It is a fundamental rule of our law that a person cannot benefit from his own wrongdoing.

It is a fundamental premise of every contract that both parties will duly carry out their respective obligations. See Green v Lutz 1966 RLR 633; ESE Financial Services (Pty) Ltd v Cramer 1975 (2) SA 805 (C)…,.

As is explained by CHRISTIE: Business Law in Zimbabwe…,.:

“There is a presumption that in every bilateral or synallagmatic contract, i.e. one in which each party undertakes obligations towards the other, the common intention is that neither should be entitled to enforce the contract unless he has performed or is ready to perform his own obligations….,.

…,. Conversely, a party who has caused the other to commit a breach cannot found a claim on the breach…,.”

The applicant further submitted that following his noting of the appeal in the Supreme Court, the provisional order was suspended. He was entitled to continue his farming operations and was therefore not approaching the court with dirty hands....,.

The principle that a litigant who fails to comply with a court order, and, therefore, has dirty hands, should be denied audience in the halls of justice is trite. See Deputy Sheriff, Harare v Mahleza & Anor 1997 (2) ZLR 425 (H) and ANZ v Minister of State for Information & Publicity & Ors 2004 (1) ZLR 538 (S).

However, the applicant cannot be said to have approached this court with dirty hands by reason of failure to comply with a court order. He did not ignore the judgment in HC12380/16. He filed an appeal. The noting of an appeal automatically suspends the operation of an order appealed against; see Econet (Pvt) Ltd v Minister of Information, Posts and Telecommunications 1998 (1) ZLR 149 (H)…,. 

The order having been suspended, it was within the applicant's right to return to tend to his crop.

The defendant and his wife did not advise the Sheriff and the purchaser of the lease agreement. The Sheriff dealt with the sale as if it was free of a lease. The purchaser did not have knowledge of the lease. This was part of the game.

The defendant cannot benefit from the lease agreement.

The respondent was employed by the appellant as manager of its Mutare branch. On 25 June 2002, a Mr G Good ("Mr Good"), who was the Director responsible for Sales and Marketing, addressed a letter to the respondent suspending him from duty with immediate effect without pay and benefits.

The suspension followed an investigation conducted at the instance of the appellant into the offences allegedly committed by the respondent. The offences essentially were dishonesty, theft of company property, and gross dereliction of duty.

Mr Good had considered both the findings of the investigation and the respondent's response to them, before suspending him. The letter of suspension referred to invited the respondent to report to the appellant's Mutare Branch for a disciplinary hearing on the 3rd of July 2002.

The hearing was to be held in terms of Step 2 of the "Disciplinary Structure and Levels of Authority", part of the appellant's Code of Conduct.

A day before that date, the respondent's legal practitioner addressed a letter to the appellant:

(a) Requesting a postponement of the hearing to 12 July 2002;

(b) Asking for confirmation that the respondent would be entitled to legal representation at the hearing; and

(c) Objecting to the respondent being represented at the hearing by a member of the Workers' Committee on the ground that, as a Branch Manager, he did not "belong" to the Workers' Committee. Also that, in any case, most of the allegations he was facing stemmed from his subordinates.

It would appear from the record that the request for legal representation of the respondent at the hearing, which was postponed to 10 July 2002, was denied.

The respondent's legal practitioners wrote again to the appellant on 9 July 2002, reiterating their argument that the respondent could not be represented by the Workers Committee at the disciplinary hearing. In the same letter the legal practitioners pointed out as follows:

"If indeed the idea of his being legal (sic) represented at the hearing is disagreeable, then we suggest that a mutually agreed managerial representative be appointed to represent him or alternatively the matter should be referred to the Ministry of Labour for adjudication.

Please note that under our advice Mr Gwekwerere will not be attending the hearing set for Wednesday the 10th July and will only attend a hearing which meets the minimum requirements of justice and fair play."

The disciplinary hearing was duly held, in the absence of the respondent, on 10 July 2002. He was found guilty as charged and dismissed from his employment.

After what I view as a half-hearted attempt to appeal to the Disciplinary Committee of the appellant, the respondent then applied to the High Court for a review of the proceedings leading to the decision to dismiss him. He cited two grounds of review, namely;

(i) That the procedure used in dismissing him was such as to deny him a fair opportunity to be heard; and

(ii) That no fair hearing was convened in terms of the Code of Conduct.

The court a quo found in favour of the respondent and ordered the appellant to reinstate him to his former employment without loss of salary or benefits.

Dissatisfied with the decision of the High Court, the appellant now appeals to this Court.

The appellant's main ground of appeal is that the court a quo erred in hearing the matter considering:

(a)...,. 

(b) That the appellant had, indeed, not furnished the court a quo with a full record of the disciplinary proceedings.

It is argued, in this latter respect, that the decision of the court a quo can therefore not be a review of such proceedings since the regularity or otherwise of the proceedings can only appear from the record....,.

The court a quo observed, correctly, that the appellant had failed to comply with Rule 260 of the High Court Rules requiring the lodging with the Registrar of the original record. The Rule is expressed in peremptory terms and reads as follows:

"(1) The clerk of the inferior court whose proceedings are being brought on review, or the tribunal, board or officer whose proceedings are being brought on review, shall within twelve days of the date of service of the application for review, lodge with the Registrar the original record, together with two typed copies, which copies shall be certified as true and correct copies. The parties to the review requiring copies of the record for their own use shall obtain them from the official who prepared the record."…,.

There is no dispute that the appellant failed to provide the full record to the Registrar, and, therefore, the court a quo.

Reference in the Head of Department's lengthy determination is made to no less than twenty annexures. The annexures, it is indicated, contained evidence substantiating the various charges brought against the respondent. Such evidence would have been relevant to a consideration of the merits of the case against the respondent.

As noted earlier, the learned judge a quo was alive to the shortcomings in the record submitted by the appellant. The respondent, too, could not have failed to appreciate the same. It was, no doubt, open to the learned trial judge to direct that the full record be made available, in the meantime postponing the hearing of the matter. The respondent, in his turn, would have been within his rights to demand the full record before the matter could be heard.

However, neither the learned trial judge, nor the respondent, chose to exercise these options.

Even though it was through its default that the full record was not provided, the appellant, nevertheless, in my view, is justified in its argument that the court a quo was not in a position to properly review the decision of the Head of Department without the full record of proceedings.

Counsel for the respondents sought an award of costs on a higher scale on the basis that this application is ill-conceived, unnecessary, and replete with basic errors; moreso, as there was no dispute between the parties.

While I agree with counsel for the respondents observations in respect of other issues he raised, I do not entirely share his overall sentiments.

At the commencement of the hearing of this matter, the court pointed out that the parties could resolve the issue without need for a full fledged hearing of the matter. Counsel for the respondents was not amenable to this on account of costs.

The conduct of the second respondent cannot be said to be without reproach.

The second respondent was unwilling to unconditionally agree to cancellation of the agency relationship. The second respondent was unwilling to unconditionally surrender the goods, and, most importantly, seemed unwilling to allow the applicant access to the goods, which goods the second respondent admits belong to the applicant.

In other words, the second respondent was only willing to deal with the issues on the second respondent's terms - nothing less.

Given those facts, I find no basis to reward the second respondent's conduct with a generous award of costs as prayed for. It is only fair and just, that, given the nature and the outcome of this case each party bears its own costs....,.

1....,. 

2. Each party is to bear its own costs.

The trial in this matter was held up by a preliminary argument on a special plea. The central question was whether or not the trial should be stayed and the matter referred to arbitration in terms of an arbitration clause in the contract between the parties upon which the plaintiff sued the defendant.

I reserved judgment. This now is my judgment.

The plaintiff's claim was for payment of a sum of money in respect of labour and materials supplied to, for and on behalf of the defendant, at the defendant's special instance and request. The allegations were that following a written contract between the parties, the plaintiff had been contracted, by the defendant, to install a water pump station, to procure and install water pumps thereat, and to connect them to an existing water reticulation system. The plaintiff claimed it had done the job in accordance with the contract but that the defendant had neglected to pay.

The cost of labour and material amounted to US$32,960. The plaintiff also said it was due a commission in the sum of US$3,296. It issued summons for payment of these two amounts.

The defendant filed a joint special plea and plea on the merits.

In the special plea, it said there was an arbitration clause in the agreement that obliged the parties to settle any dispute between them by arbitration.

On the merits, it said there was a dispute.

