This is an application for the rescission of a default judgment entered by this court against the applicant on 14 March 2017 in HC669/16. That order was to the effect that:

“1. 1st respondent be sentenced to 24 months imprisonment of which 12 months is suspended for good behaviour, effective 12 months.

2. 1st respondent to pay costs on attorney and client scale.”

The application is opposed by the second respondent.

On the date of the hearing, the applicant raised a point in limine on the locus standi of the second respondent and the fact that the applicant had not been served personally with the application for contempt of court that led to the default judgment.

The second respondent's counsel, on the other hand, also raised a point in limine; alleging, that, as the applicant had not attached the default judgement in question, there was no cause of action.

After counsel had made their respective submissions, I indicated that they must proceed with arguments on the main matter and my decision of the points in limine will be in the main judgement....,.

The applicant and the second respondent are virtually involved in a battle for directorship of the first respondent. This battle has had its twists and turns all pointing to an acrimonious relationship between the two parties.

It is common cause, that, on 24 April 2013, the respondents obtained an order, by default, in HC2470/13, in which the applicant and Francis Katsande were interdicted from holding themselves out as representatives of the first respondent, Mydale International Marketing (Pvt) Ltd.

It is this order that the respondents, upon seeing that the applicant and Francis Katsande were not complying with, approached this court, on 25 January 2016, with an application for contempt of court. The respondents sought an order that:

“1. 1st and 2nd respondents be sentenced to 24 months imprisonment of which 12 months is suspended for good behaviour, effective 12 months each.

2. 1st and 2nd respondents pay costs on attorney and client scale.”

Prior to that matter, in HC1687/10, in an order dated 20 June 2012, the first respondent, represented by the said F Katsande, as instructed by the applicant, had obtained judgement in its favour. That order included, inter alia, a directive that Venturas and Samukange Legal Practitioners surrender a sum of $28,500 to the Registrar of the High Court who would, in turn, release the money to the applicant (1st respondent in this case) upon appropriate proof of the directorship of the applicant.

In that regard, clause 5 of HC1687/10 provided that:

“The Registrar of the High Court be and is hereby directed to release to the Applicant the said amount in paragraph 4 hereof upon appropriate proof of the directorship of the Applicant.”

After the 24 April 2013 judgement, F Katsande continued to represent the first respondent, as instructed by the applicant, in matters pertaining to the recovery of the $28,500.

In furtherance of the directive in clause 5, in HC1687/10, on 20 April 2016, the Registrar of the High Court wrote a letter to the Registrar of Companies seeking assistance in ascertaining the directors of the first respondent.

In his response of 28 April 2016, the Registrar of Companies indicated, that, according to his records the current directors of the first respondent (Mydale International Marketing P/L Company) were Alison Alan Leslie and Valentine Peter.

In this regard, the company's CR14 was duly attached.

As far as records at the company's registry are concerned, therefore, the applicant is a director of the first respondent.

The sum in question was subsequently released to F Katsande Legal Practitioners in their capacity as Mydale International Marketing P/L's legal practitioners.

It is in that regard, that, the applicant, though interdicted, continued to give instructions to Katsande & Partners to represent the first respondent in these courts.

In the meantime, on 25 January 2016, the second respondent filed the contempt of court application against the applicant and Francis Katsande.

In his application, as reflected in HC669/16, he sought civil imprisonment of the applicant and Francis Katsande in the terms alluded to above.

This is the application which was granted in default of the applicant on 14 March 2017.

Francis Katsande attended the hearing as a party to the matter and not representative of the applicant.

The applicant alleged, that, he received a notice of set down of the application for contempt through his gardener on the date the hearing was to take place.

He duly attended court – albeit, ill prepared.

The notice of set down showed, that, the hearing was to be before MANGOTA J. When he got to court, he found out that the matter was in fact to be heard before TAGU J.

When the contempt of court proceedings commenced in Court J, he raised issue with the manner in which service of the process had been done and that he had only learnt, at court, that it was an application for contempt of court.

He indicated that he needed time to respond to the application.

As he had not had time to prepare for the hearing, he sought the court's indulgence to enable him to respond to the application.

As a consequence, the court adjourned, and, to his understanding, court was to resume at 3:30pm in the same court room on the same date.

He thus went away and hurriedly prepared his notice of opposition and returned to the same courtroom at about 3:30pm.

He waited, and, as no court official came, he approached the presiding judge's clerk to inquire on the matter.

It was then that he was advised, that, the matter had in fact been heard in the judge's chambers, and, as he was in default, a default order for him to be imprisoned for 100 days had been granted.

He thereafter sought advice after which he filed this application for rescission and for leave to file a supplementary affidavit, if rescission is granted, within 12 days of the date of the order.

In order to avert incarceration, he also made an urgent chamber application for stay of execution of the default order.

That application was granted, hence, he was not arrested.

The second respondent opposed the application. He contended, that, the applicant was in wilful default and had no prospects of success on the main application....,.

The main issue before me is whether or not the default order of 14 March 2017 should be rescinded or not.

The onus is on the applicant to show that there is good and sufficient cause for this court to rescind that default order.

Rule 63 of the High Court Rules 1971 provides that:

“(1) A party against whom judgement has been given in default, whether under these rules or under any other law, may make a Court Application not later than one month after he has had knowledge of the judgement, for the judgement to be set aside.

(2) If the Court is satisfied, on an application in terms of sub rule (1,) that there is good and sufficient cause to do so, the court may set aside the judgement concerned and give leave to defendant to defend or to plaintiff to prosecute his action, on such terms as to costs and otherwise as the Court considers just.”

The onus is thus on the applicant to show that there is good and sufficient cause for the court to set aside the judgment.

In Stockil v Griffiths 1992 (1) ZLR 172 (S)…, GUBBAY CJ aptly noted that:

“The factors which a court will take into account in determining whether an applicant for rescission has discharged the onus of proving 'good and sufficient cause' as required to be shown by Rule 63 of the High Court of Zimbabwe Rules 1971, are well established. They have been discussed and applied in many decided cases in this country: see, for instance, Barclays Bank of Zimbabwe Ltd v CC International (Pvt) Ltd SC16-86 (not reported); Roland and Another v McDonnell 1986 (2) ZLR 216 (S) at 226E-H; Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) at 211C-F.

They are:

(i) The reasonableness of the applicant's explanation for the default;

(ii) The bona fides of the application to rescind the judgement; and

(iii) The bona fides of the defence on the merits of the case which carries some prospect of success.

These factors must be considered not only individually but in conjunction with one another and with the application as a whole.”

What emerges from the plethora of cases is that the phrase 'good and sufficient cause' has been interpreted to mean, that, for one to succeed in an application for rescission of judgement one must satisfy the following factors:

(i) The explanation for the reason for the default must be reasonable;

(ii) The bona fide of the application to rescind the judgement;

(iii) The bona fide of the defence on the merits of the case which has some prospects of success.

In discussing the above elements, and what weight to attach to each, CHINHENGO J aptly noted, in V Saitis & Company (Pvt) Ltd v Fenlake (Pvt) Ltd 2002 (1) ZLR 378 (H)…, that:

“Each element of the test of good and sufficient cause may be decisive on its own in any particular case but that does not mean that it becomes the only element or that the court has lost regard of the other elements of establishing good and sufficient cause.”

In Zimbabwe Banking Corp. Ltd v Masendeke 1995 (2) ZLR 400 (S) McNALLY JA had earlier opined that:

“Wilful default occurs when a party freely takes a decision to refrain from appearing with full knowledge of the service or set down of the matter.”

In Deweras Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corp Ltd 1998 (1) ZLR 368 (S)…, McNALLY JA pronounced as follows on 'good and sufficient cause' where the aspect of wilful default is raised:

“While it may generally be true to say that when there is wilful default there will usually not be good and sufficient cause, I believe we fetter our discretion improperly if we lay down a fixed rule, that, when there is wilful default there is no room for good and sufficient cause. I favour the definition of wilful default offered by KING J in Maujean t/a Audio Video Agencies v Standard Bank of South Africa Ltd 1994 (3) SA 801 (C) at 803H-I:

'More specifically, in the context of a default judgment 'wilful' connotes deliberateness in the sense of knowledge of the action and of its consequences, i.e its legal consequences; and a conscious and freely taken decision to refrain from giving notice of intention to defend, whatever the motivation for this conduct might be.'

See also Morkel v ABSA Bank Ltd & Anor 1996 (1) SA 899 (C).

But, it is precisely in the 'motivation' mentioned in that passage that one might find 'good and sufficient cause.'

I respectfully agree with the dicta of INNES J in the oft-cited case of Cairns Executors v Goarn 1912 AD 181 at 186 passim. In particular, His Lordship said:

'It would be quite impossible to frame an exhaustive definition of what would constitute sufficient cause to justify the grant of indulgence. Any attempt to do so would merely hamper the exercise of a discretion which the Rules have purposely made very extensive and which it is highly desirable not to abridge.'”

In casu, it is common cause that the applicant had attended the morning session. It was the afternoon session that he did not attend.

His explanation was that he understood the time for resumption as 3:30pm and he indeed came at that time. The second respondent, on the other hand, contended that the time for resumption was 2:30pm.

He did not, however, dispute that the applicant in fact came at 3:30pm.

It is my view, that, it is not uncommon for parties to a matter to misunderstand the time a matter has been stood down to.

In as far as the efforts the applicant said he took upon returning to court cannot be refuted, it is only fair and just that he be given a benefit of the doubt and accept that he may indeed have mistaken the time for 3:30pm hence his attendance at that time.

I am thus of the view, that, his explanation, in the circumstances of this case, moreso as a self actor at the time, is reasonable.

It cannot be said with any seriousness, that, the applicant deliberately absconded from attending court when he knew his liberty was at stake. The probability is that he misunderstood the time for resumption.

Had it been a deliberate default, he surely would not have turned up at 3:30pm, when, in all probability, he would have been handing himself for imprisonment.

In fact, the impression one gets from the litany of cases to which the parties have appeared before this court over is that the applicant was intent on fighting for what he believed to be his rights and those of the first respondent.

The next issue is that of prospects of success.

The applicant alleged, that, the contempt of court application was not served on him at all. What he received was a notice of set down.

In such circumstances, he ought to have been personally served with the application itself.

It is trite that a party to contempt proceedings must be personally served.

In Mydale International (Pvt) Ltd v Dr Rob Kelly HH04-10 GOWORA J…, aptly stated that:

“It would seem to have escaped the attention of the learned counsel for the applicant that a party against whom an order for contempt is sought must not only be personally cited but that process for such citation must be personally served on the respondent.”

In casu, the applicant alleged that he was not served with the application.

The second respondent, in disputing this, stated, that, the applicant was served with the application in the same way he was served with the Notice of Set Down - which was via his gardener.

By implication, the second respondent conceded that no personal service was effected.

It may also be noted, that, whilst the judgement by BERE J, upon which the contempt was premised, interdicted the applicant and F. Katsande from representing the first respondent; when these same interdicted parties appeared before CHAREWA J, in F.M. Katsande Legal Practitioners v Mydale International HH225-17, contesting over monies due to the first respondent, the learned judge's sentiments were to the effect, that, the applicant was entitled to represent the first respondent; and, so, F Katsande could not use the judgment in HC2470/13 to refuse to pay on the basis that the applicant was interdicted from representing the first respondent.

In this regard, the learned judge opined that:

“The issue of locus standi was peremptorily dealt with in the last paragraph of p4 of my judgement dated 8 June 2016. Had the Registrar of the High Court, after carrying out the investigations ordered by the Court, established that Peter Valentine was not a director of the Respondent entitled to represent it, then, he would not have released the trust funds to applicants. After all, applicants own authority to receive the funds was derived from Peter Valentine's instructions for and on behalf of the respondent. In other words, if Peter Valentine had no authority to act for respondent, then, applicant also had no authority to act for respondent and receive its trust funds. The applicant cannot seek to have its cake and eat it too.”

In her prior judgment, in Mydale International Marketing (Pvt) Ltd v Katsande Legal Practitioners and Another HC5800/16…, the leaned judge had stated that:

“In para 4 of their undated letter aforesaid, the respondents referred to HC2470/13 and HC2453/16 as further reasons for refusing to release the trust funds. Clearly, HC2470/13 is not helpful to the respondents, as, apart from interdicting Mr. Valentine from holding himself as a representative of the applicants, it also interdicted the respondents from acting for applicant. To my mind, the fact that the Registrar did pay out the $28,500 respondents Trust Account obviously meant that he had ascertained that Mr. Valentine properly represented the applicant and also that the respondents were the duly authorised legal practitioners of the applicant in HC1049/09 duly empowered to receive the money.”

The above sentiments were buttressed by the fact, that, the investigations by the Registrar of the High Court, as directed by this court in HC1687/10, had revealed, that, in terms of the CR14 kept at the Registrar of Companies records, Peter Valentine was one of the Directors of the first respondent.

That situation has apparently not changed to date.

Though the second respondent contended that he is the rightful Director of the first respondent, he did not produce any proof of his directorship or even authority from the first respondent to represent it.

The applicant, on the other hand, tendered what he said was a resignation letter of the second respondent and Company Board Resolution appointing the applicant to represent the first respondent in the High Court labour disputes and other legal disputes.

I am of the view, that, the totality of what the applicant has used, since 2009, to assert his position as director and as the person authorised to represent the first respondent cannot be ignored as no other person has tendered contrary documents or evidence.

I am of the view, that, the apparent conflict, in the view taken of the applicant's locus standi, is one that requires the parties involved to fully ventilate their respective positions for a most appropriate determination to be made.

On the basis of the above discourse, I am of the view, that, the applicant has shown that he has some prospects of success in the main matter.

As regards his defence to the contempt proceedings, the applicant also alluded to the fact, that, the court order the second respondent was relying on was overtaken by subsequent orders from this same court that recognised him as a representative of the first respondent.

This would be a point of contention in the main matter.

In as far as it was not disputed that the applicant only learnt, at court, that the matter he had been invited to court for was one of contempt of court, it follows, that, he was not given adequate time to prepare his response.

He asserted, that, he only had about four (4) hours before returning to court to respond to the application.

In the absence of evidence that he had been properly served with the application in good time in terms of the Rules, I am inclined to grant him leave to file a supplementary affidavit as the one he filed was prepared hurriedly to meet the courts timeline of resuming the hearing in the afternoon of the same day.

Accordingly, I am of the view, that, the applicant has shown good and sufficient cause for the rescission of the default judgement entered against him on 14 March 2017 in HC669/16.

Accordingly, it is hereby ordered that:

1. The default judgment granted in HC669/16, of 14 March 2017, be and is hereby rescinded.

2. The applicant is hereby granted leave to file a supplementary affidavit in HC669/16 within 12 days of the date of this order.

3. The second respondent shall bear costs of suit on the ordinary scale.

After hearing arguments from counsel on 7 May 2015, I granted the provisional order and said the reasons would follow. These are they.

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 (the Postal and Telecommunications Regulatory Authority), which is the statutory authority established in terms of the Postal and Telecommunications Act to superintend the licencing and regulation of telecommunication service in this country under the watchful eye of the second respondent (the Minister of Information, Technology, Postal and Courier Services), the Minister charged with the administration of the Postal and Telecommunications Act.

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, 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 three (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 N T 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.

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.

NOTWITHSTANDING the provisions of subparagraphs 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 section 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 1st, second, and third respondents.

3. That, there be no order as to costs.

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

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 (Empowerment Corporation (Pvt) Ltd) which holds the other 40 percent 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 Minister of Information, Technology, Postal and Courier Services), the responsible Minister, but, meanwhile, the Regulatory Order remains extant as the appeal does not have the effect of 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, 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 (Empowerment Corporation (Pvt) Ltd) supported it, and counsel for the second and third respondents (Minister of Information, Technology, Postal and Courier Services N.O. and Chief Secretary in the Office of the President and Cabinet N.O.) 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....,.

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 …, (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 p227. 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 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 Indigenisation 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 (Empowerment Corporation (Pvt) Ltd) 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; 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 the Indigenisation and Economic Empowerment 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.

The applicants applied for a decree of perpetual silence against the respondents.

They submitted, that, these constituted a nuisance to them. The respondents, they said, took them to the Magistrates courts, this court, and the Supreme Court with no end in sight. They stated, that, the respondents took them to court on not less than forty (40) occasions. They averred, that, they have been subjected to a series of abusive criminal and civil proceedings. They said, despite repeated dismissal of their claims by the courts, the respondents maintained the position, that, the judgments which were entered against them were ineffectual. They complained that the respondents were harassing and vexing them. They insisted that the court should protect them as well as itself from the abusive conduct of the respondents. They moved the court to grant them the decree.

The respondents opposed the application.

They moved the court to examine the cases which formed the basis of the application in relation to their cause.

They denied that they were always in the driving seat when the cases which the applicants made reference to found their way to the court(s). They stated, that, the applicants filed some of the cases with the court(s). They said all the cases upon which the current application rests had a bearing on a mine tribute agreement which the fourth applicant (John Richard Needham Groves) concluded with the second respondent (Base Mineral Zimbabwe (Pvt) Ltd). The fourth applicant, they said, concluded the tribute agreement with them through his Chiroswa Minerals (Pvt) Ltd [“the company”].

They submitted, that, they should not be silenced for their effort to assert their right in the tribute agreement. They moved the court to dismiss the application with costs.

At the centre of the parties dispute is Dodge Mine [“the mine”]. It lies in Shamva District under Mashonaland Central Province. It has six claims. These are lucrative, according to the evidence filed of record.

The fourth applicant and his partner used to own and work the mine. They worked it under the name Chiroswa Syndicate. The fourth applicant later sold the mine to the first applicant (Mabwe Minerals (Pvt) Ltd). This was after his partner had left the syndicate. The first applicant is currently the owner of the mine.

The issue of the mine has seen the parties take each other to court on thirty (30), and not forty (40) occasions.

The applicants filed actions and/or applications against the respondents on nine (9) occasions. The respondents filed actions and/or applications on sixteen (16) occasions. The following five (5) cases were not accounted for: HC233/13, HC5669/13, HC5460/13, HC6842/14 and HC308/12.

The court could not tell which party filed what action or application in respect of the mentioned five (5) cases. What it could tell, however, was that the parties have been in and out of courts on thirty (30) occasions.

The relief which the applicants moved the court to grant to them is not new to the jurisdiction of this court.

In Mhini v Mupedzamombe 1999 (1) ZLR 561…, GARWE J…, had the occasion to deal with an issue which was similar to the present one. The learned judge quoted with approval what CURLEWIS J said in Brown v Simon 1905 TS 311…, wherein he remarked that the procedure:

“…, affords a useful means of bringing to a conclusion all threatened actions, and, in our opinion, it is applicable under due safeguards not only to cases where a claim has been made or an action threatened publicly, but, to every case where by demand or threatened action there has been a disturbance of, or interference with, the quiet enjoyment of another's rights.”…,.

In Corderoy v Union Government [Minister of Finance] 1918 AD 512, which GARWE J was pleased to make reference to in Mhini v Mupedzamombe 1999 (1) ZLR 561, the South African Appellate Division held, that, when there has been repeated and persistent litigation between the same parties, in the same cause of action, and in respect of the same subject–matter, the court can make a general order prohibiting the institution of such litigation without the leave of the court, but, that power extended only to prevent abuse of its own process without being concerned with the process of other courts.

The paucity of case authorities on the current subject is ample evidence of the fact that the relief, whilst recognised at law, is seldom resorted to.

It is only granted where a party succeeds in showing the court, that, the defendant or respondent is a serial litigator who has the tendency to abuse not only the court but also its process and his adversary.

It is important for the court to examine and establish the fact of whether or not the respondents fall into the category of serial litigators who abuse the applicants, the court(s), and their processes.

The dispute of the parties has its origin in the judgment of PATEL J…,.

The learned judge had the occasion to hear and determine the matter in which Chiroswa Minerals (Pvt) Ltd [“the company”] and the second respondent (Base Mineral Zimbabwe (Pvt) Ltd) brought before him under case number HH2612/11. The company and the second respondent had sued the following three parties – the Minister of Mines, one Morris Tendayi Nyakudya and the latter's company, Vambo Mills (Pvt) Ltd. They succeeded in having Mr Nyakudya and Vambo Mills (Pvt) Ltd evicted from the mine where they were operating in terms of an expired tribute agreement. They successfully moved the court to order the Minister of Mines to refer the tribute agreement, which they had concluded between them, to the Commissioner of Mines for approval and registration.

A reading of PATEL J's judgment, under HH261-11, tends to suggest, that, it was Chiroswa Minerals (Pvt) Ltd which entered into the tribute agreement with Morris Tendayi Nyakudya and his Vambo Mills (Pvt) Ltd. It is also not a far-fetched suggestion, that, Chiroswa Mills (Pvt) Ltd moved to enter into the second tribute agreement of the mine with the second respondent.

The abovementioned observations find support from the fact, that, it is Chiroswa Minerals (Pvt) Ltd, and not Chiroswa Syndicate, which moved for the eviction of Mr. Nyakudya and his Vambo Mills (Pvt) Ltd from the mine. The company worked hand-in-glove with the second respondent to achieve its desired end-in-view.

The impression which the company created in the mind of the respondents, at the time, was that it owned the mine. It could not successfully evict those from the same if it was not the owner of the mine. It would have had no locus standi to do so.

It is common cause, that, the fourth applicant (John Richard Needham Groves) owned Chiroswa Minerals (Pvt) Ltd. He, in appreciation of his good working relationship with the first respondent (Peter Valentine), donated 50% of his shares in the company to the first respondent. The first respondent, it is not in dispute, was or is the Managing Director of the second respondent (Base Mineral Zimbabwe (Pvt) Ltd).

The above observed matters do, in the court's view, account for the misunderstanding which later ensued between the fourth applicant (John Richard Needham Groves) and the respondents (Peter Valentine and Base Mineral Zimbabwe (Pvt) Ltd).

These, the first respondent in particular, must have laboured under the genuine but mistaken belief that they, or he, as a 50% holder of shares in Chiroswa Minerals (Pvt) Ltd, had a substantial interest not only in the company but also in the mine which the company owned.

The first respondent's belief in the mentioned regard finds support from a reading of MATANDA-MOYO J's judgment under case number HH557-14.

The first respondent (Peter Valentine) had, in the case, sued the first, second and fourth applicants (Mabwe Minerals (Pvt) Ltd, Tapiwa Gurupira and John Richard Needham Groves). He moved the court to set aside the agreement of sale of the mine which the fourth applicant had concluded with the first and the second applicants. He claimed that he owned 50% of the mine. He challenged his omission from participating in the sale of the mine. He insisted that the sale was, on the mentioned basis, null and void and had, therefore, to be set aside.

It is such belief, as has been stated in the foregoing paragraphs, which caused the respondents to file one suit after another with the courts.

They worked on the impression which had been created. They believed that they, or one of them, owned 50% of the shares in the company which owned the mine. They, therefore, made every effort to assert what they believed belonged to them.

The respondents belief was shattered when MATANDA-MOYO J ruled, to their disappointment, that, Chiroswa Syndicate, and not Chiroswa Minerals (Pvt) Ltd, owned the mine.

The respondents could not, under the stated circumstances, be said to have engaged themselves in a wild goose chase, as it were. They honestly believed, in the court's view, that, they were pursuing a genuine cause. They believed, further, that, the fourth applicant (John Richard Needham Groves) and the company were treating them unfairly. They, therefore, made effort to have their case determined by the courts.

The respondents unrelenting effort to assert their right, in what they believed belonged to them, took their case to a higher level in 2013.

In a matter which Chiroswa Minerals (Pvt) Ltd and the second respondent filed under case number HC5208/13, TAKUVA J remained alive to the judgment which PATEL J delivered under HH261-11.

The learned judge ordered the Minister of Mines, one Obert Mpofu, and the Commissioner of Mines, a Mrs E Kahonde, to process the tribute agreement which Chiroswa Minerals (Pvt) Ltd and the second respondent (Base Mineral Zimbabwe (Pvt) Ltd) concluded as at the time of PATEL J's judgment and to have the same registered at the offices of the Mining Commissioner.

The order contained a stiff sanction which the Minister and the Commissioner would suffer if they did not comply with it. They would each be held to have been in contempt of court and be committed to thirty (30) days imprisonment.

It was as a result of TAKUVA J's order that the Mining Commissioner did, on 13 February 2014, register a tribute agreement in favour of the second respondent (Base Mineral Zimbabwe (Pvt) Ltd).

The fourth applicant represented the company and Chiroswa Syndicate in the tribute agreement which the parties registered with the Mining Commissioner. The first respondent represented the second in the same. The tribute was or is to endure for a period of three years. It would, therefore, expire on 13 February 2017.

Given the above described set of circumstances, it would be difficult, if not impossible, for one to suggest, as the applicants did, that the respondents were or are a nuisance to them.

The applicants, the fourth applicant in particular (John Richard Needham Groves), conveyed an impression to the respondents. These believed him, only to discover, at a later stage, that, he was hunting with the hounds and running with the hares, so to speak.

He dined and wined with them, as it were. He later switched his allegiance from them and proceeded to work with the applicants against them.

The fourth applicant was undoubtedly the main cause of the parties misunderstanding.

He, through his Chiroswa Minerals (Pvt) Ltd, worked with the second respondent (Base Mineral Zimbabwe (Pvt) Ltd) to evict persons who were at the mine from the same. He agreed to enter into a tribute agreement of the mine with the second respondent. He sold the mine to the first applicant (Mabwe Minerals (Pvt) Ltd). He sold his 50% shareholding in Chiroswa Minerals (Pvt) Ltd to the third applicant (Tag Minerals Zimbabwe (Pvt) Ltd).

He consulted no one in this complicated matrix which he created, not for himself, but for the respondents.

The court was not amused by the fourth applicant's manner of dealing with his business partners.

It viewed the applicants effort to conceal certain matters from it with serious disquiet.

They attached to the application a wrong tribute agreement. The agreement showed its life span as commencing on 14 December 2011 and expiring on 14 December 2014. They did not make any reference to the correct tribute agreement which was registered at the Mining Commissioner's offices on 13 February 2014. They plucked off the last page of PATEL J's judgment i.e. the page on which the learned judge's order was recorded. They made an effort not to disclose the existence of TAKUVA J's order under HC5208/13.

In acting as they did, the applicants aim and object were to paint the picture which showed, that, the respondents were a rogue element which must be placed under leash all the time, so to speak.

They, unfortunately for themselves, over-did their trick to a point where their story remained difficult, if not impossible, to believe.

They were ably legally represented in this and other actions or applications. Their legal practitioner should have been more candid with the court than he did. The court, therefore, viewed the conduct of the applicants and their legal practitioner with displeasure.

The respondents could not be faulted for having made an effort to assert their right in what they believed belonged to them. They cannot be blamed for asserting their right in the tribute agreement which was registered in the second respondent's favour on 13 February 2014.

That agreement is still extant. It will only expire on 13 February 2017.

The application cannot, on the basis of the foregoing, be allowed to stand.

The applicant is a Member of Parliament representing the Mutare Central Constituency. He filed this application, essentially, in terms of section 167(2)(d) of the Constitution of Zimbabwe, 2013 (hereafter 'the Constitution') albeit with passing references to section 85 of the Constitution. In fact, in his answering affidavit, the applicant made it abundantly clear that the application was indeed solely in terms of section 167(2)(d) of the Constitution.

Thus, any references to section 85 of the Constitution shall be taken merely as means to bolster the principal cause of action, and not as a separate cause of action.

Initially, the applicant sought an order in the terms set out below:

“IT IS HEREBY DECLARED THAT:

1. The passage of Constitutional Amendment Bill (No.1) of 2017 in Parliament on the 4th of May 2021 be and is hereby set aside on the basis that the bill had lapsed in July of 2018 and therefore its passage was in breach of section 147 of the Constitution of Zimbabwe:

Therefore:

(i) The actions of Parliament, in passing Constitutional Amendment Bill No.1 of 2017, are in breach of the provisions of section 147 of the Constitution of Zimbabwe.

(ii) The actions of the President of the Republic of Zimbabwe, in assenting to Constitutional Amendment Bill No.1, are in breach of section 147 of the Constitution of Zimbabwe.

(iii) Constitutional Amendment No.1 Act of 2017, gazetted on the 7th of September 2017, be and is hereby set aside.

2. That, the judgment of the Constitutional Court, in the case of Innocent Gonese & Jessie Majome v The Speaker of Parliament & Others CC04-20, directing that part of the disposition of the Constitutional Court directing Senate passes Constitutional Amendment Bill No.1, within 180 days from the declaration of invalidity, be and is hereby declared to be a nullity in breach of section 147 of the Constitution of Zimbabwe.

3. 2nd Respondent must pay cost (sic) of suit.”

I have deliberately used the word “initially” for reasons that will shortly become apparent.

The application relates to the enactment of Constitution of Zimbabwe Amendment (No.1) Act 2017. The relevant facts are all common cause:

On 25 July 2017, the National Assembly passed Constitutional Amendment (No.1) Bill 2017. Thereafter, on 1 August 2017, the Senate purported to pass the same Bill. On 7 September 2017, the President assented to the Bill. The Bill was published in the Government Gazette, promulgated as law, and thereafter became known as Constitution of Zimbabwe Amendment (No.1) Act, 2017.

It is crucial to note, that, a few days prior to the President's assent, the applicant, and a fellow Member of Parliament, had filed an application, under case number CCZ57/17, in terms of section 167(2)(d) of the Constitution, alleging that the second respondent had failed to fulfil a constitutional obligation.

Subsequent to the promulgation of Constitution of Zimbabwe Amendment (No.1) Act 2017, the applicant, together with his fellow Member of Parliament aforesaid, filed another constitutional application, under case number CCZ58/17, on 13 September 2017. They alleged that the second respondent had failed to fulfil a constitutional obligation by its passing of a constitutional bill in the absence of a two-thirds majority as required by section 328 of the Constitution.

The applications under CCZ57/17 and CCZ58/17 were consolidated and heard on 31 January 2018. After hearing the parties submissions in respect of those applications, this Court reserved its judgment.

Pending the delivery of the judgment, the country underwent harmonised general elections on 30 July 2018. Thus, Parliament stood dissolved at midnight on 29 July 2018, the day before the first polling day of the general election in terms of section 143 of the Constitution.

On 31 March 2020, this Court passed judgment in respect of the applications under CCZ57/17 and CCZ58/17. That is, the judgment of Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20 (hereafter referred to as 'CC04-20').

The operative part of that judgment reads as follows:

“1. It is declared that the passing of Constitutional Amendment Bill (No.1) of 2017 by the Senate on 01 August 2017 was inconsistent with the provisions of section 328(5) of the Constitution, to the extent that the affirmative votes did not reach the minimum threshold of two-thirds of the membership of the House. Constitutional Amendment Bill (No.1) of 2017 is declared invalid to the extent of the inconsistency. The declaration of invalidity shall have effect from the date of this order but is suspended for a period of one hundred and eighty days, subject to the provisions of paragraph 1(b).

Accordingly, the following order is made –

(a) The proceedings in the Senate, on 01 August 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and are hereby set aside for the reason that a two-thirds majority vote was not reached in that House.

(b) The Senate is directed to conduct a vote in accordance with the procedure for amending the Constitution prescribed by section 328(5) of the Constitution within one hundred and eighty days of this order, failing which the declaration of invalidity of Constitutional Amendment Bill (No.1) of 2017 in paragraph (1) shall become final.

2. The applicants allegation, that, there was no vote in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

3. The applicants allegation, that a two-thirds majority was not reached in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

4. There is no order as to costs.”

For reasons that are not pertinent to the present application, the Senate failed to conduct another vote within the period that was set out in paragraph 1(b) of the judgment under CC04-20.

As a result, the first and second respondents, and the Speaker of the National Assembly, implored this Court, by application, to extend the period that had been set out for conducting a second vote under case number CCZ11/20. The application was heard on 10 November 2020 and judgment was reserved.

On 25 February 2021, judgment was delivered in that application as the judgment of President of the Senate & Ors v Gonese & Ors CC01-21 (hereafter referred to as 'CC01-21'). The order passed in CC01-21 reads:

“Accordingly, I make the following order:

1. The application is granted.

2. The period referred to in para (b) of the order handed down on 31 March 2020 is extended by a further ninety days from the date of this order.

3. Each party shall bear its own costs.”

I digress briefly to foreshadow that I will advert to more comprehensively later in this judgment.

In view of the above order, the Senate conducted another vote on the Constitutional Amendment (No.1) Bill of 2017.

On 4 May 2021, it passed the Constitutional Amendment Bill (No.1).

The applicant contends, that, the passage of the Bill in the manner aforesaid, on 4 May 2021, is unconstitutional.

He principally considers the second and third respondents to have failed to fulfil constitutional obligations in the passage of the Bill contrary to the provisions of section 147 of the Constitution.

The applicant also considers the impugned conduct of the respondents to have been accentuated by the simultaneous violation of his rights under section 56(1) of the Constitution.

However, this last contention does not appear to have been persisted in with much vigour and conviction considering that the applicant stated, unambiguously, that, his application was solely in terms of section 167(2)(d) of the Constitution. In fact, the amicus considers this as the applicant's “fringe” contention.

At any rate, in my view, there would be no need to invoke section 56(1) of the Constitution where the cause of action is one of failure to fulfil a constitutional obligation as that situation is specifically provided for sufficiently in section 167(2)(d) of the Constitution, and requires no additional colouring through such invocation: compare Central African Building Society v Stone & Ors SC15-21.

