of its first publication.

I am fortified in my view by the provisions of section 7(5) of the Land Acquisition Act [Chapter 20:10], which govern the confirmation of acquisition of land, which provides that;

“(5) Where the Administrative Court refuses to grant an order referred to in subsection (1), the Administrative Court shall -

(a) Order the acquiring authority to withdraw the preliminary notice and any notice served in terms of subsection (3) of section five…,.”

It follows that the farms were validly 'identified' in terms of section 5 of the Land Acquisition Act [Chapter 20:10]. Section 16B(2)(a) of the former Constitution provides for the vesting in the State, with full agricultural title, land 'that was identified on or before 8 July 2005, in the Gazette or Gazette Extraordinary under section 5(1) of the Land Acquisition Act [Chapter 20:10]…, and which is itemized in Schedule 7, being agricultural land required for resettlement purposes. It is correct that there are three requirements;

(a) The land should have been identified on or before 8 July 2005 under section 5 of the Land Acquisition Act [Chapter 20:10].

(b) The land must have been itemized in Schedule 7 of the former Constitution.

(c) The land must be agricultural land required for resettlement purposes.

It is my considered view that all of these three requirements were met in the circumstances of this case.

I am not persuaded by the contention submitted on behalf of the applicants, that because Schedule 7 of the former Constitution did not itemize the specific farms but itemized the Government Gazettes in which the farms were listed this did not constitute valid itemization for purposes of section 16B of the former Constitution.

The section 5 Preliminary Notices could not, at law, be withdrawn by an order of nullification by the Administrative Court which was expressly mandated to order the acquiring authority to withdraw the preliminary notices by publication in the Government Gazette and serve on all interested parties - as provided in terms of section 7 of the Land Acquisition Act [Chapter 20:10]. The language of section 7(5) of the Land Acquisition Act [Chapter 20:10] is peremptory, which means that there was no discretion on the part of the Administrative Court to purport to withdraw the preliminary notices by way of a court order declaring them to be null and void.

In the circumstances, it is this court's finding that the applicant' farms were duly itemized in Schedule 7 of the former Constitution.

In any event, a reading of the provisions of section 16B(3)(a) and (b) of the former Constittuion will show that once agricultural land had been validly identified and listed in Schedule 7, the acquisition could not be challenged, especially if the challenge was based on whatever law governed the acquisition of land on the effective date (the Land Acquisition Act).

All that the applicants were left with, in terms of section 16B(3)(b) of the former Constitution, is a right to claim compensation….,.

Disposition

“Judicial review has been defined as 'the principal means by which the High Court exercises supervision over public authorities in accordance with the doctrine of ultra vires.' The power of the High Court to exercise judicial review is often referred to as its supervisory jurisdiction.”

See Oxford Dictionary of Law, Quick Reference, 8^th ed, by JONATHAN LAW.

The mechanism that was in place for judicial review of the acquisition of agricultural land for resettlement purposes was set out in the Land Acquisition Act. Jurisdiction was vested in the Administrative Court, which, in terms of section 7(3a) of the Land Acquisition Act [Chapter 20:10], exercised its jurisdiction on the basis of the grounds of review set out in section 27 of the High Court Act [Chapter 7:06]. The procedures set out in the Land Acquisition Act were clearly spelt out in the case of Campbell (Private) Limited & Anor v The Minister of National Security Responsible for Land, Land Reform & Resettlement & Anor SC49-07 and Chisvo & Anor v Peter & Ors HH23-06.

With the coming into effect of Constitutional Amendment Number 17 of 2005, and the advent of section 16B of the former Constitution, with its overriding non-abstante clause, it appeared as if certainty had been entrenched in the Constitution in relation to all agricultural land that had been identified and listed in Schedule 7 of the former Constitution - which include the applicants' farms which are the subject matter of this application.

The question for determination is simple. Did the first respondent and/or its predecessor lawfully acquire the applicants' farms in terms of the Land Acquisition Act and/or section 16B of the former Constitution?

Was the applicants' land properly identified and listed in Schedule 7 of the former Constitution? If it was not lawfully acquired, is it proper for this court to make a declaration to that effect and to order the eviction of the second to fourth respondents ten years after the purported acquisition and approximately ten years after the allocation of the land to the second to fourth respondents?

We must also decide whether the provisions of the current Constitution, brought about by Amendment Number 20 of 2013, have any application to the circumstances of this case.

The land reform programme is for the benefit of Zimbabweans from all walks of life. It is blind to race or color and only bows down to gender balance and diverse community interests. Whether acquisition and distribution of agricultural land is to continue, from whom land is acquired, to whom it is allocated, are questions for the Executive which are not justiciable. What is subject to judicial review or supervision is the process of acquisition, which must comply with the provisions of the Constitution.

