Urgency re: Approach iro Procedural Considerations of Urgency and Questions of Law

HH73-12 : CHIKOMBA RURAL DISTRICT COUNCIL vs KENNETH MUNDOPA and DEPUTY SHERIFF CHIVHU
Ruled By: MUTEMA J

When the parties appeared before me in chambers on 27 January 2012, I directed their legal practitioners to file heads of argument before I could make a determination on the matter. This they have done. I had discerned that the resolution of the real dispute between the parties hinged on a point of law.

The dispute between the parties has its genesis in matters of employment.

The first respondent, a State-certified nurse, was working at Chivhu General Hospital. There is a secondary dispute, not germane to the resolution of the real dispute before me, of who the first respondent's employer was between the applicant and the Ministry of Health and Child Welfare (Ministry of Health).

The first respondent went awol/away from 27 October 2008 to 11 March 2010. The Ministry of Health constituted a Board to investigate the matter which Board recommended that the first respondent be charged with misconduct for absence from duty without good cause and be discharged from service. Thereafter, the Ministry of Health charged the first respondent with the misconduct under the Health Services Regulations, 2006.

Whilst the misconduct charges were pending, the first respondent instituted his own proceedings against the applicant under section 93 of the Labour Act [Chapter 28:01] (the Labour Act) alleging that the applicant, by preventing the first respondent from working, perpetrated an unfair labour practice. The Labour Officer referred the matter for compulsory arbitration in terms of section 98 of the Labour Act. The arbitrator proceeded to make an award adverse to the applicant in the applicant's absence.

The applicant lodged an appeal against the arbitral award to the Labour Court. During the pendency of the appeal, the first respondent registered the arbitral award in the High Court and took out a writ of execution against the applicant's property which the second respondent is in the process of executing.

This galvanised the applicant into filing the urgent chamber application seeking a provisional order whose interim relief reads as follows:

“Pending the finalisation of the matter, the applicant is granted the following interim relief;

1. That the first and second respondents are ordered to forthwith stop executing on the Arbitral Award No. 15/10 of the Honourable H Muchinako which was made on 2 June 2011 and registered with this Honourable Court on 13 December 2011 under Case No. HC8852/11.

2. In the event of the second respondent having removed the attached goods for sale in execution, the second respondent is directed to forthwith restore, replace and/or deliver the attached goods back to the applicant's premises.”

It is common ground that the second respondent has attached the following property belonging to the applicant:

(a) 2 x Massey Fergusson Tractors.

(b) 2 x four wheel trailers.

(c) 11 computer sets.

(d) 6 office desks.

(e) 4 x metal filing cabinets.

(f) CK 10 UD truck.

The nub of the legal argument founding the application is couched in these words:

“It has now been settled by this Hobourable (sic) Court in the case of Sibangilizwe Dhlodhlo v Deputy Sheriff Marondera & Ors HH76-11 that an arbitral award is incapable of enforcement once an appeal has been noted against it. Consequently, the execution which the second respondent has embarked on, acting on the instructions of the first respondent, is forbidden by law.”

Following my directive, that the parties file heads of argument, they were in agreement in their respective heads of argument that four issues fell for determination. They are:

1. Is the matter urgent;

2. Is the applicant the first respondent's employer;

3. Is the applicant's appeal against the arbitral award properly before the Labour Court; and

4. Can execution of an arbitral award proceed when an appeal has been noted against it?

The parties were poles apart in respect of each of the issues. I shall proceed to deal with the issues seriatim.

1. Whether the matter is urgent

The first respondent's contention is that the matter is not urgent because having noted its appeal in June 2011, the applicant should have gone a step further and applied for a stay of execution in the Labour Court in terms of section 92E(3). It did not do so. Also, having been served with notice of the chamber application for the registration of the arbitral award, the applicant, instead of approaching this court on an urgent basis, simply wrote a letter to the Registrar exposing its wrong interpretation of the law saying:

“…, we feel that that it is unprocedural and unlawful to register an award that has been appealed against.”

The urgency is self-created because the applicant only acted following attachment of its goods on 17 January 2012.

I do not think that I should be detained by the ancillary counter-arguments like the applicant believed that the noting of the appeal suspended operation of the arbitral award or that on the authority of Benson Samudzimu v Dairiboard Holdings Limited HH204-10 it would have been an exercise in futility for the applicant to oppose the registration of the arbitral award, or that the applicant believed that it was not the first respondent's employer.

The real issue is that the need to act arose when the applicant's property was attached on 17 January 2012.

The often cited case of Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (HC) is instructive. At p193, CHATIKOBO J said:

“What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent, if, at the time the need to act arises, the matter cannot wait.”

Following the attachment, the applicant filed the urgent chamber application on 24 January 2012. Prior to that, the applicant was not legally represented so it had to instruct counsel to lodge this application.

It cannot be said that the delay of seven days was inexcusable or inordinate. I do not think that it would have been proper for the applicant to have approached this court on an urgent basis at the stage when the application for the registration of the award had been served upon it as contended for by the first respondent. That would have been premature.

Accordingly, the matter is held to be urgent.

HH230-15 : CHITUNGWIZA CENTRAL HOSPITAL vs MOTOR FIX (PVT) LIMITED and THE REGISTRAR OF THE HIGH COURT and SHERIFF OF THE HIGH COURT
Ruled By: MAWADZE J

This is an urgent chamber application in which the applicant seeks interim relief in the following terms;“INTERIM RELIEF GRANTEDPending the confirmation or discharge of the Provisional Order, the applicant is granted the following interim relief;1. The execution of the writ issued under Case No. HC10108/13 be and is hereby stayed ...

This is an urgent chamber application in which the applicant seeks interim relief in the following terms;

“INTERIM RELIEF GRANTED

Pending the confirmation or discharge of the Provisional Order, the applicant is granted the following interim relief;

1. The execution of the writ issued under Case No. HC10108/13 be and is hereby stayed pending the finalisation of this matter.”

The terms for the final order sought are couched as follows;

“TERMS OF THE FINAL ORDER

1. It is hereby declared that property and assets of the State are immune from the process of judicial attachment by virtue of the provisions of section 5 of the State Liabilities Act [Chapter 8:14].

2. It is hereby further declared that the property and assets appearing hereunder are property and assets of the State, and, consequently, should be released from judicial attachment they were placed under by the 3rd respondent acting pursuant to a writ of execution issued in case No. HC10108/13 on 20 May 2014, on which Notice of Seizure and Attachment was issued on 17th February 2015, that is to say;

2.1 ABT 8829 Isuzu – white Reg 3228.

2.2 ADF 3648 Toyota Hilux- ABH 5021.

2.3. Land Rover Discovery – ACH 1225.

2.4. Mazda Swaraj, staff bus T3500 - CCH 06.

2.5. Mazda Swaraj staff bus T3500 - CCH 02.

2.6. Mazda Swaraj staff bus T3500.

2.7. Tata Mini Bus 1391 GHCW.

3. First respondent to pay the cost of suit.”

The appellant is a Government hospital. In terms of section 18(1) of the Health Service Act [Chapter 15:16] it is capable of being sued and suing in its own right. The relevant section 18(1) of the Health Service Act provides as follows:

“18 Corporate status of Central, Provincial, District and General Hospitals

(1) Subject to subsection (3), each central, provincial, district or general hospital shall be a body corporate capable of suing and being sued in its own name, and, subject to the Act, performing all acts that bodies corporate may by law perform.”

The first respondent is a duly incorporated company in terms of the laws of Zimbabwe.

The second and third respondents, being the Registrar of the High Court of Zimbabwe and the Sheriff of the High Court, are cited both in the official capacities.

The background facts of this matter are as follows;

The first respondent instituted proceedings by way of action in HC10108/13 against the applicant and the applicant apparently did not enter an appearance to defend. On 12 March 2014 my sister CHIGUMBA J granted a default judgement in the following terms;

“IT IS ORDERED THAT;

1. The defendant be and is hereby ordered to pay the sum of US$74,068= to the plaintiff.

2. The defendant to pay interest at an prescribed rate calculated from the date of summon to date of payment in full.

3. Defendant to pay cost of suit.”

After obtaining the said default judgement, the first respondent caused a writ of execution against the applicant's movable property to be issued on 20 May 2014, by the second respondent.

Pursuant to the writ of execution, the third respondent, on 17 February 2015, issued a Notice of Removal. The Notice of Seizure and Attachment, dated 17 February 2015, shows that the following motor vehicles were attached;

(a) ABT 8229 Isuzu white.

(b) ABP 3228 Isuzu.

(c) ABH 5021 Isuzu.

(d) ADF 3648 Toyota Hilux.

(e) Staff bus Swaraj Mazda T3500 CCH 06.

(f) Staff bus Swaraj Mazda T3500.

(g) Tata mini bus 1391 GHCW.

(h) Land Rover Discovery 4 ACH 1225.

The removal date of the attached property was 20 February 2015, but, the third respondent, through a letter dated 5 March 2015, filed of record, indicated that the removal of the attached goods has been stopped pending this outcome of this urgent chamber application which was issued on 20 February 2015.

As per the founding affidavit deposed to by the applicant's Chief Executive Officer, one Dr Obadiah Moyo, while the applicant does not deny or dispute liability, the applicant contends that in terms of section 5 of the State Liabilities Act [Chapter 8:14] no execution or attachment or process shall be issued against in State or any property of the State.

The applicant contends that the correct position of the law is that the nominal defendant, who should have been cited by the defendant in its initial claim, is the one which may cause to be paid out of the Consolidated Revenue Fund such sum of money to satisfy the judgement or order of this court.

The basis of the provisional order sought is that the property attached, listed in the Notice of Seizure and Attachment, is State property.

The relevant provisions of section 5 of the State Liabilities Act [Chapter 8:14] are as follows;

“5. No execution or attachment to be issued, but nominal defendant or respondent authorised to pay the sum awarded.

(1)…,. not relevant.

(2) Subject to this section, no execution or attachment or process in this nature thereof shall be issued against the defendant or respondent in any action or proceedings referred to in section two or against any property of the State but the nominal defendant or respondent may cause to be paid out of the Consolidated Revenue Fund such sum of money as may, by a judgment or order of this court, be awarded to the plaintiff, the applicant or the petitioner, as the case may be.

(3)…,. not relevant.”

The basis of the provisional order sought is that the property attached is State property, and, as such, the attachment has been done in breach of the cited statutory provisions which would render the whole process or procedure unlawful.

Counsel for the first respondent took the point in limine that this matter is not urgent, and, on that basis, should he dismissed….,.

In argument, counsel for the first respondent submitted that there are a number of reasons as to why this matter should not be treated as urgent. He submitted that when the default judgement was granted, on 12 March 2014, the applicant, who had been served with summons for the money owed and had not entered an appearance to defend, should have known that judgment against the applicant would be granted.

Counsel for the first respondent submitted that the debt, which has been owing as far back as 2012, is acknowledged and has never been disputed as the applicant has absolutely no defence to offer.

In addition to that, counsel for the first respondent said after the default judgement had been granted he wrote, on 20 January 2015, to the applicant, on behalf of the first respondent, advising them of the amount due as per the order of the court.

Counsel for the first respondent argued that the writ of execution which was subsequently issued should not have come as a surprise to the applicant as the applicant ought to have known that a writ follows judgement. Counsel for the first respondent submitted that this was also the case since, in November 2014, the first respondent had engaged the applicant on the modalities of liquidating the judgment debt to no avail.

It is the first respondent's contention that the applicant, after having been aware of this default judgement as way back as 2014, did nothing about the matter by either seeking to have this default judgment set aside or to ensure that no writ is issued. Counsel for the first respondent submitted that all what the applicant did was to wait until the day of reckoning arrived, when the attachment of the property was done through the Notice of Removal on 17 February 2015, as the applicant only filed this urgent application three (3) days later on 20 February 2015. It is submitted that the applicant only sprung into action because of this attachment hence the urgency is self-created.

Counsel for the first respondent concluded by stating that the point in limine raised should be upheld and this matter dismissed as the applicant has not been able to overcome this hurdle and has dismally failed to explain in the papers filed how the urgency has arisen.

Counsel for the applicant conceded that the sequence of events, as submitted by counsel for the first respondent, is not in issue. She acknowledged the applicant's indebtedness to the first respondent and that indeed the applicant has been aware, as far back as 2014, of the default judgement. She admitted that efforts were made to resolve the matter by engaging the first respondent in 2014.

Counsel for the applicant denied that the applicant did nothing as alleged. She produced deposit schedules which show that on 30 May 2014, 10 July 2014, 8 January 2015, 16 February 2015, 23 February 2015 and 26 February 2015 the applicant has made various deposits into the first respondent's Barclays Bank account in a bid to liquidate the debt.

I however note that the total amount paid in all the deposits is a paltry $7,531=75 leaving an outstanding balance on the judgement debt of US$65,536=25.

As counsel for the first respondent correctly pointed out, such payments were not being done with the consent or in consultation with the first respondent hence it is too little too late.

Counsel for the applicant insisted, however, that even as late as 24 February 2015 she had engaged counsel for the first respondent to agree on a payment plan, and, therefore, disputes that the applicant has done nothing about that matter.

Counsel for the applicant submitted that the urgency in this matter arose from the fact that the property attached is not the applicant's property but State property which State property is immune to judicial execution as provided for in section 5 of the State Liabilities Act [Chapter 8:14].

Counsel for the applicant argued that the urgency therefore arose when the State property was attached on 17 February 2015.

She further produced a number of documents to show that the motor vehicles in issue do not belong to the applicant but to the State and that the Master Asset Register of the Ministry of Health shows that some of the vehicles attached belong to the Ministry.

Counsel for the first respondent took issue with the fact that these documents were not part of the founding affidavit.

I however allowed the applicant to avail them as this is an urgent application.

What I have been able to glean from the documents, in relation to the inventory of the vehicles in the Notice of Seizure and Attachment, is as follows;

(a) The registration book of the Isuzu ABP 3228 shows the owner as the Ministry of Health.

(b) The registration book of the Toyota mini bus GHCW 1391 shows that the owner is the Ministry of Health.

(c) There is prima facie evidence that the Land Rover Discovery 4 ACH 1225 was issued by CMED (Pvt) Ltd to the Ministry of Health as per the vehicle voucher 335525.

(d) There is also prima facie evidence that an Isuzu KB 250 D/TEQ identified by the Government Registration Number LLD 754 was issued to the Ministry of Health.

(e) There is a letter dated 3 March 2015 from the Reserve Bank of Zimbabwe which confirms that a number of vehicles, which include, inter alia, buses, were issued by the Bank to the Ministry of Health. The applicant submitted that these vehicles include the three Swaraj Mazda T3500 staff buses attached by the Sheriff.

What constitutes urgency in matters of this nature is settled in our law. See Kuvarega v Registrar General and Anor 1998 (1) ZLR…,; Gifford v Mazarire & Ors 2007 (2) ZLR 131 (H)…,.

In broad and general terms, a matter is urgent if;

(a) It cannot wait the observance of the normal procedures and time limits prescribed by the rules of this court in ordinary applications as to do so would render nugatory the relief sought.

(b) The applicant has treated the matter as urgent by acting timeously when the need to act arose and if there is any delay good or sufficient explanation is proffered for such delay.

(c) The applicant has no other alternative remedy.

(d) The relief sought is both interim in nature and proper at law.

I agree with counsel for the applicant that the need to act in this manner did not arise in 2014 but arose on 17 February 2015 when the vehicles in issue were attached.

The urgency arises from the fact that the vehicles attached do not belong to the judgement debtor, being the applicant, but is State property which the applicant believes is protected from judicial attachment for execution.

The point in limine taken by the first respondent is dismissed for want of merit....,.

Counsel for the first respondent correctly argued that any third party laying claim to these attached vehicles should institute interpleader proceedings.

I am not however persuaded that the availability of such a remedy precludes the applicant who was the custodian of these vehicles to seek the interim relief claimed.

I am satisfied that the applicant has locus standi in judicio to seek to protect property which might indeed be State property and is not capable of execution as provided for in section 5(2) of the State Liabilities Act [Chapter 8:14].