In essence, and in summary, the defendant averred, that, contrary to its obligations in terms of the contract, the plaintiff had circumvented the local authority in the procurement of the water pumps; that despite holding itself out as the expert in the field, the plaintiff had procured the wrong pumps; that the pumps had been rejected by the local authority; and, that owing to such breach by the plaintiff, the defendant had cancelled the contract.

The plaintiff's responses to the defendant's special plea on arbitration were fourfold....,. 

(i) The first ground relied upon by the plaintiff to resist a referral to arbitration was that the defendant could not be heard to want to rely on, and benefit from, the arbitration clause in the contract when it had itself ignored it prior to its purported cancellation of the contract....,.

To the plaintiff's first ground, that, the defendant had itself breached the arbitration clause by purporting to cancel the agreement without reference to arbitration, the defendant's response was that what would be referred to arbitration was a “dispute”. Cancellation was not a dispute. The defendant had had no cause to refer to arbitration....,.

Article 8(1) of the Model Law, the First Schedule to the Arbitration Act [Chapter 7:15], states:

“A court of law before which proceedings are brought in a matter which is the subject of an arbitration agreement, shall, if a party so requests, not later than when submitting his first statement on the substance of the dispute, stay those proceedings and refer the parties to arbitration unless it finds that the agreement is null and void, inoperative, or incapable of being performed.”

In my view, and in my own words, it is now settled, that, a clause in a contract to refer a dispute to arbitration is binding on the parties. A party is not at liberty to resile from that clause any time he may wish to do so.

In terms of Article 8 of the Model Law, the First Schedule of the Arbitration Act, where a party makes a timeous request for referral to arbitration, the court has to stay the matter and refer the dispute to arbitration unless the agreement is null and void, or is inoperative, or is incapable of being performed: see Zimbabwe Broadcasting Corporation v Flame Lily Broadcasting (Pvt) Ltd 1999 (2) ZLR 448 (H); Waste Management Services v City of Harare 2000 [1] ZLR 172 (H); and Capital Alliance (Pvt) Ltd v Renaissance Merchant Bank Ltd & Ors 2006 (2) ZLR 232 (H).

Thus, the one condition in Article 8 of the Model Law, the First Schedule to the Arbitration Act for referral is that there must exist a dispute between the parties.

In PTA Bank v Elanne (Pvt) Ltd & Ors 2000 (1) ZLR 156 (H), where the defendant had merely asked for further particulars, which had been furnished, but had not said anything else about the existence or otherwise of a dispute, except in counsel's heads of argument, the court declined the request for referral. It said that, among other things, since no dispute had been established, there was nothing to refer to arbitration.

In Zimbabwe Broadcasting Corporation v Flame Lily Broadcasting (Pvt) Ltd 1999 (2) ZLR 448 (H) the court initially declined to refer the matter to arbitration where the defendant had merely made the request before pleading to the merits. It was only upon the defendant's pleading to the merits that a dispute became apparent, thereby leading the court to exercise its discretion in favour of staying the proceedings and referring the dispute to arbitration.

In casu, the defendant met the one condition referred to above. It has pleaded on the merits.

There has emerged a clear dispute. It is this: is the plaintiff entitled to payment? Did it breach the contract by circumventing the local authorities? Did it supply the wrong pumps?

Another condition in Article 8 of the Arbitration Act, for referral to arbitration, is that the request for such referral must be made timeously. The Article says it must be made “…, not later than when submitting…, [the]…, first statement on the substance of the dispute.”

The defendant filed a special plea, in which the request of referral was made, and, in the same document, pleaded over to the merits, setting out the dispute.

Therefore, this other condition was also met.

Yet another condition in Article 8 of the Arbitration Act, for referral to arbitration, is that the arbitration agreement must not be null and void, or inoperative, or incapable of being performed.

It was common cause that this was not the case in this matter.

It did not form part of the plaintiff's grounds for resisting referral.

At any rate, the question whether the dispute between the parties to a contract falls within the ambit of an arbitration clause is primarily a question of interpretation of the agreement, in particular, the arbitration clause itself: see Independence Mining (Pvt) Ltd v Fawcett Security Operations (Pvt) Ltd 1991 (1) ZLR 268 (H); PTA Bank v Elanne (Pvt) Ltd & Ors 2000 (1) ZLR 156 (H); and Zimbabwe Broadcasting Corporation v Flame Lily Broadcasting (Pvt) Ltd 1999 (2) ZLR 448 (H).

Furthermore, once it is established that the dispute falls within the ambit of the arbitration clause, the onus to show why the court proceedings should not be stayed rests on the party challenging the reference to arbitration, i.e., the plaintiff in this case: see Capital Alliance (Pvt) Ltd v Renaissance Merchant Bank Ltd & Ors 2006 (2) ZLR 232 (H)....,.

I understood counsel's argument on the point to be, that, if the defendant felt that the plaintiff had been in breach of the contract, it ought to have referred the matter to arbitration instead of just taking it upon itself to cancel. The plaintiff, having decided to issue summons out of this court, without first having gone for arbitration, it hardly lay in the mouth of the defendant to cry foul.

Even though it did not exactly put it that way, the plaintiff was probably saying what is good for the goose should be good for the gander, also, or, an eye for an eye.

But, this hardly constitutes sound legal argument. Two wrongs do not make a right.

At any rate, having accepted the existence of the arbitration clause, the onus lay on the plaintiff, as the party resisting arbitration, to show why the matter should not be stayed and referred to arbitration. The plaintiff could hardly shift that onus by merely pointing to an alleged earlier breach by the defendant.

Since the plaintiff did not say exactly that, was it then implying or insinuating, that, the parties had, or should be deemed, by their conduct, to have tacitly abandoned arbitration in favour of a direct approach to a court of law?

In Bitumat Ltd v Multicom Ltd 2000 (1) ZLR 637 (H), this court (per SMITH J) said this…,;

“It may well be that at some stage after the dispute has arisen, because of changed circumstances, the parties concerned agree that the matter should be determined by a court of law, rather than by arbitration in terms of the agreement in question.

In these circumstances, the decision of the parties, to abandon the arbitration clause in their agreement, must be specific and clearly evidenced. It cannot be implied by the conduct of, or correspondence between the parties – it must be explicit.

After all, if the arbitration clause is contained in a written agreement, then the decision to change the agreement must either be in writing or else so clearly evidenced by the conduct of the parties that there is no room for doubt.”

It would have been far-fetched for the plaintiff to have even remotely suggested or implied that the parties had tacitly agreed to abandon arbitration in favour of a direct approach to this court.

There was nothing of the sort.

The defendant simply decided that the plaintiff had breached the contract. It did not perceive a dispute. The contract provided for cancellation by the employer, i.e. the defendant, on the happening of certain events. The defendant had cancelled.

That is not to say it was right.

But, if the plaintiff felt that it was not right, and it wanted the matter adjudicated upon, then, it had to follow the dispute resolution mechanism provided for in the contract. This entailed the dispute being referred for adjudication in the first place, and then followed by arbitration if adjudication did not resolve it.

So, on this basis, the plaintiff's first ground for resisting arbitration cannot succeed.

It is erroneous to contend, that, if the appeals are heard without his participation he would have been denied the opportunity to be heard. Such opportunity was afforded him before the order against him was issued. After that order, he had the right to challenge that judgment but he chose not to.

He cannot seek to ride on his neighbours' appeal to pursue his own case.

The appellants did not have locus standi to launch the second application because their claim to office was anchored on their initial meeting of 22 September 2018 which was void ab initio and of no force or effect. The respondents, however, as the elected office bearers of the Church, had the locus standi to bring the first application.

The findings of the court a quo, in these respects, were correct and are upheld in this appeal....,.

1....,.

2. The appeal be and is hereby dismissed in its entirety with costs.

On 9 April 2021, I struck off this matter from the roll and gave reasons extempore. The applicant has requested for written reason for my decision. These are the reasons.

In this application, the applicant seeks to challenge the decision of the High Court handed down on 3 May 2018 dismissing his application for condonation and leave to appeal in person. The application was purportedly filed in terms of Rule 21 of the Supreme Court Rules 2018.

The applicant seeks an order in the following terms:

“1. The application against refusal for condonation for the late filing of an appeal be and is hereby granted.