In the current Constitution we are guided by section 71; section 289; section 290; section 291; section 292; sections 293 to 295; finally, sections 296 to 297 set out the establishment and composition of the Zimbabwe Land Commission.

In the former Constitution, we were guided by the provisions of section 16A and section 16B….,.

The farms were lawfully identified in terms of the Land Acquisition Act. They were lawfully listed in terms of Schedule 7 of the former Constitution. The second to fourth respondents hold validly issued offer letters. The applicants are not entitled to the eviction of the second to fourth respondents. The applicants are not entitled to the declaratur that they seek. They lost all rights in the farms to the first respondent - except the right to compensation.

For these reasons, the application before the court be and is hereby dismissed with costs.

As for the second aspect, the grounds of appeal are premised on the power of the appellant to make by-laws and rules for its effective administration and the proposition that it acted lawfully in terms of those bye-laws.

The appellant impugns the finding of the court that the relevant by-law is both unconstitutional and ultra vires the enabling Act. The appellant further asserts that the right to water is not absolute but subject to limitations necessary for regional and town planning.

Power to Disconnect Water Supplies

The appellant derives its right to discontinue water supplied to its consumers from an antiquated Government Notice No.164 of 1913, titled 'Bye-laws for Regulating the Supply and Use of Water within the Municipality of Salisbury'. In particular, it relies not upon any specific by-law but upon a clause contained in its standard form contract governing the supply of water by meter, which contract is annexed as a schedule to the by-laws. Clause 8(a) of the standard contract stipulates that:

“The Council may, by giving twenty-four hours' notice in writing, without paying compensation and without prejudicing its right to obtain payment for water supplied to the consumer, discontinue the supply to the consumer –

(a) If he shall have failed to pay any sum which, in the opinion of the Council, is due under these conditions or the Water Bye-laws;

(b)…,.;

(c)…,.;

(d)…,.”

The inclusion of this provision in the standard form contract, as opposed to the bye-laws, is an issue that appears to have escaped both parties as well as the court a quo in their continual references to the by-laws without regard to the contract annexed thereto. Nevertheless, in terms of clause 1 of the contract:

“The Bye-laws and Regulations of the Council from time to time applicable to the supply of water shall be deemed to be incorporated in and form part of this agreement.”

Thus, the by-laws and the contract must properly be read together as a single composite instrument. Consequently, I do not think that the distinction between them is of any particular significance in determining the grounds of appeal herein.

The original 1913 bye-laws were framed under the provisions of section 19 of the Salisbury Water and Electricity Supply and Loan Ordinance 1911 (No.10 of 1911). That section, in its relevant portions, provided as follows:

“The Council may, from time to time, make, alter and revoke bye-laws for all or any of the following purposes in connection with the supply or use of water from the Council's or their authorised contractors' works or anything incidental or relating thereto, namely:-

(1)…,.;

(2)…,.;

(3)…,.;

(4) As to ordinary and extraordinary supply and agreements relating thereto, and tariff of charges or fees;

(5)…,.;

(6) As to fixing and using of meters or anything relating thereto;

(7)…,.;

(8) And generally for the good government and control of the works and the supply and use of water in the Municipality and any additional municipal area.”

I note that the power to cut off water for non-payment was expressly catered for in section 16 of the Ordinance itself, albeit in terms less compulsive than those stipulated in the standard contract. It allowed the consumer concerned a period of one week, after lawful demand, to pay the sum due before disconnection could be effected.

Notice of Disconnection

In his heads of argument, and at the hearing of the appeal, counsel for the respondent raised the point that the appellant had given notice of its intention to disconnect on the same day that it actually disconnected the respondent's water supply, before the expiry of 24 hours, and in clear breach of the prescribed period of notice.

Counsel for the appellant contends that the invoices sent to the respondent specifically indicate that “water supplies may be disconnected without further notice if this account remains unpaid after due date.” Since the stated due date is approximately three weeks after the billing date, it cannot be said that the requisite notice was not given.

This contention finds some support in section 49 of the bye-laws (as amended by section 2 of S.I.489/1952) which provides that:

“Every account…, shall become due and payable on the date stated therein and the service of such account…, shall constitute notice that the supply of water may be cut off if payment is not made on or before such date.”..,.

Notwithstanding this provision, I take the view that the argument proffered by counsel for the appellant is unsustainable.

