The plaintiff is a private person, residing at Stand 64 of Lot 7A Colne Valley, commonly known as No.5 Wellburn Drive, Ballantyne Park, Harare. The first defendant, is Econet Wireless (Pvt) Ltd, a company duly incorporated in accordance with the laws of Zimbabwe and the second defendant is the authority responsible for and in charge of the Council area within the City of Harare.

On 8 January 2008, the plaintiff issued summons and a declaration against both defendants seeking an order -

(a) Declaring the lease agreement entered into, on or about 27 February 2007, between the first and second defendants to be of no force or effect.

(b) Requiring the first defendant, on the basis that its cell phone base station encroaches on his land and constitutes a nuisance, to:

(i) Vacate stand 648 Ballantyne Park.

(ii) Remove its cell phone base station.

(iii) Restore stand 648 to the condition it was in prior to erecting the base station.

ALTERNATIVELY:

Requiring the first and second defendants to comply with the requirements of Part V of the Regional, Town and Country Planning Act [Chapter 29:12] (“the Planning Act”).

(b) Costs of suit.

The facts bringing rise to this suit can conveniently be summarised as follows:

1. Sometime in January 2006, the first defendant approached the second defendant with a view to leasing from the latter, a certain piece of land measuring 140 square metres, known as Stand No.648 Ballantyne Park, Colne Valley, Harare ("the Stand").

2. The first defendant wished to lease the Stand for purposes of erecting and subsequently operating a Cellular Base Station ("Mast") thereon.

3. In compliance with the provisions of section 152(2) of the Urban Councils Act [Chapter 29:15] the second defendant caused to be published notices of its intention to lease the Stand to the first defendant, in both the Business Herald and the Herald newspapers of 13 and 20 October 2006 respectively.

4. The twenty-one day limit for lodging objections, as required by section 152(2)(b), having elapsed without receipt of any objections, the first and second defendants, on or about 27 February 2007, proceeded to conclude a lease agreement pertaining to the Stand.

5. Of significance, clause 5 of the lease agreement stipulated that the Stand was to be used for the installation and operation of a Cellular Base Station.

6. On the basis of this lease agreement, the first defendant commenced to construct or erect a Mast on the Stand.

7. When the plaintiff, whose premises is directly adjacent to the Stand, noticed what was transpiring, he addressed letters of protest, dated 24 April 2007, to, amongst others, the second defendant, and, in particular, for the attention of the Acting Town Planner, a Mr. A. Kasiwamhura. This letter read -

"Re: Cellphone Mast in Ballantyne Park

I note with concern that a cellphone mast is being erected in Ballantyne Park adjacent to my boundary wall. I have not had any notification of this at all and I have checked with the two neighbours directly opposite who say they have not been notified either.

I would like work on this structure stopped with immediate effect as correct procedures have obviously not been followed. This structure also extends within the building line on my boundary wall.

Further to this, there are severe health hazards caused by E.M.R. [electromagnetic radiation] associated with cellphone masts and they should not be erected in such close proximity to residential properties, especially if these house children.

I should be grateful if you would give this matter your urgent attention."

8. Neither defendant was moved by these protestations, as both held the view that adherence to and compliance with all the necessary legal formalities had been met, and, therefore, under the circumstances, halting the erection of the mast was not warranted.

Faced with this scenario, the plaintiff, on 8 June 2007, filed with this court, what he purported to be an urgent chamber application seeking interim relief compelling the removal of the mast and restoration of the Stand to its original condition, by the first defendant.

The matter was placed before my brother HLATSHWAYO J, who, in declining to hear it on an urgent basis, ruled that -

"The matter is not urgent because of the delay in instituting legal proceedings after the encroachment was noticed and because of the final nature of the interim relief sought. The matter should be set down on the normal opposed roll."

This prompted the plaintiff to enrol it on the opposed roll of 31 October 2007 using the same set of papers as originally filed.

This matter was initially placed before me under a certificate of urgency. As the final and interim relief sought on the provisional order were the same, I wrote an endorsement on the face of the application querying the manner in which the relief had been framed.

The letter of explanation was not placed before me and it was not until after some months that the matter was then brought to my attention. In the event, it was set down before me in chambers to be argued as an urgent application.

The respondents indicated a desire to file affidavits in opposition and it was agreed between the parties that the best way was for the matter to be dealt with as an opposed application. The parties thereafter filed their documents, including heads of argument, and the matter was then argued in court....,.

In view of the reasons I alluded to earlier, an attempt to have a temporary interdict...,  was still-born. It therefore only leaves the final relief for determination.

The first applicant is a nominated Parliamentary candidate for the Movement For Democratic Change, the (“MDC”). He will stand for the Goromonzi West House of Assembly constituency seat in Mashonaland East Province. The second applicant is the Movement for Democratic Change, a political party which fielded candidates for the Presidential, Parliamentary, Senatorial and Local Council elections.

The first respondent is the Chairman of the Zimbabwe Electoral Commission, which is responsible for the conducting of elections in Zimbabwe. The second respondent is the Registrar-General of Voters, responsible for the registration of voters, though he does so under the control and supervision of the first respondent.

The brief facts leading to this application are as follows:

The applicants, exercising their right under section 21(4) of the Electoral Act [Chapter 2:13], which I will refer to as the Electoral Act in this judgment, requested the respondents to supply them with electronic copies of the voters roll. They supplied the respondents with compact disks onto which the voters roll was to be copied. The applicants have since been given fifty compact disks, with voters rolls copied onto them - but in a format not acceptable to the applicants. They were advised that other disks could not presently be copied because of the breakdown of the respondents' computers.

The applicants, being spurred by the approaching election day on 29 March 2008, urgently want the Voters Roll, hence the filing of an urgent application. They seek an order compelling the respondents to give them electronic copies of the voters roll in a format they have specified.

Counsel for the respondents raised a point in limine.

He submitted that this court, being a creature of statute, does not have jurisdiction to determine issues arising from the provisions of section 21 of the Electoral Act as that section does not confer jurisdiction on the Electoral Court.

He submitted that this court can only exercise jurisdiction in cases where the Electoral Act specifically confers jurisdiction on it.

He further submitted that the Electoral Act specifies instances when the court has jurisdiction, meaning, in instances where jurisdiction is not specifically conferred the legislature did not intend to confer jurisdiction. He relied on the expressio unius est exclusio alterius rule of interpretation.

Counsel for the applicants, in response, submitted that this court was created to deal with electoral matters, and, therefore, has jurisdiction to hear and determine matters arising from failure to comply with any provisions of the Electoral Act.

He submitted that the use of the words “and other matters in terms of this Act”, means and other cases arising from this Act confers jurisdiction on this court in instances where the legislature did not specifically do so.

He summed up by saying the Electoral Court was created to hear and determine electoral cases.

He pointed out various provisions in which various officials are required to act in one way or the other and asked what would happen if they did not comply. He submitted that this court should intervene and order the officials to comply as should be done in this case.

Counsel for the respondents, in reply, submitted that the applicants are not left without remedy as they can apply to the High Court which has inherent jurisdiction and can hear and determine matters for which the Electoral Court has no jurisdiction.

Creature of Statute

This court was created in terms of section 161(1) of the Electoral Act. There is no doubt that it is a creature of statute.

As a creature of statute, it can only exercise the jurisdiction conferred on it by the statute which created it. Its powers are confined within the provisions of the creating Act.

In the case of Vengesai & Ors v Zimbabwe Glass Industries Ltd 1998 (2) ZLR 593 (H)…, GILLESPIE J said:

“The concept of the rule of practice is peculiarly appropriate only to superior courts of inherent jurisdiction. Any other court, tribunal, or authority is a creature of statute and bound by the four corners of its enabling legislation.”

See also the cases of Chairman, Public Service Commission and Ors v Zimbabwe Teachers Association & Ors 1996 (1) ZLR 637 (S)…,; Harare City v TA Prop (Pvt) Ltd 1994 (2) ZLR 82 (S)…,; and Gwalazimba v PG Merchandising Ltd and Anor 1993 (2) ZLR 215 (S)…, where McNALLY JA said:

“This submission is undoubtedly correct. The Tribunal is a creature of statute and can only hear appeals as provided in the Labour Relations Act 16 of 1985.”

In the case of PTC v Mahachi 1997 (2) ZLR 71 (H)…, CHATIKOBO J, commenting on the powers of a court created by statute, said:

“The Tribunal was established by section 83(1) of the Labour Relations Act [Cap 28:01] (“the Act”). Being a creature of statute, the Tribunal has no powers other than those conferred upon it by the legislature either expressly or by necessary implication.”

The important observation made by CHATIKOBO J, which I respectfully agree with, is that the Act which confers jurisdiction on the creature of statute can do so expressly or by necessary implication. This means the enabling Act must be analysed to determine whether or not the implied jurisdiction, which, in this case, counsel for the applicants seems to rely on, was conferred. The implied jurisdiction must be discovered from the provisions of the Electoral Act.

The provision in dispute

Section 161(1) of the Electoral Act provides as follows:

“(1) There is hereby established a court to be known as the Electoral Court for the purpose of hearing and determining election petitions and other matters in terms of this Act.”

There is no dispute on the meaning of the part of section 161(1) which establishes the Electoral Court. It is common cause that this court has jurisdiction to hear and determine election petitions.

The dispute arises from the interpretation of the later part of section 161(1), namely, the words “and other matters in terms of this Act.”

Most of the words in that phrase present no difficulties as their meanings are obvious. They are not ambiguous as they admit of no other meanings besides their ordinary grammatical meanings. It is the word “terms” which the parties rely on in arriving at their respective constructions of the phrase in question.

Construction of the phrase

The meaning of the phrase “and other matters in terms of this Act” can be discovered by assigning an ordinary, literal, or grammatical meaning to every word in the phrase.

In Keyter v Minister of Agriculture 1908 NLR 522…, BALE CJ said:

“It is the duty of the court to give effect to every word which is used in a statute unless necessity or absolute intractability of the language employed compels the Court to treat the words as not written. (Salmon v Duncombe & Ors 7 NLR 182).

Another cardinal rule, in ascertaining the meaning of a statute, is that in construing the words used we are to ascertain the meaning from the words themselves, and not from what we imagine to have been the intention of the legislature.”

In the case of The Queen v Bishop of Oxford 4 QBD 261, it was said a statute “should be so construed that, if it can be prevented, no clause, sentence or word shall be superfluous, void or insignificant.”

In the case of Chegutu Municipality v Manyora 1996 (1) ZLR 262 (SC)…, McNALLY JA said:

“There is no magic about interpretation. Words must be taken in their context. The grammatical and ordinary sense of the words is to be adhered to, as LORD WENSLEYDALE said in Grey v Pearson (1857) 10 ER 1216 at 1234, 'unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency - but no further.'”

In this case, the word “and” in the phrase is a conjunction joining the other matters which this court can hear and determine to petitions, which are agreed can be heard and be determined by this court.

The word “other” simply means other than the petitions already referred to.

The word “matters” means other cases which can be heard and determined along side the petitions which it is common cause can be heard by this court.

The word “in” directs the inquirer to the source from which he or she can look for the “other matters” which can be heard and determined by this court.

The word “terms” refers to what qualifies a matter to be heard and determined by this court. It is the word whose true meaning has to be construed to determine whether or not this court has jurisdiction to hear this case….,.

The remaining words “of this Act” directs the inquirer to look within the Electoral Act for the other cases or matters which can be heard and determined by the Electoral Court.

In this case, the key word is “terms”.

Its interpretation should be based on its ordinary, literal, grammatical meaning.

In the case of Expedite Haulage (Pvt) Ltd v Scotfin Ltd 2000 (2) ZLR 113 (HC)…, CHATIKOBO J said:

“On the face of it, the contention advanced by Mr de Bourbon seems to be closer to the wording of the statute than that advanced by Mr Colgrave, and, of course, the cardinal rule of construction is that the words of a statute must be given their ordinary, literal, grammatical meaning, unless to do so would lead to a glaring absurdity.”

The same principles were expressed by the Supreme Court in the case of Endevour Foundation & Anor v Commissioner of Taxes 1995 (1) ZLR 339 (S)…, where GUBBAY CJ said:

“The general principle of interpretation is that the ordinary, plain, literal meaning of the word or expression, that is as popularly understood, is to be adopted, unless that meaning is at variance with the intention of the legislature as shown by the context, or such other indicia as the court is justified in taking into account, or creates an anomaly or otherwise produces an irrational result. See Stellenbosch Farmers' Winery Ltd v Distillers' Corp (SA) Ltd & Anor 1962 (1) SA 458 (A) at 476E-F.

The same notion was expressed in another way by MARGO J in Loryan (Pvt) Ltd v Solarsh Tea & Coffee (Pvt) Ltd 1984 (3) SA 834 (W) at 846G-H:

'Dictionary definitions of a particular word are very often of fundamental importance in the judicial interpretation of that word in a statute or in a contract or in a Will. Nevertheless, the task of interpretation is not always fulfilled by recourse to a dictionary definition, for what must be ascertained is the meaning of that word in its particular context, in the enactment, or contract, or other document.'”

The inquiry, according to these cases, must encompass the following rules of interpretation:

(a) The literal rule, to establish the ordinary, literal, grammatical or dictionary meaning of the word;

(b) Intention of the legislature to determine the contextual meaning of the word as guided by the clear intention of the legislature; and

(c) Other indicia or rules of interpretation to confirm the presence or absence of anomalies and absurdity in the resultant meaning established through the use of the above-mentioned.

The Literal Interpretation

It is trite that a court can rely on a dictionary meaning in the construction of statutes. See the cases of Endevour Foundation & Anor v Commissioner of Taxes 1995 (1) ZLR 339 (S) and Chegutu Municipality v Manyora 1996 (1) ZLR 262 (SC).

The ordinary grammatical meaning of the word “terms”, according to the Shorter Oxford English Dictionary, means:

“(i)(a) limit in space, duration, etc, that which limits the extent of anything; a limit, extremity, boundary, bound; (b) Utmost or extreme limit, end; (c) That to which movement or action is directed or tends, as its object, end or goal.

(ii) A limit in time; a space of time.

(iii) Limiting conditions pl. Conditions or stipulations limiting, what is proposed to be granted or done.”

The dominant meaning of the word “term” clearly has something to do with limiting, conditioning, bounding, and directing, whatever is to be done.

In the context of this case, this means the jurisdiction of this court, is as is limited, conditioned, bound, and directed by the Electoral Act. In simple language, the jurisdiction of the Electoral Court is as is provided by the Electoral Act.

The word “term” has acquired a well known judicial meaning.

In the Law of Contract, when one refers to the terms of a contract, the clear meaning is the conditions on which the contract is premised.

In a Will, it means as is provided by the testator in the Will.

Similarly, in an enactment, it means as is provided by the provisions of the enactment.

In the result, the literal, ordinary, plain, and technical meaning of the word “terms”, as used in section 161 of the Electoral Act, and in the context of the Electoral Act, means as stipulated, limited, or provided by the Electoral Act.

The Intention of the Legislature

Counsel for the applicants took this court through the various sections of the Electoral Act for which no court is vested with jurisdiction to enforce compliance in the event the officer who is required to act does not do so.

He argued that in such situations the Electoral Court has jurisdiction.

He obviously had in mind the implied intention of the legislature referred to in PTC v Mahachi 1997 (2) ZLR 71 (H) or the assumed or imagined intention of the legislature, referred to in Keyter v Minister of Agriculture 1908 NLR 522.

Counsel for the respondents argued that, in such circumstances, the aggrieved party should apply to the High Court which has inherent jurisdiction. He referred to section 13 of the High Court Act [Chapter 7:06].

It is correct that the High Court has inherent jurisdiction and can hear such cases, but, the issue is: does the Electoral Court have jurisdiction to hear such cases as submitted by counsel for the applicants?

This can be determined by ascertaining the expressed or implied intention of the Legislature from the construction of the sections which confer jurisdiction on the Electoral Court and a careful study and construction of the scheme of the Electoral Act.

This calls for an analysis of the sections conferring jurisdiction on this court and other courts.

In Part V of the Electoral Act, aggrieved parties are, in terms of section 25(6), referred to a designated magistrate for the province in which the affected constituency is situated for redress in the case of a dispute over claims for transfer of registration.

In Part VI, sections 27(3)(a) and (b), 28(3)(b) and 29 of the Electoral Act confers jurisdiction on a designated magistrate to hear appeals against objections by the Constituency Registrar or a voter.

Section 30(1) to (4) provides for the submission of a stated case by the designated magistrate to a judge of the High court for his opinion.

In Part X, section 44(7) confers jurisdiction on the Electoral Court to hear and determine petitions against the decision of the presiding officer over the election of the Council of Chiefs and of President and Deputy President of the Council of Chiefs and other Senator Chiefs.

In Part XI, section 46(19)(b) and (c) confers jurisdiction on the Electoral Court to hear and determine appeals from the Nomination Court.

In Part XIII, section 66(2) provides for the presence of an Electoral Court Judge at the drawing of lots to determine the winning candidate. Section 66(4) confers jurisdiction on the Electoral Court to hear and determine a petition against the decision of the Chief Elections Officer. Section 70(3)(b), (4), (5), and (8) confers jurisdiction on the Electoral Court to determine issues and make orders in relation to the destruction or preservation of electoral documents.

In Part XIV, section 81 confers jurisdiction on the High Court to, on convicting a person for inducing any person to obtain a ballot paper and influencing him or her to vote in favour of a particular candidate, to declare the convicted person disqualified from voting in any election for a period not exceeding five years.

In Part XVII, section 111 confers jurisdiction on the Electoral Court to hear and determine petitions on an undue return or an undue election of a person to the office of President, while section 112A as read with the Fifth Schedule, confers jurisdiction on the Chief Justice to preside over the electoral college for the election of a President.