All the respondents opposed the application.

They deny that their conduct, in the passage of Constitutional Amendment (No.1) Bill of 2017, was in violation of section 147 of the Constitution. Instead, they contend, that, their actions are predicated on a valid order of this Court handed down under CC04-20. They also maintain that none of the applicant's rights was violated by their conduct....,.

On 15 March, the parties then advanced their oral submissions in respect of the application.

Counsel for the applicant stated, that, the critical issue for determination was whether the passage of Constitution of Zimbabwe Amendment (No.1) Act of 2017, on 4 May 2021, breached section 147 of the Constitution.

To him, the crucial thing was to assess the status of the Bill as of 29 July 2018, which is the date on which Parliament stood dissolved.

The date the judgment of this Court, in Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20 was delivered was immaterial.

Citing decisions of this Court and the Supreme Court, counsel for the applicant stated, that, the order of this Court in CC04-20 merely confirmed the invalidity of Constitution of Zimbabwe Amendment (No.1) Act, which occurred in August 2017 when that Act was purportedly passed. It was, therefore, not a licence for the Senate to violate section 147 of the Constitution.

Accordingly, he submitted, that, Constitution Amendment (No.1) Bill lapsed when Parliament was dissolved on 29 July 2018.

In respect of the allegations that the applicant's constitutional rights were violated by the conduct of the respondents, counsel for the applicant submitted, that, section 56(1) of the Constitution does not qualify the nature of protection afforded by the section. In his view, the subsection had the same meaning as the equivalent provision under the previous Constitution of Zimbabwe.

Regarding the relief sought by the applicant, counsel for the applicant emphasised that the applicant simply sought a declaration that the passage of Constitution of Zimbabwe Amendment (No.1) Act, on 5 May 2021, was in breach of section 147 of the Constitution.

He formally abandoned the second paragraph of the applicant's draft order set out above.

He added, that, should the Court grant the declaratory relief sought, the order should not have retrospective effect.

Counsel for the applicant also abandoned his preliminary challenges to the authorities of the deponents to the first and second as well as the third respondent's opposing affidavits.

Counsel for the first and second respondents indicated, that, he was persisting with the preliminary points that he raised:

(i) Firstly, he submitted, that, the Court had no jurisdiction as the applicant had improperly joined the President of the Senate to the President and Parliament in an application under section 167(2)(d) contrary to the judgment of this Court in Mliswa v Parliament of the Republic of Zimbabwe CC02-21.

(ii) Secondly, he submitted, that, the applicant had no cause of action because the conduct of the respondents was in compliance with an order of this Court.

On the merits, counsel for the first and second respondents stated, that, the retrospective application of the order passed in CC04-20 was limited. Further, the Court had the power to limit the retrospective application in terms of section 175(6)(b) of the Constitution. Therefore, the provisions of section 147 could not have been breached, so his submissions went.

Counsel for the third respondent also put up ardent opposition to the application.

Essentially, he took three points in response to counsel for the applicant's submissions. He prefaced those points by stating that there are three broad steps in the enactment of a law. These are:

(i) The consideration of a Bill by the National Assembly;

(ii) The consideration of the same Bill by the Senate;

(iii) The President's assent to the Bill as the last step;

Counsel for the third respondent's first point was, that, the Presidential assent to the Bill, in 2017, was not set aside by this Court. Therefore, there was no failure by the third respondent to “re-gazette” the Bill as the applicant had pleaded.

His second point was that when Parliament was dissolved, in July 2018, there was no Constitution Amendment (No.1) Bill. It had become an Act. This meant, that, the declaration by this Court could not have affected the status of that Act as it had limited retrospective effect.

Counsel for the third respondent's third point was, that, section 147 of the Constitution does not impose an obligation on the third respondent. In the absence of such, there cannot be a constitutional obligation that the third respondent breached.

All the respondents prayed for the dismissal of the application.

Mr Zhuwarara, the amicus curiae, made submissions last.

His first submission was, that, the moment the applicant adverted to violations in terms of section 85 of the Constitution, he was obliged to allege that a fundamental right was infringed and to seek relief that is consistent with Chapter 4 of the Constitution. He further submitted, that, the applicant failed to base his relief on Chapter 4 of the Constitution and that ought to be the end of the matter.

On the merits of the application, the amicus submitted, that, judgments of the Constitutional Court are final. On this basis, the judgment in CC04-20 could not be revisited.

While agreeing that the Constitutional Court cannot pass unconstitutional judgments, he stated that this was not the situation in casu.

Proceeding from this point, he added, that, in terms of section 175(6)(b) of the Constitution, this Court passes corrective orders. For this reason, the order of this Court, and the subsequent passage of the Bill by the Senate, did not violate the Constitution.

Mr Zhuwarara concluded his submissions by stating, that, the applicant's rights, in section 56 of the Constitution, could not have been violated because the applicant failed to identify a similarly positioned person who was afforded a favour.

The respondents raised several preliminary objections in these proceedings. However, in their oral submissions they emphasized and focused only on the following:

(a) That, there is no cause of action against the respondents.

(b) That, it was improper to cite the first respondent in an application under section 167(2)(d) of the Constitution.

While counsel for the first and second respondents is of the view, that, there cannot be any perceivable cause of action against the respondents as they were acting in accordance with an order of this Court, counsel for the third respondent considers the cause of action to be unclear.

Without exception, the Rules require an applicant to set out all essential averments that are necessary to clarify and motivate the cause of action: see Rule 14(4)(d) of the Constitutional Court Rules.

See also Apex Holdings (Pvt) Ltd (in liquidation) & Anor v Venetian Blinds Specialists CC11-19…,.

This rule is in line with the salutary principle of pleading, which has become the gold standard in our jurisdiction, that, an application stands or falls on the founding affidavit: see Kufa & Anor v President of the Republic of Zimbabwe & Ors CC22-17…,.; Chani v Justice Hlekani Mwayera & Ors CC02-20…,.; Chironga & Anor v Minister of Justice, Legal & Parliamentary Affairs CC14-20…,.; and Mpofu v ZERA & Ors CC13-20…,.

A failure to set out the cause of action entitles a respondent to seek the dismissal of an application as of right: see HERBSTEIN and Van WINSEN “The Civil Practice of the High Courts and the Supreme Courts of Appeal of South Africa” 5th Ed. Vol 1…,.

The requirements of an application made in terms section 167(2)(d) of the Constitution are that one must identify a functionary [the President/Parliament] and a constitutional obligation that the functionary is alleged to have failed to fulfil: see Chirambwe v President of the Republic of Zimbabwe & Ors CC04–21…,. and Mliswa v Parliament of the Republic of Zimbabwe CC02–21…,.

It automatically follows, that, the applicant cannot sustain a cause of action against the first respondent because the first respondent is not a functionary against whom an application in terms section 167(2)(d) of the Constitution can be made.

Thus, the case as against the first respondent stands to be struck off without further ado.

In respect of the second and third respondents, I am inclined to hold, that, there is a cause of action against those functionaries.

In his founding affidavit, the applicant does identify the second and third respondents as functionaries upon whom constitutional obligations rest. He also identifies the constitutional obligations that Parliament and the President failed to fulfil.

Against the President, he states that failure to gazette Constitutional Amendment Bill (No.1) of 2017 in terms of section 131(6) of the Constitution is an illegality. Against Parliament, he essentially alleges, that, it failed to respect the Constitution by conducting a vote on a Bill that had lapsed contrary to section 147 of the Constitution.

However, the truthfulness or otherwise of the applicant's allegations against the second and third respondents stands to be determined in the process of the assessment of the merits of his application.

Accordingly, I am satisfied that there is a cause of action against the second and third respondents in so far as the application is based on section 167(2)(d) of the Constitution.

This was an appeal against the whole of the judgment of the Administrative Court of Zimbabwe handed down on 7 September 2020 as case number ACC87/19, judgment number AC09-20.

The appeal was heard on 20 October 2021.

The court proceeded to give an ex tempore judgment. It dismissed the appeal with costs on a legal practitioner and client scale.

Written reasons have been requested by the appellant. These are they.

The facts of the matter are common cause. The appellant owns a piece of land known as Stand Number 18692 Boundary Road, Harare Township in the District of Harare, which lies within the second respondent's area of jurisdiction.

The first respondent is a Trust that advocates for the protection and preservation of wetlands for sustainable water provisioning within Harare.

The second respondent is the official of the third respondent which is the local planning authority for Harare.

The appellant intended to develop the site to build a church, a school, and a conference centre. It relied on a development permit issued by the third respondent.

The first respondent was opposed to the developments, hence, it noted an appeal in the court a quo.

The first respondent submitted in the court a quo, that, the development permit was unprocedurally issued in violation of its justice rights. It argued that the development permit was unlawful for the following reasons:

(i) That, the second respondent was a local authority and had no power to issue the permit in terms of the tenets of the Regional, Town and Country Planning Act [Chapter 29:12].

(ii) That, the request for the permit was not made in accordance with the application procedure prescribed by the same Act.

(iii) That, the application for the same had expired after three months and could not be relied upon for the current permit.

(iv) That, there was no public notice of the development permit application and consultation of the relevant stakeholders.

(v) That, the permit was vague because it did not clarify the description of the development making it impossible to ascertain the nature of the development proposed.

(vi) That, the development violated the beneficiaries Constitutionally protected environmental rights; and

(vii) That, it violated the Environmental Impact Assessment Certificate issued by the Environmental Management Agency which restricted the development to 0.8169 hectares of the wetland area.

In opposition of the appeal, the appellant argued, that, all the requisite consultations and processes for obtaining the development permit were complied with. It contended, that, the development permit was therefore procured in terms of the law.

It further argued, that, the site for the intended construction is not ecologically sensitive and is therefore suitable for construction.

The court a quo made the following findings:

The conditions spelt out in the development permit had nothing to do with the location of the proposed conference centre and they lacked specificity and precision. The appellant did not submit an application for a development permit as prescribed by the Regional, Town and Country Planning Act. The appellant, instead, applied for permission to change the use of Stand 18692.

The appellant did not give public notice of the application for a development permit or serve any such notice on every owner of the property adjacent to Stand 18692 as is required in the Regional, Town and Country Planning Act.

The development permit issued to the appellant contradicted the environmental impact assessment certificate which preceded and authorised the issuance of the purported development permit.

The development permit authorised erection of the buildings on 4.633 hectares whereas the environmental impact assessment certificate permitted development on only 0.8169 hectares of the property.

The court a quo consequently upheld the first respondent's appeal.

Aggrieved by that decision, the appellant noted the present appeal on the following grounds:

“GROUNDS OF APPEAL

1. The learned judge in the court a quo erred in finding that there was no application for a development permit.

2. The learned judge in the court a quo erred in not taking into account, that, the development permit would necessarily have to be read with the plans and drawings and would be subject to conditions imposed for the purposes of development.

3. The learned judge in the court a quo erred in law in finding, that, section 26(3) of the Regional, Town and Country Planning Act [Chapter 29:12] was applicable and erred in finding that it was a requirement to give public notice of an application for a development permit.

4. The learned judge in the court a quo erred in finding, that, the development permit contradicted the environmental impact assessment certificate and failed to place any emphasis or sufficient emphasis on the fact that the plans and drawings had been submitted.

5. The learned judge in the court a quo erred in finding, that, the fact that there was no acknowledgement of the application was fatal to the grant of the permit.”

Grounds 1, 2, 3 and 5 raised by the appellant challenge the court a quo's finding that there was no application for a development permit.

Ground 4 challenges the court a quo's finding, that, the development permit contradicted the environmental assessment certificate.

Ground 6 raises the issue of the first respondent's locus standi to participate in the matter before the court a quo, and, by extension, in this appeal.

Counsel for the appellant submitted, that, an application was made to the third respondent in compliance with section 26 of the Regional, Town and Country Planning Act. He further submitted, that, in the event that the court finds that section 26 of the Regional, Town and Country Planning Act was not strictly complied with there was substantial compliance, and, section 5 of the Interpretation Act [Chapter 1:01] would save the application.

Regarding the alleged contradiction between the environmental impact assessment certificate and the development permit, counsel submitted, that, the conditions specified in the certificate were, by implication, incorporated in the development permit.

The appellant's submissions on ground number 6 were that the first respondent, not having participated in the antecedent proceedings, had no locus standi to appeal against the grant of the permit.

Furthermore, that the first respondent's Deed of Trust does not empower it to act on behalf of the persons that it sought to represent.

Per contra, counsel for the first respondent submitted as follows:

The issue of the locus standi of the first respondent was not raised in the court a quo by the appellant. The court a quo, therefore, cannot be faulted for not determining an issue that was not before it.

Furthermore, the High Court. per CHINAMORA J, in Harare Wetland Trust & Anor v New Life Covenant Church & Others HH819-19 determined, that, the first respondent had locus standi to challenge the developments that the appellant was undertaking without a development permit.

The application relied on by the appellant did not comply with the peremptory requirements of the Regional, Town and Country Planning Development Regulations RGN 927/1976 as regards giving the public notice of the development and serving such notice on the property owners adjacent to the site.

Furthermore, and, in any event, the application, not having been determined within the stipulated three (3) months period, had been deemed refused by operation of law in terms of section 26(7) of the Regional, Town and Country Planning Act.

There were contradictions between the Environmental Impact Assessment Certificate (the EIAC) and the development permit as to the area of the property on which construction would be undertaken. Further, the conditions set out in the Environmental Impact Assessment Certificate (EIAC) were not included in the development permit, thereby creating the impression that there were no such restrictions imposed....,.

The sixth ground of appeal related to the question of the first respondent's locus standi.

The court a quo did not make any pronouncement on the question. The point is not properly before this Court.

This is so because, firstly, the matter was not raised a quo despite the first respondent's contention that it had been raised.

The issue which counsel for the appellant alluded to as having been raised by the appellant in the court a quo relates to the jurisdiction of the second and third respondents and not to the first respondent's locus standi.

The appellant's contention, on the first respondent's locus standi, therefore, seeks to make this Court a second court of first instance. This court cannot do so as it is an Appellate Court: see Lungu & Others v RBZ SC26-21.

The circumstances of this case do not warrant such a course of action.

Furthermore, and significantly so, in the related judgment by CHINAMORA J in Harare Wetland Trust & Anor v New Life Covenant Church & Others HH819-19 it was determined, that, the first respondent had the requisite locus standi to challenge the developments in issue as they were being undertaken without a development permit.

The appellant had challenged the first respondent's locus standi to apply for an order declaring the developments on Stand 1892 Boundary Road unlawful. CHINAMORA J remarked, at p9, that:

“In light of the objectives stated in their constituent documents, I am satisfied that the applicants have a direct and sufficient interest in the subject matter and outcome of the litigation before me, and are not mere meddlesome busybodies. The first applicant's principal concern is the conservation of the wetland area where construction work is being undertaken. That concern, in my view, implies a genuine interest in the health and well-being of the residents proximate to the construction area who may be affected by any interference with the riverbank or public stream that flows near the site. The locus standi of the second applicant has not been challenged. I will not dwell on that since the first respondent seems to have accepted that the second respondent has the right to represent the interests of residents in the neighbourhood of Newlands.”

It is the court's view, that, the core issues before the learned Judge emanated from the appellant's conduct of commencing developments on the property without a development permit.

The appellant had challenged the application, arguing that it was in possession of a development permit issued by the third respondent.

The court remarked, at p15, that:

“Consequently, I do not find anything in the letter of 9 May 2016 which authorizes the development.”

The question of a development permit was therefore one of the issues at the core of the application before CHINAMORA J.

Such an issue is a town planning issue and not just an environmental issue.

The pronouncement by CHINAMORA J, on the first respondent's locus standi, therefore related to the existence of a development permit.

The submission by counsel for the appellant, that, the learned Judge had been called upon to determine only environmental issues, and that the question of the first respondent's locus standi related to that issue only, therefore lacks merit.

The judgment by CHINAMORA J is extant. It has not been appealed against.

The appellant cannot therefore be seen to be challenging the finding in HH819-19 in this appeal.

This is an appeal against the entire judgment of the High Court (the court a quo) which placed the first respondent in final liquidation.

The first respondent, Versapak Holdings (Private) Limited (the company), is a juristic person incorporated in terms of the laws of Zimbabwe whereas the second respondent is the company's liquidator.

The company has three shareholders being:

(i) Sunko Mauritius (C15289); an offshore Mauritian company with a shareholding of 1,100 ordinary shares.

(ii) Versapak Employee Trust; with a shareholding of 73 ordinary shares.

(iii) Versapak Management Trust; with a shareholding of 49 ordinary shares.

The appellants have since acquired all the shares of the company with the result that it is now 100 per cent foreign owned.

The company is in the business of manufacturing expanded polythene products which have since been banned by Government through Statutory Instrument 84 of 2012, SI84 of 2012. Owing to the banning of its products, scarcity of foreign currency, and competition from cheap imports, the company fell on hard times. As a result, it became unviable as it was running at a loss.

This prompted the directors of the company to initiate the process of winding down the company.

On 14 December 2016, the company passed a special resolution authorising one Rangarirai Dadirai to commence the winding down process. They appointed the second respondent as the company liquidator.

The Resolution reads as follows:

“------------------------------------------------------------------------------------------
WRITTEN RESOLUTIONS OF THE DIRECTORS OF THE COMPANY
PASSED ON THE 14TH DAY OF DECEMBER 2016
----------------------------------------------------------------------------------------------

WINDING DOWN OF THE COMPANY

----------------------------------------------------------------------------------------------
SPECIAL RESOLUTION/S

IT IS HEREBY RESOLVED THAT:

1. The Company shall commence the winding down of its operations as it is no longer capable of operating profitably. The main factors leading to the crippling of the company, among others, are:

(a) The liquidity crunch and lack of foreign currency to pay for imported products and purchase raw material.

(b) Stiff competition from cheap imports which affected the sales of the Company.

2. The Company will be wound down in terms of section 206 of the Companies Act [Chapter 24:3]; that is, winding down by the Court.

3. Rangarirai Dadirai is appointed to sign all affidavits and documentation for purposes of process issued in the High Court of Zimbabwe in winding down the Company.

4. Rangarirai Dadirai be and is hereby authorised to appoint experts to assist in the attainment of the shareholders? Objective being the procedural winding up of Versapak Holdings (Private) Limited.

5. The liquidator of the Company shall be Mr Cecil Madondo of Tudor House Consultants.”

Pursuant to the special company resolution authorising the winding down of the company, it filed an exparte court application for a provisional order for its winding down. The application was duly supported by the Master's Report dated 7 March 2017.

The Provisional Order sought was granted ex parte, that is to say, in the absence of the other interested parties.

The order was crafted in the following terms:

“IT IS ORDERED THAT:

1. The applicant, Versapak Holdings (Pvt) Ltd, be and is hereby provisionally wound up pending the grant of an order in terms of paragraph 3 or the discharge of this order.

2. Subject to subsection (1) of section 274 of the Companies Act [Chapter 24:03], Cecil Madondo, of Tudor House Consultancy (Pvt) Ltd, is appointed as provisional liquidator of the above mentioned company with the powers set out in section 221(2)(a)–(g) of the Act.

3. Any interested party may appear before the court sitting at Harare on Wednesday the 15th of March 2017, to show cause why a final order should not be made placing the applicant company in liquidation and ordering that the costs of these proceedings shall be costs of liquidation.

4. The order shall be published once in the Government Gazette and once in the Herald newspaper in a Friday edition. Publication shall be in short form annexed to this order.

5. Any person intending to oppose or support the application on the return day of this order shall:

5.1. Give due notice to the applicant, on or before 10th of March 2017, at Nyakutombwa Mugabe Legal Counsel, 49 Old Enterprise Road, Newlands Harare, ref Joseph T Tazunguzwa.

5.2. Serve on the applicant a copy of any notice of opposition which he files with the Registrar of the High Court.”…,.

As can be seen, in respect of the time honoured audi alteram partem rule, the ex parte order provided a return date to afford all interested parties a chance to be heard on the issue before a final binding order could be made.

The return date was set for 15 March 2017.

It was widely published both in the Government Gazette and the Herald newspaper, and, it invited any interested person who had any objection to the final order sought to lodge their objection with the Registrar of the court a quo and also to appear on the return date.

For the avoidance of doubt, it read:

“In the petition of Versapak, Holdings (Private) Limited, applicant.

TAKE NOTICE that on Wednesday the 15th of February 2017, and before Mr Justice Foroma, the High Court at Harare issued an order for the provisional liquidation of Versapak Holdings (Private) Limited, and Cecil Madondo has been appointed provisional liquidator of the company.

Any interested person who wishes to oppose the winding up of the company shall file a notice of opposition with the Registrar of the High Court at Harare on or before the 10th of March 2017, and, shall serve a copy of the notice on the applicant's legal practitioners. He/she should then appear before the High Court at Harare at the hearing of this matter on 15th March 2017 to show cause why the company should not be wound up.

A copy of the application and of the full order granted by the court may be inspected at the office of the Registrar of the High Court at Harare, and the office of the applicant's legal practitioners – Joseph Tuzunguzwa c/o Nyakutombwa/Mugabe Legal Practitioners, 49 Old Enterprise Road, Newlands, Harare.”…,.

The return date was subsequently extended to 26 April 2017 by court order, under case number HC2304/17, on the same terms and conditions as before.

Any person intending to oppose the confirmation of the provisional order was now required to file their notice of opposition and serve a copy on the second respondent on or before 19 April 2017.

The appellants did not file any notice of opposition or serve a copy on the second respondent by the due date, as mandated by the provisional court order advertised in the Government Gazette and the Herald Newspaper.

The appellants, instead, filed a separate application seeking the discharge of the provisional order on the basis that it had been issued by mistake.

No founding affidavit was filed with the application for discharge of the provisional order. Only a supplementary affidavit for the application was belatedly filed on 21 April 2017 praying for an order discharging the provisional order on the return date which had already come and gone. They also sought an order directing the second respondent to return the cash and any documents belonging to the company.

The appellants did not apply for any condonation or reprieve for non-compliance with the court order.

The application was opposed by the second respondent resulting in both applications, in cases HC377 of 2020 and HC773 of 2017, being consolidated and referred to the opposed roll.

Both applications raised the substantive issue of whether the application for the winding up of the company should be confirmed or discharged.

At the commencement of the court hearing, the second respondent, however, raised three points in limine for determination.

In his first point in limine, the second respondent objected to the appellants locus standi, that is to say, their right to stand and be heard in the court a quo.

Counsel for the second respondent took a two pronged approach to attack the appellants locus standi:

(i) Firstly, he argued, that, the effect of the court order, placing the company on provisional liquidation, was to divest the appellants of their directorships in the company and vesting them in the second respondent in his capacity as provisional liquidator.

For that proposition of law, counsel placed reliance on the case of Volkskas BPK v Darrenwood Electrical (Pvt) Ltd 1973 (2) SA 386.

(ii) He further argued, that, the appellants had no locus standi because of their failure to comply with the mandatory terms of the provisional court order.

The appellants took the view, that, they had the necessary locus standi to appear and be heard in the court a quo.

Counsel for the appellants accepted, that, upon issuance of a provisional liquidation order, directors of a company lose their rights and powers which are vested in the provisional liquidator.

He, however, countered, that, despite having lost their power and rights as directors, they retain the residual power to challenge the liquidation process.

For that proposition of law, he placed reliance on the case of Thaw Trading & Investments 005 CC v Central Lake Trading 214 (Pty) Ltd (666/2012) [2013] ZANWHC 47 (30 May 2013 para 11-13).

Counsel complained, that, although the point was raised in the court a quo, the learned judge a quo did not determine the legal point raised.

As regards the second limb of the second respondent's argument, counsel for the appellants conceded, that, the appellants did not comply with the mandatory time lines set out in the provisional liquidation court order.

He however argued, that, the parties entered into a consent order in which they agreed to purge the appellants breach of the time-lines set out in the provisional court order.

It is convenient to deal with the procedural issue first as it has the potential of resolving all the other issues between the parties without delving into the substantive issues.

It is common cause that the appellants did not file and serve their notice of opposition by the due date of 19 April 2017 in terms of the mandatory provisions of the provisional liquidation court order.

It is also correct, that, the parties entered into a purported consent order which was not sanctioned by the court.

The purported consent order reads:

“IT IS ORDERED BY CONSENT THAT:

1. In the matter under case No. HC773/2017 (Ref Case No. HC2304/2017). The Provisional Liquidator, Dr Cecil Madondo, hereby agrees and consents to the late filing of the Notice of Opposition and opposing affidavit by Sunko (Mauritius) and Judex Burnett.

2. The late filing of the Notice of Opposition and opposing affidavit, by Sunko (Mauritius) and Judex Burnett, in the matter under case No. HC773/2017 (Ref Case No. HC2304/17), be and is hereby condoned and the Notice of Opposition and Opposing Affidavit, filed on 21 April 2017, in the said matter, be and is hereby deemed to have been properly filed of record.

3. The chamber application for condonation, filed under case No. HC6963/2017, is withdrawn.

4. The parties shall be at liberty to file Supplementary Heads of argument in the matter under case No. HC773/17 (Ref Case No. HC2304/2017) should they deem it necessary and shall proceed to set down the said matter for hearing on the opposed roll.

5. The costs of the application for condonation, filed under cases No. HC5341/2017 and HC6963/2017, shall be costs in the cause of this matter.

It is a misnomer to say, that, the above pact constitutes a court order because it was not given or signed by any court.

The effect of the so-called consent order is a futile attempt to alter the provisional liquidation order issued by the court a quo without its involvement and consent.

It is trite, that, once a court has made an order it binds all and sundry concerned.

Everyone bound by the court order has a duty to obey the order as it is until it has been lawfully altered or discharged by a court of competent jurisdiction or statute.

In Hadkinson v Hadkinson 19 522 All ER 567 (CA)…, ROMER LJ recited the duty to obey court orders with remarkable clarity when he said:

“It is the plain and unqualified obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it, unless and until that order is discharged. The uncompromising nature of the obligation is shown by the fact, that, it even extends to where the person affected believes it to be irregular or even void.”

What this means is that it was not within the parties power to agree to condone the appellant's failure to comply with the extant provisional court order. It was equally not within their power to extend the period of compliance beyond 19 April 2017.

The parties purported consent order was therefore a nullity and of no force or effect as it sought to usurp the function and powers of the court a quo.

The appellants disregard of the timelines set out by the court a quo triggered an automatic bar shutting them out from being heard by operation of law. Consequently, the appellants were effectively divested of their locus standi before the court upon default.

That being the case, the court a quo's finding, that the appellants had no locus standi, is beyond reproach.

That finding of fact effectively put the appellants out of court rendering it unnecessary to consider any submissions they would have made. This is for the simple but good reason, that, they were not entitled to be heard by the court a quo on any issue pertaining to the case.

The appellants disdain of the time lines laid down by a court of law could only be purged by that court, on the merits, in a proper application for condonation and extension of time within which to comply with the terms set out in the provisional order.

The appellants withdrawal of that application sounded the death knell for any lawful reprieve for the appellants considering that the court a quo had already issued a substantive order confirming the provisional order.

In the result, the Court finds that there is no substance in this appeal. Costs follow the result. There is no reason why the respondents should be burdened with costs incurred by persons with no locus standi. It is accordingly ordered, that, the appeal be and is hereby dismissed with costs.

This is an appeal and cross-appeal against parts of the judgment of the Special Court (for Income Tax Appeals) dated 11 October 2019 dismissing some of the appellant's objections against the respondent's amended assessments, and setting aside some of the respondent's amended assessments.

In this judgment, I will refer to the appellant as the main appellant and the respondent as the cross appellant.

The detailed facts of the case can be summarised as follows:

The main appellant is a company registered in terms of the laws of Zimbabwe and a subsidiary of Delta Corporation (the Holding Company). The two companies are separate and distinct from each other but share the same acronym. The holding company carries on business in the beverages and agro-industrial sectors of the Zimbabwean economy.

The cross-appellant is, in terms of the Income Tax Act [Chapter 23:06], the authority responsible for the collection of taxes in Zimbabwe.

In 1958, the predecessor to the holding company entered into an exclusive franchise agreement with a Canadian Company which owned the LL beverage trademark.

In 1970, two further trademarks, CB and CBL were included in the franchise agreement.

The last trademark, EL, was added to the franchise agreement in 2004.

The franchisee is the owner of four local beverage trademarks CL, BL, ZL and GPL. The parties interchangeably referred to trademarks as brands in their franchise agreements.

In terms of the 1970 agreement, the holding company had the right, subject to the terms and conditions of each agreement, to transfer, assign and sub-licence its subsidiaries to manufacture and sell the trademarked beverages. The holding company was obliged to pay to the franchisor royalty fees for the trademarks computed against prescribed sales and technical fees for the technical assistance provided and calculated on a cost-recovery basis.

Before the court a quo, evidence was led to the effect, that, in 2002, the Canadian Company was taken over by the Dutch company, International Management BV, which, in turn, executed an undated and unsigned Technical Support and Assistance (“TSA”) agreement with the holding company retrospectively to 1 January 2002.

The Dutch company was a subsidiary of SAB Miller International BV, an English public company.

The Dutch company undertook to provide, in person or by proxy, to the local holding company, its accumulated international expertise and know-how in the manufacture, management and distribution of beverages.

The Group of the holding company was defined as the holding company and “any existing and future subsidiaries.”

Know-how was elaborately defined to include all aspects of purchasing raw materials, product manufacture and brand development, plant and waste management, packaging and distribution, consumer research, and performance management systems.

The term subsidiary carried five different meanings which ranged from majority shareholder control, to majority votes garnered by agreement with other shareholders in financial policy, management, and supervision of the holding company by the Dutch company.

The term turnover encompassed Group gross sales revenue from all beverages and malt inclusive of taxes and excise duties.

Clause 3 contemplated the provision of know-how to the Group and “the relevant company in the Group” under the direction of the Board of the holding company.

The holding company undertook to do all such things and pass all such resolutions necessary to effect the terms of the agreement. It also agreed to ensure that its subsidiaries adopt, ratify, or confirm any lawful support rendered by the Dutch company to such subsidiaries.

In terms of clause 5, the holding company was responsible for the payment of an annual fee equal to 1.5 percent of the total Group turnover payable quarterly, on a pro rata basis, within 30 days after the end of each quarter.

The payment was to be in United States dollars, at the best available market rate in Zimbabwe, but, subject to the necessary exchange control and other Governmental approvals.

In the absence of foreign currency, the holding company would apply the fee to purchase its ordinary shares on behalf of the Dutch company in the name of an affiliate.

A new agreement was concluded on 1 September 2006 and renewed on 1 August 2011.

The Dutch company continued to provide know-how in the production, distribution, and management of beverages in the Group and the relevant company in the Group.

In the interim, on 30 April 2007, the holding company executed a royalty agreement with the Dutch company, International BV, which replaced the royalty agreement of 14 December 2001.

On 1 February 2008, the main appellant's Board of Directors resolved to execute an administrative and contractual services agreement with the holding company authorising the holding company to enter into administrative, technical, and contractual services arrangements with third parties on its behalf.

It resolved to be bound by such agreements and to bear the costs and benefits arising therefrom.

The contemplated Administrative, Technical and Contractual Service Agreement was concluded on 8 February 2008.

The main appellant bound itself to assume all royalty and exploitation of user rights and brands and trademarks agreements, services agreements, lease agreements, bonds, supplier contracts, employment contracts, and any other routine matters authorised for execution by the Board or its management executed by the holding company as its own.

On 19 August 2011, the exchange control authority granted authority to the holding company to pay royalties of up to 5 percent to the Dutch company less withholding tax.

Again, on 18 March 2013, the exchange control authority granted the main appellant authority to renew the Technical Services Assistance agreement and make payment of fees of up to 1.5 percent of the Group's annual turnover excluding sales of CBL, LL and EL less withholding tax and an additional 1 percent of the holding company's turnover less withholding tax on another product, CL, in recognition of the invention, design and know-how of the franchisor.

The turnover and fees were to be certified by a reputable firm of auditors.

On 14 April 2016, the cross appellant issued six (6) amended manual Notices of Assessment for Income Tax to the main appellant. The amended assessments related to the tax years ending on 31 December 2009, 2010, 2011, 2012, 2013 and 2014. The cross-appellant levied a payment by the main appellant of over US$42 million, including penalty and interest.

By letter dated 20 April 2016, the main appellant objected to the assessments.

In response, the cross appellant issued revised assessments and sent these to the main appellant without an explanation.

In its revised assessments, the cross-appellant conceded several issues raised by the main appellant in its objection and reduced the total amount claimed to around US$30 million.

By letter dated 9 May 2016, the main appellant revised and re-lodged further objections.

The cross appellant disallowed all grounds of the main appellant's further objections.

Aggrieved by that decision, the main appellant appealed to the Special Court for Income Tax Appeals.

The issues placed before the court a quo for determination, as per the joint pre-trial conference minute, are as follows:

“1. Whether or not the respondent was correct in disallowing royalties pertaining to the brands/trademarks?

2. Does the fact that a written technical services agreement exists between Delta Corporation and SAB Miller Management BV prevent the appellant from deducting such fee payments as expenses?

3. Did the appellant incur technical fees, which it sought to deduct as expenses?

4. Was the respondent correct in disallowing technical fees, which are expressed as a percentage of turnover?

5. Had Delta's tax affairs, relating to the tax year ending 31 December 2009, prescribed as at the date of the assessment?