The threat of possible disconnection for non-payment by due date contained in the appellant's invoices is nothing more than a standard warning reiterated in every monthly rates statement sent out to owners or occupiers of property generally. It is obviously not the same as the very specific “twenty-four hours' notice in writing” of impending and imminent disconnection, stipulated under clause 8(a) of the standard contract, for non-payment of sums previously invoiced and already due.

The respondent's averment that his water supply was disconnected on the same day as the day on which the notice of disconnection was received does not appear to have been disputed by the appellant. If that averment is correct, it would follow that the appellant's conduct was unlawful, but for reasons entirely different from those grounding the respondent's claim of spoliation and the decision of the court a quo in that particular respect. That being the case, I do not agree with counsel for the respondent's submission that the appellant's failure to give the requisite notice of disconnection, if it is proven, affords a proper basis for dismissing the entire appeal, which has been mounted on other substantive grounds specifically addressed and determined by the court a quo.

In any event, I take the view that those grounds relate to matters of considerable public importance warranting their comprehensive adjudication by this Court. This is particularly so as there are several extant decisions of the High Court with divergent findings and conclusions on the legality of water disconnections by municipal authorities….,.

The Relevant Enabling Act

At the hearing of the matter, counsel for the appellant raised the entirely new argument that the enabling law for present purposes was the Ordinance of 1911 and not the Urban Councils Act [Chapter 29:15]: therefore, paragraph 69(2)(e) of the Third Schedule to the Act could not be applied, as was done by the court below, to render the by-laws ultra vires.

In response, and being quite justifiably aggrieved, counsel for the respondent countered that this argument was highly improper in light of argument to the contrary advanced and dealt with a quo as well as the thrust of the grounds of appeal and heads of argument filed before this Court.

I entirely agree with counsel for the respondent that this fresh attack on the judgment appealed against is entirely improper and should not ordinarily be entertained. Be that as it may, it is abundantly clear that counsel for the appellant has completely misapprehended the legislative history of the Urban Councils Act as well as established legislative practice in the treatment of existing delegated legislation.

The original Ordinance No.10 of 1911, as amended, remained in force and operational until 1963 when it was converted into an Act of Parliament, titled the Salisbury Water and Electricity Supply and Loan Act [Chapter 132]. Thereafter, in 1974, this Act was repealed by the Urban Councils Act [Chapter 214]. However, in terms of the savings provision incorporated in the latter Act, i.e. section 270, all by-laws or regulations made under any repealed Act were to continue in force as though they were made under the repealing Act. Eventually, Chapter 214 was repealed and replaced, in the 1996 Revised Edition of Statutes, by the Urban Councils Act [Chapter 29:15]. Once again, pre-existing subsidiary legislation was saved by virtue of section 321 of that Act which sets out its savings and transitional provisions.

With specific reference to bye-laws, section 321(1)(d) of the Urban Councils Act [Chapter 29:15] now provides that:

“Any by-laws which were made or continued in force under the repealed Act and which were in force immediately before the date of commencement of this Act shall continue in force as though they were, and shall be deemed to be, by-laws, made under the appropriate provisions of this Act and may be amended or repealed as though they had been so made;”

What emerges, plainly and clearly, from the foregoing, is that the 1913 bye-laws, having been made under the 1911 Ordinance, but having continued and remained in force under the successive replacement Acts of 1963, 1974 and 1996, now continue in force as though they were made under Chapter 29:15. It follows that the validity of the 1913 by-laws stands to be examined and affirmed or negatived by reference to the enabling provisions of the current Urban Councils Act.

Reasonableness of Delegated Legislation

One of the fundamental tenets of Administrative Law is that delegated legislation, including by-laws, may be reviewed and set aside on the ground of unreasonableness. This is the settled position not only in England, particularly after the famous case of Kruse v Johnson [1898] 2 QB 91, but also, albeit somewhat less consistently, under Roman-Dutch Law. See, generally, BAXTER: Administrative Law...,.

As observed by the learned author, “unreasonableness has always been a ground for review of delegated legislation but it was not until Kruse v Johnson that the concept was given an identifiable and specific meaning.”