In Part XVIIIA, in sections 133E and 138, confers jurisdiction on the High Court to impose additional punishment, of a civil nature, to a person it will have convicted for intimidatory practices. The same jurisdiction is conferred on the High Court in terms of section 150. Identical jurisdiction is conferred on the Electoral Court by section 155, but after the hearing of a petition after the election. It is clear the legislature conferred jurisdiction on two different courts on this aspect. The High Court deals with intimidatory and illegal practices before the elections, while the Electoral Court deals with the same situations and can impose the same additional penalties after the elections.

In Part XXI, sections 155 to section 158 confer jurisdiction on the Electoral Court to hear and determine petitions and applications and make appropriate orders specified in the various sections.

In Part XXII, section 161 establishes the Electoral Court, and, in subsection (1) and (2) specifies what it can or cannot do.

In Part XXIII, section 167 provides for the presentation of election petitions to the Electoral Court. Section 170(1) confers jurisdiction on the Electoral Court to hear and determine objections on the sufficiency of the security provided by an applicant to an election petition. Section 171(1) confers jurisdiction on the Electoral Court to hear and determine election petitions. Sections 177, 179, 180, and 181 provide for the other powers the Electoral Court may exercise in the hearing of petitions.

In Part XXIV, section 183 confers jurisdiction on the Electoral Court to hear and determine applications by persons convicted on perjured or false evidence, for the removal of the incapacity imposed at the time of conviction.

An examination of the sections conferring jurisdiction on the various courts clearly demonstrates the legislature's deliberate intention as to which court it intended to deal with which situation.

There is no doubt in my mind that where the legislature intended to confer jurisdiction on this court it did so by conferring it through a specific provision in the Electoral Act. There is clearly no room for the conferring of jurisdiction by implication.

The legislature's specific mention of the instances where this court has jurisdiction means where it did not confer jurisdiction it intended not to confer jurisdiction.

This would support counsel for the respondents submission that the application of the expressio unius est exclusio alterius rule to the specific conferring of jurisdiction in some instances means this court has no jurisdiction where it is not specifically conferred.

In the case of Nkomo & Anor v Attorney-General & Ors 1993 (2) ZLR 422 (SC)…, GUBBAY CJ said:

“To ascribe a sensible meaning to subs (5) and to avoid superfluity necessitates the legitimate recourse of construing the general words 'any sentence' in subs (6) as excluding the specific reference to 'a sentence of death' in subs (5). This is no more than an application of the rule embodied in the maxim 'expressio unius exclusio alterius.' It draws attention to the fairly obvious linguistic point that in many contexts the mention of some matters warrants an inference that other cognate matters were intentionally excluded. See MAXWELL on The Interpretation of Statutes 12ed at p293.”

In the case of Eagle Insurance Co. Ltd v Grant 1989 (3) ZLR 278 (SC)…, KORSAH JA, commenting on the operation of the maxim, said:

“A rule which is variably resorted to in the interpretation of statutes, the expressio unius rule, is that the mention of one or more things of a particular class may be regarded as silently excluding all other members of the class.”

The use of the words “may be regarded as silently excluding”, leaves room for the inapplicability of the rule in some cases. This is confirmed in the case of Chivinge v Mushayakarara & Anor 1998 (2) ZLR 500 (SC); at p506E-F GUBBAY CJ said:

“The same result is arrived at, so it seems to me, by a cautious application of the maxim expressio unius est exclusio alterus: see Taylor v Prime Minister & Anor 1954 SR 94 at 165; 1954 (3) SA 956 (SR) at 965B-D; R v Ndhlovu (1) 1980 ZLR 96 (G) at 100A-D; Hewlett v Minister of Finance & Anor 1981 ZLR 571 (S) at 596C-E; National Automobile & Allied Workers Union v Borg-Warner 1994 (3) SA 15 (A) at 26H–I.

The specific mention of the instances of permissible discharge of termination on notice by a permanent employee, to my mind, leads to the unavoidable inference that it was not the intention of the parties to the contract to allow termination on notice of a permanent employee.”

The need to exercise caution before relying on the expressio unius rule is because a conclusion based on it is a product of a logical deduction inferred from the specific mention of the other thing being an implied exclusion of that which was not mentioned.

In the case of Commissioner of Taxes v F Kristiansten (Pvt) Ltd 1994 (1) ZLR 412 (SC)…, the Supreme Court, commenting on the nature of the rule, said:

“It may be that one cannot rely on that uncertain principle of interpretation known as the 'expressio unius exclusio alterius' in this situation.”

The uncertainty of the expressio unius est exclusio alterius rule was again commented on by the Supreme Court in the case of Davies and Ors v Minister of Lands, Agriculture & Water Development 1996 (1) ZLR 681 (SC)…, where GUBBAY CJ said:

“Mr Anderson's counter to this argument was that the principle expressio unius est exclusio alterius was one of limited application to be applied with great caution. This is of course true, but, whereas here something which is not on the face of it acquisition is specifically stated so to be, there is a strong indication that acquisition is to otherwise be given its ordinary meaning.”

In the present case, a careful reading of the sections of the Electoral Act conferring jurisdiction on this court and other courts, together with section 161 of the Electoral Act, whose interpretation restricts the search for jurisdiction within the Electoral Act, the express mention of the instances where this court has jurisdiction is a clear indication that where no jurisdiction was specifically conferred the legislature did not intend to confer jurisdiction on this court. In the context of the whole Act, the words “and other matters in terms of this Act” means and other matters in which jurisdiction has been conferred by provisions of this Electoral Act.

Other indicia

Counsel for the applicants referred this court to section 157 of the Electoral Act and submitted that reference in it to “petitions and applications” when no specific jurisdiction in terms of the Act is conferred on this court to hear and determine petitions means applications such as the applicant's are the “other matters” which can be heard and be determined by this court.

This tends to suggest that the literal meaning, as established above, should include applications as provided in section 157.

The expressio unius est exclusio alterius rule would not be applicable as the mentioning of applications, without providing for them in any specific sections of the Electoral Act, would leave this court with jurisdiction in circumstances mentioned by counsel for the applicants. That would not be consistent with the plain meaning of the phrase “and other matters in terms of this Act.” It would entitle this court to depart from the plain, literal, and grammatical meaning to avoid the inconsistency or the absurdity: see the case of Chegutu Municipality v Manyora 1996 (1) ZLR 262 (SC).

Counsel for the first respondent submitted that the word “application” means petition. He therefore argued that its being mentioned in section 157 is of no significance. He relied on section 15(2) of the Interpretation Act [Chapter 1: 01] which provides as follows:

“Any reference in an enactment to a petition to a court shall be construed as a reference to an application to the court or to a judge, magistrate, or other judicial officer of the court, made in accordance with rules of the court.”

Counsel for the first respondent's submission is persuasive but does not explain why the legislature would convey the same concept using two different words of the same meaning in succession. This would suggest that one of the words is superfluous. If the use of both words was out of caution then why would the legislature use the word “or” between them suggesting that it should be one or the other?

A careful reading of section 157 of the Electoral Act is called for. It provides:

“(1) When it appears to the Electoral Court, either on application or upon an election petition, that –

(a) Any act or omission of a candidate at an election or of his or her chief election agent or of another agent or person, which but for this section would be an illegal practice, has been done or made in good faith through inadvertence or accidental miscalculation or some other reasonable cause of a like nature; and

(b) By reason of the circumstances it would be just that the candidate or his or her chief election agent or other agent or person, or any of them, should not be subject to any of the consequences under this Act of the said act or omission;
the Electoral Court, may make an order allowing the act or omission to be an exception from the provisions of this Act which would otherwise make the act or omission an illegal practice, and thereupon the candidate, agent or person shall not be subject to any of the consequences under this Act of the said act or omission.

(2) Where application is made for relief in terms of subsection (1), the Electoral Court, before hearing the application, shall be satisfied that reasonable notice of the application has been given in the constituency or area in which the election was held.”

The clear meaning of section 157 of the Electoral Act is that the Electoral Court, may, during the hearing of a petition or when an application is made to it in terms of sub-section (2), make an order allowing an otherwise illegal practice an exception to the provisions of the Electoral Act.

The provisions of section 15 of the Interpretation Act are therefore not applicable in this case.

Subsection (2) specifically provides for the making of an application to the Electoral Court, and confers jurisdiction on it to hear and determine such applications.

I, with respect, do not agree with both counsel for the applicants and counsel for the respondents' respective interpretations of section 157 of the Electoral Act: therefore, the interpretation of the words “and other matters in terms of this Act,” as discussed above, remains unaffected by the provisions of section 157 of the Electoral Act.

Even if subsection (2) of section 157 had not clarified the issue, there are other sections of the Electoral Act which confer jurisdiction on this court to hear and determine applications.

Section 179(2) of the Electoral Act provides for an application for substitution of a petitioner. Section 183 provides for an application to the Electoral Court for the removal of any incapacity imposed upon conviction based on perjured or false evidence.

It is therefore beyond doubt that the instances in which this court has jurisdiction to hear and determine applications are specifically provided for in the Electoral Act.

As already indicated, that means all the instances in which the legislature intended to confer jurisdiction on this court are specified leaving no room for this court to assume jurisdiction in circumstances referred to by counsel for the applicants.

Counsel for the respondents sought costs on the legal practitioner and client scale against the applicants on the basis that his clients were unnecessarily dragged to a court which does not have jurisdiction to hear the application.

It is true that, with careful reading of the Electoral Act, the applicants should have known that they were suing the respondent in a court which did not have jurisdiction. It is however apparent from counsel for the respondents own failure to appreciate that the Electoral Act confers jurisdiction on this court to hear applications that the Electoral Act, as recently amended, is still to be fully understood by legal practitioners - especially those who infrequently appear before this court.

There is need for guidance through the judgments of this court.

I can therefore not grant punitive costs in circumstances which clearly call for the guidance of this court.

In the result, the applicant's application is dismissed with costs.

The first applicant, the Movement for Democratic Change, is a political party, commonly known as the (“MDC”). It will be referred to as the first applicant. The second applicant, Mr Morgan Tsvangirai, is its President. He was the first applicant's Presidential candidate in the just ended harmonized elections held on 29 March 2008. He will be referred to as the second applicant.

The first respondent is the Chairman of the Zimbabwe Electoral Commission, a Commission established in terms of section 61(1) of the Constitution of Zimbabwe. He was appointed in terms of section 61(1)(a) of the Constitution. He will be referred to as the first respondent. The Zimbabwe Electoral Commission is commonly known as (“ZEC”), in reference to the abbreviation of its name. It will be referred to as ZEC in this judgment.

The second respondent is the Zimbabwe Electoral Commission's (ZEC) Chief Elections Officer appointed in terms of section 11 of the Zimbabwe Electoral Commission Act [Chapter 2:12], hereinafter called the Zimbabwe Electoral Commission Act. He will be referred to as the second respondent.

The Facts

The first respondent, through the Zimbabwe Electoral Commission (ZEC), conducted harmonised elections which were held on 29 March 2008. The elections were contested by candidates aspiring for the following positions, Councilors of local authorities, Members of the House of Assembly and the Senate, and President of the Republic of Zimbabwe.

It is common cause that the contestants of the first three positions now know the results of their elections. The results were announced at the Ward Constituency, House of Assembly and Senatorial constituency levels. The winners were declared by the respective Ward and Constituency Elections Officers. House of Assembly and Senatorial results have also been announced by the National Collation Centre presided over by the second respondent.

It is conceded, by the respondents, that this was merely for the benefit of the general public as the legal requirements had been satisfied at constituency level.

The applicants, who have an interest in Presidential election results, filed an urgent application seeking this court's provisional order, compelling the respondents to announce the results.

The respondents, while conceding that Presidential results have not yet been announced, contented that they will announce them when they are ready.

They contented, in limine, that, they are not subject to the jurisdiction of this court....,.

Jurisdiction

On 6 April 2008, before this case could be heard on the merits, counsel for the respondents submitted that this court did not have jurisdiction to hear the applicant's application. He relied on the provisions of section 61(5) of the Constitution which provides as follows:

“(5) The Zimbabwe Electoral Commission shall not, in the exercise of its functions in terms of subsection (4), be subject to the direction or control of any person or authority.”

The provisions of subsection (4) which are relevant to this application are found in sub-section (4)(1)(a). They provide as follows:

“(4) The Zimbabwe Electoral Commission shall have the following functions -

(a) To prepare for, conduct and supervise –

(i) Elections to the office of President and to Parliament; and

(ii) Elections to the governing bodies of local authorities; and

(iii) Referendums; and
to ensure that those elections and referendums are conducted efficiently, freely, fairly, transparently and in accordance with the law.”

Counsel for the respondents submitted that this court has no jurisdiction to hear the applicants complaint, and should, therefore, dismiss the application with costs.

Counsel for the applicants submitted that the respondents are subject to the jurisdiction of this court and that is why section 18 of the Zimbabwe Electoral Commission Act provides for the citing of the first respondent as a nominal citee. He further submitted that the court has jurisdiction to inquire into any complaint against the Zimbabwe Electoral Commission (ZEC) provided that it observes ZEC's independence if it is complying with the provisions of the law. He further submitted that this court can intervene if the respondents stray from the provisions of the law.

I agree with counsel for the applicants submissions as it could never have been intended by the legislature, that the Zimbabwe Electoral Commission (ZEC) could conduct itself outside the provisions of the law, including the provisions of section 61(4) of the Constitution itself, and still remain outside the jurisdiction of this court.

The clear intention of the Legislature, in section 61(5) of the Constitution, was to ensure the Zimbabwe Electoral Commission's independence - provided it was operating within the law.

It has to exercise its functions as provided by subsection (4) for it to enjoy that immunity.

It cannot, for example, conduct elections unfairly, outside the law, and which are not free and fair, but, on being sued, insist that the courts have no jurisdiction over it. The court would, in such circumstances, have jurisdiction to hear and determine complaints against the Zimbabwe Electoral Commission (ZEC).

It was for these reasons that I ruled that this court has jurisdiction to hear the applicants application....,.

The Merits

On the merits, the applicants contented, through Tendai Biti's founding affidavit dated 3 April 2008, that there has been an unreasonable delay in the processing and announcement of Presidential results. They submitted that the harmonised elections, having been held on 29 March 2008, the results for the Presidential poll should have been announced.

They accused the respondents of employing delaying tactics by announcing the already declared results for the House of Assembly and the Senate.

They submitted that the respondents were thereby avoiding their primary responsibility.

They explained the procedure laid down in sections 64, 65, and the Second Schedule of the Electoral Act which should have been followed and said it should not have taken long to collate, verify, and announce the results.

They submitted that the procedure to be followed signifies the Legislature's intention that the results of the poll must be processed and be announced without any undue delays.

On the issue of delays, counsel for the respondents submitted that, the respondents had not strayed from what the electoral laws require them to do. They can, therefore, not be compelled to release the results when they were operating within the law.

He submitted that there was no provision in the Electoral Act requiring the respondents to collate, verify, and announce the results in a specified period. He therefore argued that the respondents were entitled to act at their own discretion, but in terms of the electoral laws.

Provisions of the electoral laws and their interpretation

The question of whether or not the respondents are operating within the law can only be determined after an analysis of provisions of the Electoral Act [Chapter 2:13] which deal with the transmission of Presidential results from polling stations through constituency centres to the Chief Elections Officer.

Section 64(2) of the Electoral Act provides for the transmission of polling station return as follows:

“(2) Immediately after affixing a polling station return on the outside of the polling station in terms of subsection (1)(e), the presiding officer shall personally transmit to the constituency elections officer for the constituency to which the polling station belongs –

(a)…,.

(b) The poling station return certified by himself or herself to be correct:
provided that, if, by reason of death, injury or illness, the presiding officer is unable, personally, to transmit the ballot box, packets, statement and polling station return under this subsection, a polling officer who was on duty at the polling station shall personally transmit these.”…,.

It is clear from the provisions of this section that polling station returns and other election results material must be urgently, and under the personal care of the presiding officer, be sent to the Constituency Elections Officer.

Even the death, injury, or illness of the presiding officer is not allowed to delay the transmission of the polling station returns and other election result materials to the Constituency Elections Officer.

In the event of death, injury, or illness a polling officer must take over and deliver them with the same urgency the presiding officer should have done.

The Presidential polling station return is part of the material to be urgently transmitted.

The Second Schedule to the Electoral Act, in paragraph 1(1) and (2) provides for the further handling and transmission of Presidential results. It provides:

“(1) After the number of votes received by each candidate, as shown in each polling station return has been added together in terms of subparagraph (1) of sub-section (3) of section 65 and the resulting figure added to the number of postal votes received by each candidate, the constituency elections officer shall forthwith -

(a) Record on the constituency return the votes obtained by each candidate and the number of rejected ballot papers in such a manner that the results of the count for each polling station are shown on the return;

(b) Display the completed constituency return to those present and afford each candidate or his or her election agent the opportunity to subscribe their signature thereto; and

(c) Transmit to the Chief Elections Officer, by hand, through a messenger, the constituency return or a copy thereof certified by the constituency elections officer to be correct.

(2) Immediately after arranging for the constituency return to be transmitted in terms of paragraph (c) of sub-paragraph (1), the constituency elections officer shall affix a copy of the constituency return on the outside of the constituency centre so that it is visible to the public.”

The provisions of paragraph 1 of the Second Schedule clearly express the urgency with which the constituency return has to be transmitted to the (“second respondent”), the Chief Elections Officer.