Further, while interpleader proceedings may be appropriate in respect of two of the motor vehicles referred to which may be owned by other third parties, I understand the applicant to be seeking, on the return date, a final order to the effect that the property placed under attachment is immune to judicial attachment or execution by virtue of section 5(1) of the State Liabilities Act [Chapter 8:14].

CC11-21 : LIZIWE MUSEREDZA and 385 OTHERS vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PVT) LTD and OTHERS
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

The jurisdiction of a court and access to that jurisdiction are two distinct legal precepts. The two are complementary but are not synonymous. They are not to be conflated. They have their foundations in two different laws.The jurisdiction of a court is to be found in substantive law while access ...

SC29-09 : BLUE RANGERS ESTATES (PVT) LTD vs JAMAYA MUDUVIRI and THE MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: MALABA DCJ

A court of law will not entertain proceedings, such as an appeal, unless it is satisfied that it is competent to do so and that the proceedings have been instituted in the proper form.

Appealed
SC17-19 : ECONET WIRELESS (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY and COMMISSIONER GENERAL
Ruled By: MALABA DCJ, GOWORA JA and MAVANGIRA JA

Proceedings ought to be disposed of on the basis on which they are brought....,.The court a quo ought to have decided the matter without losing sight of the root or trigger of the litigation...,.

HH212-13 : ELIZABETH CHIWUNDO vs ZIMBABWE NATIONAL FAMILY PLANNING COUNCIL
Ruled By: MATHONSI J

A court of law should not be deceived by the form of the application, it will put aside the veil and examine its true nature and substance: Kilburn v Estate Kilburn 1931 AD 501…,.

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA
Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

The court expects legal practitioners to place before it cases that are founded on sound substantive and procedural law.The court cannot, and should not, be expected to make a case for the parties. Its role is to determine the dispute put before it, on the basis only of the applicable ...

HH158-17 : THE TRUSTEES OF THE APOSTOLIC FAITH MISSION OF AFRICA vs ZULU ROSEWELL and OTHERS
Ruled By: MATANDA-MOYO J

Legal practitioners should keep up to date with and give cognizance to rules of the courts. They should not waste the court's time by bringing ludicrous applications before the court. The determination of cases should not be slowed or deferred un-essentially because a legal practitioner has failed to assimilate the Rules.

This was the case in this matter.

This was an application brought before the court on an urgent basis; but, before the court could hear the matter on the merits, the respondents took a technical objection in points in limine.

I reserved judgement, and, so here is my judgement.

The first point in limine raised by the respondent was that there was no application before me, based on the fact, that, the application did not comply with Rule 241.

Rule 241 states:

“(1) A chamber application shall be made by means of an entry in the chamber book and shall be accompanied by Form 29B duly completed and except as is provided in subrule (2) shall be supported by one or more affidavits setting out the facts upon which the application relies:
Provided, that, where a chamber application is to be served on an interested party, it shall be in Form No.29 with appropriate modifications.”

However, the form in which this application was brought was neither in Form 29 nor 29B; I have no idea which form was used, nor do I know where the legal practitioner for the applicant got it from.

However, the lawyer for the applicant still managed to waste the court's time by referring the court to Rule 241 and Form 29B as read with Rule 244.

I do not have time to start teaching legal practitioners how to interpret statutes.

Rule 241 states that a chamber application should be in Form 29B; but, if it needs to be served, should be in Form 29.

Rule 244 is of no importance in answering a point in limine raised by the respondent: see Marick Trading (Pvt) Ltd v Old Mutual Life Assurance Company of Zimbabwe Ltd and Another 2015 (2) ZLR 343.

When such a chamber application is brought before the court, it should be in Form 29 as it would need to be served on all interested parties.

This was an application that was truly defective.

Fortunately, the law is very lenient with legal practitioners and allows such lawyers to correct their mistakes by making an application for condonation to rectify any faulty applications.

However, the applicant's lawyer denied that the application was defective.

The applicant thus never made any application: instead, he submitted that the application is not fatal and stated that so long as he is able to show that there is compliance with the Rules, the application should be heard.

In National Social Security Authority v D Chipunza SC116-04 the court had this to say on rules of court:

“…,. Rules of court are enacted for purpose of regulating the conduct of matters brought before the court and that condonation of failure to observe them is not automatic or there for the asking. An applicant must make out a good case for condonation of its non-compliance with the rules. Failure to do so is fatal to his application.”

The applicant herein was alerted of its failure to comply with the Rules but decided not to apply for condonation.

Without an application before me, I cannot mero motu grant condonation.

As soon as a party realizes it has not complied with any of the Rules, that party should file an application for condonation: see De Beer En'N Aner v Westen Bank Ltd 1981 (4) SA 255.

In addition, as I have stated above, condonation for non-observance of rules of court is by no means a mere formality. It is for the applicant to satisfy the court, that, there is sufficient cause for excusing the non-compliance: see Meinfjres v H–D Combrinck (EDMS) BPK 1961 (1) SA 262 (AD)…,.

In this instance, although it became clear to counsel for the applicant that he had not complied with Rule 241(1) - but he insisted he had breached no Rules.

It was clear that the application by the applicant was one which required to be served on the other party. It had to be in Form 29B.

Counsel for the applicant argued, that, the applicant was allowed, in terms of the proviso to Rule 241(1), to use the procedure with modification. He argued that what he did was to simply modify the procedure.

The proviso to Rule 241(1) reads;

“Provided that, where a chamber application is to be served on an interested party, it shall be in Form 29 with appropriate modification.”…,.

Modification has been defined as an act or process of changing parts of something. It is a change or alteration that makes something work better. Modification must leave some resemblance to the original form.

The original Form 29 informs the respondent that if he intends to oppose the application he should file a Notice of Opposition in Form 29A, together with opposing affidavits. It also states that such opposition must be served on the applicant.

The applicant's application reads;

“TAKE NOTICE THAT an application is hereby made for an order in terms of the provisional order annexed to this application on the grounds that;

1….,.

2….,.

3….,.

FURTHER TAKE NOTICE THAT THE accompanying affidavit and documents shall be used in support thereof.

Dated at Harare this 3rd of February 2017.”

Obviously, such format is very different from Form 29.

The format used does not inform the respondents of what they must do upon receiving the application.

As I said above, modification must be done in a manner which leave the Form 29, as provided, better. One cannot reduce the requirements in Form 29 and call such modification.

I am of the view, that, the applicant has failed to comply with Rule 241(1) of this court's Rules.

Whilst it is within my power to condone such non-compliance, it is trite I must do so upon request.

I have not been requested to condone such derogation from the Rules.

The only remedy I have is to strike off the matter from the roll: see Forestry Commission v Moyo 1997 (1) ZLR 254 (S).

HH559-14 : BASE MINERALS ZIMBABWE (PVT) LTD and PETER VALENTINE vs CHIROSWA MINERALS (PVT) LTD and CHIROSWA SYNDICATE and JOHN GROVES
Ruled By: MAFUSIRE J

This was not a chamber application per se. But there was indeed a hearing in my chambers, at my instance.Verbal missiles had been flying in all directions in correspondence between the parties' legal practitioners and some pleadings filed of record. Clearly, emotions were in the driving seat. Reason was at ...

This was not a chamber application per se. But there was indeed a hearing in my chambers, at my instance.

Verbal missiles had been flying in all directions in correspondence between the parties' legal practitioners and some pleadings filed of record. Clearly, emotions were in the driving seat. Reason was at the back. Allegations of fraud and dishonourable conduct had been bandied about. The nadir, in my view, was when one of the parties described the others as “…, mercenaries armed to the teeth;…, bandits seeking to reap where they did not sow.” There were insinuations that the court, myself in particular, had been complicit.

Here are the details.

On 30 July 2014 I granted an order in HC5926/14 in favour of the applicants in a chamber application. The record in the matter had been one of several that had been placed on my desk in the ordinary course of events some few days earlier. On perusing the record, I noted that the applicants sought, in the main, confirmation of a certain tribute agreement in respect of some mining concerns, and the right to occupy and operate the mines in question. I was satisfied that the papers were in order. Among other things, there was a cause of action established. The application had been served on the respondents. A return of service was on record. I granted the order sought in terms of the draft.

That seemed to have sparked it all.

I later learnt that the dispute between the parties had been raging on for some time and that several judges of this court had, at one time or other, sat in judgment over one aspect or other of the same matter. Thus, what my order seems to have done was to stoke the fires.

On 26 September 2014, a letter with a sticker marked “urgent” was placed on my desk. It was from Mawere & Sibanda, the respondent's legal practitioners. It was dated 14 August 2014, that is, more than a month before. It was addressed to Messrs F. M. Katsande, the applicant's legal practitioners and copied to, among others, the police and the Registrar of this court. It read:

“We refer to the above matter and to our letters to you dated the 16^th and 21^st July 2014. We express our concern at what we perceive to be fraudulent attainment of a court order under HC5926/14. You will recall that you served your client's application on our clients on the 17^th July 2014. The requisite dies was to expire on the 31^st July 2014, on which date we duly filed our applicant's notice of opposition. We were shocked to learn that by the time that we filed our opposition, an order had already been sought by your office and granted. We have inspected the court record and could not find therein any proof of service which leaves us wondering how you managed to get a Judge of the High Court to grant the patently defective order sought. Without getting into the substance of how your client obtained the order, we reiterate that the said document is wholly inoperative against Mabwe Minerals (Private) Limited as it was not a party to the proceedings. You will also note that the wording of the order requires the Respondents and all those claiming occupation through them to allow access to the mine. You will note that Mabwe Minerals (Private) Limited does not claim occupation through any of the Respondents. You are aware, as a Director of Chiroswa Minerals (Private) Limited, the 2^nd Respondent in this matter, that Mabwe Minerals (Private) Limited actually derives its right of occupation from its registration with the Ministry of Mines and not through any of the respondents. We advise that our client has just learnt of this unorthodox manner of obtaining relief and is in the process of applying for setting aside of the order. Client, if necessary, will also be applying for stay of execution given that yours seems intent on seeing this illegality through to the end. We certainly have no need to advise that costs de bonis propriis shall be sought in such applications should you choose to oppose same for any reason. We accordingly advise.”

Also placed on my desk at the same time was another letter dated 15 August 2014 from Mawere & Sibanda for my attention. It read as follows:

“We refer to the above matter wherein we represent the Respondents. We confirm that our clients were served with the Application on the 17^th July 2014 and filed and served their opposition on the 30^th July 2014 being nine days after being served. We advise that clients were recently served with an order dated the 30^th July 2014 in this matter being the same date when the opposition was filed, and also falling within the dies induciae. It is not immediately clear to us whether the Honourable Judge had sight of our client's opposition or not before granting the application as the order does not indicate whether the judgment was granted in default or not. This is an issue which we may also seek guidance on. We advise that our clients have instructed that we consider grounds for an appeal in this matter. In the circumstances, we request that the Honourable Judge furnish us with reasons for the order granted in this matter to allow us to proceed with the matter. We therefore request that you place the file, together with this note, before the Honourable Judge for his consideration. We wait to hear from you.”

I called for the record.

The return of service by the Sheriff was still on file. However, also on file was now a notice of opposition by the respondents. It showed it had been filed with the Registrar on 30 July 2014. Service of the chamber application on the respondents had been on 17 July 2014. I then realised that when I had granted the order, on 30 July 2014, only nine days had lapsed from the date of service. Given that in terms of Order 32 Rule 241 as read with Rule 242 a chamber application has to be served on any interested party and has to be in Form No.29, with appropriate modifications, unless it is one of those listed in paragraphs (a) to (e) of Rule 242(1) which do not need to be served and which should be in Form No.29B, I considered that I had granted the order of 30 July 2014 prematurely. I felt I had granted it in error. So I considered it was one of those that a court or a judge, either mero motu, or upon the application by any party affected thereby, could, inter alia, rescind. With that frame of mind I caused to be dispatched to the parties' legal practitioners the following letter:

“A default judgment was granted in chambers on 30 July 2014. This was on the basis of, inter alia, a return of service that had, inter alia, the 17 July 2014 as the date when service had been effected. At that time there was no notice of opposition on file. Now it is on record. It indicates it was issued on 30 July 2014. On reflection, since on 30 July 14 the dies induciae had not yet expired, it follows that the default order was granted in error. Accordingly, it is intended to set it aside in terms of Order 40 Rule 449. This letter is therefore the requisite notice to the applicant in terms of Rule 449(2).”

Meanwhile, the applicants, in pursuance of my order aforesaid, had issued a writ of ejectment to evict from the mining concerns in question the respondents and all those claiming occupation through them. The respondents had countered with an urgent chamber application for the eviction of the applicants themselves on the basis that their right to occupation had been obtained illegally. TSANGA J had dismissed the urgent chamber application for lack of urgency. None of this was known to me when I gave the parties the notice of my intention to rescind my order.

In response to my notice aforesaid the applicants filed letters and formal submissions protesting vigorously against my intention to set aside the order. They argued, among other things, that I was now functus officio; that I had made no error as the respondents had not been entitled to any dies induciae since this was a chamber application, not a court application. It was stressed that in terms of the rules, once a chamber application has been filed, it is incumbent upon the Registrar to bring it to a judge in chambers without undue delay. The judge seized with the application has to determine it, also without undue delay. There was no basis, the argument concluded, for importing the ten day dies induciae for court applications into a chamber application procedure.

For the issue to be more fully canvassed and ventilated I called the parties into chambers and full argument was presented on 8 October 2014….,.

The crux of the matter is whether I granted the order of 30 July 2014 in error.

Counsel for the applicants submitted that I made no error. He argued that the chamber application had been served on 17 July 2014. The respondents had done nothing until towards the end. The law protects the vigilant and not the sluggard. The respondents must have known that after the application had been filed the next thing would have been for the applicant to seek a default judgment. When the Registrar had received the application for a default judgment he had acted with expedition by bringing it to a judge in chambers. When the matter had been placed on my desk I too had acted with expedition by determining and granting the order. That is what is contemplated by Rule 245, counsel for the applicants submitted.

Rule 245 reads:

“Where a chamber application is not accompanied by a certificate referred to in Rule 244, the Registrar shall, in the normal course of events, but without undue delay, submit it to a judge who shall consider the papers without undue delay.”

It was further submitted that there was no scope for reading the ten day dies induciae of court applications into chamber application proceedings. To do so, the argument persisted, would render Rule 245, which specifically deals with chamber applications, redundant.

It is necessary to look at these rules more closely.

Rule 230, on court applications, reads:

“A court application shall be in Form No.29 and shall be supported by one or more affidavits setting out the facts upon which the applicant relies. Provided that, where a court application is not to be served on any person, it shall be in Form No.29B with appropriate modifications.”

Rule 241, on chamber applications, reads:

“(1) A chamber application shall be made by means of an entry in the chamber book and shall be accompanied by Form 29B duly completed, and, except as is provided in subrule (2), shall be supported by one or more affidavits setting out the facts upon which the applicant relies:

Provided that, where a chamber application is to be served on an interested party, it shall be in Form No.29 with appropriate modifications.”…,.

Rule 242(1) goes on to provide that a chamber application “shall” be served on all interested parties unless it is one of those listed in paragraphs (a) to (e) of subrule (2).

One major difference between Form 29, for an ordinary or regular court application, and Form 29B, for a chamber application, is that with Form 29 there is a blank space to fill in the dies induciae for the filing of any opposing papers by an interested party, whereas with Form 29B no such provision is made. The other major difference between the forms is that with Form 29, unless it is an application for review in terms of Order 33, the reasons for the application need not be stated on the face of the application, but with Form 29B this has to be done - albeit in summary fashion.

In the case of Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H) HLATSHWAYO J…, held that Form No.29, for court applications, contains a plethora of procedural rights that the respondent is alerted to, while Form No.29B, for chamber applications, sets out a summary of the grounds of the application.

In that case, the applicant had used neither of the two forms and had refrained from seeking condonation for its failure to do so. The application was held to be fatally defective and was dismissed with a special order of costs.

In my view, it is the general rule that all chamber applications have to be served on interested parties. Because of the use of the word “…, unless…,” in Rule 242(2) it means those chamber applications listed in paragraphs (a) to (e) are the exceptions. Therefore, the ordinary chamber application has to be served. Because it must be served, it has to be in Form No.29. But, since this form is blank on the space for the dies induciae, one has to go to Rule 232 to complete it.