Kruse v Johnson [1898] 2 QB 91 concerned the validity of a by-law prohibiting any person from playing music or singing in any public place or highway within fifty yards of any dwelling-house after being requested by any constable, or an inmate of such house or his or her servant, to desist. The case was heard and determined by a specially constituted Bench of seven judges appointed by the Chief Justice. It was held, with one dissenting opinion, that the by-law was valid. LORD RUSSELL CJ, delivering the majority judgment of the court, opined as follows…,.:

“In this class of case, it is right that the Courts should jealously watch the exercise of these powers and guard against their unnecessary or unreasonable exercise to the public disadvantage. But, when the Court is called upon to consider the by-laws of public representative bodies clothed with the ample authority which I have described, and exercising that authority accompanied by the checks and safeguards which have been mentioned, I think the consideration of such by-laws ought to be approached from a different standpoint. They ought to be supported if possible. They ought to be, as has been said, 'benevolently' interpreted, and credit ought to be given to those who have to administer them that they will be reasonably administered. This involves the introduction of no new canon of construction. But, further, looking to the character of the body legislating under the delegated authority of Parliament, to the subject-matter of such legislation, and to the nature and extent of the authority given to deal with matters which concern them, and in the manner which to them shall seem meet, I think courts of justice ought to be slow to condemn as invalid any by-law, so made under such conditions, on the ground of supposed unreasonableness….,.

I do not mean to say that there may not be cases in which it would be the duty of the Court to condemn by-laws, made under such authority as these were made, as invalid because unreasonable. But unreasonable in what sense? If, for instance, they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the Court might well say; 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires.'

But, it is in this sense, and in this sense only, as I conceive, that the question of unreasonableness can be properly regarded. A by-law is not unreasonable merely because particular judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception which some judges may think ought to be there.“

There are four clear rules of interpretation that emerge from this celebrated passage;

(i) Firstly, because of the representative nature of municipal bodies and the delegated authority that they administer, by-laws enacted by such bodies ought to be benevolently construed and supported if possible;

(ii) Secondly, it is to be presumed that such by-laws will be reasonably administered by the authority responsible for administering them;

(iii) Thirdly, courts of law should exercise great caution in questioning the validity of by-laws and should be slow to strike them down as being invalid on the ground of unreasonableness; and

(iv) Fourthly, where the criterion of reasonableness is to be applied to any by-law, it should only be condemned if it is objectively found to be grossly unreasonable.

The concept of unreasonableness, in relation to by-laws, is similar to the equivalent Wednesbury principle, as applied in judicial review of administrative action. It was further elucidated by DIPLOCK LJ in Mixnam's Properties Ltd v Chertsey UDC [1964] 1 QB 214…, as follows:

“…, the kind of unreasonableness which invalidates a by-law is not the antonym of 'reasonableness' in the sense in which the expression is used in the common law, but such manifest arbitrariness, injustice or partiality that a court would say: 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires'…,.”

Kruse v Johnson [1898] 2 QB 91 has been perennially affirmed and applied in our courts in adjudicating the validity of by-laws and other delegated legislation. See, for instance, City of Salisbury v Mehta 1962 (1) SA 675 (FC)...,.; S v Nyamapfukudza 1983 (2) ZLR 43 (SC)...,.; Patriotic Front–Zimbabwe African People's Union v Minister of Justice, Legal & Parliamentary Affairs 1985 (1) ZLR 305 (SC)...,.; S v Delta Consolidated (Pvt) Ltd & Ors 1991 (2) ZLR 234 (SC)...,. I entertain no doubt that the rules enunciated in that case continue to retain their soundness and authoritativeness in the present context.

As regards the need to exercise benevolence in the construction and application of bye-laws, it was observed by COZENS-HARDY MR in the case of Williams v Weston-super-Mare UDC (No.2) (1910) 103 LT 9..., that the courts:

“Ought to assume, and assume strongly, that the local authority is exercising their duty honestly and doing their best for the benefit of the locality; they being entrusted by Parliament with powers for that express purpose.”

The need for judicial restraint in the administrative realm is also captured in the maxim omnia praesumuntur rite et solemniter esse acta.

It is trite that every enactment, by implication, imports the principle underlying this maxim. See BENNION: Statutory Interpretation…,. The maxim establishes the presumption that an enactment, or delegated legislation, is properly passed or correctly made, until the contrary is proved. As applied to the exercise of official or administrative functions, it must be presumed that the powers conferred will be fairly and reasonably administered and will not be abused.

It is also apposite to heed the remarks of MURRAY CJ in R v Jeremiah 1956 (1) SA 8 (SR)…,.:

“It might be contended, as counsel suggested, that the problem of dealing with these cases of unavoidable or justifiable 'standing or waiting' can be solved by relying on the discretion of the administrators of the bye-law to avoid the extreme and unreasonable results of a literal construction of the by-law by refraining from enforcing it by prosecution in these cases of hardship. This has, however been decided in Amoils v Johannesburg City Council, 1943 T.P.D. 386 at p.390, not to be the proper solution. The duty of the Court, according to that decision, is to endeavour, in its duty to give a benevolent interpretation to the by-laws of a local authority by upholding them as far as is possible (vide Kruse v Johnson, supra; R v Pretoria Timber Co. (Pty.) Ltd & Another 1950 (3) SA 163 at p.170 (A.D.)), to ascertain if there are not two reasonably possible interpretations of the by-law. If there are two, and one of them produces, while the other avoids, unreasonable and harsh results, then the bye-law will be upheld by giving it the second construction. Needless to say, if the by-law is incapable of any construction, other than that which produces unreasonable results, it cannot be saved and must be held to be ultra vires.”