A reading of subparagraph (1)(c) and sub-paragraph (2) reveals the urgency through the use of the word “immediately” and the fact that the affixing of the constituency return outside the constituency centre can only be attended to after the Constituency Elections Officer has arranged for the transmission of the constituency return to the Chief Elections Officer.

The question that has to be answered is why should these returns be urgently transmitted from polling stations and constituency centres if the legislature did not expect the Chief Elections Officer to equally attend to them without delay?

The inquiry must be taken to the next and subsequent stages of the process.

Paragraph 2(1) of the Second Schedule provides:-

“(1) The Chief Elections Officer shall give reasonable notice, in writing, to each candidate or his or her chief election agent, of the time and place where the Chief Elections Officer will verify and collate all the constituency returns.”

Counsel for the respondents seems to rely on this paragraph for the absolute discretion he claims for the respondents.

It is true no time within which the notice shall be given is specified; but, does it mean the second respondent was intended to take whatever time he deemed necessary before inviting the candidates for the collation and verification of the constituency returns?

An analysis of paragraph 2(1) of the Second Schedule seems to reveal that the apparent relaxation of the urgency previously insisted on in the preceding sections and paragraphs could be for the benefit of the invitees.

The Chief Elections Officer must await their arrival before the collation and verification starts.

Even if that was the intention of the legislature, he could have been required to invite them forthwith or immediately.

It must be noted that these returns will be transmitted, by hand, from all constituencies scattered throughout the country. The distance between each Constituency Centre and the National Collation Centre determines the arrival of each return.

The legislature could, in those circumstances, have provided for urgency soon after the receipt of the last return. The fact that it did not leaves its intention unclear.

However, in the construction of statutes, the intention of the legislature can be ascertained from the context within which the provision in question is found.

This part of the Second Schedule to the Electoral Act should therefore be construed in conformity with the whole Schedule and other provisions of the Electoral Act.

The inquiry must therefore move on to the remaining provisions under paragraph 2.

Paragraph 2(2) and (3) of the Second Schedule to the Electoral Act provides as follows:

“(2) At the time and place notified for the verification and collation of the constituency returns referred to in subparagraph (1), and, in the presence of such candidates, their chief elections agents, and observers as are present, the Chief Elections Officer shall display each constituency return to those present and shall, on request, allow a candidate or chief election agent of a candidate to make notes of the contents of each constituency return.”

This paragraph establishes that, at the time notified, the collation and verification should start and continue - irrespective of the absence of other candidates.

The words “as are present” are instructive.

The urgency which seems to have been abandoned in subparagraph (1) seems to have been resumed.

In paragraph 2(3), the legislature provided:

“(3) When the Chief Elections Officer has completed the verification of the constituency returns under sub-paragraph (2), the Chief Elections Officer shall, in the presence of such persons referred to in subparagraph (2) as are present, add together the number of votes received by each candidate as shown in each constituency return.”

This means, once the invitees referred to in subparagraph (1) arrive, verification and collation shall continue - in their presence.

We move on to paragraph 3(1) which provides:

“3(1) Subject to subparagraph (2), after the number of votes received by each candidate, as shown in each constituency return, has been added together in terms of sub paragraph (3) of paragraph 2, the Chief Elections Officer shall forthwith declare the candidate who has received (the qualifying votes in terms of (a) and (b)) to be duly elected as President of the Republic of Zimbabwe with effect from the day of that declaration.”

This means, once the verification and collation starts, it continues until the winning candidate is forthwith declared the President of Zimbabwe if the result produces a winner with a majority of the votes cast.

This clearly proves urgency is resumed from the time the invitees come till the declaration of the winner.

This means, from the transmission of the polling and constituency returns, the legislature intended that officials must urgently forward returns to the Chief Elections Officer, who must, from the arrival of invited candidates or their agents, urgently collate and verify and declare the result of the Presidential poll.

Counsel for the applicants submitted that section 110(3) of the Electoral Act must be factored in, in ascertaining the legislature's intention on whether or not the respondents were intended to act with urgency.

The section provides as follows:

“Where two or more candidates for President are nominated, and, after a poll taken in terms of subsection (2), no candidate receives a majority of the total votes cast, a second election shall be held within twenty-one days after the previous election in accordance with this Act.”

He further submitted that the possibility of a second election, within twenty-one days, is consistent with the urgency expressed in the sections and paragraphs already discussed above.

He said the time for the second election is fast approaching, and, according to his calculation, the second election must be held on 19 April 2008.

He submitted that the legislature, being aware of the possibility of a re-run, could not have intended paragraph 2(1) of the Second Schedule to give the second respondent a wide discretion as to when he should collate and verify constituency returns.

The limited period between the first and second election suggests that the first election's results must be processed with urgency to avoid prejudicing candidates who will be contesting the second election.

The processing of Presidential results must, in my view, be given priority when compared to the announcement by the National Collation Centre of other elections which have no possibility of a re-run.

I am therefore satisfied that the legislature intended that Presidential election results should be processed without any undue delay.

It is, however, not in dispute that the legislature did not specify the period within which Presidential results should be collated, verified, and announced.

Counsel for the applicants said it must be within a reasonable time and relied on the provisions of section 3(1)(b) of the Administrative Justice Act [Chapter 10:28] hereinafter called the Administrative Justice Act.

It provides as follows:

“(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.”

Counsel for the respondents contented that the Administrative Justice Act does not apply to the respondents as the Zimbabwe Electoral Commission is not an administrative authority.

Counsel for the applicants contented that it is and relied on its being created in terms of section 3 of the Zimbabwe Electoral Commission Act.

Counsel for the respondents submitted that section 3 of the Zimbabwe Electoral Commission Act has since been repealed and substituted.

He is correct.

The provisions which created the Commission in the Zimbabwe Electoral Commission Act was repealed and substituted by one which provides for the procedure it shall follow and how it shall perform its functions.

The Zimbabwe Electoral Commission, as it now stands, was established in terms of section 61(1) of the Constitution.

Counsel for the applicants countered that, in any event, the second respondent remains within the meaning of “an administrative authority” as defined by section 2 of the Administrative Justice Act, as he is authorized by “an enactment to exercise or perform any administrative power or duty.”

I agree with counsel for the applicants submission as the Chief Elections Officer is employed by the Zimbabwe Electoral Commission (ZEC), in terms of section 11 of the Zimbabwe Electoral Commission Act, and his duties and functions are specified in that section.

The remaining issue on that aspect is whether the establishment of the Zimbabwe Electoral Commission (ZEC) by the Constitution excludes it from the definition of an “administrative authority.”

Counsel for the applicants further submitted that the Zimbabwe Electoral Commission (ZEC) remains an “administrative authority” by virtue of the provisions of Parts I and II of the Schedule to the Administrative Justice Act.

Counsel for the respondents submitted that, that is not the correct way of determining whether or not the Zimbabwe Electoral Commission (ZEC) is an administrative authority.

Counsel for the applicants submission is premised on the fact that the Zimbabwe Electoral Commission (ZEC) is not mentioned among the administrative authorities for which the application of the Administrative Justice Act is limited or excluded.

It is true that the Zimbabwe Electoral Commission (ZEC) is not mentioned in Parts I and II of the Schedule, but, the limitation and exclusion must only apply to those who fall under the definition of “administrative authority”. Those who do not fall within the definition need no limitation or exclusion from the application of the Administrative Justice Act as they are already not affected by its application.

I would therefore agree with counsel for the respondents that the fact that the Zimbabwe Electoral Commission (ZEC) was not mentioned in Parts I and II does not assist in the determination of whether or not it is an “administrative authority.”

Counsel for the applicants sought to establish the validity of the applicant's claim that the Zimbabwe Electoral Commission (ZEC) had acted outside the law by proving that it, as an “administrative authority”, had not announced the Presidential results within a reasonable time.

In my view, the conduct of the Zimbabwe Electoral Commission (ZEC) should be measured against section 61(4)(a) of the Constitution which provides as follows:

“The Zimbabwe Electoral Commission shall have the following functions -

(a) To prepare for, conduct, and supervise -

(i) Elections to the office of President and to Parliament;

(ii) Elections to the governing bodies of local authorities;

(iii) Referendums; and
to ensure that those elections and referendums are conducted efficiently, freely, fairly, transparently, and in accordance with the law.”

The standard set by the legislature in the Constitution is for the Zimbabwe Electoral Commission (ZEC) to perform any function required of it by the legislature through the Constitution, the Electoral Act or the Zimbabwe Electoral Commission Act, efficiently, freely, fairly, transparently, and in accordance with the law.

The use of the word “efficiently”, when construed in conformity with the urgency provided for in the Electoral Act, means the Zimbabwe Electoral Commission (ZEC) must act accurately and timeously.

In this case, the question to be answered is: did the respondents act efficiently, fairly, transparently, and in accordance with the law towards the collation, verification, and announcement of Presidential results?

If they did, that should be the end of the inquiry. If they did not, the failure must be identified before this court can intervene and order compliance.

When the above criteria is applied to the facts of this case and the law, as provided in the Electoral Act, the applicants' allegations that there was delay seems to be justified by the legislature's intention that the election results must be processed without undue delay.

This intention is revealed through the provisions which provide for the urgent transmission of polling station returns and constituency returns to the Chief Elections Officer, and how he should conduct the collation, verification and declare the winning candidate.

In the absence of an explanation, the delay between 29 March 2008 and 4 April 2008 seems to be unjustified and points to a lack of efficiency.

The period between the holding of the elections and the date of the application is six days.

Three other elections, involving greater numbers of candidates, were processed and finalized at their levels within two days of the date of the elections.

The work to be done by the Chief Elections Officer is made simpler by the counting and collation done at polling stations and constituency levels. All he has to do is to verify and display the constituency returns and add the figures thereon to identify the winning candidate whom he should forthwith declare the President of Zimbabwe.

This task, should all things being equal, not have taken the second respondent up to 4 April 2008 to announce the Presidential results.

The explanation

The respondents explained the delay through CHIWESHE J's opposing affidavit. In paragraph 18 of his opposing affidavit he said:

“In response to the letter of 2 April 2008, Annexure 'B', I had, prior to receiving the application, which was served on me last night, prepared a press statement, which I intended to release, not only to inform the applicants of the Commission's position on these issues, but to the country and world at large. I attach a copy of the statement and request this honourable court to incorporate it as part of this affidavit. The statement relates extensively and accurately to the correct legal position. This statement is annexed as Annexure 'C'”.

At pp 2 to3 of Annexure “C” he explained that the Zimbabwe Electoral Commission (ZEC) had received several complaints in terms of section 67A of the Electoral Act.

At 2 of Annexure “C” he said:

“In this process, sight must not be lost of the provisions of section 67A(1) of the Electoral Act (Electoral Laws Amendment Act No.17/07) which provides as follows:

'(1) Within 48 hours after a constituency elections officer has declared a candidate to be duly elected in terms of section 66(1), any political party or candidate that contested the election in the ward or constituency concerned may request the Commission to conduct a recount of votes in one or more of the polling stations in the ward or constituency.'

This is a right accorded to a candidate or a political party that contested an election for either of the House of Assembly. The same is also applicable to a Presidential candidate by virtue of the provisions of Part XVIII in section 112, which imports Part XIII of the Electoral Act (where section 67A is found).

For the avoidance of doubt, I relate to this section below:

'Subject to this Part, the provisions of Parts XIII, (other than sections 66, 67, and 68, for which the provisions of the Second Schedule are substituted), XIV, and XV, shall apply, with any changes that may be necessary to an election to the office of President'.”

After explaining the effect of a miscounting, even by one vote, could have on a Presidential election, CHIWESHE J concluded, at pp3 – 4, by saying:

“The Commission, it must be put on record, has received several complaints in terms of section 67A.

The Commission is in the process of considering the evidence submitted, to determine whether a recount should or should not be done? The question, as to whether to order a re-count, or not, is entirely in the discretion of the Commission. This is provided in section 67A(7) which provides -

'The Commission's decision on whether or not to order a recount, and, if it orders one, the, extend, of the recount shall not be subject to appeal.'”

Interpretation of the Law applicable to the explanation

The prospect, of a recount, generated spirited legal arguments for and against it.

Counsel for the applicants submitted that section 67A, being part of section 67, was excluded from the sections which were imported into Part XVII by section 112. He further argued that section 67A does not apply to Presidential elections because it is not found in Part XVII where Presidential elections are provided for.

Counsel for the respondents argued that section 67A is a section of the Electoral Act in its own right and was imported into Part XVII by virtue of its not having been mentioned among the sections excluded by section 112.

I agree with counsel for the respondents because a section in a statute has its own separate existence even if it shares a section number with another section. It is distinguished from the preceding section by the letter added to the section number it shares with the preceding section.

A section in a statute is constituted by the provisions after its section number up to the last subsection under it.

In this case, section 67 ends with subsection (3), and the next section, which is section 67A, follows.

Section 67A was not in the original Electoral Act. It was introduced by section 48 of Act 17 of 2007.

If the legislature intended to make it part of section 67 it would have introduced it into the Act as a sub-section of section 67.

A new section is usually placed in the part of the statute where it fits into the scheme of the Act.

In this case, it was placed between section 67, which provides for the notification of the result of an election, and section 68, which provides for the publication of the names of elected candidates in the Gazette, because that is where a recount conveniently fits into the scheme of the Electoral Act. It determines the winning candidate whose name should be published.

I am therefore satisfied that section 67A enjoys a separate existence from section 67.

Therefore, its exclusion from the sections of Part XIII, excluded by section 112 from importation into Part XVII, means it was imported into Part XVII.

Counsel for the applicants summed up by submitting that even if section 67A is held to be part of Part XVII it does not apply to Presidential elections because they have not yet been announced. He, for that argument, relied on section 67A(1)'s provision that the complaint by a party or candidate must be made within forty-eight hours after a candidate for that election has been declared duly elected.

Counsel for the respondents submitted that the forty-eight hours within which the complaint must be raised, after the winning candidate has been declared, does not apply to Presidential elections because section 112 provides for “necessary changes” in the importation of Parts XIII, XIV and XV into Part XVII.

Section 67A, as already found, is part of Part XVII by virtue of its importation thereto by section 112. It therefore applies to Presidential election results with the necessary changes referred to by section 112.

I however do not agree with counsel for the respondents that the necessary changes extend to the substantive provisions of section 67A.

Where, in a statute, a provision from one Part of a statute is imported into another part of the same statute, to “apply, with any changes that may be necessary” the court interpreting that statute is not allowed to re-enact the relevant provision. It can only make necessary changes to make the provisions fit into the importing Part.

That power is limited to the names of officers who act in the importing Part, the sections empowering them to act, and the places where they are authorized to act, etc.

The substantive provisions cannot be changed. They are in fact the reason for the importation. They are intended to influence the provisions of the importing Part.

In this case, section 67A(1) will, after the necessary changes have been made, read as follows:

“(1) Within forty-eight hours after the Chief Elections Officer has declared a candidate to be duly elected in terms of section 110(6), as read with the provisions of the Second Schedule, any political party or candidate that contested the election for the office of President, may request the Commission to conduct a recount of votes in one or more of the polling stations.”

In its changed form, section 67A(1) means a re-count can only be requested within forty-eight hours after the declaration of the results of the Presidential election.

A recount, before the announcement of the results, is, in terms of section 67A(1), as imported into Part XVII, not provided for.

If the request for a recount, in terms of section 67A(1), is the reason for the delay in announcing the Presidential results, the delay is based on an incorrect interpretation of section 67A(1). It would thus be an invalid reason for delaying the announcement of the Presidential election results.

Counsel for the respondents further submitted that even if the forty-eight hours apply the Zimbabwe Electoral Commission (ZEC), can, on its own initiative, order a recount in terms of section 67A(4) which provides as follows -

“The Commission may, on its own initiative, order a recount of votes in any polling stations if it considers there are reasonable grounds for believing that the votes were miscounted and that, if they were, the miscount would have affected the result of the election.”

Counsel for the applicants submitted that section 67A(4) should not be read in isolation, but together with section 67A(1). He submitted that if read in the context of the whole section, it means any re-count contemplated by it can only be done after the announcement of the results.

An analysis of section 67A(4) reveals that the Zimbabwe Electoral Commission (ZEC) can act on its own initiative to order a recount.

It does not state when it can do so as is specified in respect of subsection (1).

The information on which it may act can come from any source - including a complaint as provided in subsection (1). It simply should have reasonable grounds for believing that votes were mis-counted.

If the legislature intended to restrict the first respondent to considering a recount after the announcement it could have made reference to sub-section (1) as is done in subsection (3). The wide discretion given to the first respondent on this aspect is confirmed by the provisions of subsection (7) of section 67A. It provides as follows:

“(7) The Commission's decision on whether or not to order a recount, and, if it orders one, the extent of the recount, shall not be subject to appeal.”

The fact that the Zimbabwe Electoral Commission's decision to recount, and the extent thereof, is not subject to an appeal means that it was intended to act independently and that its decision would be final.

The provision barring an appeal simply means the Zimbabwe Electoral Commission (ZEC) has been given a very wide discretion as to whether or not to order a recount.

The provision that the Zimbabwe Electoral Commission's decision shall not be subjected to an appeal also means this court cannot inquire into that decision.

This should therefore be the end of the inquiry, as the Zimbabwe Electoral Commission's conduct can only be open to the jurisdiction of this court when it strays from the law.

I should therefore find that the reason proffered by the respondents, for their failure to timeously announce the Presidential results, is legally valid. It can, therefore, justify the delay. The respondents have not strayed from the law. This court is therefore not entitled to intervene and order the respondents to announce the results on the basis of failure to comply with the law.

Counsel for the respondents sought costs against the applicants' and their legal practitioners, on the higher scale.