In terms of that Rule, the dies is a minimum of ten days, exclusive of the day of service. This is for those respondents within a radius of 200 kilometres of the court where the application is filed. An extra day is added for every additional 200 kilometres away from the court. The ten day minimum period in Rule 232 is for court applications. In my view, Rule 232 is intrinsic to, or an integral part of, Form 29. It is what a scale is to a map or a key to a graph. For one to read a map or graph sensibly one checks the scale or the key. Rule 232 is the key to the missing information in Form 29.

By the repeated use of “shall”, Rule 241 commands the use of Form 29 for those chamber applications that have to be served. Rule 232, being an integral part of that Form, it means the minimum ten-day period has to be read into the proviso to Rule 241(1). Thus, the applicant in a chamber application has to give a minimum of ten days for interested parties to file any responses. The failure by an applicant to use Form 29 in a chamber application that has to be served is fatal. Such a chamber application is incurably bad.

In the case of Minister of Higher & Tertiary Education v BMA Fasteners (Private) Limited & Ors HB42-14 MAKONESE J held as follows:

“It is trite law that a Chamber Application must comply with the rules governing Chamber Applications. Chamber Applications are provided for by Order 32 Rule 241. Rule 241(2) states that where a Chamber Application is to be served on an interested party it should be in Form No.29 with appropriate modifications. In terms of Rule 232, a Respondent shall be entitled to not less than 10 days to file opposing affidavits. In urgent matters, the court may specify a shorter period than 10 days.

Mr Dube-Banda, for the Applicant, contends that the proviso in Rule 241(2), that the urgent application, '…, shall be in Form No.29 with appropriate modifications,' meant that the Applicant could vary the period of 10 days to 5 days.

With respect, there is no order of this court granting leave to the applicants leave (sic) to give the Respondents 5 days within which to respond. Mr Dube-Banda was constrained to accept that once a matter is not treated as an Urgent Chamber Application, then the normal rules regarding time limits given to Respondents ought to have applied. The Applicant's attempt to vary the period to five days was clearly wrong and fatal to the application. The provisions of Rule 232 apply in that this matter once it is accepted that this is not an Urgent Chamber Application and a Respondent shall be entitled to not less than 10 days to file opposing affidavits (sic). The applicant cannot abridge the time limits within which the Respondent is entitled to file the opposing papers without the leave of the court.”

With respect, I find myself in agreement with the learned judge.

The proviso to Rule 241(1) permits the modification of Form 29 where the chamber application has to be served. What would constitute “appropriate modifications” is not stated. Why then does it become important that every time a chamber application has to be served the applicant should abandon Form 29B and switch over to Form 29?

In my view, once the chamber application becomes one that must be served then the respondent is entitled to a period within which to file opposing papers. The “appropriate modifications” would include, in my view, a fusion of the contents of Form 29 and those of Form 29B. In other words, it becomes a hybrid, containing both “…, the plethora of procedural rights..,” of Form No.29, including the dies induciae, and a summary of the grounds of application of Form No.29B.

In casu, counsel for the respondents submitted that reading the ten day period into Rule 242(1) does not render Rule 245 redundant.

I agree.

In my view, a judge seized with a non-urgent chamber application that is none of those contemplated by paragraphs (a) to (e) of Rule 242(1), will have to allow the dies induciae the respondent is entitled for filing any opposing papers to lapse. If the judge so waits he is still acting within the confines of the rules. The requirement in Rule 245 that the judge “…, shall consider the papers without undue delay,” does not mean, in my view, that he should abridge the requirements of the law. Rule 245 cannot be read in isolation. It has to be read subject to, or together with, the other rules relevant on the point.

In the premises, and with respect to myself, I find that I granted the order of 30 July 2014 in error. The error was not only that the dies induciae that the respondents were entitled to for filing any opposing papers had not yet lapsed by that date, but also that I granted the order on a patently defective application. It was not on Form No.29.

In the alternative, counsel for the applicants advanced what I considered to be a last-ditch argument. He submitted that the respondents' application was non-contentious as it was a straightforward one merely meant to give effect to a previous order of this court.

In terms of paragraph (a) of Rule 242(1), a matter that is uncontentious, in that no person other than the applicant can reasonably be expected to be affected by the order sought or to object to it, needs not be served. However, in this matter, given that the parties had been, and still were, involved in mortal combat regarding both the ownership and the physical control of the mines in question; given that earlier in the year the respondents had been expelled from the mines following an order of spoliation against them, and given that following my order aforesaid the respondents themselves said they had been repelled by “…, brute force…,” from occupying the mines, it is remarkably absurd to suggest that the matter was un-contentious; or that the respondents would reasonably be expected not to object to it; or that they would not be affected by the order. At any rate, if the respondents had felt that their application had been uncontentious, they would, no doubt, have refrained from serving it.

Order 49 Rule 449 reads:

“449. Correction, variation and rescission of judgments and orders

(1) The court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind or vary any judgment or order –

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b)…,.; or

(c)…,.

(2) The court or a judge shall not make any order correcting, rescinding or varying a judgment or order unless satisfied that all parties whose interests may be affected have had notice of the order proposed.”

Counsel for the applicants submitted that since the respondents had made no formal application but had merely written to me, conduct which he condemned as impudence, it meant that I could not tamper with the order.

However, the rule clearly states that a judgement or order may be set aside, not only upon the application of the affected party, but also mero motu by the court or judge. Ex mero motu means “of, or from one's own free will or accord”,Dictionary of Legal Words and Phrases, Vol. 2…, compiled by C. J. CLAASSEN, Durban, Butterworths, 1976; “of one's own motion or own accord, voluntarily without prompting or request,”The Law Dictionary at thelawdictionary.crylex…,.

I may not have discovered the error of my own accord. Discovery was prompted by the respondents through the letters from their legal practitioners. Nonetheless, the motion and the notice to rescind the order were of my own volition. In my view, that should still make the rescission mero motu.

In the premises, the order of this court, granted by myself on 30 July 2014 in HC5926/14, in the case Base Minerals Zimbabwe (Private) Limited & Anor v Chiroswa Minerals (Private) Limited & Ors, is hereby set aside with no order as to costs.

SC03-15 : PORTLAND HOLDINGS LTD vs TUPELOSTEP INVESTMENTS (PROPRIETARY) LIMITED and TOBACCO WAREHOUSE & EXPORT t/a BAK LOGISTICS
Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

After hearing counsel in this matter, we allowed the appeal with costs and issued an order in the following terms:“IT IS ORDERED THAT:1. The appeal succeeds with costs.2. The judgment of the court a quo is set aside and substituted with the following:'The application is hereby granted in terms of ...

After hearing counsel in this matter, we allowed the appeal with costs and issued an order in the following terms:

“IT IS ORDERED THAT:

1. The appeal succeeds with costs.

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

'The application is hereby granted in terms of the draft order.'”

We intimated that our reasons would follow in due course. These are they.

The appellant (hereinafter referred to as 'Portland') and the second respondent (hereinafter referred to as 'Bak Logistics') are private companies duly registered as such under the laws of this country. Portland is a producer of cement which is sold both locally and externally. Bak Logistics provides warehousing and bulk storage services to the general public.

The first respondent (hereinafter referred to as 'Tupelostep') is a company registered under the laws of South Africa. It has its headquarters in that country. It provides extensive haulage freight services throughout Southern Africa.

At the beginning of 2012, Portland obtained orders for the export of cement to Mozambique. Sometime in February or March 2012, Portland engaged Tupelostep to arrange the transportation of cement into Mozambique on its behalf.

The terms of the contract obliged Portland to convey the cement to Tupelostep by rail. In turn, Tupelostep would arrange for the storage of the cement pending receipt of export documents from Portland.

In order to comply with its obligations under this contract, Tupelostep entered into an agreement with Bak Logistics for storage and warehousing of the cement pending its conveyance to Mozambique.

On receipt of clearance documents from Portland, Tupelostep would then arrange for the transportation of the cement by road. The process would, on occasion, entail the hire of vehicles from third parties. There was, however, no contract between Portland and Bak Logistics, and Portland was not privy to the contract between Tupelostep and Bak Logistics.

In September 2012, Portland transported a consignment of 1,270 tons of cement to Tupelostep by rail. It was stored with Bak Logistics.

A dispute then arose between Portland and Tupelostep regarding charges claimed by the latter in the discharge of its obligations and services under the contract. The parties attempted to settle the dispute but failed.

In December 2012, Tupelostep advised Portland that it would no longer allow movement of stock from the warehouse unless it was paid certain sums of money being claimed by it for demurrage and transportation costs.

On 16 January 2013, Portland gave notice to Tupelostep of its intention to terminate the mandate for storage and transportation of the cement.

On 29 January 2013, Portland addressed an email to Tupelostep demanding the release to it of documentation availed to Tupelostep in respect of the consignment of cement under its control and in the possession of Bak Logistics.

In turn, Tupelostep responded by refusing to release the documents in its custody for a number of reasons which are not germane to the resolution of this dispute.

On 4 February 2013, Portland filed an urgent application with the High Court in respect of which it sought relief expressed as follows:

“INTERIM RELIEF GRANTED

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

1. That 1st and 2nd Respondent be and are hereby ordered to release to applicant the applicant's cement being 1,270 tons of cement held by 1st and 2nd respondent at 2nd respondent's premises at 106 Dartford Road, Willowvale Industrial Area, Harare.

2. That the proceeds of sale of the cement be held at a trust account in the law firm of Messrs Gill, Godlonton & Gerrans of 7th Floor, Beverly Court, 100 Nelson Mandela Avenue.

TERMS OF THE FINAL ORDER SOUGHT

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

1. That the proceeds of the cement held by Messers Gill, Godlonton & Gerrans in their trust account be disbursed in terms of an order of this Honourable Court confirming the entitlement of either party to such proceeds.

2. That the costs of this application be borne by the party succeeding in the anticipated litigation between the parties. (sic)”

The application was opposed by both respondents.

The High Court heard the parties on the question of urgency and decided that the application was not urgent.

The court then dismissed the application with costs on the basis of lack of urgency.

This appeal is against that decision.

It was contended that the High Court erred in the exercise of its discretion, and that, to that extent, it had misdirected itself.

Portland approached the High Court for urgent relief on the premise that Tupelostep was holding on to cement which belonged to the former and that its actions were illegal and unjustified.

It was also alleged, in the certificate of urgency, that, cement, by virtue of its hygroscopic nature, had a limited lifespan and that any continued delay in its release to Portland would result in financial loss to Portland.

Whilst accepting that commercial interests can be advanced as a basis for urgency, the learned judge in the court a quo found that the urgency in the matter before him was self-created. This is what the learned judge stated:

“I am however persuaded by counsel for respondents argument, that, the urgency pleaded by the applicant is self-created. In the first place, it was not denied that the cement has been with the respondents since September 2012. If, therefore, cement has a short shelf life, why did the applicant not seek its release much earlier? Secondly, the argument that it tends to attract moisture is as relevant now as it was from the onset of the rainy season. The need to act was ever present from the onset, taking into account the nature of the product that is in dispute. In other words, the matter cannot assume more urgency towards the end of the shelf life of a product whose delicacy has never been in doubt.”

It seems to me that the court a quo determined the matter on facts which were not before it.

The consignment of cement was sent to the warehouse in September 2012, but, the record shows that there was movement of stocks from the warehouse without hindrance. The problem arose on 16 January 2013 when Tupelostep wrote an email to Portland advising that a halt had been placed on the movement of the product from the warehouse on its instructions.

That is when in fact the need to act arose and not in September 2012 as stated by the learned judge in the court a quo.

This fact is confirmed by the opposing affidavit filed on behalf of Tupelostep in which the statement is made that:

“Up until 15 January 2013, the first respondent never prevented the removal of cement.”

It is therefore accepted by Tupelostep that cement was being moved up until that date.

If Portland had the right to remove cement up until that date, it follows that the need to act cannot, by any stretch of the imagination, have arisen prior to that date.

In its judgment, the court accepted that what triggered the application was the negation, on 31 January 2013, of an agreement by the parties allowing the removal of the cement by Portland.

The application was filed on 4 February 2013 - a mere four days after the agreement was negated by Tupelostep.

The suggestion that the cement should have been removed in September 2012 is therefore not supported by the record, as, the storage in September was for purposes of facilitating its transportation. The storage was part and parcel of the modus operandi of the contract by the parties.

I am satisfied that the matter ought to have been dealt with on the basis of urgency. No delay had been established on the respondents papers.

Portland also alleged urgency on the premise that cement had a limited shelf-life and that any delay in access to the product, for purposes of sale, would result in economic loss.

Whilst accepting that the law recognised economic loss as a factor for urgency, the court rejected an argument for the granting of relief on this basis on the grounds that the cement had been with Tupelostep and Bak Logistics since September 2012 and that its release should have been sought earlier.

Again, the learned judge fell into error in his assessment of the evidence before him.

The Court placed reliance on the date when the consignment was sent to Bak Logistics and fell into the error of regarding that date to be the time at which it should have sought its removal from storage. The court a quo failed to appreciate, that, the cement was destined for export orders and that any failure on the part of Portland to deliver would cause it harm in the eyes of its external customers.

In addition, the refusal to release export documents would place Portland at cross purposes with the exchange control authorities through its failure to acquit CD1 export forms.

These factors, although adverted to in the application, were not dealt with by the court a quo.

Tupelostep is a peregrinus, a fact which was not disputed before the court a quo.

It was contended on behalf of Portland, that, the fact that Tupelostep is resident in South Africa would tend to complicate issues as the suit would have be instituted in that country. It was contended further, that, in the event that it was sued in this country, any judgment obtained as a result would have to be registered there.

All this entails a lot of litigation and the remedy of damages then becomes theoretical.

The court a quo however felt persuaded that there was an alternative remedy available to Portland, and, consequently, there was no urgency to the application.

The practical difficulties attendant upon such a process for recovery should have been obvious to the court. The failure by the court to appreciate these factors was a clear misdirection warranting the interference by this Court with the exercise of its discretion.

However, over and above these criticisms, the High Court, having decided to determine the matter on the issue of urgency, dismissed the application on the basis that it was not urgent.

This was not the proper course to follow.

Instead, it should have removed the matter from the roll on the basis that it lacked urgency.

Such a course would have left the door open for the appellant to place the matter before the court for determination as an ordinary court application.

In Madza & Ors v The Reformed Church in Zimbabwe Daisyfield Trust SC71-14, ZIYAMBI JA remarked as follows:

“However, having concluded the matter was not urgent, the proper course would have been to remove the matter from the roll of urgent matters to allow the appellants, if so minded, to place the matter before the High Court on the ordinary roll for determination. The order of dismissal was improper in the circumstances.”…,.

I respectfully associate myself with the dicta by her Ladyship. It follows, that, the dismissal of the application for want of urgency is improper.

It is also contended on behalf of Portland, that, in addition to this, the court fell into further error by commenting on the merits of the case.

It is contended that even if this court were to remit the matter for hearing before the High Court, a plea of res judicata could be successfully raised by the respondents.

I agree, in Purchase v Purchase 1960 (3) SA 383, CANEY J had this to say:…,.

“…,. He submitted, that, that dismissal of an application had the effect of an absolution; he likened that to dismissal of an action, which is an absolution from the instance. Becker v Wertheim, Becker and Leveson, 1943 (1) P.H.F 34 (A.D.). I am disinclined to agree with him, for I think that dismissal and refusal have the same effect, namely, a decision in favour of the respondent.”

This principle was approved in African Farms & Townships v C.T. Municipality 1963 (2) SA 555 by STEYN CJ where he stated as follows:…,.

“Counsel for the appellant further argued, that, the order in the original proceedings, which as such is an order dismissing the application, is to be equated with absolution from the instance, leaving the issue undecided.

In my view, there is no substance in that argument.

As Sande, De Diversis Regulis ad L 207, points out, the res judicata is not so much the sentia, the sentence, or the order made, as the lis or negotium, the matter in dispute or question at issue about which the sentia is given, or the causa which is determined by the sentia judicis.

As pointed out in Purchase v Purchase 1960 (3) SA 383 (N) at p385, dismissal and refusal of an application have the same effect, namely, a decision in favour of the respondent.