2. The appellant is hereby granted leave to prosecute an appeal in person to the High Court.

3. The appellant shall file his notice of appeal by the Registrar of the High Court.”

The applicant was convicted for contravening section 65(1) of the Criminal Law (Codification and Reform) Act [Chapter 9.23] and sentenced to 20 years imprisonment of which 2 years were suspended on condition of future good behaviour on 19 November 2013 by a Regional Magistrate at Chinhoyi Regional Court.

He did not appeal against both conviction and sentence within the requisite period.

On 21 March 2017, the applicant applied for condonation of late filing of an appeal and leave to appeal in person with the High Court.

That application was dismissed by CHATUKUTA J on 3 May 2018 under case number CON 61/17.

On 29 May 2018, the applicant filed a similar application before the same court.

It is pertinent to note, that, in this second application, the applicant did not disclose the fact that he had a similar application dismissed on 3 May 2018 by the same court.

The respondent did not file any response to that second application.

This second application was heard and granted by MUNANGATI-MANONGWA J on 22 July 2019 under case number CON 142/18.

The applicant did not, however, proceed to file the appeal despite the granting of that order.

Instead, on 13 August 2020, the applicant filed another application, in case number CON 308/20, for extension of time within which to file the appeal. This application sought an extension of time within which to comply with the order granted in CON 142/18.

In response to this latest application, the respondent contended, that, in case number CON 142/18 the applicant did not disclose to the court that his initial application had been dismissed in CON 61/17 on 3 May 2018. The respondent thus contended, that, the order in case number CON 142/18 was a nullity as the court was functus officio.

As a consequence, TAGU J dismissed the application to extend the order in CON 142/18 on 3 November 2020.

The applicant, having considered and conceded that both orders by MUNANGATI-MANONGWA J and TAGU J were invalid at law, decided to approach this Court in a bid to challenge the order of 3 May 2018.

In that case (CON 61/17) the Judge had found that the period of delay of 2 and a half years (it was in fact 3 and a half years) was inordinate, and that the reasons for the delay were also contradictory and were not reasonable in the circumstances.

The Judge a quo also held, that, there were no prospects of success on appeal against both conviction and sentence, as such, the application was dismissed in toto.

It is that determination that the applicant seeks to challenge but he is out of time hence this application titled 'application against refusal of condonation and leave to prosecute his appeal in person in terms of Rule 21 of the Supreme Court Rules 2018.'

This application was filed on 23 December 2020 - some two years and seven months after the determination in question. The delay is certainly inordinate.

In his submissions, the applicant averred, that, he was in fact appealing against the court a quo's determination of 3 May 2018. It was in this regard that he indicated that this application was in terms of Rule 21 of the Supreme Court Rules 2018 as he had not appealed in time.

1. Whether or not there is a proper application before this Court.

2. Whether or not the applicant has established a good cause for the granting of the application.

This application was purportedly filed in terms of Rule 21 of the Supreme Court Rules 2018. That Rule provides that:

“Application for extension of time or leave to appeal out of time

(1) A person who wishes to apply for an extension of time in which to institute an appeal in terms of Rule 18 or for leave to appeal in terms of Rule 20 shall do so in Form 5 signed by himself or herself or his or her legal representative.

(2) The form referred to in subrule (1) shall be accompanied either by the documents required in terms of sub-rule (1) of Rule 18 or the documents required in terms of sub rule (2) of Rule 20, whichever Rule is applicable, together with an affidavit setting out why the applicant did not institute his or her appeal or apply for leave within the time specified.”

It is trite, that, a litigant approaching this Court must provide an acceptable explanation for failure to comply with the rules of the court. The explanation, in the founding affidavit, must be bona fide and satisfactory. The applicant must give a satisfactory explanation for the delay in noting the appeal and show that there are prospects of success in the intended appeal.

The application under this Rule is, in effect, an application to appeal out of time and is not in itself an appeal. The relief sought must relate to the purpose of the application which is to appeal out of time.

It is clear, from the founding affidavit, and the relief sought, that, the applicant is at a loss as to the nature of the relief envisaged under Rule 21 of the Supreme Court Rules 2018 and the relief he seeks before me.

The application ought to be for condonation of his failure to note the appeal in time and for leave to file the appeal out of time.

The current application was filed on 23 December 2020, two years seven months out of time. The applicant has not sought for condonation for the failure to comply with this Court's rules. In essence, the applicant has not tendered any reasons for the delay herein.

Without a proper application for condonation having been made, the applicant is therefore improperly before this Court.

In Bonnyview Estates (Private) Limited v Zimbabwe Platinum Mines (Private) Limited and Anor SC01-05 MAKARAU JA…, noted that:

“Condonation is an indulgence granted when the court is satisfied that there is good and sufficient cause for condoning the non-compliance with the Rules. Good and sufficient cause is established by considering, cumulatively, the extent of the delay, the explanation for that delay, and the strength of the applicant's case on appeal, or the prospects of its success. This is trite.”

See S v Sibanda 2001 (2) ZLR 524.

In casu, such a consideration is not possible as the explanation provided pertains to the delay from the time of conviction and sentence, on 19 November 2013, to the time when he filed his application for condonation and leave to appeal in the High Court on 21 March 2017.

The import of the applicant's case is that I must consider those reasons favorably and grant the application that was placed before the High Court.

The delay that ought to have been explained clearly is the delay from 3 May 2018 to 23 December 2020 when this application was filed with the Supreme Court.

It is, however, discernible from the history of the matter that after the dismissal of the first application the applicant made two applications before the same court seeking condonation and extension of time within which to note his appeal.

This was, however, not the pith of his explanation before me.

These applications were premised on misrepresentations by the applicant in not disclosing the fate of his first application. He thus wasted time pursuing irregular applications.

It may also be noted, that, despite the granting of the second application, albeit irregularly, the applicant did not file his appeal until the time given for filing the appeal lapsed hence he re-approached the same court for an extension of that lapsed order.

The applicant was not serious.

I am of the view that the delay, from 3 May 2018 to 23 December 2020, is inordinate and the explanation thereof is not acceptable at all. It is simply a result of his own misrepresentation to the court a quo and this cannot rebound to his benefit.

The tenor of the contentions made by the appellant in respect of the second ground of appeal disingenuously relates more to the counter application that was struck off and not appealed against rather than the provisional order that it sought to impugn.

The provisional order protected the first respondent's right to legality, which constitutes a vital aspect of the rule of law.

The consolidated matter in which, inter alia, the first respondent sought the discharge of dishonored Bankers Acceptances drawn by the appellant and secured by the title deed was pending as was the claim of vindication that was lodged by the appellant.

The case was awaiting determination in accordance with the law.

This Court had effectively disgorged the appellant of the ill-gotten duplicate deed and nullified its efficacy on 7 October 2019.

The appellant's refusal to voluntarily surrender the duplicate deed was inimical to the first respondent's real rights in the security that are awaiting determination. The provisional order could not, and did not, determine the issues pending in HC8113/16.

It was remiss of the appellant to motivate the second ground solely on the legality of the possession of the original deed by the first respondent while studiously ignoring the legality of its own stranglehold on the duplicate deed.

This is an appeal against the entire judgment of the Labour Court handed down on 10 March 2017. The Labour Court dismissed the appellant's application for review challenging the disciplinary proceedings that led to his dismissal from the first respondent's employment.

There were no appearances for the second and third respondents.

The appellant was employed by the first respondent as its Chief Executive Officer (hereinafter “CEO”) between the period 2009 until the dissolution of its Board in 2013.

The appellant had been employed on a contractual basis with his subsisting contract having been renewed in May 2011.

On 14 November 2013, the then Acting Secretary for Information, Media and Broadcasting Services, wrote to the appellant placing him on leave with full pay until further notice. The letter stated, that, the appellant was placed on leave due to the exacting challenges faced by the first respondent which required urgent intervention through a full audit of its affairs. The appellant was barred from visiting the first respondent's premises or issuing any instructions to its staff.

On 30 January 2014, the appellant was notified of the allegations of misconduct against him which were said to have been unearthed during the audit. The initial decision to place the appellant on paid leave was rescinded and substituted with leave without pay pending determination of the allegations against him.

On 18 November 2014, the appellant was duly served with a notice by the first respondent's legal representatives, to attend a disciplinary hearing to be presided over by the second respondent.

The appellant faced 32 charges of misconduct which were contained in a schedule attached to the notice of the hearing.

When the disciplinary proceedings began, the first respondent abandoned 21 of the charges against the appellant, leaving only 11.