He submitted that the applicants' application was not necessary as the applicants could have sought for information from the respondents. He also relied on the fact that there are no time limits within which the respondents are required to act: a fact which the applicants should have known.

Counsel for the applicants, in response to the issue of costs, said, if any costs are to be ordered they should be on the ordinary scale.

He disputed that the application could have been avoided as their letter of 2 April 2008 was not responded to.

The issue of costs is in the court's discretion. That discretion must be exercised in a manner that does not discourage litigants from approaching the courts.

Electoral matters are very important to candidates, political parties, and the nation.

In this case, the whole nation is waiting for results. The applicants were anxious at the time they made their application. Their legal practitioners wrote a letter expressing anxiety and demanding the results - but did not get a reply till they resorted to this application. They should not be penalized by costs on the higher scale for making an application in circumstances where delay is conceded but has now been explained because of their application.

I would, in the result, dismiss the application with costs on the ordinary scale.

This matter came before me by way of an urgent chamber application.

At the initial set down date, the legal practitioners indicated that they wished to file written submissions and the matter was accordingly postponed for that purpose.

In view of the legal issues that were apparent from the affidavits, and that had not been canvassed, I required the legal practitioners to file supplementary heads of argument, which counsel did, and, I am indebted to counsel for the same.

I had also requested a copy of a translation of a South African judgment referred to by the applicant's counsel, but, unhappily, that was not given to me expeditiously, with the result that this judgment was then delayed.

The facts relevant to this dispute are as follows:

The dispute centers around Dana Farm. This farm is now owned by the State after it was gazetted for resettlement under the land reform program.

The first and second respondents are referred to on the papers as former owners of the farm, although the exact nature of that ownership has not been stated nor is it relevant for present purposes.

What is relevant is that they were in occupation at the time the farm was acquired.

The third respondent is a beneficiary of the land reform program but he occupies a neighbouring farm. He is, however, a majority shareholder in a company in which the first and second respondents also own shares and which is undertaking certain farming operations on Dana A Farm.

According to the papers, the first and second respondents occupy subdivisions 2 and 3 of the farm.

The applicant was issued with an offer letter for subdivision 1 which he occupies.

The applicant seeks an interdict, both in interim and final terms, against the respondents from use and occupation of subdivision 1 of Dana Farm. In addition, he seeks their eviction from the same.

After he and counsel for the respondents had made submissions on the application, counsel for the applicant moved for an amendment to the draft order.

Counsel for the respondents did not object to its amendment.

The new draft order merely sought an interim interdict against the three respondents with the eviction being reserved for the final relief.

I find it difficult to comprehend the logic of seeking an amendment of that nature, at that stage, as counsel for both sides had argued the matter fully on the merits as related to the interdict and the eviction.

In my view, no prejudice will occur to any of the litigants if I dispose of the matter on the merits as if it were an opposed application rather than for relief in interim terms.

Although the applicant sought to file an amendment to the draft order, the application to amend the same was only introduced after both parties had addressed the court in argument on the basis of the original draft order. It seems to me, therefore, that the dispute between the parties has been ventilated in full and it does not assist either of the parties for this court to ignore that fact.

I also agree with the submission in the respondents heads of argument that the nature of relief sought is in final terms.

Even if I considered the matter on the basis of the amended draft order, it would not change much as the relief being sought is not materially different in the two draft orders.

The applicant is the Commercial Workers Union of Zimbabwe, a Union which represents the interests of commercial workers in Zimbabwe. The respondents are members of the Union who filed an ex parte application in the Magistrates Court and obtained the following interim order -   

“That pending the finalization of this matter the following relief is granted:

1. The respondents be and are hereby ordered to cease, refrain and desist from hindering, obstructing or interfering with the operations of the National Executive duly elected at the National Congress of the 13^th of February 2010.

2. The eighth respondent, John Chifamba, be and is hereby ordered not to hinder or obstruct the duly appointed General Secretary, Mr. G. Karikuimba, from occupying his office and discharging his duties as the applicant's General Secretary.

3. The applicant seeks a further order against the first and seventh respondents, in their capacities as the remaining signatories to the applicant's CBZ Bank Account, interdicting them from withdrawing or transferring funds from the said account pending the resolution or renewal of their mandate by the National Executive elected on the 13^th of February 2010.

4. Should any report be made to the Zimbabwe Republic Police by the applicant's representatives of breach of any terms of this order, the Police are directed and ordered to arrest the respondents or any one of them and keep him/her or them in custody and cause him/her or them to appear in court to answer contempt of court charges.”

The order granted has far-reaching consequences.

The crucial preliminary issue to be determined before I deal with the merits of the application is the definition of this application. Is this an application for review of the decision of the Constitutional Select Committee to remove the applicants from the outreach programme or a declaratur (Section 14 of High Court of Zimbabwe Act [Chapter 7:06]).

The applicants' position is that the application is one for a declaration of rights and not a review. Counsel for the applicants submitted that the application takes the form of a declaratur and mandamus.

It is trite that an interdict and a mandamus are two sides of the same coin, unauthorized action is presented by means of an interdict and compliance with a statutory duty is enforced by means of mandamus – Continental Landgoed (Edms) Bpk v Bethelrand 1977 (3) SA 168 (T)….,.. There is no difference, in principle, between the enforcement of a statutory prohibition by way of an interdict and the enforcement of a statutory duty by way of a mandamus.

The mandamus is a legal remedy which is aimed at compelling an administrative organ to perform a prescribed statutory duty.

The only issue left is whether the application is one for a mandamus.

The applicants are alleging that the Constitutional Select Committee has failed to comply with statutory duties enshrined in the Administrative Justice Act [Chapter 10:28] i.e. the removal of the applicants from the outreach programme was done in contravention of section 3(1)(a) of the Administrative Justice Act [Chapter 10:28] as it was done without giving the applicants a hearing and without giving reasons.

As alluded to above, compliance with a statutory duty is enforced by means of a mandamus. Mandamus is available to serve two purposes i.e.-

(a) To compel the performance of a specific statutory duty; and

(b) To remedy the effects of unlawful action already taken.

The mandamus will only be granted where the public authority is under a clear duty to perform the act ordered. Where the public authority has a discretion in the matter, the order will only extend to directing the authority to comply with its duty of deciding the matter properly – Minister of Law and Order (Bophuthatswana) v Maubane 1981 (3) SA 453 (A); Moll v Civil Commissioner of Paarl (1897) 14 SC 463 and Britten v Pope 1916 AD 150….,.

As alluded to above, the Constitutional Select Committee informed the applicants by mere publication of fresh list of membership of the outreach programme without the names of the applicants. Equally, the reasons for the removal were not given to the applicants. The applicants also did not bother to ask for the same. The reasons were only in answer or opposition to this application. It seems beyond dispute that in the first place the placement of the applicants was done in a similar fashion i.e. an advertisement in the same media. The applicants were content with the newspapers being the bearer of good news but not bad news. The applicants have not established in their application the need for hearing before their removal from the programme. The relationship between the parties does not require a hearing to terminate it. Participation in the outreach programme is on a volunteer basis. The volunteer is not in some kind of employment and he/she offers the national service for free. The volunteers receive US$25= each per day for lunch meals and other expenses are paid for directly to service providers. This is not the kind of relationship that warrants a hearing before termination. As alluded to above, the applicants have now been informed why they were removed i.e. in addition to being members of Ibhetshu lika Zulu, they were active or prominent ZAPU politicians. They have not disowned such ZAPU membership. In the circumstances, they do not meet the set requirements for membership of the outreach programme. They may have gone into the programme by withholding their political involvement but it is now common cause.  Once it was discovered they do not meet the set criteria their entry into the programme became a nullity.  The oversight of the Constitutional Select Committee cannot grant them membership of the outreach programme if they do not meet the minimum criteria. To allow such oversight of the Constitutional Select Committee to give right of membership would only result in political parties being over represented i.e. beyond the 30%...,..  They were lucky to have got into the programme in the first place and they cannot cry foul when their entry deficiencies are discovered and they are accordingly removed from it.  Ibhetshu lika Zulu should have submitted names of individuals who do not enjoy such prominent membership of both the civic organization and a political party.

An oversight or error by the Constitutional Select Committee cannot overrule the express provisions of the Constitution on the participation in the outreach programmes. 

For the record, the applicants can still participate in the Constitution-making process in other forms.  Every Zimbabwean is free to participate in the Constitution-making process but not everyone will do so via the volunteer outreach programme.

By reason of an allegation by the applicant of a breach of his fundamental right enshrined in section 56(1) of the Constitution, this application gained direct access to the Constitutional Court (“the Court”) through the front door, which is section 85(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”).

THE APPLICATION

The applicant averred that he is a Member of Parliament for Lobengula Constituency in Bulawayo (having been so elected in the harmonised elections held on 31 July 2013) and residing in Bulawayo. He charges the respondents, and, in particular, the first respondent who is the Minister responsible for issues of local Government, with a violation of section 267 of the Constitution. This is because of their alleged failure to bring about the enactment of such an Act of Parliament as would give effect to the provisions of Chapters 2 (which sets out the national objectives) and 14 (which deals with devolution and setting up of provincial governance) of the Constitution of Zimbabwe thus bringing into operation devolution in Zimbabwe.

He alleges that the failure of the respondents, since 1 August 2013, when the full Constitution took effect, to bring a draft Bill before Parliament for enactment constitutes a breach of sections 2 (which renders conduct inconsistent with the Constitution invalid to the extent of the inconsistency) and 5 (this section defines the tiers of Government in Zimbabwe, one of them being Provincial and Metropolitan Councils) of the Constitution. He therefore seeks the following relief:

“IT IS ORDERED THAT:

1. The respondents' failure, to enact the law covered and as envisaged in Chapter 14 of the Constitution, in particular Sections 267(2), 273(4) and 270(2) of the Constitution of Zimbabwe, is a breach of the Constitution of Zimbabwe.

2. The failure by the respondents, to enact the laws necessary to operationalize Chapter 14, in so far as it relates to Provincial Governance, is a violation of the applicant's right to equal protection and benefit of the law as defined by Article 56(1) of the Constitution.

3. The respondents must bring before Parliament such a Bill or Bills as covered by Sections 273(4), 267(2) and Section 270(2) of the Constitution of Zimbabwe within 45 days from the date of issuance of this order by the Court.

4. That respondents jointly and severally each paying the other to be absolved pays costs of suit.”

I note here that section 273(4) does not exist. Section 273, in subsection (1) and (2), makes provision relating to the establishment and functions of provincial and metropolitan councils and for the filling of vacancies therein.

The application is opposed by the respondents.

The first respondent denied any neglect in bringing the Bill before Parliament. He annexed to his opposing affidavit a draft Bill which he termed a working draft. He explained that legislation of such importance cannot be hurriedly placed before Parliament and that he is still in the process of carrying out the necessary consultations with the various entities as prescribed by section 267(2)(b) of the Constitution.

The respondents also contend that the applicant has not, save for a mere statement alleging an infringement of his right conferred by section 56(1) of the Constitution, to equal protection and benefit of the law, demonstrated how that right has been infringed by the respondents. Nor has the applicant adduced any evidence to substantiate his allegation that “the State is limping” because there are no metropolitan and provincial councils as provided for in section 5 of the Constitution.

It is further contended by the respondents that the second respondent's responsibility for bringing legislation before Parliament extends only to those matters which fall under his portfolio and that the Bill  envisaged by section 267 is not one of those matters.

In any event, so averred the respondents, a reasonable period was required within which to produce the legislation in question and it could not be hurried through within the period of 45 days suggested by the applicant.

It was submitted that the application was devoid of merit and ought to be dismissed with costs….,.

THE APPLICATION FOR A MANDAMUS

The applicant claims that the failure by the respondents to enact the law envisaged in section 267 of the Constitution is a breach of the Constitution for which he is entitled to approach this Court seeking a mandamus.

Section 264(1) of the Constitution provides:

“264 Devolution of governmental powers and responsibilities

(1) Whenever appropriate, governmental powers and responsibilities must be devolved to provincial and metropolitan councils and local authorities which are competent to carry out those responsibilities efficiently and effectively.”

Section 267(1) lists the provinces of Zimbabwe and subsection (2) provides;

(2) An Act of Parliament -

(a) Must provide for the division of provinces into districts; and

(b) May provide for the alteration of provincial and district boundaries;

after consultation with the Zimbabwe Electoral Commission and the people in the provinces and districts concerned.”

Undoubtedly, it is within the powers of a court before which a constitutional matter is argued to grant, in an appropriate case, a mandatory interdict or mandamus.

I have already concluded that since the complaint does not relate to the breach of a fundamental right, the applicant is not entitled to approach the Court in terms of section 85 of the Constitution. However, even assuming the applicant was properly before the Court, he has not made out a case for the mandamus that he seeks.

While not necessarily bound by them, the Court is generally guided by common law principles relating to interdicts. Thus, in order to prove his entitlement to a mandamus in this case, the applicant would be required to meet the requirements for the grant of a final interdict. These are:

(i) A clear right;

(ii) An injury actually committed or reasonably apprehended; and

(iii) The absence of a similar protection by any other remedy.

See Tribac Private Limited v Tobacco Marketing Board 1996 (2) ZLR 52 (S).

It was submitted by the respondents that the applicant had not satisfied these requirements.

I agree.

In terms of section 264(1) of the Constitution, the division of the provinces into districts is to take place whenever appropriate. The section is not cast in mandatory terms. The State has been given a constitutional mandate to decide when it is appropriate and it is not for the applicant to make that decision. Reading all provisions as a whole, as one must in interpreting the Constitution, that decision is a prerequisite to section 267. Once that decision has been made, it can only be implemented by an Act of Parliament - after consultations with the Zimbabwe Electoral Commission and the persons affected by the proposed change.

While it is true that the Metropolitan Councils form one of the tiers in the order of Government as set out in the Constitution (see section 5(b) of the Constitution) it is also true that no time limits have been set by the Constitution for the devolution of power to the authorities listed therein. Consequently, it can safely be said that ssection 264 of the Constitution contemplates that compliance with its dictates be effected within a reasonable time.

The applicant maintained that the process required little time, and indeed forty-five (45) days was suggested as the time within which the enactment should be gazetted and placed before Parliament for consideration. However, on behalf of the respondents, it was submitted that work is taking place on the proposed Bill and that included consultations with various stakeholders especially those mentioned in section 267 of the Constitution. It was submitted that an enactment of this nature could not be hurriedly done in the time suggested by the applicant.

DISPOSITION

According to the applicant, although the Constitution was signed into law by the President of Zimbabwe on 15 May 2013, the full document only 'became law after the general election of 31 July 2013 on 1 August 2013.' This application was brought on 25 March 2014 - less than 12 months after the coming into effect of the Constitution. No evidence on which the issue of reasonableness could be determined was placed before the Court in the applicant's founding affidavit. The Court would, therefore, have been unable, because of the lack of evidence before it, to make a decision on whether or not the respondents had failed within a reasonable time to enact the legislation referred to in section 267 of the Constitution and the applicant would, for the same reason, have failed to establish an infringement of a clear right entitling him to a mandamus.

(iii) An order that the first respondent publishes all Internet Access Provider Licences in accordance with section 5(a) of S.I.262 of 2001 within 30 days of the date of this order

In S.I.262 of 2001, there is no section 5(a), but section 5 which says:

“The Authority shall cause all the licences issued to be published in the Gazette.”

Section 5 of S.I.262 of 2001 does not set the time limits within which the licences should be published. In the Ministerial order that the second respondent granted on 30 June 2015, he ordered the first respondent to publish all Internet Access Provider Licences in accordance with section (5) of S.I.262 of 2001 by 1 August 2015 following an appeal that had been made to it by the applicant following a misunderstanding with the first respondent.

It is interesting to note that by the time this application was heard, on 31 January 2017, the first respondent had not yet complied with the order of the Minister.

The applicant wants the first respondent to be ordered to publish all licences in the Gazette.

It is the applicant's argument that the first respondent lacks transparency and clarity in the manner in which telecommunications services providers are licensed. It is alleged to operate under a veil of secrecy hence its reluctance to publish the licences as is required by the law. The applicant avers that this is evidence that the first respondent does not conduct its affairs in a fair manner. The applicant averred that this conduct by the first respondent violates section 3(1) of the Administrative Justice Act [Chapter 10:28] which requires it, as an administrative authority, to act lawfully, reasonably and in a fair manner and to act within a specified period or reasonable period in the absence of a specified period. The provision reads as follows;

“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.”

The applicant stated that it was making this application in terms of section 4(1) of the Administrative Justice Act [Chapter 10:28] which authorises any person who is aggrieved by the failure of an administrative authority to comply with section three to make an application for relief to this court. The section reads;

“4 Relief against administrative authorities

(1) Subject to this Act and any other law, any person who is aggrieved by the failure of an administrative authority to comply with section three may apply to the High Court for relief.

(2) Upon an application being made to it in terms of subsection (1), the High Court may, as may be appropriate –

(a) Confirm or set aside the decision concerned;

(b) Refer the matter back to the administrative authority concerned for consideration or reconsideration;

(c) Direct the administrative authority to take administrative action within the relevant period specified by law, or, if no such period is specified, within a period fixed by the High Court;

(d) Direct the administrative authority to supply reasons for its administrative action within the relevant period specified by law, or, if no such period is specified, within a period fixed by the High Court;

(e) Give such directions as the High Court may consider necessary or desirable to achieve compliance by the administrative authority with section three.

(3) Directions given in terms of subsection (2) may include directions as to the manner or procedure which the administrative authority should adopt in arriving at its decision and directions to ensure compliance by the administrative authority with the relevant law or empowering provision.

(4) The High Court may, at any time vary or revoke any order or direction given in terms of subsection (2).”

