Cause of Action and Framing of Draft Orders re: Doctrine Against Benefitting from One's Own Wrongdoing

Appealed
SC36-12 : RESERVE BANK OF ZIMBABWE vs CAFCA LTD
Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

This is an appeal against the judgment of the High Court granting with costs a claim by the respondent for:

(i) Payment of the sum of US$750,000.

(ii) Interest tempore morae at the London Interbank rate for United States dollars, at 3.5% per annum, from 1 September 2005 to the date of payment.

(iii) Costs of suit.

The factual background to this dispute, which is largely common cause, may be summarised as follows:

The appellant is a financial institution. The respondent is a manufacturer and supplier of an exclusive range of cables for the transmission of communication and distribution of energy used by such entities like the Zimbabwe Electricity Supply Authority, the Rural Electrification Agency, and Tel One.

The respondent's business caters for both domestic and export markets. As at end of 2003, 50% of its sales volumes were largely in exports.

In 2004, the respondent's business experienced slow growth due to inflation and the scarcity of foreign currency. During that year, the respondent's representatives met with the appellant's Governor, Dr. Gideon Gono, with a view of securing foreign currency to purchase imported inputs in order to sustain its business.

Dr Gono gave an oral undertaking to avail US$150.000 per week, to the respondent, from the foreign currency auction system.

In January 2005, the respondent began to receive the said sums of foreign currency against payment of a Zimbabwean dollar equivalent to the appellant via a commercial bank.

The special arrangement was extended to thirty-five (35) other companies selected as the recipients of foreign currency.

This allocation of US$150,000 was, with effect from 16 June 2005, increased to US$250,000.

Weekly allocations, at that new level, were made to the respondent until the end of July 2005.

In August 2005, the respondent made three transfers of money, in Zimbabwe dollars, to the appellant, for the equivalent of the amount of US$750,000. The payments were accompanied by details of external creditors to be paid by the defendant.

The appellant did not pay the foreign currency.

Its position, at the trial, was that foreign currency could not be paid because it was not available.

The respondent's witness, Mr. Turina, confirmed, in evidence, that, the appellant indicated that it did not have foreign currency for disbursement.

On 2, 11 and 19 August, respectively, the respondent made payments, in Zimbabwe dollars, equivalent to US$750,000.

In respect of these three payments, the respondent would receive a phone call from the appellant before making payment.

On 1 August, it received a call from the appellant before depositing a sum of Z$4,438,294,052=45 with the appellant the following day.

With regard to the second transaction, the respondent received a phone call on 5 August. In response thereto, it deposited the sum of Z$4,511,254,261=47 with the appellant on 11 August.

On the third occasion, the telephone call was made on 17 August. The respondent deposited an amount of Z$4,587,562,920=90 with the appellant on 19 August.

Bigboy Masoso, who was the Division Chief Treasury Officer testified on behalf of the appellant to the effect, that, the disbursement of foreign currency could only be made if the front office of the appellant made the funds available. He also stated that the telephone calls made to the respondent, and other companies, were meant to provide quotations to secure constance of the exchange rate.

In the affidavit filed of record, Dr Gono stated as follows at paragraph four thereof as follows:

“I advised them that the Bank would endeavour to source foreign currency for the plaintiff to the tune of USD$150,000 per week in recognition of the plaintiff company's strategic role in the national economy. No formal binding agreement was concluded in this regard and it was never the common understanding of the parties that we were concluding a formal agreement.”

At paragraph six of the affidavit, he stated as follows:

“As a result of further representations made by the plaintiff, the defendant increased the weekly allocation of foreign currency to the plaintiff to USD250,000 from or about the 8th June 2005. Again, it was never the common understanding and contemplation of the parties that they were entering into a formal binding transaction, hence no formal contractual documentation was executed.”

Again, at paragraph seven of his affidavit, he stated as follows:

“I am advised, that, during the month of August 2005, plaintiff made payments totalling Z$13,535,110 being the quoted equivalent at the auction rate of USD750,000 which the defendant had hoped to pay to the plaintiff. Due to many other competing and pressing national requirements, the defendant was unable to avail the foreign currency, not only to plaintiff but to many other companies in a similar situation who then accepted an offer for immediate refund. Plaintiff declined the refund.”

Following a trial, the learned Judge found as follows at p8 of the judgment:

“However, the main issue, in my view, is whether, by allocating to the plaintiff US$150,000 and later US$250,000 from the auction system, the defendant then became obligated to release the money to the plaintiff upon payment by the plaintiff, within twenty-four hours, of the Zimbabwe dollar equivalent at the defendant's instruction.”

At p9 of the judgement, the court a quo stated as follows:

“It becomes crucial for the defendant to explain the reasons for Patience Aisam to set in motion the process, if foreign currency was unavailable. My view is simply that the allocation was only made against funds that were already available from the auction.

It is important to note that Patience Aisam spoke of 'an approved allocation and not successful bid.'

This was so because the plaintiff was on a special list that was not required to bid.

There could, in my view, be no approval or allocation of what was not already available.

Given the condition that the completion of each transaction was totally dependant upon the availability of foreign currency, the possibility of Aisam confirming allocation and asking for payment of the Zimbabwe dollar equivalent, within 24 hours, when there was no foreign currency already earmarked for the plaintiff is, in my view, very remote.”

The learned Judge, at p9, made the following finding:

“I am therefore unable to accept that the above scenario did not create binding obligations on the part of the defendant.

To that end, I am of the view, that, upon compliance by the plaintiff, a binding contract was concluded and what remained was the release of the foreign currency purchased by the plaintiff.

The case of F.C. Hume (Pvt) Ltd v Minister of Natural Resources & Tourism 1989 (3) ZLR 55 indeed supports this view.

With the plaintiff having complied with all the requirements, the contract was already in place and the defendant was obliged to meet its obligation.”

The gist of the court a quo's reasoning was that, at the time the phone calls were made to the respondent, the foreign currency to which the call related was available and the call was an offer which the respondent accepted by depositing the money, in Zimbabwean dollars, with the appellant thereby giving rise to a binding contract.

The court a quo gave judgment in favour of the respondent as sought in the summons. It is against this judgment that the appellant now appealed to this Court.

In the grounds of appeal, the appellant contends that:

1. The court a quo erred in law and fact in not making a finding that the payment by the respondent of the Zimbabwe dollars, as directed by the appellant, did not create a binding contract which was an end itself but that performance was always subject to foreign currency being available.

2. The court a quo erred in law and fact in making a finding that the communications made by Patience Aisam, on behalf of the appellant, calling upon the defendant to pay the Zimbabwe dollars, meant or was evidence that the foreign currency being allocated was available for disbursement to the respondent.

3. The court a quo erred in fact and law in not making a finding that non-availability of foreign currency made performance impossible and that the appellant was entitled to refund the respondent the money it had paid as the suspensive condition, viz, the availability of foreign currency had failed to be met.

4. The court erred in law in allowing the claim for interest and in ordering the interest to run from 1 September 2005.

The primary question to be decided by this Court is: whether or not there existed a binding contract for the disbursement of a sum of foreign currency to the respondent's creditors upon payment by the respondent of an equivalent sum in Zimbabwean currency.

The following are undisputed facts:

As a result of an approach to the appellant's Governor, Dr Gono, on 27 October 2004, for assistance in obtaining foreign currency, the respondent was granted the status of a successful bidder at the weekly foreign currency auction.

Several other companies were on this special list.

The respondent was not required to place bids at the auction but was merely telephonically advised of the agreed weekly allocations.

The practice had been successfully operational from January 2005 to July 2005.

Payment requirements were availed to the respondent who complied by effecting payment of the equivalent amount of the foreign currency in Zimbabwe dollars.

There was no formal contract between the appellant and the respondent.

The respondent was amongst a list of thirty five (35) companies on this special list who had been identified as preferential recipients of foreign currency under the arrangement.

The court a quo correctly found, that, the arrangement between the parties was premised on the availability of foreign currency. As such, no allocation could be made without the availability of foreign currency.

Indeed, both parties were aware that the arrangement for the disbursement of foreign currency was subject always to a condition that foreign currency had to be available in the first instance.

Mr Turina stated, that, due to the scarcity of foreign currency, the respondent had reached an agreement with the appellant whereby bids from the respondent would be given preferential treatment.

He confirmed that the information on the allocations was done telephonically and that once an allocation (i.e. the initial US$150,000 rising to US$250,000) was made, the respondent was required to pay the equivalent in Zimbabwean dollars.

The arrangement had worked well from January 2005 until July 2005.

In August 2005, the appellant failed to disburse US$750,000 to the respondent's customers and suppliers after the respondent had deposited with the appellant an equivalent sum, in Zimbabwe dollars, in three separate tranches.

In this regard, the import of the affidavit of Patience Aisam was that a telephone call would be made to advise of an approved application and not allocation. In effect, the approval and the actual allocation of foreign currency were distinct processes - premised on the availability of foreign currency.

It was the evidence of Patience Aisam's superior, Bigboy Masoso that payments in foreign currency would only occur if the front office availed such funds.

This testimony accords with logic and probability.

Patience Aisam was not employed in the Front Office which was responsible for the allocation of foreign currency.

The court a quo found that there existed a binding contract between the parties.

When regard is had to Dr Gono's affidavit, it is clear that he advised the respondent that the appellant would “endeavour” to source foreign currency for the respondent.

Such assertion does not suggest that the appellant was binding itself to provide the respondent with foreign currency on an ongoing or permanent basis.

It is not in dispute that no allocation of foreign currency was made in August 2005. According to Bigboy Masoso, the system was discontinued because there was no foreign currency.

The 24 hours notice of payment of Zimbabwe dollars was not in fact adhered to by the respondent in August 2005.

The finding by the court a quo, that, upon payment by the respondent, a binding contract was concluded, is not borne out by the evidence with regard to the payments made following telephone calls of 5 and 17 August 2005.

HH32-12 : ZELLCO CELLULLAR PL vs NETONE CELLULLAR PL and DR CALLISTUS NDLOVU and REWARD KANGAI and LYNDON NKOMO
Ruled By: GOWORA J

On 13 April 2011, under Case No. HC3507/11, PATEL J granted a provisional order in the following terms;“INTERIM RELIEF GRANTEDPending the determination of this matter, the applicant is granted the following interim relief;1. The decision of the Respondent to cancel the Service Provider Agreement be and is hereby declared unlawful ...

On 13 April 2011, under Case No. HC3507/11, PATEL J granted a provisional order in the following terms;

“INTERIM RELIEF GRANTED

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

1. The decision of the Respondent to cancel the Service Provider Agreement be and is hereby declared unlawful and is set aside.

2. The Respondent be and is hereby interdicted from effecting any of the consequences of such cancellation in terms of Clauses 15 and 16 of the Service Provider Agreement.

3. The Respondent be and is hereby ordered to retract its text message sent to the Applicant's post-paid customers by way of a similar message to the effect that the Applicant's Service Provider Agreement is still valid and subsists and that customers should continue to pay their bills to Zellco Cellullar and that the Respondent regrets the previous notification of cancellation which was issued in error.

PROCEDURE FOR DETERMINATION OF FINAL ORDER SOUGHT

N/A

TERMS OF FINAL ORDER SOUGHT

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

4. The Respondent is interdicted from invoking and implementing the termination provisions of Clause 15 and 16 of the Service Provider Agreement pending the resolution of the dispute declared by the Applicant in accordance with Clause 19 of the Service Provider Agreement.