6. If not, whether the respondent correctly disallowed the expenditure apportioned by the holding company as management charges?

7. Whether or not the respondent was correct in disallowing consumable stocks claimed by the appellant.

8. Whether or not the respondent was correct in disallowing prepaid expenses claimed by the appellant?

9. Is appellant entitled to deduct the inventory revaluation in question?

10. Whether or not the respondent was correct in disallowing expenses described as computer software cost in the tax computation?

11. Is respondent's imposition of penalties of 50% justified?

12. Whether or not interest should be payable by the appellant.”

After hearing the parties and perusing documents filed of record, the court a quo ordered that:

“1. The revised manual assessments numbers 0006754, 0006755, 0006756, 0006757, 0006758 and 0006759 issued by the Commissioner on 5 May 2016 for the tax years ended 31 December 2009, 2010, 2011, 2013 and 2014 respectively be and are hereby set aside.

2. The Commissioner is directed to issue further revised assessments that incorporate the contents of this judgment. He shall specifically:

(a) Allow in full the deductions claimed by the appellant for royalties and technical fees in respect of the 2009, 2010, 2011, 2012, 2013 and 2014 tax years.

(b) Reopen the 2009 assessment and add back the sum of US$150,722 in respect of head office expenses, to the appellant's taxable income.

(c) Add back all the deductions, if any, made by the appellant in respect of head office expenses to the appellant's taxable income for the years 2010 to 2014.

(d) Add back the deductions for consumable stock, in their respective amounts, to the appellant's taxable income in respect of each tax year in issue.

(e) Add back the prepayments, in their respective amounts, in each tax year in issue.

(f) Allow the deduction in the sum of US$603,792 in respect of the stock revaluation adjustment in the 2010 tax year.

(g) Add back the computer software deductions of US$2,059,238 in their respective amounts, in the 2013 and 2014 tax years.

(h) Charge a penalty of 10% on the additional tax payable in each respective tax year.

(i) Waive in full any interest from the additional tax.”

Aggrieved by the decision of the court a quo, the main appellant noted an appeal against part of the judgment to this Court. The cross appellant cross-appealed against part of the same decision.

The appeals were noted on the following grounds:

“1. The court a quo erred in law by holding, that, the legislative intent behind the Income Tax Act [Chapter 23:06] was clearly to match the expense incurred to the income produced in the same tax year.

2. The court a quo erred in law by holding, that, when determining the deductibility of the expense of unused consumables the relevant question was whether 'the appellant had an unconditional legal obligation to purchase' them.

3. The court a quo erred in law by finding, that, the appellant decided to 'purchase consumables in excess of its annual requirements' in circumstances where there was no evidence warranting such a finding before the court.

4. The court a quo erred by disallowing all deductions for consumable stocks in circumstances where it has found that deductions for consumables are allowed in the year when they were consumed.

Relating to issue 5: 'Prepaid expenditure'

5. The court a quo erred in law by apparently expecting opinion evidence, on a question of law relating to the requirement of paying excise duty, from a witness of fact.

6. The court a quo erred in law by appearing to hold, without expressly stating its finding, that, the appellant's obligation to pay excise duty on clear beer removed from the excise bonded warehouse constituted a 'premature discharge of a contingent liability.'

7. The court a quo erred in law by appearing to hold, without expressly stating its finding, that, the appellant's obligation to pay for an annual insurance premium that straddled two tax years constituted a 'premature discharge of a contingent liability.'”

“1. The Special Court for Income Tax Appeals erred in allowing as a deduction, in terms of section 15(2(a) of the Income Tax Act [Chapter 23:06], expenses relating to royalties in respect of each tax year in issue when the cross-respondent was not a party to the agreement in terms of which such royalties were payable.

2. The court a quo further erred in finding that payments made in respect of trademarks or brands were expenditure incurred for the purposes of the cross-respondent producing income.

3. The court a quo further erred in finding, that, the cross-respondent was entitled to pay fees in terms of the Technical Services Agreement which was concluded between Delta Corporation Limited and SAB Miller Management BV to which the cross-respondent was not a party.

4. The court a quo erred in finding, that, the cross-respondent was entitled to pay fees in terms of the Technical Services Agreement at the rate of 1.5% of turnover when it was clear that SAB Miller itself was charged fees on a cost-plus mark-up basis by its South African sub-contractors and when the Group policy was that the cost plus mark-up basis was the method of charging such fees.

5. The court a quo further erred in finding, that, the cross-respondent was entitled to pay and deduct the amount of US$603,792 in respect of inventory revaluation, as an expense incurred against its income in terms of section 15(2)(a) of the Income Tax Act when the value of the stock adjusted had already been factored into the computation of the gross profit which was subject to the income tax.

6. The court a quo further grossly erred in finding, that, the cross-appellant was not correct in imposing a penalty of 50% of the taxes due upon the assessments on the cross-respondent.

7. The court a quo further grossly erred in setting aside the interest imposed upon the cross-respondent when it was not shown that the Commissioner of the cross-appellant had been grossly unreasonable in imposing such interest at 10%.”

Counsel for the main appellant, in the main appeal, submitted, that, the appellant bought consumables which did not run out in the first year and were carried into the second year. He further submitted, that, deductions could only be made in the first year and that the matching principle did not apply.

Counsel for the appellant submitted, that, the matching principle cannot be used as it apportions costs over two tax years as there were un-utilised consumables carried over from the year of purchase.

He contended, that, the cause of action arose when the consumables were bought and the expense was incurred in year one. To that end, he argued that the appellant has to deduct the expenses of the purchases in year one and that there should be no splitting of the expenses into both years.

Counsel for the main appellant asserted, that, the statutory prepaid expenditure on record, establishes that the expenditure was incurred in terms of statute and cannot therefore be a prepayment as alleged by the respondent. He submitted, that, the court a quo was correct in allowing the deductions but it was not clear how it went on to make a finding in favour of the respondent.

Counsel for the main appellant submitted, that, the court a quo erred by disallowing all deductions for consumable stocks in circumstances where it had found that deductions for consumables are allowed in the year when they were consumed.

Concerning the fifth ground of appeal, relating to stock and trading stock, counsel for the main appellant argued, that, deductions were meant for stock in general to avoid double deductions.

On the imposition of penalties, counsel for the main appellant averred, that, the matter would have to be remitted to the court a quo for it to determine whether or not section 98 of the Income Tax Act applies.

In relating to the cross appellant's grounds of appeal number six and seven, on penalty and interest, counsel for the main appellant argued, that, the proceedings were neither an appeal in the strict sense nor a review, as the court a quo can consider evidence placed before it and come up with a decision on penalty and interest based on its own discretion.

On whether or not brands and trademarks contribute towards the making of income, counsel for the main appellant submitted, that, they significantly contribute in the making of income.

In respect of inventory revaluation, he submitted that they were correctly allowed in terms of paragraph 4 of the Second Schedule of the Income Tax Act.

In respect of the technical services, he argued that the court a quo correctly found that they were deductible.

Counsel for the cross appellant submitted, that, the consumables the main appellant sought to deduct were not utilized in the year of purchase, therefore, in terms of section 15(2)(a) of the Income Tax Act, one cannot interpret the section without taking into consideration the purpose for which the expense was incurred.

He argued, that, the matching principle applied as the purchase of consumables should be for the purpose of making an income in the tax year in which the purchases were made.

Counsel for the cross-appellant contended, that, the consumables were bought in excess and could not all be deducted in the same tax year. He submitted, that, the excess consumables were not consumed and did not generate income.

He further submitted, that, it is by the reasonable interpretation of the law that the matching principle must be applied.

He argued, that, the deduction for payments of royalties should not be allowed as there is no nexus between the main appellant and the holder of the royalties.

Concerning ground of appeal number two, he submitted, that, trademarks, brands, and the know-how generate little money unless advertised.

He further submitted, that, the advertising costs are deductible and that it is the advertising that generates income and that if the products are not advertised they remain as stock.

Counsel for the cross appellant asserted, that, there was no evidence proving that brands and trademarks contribute towards the making of income.

In relation to the main appellant's third and fourth grounds of appeal, he submitted, that, the court a quo found that the main appellant's witness was not a credible witness.

He contended, that, it was the SAB Miller policy to pay on a cost-plus mark-up basis, but, the court a quo found that the appellant was obliged to pay the holding company on a turnover basis of 1.5 percent.

Concerning prepayment of excise duty insurance premiums, counsel for the cross-appellant averred that the court a quo did not hear evidence on this issue as none was placed before it.

On technical fees, counsel for the cross-appellant submitted, that, the court a quo should have determined whether or not the agreement between the Dutch company and Delta Corporation (Private) Limited and that between the main appellant and Delta Corporation was not aimed at tax avoidance.

In respect of inventory revaluation, he submitted that the deduction should not have been allowed as that would amount to a double deduction.

Counsel for the main appellant submitted, that, the question of whether or not the main appellant was a party to the agreement was a factual finding on which the cross appellant had made a concession to the effect, that, the agreement was genuine.

He averred that the cross appellant's case was whether or not a deduction could be allowed, and, on the other hand, its case was that deductions were justified if there was an obligation to pay.

He therefore argued, that, the cross-appellant was approbating and reprobating.

In respect of the use of trademarks to make an income, counsel for the main appellant submitted, that, one can make an income from brands or trademarks, which is a sign of the quality of the product. He argued that section 8(1) of the Income Tax Act defines gross income and income in a way which establish that income can be generated by a brand or a trademark.

Counsel for the main appellant averred, that, the Exchange Control Act allowed the charging of these fees and sets an upper limit of 3 percent.

The appeals raise the following issues for determination:

1. Whether or not the court a quo correctly found, that, the legislative intent behind the Income Tax Act was to match the expenses incurred to the income produced in the same tax year and to allow the deduction of statutory prepayments which cover a period beyond the year of taxation in the tax year of payment.

2. Whether or not the court a quo erred in ordering the Commissioner to add back to the main appellant's taxable income deductions for consumables used to make an income in the year of taxation.

1. Whether or not the court a quo erred in allowing the deduction of royalties by the main appellant when it was not a party to the agreement between the Dutch company and its holding company for the use of the Dutch company's brands and trademarks.

2. Whether the court a quo erred when it allowed the main appellant's deduction of payments of technical services without resolving whether or not such deductions contravened section 98 of the Income Tax Act.

3. Whether the court a quo erred when it allowed the main appellant's deduction of US$603,792 for inventory revaluation.

4. Whether or not the court a quo was correct in reducing to 10 percent the 50 percent penalty imposed and waiving in full the interest charged.

It must be stressed, that, the Special Court for Income Tax Appeals is not a court of appeal in the strict sense because when it hears these appeals, it is a re-hearing of the matter and it exercises its own discretion. It can even hear and rely on evidence and submissions which were not placed before the Commissioner.

This position was stated in Sommer Ranching (Pvt) Ltd v Commissioner of Taxes 1999 (1) ZLR 438 (SC)…, where GUBBAY CJ emphasized that:

“Presently, it is well settled that in an appeal against a decision where the Commissioner exercised a discretion, the Special Court is called upon to exercise its own original discretion. Nor is it restricted to the evidence which the Commissioner had before him. The appeal to the Special Court is not only a rehearing, but, can involve the leading of evidence and the submission of facts and arguments of which the Commissioner was unaware: see also Commissioner for Inland Revenue v da Costa 47 SATC 87 (A) at 95; 1985 (3) SA 768 (A) at 775B-G; K v Commissioner of Taxes 1993 (1) ZLR 142 (S) at 147B-F; 55 SATC 276 (ZS) at 281.”

The appeal before the court a quo was therefore not merely a review of the correctness of the Commissioner's determination, but, the court was required to exercise its own independent discretion unaffected by that of the Commissioner....,.

It is the cross appellant's contention, in its first ground of appeal, that, the court a quo erred in allowing the deduction of royalties paid by the main appellant in terms of an agreement which did not relate to it but to Delta Corporation (Private) Limited, its holding company.

It further contented, that, the brands and trademarks for which royalties were being paid do not produce income and are therefore not allowable deductions in terms of section 15(2)(a) of the Income Tax Act.

Counsel for the main appellant argued, that, brands and trademarks produce income and are deductible in terms of section 15(2)(a) of the Income Tax Act.

The court a quo, in determining this part of the main issue, said:

“Mr Magwaliba argued that trademarks, without marketing and promotion, were worthless and incapable of producing any income. I agree with Mr Tivadar, that, that contention is incorrect for several reasons. The trademark or brand embodies the appearance, prestige, goodwill, reputation and taste of the trademarked beverage. In my view, the product and the trademark are indivisible.”

I respectfully agree with the reasoning of the court a quo.

A product's standing and marketability is enhanced by its trademark which has acquired a reputation and become desirable on the market.

The trademarks in issue are of international repute.

They, in my view, add value to the main appellant's beverages and make it possible for the appellant to make an income from the trademarked products.

It is apparent from the various agreements entered into between the franchisors and the holding company, that, what was being sought was to benefit from the reputation of the international brands and trademarks.

In respect of the royalties, the issue is whether or not the main appellant was a party to the agreements on the royalties which were to be paid for, or had ratified the agreements entitling it to claim its payments for them as deductions in its tax returns.

A reading of the record establishes, that, the agreements in terms of which royalties were payable were entered into by Delta Corporation or its predecessors in title and there is no specific mention of the appellant.

There is, however, mention of Delta Corporation's subsidiaries. It is common cause that the main appellant is a subsidiary of Delta Corporation (Private) Limited.

The main appellant sought to produce minutes of its Board of Directors to prove that it had ratified the contract in terms of which royalties were due.

The court a quo disregarded them as they had not been procedurally produced.

It was however the cross appellant's case, that, if there existed a resolution to the effect that the appellant ratified the agreement, such ratification would put the appellant's case beyond doubt.

However, of importance, and not refuted by the cross appellant, is the fact that the authenticity of the Administrative, Technical and Contractual Service Agreement was proved before the court a quo through the evidence of the main appellant's witness.

In its judgment, the court a quo, commenting on this issue, said:

“It seems to me, that, the authenticity of the Administrative, Technical and Contractual Service Agreement, of 8 February 2008, was established by the sole witness's evidence.

In that agreement, the appellant ratified the royalty agreement concluded by the holding company and accepted the extension of the 'user pays' principle to it. It accepted that the royalty agreement was contracted on its behalf. It was agreed that it was the sole user of the know-how and the three trademarks to which the royalty agreement related.

It does not seem to me, that, the respondent can properly protest, on behalf of the licensor, on the use of the know how and trademarks and the concomitant payments arising therefrom.

In my view, the agreement between the appellant and the holding company was valid and binding. It was not impugned by the respondent.

The appellant incurred the unconditional legal obligation to pay the licensor in terms of the Administrative, Technical and Services Agreement concluded with the holding company and the Royalty Agreement concluded between the holding company and the Dutch company.”…,.

The court a quo, relying on the evidence of the main appellant's witness, found the agreement, dated 8 February 2008, valid and binding.

This finding, and the cross-appellant's concession, proved that the deduction of royalties was in terms of the law.

In any event, evidence on record establishes, that, the cross appellant's main challenge cannot prevail because the Exchange Control Authority granted authority for the payment of those royalties.

The record proves, that, on 19 August 2011, the exchange control authority granted authority to the holding company to pay royalties of up to 5 percent to the Dutch company less withholding tax.

It is also on record, that, on 18 March 2013, the exchange control authority granted the appellant authority to renew the Technical Services Assistance agreement and make payment of fees of up to 1.5 percent of the Group's annual turnover excluding sales of CBL, LL and EL less withholding tax, and, an additional 1 percent of the holding company's turnover less withholding tax on another product, CL in recognition of the invention, design, and know-how of the franchisor.

The turnover and fees were to be certified by a reputable firm of auditors.

The court a quo also found, that, it was “common ground that the main appellant, and not the holding company, operated the beverages business in the Group.”

Once it is established, that, the main appellant is the one which operated the beverages business and benefited from the contract between the Dutch company and the holding company, it follows that it lawfully deducted the royalties it paid to the Dutch company.

This is an appeal against the whole judgment of the High Court handed down on 8 September 2020, declaring “that payment by the applicant (respondent) of the sum of RTGS$235,620=99 together with interest at the prescribed lending rate calculated from 19 February 2020 to the date of final payment shall be the full and final settlement of the respondent's (appellant's) debt.”...,.

The appellant is Homelink (Private) Limited, a registered money-lender in terms of the law. The respondent is a Zimbabwean national living in the diaspora.

On 17 August 2018, the parties entered into a loan agreement which came into effect on 30 October 2018. In terms of the agreement, the respondent was granted a loan in the sum of US$450,000 to purchase an immovable property, being a certain piece of land situate in the district of Salisbury called the remainder of Stand 251 Helensvale Township measuring 8,242 square metres in extent also known as 2 Denys Close, Helensvale, Harare.

The same Stand was also to be used as security for the loan. A mortgage bond was accordingly registered in favour of the appellant in the sum of US$450,000.

The parties also agreed that the interest applicable to the loan “shall be at a variable rate currently pegged at 10 percent per annum or at such rate as shall be determined by the Lender from time to time.”

Furthermore, that the interest “shall be calculated on the outstanding balance (at all times expressed in United States Dollars) at the prevailing interest rate.”

It was also agreed that repayments would commence on 30 October 2018 and that “the principal balance, interest, and charges accruing thereon shall have been paid in full by 30 September 2033.”

The parties also agreed, in clause 10, as follows:

“10 CHANGES IN CIRCUMSTANCES

10.1 If by reason of:

10.1.1 The introduction of any change in any applicable law or regulation, or any change in the interpretation or application thereof; or

10.1.2 Compliance by the Lender with any directive, request or requirement (whether or not having the force of law) of any Central Bank, Government, fiscal, or other authority;

10.1.3 It becomes unlawful or it is prohibited or it is contrary to such directive, request or requirement for the Lender to maintain the Loan or to give effect to any of its obligations, as contemplated by this Agreement, then, the Lender may notify the Borrower and the Borrower shall promptly prepay the Loan, together with all interest costs and expenses accrued thereon.”

At the time that the loan agreement was concluded, the United States dollar was the dominant legal tender along with other multi currencies.

Although the loan was expressed in United States dollars, it was disbursed in two parts or tranches.

US$5,685=85 was disbursed on 13 September 2018. The greater part of the loan, in the amount of US$444,341=15 was disbursed on 16 November 2018 - after the separation of the RTGS dollars and nostro foreign currency bank accounts and it was disbursed in RTGS dollars or local currency at the rate of one-to-one to the United States dollar.

The reason for disbursement of the greater part of the loan in RTGS dollars is unexplained in the papers.

In its opposing affidavit a quo, the respondent merely states as follows:

“The correct position is that S.I.33 of 2019 came into force on 22 February 2019. The sum of US$444,341=15…, was disbursed on 16 November 2018 as stated above.”

In his application in the court a quo, the respondent stated the crisp issue before the court as follows:

“The legal issue is whether or not the loan agreement, or the liability arising therefrom, falls within the ambit of section 4(1)(d) of S.I.33/2019 now incorporated in terms of section 22(1)(d) the Finance (No.2) Act 2019 and is therefore deemed to be in RTGS dollars at a rate of one-to-one to the United States dollar.”

As stated at the commencement of this judgment, the court a quo found in the respondent's favour. The court stated, at p8 of its judgment:

“The difficulty of the dispute of the parties is exacerbated by the fact that neither the Principal Act nor the Finance (No.2) Act of 2019 appears to have defined the phrase foreign loan and/or obligation.

However, insights into the same can be gleaned from what the Cambridge Dictionary states on that issue: dictionary.cambridge.org defines a foreign loan as a loan to, or from, a Government or an organisation in another country. The Longman Business Dictionary defines foreign loan as a loan to a country or organisation made by a foreign Government or financial institution.

It is evident, from the definitions which have been examined, that, the loan which the respondent advanced to the applicant does not fall under the definition of a foreign loan. Nor can the obligation which arises from the contract of the parties be classified/defined as a foreign obligation to the applicant. The loan has all the characteristics of a domestic loan which falls under the ambit of the provisions of the Act.”

The court found, at p9:

“The loan cannot, by any stretch of imagination, be defined as a foreign loan. It is, to all intents and purposes, a local loan which is classified as such because of the characteristics which are apparent on its face. It is, accordingly, properly covered under the provisions of the Act.”

The appellant was aggrieved by the court a quo's decision granting the declaratur sought by the respondent and it filed this appeal on the following grounds:

“1. The court a quo erred and misdirected itself in not giving effect to the parties agreement, namely, that, all repayments would be made in United States Dollars. Consequently, the court a quo made a contract on the parties behalf;

2. The court a quo erred and misdirected itself in not finding that the parties loan agreement was a foreign obligation within the contemplation of section 21(2)(b) of the Finance (No.2) Act 2019 and therefore continued to be payable in foreign currency.”

The appellant prayed for the success of his appeal and for the setting aside of the decision of the court a quo and the substitution thereof with an order dismissing the application with costs.

Counsel for the appellant submitted, that, the issue arising from the appellant's second ground of appeal is dispositive of this matter; the narrow issue being whether the court a quo was correct in finding that the loan agreement was not a foreign loan, within the contemplation of section 21(2)(b) of the Finance (No.2) Act of 2019, that continued to be payable in foreign currency.

It was his submission, that, the first ground of appeal will either be upheld or fall away depending on the finding thus made regarding the nature of the loan agreement. If it is a foreign loan, the first ground of appeal must succeed, but if not, then the first ground falls away, so he contended.

Counsel sought to buttress the appellant's stance, that the loan is a foreign obligation, by submitting that the loan in casu was issued on the strength of exchange control approval given by the Reserve Bank of Zimbabwe. He referred the court to a document at p65 of the record.

It is a letter dated 2 August 2019 authored by the Deputy Director, Foreign Investment, at the Reserve Bank of Zimbabwe and addressed to the Managing Director of the appellant. The body of the letter reads:

“Thank you for your letter dated 09 July 2019 regarding the request to continue issuing diaspora mortgages in foreign currency. We wish to advise that Homelink (Pvt) Ltd can continue to issue mortgages denominated in foreign currency to diaspora clients as authorised under Exchange Control authority GR4268 dated 26 October 2016.”…,.

To his credit, counsel readily conceded that the appellant's failure to attach to its papers the authority referred to as GR4268 placed the court a quo, and, by extension, this Court, in an invidious position as its contents are and remain unknown.

Counsel argued, that, the court a quo ought to have accepted and adopted a wider and more generous definition of a foreign loan or foreign obligation and that if it had done so, it would have found that the loan agreement in casu was a foreign obligation on the part of the respondent and that it therefore continued to be payable in United States dollars.

It was also counsel's submission, that, the disbursement of the loan in local currency was immaterial to the determination of the dispute as that was in accordance with the dictates of the agreement which clearly stipulated that repayments were to be made in United States dollars.

He placed reliance for this submission on the case of Magodora & Ors v Care International Zimbabwe 2014 (1) ZLR 397…, SC24-14 where this Court held that:

“In principle, it is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be onerous or oppressive. This is so as a matter of policy.”

Counsel for the respondent, on the other hand, submitted that the appellant's second ground of appeal relates to findings of fact and the conclusion made by the court a quo that the loan was a domestic loan. That being so, the principle relating to appellate courts not lightly upsetting findings of fact by lower courts applies.

Counsel submitted, that, the factual findings made by the court a quo were based on and supported by the evidence that was placed before the court.

He further submitted, that, on an application of the definitions that the court a quo had regard to and applied to the facts, one of the parties to the contract had to be a foreigner, and, in casu, neither of the parties was a foreigner.

Although the respondent was working in Ethiopia, the mere fact of him coming home to enter into the contract showed that it was a domestic loan. Furthermore, the respondent's domicilium citandi et executandi did not change his Zimbabwean domicile.

He further submitted, that, the agreement having been signed in Harare, Zimbabwe, by a Zimbabwean national and a Zimbabwean moneylender, for the sole purpose of the purchase of an immovable property in Zimbabwe, the loan was undoubtedly not a foreign loan.

Counsel argued, that, the disbursement of the greater part of the loan in RTGS dollars was another telling factor, further justifying and fortifying the court a quo's findings.

He submitted, that, there was thus nothing to warrant a finding by this Court that the court a quo's findings were irrational and therefore called for interference.

Regarding the appellant's first ground of appeal relating to sanctity of contract, counsel submitted, that, by enacting section 22(1)(d) of the Finance (No.2) Act, Parliament abrogated the said common law principle.

For convenience, the provision is reproduced hereunder:

“That, for accounting and other purposes (including the discharge of financial or contractual obligations), all assets and liabilities that were, immediately before the first effective date, valued and expressed in United States dollars (other than assets and liabilities referred to in section 44C(2) of the principal Act), shall, on the first effective date, be deemed to be values in RTGS dollars at a rate of one-to-one to the United States dollar.”

The issue for determination by this Court is whether or not the loan agreement entered into by and between the parties is a foreign loan which gave rise to a foreign obligation payable in foreign currency by the respondent.

This stated issue is dispositive of the appeal. This is so because, as rightly pointed out by the court a quo at pp10-11 of its judgment:

“Where the law speaks in clear and unambiguous terms about the substance of any matter, the intention of the Legislature should be respected as well as given respect to. That intention takes precedence over the parties intention as expressed in their contract.”

Section 4 of S.I. 33/2019 provides in relevant part:

“4(1) For the purposes of section 44C of the principal Act, as inserted by these regulations, the Minister shall be deemed to have prescribed the following with effect from the date of promulgation of these regulations (“the effective date”) –

(a)…,.

(b) That, Real Time Gross Settlement system balances expressed in the United States dollar (other than those referred to in section 44C of the principal Act) immediately before the effective date, shall, from the effective date, be deemed to be opening balances in RTGS dollar at par with the United States dollar; and

(c)…,.

(d) That, for accounting and other purposes, all assets and liabilities that were, immediately before the effective date, valued and expressed in United States dollars (other than assets and liabilities referred to in section 44C(2) of the principal Act), shall, on and after the effective date, be deemed to be values in RTGS dollars at a rate of one-to-one to the United States dollar.”

The provisions in section 4(1)(d) of SI 33/2019 (supra) were incorporated in the Finance (No.2) Act 2019, section 22(1)(d) of which provides:

“(1) Subject to section 5, for the purposes of section 44C of the principal Act, the Minister shall be deemed to have prescribed the following with effect from the first effective date -

…,.

(d) That, for accounting and other purposes (including the discharge of financial or contractual obligations), all assets and liabilities that were, immediately before the first effective date, valued and expressed in United states dollars (other than assets and liabilities referred to in section 44C(2) of the principal Act) shall, on the first effective date, be deemed to be values in RTGS dollars at a rate of one-to-one to the United States dollar.”…,.

The Finance (No.2) Act 2019 further provides, in section 22(4)(a), that:

“(4) For the purposes of this section -

(a) It is declared for the avoidance of doubt, that, financial or contractual obligations concluded or incurred before the first effective date, that were valued and expressed in United states dollars (other than assets and liabilities referred to in section 44C(2) of the principal Act), shall, on the first effective date, be deemed to be values in RTGS dollars at a rate of one to one to the United States dollar.”…,.

The appellant contends, that, by virtue of the provisions of section 44C(2)(b) of the principal Act, the respective assets and liabilities of the parties in casu are excluded from the effects of section 4(1)(d) of SI 33 of 2019.

Section 44C(2) of the principal Act (the Reserve Bank of Zimbabwe Act [Chapter 22:15] provides as follows:

“(2) For the avoidance of doubt, it is declared that the issuance of any electronic currency shall not affect or apply in respect of -

(a) Funds held in Nostro foreign currency accounts, which shall continue to be designated in such foreign currencies; and

(b) Foreign loans and foreign obligations in any foreign currency, which shall continue to be payable in such foreign currency.”

In Zambezi Gas Zimbabwe (Pvt) Ltd v N.R. Barber (Pvt) Ltd & Anor SC03-20 (Zambezi Gas), at p9, this Court concluded:

“In interpreting section 4(1)(d), regard should be had to assets and liabilities which existed immediately before the effective date of the promulgation of S.I.33/19. The value of the assets and liabilities should have been expressed in United States dollars immediately before 22 February 2019 for the provisions of section 4(1)(d) of SI33/19 to apply to them.

Section 4(1)(d) of S.I. 33/19 would not apply to assets and liabilities, the values of which were expressed in any foreign currency other than the United States dollar immediately before the effective date….,.

It is the assessment and expression of the value of assets and liabilities in United States dollars that matters.

Section 4(1)(d) of SI 33/19 is specific as to the type of assets and liabilities that are excluded from the reach of its provisions. The origin of the liabilities is not a criterion for exclusion….,.

What brings the asset or liability within the provisions of the statute is the fact that its value was expressed in United States dollars immediately before the effective date and did not fall within the class of assets and liabilities referred to in section 44C(2) of the Reserve Bank of Zimbabwe Act [Chapter 22:15] (“the principal Act)….,.”

It is without doubt, that, Zambezi Gas Zimbabwe (Pvt) Ltd v N R Barber (Pvt) Ltd & Anor SC03-20, having interpreted and clarified the law, the appellant can only succeed in this appeal if it can show, that, the loan agreement in casu is a foreign loan and that the court a quo therefore erred and misdirected itself in coming to a contrary conclusion.

The inescapable facts that the court a quo properly paid regard to are that the lender and the borrower in the loan agreement were both Zimbabweans, albeit an institution and an individual; the loan agreement was executed in Zimbabwe; the sole purpose of the loan was the purchase of an immovable property situated in Zimbabwe; the loan was largely disbursed in local currency, except for a small portion that was disbursed earlier in United States dollars at a time when the United States dollar was one of the legal tender currencies.

Sight is not lost to the fact, that, the above are factual findings made by the court a quo.

No irrationality was alleged or shown in the making of such findings. No specifics were provided as to the nature and source of the “generous” or 'wider' definition of “foreign loan” or 'foreign obligation' that the court a quo is criticised for not having had regard to.

The contention, that, the exchange control approval that was given by the Reserve Bank of Zimbabwe (RBZ) was proof that this was a foreign loan was not supported by documentary evidence. No explanation was proffered as to why the alleged document, which does not form part of the papers, was not relied on and availed by the appellant.

In any case, it is beyond the scope of the Reserve Bank of Zimbabwe (RBZ) to convert what is factually a domestic loan into a foreign loan.

In view of the strenuous submissions made in urging this Court to consider this aspect favourably for the appellant, this would appear to be an omission by the appellant of a crucial document.

It is trite, that, a court decides a matter on the basis of the evidence that is placed before it.

It therefore follows, that, the court a quo cannot be faulted for failing to take into account evidence that was not placed before it. The court a quo would face severe criticism if it had done so.

The court thus correctly found, that, the loan agreement was not a foreign loan and did not create a foreign obligation on the respondent's part.

In Breastplate Service (Private) Limited v Cambria Africa PLC SC66-20, at pp9-10, this Court stated:

“Section 44(C)(2)(b) of the Reserve Bank Act, as inserted by section 3(1) of the 2019 Regulations, makes it clear that the issuance of any electronic currency, i.e. RTGS dollars, shall not affect or apply to any foreign obligation. This is reinforced by section 4(1)(d) of the Regulations which explicitly excludes foreign obligations valued and expressed in United States dollars from the deemed parity valuation in RTGS dollars.”

With the factual finding made a quo, that, the loan agreement was not a foreign loan which created a foreign obligation, and the appellant having failed to show the error or misdirection therein, the appellant must accept and submit to the clear dictates of the law.

No basis having been established for this Court to upset the court a quo's findings and consequent conclusion, it is our view that this appeal has no merit.

The emphasis on motivating the appellant's second ground of appeal, and the submission that the first ground would only become relevant if the appellant succeeded on the second ground of appeal effectively translates to the above discourse sealing the appellant's fate.

Notably, it would also be absurd for the appellant to be paid United States dollars for a loan that it largely disbursed in local currency.

The argument that it must be so because the loan agreement stipulated that repayments were to be in United States dollars is a roundabout way of surreptitiously resorting to the first ground of appeal which the appellant clearly realized did not stand scrutiny.

Costs will follow the cause.

We are not satisfied that they should be on the scale of legal practitioner and client as urged by the respondent. In our view, there is no legal basis that has been given that would warrant an award of costs on a higher scale.

It is accordingly ordered as follows:

The appeal be and is hereby dismissed with costs.

This is an appeal against the whole interlocutory judgment of the High Court (the court a quo) sitting at Harare dated 5 June 2019.

The court a quo found that it had jurisdiction to hear and determine the appeal involving a chieftainship dispute.

Leave to appeal was granted by the court a quo on 4 October 2019.

The dispute in this matter revolves around the question of the right to rule the Chimombe clan. The wrangle highlights the issue which has been vexing the court a quo for some time. Various decisions have emanated from the High Court on whether or not they have the jurisdiction to determine matters relating to chieftainship disputes.

The appellant was appointed as Chief Chimombe in terms of the Traditional Leaders Act [Chapter 29:17]. The date of his appointment is not apparent from the papers. He is currently the substantive Chief Chimombe.

In 2010, following the appellant's appointment as Chief, a dispute arose between the appellant and the first to sixth respondents (Ndaveni Wedzerai, Mudyanadzo Chimombe, John Mudyanadzo, Abias Bote, Shamu Mudyanadzo and Tsaurai Mudyanadzo) ('the respondents) concerning his appointment.