In response, the first respondent did not dispute that it has not complied with the Ministerial order of 20 June 2015 which it ought to have complied with by 1 August 2015. However, it cited some administrative constraints that it later encountered which it says the second respondent is aware of. The first respondent averred that the person who has the right to complain is not the applicant, but the Minister, the second respondent who is entitled to remedies under section 102 of the Postal and Telecommunications Act [Chapter 12:05]. Section 102 reads;

“Proceedings on failure of Authority to comply with Act or direction

(1) If at any time it appears to the Minister that the Authority has failed to comply with this Act or with a direction given to it in terms of section twenty-five or twenty-six, he may, by notice in writing, require the Board to make good the default within a specified period.

(2) If an act or thing required to be done in terms of this Act is omitted to be done or is not done in the manner or within the time so required, the Minister may order all such steps to be taken as in his opinion are necessary or desirable to rectify such act or thing, and the said act or thing when done in terms of the said order shall be of the same force and validity as if originally done in accordance with the appropriate provisions of this Act.”

The first respondent averred that the second respondent has not complained - so all is in order. The first respondent further averred that if the applicant is aggrieved in any way by the delays it should complain to the second respondent who has resort to section 102 of the Postal and Telecommunications Act [Chapter 12:05].

The second respondent did not respond to this issue leaving it to the first respondent to respond.

I am not inclined to grant the relief that the applicant is seeking because it has not shown that it has a legal right and sufficient interest in the matter to warrant it to ask for this relief. The fact that the applicant believes that the first respondent is not performing its affairs in a fair manner does not give it the locus standi to seek to compel it to publish all licences in the Gazette in terms of S.I.262 of 2001. The question that can be asked in this matter is, what is the applicant's interest in the relief that it is seeking? It appears to me that the applicant is trying to use the courts to investigate the first respondent, which is not proper. The words 'any person' used in section 4(1) of the Administrative Justice Act [Chapter 10:28] refer to a person with a legal right and sufficient interest in the relief that he is seeking.

I will therefore not grant the relief.

(iv) An order for the first respondent to comply with the provisions of section 37(5) of the Postal and Telecommunications Act regarding publication of licences by licensees

Section 37(5) of the Postal and Telecommunications Act [Chapter 12:05] reads;

“Within 30 days after the issue of a licence referred in subsection (4) the licensee shall, at his own expense cause the licence to be published in a newspaper circulating in the area in which he intends to operate as a licensee.”

As was correctly submitted by counsel for the first respondent, the provision imposes no obligation for the first respondent to comply with. The obligation is on the licensee to publish his licence at his own expense. The applicant is therefore seeking an incompetent relief against the first respondent.

I therefore cannot grant this relief.

In the course of argument, counsel for the applicant evidently realised the futility of the applicant's case. She changed tack.

At first, she sought an alternative order, without abandoning the original one. The new order would be that, within sixty [60] days, the first respondent should be ordered and directed to attend to the verification and inspection of the applicant's pegs at the location, as well as consider the applicant's application for mining rights. When I intimated that the original remedies and the alternative ones seemed mutually exclusive, counsel for the applicant was initially adamant that she wanted it that way. Eventually, she completely abandoned the original orders and threw all her weight on the new ones.

Plainly, the applicant's case had not been thought through properly right from the beginning.

In order for me to determine the applicant's new claim, it was necessary, at the very least, to prove that there had been an inordinate delay by the first respondent in resolving the matter.

No such averment existed in the body of the application. That simply had not been the focus of the original complaint. Thus, no basis for such a relief had been laid out anywhere. The period of sixty days was just a thumb-suck.

Furthermore, and at any rate, counsel for the applicant was constrained to argue, convincingly, that the paltry fifteen days between her letter of demand, on 9 November 2016, to when she launched the application, 24 November 2016, could, in all seriousness, be described as an unreasonable or inordinate delay. It was also not possible to argue, convincingly, that the less than one month period from the date when the second respondent launched its objection, on 28 October 2016, to the date of filing of the application, 24 November 2016, was an unreasonable delay.

The applicant had just been rash in all its dealings.

Counsel for the applicant changed tack further. She insisted that the period to consider should be from when the objection was launched with the first respondent, 28 October 2016, to when I heard the application, 30 May 2017, i.e. about five months.

With due respect, that was just being garrulous.

There could be no substance in that argument. No such case had been laid out in the application. None of the parties had dealt with the fate of the second respondent's objection after the launch of this application. Nothing was laid out before me to enable a decision to be made on the point. There was no indication how much time would ordinarily be required for such objections to be dealt with. Even if the period beyond the filing of the application could properly be considered, still there was nothing to suggest that five months was a reasonable or an unreasonable delay. There was no yardstick given or suggested by which to measure the reasonableness or unreasonableness. It was all a dog's breakfast.

The requirements of an interdict are;

In order to obtain a final mandatory interdict (a mandamus), the applicant must show the following requirements;

(i) A clear or definitive right - this is a matter of substantive law.

(ii) An injury actually committed or reasonably apprehended - an infringement of the right established and resultant prejudice.

(iii) The absence of similar protection by any other ordinary remedy - the alternative remedy must be adequate in the circumstances; be ordinary and reasonable; be a legal remedy; grant similar protection.

See Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 (2) ZLR 52 (SC)…,.; Setlogelo v Setlogelo1914 AD 221…,.; Flame Lily Investment Company (Pvt) Ltd v Zimbabwe Salvage (Pvt) Ltd & Anor 1980 ZLR 378; Boadi v Boadi & Anor 1992 (2) ZLR 22; Diepsloot Residents' and Landowners' Association & Anor v Administrator, Transvaal 1994 (3) SA 336 (A)…,.

The requirements for a final interdict are:

(i) A clear right;

(ii) An injury actually committed or reasonably apprehended; and

(iii) The absence of similar protection by any other remedy.

In this respect, see Universal Merchant Bank Zimbabwe Ltd v The Zimbabwe Independent and Another 2000 (1) ZLR 234 (HC) and Setlogelo v Setlogelo 1914 AD 221.

Commenting on the element of clear right, BARTLETT J, in Universal Merchant Bank Zimbabwe Ltd v The Zimbabwe Independent and Another 2000 (1) ZLR 234 (HC) had this to say….,;

“The reference to a clear right in respect of a final interdict, as opposed to a prima facie right in regard to a temporary interdict, means no more than a clear right must be established on a balance of probabilities. See Aussenkehr Farms (Pty) Ltd v Walvis Bay Municipality 1996 (1) SA 180 (C) at 188F-G; Silberberg & Schoeman, The Law of Property 3ed at 146.”

This is an appeal against the judgment of the High Court dismissing with costs, an application by the appellant seeking an order restraining the transfer of or in the event that the property had already been sold, an order reversing that sale and giving the appellant the right to purchase certain immovable property commonly known as No. 8 Price Road, Emerald Hill, Harare….,.

Interim interdict

It is not in dispute that in the main, the appellant approached the court a quo for an interim interdict, seeking to restrain the transfer of the property in dispute pending determination of his rights to the property. Clearly, in seeking the interim protection as he did, the appellant appreciated that the dispute relating to his rights in the property would be determined at some future date and in proceedings different from the application he had filed for an interim interdict.

In this regard he was correct, for an interim interdict merely affords temporary protection pending the determination of the disputed rights of the parties. The grant or refusal of a temporary interdict is not intended to and does not in any way resolve the dispute between the parties. More importantly, the procedure for obtaining an interim interdict, including the averments that have to be made and the evidential threshold that has to be passed in such proceedings is different from the procedure and averments necessary for settling the substantive dispute. The two reliefs cannot, therefore, be co- joined and claimed in the same procedure.

It was therefore incompetent for the appellant, in his draft order, to seek an order reversing a sale to which he was not privy and for an order granting him the right to purchase the immovable property.

Turning to the specific terms of the provisional order granted by the court a quo, counsel for the appellant submits that the interim relief granted pending the determination of the matter is the same as the final relief sought by the respondent. Moreover, it consists of a mandamus coupled with an interdict and is final and definitive in effect, thereby rendering moot any further determination on the return date.

The interim relief granted ordered the appellant to immediately restore water supply to the respondent's premises and interdicted the appellant from interfering with the respondent's possession of the premises by interfering with or terminating his water supply. The final order sought declared the termination of the respondent's water supply, on the basis of a disputed water bill, in the absence of a court order, to be unlawful self-help and interdicted the appellant from interfering with, disrupting or terminating the respondent's water supply without a court order.

At first glance, the terms of the interim relief granted and the final order sought appear to be substantially similar. On closer scrutiny, however, I am able to discern certain critical differences in both the wording and effect of the two orders. In particular, paragraph 1 of the interim relief was designed to restore the status quo ante; paragraph 1 of the final order is essentially declaratory of the alleged unlawfulness of the appellant's conduct in the absence of a court order. Again, paragraph 2 of the interim relief granted interdicts the appellant from any interference pending the finalisation of the matter; paragraph 2 of the final order restrains the appellant from interference without the authority of a court order.

Given these significant distinctions, I take the view that what is sought in the final order on the return date is materially different from what was granted by way of interim relief by the court a quo. Furthermore, I am unable to perceive any categoric finality or definitiveness in the terms or effect of the interim relief granted. It does not preclude the appellant from expediting the proceedings and resisting the confirmation of the provisional order on the return date. In particular, it leaves ample leeway for the appellant to argue the merits of its case on the premise that the absence of a court order does not ipso facto negate its right to disconnect water supplies in order to enforce payments due for water supplied to its consumers.

On 13 June 2014 the applicant filed an urgent chamber application for an order of spoliation….,.

But, as it prepared its papers for the order of spoliation, it seems the applicant was somewhat confused on the choice of remedy.

After laying out the foundation for a spoliation order it also went on to lay out some foundation for an interdict. Among other things, the applicant alleged a prima facie right. It alleged an actual harm suffered; the absence of no other effective remedy; the balance of convenience being in its favour and the fear of an irreparable harm. All these are factors for an interlocutory interdict. In the result, the applicant sought a provisional order the draft of which was clearly a hybrid. The final order sought an interdict. The provisional order sought an order of spoliation.

In my view, the applicant's approach was defective. An order of spoliation is a final order. It does not have an interlocutory nature: see Mankowitz v Loewenthal 1982 (3) SA 758…,.

The two elements of spoliation, namely, peaceful and undisturbed possession and the act of spoliation, have to be proved on a balance of probabilities. On this point, the learned authors SILBERBERG and SCHOEMAN'S The Law of Property, 5^th ed…, say:

“These two facts have to be proved on a balance of probabilities: a prima facie case will not suffice, the mandament van spolie being a final order.”

In a footnote, and after citing several case authorities on the point, the learned authors say:

“Kleyn 1989 De Jure 154 emphasises this aspect very clearly in his discussion of the Aussenkehr case. The mandament is a unique remedy that falls within a category of its own and should not be confused with an interdict. The most important difference between the mandament and an interdict is that the merits are not considered where the mandament is claimed, whereas the merits are extremely important when an interdict is sought in that a clear right has to be established.”

One morning, in February 2009, Zimbabweans woke up and found themselves subjected to a 'multi-currency system'. The Zimbabwean dollar was no longer accepted as legal tender. A basket of other currencies, such as the United States dollar and the South African Rand, were introduced into our society.

The truth of the matter is that these currencies had been circulating on what had been dubbed a 'parallel market' for quite some time. There are those who welcomed the formal adoption of those currencies as legal tender in this country which had been ravaged by the knock-on effects of super hyper inflation. Others bemoaned the symbolic annihilation of our currency which they associated with a corresponding perception of the annihilation of our national sovereignty. The majority of the people were perturbed by the effect of the introduction of the multi-currency system on their pensions, insurance policies, and life savings.

This case is about a group of workers who, between them, gave more than twenty years of loyal service to their employer. In terms of the pension policy that was in operation at the outset both employer and employees diligently contributed monthly to a pension fund.

The issue that falls for determination, put simply, is whether all sixty seven employees are entitled to challenge the determination by the employer as to what constitutes their basic annual salary for purposes of calculating their pension benefits. Depending on the answer to this question, the court will have to determine, further, whether these employees are entitled to demand further payments by the employer towards their eventual pensions.

At the heart of these issues lies the contentious issue of the effect of the introduction of the 'multi currency' system on the calculation of pension contributions which had previously been based on our local currency, and were now set to be calculated on the basis of the United States dollars, the currency that the employees were now remunerated in.

Some would say that the question ought to be holistically and definitively addressed by Parliament as a matter of policy. Others feel that it is simply a question of implementing the provisions set out in the relevant pension fund.

We have been asked to issue an interdict and a declaratur as to the parties' rights and obligations in terms of the rules of their pension fund.

The application before the court was filed of record on 16 December 2013. The founding affidavit was deposed to by G. Chiparaushe in a personal capacity and as the duly authorized representative of the sixty six other applicants who attached supporting affidavits authorizing him to represent them.

The first respondent is a sugar cane growing and processing company duly registered in accordance with the laws of this country and the employer of the sixty-seven applicants.

To avoid confusion, the first respondent shall be referred to as TRIANGLE. The second respondent is the Triangle Senior Staff Pension Fund (to be referred to as TSSPF), a properly constituted pension fund, duly registered with the Commissioner of Insurance, Pension and Provident Funds Act (IPEC), in terms of section 6 of the Pension and Provident Funds Act [Chapter 24:09]. The Triangle Senior Staff Pension Fund (TSSPF) is governed by its rules (the Fund Rules).

The first applicant averred that the application before the court was brought in accordance with Rule 9 of the Triangle Senior Staff Pension Fund Rules which provides that a member or any person whose claim is derived from a member shall have the right to refer a dispute to a court of law in this country for determination.

The applicants had previously approached an arbitrator, Honourable J.T Mawire, in terms of the Labour Act [Chapter 28:01] to determine the dispute, and, on or about the 5^th of September 2013, the arbitrator found that he did not have the jurisdiction to determine the dispute between the parties.

It was submitted, on behalf of the applicants, that they had a clear right to the interdict and declaratur that they sought.

The first applicant averred that he became an employee of TRIANGLE on the 1^st of April 1980, and a member of the Triangle Senior Staff Pension Fund (TSSPF) on the 1^st of July 1996. As from the date of his membership to the Triangle Senior Staff Pension Fund, TRIANGLE commenced deducting his share of pension contributions from his basic salary. The applicant remains a member of the Triangle Senior Staff Pension Fund to date.

The first applicant averred, further, that in terms of clause 11 of his contract of employment, membership to the Triangle Senior Staff Pension Fund (TSSPF) became compulsory on the date of his appointment, and his contribution of 7% of his basic monthly salary was automatically deducted and forwarded to the Triangle Senior Staff Pension Fund (TSSPF), by TRIANGLE, every month. According to the Terms and Conditions of the employment of C Band staff (Loss Control Manager), as at 1 July 1996 the basic salary was pegged at ZW$90,948=. The pension contribution of 13% came to ZW$11,823=. Under the heading “remuneration” was a note to the effect that:

“The basic salary is pensionable and the company currently contributes 13% to the Triangle Senior Staff Pension Fund.”

After the basic salary was a list of benefits which were to be paid on behalf of the employee on a 50% contribution basis, such as CIMAS medical aid and a drug scheme. Further benefits included an education allowance which was expressly qualified as being taxable.

The first applicant averred that, currently, in terms of Rule 19 of the Triangle Senior Staff Pension Fund Rules, TRIANGLE is obliged to make a corresponding monthly contribution to the Triangle Senior Staff Pension Fund of 13.5% of the first applicant's basic monthly salary. On the basis of the aforesaid, the first applicant averred that he and his fellow applicants have a clear right to have a deduction of 7% of his basic monthly salary made and to have a corresponding 13.5% of his basic monthly salary contributed by TRIANGLE. Failure to match the first applicant's contribution would be a failure by TRIANGLE to abide by the Triangle Senior Staff Pension Fund Rules.

It was submitted that, in or about October 2000, the Managing Director of TRIANGLE, Mr. J. M. Cleasby, advised members of the Triangle Senior Staff Pension Fund (TSSPF) that it was closed to new entrants on the basis that its existing members would be given an option to transfer to a different pension fund, the Triangle Pension Plan (hereinafter referred to as The Money Plan). In November 2000, Mr. Cleasby wrote a letter to the members of the Triangle Senior Staff Pension Fund and advised them that the date of transfer to The Money Plan was the 1^st of January 2001. Paragraph 3 of the letter stated that:

“To assist you in making a decision please find enclosed;

(a) Comparison booklet.

(b) Illustration letter.

(c) Option form.”

It was submitted, on behalf of the applicants that, TRIANGLE caused a booklet called 'Defined Benefit Triangle Senior Staff Pension Fund or Defined Contribution The Money Plan', which compared the two schemes to be published. All sixty seven applicants opted to remain members of the Triangle Senior Staff Pension Fund (TSSPF).

The first applicant averred that the applicants suffered an injury and/or that, alternatively, an injury is reasonably apprehended by them. In support of this contention is the averment found in paragraph 18 of the first applicant's founding affidavit, that TRIANGLE has unilaterally decided to refuse to make its share of contributions to the Triangle Senior Staff Pension Fund and/or to deduct their 7% contributions from their basic monthly salaries. The allegation against TRIANGLE is that, by refusing to recognize most of the earnings of members of the Triangle Senior Staff Pension Fund (TSSF) as 'pensionable', it has, by its conduct, breached the terms of the Triangle Senior Staff Pension Fund Rules and interfered with the accrual of pension benefits.