In the context of the broad powers of review exercisable by the courts, BENNION: Statutory Interpretation…, opines that:

“The operation of the doctrine of ultra vires is wider in relation to bylaws than statutory instruments….,. This is because, in relation to by-laws, the courts regard themselves as entitled to examine not only the scope of the power but the reasonableness of its exercise.”

The learned author also affirms…, that the courts have the power to sever a provision which is ultra vires from the rest of the instrument or to set aside and disregard the invalid part, leaving the rest intact, unless the former is inextricably interconnected with the valid part. However, this does not necessarily entail “judicial surgery or textual emendation by excision”. He accordingly concludes…,.:

“…, the judicial process involved is not truly 'severance' but 'modification'. The court has the power to modify the wording of an item of delegated legislation so as to leave it without any ultra vires effect. The only limit on the power is that it cannot be used to produce an instrument the overall effect of which the delegate, if made aware of the ultra vires point at the time of making the instrument, would or might not have approved.”

Insofar as concerns the exercise of any power or discretion conferred by any enactment, it is axiomatic that the functionary invested with the power to act or decide must comply with such rules of natural justice as are appropriate to the function to be performed as well as the time and circumstance in question. The two basic requirements in this regard enjoin the functionary concerned to decide, without bias, and to allow representations to be made before the decision is reached or any consequential action is taken. These basic tenets, as derived from the common law and embodied in the maxims nemo debet esse judex in sua aut propria causa, and audi alteram partem, are now codified in section 3 of the Administrative Justice Act [Chapter 10:28] and re-affirmed in section 68 of the Constitution.

Whether Bye-laws are Ultra Vires the Enabling Act

As I have indicated earlier, the court a quo found clause 8(a) of the standard form contract (scheduled to the 1913 by-laws) to be ultra vires paragraph 69(2)(e) of the Third Schedule to the Urban Councils Act [Chapter 29:15] notwithstanding the broad powers of enforcement conferred upon urban councils by subsection (3) of section 198 of the Urban Councils Act [Chapter 29:15].

(In order to address the erroneous conflation resorted to by the parties and the court a quo that I have already alluded to, and for the sake of brevity and convenience, I shall refer to the by-laws as encompassing the standard contract annexed thereto, except where it is necessary to refer to the contract specifically).

Section 198 of the Urban Councils Act [Chapter 29:15] delineates the general powers of urban councils; and subsection (3) provides that:

“Subject to this Act, a 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.”

The Third Schedule to the Urban Councils Act [Chapter 29:15] prescribes the matters in respect of which urban councils may make by-laws. Paragraph 69 of that Schedule, in its relevant portions, reads as follows:

“(1) The regulation and rationing of the supply and distribution of water.

(2) Without derogation from 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 -

(a)...,.;

(b)...,.;

(c)...,.;

(d)...,.;

(e) Cutting off the supply of water, after not less than twenty-four hours' notice, on account of -

(i) Failure to pay any charges which are due; or

(ii) The contravention of any by-laws relating to waste, misuse or contamination of water;

(f)...,.;

(g)...,.;

(h) Fixing the duties of consumers in respect of meters and the settlement of disputes as to the amount of water supplied or the tariff applicable.”

In its judgment, the court a quo reasoned that the appellant could not rely on the bye-laws, as read with section 198(3) of the Urban Councils Act [Chapter 29:15] for its purported claim to disconnect water supplies. This was because section 198(3) of the Urban Councils Act [Chapter 29:15] is subject to paragraph 69(2)(e) of the Schedule which deliberately omits the words “in the opinion of the Council”, thus divesting the appellant of any unfettered discretion in the matter and rendering invalid the by-laws in question. The appellant could therefore only disconnect water supplies upon proof of failure to pay by due process or recourse to the courts.

While these conclusions are not entirely untenable, the approach adopted by the learned judge is, with great respect, somewhat narrow and uni-linear. It overlooks several well-established canons of statutory interpretation which enjoin, inter alia, that the provisions of a statute must be construed not in isolation but as a unitary whole and in a purposive manner having regard to the overall objects of the statute.