The equivalent of absolution from the instance would be that no order is made, or that leave is granted to apply again on the same papers.

In Commissioner of Customs v Airton Timber Co. Ltd 1926 CPD 351 at p359, WATERMEYER J draws a distinction between the actual judgment and the reasons for judgment, and the question is not necessarily determined by the judgment, the matter is not res judicata.”…,.

Although purporting to dismiss the application on the basis that it lacked urgency, the court a quo did make pronouncements on the merits of the application. At p2 of the judgment, the learned judge states:

“A perusal of the papers convinced me that there was no basis for granting the interim relief sought and I declined to set the matter down.”

Later on in the judgment…, the learned judge again comments on the merits of the application and states:

“I would have held the same in the present case, save that the reasons advanced for seeking interim relief cannot be sustained.”

And later at p3:

“If the respondents are owed substantial sums of money by the applicant, they would be entitled to a right of retention over the applicant's goods. There is nothing unlawful about such retention as claimed by the applicant. It seems the applicant is basing illegality on the respondents refusal of the security that is being offered. But, as contended by Mr Uriri, no adequate security arrangements have been made by the applicant. For example, he highlighted that security equivalent to the value of the goods is far less than what is owed to the respondents. He further pointed out that there has not been payment of transport costs acknowledged by the applicant.”

As a consequence of the comments by the learned judge as to the merits of the dispute, I am not persuaded by the argument advanced by counsel for the respondents, that, the learned judge in the court a quo did not deal with the matter on the merits.

The judgment has specific findings on the merits of the application, which findings are not confined to the issue of urgency.

The judgment speaks to the security being offered by the applicant being less than what is allegedly owed as transport costs. It mentions that no costs had been paid even though the sum due was acknowledged by the applicant.

It is for the above reasons that the court determined that the appeal had merit and granted the same with costs.

SC41-21 : YSMIN MAHOMMED vs TAWURAYI KASHIRI
Ruled By: KUDYA AJA

This is a chamber application for condonation of the late filing of an appeal and extension of time within which to appeal launched in terms of Rule 43(1) of the Supreme Court Rules 2018.The application is opposed.BACKGROUND FACTSThe applicant and the respondent are joint owners of an immovable property, Stand ...

BACKGROUND FACTS

The applicant and the respondent are joint owners of an immovable property, Stand 24 Philadelphia Township of Philadelphia, Harare held under Deed of Transfer 4986/02.

On 16 February 2017, they executed a Deed of Settlement on the disposal of the immovable property in question, whose terms were incorporated in consent orders granted by the High Court in other cases that were pending between them.

The parties agreed to engage two estate agents, Guest and Tanner and Dawn Properties, to value the immovable property. The mean of the two valuations was to be the value of the property. If, however, any party was dissatisfied with any of the two valuations, the parties legal practitioners would jointly choose a third estate agent, whose valuation would be final.

Thereafter, the applicant had the right to buy out the respondent's one-half share in the property within six (6) months of receipt of the acceptable valuation, failing which the respondent had the same right to buy out the applicant's one half share within a further period of six (6) months.

In the event that the parties failed to exercise their respective rights, the property was to be sold by private treaty, with the parties sharing the net proceeds equally.

The parties jointly instructed the two estate agents to value the property. Dawn Properties valued it at US$250,000 while Guest and Tanner valued it at US$292,000.

The two valuators submitted their respective reports on 28 March 2017 and 30 March 2017 to the parties respective legal practitioners.

The applicant's legal practitioners failed to appreciate the valuation methodology applied by Guest and Tanner. Consequently, on 26 May 2017, they sought the estate agent's comments on these aspects without copying their correspondence to the respondent's legal practitioners.

In response, the estate agent cryptically asserted that the valuation amount constituted a typographical error and proceeded to rectify the earlier amount by substituting it with the lower figure of US$192,000.

The respondent's legal practitioners were oblivious of the communication between the applicant's legal practitioners and Guest and Tanner. They simply filed away the original valuation report without much thought.

The respondent's legal practitioners forwarded the corrected Guest and Tanner valuation report to the applicant's legal practitioners. Apparently, the respondent's legal practitioners, again, simply filed away the rectified report.

Thereafter, the respondent's legal practitioners computed the value of the property at US$221,000 being the mean of the lower Guest and Tanner figure and the Dawn Properties figure.

The respondent exercised his right of first refusal, and, on the directions of the applicant's legal practitioners, deposited, within the prescribed payment period, on 5 January 2018, the one-half share due to the applicant in the sum of US$110,500 into her nominated bank account and transmitted proof of payment.

Thereafter, he sought transfer of the property into his name, but, the applicant refused to co-operate.

He applied to the High Court for an order compelling the applicant to make transfer. She contested it on the basis, that, the respondent's legal practitioners were guilty of material fraudulent non-disclosure of failing to copy the inquiry letter to Guest and Tanner to her legal practitioners, which induced her to accept payment of US$110,500.

She averred that the material non-disclosure influenced Guest and Tanner to reduce the value of the property to her prejudice.

The court a quo accepted that the respondent's legal practitioners had acted unethically, but, dismissed the objection and granted the application for the transfer of the applicant's one-half share in the property to the respondent.

The applicant appealed to this Court on two grounds of appeal in case number SC909/2018. The appeal was heard on both the preliminary point raised by the respondent and on the merits, on 30 June 2019.

The preliminary point raised was that the two grounds of appeal were prolix and argumentative.

Judgment was reserved and handed down on 24 October 2019, as Judgment No. SC85-19. The appeal was determined on the preliminary point.

The two grounds of appeal were found to be “prolix and argumentative.” The appeal was accordingly struck off the roll on the basis that the Notice of Appeal was fatally defective.

On 13 November 2019, the applicant's legal practitioners of record wrote to the Registrar of this Court seeking the correction of the judgment in terms of Rule 73 of the Supreme Court Rules as read with Rule 449(1)(b) of the High Court Rules.

Out of an abundance of caution, the applicant filed the present application on 21 November 2019.

It was opposed on 28 November 2019.

The answering affidavit was irregularly filed on 6 December 2019, outside the period prescribed in Rule 43(5) of the Supreme Court Rules 2018.

The matter was set down in chambers on 20 December 2019 and removed from the roll for the reason, that, the letter of 13 November 2013, seeking correction of the judgment of this Court, constituted lis pendens.

The applicant managed to save her application by withdrawing the letter of 13 November 2019, on 27 January 2020.

Consequently, the respondent filed his heads of argument on 30 January 2020, while the applicant did so on 4 February 2020.

The application is silent on the events between that date and 2 October 2020, when the matter was placed before me - without the heads of argument.

I set it down for hearing on 9 October 2020, on which date the parties handed copies of their heads of argument from the bar.

At the hearing, the respondent raised five preliminary points. These concerned:

(i) The use of the wrong form;
(ii) The lack of authority by the deponent to the founding affidavit to depose to it;
(iii) Lis pendens;
(iv) Defective grounds of appeal in the draft Notice of Appeal; and
(v) An invalid draft order.

I heard argument on both the preliminary points and on the merits.

I indicated to the parties that I would not proceed to determine the matter on the merits if I upheld any of the preliminary points raised, and reserved judgment.

I deal with each preliminary point in turn.

THE PRELIMINARY POINTS

THE USE OF THE WRONG FORM

The respondent contended, that, in the absence of a specified form prescribed for use by the Rules of this Court in respect of the present application, the applicant should, in terms of Rule 73 of the Supreme Court Rules, have resorted to Rule 241 of the High Court Rules, which prescribes the use of Form 29, with appropriate modifications, in a chamber application such as this one.

Rule 73 of the Supreme Court Rules provides that:

“In any matter not dealt in these rules, the practice and procedure of the Supreme Court shall, subject to any direction to the contrary by the court or a judge, follow as closely as may be, the practice and procedure of the High Court in terms of the High Court Act [Chapter 7:06] and the High Court Rules.”

And Rule 241 of the High Court Rules states that:

“241 Form of chamber applications

(1) A chamber application shall be made by means of an entry in the chamber book and shall be accompanied by Form 29B duly completed, and, except as is provided in subrule (2), shall be supported by one or more affidavits setting out the facts upon which the applicant relies. Provided that, where a chamber application is to be served on an interested party, it shall be in Form No.29 with appropriate modifications.”

Counsel for the respondent submitted, that, the form used in the present application was defective for want of compliance with Form 29 with appropriate modifications.

Counsel for the appellant made the contrary submission, that, the form used by the applicant fully complied with the requirements stipulated in the proviso to Rule 241 of the High Court Rules.

While counsel for the respondent conceded, that, the format used by the applicant is the one that has always been used before this Court in this kind of application, he contended that the format fell short of the requirements prescribed by MAFUSIRE J in Base Mineral Zimbabwe (Pvt) Ltd & Anor v Chiroswa Minerals (Pvt) Ltd & Ors HH559-14 at p7-8 of the cyclostyled judgment. The learned judge said that:

“The proviso to Rule 241(1) permits the modification of Form 29 where the chamber application has to be served. What would constitute 'appropriate modifications' is not stated.

Why then does it become important that every time a chamber application has to be served, the applicant should abandon Form 29B and switch over to Form 29?

In my view, once the chamber application becomes one that must be served, then, the respondent is entitled to a period within which to file opposing papers.

The 'appropriate modifications' would include, in my view, a fusion of the contents of Form 29 and those of Form 29B. In other words, it becomes a hybrid, containing both '…, the plethora of procedural rights…,' of Form No. 29, including the dies induciae, and a summary of the grounds of application of Form No. 29B.

The difference between Form 29B and Form 29 is that the former specially prescribes the insertion of a summary of the grounds of the application ex facie the application and predicates the application on a draft order. The latter, unlike the former, is a 'Take Notice' form predicated upon a draft order specifically premised on a 'plethora of procedural rights' (see Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H)) alerting a respondent of the time frame within which to take action and the appropriate documentation.

The distinction between the main provision and the proviso in Rule 241(1) is that the main provision supplies the documentation that is missing ex facie Form 29B while the proviso supplies that information ex facie Form 29.

It is significant, that, the proviso designates the use of Form 29 and not Form 29B in peremptory language for chamber applications to be served on interested parties.

In my view, this specific designation 'ousts' the inclusion of 'the summary of the grounds of the application' required on the face of Form 29B.”

The appropriate modifications contemplated in the proviso have nothing to do with the ex facie contents required by Form 29B but have everything to do with the different time frames or dies induciae within which the notices of opposition are required to be filed.

The appropriate modifications are not a requirement for applications predicated on Form 29. Their absence or omission would not render the application for condonation and extension of time within which to file an appeal defective, let alone fatally defective.

I am satisfied that while the notice does not comply with the requirements of Form 29B, it faithfully follows the prescript of Form 29 and fully complies with the practice generally prevailing in this Court.

The first preliminary point is dismissed for lack of merit.

View Appeal
SC43-13 : ECONET WIRELESS (PVT) LTD vs TRUSTCO MOBILE (PROPRIETARY) LTD and TRUSTCO GROUP INTERNATIONAL (PROPRIETARY) LTD
Ruled By: MALABA DCJ, ZIYAMBI JA and GARWE JA

It is clear, that, in terms of Rules 244 and 246 of the High Court Rules, the decision whether to hear an application on the basis of urgency is that of a judge.The decision is one, therefore, that involves the exercise of a discretion.It follows from this, that, this Court ...

Appealed
SC65-14 : AIR ZIMBABWE (PVT) LTD and AIR ZIMBABWE HOLDINGS (PVT) LTD vs STEPHEN NHUTA and DEPUTY SHERIFF HARARE and SHERIFF OF ZIMBABWE
Ruled By: ZIYAMBI JA, GARWE JA and PATEL JA

This is an appeal against a judgment of the High Court dismissing with costs an urgent application brought by the appellants for the release from 'attachment and execution' of certain motor vehicles and other assets attached by the second respondent (“the Deputy Sheriff”) on the appellants premises on 12 April ...

THE BACKGROUND

The first and second appellants are companies duly incorporated according to the laws of Zimbabwe and whose registered office and principal place of business is situate at the Harare Airport.

The first respondent is an ex-employee of the second appellant. Sometime in October 2010, an arbitral award for outstanding salary and benefits was made in his favour.

No appeal was lodged against the decision of the arbitrator, and the award was registered with the High Court on 5 September 2012.

On 19 October 2012, he caused to be issued a writ of execution on the strength of which the Deputy Sheriff attached and removed twenty–nine vehicles which were found on the appellants premises at the Harare Airport.

The appellants alleged, that, interpleader notices were filed to 'safeguard the claimants interests, which notices are still pending.'

Indeed, it appears that interpleader proceedings in the name of the first appellant, as claimant, and the first respondent, as judgment creditor, were commenced in the High Court on or about 15 November 2012 and not concluded. (I pause here to observe, that, in terms of the High Court Rules, inter-pleader proceedings in respect of property attached in execution are required to be brought by the Deputy Sheriff, as applicant, and the person(s) claiming ownership of the attached property as claimant(s)…,.

The appellants further alleged, that, in December 2012, section 8 of the Finance Act (No.2) of 2012 (“the Finance Act”) was enacted with the sole purpose of protecting, from attachment or execution, the property of the appellants, as the successor companies of the Air Zimbabwe Corporation, and that following this enactment, and in February 2013, the first respondent released the attached motor vehicles subject to the appellants paying to the Deputy Sheriff storage fees which had accumulated in the sum of US$10,000.

The appellants were therefore surprised, when, on 12 April 2013, the Deputy Sheriff returned with the same writ of execution and attached the same motor vehicles which had previously been released from attachment.

They alleged, that, by virtue of the provisions the Finance Act (No.2) of 2012 (the Finance Act) as read with the State Liabilities Act [Chapter 8:14] the attachment of the appellants property to satisfy debts owed by either the first or the second appellant is in violation of the law and therefore illegal.

In the premises, they urged the court to intervene, as a matter of urgency, to prevent the removal of the assets, set for 22 April 2013 for public auctioning, and so put an end to the illegality perpetrated by the respondents.

Failure by the court to intervene and save the attached motor vehicles would result in paralysis of the business operations of the first appellant in a dispute to which it is not a party.

It is of interest to note here, that, notwithstanding the alleged urgency, the application was filed on 22 April 2013, the day scheduled for the removal of the attached property, and served on the first respondent the following day at 4:20pm.

In opposing the application, the first respondent raised two preliminary issues:

(i) Firstly, that the matter was not urgent; and

(ii) Secondly, that, the application was defective by reason of its non-compliance with Rule 241(1) of the High Court Rules which requires the applicant to set out the facts of his application in Form 29B.

No mention was made of the second issue in the judgment, and it is not raised in the Notice of Appeal.

With regard to the first point raised in limine, it was averred by the first respondent, that, the appellants had shown no satisfactory reason, whether in the certificate of urgency or their founding affidavits, as to why the matter should be heard as a matter of urgency.

In particular, there was no disclosure as to when the alleged urgency arose, regard being had to the fact that the writ was issued on 19 October 2012; that, when the Finance Act (No.2) of 2012 (the Finance Act) on which the appellants rely was enacted, in December 2012, no action was taken by the appellants; and that the appellants had concealed from the court an earlier attempt by the Deputy Sheriff, on 10 April 2013, to attach their property before the actual attachment took place on 12 April 2013.

In addition, there was no explanation from the appellants as to why they failed to file this application before 22 April 2013.

In the premises, the urgency was self-created.

As to the merits of the matter, the first respondent averred, that, the property attached belonged to the second appellant (Air Zimbabwe Holdings) which was not protected by the provisions of the Finance Act (No.2) of 2012 (the Finance Act), such protection having been afforded only to the first appellant (Air Zimbabwe (Pvt) Ltd).

While admitting that he had ordered the Deputy Sheriff to release the attached motor vehicles, it was averred, that, the release was not on account of the provisions of the Finance Act but was in consequence of a tender by Air Zimbabwe Holdings of a payment plan in terms of which the latter promised to pay the debt owed to the first respondent in agreed instalments.

When that commitment was not honoured, the Deputy Sheriff was instructed to re-attach and remove the goods formerly released, hence the attempt at attachment on 10 April 2013.