SERVICE OF PROVISIONAL ORDER

That leave be and is hereby granted to the Applicant's legal practitioners to effect service of this Provisional Order upon the Respondent.”

The parties to the dispute under Case No. HC3507/11 are the applicant and the first respondent respectively. The second, third, and fourth respondents were not cited as parties thereto.

On 10 May 2011, the applicant then launched these proceedings as an ordinary court application seeking the following relief:

“IT IS ORDERED THAT:

1. The second, third, and fourth respondents be and are hereby held to be properly enjoined to these proceedings.

2. The respondents be and are hereby held to be in wilful contempt of the court order by PATEL J on 13 April 2011 in HC3507/11.

3. The first respondent be and is hereby ordered purge its contempt and to mitigate the consequences of cancellation of the Service Provider Agreement that it effected against the applicant in defiance of the court order within 48 hours of this order as follows:

(a) Remit to the applicant all payments received directly from the applicant's customers from date of unlawful cancellation of the Service Provider Agreement to date.

(b) Cancel all contracts or arrangements for provision of direct services concluded with the applicant's customers from date of cancellation of the said Agreement to date.

(c) Provide the applicant with all call data relating to its customers as from 1 April to date in the form and detail as ordinarily provided in terms of the Service Provider Agreement.

(d) Action all requests for network services submitted by the applicant from 1 April to date.

4. The first respondent be and is hereby ordered to broadcast, within 24 hours of this order, the following text message to the applicant's customers:

“NetOne sincerely regrets the text messages sent to all Zellco's subscribers on 5 April 2011 and 19 April 2011 which text messages were grossly inaccurate, misleading, sent in error and should be completely disregarded. Customers are advised that the Service Provider Agreement is still valid and subsists and should continue to pay their bills to ZELLCO CELLULAR. There will be no loss of service.”

5. The second, third, and fourth respondents be and are hereby ordered to ensure full compliance by the first respondent with the terms of this order failure of which they shall be committed to prison until such time as full compliance takes place.

6. The respondents shall not be heard in any court, whether in this matter or in matters already before the courts in HC8318/10, HC1587/11, and HC3507/11 or any new related matter, unless and until they have purged their contempt.

7. The first respondent be and is hereby ordered to pay a fine for contempt of court in the sum of USD20,000 within 7 days of service of this final court order upon it.

8. The second, third, and fourth respondents be and are hereby ordered, in their persons, to pay a fine of USD1,500 each within 7 days of service of this final court order upon them.

9. The respondents be and are hereby ordered to pay the costs of this application on a higher scale, that of legal practitioner and client basis, jointly and severally, one paying the others to be absolved.”

The application is opposed by all four respondents.

The third respondent has filed an opposing affidavit on his own behalf and on behalf of the first respondent.

The respondents have also raised points in limine.

In so far as the first respondent is concerned, it is contended that the applicant has failed to abide by the order of MTSHIYA J, under Case No. HC3639/11, which was dismissed with an order of costs payable by the applicant.

The matter had been brought to court as an urgent matter. The LEARNED JUDGE had dismissed it on the basis that it was not urgent and had ordered the applicant to pay the costs. The first respondent had, through its legal practitioners, sent an estimate of its costs and an indication of what it had paid to counsel.

The applicant had not paid.

It was therefore argued, on behalf of the respondents, that due to the refusal to pay these costs, the applicant was in contempt of a court order, and, until such time that it had purged its contempt, it should not be afforded a hearing on the merits of the dispute.

The applicant counters by arguing that it had sought the taxation of the estimated bill as it considered that the costs were on the high side.

It was suggested, on behalf of the applicant, that counsel did not have the latitude to charge any amount as his fees and that counsel's fees should be subjected to taxation in ordinary course. It was, in this vein, argued that the reasonableness of counsel's fees must be tested through taxation.

It is trite that counsel's fees are a disbursement and not subject to taxation by the Taxing Officer. It is also accepted that counsel's fees are not regulated by a tariff such as attorney's fees are.

In Logan v Taxing Officer & Ors NO 2001 (2) ZLR 175, GILLESPIE J noted that the de facto bar within this jurisdiction does not work to a tariff of fees. He bemoaned the absence of such tariff, which he suggested should set minimum and maximum thresholds for various work.

This point was reiterated by GUVAVA J in Choto v CBZ & Anor 2006 (2) ZLR 277..., thus:

“It is also accepted that fess charged by legal practitioners who have been so instructed are generally regulated from the Bar from which they operate. These fees are not determined by any tariff. That this distinction has been maintained by the legislator may be gleaned from the provisions of the First Schedule to the High Court (Fees and Allowances) Rules 2000 (S.I.82 of 2000) as amended by S.I.195 of 2003, which provides as follows:

'8. When another legal practitioner is instructed he or she shall not be required to adhere to this tariff but shall charge such overall fee as the Taxing Officer considers fair and reasonable in the circumstances:
Provided that this paragraph shall not apply where a legal practitioner is instructed by a country practitioner.'

In my view, therefore, there is a recognition by the legislator that there is a class of legal practitioners who are not bound by the tariff set out in the Rules.”

The respondents have argued that the urgent chamber application filed by the applicant, under HC4169/11, wherein the first respondent was awarded costs, was so defective in a manner and to an extent that not just the respondent, but the court before whom it was set down, commented on the defects.

This did not appear to deter the applicant as it proceeded to file yet another urgent application substantially on the same basis as the defective one.

It however did not pay the costs it had been ordered to pay.

I am persuaded to agree with the contention by the respondents that the applicant has taken a decision to mire the respondents in litigation despite the dispute over the parties' commercial transaction needing resolution.

A submission to the effect that the applicant had filed no less than six sets of proceedings went unchallenged.

When a litigant files defective proceedings, and refuses to pay costs awarded against it; it is clearly causing the other party unwarranted expense.

The applicant was advised that the costs from the abortive urgent application amounted to US$2,205, constituting US$2,005 being fees due to counsel and US$200 the estimation of the costs due to the respondent's legal practitioners.

It seems that the applicant was not unhappy about the estimation of US$200 but required that counsel's fee be taxed.

The basis of the unhappiness was the assumption that counsel's fee was not a disbursement.

The law on that is clear, and, in the absence of a tariff against which counsel's fee can be measured it is clear that the Taxing Officer has no means by which to test its reasonableness or otherwise.

That said, it was, I believe, the obligation of the first respondent, in order to enforce payment of its costs by the applicant, to have the bill taxed.

I believe that the requirement that the first respondent have its bill taxed is not unreasonable as every party to a lis has the right to have the costs claimed by the successful party tested as to their reasonableness by a Taxing Officer.

The first respondent chose not adopt this route but to force the applicant pay on the basis that it considered the costs reasonable and that the applicant should accept its position.

That was an error on the part of the first respondent.

It would have been different if the applicant had chosen not to pay a taxed bill of costs. That is not the position here.

I therefore find that the first respondent has not made out a case for these proceedings to be stayed. The point in limine therefore fails.

HH44-10 : JOHN STRONG (PVT) LTD and TOBS STRONG (PVT) LTD vs WILLIAM WACHENUKA
Ruled By: CHATUKUTA J

This is an application for contempt of court.

The background to this application is that the applicants were the owners of Disi Farm (the farm). The farm has since been acquired by the State. The respondent was issued with an offer letter for subdivision 7 (Plot 7) of the farm by the Minister responsible for land resettlement on 24 June 2008. When he moved onto the plot, he locked the tobacco grading shed, the irrigation pump station and borehole thereby denying the applicants access to the infrastructure.

The applicants approached this court, and, on 18 August 2008, successfully obtained, in case No. HC4110/08, an order directing the respondent to remove the locks and desist from interfering with the applicants' peaceful and undisturbed occupation of the farm.

The order was granted with the consent of the respondent.

The respondent complied with the court order until the beginning of December 2008 when he denied the applicants access to barns on the farm and interfered with the curing of the applicants' tobacco.

The applicants approached this court again on 11 December 2008 seeking an order for restoration of access to the barns.

A spoliatory order was issued by GOWORA J on 16 December 2008 in case No. HC7003/08 in default of the respondent.

The order was served on the respondent's wife on 12 January 2009.

It appears access to the barns was granted following the service of the order.

In April 2009, the applicant again approached this court after the respondent had again denied the applicant access to the barns, and sheds, and to water.

On 4 May 2009, PATEL J issued an order, with the consent of the respondent, in case No. HC1916/09. The following were the terms of the provisional order:

“1. 1st respondent, and all those claiming occupation through him, be and are hereby ordered to forthwith restore to applicants and their employees full possession, use, and access to the tobacco barns, grading sheds, workshop, office, and irrigation pump station on Plot 7 and all farming implements owned by applicants and located thereon so as to restore the status quo prevailing on Plot 7 as at 15th April 2009.

2. 1st respondent and all those claiming occupation through him permit the applicants and their employees to grade their tobacco and remove it for sale thereafter.

3. 1st respondent desists from threatening any of applicants workers (sic) or management in carrying out their normal duties.

4. 1st respondent shall be entitled to the full use and occupation of Plot 7, other than the structures and equipment referred to in paragraphs1 and the applicants shall refrain from interfering with 1st respondent's farming activities, equipment, and employees on Plot 7.

5. Should the applicants or 1st respondent breach any provision of this Order, the Zimbabwe Republic Police, Guruve is hereby authorized to enforce the terms of this order.”

This is the order (PATEL J's order) which is the subject of this application.

The basis of this application is that the applicant averred that, in defiance of this order, the respondent forcibly evicted the second applicant's manager from the office on Plot 7. He has again locked the gates to Plot 7 thereby denying the applicants possession, access to, and use of workshop, barns, and sheds.

It is on the basis of this defiance that the applicant seeks an order of contempt....,.

I now turn to the merits of the application.

Civil contempt is the wilful and mala fide refusal or failure to comply with an order of court.

Before holding the respondent to have been in contempt of court, it is necessary for the court to be satisfied both that the order was not complied with and that the non-compliance was wilful on the respondent's part: see Lindsay v Lindsay 1995 (1) ZLR 296 (S)…,; Macheka v Moyo HB78-03; Scheelite King Mining Co (Pvt) Ltd v Mahachi 1998 (1) ZLR 173 (HC)…,.

Once the applicant has established that the respondent has failed to comply with the order, the onus shifts to the respondent to establish that he or she was not wilful and mala fide: see HERBSTEIN and Van WINSEN, The Civil Practice of the Superior Courts in South Africa, 1st ed…, and Macheka v Moyo 2003 (2) ZLR 49…,.

The respondent in casu was required, under the PATEL J order, to restore to the applicants and its employees, full possession, use, and access to the tobacco barns, grading sheds, workshop, office, and irrigation pump station on Plot 7. The respondent was allowed, in the order, to the full use and occupation of the plot other than the structures and equipment referred to above.

The applicants averred that the respondent is in wilful defiance of the order in case No. HC1916/09 in that he forcibly evicted the second applicant's manager from the offices on Plot 7 and locked out the respondent from that plot and thereby denied them possession, use, and access to the infrastructure on the plot. The applicants approached the Deputy Sheriff for assistance to enforce the order. The respondent denied the Deputy Sheriff access to the plot.

The applicants attached a supporting affidavit from the Deputy Sheriff.

The respondent contended that he has complied with the court order and the applicants have moved off the plot on their own accord. He averred that the applicants requested that they remove their property and he allowed them to do so. He further averred that he gave the applicants access but later denied them the same when they vandalised the property.

The respondent further stated that the offer letter issued to him entitles him to own and control the entire infrastructure on Plot 7.