In support of this averment, the first applicant referred to a letter to the trustees of the Triangle Senior Staff Pension Fund (TSSPF), dated 1 April 2009, written by the TRIANGLE managing director, Mr. S. D. Mutsambiwa. The letter was entitled “Pensionability of US$ Salaries”. It reads as follows:

“Kindly note that the January 2009, February 2009 and March 2009 salaries have been paid in USD$ to employees who are members of the Triangle Senior Staff Pension Fund (TSSPF). These salaries were paid in USD$ without any confirmation by the employer whether or to what extent the salaries would constitute pensionable emoluments. A decision in this regard is still to be made pending a review of the 'dollarisation' of the Zimbabwean economy and the bearing this will have, amongst other things, on the functioning of the Fund. The company will be arranging a meeting with the Board of Trustees in the near future to consider the way forward both in relation to existing pensioners and active member. In the meantime, and until further notice, contributions will be remitted to the Fund Administrators as an interim measure pending final decisions regarding the way forward in respect of the Triangle Senior Staff Pension Fund (TSSPF). This interim arrangement should under no circumstances be regarded as an implied decision having been taken that current USD$ salaries are indeed classified as pensionable emoluments.”…,.

On 8 July 2009, TRIANGLE introduced the “guaranteed package” to employees in the Executive grade, backdated to June 2009….,.

In paragraph 24 of his founding affidavit, the first applicant avers that all the applicants were forced to sign the acceptance letter in unilateral variation of their conditions of employment.

To prove this claim, he referred to an electronic mail communication dated 15 December 2009, addressed to Mr, Eston, in which Fred Nyangwe advised that Mr. Eston's failure to sign the letter which contained the new conditions of service, meant that, with effect from 1 December 2009, his salary, as set out in the letter, would be discontinued and he would go back to earning his old salary as at 31 May 2009. He was also advised that the difference between the two salaries, which he had been paid, would be deducted from his old salary until it had been recovered in full.

On 7 October 2010, TRIANGLE announced that the Triangle Senior Staff Pension Fund (TSSPF) would be discontinued and its active members moved to the Money Fund with effect from 1 November 2010. The Triangle Senior Staff Pension Fund Trustees refused to sign a resolution to approve the disbanding of the Fund on the basis that this violated the Triangle Senior Staff Pension Fund Rules and constituted a reversal of the undertakings made by TRIANGLE to the Fund members.

The Trustees were of the view that the procedure set out by Rule 36 of the Triangle Senior Staff Pension Fund Rules had not been followed.

A meeting was held at which TRIANGLE announced the transfer of the Triangle Senior Staff Pension Fund members to the Money Plan and told the members that the transfer values would be based on January 2009 salaries and not on current salaries.

Again, this was alleged to be in violation of the Triangle Senior Staff Pension Fund Rules.

The applicants' contention is that the relevant Rule equates pensionable emoluments to a member's basic salary or wage. Members' basic salaries had increased significantly since 2009, in some instances by 500%. TRIANGLE contended that following the Triangle Senior Staff Pension Fund Rules would result in its bankruptcy.

On 19 October 2010, the Triangle Senior Staff Pension Fund members delivered a petition to the trustees of the Triangle Senior Staff Pension Fund to demonstrate that they did not wish or agree to transfer from the Triangle Senior Staff Pension Fund (TSSPF) to the Money Plan. On 15 February 2011 the trustees addressed a letter to the TRIANGLE Human Resources Manager. Paragraph 3 of the letter reads as follows:

“…,. Of concern by members is why the trustees are not being consulted on the future of the Fund in accordance with the Fund's rules. Member trustees are not being kept informed as to what is happening and are not being asked for input or direction…”

In February 2011, TRIANGLE announced a further annual salary review together with changes to the structure of employment benefits. Members were asked to agree to and sign for these changes by 7 March 2011. Part of a letter written to Mrs. Eston (one of the applicants) on 21 February 2011, by Human Resources, reads as follows:

“Dear Mrs Eston,

The structure of your remuneration package has been reviewed in the context of the need to align the employee remuneration framework…,. It is confirmed that your actuarily calculated benefit in the TSSPF is to be based on the USD$ salary that has been used to determine your Fund contributions since 1 January 2009…,.”

In response to the petition by members of the Triangle Senior Staff Pension Fund (TSSPF), the Insurance and Pensions Commission (IPEC) called a meeting and advised that TRIANGLE was at liberty to disband the Triangle Senior Staff Pension Fund (TSSPF) - but only after fully funding it and complying with the requisite termination procedures.

In paragraph 38 of the founding affidavit, it is averred, on behalf of the applicants, that they have no other remedy. Various meetings with the trustees have not yielded any results. TRIANGLE has continued to refuse to recognize members' basic salary as the pensionable emolument. Repeated appeals to the Insurance and Pensions Commission (IPEC) to intervene have not yielded any tangible solutions.

The applicants reiterate that no other remedy other than a declaratur and an interdict can assist them to assert their pension rights.

On 20 January 2014, TRIANGLE filed a notice of opposition.

The opposing affidavit was deposed to by Fred Nyangwe, the Human Resources director. He raised various points in limine;

(i) The first of which was that the applicants had failed to exhaust domestic remedies.

(ii) The second preliminary point raised is that there are material disputes of fact which make this matter incapable of resolution on the papers filed of record.

(iii) The third preliminary point raised in the founding affidavit is that this matter is lis pendens, the decision of the arbitrator, Mr. Mawire, of 23 September 2013, not being final.

(iv) The final preliminary point raised is that this matter has prescribed because the applicants' claims arose in August 2009, or, alternatively, January and August 2010.

On 20 February 2014, an answering affidavit was filed on behalf of the applicants. TRIANGLE was accused of usurping the power of the Board of Trustees of the Triangle Senior Staff Pension Fund (TSSPF) and of attempting to close the Fund. The trustees deliberated over the dispute for more than two years and it was alleged that they have failed to resolve the issue because the chairman of the Fund frustrated all efforts to settle the matter. It was contended that TRIANGLE frustrated efforts by the Insurance and Pensions Commission (IPEC) to resolve the dispute starting with the meeting of 6 October 2011, by failing to comply with the Insurance and Pensions Commission directives.

The issues that fall for determination before this court are as follows:

1....,.

2....,.

3....,.

4....,.

5. What constitutes basic salary for purposes of calculating the contributions due from the applicants and from TRIANGLE for onward transmission to the Triangle Senior Staff Pension Fund (TSSPF) every month.

6. Whether the applicants are entitled to the relief sought....,.

AD MERITS

The heart of the matter, the crux of it, the issue that falls for determination in the main matter between the parties is the question of what constitutes basic salary for purposes of calculating the contributions due from the applicants and from TRIANGLE for onward transmission to the Triangle Senior Staff Pension Fund (TSSPF) every month.

In order to do justice to this question, it is necessary to inquire into and determine whether the court may, in the circumstances of this case, issue a declaratory order and an interdict.

(f) Basic salary for purposes of calculating pensionable emoluments

Rule 2 of the Triangle Senior Staff Pension Fund Rules defines pensionable emoluments as;

“'Pensionable Emoluments' of a member shall mean his basic annual salary or wages together with any contractual bonus. For purposes of the Fund, changes in Pensionable Emoluments shall be recognized immediately.”…,.

The dispute between the parties pertains to the definition of what constitutes 'basic annual salary or wages.'

I agree with the contention that in order to answer that question, it is necessary to examine who is entitled to make that determination.

The contract of the first applicant, of July 1996, shows that the employer set out the definition of basic salary and that the first applicant signed the contract in acceptance of this. TRIANGLE has promised to make its determination of what constitutes basic annual salary after a review, and the applicants appeared to have accepted this stipulation by signing to indicate acceptance of the 'restructured cash package'. The first applicant, in his answering affidavit…, appears to accept that the employer has a contractual right to set the basic salary at the point of initial engagement but not thereafter.

Let us examine this assertion to see if it is correct both in fact and law.

Subject to any statutory requirement, an employer is entitled to make an offer to its existing employees in respect of salary structures. The employees have no obligation to accept the offer made by the employer, and often negotiate in that regard. Subject to anything that comes out of the negotiations, the offer made as to the structure of the salary is made unilaterally by the employer. Once the employees accept the offer it becomes binding on both the employer and the employees.

It was contended that in this case, there was formal acceptance of the document containing the offer, and there was further acceptance by conduct in continuing to accept the salary package.

I find this contention persuasive.

The first applicant was first employed in 1980. In 1996 he signed a new contract on terms set by TRIANGLE. So, in fact, and at law, the employer has the right to set the conditions of employment, including a determination of what an employee's basic annual salary is.

Having gotten that out of the way, it is pertinent, at this stage, to consider whether the restructuring of the applicants' packages conformed with the Triangle Senior Staff Pension Fund (TSSPF) Rules, i. e. whether the definition of cash package that the applicants accepted in 2009, complied with the Triangle Senior Staff Pension Fund (TSSPF) Rules specifically in relation to the co-relation between the 'basic salary' and the calculation of the pensionable emoluments.

It has been contended that, by keeping the definition of basic salary in respect of the Triangle Senior Staff Pension Fund (TSSPF) members at their January 2009 salaries, despite subsequent increases in salaries, TRIANGLE is unilaterally varying the Rules of the Triangle Senior Staff Pension Fund (TSSPF) to the applicants' prejudice. The basic annual salary is being kept deliberately and intentionally low, at 2009 levels, for the specific reason that TRIANGLE intends to keep the basic annual salary down in order to keep the applicants' pensionable emoluments down.

That is the crux of the dispute.

TRIANGLE has taken the stance that it will review this decision in due course.

Nine applicants have retired and had their pensionable emoluments calculated on the basis of their January 2009 salaries despite the fact that their actual salaries may have increased significantly since January 2009.

Is this in accordance with the Triangle Senior Staff Pension Fund Rules?

In my view, it is not. The reasons why I hold this view are discussed extensively below. I hold the further view that the applicants are entitled to have their pensionable emoluments calculated in accordance with the Triangle Senior Staff Pension Fund Rules. Any continued contravention of the Triangle Senior Staff Pension Fund Rules is prejudicial to the applicants. The ways in which TRIANGLE has contravened the Triangle Senior Staff Pension Fund Rules, in regards to the calculation of the applicants' basic annual salary, are explored in detail below.

(g) Are the applicants entitled to the relief that they seek when regard is had to the Triangle Senior Staff Pension Fund Rules?

It was submitted, on behalf of TRIANGLE, that the Triangle Senior Staff Pension Fund Rules do not give the applicants such a cause of action as to be entitled to the relief sought in the draft order…,. It was submitted, further, that an analysis of the Fund Rules will show that no cause of action arises in favour of the applicants. It was submitted that the Rules do not require adjudication as to what constitutes basic salary for the purposes of determining pensionable emoluments or to compel TRIANGLE to make any particular contributions to the Triangle Senior Staff Pension Fund (TSSPF).

In a nutshell, the argument raised is that the applicant's action against TRIANGLE cannot lie in the Triangle Senior Staff Pension Fund Rules.

With all due respect to counsel for TRIANGLE, again, I find that this argument is circuitous and self serving and is not based on an accurate reading of the Triangle Senior Staff Pension Fund Rules.

Some of the parties rights and obligations set out in the Triangle Senior Staff Pension Fund Rules form part of the contracts of employment between the applicants and TRIANGLE. There is a correlation between the applicants' contracts of employment and the Triangle Senior Staff Pension Fund Rules.

The first applicant's initial contract of employment set out the terms and conditions of the employment of C Band staff (Loss Control Manager) as at 1 July 1996. The basic salary was pegged at ZW$90,948=. The pension contribution of 13% came to ZW$11,823=. Under the heading “remuneration” was a note to the effect that the basic salary was pensionable and that the company currently contributed 13% to the Triangle Senior Staff Pension Fund.

In terms of the submissions made on behalf of TRIANGLE…, the applicants have the right to be paid their cumulative contributions as at the date of termination of employment. That right is derived from Rule 29 of the Triangle Senior Staff Pension Fund Rules as read together with the contract of employment which specifies the parties respective pension contributions. The pension contributions are calculated in accordance with Rule 17 of the Triangle Senior Staff Pension Fund Rules as read together with the applicants' contract of employment.

Part of a letter written to Mrs. Eston (one of the applicants) on 21 February 2011, by Human Resources, confirmed that her remuneration package had been restructured. The restructured remuneration package was valid from 1 March 2011. The letter confirmed her actuarily calculated benefit in the Triangle Senior Staff Pension Fund was to be based on the USD$ salary that had been used to determine her Fund Contributions since 1 January 2009.

Now, surely, it not being suggested that Mrs. Eston's Fund contributions, since January 2009, had not been determined in terms of the Fund Rules as read with her contract of employment. The Fund Rules have a symbiotic relationship with the applicants' contracts of employments.

Some of the benefits which constitute the rights and obligations of the parties in the contract of employment depend on the Triangle Senior Staff Pension Fund Rules for their definition, and alteration, and amendment from time to time. It is simply not sustainable, in my view, to argue that, as a matter of law, the applicants' cause of action cannot be determined in terms of the Triangle Senior Staff Pension Fund Rules. The symbiotic nature of the parties rights and obligations is as clear as crystal, in my view.

In conclusion, it is this court's view that the cause of action of the applicants against TRIANGLE lies in the Triangle Senior Staff Pension Fund Rules as read with the parties contracts of employment.

Another contentious issue raised by TRIANGLE in opposition to the granting of the relief sought by the applicants…, is that the application was erroneously brought in the name of Godfrey Chiparaushe, a C Band employee of TRIANGLE. It was submitted that the application should have been brought in the name of 58 employees and 9 retirees, broken down as follows:

E Band (senior management) 10 employees 1 retiree

D Band (middle management) 21 employees 1 retiree

C Band (supervisors) 27 employees 7 retirees

The point being made is that in terms of the definition of member in clause 2 of the Triangle Senior Staff Pension Fund Rules those who are retirees are no longer members of the Triangle Senior Staff Pension Fund, a member being a 'person prospectively entitled to any benefits' and a pensioner being a retired Member…,.

TRIANGLE disputes, correctly in my view, the right of the nine retirees to the relief sought.

I find persuasive the argument raised on behalf of TRIANGLE, that the real cause of action concerns the determination of what constitutes basic salary for the purposes of contribution by the employer and the employees to the Triangle Senior Staff Pension Fund (TSSPF). It was submitted that, as such, the real cause of action in the present matter has already accrued to the nine retirees and will accrue to the other applicants when they become entitled to the benefit in terms of the Triangle Senior Staff Pension Fund Rules.

I agree that the nine retirees, having already attained retirement age, and having had their pensions calculated on their retirement dates, have already exercised their right to be paid their cumulative contributions made to that date - the date of retirement. They have exercised their right to be paid a pension upon retirement and declaratur made by the court at this stage cannot apply retrospectively to them in regards to TRIANGLE.

Rules 22 and 29 of the Triangle Senior Staff Pension Fund Rules are clear. The right to have one's pension calculated and paid accrues at the retirement date - no sooner and no later.

(h) Requirements of a Declaratory Order

The applicants seek a declaration of their rights. TRIANGLE is not opposed to the declarations sought by the applicants in terms of (a)-(c) and (d) of the draft order…,.

What is in issue is that the applicants want the court to declare that the pensionable emolument in respect of each applicant shall be his basic annual salary (as used for PAYE, Group Life Assurance and National Social Security calculations, together with any contractual bonus).

The applicants seek the consequential relief that TRIANGLE be directed, forthwith, to re-commence making its contributions towards the balance of the costs of providing benefits towards the applicants on terms of the Triangle Senior Staff Pension Fund Rules as determined by the Triangle Senior Staff Pension Fund actuary, including any arrears which have arisen until such a time as the Triangle Senior Staff Pension Fund has been terminated in accordance with the Triangle Senior Staff Pension Fund Rules.

Finally, the applicants seek an order as to costs.

It is not in dispute that the High Court has jurisdiction to issue a declaratur, in its discretion, at the instance of any interested person, i e. to inquire into and to determine any existing, future, or contingent right or obligation.

It was submitted, correctly in my view, on behalf of the applicants, that the requirements of a declaratur are as follows:

(i) Firstly, that, the issue of a declaratur is not contingent upon there being a possibility of providing consequential relief. The applicants referred the court to the following cases as authority for this proposition;

Munn Publishing (Pvt) Ltd v ZBC 1994 (1) ZLR 337 (S).

(ii) The grant of declaratory relief is discretionary; United Watch & Diamond Co (Pty) Ltd & Ors v Disa Hotels Ltd & Anor.

(iii) In order to qualify for a declaratur, the applicant must be an interested person with a direct and substantial interest in the subject matter of the suit that could be prejudicially affected by the judgment of the court; the interest must relate to an existing, future, or contingent right; the court must not decide abstract, academic or hypothetical questions which are not related to the applicant's interest.

See also Milani & Anor v South African Medical and Dental Council & Anor 1990 (1) SA 889 (T)…,.

(iv) The existence of an actual dispute between persons interested is not a statutory requirement to an exercise of the court's discretion. See Anglo-Transvaal Collieries Ltd v SA Mutual Life Assurance Soc 1977 (3) SA 631 (T)…,.

(v) The availability of another remedy does not preclude does not render the declaratory order incompetent. See Ex Parte Nell 1963 (1) SA 754 (A)…,.; Gelcon Investments (Pvt) Ltd v Adair Properties (Pvt) Ltd 1969 (3) SA 142 (R)…,.

The applicants submitted that, at the next stage of the inquiry, it is incumbent upon the court to decide whether or not the case is a proper one for the exercise of its discretion in terms of section14 of the High Court Act.