The learned Judge, having heard the matter, dismissed it on the basis that it lacked both urgency and merit.

The following grounds of appeal were relied on by the appellants:

GROUNDS OF APPEAL

1. The court a quo erred in declining to hear and determine the matter on an urgent basis by the exercise of its discretion on whether to hear and determine the matter on an urgent basis on a wrong premise, such wrong premise amounting to an irregular exercise of judicial discretion.

2. The court a quo erred in not holding, that, upon a proper construction of section 9A of the Air Zimbabwe Corporation (Repeal) Act (No.4) of 1998, as inserted by section 8 of the Finance Act (No.2) of 2012, both appellants are successor companies to the Air Zimbabwe Corporation.

3. The court a quo erred in not holding, that, judicial attachment and sale in execution of any property belonging to either of the appellants is proscribed by section 9A of the Air Zimbabwe Corporation (Repeal) Act (No.4) of 1998, as read together with the provisions of section 5(2) of the State Liabilities Act [Chapter 8:14].

The first ground of appeal makes no sense because the court a quo did not decline to hear the matter.

Indeed, having found that the matter was not urgent, it nevertheless proceeded to hear and determine it on an urgent basis.

In so doing, the court a quo contradicted itself.

What it should have done once a finding of lack of urgency was made, was to strike or remove the matter from the roll of urgent matters and not proceed to hear the merits; for, once a hearing has taken place, and a decision made on the merits, the question of urgency becomes irrelevant.

For this reason, a determination on the first ground of appeal would be unnecessary.

SC71-14 : EDWARD MADZA and OTHERS vs THE REFORMED CHURCH IN ZIMBABWE DAISYFIELD TRUST and THE REFORMED CHURCH OF ZIMBABWE and NAISON TIRIVAVI and THE DUTCH REFORMED CHURCH
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

The appellants, on 21 August 2013, brought an application in the High Court, on a certificate of urgency, seeking a provisional order in the following terms:

1. It is hereby ordered and declared, that, the management of Eaglesvale School vests in the Management of the Board of Governors of Eaglesvale School and the School Development Committees of the High School and Junior School respectively.

2. The First and Second respondents are not empowered to dissolve the Management Board of Governors and the School Development Committees of the High School and Junior School and any such acts are declared to be unlawful.

3. The unauthorised payment of any money from the school to the First and Second Respondents and/or any of their officers is unlawful.

4. Consequently, the First, Second, and Third Respondents be and are hereby restrained and interdicted from interfering, unlawfully, in the Applicants management of the administrative and financial affairs of Eaglesvale School.

5. The First, Second, and Third Respondents are ordered to pay the costs of this application.

INTERIM RELIEF GRANTED

6. Pending the final determination of this matter, the First and Second Respondents be and are ordered forthwith not to interfere and/or involve themselves in any manner in the administration and/or finances of Eaglesvale School.

7. The Board of Governors of Eaglesvale School, and the School Development Committee, shall continue to manage the school and its finances.

8. Third Respondent is ordered to take instructions concerning the administration and finances of school from the Applicants and not from the First and Second Respondents.

9. The Applicants and/or its legal practitioners be and are hereby authorised to serve this provisional order on the Respondents.

The learned Judge before whom the matter was placed dismissed the application with costs on the grounds, that, the appellants had no locus standi to bring the application, and, further, that the matter was not urgent.

Against this judgment, the appellants have appealed on grounds, inter alia, that, the court erred on both grounds.

It was prayed, on appeal, that, the judgment of the court a quo be set aside and substituted with an order granting the provisional order sought with costs.

THE BACKGROUND FACTS

In 1984, the Dutch Reformed Church formed and registered a non-profit making company under the name Daisyfield Trust.

The company was established as a not-for-profit welfare company in terms of the Companies Act. The purpose of the Daisyfield Trust was to establish and to ensure oversight of a Christian ethos for the schools established or falling under the Trust according to Dutch Reformed Church values, and, generally, to maintain a Christian character.

Eaglesvale School (previously Bothashof School) was brought under the oversight of the Trust for the aforesaid reason and purpose.

Sometime in 2010, a decision was taken by the Dutch Reformed Church to hand over the Trust to the Reformed Church of Zimbabwe.

With the authorization of the Minister of Justice, the Articles of Association of the Daisyfield Trust were altered to accommodate the change of ownership, and, on 15 March 2013, by special resolution of the Daisyfield Trust, its name was changed to THE REFORMED CHURCH IN ZIMBABWE'S DAISYFIELD TRUST.

I will refer to it hereinafter as “the Trust”.

Following the above, the oversight of the school then moved to the Reformed Church of Zimbabwe who then became the trustees of the Trust.

Up to 12 July 2013, the first to the eighth appellants were members of the Board of Governors responsible for the management of Eaglesvale School. The ninth and the tenth appellants are members of the School Development Committees of the Junior and Senior schools, respectively.

It appears from the opposing papers, that, on 12 July 2013, a letter was written by the Board of Trustees addressed to the third respondent as follows:

“Att: Mr N Tirivavi

Eaglesvale School Management Board

12 July 2013

RE: DISSOLUTION OF EAGLESVALE SCHOOL MANAGEMENT BOARD

The above matter refers.

You are hereby notified that the Reformed Church in Zimbabwe's Daisyfield Trust Board, of which you have been a board member, has been dissolved with immediate effect.

It has come to the attention of the Reformed Church in Zimbabwe's Daisyfield Trust, that, the School Management Board did not follow instructions from the Board of Trustees, as written in the letter to you dated 21 June 2013. For avoidance of doubt, the letter instructed the School Management Board to:

1. Reinstate Mr. Tirivavi back to his work as the suspension was unlawful.

2. Give Mr. Tirivavi all his salary and benefits from the date of suspension.

The Reformed Church in Zimbabwe's Daisyfield Trust regrets, that, to this day, the Headmaster has not been given his dues and his office is still locked and blocked, thereby hindering the smooth running of the school. It would seem from the occurrences pertaining to various issues at the school, that, the school management board is not willing to co-operate or work with the trustees.

Therefore, the Board of Trustees has been left with no option but to dissolve you as the school management board. This means your membership to this board ceases forthwith. However, you are notified, that, if you are still interested to be part of the new Board to be set up, you should submit your application to the board of trustees by the end of the day of Monday 15 July 2013.”

It is not clear on the papers as to whether or not the letter was brought to the attention of the appellants, but, it is not disputed, that, the appellants, at some stage thereafter, came to know of the fact that an Interim Board of Governors had been appointed by the trustees.

Thereafter, a situation then allegedly pertained where instructions were being given to the administrative staff by both Boards of Governors, and the headmaster was taking instructions from the “Board of Trustees” and not from the appellants.

The third respondent, Naison Tirivavi, is the headmaster.

THE APPLICATION

The appellants averred, that, the urgent problem and reason for the application is that:

“The new trustees are running havoc and disrupting the management of the school. Unfortunately, they are also abusing school funds and resources for personal gain. Until recently, the reasons for the conduct of the RCZ and its appointed trustees, whilst still disruptive, were not clear. Sadly, it is now the clearer and urgent that the reason for this conduct is, inter alia, to take control of finances unlawfully and to plunder them.”

They averred, that, the trustees had lifted the suspension of the headmaster on charges of misconduct while the charges against him were still pending, and attached vouchers to show, that, within one month, that is to say, during the period 19 June 2013 to 19 July 2013, the first to third respondents had looted some $80,000 from the school coffers for their own gain and without the knowledge of the appellants.

They claimed, that, it had never been the practice for trustees to draw money from the school as evidenced by the fact, that, one Mr Van Vuuren, the former trustee of the Trust under the management of the Dutch Reformed Church, had never drawn or demanded money from the school throughout his term of office.

The role of the Trust, they stated, was to bring help, whether monetary or otherwise, to the school and not to plunder its resources.

They had grave concerns that the respondents were trying to access the bank accounts which have always fallen under 'the guardianship of the Board and the School Development Committees.'

They alleged, that, they wrote to the Trustees advising them that their attempt to dissolve the Board was void.

However, that letter does not form part of the record and details of the date or contents thereof cannot be ascertained.

They alleged, further, that, the Interim Board had taken control of the finances of the school and were making payments to the Trustees, for their services, in a manner which caused alarm to the appellants.

They attached to their papers a number of vouchers which they say caused them to fear that the funds of the school were being mis-managed to the personal benefit of the Trustees.

For the above reasons, they felt the need for an interdict to be granted as a matter of urgency.

The application was opposed by the respondents, who contended that the matter was not urgent.

The Board, they said, had been dissolved on 12 July 2013 and the appellants knew, as at that date, that an Interim Board had taken over the management of the school. It follows, that, the new administration would have access to the school's bank accounts and finances. Accordingly, the appellants had not made out a case for the matter to be given preference on the court roll by being accorded an urgent hearing.

In the respondents opinion, the matter ought to have been referred to the ordinary roll.

In any event, the appellants had no locus standi to make the application since they had not shown that they represented the Board. No resolutions or other forms of authority were produced to the court which would satisfy it of the locus standi of the appellants to bring this application.

THE ISSUES

At the hearing, a number of preliminary points were raised. The two which formed the basis of the decision were that the matter was not urgent; and that the appellants had no locus standi to make the application.

URGENCY

The appellants claimed, that, it was their discovery that money was being fleeced out of the school's finances which gave rise to the urgency and not the fact that the Trustees had authorised other persons to run the school.

In particular, they claimed that what triggered the application was their discovery, on 15 August 2013, of a number of vouchers which indicated that the school's finances were being misappropriated by the respondents. These vouchers date from 19 June 2013 to 19 July 2013.

The learned Judge was of the view, that, the urgency was created by the appellants since the chaos which existed at the school predated the alleged misappropriation of funds and the appellants ought to have known that the new Board would seek access to the finances and bank accounts of the school.

Indeed, the appellants were quite vague on the reasons for the urgent application.

They do not give the date when the problems began to surface with the Trustees. They mention that the Trustees had reinstated the headmaster whom they had suspended, even while the suspension order was extant. Their allegations boiled down to the fact, that, the Trustees were interfering with their management of the school yet they are silent on the dates of occurrences of these problems.

It appears, from the respondents opposing papers, that, the headmaster was allegedly reinstated sometime in June 2010.

In short, the appellants failed to provide, in their affidavits, sufficient detail from which the learned Judge could form the opinion that the matter merited an urgent hearing.

We do not find any impropriety in the learned Judge's exercise of his discretion in this regard.

However, having concluded the matter was not urgent, the proper course would have been to remove the matter from the roll of urgent matters to allow the appellants, if so minded, to place the matter before the High Court on the ordinary roll for determination.

The order of dismissal was improper in the circumstances.

The main question faced by a Judge presented with an 'urgent application' is to decide whether or not to give priority to the application by dealing with it on an urgent basis. In arriving at a decision on this issue, he or she is called upon to exercise discretion. Such discretion must be exercised judicially, taking into account the factors urged in favour of, and against, an urgent hearing.

If, on perusal of the papers, the Judge comes to the conclusion that the matter is urgent enough to merit an urgent hearing, then, he or she conducts a hearing and gives such order as he thinks fit.

But, if the conclusion is reached, however, that the matter is not urgent, he or she must refuse to hear the application and remove it from the roll, in which event the applicant has the option of enrolling his matter for hearing on the ordinary roll of court applications.

It is a contradiction in terms to dismiss a matter on the twin bases that it is not urgent and that the applicant has no locus standi, for the latter basis indicates that a decision on the merits of the application has been made, in which event the applicant is barred from placing the matter on the ordinary roll for determination.

The effect of the dismissal on the latter basis is that the applicant is put out of court, and is deprived of his right to have the matter properly ventilated in a court application or trial.

Where, however, the matter is struck off the roll for lack of urgency, the applicant, if so advised, may place the matter on the ordinary roll for hearing.

The learned Judge, in giving his reasons for finding that the matter was not urgent, made certain findings of fact which involved the merits.

For example, he found that the appellants Board was dissolved on July 12, a fact of which the appellants claim they were unaware, and that the appellants had not established locus standi to act for the Board or to seek the remedy sought in the draft provisional order.

Those issues went to the heart of the matter. In proceeding to determine them, and to make those findings of fact, the court misdirected itself.

Appealed
SC20-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and DEPUTY SHERIFF HARARE N.O.
Ruled By: CHIDYAUSIKU, CJ

This is a Chamber application in which the applicant, the Zimbabwe Open University (hereinafter referred to as "the University"), seeks the following relief –

(a) An order that the appeal, SC25-12, be heard on an urgent basis; and

(b) A stay of the sale in execution of the University's property, attached in pursuance of an arbitration award it has appealed against.

The first respondent is Gideon Magaramombe (hereinafter referred to as "Magaramombe"). The second respondent is the Deputy Sheriff of Harare.

Magaramombe was formerly employed by the University as a lecturer.

The University terminated Magaramombe's contract of employment. Magaramombe now disputes the termination of employment and contends it was unlawful. The disputed termination was referred to an arbitrator for determination. The dispute was determined in favour of Magaramombe and the arbitrator ordered that Magaramombe be reinstated, or that, alternatively, he be paid damages in lieu of reinstatement.

The University appealed to the Labour Court against the arbitrator's decision in terms of section 98(10) of the Labour Act [Chapter 28:01] (hereinafter referred to as "the Act"). The University also applied to the Labour Court for an order suspending the arbitral award pending the hearing of the appeal. That application was made in terms of section 92E(3) as read with section 89(1)(a) of the Labour Act.

Magaramombe elected to be paid damages in lieu of reinstatement and requested the arbitrator to quantify the damages due to him.

During the quantification proceedings, the University unsuccessfully applied for the stay of proceedings, on the grounds, that, it had applied to the Labour Court for the suspension of the arbitral award pending the appeal.

The application for the stay of proceedings was turned down by the arbitrator on the ground, that, an appeal against an arbitral award and an application for interim relief do not have the effect of suspending an arbitral award.

The arbitrator thereafter awarded Magaramombe the sum of $77,302 as damages.

On 26 September 2011, the University appealed against the award of damages and also applied for a review of the award.

On 27 September 2011, Magaramombe applied to the High Court for registration of the arbitral award.

The University did not oppose the application for registration, as it was of the view that there was no need to oppose the application for registration since it had already applied for the suspension of the award to the Labour Court.

The University assumed, that, the execution of the award was dependent on the outcome of the application to the Labour Court.

The Labour Court granted the University a stay of execution of the arbitral award pending the hearing of the appeal on 3 November 2011.

The High Court registered the arbitral award on or about 14 November 2011.

After the registration of the arbitral award with the High Court, Magaramombe sought to execute the award despite the suspension of the award by the Labour Court.

The University launched an urgent application to stay the execution to the High Court.

The basis of the University's urgent application was that the arbitral award that was executed had been suspended by the Labour Court pending the hearing of an appeal against that award by the Labour Court.

The High Court dismissed the Chamber application.

The University noted an appeal against the dismissal.

The University now applies, in Chambers, for the appeal to be set down on an urgent basis and for an order staying execution pending the determination of that appeal.

In dismissing the urgent application, the learned Judge had this to say at pp4-5 of the cyclostyled judgment (HH61-12):

"The last preliminary point was that the matter was not urgent….,. Ms Mberi submitted, that, the applicant sat on its laurels and only acted when the day of reckoning was at hand. She contended, that, the applicant should have acted on 27 November 2011 when it was served with the notice of registration of the award.

Mr Mpofu made contradictory submissions on the failure to oppose registration.

The first was that the noting of (the) appeal in the Labour Court against the arbitral award automatically suspended the award. The second was that it was hopeless to oppose without first obtaining interim relief from the Labour Court stopping the implementation of the arbitral award.

If the applicant believed that it was on (a) firm footing on the first ground, then, all the more reason for it to oppose registration on that point. But, as events that transpired after it obtained interim relief shows (sic), the applicant believed that implementation could only be stayed by obtaining relief from the Labour Court.

Mr Mpofu did not dispute Ms Mberi's submission, that, the applicant was aware of the judgment of Dhlodhlo supra, that the Labour Court judgment could not stop a High Court order because the latter is a court of superior jurisdiction…,.