He intended to use the facilities for storing his beans, sunflower and seed maize, and curing his tobacco.

He further stated, in the opposing affidavit, that the order by PATEL J was not properly obtained as the order by GOWORA J, in case No. HC7003/09, was then extant.

He stated that the order by GOWORA J was granted on the understanding that the applicants would move from the farm by 15 April 2009 when the order would take effect.

He refuted the allegations that he denied the Deputy Sheriff access onto Plot 7. He stated that it is the applicants who denied the Deputy Sheriff access and that the Deputy Sheriff was bribed by one Tob Strong to depose as she did in the supporting affidavit.

The respondent's explanation of what transpired is contradictory.

In one instance he stated that when the applicants moved off the Plot, they removed their property from the plot on their own accord. In the next breath, he confirmed that he allowed the applicants access to remove their property for a limited period but later denied them further access because they were vandalizing the infrastructure on the plot.

It appears that the access referred to by the respondent is access which was granted the applicants in terms of an order issued by KARWI J on 2 November 2009 in case No. HC5270/09. The order by KARWI J was issued following an urgent chamber application filed by the applicants on 29 October 2009. The applicants had again approached this court seeking, firstly, the setting down of the present application urgently because of continued defiance of the order by PATEL J, and, secondly, claiming the return of movable property that the respondent had unlawfully taken or denied them access to.

It is evident, from the opposing affidavit and heads of argument, that the respondent is under the impression that, because he has an offer letter, he owns all the buildings on the farm and the applicants do not have any claim irrespective of the orders that have been issued by this court.

He even stated, in paragraph 5 of his heads of argument, that he does not have a legal duty to allow the applicants use of the infrastructure on Plot 7.

Despite having consented to the order by PATEL J he still does not believe that he must comply with it.

He believes that the order was improperly obtained.

It is difficult to comprehend the basis upon which that belief is founded considering that he consented, in person, to the granting of that order.

The applicants conceded, in the founding affidavit, that the order would subsist until 15 April 2009. The understanding, when the order was granted, was that thereafter, the applicants would seek a formal lease to use the barns and facilities on Plot 7 from the Ministry of Lands, Agriculture and Resettlement.

The applicants, however, continued with the use of the infrastructure until they were again locked out by the respondent leading to the application before PATEL J.

Whilst the understanding between the parties, before GOWORA J, is conceded by the applicants, the fact still remains that, after 15 April 2009, the applicants were issued with an order to continue to possess and use the infrastructure on Plot 7.

As indicated earlier, the Order was issued with the consent of the respondent, and, therefore, cannot be said to have been improperly obtained.

SC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

This case is about a permanent stay of a criminal prosecution because of torture and inhuman and degrading treatment to which the applicant was subjected by State security agents prior to being brought to Court on a criminal charge.

Jestina Mukoko (hereinafter referred to as (“the applicant”) appeared before a magistrate at Rotten Row Magistrates Court in Harare on 14 January 2009 in the case of Manuel Chinanzvavana & Eight Ors No.8801-5/08. She was charged with the offence of contravening section 24(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (hereinafter referred to as “the Act”). It was alleged that in the months of June and July 2008, the applicant and the co-accused persons “recruited or attempted to recruit or assisted in the recruitment of Ricardo Hwasheni to undergo military training in Botswana in order to commit any act of insurgency, banditry, sabotage or terrorism in Zimbabwe.”

The applicant alleged, in the Magistrates Court, that she had been abducted from home and subjected to torture and inhuman and degrading treatment by State security agents. She requested the magistrate to refer the question of contravention of her fundamental rights to the Supreme Court (“the Court”).

Two grounds were used to justify the request:

(i) The first was that the institution of the criminal prosecution was rendered invalid by the pre-charge ill-treatment to which the applicant was subjected. It was argued that the manner in which she was apprehended by State security agents and treated in detention, prior to being brought to court on the charge, constituted a violation of the fundamental rights not to be arbitrarily deprived of personal liberty guaranteed under section 13(1) and not to be subjected to torture or to inhuman or degrading treatment protected by section 15(1) of the Constitution.

The argument was that the uncontested behaviour by State security agents, in kidnapping the applicant from her residence and subjecting her to torture, inhuman and degrading treatment whilst she was in their custody, rendered the institution of the criminal prosecution an abuse of legal process. It was also argued that the conduct of the State security agents offended the sense of what the judiciary expects as decent behaviour from law enforcement agents in the treatment of persons in their custody.

The contention was that the Court was obliged to refuse to countenance the bringing of the criminal prosecution in the circumstances.

(ii) The second ground was that the decisions made by the public prosecutor, to charge the applicant with the criminal offence and to bring the prosecution proceedings, were based solely on information or evidence of the crime obtained from her by infliction of torture, inhuman and degrading treatment.

It was argued that the institution of the criminal prosecution was rendered invalid by the use of inadmissible information or evidence.

The assumption was that section 15(1) of the Constitution contains a rule that prohibits the admission or use, in legal proceedings, by public officials responsible for the initiation and conduct of criminal prosecution, and judicial officers, of information or evidence of the crime obtained from an accused person, or any third party, by infliction of torture, or inhuman or degrading treatment.

The contention was that reliance on information or evidence of the crime obtained from the applicant, or a third party, by torture, inhuman and degrading treatment was a breach of the exclusionary rule and unlawful.

It also engaged the responsibility of the State in the violation of section 13(1) of the Constitution.

The effect of the argument was that the decision to charge the applicant with the criminal offence, and the institution of the prosecution of it, was not based on a reasonable suspicion of her having committed the criminal offence. The criminal prosecution was therefore not authorized by section 13(2)(e) of the Constitution.

The magistrate was of the view that the raising of the question as to the contravention of the applicant's fundamental rights was not frivolous or vexatious. He referred the question to the Court for determination.

The relief sought by the applicant was an order of permanent stay of the criminal prosecution....,.

The facts on which the determination of the question as to the contravention of the fundamental rights referred to in the order was based, were conveyed by oral testimony given by the applicant in the Magistrates Court. They were also conveyed through the affidavit deposed to by her on 12 January 2009 as well as by the arguments addressed to the Court by counsel on behalf of the applicant.

The truthfulness of the evidence conveyed by the means and methods referred to was not contested by the respondent.

The evidence is to the following effect:

On 3 December 2008, at 5am, the applicant was in bed at the family home in Norton. In the house were her son, nephew, and an employee. The son came to the bedroom and said there were people at the gate to the premises who wanted to talk to her. She woke up in a night dress only. The son came back saying he understood that the people were members of the police. Wearing a night dress only she walked to the kitchen where she met seven men and one woman in plain clothes. They said they were members of the police - but did not produce identity cards to show that they were police officers. Two of the men took positions on each side of the applicant. They each held her by the hand and led her to a Mazda Familia motor vehicle that was parked at the gate. In the car was another man.

The applicant asked her captors for permission to go back into the house and dress properly. She was, instead, pushed into the rear seat of the car. She was ordered to lie on the back seat between two men with her face on the lap of one of them. The man on whose lap she was forced to put her face had a gun across his thighs. Across the floor of the car in front of the rear seat there was another firearm. A jersey was used to blindfold her. She could hardly breathe as the jersey was pressing against her nose. When she complained of suffocation the tightness of the jersey was loosened a little bit.

She said she was terrified by what was happening to her.

The car was driven for about 40 minutes before it was stopped at a secret place. During the journey, the car radio had been switched on to produce a very loud sound. She was led out of the car into a room where she was told to sit on a chair. A woman gave her a dress which she said she reluctantly put on in place of the night dress.

After 30 minutes of their arrival at the secret place, the applicant was taken to another room and told to sit on the floor with legs stretched forward. When the blindfold was removed, six men and one woman started interrogating her. She was told to agree to become a State witness in the case under investigation or be killed. She was asked to give the name of an ex-police officer who visited her work place seeking financial assistance to go outside the country.

The questions sought to solicit from her information to the effect that she had used her organisation's funds to enable the ex-police officer to go outside the country and undergo military training in insurgency and terrorism.

The applicant said when she told the interrogators that she could not remember the name of the ex-police officer who had visited her office in 2008, one of the men took a piece of a hose-pipe about one metre long. Another man took a coiled piece of iron. The two men took turns to beat her with these objects several times on the soles of her feet using severe force. She said her assailants were quite zealous in what they were doing. She yelled in pain. When the first stretch of beatings ended, a woman brought her pants to wear.

The interrogation and beatings stopped in the afternoon of the first day at the secret place.

She was blindfolded and taken to a room in which she was kept in solitary confinement. The blindfold was removed each time she was in solitary confinement.

In the evening of the first day of her arrival at the secret place she was blindfolded and taken to a room. She was made to sit on a chair. When the blindfold was removed she saw the same people who had interrogated her earlier that day. When the interrogation commenced she was ordered to lift both legs and place the feet on the edge of a table.

She did as ordered.

Two men struck the soles of her feet repeatedly with severe force using the same objects used to beat her in the morning. She said her feet felt very sore. She could hardly walk the following day.

On 4 December 2008, the applicant was interrogated in the morning and afternoon without being beaten. In the evening she was told that as she was not co-operative, a decision had been made that she be surrendered to a merciless group of men and women. A blindfold was put around her head. She said she was gripped by fear. She thought she was going to be killed as she was pushed into a car and told to lie face down on the rear seat.

The motor vehicle was driven for a considerable time before being stopped at a secluded place. There was a sound of shuffling movement of people outside the car. She thought her captors were preparing to execute her. The car suddenly reversed and then drove on. The captors asked about her workplace. They alleged that she worked for Voice of America Studio. She said she told them she worked for Voice of the People. The car got back to the secret place at 1:00am.

In the morning of 5 December 2008, the applicant was taken to an interrogation room. When the blindfold was removed she saw Rodrick Takawira, who was her workmate, in the same room. One of the interrogators said to her:

“You have been lying all along, Rodrick has told us everything.”

Rodrick was taken out of the room.

One of the men brought gravel and put it on the floor to form mounds. She was told to pull up her dress above knee-level and kneel on the gravel. The interrogation began and continued with her in that position. She said she was injured on the knees and felt severe pain. Each time she tried to move the knees to relieve the pain the interrogators ordered her to move back into position.

She remained in that position for one hour.

The applicant said the interrogators wanted her to say that she had assisted Ricardo Hwasheni to go to Botswana for military training so as to carry out insurgent and terrorist activities in the country. She said she told the interrogators that she had a brief interaction with Ricardo when he visited their offices asking for assistance to leave the country. She said she told the interrogators that she referred Ricardo to Fidelis Mudimu who worked in the counselling services unit of the organisation.

On the fourth day, she was blindfolded and taken to a room where she was made to sit on a chair. When the blindfold was removed she saw nine men and one woman sitting at a conference table. One of the men had interrogated her before. They said they wanted to know more about Zimbabwe Peace Project and documents it had in its possession on human rights violations in the country. They asked about her interaction with Ricardo Hwasheni.

She said she told the interrogators that she had told Ricardo that her organisation did not give money to people who wanted to go out of the country. They asked her why she did not ask him which country he wanted to go to. When she said that was not her business, the interrogation became very aggressive.

The applicant said the men became visibly angry. One of them threatened to make her suffer. He said they were going to make her defecate.

Shaking with fear, and not sure whether she would come out of the room unhurt, she was given a paper and told to write a statement. The interrogators told her to write about the trip she had made to Botswana.

She did as told.

The next day she was told that there were some things the interrogators wanted deleted from the statement. She removed from the statement what the interrogators did not want and added what they said was to be added to the statement.