At the hearing, the appellant argued, that, it was not competent for the first respondent to undertake disciplinary proceedings based on allegations flowing from an expired employment contract.

This argument was based on his interpretation of the Labour (National Employment Code of Conduct) Regulations 2006 (hereinafter “SI15/2006”).

Counsel for the appellant contended, that, for a person to be properly charged with misconduct, he or she must still be an employee in terms of a subsisting employment contract at both the time of the commission of the offence and institution of misconduct proceedings.

He further submitted, that, what were now termed acts of misconduct had been properly approved by the first respondent's Board.

Counsel further submitted, that, the integrity of the disciplinary proceedings was further thrown into doubt by the direct role played by the Minister of Information Media and Broadcasting Services, who initiated his suspension.

The first respondent disputed the appellant's contention that it sought to improperly charge him in terms of an expired employment contract.

It averred, that, the parties were engaged in a continuous employment relationship which was highlighted by the renewal of the appellant's contract in May 2011. Counsel for the first respondent placed reliance on the Lesotho case of Limkokwing University of Creative Technology Lesotho (Pty) Ltd v Mosia Nkoko and Anor LC/REV 58/12, whose import was that an employment relationship becomes continuous where the contract of employment is renewed immediately upon the expiry of a preceding one.

Accordingly, he argued, since the acts of misconduct in question were committed during the subsistence of an employment relationship between the parties, the appellant was properly charged.

The disciplinary hearing, chaired by the second respondent, found the appellant guilty of misconduct in respect of 7 of the 11 charges levelled against him. These were counts 1, 2, 3, 6, 7, 21 and 23 on the charge sheet.

It is not in dispute that the second respondent did not pronounce the verdict of dismissal against the appellant. This was, rather, done by the first respondent.

Dissatisfied with the disciplinary hearing's decision, the appellant filed an application for review in the Labour Court.

The basis of the application was that there was gross irregularity, gross irrationality, and illegality in the manner that the disciplinary proceedings were conducted and the decision reached.

In particular, the appellant alleged gross irregularity and irrationality, or, alternatively, illegality based on its review grounds 1.1 – 1.4. He went on to allege gross irrationality, and, alternatively, illegality and procedural irregularity on the basis of a second set of review grounds, that is, grounds 3 - 3.5.

While the manner the review grounds are formulated is somewhat confusing, it is apparent that the appellant effectively submitted two sets of review grounds, each with its own alternative grounds for review.

The court a quo did not advert to the second set of review grounds (nor the alternative thereof), but, determined the matter on the basis of the first set which alleged irregularity in the proceedings as follows:

1. A number of charges levelled against the appellant related to alleged acts of misconduct arising from a contract of employment which had expired;

2. The first respondent, at all material times, either directed or approved all acts of the appellant which were then later deemed as misconduct on his part;

3. The proceedings were initiated by the Minister of Information Media and Broadcasting Services who was not a party to the contract of employment; and

4. The first respondent improperly imposed a penalty before the disciplinary proceedings were completed, contrary to SI15 of 2006 and section 12B(4) of the Labour Act [Chapter 28:01].

The appellant consequently sought nullification of the disciplinary proceedings and reinstatement as an employee of the first respondent.

The court a quo dismissed the appellant's application for review.

It held, that, the acts of misconduct in question were committed during the subsistence of the parties employment relationship.

The court found, that, the appellant did not adduce any evidence to disprove the claim that he enjoyed a continuous employment relationship with the first respondent during the period 2009 to 2013. It stated, that, the renewal of the contract, in May 2011, did not vary the essential terms of his employment as he remained both the Principal Accounting Officer and Chief Executive Officer (CEO) of the first respondent.

For this finding, the court cited an excerpt from the case of Van Der Post v Twyfelhock Diamond Prospecting Syndicate (1903) 20 SC 213 to the effect, that, where several or a series of contracts between the same parties are concluded to effect a single purpose, they should be treated as one contractual document.

The court a quo also relied on Air Zimbabwe v Chiku Mensa & Anor SC89-10 as an authority supporting its decision to uphold the outcome of the disciplinary proceedings.

It was stated in that case, that, a person guilty of misconduct should escape the consequences of his misdeeds because he is innocent, not because of a failure to conduct proceedings properly by another employee.

In relation to the appellant's third ground of review, the court held, that, the disciplinary proceedings conducted by the second respondent were not vitiated by virtue of the Minister of Information and Media Broadcasting (and not the first respondent, his former employer) having authored the letter of suspension. The court took the view, that, the absence of a letter of suspension was, in any case, not fatal to the conduct of disciplinary proceedings. It cited in this respect the following sentiments of the court in Shumbayaonda v Ministry of Justice Legal and Parliamentary Affairs and Anor SC11-14:

“…,. Suspension is not a prerequisite to the holding of disciplinary proceedings, and, a disciplinary hearing does not have to take place during the period of suspension….,.”

Finally, in so far as the final ground of review was concerned, the court a quo quoted the part of the second respondent's written decision of 15 April 2015, that specifically convicted the appellant of acts of misconduct 1,2,3, 6,7, 21 and 23. The excerpt also indicated that the second respondent had dismissed some preliminary issues raised on behalf of the appellant. A chronological analysis of the events that then ensued satisfied the court a quo, that, the first respondent had not 'prematurely concluded' the disciplinary proceedings, as alleged by the appellant.

In the final result, the court a quo reached the decision that the disciplinary proceedings against the appellant had not been irregularly conducted.

Aggrieved by the judgment of the court a quo, the appellant approached this Court on appeal. He prays that the decision of the court a quo be set aside and substituted with an order granting the application for review and setting aside both the disciplinary proceedings and his dismissal. His grounds of appeal are set out as follows:

1....,. 

2. The court a quo erred in law in failing to find that the first respondent, through its various agents, either directed or approved all the acts of the appellant which were then later construed as misconduct. The court a quo ought to have found, that, the first respondent could not regard, as misconduct, the actions it either directed or approved....,.

At the hearing of the appeal, the first respondent raised a preliminary point challenging the validity of the appellant's second ground of appeal.

It asserted, that, the ground of appeal did not raise a question of law. Rather, it attacked the factual finding of the court to the effect that the appellant had tendered no evidence to support his assertion that the first respondent's Board had approved most of the actions that formed the basis of the misconduct charges levelled against him.

Per contra, the appellant contended, that, the impugned ground of appeal raised a procedural issue that attributed the acts of the employee to the employer itself, that is, the first respondent.

Counsel for the appellant referred to Zvokusekwa v Bikita Rural District Council SC44-15, which held, that, it was not the formulation but the substance of a ground of appeal that matters.

After hearing argument from both counsel, the court found merit in the submissions of the first respondent and upheld its point in limine.

The court noted, that, the court a quo clearly found, as a matter of fact, that, the appellant had not tendered any evidence to substantiate the assertion that the first respondent's Board had indeed approved the actions that were then converted into misconduct charges against him.

As a factual finding, the appellant could only have successfully impugned it upon proof that the finding was so grossly unreasonable that no other court, properly applying its mind to the issue, could have reached the same conclusion: see Barros v Chimphonda 1999 (1) ZLR (S) 58…,.

The appellant, not having proved any such misdirection on the part of the court a quo, the court accordingly struck out the appellant's second ground of appeal.

The law of recusal, and the guarantees in section 69(2) of the Constitution, require some degree of reciprocity of fairness and good faith from the apprehensive litigant. In other words, a litigant alleging a violation of his or her right to a fair trial must not have created or contributed to the dire circumstances that he or she finds himself or herself in.

In my judgment, bias or an apprehension of bias, on the part of the judge, cannot reasonably be inferred in circumstances where the judge accedes to indulgences sought by a litigant and the litigant decides to ignore its undertakings.

The four applicants are the fathers and guardians of their respective minor daughters, all four of whom are pupils at Arundel School, a private girls school situated in Harare.

The first and second respondents are the Trustees and Headmistress of the School.

The third respondent is the Minister of Primary and Secondary Education, cited in his official capacity, and the fourth respondent is the Attorney-General, also cited in his official capacity.

The applicants seek various declarators and consequential relief in respect of the alleged violation of their daughters constitutional rights. They also seek an order for costs against the first and second respondents on a legal practitioner and client scale.

The first and second respondents are opposed to the application and aver that it be dismissed with costs.

The third and fourth respondents have indicated that they will abide by the Court's decision.