I agree with Ms Mberi, that, at the very least, with this foreknowledge, the applicant, knowing that the first respondent was seeking registration of the arbitral award, should have diligently searched for the outcome of the application, especially after it received the interim relief it sought in order to forestall it. It was aware that the purpose of seeking registration was to execute. Armed with the interim order, the applicant was duty bound to either oppose the registration, which was granted on 15 November 2011, or to file an application such as the present one soon thereafter.

I find that it waited until the day of reckoning precipitated by the attachment of 26 January 2011 (2012?) to stay the execution. It did not act with diligence. It sat on its laurels and did not act when the time to act presented itself."

My understanding of the above excerpts of the judgment is that the court a quo made the following two determinations –

(a) The matter was not urgent; and

(b) The execution of the arbitral award could not be stayed because the award had became a High Court judgment whose execution cannot be suspended by the Labour Court.

In this Chamber application, counsel for the University essentially argued, that, execution of the award of the arbitrator was suspended by the Labour Court, which preceded the registration of the award in the High Court. Consequently, Magaramombe could not execute the award, despite its registration with the High Court, as the execution of the award had been suspended by the Labour Court by the time it was registered.

In other words, the award that was registered was a suspended award which could not be executed.

Counsel for Magaramombe, on the other hand, initially raised two preliminary points.

She submitted, that, the Supreme Court had no jurisdiction to hear the Chamber application because there was no valid appeal before the Supreme Court.

She argued, that, the court a quo simply ruled that the matter was not urgent, and, such ruling was interlocutory. She contended, that, the University had not obtained the leave of the court a quo to appeal. Leave to appeal not having been sought and granted, there can be no valid appeal before the Supreme Court.

It was also counsel for Magaramombe's submission, that, on the authority of Dhlodhlo v The Deputy Sheriff for Marondera and Three Ors HH76-11, even if the order issued by the Labour Court had stayed execution of the award, such an order was of no force and effect because the award had since been registered with the High Court and thus became a High Court order which cannot be suspended by an order of an inferior court, namely, the Labour Court.

The learned Judge in the court a quo was probably correct in concluding, that, the University had authored the urgency of the matter before him by delaying the launching of the urgent application until the last minute.

I also accept the submission of counsel for Magaramombe, that, a determination of whether or not a matter is urgent is interlocutory. An appeal against such a determination would certainly require the leave of the court a quo. If such leave were granted, the superior court can only interfere with such a ruling on the basis of a misdirection or gross unreasonableness.

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA
Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

Whether the court a quo correctly determined that the matter was urgent...,. An order granting the urgent hearing of a matter is generally not appealable. This is for the simple reason that the order has no bearing on the merits of the application or judgment.This is akin to a Bank ...

Appealed
SC28-18 : NYAKUTOMBWA MUGABE LEGAL COUNSEL vs GETRUDE MUTASA and DIDYMUS MUTASA and SHERIFF OF ZIMBABWE
Ruled By: GARWE JA, MAKARAU JA and GUVAVA JA

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

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

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

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

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

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

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

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

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

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

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

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

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

I turn to deal with the first ground of appeal.

In the first ground of appeal, the appellant argued that the court a quo should not have treated the matter as urgent as the second applicant had approached the court earlier, through another urgent chamber application, seeking to stay the execution of the default judgment.

It is common cause that the second respondent had approached the court on 10 February 2017. The attached property was removed on 11 February 2017. The second respondent's urgent application was heard and dismissed on 12 February 2017. The second application, by the second respondent, was then filed on 18 February 2017.

It is in these circumstances that the appellant argues that the court a quo mis-applied the principles regulating urgency by holding that the matter was urgent. In the appellant's view, the court a quo ought to have held that the matter was not urgent and should have resultantly dismissed the application on that basis.

It is further common cause that the court a quo, fully cognisant of the above facts, formed the opinion that the matter was urgent, and, thereafter, proceeded to hear and determine the matter on that basis.

The finding by the court a quo was an exercise of discretion by that court.

The issue that then presents itself in this appeal is whether or not the Appeal Court must interfere with such exercise of discretion.

Matters are heard urgently if, in the opinion of the court seized with the matter, the determination of the matter cannot wait the usual allocation of trial dates in terms of the rules of court. Whilst each matter falls to be determined on its own facts, there is a plethora of case authority on the factors that a court must advert to before it makes a finding that a matter warrants to be heard on an urgent basis.

In my view, a finding that a matter is urgent simply enables such a matter to go to the head of the queue of the matters that are before that court and thereby demand the urgent attention of the court. Such a finding does not colour the merits of the matter. More importantly, such a finding does not, in itself, dispose of the matter - unlike a finding that the matter is not urgent which is a final and definitive judgement as discussed above.

It is my further view that a finding of urgency by a court cannot constitute a substantive ground of appeal, one that can stand on its own in the absence of another ground showing that having exercised its discretion to hear the matter urgently, the court caused an injustice to the appellant or erred in some other regard.

In other words, it will not be proper, on appeal, to set aside an otherwise correct decision of the court a quo merely on the basis that the court a quo arrived at that correct decision on an urgent basis which was unwarranted. This is so because an appeal is a procedure through which the correctness of the decision of the lower court is tested and once its correctness is accepted, no appeal can lie against it.

It is my further view that a finding of urgency by a court cannot constitute a substantive ground of appeal, one that can stand on its own in the absence of another ground showing that having exercised its discretion to hear the matter urgently, the court caused an injustice to the appellant or erred in some other regard. In other words, it will not be proper, on appeal, to set aside an otherwise correct decision of the court a quo merely on the basis that the court a quo arrived at that correct decision on an urgent basis which was unwarranted. This is so because an appeal is a procedure through which the correctness of the decision of the lower court is tested and once its correctness is accepted, no appeal can lie against it.

I therefore find no merit in the first ground of appeal which is accordingly dismissed.

HB03-23 : LUKE DUBE vs SHERIFF OF ZIMBABWE N.O. and EXMIN SYNDICATE and PROVINCIAL MINING DIRECTOR MATABELELAND SOUTH N.O. and OTHERS
Ruled By: DUBE-BANDA J

This is an urgent application wherein, initially, the applicant sought a provisional order. At the hearing, the court, mero motu, raised the issue whether this court has the jurisdiction and the competence to pronounce on the validity or lack thereof of a Supreme Court order.On reflection, counsel for the applicant ...

SC42-23 : PETER VALENTINE and ALLEN SIBANDA vs BLOOMING LILLY INVESTMENTS (PVT) LTD and PROVINCIAL MINING DIRECTION MIDLANDS PROVINCE and MINISTER OF MINES AND MINERAL DEVELOPMENT
Ruled By: MAVANGIRA JA, UCHENA JA and MUSAKWA JA

This is an appeal against the whole judgment of the High Court granting a spoliation order in terms of which the appellants were ordered to restore possession of Danga 16442, Oceana 5545, Reedbuck 25535BM, Reedbuck 15535BM and Lucky 8260BM mining claims (hereinafter referred to as “the mining claims”) to the ...

FACTUAL BACKGROUND

The facts on which the court a quo granted the spoliation and contempt of court orders are as follows:

The first appellant (Peter Valentine) and Tapiwa Gurupira, a director and owner of the entire shareholding in the first respondent, have been having disputes concerning the ownership and possession of the above-mentioned mining claims. They litigated in the High Court over the ownership and/or control of the (five) 5 mining claims by the first respondent.

On 24 March 2022, with the authority of the first appellant, the second appellant (Allen Sibanda) invaded the first respondent's five (5) mining claims.

The first appellant claimed, that, he was authorised to do so by the order of the High Court under HC3419/20.

The first respondent filed an urgent application before the court a quo seeking an order for a mandament van spolie against the appellants. It sought the restoration of its access to, possession, and occupation of the (five) 5 mining claims located in Shurugwi District in the Midlands Province.

In its founding affidavit, deposed to by Tapiwa Gurupira, the first respondent submitted, that, it is the registered owner of the (five) 5 mining claims which the appellants invaded on 24 March 2022. It stated, that, the second appellant sent his people to forcefully take over the (five) 5 mining claims from it and ordered its workers to leave the claims.

He alleged, that, they came with all sorts of fighting tools and took possession of the five (5) mining claims. The first respondent's employees attempt to resist the taking over of the mines was subdued by threats of violence and the death of a resident of the area who was found hanging on a tree in what appeared to them to be a murder disguised as suicide.

The first appellant's challenge to Tapiwa Gurupira's ownership of the first respondent was resolved in HC119/18 in which the High Court ordered as follows:

“1. A final interdict is granted barring first, second, and third respondents, their employees, assigns, associates, affiliates, and any other persons acting under their authority from entering all mining locations owned by first applicant which are, namely: Impaluli 4 Mine Shurugwi; Danga 3 Mine Shurugwi; Sheba 2 Mine Shurugwi; Jasper 4 Mine Shurugwi; Paradox Mine Shurugwi; Matebele Mine Shurugwi; Lucerne Mine Shurugwi; Johanna's Luck Mine Shurugwi; Lucrative Mine Shurugwi; Ocean Mine Shurugwi; Reedbuck 1 Mine Shurugwi; Reedbuck 2 Mine Shurugwi; Lucky Mine Shurugwi; Cav Mine Shurugwi.

2. First respondent's appointment as an accredited agent of the first applicant be and is hereby declared null and void of all force and effect and is hereby set aside.

3. Fourth respondent be and is hereby ordered to restore second applicant as an accredited agent in respect of the mines named in para 1 of this order.

4. First, second, and third respondents shall pay costs of this application on the higher scale of legal practitioner and client.”

The first appellant was the first respondent in HC119/18 against whom the final interdict was granted and whose accredited agency over the first respondent was set aside. Tapiwa Gurupira was the second applicant whose accredited agency over the mines named in paragraph 1 was restored by paragraph 3 of HC119/18.

After the granting of the orders in HC119/18, the first appellant did not enter the mining claims mentioned in paragraph 1 of HC119/18 nor cause anyone to do so.

In HC308/20, the first respondent, and a company called Reytalon, at the instance of the first appellant, applied for the nullification of Tapiwa Gurupira's acquisition of 100 per cent of the first respondent's shares.

The application was dismissed by the High Court in HH01–21.

The first respondent submitted, that, pursuant to the order granted by the High Court in HC119/18, it had been in peaceful and undisturbed possession of its mining claims until 24 March 2022 when the second appellant, under the first appellant's authority, invaded the mining claims and chased away its employees. The appellants demanded that the first respondent's workers vacate the mines and proceeded to take them over.

Tapiwa Gurupira reported the invasions to the police which referred him to the Provincial Mining Director.

The Provincial Mining Director, on 4 April 2022, wrote a letter instructing the police to help the first respondent to regain possession of the mining claims. However, on 6 April 2022, the Provincial Mining Director withdrew the letter of support. This prompted the first respondent to immediately apply for a spoliation order against the appellants and a contempt of court order against the first appellant.

The first respondent contended, that, the court orders in HC119/18 and HC308/20 are still extant, and, as such, the first appellant, by defying the order in HC119/18 is in contempt of court. The first respondent sought an order for the restoration of the status quo ante. It also sought an order for contempt of court against the first appellant.

On the other hand, the appellants opposed the application and raised preliminary points to the effect, that, the matter was not urgent since the first respondent had not approached the court immediately after 24 March 2022 when the alleged invasions occurred. The appellants also challenged Tapiwa Gurupira's authority to act on behalf of the first respondent, and argued that he was misrepresenting himself before the court since there was no valid resolution before the court. They also contended, that, Tapiwa Gurupira had dirty hands because he had not complied with an extant order of the High Court in HC4092/20 directing him to serve the first respondent's shareholders and directors in Israel.

On the merits, the appellants argued, that, the mining claims in question had been forfeited for non-payment of inspection fees, and, the first appellant, as one of the directors of the first respondent, proceeded to pay the inspection fees. He therefore contended, that, he did not commit acts of spoliation as he was in lawful occupation of the mining claims. The first appellant submitted, that, he is the rightful owner of the mining claims since he paid the inspection fees, and, as such, his possession of the mining claims could not be faulted.

The appellants also argued, that, they had not invaded the mining claims as there had been a voluntary surrender by the first respondents employees. They, therefore, sought the dismissal of the first respondent's application.

The court a quo held, that, the matter was urgent since the first respondent had acted when the need to act arose, on 6 April 2022, when the Provincial Mining Director withdrew his letter of support to the police, leaving the first respondent with no other option besides having to apply for a spoliation order against the appellants and contempt of court order against the first appellant. It found, that, the first respondent treated the matter with the urgency it deserved and filed the application after exhausting alternative remedies.

The court further held, that, Tapiwa Gurupira had the requisite authority to represent the first respondent as evidenced by the resolution filed on record and the previous court orders between the same parties which conferred him with the necessary authority.

On the issue of dirty hands, the court a quo found, that, an application for a spoliation order cannot be challenged on the basis of the dirty hands doctrine.

On the merits, the court a quo held, that, the application for a spoliation order had been proved as the appellants had not denied invading and taking over the first respondent's mining claims. It held, that, the appellant's taking-over of the mining claims, and demand that the first respondent's workers leave the claims, constituted spoliation. It also held, that, the fact that the appellants were armed vitiated consent and was a clear act of spoliation.

In respect of the appellants reliance on the High Court's order in HC3419/20 the court a quo held, that, the order that the appellants sought to rely on did not give them any right to occupy the mining claims without relying on a warrant of execution, and, in any event, the order did not allow them to illegally occupy the (five) 5 mines. It only ordered the Provincial Mining Director and the Minister of Mines to allow the first appellant to resume mining at the Impaluli claim.

That order could only be executed through due process in respect of the Impaluli claim.

No similar order was made in respect of the (five) 5 claims the appellants invaded. HC3419/20 only ordered the Provincial Director of Mines and the Minister of Mines to allow the first appellant to pay inspection fees for the mines they invaded.

The court a quo held, that, the first respondent had proved that it was in peaceful and undisturbed possession of the mining claims when the appellants despoiled it. The court further found, that, the first appellant was in contempt of court for failing to obey an extant court order in HC119/18.

It therefore granted a spoliation order against the appellants and a contempt of court order against the first appellant.

It is against these orders that the appellants appealed to this Court. The appeal is premised on the following grounds of appeal:

“1. The High Court grossly erred in finding, that, the application before it was urgent in the face of evidence showing, that, the first respondent had not acted when the need to act arose on the 16th of March 2022.

2. The High Court further grossly erred in finding, that, Tapiwa Gurupira had the authority to represent the first respondent and institute proceedings on its behalf when he had placed before the court an invalid instrument of authority; a resolution bearing a date which had not yet arrived as the date of a meeting authorising him to act on its behalf.

3. The High Court further grossly erred in failing to find, that, the founding affidavit of Tapiwa Gurupira, in para 11, contained an alteration which rendered it invalid.

4. The High Court further grossly erred in finding, that, the first respondent was in peaceful and undisturbed possession of the mines in issue in the face of evidence showing, that, Chamunorwa Daniel Gozhora was in possession of Lucky Mine as an independent actor, and with his own assets and equipment, and in the absence of any evidence of the possession of any other mine.

5. The High Court further grossly erred in failing to find, that, there was a peaceful handover by the said Chamunorwa Daniel Gozhora of Lucky Mine to the second appellant, and, therefore, there was no justification for the grant of a spoliation order.

6. The High Court further grossly erred in failing to find, that, the appellants, acting in accordance with a court order in case number HC3419/20, had renewed the mining certificates in respect of the relevant mines and therefore were in peaceful and undisturbed possession of the mines.

7. The High Court further grossly erred in finding, that, the first appellant had been served or was otherwise aware of the terms of the court order in case number HC119/18 and therefore that a requirement for contempt of court had been established.

8. The High Court further grossly erred in finding, that, the first appellant had intentionally acted in any manner as to violate the terms of an extant court order when he had not presented himself at any of the mines and it had not been established that any other person had acted on his behalf.”

SUBMISSIONS BEFORE THIS COURT

Counsel for the appellant submitted, that, the court a quo misdirected itself in holding that the matter was urgent and that Tapiwa Gurupira had authority to represent the first respondent.