She said she wrote the statement in the manner her interrogators wanted before signing it.

According to her, it was not true that she had referred Ricardo Hwasheni to Fidelis Mudimu of the counselling unit. She said she did not make the statement freely and voluntarily. The statement contained what she was told to write by her captors because she believed that would make them release her.

On 14 December 2008, the applicant was taken to a conference room where there was a cameraman. The men and women who had interrogated her were present. The cameraman was introduced to her. She was told that she was to be video recorded whilst making a statement about how she met Ricardo Hwasheni. It was said a decision was to be made on the basis of the statement whether to prosecute her or turn her into a State witness.

After saying what the interrogators wanted her to say, she was blindfolded and taken to the room where she was kept in solitary confinement. She was held in solitary confinement, incommunicado, until 22 December 2008.

On 22 December 2008, the applicant was blindfolded and taken, by car, in the company of Rodrick Takawira, to a place where they were turned over to a police officer called Magwenzi. The police officer told them not to remove the blindfolds before those who brought them left. She said when the blindfold was removed she recognised the place where they were left by their captors as Braeside Police Station.

She was detained there.

The police later obtained, from a magistrate, a warrant authorising a search to be carried out at her house in Norton. She was taken to the house. For the first time she saw members of her family.

Whilst under the custody of her captors she had not been allowed to communicate with members of her family or her lawyer.

The search of the house did not yield anything relevant to the allegation that she recruited Ricardo Hwasheni to undergo military training for purposes of carrying out insurgency and terrorism in the country.

On 23 December 2008 she was charged with the offence of contravening section 24(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The facts on which the charge was based were extracted from the applicant by interrogation at different times during the period of detention extending from 3 to 14 December 2008.

On the basis of the information on which the charge was brought against the applicant, the public prosecutor instituted the criminal proceedings.

The applicant was then brought before the magistrate for remand pending trial.

The public prosecutor did not adduce evidence challenging what the applicant said happened to her from the time she was kidnapped to the time she appeared before the magistrate....,.

Section 13(1) of the Constitution provides that:

“(1) No person shall be deprived of his personal liberty save as may be authorized by law in any of the cases specified in subsection (2).

(2) The cases referred to in subsection (1) are where a person is deprived of his personal liberty as may be authorized by law –

(a)…,.

(b)…,.

(c)…,.

(d)…,.

(e) Upon reasonable suspicion of his having committed, or being about to commit, a criminal offence.”

Section 13(4)(b) provides that:

“(4) Any person who is arrested or detained –

(a)…,.

(b) Upon reasonable suspicion of having committed, or being about to commit, a criminal offence;
and who is not released shall be brought, without undue delay, before a court; and, if any person arrested or detained upon reasonable suspicion of his having committed or being about to commit a criminal offence is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to the trial.”

Section 15(1) of the Constitution provides that:

“(1) No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.”

Section 18(1) of the Constitution provides that:

“(1) Subject to the provisions of this Constitution every person is entitled to the protection of the law.

“(1(a)) Every public officer has a duty towards every person in Zimbabwe to exercise his or her functions as a public officer in accordance with the law and to observe and uphold the rule of law.”...,.

Effect of Pre-charge Abduction and Violation of Section 15(1) on Criminal Prosecution

The grounds on which the relief sought were premised on the court making a finding that the applicant was kidnapped from home and subjected to ill treatment in the form of torture, inhuman and degrading treatment by State security agents prior to being charged with the criminal offence by the public prosecutor.

The general effect of the contention advanced on the first ground was that the Court should not countenance a prosecution of an accused person for a criminal offence in circumstances in which he or she was kidnapped and subjected to torture, or inhuman or degrading treatment by public officials exercising executive authority prior to the charge being brought against him or her.

The argument was that the institution of criminal proceedings, in the circumstances, would be an abuse of court process.

The question for determination is whether ill-treatment, in breach of section 15(1) of the Constitution, prior to the charge being brought against the victim, taints the subsequent decisions to lay the charge and institute criminal prosecution against him or her regardless of the question whether the requirements of section 13(2)(e) of the Constitution have been complied with or not.

The decision of the Court on this point is that ill-treatment, per se, has no effect on the validity of the decisions to charge the victim with a criminal offence and institute prosecution proceedings against him or her.

It is the use of the fruits of ill-treatment which may affect the validity of the decisions depending on compliance or non-compliance, by the public prosecutor, with the requirements of permissible deprivation of personal liberty under section 13(2)(e) of the Constitution.

The reasons for the decision are these:

The requirements which a public prosecutor has to bear in mind and comply with to make a valid decision to charge an accused person with a criminal offence and institute a criminal prosecution on the charge are prescribed by section 13(1) of the Constitution.

The section recognises that every person has a fundamental right to personal liberty.

It then makes provision for the protection of the right against interference by the State by declaring that no person shall be deprived of personal liberty. Recognising the principle that the right to personal liberty is not an absolute right, the section goes on to specify cases listed as exceptions to the prohibition in which deprivation of personal liberty is permissible upon strict compliance with the prescribed requirements.

The requirements of permissible deprivation of personal liberty, in the case of a person suspected of crime, are in section 13(2)(e) of the Constitution. They constitute the standard by which the validity of the decision by the public prosecutor to charge the accused person with the criminal offence, and institute criminal proceedings, is to be measured.

The effect of prohibition of arbitrary deprivation of personal liberty is the promotion of lawful arrest or detention and prosecution of persons suspected of having committed crimes. It is the deprivation of personal liberty in connection with the criminal justice process that is relevant to the determination of the issues raised.

Once a measure, such as a criminal prosecution, is based on a decision to charge the accused person with the criminal offence which complies with the requirements of permissible deprivation of personal liberty it is a lawful measure. It cannot be a subject of an order of permanent stay on the ground that the accused person was kidnapped and subjected to torture, or inhuman or degrading treatment before the charge was brought against him or her. The ill-treatment to which the accused person would have been subjected would have taken place when he or she was in a state of lawful deprivation of personal liberty. It is usually inflicted after the person has been deprived of personal liberty by arrest and detention.

Section 13(1) of the Constitution provides that:

“(1) No person shall be deprived of his personal liberty save as may be authorized by law in any of the cases specified in subsection (2).

(2) The cases referred to in subsection (1) are where a person is deprived of his personal liberty as may be authorized by law –

(a)…,.

(b)…,.

(c)…,.

(d)…,.

(e) Upon reasonable suspicion of his having committed, or being about to commit, a criminal offence.”

Section 13(4)(b) provides that:

“(4) Any person who is arrested or detained –

(a)…,.

(b) Upon reasonable suspicion of having committed, or being about to commit, a criminal offence;
and who is not released shall be brought, without undue delay, before a court; and, if any person arrested or detained upon reasonable suspicion of his having committed or being about to commit a criminal offence is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to the trial.”

Failure to comply with the requirements for a valid decision to charge the accused person with a criminal offence, and the institution of criminal prosecution proceedings against him or her, implicates a violation of the principle of legality or rule of law enshrined by section 18(1) of the Constitution.

The principle of legality requires that every decision or act of a public official which affects the rights or interests of an individual must be in accordance with an existing law otherwise it violates the rights of the individual concerned.

The requirements for permissible deprivation of personal liberty are part of the protection of that right. Compliance with the requirements is consistent with the principle of the rule of law. In that way, the public prosecutor and the Court are prevented from acting arbitrarily.

Section 18(1) provides that:

“(1) Subject to the provisions of this Constitution every person is entitled to the protection of the law.

“(1(a)) Every public officer has a duty towards every person in Zimbabwe to exercise his or her functions as a public officer in accordance with the law and to observe and uphold the rule of law.”

The provisions of sections 13(1) and 15(1) of the Constitution protect two separate but related fundamental human rights. One right is not constitutive of the other. They are autonomous and under protective requirements peculiar to their nature and ambit. That means that the rights may be violated independently of each other.

The infliction of torture or inhuman or degrading treatment on an accused person affects his dignity and physical integrity. It does not in itself affect his or her criminal liability. The other right protects the individual from arbitrary arrest, detention and prosecution by agents of the State.

The same person may be a victim of ill-treatment by law enforcement agents whilst at the same time he or she is a villain having committed a criminal offence against another person. The applicability of a particular constitutional provision should turn on the reasons it was included in the Constitution and the evils it was designed to eliminate.

The existence of reasonable suspicion of the accused person having committed the criminal offence with which he or she is charged and prosecuted is critical to the determination of the validity of the decisions to charge him or her with the criminal offence and institute criminal prosecution on the charge.

A charge is an official act by which notification is given by the competent authority of an allegation that the accused person has committed a criminal offence. In Attorney General v Blumears & Anor 1991 (1) ZLR 118 (S)…, GUBBAY CJ said:

“The standard for the deprivation of personal liberty, under section 13(2)(e) of the Constitution, are facts and circumstances sufficient to warrant a prudent man in suspecting that the accused person had committed, or was about to commit, a criminal offence. This standard represents a necessary accommodation between the individual's fundamental right to the protection of his personal liberty and the State's duty to control crime.”

It is the existence, or absence, of reasonable suspicion of the accused person having committed the criminal offence he or she is charged with which provides an answer to the question whether pre-charge ill treatment of an accused person had anything to do with the institution of the criminal prosecution.

The purpose of instituting criminal proceedings against an accused person, on reasonable suspicion of having committed the criminal offence with which he or she is charged, is to prove the circumstance of his or her guilt. It is also to give effect to the law which proscribes the conduct he or she is charged with as a crime.

The decision to charge the accused person with the criminal offence and prosecute the crime would be based on the evidence of acts he or she would be suspected of having committed before he or she was subjected to ill-treatment by law enforcement agents. The prosecution would be directly connected with the crime.

If each time an accused person was subjected to torture, or inhuman or degrading treatment prior to being charged with a criminal offence, the Court was obliged to order a permanent stay of the criminal prosecution, the requirements of permissible deprivation of personal liberty, which form the standard for the validity of the decision by the public prosecutor to institute the criminal proceedings against the accused person, would be reduced to mere words. It would implicate the principle of legality which requires the Court to uphold conduct which is in accordance with law.

The availability of the procedure under section 13(2)(e) of the Constitution means that where the criminal prosecution meets all the requirements of permissible deprivation of the accused person of liberty, it cannot be impugned notwithstanding the fact that the accused person was kidnapped and subjected to torture or inhuman or degrading treatment before the charge was brought against him or her.

Section 24(4) of the Constitution provides a remedy to the individual whose fundamental right has been violated.

No right to personal liberty would have been violated in relation to the accused person by the institution of criminal proceedings in the circumstances.

An illegal arrest or detention, without more, has never been viewed as a bar to subsequent prosecution for an offence the accused person is reasonably suspected, on untainted evidence, of having committed.

That does not mean that the accused person has no remedy for the pre-charge contravention of fundamental rights.

Kidnapping a person is a criminal offence.

Compensation, under section 13(5) of the Constitution, is payable to a person who is unlawfully arrested or detained. It is also an appropriate remedy for the redress of a contravention of a fundamental right available to the Court in the exercise of the wide discretionary power under section 24(4) of the Constitution.

A finding that the decision by a public prosecutor, to charge an accused person with a criminal offence, was based on reasonable suspicion of his or her having committed the offence effectively means that the criminal prosecution is lawful. It means that there is evidence on which proof of the commission of the acts defined as the crime with which the accused person is charged would be based at the trial. It also means that the wrongful conduct of ill-treating the accused person prior to being charged with the criminal offence had nothing to do with the decisions to institute and conduct the criminal prosecution; S v Harington 1988 (2) ZLR 344 (S); Blanchard & Ors v Minister of Justice 1999 (2) ZLR 24 (S); Mthembu v The State 2008 SCA 51…,.