Before 2015, the long-established practice at the School was to commence the day with prayers in the School chapel. Pupils were free to attend if they so wished and a separate room was set aside for those of other faiths who did not attend chapel on religious grounds. This inter-denominational position was confirmed by the School's website on the internet.

The applicants and their daughters are all practising Jehovah's Witnesses. Their beliefs are not similar to those of other Christian denominations.

Upon application to the School for the admission of their daughters, each of the applicants completed a standard application form in which they indicated that they were Jehovah's Witnesses. Their daughters were duly accepted for admission.

At the beginning of 2015, a new Headmistress was appointed to run the School.

She sought to introduce compulsory chapel attendance for all pupils at the School in order to reinforce its collegiality. The applicants wrote several letters to the Headmistress as well as the School's lawyers to register their complaints. On 17 March 2015, after taking legal advice, the Headmistress wrote to the applicants insisting that their daughters were required to attend chapel and that, if they failed to comply, they would be deemed to have been voluntarily withdrawn and removed from the School.

On 19 March 2015, after the girls refused to attend chapel and surrendered their books, they were told to go home.

The applicants then filed an urgent application to the High Court, in Case No.2717/15. Following a consent order granted on 27 March 2015, the girls were allowed to continue to attend the School, without being compelled to attend chapel, pending the determination of the present application.

The applicants aver, that, freedom of conscience includes the right to practice and propagate one's religion as well as the right not to be compelled to subscribe to any religion.

In this respect, the actions of the Headmistress violate their daughters freedom of conscience and their right to protection against discrimination on the ground of religion.

Moreover, although any person is entitled to establish and maintain an independent educational institution, he or she cannot discriminate in the manner in which the institution is administered. Thus, the conduct of the Headmistress also violates their daughters right to education.

The applicants, accordingly, seek declarators that the respondents actions are in violation of their daughters freedom of conscience and religion, right to protection against discrimination, and right to education.

They also seek an order precluding the respondents from refusing the admission of their daughters to Arundel School on the basis of their religious beliefs and failure to attend chapel.

On behalf of the School, the Headmistress relies upon the standard enrolment form signed by the applicants upon the admission of their daughters into the School.

She avers, that, this agreement, which constitutes a binding contract, expressly provides, that, any latitude from chapel attendance is at her sole discretion and that her decision in that regard is final and binding.

The agreement also provides, that, any changes to the School rules must be observed and followed by the signatory parents and their daughters.

One of her functions is to articulate the values of the School, and, morning chapel is the only time when pupils come together in an environment most conducive for the values and ethos of the School to be properly impacted upon them.

It is not compulsory for any pupil to participate in any activity, such as singing or praying, or to abandon her beliefs during chapel. What is compulsory is that all pupils attend and evince respectful behaviour in chapel.

The applicants were not forced to enrol their daughters at the School.

They should respect the rights of the School's founding members who established an educational institution that conforms with and pursues their own values and beliefs. The School authority is constitutionally entitled to establish and maintain the School and impose reasonable rules to be followed at the School. It should not be precluded from pursuing its religious beliefs and insisting on anyone who joins the School to respect its views.

Such policy is reasonable and those who agree to join the School, despite their religious views, must be taken to have necessarily waived their own constitutional rights.

For the sake of completeness, it is necessary to set out the relevant provisions of the standard application form of admission to the School.

Upon signature, each of the applicants acknowledged and understood that his daughter had been accepted for entry as a day student at the School on the following express terms and conditions:

“4. That, the School's rules and regulations, as amended from time to time, shall bind and be observed by my daughter, and, insofar as they concern me, also by me. I further accept, that, by signing this enrolment contract I will be bound by the Arundel Parents Association constitution, which is available to me on request.

5. That, the School is founded on Christian principles, and all pupils are expected to comply with the rules and routines thus implied. No exemption from any part of the curriculum will be considered on religious grounds. Any latitude concerning Chapel attendance, holy days, special meal requirements, dress codes etc. will be at the sole discretion of the Head, whose decision will be accepted as final and binding on my daughter.”

Section 2 of the Constitution re-affirms the supremacy of the Constitution in terms that are significantly wider and more inclusive than those embodied in its precursor in the former Constitution, as follows:

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

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

Also relevant for present purposes is section 47 of the Constitution which recognises the existence of rights other than those contained in the Declaration of Rights:

“This Chapter does not preclude the existence of other rights and freedoms that may be recognised or conferred by law, to the extent that they are consistent with this Constitution.”

As I have already indicated, the specific relief sought by the applicants relates to the alleged violation of their daughters freedom of conscience and religion, right to protection against discrimination, and right to education, as enshrined in sections 60, 56 and 75 of the Constitution. These sections, in their relevant portions, provide as follows:

“56 Equality and Non-discrimination

(1) All persons are equal before the law and have the right to equal protection and benefit of the law.

(2)….,.

(3) Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their nationality, race, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability or economic or social status, or whether they were born in or out of wedlock.

(4) A person is treated in a discriminatory manner, for the purpose of subsection (3), if —

(a) They are subjected, directly or indirectly, to a condition, restriction or disability to which other people are not subjected; or

(b) Other people are accorded, directly or indirectly, a privilege or advantage which they are not accorded.

(5) Discrimination on any of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair, reasonable and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom.

(6)…,.”

“60 Freedom of Conscience

(1) Every person has the right to freedom of conscience, which includes —

(a) Freedom of thought, opinion, religion or belief; and

(b) Freedom to practice and propagate and give expression to their thought, opinion, religion or belief, whether in public or in private and whether alone or together with others.

(2) No person may be compelled to take an oath that is contrary to their religion or belief or to take an oath in a manner that is contrary to their religion or belief.

(3) Parents and guardians of minor children have the right to determine, in accordance with their beliefs, the moral and religious upbringing of their children, provided they do not prejudice the rights to which their children are entitled under this Constitution, including their rights to education, health, safety, and welfare.

(4) Any religious community may establish institutions where religious instruction may be given, even if the institution receives a subsidy or other financial assistance from the State.”

“75 Right to Education

(1) Every citizen and permanent resident of Zimbabwe has a right to —

(a) A basic State-funded education, including adult basic education; and

(b) Further education, which the State, through reasonable legislative and other measures, must make progressively available and accessible.

(2) Every person has the right to establish and maintain, at their own expense, independent educational institutions of reasonable standards, provided they do not discriminate on any ground prohibited by this Constitution.

(3) A law may provide for the registration of educational institutions referred to in subsection (2) and for the closing of any such institutions that do not meet reasonable standards prescribed for registration.

(4) The State must take reasonable legislative and other measures, within the limits of the resources available to it, to achieve the progressive realisation of the right set out in subsection (1).”

In support of their contention, that, their daughters right to education has been violated by the School, the applicants also rely upon section 4 of the Education Act [Chapter 25:04] which provides as follows:

“(1) Notwithstanding anything to the contrary contained in any other enactment, but subject to this Act, every child in Zimbabwe shall have the right to school education.

(2) Subject to subsection (5), no child in Zimbabwe shall —

(a) Be refused admission to any school; or

(b) Be discriminated against by the imposition of onerous terms and conditions in regard to his admission to any school;
on the grounds of his race, tribe, place of origin, national or ethnic origin, political opinions, colour, creed or gender.

(3)…,.

(4) Any person who contravenes subsection (2) shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

(5) It shall be a defence in any criminal proceedings for an offence under subsection (2) for the accused person to show, that, though he committed the act alleged against him —

(a) He committed the act on the grounds of the creed of the child against whom the act was committed, but he did so because the school concerned is controlled by a bona fide religious organization and members of that religious organization or adherents of a particular religious belief are accorded preference in admission to that school; or

(b) He committed the act on the grounds of the gender of the child against whom the act was committed, but...,.”

Lastly, but very importantly, there is section 86 of the Constitution which permits the limitation of fundamental rights in the following circumstances:

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

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

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

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

(c) The nature and extent of the limitation;

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

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

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

(3) No law may limit the following rights enshrined in this Chapter, and no person may violate them —

(a) The right to life, except to the extent specified in section 48;

(b) The right to human dignity;

(c) The right not to be tortured or subjected to cruel, inhuman or degrading treatment or punishment;

(d) The right not to be placed in slavery or servitude;

(e) The right to a fair trial;

(f) The right to obtain an order of habeas corpus as provided in section 50(7)(a).”

As appears from sub-section (3) of section 86 of the Constitution, none of the rights allegedly violated in casu falls into the category of inviolable rights enumerated in that subsection.