What constitutes a proper case has been described as follows:

“…, despite the fact that no consequential relief is being claimed or perhaps could be claimed in the proceedings, yet, nevertheless, justice or convenience demands that a declaration be made, for instance, as to the existence of or as to the nature of a legal right claimed by the applicant or of a legal obligation said to be due by a respondent. I think that a proper case for a purely declaratory order is not made if the result is merely a decision on a matter which is really of mere academic interest to the applicant. I feel that some tangible and justifiable advantage in relation to the applicant's position with reference to an existing, future, or contingent legal right or obligation must appear to flow from the grant of the declaratory order sought.”

See Adbro Investment Co Ltd v Minister of the Interior & Ors 1961 (3) SA 283…,. See also Johnsen v Agricultural Finance Corporation 1995 (1) ZLR 65 (SC)…,.; Exp Chief Immigration Officer 1993 (1) ZLR 122 (S)…,.

TRIANGLE contended that;

(i) The grant of declaratory relief is discretionary and will not be used to usurp the function of another court and cited the case of Khupe v Officer in Charge, Law & Order Section, ZRP, Bulawayo Central & Ors 2005 (2) ZLR 394 (SC)…, as authority for this proposition.

(ii) It was submitted, further, that, the courts will use the power to issue a declaratur sparingly and with utmost caution. See Russian Commercial & Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 (HL)…,. Viscount Finlay.

(iii) It is a power that will only be exercised where there is a good reason for so doing. See Vine v National Dock Labour Board [1957] AC 488 (HL)…,.

TRIANGLE stated that, subject to its rights in terms of the Triangle Senior Staff Pension Fund Rules, it does not challenge the issues raised in the first three paragraphs of the draft order seeking declaratory relief. The other two orders sought were disputed on the basis that the factual and legal basis for such declaratory orders has not been established on the papers.

It was admitted that there is no dispute between the parties as to the rate of deduction from the salaries of the applicants nor that such deductions have been made each month. There is no dispute as to the rate of contribution by TRIANGLE nor as to the fact that TRIANGLE has been making that contribution each month.

It was submitted on behalf of the applicants that there can be no doubt that they are all interested parties, being members of the Triangle Senior Staff Pension Fund (TSSPF) or persons entitled to derive benefits from a member. On that basis, it is argued that they have a direct and substantial interest in the operation, existence, and regulation of the Triangle Senior Staff Pension Fund (TSSPF). In addition, the issues in respect of which a declaratur is sought are not academic and they have a bearing on the existence of the Triangle Senior Staff Pension Fund and on the accrual of the applicants' pension benefits. The applicants view is that there are some tangible and justifiable advantages to be gained by the grant of the declaration in regards to their pension rights.

It is this court's considered view that there is no legal impediment that would preclude the applicants (except for the retirees) from being issued with a declaration in these circumstances.

That leaves the issue of the definition of basic salary for the purposes of calculating pension emoluments as the only real dispute between the parties.

(i) Interdict

In order to obtain a final mandatory interdict (a mandamus), an applicant must show the following requirements:

(i) A clear or definite right - this is a matter of substantive law.

(ii) An injury actually committed or reasonably apprehended - an infringement of the right established and resultant prejudice.

(iii) The absence of similar protection by any other ordinary remedy. The alternative remedy must be:

(a) Adequate in the circumstances.

(b) Be ordinary and reasonable.

(c) Be a legal remedy.

(d) Grant similar protection.

See Tribac (Pvt) Ltd v Tobbacco Marketing Board 1996 (2) ZLR 52 (SC)…,.; Setlogelo v Setlogelo 1914 AD 221…,.; Diepsloot Residents and Landowners Association & Anor v Administrator Transvaal 1994 (3) SA 336 (A)…,.; Kaputuza & Anor v Executive Committee of the Administration for the Heroes & Ors 1984 (4) SA 295 (SWA)…,.

It was contended, on behalf of the applicants, that one of the requirements of a final interdict, a clear right, has been defined by the learned authors HERBSTEIN & Van WINSEN, The Civil Practise of the Supreme Court of South Africa…, as 'a definite right'.

The word 'clear' relates to the degree of proof required to establish the right. The existence of a right is a matter of substantive law. Whether the right is clearly established is a matter of evidence. In order to establish a clear right, the applicant has to prove, on a balance of probabilities, the right that he seeks to protect.

See Devilliers v Soetsane 1975 (1) SA 360 (E); Beukes v Crous 1975 (4) SA 215 (NC)…,.

It was submitted on behalf of the applicants, that, in terms of Rule 17 of the Triangle Senior Staff Pension Fund Rules, they have a clear right to have a compulsory contribution equal to7% of their pensionable emoluments deducted from their basic monthly salary. It was submitted, further, that, in terms of Rule 2 of the Triangle Senior Staff Pension Fund Rules pensionable emolumens are defined as basic annual salary together with any contractual bonus. In terms of Rule 19 of the Triangle Senior Staff Pension Fund Rules the Triangle Senior Staff Pension Fund has an obligation to contribute the balance of the costs of providing the benefits in terms of the Fund Rules, as determined by an actuary, which contribution shall be no less than the compulsory contributions paid by the members….,.

These obligations remain valid and binding for as long as the Triangle Senior Staff Pension Fund (TSSPF) has not been disbanded.

The applicants submitted that TRIANGLE cannot change the definition of a pensionable emolument without amending the provisions of Rule 2 of the Fund Rules. TRIANGLE was charged with 'unilaterally' changing the structure of a Member applicant's remuneration to introduce a new structure of remuneration called “Guaranteed Package” which excludes any mention of how the pensionable emoluments of Member applicants would be dealt with….,. It was argued that Rule 2 of the Triangle Senior Staff Pension Fund Rules includes a Member's basic annual salary and any contractual bonus. It was submitted that Member applicants have a clear right to have their basic salary considered to be their pensionable emoluments, to have 7% deducted therefrom, and to have TRIANGLE pay its share of the monthly contributions into the Triangle Senior Staff Pension Fund (TSSPF).

It was contended, on behalf of TRIANGLE, that the interdict, as claimed, is premised on the false allegation, or, alternatively, the disputed allegation that it is not making its contributions in terms of Rule 19 nor deducting the contribution of the members in terms of Rule 17 of the Triangle Senior Staff Pension Fund Rules. It was submitted that these allegations are incorrect, and, consequently, the requirements of a final interdict had not been met on the papers filed of record.

TRIANGLE relied on the following cases as authority for this proposition;

Nument Security (Pvt) Ltd v Mutoti & Ors 2007 (2) ZLR 300 (SC)…,. See also Stellenbosch Farmers Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234…,. where the court said that:

“It seems to me that where there is a dispute of facts a final interdict should only be granted in notice of motion proceedings if the facts as stated by the respondents together with the admitted facts in the applicant's affidavits justify such an order.”

I find myself unable to agree with the submissions made on behalf of TRIANGLE that there is a dispute of fact which is incapable of resolution on the papers for reasons previously stated. It was submitted, further, that the proposed interdict confuses the obligations of TRIANGLE under Rule 19 and Rule 41(iii) of the Triangle Senior Staff Pension Fund Rules.

Rule 19 of the Triangle Senior Staff Pension Fund Rules reads:

“Each Employer shall contribute the balance of the costs of providing the benefits in terms of these Rules as determined by the actuary and agreed by the Principal Employer from time to time provided that the Employer's contributions shall not be less that the compulsory contribution by the Members.”

Rule 41(iii) of the Triangle Senior Staff Pension Fund Rules, dealing with actuarial valuation, reads:

“If, as a result of a valuation by an Actuary, the Trustees decide that the benefits laid down in these Rules cannot be adequately financed by the maximum company contribution rate specified by the Principal Employer from time to time, then, notwithstanding the provisions of Rule 45, the benefits shall be reduced or the employee contribution rate increased as the Trustees, with the consent of the Principal Employer, and on the advice of the Actuary, decide.”….,.

The Principal Employer is TRIANGLE.

In this matter, the company contribution rate is 13.5% of each Members' basic salary. It is contended that this fulfills the obligation of TRIANGLE in terms of Rule 19 of the Fund Rules.

I agree with that interpretation of Rule 19 which requires that the employer's contributions be not less than 7%, which is what the employees are contributing. It was submitted on behalf of TRIANGLE that it is not in dispute that at present it is contributing 13.5% of each Member applicant's salary to the Triangle Senior Staff Pension Fund.

Rule 41(ii) allows a variation upwards or downwards of the monthly contributions by the employer and/or by Member applicants, on condition that, after the contributions that are proposed to be varied are valued by an actuary, the Trustees must agree to the proposed variation and TRIANGLE must agree with the decision of the Trustees.

The issue that is taxing the court is that, in these circumstances, there was no such agreement by the Trustees to vary the monthly contributions of the Member applicants or of TRIANGLE, and, consequently, TRIANLGE could not purport to do so in the absence of any agreement to that course of action by the Trustees.

By altering the composition of the Member applicant's basic salary, TRIANGLE caused a ripple effect which varied the calculation of the Member applicants' monthly contributions, as well as TRIANGLE's own monthly contributions, and failed, refused, or neglected to get the consent of the Trustees to the proposed variation.

A deduction of 7% and 13.5% of the Member applicants' basic salary as at January 2009, for onward transmission to the Triangle Senior Staff Pension Fund involves a decision to use Member applicant's January 2009 salaries as a benchmark for the deductions. The Member applicants' salaries as at January 2009 are not the same salaries that they were individually paid when they joined TRIANGLE. Nor is it the same as the salaries that the Member applicants are being paid now. The decision to keep the January 2009 salary benchmark as a basis for calculating the member applicant's pensionable emoluments, requires the approval of the Trustees to bring it into line with Rules 2 and 19 and 41(iii) of the Fund Rules.

In my view, the applicants have proved, on a balance of probabilities, that they have a clear right that they seek to protect;

(i) The right to enforce compliance with the provisions of Rules 2, 19 and 41(iii) of the Triangle Senior Staff Pension Fund Rules;

(ii) The right to have a valuation done by an actuary as to whether their benefits in terms of the Triangle Senior Staff Pension Fund Rules can no longer be adequately financed, and, if so, whether the benefits should be reduced, and, if so, to what extent in regards to the employer and in regards to the Members of the Triangle Senior Staff Pension Fund;

(iii) The right to have the valuation done by an actuary put to the Trustees for consideration;

(iv) The right to have a decision made by the Trustees; and

(v) Finally, the right to have the employer agree or disagree with the decision of the Trustees.

The second requirement for an interdict is an act of interference which is defined as 'injury actually committed or reasonably apprehended'. See Setlogelo v Setlogelo 1914 AD 221.

The word 'injury' must be understood in the wide sense to include any prejudice suffered by an applicant as a result of the infringement of his rights. See HERBSTEIN & Van WINSEN, The Civil Practice of the Supreme Court of South Africa…,. The injury must be a continuing one. The court will not grant an interdict restraining an act already committed for the object of an interdict is the protection of an existing right; it is not a remedy for a past invasion of rights. As authority for this proposition see Performing Right Society Ltd v Berman 1966 (2) SA 355 (R)…,.

The test for apprehension is an objective one. The applicant must show, objectively, that his apprehensions are well grounded. See Ex Parte Lipschitz 1913 CPD 737. The apprehension must be induced by some action performed by the respondent or authorized to be performed by his agent. See Goldsmith v The SA Amalgamated Jewish Press 1929 AD 441.

The applicants contended that TRIANGLE stated that it will not consider the basic salary being paid to the Member applicants as their pensionable emoluments. As evidence of this is the minutes of June 2011 where TRIANGLE stated that:

“…, considering all the events that have taken place over the past few years, for the Triangle Senior Staff Pension Fund (TSSPF) employees to argue that the full cash package should be pensionable is a position that the employer will not reconcile to.”

And minutes of the June 2011 Trustees meeting where the employer communicated a preference for employees to move to the Defined Contribution Fund:

“The Employer has signaled for some time that its preference is for employees to move to a DC Fund for the following reasons (amongst others): The Employer wants to ensure that going forward all employees are treated equitably in terms of their conditions of employment, there is a general move towards remuneration on a 'total package', or 'total cost of employment' basis, and once all employees are on a DC Fund, it would be much easier to ensure fair and equitable treatment of employees in terms of all their respective conditions of employment.”

The applicants' well grounded fear is that, for every month that passes without TRIANGLE complying with its obligations in terms of the Triangle Senior Staff Pension Fund Rules, it is interfering with the accrual of their pension benefits.

It is this court's view that the applicants have successfully discharged the onus on them and adduced sufficient evidence on the papers to show, on a balance of probabilities, that the applicant's fear is well-grounded. An injury of a continuing nature is actually being perpetrated against them. The injury actually committed, which is continuing to be committed, is prejudicing them. The injury is compounded by the fact that TRIANGLE did not bother to cause an actuary to re-evaluate the respective parties' contributions as provided in terms of Rule 41(iii) and Rule 19 of the Triangle Senior Staff Pension Fund Rules.

We are not taken into TRIANGLE's confidence with regards to the basis on which it decided to peg Member applicants' January 2009 salaries as the benchmark for calculating pensionable emoluments.

The third requirement for an interdict is that there be no other satisfactory remedy available to the applicants.

A final interdict is a drastic remedy which is within the discretion of the court. The court will not, in general, grant an interdict when the applicant can obtain adequate redress in some other form of ordinary relief. See Reserve Bank of Rhodesia v Rhodesia Railways 1966 (3) SA 656 (SR). It was held, in this case, that where there is an existing remedy with the same result for the protection of the applicant, an interdict will not be granted.

The applicants submitted that they have no other remedy that can provide them with satisfactory redress in these circumstances. Attempts to have the matter resolved by the Trustees failed. The Commissioner of the Insurance Pension and Provident Fund failed to resolve the dispute. The Labour arbitrator declined jurisdiction. A claim for damages would be inadequate.

It is this court's view that the three requirements of an interdict were met by the applicants.

The final mandatory interdict sought in this matter, in effect, is a direction that TRIANGLE abides by the Rules of the Triangle Senior Staff Pension Fund, more particularly, that it allows the Triangle Senior Staff Pension Fund actuary to determine what the balance of the cost of providing benefits towards the applicants is, in accordance with the Triangle Senior Staff Pension Fund Rules. The mandatory interdict sought is merely an order to TRIANGLE to comply with the Rules of the Triangle Senior Staff Pension Fund, by consulting the Triangle Senior Staff Pension Fund Trustees and actuary, and working with them to achieve consensus in terms of the Triangle Senior Staff Pension Fund Rules. It is accepted, however, as previously stated, that the nine retirees are excluded from the relief granted to the rest of the applicants in regards to the interdict.

(j) Whether the applicants are entitled to the declaratur sought and an interdict in the circumstances

It is common cause that TRIANGLE put in place an arrangement whereby each of its employees received a payment in United States dollars after dollarization in 2009. The arrangement was that each of its employees would receive payment in United States dollars, and, in respect of members of the Triangle Senior Staff Pension Fund who opted to remain with the Triangle Senior Staff Pension Fund, the question of the extent to which any payment or portion of payment in United States dollars was to be treated as a basic salary, and therefore pensionable, remained open.

TRIANGLE then purported to 'restructure' the conditions of employment of its employees, starting with the E Band employees. After negotiations with senior employees, the final restructured package was set out in a letter dated 31 July 2009. The letter carried a caveat that the employees would be advised, in due course, of the extent to which the current cash package would be pensionable. It is common cause that 11 of the E Band employees signed the letter. It was contended on behalf of TRIANGLE that, by accepting the revised remuneration offered each month thereafter 31 July 2009, the employees accepted this position by their conduct.

On 19 January 2009, a similar letter was dispatched to middle management employees, D Band. The letter was prepared by some of the E Band employees. 21 out of the 22 D Band employees signed the letter in acceptance of the 'restructured package'. Thereafter, restructuring of the salaries and other terms of employment of supervisory and skilled staff, C Band employees, was dealt with by way of a letter dated 24 August 2010. 29 out of the 34 C Band employees signed the letter and indicated acceptance of the revised terms.

The applicants contended that these changes to the conditions of employment were imposed unilaterally. It was submitted on behalf of TRIANGLE that the evidence does not support this contention.

I find myself in agreement with the position adopted by TRIANGLE, that the 'restructuring' of the remuneration packages was done in consultation with senior staff, E Band employees. It is common cause that 61 out of the 66 applicants signed acceptance of the new conditions of employment. Subsequently, the employees who had signed the letters received increases in their monthly cash packages which indicate further acceptance of the changes in their contracts. The letter of 16 August 2010 repeated the assertion that the review of the status of Defined Benefit Funds and of the Triangle Senior Staff Pension Fund was still in progress. The applicants continued to accept payment of their 'restructured cash package' on that basis.

Are the applicants bound by an issue estoppel?

In the celebrated case of Ais Enterprises (Finance) (Pty) Ltd v Protea Assurance Co Ltd 1981 (3) SA 274 (A)…, the court had this to say:

“The essence of the doctrine of estoppels by representation is that a person is precluded, i.e. stopped, from denying the truth of a representation previously made by him to another person if the latter, believing in the truth of the representation, acted thereon to his prejudice (see Joubert, The Law of South Africa, Vol 9 para 367 and the authorities there-cited). The representation may be made in words, ie. expressly, or it may be made by conduct, including silence or inaction, i.e. tacitly (ibid para 371); and in general it must relate to an existing fact (ibid para 372).”

I am in agreement with the contention that the essence of the issue in the present matter, and of the problem caused by the relief sought by the applicants, is that they have been paying less than what they should have as a contribution to their pension, 7% of the January 2009 salary and not 7% of the total cash package or total remuneration. Likewise, TRIANGLE has been paying 13.5% of the January 2009 salary as the employer's contribution to the pensions scheme.