The respondents instituted legal proceedings under HC8077/10 challenging the appointment of the appellant as the chief. They alleged that the appellant's appointment as Chief Chimombe was wrong, illegal, and against the customary practice of the Chimombe family and the Karanga clan. They asserted that as members of the Mudyanadzo dynasty, they were the rightful heirs to the chieftaincy.

The respondents based their argument on the contention, that, the Chimombe Chieftainship devolves only in the Mudyanadzo family and does not extend to descendants of his brothers. They contended that the appellant, not being a direct descendant of Mudyanadzo-Chimombe clan, was not eligible to the throne of Chief Chimombe.

The respondents argued, that, the installation of the appellant by the seventh and eighth respondents (Minister of Local Government and District Administrator, Gutu) was wrong, unprocedural, and contrary to the Chimombe clan or generality of the Karanga tribes of Masvingo.

They further contended, that, the appellant's chieftainship violated the provisions of the Traditional Leaders Act [Chapter 29:17] ('the Traditional Leaders Act'). As such, the respondents sought an order nullifying and setting aside the appellant's appointment as chief.

The seventh and eighth respondents (Minister of Local Government and District Administrator, Gutu) opposed the application and filed a special plea to the effect, that, the High Court had no jurisdiction to deal with the matter as the sole discretion to deal with chieftaincy matters rested with the President in terms of the Traditional Leaders Act as read with section 31K of the Constitution of Zimbabwe (1980) ('the old Constitution').

The court, under HH413-12, upheld the special plea in bar and dismissed the first to sixth respondents claim.

The respondents consequently appealed to this Court under SC362/12. This Court allowed the appeal, set aside the judgment under HH413-12 and made an order for continuation of the trial.

Upon remittal of the matter, the appellant raised a point of law relating to whether or not the High Court had jurisdiction to hear the matter.

The appellant contended, that, the jurisdiction of the High Court to hear the matter was ousted by section 283 of the New Constitution of Zimbabwe Amendment (No.20) Act 2013 ('the Constitution'). His argument was that the new provision in the Constitution provides that any dispute concerning chieftainship is now dealt with by the President.

The respondents, on the other hand, maintained that the High Court had jurisdiction to hear the matter on the basis that the matter had commenced prior to the coming into effect of the Constitution. As such, they argued that it is a principle of statutory interpretation that the legislature will not take away existing rights in retrospect unless the law specifically states the same.

The parties agreed that the matter would proceed by way of a Stated Case.

After hearing the parties submissions, the court a quo determined that it had jurisdiction to deal with the dispute concerning the chieftainship of the appellant. It reasoned, that, since the summons in the case had been issued in 2010, before the coming into effect of the Constitution, which now provides that the mandate to handle such disputes is in the office of the President, it had jurisdiction to hear the matter.

Aggrieved by the court a quo's findings, the appellant noted an appeal to this Court on the basis of the following grounds:

“1.The court a quo grossly erred in finding that it had jurisdiction to determine the matter.

2. The court a quo committed an error in law in its interpretation of paragraph 18(9) of the sixth schedule of the Constitution of Zimbabwe which led it to come to a wrong conclusion.”

In motivating the appeal, counsel for the appellant argued, that, the gravamen of the matter was that the court a quo had no jurisdiction to hear the matter.

Counsel submitted, that, section 283 of the Constitution sets out the procedure relating to resolution of chieftainship disputes. Counsel further argued, that, the position of the law is that chieftainship wrangles must now be resolved by the President, on the recommendations of the Provincial Assembly of Chiefs.

It was his submission that the section is unambiguous as it is expressed in clear terms.

He further submitted, that, the legal position is that the power to appoint, remove, or suspend a chief is a responsibility exclusively bestowed upon the President of Zimbabwe.

Counsel thus contended, that, the court a quo misdirected itself in finding that it had jurisdiction to hear the matter when its jurisdiction was ousted by section 283 of the Constitution.

Counsel subsequently sought to have the appeal allowed coupled with an order setting aside the court a quo's judgment.

Counsel for the respondent, per contra, argued that, from the record, it was clear that the matter had commenced before the court a quo in 2010. This was before the advent of the Constitution, and, as such, the law could not apply with retrospective effect.

He submitted that there was nothing in the language of the section that would imply an intention to have retrospective application.

He contended, that, paragraph 18(9) of the Sixth Schedule to the Constitution provides that all cases that were pending before any court before the effective date shall continue before that court and the procedure to be applicable to those cases must be the procedure that was operating before the effective date.

He thus argued, that, the court a quo had correctly found that it had jurisdiction to deal with the matter considering the fact that the first to sixth respondents rights, under section 31K of the old Constitution, were not taken away by the coming into effect of the new Constitution which has no retrospective application.

Only one issue arises for determination from the appellant's grounds of appeal and submissions made by counsel before this Court. We are also indebted to the appellant's counsel for filing supplementary heads of argument.

The issue for determination by this Court is whether or not the court a quo erred in finding that it had jurisdiction to hear and determine the application before it.

Section 283 of the Constitution, which has triggered this dispute, provides as follows:

“283 An Act of Parliament must provide for the following, in accordance with the prevailing culture, customs, traditions, and practices of the communities concerned -

(a) The appointment, suspension, succession, and removal of traditional leaders;

(b) The creation and resuscitation of chieftainships; and

(c) The resolution of disputes concerning the appointment, suspension, succession, and removal of traditional leaders; but -

(i) The appointment, removal, and suspension of Chiefs must be done by the President on the recommendation of the provincial assembly of Chiefs through the National Council of Chiefs and the Minister responsible for traditional leaders and in accordance with the traditional practices and traditions of the communities concerned;

(ii) Disputes concerning the appointment, suspension, and removal of traditional leaders must be resolved by the President on the recommendation of the provincial assembly of Chiefs through the Minister responsible for traditional leaders;

(iii) The Act must provide measures to ensure that all these matters are dealt with fairly and without regard to political considerations;

(iv) The Act must provide measures to safeguard the integrity of traditional institutions and their independence from political interference.”

Section 283(c)(ii) of the Constitution thus provides for the settlement of disputes concerning the appointment, suspension, and removal of chiefs. Such disputes must be resolved by the President, on the recommendation of the Provincial Assembly of Chiefs through the Minister responsible for traditional leaders.

The above provision was introduced in order to provide a domestic resolution mechanism for disputes on the appointment and removal of chiefs which had become rampant.

It should be noted that section 283 of the Constitution further provides that an Act of Parliament must provide for the above mechanism.

In dealing with a matter that called for the interpretation of section 283 of the Constitution, PATEL JA…, had this to say in Marange v Marange & Others SC01-21:

“…,. Section 283 of the Constitution does not constitute the actual code that governs the appointment and removal of chiefs or the resolution of disputes in that connection. What section 283 does is to enunciate the template to be applied in the formation and implementation of that code…,.

As I have already stated, section 283 of the Constitution is not a substantive provision that impacts directly on the law governing the appointment and removal of traditional leaders. Rather, it declares what that law should provide in regulating, inter alia, the resolution of chieftainship disputes.

Consequently, it cannot be construed, per se, as ousting the jurisdiction of the courts over such disputes.”

It appears from the above case, that, section 283 of the Constitution cannot be construed as a substantive provision. It merely allows the Legislature to craft a law that will operationalize the Constitutional provision.

The Traditional Leaders Act, which deals with such issues, has not been amended following the coming into effect of the Constitution.

It is however of note that paragraph 10 of the Sixth Schedule of the Constitution provides that existing laws must be construed in conformity with the Constitution.

It seems to me, that, even if it is accepted that section 283 of the Constitution may be construed as a substantive provision, there is nothing in its wording that seems to indicate that it has retrospective application or that it ousts the inherent jurisdiction of the High Court.

The Traditional Leaders Act, which is the legislation in force for the appointment and removal of Chiefs, does not appear to oust the jurisdiction of the High Court in any way.

Section 283 of the Constitution was introduced in the Constitution and only came into operation in May 2013.This was after summons had been issued in this matter in 2010.

The principles applicable in order to determine the question of whether or not a statute is intended to operate retrospectively, and take away accrued rights, have been stated in numerous cases.

In Curtis v Johannesburg Municipality 1906 TS 308…, INNES CJ said:

“The general rule is that, in the absence of express provision to the contrary, statutes should be considered as affecting future matters only; and, more especially, that they should, if possible, be so interpreted as not to take away rights actually vested at the time of their promulgation.”

In Bell v Voorsitter Van Die Rasklassifikasieraad En Andere 1968 (2) SA 678 (A), which is in Afrikaans, the head note states that:

“It is clear that our law accepts the rule, that, where a statutory provision is amended, retrospectively or otherwise, while a matter is pending, the rights of the parties to the action, in the absence of a contrary intention, must be decided in accordance with the statutory provisions in force at the time of the institution of the action.”

In Agere v Nyambuya 1985 (2) ZLR 336 (S)…, GUBBAY JA…, stated the general rule as follows:

“It is a fundamental rule of construction in our law, dating probably from Codex 1:14:7, that there is a strong presumption that retrospective operation is not to be given to an enactment so as to remove or in any way impair existing rights or obligations unless such a construction appears clearly from the language used or arises by necessary implication. For instance, where it is expressly retrospective, or deals with past events, or concerns a matter of procedure, practice or evidence. The supposition is that the Legislature intends to deal only with future events and circumstances.”

Lastly, in Nkomo and Anor v Attorney-General and Ors 1993 (2) ZLR 422 (S) GUBBAY CJ…, said:

“Care must always be taken to ensure that retrospectivity is confined to the exact extent which the section of the Act provides.”

From the above authorities, it seems to me, that, the guidance emanating from the jurisprudence of our courts is that:

(i) Firstly, where the Legislature intends that a provision should have retrospective effect, it states so in clear and unequivocal terms: see also CRAIES on Statute Law, seventh edition…,.

(ii) Secondly, section 283 of the Constitution does not have retrospective application. There is nothing contained in section 283 of the Constitution or the Traditional Leaders Act that shows an intention to oust the jurisdiction of the High Court in determining disputes relating to the appointment and removal of traditional leaders that had already commenced before the effective date.

As was stated in Marange v Marange & Others SC01-21, Parliament is at large, subject to the Constitution, to curtail or oust the jurisdiction of any court.

However, any such ouster must be effected in clear and unambiguous terms.

In this case, even if section 283 of the Constitution were to be regarded as a substantive provision, I am unable to discern anything in its language that might be construed as meant to curtail or oust the jurisdiction of the High Court.

There is also nothing contained in the Traditional Leaders Act which might be taken as effecting any such ouster.

It should be noted, that, section 283 of the Constitution must be read in conjunction with paragraph 18(9) of the Sixth Schedule to the Constitution which provides as follows:

“(9) All cases, other than pending constitutional cases, that were pending before any court before the effective date, may be continued before that court or the equivalent court established by this Constitution, as the case may be, as if this Constitution had been in force when the cases were commenced, but:

(a) The procedure to be followed in those cases must be the procedure that was applicable to them immediately before the effective date; and

(b) The procedure referred to in subparagraph (a) applies to those cases even if it is contrary to any provision of this Constitution.”

Paragraph 18(9) of the Sixth Schedule to the Constitution is clearly a transitional provision dealing with procedure that affects cases which would have commenced before the effective date.

It is a common law principle, that, a statute dealing with procedure applies retrospectively to govern all pending and future proceedings, unless it is provided otherwise: CRAIES on Statute Law, seventh edition. Paragraph 18(9)(a) of the Sixth Schedule of the Constitution is such provision which provides contrary to the common law.

It thus alters the common law position.

Paragraph 18(9)(a) of the Sixth Schedule allows a matter which has commenced before the effective date of the Constitution to continue in terms of the old procedure. Paragraph 18(9)(b) of the Sixth Schedule leaves the matter in no doubt and expressly provides, that, even if the procedure is contrary to the new Constitution the old procedure should be followed.

It should also be noted, that, paragraph 18(10)(b) of the Sixth Schedule places it beyond doubt that section 283 of the Constitution does not divest the High Court of its jurisdiction.

It states, that, for the purposes of paragraph 9, a civil case is deemed to have commenced when summons were issued or the application was filed before a court as the case may be.

In casu, summons were issued in 2010 - long before the Constitution came into operation.

The provisions of section 283(c)(iii) of the Constitution can only be interpreted as becoming operational relating to matters that arose after the commencement of the Constitution in 2013.

For the above reasons, the court a quo was correct in finding that it had jurisdiction to entertain the matter.

I was not persuaded by the appellant's submission, that, section 283(c)(ii) of the Constitution has retrospective application and has the effect of ousting the jurisdiction of the High Court.

I was also not persuaded by the appellant's submission, that, the interpretation of section 283 of the Constitution which was given in Marange v Marange & Others SC01-21 does not apply to the present facts.

I take the view, that, the interpretation given to section 283 of the Constitution in Marange v Marange & Others SC01-21 is of general application and is not just restricted to reviews.

Whilst I accept that in Marange v Marange & Others SC01-21 the court was dealing with a review in terms of section 26 of the High Court Act; in my view, this does not affect, in any way, the finding in Marange v Marange & Others SC01-21 that section 283 of the Constitution does not have retrospective application nor does it oust the jurisdiction of the High Court.

It is clear from the facts that in Marange v Marange & Others SC01-21, the court was dealing with a matter that had commenced after the promulgation of the Constitution. The court, however, still found that the jurisdiction of the High Court had not been ousted.

It is also important to note, that, the High Court has original jurisdiction to deal with all civil and criminal matters. Section 171(1)(a) of the Constitution provides:

“171 Jurisdiction of High Court

1. The High Court -

(a) Has original jurisdiction over all civil and criminal matters throughout Zimbabwe.”

This section must be read together with section 13 of the High Court Act [Chapter 7:06] which reads as follows:

“13 Original Civil Jurisdiction

Subject to this Act and any other law, the High Court shall have full original civil jurisdiction over all persons and over all matters within Zimbabwe.”

The original jurisdiction of the High Court is unlimited, that is to say, it can hear and determine any civil dispute, whatever the nature of the claim.

Since section 283 of the Constitution and the Traditional Leaders Act both do not expressly oust the jurisdiction of the High Court from determining traditional leadership disputes, it follows that it still maintains its unlimited original jurisdiction over such matters.

The court a quo correctly found that it had the requisite jurisdiction to hear the matter.

Section 283(c) of the Constitution has vested the power to deal with disputes relating to chieftainship in the President as a domestic resolution mechanism. It is not a substantive provision as it requires operationalization through an Act of Parliament.

The provision does not have retrospective application. It does not oust the inherent power of the High Court to determine such matters.

The matter commenced before the court a quo prior to the coming into force of the Constitution in 2013. It was therefore pending when the Constitution was promulgated. That being the case, it must proceed in terms of paragraph 18(9) of the Sixth Schedule of the Constitution.

The respondents have been successful, and, as is the norm in respect of such a party, they are entitled to their costs.

In the result, it is ordered as follows:

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

2. For the avoidance of doubt, the matter is remitted to the court a quo for continuation of trial in terms of the Rules of that Court.

In this urgent chamber application, the applicants seek a provisional order couched as follows:

“TERMS OF THE FINAL ORDER SOUGHT

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

(1) That a stay of execution of the order given in CHN286/19 be granted pending application in the High Court for condonation for late filing of leave to appeal.

(2) In the event that this matter is opposed, that the Respondents be and are hereby ordered to pay costs.

Pending finalisation of this matter, an interim order is hereby granted in the following terms:

IT IS ORDERED THAT:

1. This application succeeds and a stay of execution of the judgment in the Chinhoyi Magistrates Court, under case number CHN286/19, be and is hereby granted to the applicants pending application in the High Court for condonation for late filing of leave to appeal to the Supreme Court.”

In early 2000, at the height of the land reform programme, the applicants and many others moved to occupy Heydon Farm on the outskirts of Harare. They proceeded to build family homes and to engage in agricultural activities.

Subsequently, the whole of Heydon Farm was compulsorily acquired by the State and a notice to that effect was published in the Government Gazette in terms of the Land Acquisition Act [Chapter 20:10].

Contrary to their expectations, none of the occupiers were favoured with either offer letters, permits, or lease agreements which documents would have regularised their stay at Heydon Farm.

Instead, part of the farm was subdivided into residential Stands with title deeds and sold to various persons.

This formalised part of the farm is referred to as Heydon Township.

The respondents, who are husband and wife, bought one of these residential stands, described as Stand 2915 Haydon Township, measuring 2193 square metres, and received title.

It is common cause, that, at the time of sale and transfer the applicants were resident at what became the respondents residential Stand. It is also common cause that the applicants have no legal basis to occupy Heydon Farm in general or the respondents Stand in particular.

In order to assert their proprietary rights, the respondents approached the Magistrates Court at Chinhoyi seeking an eviction order against the applicants. Their application succeeded and an order for the eviction of the applicants from Stand 2915 Haydon Township was granted under case number CHN286/19.

Aggrieved with that outcome, the applicants noted an appeal with the High Court (the court a quo). The court a quo dismissed the appeal and confirmed the eviction order granted by the Magistrates Court.

The respondents then noted an appeal with this Court under case number SC277/20 which appeal suspended the order of the court a quo.

Undeterred, the respondents filed an application for leave to execute pending appeal. The application was granted by CHITAPI J under case number HC3097/20.

The applicants noted an appeal against that judgment under case number SC441/20. The appeal was struck off the roll on the grounds that leave to appeal ought to have been sought in the court a quo.

In the meantime, pursuant to the order by CHITAPI J, the applicants were served with a notice of attachment and eviction from the respondents Stand. The notice is dated 28 February 2022.

It is that notice that has triggered the present urgent chamber application wherein stay of execution is sought.

The application is opposed.

The respondents have raised two preliminary issues, namely:

(i) That the matter is not urgent; and

(ii) That the application has since been overtaken by events on the ground....,.

The second preliminary issue has merit and is dispositive of the application.

The respondents contended that the applicants have been evicted from their Stand in terms of an extant eviction order.

Counsel for the applicants has not denied that his clients have been evicted.

Instead, he sought to argue that the eviction was not effectively carried out as the Messenger of Court only threw out the applicants property but left the dwelling shack intact.

The implication being that the applicants, having been evicted, returned to occupy the shack.

It would be remiss of this Court to run along with counsel for the applicant's suggestion and reverse an eviction properly executed in terms of a court order on the grounds that the Messenger of Court ought to have destroyed the dwelling shack.

What was to be evicted are the applicants and not their shack.

I hold, therefore, that the eviction was effected and that the applicants return to the Stand is in direct disregard of a lawfully given court order.

This Court cannot condone their contemptuous conduct.

I agree with the respondents, that, in view of the applicants eviction, this application has been overtaken by events and has thus been rendered moot.

It cannot succeed.

As the applicants are indigent, there shall be no order as to costs.

It is ordered as follows:

“The application be and is hereby dismissed with no order as to costs.”

This is an appeal against the whole judgment of the High Court (the court a quo) in which it dismissed the appellant's urgent chamber application wherein she sought an interdict to prevent the first respondent (the President) from establishing a Tribunal in terms of section 187(3) of the Constitution of Zimbabwe 2013 ('the Constitution').

The appellant is a former judge of the High Court of Zimbabwe having been removed from office by the President on the recommendations of a Tribunal he set up.

What led to the intended establishment of the Tribunal were complaints relating to the appellant's performance as a judge.

In particular, the complaints related to her work output, which was deemed unsatisfactory and below the expected standard. One of the complaints was that the appellant issued a review judgment in respect of criminal proceedings without having properly perused the record of proceedings. As a consequence, she ordered the release, from prison, of a person who had previous convictions which militated against his release.

The position of the fourth respondent, Judicial Service Commission (JSC), was that the appellant's conduct, inter alia, amounted to gross misconduct and/or gross incompetence warranting the referral of the matter to the President in terms of section 187(3) of the Constitution.

It is common cause, that, by letter dated 15 September 2020, the appellant was advised by the Judicial Service Commission (JSC) that she was under investigation for impeachable acts of misconduct.

In response, the appellant's erstwhile legal practitioners, in a letter dated 30 September 2020, wrote back to the Judicial Service Commission (JSC) indicating that the appellant was not obliged to respond to that matter. Their view was that the JSC had no legal authority to deal with the complaints raised against the appellant and that the second respondent (Chief Justice) had no authority to direct the JSC to attend to any complaints against a sitting judge of the High Court.

Further, the letter highlighted, that, in any event, it was premature for the Judicial Service Commission (JSC) to invoke section 187(3) of the Constitution before compliance with the provisions of the Judicial Service (Code of Ethics) Regulations SI107 of 2012 (Code of Ethics).

Consequently, the Judicial Service Commission (JSC) resolved that the question of the appellant's removal from office ought to be investigated by a Tribunal appointed to inquire into the matter in terms of section 187(3) of the Constitution.

It advised the appellant of this resolution by letter dated 12 October 2020.

A day after receipt of the letter, the appellant, through her erstwhile legal practitioners, filed an urgent chamber application under case number HC6128/20 which she subsequently withdrew.

On 26 October 2020, the appellant, through her current legal practitioners, filed yet another application through the chamber book, seeking the Provisional Order which is the subject matter of this appeal. The Provisional Order sought reads as follows:

“INTERIM RELIEF GRANTED

IT IS ORDERED THAT:

1. Pending the final determination of the legality of the fourth respondent's decision to advise the first respondent to establish a Tribunal in the absence of due process, the first respondent be is hereby interdicted from setting up a Tribunal to investigate the question of removing the applicant from office in terms of section 187(3) of the Constitution.

2. In the event that a Tribunal referred to here above is already set up by the first respondent to investigate the applicant's conduct, then, the Tribunal's proceedings be stayed until the determination of the legality of the fourth respondent's decision to advise the first respondent to establish a Tribunal.

That the first, second, third, fourth, and fifth respondents show cause to this Honourable Court why a final order should not be granted in the following terms:

1. The fourth respondent's decision advise to the first respondent to set up a Tribunal to inquire into the question of whether the applicant should be removed as a judge be and is hereby declared unlawful and set aside (sic).

2. It is hereby declared that any disciplinary action against the applicant must be done in compliance with Statutory Instrument 107 of 2012 being the Judicial Services (Code of Ethics) Regulations, 2012 as read with the Constitution of Zimbabwe.”

At the commencement of the proceedings, the fourth respondent (Judicial Service Commission) raised five points in limine which the second and third respondents (Chief Justice and Judge President of the High Court) associated themselves with.

The appellant also raised a point in limine.

On the merits, the appellant contended that she managed to satisfy all the pre-requisites for the granting of an interim interdict. She argued that a proper construction of section 187(3) and section 190(4) of the Constitution, as well as Part III of the Judicial Service (Code of Ethics) Regulations, S.I.107 of 2012 (Code of Ethics) reveals that a judge accused of any act of misconduct is entitled to be subjected to the provisions of the latter enactment before any contemplated referral to the President can be done.

The appellant submitted, that, the interpretation given by the Judicial Service Commission (JSC) to section 187(3) of the Constitution, to the effect that it is empowered to refer such a matter directly to the President without resorting first to the Judicial Service (Code of Ethics) Regulations, SI107 of 2012 (Code of Ethics) will have the effect, inter alia, of not only eroding the independence of the judiciary but also negates the very notion of security of tenure of the judges, deprives the appellant of her right to administrative justice as enshrined in section 68 of the Constitution, results in the negation of her right to protection against unfair discrimination and equal protection of the law in that other judges accused of misconduct were subjected to the Code of Ethics, and, finally that the procedure adopted by the JSC attenuates the principle of certainty in that whereas some judges are first subjected to the Judicial Service (Code of Ethics) Regulations, others, like herself, do not get to enjoy that “two- rung” process.

The appellant further contended, that, the Judicial Service (Code of Ethics) Regulations, SI 107 of 2012 (Code of Ethics) was a direct consequence of section 190(4) of the Constitution.

She also contended, that, the gravity or nature of the alleged infraction was immaterial and irrelevant in so far as the procedure to be followed is concerned.

In her view, the provisions of the Judicial Service (Code of Ethics) Regulations (Code of Ethics) are prescriptive and no departure therefrom is permissible. No distinction is drawn, in terms of the legislation and as far as procedure is concerned, between the disciplinary action against judges in terms of the Code of Ethics vis a vis their removal from office as the latter is a species of the former.

The Judicial Service Commission (JSC), per contra, contended that it did no more than what section 187(3) of the Constitution entitled it to do.

It disputed the interpretation given to the said provision by the appellant and argued that impeachable conduct referred to the President does not have to be preceded by proceedings under the Judicial Service (Code of Ethics) Regulations, S.I. 107 of 2012 (Code of Ethics).

Furthermore, the respondents submitted that it was clear ex facie the record that the appellant was potentially guilty of gross misconduct, or, in the alternative, gross incompetence, and, as such, the existence of a prima facie case against her meant that the provisions of section 187(1)(a) and (b) as read with section 187(3) of the Constitution had been properly triggered by the Judicial Service Commission (JSC).

It was their submission, that, the aforementioned sections relate to impeachable conduct and thus it had a basis to refer the matter to the President.

The court a quo, in a well-reasoned judgment, dismissed all the preliminary points raised by the Judicial Service Commission (JSC) and the appellant.

None of the parties appealed against the court a quo's dismissal of the points in limine.

It will therefore, not be necessary, for the determination of this matter, to relate to the findings of the court a quo on the preliminary points.

On the merits, the court a quo held that in so far as the procedure for dealing with judges accused of acts of misconduct is concerned, section 187(3) of the Constitution and Part III of the Judicial Service (Code of Ethics) Regulations (Code of Ethics) provide distinct dichotomous routes.

The court held, that, section 187 is principally aimed at investigating the suitability or otherwise of the imperiled judge in continuing to hold office in light of the alleged acts of misconduct and the Code of Ethics is mainly aimed at some other disciplinary measures short of removal from office.

It was the court's position, that, the applicability of the abovementioned provisions is a question that is dependent on the gravity of the offence.

It held that the use of the words “gross incompetence” and “gross misconduct” in section 187(3) of the Constitution, which words are absent in section 21 of the Code of Ethics, conveys the notion that it is reserved for indiscretions that are deemed serious. The court concluded, on this point, by finding that:

“The appellant's argument that no distinction can and should be drawn between 'disciplining' of judges and 'removal' of judges cannot be sustained because a reading of those sections clearly conveys such a distinction.”

The court also opined, that, the fact that the outcomes of the two procedures are different lends further credence to the existence of the dichotomy. Whereas, the outcome under section 187 of the Constitution is the possible removal of a judge from office, under the Code of Ethics, there are various possible outcomes.

The court a quo further held, that, if the procedure under the Code of Ethics was meant to be antecedent to the referral in terms of section 187(3) of the Constitution, then, either the Constitution or the Code of Ethics, or both, would have said so.

Sections 21, 24, 25, and 26 of the Code of Ethics make it clear that they are subject to the Constitution.

Further, the Sixth Preamble to the Code of Ethics clearly conveys the meaning that the Code of Ethics was intended to plug the lacuna obtaining before its promulgation, namely, that there was no formal complaints mechanism for conduct falling short of impeachable conduct.

The court also noted that subsection (3) of section 24 of the Code of Ethics makes it clear that nothing contained in it shall be construed as taking away or derogating from the powers bestowed upon a person to make a direct referral for impeachable conduct.

It further found, that, in any event, the Code of Ethics was promulgated in 2012, and, therefore, predates the current Constitution which came into effect a year later.

Concerning the allegations of bias, mala fides, and non-observance of the audi alteram partem rule levelled against the second, third, and fourth respondents (Chief Justice, Judge President of the High Court and the Judicial Service Commission) in handling her matter, the court a quo made a finding that the appellant rejected the invitation to respond to the complaints against her, and, thus, cannot claim that her right to be heard was violated.

To that end, the court a quo held that the appellant did not manage to establish a prima facie right let alone a clear one entitling her to be subjected to the Code of Ethics first before a referral as contemplated under section 187(3) of the Constitution.

In light of that, the court a quo held that it was not necessary to interrogate the remaining requirements for an interim interdict as the application before it did not establish a prima facie right.

In accordance with the above findings, the court a quo dismissed the application with costs.

Aggrieved by the decision of the court a quo, the appellant noted an appeal on the following grounds:

“1. The court a quo erred and misdirected itself in placing reliance on section 187(3) of the Constitution when the principle of subsidiarity required that reliance be on the Judicial Service (Code of Ethics) Regulations 2012 in taking any disciplinary measures against the appellant.

2. The court a quo erred and misdirected itself when it held that the Judicial Service (Code of Ethics) Regulations 2012 is aimed at some disciplinary measure other than the removal of a judge from office but also holding that the outcome of a disciplinary process instituted under the Judicial Service (Code of Ethics) Regulations, 2012 may result in a referral in terms of section 187(3) of the Constitution.

3. The court a quo erred and misdirected itself when it held that section 187(3) of the Constitution 2013 and Part III of the Judicial Service (Code of Ethics) Regulations 2012 provide for different procedures for dealing with the question of misconduct of a sitting judge of the High Court when such distinct procedures are not contained in the Constitution and the Judicial Service (Code of Ethics) Regulations 2012.

4. The court a quo erred and misdirected itself when it held that section 187(3) of the Constitution is reserved for transgressions that are deemed serious and that the Judicial Service (Code of Ethics) Regulations 2012 is reserved for minor transgression when such a distinction is not contained in either the Constitution, the Judicial Services Act, or the Judicial Service (Code of Ethics) Regulations 2012.”

She sought the following relief;

“1. That, the instant appeal succeeds with costs.

2. That, the judgment of the court a quo be set aside and the following be substituted in its place and stead;

'1. Pending the final determination of the legality of 4th respondent's decision to advise the 1st respondent to establish a tribunal in the absence of due process, the 1st respondent be and is hereby interdicted from setting up a Tribunal to investigate the question of removing the applicant from office in terms of section 187(3) of the Constitution.

2. In the event that a Tribunal referred to hereabove is already set up by the 1st respondent to investigate the applicant's conduct, then, the Tribunal's proceedings be stayed until the determination of the legality of the 4th respondent's decision to advise the 1st respondent to establish a tribunal.

3. That this matter be and is hereby remitted to the High Court for continuation of proceedings on the return date.'”

In the concluding paragraph in her heads of argument, the appellant's position was as follows:

“In light of the above, the appellant prays that the appeal succeeds with costs. However, in light of the fact that the interim relief sought has been overtaken by events, it is prayed that the judgment of the court a quo be set aside and the matter be remitted back to the court a quo for determination of the final relief sought.”…,.

At the hearing of the appeal, the court asked counsel for the appellant to first address the court on the question whether the matter before the court had become moot first before addressing the merits of the matter.

The request was made on the basis, that, on the recommendation of the Judicial Service Commission (JSC), the President constituted a Tribunal to consider the removal of the appellant from office. The Tribunal has already conducted investigations and held an inquiry which consequently led to the removal of the appellant from the office of a judge.

Counsel for the appellant submitted, that, the issue of mootness did not arise in the present appeal.

It was her submission, that, when the President acted upon receipt of the referral, he did so in the belief that all due and proper processes had been followed as provided for in the Judicial Service (Code of Ethics) Regulations (Code of Ethics). If those processes were not followed, and the necessary transparent investigations carried out, the referral would have been invalid and everything that followed would be invalid. As such, the matter cannot be moot.

Notwithstanding her submissions that the matter was not moot, and despite the concession in the Heads of Argument, counsel for the appellant submitted that mootness is not a bar to hear a matter. The court retains a discretion to hear the merits of the appeal if it is in the interests of justice to do so. In casu, it was particularly important for the court to give guidelines for referral of a judge to the President.

For authority she relied on the case of Francis Bere v Judicial Service Commission & Ors SC01-22 where this Court proceeded to hear the appeal on the merits after having made a finding that the appeal was moot.

She further submitted, that, in that case, the provisions of the Code of Ethics had been followed. There had been participatory investigations by a panel of three judges which was set up in terms of the Code of Ethics.

On the merits, counsel for the appellant submitted, that, the Code of Ethics was not adhered to, therefore, all the proceedings thereafter were void.

It was her submission that in terms of the principle of subsidiarity, the appellant ought to have been subjected to the subsidiary legislation, therefore, the second respondent ought to have followed the procedure in the Code of Ethics before looking for recourse to the Constitution.

She further submitted, that, the second respondent did not conduct an investigation and failed to ensure that all processes before the referral were followed.

She also submitted, that, the court a quo erred in relying on the constitutional provisions on the investigative part of the proceedings. She maintained that if the legislature intended that there be two processes, one for serious infractions, and the other for non-serious infractions, it would have said so.

Finally, counsel made an application to amend the relief sought. She moved the court to grant an order declaring that the removal of the appellant from office was a nullity.

Per contra, counsel for the first and fifth respondents submitted that the relief the appellant was seeking in the instant appeal had been overtaken by events.

It was his submission that the Tribunal appointed by the President had duly carried out its Constitutional mandate resulting in the removal of the appellant from office. He further submitted that the appellant has taken those proceedings on review in the High Court. She has also filed an appeal in the Labour Court against the decision of the President to remove her from office.

Counsel for the second, third, and fourth respondents submitted that the test in respect of mootness is factual.

That the appellant was no longer a judge of the High Court is a fact. The question is not whether the matter is moot or not because on the facts the matter is moot.

The question should be whether this Court has a basis of exercising its discretion, in the interests of justice, to still hear the matter. He submitted that the following points militate against the exercise of that discretion.