Section 198(3) of the Urban Councils Act [Chapter 29:15], in my view, is a broad enabling provision which empowers every urban council to do whatever it deems necessary to administer or effectuate its by-laws. The Third Schedule enumerates the myriad of matters in respect of which a council may make by-laws. Paragraph 69 of that Schedule confers the power to make bye-laws specifically for the purpose of regulating and rationing the supply and distribution of water. Although the powers exercisable under section 198(3) of the Urban Councils Act [Chapter 29:15] are “subject to this Act”, I do not consider them to be necessarily subservient to the essentially permissive provisions of the Third Schedule. Those provisions are designed to categorise the broad range of by-laws that may be enacted. They do not per se circumscribe or curtail the powers deemed necessary or expedient to enforce such by-laws. In short, section 198(3) of the Urban Councils Act [Chapter 29:15] is to be read consistently with paragraph 69 of the Third Schedule in a manner that attains, rather than defeats, the overriding objectives of good governance and just administration.

This leads me to what I regard to be the critical issue for consideration in this matter, to wit, the scope and application of the words “in the opinion of the council” as contained in section 198(3) of the Urban Councils Act [Chapter 29:15] and clause 8(a) of the standard form contract annexed to the 1913 Bye-Laws. Can these words be construed and applied in a manner that conforms with the Urban Councils Act [Chapter 29:15] and the applicable precepts of reasonableness or do they vitiate clause 8(a) so as to render it ultra vires in its entirety?

Counsel for the appellant contends that clause 8(a) is reasonable when taken in its context. If consumers were allowed to refuse to pay their water bills simply by disputing them, it would result in administrative chaos. It would be impractical, from a debt management and solvency standpoint, in a commercial context. Although paragraph 69(2)(e) of the Third Schedule relates to charges which are due, it does not require that a court order must be obtained to warrant the disconnection of water supply.

As against this, counsel for the respondent submits that clause 8(a) must be construed and applied reasonably so as to justify disconnection only in respect of non-payment of charges which are actually due. If this is not possible, the clause must be regarded as being ultra vires para 69(2)(e) of the Third Schedule.

I now turn to consider the relevant provisions of the 1913 By-laws in order to assess their reasonableness or otherwise in accordance with the governing principles that I have elaborated above.

I have already adverted to section 49 of the By-laws relating to the computation of the amount of water supplied to any consumer and the payment of charges incurred therefor. The section as amended provides as follows:

“The quantity of water which shall be registered by the meter as having been supplied to any consumer shall be deemed to be the quantity actually so supplied. The quantity of water so registered shall be paid for by such consumer at the rate or charge for the time being fixed by the tariff of the Council for water supplied by measure. Every account for the supply so registered shall become due and payable on the date stated therein and the service of such account in terms of section 61 of these regulations [sic] shall constitute notice that the supply of water may be cut off if payment is not made on or before such date.”

The possible disputation of meter readings and charges due is regulated by sections 50, 51 and 52 of the by-laws. In their relevant portions, they read as follows:

“50. Every consumer shall be bound by the entry in the books of the Council showing such meter reading, in the absence of evidence showing either that such entry has been incorrectly made or that the meter was at the time of such a reading in default, and it shall not be necessary to produce the person who read the meter or the person who made any particular entry in order to prove such reading or entry.”

“51. (1) If any consumer is dissatisfied with any particular reading of a meter supplied by the Council, and is desirous of having such meter tested, he shall give written notice to the council within seven days of receipt of his account, and shall deposit with the Council such sum as it may from time to time fix..., and thereupon the meter shall be tested by the Council.

(2) If, on being tested in terms of subsection (1), a meter is found to be -

(a) Correct, the consumer shall forfeit to the council the sum which he deposited in terms of subsection (1);

(b) Incorrect, the Council shall install a new meter and refund the sum deposited to the consumer.

(3)...,.”

“52. Should the meter, at any time, be out of order and register incorrectly, the Council will repair or replace the same as soon as possible, and the quantity of water to be paid for by the consumer from the date of the meter ceasing to register correctly up to the time of the repair or replacement shall be estimated by the Council upon the basis of the previous consumption of water upon such premises, or, in the event of such an estimate being impossible, upon the basis of the subsequent consumption after such repair or replacement has been effected….,.”

The giving of any notice to a consumer under the bye-laws is provided for in section 61 which reads as follows:

“Where any notice is required by these bye-laws to be served on or given to any person it shall be served personally on such person or left at or served by post to his last usual place of abode or business, and if served by post shall be deemed to have been served at the time when the letter containing the same would be delivered in the ordinary course of post, and, in proving such service, it shall be sufficient to prove that the notice, order or other document was properly addressed and put into the post, and in case any such person shall be absent from the Territory any such notice may be served on any agent of such person known to the Council.”