The applicants seek that position to change only in relation to TRIANGLE (based on the terms of the mandatory interdict sought) and for a declaratur that their rights to a pension are based on quite a different figure from that on which they have been making payment - but with no corresponding declaration that they have to make a contribution based on their total cash package. This would create gross inequality between the applicants themselves and the nine retirees and cause prejudice to the Triangle Senior Staff Pension Fund and to TRIANGLE. The applicants have not tendered repayment of all the arrears of the difference between that which was paid and 7% of the remuneration received.

For these reasons, it is this court's view that the applicants, by conduct, accepted remuneration between January 2009 and the introduction of the total cash package with the explicit knowledge that TRIANGLE has been paying 13.5% of the January 2009 salary as the employer's contribution to the Triangle Senior Staff Pension Fund (TSSPF). With the introduction of the total cash package the applicants knew that there was no question that the amount being paid to them each month was to be treated as their basic salary, and each of them accepted that position. It was clear to them, and each of them accepted the position, that their pension contributions were based on an amount less than their actual total pay package. By their conduct, in continuing to accept that position, the applicants represented to TRIANGLE their acceptance of what TRIANGLE had determined. It must be borne in mind that, in granting declaratory relief to an interested person, person's interest must concern an 'existing, future or contingent right'.

The court finds that the applicants are estopped from enforcing their existing interests in the Triangle Senior Staff Pension Fund in the sense of recouping arrear contributions from TRIANGLE.

It would have been in the interests of justice to order both parties to pay their mutual arrear contributions to the Triangle Senior Staff Pension Fund had the applicants not accepted, by their conduct, the determination of basic salary by their employer. However, the court sees no reason why the applicants may not be granted consequential relief with regards to their future, or contingent rights. For these reasons the following orders are made:

The applicants are accordingly estopped:

(a) From disputing the right of their employer, TRIANGLE, to determine what portion of their total remuneration package is to constitute basic salary for the purposes of pension contributions and determining their pensionable emoluments between the period January 2009 to the date of this judgment.

(b) From denying that their basic salary in terms of the Triangle Senior Staff Pension Fund Rules is the full amount paid to each of them for the month of January 2009 up to the date of this judgment.

The parties being in agreement on certain issues in respect of which the applicants sought a declaratur, and these declaraturs not having retrospective effect:

IT IS HEREBY DECLARED, WITH THE CONSENT OF THE PARTIES, THAT:

(c) The Triangle Senior Staff Pension Fund is valid and binding in accordance with its Rules.

(d) TRIANGLE LIMITED can only disband the Triangle Senior Staff Pension Fund in accordance with its Rules.

(e) The applicants, who are members of the Triangle Senior Staff Pension Fund (a defined benefit fund), have no obligation to move to the Money Plan (a defined contribution plan).

IT IS HEREBY DECLARED AND IT IS COMMON CAUSE THAT:

(f) TRIANGLE LIMITED has an obligation to deduct 7% of the applicants' basic annual salary as their contribution towards the Triangle Senior Staff Pension Fund (TSSPF) and to meet its share of the contribution towards the Triangle Senior Staff Pension Fund in accordance with Rule 19 of the Triangle Senior Staff Pension Fund Rules.

(g) IT IS HEREBY DECLARED THAT TRIANGLE LIMITED has an obligation to cause the determination of the applicants' basic annual salary for purposes of the calculation of the applicants' pensionable emoluments, from the date of this judgment onwards, in accordance with the Triangle Senior Staff Pension Fund Rules, and, that this obligation shall be discharged in full within (90) ninety days of the date of this order.

(h) CONSEQUENT TO THE ABOVE DECLARATIONS, TRIANGLE is hereby directed, within (90) ninety days of the date of this order, to recommence making its contributions, and to deduct the applicants' contributions for onward transmission to the Triangle Senior Staff Pension Fund (TSSPF), towards the costs of providing benefits towards the applicants in terms of the Triangle Senior Staff Pension Fund's Rules as determined by the Triangle Senior Staff Pension Fund's actuary, and approved by the Triangle Senior Staff Pension Fund Trustees, EXCLUDING any arrears which arose between January 2009 and the date of this order, until such time as the Triangle Senior Staff Pension Fund has been terminated in accordance with the Triangle Senior Staff Pension Fund Rules.

(i) TRIANGLE shall pay the costs of this application.

In order to obtain a final mandatory interdict (a mandamus), an applicant must show the following requirements:

(i) A clear or definite right - this is a matter of substantive law.

(ii) An injury actually committed or reasonably apprehended - an infringement of the right established and resultant prejudice.

(iii) The absence of similar protection by any other ordinary remedy. The alternative remedy must be:

(a) Adequate in the circumstances.

(b) Be ordinary and reasonable.

(c) Be a legal remedy.

(d) Grant similar protection.

See Tribac (Pvt) Ltd v Tobbacco Marketing Board 1996 (2) ZLR 52 (SC)…,.; Setlogelo v Setlogelo 1914 AD 221…,.; Diepsloot Residents and Landowners Association & Anor v Administrator Transvaal 1994 (3) SA 336 (A)…,.; Kaputuza & Anor v Executive Committee of the Administration for the Heroes & Ors 1984 (4) SA 295 (SWA)…,.

It was contended, on behalf of the applicants, that one of the requirements of a final interdict, a clear right, has been defined by the learned authors HERBSTEIN & Van WINSEN, The Civil Practice of the Supreme Court of South Africa…, as 'a definite right'.

The word 'clear' relates to the degree of proof required to establish the right. The existence of a right is a matter of substantive law. Whether the right is clearly established is a matter of evidence. In order to establish a clear right, the applicant has to prove, on a balance of probabilities, the right that he seeks to protect. See Devilliers v Soetsane 1975 (1) SA 360 (E); Beukes v Crous 1975 (4) SA 215 (NC)…,.

In Stellenbosch Farmers Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234…,. the court said:

“It seems to me that where there is a dispute of facts a final interdict should only be granted in notice of motion proceedings if the facts as stated by the respondents together with the admitted facts in the applicant's affidavits justify such an order.”…,.

The second requirement for an interdict is an act of interference which is defined as 'injury actually committed or reasonably apprehended'. See Setlogelo v Setlogelo 1914 AD 221.

The word 'injury' must be understood in the wide sense to include any prejudice suffered by an applicant as a result of the infringement of his rights. See HERBSTEIN & Van WINSEN, The Civil Practise of the Supreme Court of South Africa…,. The injury must be a continuing one. The court will not grant an interdict restraining an act already committed for the object of an interdict is the protection of an existing right; it is not a remedy for a past invasion of rights. As authority for this proposition see Performing Right Society Ltd v Berman 1966 (2) SA 355 (R)…,.

The test for apprehension is an objective one. The applicant must show, objectively, that his apprehensions are well grounded. See Ex Parte Lipschitz 1913 CPD 737. The apprehension must be induced by some action performed by the respondent or authorized to be performed by his agent. See Goldsmith v The SA Amalgamated Jewish Press 1929 AD 441….,.

The third requirement for an interdict is that there be no other satisfactory remedy available to the applicants.

A final interdict is a drastic remedy which is within the discretion of the court. The court will not, in general, grant an interdict when the applicant can obtain adequate redress in some other form of ordinary relief. See Reserve Bank of Rhodesia v Rhodesia Railways 1966 (3) SA 656 (SR). It was held, in this case, that where there is an existing remedy with the same result for the protection of the applicant, an interdict will not be granted.

In order to obtain a final mandatory interdict (a mandamus), an applicant must show the following requirements:

(i) A clear or definite right - this is a matter of substantive law.

(ii) An injury actually committed or reasonably apprehended - an infringement of the right established and resultant prejudice.

(iii) The absence of similar protection by any other ordinary remedy. The alternative remedy must be:

(a) Adequate in the circumstances.

(b) Be ordinary and reasonable.

(c) Be a legal remedy.

(d) Grant similar protection.

See Tribac (Pvt) Ltd v Tobbacco Marketing Board 1996 (2) ZLR 52 (SC)…,.; Setlogelo v Setlogelo 1914 AD 221…,.; Diepsloot Residents and Landowners Association & Anor v Administrator Transvaal 1994 (3) SA 336 (A)…,.; Kaputuza & Anor v Executive Committee of the Administration for the Heroes & Ors 1984 (4) SA 295 (SWA)…,.

It was contended, on behalf of the applicants, that one of the requirements of a final interdict, a clear right, has been defined by the learned authors HERBSTEIN & Van WINSEN, The Civil Practice of the Supreme Court of South Africa…, as 'a definite right'.

The word 'clear' relates to the degree of proof required to establish the right. The existence of a right is a matter of substantive law. Whether the right is clearly established is a matter of evidence. In order to establish a clear right, the applicant has to prove, on a balance of probabilities, the right that he seeks to protect. See Devilliers v Soetsane 1975 (1) SA 360 (E); Beukes v Crous 1975 (4) SA 215 (NC)…,.

In Stellenbosch Farmers Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234…,. the court said:

“It seems to me that where there is a dispute of facts a final interdict should only be granted in notice of motion proceedings if the facts as stated by the respondents together with the admitted facts in the applicant's affidavits justify such an order.”…,.

The second requirement for an interdict is an act of interference which is defined as 'injury actually committed or reasonably apprehended'. See Setlogelo v Setlogelo 1914 AD 221.

The word 'injury' must be understood in the wide sense to include any prejudice suffered by an applicant as a result of the infringement of his rights. See HERBSTEIN & Van WINSEN, The Civil Practise of the Supreme Court of South Africa…,. The injury must be a continuing one. The court will not grant an interdict restraining an act already committed for the object of an interdict is the protection of an existing right; it is not a remedy for a past invasion of rights. As authority for this proposition see Performing Right Society Ltd v Berman 1966 (2) SA 355 (R)…,.

The test for apprehension is an objective one. The applicant must show, objectively, that his apprehensions are well grounded. See Ex Parte Lipschitz 1913 CPD 737. The apprehension must be induced by some action performed by the respondent or authorized to be performed by his agent. See Goldsmith v The SA Amalgamated Jewish Press 1929 AD 441….,.

The third requirement for an interdict is that there be no other satisfactory remedy available to the applicants.

A final interdict is a drastic remedy which is within the discretion of the court. The court will not, in general, grant an interdict when the applicant can obtain adequate redress in some other form of ordinary relief. See Reserve Bank of Rhodesia v Rhodesia Railways 1966 (3) SA 656 (SR). It was held, in this case, that where there is an existing remedy with the same result for the protection of the applicant, an interdict will not be granted.

This is an urgent chamber application for a mandatory interdict in which the following order is sought on an interim basis;-

That the respondent be and is hereby ordered to furnish the applicant with the following information within forty-eight hours of this order being granted;

1. A schedule detailing the applicant's back-pay and benefits from the period of March 2005 to 31 January 2016.

2. The respondent's salary advice slips for the period 22 March 2005 to January 2016.

3. The date and time at which the applicant shall resume his duties.

4. The date of payment of the applicant's back-pay and benefits.

5. The dates on and manner in which the applicant's salaries shall be paid from the 1^st of February 2016 until the applicant ceases to be entitled to a salary.

The final order sought is for the respondent to show cause why a final order should not be made on the following terms;-

The respondent be and is hereby ordered;

6. To immediately furnish the applicant with all information regarding and relevant to the applicant's employment contract and conditions of service when requested to do so.

7. To fully comply with the judgments of the Labour Court handed down on 6 February 2008 and 22 January 2016 within two weeks of this order being granted failing which the Director General (Chief Executive Officer) of the respondent shall be committed to gaol for a period of three months for contempt of court.

8. To pay costs of suit on a legal practitioner and client scale.

The applicant is the holder of a doctorate in Engineering Science and the respondent (SIRDAC) is a university situated in Hatcliffe, Harare. The background to this application, as set out in the founding affidavit, is that the applicant was employed by the respondent from the year 2000 to 22 March 2005 as the director of the Building Technology Institute (BTI) of the respondent. The Labour Court made a finding, on the 6^th of February 2008, that the respondent's dismissal of the applicant was unlawful. The respondent was ordered to reinstate the applicant with effect from 22 March 2005, the date of dismissal, without loss of salary or benefits.

The applicant alleges that the respondent has failed to comply with this judgment by failing to reinstate him or to pay him his full salary or benefits, or even to pay him damages in lieu of reinstatement in the alternative.

The applicant instituted proceedings in HC4544-08 for an order of contempt to be made against the respondent's Director General. The respondent, in response to that application, purported to 'reinstate' the applicant by way of a letter dated 26 September 2008. The letter was delivered to the applicant on the 7^th of October 2008.

It is common cause that, despite the letter of re-instatement, the respondent has not paid the applicant his salary or benefits, and that, the applicant has not re-joined the respondent's staff to date.

On 26 June 2009, the respondent terminated the applicant's employment by way of a letter. The applicant challenged this termination by way of an application for review before the Labour Court, which granted judgment in his favour on the 22^nd of January 2016…,. That judgment was done by two Labour Court Judges. They alluded to the judgment done by the same court on 6 February 2008 in which an order was made that the applicant be reinstated with full benefits, or, alternatively, be paid damages in lieu of reinstatement. The Labour Court found that the parties should go back to the original order of 6 February 2008 and allowed the application for review, setting aside the decision of the disciplinary committee of 26 June 2009.

The applicant requires information pertaining to his salary arrears in order to prepare an application for damages in lieu of reinstatement. This information is in the possession of the respondent who is being un-cooperative. The applicant is afraid that the respondent will continue to ignore the orders of the Labour Court with impunity. Letters written to the respondent on 22 January 2016 and 3 February 2016 have gone un-answered.

The applicant is of the view that he has no other remedy than to approach this court, on an urgent basis, because he is wallowing in poverty whilst the respondent remains in contempt of the Labour Court orders.

At the hearing of the matter, the respondent took the stance that this matter was not urgent because the requirements of urgency were not met on the papers, and that the application was devoid of merit because the requirements of a mandatory interdict were again not established….,.

It is my considered view that the question of jurisdiction ought to be settled before a decision is made as to whether or not the applicants satisfied the requirements of urgency and then the merits of the matter can be ventilated….,.

It is trite that only this court can grant a mandatory interdict. Such an interdict will compel the respondent to supply the information required by the applicant in order to utilize his remedy in the Labour Court, that of seeking payment of arrear salaries and damages in lieu of reinstatement. See National Railways of Zimbabwe v Zimbabwe Railway Artisans Union & Ors SC08-05, where the following guidance was given;-

“As a general statement, it is correct that the Labour Court has no jurisdiction to entertain claims that are brought at common law. It can only determine applications and appeals among others that are brought in terms of the Act. Where, however, a dispute can either found a cause of action at common law, or in terms of the Act, a case of apparent concurrent jurisdiction between this court and the Labour Court appears to arise. I say appears to arise because the apparent conflict can easily be resolved by paying regard to the overall intention of the legislature in creating the Labour Court. In my view, in such a case, the Labour Court's jurisdiction being special must prevail. It would make a mockery of the clear intention of the Legislature to create a special court if the jurisdiction of such a court could be defeated by the mere framing of disputes into common law cause of action where the act has made specific provisions for the same. In my view, if the dispute is provided for in the Act, the Labour Court has exclusive jurisdiction even if the dispute is also resolvable at common law.”…,.

This case was decided in 2005, before the advent of the current Constitution, and it would be interesting to see if the Supreme Court's guidance remains the same when the provisions of section 171(1)(a) are taken into consideration.

For purposes of determining whether an application for an interdict ought to be dealt with by this court because it is a common law remedy which the Labour Court has no power to grant, this case is indeed instructive. See also DHL International (Private) Limited v Madzikanda HH51-10; Surface Investments (Private) Limited v Maurice Chinyani HH295-14.

The requirements of an interdict are;

1. A clear or definitive right - this is a matter of substantive law.

2. An injury actually committed or reasonably apprehended - an infringement of the right established and resultant prejudice.

3. The absence of similar protection by any other ordinary remedy - the alternative remedy must be; adequate in the circumstances; be ordinary and reasonable; be a legal remedy; grant similar protection.

See Tribac (Pvt) Ltd v Tobbacco Marketing Board 1996 (2) ZLR 52 (SC)…,.; Setlogelo v Setlogelo 1914 AD 221…,.; Flame Lily Investment Company (Pvt) Ltd v Zimbabwe Salvage (Pvt) Ltd & Anor 1980 ZLR 378; Boadi v Boadi & Anor 1992 (2) ZLR 22; Diepsloot Residents' and Landowners' Association & Anor v Administrator Transvaal 1994 (3) SA 336 (A)…,.

For purposes of the interim relief sought, we need only be furnished with proof on a prima facie basis.

The applicant has a clear right which was affirmed by two judgments of the Labour Court. It is common cause that the two judgments have not been complied with so an injury has been committed against the applicant to his prejudice as set out in the founding affidavit. We have already found that although the Labour Act provides an alternative remedy, it is not adequate, and does not grant the applicant similar protection. Section 93 of the Labour Act only gives a sitting Judge power to compel the production of evidence. It does not assist a litigant to compel the production of documents or supply of information which he requires for the preparation of his case.

For these reasons, it is my view that the applicant has established the requirements of an interdict, and, for that reason, it be and is hereby ordered that;-

Respondent be and is hereby ordered to furnish the applicant with the following information within forty eight hours of this order being granted;

1. A schedule detailing the applicant's back-pay and benefits from the period of March 2005 to 31 January 2016.

2. The respondent's salary advice slips for the period 22 March 2005 to January 2016.

3. The date and time at which the applicant shall resume his duties.

4. The date of payment of the applicant's backpay and benefits.

5. The dates on and manner in which the applicant's salaries shall be paid from the 1^st of February 2016 until the applicant ceases to be entitled to a salary.