(i) Firstly, the appellant voluntarily attended the Tribunal and fully participated in its enquiry. The Tribunal completed its work and the legal process of her removal from office has occurred. The appellant continues to seek legal remedies in other courts, namely, in the High Court and the Labour Court.

(ii) Secondly, when the appeal was filed, it was open to the appellant to seek an expedited hearing. He submitted that no effort was made to seek such an expedited hearing of the matter, as provided in the Rules, and secure the relief she seeks in her notice of appeal. As a result, this Court is unable to grant the relief sought by the appellant.

(iii) Thirdly, the Judicial Service Commission (JSC) advised the appellant of the complaints against her, provided her with the details of the complaints, and invited her to comment. The appellant, through her erstwhile legal practitioners, took a position that she had no obligation to address the complaint. As a result, the JSC resolved to refer the matter to the President in terms of section 187(3) of the Constitution. The actions of the JSC are unimpeachable. This Court cannot issue a declaratur nullifying the actions of the JSC. He concluded by submitting that there was nothing exceptional about this case warranting this Court exercising its discretion to hear this moot case.

On the merits, counsel submitted that the Code of Ethics makes it clear that it does not purport to supersede section 187(3) of the Constitution. The Code of Ethics recognises the supremacy of the Constitution, in particular sections 21, 24, 25 and 26 of the Code. He further submitted that the Code is limited to administrative complaints and impeachment processes are dealt with in terms of section 187(3) of the Constitution.

The appellant approached the court a quo in an urgent chamber application seeking the Provisional Order outlined above.

As is clear from the Provisional Order, the appellant sought, in the interim, an interdict preventing the President from setting up a Tribunal to investigate the removal of the appellant from office and in the event that it had already been set up, an order staying the proceedings of such Tribunal.

It is common cause that the Tribunal was set up, executed its mandate, and the appellant was removed from being a Judge of the High Court in terms of section 187(3) of the Constitution.

It is on this basis that the respondents take the position that the appeal before the court has been overtaken by events.

At this point in time, it is appropriate to deal with the doctrine of mootness as I believe it could be dispositive of this instant appeal.

A matter is moot if the dispute becomes academic by reason of changed circumstances, thus making the jurisdiction of the court unsustainable.

The issue was comprehensively dealt with by the Constitutional Court in Thokozani Khupe & Anor v Parliament of Zimbabwe & Ors CC20-19…, where it held as follows:

“A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy. The position of the law is that if the dispute becomes academic, by reason of changed circumstances, the Court's jurisdiction ceases and the case becomes moot…,.

The question of mootness is an important issue that the Court must take into account when faced with a dispute between parties. It is incumbent upon the Court to determine whether an application before it still presents a live dispute as between the parties.

The question of mootness of a dispute has featured repeatedly in this and other jurisdictions.

The position of the law is that a court hearing a matter will not readily accept an invitation to adjudicate on issues which are of 'such a nature that the decision sought will have no practical effect or result.'”

The above principle was followed in MDC & Ors v Mashavira & Ors SC56-20…, where it was stated:

“…,. A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy between the parties….,. [I]f the dispute becomes academic by reason of changed circumstances, the case becomes moot and the jurisdiction of the court is no longer sustainable.”

In ZIMSEC v Mukomeka and Anor SC10-20…, PATEL JA, at pp6-7, set out a two–stage approach in determining whether or not an appeal is moot. The learned Judge cited the Supreme Court of Canada, in Borowski v Canada (Attorney General) [1989] 1 SCR 342, where it was held that:

“It is first necessary to determine whether the requisite tangible and concrete dispute has disappeared rendering the issues academic. If so, it is then necessary to decide if the court should exercise its discretion to hear the case.”

In respect of the second stage of an inquiry on mootness, PATEL JA held, at p7, that:

“The next step in the analysis is to decide whether or not the court should exercise its discretion to hear the case. In that respect, courts are guided by the rationale and policy considerations underlying the doctrine of mootness: Borowski's case, supra.

The overriding consideration is whether or not it is in the interests of justice to hear a moot case. The factors to be taken into account in that regard were lucidly enunciated by the Constitutional Court of South Africa in Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) at para 11:

'…,. Discretion must be exercised according to what the interests of justice require.

A pre-requisite for the exercise of the discretion is that any order which this Court may make will have some practical effect either on the parties or on others. Other factors that may be relevant will include the nature and extent of the practical effect that any possible order might have, the importance of the issue, its complexity, and the fullness or otherwise of the argument advanced.'”…,.

The doctrine is well developed in American law. A case is moot if it:

“…, seeks to get a judgment on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has actually been asserted and contested, or a judgment upon some matter which, when rendered, for any reason, cannot have any practical effect upon a then existing controversy.”

See Ex Parte Steel 162 Fed. 694, 701 (N.D.Ala. 1908).

Furthermore, a case is moot:

“If the parties are not adverse, if the controversy is hypothetical, or if the judgment of the court, for some other reason cannot operate to grant any actual relief…, and the court is without power to grant a decision.”

See Diamond, Sidney A. “Federal Jurisdiction to Decide Moot Cases” University of Pennsylvania Law Review Vol. 94…,.

Barron and Dienes Barron J (eds) Barron J and Dienes T (eds) Constitutional Law (West St Paul, Min 1995) put it succinctly when they observed that "a case or controversy requires present flesh and blood dispute that the courts can resolve."

In South African Jurisprudence, mootness is when a matter “no longer presents an existing or live controversy”: see National Coalition for Gay and Lesbian Equality & Ors v Minister of Home Affairs 2000 (2) SA 1 (CC)…,.

Section 16(2)(a)(i) of the South African Supreme Court Act provides as follows:

“(i) When, at the hearing of an appeal, the issues are of such a nature that the decision sought will have no practical effect or result, the appeal may be dismissed on this ground alone.”

It can be gathered from the above authorities that mootness essentially restricts the court's jurisdiction to hear or determine a matter, particularly if giving the judgment in that matter will produce no tangible result but merely an opinion. It is based on the notion that judicial resources ought to be utilised efficiently and not dedicated to advisory opinions.

However, the fact that a matter is moot is not an absolute bar for the court to decide an appeal where the interests of justice so require.

An analysis of decisions in which Zimbabwean Courts proceeded to determine matters despite the fact that they had become moot exposes the application of the foregoing principles.

In the case of Stevenson v Minister of Local Government & Ors 2002 (1) ZLR 498 (S)…, the court heard a matter that was moot for the purpose of determining the party liable to pay costs. SANDURA JA held as follows:

“In the circumstances, the learned judge in the court a quo should have dealt with the issues raised in the appellant's application.

However, it is pertinent to note that after the appeal in this matter had been noted, mayoral and council elections for Harare were held in March 2002. It follows, therefore, that the reason for the appellant's application has now fallen away.

Nevertheless, a determination of the issues raised in the application is essential for the purpose of determining which party should pay the costs of the application in the court a quo….,.”…,.

See also Francis Bere v Judicial Service Commission & Ors SC01-22.

The South African courts have attempted to outline factors to be considered when a court wishes to break through the veil of mootness to decide an appeal that is moot for justice's sake. In VINPRO NPC v The President of the Republic of South Africa & Ors (741/2021) [2021] ZAWHCHC 149 the court opined as follows:

“[50] Moreover, this Court has proffered further factors that ought to be considered when determining whether it is in the interests of justice to hear a moot matter. These include -

(a) Whether any order which it may make will have some practical effect either on the parties or on others;

(b) The nature and extent of the practical effect that any possible order might have;

(c) The importance of the issue;

(d) The complexity of the issue;

(e) The fullness or otherwise of the arguments advanced; and

(f) Resolving the disputes between different courts.”

In casu, under the first consideration in the test for mootness, it is apparent from the record that the appellant sought an order in the court a quo interdicting the President from establishing a Tribunal to investigate the question of removing her from office in terms of section 187(3) of the Constitution, and a stay of the Tribunal proceedings in the event that it had already been set up, pending the determination of the legality of the Judicial Service Commission's decision to advise the President to establish a Tribunal.

It is common cause that the Tribunal was set up and its proceedings were conducted and concluded - with the full participation of the appellant.

At this point, the issue of the Judicial Service Commission's referral of the matter to the President, the setting up of the Tribunal by the President, and the legality thereof has undoubtedly been overtaken by events.

The judgment, if rendered in favour of the appellant 'cannot operate to grant any actual relief' to her. There is no longer any 'present flesh and blood dispute that the court can resolve'.

In light of the above, it is my position that the appeal before this court is now moot.

Additionally, the fact that the appellant belatedly sought to amend the relief sought confirms that the matter is indeed moot and the relief sought no more than a brutum fulmen.

It must have been clear to her that it would not be competent for this Court to grant the relief she sought in her Notice of Appeal as conceded in the last paragraph of her Heads of Argument. The tangible and concrete dispute between the parties had disappeared by the time the appeal was heard rendering the issues academic.

This leads to the next stage of enquiry as highlighted in ZIMSEC v Mukomeka and Anor SC10-20 to the effect, that, where a matter is found to be moot, the overriding consideration is whether or not it is in the interests of justice to hear a moot case.

As alluded to above, the appellant, at the eleventh hour, applied to amend the relief sought in her prayer amidst queries raised by this Court as to whether it was competent for the court to grant the relief sought by the appellant in her Notice of Appeal.

The Court enjoined the appellant to file supplementary heads in motivating why the application should be granted. The court also enjoined the respondents to file supplementary heads of argument in respect of the application to amend the prayer by the appellant.

It is to be commended that the supplementary heads of argument were promptly filed.

It is the appellant's submission, that, in terms of section 22(1)(a) of the Supreme Court Act, this Court is empowered to grant an amended relief sought provided that the relief sought is underpinned by the case made by the appellant. Further, she submitted that this Court enjoys wide powers which include granting a declaratory order.

She prayed that the appeal succeeds in terms of the amended draft order motivated during arguments which read as follows:

“The appellant prays that this Honourable Court declares that her referral to the President in terms of section 187(3) of the Constitution, without first subjecting her to the provisions of the SI107 of 2012, was unlawful hence null and void.”…,.

Counsel for the second, third, and fourth respondents submitted that the declaratur which the appellant seeks is not clear as it is couched inelegantly and offends the mandatory provisions of the Rules that require proper drafting of pleadings.

He further submitted, that, the appellant is trying to surreptitiously seek a declaratory order whereas in the court a quo she sought an interdict. He submitted that the court a quo did not deal with the question of a declaratur, and, in the circumstances it cannot be the subject matter of the instant appeal.

In that regard, he prayed that the application to amend be dismissed with costs.

I have deliberately underlined the word “declares” in the amendment sought. This is so for the following reasons:

(i) Firstly, the appellant is raising an issue that was not before the court a quo. The proceedings a quo related to an application for an interdict preventing the President from appointing a Tribunal and an order staying the work of such a Tribunal if it had already been appointed.

It is settled that this Court is not a court of first instance especially in matters relating to granting a declaratur.

In Guwa & Anor v Willoughbys Investments (Pvt) Ltd 2009 (1) ZLR 368 (S)…, this Court held that:

“It is clear from these provisions that the Supreme Court is a creature of Statute and that it derives its jurisdiction specifically from the Supreme Court Act and other legislative provisions. In other words, although it is the highest court in the land, its powers are regulated strictly by Statute. It is not a Court of first instance. It has no original jurisdiction but only appellate, since it was created by statute purely as a Court of Appeal.

Nowhere in the Supreme Court Act, nor in the Rules of the Court, is the Supreme Court given jurisdiction to entertain, in the first instance, an application for a declaratur. Whilst in terms of section 25 of the Supreme Court Act every Judge of the Supreme Court shall have the same review power and authority as are vested in the High Court to review proceedings, no person has the right to institute any review in the first instance before the Supreme Court.”

Similarly, in Mutasa & Anor v The Registrar of the Supreme Court & Ors 2018 (1) ZLR 461 (S) it was held that…,:

“Clearly, the Supreme Court cannot grant a declaratur in the first instance, even where the parties may be in agreement and approach the court by consent seeking an order beyond the court's jurisdiction, such consent does not and cannot compel a judge to issue an order beyond his or her jurisdictional authority.”

Counsel for the appellant's argument, that the appellant sought a declaratur in the final relief and therefore the issue was ventilated before the court a quo, is untenable.

The judgment of the court a quo is clear that it did not relate to the requirements of a declaratur but to those of an interim interdict.

It is thus my view, that, the appellant seeks to make this Court a second court of first instance.

The case before the court a quo was one for an interim interdict, it examined the requirements of such interdict. It did not deal with the question of a declaratur at all, and, in the circumstances, it cannot be the subject matter of this appeal.

I agree with counsel for the second, third, and fourth respondents, that, in making the application to amend the relief sought, the appellant is trying to surreptitiously seek a declaratory order from this Court.

The above authorities are categoric that this Court cannot grant a declaratur in the first instance.

In my view, what the appellant seeks cannot be termed an amendment, but, rather, an abandonment of the original relief and the replacement or substitution with a totally different and new relief.

The application to amend the relief sought cannot therefore succeed.

Counsel for the appellant referred the court to Francis Bere v Judicial Service Commission & Ors SC01-22 as authority for the proposition that the fact that a matter is moot is no bar for the court to hear the matter.

Francis Bere v Judicial Service Commission & Ors SC01-22 is clearly distinguishable from the case in casu.

In Francis Bere v Judicial Service Commission & Ors SC01-22, Bere approached the High Court in terms of section 4 of the Administrative Justice Act [Chapter 10:28] on the basis that the respondents had failed to comply with the provisions of section 3(1)(a) of the Administrative Justice Act. He raised five grounds in support of his contention.

This is what the High Court was seized with. It dismissed the application.

Disgruntled by the decision he appealed to this Court.

This Court, having found that the matter was moot decided that the matter was sufficiently important to warrant a departure from the general rule and it exercised its discretion to hear the merits of the matter.

In dealing with the appeal, the court related to the points in limine and the grounds for review raised and ventilated before the court a quo. It examined the correctness or otherwise of the decision of the court a quo on the issues ventilated before it. It concluded that the appeal had no merit and dismissed it.

In casu, the appellant is asking this Court to examine the correctness of the decision of the court a quo in relation to an issue that was not ventilated before it.

This, the court cannot do.

It is for the above reasons that this Court declines to exercise its discretion to hear the appeal which is now moot.

In Thokozani Khupe & Anor v Parliament of Zimbabwe & Ors CC20-19 the court found that the case did not fall into the category of cases where the court may exercise its discretion to hear a moot case in order to settle an important legal question. It therefore proceeded to dismiss the application.

This Court, in MDC & Ors v Mashavira & Ors SC56-20 and ZIMSEC v Mukomeka and Anor SC10-20 associated itself with the above stated position, that, a court may decline to exercise its jurisdiction over a matter that is moot.

In South Africa, the Supreme Court is guided by section 16(2)(a)(i) of the South African Supreme Court Act….,.

The same position prevails in the United States of America.

In the case of Mills v Green 159 US 651 (1895)…, the Federal Supreme Court held as follows:

“It necessarily follows, that, when pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this Court, if it should decide the case in favour of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.”

From the above authorities, it is settled that where the court makes a finding that an appeal is moot and declines to exercise its discretion to hear the appeal in the interests of justice, the court declines jurisdiction and dismisses the matter.

That is the fate that befalls the present appeal.

Everything considered, the appeal is clearly moot. The relief that the appellant seeks has been overtaken by events. There is no longer any live dispute between the parties for the court to resolve. Furthermore, the case does not fall into the category of cases where the court can exercise its discretion to hear a moot matter in the interests of justice.

On the issue of costs, there is no reason to depart from the general principle that costs follow the cause.

In the result, it is accordingly ordered as follows:

The appeal be and is hereby dismissed with costs.

This is an appeal against the judgment of the High Court (“the court a quo”) handed down on 5 June 2019 wherein the appellant's application to set aside an arbitral award was dismissed for lack of merit.

After hearing argument from both parties and considering the submissions made, the court dismissed the appeal.

The court indicated that reasons for the decision would follow in due course. These are the reasons.

The background of the dispute is that the first respondent was the registered owner of a sporting complex known as Harare Sports Club, which it leased to the appellant, then known as Zimbabwe Cricket Union, through a Notarial Agreement of Lease (“the lease”) signed on 16 July 1999.

At the time, the Zimbabwe dollar was the official currency in the country.

The rental payable was fixed in that currency at $40,000 per month.

In terms of clause 3(c) of the lease, the rent was to be escalated on an annual basis, at a rate to be agreed between the parties. In terms of clause 20 of the lease, in the event that the parties failed to agree on the rent, the rental was to be determined and set by an independent arbitrator appointed by mutual agreement between the parties.

The decision of the arbitrator was to be final and binding on the parties.

When the multi-currency system was introduced, at the beginning of 2009, the parties failed to agree on the rent chargeable in foreign currency.

The matter was referred to arbitration in terms of clause 3(c) of the lease.

The parties could not agree on the appointment of the arbitrator.

The first respondent made an application to the court a quo seeking an order authorising the Commercial Arbitration Centre to appoint the second respondent as the arbitrator.

The application was made in terms of Article 11(4) of the United Nations Commission on International Trade Law (“the UNCITRAL Model Law”) as set out in the First Schedule to the Arbitration Act [Chapter 7.15] (“the Arbitration Act”).

Article 11(4) of the Model Law recognises the right of the parties to agree on a procedure of appointing an arbitrator but provides, that, should they fail to agree on the procedure to be followed, the arbitrator may be appointed by the High Court upon request of either party.

The appellant opposed the application, arguing that Article 11(4) of the UNCITRAL Model Law empowers the High Court to appoint an arbitrator of its own accord.

The contention was that the High Court had no power to delegate the authority to appoint an arbitrator to another body, such as the Commercial Arbitration Centre.

The appellant also argued, that, the dispute over the appropriate rental for the property was governed by the Commercial Premises (Rent) Regulations, Statutory Instrument No.176 of 1983 (“the Rent Regulations”) and, as such, should be determined by the Commercial Rent Board.

The appellant further argued, that, clause 3(c) of the lease was invalid by virtue of section 29 of the Rent Regulations.

Section 29 of the Rent Regulations provides, that, any agreement by which any party purports to limit his or her or its right to proceed under the Rent Regulations for the determination of a fair rent or the variation thereof is void.

The court a quo was not persuaded by the argument. It was also not persuaded by the argument that it had no authority to delegate the power to appoint an arbitrator to the Commercial Arbitration Centre.

It held, that, the parties were bound by the procedure for the resolution of the dispute arising from the contract they had agreed upon.

The court a quo made the order directing the Commercial Arbitration Centre to appoint the second respondent as the arbitrator in the dispute between the parties.

As a result of the order of the court a quo, the second respondent was appointed the arbitrator in the dispute regarding the rentals.

Having heard the matter, he issued the arbitral award which is the subject of the appeal.

Two applications were made to the court a quo. They were consolidated for purposes of hearing and the determination of the issues raised.

In the first application, the appellant sought the setting aside of the arbitral award in terms of Article 34 of the UNCITRAL Model Law. In the second application the first respondent sought the registration of the award in terms of Article 35 of the UNCITRAL Model Law.

The court a quo was of the view, that, a party to arbitration cannot approach it for review of the arbitral award on the ground that the arbitrator made an incorrect decision. It held that the courts only interfere with an arbitral award where the reasoning or conclusion goes beyond mere faultiness or incorrectness. The courts only interfere with an arbitral award which can be regarded as constituting a palpable inequity, so far-reaching and so outrageous in its defiance of logic or acceptable moral standards as to cause a fair-minded person to regard it as unbearably hurting all sense of justice and fairness.

The court a quo further expressed the view, that, the decision that had been reached by the second respondent was supported by the facts. It held that the second respondent applied his mind to the matter and came to a conclusion which was not contrary to the public policy of Zimbabwe.

The application for setting aside the arbitral award was found to be meritless and dismissed. Consequently, the application for the registration of the arbitral award was granted.

Dissatisfied with the decision of the court a quo, the appellant noted the appeal.

The main argument, on appeal, was that the court a quo misdirected itself in finding that the second respondent's award on the rentals payable was not susceptible to being set aside. It was also argued that the court a quo misdirected itself when it endorsed a formula by the second respondent for rent variation other than the one contemplated by the parties in terms of the lease. The contention was that the second respondent had no authority to determine the issue of rent variation in terms of a formula other than the one contemplated by the parties.

The first respondent argued, that, the decision of the court a quo was un-impeachable because the appellant had not challenged the second respondent's ruling on whether he had jurisdiction to hear the matter. It was also argued that the appellant had failed to meet the required standard for proving that the arbitral award was in conflict with the public policy of Zimbabwe.

The issue for determination was whether the appellant met the requirements of Article 34 of the UNCITRAL Model Law. Article 34 provides as follows:

“Application for setting aside as exclusive recourse against arbitral award

(1) Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paragraphs (2) and (3) of this article.

(2) An arbitral award may be set aside by the High Court only if —

(a) The party making the application furnishes proof that —

(i) A party to the arbitration agreement referred to in Article 7 was under some incapacity, or, the said agreement is not valid under the law to which the parties have subjected it, or, failing any indication on that question, under the law of Zimbabwe; or

(ii) The party making the application was not given proper notice of the appointment of an arbitrator of the arbitral proceedings or was otherwise unable to present his case; or

(iii) The award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or

(iv) The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Model Law from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Model Law; or

(b) The High Court finds, that —

(i) The subject-matter of the dispute is not capable of settlement by arbitration under the law of Zimbabwe; or

(ii) The award is in conflict with the public policy of Zimbabwe.

(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the award, or, if a request had been made under Article 33, from the date on which that request had been disposed of by the arbitral tribunal.

(4) The High Court, when asked to set aside an award, may, where appropriate and so requested by a party, suspend the setting aside proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the arbitral tribunal's opinion will eliminate the grounds for setting aside.

(5) For the avoidance of doubt, and without limiting the generality of paragraph (2)(b)(ii) of this Article, it is declared that an award is in conflict with the public policy of Zimbabwe if —

(a) The making of the award was induced or effected by fraud or corruption; or

(b) A breach of the rules of natural justice occurred in connection with the making of the award.”

The court a quo held, that, the arbitral award could not be found to be in conflict with public policy of Zimbabwe because the second respondent did not escalate the rent in terms of the parties agreement.

In ZESA v Maphosa 1999 (2) ZLR 452 (S)..., it was stated that:

“Under Article 34 or 36, the court does not exercise an appeal power and either uphold or set aside or decline to recognise and enforce an award by having regard to what it considers should have been the correct decision. Where, however, the reasoning or conclusion in an award goes beyond mere faultiness or incorrectness and constitutes a palpable inequity that is so far reaching and outrageous in its defiance of logic or accepted moral standards that a sensible and fair minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the award, then, it would be contrary to public policy to uphold it.

The same consequence applies where the arbitrator has not applied his mind to the question or has totally misunderstood the issue, and the resultant injustice reaches the point mentioned above.”

The position is settled, that, a party to arbitration cannot come to court because the arbitrator was wrong.

The allegation in the court a quo was that the second respondent's decision to enforce a clause in the agreement requiring the parties dispute over the escalation of rent to be submitted to the arbitration procedure was a breach of section 29 of the Rent Regulations.

Section 29 of the Commercial Premises (Rent) Regulations, SI176 of 1983 (the Rent Regulations) provides:

“Any agreement by which any person purports to limit his right to proceed under these Regulations for the determination of a fair rent or the variation of such a determination, or to limit or affect any other rights to which he would be entitled under these Regulations, shall be void.”

The court a quo held, that, the Rent Regulations were not applicable because cricket activities did not relate to commercial enterprises.

The order of the court a quo was not appealed against.

The second respondent was therefore bound to perform his duties. The second respondent had the power to act in the manner he did.

This judgment is a two-in-one.

It disposes of the application in HC9909/18, an application in which Harare Sports Club (the applicant) seeks a registration of an arbitral award issued by an arbitrator and HC10011/18, one in which Zimbabwe Cricket (the respondent) seeks the setting aside of the same arbitral award on the ground that it is contrary to the public policy of Zimbabwe.

Registration of the award is sought by the applicant in terms of Article 35 while the setting aside of the award is sought by the respondent in terms of Article 34 of the Model Law in the Arbitration Act [Chapter 7:15].

The contentious arbitral award was issued in terms of an agreement entered into between the parties on 16 July 1999 supported by an order of this court, per MANGOTA J, handed down on 21 July 2017.

The award itself was delivered on 28 August 2018.

By order of this court, per CHIKOWERO J, granted on 27 March 2019, the two (2) mutually destructive applications were consolidated for set down and determination at the same time.

At the commencement of the hearing, counsel for the parties agreed that upholding one of the applications necessarily brings the other to its knees. In other words, if the court finds that there is no merit in the application to set aside the arbitral award, it should, without further ado, recognize the award and register it for enforcement.

The background is that the applicant is the registered owner of a sporting complex known as Harare Sports Club which it leased to the respondent, then known as Zimbabwe Cricket Union, by Notarial Agreement of Lease signed on 16 July 1999, at a time when the Zimbabwe dollar ruled the roost.

The rental payable was therefore fixed in that currency, at $40,000 per month, and, in terms of clause 3(c) the rent was to be escalated on an annual basis with effect from the agreement's first anniversary at a rate to be agreed between the parties.

In the event of the parties failing to agree, the rent was “to be determined and set by an independent arbitrator appointed by mutual agreement between the parties, whose decision shall be final and binding as between them, based upon any fluctuation in the prime bank rate of interest and the inflation rate prevailing in Zimbabwe at the relevant juncture.”

When the Zimbabwe dollar became moribund, at the beginning of 2009, the parties could not agree on the rent in foreign currency and a dispute arose, which has escalated over the years, resulting in the need to refer the matter to arbitration in terms of clause 3(c) of the agreement.

The parties still could not agree on an arbitrator to resolve the dispute, and, as they bickered endlessly, the applicant brought an application in this court under case no. HC217/17 in which it cited both the respondent and the Commercial Arbitration Centre.

It sought an order authorizing the Commercial Arbitration Centre to appoint an arbitrator to determine the dispute over rent.

The application was made in terms of Article 11(4) of the Model Law which recognizes the right of the parties to agree on a procedure of appointing an arbitrator but provides, that, should they fail to agree, such arbitrator may be appointed by the High Court on request of a party.

The respondent opposed that application arguing, inter alia, that Article 11(4) of the Model Law empowers the High Court itself to appoint an arbitrator and not to delegate the power to appoint to someone else.

The respondent also argued in opposition, that, the dispute over the appropriate rental for the property was governed by the Commercial Rent Regulations and should thus be determined by the Commercial Rent Board.

The respondent further argued, that, clause 3(c) of the parties agreement, which provides for arbitration of a rent dispute, was void by virtue of section 29 of the Commercial Rent Regulations which provides:

“…, any agreement by which any person purports to limit his right to proceed under these Regulations for the determination of a fair rent or the variation of such a determination, or the limit or affect any other rights to which he would be entitled under these Regulations, shall be void.”

The respondent sought to side-foot the imperatives of the agreement it entered into with the applicant and avoid arbitration by hiding behind the Commercial Rent Regulations which would have meant that the dispute would be referred to the Commercial Rent Board.

MANGOTA J, who heard the application, was not persuaded by that argument. Neither was he persuaded by the argument that the High Court could not delegate the power to appoint an arbitrator to the Commercial Arbitration Centre.

In Harare Sports Club v Zimbabwe Cricket & Anor HH471-17 the learned judge upheld the principle of sanctity of contract holding that having crafted for themselves “a clearly defined manner of resolving their disputes” neither of the parties was entitled to renege from the agreement.

On the issue of the power of the court to delegate the authority to appoint an arbitrator, the learned judge ruled that this court has inherent jurisdiction to do so, and, in the exercise of that inherent jurisdiction, he authorized the Commercial Arbitration Centre to do the honours.

It was by virtue of that judgment that Daniel Tivadar was appointed arbitrator, and, having heard the matter, he issued the arbitral award which is the subject of this application.

The case of Harare Sports Club v Zimbabwe Cricket & Anor HH471-17 is significant in two ways:

(i) Firstly, it determined the issue of the arbitrator's jurisdiction to adjudicate over the dispute and clothed him with authority to do so.

(ii) Secondly, it completely resolved the issue of the validity of the arbitration clause, that is, clause 3(c) of the parties agreement, and ruled that it was valid notwithstanding section 29 of the Commercial Rent Regulations....,.

It is significant that the judgment of MANGOTA J in Harare Sports Club v Zimbabwe Cricket & Anor HH471-17 has not been challenged in any way. It has not been appealed and remains extant to this day....,.

This is an appeal against the whole consolidated judgment of the High Court dismissing the appellants application in HC4197/18 and granting the respondents application in HC1774/18.

The appellants are husband and wife and were, at one point, members of the United Family International Church (“UFIC”), the third respondent in casu.

The first and second respondents are also husband and wife and are the leaders (prophet and prophetess, respectively) of the United Family International Church (UFIC).

In the court below, the appellants instituted an action against the respondents, under HC7214/18 claiming a total sum of US$6,535,000 to be paid jointly and severally, the one paying the others to be absolved, broken down as follows:

“(a) Damages for US$700,000 being the value of property number 14 Edinburgh, Marlborough, Harare.

(b) A refund of the sum of US$1,698,000 for misrepresentation.

(c) US$37,000 being refund for fees paid to Tichaona Mawere.

(d) An amount of US$1,100,000 being a refund paid to the defendants.

(e) An amount of US$2,000,000 being damages for fraud and misrepresentation.

(f) An amount of US$500,000 being damages for mental anguish.

(g) US$500,000 being damages for defamation of character. (sic)

(h) Payment of interest on the sums in (a) to (g) above at the prescribed rate from the date of demand to the date of full and final payment.

(i) Payment of costs of suit on a legal practitioner and client scale.”

The claims were particularised in the declaration as summarised hereunder:

In 2012, and during church proceedings, the first and second respondents fraudulently misrepresented to the appellants “that anyone with a bank debt or loan was to be cancelled as it was a season of miraculous cancellation of debts.” (sic)

It is alleged, that, this followed after the respondents had been 'privately' informed that the appellants had an existing ZB Bank loan in the sum of US$500,000.

As a result of this misrepresentation, the appellants were induced not to pay back the loan, and, as a consequence, the Bank executed on their immovable property thus causing them to lose a property worth US$700,000.

In the same year, the respondents misrepresented in church, that, one Tichaona Mawere (Mawere) “was a great lawyer and that he would not lose a case” when in fact he was not a registered legal practitioner.

Acting on the misrepresentation, the appellants instructed the said Tichaona Mawere (Mawere) to handle their matter for a claim of US$1,698,000 and expended fees in the sum of US$37,000. Mawere produced fake court orders resulting in them making a loss to the tune of US$1,735,000.

That, in the period ranging from 2014 to 2016, the appellants were called on stage in church. The respondents would announce that the appellants “were a successful example in the Ministry.”

Acting on these “misrepresentations” the appellants made various direct contributions amounting to US$1,100,000 to the respondents. The respondents would represent “that, in so contributing, the plaintiffs (the appellants) would reap what was commensurate with their contributions.”

The appellants were again paraded in church on stage “as a chosen people by God to have succeeded in business.”

As a result of that further “misrepresentation” the appellants marketed the respondents prophecies for the advancement of the respondents interests and “their prophesies as the success story of the prophesies.” In the process, the appellants were prejudiced to the tune of US$2,000,000.

Before the amendment, which I shall deal with later, the claim was that “the defendants (the respondents) caused damages through defamation (sic) by publishing false articles against the plaintiffs and their business activities; articles claiming that the plaintiffs perfumes cause cancer.”

The appellant's claimed that “the defendants caused mental anguish to the plaintiffs, emotional embarrassment and torture by exposing the plaintiffs private lives on the defendants Facebook online page 'The Truth About Prophet Makandiwa.'”

It was further averred, that, the information had been given to the respondents “in private” and the statements were meant to destroy their reputation.

Upon being served with the summons, the respondents entered an appearance to defend.

They further addressed a letter to the appellants, in terms of Rule 140 of the High Court Rules 1971 (the Rules), to the effect that the claims in question were vague and embarrassing and that they did not disclose a cause of action.

It was averred that it was not clear whether the appellants were suing in terms of Contract or under the Law of Delict, and, as regards claims five and six, whether the claims were made under defamation or injuria.

The appellants did not respond to this letter.

Consequently, the respondents filed an exception to the appellants summons and declaration.

The exception was dismissed on 12 January 2018 by MANGOTA J who ordered that the appellants amend their declaration in respect of claims five and six, that the respondents file their plea, and that the matter proceeds in terms of the Rules.

As directed, the appellants amended their declaration in respect of claims three, five, and six.

It was amended by the addition of paragraph 20.1.

It was claimed, that, upon being confronted by the appellants, the respondents undertook to repay the appellants all the money they had contributed upon proof of such payment. Despite being furnished with the proof, the respondents have refused or neglected to pay in accordance with their undertaking.

It was amended by deleting the original claim and substituting it as summarised below:

The appellants were in the business of manufacturing and selling perfumes. On or around 16 August 2016, and after the fallout between the appellants and the respondents, the respondents caused to be published an article in the Herald Newspaper in which they said:

“You just need one person who can move around telling people that your perfumes can cause cancer and the news begins to spread; your company will begin to go down.” (sic)

“The statement was false and the respondents intended to spread a rumour and thereby injure the appellants in their trade. In view of the close relationship between the parties before the fallout, the words of the respondents caused a rumour to spread that the appellants perfumes cause cancer. As a result of the statement, and the subsequent rumours, the public desisted from purchasing appellants perfumes. Consequently, the appellants, through their company, ceased to manufacture the perfumes. The appellants suffered damages due to the respondents wrongful conduct in the sum of USD$500,000.”