It is apparent that none of the provisions of the bye-laws cited above was addressed or ventilated in the proceedings a quo. Yet, they are critical in evaluating the validity of clause 8(a) of the standard form contract. This clause cannot be taken in isolation but must be considered within the entire context in which it appears.

The prescribed accounting, payment and disconnection process contemplated under the by-laws is as follows:

(i) The process begins with the presentation of an account based on the quantity of water registered on the relevant meter as having been supplied. The account must be delivered at or posted to the consumer's usual place of abode or business. The account also serves as notice of possible disconnection in the event that it is not paid by the due date.

(ii) Should the consumer wish to question or dispute the account so received, he is entitled to demand that the meter be tested, by giving written notice to the Council, within seven days of receipt of his account, and paying the deposit fixed by the Council. The latter is then obligated to test the meter. If the meter is found to be correct, the consumer forfeits the deposit that he has paid. If the meter is found to be incorrect, the Council must install a new meter and refund the sum deposited.

(iii) Quite apart from the above (ii) scenario, where a meter is found to be out of order or incorrect at any time, the Council must repair or replace the meter as soon as possible. The quantity of water to be paid for by the consumer concerned is then estimated on the basis of his previous or subsequent consumption, depending on the circumstances of each case.

(iv) In either scenario, the power conferred upon the Council to disconnect water supply upon 24 hours' written notice may only be invoked as the final resort.

Furthermore, the opinion of the Council as to whether the consumer has failed to pay any sum due is not purely subjective. It is qualified and conditioned by the prior delivery of an account and the possibility of that account being challenged by the consumer and then rectified if the meter in question is found to be faulty or defective. In short, the bye-laws provide for a dispute resolution mechanism that precedes the possible penalty of disconnection. Thus, the process, taken as a whole, is entirely consistent with the requirements of paragraph 69 of the Third Schedule to the Urban Councils Act [Chapter 29:15] insofar as that provision delineates the parameters for framing by-laws regulating the supply and disconnection of water.

Moving on to the question of reasonableness, the authorities cited above postulate that the delegated legislation that is impugned must be accorded a benevolent construction to the extent that this is possible. Additionally, it must be presumed that the legislation concerned will be administered by the relevant functionaries in a reasonable manner.

Having regard to these interpretive principles, it seems to me that this Court is at large to presume that the Council will exercise its discretion reasonably, not only in forming its opinion as to whether or not the consumer in question is in default with any sum due but also with respect to the attendant power to disconnect water supply to that consumer. I am fortified in this position by the existence of the dispute settlement process embodied in the by-laws, which process entitles the consumer to challenge the accuracy of meter readings and the consequent computation of his account. I am also satisfied that this process is largely consonant with the governing tenets of natural justice insofar as they dictate the absence of bias and an opportunity to make the requisite representations.

Lastly, I am guided by the cardinal rule that the courts must exercise great caution in striking down delegated legislation. They should only intervene if that legislation is found to be objectively grossly unreasonable, viz. manifestly unequal, unjust, arbitrary or oppressive.

In the present context, I am unable to discern any such grossly unreasonable feature in the operation or application of the bye-laws under scrutiny.

In the final analysis, I take the view that the 1913 by-laws, regarded as a whole, are not only compliant with and intra vires the enabling provisions of the Urban Councils Act but also perfectly concordant with the overarching notions of reasonableness....,.

I have no doubt that the powers conferred by the bye-laws in casu can be appropriately scrutinised and evaluated to ensure that they comply with and do not infringe the requirements of section 77, no matter how imprecise and ill-defined those requirements may be. Having regard to my earlier assessment of the processes embodied in the by-laws pertaining to the supply of water, I take the view that the power to disconnect water supply, exercisable by the Council, is eminently reasonable and does not in any way contravene section 77 of the Constitution....,.

Disposition

The particular facts of this case, insofar as they relate to the respondent himself, indicate that the appellant probably did not give him the requisite 24 hours written notice prior to disconnecting his water supply. On that basis, the appellant's conduct would have been unlawful, but for reasons different from those founding the respondent's cause of action. In any event, I am satisfied that the respondent did establish a sufficiently clear right entitling him to the interdictory and spoliatory relief granted by the court a quo. I also agree with the respondent's position that the interim order granted below is materially different from the final order sought on the return date and that it is not categorically definitive in its terms or effect.