As a matter of law and fact it is clear that where reasonable suspicion of the accused person having committed a criminal offence existed at the time the public prosecutor charged him or her with the offence in question and commenced criminal prosecution proceedings, the prosecution must be taken to have been properly instituted regardless of the fact that the accused person was subjected to torture, or inhuman or degrading treatment prior to the charge being brought against him or her. The charge, and prosecution, would be a product of the consideration, by the public prosecutor, of evidence on the conduct of alleged wrong doing by the accused person.

There is nothing in the Constitution which requires the Court to permit an accused person, reasonably suspected of a criminal offence and properly charged, to escape prosecution because he or she was subjected to torture or inhuman or degrading treatment prior to the charge being brought against him or her.

The Constitution does not guarantee protection against prosecution to an accused person reasonably suspected of having committed a criminal offence on account of having been subjected to torture, or inhuman or degrading treatment before the charge was laid on him or her.

Giving effect to the proposition advanced on behalf of the applicant would violate the constitutional principle of proportionality.

The principle requires that a fair balance be struck between the interests of the individual, in the protection of his or her fundamental rights and freedoms, and the interests of the public, in having those reasonably suspected of having committed criminal offences tried, and, if convicted, punished according to law.

Acting in the manner suggested by the applicant would mean that the purpose of criminal law is to protect the interests of a person suspected of crime at the expense of the victim and society.

That would be tantamount to providing a guarantee of immunity from prosecution to a person reasonably suspected of having committed a criminal offence in every case in which proof is produced that he or she was kidnapped and subjected to torture or inhuman or degrading treatment by agents of the State prior to being charged with a criminal offence. The victims of crime would be denied the right to the protection of the law.

Justice demands, however, that each man and woman be given what is due by his or her conduct.

It would also mean that one person who fell into the hands of law enforcement agents, who decided to break the law and maltreat him or her, would escape prosecution whilst another person who fell into the hands of law abiding law enforcement agents would not. That would be despite the fact that they were both reasonably suspected of having committed the criminal offences with which they were charged. Each would have known that his or her act was criminal. He or she would have committed the act before being placed in the custody of law enforcement agents.

Where there is no direct connection between the fruits of the torture or inhuman or degrading treatment to which the accused was subjected and the institution of the criminal prosecution, justification for an order of permanent stay of the criminal proceedings cannot be found in the pre-charge ill-treatment of the accused person. If the order were made it would be on the ground that there was no reasonable suspicion of the accused person having committed the offence with which he or she was charged.

In urging the first ground on the Court, counsel for the applicant relied on the decision of the South African Appellate Division in S v Ebrahim 1991 (2) SA 553 (A).

It is necessary to briefly look at the circumstances in which the decision was made to see whether the principles relied upon in that case are applicable to the facts of this case.

The appellant, a South African citizen by birth, fled to Swaziland whilst under a restriction order which confined him to Pinetown in Natal. In December 1986 he was forcibly abducted from his home in Mbabane by persons acting as agents of the South African State. He was taken to South Africa and handed over to the police. The police detained him in terms of security legislation. He was subsequently charged with treason, convicted, and sentenced to twenty years imprisonment with labour.

Prior to pleading to the charge, the appellant launched an application seeking an order that the court lacked jurisdiction to try him. The contention was that his abduction was in breach of international law and thus unlawful. The application was dismissed.

An appeal against the ruling succeeded.

STEYN JA carried out a review of Roman and Roman-Dutch authorities on the question whether the court lacked jurisdiction.

The learned Judge of Appeal came to the conclusion that, under both systems, the removal of a person from an area of jurisdiction in which he had been illegally arrested to another area was considered to be tantamount to abduction. The court held that there was a rule at common law which limited a court's jurisdiction in criminal cases. That rule was to the effect that even if an offence was committed within the area of jurisdiction of the court it does not have jurisdiction to try the offender if he was abducted from another area of jurisdiction by agents of the State.

The head note to the judgment shows that the court continued, at p582C-E, as follows:

“Several fundamental legal principles are implicit in these rules (of the Roman-Dutch Law) namely, the preservation and promotion of human rights, good international relations, and sound administration of justice.

The individual must be protected against unlawful detention and against abduction, the boundaries of jurisdiction must not be violated, State sovereignty must be respected, the legal process must be fair towards those who are affected by it, and the misuse of the legal process must be avoided in order to protect and promote the dignity and integrity of the administration of justice.

The State is also bound thereby.

When the State itself is a party to a case, as for example in criminal cases, it must, as it were, come to court with 'clean hands'. When the State is itself involved in an abduction over territorial boundaries, as in the present case, its hands are not clean.

Rules such as those mentioned are evidence of sound legal development of high quality.”

The court, in S v Ebrahim 1991 (2) SA 553 (A), approved of the decision of the Federal Court of Appeal for the Second Circuit in United States v Toscanino 500F 2d 267 (1974).

The appellant, an Italian national, protested that agents of the United States government had abducted him from Uruguay and taken him to Brazil where he was held in custody and tortured. From there, he was conveyed, by aeroplane, to the United States. He was arrested and brought to trial on a charge of conspiring to import narcotics into the country.

The trial court had followed the prevailing judicial authorities on the interpretation of the principle of due process and its application to such cases. Judicial policy, at the time, was represented by the decisions of the United States Supreme Court in Ker v Illinois (1886) 119 US 436 and Frisbie v Collins (1952) 342 US 519. These decisions held that where an accused person was brought to court, on a proper charge, he or she was in the lawful custody of the court, and, as such, the court had no right to inquire into the means or method used to secure his or her presence before the court.

In holding that the concept of due process, under the Fourth Amendment of the United States Constitution, had been broadly interpreted, and, as such, justified an inquiry by a court into the circumstances in which an accused person had been brought before the court, the Federal Court of Appeal departed from the line of binding decisions of the Supreme Court of the United States.

In United States v Alvaren–Machain (1992) 119 Led. 2nd 441 that court re-affirmed its previous decisions by a majority thereby effectively over-ruling the decision in United States v Toscanino 500F 2d 267 (1974).

The reasoning in S v Ebrahim 1991 (2) SA 553 (A) was endorsed by the Court in S v Beahan 1991 (2) ZLR 98 (S) as having “the quality of being in accord with justice, fairness, and good sense.”

The principles have been applied in subsequent similar type situations in South Africa; in Mohammed v President of the Republic of South Africa & Ors 2001 (3) SA 893 (CC).

The same principles have been adopted and applied by the United Kingdom courts in similar cases of accused persons who had been forcibly abducted from territories of sovereign States by security agents of the receiving State, in some cases with the connivance of the prosecution agency: in R v Horseferry Road Magistrates (1994) 1AC 42; R v Mullen [2000] QB 520; and R v Loosely [2001] UKHL 53.

There is no doubt that the contention urged on the Court was animated by the principles enunciated in S v Ebrahim 1991 (2) SA 553 (A).

What is clear from the cases is that the principles in question provided a basis for an answer to a defence to the charge placed on the accused person to the effect that the court lacked jurisdiction to try him. The reason given in each of the cases was that the appearance of the accused person before the court was brought about by his forcible removal by agents of the receiving State from the territory of another sovereign State in breach of international law and the sovereignty of that State. The accused person would, at the time of the abduction, have been under the protection of the laws of the State in which he lived. He would have been outside the boundaries of the territorial jurisdiction of the court.

The cases merely recognised a long standing principle of international law, that abduction by one State of persons located within the territory of another violates the territorial sovereignty of the second State. The breach of international law, in the circumstances, is usually redressed by the return of the person abducted.

The principles enunciated in S v Ebrahim 1991 (2) SA 553 (A), and those that followed it, were applied in the determination of the question of lack of jurisdiction because the courts accepted that the principles formed part of the meaning of the applicable international norms.
They do not provide a basis for challenging the validity of decisions by a public prosecutor to charge a person who is resident in the area of jurisdiction of the court with a criminal offence which it has jurisdiction to hear.

The principles are not an answer to the question whether a court, whose duty is to protect fundamental human rights, can decline jurisdiction in a case in which the accused person complains that his or her fundamental rights have been contravened by the institution of criminal prosecution proceedings after he had been kidnapped and subjected to torture, or inhuman or degrading treatment by agents of the State within the area of jurisdiction of the court.

They are not applicable to facts of a case the consideration of which has to take into account the existence, or absence, of reasonable suspicion, by the public prosecutor, of the accused person having committed the criminal offence with which he or she has been charged.

The principles enunciated in S v Ebrahim 1991 (2) SA 553 (A) cannot be transposed and applied to facts of cases which do not raise for determination questions of breach of boundaries of criminal law jurisdiction.

Different principles apply in the determination of the issues raised by the facts of this case.

The cocktail of the principles of the relevant international law would have to have been violated by the receiving State before a criminal prosecution which followed could be said to be an abuse of legal process and a breach of the principles of protection and promotion of the dignity and integrity of the administration of justice. The cocktail comprises the principles of the preservation and promotion of the human right to personal liberty; the protection of individuals from unlawful detention and abduction; the protection of boundaries of territorial jurisdiction; and the protection of foreign State sovereignty.

Needless to say the last two principles would not form part of the law applicable to the facts of this case.

The analogy was inappropriate.

The forcible abduction of an accused person from foreign territory, by agents of the receiving State, has the effect of barring jurisdiction by the courts because it involves breach of an affront to the sovereignty of the refuge State. The act of arresting a person is an act of sovereignty. In such a case, that power would have been exercised by one State in the territory of another State.

Deriving from the cases of foreign abduction the proposition that in every case in which the accused person was subjected to torture, or inhuman, or degrading treatment before being charged with the crime the Court is obliged to order a permanent stay of the criminal prosecution was an ingenious argument which was unhelpful in the determination of the issues.

To discharge the constitutional mandate of enforcing or securing the enforcement of fundamental human rights and freedoms enshrined in the Constitution, the Court must exercise the power expressly conferred on it. Its duty is to determine the question whether the conduct of the State, forming the subject of complaint, contravenes the fundamental right or freedom sought to be enforced. It must come up with an affirmative or negative answer to that question after consideration of all the circumstances of the case.

It is unthinkable, in the circumstances, that the Court can restrict the exercise of the power and not inquire into the method by which the presence of an accused person before it was secured. It has to inquire if the allegation is that the conduct of the public officers involved in bringing the accused person violated his or her fundamental right.

The only occasion in which the Court can decline to exercise its powers, under section 24(4) of the Constitution, is if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person under other provisions of the Constitution or under any other law. What it cannot do is to decline to exercise the power to determine the question whether or not the fundamental right has been or is being or is likely to be contravened by the conduct of the State forming the subject of complaint properly brought before it.

The argument that a criminal prosecution following a pre-charge illegal arrest, detention and infliction of torture or inhuman or degrading treatment constituted abuse of process requiring a stay of proceedings would have to contend with the requirements of section13(2)(e) of the Constitution and show the fundamental right or freedom guaranteed by the Constitution that has been violated by the institution of the criminal prosecution in those circumstances.

It is not necessary to consider the argument in this case....,.