The original claim was deleted and substituted with a claim summarized as follows:

On or about 2 February 2017, the respondents caused to be published on their Facebook page titled “The truth about Emmanuel Makandiwa” private and intimate details of the appellants which they had received in confidence. The publication of the details was wrongful and was done with an intention to injure the appellants standing in society, and was done in the wake of the fallout between the parties. Appellants suffered damages, as a result of the unlawful intrusion into their private lives, in the sum of USD$500,000.

Following the dismissal of the exception, and, on 23 February 2018, the respondents filed an application for the dismissal of the appellants claims in toto in terms of Order 11 Rule 75 of the High Court Rules, under HC1774/18.

The respondents, having failed to prosecute their application under HC1774/18 timeously, the appellants filed a chamber application for dismissal of the same for want of prosecution in terms of Rule 236(3)(b) of the High Court Rules, on 8 May 2018, under HC4197/18.

Since both matters were set down for hearing at almost the same time, and, before different judges, a request was made for their consolidation and it was granted.

The court' s approach was to determine the application in terms of Rule 236(3)(b) of the High Court Rules under HC4197/18 first.

It opined, that, if it granted the relief being sought by the appellants that would be the end of both matters. If it dismissed the application, then, it would proceed to hear the respondents application in terms of Rule 75 of the High Court Rules, under HC1774/18, which it coined the main matter.

Regarding the application for dismissal for want of prosecution, the court found that the reasons proffered for the delay in prosecuting the matter were reasonable. It also stated that it had a discretion to discharge the application or make any other order as it deemed fit in the circumstances.

In the result, the application for dismissal for want of prosecution was dismissed and the court ordered that the main matter be heard on the merits.

Pertaining to the issue of the dismissal of the appellants claims, in terms of Rule 75 of the High Court Rules, the court a quo dealt with each of the appellants claims in turn.

It found, that, the appellants claims were frivolous and vexatious and warranted summary dismissal.

Aggrieved by the decision of the court a quo, the appellants noted an appeal to this Court. This is the appeal that this Court is seized with.

“1. The court a quo erred and misdirected itself in that having found that respondents had, by their admission, failed to prosecute their cause within the prescribed period, it ought to have dismissed for want of prosecution; no special circumstances existing to exercise a discretion in their favour.

2. The court a quo grossly erred and misdirected itself in that a prior judgment of the High Court, in HH10-18, having established that a valid and substantiated cause of action based on fraud existed between the parties, it could not render otherwise.

3. A fortiori the court a quo effectively reviewed and contradicted an extant earlier judgment of a judge of parallel jurisdiction on the same cause, between the same parties, contrary to the principles of res judicata and issue estoppel.

4. The court a quo further erred and misdirected itself in finding, contrary to law, that, fraud and fraudulent misrepresentation did not constitute a valid cause of action at law; subsequently, the court a quo erred in failing to find that the question of whether fraud and its constituent elements had been proven was an evidentiary issue reserved for trial.

5. The court further grossly erred and misdirected itself in determining the matter regardless of conflicting material averments which could not be resolved on affidavit a fortiori, it could not find as a matter of fact that the claims by the appellants were frivolous and vexatious, absent evidence and its testing in contested action proceedings.

Although the appellants raised five grounds in their notice of appeal, the matter, in my view, stands to be disposed on three issues viz;

1. Whether or not the court a quo erred in failing to dismiss the respondents application for want of prosecution.

2. Whether or not the court a quo reviewed and contradicted an extant earlier judgment of a judge of parallel jurisdiction thereby violating the principles of res judicata and estoppel.

3. Whether or not the court a quo erred and misdirected itself in determining the matter regardless of the existence of alleged conflicting material averments which could not be resolved on affidavit.

This issue deals with grounds two and three. Put differently, the issue is whether the determination of an exception to the summons and declaration, taken in terms of Order 21 Rule 137(1)(b) of the High Court Rules, bars a litigant from seeking a dismissal of the same action for being frivolous and vexatious under Order 11 Rule 75 of the High Court Rules.

The thrust of the appellants argument is that MANGOTA J's finding that they had a substantiated cause of action, based on fraud, precluded TAGU J from making a finding that the claims were frivolous and vexatious.

It was submitted that TAGU J was bound by the principles of res judicata and estoppel to abide by the extant order of MANGOTA J.

The referred question can be determined by ascertaining the law governing exceptions and dismissal of actions and the nature of the cases before the respective judges.

Rules 137 and 141 of the High Court Rules regulate the procedure to be followed in raising exceptions and the court's powers thereto respectively.

In terms of Rule 137(1)(b) of the High Court Rules, a party can except to the whole pleadings or the specific offending parts. Rule 141(a)(ii) of the High Court Rules empowers the court to make an order striking out or allowing the amendment of the matter contained in a pleading.

In HERBSTEIN & Van WINSEN's The Civil Practice of the High Courts of South Africa, the purpose of an exception procedure was elucidated as follows:

“The taking of an exception is a procedure which is interposed before the delivery of a plea on the merits by a defendant or before the delivery of a replication or joinder of issue by a plaintiff. It is designed to dispose of pleadings which are so vague and embarrassing that an intelligible cause of action or defence cannot be ascertained or to determine such issues between the parties as can be adjudicated upon without the leading of evidence.”…,.

What constitutes a vague and embarrassing pleading was considered in Trope & Ors v The South African Reserve Bank 1992 (3) SA 208…, where the court quoted with approval the lower court's statement that:

“And, if the pleadings lack sufficient clarity to enable the defendant to determine those facts and hence the case he has to meet, the pleadings are vague and embarrassing.”

The test applicable in deciding exceptions based on vagueness and embarrassment arising out of lack of particularity are as summarised by Erasmus Superior Court Practice…, as follows;

“(a) In each case, the court is obliged to first of all consider whether the pleading does lack particularity to an extent amounting to vagueness. Where a statement is vague, it is either meaningless or capable of more than one meaning. To put it simpler, the reader must be unable to distil from the statement a clear single meaning.

(b) If there is vagueness in this sense, the court is then obliged to undertake a quantitative analysis of such embarrassment as the excipient can show is caused to him or her by the vagueness complained of.

(c) In each case, an ad hoc ruling must be made as to whether the embarrassment is so serious as to cause prejudice to the excipient if he or she is compelled to plead to the pleading in the form to which he or she objects. A point may be of the utmost importance to the case, and the omission thereof may give rise to vagueness and embarrassment, but, the same point may, in another case, be only a matter of detail.

(d) The ultimate test as to whether or not the exception should be upheld is whether the excipient is prejudiced.”

See also Sammys Group (Pvt) Ltd v Bourchier Meyburgh N.O. & Ors SC45-15.

From the cited authorities, it can be noted that an exception relates to the formulation of a claim.

A claim must be articulated with sufficient particularity such that it discloses an intelligible cause of action failing which it may be termed vague and embarrassing.

However, the court may set aside the pleadings, and, upon request, grant the plaintiff leave to file an amended pleading within a certain period.

Dismissal at this stage is a drastic remedy, thus, the courts have inclined towards the grant, where an exception is upheld, of leave to the plaintiff to amend the offending pleadings.

The court was called upon to determine whether the claims before it were vague and embarrassing to the extent that a party could not easily understand and plead to them without difficulty owing to an unclear cause of action.

In the exception, claims 1, 2, 4, 5 and 6 were alleged to be vague and embarrassing. It is only claim 3 which was said to be not only frivolous and vexatious but vague and embarrassing as it did not disclose a cognizable cause of action.

However, in their heads of argument, the respondents argued that the summons and declaration were expiciable on the basis that they did not disclose any cause of action against them and that they were vague and embarrassing to the extent that the vagueness and embarrassment went to the root of the cause of action.

A reading of the court's judgment shows, that, the court was alive to the case before it which was an exception to the summons and declaration for being vague and embarrassing. To that end, it determined the following question:

“…, whether or not one or more, or all, of the claims do not, as the defendants alleged, disclose a cause of action.”

Thereafter, the court analyzed whether each of the appellant's claims established a cause of action against the respondent.

However, in finding that four of the appellants claims showed clear and cogent causes of action and fell under the delict of fraud, the court remarked that the claims were “neither frivolous nor vexatious.”

A close look into the court's judgment shows that the phrase 'frivolous or vexatious' was employed concerning whether or not the claims subject to the exception disclosed a cause of action and whether or not they were clear and not vague and embarrassing.

It would appear that the phrase was loosely used if regard is had to the issue the court determined and the resultant disposition of the court (an amendment of the vague and embarrassing claims envisaged by Rule 141 of the High Court Rules).

Order 11 Rule 75 of the High Court Rules allows a defendant, who has filed a plea, to seek dismissal of an action that is frivolous and vexatious. It states:

“ORDER 11 DISMISSAL OF ACTION

(1) Where a defendant has filed his plea, he may make a court application for the dismissal of the action on the ground that it is frivolous or vexatious.

(2) A court application in terms of subrule (1) shall be supported by affidavit made by the defendant or a person who can swear positively to the facts or averments set out therein, stating that in his belief the action is frivolous or vexatious and setting out the grounds for his belief.

(3) A deponent may attach to his affidavit filed in terms of subrule (2) documents which verify his belief that the action is frivolous or vexatious.”

In Rogers v Rogers and Anor 2008 (1) ZLR 330 (S)…, the court, dealing with an appeal against a decision dismissing a claim and granting absolution from the instance in terms of Order 11 Rule 79(2) on the ground that it was frivolous, accepted the following definition of frivolous:

“In S v Cooper & Ors 1977 (3) SA 475 at 476D BOSHOFF J said that the word 'frivolous' in its ordinary and natural meaning connotes an action characterized by lack of seriousness, as in the case of one which is manifestly insufficient.

An action is in a legal sense 'frivolous or vexatious' when it is obviously unsustainable, manifestly groundless, or utterly hopeless and without foundation: see also Western Assurance Co. v Caldwell's Trustee 1918 AD 262 at p271; Corderoy v Union Government 1918 AD 512 at p517; Wood NO v Edwards 1968 (2) RLR 212 at 213A-F; Fisheries Development Corporation v Jorgensen & Anor 1979 (3) SA 1331 at 1339E-F; Martin v Attorney General & Anor 1993 (1) ZLR 153 (S).

It appears to me, that, a plaintiff who commences action in a court of law when he or she has no reasonable grounds to do so has no cause of action. An action without a good cause is baseless and obviously unsustainable.”

Dismissal under Rule 75 of the High Court Rules is therefore a drastic remedy intended to resolve actions that are baseless and unsustainable.

The court per TAGU J, inter alia, determined the respondents application for dismissal of the appellants claims in terms of Rule 75 of the High Court Rules on the basis that they were frivolous and vexatious.

This was after the appellants had amended their claims pursuant to MANGOTA J's order and the respondents had filed their plea.

Notwithstanding the amendment, the respondents argued that the proceedings were not seriously brought with bona fide intent of obtaining relief as the appellants causes of action were founded on falsehoods.

As alluded to, Rule 75 of the High Court Rules allows the course of action taken by the respondents.

Thus, the appellants must have averred material facts in the declaration, proof of which would constitute the essential elements of the alleged causes of action entitling them to the judgment of the court: see Rogers v Rogers and Anor 2008 (1) ZLR 330 (S).

In casu, the appellants claims 1-4 alleged that the respondents made material misrepresentations which caused them financial prejudice; claim 5 related to alleged defamatory statements by the respondents; and claim 6 to mental anguish, emotional embarrassment, and torture due to the respondents exposing their private lives on social media platforms.

The essential elements of the alleged causes of action must have been provided.

Therefore, Rule 75 of the High Court Rules goes beyond the formulation of a claim. It looks into the legal validity of a claim.

Unlike an exception, an inquiry into whether a claim is frivolous and vexatious goes beyond the wording of a claim, it looks into whether the claim has any legal basis or merit. Where it is unsustainable, manifestly groundless, or utterly hopeless and without foundation it is frivolous and may be dismissed.

There is no provision in the rules of the High Court that bars a litigant who excepts to a summons and declaration for being vague and embarrassing, under Rule 137 of the High Court Rules, from seeking the dismissal of the matter under Rule 75 of the High Court Rules on the basis that it is frivolous and vexatious.

The Rules relate to different procedural concepts, are invoked at different legal stages, and afford a party distinct legal relief.

The respondents properly invoked each of the Rules, thus, the court per TAGU J cannot be faulted for determining the peculiar application before it which was distinct from the one MANGOTA J dealt with.

Therefore, res judicata does not arise as the issues dealt with by MANGOTA J and TAGU J were different....,.

In conclusion, TAGU J properly dealt with the claim for dismissal before him.

This is for the reason, that, there is nothing in the Rules to suggest that once the determination of an exception filed under Rule 137 of the High Court Rules has been made, a party cannot move for the dismissal of an action under Rule 75 of the High Court Rules.

The appellants grounds two and three have no merit and ought to be dismissed.

The two matters were consolidated to avoid conflicting judgments as the two matters involving the same parties, and same issues, were ready for arguments at almost the same time before different judges.

At the hearing of the two matters, counsels for the parties did not make oral submissions but agreed that the two matters be decided on the papers filed of record.

The following is the background to the two matters.

Upenyu and Blessing Mashangwa (the Mashangwas) are husband and wife respectively. They are members of the United Family International Church (UFIC).

Emmanuel and Ruth Makandiwa (the Makandiwas) are also husband and wife respectively. The Makandiwas are leaders (prophet and prophetess respectively) of United Family International Church (UFIC).

In case HC7214/18 the Mashangwas filed summons in this Honourable Court containing six claims against the Makandiwas and the United Family International Church for a total sum of US$6,535,000 to be paid jointly and severally, the one paying the other to be absolved.

In their declaration, the Mashangwas claimed that:

(1) In the year 2012, at Harare, and in church, the Makandiwas fraudulently and misrepresented to the Mashangwas that anyone with a bank debt or loan was to be cancelled as it was the season of miraculous cancellation of debts after the Makandiwas were informed, privately, that the Mashangwas had an existing ZB Bank loan to the tune of US$500,000.

As a result of the misrepresentation, the Mashangwas were induced not to pay the ZB Bank loan, and, in the result, the Bank executed on the Mashangwas property being 14 Edinburgh Road, Harare for $500,000 thereby losing their house valued at $700,000.

(2) In the same year, the Makandiwas misrepresented, in church, that one Tichaona Mawere was a great lawyer who would not lose a case, when, in fact, Mr Tichaona Mawere was an unregistered legal practitioner.

Acting on the misrepresentation, the Mashangwas handed over their McDowell file to the said Tichaona Mawere for a claim of US$1,698,000 and expended in fees an amount of US$37,000. Tichaona Mawere then produced fake court orders and the Mashangwas lost a total sum of US$1,735,000.

(3) In the years ranging from 2014 to 2016, the Mashangwas were called on stage, in church, by the Makandiwas and were announced as a successful example in their Ministry (UFIC).

Acting on this misrepresentation, the Mashangwas made various direct contributions to the Makandiwas and the church money amounting to US$1,100,000.

(4) The Mashangwas were also paraded in church, on the stage, by the Makandiwas, as the chosen people by God to have succeeded in business.

As a result of the misrepresentation, the Mashangwas marketed the Makandiwas prophecies to the tune of US$2,000,000.

(5) and (6) In claims (5) and (6), they alleged that the Makandiwas defamed them thereby destroying their reputation and causing monetary loss to the tune of USD500,000.

Having been served with the summons, the Makandiwas entered appearance to defend the claims.

They proceeded to address a letter, in terms of Rule 140 of the High Court Rules 1971, to the Mashangwas pointing out that the claims were vague and embarrassing and that they did not disclose a cause of action, and asked whether they were suing in contract or delict; and, as regards claim (5) and (6) asked whether the claims were in defamation or injuria.

The Mashangwas did not respond to the letter, causing the Makandiwas to file an exception on 30 August 2017 to the Mashangwas pleadings in terms of Order 21 Rule 137(1)(b) in case HC7214/18.

The exception was heard on 6 November 2017 by MANGOTA J in respect of all the six claims but was dismissed on 12 January 2018 and the Mashangwas were ordered to amend their declaration in respect of claims (5) and (6), and, the Makandiwas to plead, and thereafter, the matter was to proceed in terms of the High Court Rules 1971.

However, after the dismissal of their exception, the Makandiwas filed another court application on 23 February 2018 for the dismissal of the Mashangwas claims in terms of Order 11 Rule 75(1) of the High Court Rules 1971 in HC1774/18.

The Mashangwas, having felt that the Makandiwas had neglected or failed to timeously prosecute the court application which they instituted under case HC1774/18, filed a chamber application for dismissal on 8 May 2018 under HC4197/18.

Both applications were ready for hearing at almost the same time, before different judges, hence the consolidation of the two applications.

This court is therefore being asked to decide two issues simultaneously:

(i) The first issue is whether the Makandiwas application should be dismissed for want of prosecution as prayed for by the Mashangwas in HC4197/18.

In the event of this court granting the relief asked by the Mashangwas, this would be the end of the matters and this court will not deal with the Makandiwas application.

(ii) However, in the event that this court dismisses the Mashangwas application for dismissal, the court will proceed to deal with the second issue pertaining to the Makandiwas application for dismissal of the Mashangwas claims in the main case under HC7214/17....,.

After the dismissal of their exception in HC7214/17 the Makandiwas pleaded to the main case and filed this application for summary dismissal of the principal case as being frivolous and vexatious in terms of Order 11 Rule 75(1) of the High Court Rules 1971 (the Rules).

The principal case contained the six claims brought against them by the Mashangwas as outlined above. I shall endeavor to deal with each of the claims where possible.

Suffice to state, at this stage, that Rule 75 of the High Court Rules provides that:

“75 Application for Dismissal of Action

(1) Where a defendant has filed his plea, he may make a court application for the dismissal of the action on the ground that it is frivolous or vexatious.

(2) A court application in terms of subrule (1) shall be supported by affidavit made by the defendant or a person who can swear positively to the facts or averments set out therein, stating that in his belief the action is frivolous or vexatious and setting out the grounds for his belief.

(3) A deponent may attach to his affidavit, filed in terms of subrule (2), documents which verify his belief that the action is frivolous or vexatious.”

In their supporting affidavits, the Makandiwas prayed that the principal case must accordingly be summarily dismissed pursuant to Rule 75(1) of the High Court Rules, and contended, among other things, that the action in the principal case is not only both frivolous and vexatious, but also a self–evident gross and contemptuous abuse of the process of this court on the bases that -

“1. The plaintiffs have deliberately pleaded and founded their purported causes of action on deliberate and easily demonstrable falsehoods;

2. Each of the six (6) claims suffers from predictable failure and so groundless that no reasonable person could ever hope to obtain relief therefrom;

3. The principle case has not been brought with the bona fide intention of obtaining relief;

4. The proceedings have been brought with the sole and mala fide intention of annoying and harassing us. It as such amounts to the unmitigated abuse and contempt of this court and the process thereof; and

5. The principal case is inconsistent with reason and common sense, and, as such, unworthy of serious consideration.”

The respondents (the Mashangwas) opposed the application. They took seven points in limine. The points were:

(1) Matter passed in rem judicatam;

(2) Estopel;

(3) Disputes of fact;

(4) Unlawful reversal of order of proceedings;

(5) Attempt to avoid the consequences of a valid acknowledgement;

(6) Mala fides and abuse of court process; and

(7) Provisions of the Rules not available to applicants.

On the merits, they contended, among other things, that, Mr Makandiwa is a common fraudster, a false prophet who has no relationship with God, is a liar who lied about a lawyer called Tichaona Mawere, and many other ills.

The court will briefly look at the points in limine raised by the respondents.

The contention by the respondents is that another court (MANGOTA J) has already made a determination on the issue and the applicants have not appealed against that determination. The applicants are effectively asking a judge of this court to review a judgment issued by a judge of parallel jurisdiction. They said this matter has passed in rem judicatam and the exercise of function by this court has already ceased.

What the respondents are failing to understand is that MANGOTA J dealt with an exception in terms of Order 21 Rule 137(1)(b) of the rules of this Honourable Court wherein the complaint was that there was no cause of action or that the particulars of claim were vague and embarrassing and needed correction.

MANGOTA J's judgment did not relate to the facts. The judgment called the respondents to plead to the merits.

In City of Harare v D & P Investments (Pvt) Ltd & Anor 1992 ZLR 254 (SC) the court said:

“An exception is plainly an 'answer to the plaintiff's claim' or, for that matter, to the defence raised. Its main purpose is to obtain a speedy decision upon a point of law apparent on the face of the pleading attacked and so settle the dispute in the most economical manner by having the faulty pleading set aside.”

An exception does not investigate the facts.

The veracity of the facts was not before MANGOTA J.

The current application is an application for summary dismissal of the claim in terms of Order 11 Rule 75(1) of the High Court Rules on the basis that the claims were frivolous and vexatious.

The application does not raise the same issues as were before MANGOTA J.

Issues before MANGOTA J were technical and preliminary legal objections without going into the merits.

In my view, the requirements of both applications are totally different though they involve the same parties.

It does not mean a decision made under either of the Rules automatically affects the other.

The law makers, in enacting the two Rules, and in their wisdom, were cognizant of the different reliefs to be granted under each Rule; for example, the respondents were being asked to put values of the prejudice in claims (5) and (6).

If the respondents had complied and responded to the letter of complaint written by the applicants in terms of Rule 140 of the High Court Rules, this matter probably could not have gone this far.

In the current application, the relief being sought is a summary dismissal of the claims.

For that reason, it cannot be said this matter has passed in rem judicatam and the exercise of function by this court has already ceased.

While the applicants may have appealed against the decision of MANGOTA J, they were not barred from invoking Rule 75(1) of the High Court Rules.

I therefore dismiss this point in limine....,.

This is an appeal against the whole judgment of the High Court, Bulawayo handed down on 23 December 2021, granting a spoliatory relief in favour of the respondents.

The facts giving rise to this appeal are straight forward and largely common cause as set out herein:

The first respondent is the owner of Esidakeni Farm held under Deed of Transfer 1980/90 (“the farm”). On 18 December 2020, the Minister of Lands, Agriculture, Water and Rural Resettlement acquired the farm through a Notice of Acquisition, being General Notice 3042 of 2020, under the land reform programme.

The respondents instituted an application in the court a quo seeking to nullify the purported acquisition on the basis that it was constitutionally invalid.

That application is yet to be determined.

In March 2021, the second appellant (Obert Mpofu) visited the farm making enquiries about it. Pursuant to that visit, in November 2021, the third appellant (Sikhanyisiwe Mpofu) and a group of people visited the farm and advised the manager that they had come to occupy the farm.

On 4 December 2021, the aforementioned group of people returned to the farm and started ploughing a field known as Block F and Block H. The group claimed that they had been given an offer letter. The fields they cultivated had been occupied by the respondents, who, at the time of invasion, were preparing land for cropping.

Disgruntled by the conduct of the incoming intruders, the respondents filed an urgent chamber application in the court a quo seeking spoliatory relief.

They alleged that they had been in peaceful and undisturbed possession of the farm. The respondents contended, that, they had further installed improvements on the farm. The respondents further asserted that the appellants had unlawfully resorted to self-help thereby disrupting their farming activities.

The appellants opposed the application for spoliatory relief.

They contended, that, they are the rightful occupants of the farm since they are holders of an offer letter and had given the respondents three months notice to vacate the farm. The appellants further submitted, that, when they moved in they did not cause any violence and that there were no occupants at the time. They maintained, that, by virtue of the offer letter, they were legally entitled to occupy the farm as they did.

The court a quo, in coming up with a disposition reasoned, that, having an offer letter entitled a party to legally seek redress in the event that the former occupier remained in situ. It reasoned, that, the holder of an offer letter ought to follow due process of eviction in order to assert its rights. The court held, that, holders of offer letters are empowered to seek redress by lawful means as opposed to self help.

It thus granted the spoliation order on the basis that the requirements for such a relief, namely, being in peaceful and undisturbed possession and being wrongfully and forcibly removed were met by the respondents.

Aggrieved by the decision of the court a quo, the appellants lodged the present appeal to this Court.

Essentially, the appellants challenged the decision on the basis that the court a quo misdirected itself when it granted the spoliation order in favour of the respondents in spite of the fact that the appellants are holders of an offer letter.

The appellants raised five (5) grounds of appeal as follows:

1. In granting the spoliation order in favour of the respondents, the court a quo erred in relying on common law principles to effectively authorize the respondent's unlawful occupation of gazetted land and thus rendering nugatory the clear provisions of section 3 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28].

2. The court a quo erred in evicting the appellants from the property when it was common cause that the appellants were holders of an offer letter which made them lawful occupiers of the disputed portion of the farm.

3. Subdivision A of subdivision B of Umguza Block measuring 195,8095 hectares having been further subdivided, the court a quo erred in failing to appreciate that the appellants were in occupation of a distinct piece of land being the remaining extent of subdivision A of subdivision B of Umguza Block, measuring 145 hectares, as described in the offer letter and which portion was unoccupied by the respondents at the time the appellants took possession.

4. The court a quo erred in making a finding that the respondents were wrongfully or forcibly deprived of possession when no admissible evidence was adduced to that effect.

5. By ordering the appellants to pay costs of suit, the court a quo erred in granting assistance to the respondents who were acting in open defiance of the law.

Counsel for the appellants submitted, that, the appellants, as holders of an offer letter, were entitled to occupy the farm ahead of the respondents who remained in occupation in violation of section 3 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] (“The Act”).

He further contended, that, although the court does not condone self-help, spoliation should not be granted where a former owner of acquired land continues to stay on the farm after the expiration of ninety days.

He submitted, that, the court does not have jurisdiction to assist an occupant who remains on the land after it has been gazetted and acquired by the State. The appellants counsel relied on the case of Commercial Farmers Union and Ors v Minister of Lands and Rural Settlement and Ors SC 2010 (2) ZLR 576 (S).

Per contra, counsel for the respondents submitted, that, the assertion that the appellants were holders of an offer letter does not legally entitle them to resort to self help and disturb peaceful possession of the respondents.

He submitted, that, although the case of Commercial Farmers Union and Ors v Minister of Lands and Rural Settlement and Ors SC 2010 (2) ZLR 576 (S) was distinguishable from the facts of this matter, the case made it clear that both the recipient of an offer letter and the former occupiers had to resort to lawful means, and follow due process, in effecting change of occupancy.

He contended, that, instead of resorting to self-help, the appellants, as holders of an offer letter, could institute ejectment proceedings.

He argued that the court a quo properly granted spoliatory relief to the respondents.

Although the appellants raised five (5) grounds of appeal, only one issue commends itself for determination. The issue is whether or not the court a quo erred in granting spoliation relief in favour of the respondents.

It is settled, that, in order to obtain a spoliation order two requirements must be satisfied. In the case of Botha and Another v Barret 1996 (2) ZLR 73 (S) GUBBAY CJ…, stated that:

“It is clear law that in order to obtain a spoliation order two allegations must be made and protected. These are:

1. That the applicant was in peaceful and undisturbed possession of land;

2. That the respondent deprived him of the possession forcibly or wrongfully against his consent.”

The requirements for spoliatory relief were further discussed in Streamsleigh Investments (Pvt) Ltd v Autoband (Pvt) Ltd SC43-14. The court held as follows:

“It has been stated in numerous authorities, that, before an order for mandamus van spolie may be issued an applicant must establish that he was in peaceful and undisturbed possession and was deprived illicitly: see also Nino Bonino v De Lange 1906 TS 120 at page 122 where the court, in outlining the scope of the mandamus van spolie, stated as follows:

'It is a fundamental principle that no man is allowed to take the law into his own hands. No one is permitted to depose another forcibly or wrongfully against his consent of possession of property whether movable or immovable. 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.'”

From case law, it is apparent that even if one is not the rightful owner, if they are in undisturbed and peaceful possession, due process, and not self-help, ought to be followed to evict the possessor.

In the case of Forester Estate (Private) Ltd v M.C.R. Vengesai and The Minister of Lands in the Office of the President and Cabinet HH19-10, PATEL J…, made the following pertinent remarks…,:

“An offer letter does not entitle the holder to occupy the land allotted to him before the current occupier has been duly evicted by due process of the law. Consequently, the offeree cannot resort to self-help in order to dispossess or eject the occupier - no matter how intransigent the latter may be in his refusal to vacate the property. The offeree must wait until the State has taken steps to evict the occupier through a court order, granted by a court of competent jurisdiction, under the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] or otherwise.

In the absence of such court order, or the consent of the current occupier, the offeree has no self-executing right to occupy the land.”

In spoliation matters, it is apparent the deciding factor is that deprivation should be effected lawfully. Our law deprecates self help. Even Commercial Farmers Union and Ors v Minister of Lands and Rural Settlement and Ors SC 2010 (2) ZLR 576 (S) makes it clear that anarchy and chaos brought about by self-help is not acceptable.

The individual with an offer letter has the locus standi in judicio to seek the eviction of a former owner after acquisition of land by the State. This by no means suggests authorization of invasion in a lawless manner.

In spoliation matters, the issue of ownership does not arise.

The one seeking spoliation relief only has to show that they were in peaceful and undisturbed possession and were wrongfully and forcibly dispossessed.

In casu, it is not in dispute that the respondents were in occupation of the farm in question, whether lawfully or otherwise.

It is also not in contention, that, the appellants approached the farm and occupied the land in question, although they term it land lying fallow.

The land in question, being a farm, it would not be feasible for the respondents or its workers to be on each and every inch of the farm. It is sufficient that the respondents, as de facto occupants, were in situ and had commenced land preparation.

The coming in of the appellants was not sanctioned by law since there was no court order for eviction.

The respondents, who had been despoiled, therefore had to approach the court seeking a mandament van spolie order. The court a quo granted the spoliation order.

What is at stake, as highlighted earlier in case law, is the lawfulness or otherwise of the actions of the incoming possessor.

The court, in restoring the status quo ante, will be seeking to uphold the essential rationale for the remedy which is that the rule of law does not countenance resort to self help: see Ngukumba v Minister of Safety and Security and Others 2014 (7) BCLR 788 (CC)…, where the court held as follows…,:

“The essence of the mandament van spolie is the restoration before all else of unlawfully deprived possession to the possessor. It finds expression in the maxim spoliatus ante omnia restituendus est (the despoiled person must be restored to the possession before all else). The spoliation order is meant to prevent the taking of possession otherwise than in accordance with the law. Its underlying philosophy is that no one should resort to self-help to obtain or regain possession. The main purpose of the mandament van spolie is to preserve public order by restraining persons from taking the law into their own hands and by inducing them to follow due process.”

The appellants in this case, by descending on Esidakeni Farm and starting land preparations, disrupted the respondents peaceful and undisturbed possession. The fact that the appellants had an offer letter does not entitle them to resort to self-help in taking over possession without due process of the law.

It is this disregard of the law which prompted the respondents to approach the court a quo for redress.

The court a quo correctly granted the spoliation order in favour of the respondents. In so doing, the court a quo was buttressing the core values and objectives of protection of possession of property against unlawful dispossession.

The sentiments of the court, in the case of Chiwenga v Mubaiwa SC86-20, resonate well with the circumstances of this case. The court stated as follows…,:

“The same applies to spoliation, a remedy designed to avert self-help in a democratic civilized society. The remedy forbids the law of the jungle where survival of the fittest reigns supreme. Thus, the courts will quickly come to the aid of the vulnerable and the weak to restore custody and possessions where one is unlawfully deprived of the same by the strong and valiant.”

See also Base Minerals Zimbabwe (Pvt) Ltd and Ors v Mabwe (Pvt) Ltd SC29-15…, where GWAUNZA JA…, made the following pertinent remarks:

“Apart from these contentions coming nowhere near establishing any of the defences recognized by law in spoliation proceedings, I find that the appellants are effectively advocating for an environment where the 'take the law into your own hands' adage becomes the norm. It hardly needs mention that this approach offends against the very raison d'etre of the law generally and a mandamus van spolie in particular, that is, the preservation, promotion, and enforcement of law and order in and amongst members of the society.”

In casu, the mere fact that the appellants hold an offer letter is not sufficient basis for them to take the law into their own hands and seek to dispossess the respondents who were in possession immediately prior to being despoiled.

It is the brazen invasion by the appellants to the farm which disrupted the respondents, who were in peaceful and undisturbed possession, which calls for spoliatory sanction. The appellants, without following due process, imposed themselves on the respondents possession. The dispossession of the respondents by the appellants was unlawful and it was done without the respondents consent.

The court a quo properly frowned at self-help which is repugnant to our constitutional values. It thus properly restored possession to the respondents by granting the spoliation relief.

The requirements for a spoliation order were clearly satisfied. The decision of the court a quo is unassailable. The appeal is without merit and must fail.

As regards costs, there is no reason why we should depart from the normal trend that costs follow the result.

Accordingly, it is ordered as follows:

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

This is an appeal against the whole judgment of the Intellectual Property Tribunal of Zimbabwe (“the Tribunal”) delivered at Harare on 29 May 2019 wherein the Tribunal upheld the appeal noted by the respondent against the decision of the Registrar of Trade Marks.

Aggrieved by that turn of events, the first appellant has noted this appeal to this Court for relief.