Turning to the larger issues apropos the validity of the impugned 1913 Bye-laws, I take the view that their provisions, construed in their entirety, are not only reasonable in their operation but also intra vires the enabling provisions of the Urban Councils Act. Furthermore, I am not persuaded by the respondent's contention that the by-laws are incompatible with the right to water enshrined in section 77 of the Constitution. Thus, the appellant's power to disconnect water supplies for non-payment of water accounts, provided it is reasonably applied and enforced, and exercised in strict compliance with the conditions prescribed in the bye-laws, is both statutorily and constitutionally unimpeachable.

It follows from the foregoing that the appeal fails in relation to the specific interim relief granted by the court a quo in favour of the respondent but succeeds in establishing the overall legality of the bye-laws relied upon by the appellant. For this reason, I think it just and equitable that neither party should be penalised with the costs of this appeal or the costs a quo.

As regards the provisional order granted by the court a quo, the terms of the final order sought are obviously problematic and insupportable to the extent that they contemplate the authority of a court order as a pre-requisite for the discontinuation of water supply in every instance. As for the interim relief granted, this has been overtaken by events and rendered otiose inasmuch as the respondent is no longer in occupation of the premises in question. In the event, the provisional order granted by the court below should be set aside in its entirety.

In the result, it is ordered as follows:

1. The appeal be and is hereby partially allowed.

2. The provisional order granted by the court a quo be and is hereby set aside.

3. Each party shall bear its own costs in respect of this appeal and the application instituted in the court a quo.

REMEDY SOUGHT

Counsel for the thirty-fourth respondent took issue with the fact that the declaratory order is being sought three years after the charges were levied. She submitted that the applicant did nothing to set down the application. She contended that the application should have been brought within a reasonable time. She contended that there was no point in bringing the application when some cases have resolved the dispute. That this application won't overturn the orders already granted against the applicant. She argued that hypothetical issues cannot form the basis of a declaratory order.

The applicant submitted that it is not concerned with those matters where default judgment was granted against it and is prepared to let due process take its course. What the applicant simply requests is resolution of a dispute where it claims that there is legal uncertainty and it is entitled to do so.

This application was lodged in September 2011 and has been pending since then. The applicant is not responsible for the set down of matters. Section 14 of the High Court Act [Chapter 7:06] empowers this court to deal with declaraturs and provides as follows;

“14 High Court may determine future or contingent rights

The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

This court has, in its discretion, decided to entertain the application.

This is a proper case for a declaratur. All the parties have an interest in “an existing, future or contingent right or obligation', See Johnsen v AFC 1995 (1) 65 (H) for that approach. I agree with counsel for the applicant that the decision in this matter will resolve a topical issue.

The applicant …, sought interim relief in the following terms:

“INTERIM RELIEF GRANTED

1. Pending the hearing and finalization of Applicant's appeal in the Fiscal Appeal Court, Applicant's obligation to pay value added tax and income tax be and is hereby suspended.

2. Respondent be and is hereby ordered to forthwith provide written reasons for its decision to compel payment of value added tax and income tax pending Applicant's appeal to the Fiscal Appeals Court.”

Section 36 of the Value Added Tax Act [Chapter 23:12] provides:

“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 recoverable with penalty and interest calculated as provided in subsection (1) of section thirty-nine.”

The obligation to pay the amount of tax assessed to be due and payable is imposed by section 38 of the Value Added Tax Act [Chapter 23:12].

Section 69 of the Income Tax Act [Chapter 23:06] provides:

“69. Payment of tax pending decision on objection and appeal

(1) The obligation to pay and the right to receive any tax chargeable under this Act shall not, unless the Commissioner otherwise directs and subject to such terms and conditions as he may impose, be suspended pending a decision on any objection or appeal which may be lodged in terms of this Act.

(2) If any assessment or decision is altered on appeal, a due adjustment shall be made, for which purpose amounts paid in excess shall be refunded and amounts short paid shall be recoverable.”

The obligation to pay income tax assessed to be due and payable is imposed by section 71(1) of the Income Tax Act [Chapter 23:06]….,.

The effect of the interim order sought by the applicant has a direct relevance to the determination of the question whether the obligation imposed on a taxpayer to pay the amount of the tax assessed to be due and payable infringes the taxpayer's fundamental right of access to a court and the right to administrative justice enshrined in sections 69(3) and 68(1) of the Constitution respectively.

Counsel for the respondent put the matter in its proper context.

He said that what the applicant is seeking is an interim order suspending its statutory obligation to pay the amount of the tax assessed to be due and payable pending an anticipated declaration by the Constitutional Court of constitutional invalidity of sections 36(1) of the Value Added Tax Act [Chapter 23:12] and 69(1) of the Income Tax Act [Chapter 23:06].