In so far as the applicant suggested that she should not be prosecuted because her presence in court followed her unlawful arrest or kidnapping and ill-treatment by State security agents, she could not claim immunity from prosecution on those grounds alone because her body is not a suppressible fruit and the illegality of her detention and treatment could not deprive the Government of the opportunity to prosecute her and prove her guilt on independent evidence wholly untainted by the misconduct of law enforcement agents; United States v Crews 445 US 463 (1980)…,; Key v Attorney General & Anor 1996 (4) SA 187 (CC)…,.

HH35-10 : RUTH MUSONZA (nee MTANAUKWA) vs ESHMAEL MUSONZA
Ruled By: GUVAVA J

The parties married on 13 December 1992 in terms of the Marriage Act [Chapter 5:11]...,.

The marriage was an unhappy one filled with physical and emotional abuse. The plaintiff left home on numerous occasions but always returned in the hope that the marriage would work. In October 2006, however, things came to a head and the plaintiff decided that she had had enough. The plaintiff moved out of the matrimonial home and left the two minor children in the care of the defendant. In February 2007, following an incident between the defendant and his daughter, Diana, the plaintiff obtained custody of both children....,.

She denied that Yolanda Madondo had contributed to the acquisition of the property....,.

The defendant confirmed that Yolanda Madondo was his "wife" and she started living with him in the matrimonial home in 2007. He stated that she also contributed towards the development of both properties and any award that the court will make should take this into account....,.

Yolanda Madondo also gave evidence before the court.

She testified that she married the defendant under customary law in 1993 during the subsistence of the plaintiff's marriage. She said that they have always had a good relationship and would travel together to their communal home with their children. She stated that she contributed in the construction of the Glen View house as the defendant had told her that she would live there. She stated that prior to moving to Queensdale she had lived in rented accommodation which was paid for by the defendant. She stated that she contributed towards the construction of the chalets at the matrimonial home. She purchased the rocks that built the chalets and the grass for the thatching.

In relation to the Glen View property, she stated that she paid for the water to mold the panels for the wall and cooked for the builders....,.

The defendant insisted that Yolanda Madondo was his wife and denied that he was committing adultery when he was quite aware that he was married in terms of a law which only allowed him to have one wife....,.

In my view, it is clearly wrong for a man to marry a woman under a law which obliges him to have only one wife and to thereafter proceed to marry another under customary law and proceed to live with both of them in a polygamous setting...,.

The law allows parties to a marriage to make an election with regards the type of marriage they wish to enter into. Once one has elected to marry under the Marriages Act [Chapter 5:11] one cannot thereafter marry another in terms of customary law as the defendant did....,.

Yolanda Madondo, in her evidence, told the court that she contributed in the development of the Glen View stand and the Queensdale property.

I did not believe her and merely saw it as a ploy by the defendant to defeat the plaintiff's claim in that property as the property is in the name of the plaintiff and the defendant. In my view, if she did make any contributions she did so in the clear knowledge that the defendant was married to another woman in terms of a civil marriage and she could have no claim to their joint estate.

HB153-11 : JONA NDALAMA vs CHIEF SUPERINTENDENT – HAPPYMORE SIGAUKE and COMMISSIONER GENERAL – AUGUSTINE CHIHURI
Ruled By: NDOU J

The application was filed on 1 July 2010. The application was filed and served out of time. Before he obtained condonation, the applicant served the application on the respondents on 2 July 2010. The applicant's application for condonation for late noting of review was granted on 30 September 2010. On 11 October 2010, the applicant served ...

Appealed
HH195-14 : FARAI MUSHORIWA vs CITY OF HARARE
Ruled By: BHUNU J

The undisputed facts before me clearly establish that prior to the dispossession, the applicant was in peaceful and undisturbed possession of the water connection in dispute. The only issue that arises is whether such dispossession was lawful. There is no substance in the respondent's claim that the applicant was no longer in peaceful and undisturbed possession of ...

HH288-14 : CHRISTINE GOREMUSANDU and GODFREY MAHENGA vs EUNICE CHITAMBARA and MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS
Ruled By: MWAYERA J

The first applicant simply claims she was customarily married to the deceased and chose not to commit herself on the allegation that she was separated from the deceased and was married to Dzikamai Katsidzira and bore a child. She cannot surely have her cake and eat it the same time.For her to argue she was not ...

HH315-14 : TECLA KAMBARAMI vs PETER MAJONGWE and THE REGISTRAR OF DEEDS and THE DEPUTY SHERIFF HARARE
Ruled By: DUBE J

A litigant who acts fraudulently cannot expect to benefit from activities carried out nicodimously. He cannot have his cake and eat it. It is the duty of the courts to protect unsuspecting victims who fall victim to such form of creativity.

SC30-13 : ARCHIPELAGO (PVT) LTD vs LOCAL AUTHORITIES PENSION FUND and ADDINGTON CHINAKE
Ruled By: MALABA DCJ, ZIYAMBI JA and PATEL AJA

DETERMINATION BY EXPERT VALUER As the record shows, and as was correctly conceded by counsel for the appellant; the appellant fully participated in the rental assessment proceedings before Angelbert Nyandoro, as an expert valuer, as well as the arbitration proceedings before the second respondent. Counsel for the appellant also concedes that Angelbert Nyandoro's determination was not ...

SC32-13 : HEYWOOD INVESTMENTS (PRIVATE) LIMITED t/a GDC HAULIERS vs PHARAOH ZAKEYO
Ruled By: MALABA DCJ, GARWE JA and GOWORA JA

The first ground was that the application by the respondent was fatally defective for want of form, in that it failed to comply with the requirements of the Labour Court Rules, S.I.59 of 2006 (the Rules). The appellant is correct that section 14 of the Labour Court Rules, S.I.59 of 2006 requires that an application ...

The appellant is correct that section 14 of the Labour Court Rules, S.I.59 of 2006 requires that an application to the Labour Court in terms of section 89(2)(b)(c) or (d) of the Labour Act be in Form LC 1.

Contrary to this provision the respondent filed a court application. The learned President held that the appellant had no basis for objecting to the manner in which the application was filed. The court a quo was of the view that the appellant could not raise a defect on the papers presented by the respondent as a defence to the application when the appellant itself had failed or refused to comply with the order directing it to reinstate the respondent.

The court said:

“The order of this court directs the employer to reinstate the employee (sic). I am not sure where the notion of non-compliance with rules arises from when the obligation is upon the employer to comply with the order of this Court. In the circumstances, I find no basis for the employer to raise any objections to the application. The court will therefore proceed to consider the application for quantification of damages.”

It is correct, as contended by the appellant, that the court a quo misdirected itself in its finding that the appellant was not entitled to raise the issue of the respondent's failure to comply with the Rules because the appellant itself had allegedly not complied with the order to reinstate the respondent. It seems to me that the court a quo failed to appreciate the legal issue raised by the point in limine.

It is incumbent upon a court before which an application is made to determine it….,.

In Grain Marketing Board v Martin Muchero SC59-07 GARWE JA stated as follows …,:

“Once the application to uplift the bar had been made, the court became seized with the matter. The court was enjoined to make a determination on that application. It did not do so. Instead it proceeded on the basis that there was no such application before the court. In this regard the court erred.

I am satisfied that the trial judge erred in disregarding the oral application and proceeding as if none had been made.”

The Labour Court was obliged to consider the question whether, in view of the provisions of section 14 of the Labour Court Rules, S.I.59 of 2006 requiring an application to be in Form LC 1, the failure to comply with the provisions of the Rule was such as to render the application fatally defective. That issue had to be considered in isolation of the alleged failure by the appellant to comply with the order of reinstatement.

The refusal by the court to determine the point in limine is a misdirection on a point of law.

It seems to me that it would be appropriate for this court to remit the matter to the Labour Court for a determination of the interlocutory application. Indeed, counsel for the appellant made a concession to the effect that this court should order that the matter be remitted to the Labour Court for the determination by that court of the application before it.

He did not pray for a dismissal.

CC05-15 : TOUR OPERATORS BUSINESS ASSOCIATION OF ZIMBABWE vs MOTOR INSURANCE POOL and ZIMBABWE REVENUE AUTHORITY and INSURANCE AND PENSIONS COMMISSION and ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

It is implored, on behalf of the Tour Operators Business Association of Zimbabwe that the fact that its members have contravened a law does not debar them from approaching a court for relief in respect of any alleged violation of fundamental rights, as is expressly affirmed in section 85(2) of the Constitution, and that the ...

While this may be perfectly correct, allowing the Tour Operators Business Association of Zimbabwe to approach this Court is one thing, but allowing it to succeed in this matter is an altogether different proposition.

As I have already stated, sections 35(1) and 88 of the Insurance Act unequivocally and emphatically criminalise unregistered brokering. What the Tour Operators Business Association of Zimbabwe seeks to enforce, on behalf of its members, is the right to persist in and continue their criminal conduct. Thus, by granting the constitutional relief that the Tour Operators Business Association of Zimbabwe seeks, the Court would not only condone its members' flagrant violation of the law but also sanction and perpetuate that illegality under the cover of their alleged fundamental rights.

Equally significantly, the principal fundamental right that the Tour Operators Business Association of Zimbabwe relies upon to ground its legal standing before this Court, viz. the right of every person to choose and carry on any profession, trade or occupation, is itself made expressly subject to the crucial qualification that the practice of a profession, trade or occupation may be regulated by law. In the present context, the right of its members to engage in business as insurance brokers is regulated by the Insurance Act. Unless and until they are duly registered under that Act, it is patently impermissible for them to invoke the right to carry on any activity regulated by that Act in circumstances that are clearly not countenanced by the Constitution itself.

In short, the Tour Operators Business Association of Zimbabwe and its members have no cognisable constitutional cause of action.

SC04-15 : AGSON MAFUTA CHIOZA vs SMOKING WILLIAMS SIZIBA
Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

It was submitted, on behalf of the respondent that the illegality – the understatement of the purchase price - having been instigated by the appellant, the court ought to take cognizance of the moral blameworthiness of the parties in determining where the justice of the case lay. It was submitted that it was ...

SC60-15 : SIMON GAZI vs NATIONAL RAILWAYS OF ZIMBABWE
Ruled By: ZIYAMBI JA, GWAUNZA JA and MAVANGIRA AJA

The appellant makes the point that the court a quo should not have relied so strongly on authorities that pertain to 'ordinary' civil matters in its determination of labour disputes. This is because, he contends, the Labour Court should not take as strict a view of its jurisdiction. I find no merit in this ...

CC14-16 : FUNGAYI MAJOME vs ZIMBABWE BROADCASTING CORPORATION and MINISTER OF MEDIA, INFORMATION AND PUBLICITY and THE ATTORNEY GENERAL OF ZIMBABWE
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

It must be said that the applicant's conduct, of deliberately refusing to pay the licence fee for possessing a television set remains a criminal offence notwithstanding the attempt to justify the offence on account of the alleged biased programming by the public broadcaster in favour of ZANU-PF.Wrongful conduct on the part of the public ...

View Appeal
HH767-15 : IN RE: STAND FIVE FOUR NOUGHT (PVT) LTD (Under Provisional Judicial Management) FOR AN ORDER FOR FINAL JUDICIAL MANAGEMENT vs x
Ruled By: MATHONSI J

What we therefore have is a party who has failed to fully comply with the procedure set out in the Rules under circumstances suggesting a deliberate attempt to incapacitate a creditor from contesting the application now trying to rely on its own default to snatch at a final order unopposed. That cannot be ...