The appeal was noted in terms of section 16 of the Intellectual Property Tribunal Act [Chapter 26:08].

The second appellant was not party to the proceedings before the Registrar of Trademarks nor was it party to the subsequent appeal before the Intellectual Property Tribunal of Zimbabwe (the Tribunal).

Similarly, it played no active part in the present appeal.

It has been joined in this appeal because the trade marks forming the subject matter of the appeal were duly registered in its name on 27 January 2016. It thus has a direct and substantial interest in the outcome of this appeal.

Its mere joinder shall have no bearing on the outcome of this appeal. The dispute to be determined is, to all intents and purposes, between the first appellant and the respondent.

The facts of the matter are as follows:

The respondent (hereinafter referred to as “Lion Match South Africa”) owned the first appellant (then registered as Lion Match Rhodesia) during the period 1906 to 1954.

During the year 1954, the respondent sold its business, including its trademarks and goodwill, to the first appellant. It was understood between the parties that the “Lion” brand was alive in the then Rhodesia by reason of that sale. On that understanding, Lion Match South Africa withdrew from Rhodesia.

In 1979, the first appellant changed its name to Lion Match Limited and subsequently became Lion Match (Zimbabwe) Limited, as it is presently known. It continued with the business it had inherited from the respondent.

In 2006, the first appellant experienced financial difficulties and labour unrest. Its operations were interrupted which resulted in its trademarks lapsing.

In the meantime, the respondent started trading within Zimbabwe using the first appellant's trademarks.

It submits, that, it was entitled to use the first appellant's trademarks by virtue of the authority given to it by the first appellant through a letter written by the first appellant's Chief Executive Officer, one Mr Banda.

Not content with trading under the authority of the first appellant, the respondent sought to take over these trade marks for its own.

Believing the first appellant's trademarks had lapsed due to non-use or abandonment, the respondent approached the office of the Registrar with an application to register as its own, the first appellant's trademarks.

The applications are detailed below:

1. On 4 June 2010, Lion Match South Africa applied to register LION (word mark) No.493/10.

2. On 4 June 2010, Lion Match South Africa applied to register the LION SAFETY MATCHES Label No.495/10.

3. On 8 June 2010, Lion Match South Africa applied to register LION DEVICE No.517/10.

After learning of the respondent's applications, the first appellant thereafter applied to register its trademarks in November 2010 as follows:

1. On 3 November 2010, Lion Match Zimbabwe applied to register the LION MATCH (word mark) No.1128/2010.

2. On 3 November 2010, Lion Match Zimbabwe applied to register the LION DEVICE No.1129/2010.

3. On 22 November 2010, Lion Match Zimbabwe applied to register the LION MATCH (word) and LION DEVICE No.1246/10.

On 9 February 2012, Lion Match South Africa filed notices of opposition against the registration of trade-marks No.1127/10, 1128-9/10 and 1246/10.

On 12 July 2012, Lion Match Zimbabwe filed counter statements in respect of trademarks No.1127/10, 1128-9/10 and 1246/10.

The Registrar found in favour of the first appellant and granted its application to register the above trademarks. In doing so, he noted the similarities between the first appellant's trademarks and those applied for by the respondent.

He opined, that, allowing both parties to register these trademarks would lead to confusion in the market as they were visually and conceptually identical.

He noted that the appellant had not used its trademarks since the year 2000.

Relying on the decision of the Canadian Federal Court in Governor Inc v The One Group LLC (Gouverneur) 2015 FC 128 he held, that, the non-use of the appellant's trademarks was justifiable.

In the above case, it was held that non-use of a trademark may be justified by special circumstances which may be determined by a consideration of the following factors:

(i) The length of time the trade mark has been in use;

(ii) Whether there is serious intention on the registrant to shortly resume use, and, most importantly;

(iii) Whether the circumstances alleged to justify non-use were beyond the registrant's control.

Applying these principles, the Registrar found that the first appellant had been affected by external circumstances which were beyond its control. He also found, that, the evidence before him showed that the first appellant had the intention to continue using its trademarks. He also ruled that the lapse of a trademark due to effluxion of time does not equate to abandonment of the trade mark.

For that proposition, he relied on the case of Crash Dummy Movie LLC v Mattel Inc 601 F 3d 1387, Court of Appeal, Federal Circuit 2010 wherein it was held as follows:

“Although Mattel later allowed its trademark to lapse, cancellation of a trademark registration does not necessarily translate into abandonment of common law trademarks rights. Nor does it establish its owner's lack of intent to use the mark.”

For these reasons, the Registrar rejected the argument advanced by the respondent, that, since the first appellant's trademarks are deemed to have lapsed, the first appellant had lost the right to use them.

As for the respondent's claim that it had accrued goodwill since 1995, the Registrar noted that the entry of the respondent in the late 1990's into the Zimbabwean market was improper as the appellant was, at the time, using its trademarks. The respondent's conduct in this regard was illegal. No goodwill can arise out of respondent's illegal activities in Zimbabwe, reasoned the Registrar.

He observed, on the contrary, that the first appellant had enjoyed goodwill in Zimbabwe since 1954 and that the appellant's brand is well known throughout the country.

The Registrar concluded, that, although the first appellant's trade marks had lapsed, they still belonged to the first appellant.

He allowed registration of these trademarks because he was of the view that the appellant possessed prior existing rights which, in the circumstances of the case, had not been eroded.

The Registrar's order reads as follows:

“The grounds of opposition cannot succeed because:

(a) Lion Match Zimbabwe has a proven goodwill of over 100 years. Goodwill is an essential element in passing off. Lion Match has a better standing in that respect.

(b) The issue of non–use is invalid especially construed from a view that it equates to abandonment. Lion Matches proved that they actually did not abandon their marks.

(c) The marks applied for are related to earlier trademarks rights, which have been determined as valid, thus the opponent cannot derive strength (517/2010) in the mark basically invalidly registered.

(d) Trade mark (517/2010) is invalidly protected in Zimbabwe as it is predated by earlier rights.

(e) I find the application for revocation of marks 1127/2010, 1128-9/2010, and 1246/2010 fails.

As such, I hereby declare that the marks applied for by the applicant be sealed.”

It was against that order that the respondent noted an appeal with the Intellectual Property Tribunal of Zimbabwe (the Tribunal). It did so on the following grounds:

“GROUNDS OF APPEAL

1. The Registrar erred in finding, that, the goodwill built by the appellant since the late 1990's in Zimbabwe was a nullity and bordered on illegal conduct. On the contrary, the Registrar ought to have found the appellant traded lawfully and that by June 2010, when the appellant applied to register its Lion trademarks, the appellant's products were well known to a substantial number of consumers in Zimbabwe; that the appellant had a substantial reputation and goodwill in the mark LION in relation to match products; and that the appellant was the true proprietor of the LION trade marks in relation to matches in Zimbabwe.

2. The Registrar erred in finding, that, the respondent had a residual goodwill in the LION trade mark when the evidence showed, inter-alia, that the respondent:

2.1 Had for a long time ceased to trade in the products;

2.2 Had allowed its trade mark registration to lapse in 2006; and

2.3 Had been (and remains) incapable of supplying any of the products to consumers for more that 10 years.

3. The Registrar erred in finding that there was a common law basis for protecting the respondent's trademarks when the registrations had long expired in 2006 and had not been renewed. On the contrary, the Registrar ought to have found that the respondent had abandoned its trademarks, and that it was no longer the true and bona fide proprietor of the LION trade marks in Zimbabwe, and that it is not entitled to enjoy legal protection of trademarks, as provided for at common law and in terms of the Trade Marks Act (the “Act”).

4. The Registrar erred in failing to find, that, the fact that the respondent had filed fresh applications to register its LION trademarks, some five years after its previous trademarks had elapsed, is indicative of the fact that there was no residual goodwill held by the respondent in its LION trademarks.

5. The Registrar erred in finding that historical use and ownership of similar trade marks were relevant factors under the Act in considering the applications in the circumstances of this case.

6. The Registrar erred in dismissing the appellant's opposition, notwithstanding that the appellant had shown that, at all material times, between 2009 and before June 2010, the respondent was aware of the appellant's use of its own LION trade mark in Zimbabwe but elected to take no action.

7. The Registrar erred in failing to find that the respondent had itself permitted the appellant to trade in the goods in Zimbabwe and that authorisation of the respondent's then Chief Executive, Mr. Banda, was binding on the respondent as a matter of law by virtue of section 12 of the Companies Act [Chapter 24:03].

8. The Registrar erred in taking into account economic circumstances where there had been for a long period non-use of the LION trade marks by the respondent in Zimbabwe.

9. The Registrar, after finding that the appellant's and the respondent's trade marks were identical, erred in dismissing the appellant's opposition when the appellant had in fact applied to register its LION trademarks prior to the respondent's application to register its trademarks.”

The relief sought before the Intellectual Property Tribunal of Zimbabwe (the Tribunal) was that the appeal be allowed with costs and that the decision of the Registrar be set aside and be substituted with an order in the following terms:

“1. The appellant's application for registration of the following trade marks in class 34 in Zimbabwe:

1.1 Application No.493/2010 LION filed on 4 June 2010;

1.2 Application No.495/2010 - LION SAFETY MATCHES and sitting Lion Device, filed on 4 June 2010 be and are hereby granted;

2. The following respondents applications for registration in class 34:

2.1 Trade mark application No.1127/2010 LION MATCHES and LION Device;

2.2 Trade mark application No.1246/2010 LION MATCH;

2.3 Trade mark application No.1128-9/2010 LION MATCH (words) and LION Device; be and are hereby refused;

3. The respondent is to pay the costs of suit.”

The Tribunal allowed the appeal with costs and set aside the Registrar's decision. It proceeded to grant the respondent's application as set out above and refused the appellant's application.

In arriving at that decision, the Intellectual Property Tribunal of Zimbabwe (the Tribunal) reasoned as follows:

The first appellant had allowed its trademarks to lapse through non-use for a considerable period. It had accordingly lost its right to use them. Any party could thereafter make an application to register them as its own.

The Tribunal cited various authorities in support of this view, including section 24 of the Trademarks Act and the following cases: New Balance Athletic Shoe Inc v Dajee NO and Others (251/11/2912) ZA SCA 3 (2 March 2012); AM Moola Group Limited v The GAP Inc 2005 (6) SA 568…,.

It further held, that, the respondent's applications for registration were lodged well ahead of those for the first appellant, and, consequently, should prevail on the principle of first come first served; a principle acknowledged by this Court in Philip Morris Products Inc v Marlboro Shirt Company SA Ltd 2001 (2) ZLR 399 (S).

The Intellectual Property Tribunal of Zimbabwe (the Tribunal) criticised the Registrar for treating the application by the first appellant as one for restoration of its trademark, whereas it was a fresh application for registration of trademarks made in terms of section 11 of the Regulations.

It also noted, that, prior to its application, the first appellant had, through its CEO, Mr. Banda, obtained permission to use the first appellant's trademarks.

Aggrieved by the decision of the Tribunal, the appellant has noted this appeal to this Court for relief.

The grounds of appeal in this Court are as follows:

“1. The learned Judge in the Tribunal erred in finding that there was an intention to abandon or that the trade marks forming the subject of the instant dispute were abandoned.

2. Further, and in any event, the learned Judge in the Tribunal erred in failing to place any emphasis on or satisfying himself that the mandatory provisions set out in section 24 of the Trade Marks Act [Chapter 26:04] had been satisfied.

3. The learned Judge in the Tribunal erred in finding that the trade marks forming the subject of the instant dispute had been lawfully removed from the register.

4. The learned Judge in the Tribunal erred in law in finding that no rights were retained by appellants, one or either of them, following the lapse of the trade marks in question, and, in particular, the learned Judge in the Tribunal erred in disregarding the provisions of section 14(1) of the Trademarks Act [Chapter 26:04].

5. The learned Judge in the Tribunal erred in failing to have regard to the fact that appellants, or one or either of them, had established a reputation and had goodwill in respect of the trademarks.

6. The leaned Judge in Tribunal erred in upholding the application for registration brought by respondent.”

The appellants seek the following relief:

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

2. The judgment of the Tribunal be set aside and the following is substituted:

'The appeal against the decision of the Registrar be and is hereby dismissed with costs.'”

The sole issue for determination in this appeal is whether the appellant's registered trade-marks had lapsed and were, as such, open to use by other parties.

In coming to the conclusion that the appellant's trade marks had lapsed, the Intellectual Property Tribunal of Zimbabwe (the Tribunal) dealt extensively with the law regarding lapse and loss of trademarks in general.

However, the Tribunal failed to deal with one decisive factor which was raised before the Registrar by the appellants.

At paragraph 4 of its founding affidavit, the first appellant stated as follows:

“4. Applicant has a valid Trade Mark on the register, Trade Mark 172/99 which is due for renewal in February 2019. This mark comprises a sitting lion and the words 'lion reds, superior quality safety matches' and registered subject to disclaimers.”

Further, at paragraph 5 of the same affidavit it is stated as follows:

“5. The applicant's Trade MARK 'Lion Match' accompanied by a device of a sitting lion in numerous variations have been in use in Zimbabwe since 1906 as evidenced by the following marks:

                                        device                          34

The appellant's contention, inter alia, is that Trade Mark 172/99 above is still on the register and was due for renewal in February 2019.

The respondent has not disputed this fact, although it says it has lodged an application to de-register trade mark 172/99.

Until such an order for de-registration is granted, trade mark 172/99 remains alive and available for use by the appellants.

It is common cause that the respondent wishes to register the appellant's trade marks on the basis that they have lapsed.

However, Trade Mark 172/99 has not lapsed.

The lapsed trademarks which the respondent seeks to register bear a substantial resemblance to Trade Mark 172/99 which is still registered and therefore valid.

Accordingly, the Tribunal's decision allowing the application by the respondent runs foul to the provisions of section 14(1)(a) of the Trade Marks Act [Chapter 26:04] which provides:

“Prohibition of registration or maintenance of registration of deceptive, etc matter

14(1) A mark -

(a) The use of which would be likely to deceive or cause confusion; or

(b)…,.; or

(c)…,.; or

(d)…,.; or

(e)…,.; or
shall not be registered as a Trade Mark.”

The Intellectual Property Tribunal of Zimbabwe (the Tribunal) erred in ordering registration of the respondent's trademark when there was already in existence a similar trade mark registered in the name of the appellant, namely, trade-mark 172/99. The resemblance between the appellant's trade mark 172/99 and the respondent's proposed trademarks would have caused confusion in the market.

For this reason, the appeal must succeed. Costs shall follow the result.

It is accordingly ordered as follows:

1. The appeal succeeds with costs.

2. The judgment of the Intellectual Property Tribunal of Zimbabwe be and is hereby set aside and in its place substituted the following:

“The appeal against the decision of the Registrar be and is hereby dismissed with costs.”

At the hearing, the appeals were consolidated with the consent of the parties, and heard in the following manner:

The appellant in SC109/21 (Master of the High Court of Zimbabwe) made submissions as the first appellant, the appellant in SC15/21 (Rugare Mandima) as the second appellant, and the appellant in SC17/21 (House of Sari (Pvt) Ltd) as the third appellant.

The first to third respondents (David Takaendesa, Macdonald Takaendesa and Den Takaendesa) in all the appeals remained as previously cited, with the Registrar of Deeds being the fourth respondent, though there was no appearance on his behalf.

Although there were three different appeals attacking the same judgment, I intend to address all the appeals in one composite judgment as the issues raised are similar.

In this judgment, I will also refer to the first appellant as 'the Master' the second appellant as 'the executor' the third appellant as 'the purchaser' and the first to third respondents as 'the beneficiaries'.

The three appeals herein are against judgment no. HH806-20 of the High Court ('court a quo') dated 16 December 2020, which granted an application to set aside “two consents of sale” issued by the Master of the High Court, agreements of sale signed between the executor and the purchaser, and finally set aside the transfer of title made in favour of the purchaser.

The first to third respondents (David Takaendesa, Macdonald Takaendesa and Den Takaendesa) are beneficiaries of the estate of the late Kudzai Takaendesa (the deceased), who died on 15 July 2015.

The second appellant (Rugare Mandima) was appointed as the executor of the estate in terms of a Will in which the deceased directed that the senior partner of Danziger and Partners be appointed as such upon her passing.

The estate comprised three farms being; certain piece of land situated in the District of Gatooma called Koppies measuring 1,358,0053 hectares; certain piece of land situated in the District of Hartley called Lorraine of Richmond measuring 595,5918 hectares; and certain piece of land situated in the District of Hartley called Remainder of Richmond measuring 679,7636 hectares ('the farms') and a butchery in Kwekwe situated at Stand 2040 Amaveni Township, Kwekwe.

The estate had liabilities amounting to USD$16,287=13 arising from administrative costs inclusive of the Master of the High Court's fees, Value Added Tax, advertising, valuation charges, and a provision for duty.

The executor, in the execution of his duties, requested the beneficiaries to settle the estate liabilities.

The beneficiaries only managed to pay USD$2,625 leaving a balance of USD$14,047 as at 10 January 2018.

Following the beneficiaries failure to settle the full amount, the executor wrote to the Master of the High Court, on 10 January 2018, seeking authority to sell the three farms by private treaty in order to liquidate the estate liability.

The Master of the High Court issued a consent to the sale in terms of section 120 of the Administration of Estates Act [Chapter 6:01] (the Administration of Estates Act) on 25 January 2018 in respect of two farms known as Koppies measuring 1358,0053 hectares and Lorraine Richmond measuring 595,5918 hectares, and, on the 17 October 2019 in respect of the farm known as remainder of Richmond measuring 679,7636 hectares.

The consents were granted on condition that the executor would first communicate the decision to dispose the farms to the beneficiaries.

As a result of the “consents to sell” all three farms were sold to the purchaser represented by one Mr. Arafas Mtausi Gwaradzimba, who owns a neighbouring farm, for a total amount of USD$700,000.

On 12 March 2018, the beneficiaries wrote an email to the executor with an instruction that he should not sell the farms but that he should rather sell the butchery in Kwekwe to recover the estate liabilities.

On 20 July 2018, legal practitioners representing all the beneficiaries wrote to the executor objecting to the proposed sale of the farms on the basis that:

(i) Firstly, they did not consent to the sale of the farms; and

(ii) Secondly, that the proceeds from the sale of the Kwekwe butchery would be sufficient to settle the estate's liabilities.

This letter was copied to the Master of the High Court.

It was further alleged, that, the executor was advancing his own personal interest in insisting on the sale of the farms rather than the interests of the beneficiaries.

By letter dated 6 of August 2018, the Master of the High Court informed the beneficiaries that their objections had been noted, but, however, the consent to sale could not be revoked as the decision had already been made.

Dissatisfied by the Master of the High Court's decision to grant the executor's request for “consent to sell” the three farms, the beneficiaries made an application before the court a quo, in terms of section 4 of the Administrative Justice Act [Chapter 10:28] ('the Administrative Justice Act'), seeking the setting aside of the decision of the Master of the High Court on the basis that he acted unlawfully, unreasonably, and in an unfair manner in granting the consent.

The court a quo, in dealing with the application, held that the Master of the High Court failed to conduct a 'due inquiry' in accordance with section 120 of the Administration of Estates Act.

The court a quo further held, that, the decision to issue the “consent to sell” the three farms, without holding an inquiry in terms of section 120 of the Administration of Estates Act, was illogical and grossly unreasonable.

The court a quo reasoned, that, the Master ought to have enquired into the propriety or otherwise of the sale of the three farms in light of other possible assets that could have been sold, and whether or not it was in the best interest of the beneficiaries to sell the farms.

The court found that the Master of the High Court ought to have granted the beneficiaries an opportunity to be heard before making his decision.

The court a quo accordingly found, that, as section 120 of the Administration of Estates Act had not been complied with, the decision by the Master of the High Court, authorising the executor to sell the three farms, was unlawful, unreasonable, and unfair.

It also found that the sales of the farms were a nullity and ordered that they be set aside.

The court consequently vacated the agreements of sale entered into between the executor and the purchaser.

It set aside the consents to the sales of the farms issued by the Master of the High Court, cancelled the transfers of the farms, and ordered the resuscitation of the Estate Deed of Transfer Number 6708/2019 back into the deceased's estate.

With regards to costs, the court ordered that the Master of the High Court and the purchaser pay the beneficiaries costs on a party and party scale with the executor being ordered to pay costs de bonis propriis on the basis that there was collusion between him and the purchaser.

Aggrieved by the decision of the court a quo, the three appellants each noted separate appeals attacking the judgment, essentially on the basis that it erred in failing to find that the Master of the High Court's decision was properly made after due compliance with the Administration of Estates Act.

An examination of the grounds of appeal shows, that, the single thread that runs through the three appeals is the question of whether or not the Master of the High Court complied with the provisions of section 120 of the Administration of Estates Act before issuing the “consent to sell” the three farms.

Counsel for the first appellant argued, that, the Master of the High Court had no real interest in this case and was essentially a passenger in the litigation. This was, so the argument went, because once he had made a decision in respect of the sale of the three farms, he became functus officio.

He contended, that, the Master of the High Court reached the decision to “consent to the sales” after due consideration of the facts of the case as placed before him by the executor.

It was his submission, that, section 120 of the Administration of Estates Act does not place an obligation on the Master of the High Court to carry out a judicial investigation before issuing a “consent to sell”. He asserted that the inquiry which must be conducted by the Master merely related to whether or not there are any restrictions to sell that may be contained in the Will of the deceased. He thus submitted that it was a very limited inquiry.

Counsel for the first appellant further asserted, that, there was nothing unlawful about issuing a consent with a condition that the executor must inform beneficiaries about the sale.

He, however, conceded that the absence of consent to sale at the time when the agreement of sale was executed in respect of the third farm meant that the agreement was void as there was no condition in the agreement stating that the agreement would only become perfecta once the consent from the Master of the High Court on the third farm had been obtained.

In the final analysis, he submitted that the decision by the Master was not unreasonable or unfair in the circumstances because the finalisation of the estate had been outstanding for a long time.

Further, that the order of costs made against the Master of the High Court was unwarranted and ought to be set aside as the decision was made in the course of his administrative functions.

He prayed for the appeal to be allowed with costs.

Counsel for the executor argued, that, the Master of the High Court correctly exercised his discretion in granting the “consent to the sale” based on the documentation placed before him.

He asserted that there was nothing unreasonable or unfair about the Master of the High Court's decision to “consent to the sale” of the three farms as he acted in accordance with the law.

Counsel also submitted, that, the phrase 'due inquiry' under section 120 of the Administration of Estates Act is limited only to the question of the mode of disposal of the property and not to any other issue.

He argued, that, the order of costs de bonis propriis made against the executor was improper because the order was not sought by the applicants a quo but was imposed by the court, without inquiry, as required by law.

He therefore prayed for the appeal to succeed.

Counsel for the purchaser submitted, that, the beneficiaries could not challenge the sale of the farms without surrendering the proceeds of sale that had been transferred into their accounts.

He argued, that, the due inquiry in terms of section 120 of the Administration of Estates Act is restricted only to the question of whether to sell by private treaty or public auction.

He asserted, that, the Master of the High Court's decision was lawful. He thus prayed for the appeal to be allowed.

Per contra, counsel for the beneficiaries submitted, that, the Master of the High Court's decision violated section 68 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (hereinafter referred to as 'the Constitution') and section 3 of the Administrative Justice Act.

She contended, that, the Master of the High Court's decision, to sell three farms for USD$700,000 to settle estate liabilities totalling USD$14,047 when other properties of less value could have been sold, was grossly unreasonable and unfair.

Counsel submitted that due inquiry, as interpreted in past decisions of the courts, is not a superficial inquiry but meant an informed, independent inquiry that involves considering the submissions of beneficiaries of the estate.

She asserted, that, in this case, no due inquiry was done and thus both the Master of the High Court and the executor did not ultimately act in the best interests of the beneficiaries of the estate as mandated by the law.

She further argued, that, the order of costs made against the Master of the High Court and the executor were justified because both acted unlawfully, unreasonably, and unfairly.

In the result, she prayed for the appeal to be dismissed.

An application made in terms of the Administrative Justice Act, seeking the setting aside of a decision of an administrative authority, must allege and prove that it has acted unlawfully, unreasonably, and in an unfair manner.

Section 3 of the Administrative Justice Act provides:

“3 Duty of administrative authority

(1) An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests, or legitimate expectations of any person shall —

(a) Act lawfully, reasonably, and in a fair manner; and

(b) Act within the relevant period specified by law, or, if there is no such specified period, within a reasonable period after being requested to take the action by the person concerned; and

(c) Where it has taken the action, supply written reasons therefor within the relevant period specified by law, or, if there is no such specified period, within a reasonable period after being requested to supply reasons by the person concerned.

(2) In order for an administrative action to be taken in a fair manner as required by paragraph (a) of subsection (1), an administrative authority shall give a person referred to in subsection (1) —

(a) Adequate notice of the nature and purpose of the proposed action; and

(b) A reasonable opportunity to make adequate representations; and

(c) Adequate notice of any right of review or appeal where applicable....,.”...,

Section 4(1) of the Administrative Justice Act empowers a court to set aside a decision that breaches its provisions.

The administrative action which was the subject of complaint by the beneficiaries in this case was that the Master of the High Court granted the executor the right to sell, by private treaty, three farms which were bequeathed to them without conducting an inquiry as mandated by section 120 of the Administration of Estates Act.

Section 120 of the Administration of Estates Act provides as follows:

“120 Sale of property otherwise than by auction

If, after due inquiry, the Master is of opinion that it would be to the advantage of persons interested in the estate to sell any property belonging to such estate, otherwise than by public auction, he may, if the Will of the deceased contains no provisions to the contrary, grant the necessary authority to the executor so to act.”

It was not in dispute, as between the parties, that the Master of the High Court is an administrative authority as defined by the Administrative Justice Act.

Indeed, that this is the correct position cannot be debated as the Master of the High Court carries out administrative functions that affect other persons as defined in section 2(1)(d) of the Administrative Justice Act: see also Logan v Morris N.O. & Ors 1990 (2) ZLR 65 (S).

The first issue for determination therefore, is whether the Master of the High Court conducted himself in a lawful, fair, and reasonable manner when he exercised his power under section 120 of the Administration of Estates Act.

CHITAKUNYE J..., in Madzingaidze N.O. v Katanga Service Station HH256-13..., had occasion to grapple with the issue of what should be considered by the Master of the High Court when presented with a request, by the executor, to sell estate property by private treaty. He stated the following at p4:

“1. The Master has to formulate his own opinion;

2. The opinion has to be formulated after a due inquiry; and

3. The opinion has to be in furtherance of the advantage of the persons interested in the estate; in this case, the beneficiaries.

The section does not per se require that all the interested parties must agree. It is the opinion of the Master, after due inquiry, that is crucial. The fact of the interested parties all agreeing may only be one of the considerations to be taken into account by the Master as he carries out due inquiry.

A due inquiry may be described as a fitting or appropriate investigation or research on the subject matter before arriving at a decision. This necessarily involves a consideration of submissions made by all interested parties, including the beneficiaries, and an assessment of what would be appropriate given the circumstances of the matter. The Master will want to know the reason why the property has to be sold and how the sale will be advantageous to the beneficiaries.”

It appears to me, from the above, that in order for the Master of the High Court to lawfully grant a consent to sell, in terms of section 120 of the Administration of Estates Act, he must comply with the requirements of the Administrative Justice Act.

He must also consider the requirements established by case law.

A proper application of the above requirements will lead the Master of the High Court into making a decision which is lawful, reasonable, and fair.

I therefore agree with the sentiments expressed in the above judgment.

Indeed, as stated in the above cited case, it is critical that the Master of the High Court formulates an independent opinion after considering all the facts.

That this is the position can be gleaned from the case of Logan v Morris N.O. & Ors 1990 (2) ZLR 65 (S)…, where this Court, while interpreting the powers of the Master of the High Court, as provided for under section 117 of the Administration of Estates Act [Chapter 3:01] (which was repealed and replaced by the current section 120 of the Administration of Estates Act), had this to say:

“The power given to the Master under section 117 is not a power to compel a sale by private treaty where the beneficiary does not want to sell at all. It is a power to allow a sale by private treaty where the beneficiary wants the property sold (or it has to be sold to meet the cash obligations of the estate). If he does not allow the sale by private treaty then the normal procedure of sale by public auction has to be followed.

Seen in that light, it is apparent that it is not the purpose of the 'due inquiry' by the Master to ascertain whether or not the beneficiary is legally bound to sell as a result of an alleged contractual obligation, or whether that contract has or has not been induced by fraud so as to entitle the beneficiary to resile. Such matters are proper matters for a judicial inquiry. The Master is not empowered to conduct judicial inquiries. Where matters of law arise, he is enjoined to refer the matter to a Judge or to the Court (see eg section 113).

The 'due inquiry' envisaged by section 117 is no more than a practical, financial inquiry. He must not authorise a private sale unless he is of the opinion that such a sale will be more advantageous to the beneficiary than a sale by public auction.

His inquiry, therefore, is limited to a consideration of the relative advantages of the proposed private sale on the one hand and a sale by public auction on the other.

He will, in such circumstances, after making 'due inquiry' as to the realistic value of the property, reach his decision. He will be influenced, primarily, by the price offered as opposed to the price likely to be realised on an auction. He may also be influenced by such matters as the uncertainty and delay involved in a public auction, or by the wishes of the beneficiary in a marginal case.

I do not intend this to be regarded as an exclusive list of the considerations which may influence the Master in coming to a conclusion under section 117.

The point I am making is simply, that, the need for a decision by the Master, under the section, arises only when he is asked to choose between a sale by public auction and a sale by private treaty.”...,.

There can be no doubt that the Master is required to conduct a basic inquiry before formulating his opinion on whether or not to consent to a sale by private treaty.

Clearly, this is not what the Master of the High Court did in this case.

The Masters Report, which was filed in opposing the application before the court a quo, gives an insight on how the Master of the High Court dealt with the request. The Master stated as follows:

“The Master's consent is required only where the executor intends to sell by private treaty. Our understanding is that the inquiry to be made by the Master is not necessarily to establish the reasons for the sale or to determine which assets should not be sold, but, it is to establish whether it would be advantageous to sell by public auction or by private treaty.

It can thus be inferred that the decision to sell, and the identification of assets for sale, lies with the executor and not the Master.

The Master is only approached if the executor intends to sell otherwise than by public auction.

We believe this is why there is no provision which empowers the Master to be involved in the sale modalities as that is the prerogative of the executor reposed with authority to administer the estate. It is, however, expected that, before selling, the executor would have done his due diligence and proper consultations with potential beneficiaries which justify the need to sell.”

This was not the correct approach to take and does not comply with the requirements established by the Administration of Estates Act and the authorities cited above.

This is a very narrow interpretation of the term 'due inquiry' and seeks to shift the onus of decision making from the Master of the High Court to the executor.

This is wrong.

As was stated in Madzingaidze N.O. v Katanga Service Station HH256-13, it is the Master of the High Court's opinion that must inform the process and not that of the executor.

From the approach taken by the Master of the High Court, it is quite apparent that no inquiry was conducted at all.

In spite of the fact, that, in the letter dated 10 January 2018, by the executor, requesting the Master of the High Court to “consent to the sale” of the farms, it was indicated that the beneficiaries generally objected to the sale of the farms, the Master issued two consents to sale on 25 January 2018 with the third consent being granted on 18 of October 2019.

The Master of the High Court made no effort to engage the beneficiaries with regards to the sale of the farms.

Had he done so, it would have been brought to his attention that there was a butchery in Kwekwe which could be sold as an alternative to recover costs to settle the estate liabilities.

The facts of this case clearly paint a picture of a situation whereby the Master of the High Court did not apply his mind to the facts before him.

He failed to formulate his own opinion and relied on the executor's decision.

In the exercise of his duties, in terms of section 120 of the Administration of Estates Act, the Master ought to have carried out an inquiry into all the circumstances of the case.

The fact that there was a buyer already in the wings, offering to purchase the three properties, should have raised a red flag which warranted further inquiry. So, too, the letter by the executor stating that the beneficiaries were generally opposed to the sale.

This decision was particularly unreasonable when one takes into account that there was another property in the estate which could have been sold to meet the estate liabilities instead of disposing of the three farms.

It should be noted, that, in arriving at a decision of whether or not to sell a property by private treaty, the Master of the High Court does not operate in a vacuum.

He must take into account various competing interests, the most important of which is that he must be satisfied that he is acting in the best interests of the beneficiaries.

Section 3 of the Administrative Justice Act requires that he acts in a lawful, reasonable, and fair manner.

In this case, the Master did not question whether or not it was in the interest of the beneficiaries to sell three farms in order to pay US$14,047 that was owed by the estate. Indeed, had the Master applied his mind to the facts, he would have realized that selling three farms in order to pay such a paltry amount was unreasonable and unfair on the beneficiaries.

It should be noted, that, the inquiry required by section 120 of the Administration of Estates Act and the authorities cited above, is not a judicial inquiry, but a simple inquiry merely to ascertain the facts and for the Master to satisfy himself that he is indeed acting in the best interest of the beneficiaries.

Had the Master acted in this manner, he would have sought the views of the beneficiaries.

A simple letter asking for their views on the matter would have been more than sufficient.

It is trite, that, the right to be heard is a basic tenet of our law.

Where the Master of the High Court intends to make a decision affecting the rights of beneficiaries, it is incumbent upon him that he affords them an opportunity to present their side of the matter.