Accordingly, in the event that the applicants are able to establish any violation of their rights, it will be necessary to measure such prima facie violation as against the rights and freedoms of others, in terms of subsection (1), and within the context of the permissible derogations contemplated in sub section (2)....,.

For the purpose of addressing the merits of this aspect of the matter, it is necessary to consider three separate but inter-related issues, to wit:

(i) The nature and scope of the applicants freedom of religion as guaranteed by section 60 of the Constitution.

(ii) Whether and the extent to which that freedom has been infringed by the School.

(iii) If so, whether any such infringement constitutes a permissible limitation by virtue of subsections (1), (2) or (3) of section 86 of the Constitution.

Subsection (1) of section 60 of the Constitution defines the right to freedom of conscience as including, inter alia, freedom of religion or belief and freedom to practise and propagate and give expression to one's religion or belief, whether in public or in private and whether alone or together with others.

Subsection (3) affirms the right of parents and guardians to determine, in accordance with their beliefs, the moral and religious upbringing of their minor children, provided they do not prejudice the constitutional rights of their children, including their rights to education, health, safety, and welfare.

The essence of the applicants religious credo, as appears from their founding papers, is that there is no hell of fire and torment; that places of worship should not contain any religious symbols; that religions and faiths should not be mixed; and that there can only be one truth from God - which truth they hold.

With specific reference to religious symbols at the School, they object to the three crucifixes atop, outside and inside the chapel, as well as the foundation stone at the entrance of the chapel. These symbols, so they believe, contravene the first Commandment against idolatry.

The fundamental doctrinal beliefs and practices of Jehovah's Witnesses may also be gleaned from the following article by JOHN GORDON MELTON in the online Encyclopaedia Britannica:

“Witnesses hold a number of traditional Christian views but also many that are unique to them. They affirm that God, Jehovah, is the most high. Jesus Christ is God's agent, through whom sinful humans can be reconciled to God. The Holy Spirit is the name of God's active force in the world. Witnesses believe that they are living in the last days, and they look forward to the imminent establishment of God's kingdom on earth, which will be headed by Christ and jointly administered by 144,000 human co-rulers (Revelation 7:4). Those who acknowledge Jehovah in this life will become members of the millennial kingdom; those who reject him will not go to hell but will face total extinction….,.

The Witnesses teachings stress strict separation from secular government.

Although they are generally law-abiding, believing that governments are established by God to maintain peace and order, they refuse, on biblical grounds, to observe certain laws. They do not salute the flag of any nation, believing it an act of false worship; they refuse to perform military service; and they do not participate in public elections….,.

The Witnesses distrust of contemporary institutions extends to other religious denominations, from which they remain separate. They disavow terms such as minister and church….,.

Witnesses also oppose certain medical practices that they believe violate Scripture. In particular, they oppose blood transfusions because of the scriptural admonition against the consumption of blood (Leviticus 3:17)….,.

In the early years of the movement, members met in rented halls, but, under Rutherford, the Witnesses began to purchase facilities that they designated Kingdom Halls….,. Each Kingdom Hall has an assigned territory and each Witness a particular neighbourhood to canvass….,.”

The following excerpt from Wikipedia, as at 19 December 2015, elaborates Jehovah's Witnesses aversion to the mixing of religions and their self-imposed injunction to remain separate from the world at large:

“Jehovah's Witnesses believe that the Bible condemns the mixing of religions, on the basis that there can only be one truth from God, and, therefore, reject interfaith and ecumenical movements. They believe, that. only their religion represents true Christianity, and that other religions fail to meet all the requirements set by God and will soon be destroyed. Jehovah's Witnesses are taught, that, it is vital to remain 'separate from the world'. The Witnesses literature defines the 'world' as 'the mass of mankind apart from Jehovah's approved servants and teach that it is morally contaminated and ruled by Satan. Witnesses are taught, that, association with 'worldly' people presents a 'danger' to their faith, and are instructed to minimize social contact with non-members to better maintain their own standards of morality.”

Counsel for the applicants places great reliance upon the case of Dzvova v Minister of Education, Sports & Culture and Others 2007 (2) ZLR 196 (S) for the broad submission, that, fundamental rights must invariably be respected.

In that case, the Supreme Court affirmed the general proposition, that, the rules of the school in question could not be applied to derogate from the constitutional rights of its pupils, including their freedom of religion.

However, the ratio decidendi of the Court was not predicated on any constitutional point, but, rather, on the principle that the power to make rules on school discipline and to regulate the admission, punishment, and expulsion of pupils was reposed in the Minister of Education and was therefore outside the remit of the school Head.

Consequently, Dzvova v Minister of Education, Sports & Culture and Others 2007 (2) ZLR 196 (S) does not, in my view, take the matter any further in resolving the issues at hand.

Moreover, it is also distinguishable from the factual situation in casu in that the applicant in that case had not subscribed to any contract of admission entitling the school to interfere with the enjoyment of his child's freedom of conscience and religion.

Another more recent case involving facts similar to those in Dzvova v Minister of Education, Sports & Culture and Others 2007 (2) ZLR 196 (S) is that of Kapasula & Others v The Headmistress Hermann Gmeiner High School N.O. & Others Case No. SC153-10.

The applicants daughters in that matter were allegedly excluded from enrolment to the first respondent's school because their heads had not been shaven or trimmed for religious reasons. This was in apparent contravention of the school's rules and regulations stipulating that all pupils must always be smart with short and neatly combed hair.

The first respondent's opposition, in the High Court, did not addresss the merits of the matter, but merely relied on the preliminary objections that the application was not urgent, and that, in any case, the laws prohibiting discrimination did not apply to the school since it was a private non-governmental institution.

On referral to the Supreme Court, under section 24(2) of the former Constitution, the Court was called upon to determine three issues:

(i) Whether the refusal to admit the children into the school on the basis of their failure to shave or trim their hair was discriminatory on the ground of creed in contravention of section 19(1) of the former Constitution;

(ii) Whether the decision of the school, to refuse admission into the school, was done under the authority of a law as envisaged in section 19(5) of the Constitution; and

(iii) If so, whether such law was reasonably justifiable in a democratic society.

The applicants argued, that, the first respondent's actions were clearly discriminatory and in contravention of section 19 of the Constitution. Furthermore, the school's rules and regulations did not constitute a law and were not made under the authority of any law, i.e. the Education Act or its subsidiary regulations.

The application before the Supreme Court was not opposed by any of the respondents.

In the event, the Court granted an order simply prohibiting the school from refusing the children's admission into the school on the basis of the length of their hair.

There appear to have been no written reasons for the judgment.

As with Dzvova v Minister of Education, Sports & Culture and Others 2007 (2) ZLR 196 (S), Kapasula & Others v The Headmistress Hermann Gmeiner High School N.O. & Others SC153-10 is clearly distinguishable from the situation in casu.

The school's rules and regulations were not authorised under any law within the contemplation of section 19 of the Constitution and were therefore patently ultra vires.

More significantly, the applicants in both cases had not subscribed to any binding contractual undertaking or commitment expressly and unequivocally relinquishing their rights and the rights of their children to abide by or enforce their religious beliefs and convictions without qualification.

Counsel for the respondents, submits, in reliance on a dictum drawn from Wittmann v Deutscher Schulverein Pretoria & Others 1998 (4) SA 423 (T)..., that “freedom of religion does not mean freedom from religion.”

In the instant case, so he argues, the applicants daughters are not being persuaded to change their religion or subscribe to other religious beliefs, but, are simply being required to attend an activity that forms part of the School's curriculum. Thus, the School cannot be said to have infringed any aspect of the right to freedom of religion as enunciated by the Canadian Supreme Court in R v Big M Drug Mart Ltd [1985] 1 SCR 295..., where it was stated that:

“The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses; the right to declare religious beliefs openly and without fear of hindrance or reprisal; and the right to manifest religious belief by worship and practice or by teaching and dissemination.”

In Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC)..., freedom of conscience and religion was regarded as being integral to the dignity, growth, and self-worth of the individual:

“The right to believe or not to believe, and to act or not to act, according to his or her beliefs or non-beliefs, is one of the key ingredients of any person's dignity.

Yet, freedom of religion goes beyond protecting the inviolability of the individual conscience.