SC37-16 : MARANGE RESOURCES (PVY) LTD vs CORE MINING & MINERALS PL (IN LIQUIDATION), MOSES CHINHENGO (RETIRED JUDGE) N.O., PRESIDENT, LAW SOCIETY OF ZIMBABWE N.O., ATTORNEY GENERAL OF ZIMBABWE N.O.
Ruled By: MALABA DCJ, HLATSWAYO JA and GUVAVA JA

This is an appeal against the whole judgment of the High Court of Zimbabwe. The order sought to be impugned reads as follows:“I am not satisfied that the matter is urgent. This application fails. It will not be necessary to decide all the other issues raised. In the result, the application is dismissed with ...

This is an appeal against the whole judgment of the High Court of Zimbabwe. The order sought to be impugned reads as follows:

“I am not satisfied that the matter is urgent. This application fails. It will not be necessary to decide all the other issues raised. In the result, the application is dismissed with costs on an attorney and client scale.”

The chronicle of events are common cause and succinctly set out in the judgment a quo.

A joint venture and Shareholders' Agreement was entered into on 14 August 2009 between Marange Resources (Pty) Ltd (the appellant), the Zimbabwe Mining Development Corporation (ZMDC) and Core Mining and Mineral Resources (Pty) Ltd. A dispute then arose between the parties over the participation of the first respondent (Core Mining and Mineral Resources (Pty) Ltd) in the affairs of the joint venture company. The appellant's position was that the agreement between the parties was void ab initio. The first respondent, on the other hand, arguing for the upholding of the compact, filed an application under HC8410/10, seeking an order declaring the agreement valid.

On 10 February 2012, the first respondent was placed under winding up by an order of a South African Court and joint liquidators were duly appointed. At the instance of the liquidators, the first respondent's legal practitioners addressed a letter to the appellant with a request for negotiations within a 30 day period. Having heard nothing from the appellant or its legal practitioner within the 30 day period, the first respondent wrote a letter, dated 27 November 2013, to the Commercial Arbitration Centre requesting three names of arbitrators so that they could choose one. Negotiations to appoint an arbitrator failed resulting in the first respondent's legal practitioners writing a letter to the third respondent (President of the Law Society of Zimbabwe) who then appointed the retired Judge, Moses Chinhengo, the second respondent, as arbitrator.

On 12 April 2013, a pre-arbitration meeting was convened which the appellant boycotted. The meeting, however, proceeded and preliminary issues were identified and an order was made directing parties to file submissions.

On 23 April 2013, the appellant filed an urgent application in the court a quo seeking to interdict the arbitration proceedings. The court a quo held that the matter was not urgent, and, in any event, the appellant had other available remedies under the Arbitration Act [Chapter 7:15]. Subsequently, the appellant requested to be heard on an urgent basis which request was granted.

At the hearing, the appellant raised a preliminary issue of whether the first respondent was properly before the court given the mis-citation of the first respondent. The matter is outlined in the judgment as follows:

“The first respondent's first preliminary point relates to the citations of the respondent. Mrs Mtetwa submitted as follows. The first respondent has been cited as Core Mining and Minerals (Pvt) Ltd (In Liquidation). The final winding order from the Gauteng High Court refers to a company cited as Core Mining and Mineral Resources (Pty) Ltd…,. This application was served at Messrs Mtetwa and Nyambirai ostensibly as representatives of the first respondent. She (Mrs Mtetwa) submitted that Core Mining and Minerals (Pvt) Ltd (In Liquidation) is not a party to these proceedings and is not represented by the said law firm. The first respondent is a South African registered company and it has been (wrongly) cited as Core Mining and Minerals (Pvt) Ltd (In Liquidation) instead of Core Mining and Mineral Resources (Pty) Ltd. Although it is apparent from communication regarding the arbitration proceedings that the company involved is Core Mining and Mineral Resources (Pty) Ltd, the applicant cited the company as a (Pvt) company. The first respondent conceded that the citation of Core Mining as a (Pvt) company by the applicant was in error and that this was a common error as even the arbitrator made the same error in the pre-hearing meeting minutes…,. The respondent has no objection in having the error corrected. The applicant has declined the offer to rectify its papers and amend the citation. The first respondent submitted that the applicant has adopted the illogical position that its own self-created error in the citation of first responded entitles it to the relief on the basis that there is no opposition before the court. The first respondent maintained that the application is a nullity on the basis that the first respondent is a non-existent company and their intervention is to protect their client's interests and is permissible under the rules of court.”…,.

Upon the appellant's refusal and failure to amend its papers, and on the strength of the decision in Mudzengi & Ors v Hungwe & Anor 2001 (2) ZLR 1275…, , the court held that the appellant could not benefit from its wrong doing as it failed to amend its papers despite an invitation by the first respondent to do so. The court went on to state that even if it was wrong on the preliminary point, the matter was still not urgent hence its dismissal of the matter was inevitable.

Aggrieved by the decision a quo, the appellant approached this court on the following grounds:

1. Having found as she did, albeit wrongly, that the matter is not urgent, the leaned judge erred in dismissing the whole cause and not striking it off the roll.

2. The learned judge erred and misdirected herself in dismissing the Urgent Chamber Application on the ground that it was not urgent when she had already delved into the merits of the matter and ought to have made a decision on the merits.

3. The court a quo erred and fell into error at law by making a finding that the application was properly opposed in the absence of the authority required at law for a peregrinus company in final liquidation to institute or defend proceedings.

4. The court a quo erred and misdirected itself in failing to find that the matter was urgent that the need to act arose on the 23 April being the date by which the illegality which appellant complained of manifested.

5. The learned judge erred in making a finding that an arbitrator has the power to determine the validity or otherwise of an agreement in terms of which he is appointed, which determination could only be made by the court.

6. The court a quo grossly misdirected itself in countenancing the abuse of its process by the arbitrator in that he proceeded with the hearing notwithstanding the pendency of the matter before the High Court and so erred in failing to confirm the interim order which it had previously granted on the 10of May 2013.

7. The court a quo erred in failing to make a finding that the applicant had properly cited the first respondent as the party who had instituted the arbitration proceedings which were subject to the Urgent Chamber Application.

8. The learned judge seriously misdirected herself in dismissing the application with a punitive order as to costs without any justifiable basis for so doing….,.

The relief sought by the appellant also forcefully brings to the fore the issue of mis-citation once more.

Counsel for the appellant devotes the first five pages of his 11-page heads of argument to this point, twisting and turning the argument to urge the conclusion that the matter must be disposed of as undefended.

However, the undeniable fact is that the appellant seeks to have the terms of the joint venture and shareholding agreement entered into by a party whose proper and correct citation it assiduously refused to effect, affected by the order of this court. That proper party is technically not present in these proceedings except to the extent of protecting its interests which it is entitled to do in terms of the Rules of Court. It is common cause that the appellant in the court a quo cited the first respondent as CORE MINING AND MINERALS (PVT) LTD instead of CORE MINING AND MINERAL RESOURCES (PTY) LTD. Called upon to amend the mis-citation, the appellant flatly refused even when assured that such an amendment would not be resisted. It is clear on the record that the party which the appellant would not name, i.e., resists to properly cite, is the only party on liquidation and its identity is stated in the liquidation order. The appellant has no qualms in using the fact of a liquidation to silence the Director of the first respondent on the basis that he cannot represent a company in liquidation and yet refuses to acknowledge the true identity of the very entity in liquidation!

In my view, this kind of sophistry, which the respondent, in the light of the parties' previous dealings characterises as “convenient amnesia”, comes very close to what has been termed 'fraudulent diligence in ignorance.'

The subsequent action of the appellant, of seeking to have the matter disposed of as unopposed on the basis of its own failure to properly cite the first respondent, is the kind of abuse of court process which I had occasion to remark about in the case of Mudzengi & Others v Hungwe & Another 2001 (2) ZLR 179 (H)…, thus:

“I found this to be a rather startling and unusual objection, coming as it did from a party that had cited the respondents in the first place as having the necessary locus standi to defend the application. Surely, an applicant who cites a party lacking in legal authority cannot rely on that incapacity to have the matter resolved in his favour. Rather, if the applicant knowingly cites a party lacking in locus standi, then the matter will not be properly before the court and it must be dismissed with costs on a higher scale. Ordinarily, it would be the respondents who would raise their own lack of capacity, or, indeed, the applicant's lack of capacity, as a defence in limine.”

In raising the preliminary point of its own mis-citation of the first respondent and seeking to benefit from the same, the appellant, the very party who had refused to correct the mis-citation, undoubtedly seeks to benefit from its own wrong. This court has had occasion to reiterate on the common law position that no one maintains an action arising out of his own wrong.

See Standard Chartered Bank Zimabbwe Ltd v Matsika 1997 (2) ZLR 389 (SC).

Thus, the court a quo was quite correct in holding that the citation of the first respondent as a (Private) Limited (Pvt) company instead of a Proprietary Limited (Pty) company was a material mis-description resulting in an existing company being incorrectly cited or a wrong party being brought to court. (Pvt) denotes a private company as envisaged under Zimbabwean law whilst (Pty) denotes a proprietary company as described under South African Law.

See Companies Act (Act No.71 of 2008) section 11(2)(b)(i).

SC49-17 : PHILLIP ELLSE vs MICHAEL JOHNSON
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

Counsel for the appellant argued that the fact that the appellant was both the borrower and surety renders the loan agreement and surety agreement nullities. Counsel for the respondent submitted that the suretyship agreement is a nullity but the loan agreement is valid. I agree. As already said, a suretyship agreement is entered into ...

HH478-15 : MUKUVISI TASHINGA HOUSING CO-OPERATIVE vs DANNY MUSUKUMA and LAST MBIZVO and CHARLIE DENGA and MSASA PARK (PRIVATE) LIMITED and ZANU P.F
Ruled By: MATHONSI J

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

HB84-16 : PHILANI GAMA N.O. vs LUNGISANI MPOFU and PATRICIA PHIRI and MBALI NGWENYA and THE ADDITIONAL ASSISTANT MASTER N.O. and THE ASSISTANT MASTER, HIGH COURT OF ZIMBABWE, BULAWAYO N.O.
Ruled By: MATHONSI J

In Standard Chartered Bank Zimbabwe Ltd v Matsika 1997 (2) ZLR 389 (S), the Supreme Court said that; “A cardinal principle of the common law is expressed in the aphorism: 'nemo exproprio dolo consequitur actionem' which translates: no one maintains an action arising out of his own wrong. Complementary to this principle is another which ...

HB95-16 : NATIONAL RAILWAYS OF ZIMBABWE CONTRIBUTORY PENSION FUND vs EKUTULENE INVESTMENTS t/a WALKERS PUB AND RESTAURANT and WAYNE ALLAN JONES
Ruled By: MATHONSI J

This court has in the past bemoaned the development of a culture that makes a mockery of the biblical aphorism that “whatever a man sows, that he shall reap.” See Southmark Trading (Pvt) Ltd Others v Karoi Properties (Pvt) Ltd Others HH52-13; Mukuvisi Tashinga Housing Co-operative v Musukuma Others HH478-15. That biblical aphorism has been corrupted ...

HH57-15 : MACRO PLUMBERS (PVT) LTD vs SHERIFF OF ZIMBABWE N.O. and OWEN CHIGOYA
Ruled By: MATHONSI J

Much ado about nothing is the befitting description of this application. An application which betrays a regrettable attempt at taking advantage of a minor administrative hiccup in order to brew a storm in a tea cup. It is an application which ought not to have been made at all.