In my view, the importance of this right is of particular import given that a sale by private treaty does not have the protection and transparency associated with a public auction. It is the objections or concerns raised by the beneficiaries which lead the Master into making an appropriate decision.

In essence, therefore, the Master of the High Court, in carrying out the inquiry, must afford the beneficiaries a chance to be heard.

Section 69 of the Constitution provides for the right to be heard for all citizens before a court of law, judicial body, quasi-judicial body, or administrative authority.

The Master of the High Court, being a quasi-judicial officer with an administrative role, must allow beneficiaries the right to be heard and the right to make objections or raise concerns over the administration of the estate. This is also in line with the statutory provision of section 3(2) of the Administrative Justice Act.

In the case of Logan v Morris N.O. & Ors 1990 (2) ZLR 65 (S)..., the court pertinently noted that:

“As LORD DENNING MR said, in Breen v Amalgamated Engineering Union (now Amalgamated Engineering and Foundry Workers Union) & Ors [1971] 2 QB 175; [1971] 1 All ER 1148 (CA) at 1153H-J:

'It is now well settled that a statutory body, which is entrusted by a statute with discretion, must act fairly. It does not matter whether its functions are described as judicial or quasi-judicial on the one hand, or as administrative on the other hand, or what you will. Still, it must act fairly. It must, in a proper case, give a party a chance to be heard.'”

In the same case, McNALLY JA raised the question at p69H:

“When should a party be given a chance to be heard?

LORD DENNING continued at 1154F-K:

'Not always, but sometimes. It all depends on what is fair in the circumstances….,.'”

It is accepted, that, it is not every case where the Master of the High Court must hear the beneficiaries before making a decision.

However, the particular circumstances of this case cried out for the Master to hear the beneficiaries before making a decision.

The amount which was due by the estate, the fact that there was a ready buyer waiting to purchase the three farms, and the fact that not one, but all three farms were to be sold to raise the small amount of USD14,047 should have alerted the Master that there was a need to hear the beneficiaries.

The Master of the High Court, as an administrative body and custodian of the processing and finalization of deceased estates, is duty bound to guard against the excesses of executors of estates by ensuring that the interests of beneficiaries are protected.

It could not have been the intention of the legislature, in enacting section 120 of the Administration of Estates Act, to provide for the Master to merely rubber stamp the decisions of an executor, especially with regards to the disposal of estate property, without being satisfied that the sale of such property is warranted and is conducted in a fair and lawful manner.

The failure by the Master of the High Court to conduct such a basic inquiry resulted in him failing to act lawfully, reasonably, and fairly as an administrative authority.

This failure, in my view, warrants the setting aside of the “consents to sell”.

The court a quo's finding that the Master of the High Court had to formulate his opinion, only after an inquiry had been made, cannot be faulted in this regard.

In my view, sight must never be lost of the function of an executor in the administration of an estate.

It must always be borne in mind that estate property bequeathed to beneficiaries in a Will is their property. Thus, any decision by the executor concerning estate property must be made with the knowledge that, at law, the property belongs to the beneficiaries.

The executor's function is only to step into the shoes of the deceased and ensure that the beneficiaries receive their inheritance.

It is noteworthy, that, in this instance, the executor took it upon himself to act as big brother and decided that it was in the best interest of the beneficiaries that the farms be sold as there was no activity on the farms.

This was clearly not the mandate of the executor. His function was to ensure that the beneficiaries received their inheritance. What they thereafter did with it was not his concern.

With regards to costs a quo, this Court finds that the actions of the Master of the Master of the High Court were conducted in the course of his duties.

It has always been the practice of this Court not to mulct administrative bodies with costs unless it is proved that they were mala fide. As such, the order of costs awarded by the court a quo against the Master of the Master of the High Court cannot be allowed to stand.

I take the further view, that, it is trite that a court may not make an award of costs de bonis propriis unless they have been sought and the person affected has been given an opportunity to be heard.

The executor was not heard on this point a quo.

This award cannot be upheld and warrants interference by this Court.

The purchaser was equally a victim of circumstances as his right to purchase emanated from the decision of the Master of the High Court.

In our view, the justice of the cases require that, with respect to the costs a quo, each party should bear its own costs.

The appeal will thus succeed in this respect.

In respect of costs on appeal, the parties were agreed that each party must bear their own costs.

The circumstances of this case bring to the fore the need for the Master of the High Court to conduct an inquiry before authorising any “consent to sell” estate property.

It is the Master of the High Court who is mandated, by the Administration of Estates Act, to conduct an inquiry. It is the Master who must arrive at an opinion which is lawful, reasonable, and fair.

The inquiry must be done before granting the consents to sale. This may demand, as in this case, that the beneficiaries are heard so that the Master makes an informed decision.

It is not necessary for the beneficiaries of the estate to “consent to the sale” but the Master of the High Court must be aware of their concerns before making his decision.

This function cannot be delegated to any other person - including the executor.

As this was not done, the court a quo correctly set aside the “consents to sell” in this case.

The rights of the executor and the purchaser flow from the actions of the Master of the High Court. Once his actions are successfully impugned, they are left with no leg to stand on.

In the result, it is accordingly ordered as follows:

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

2. Paragraph 6 of the order of the court a quo is set aside and substituted with the following:

“6. Each party shall bear its own costs.”

The appellant appeals against the judgment of the High Court dated 9 September 2019, wherein the court a quo dismissed his appeal against conviction by the Magistrates Court on a charge of criminal abuse of office under section 174(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code).

The facts in this case are generally common cause:

On 26 May 2015, the appellant and Obert Tafadzwa Charamba (the co-accused) were jointly charged with criminal abuse of office at the Beitbridge Magistrate's Court.

On 9 November 2015, they were convicted and sentenced to pay a fine of US$700, or, in default of payment, 6 months imprisonment with an additional 5 months imprisonment suspended for a period of 5 years on the appropriate conditions of future good conduct.

The appellant and the co-accused were employed by the Zimbabwe Revenue Authority (Zimra) as a Revenue Supervisor and Loss Control Officer, respectively. The appellant was stationed at the container depot at the Beitbridge border post. The co-accused was based in Harare but was on relief duties at the scanning unit at the same border post in December 2014.

On 23 December 2014, Isaac Musharu (the driver) cleared all the manual customs formalities with the help of Christian Mugwali, a Beitbridge based freight and clearing agent: the customs clearance documents comprised, consignment note, the commercial invoice, road manifest and SADC certificate of origin issued by the South African exporter, the South African bill of export, the local bill of entry, and the gate pass or release order issued on entering Zimbabwe.

Duty was paid for the consignment in the sum of US$29,303=88.

He was driving a horse (Registration Number ABZ 4226) which was drawing two trailers (Registration numbers ACE 9470 and ACE 9471). The trailers were laden with 2,514 cartons of liquor (the consignment) imported from Musina in South Africa by the local Bulawayo based Turkey Trading (Pvt) Ltd (the importer).

His last port of call was the scanning unit, where he handed over his manually cleared customs documents, inclusive of the bill of entry number C93285, to the co-accused at 11pm.

The co-accused made a cursory physical examination of the consignment.

He directed Mutero, a ZIMRA escort driver, to take the truck to the container depot. At midnight, and before the truck was driven to the container depot, the clearing agent attended at the scanning unit, at the behest of Isaac Musharu (the driver).

The co-accused referred the consignment to the container depot because the electronic clearance system had “red flagged” the importer for possible acts of smuggling previous liquor consignments into the country.

He caused this reason to be entered into the “Referred to Container Depot Register” by his subordinate, one Eric Gorondondo.

Isaac Musharu (the driver) and the clearing agent, however, assumed that the consignment was being referred to the container depot for an accentuated physical examination.

The consignment was received at the container depot by the security guards on duty.

On 24 December 2014, Isaac Musharu (the driver) and the clearing agent alleged that two of the appellant's subordinates inspected and reconciled the consignment with the commercial invoice and the bill of entry. No anomalies were found.

The consignment was not released.

Instead, the appellant, in colourful Shona prose (which Isaac Musharu (the driver) and the clearing agent understood to mean “the vehicle has been impounded”), impounded the consignment and ordered the driver to uncouple the horse from the trailers.

The driver signed the “leave the consignment in the container depot” form.

The appellant impounded the consignment in compliance with the instruction endorsed on the consignment note by the co-accused for the detention of the consignment as a lien in lieu of impending investigations of the purported smuggling activities undertaken by the importer in respect of previous liquor imports from Musina.

He, however, did not pay heed to the co-accused's suggestion to raise, in terms of section 201 of the Customs and Excise Act [Chapter 23:02], an “embargo” against the consignment.

He also rebuffed the requests, to similar effect, made on 25 and 27 December 2014, by Amkela Ndebele, the clearing agent's Bulawayo based Managing Director, to issue detention documents to the importer.

During Amkela Ndebele's second visit, on 27 December 2014, the appellant asserted:

(i) Firstly, that the consignment would be detained until the smuggling investigations were completed.

(ii) Secondly, that the investigation was being conducted by his head of station (Acting Regional Manager Mungani), head of section (Enforcement Manager Dumbu) and the Technical Manager (Chamboko).

He further demanded copies of all the customs clearance documents (pertaining to the previous liquor consignments) issued to the importer between September and December 2014, to facilitate the timeous conclusion of the investigations.

The same documents were also demanded by, and availed by the importer to the Acting Regional Manager as a condition precedent to the release of the shipment consequent to the consensual order, issued on 14 January 2015, by the Bulawayo High Court in case number HC16/15.

It was also common cause, that, the appellant did not issue any detention documents, despite demand from the importer for him to do so, until the cargo was released pursuant to the consensual order.

It was further common cause, that, the co-accused was required by the dictates of his duties to enter the reason for referring the consignment to the container depot in the electronic clearance system 'Referred to Container Depot Register' the 'Inspection Act' and if the electronic system was down, endorse the reason on the back of the driver's copy of the bill of entry.

He was further required to enter the reason for doing so into the ZIMRA electronic clearance system.

These entries, amongst other purposes, served to alert the officials at the container depot what to check for (values, tariffs, or quantities).

Likewise, the appellant was required to issue detention documents for the consignment.

He could issue a notice of seizure, a receipt of items held (RIH), or Form 45 to the importer.

In his testimony on the procedure pertaining to these documents, the Acting Regional Manager asserted that once a notice of seizure or a receipt of items held (RIH) was issued, the consignment would be carted to a warehouse for storage.

Where, however, Form 45 was issued, the consignment would be detained at the container depot until the queries raised in that form were all cleared by the importer or his clearing agent.

It was also common cause that the appellant and the co-accused were public officers.

It was further agreed, that, neither of them acted in accordance with the dictates of their respective public duties. Rather, by these indisputable omissions, they acted contrary to their respective duties as public officers.

The real issue that confronted the trial court, and the court a quo, was, therefore, whether the appellant (and his co-accused who did not appeal) had the intention to abuse his public office by disfavouring the importer when he failed in his sworn duty to issue the requisite detention documents between 24 December 2014 and 14 January 2015.

The trial court accepted the evidence adduced by the Acting Regional Manager on the procedures that the appellant and the co-accused ought to have followed in the referral of the consignment to and detention thereof at the container depot.

It found, that, the prosecution had established, beyond a reasonable doubt, that the appellant had negated his duty of not only recording the results of the physical examination in the “Inspection Register” but also of issuing the requisite detention documents to the importer.

Likewise, it found that the co-accused had acted contrary to his duties by not endorsing the reasons for referring the consignment to the container depot in the system and on the back of the bill of entry.

The trial court found that their respective conduct was prejudicial to the importer, and, accordingly, found them guilty as charged.

The trial court did not relate to the reverse onus and misconstrued the testimony of the Regional Manager.

The Regional Manager asserted, in his evidence in chief, that, he never checked into the electronic clearance system but merely checked the back of the bill of entry and the “Physical Examination Register”.

The appellant appealed to the court a quo on the following grounds of appeal:

“1. The court a quo misdirected itself in convicting the appellant when there was no evidence led, beyond a reasonable doubt, that the appellant committed the offence.

2. The court a quo erred in convicting the appellant when all the essential elements of the offence were not proved, in particular the mens rea.

3. The court a quo erred and misdirected itself in basing its conviction of the appellants on the grounds that the appellant had overall say on the issuance of detention documents when in fact evidence to the contrary had been led by the appellant and not disproved by the respondent.

4. The court a quo also misdirected itself in failure to consider the appellant's defence which was not disproved by the respondent.”

The appellant argued, that, the mens rea to commit the offence had not been established.

He contended, that, the totality of the evidence led did not show that he deliberately, or even recklessly and calculatedly, utilized his position to injure the public interest by harming the co-related interests of the importer.

He argued, that, his conduct was genuinely motivated by the noble intention of protecting the public purse, which was prejudiced in the sum of US$195,000 by the previous smuggling activities of the importer.

He further argued, that, the trial court had failed to relate to his uncontroverted testimony that he acted on the instructions of the co-accused to check on the previous consignments that were purportedly smuggled into the country from Musina by the importer.

He called for previous clearance documents from the importer, which he availed to his superiors (the Enforcement Manager, the Technical Manager and the Regional Manager).

His superiors, in turn, invoked bilateral co-operation protocols with the South African Revenue Services (SARS).

The South African Revenue Services (SARS) then supplied ZIMRA with all the requisite customs clearance documents used by the importer to bring the questioned consignments into Zimbabwe.

He argued that these investigations, which commenced with the red flagging of the importer on the night of 23 December 2014, belatedly revealed the misfeasance committed by the importer.

He therefore submitted, that, had the trial court related to his version, it would have found that it passed muster the “reasonably possible true” test and acquitted him of the offence.

Per contra, the respondent contended that the abrogation of ZIMRA processes by the appellant were established.

He argued, that, the colourful prose used by the appellant in impounding the consignment, coupled with absence of detention documents, betrayed his ulterior motive to injure the public interest by harming the importer's interests.

The injured interests were identified as the loss of income that could have accrued to the importer from beer sales during the festive season, and the attendant loss incurred by the importer's failure to use its trailers during the 21 days in question.

The respondent also argued, that, the appellant's contrary assertion that he was motivated by the smuggling allegations could not reasonably rebut the presumption against him that his abridgment of the consignment detention procedures was intended to harm the importer's business interests.

The respondent, therefore, submitted that the appellant was correctly convicted by the trial court.

The court a quo made the following findings:

The appellant acted on the instruction of the co-accused to investigate the previous consignments that were alleged to have been smuggled into the country.

Notwithstanding such instruction, he was obliged to issue the requisite detention documents.

His failure, over a period of 21 days, despite the promptings of the clearing agents, established the actus reus of the offence.

His version, that he was motivated by the higher ideal of preserving public revenues, by investigating the purported previous smuggling activities of the importer, could not reasonably possibly be true because “that intention to investigate was not properly documented” nor placed before the investigating officer and the trial court.

He was, therefore, complicit with the co-accused in the unlawful detention of the consignment.

He failed to rebut the presumption that his act or omission was intended to show disfavour to the importer.

All the essential elements were, accordingly, established beyond a reasonable doubt.

In the circumstances, the court a quo confirmed the conviction and dismissed the appeal.

Aggrieved by these findings, the appellant appealed to this Court on the following grounds:

“1. The court a quo grossly erred and misdirected itself in upholding the conviction of the appellant in the absence of evidence to prove that the appellant had committed the offence.

2. The court a quo erred and grossly misdirected itself in dismissing the appeal against conviction notwithstanding the fact, that, the respondent had failed to place before the court evidence to prove the essential elements of the offence.

3. The court a quo erred and misdirected itself in upholding the conviction notwithstanding that the respondent failed to place before the court evidence to disprove the appellant's case.”

He sought the vacation of the conviction and its consequent substitution by an order upholding the appeal.

The sole issue that arises from the three grounds of appeal is whether the court a quo erred in upholding the appellant's conviction.

Counsel for the appellant submitted, that, the court a quo erred in upholding the appellant's conviction when the totality of the evidence adduced before the trial magistrate clearly showed that the appellant did not intend to harm the importer in his business but sought to protect public revenue by recovering revenue lost through the alleged previous smuggling activities perpetrated by the importer.

She argued, that, the court a quo failed to give proper regard to the common cause facts of the investigations of the previous liquor imports that the importer was alleged to have smuggled into the country.

She contended, that, the proven existence of these investigations, which investigations constituted part of the appellant's duties, negated the finding that his failure to raise detention documents for the impounded consignment was actuated by an underlying ulterior or dishonest motive.

She, therefore, submitted that the appellant lacked the mens rea to commit the offence.

Per contra, counsel for the respondent submitted that the court a quo did not misdirect itself in upholding the conviction and dismissing the appeal.

He contended, that, the appellant acted in common purpose with the co-accused in impounding the consignment. They both flouted the Zimra procedural requirements to endorse the reasons for the referral to, and issuance of detention documents at the container depot.

He further argued, that, the fact that the appellant accepted the consignment without demur, impounded and further detained it for 21 days without issuing the requisite detention documents, demonstrated that he was acting in cahoots with the co-accused to harm the importer in his business.

He also contended, that, the appellant's failure to avail the internal investigations to the investigating officer showed that he was raising them as an afterthought to ward off his proven intention to harm the importer's interests.

He, therefore, submitted that as the respondent had overwhelmingly established all the essential elements of the offence beyond a reasonable doubt, the court a quo correctly dismissed the appeal.

What constitutes proof beyond a reasonable doubt was pronounced by DUMBUTSHENA CJ in S v Isolano 1985 (1) ZLR 62 (S)…, thus:

“In my view, the degree of proof required in a criminal case has been fulfilled. In Miller v Minister of Pensions [1947] 2 All ER 372 (KB), LORD DENNING described that degree of proof at 373H as follows:

'…, and for that purpose, the evidence must reach the same degree of cogency as is required in a criminal case before an accused person is found guilty. That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence 'of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.'

See Hoffman and Zeffertt: South African Law of Evidence 3rd ed 409-410.”

The approach to be adopted where, as in this case, a reverse onus is prescribed by statute, was enunciated by this Court in a kindred offence of contravening section 4(a) as read with section 15(2)(e)(iii) of the repealed Prevention of Corruption Act [Chapter 9:16] in S v Chogugudza 1996 (2) ZLR 28 (S) at 42D as follows:

“The actus reus of the offence of contravening section 4(a) of the Prevention of Corruption Act having been proved by the State, it was for the appellant to displace the presumption by satisfying the trial court that his purpose of showing favour was legitimate; that, in doing what he did, he had acted with an innocent state of mind.

It was not for him to establish that his evidence on this aspect was necessarily true; only that, on a preponderance of probabilities, it was true: see S v Ndlovu 1983 (4) SA 507 (ZS) at 510D-G; Miller v Minister of Pensions [1947] 2 All ER 372 (KBD) at 374A-B.”

The Court had earlier on emphasized at 34E that:

“The plain language of section 15(2)(e) mandates that the presumption will stand unless proof to the contrary is adduced by the public officer, who is the accused. It is a presumption rebuttable at his instance. It imposes a legal burden upon him which must be discharged on a balance of probabilities. It is not discharged merely by raising a reasonable doubt.”

The relevant provisions under which the appellant was charged provide that:

“174 Criminal abuse of duty as public officer

(1) If a public officer, in the exercise of his or her functions as such, intentionally -

(a) Does anything that is contrary to or inconsistent with his or her duty as a public officer; or

(b) Omits to do anything which it is his or her duty as a public officer to do;
for the purpose of showing favour or disfavour to any person, he or she shall be guilty of criminal abuse of duty as a public officer and liable to a fine not exceeding level thirteen or imprisonment for period not exceeding fifteen years or both.

(2) If it is proved, in any prosecution for criminal abuse of duty as a public officer, that a public officer, in breach of his or her duty as such, did or omitted to do anything to the favour or prejudice of any person, it shall be presumed, unless the contrary is proved, that he or she did or omitted to do the thing for the purpose of showing favour or disfavour, as the case may be, to that person.”…,.

The key word found in subsection (1) of section 174 of the Criminal Law (Codification and Reform) Act is “intentionally”.

It constitutes the mens rea of the offence of criminal abuse of office.

It further demonstrates, that, the presumptive proof reposed in subsection (2) does not create a strict liability offence.

The onus to establish, beyond a reasonable doubt, the actus reus of the offence, which is prescribed in the opening words and in paragraphs (a) and (b) of section 174(1) of the Criminal Law (Codification and Reform) Act, lies on the State.

The presumptive proof casts a legal onus on the accused person to show, on a balance of probabilities, that he did not have the intention of favouring or prejudicing any person impacted by his act or omission.

Thus, the actus reus, which must be established by the State, is that:

(a) The accused person is a public officer;

(b) Who, in the course of his or her duties or functions;

(c) By commission or omission, breached his or her duties or functions.

In its wisdom, the legislature cast the legal burden of disproving intention, on a balance of probabilities, on an accused person: see S v Chogugudza 1996 (2) ZLR 28 (S)…,.

Now 'intentionally' is a synonym of 'wilfully' which in the context of the English provision equivalent to our section 174(1) was defined by LORD BUNGHAM in R v G [2003] UK HL 50 to mean “deliberately doing something which is wrong, knowing it to be wrong, or with reckless indifference as to whether it is wrong or not.”

The nature and scope of the intention cast on the accused person has best been described in two foreign cases cited by TSANGA J in S v Taranhike & Ors 2018 (1) ZLR 399 (H)…,.

The first is the English case of R v Dytham [1979] 2 QB 722, in which the Court stated that:

“The neglect must be wilful and not merely inadvertent, and it must be culpable in the sense, that, it is without reasonable excuse or justification; the misconduct must be calculated to injure the public interest so as to call for condemnation and punishment.”

The second is the Australian case of Northern Territory Australia v Mengel (1995) CLR 307, which held that:

“It is the absence of an honest attempt to perform the functions of the public office that constitutes abuse of office. Misfeasance in public office consists of a purported exercise of some power or authority by a pubic officer otherwise than in an honest attempt to perform functions of his or her office whereby loss is caused to the plaintiff. Malice, knowledge, and reckless indifference are the states of mind that stamp on a purported but invalid exercise of the power the character of abuse or misfeasance in public office. If the impugned conduct then causes injury, the cause of action is complete.”

It is against this backdrop that the sole issue for determination in this appeal falls to be decided.

It is however trite, that, an Appeal Court may only interfere with a subordinate court's factual findings or the exercise of its judicial discretion on established grounds of irrationality or in circumstances where that court has misdirected itself on the facts by failing to appreciate the import of the fact or by making a finding that is contrary to the evidence actually presented: see RBZ v Granger & Anor SC44-15…,.

At p161 of the appeal record, the court a quo dismissed the appellant's investigation version and his appeal thus:

“From his evidence, the appellant said he engaged his superiors and they agreed to send someone to South Africa to investigate the importer. If this was indeed the case, at least the investigating officer should have been favoured with this information. No evidence was placed before the court about this investigation. In any event, the appellant was seized with the matter, obviously he had access to all the documentation in respect of the truck, save for the reasons for impounding it. The appellant was well aware of the non-documentation and was complicit in the unlawful detention of the truck.

The issue that arises is whether his conduct was just an oversight or the conduct constitutes an abuse calculated to disadvantage the truck owner.

There was evidence of the abusive conduct of the appellant towards the truck owner and the clearing agents.

This kind of offence is sometimes difficult to connect the dots, because the public official would just sit on work in order to induce a consideration.

In this case, the appellant could not possibly take over an investigation of an impounded truck when in the first place the truck was not properly impounded.

The Magistrates reasons for convicting the appellant are very clear.

The inconsistencies highlighted by the appellant are of no consequence, they do not go to the substance of the conviction.”

Section 174(2) of the Criminal Law (Codification and Reform) Act required the appellant to lead evidence of his state of mind at the time he impounded the goods.

He asserted the common cause fact, that, no instructions for a search, examination, and clearance were ever relayed to the container depot by the co-accused. He testified that no physical examination of the consignment was ever carried out at the container depot.

His version was confirmed by two common cause facts:

(i) The first was that there was no record of such an examination in the inspection register held at the container depot.

(ii) The second was that one of his subordinates, who was alleged by Isaac Musharu (the driver) and the clearing agent to have searched the consignment at the container depot, denied ever doing so in his statement to the police.

The appellant's version on this aspect was controverted by Isaac Musharu (the driver) and the clearing agent who said the examination was held on 24 December 2014.

These two State witnesses contradicted each other in a material respect.

Isaac Musharu (the driver) stated that the examination commenced at “around 4pm”. The clearing agent stated that it took place between 10am and 2pm.

A further complication in the State evidence was that the Bulawayo based clearing agent testified, that, these two witnesses, contrary to their respective evidence, had told him that a minimum of four (4) searches had been conducted at the container depot on that day.

The court a quo held that these discrepancies “were of no consequence, they did not go to the substance of the conviction.”

In my view, the discrepancies were material in that they confirmed the truthfulness of the appellant's version and discredited the contrary version of the State's witnesses.

The discrepancies, contrary to the finding a quo, also went to the root of the conviction.

The appellant was convicted for detaining the consignment without probable cause and without issuing the requisite detention documents.

The absence of probable cause was premised on the fact, that, he continued to detain the consignment after it had purportedly been cleared by the physical examination.

The trial court and the court a quo then ascribed an ulterior motive to harm the importer's interests to his failure to proffer such a probable cause.

Counsel for the appellant contended, that, the appellant established, on a balance of probabilities, that he did not have the requisite intention to harm the importer in his business. On the other hand, counsel for the respondent made the contrary contention, that, as the appellant had failed to proffer any reasonable justification for his admitted failure to issue the requisite detention documents, the conviction was un-impeachable.

The justification proffered by the appellant was that he detained the consignment pursuant to the instruction endorsed on the consignment note by the co-accused for him to investigate the smuggling allegations that had been raised against the importer in the electronic clearance system.

Counsel for the appellant argued, that, the uncontroverted testimony of the co-accused to the same effect negated the ulterior motive ascribed to the accused by the trial court and confirmed by the court a quo.

The uncontroverted testimony of the co-accused, which both the trial court and the court a quo did not interrogate, was that he referred the consignment to the container depot for investigation after the importer had been red flagged for smuggling by the electronic clearance system.

He caused the endorsement of the referral details into the “Referred to the Container Depot Register” by his subordinate, one Eric Gorondondo.

He relied on the provisions of section 201 of the Customs and Excise Act for his actions. The section stipulates that:

“201 Liens and preferences

(1) The correct amount of duty payable in respect of any goods shall, from the time when it should have been paid, constitute a debt due to the State by the person concerned and shall, at any time after it becomes due, be recoverable in a court of competent jurisdiction by proceedings in the name of the Commissioner, and any goods in a bonded warehouse or in the custody of the Department and belonging to that person, and any goods afterwards imported or entered for export by the person by whom the duty is due, shall, while still under the control of the Department, be subject to a lien for such debt and may be detained by the Department until such debt is paid, and the claims of the State shall have priority over the claims of all persons upon the said goods of whatever nature and may be enforced by sale or other proceedings if the debt is not paid within three months after the date upon which it became due.”…,.

Section 201(1) of the Customs and Excise Act [Chapter 23:02] permits a customs official to detain the consignment, which is subsequently imported by an indebted importer and is still under the control or custody of the Commissioner of Customs and Excise, for the purpose of exercising a lien upon it.

This provision imbues a customs officer with the power to detain properly cleared consignments of an importer which are in a customs area for unpaid duty incurred in a prior consignment.

The underlying reason for conferring such a power is to ensure that every importer pays his or her or its correct duty.

It is that underlying reason that prompted the co-accused and the appellant to act.

That the importer was aware of the reason for the detention of his consignment was confirmed by the testimony of its clearing agents.

They were apprised of the reason by the appellant a day after he impounded the consignment.

Indeed, in its letter of 27 December 2014, which was addressed to the Regional Manager, the importer disputed the smuggling allegations, enclosed the requested previous customs clearance documents, and implored the appellant to release the consignment.

It was also common cause, that, the release of the consignment, after the consensual High Court order was issued, was conditional upon the further submission of more of the previous customs clearance documents connected to the alleged smuggling activities.

Notwithstanding the investigation officer's failure to seek documentation on the smuggling investigation, the totality of the evidence adduced at the trial showed, on a balance of probabilities, that such an investigation existed.

These factors clearly showed, that, the appellant's failure to issue the requisite detention documents was motivated by the higher ideal of recovering lost revenue, rather than some amorphous and speculative ulterior motive.

I agree with counsel for the appellant, that, the appellant discharged the onus on him to show, on a balance of probabilities, that he did not bear any ill-intention to disfavour the importer.

Consequently, the State failed to establish that the appellant had the mens rea to commit the offence.

In the premises, all the grounds of appeal are meritorious and the appeal ought to succeed.

The co-accused did not appeal against his conviction or sentence to the court a quo or to this Court. His conviction has come to our attention in the present appeal.

This is a proper case for the exercise of this Court's review powers that are encapsulated in section 25(2) of the Supreme Court Act [Chapter 7:03].

The trial magistrate made the following findings:

The co-accused intercepted, inspected, and did not find any anomalies with the consignment. He did not clear the consignment but referred Isaac Musharu (the driver) and the clearing agent, Christian Magwali, to the container depot, ostensibly for an accentuated physical verification of the consignment.

He did not endorse the reason for the referral on the back of the bill of entry. His failure resulted in the detention of the consignment for 21 days at the container depot.

The failure to endorse on the back of the bill of entry was inconsistent or contrary to his duties as a public officer. He failed to give a reasonable justification for his conduct. His conduct was prejudicial to the importer who failed to sell the consignment during the festive season.

He was, therefore, guilty as charged.

The trial court failed to relate to the evidence which was favourable to the co-accused.

The clearing agent testified, that, the scanning unit was the last checkpoint for clearing the consignment. This was in consonance with the denial of the co-accused that he ever intercepted the consignment and his insistence that he dealt with the consignment at his workstation. He was, after all, the night shift supervisor.

He instructed his subordinate, Eric Gorondondo, to enter the reason for the referral in the “Referred to Container Depot Register” and on the road manifest that night.

The Regional Manager testified, that, an endorsement could only be made on the back of a bill of entry if the electronic clearance system was down.

The impact of this evidence was that endorsement on the back of the bill of entry was not a mandatory requirement.

The Regional Manager further testified, that, he did not check the electronic clearance system, or any registers, other than the inspection register at the container depot.

The testimony of the co-accused on what he did at his workstation was, therefore, uncontroverted.

That the co-accused referred the consignment to the container depot to facilitate the investigation of a possible smuggling racket engineered by the importer was confirmed by the appellant.

The co-accused, further, testified that his actions were motivated by the provisions of section 201 of the Customs and Excise Act. He believed the consignment could be held as a lien pending investigations of the smuggling allegations.

That he could have misconstrued the import of section 201 of the Customs and Excise Act is irrelevant.

His belief negated the finding that he was actuated by an ignoble motive to injure the importer in his business interest. He ought to have been acquitted.

The conviction and consequent sentence will therefore be set aside.

Accordingly, the following order will issue:

1. The appeal be and is hereby allowed.

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

“The appeal against conviction and sentence be and is hereby allowed.”

3. Pursuant to the provisions of section 25 of the Supreme Court Act [Chapter 7:03], the conviction and consequent sentence imposed upon Obert Tafadzwa Charamba at Beitbridge Magistrate's Court, on 9 November 2015, be and is hereby set aside.

PATEL JA: I have read the judgment of GOWORA JA, with which judgment BHUNU JA concurs, and wish to add the following remarks.

While I agree that the appeal is devoid of merit and ought to be dismissed, I have certain reservations apropos the preliminary observations in the main judgment curtailing the jurisdictional role of labour officers and arbitrations under the governing statutory provisions.

In particular, I am inclined to the view, that, section 8 of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006 (the National Code of Conduct), construed in a purposive manner, is reconcilable with sections 93 and 101 of the Labour Act in such manner as to accommodate the jurisdictional competence of labour officers and arbitrators over labour disputes emanating from internal disciplinary proceedings.

Nevertheless, given the view that I take of the merits of this matter, I do not think it necessary to elaborate the aforesaid reservations in the context of this particular case....,.

BHUNU JA: I wish to comment as follows:

I have read the comments by my brother PATEL JA and I do not see how the three (3) sections alluded to by PATEL JA can be reconciled to accord a Labour Officer jurisdiction that he does not have.

It is inconceivable that a Labour Officer can assume jurisdiction over a completed matter by another tribunal without being clothed with appellate or review jurisdiction.

In the absence of specific statutory provisions, it is only appellate or review jurisdiction that authorizes a higher court or tribunal to intervene in the conduct or verdict of a subordinate court or tribunal.

In the circumstances, both the Labour Officer and the Arbitrator acted without power, jurisdiction, or authority to intervene in a matter completed in terms of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 (the National Code of Conduct).

It is for the foregoing reasons that I agree with my sister GOWORA JA.

The appellant was evicted from the respondent's three immovable properties situated in Harare.

The eviction awarded punitive costs as against the appellant and its legal practitioner, Mr D. Chinawa....,.

At the commencement of the hearing, counsel for the appellant sought the admission of the certified record of criminal proceedings in the Regional Magistrate's Court in Case No. R715/10.

It was common ground that a prior application (Case No. SC402/13) to lead evidence on appeal in this matter, which was based on the same record, was dismissed with costs by this Court on 15 March 2015.

The Court, accordingly, dismissed the application as it had been authoritatively settled in the earlier proceedings.