For many believers, their relationship with God or creation is central to all their activities. It concerns their capacity to relate in an intensely meaningful fashion to their sense of themselves, their community and their universe. For millions in all walks of life, religion provides support and nurture and a framework for individual and social stability and growth. Religious belief has the capacity to awaken concepts of self worth and human dignity which form the cornerstone of human rights. It affects the believer's view of society and founds the distinction between right and wrong. It expresses itself in the affirmation and continuity of powerful traditions that frequently have an ancient character transcending historical epochs and national boundaries.”

The importance of religious diversity in the educational sphere was highlighted by LANGA CJ in MEC for Education: Kwazulu-Natal & Others v Pillay 2008 (1) SA 474 (CC)..., as follows:

“As a general rule, the more learners feel free to express their religions and cultures in school, the closer we will come to the society envisaged in the Constitution. The display of religion and culture in public is not a 'parade of horribles' but a pageant of diversity which will enrich our schools, and, in turn, our country.”

Counsel for the applicants correctly notes, that, an essential component of the right to freedom of religion is the absence of coercion or restraint and that the freedom may be unjustly impaired by measures that compel anyone to act or refrain from acting in a manner contrary to one's religious beliefs.

This absence of compulsion is emphasised even in Wittmann v Deutscher Schulverein Pretoria & Others 1998 (4) SA 423 (T)...,.:

“Of course, the right of freedom of religion (in the case of religious minorities) and the right to freedom of thought, belief, and opinion (in the case of atheists and agnostics) entails that attendance may not be enforced. It must be voluntary. The right of non-attendance is expressly recognised in sections 14(2) of the interim Constitution and 15(2) of the Constitution. Attendance must be 'free and voluntary'. There may be no coercion, neither by rules nor by action, on the part of the authorities.”

Similarly, in MEC for Education: Kwazulu-Natal & Others v Pillay 2008 (1) SA 474 (CC)..., the underlying values of human dignity, equality, and freedom are underscored in the pursuit of religious practices:

“A necessary element of freedom and of dignity of any individual is an 'entitlement to respect for the unique set of ends that the individual pursues'. One of those ends is the voluntary religious and cultural practices in which we participate. That we choose, voluntarily, rather than through a feeling of obligation, only enhances the significance of a practice to our autonomy, our identity, and our dignity.”

These sentiments, against coercive conduct, are also sagaciously captured in R v Big M Drug Mart Ltd [1985] 1 SCR 295...,.:

“Freedom, in a broad sense, embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means, that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.

What may appear good and true to a majoritarian religious group, or to the State, acting at their behest, may not, for religious reasons, be imposed upon citizens who take a contrary view. The Charter safeguards religious minorities from the threat of 'the tyranny of the majority.'”

To conclude on this aspect, there can be no doubt that the applicant's children are entitled to hold and practise their religious beliefs, whether within or without their homes, and within the precincts of the School.

It also cannot be doubted that the applicants are entitled, in accordance with their own beliefs, to shape the moral and religious upbringing of their children.

The applicants aver, that, to compel their daughters to attend chapel is contrary to their religious convictions because it entails the mixing of religious practices and attending church services in a building strewn with religious symbols. Therefore, their daughters do not wish to be present in the chapel.

Having regard to the authorities cited above, I take the view, that, the School's policy, of compelling the applicants daughters to attend chapel services, constitutes a prima facie infringement of their religious beliefs.

The practice and observance of their faith demands, that, they exclude themselves from any place of worship that contains any religious symbol, including the crucifix. It also demands that they abstain from any rite or ritual that involves the admixture of any religion other than their own.

By being compelled to enter the School chapel and attend the predominantly Anglican services conducted therein, they are being called upon to renounce, albeit temporarily, certain fundamental tenets of their faith that are designed to enhance their peculiar sense of religious and cultural identity as well as their dignity as self-professed Jehovah's Witnesses.

They can only be required to renounce those tenets if they choose to do so freely and voluntarily, or, in circumstances that are reasonable and justifiable having regard to the public interest or the rights and freedoms of others.

The critical question for determination in casu is whether or not the compulsion to attend chapel imposed upon the applicants daughters is constitutionally permissible in the circumstances under consideration.

In terms of section 86(2) of the Constitution, fundamental rights and freedoms may be limited “only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary, and justifiable in a democratic society.”

In this respect, counsel for the respondents argues, that, the contract of admission signed by the applicants is the law envisaged in section 86(2) of the Constitution and that the School is entitled to enforce that contract accordingly.

Counsel for the applicants appears to implicitly accept this proposition by his lengthy written submissions interrogating the contract and the School's conduct under the criteria set out in section 86(2) of the Constitution.

The proposition, and its implicit acceptance, are clearly misplaced.

The term “law” is defined in section 332 of the Constitution to mean any provision of the Constitution, an Act of Parliament, or a statutory instrument, or any unwritten law in force in Zimbabwe, including customary law.

A private contractual stipulation is patently not a law as defined, or as generally understood; let alone a law of general application within the meaning of section 86(2) of the Constitution.

Accordingly, I take the view, that, section 86(2) of the Constitution has no direct bearing on the constitutionality or enforceability of the contract of admission and does not take the matter any further in upholding or impeaching the School's policy of compulsory chapel attendance.

As regards the extent to which the freedom of religion may be limited, counsel for the applicants contends, that, although it may be permissible to limit the right to manifest religious or other non-religious beliefs, the right to hold such beliefs is to be considered as being inviolable.

I am unable to discern any justification for this perceived distinction either in section 60 or in section 86 of the Constitution.

In terms of section 60(1) of the Constitution, the freedom of thought, opinion, religion or belief is accorded the same prominence and protection as the freedom to practice, propagate and give expression to one's thought, opinion, religion or belief.

Both are guaranteed in the same breath and without any express or implied differentiation as to the extent of their entitlement to protection.

Equally significantly, section 86(3) of the Constitution specifically enumerates those fundamental rights which “no law may limit” and which “no person may violate”.

These include the rights to life, human dignity, not to be tortured, not to be placed in slavery or servitude, to a fair trial, and to obtain an order of habeas corpus.

The right to freedom of conscience and religion is conspicuously absent from this list of absolutely sacrosanct and inviolable rights. The necessary implication is that freedom of religion is not inviolate or non-derogable.

The provision that I deem most apposite to the resolution of this matter, and which I now turn to consider, is section 86(1) of the Constitution. It declares that “fundamental rights and freedoms..., must be exercised reasonably and with due regard for the rights and freedoms of other persons.”

The analysis of conflicting rights postulated by section 86(1) of the Constitution calls for an essentially unitary approach. The question whether a given right is being exercised reasonably is inextricably intertwined with the question whether it is being exercised with due regard for the rights and freedoms of others.

What is required is the balancing of actually or potentially antagonistic rights, having regard to the nature of those rights, the manner in and the extent to which they impinge upon one another, and the circumstances in which they have been or are to be exercised.

It is trite, that, a contract concluded in contravention of the written or unwritten law, or one that is contrary to public policy, is susceptible to being struck down and rendered of no force or effect.

The doctrine of sanctity of contracts is obviously subject to constitutional limits.

As was observed in Bredenkamp and Others v Standard Bank of South Africa Ltd 2010 (4) SA 468 (SCA)..., every contract or institutional rule must pass constitutional muster.

Again, in Barkhuizen v Napier 2007 (5) SA 323 (CC)..., it was emphasised that:

“All law, including the common law of contract, is now subject to constitutional control. The validity of all laws depends on their consistency with the provisions of the Constitution and the values that underlie our Constitution. The application of the principle pacta sunt servanda is, therefore, subject to constitutional control.”

Counsel for the applicants submits, that, the School's contract of admission contains unlawful and onerous terms and conditions targeted against members of different faiths. They are contrary to public policy, and, therefore, cannot qualify as rules capable of enforcement.

Counsel for the respondents retorts, that, although the School's assemblies in chapel carry religious overtones, no pupil is obliged to participate in any religious activity. All the pupils are simply required to attend and be respectful. No one is victimised for not singing or praying. To this extent, the School is entitled to expect conformity and the applicants are equally entitled to remove their daughters to a school that does not offend their religious principles. This accords with the rights of establishment and maintenance explicitly preserved and conferred upon independent educational institutions by section 75(2) of the Constitution.

It is common cause, that, the religious status of the applicants children was known from the outset and that the previous policy of the School was one of religious tolerance and accommodation.