He asserted, that, the resolution submitted on behalf of the first respondent was forged as it had a future date, which meant that it was passed after the proceedings had already been instituted. He submitted, that, Tapiwa Gurupira, being one of the directors of the first respondent, could not have given himself the authority to represent the first respondent, and, as such, he was not properly before the court.

On the merits, he argued, that, the first respondent was not in peaceful and undisturbed possession of the property in question given the fact that Tapiwa Gurupira was not in possession of the mines in issue since he was not physically present at any of the mines. He further contended, that, the takeover was not forceful since the first respondent's manager negotiated with the persons taking over the mines.

Counsel for the appellant submitted, that, there was no act of spoliation and there was, therefore, no justification for the orders granted by the court a quo.

Per contra, counsel for the first respondent argued, that, the first respondent had been in peaceful and undisturbed possession of the (five) 5 mining claims pursuant to the extant court order which clearly stipulated that the first respondent was the owner of the mining claims. He further submitted, that, to prove its peaceful possession, the first respondent had renewed its mining certificates over the mining claims and the appellants unlawfully dispossessed it of the claims.

Although the appeal is premised on eight grounds, only four issues arise for determination. These are:

1. Whether or not the court a quo correctly found that the application was urgent.

2. Whether or not the court a quo correctly found that Tapiwa Gurupira had authority to represent the first respondent and that his founding affidavit was valid.

3. Whether or not the court a quo erred in granting the first respondent a spoliation order.

4. Whether the court a quo correctly found that the first appellant was in contempt of court.

I now turn to deal with each of these issues, taking into consideration the submissions made by counsel for the parties.

WHETHER OR NOT THE APPLICATION WAS URGENT

The appellant's counsel raised the issue of urgency on appeal in spite of this Court's decision in C.G.D Chiwenga v M. Mubaiwa SC86-20 where this Court held, that, the hearing of a matter on an urgent basis is not appealable as it does not affect the correctness of a judgment arrived at after a litigant is allowed to be heard ahead of other litigants. At p10 of the cyclostyled judgment, the court said:

“Looked at differently, an order granting the urgent hearing of a matter is generally not appealable. This is for the simple reason, that, the order has no bearing on the merits of the application or judgment. This is akin to a bank customer who is rightly or wrongly allowed to jump the queue. His or her transaction cannot be impugned or rendered unlawful solely on the basis that he or she has jumped the queue. By the same token, a correct judgment cannot be impugned or rendered incorrect by the mere fact that the matter was improperly heard as an urgent application.

In Nyakutombwa Mugabe Legal Counsel v Mutasa & Ors (SC28-18…,.) this Court held, that, a finding of urgency by a court, on its own, cannot constitute a substantive ground of appeal. Thus, the appeal against urgency was ill conceived and misplaced.

The court therefore finds no merit in the appellants complaint that the matter was improperly heard as an urgent matter.”

I therefore need not determine this issue as it is a mere complaint which should not have been raised as a ground of appeal.

SC46-23 : GAYNOR CHITSAKA and OTHERS vs LORRAINE HEYNS and OTHERS
Ruled By: MAKONI JA, CHIWESHE JA and CHATUKUTA JA

This is an appeal against the entire judgment of the High Court (“the court a quo”) wherein it dismissed the appellants point in limine, that, the respondents application before it was a nullity for non-compliance with Rule 59 of the High Court Rules 2021 (“the Rules”).

At the hearing of the appeal, counsel for the first and second respondents (Lorraine Elizabeth Heyns and Kurt Louis Heyns) raised a point in limine to the effect, that, the present appeal was fatally defective for the reason, that, it had been noted without the leave of the court a quo, as the appeal is against an interlocutory order.

This judgment will thus be confined to the determination of this point in limine.

FACTUAL BACKGROUND

The parties are embroiled in a dispute over ownership of an immovable property known as a Certain Piece of Land Situate in the District of Hartley, called the Remainder of Westhey of Sabonabon Estate measuring 97,0653 hectares and held under Deed of Transfer Number 4110/92 (“the property”).

The first and second respondents approached the court a quo by way of an urgent court application for an order declaring certain court applications, instituted under the various case numbers, stated in their draft order, to be null and void ab initio; a declaration, that, the company known as Balwearie Holdings (Private) Limited, registered under Company Number 45/77, is the legitimate owner of the property; and, an order that the first, second and twelfth respondents have no enforceable rights or interests in the property.

They also sought a declaration, that, the first to eighteenth respondents have acted in common purpose to illegally acquire title in the above-described immovable property.

Further, there was consequential relief which was being sought as detailed in the draft order.

The application was opposed by the appellants as well as the third to the eighteenth respondents.

Following indications from some of the parties that they had preliminary objections to raise, the court a quo directed that the parties file their opposing papers.

The appellants (Gaynor Chitsaka, Herbert Mawema, Bherebende Law Chamber and W.O.M. Simango and Associates) in their opposing papers, raised two preliminary points, namely;

(a) Whether the application was fatally defective and therefore invalid for non-compliance with Rule 59 of the High Court Rules 2021; and

(b) Whether the matter was urgent.

PROCEEDINGS BEFORE THE COURT A QUO

The appellants submitted, that, the court application was fatally defective for non-compliance with Rule 59 of the High Court Rules 2021, in that it was not in the prescribed form.

They further submitted, that, the form used did not contain the mandatory plethora of procedural rights which are designed to inform them of their rights and obligations in relation to the application.

In response, the respondents submitted, that, the form used substantially complied with the requirements of Rule 59 of the High Court Rules 2021.

In the alternative, they argued, that, the court could invoke its inherent powers to deal with the application notwithstanding the failure to comply with the exact form required by the Rules.

The appellants further challenged the hearing of the application on an urgent basis mainly on two grounds:

(i) Firstly, they contended that the certificate of urgency did not show that the certifying legal practitioner applied an independent mind to the matter.

(ii) Secondly, they argued that the circumstances of the matter did not reveal any form of urgency.

FINDINGS OF THE COURT A QUO

The court a quo found, that, the current Form 23 is what used to be Form 29 of the now repealed High Court Rules 1971.

It does not contain the dies induciae. This is provided for in Rule 59(6) of the High Court Rules 2021.

Contrary to the submission made on behalf of the appellants, the period of ten days is not a mandatory requirement. The Rules refer to a dies induciae of “not less than ten days”. It further found, that, the Rules allowed a court application to specify a shorter period of a dies induciae, if the court, on good cause shown, agrees to such a shorter period.

Whilst the court a quo agreed that the form used by the first and second respondents was defective because it did not inform the appellants of the nature and scope of the notice of opposition; the consequences of a failure to file opposing papers within the dies induciae specified in the court application; and the failure to specify the High Court station at which the opposing papers were to be filed, the court found that such defects were not fatal to the application and did not prejudice the respondents in any manner.

Consequently, it dismissed the point in limine challenging the validity of the application.

In relation to the issue of urgency, the court a quo held, that, there was no requirement for a certificate of urgency in an urgent court application. The court stated, that, the certificate of urgency was only required in urgent chamber applications, in line with the provisions of Rules 60(4)(b) and 60(6) of the High Court Rules 2021.

The court further made a finding, that, the application before it did not specify when the need to act arose and, on this point alone, it held that the matter before it was not urgent.

The court further held, that, the irreparable harm which the first and second respondents would suffer had not been established.

The court also ruled, that, the declaratory and consequential relief being sought by the first and second respondents did not qualify for an urgent hearing.

As a result, the court a quo ordered that the matter be struck off the roll of urgent matters. It also ordered, that, the respondents file opposing papers, on the merits of the matter, within ten days of the order.

THE APPEAL

Dissatisfied by the decision of the court a quo, the appellants noted the present appeal on the following single ground:

GROUND OF APPEAL

The proceedings in the court a quo were void ab initio for the reason, that, the purported application by the first and second respondents was a nullity for non-compliance with Rule 59(6) of the High Court Rules 2021, with the result that the court a quo erred in law in not so finding and in:

1.1 Striking off the matter from the roll of urgent matters as there is no such roll for urgent court applications; and

1.2 Ordering the appellants to file opposing papers to a nullity.

The appellants pray that the appeal be allowed with costs and that the judgment of the court a quo be set aside and substituted with an order upholding the point in limine regarding the invalidity of the application and that the application be struck off the roll.

SUBMISSIONS BEFORE THIS COURT

Counsel for the first and second respondents submitted, that, the appeal was invalid as a result of the appellants failure to seek leave to appeal. He argued, that, the judgment which was being appealed against was an interlocutory order; as such, in terms of section 43(2)(d)(i) of the High Court Act [Chapter 7:13] (the Act), the appellants ought to have obtained leave to appeal before lodging their appeal.

Counsel for the first and second respondents prayed for costs de-bonis propriis on the basis, that, the first and second respondents had written a letter to the appellants advising them of the need to seek leave before noting the appeal, which letter the appellants ignored.

He further added, that, the appellants failed to address the case authorities that the respondents had highlighted in their letter and in their heads of argument.

He further contended, that, amongst the appellants were legal practitioners who should know the law.

He further argued, that, the appellants counsel was not new to the issue of seeking leave in relation to interlocutory orders.

He submitted, that, counsel for the appellants argued the matter in Mogola Enterprises (Private) Limited v Old Mutual Property Investment (Private) Limited SC26-20 where the matter was struck off the roll on account of failure to seek leave.

In the event that the court was not inclined to award costs de bonis propriis, counsel sought costs on a higher scale for the reason, that, the appeal was lodged mainly to frustrate the proceedings a quo.

Per contra, counsel for the appellants, argued, that, the dismissal of the preliminary point which they had raised before the court a quo resulted in a decision which was final and definitive. He submitted, that, the preliminary point went to the root of the application that was before the court a quo, hence, the decision was not interlocutory.

Counsel contended, that, the dismissal of the preliminary point yielded an automatic appeal, thus, there was no need to seek leave to appeal.

Regarding costs, counsel for the appellants stated, that, both costs de bonis propriis and costs on a higher scale were unwarranted.

THE ISSUE

The present appeal can be disposed of by the determination of the question whether the order granted by the court a quo, dismissing the appellants preliminary point regarding the invalidity of the application before it, was an interlocutory order.

THE LAW

The question whether an order is interlocutory or not is a well-trodden path within and outside this jurisdiction.

In the locus classicus, South Cape Corp v Engineering Management Services 1977 (3) SA 534 (A)…, the court, in defining what an interlocutory order is, stated the following:

“(a) In a wide and general sense, the term 'interlocutory' refers to all orders pronounced by the court upon matters incidental to the main dispute, preparatory to, or during the progress of the litigation. But orders of this kind are divided into two classes:

1. Those which have a final and definitive effect on the main action; and

2. Those known as 'simple (or purely) interlocutory orders' or 'interlocutory orders proper' which do not: see, generally, Bell v Bell 1908 TS 887 at pp.890-1; Steytler N.O. v Fitzgerald supra at pp.303, 311, 325-6, 342; Globe and Phoenix Gold Mining Co. Ltd v Rhodesian Corporation Ltd 1932 AD 146 at pp.153, 157–8, 162-3; Pretoria Garrison Institutes v Danish Variety Products supra at pp.850, 867.

(b) Statutes relating to the appealability of judgments or orders (whether it be appeal ability with leave or appealability at all) which use the word 'interlocutory' or other words of similar import, are taken to refer to simple interlocutory orders.

In other words, it is only in the case of simple interlocutory orders that the statute is read as prohibiting an appeal or making it subject to the limitation of requiring leave, as the case may be.

Final orders, including interlocutory orders having a final and definitive effect are regarded as falling outside the purview of the prohibition or limitation: see, generally, Steytler's case supra at pp.304, 312,326, 345-6;

(c) The general test as to whether an order is a simple interlocutory one or not was stated by SCHREINER JA in the Pretoria Garrison Institutes case, supra, as follows (at p.870):

'…, a preparatory or procedural order is a simple interlocutory order, and, therefore, not appealable, unless it is such as to 'dispose of any issue, or any portion of the issue, in the main action or suit' or which amounts, I think, to the same thing, unless it 'irreparably anticipates or precludes some of the relief which would or might be given at the hearing.'"

The above position of the law has been followed in this jurisdiction as enounced in a number of cases: see Gillespies Monumental Works P/L v Zimbabwe Granite Quarries P/L 1977 (2) ZLR 436 (H); Mwatsaka v ICL Zimbabwe 1988 (1) ZLR 1 (H); Mogola Enterprises (Private) Limited v Old Mutual Property Investment (Private) Limited SC26-20; Al Shams Global BVI Limited v Deposit Protection Corporation & Ors SC52–22.

In Trust Merchant Bank Limited v Mako Properties (Pvt) Ltd t/a Musuna Safaris & Travel SC73–02 CHIDYAUSIKU CJ restated the applicable test on whether an order is interlocutory as follows:

“It is clear from its form and effect, that, the order made by the learned judge is an interlocutory order within the meaning of section 43(2)(d) of the Act. In Steytler N.O. v Fitzgerald 1911 AD 295, at 305, LORD de VILLIERS CJ said, that, the test whether or not an order was interlocutory was:

'Whether on the particular point in respect of which the order is made the final word has been spoken in the suit, or whether in the ordinary course of the same suit, the final word has still to be spoken.'”…,.

MALABA DCJ…, in the case of Blue Ranges Estates (Pvt) Ltd v Muduviri and Anor 2009 (1) ZLR 368 (S)…, further elaborated on the test as follows:

“To determine the matter, one has to look at the nature of the order and its effect on the issues or cause of action between the parties and not its form. An order is final and definitive because it has the effect of a final determination on the issues between the parties in respect to which relief is sought from the court.

An order for discovery or extension of time within which to appeal, for example, is final in form but interlocutory in nature. The reason is that it does not have the effect of determining the issues or cause of action between the parties.”…,.

The learned authors, HERBSTEIN and Van WINSEN, in their book Civil Practice of the High Courts of South Africa, 5th ed, Juta…, define an interlocutory order as:

“…, an order granted by a court at an intermediate stage in the course of litigation, settling or giving directions with regard to some preliminary or procedural question that has arisen in the dispute between the parties.”

The essential elements of an interlocutory order that are coming out of the above authorities can be summarized as follows:

(i) It is an order granted at an intermediate stage in the course of litigation of the dispute between the parties.

(ii) It could relate to a preliminary or procedural question that would have arisen in the course of dealing with the main dispute.

(iii) The final word still has to be spoken in the suit.

(iv) Its an order pronounced upon matters incidental to the main dispute, preparatory to, or during the progress of litigation.

(v) It can be final in form but interlocutory in nature, in that, it does not have the effect of determining the cause of action between the parties.

It is a settled principle of law, and is statutorily provided for, that, no appeal lies against an interlocutory order without the leave of the court which gave that order, or, where it is refused, without the leave of this Court.

This is laid out in section 43(2)(d) of the High Court Act [Chapter 7:06] in the following manner:

“43 Right of appeal from High Court in civil cases

(2) No appeal shall lie —

(d) From an interlocutory order or interlocutory judgment made or given by a judge of the High Court, without the leave of that judge, or, if that has been refused, without the leave of a judge of the Supreme Court….,.”

Nevertheless, there are three instances in which an appeal against an interlocutory order may be noted without the leave of court. These three exceptions are provided for in the aforementioned section as follows:

(i) Where the liberty of the subject or the custody of minors is concerned;

(ii) Where an interdict is granted or refused;

(iii) In the case of an order on a special case stated under any law relating to arbitration.

APPLICATION OF THE LAW TO THE FACTS

In their heads of argument, the first and second respondents contend, that, the court a quo's judgment was not a final and definitive judgment as it did not bring the dispute between the parties to finality.

The appellants, on the other hand, insist that the court a quo's failure to hold, that, the proceedings before it were void ab initio resulted in a judgment which was final and did not require leave to be appealed against.

The court a quo was called upon to determine, in limine, whether or not the application before it was a nullity.

It determined that the application was valid.

Such a judgment is appealable without leave for the simple reason, that, it is not covered by any of the three prohibitions in section 43(2) of the High Court Act [Chapter 7:06].

A judgment that refuses to find that proceedings before a court are void ab initio cannot be interlocutory as it goes to the root of the litigation and has far reaching consequences as to fall outside the contemplation of the word “interlocutory” as used in section 43(2) of the High Court Act [Chapter 7:06].

Such a judgment forces a respondent to participate in subsequent proceedings that may be a nullity. This creates an absurdity not contemplated by the legislature in enacting the prohibition relating to 'interlocutory' orders.

In the circumstances, leave to appeal was not required.

In my view, the order granted by the court a quo fits squarely into the essential elements of an interlocutory order such as I have alluded to above in paragraph 25.

The court a quo dismissed the point in limine raised by the appellants, regarding the validity of the application before it, and gave an order striking the application off the roll of urgent matters.

In so doing, the court did not make a determination on the merits of the dispute between the parties. At the time the court a quo made the order “the final word has still to be spoken” regarding the cause of action between the parties.

The decision did not bring the rights of the parties, in relation to the dispute between them, to a final and definitive determination.

This is fortified by the fact, that, the court a quo went further and directed the respondents, before it, to file notices of opposition to the application on the merits. The main dispute between the parties was referred to the roll of ordinary court applications for a resolution.

This part of the order undoubtedly indicates, that, the dispute between the parties had not been resolved. It was still awaiting final determination.

The decision of the court a quo, although final in form, is purely interlocutory in nature, and would certainly require the leave of the court a quo.

Whilst counsel for the appellants was correct, that, the order issued by the court a quo was final, it is only final in form, but, interlocutory in nature, and does not fall under any of the exceptions set out in paragraph (d) of section 43(2) of the High Court Act.

In my view, litigants need to understand, that, finality of the order is not the determinant factor. One needs to go further and examine the nature of the order. The question that one must ask oneself is whether the order, though final, disposes of the main dispute between the parties. If it does not, then, it is an interlocutory order.

No absurdity will be created by the main matter proceeding as the appellants can appeal the decision - with the leave of the court a quo.

This appeal, having been filed without the leave of the court a quo, is improperly before the court. Consequently, I uphold the point in limine raised by the first and second respondents.

There is one issue which has caused me some disquiet, which issue, in my view, might have taken this matter this far. It concerns the manner in which the court a quo handled the urgent court application before it.

When seized with an urgent court or chamber application, and points in limine are taken, including that the matter is not urgent, the first point to be determined is whether the matter meets the requirements of urgency. If the court determines that the matter is urgent it then goes on to deal with the other points in limine, starting with those that have the potential to terminate the proceedings.

If the court a quo had adopted the correct approach and found, as it did, that the matter was not urgent, it should have ended there. The issue whether the application before the court was valid or not would then have been properly dealt with on the ordinary roll.

One can understand the appellants confusion.

When the matter comes up on the ordinary roll for determination, they can no longer raise the issue, regarding the validity of the application, lest they are confronted with a special plea of res judicata.

That, however, in my view, does not change the character of the order. It remains interlocutory in that it determined a procedural issue....,.

Accordingly, it is ordered as follows:

1. The matter be and is hereby struck off the roll.

HH30-15 : MANPAC (PRIVATE) LIMITED vs PEOPLE'S OWN SAVINGS BANK and THE SHERIFF OF ZIMBABWE
Ruled By: DUBE J

Once a legal practitioner has lodged an urgent application he is required to pay security for costs so that the matter is placed before a judge.

Back Main menu

Law Portal
Zimbabwe

Urgency re: Approach iro Procedural Considerations of Urgency and Questions of Law

HH73-12 : CHIKOMBA RURAL DISTRICT COUNCIL vs KENNETH MUNDOPA and DEPUTY SHERIFF CHIVHU
Ruled By: MUTEMA J

HH230-15 : CHITUNGWIZA CENTRAL HOSPITAL vs MOTOR FIX (PVT) LIMITED and THE REGISTRAR OF THE HIGH COURT and SHERIFF OF THE HIGH COURT
Ruled By: MAWADZE J

CC11-21 : LIZIWE MUSEREDZA and 385 OTHERS vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PVT) LTD and OTHERS
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

SC29-09 : BLUE RANGERS ESTATES (PVT) LTD vs JAMAYA MUDUVIRI and THE MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: MALABA DCJ

Appealed
SC17-19 : ECONET WIRELESS (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY and COMMISSIONER GENERAL
Ruled By: MALABA DCJ, GOWORA JA and MAVANGIRA JA

HH212-13 : ELIZABETH CHIWUNDO vs ZIMBABWE NATIONAL FAMILY PLANNING COUNCIL
Ruled By: MATHONSI J

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA
Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

HH158-17 : THE TRUSTEES OF THE APOSTOLIC FAITH MISSION OF AFRICA vs ZULU ROSEWELL and OTHERS
Ruled By: MATANDA-MOYO J

HH559-14 : BASE MINERALS ZIMBABWE (PVT) LTD and PETER VALENTINE vs CHIROSWA MINERALS (PVT) LTD and CHIROSWA SYNDICATE and JOHN GROVES
Ruled By: MAFUSIRE J

SC03-15 : PORTLAND HOLDINGS LTD vs TUPELOSTEP INVESTMENTS (PROPRIETARY) LIMITED and TOBACCO WAREHOUSE & EXPORT t/a BAK LOGISTICS
Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

SC41-21 : YSMIN MAHOMMED vs TAWURAYI KASHIRI
Ruled By: KUDYA AJA

View Appeal
SC43-13 : ECONET WIRELESS (PVT) LTD vs TRUSTCO MOBILE (PROPRIETARY) LTD and TRUSTCO GROUP INTERNATIONAL (PROPRIETARY) LTD
Ruled By: MALABA DCJ, ZIYAMBI JA and GARWE JA

Appealed
SC65-14 : AIR ZIMBABWE (PVT) LTD and AIR ZIMBABWE HOLDINGS (PVT) LTD vs STEPHEN NHUTA and DEPUTY SHERIFF HARARE and SHERIFF OF ZIMBABWE
Ruled By: ZIYAMBI JA, GARWE JA and PATEL JA

SC71-14 : EDWARD MADZA and OTHERS vs THE REFORMED CHURCH IN ZIMBABWE DAISYFIELD TRUST and THE REFORMED CHURCH OF ZIMBABWE and NAISON TIRIVAVI and THE DUTCH REFORMED CHURCH
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

Appealed
SC20-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and DEPUTY SHERIFF HARARE N.O.
Ruled By: CHIDYAUSIKU, CJ

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA
Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

Appealed
SC28-18 : NYAKUTOMBWA MUGABE LEGAL COUNSEL vs GETRUDE MUTASA and DIDYMUS MUTASA and SHERIFF OF ZIMBABWE
Ruled By: GARWE JA, MAKARAU JA and GUVAVA JA

HB03-23 : LUKE DUBE vs SHERIFF OF ZIMBABWE N.O. and EXMIN SYNDICATE and PROVINCIAL MINING DIRECTOR MATABELELAND SOUTH N.O. and OTHERS
Ruled By: DUBE-BANDA J

SC42-23 : PETER VALENTINE and ALLEN SIBANDA vs BLOOMING LILLY INVESTMENTS (PVT) LTD and PROVINCIAL MINING DIRECTION MIDLANDS PROVINCE and MINISTER OF MINES AND MINERAL DEVELOPMENT
Ruled By: MAVANGIRA JA, UCHENA JA and MUSAKWA JA

SC46-23 : GAYNOR CHITSAKA and OTHERS vs LORRAINE HEYNS and OTHERS
Ruled By: MAKONI JA, CHIWESHE JA and CHATUKUTA JA

HH30-15 : MANPAC (PRIVATE) LIMITED vs PEOPLE'S OWN SAVINGS BANK and THE SHERIFF OF ZIMBABWE
Ruled By: DUBE J

Categories

Law Portal Zimbabwe

Urgency re: Approach iro Procedural Considerations of Urgency and Questions of Law

HH73-12 : CHIKOMBA RURAL DISTRICT COUNCIL vs KENNETH MUNDOPA and DEPUTY SHERIFF CHIVHU Ruled By: MUTEMA J

HH230-15 : CHITUNGWIZA CENTRAL HOSPITAL vs MOTOR FIX (PVT) LIMITED and THE REGISTRAR OF THE HIGH COURT and SHERIFF OF THE HIGH COURT Ruled By: MAWADZE J

CC11-21 : LIZIWE MUSEREDZA and 385 OTHERS vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PVT) LTD and OTHERS Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

SC29-09 : BLUE RANGERS ESTATES (PVT) LTD vs JAMAYA MUDUVIRI and THE MINISTER OF LANDS AND RURAL RESETTLEMENT Ruled By: MALABA DCJ

Appealed SC17-19 : ECONET WIRELESS (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY and COMMISSIONER GENERAL Ruled By: MALABA DCJ, GOWORA JA and MAVANGIRA JA

HH212-13 : ELIZABETH CHIWUNDO vs ZIMBABWE NATIONAL FAMILY PLANNING COUNCIL Ruled By: MATHONSI J

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

HH158-17 : THE TRUSTEES OF THE APOSTOLIC FAITH MISSION OF AFRICA vs ZULU ROSEWELL and OTHERS Ruled By: MATANDA-MOYO J

HH559-14 : BASE MINERALS ZIMBABWE (PVT) LTD and PETER VALENTINE vs CHIROSWA MINERALS (PVT) LTD and CHIROSWA SYNDICATE and JOHN GROVES Ruled By: MAFUSIRE J

SC03-15 : PORTLAND HOLDINGS LTD vs TUPELOSTEP INVESTMENTS (PROPRIETARY) LIMITED and TOBACCO WAREHOUSE & EXPORT t/a BAK LOGISTICS Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

SC41-21 : YSMIN MAHOMMED vs TAWURAYI KASHIRI Ruled By: KUDYA AJA

View Appeal SC43-13 : ECONET WIRELESS (PVT) LTD vs TRUSTCO MOBILE (PROPRIETARY) LTD and TRUSTCO GROUP INTERNATIONAL (PROPRIETARY) LTD Ruled By: MALABA DCJ, ZIYAMBI JA and GARWE JA

Appealed SC65-14 : AIR ZIMBABWE (PVT) LTD and AIR ZIMBABWE HOLDINGS (PVT) LTD vs STEPHEN NHUTA and DEPUTY SHERIFF HARARE and SHERIFF OF ZIMBABWE Ruled By: ZIYAMBI JA, GARWE JA and PATEL JA

SC71-14 : EDWARD MADZA and OTHERS vs THE REFORMED CHURCH IN ZIMBABWE DAISYFIELD TRUST and THE REFORMED CHURCH OF ZIMBABWE and NAISON TIRIVAVI and THE DUTCH REFORMED CHURCH Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

Appealed SC20-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and DEPUTY SHERIFF HARARE N.O. Ruled By: CHIDYAUSIKU, CJ

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

Appealed SC28-18 : NYAKUTOMBWA MUGABE LEGAL COUNSEL vs GETRUDE MUTASA and DIDYMUS MUTASA and SHERIFF OF ZIMBABWE Ruled By: GARWE JA, MAKARAU JA and GUVAVA JA

HB03-23 : LUKE DUBE vs SHERIFF OF ZIMBABWE N.O. and EXMIN SYNDICATE and PROVINCIAL MINING DIRECTOR MATABELELAND SOUTH N.O. and OTHERS Ruled By: DUBE-BANDA J

SC42-23 : PETER VALENTINE and ALLEN SIBANDA vs BLOOMING LILLY INVESTMENTS (PVT) LTD and PROVINCIAL MINING DIRECTION MIDLANDS PROVINCE and MINISTER OF MINES AND MINERAL DEVELOPMENT Ruled By: MAVANGIRA JA, UCHENA JA and MUSAKWA JA

SC46-23 : GAYNOR CHITSAKA and OTHERS vs LORRAINE HEYNS and OTHERS Ruled By: MAKONI JA, CHIWESHE JA and CHATUKUTA JA

HH30-15 : MANPAC (PRIVATE) LIMITED vs PEOPLE'S OWN SAVINGS BANK and THE SHERIFF OF ZIMBABWE Ruled By: DUBE J

Categories

Your Donation.

Law Portal
Zimbabwe

HH73-12 : CHIKOMBA RURAL DISTRICT COUNCIL vs KENNETH MUNDOPA and DEPUTY SHERIFF CHIVHU
Ruled By: MUTEMA J

HH230-15 : CHITUNGWIZA CENTRAL HOSPITAL vs MOTOR FIX (PVT) LIMITED and THE REGISTRAR OF THE HIGH COURT and SHERIFF OF THE HIGH COURT
Ruled By: MAWADZE J

CC11-21 : LIZIWE MUSEREDZA and 385 OTHERS vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PVT) LTD and OTHERS
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

SC29-09 : BLUE RANGERS ESTATES (PVT) LTD vs JAMAYA MUDUVIRI and THE MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: MALABA DCJ

Appealed
SC17-19 : ECONET WIRELESS (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY and COMMISSIONER GENERAL
Ruled By: MALABA DCJ, GOWORA JA and MAVANGIRA JA

HH212-13 : ELIZABETH CHIWUNDO vs ZIMBABWE NATIONAL FAMILY PLANNING COUNCIL
Ruled By: MATHONSI J

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA
Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

HH158-17 : THE TRUSTEES OF THE APOSTOLIC FAITH MISSION OF AFRICA vs ZULU ROSEWELL and OTHERS
Ruled By: MATANDA-MOYO J

HH559-14 : BASE MINERALS ZIMBABWE (PVT) LTD and PETER VALENTINE vs CHIROSWA MINERALS (PVT) LTD and CHIROSWA SYNDICATE and JOHN GROVES
Ruled By: MAFUSIRE J

SC03-15 : PORTLAND HOLDINGS LTD vs TUPELOSTEP INVESTMENTS (PROPRIETARY) LIMITED and TOBACCO WAREHOUSE & EXPORT t/a BAK LOGISTICS
Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

SC41-21 : YSMIN MAHOMMED vs TAWURAYI KASHIRI
Ruled By: KUDYA AJA

View Appeal
SC43-13 : ECONET WIRELESS (PVT) LTD vs TRUSTCO MOBILE (PROPRIETARY) LTD and TRUSTCO GROUP INTERNATIONAL (PROPRIETARY) LTD
Ruled By: MALABA DCJ, ZIYAMBI JA and GARWE JA

Appealed
SC65-14 : AIR ZIMBABWE (PVT) LTD and AIR ZIMBABWE HOLDINGS (PVT) LTD vs STEPHEN NHUTA and DEPUTY SHERIFF HARARE and SHERIFF OF ZIMBABWE
Ruled By: ZIYAMBI JA, GARWE JA and PATEL JA

SC71-14 : EDWARD MADZA and OTHERS vs THE REFORMED CHURCH IN ZIMBABWE DAISYFIELD TRUST and THE REFORMED CHURCH OF ZIMBABWE and NAISON TIRIVAVI and THE DUTCH REFORMED CHURCH
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

Appealed
SC20-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and DEPUTY SHERIFF HARARE N.O.
Ruled By: CHIDYAUSIKU, CJ

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA
Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

Appealed
SC28-18 : NYAKUTOMBWA MUGABE LEGAL COUNSEL vs GETRUDE MUTASA and DIDYMUS MUTASA and SHERIFF OF ZIMBABWE
Ruled By: GARWE JA, MAKARAU JA and GUVAVA JA

HB03-23 : LUKE DUBE vs SHERIFF OF ZIMBABWE N.O. and EXMIN SYNDICATE and PROVINCIAL MINING DIRECTOR MATABELELAND SOUTH N.O. and OTHERS
Ruled By: DUBE-BANDA J

SC42-23 : PETER VALENTINE and ALLEN SIBANDA vs BLOOMING LILLY INVESTMENTS (PVT) LTD and PROVINCIAL MINING DIRECTION MIDLANDS PROVINCE and MINISTER OF MINES AND MINERAL DEVELOPMENT
Ruled By: MAVANGIRA JA, UCHENA JA and MUSAKWA JA

SC46-23 : GAYNOR CHITSAKA and OTHERS vs LORRAINE HEYNS and OTHERS
Ruled By: MAKONI JA, CHIWESHE JA and CHATUKUTA JA

HH30-15 : MANPAC (PRIVATE) LIMITED vs PEOPLE'S OWN SAVINGS BANK and THE SHERIFF OF ZIMBABWE
Ruled By: DUBE J