In this respect, I am unable to accept the submission by counsel for the respondents, that, the applicants acted fraudulently in signing the contract of admission simply to gain the admission of their daughters into the School. This is because the previous policy was highlighted in the School's website which, although out-dated, appears to have been relied upon by the applicants.

In this context, therefore, it cannot be said that their daughters refusal to attend chapel is unreasonable.

In any event, there is nothing in the opposing papers to show, that, the objective of collegiality that the Headmistress wishes to inculcate in the pupils was not previously attained. There is no evidence that the exemption from chapel attendance, that was previously granted, has negatively impacted on the collegiality or discipline of the applicants daughters or the other pupils. Nor is there anything to indicate that compulsory collective chapel attendance is the most appropriate vehicle to entrench collegiality.

This objective might be better achieved through regular attendance at social or sporting events or when all the pupils are gathered together in the dining hall, as happens at the School during the daily lunch break.

As counsel for the applicants correctly submits, coercion, as opposed to persuasion, does not necessarily build collegiality.

On the contrary, to forcibly conjoin persons of different faiths might serve to undermine the dignity of all concerned, the minority as well as the majority. As I have already noted, freedom of conscience and human dignity are inseparably linked and the denial of the former entails the denial of the latter.

As against the foregoing, it is not in dispute, that, the applicants were fully aware, from the time that they signed the admission forms, that their daughters had been accepted as pupils on the following terms and conditions:

(i) That, the School's rules and regulations, as amended from time to time, would be binding and had to be observed;

(ii) That, the School's founding Christian principles would entail adherence to its rules on chapel attendance;

(iii) That, no exemption from the curriculum would be considered on religious grounds; and

(iv) That, any latitude concerning chapel attendance was at the sole discretion of the School Head, whose decision was final and binding.

Thus, the applicants were cognisant of the fact, that, any previous latitude or exemption granted in relation to chapel attendance was subject to being reversed and that they, and their daughters, would be obliged to comply with any such change in policy.

In short, there can be no doubt, that, they willingly consented to the implementation and enforcement of the School's rules and regulations - even if they were altered after the admission of their daughters into the School.

In Wittmann v Deutscher Schulverein Pretoria & Others 1998 (4) SA 423 (T), the facts of which involved the enforcement of an enrolment contract in circumstances which are are very similar to those herein, Van DIJKHORST J..., opined as follows in relation to parochial community schools:

“In respect of these educational institutions, the fundamental freedom of religion of 'outsiders' is limited to the freedom of non-joinder. Outsiders cannot join on their own terms, and, once they have joined, cannot impose their own terms.

This indicates, that, the waiver of the freedom of religion (for the limited duration of one's membership and within the limits of the institution's constitution) is not contrary to the provisions of the Constitution in the case of private educational institutions. Waiver per se of that freedom is therefore not unconstitutional.”

I note that this decision was premised on specific provisions of the South African Constitution which are not identical to the corresponding provisions in our Constitution, and that, as far as I am aware, it has not been followed or applied by the Constitutional Court of South Africa.

I also note, with the utmost respect, that, the sentiments expressed by the learned judge might be criticised as being somewhat exclusivist, having been pronounced in the peculiar post-apartheid milieu of that country.

Nevertheless, I take them to be fairly instructive in the broader context of delineating the outer contours of religious freedom.

Another case of persuasive value is the decision of the European Court of Human Rights, apropos the European Convention on Human Rights, in Valsamis v Greece [1996] 24 EHRR 294, arising from facts which are not dissimilar to those in casu.

The applicants, in that case, were Jehovah's Witnesses. Pacifism was a fundamental tenet of their religion which forbade any conduct or practice associated with war or violence - even indirectly.

Following a written request, their daughter was exempted from attendance at religious education lessons and Orthodox Mass. However, in common with other pupils at her school, she was asked to take part in the celebration of the National Day, a day when the outbreak of war between Greece and Fascist Italy was commemorated with school and military parades. She requested the headmaster that she be excused from the celebration on religious grounds, in particular, on the basis of her pacifist convictions.

Her request was refused, but, she nevertheless did not participate in the school parade.

She was punished for her failure to attend with one day's suspension from school; a decision taken by the headmaster in accordance with a circular issued by the Ministry of Education and Religious Affairs.

She, and her parents, argued, that, they were the victims of a breach of the right to education under Article 2 of Protocol No.1, which requires the State to respect the right of parents to ensure that the education and teaching received by their children is “in conformity with their own religious and philosophical convictions.” They also complained that their “right to freedom of thought, conscience and religion” guaranteed by Article 9 of the Convention had been breached.

Their complaints, in relation to these two provisions, were dismissed by a majority decision of seven votes to two.

The dissenting judges took a robust view of the rights allegedly infringed. In their opinion, Mr and Mrs Valsamis's perception of the symbolism of the school parade and its religious and philosophical connotations had to be accepted because it was not obviously unfounded and unreasonable. Similarly, Miss Valsamis's statement, that, the parade she did not participate in had a character and symbolism that were clearly contrary to her religious beliefs also had to be accepted, and, there was no basis for seeing her participation in this parade as necessary in a democratic society.

The minority accordingly found, that, both Article 2 of Protocol No.1 and Article 9 of the Convention had been violated.

As regards the right to education and its corollary of parental convictions, the majority judges were of the opinion…, that:

“Such commemorations of national events, serve, in their way, both pacifist objectives and the national interest. The presence of military representatives at some of the parades which take place in Greece, on the day in question, does not in itself alter the nature of the parades.

Furthermore, the obligation on the pupil does not deprive her parents of their right 'to enlighten and advise their children, to exercise with regard to their children natural parental functions as educators, or to guide their children on a path in line with the parents own religious or philosophical convictions'….,.

It is not for the Court to rule on the expediency of other educational methods which, in the applicants view, would be better suited to the aim of perpetuating historical memory among the younger generation.….

In conclusion, there has not been a breach of Article 2 of Protocol No.1 (P1-2).”

On the freedom of thought, conscience, and religion, the majority adopted the earlier decision of the Commission and opined…,:

“The Commission considered that Article 9 (art. 9) did not confer a right to exemption from disciplinary rules which applied generally and in a neutral manner, and that, in the instant case, there had been no interference with the applicant's right to freedom to manifest her religion or belief.

The Court notes, at the outset, that, Miss Valsamis was exempted from religious education and the Orthodox Mass, as she had requested, on the grounds of her own religious beliefs. It has already held, in paragraphs 31-33 above, that, the obligation to take part in the school parade was not such as to offend her parents religious convictions. The impugned measure therefore did not amount to an interference with her right to freedom of religion either….,.

There has consequently not been a breach of Article 9 of the Convention (art. 9).”...,.

Before balancing the respective rights and freedoms of the parties, it is necessary to consider the waiver of constitutionally entrenched rights.

Counsel for the applicants argues, that, it is possible to waive certain rights, depending upon the right in question; for example, the right to trade which can be subjected to restraint by agreement. However, the right to entertain and manifest religious beliefs cannot be waived because it is characterised by the absence of compulsion or coercion, including indirect control. Accordingly, clauses 4 and 5 of the School's admission form must be regarded as being contra bonos mores and therefore unlawful.

Counsel for the respondents accepts, that, public policy enables the scrutiny of private contracts in order to ensure their constitutionality. Nevertheless, it is possible to contractually waive one's religious precepts in order to achieve a specific social or material purpose - as the applicants have done by signing the contentious form of admission.

I am inclined to agree.

As I have indicated earlier, I do not perceive the right to freedom of religion as being absolute or non-derogable. On that basis, I can think of no objection to its being voluntarily waived in circumstances where such waiver does not entail the fundamental eradication of one's religious or conscientious beliefs.

The applicants cannot assert that their faith condemns the mixing of religious beliefs and practices, and, at the same time, enrol their daughters at a school with an Anglican ethos and practices.

The contract of admission that they signed categorically states, that, any latitude in chapel attendance granted to the pupils would not invariably exempt their attendance in future and that the decision of the Head in that regard would be final.

In effect, the applicants chose to bend the tenets of their faith to a limit determined by themselves so as to gain admission to the School for their daughters. Once that limit has been exceeded, they now invoke the right to religious freedom in order to demand that the School should conform to their religious dictates.

In other words, the applicants and their daughters, are prepared to remain “separate from a contaminated world” only to the extent that they deem it expedient to do so. To use a well-worn adage, they cannot approbate and simultaneously reprobate the School and its avowed ethos.

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

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

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

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