HB105-16 : MAXWELL SIBANDA vs GAVIN HAYLER and HAROLD HAYLER and MARGARET MEEK and AUDREY BENEDICT and REGISTRAR OF DEEDS N.O. and BULAWAYO CITY COUNCIL
Ruled By: TAKUVA J

The applicant, an employee of the sixth respondent, filed this application on 5 December 2014 seeking an order compelling the first to fourth respondents to facilitate and register the transfer of an undeveloped Stand, being a certain piece of land in extent (120 Morgen sixty-four (64) square roods, forty-eight (48) square feet, being the remaining extent ...

Further, the applicant sought an order authorizing the Sheriff of this court to sign any necessary papers on behalf of the first to fourth respondents effecting the transfer of the property to him.

The basis of the application is the applicant's claim to have bought the said property on 22 January 2006 from the first to fourth respondents for the sum of Z$620,000,000=. He relied on an Agreement of Sale marked as Annexure 'B'. The applicant contended that he could not take transfer immediately because he could not raise the money to bear all the costs involved in taking transfer. He is now desirous of facilitating transfer but his “predicament” is that he has lost touch with all the respondents and is unaware of their present whereabouts….,.

The sixth respondent was alarmed by this application leading to its decision to oppose it. It then filed an application, under cover of case number HC589/15, seeking to be joined as a party in this particular application. The applicant did not oppose this application which was duly granted.

Having been joined as a party, the sixth respondent filed its notice of opposition.

In her opposing affidavit, the Chamber Secretary and Acting Town Clerk, one Sikhangele Zhou, stated that the power of attorney presented to their offices is a forged document that should not be relied upon by this court. She also attacked the authenticity of the Agreement of Sale (Annexure B) on the basis that it was allegedly signed by only one beneficiary to the exclusion of the rest of them. Further, that beneficiary who allegedly signed did not have the requisite authority to represent the company. According to her, the applicant is clearly trying to fool this court into awarding or transferring the property to him by devious, fraudulent, and unlawful means.

At the hearing of this matter, two issues arose for consideration, namely:

1. Whether or not the sixth respondent has locus standi in judicio to oppose the court application in casu?

2. Whether or not the applicant has made a good case for the relief sought?

Although the applicant had filed heads wherein he addressed the first issue in extenso, he abandoned it during the hearing. This left only the second issue for determination….,.

As pointed out above, there is no appearance for the first to the fifth respondents.

The sixth respondent strenuously opposed the application. In her founding affidavit, the Chamber Secretary and Acting Town Clerk of the sixth respondent makes the following factual averments:

1. The applicant's Annexure B is signed by Gavin Edwin Hayler representing Hayler & Company. However, there is no company resolution attached to the application showing that Gavin Edwin Hayler had authority to sign on behalf of the company.

2. Since the first to fourth respondents are beneficial owners of that property, the applicant would have needed Powers of Attorney from these owners for Gavin Edwin Hayler to sign the Memorandum of Agreement of Sale on their behalf. No such powers of attorney have been filed, meaning that there is no independent confirmation from them that they agreed to the sale.

3. There is no proof that the purchase price which was supposed to be paid in full on the signing of the agreement was even made as the applicant had not attached any receipt as proof of payment.

4. The applicant's assertions, in paragraphs 2 – 5 of his founding affidavit, that he does not know the whereabouts of the firstto fourth respondents cannot withstand scrutiny for the following reasons:

(a) Sometime in November 2014, the applicant approached the City Valuer with a Special Power of Attorney allegedly from the first respondent, the person who had allegedly signed Annexure B – the Agreement of Sale of the property to the applicant. This Power of Attorney gave the applicant authority to sign all documents necessary for the property and to represent him “without restriction”.

(b) The said Power of Attorney shows that the said Gavin Edwin Hayler resides at No.7 Rufus Street, Birchleigh North, Kempton Park, Johannesburg, Republic of South Africa. It is notarised. In view of this, it is “reprehensible, to say the least, for the applicant to come to court and allege in an affidavit signed on the 5^th of December 2014 that he “does not know” the whereabouts of the respondents when less than a month earlier he met with the respondents, obtained a Power of Attorney, gave the respondents his own details as are endorsed on that Power of Attorney.

(c) The Power of Attorney was signed by one beneficiary instead of the second to fourth respondents. It was notarized in South Africa by a South African law firm called Wentzel & Partners, and, in particular, signed by a Notary Public called J. Mazibuko. Investigations established that although the law firm did exist, it did not have a J. Mazibuko in their practice. This information was supplied by the South African Law Society in Annexure E.

(d) Further inquiries with Wentzel & Partners revealed that they are not Notaries and they disowned the so-called Power of Attorney – see Annexure G.

(e) The sixth respondent, convinced that the applicant was using forged documents reported him to the police who arrested and placed him on remand – see Annexure H which shows that the applicant was charged with the following crimes;

(i) Fraud, as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] in that he tendered a false power of attorney to the sixth respondent.

(ii) Contravening section 39(i)(a) of the Regional, Town and Country Planning Act [Chapter 29:12] in that he unlawfully subdivided the land in dispute without a permit from the sixth respondent.

(iii) Fraud, as defined in section 136 of the 'Code' (18 counts) in that with intent to deceive or realizing that third parties mentioned might be deceived and act upon the misrepresentation to their prejudice, the applicant sold residential Stands which are part of the remaining Extent of 100 acre lot of Henry Mangizan which is the land in issue in this application.

The sixth respondent summarised its argument thus;

“11.8 What is clear from the above is that using the Power of Attorney signed as late as the 10^th November 2014, applicant sought to deal with this property. This is why he approached the City Valuer. When he failed, he has tried other means and has filed this court application alleging that the whereabouts of the 1^st – 4^th respondents are unknown. Surely, if the Power of Attorney is authentic, he should be using that Power of Attorney. Further, if it is authentic, then he knows the whereabouts of at least the 1^st respondent, Gavin Edwin Hayler, as his address is on that Power of Attorney. That Power of Attorney, as stated earlier, was only signed on the 14^thof November 2014.

Why then come to court on the 5^th December 2014 less than 30 (thirty) days later and pretend that their whereabouts are unknown and publish something in the newspapers knowing that they will not see that publication. After all to his knowledge, they would be in South Africa, and so why publish in 'The Chronicle' newspaper?

This buttresses our view that the applicant has got serious explanations to make and his application cannot stand.

11.9 We may also draw the Honourable Court's attention to the fact that applicant has brought a number of applications seeking transfer of land to him on the basis that the land had been donated to him. He has sold most of those pieces of land and is now failing to transfer them. What is common in all these cases is that he will target the absent landlords' properties that have not paid rates for more than five years and property owners who are more than 100 years old. He would know that these people would no longer be in Zimbabwe and probably deceased and there would be no-one to contest those applications. It is our view that applicant is perpetrating a massive land scam which must be investigated because innocent people are being or may be defrauded of their hard earned cash.

12. As of now, there are 20 more Stands which are being investigated because he acquired them under dubious circumstances. We hardly spend a day without a person coming to our offices complaining that they bought a Stand from him and that he is failing to transfer it to them. These donations are suspicious and must therefore be investigated because the Donors are all white, who have not paid rates for a long time and he would divert the bills to his box number first before claiming a Donation. The Donors are in most cases no longer in Zimbabwe and are either deceased or too old.

13. It is our view, therefore, that this application should be dismissed as applicant is not entitled to the transfer of the property. At the very least, he should explain that Power of Attorney and why it has turned out to be fake. He must explain why he did not use that Power of Attorney for purposes of this application and why he is now pretending that he does not know the whereabouts of the 1^st respondent when it is endorsed on that Power of Attorney. In any event, the sale agreement is suspect as stated above.”…,.

As a result of these fraudulent machinations, the sixth respondent prayed for the dismissal of the applicant's case with costs at an attorney and client scale.

I have deliberately set out the parties' averments in their papers in order to expose not only the seriousness of the allegations but also the response to those allegations. Let me turn to the applicant's responses in the answering affidavit.

I must point out that I find the applicant's argument not only flawed but also anchored on fragile reasoning. I say so for the following reasons:

(a) When it was pointed out to him that Gavin Edwin Hayler (Gavin) could not represent the company in the Agreement of Sale since there is no company resolution authorizing him to do so, his response was;

'All relevant documents' were exhibited to him at the time of contracting.

Interestingly, he does not specify or attach these documents to his answering affidavit. Surely, once challenged, the evidentiary burden shifted to him to prove this point. He did not do so. Instead, he proffered a lame and unconvincing explanation.

(b) Further, upon being confronted with an averment that for the Agreement of Sale to be valid, the applicant would have needed Powers of Attorney from the beneficial owners authorizing Gavin to sign on their behalf, the applicant exposes his naivety by stating;

“It is therefore premature for the 6^th respondent to speculate that those relevant papers will not be produced before the 5^th Respondent.”…,.

Now, what I find preposterous and unbelievable is that this contention presupposes that these 'relevant documents' are in the applicant's possession and that he will produce them at the appropriate time, namely, before the fifth respondent for purposes of transferring title to himself. The critical and determinative question that begs an answer is why has the applicant failed to produce these documents now in order not only to strengthen his case, but, more importantly, to be candid with the court.

Why is he withholding such crucial pieces of evidence from the court?

I take the view that the applicant's failure to attach these documents is a clear indicator of his full knowledge that these documents are fictitious, or, at the very least, are bogus in that they were fraudulently acquired.

The applicant's response is thoroughly incredible.

(c) Also, he has unsatisfactorily dealt with the question of how the pretium was paid. Asked about proof, in the form of a receipt, all he could say was;

“It was paid in casu upon signing of the agreement.”

The applicant should have done more by perhaps attaching affidavits from those indicated as witnesses to the agreement. He, in fact, has not fully identified these 'witnesses' to the Agreement of Sale.

(d) The applicant admitted that he approached the sixth respondent's City Valuer brandishing the bogus power of attorney. He contended that the purpose was “not meant for conveying title to me, but for subdivision of the property.” See paragraph 14 of his answering affidavit. The purpose for which he produced the forged document is neither here nor there.

In any case, why was the applicant subdividing property that has not been registered in his name?

(e) When the applicant was challenged to explain why he contended, in an affidavit signed on 5^th December 2014, that:

'He does not know the whereabouts of the respondents' when less than a month earlier, he met with the respondent, obtained a power of attorney and gave the first respondent his own details, he wrote, in paragraph 10 of his Answering Affidavit;

“My dealings with 6^th respondent and its officials was strictly on business basis and not as an employee. I must state that it is not correct that I travelled to South Africa in November 2014 to meet the 1^st respondent. The said Power of Attorney was attested to in my absence and posted to me. 1^st respondent used to do hunting and safari business in Zimbabwe. I lost contact with him in 2008. However, one of his business associates indicated that he had come into contact with him during hunting expeditions in the transfrontier game parks and other conservancies in Zimbabwe and the Southern Region. I then agreed that 1^st respondent grant me a power of attorney for purposes of subdivision of the property in dispute. I did not travel to South Africa at this stage as alleged.”…,.

What is noteworthy here is that the applicant has deliberately not divulged the name of the so-called 'business associate'. Not only that, the applicant has not provided details of how this mysterious person assisted him to communicate with Gavin Edwin Hayler. More importantly, the applicant does not mention where and when he himself met this person. Even the description of the hunting area is vague.

In my view, this whole episode is a figment of the applicant's imagination. It never took place at all.

(f) Although admitting that the power of attorney “turned out to be unauthentic”, the applicant stated that this, in fact, spurred him to mount this application. Astonishingly, he omitted to mention this fact in his founding affidavit. He also did not attach the forged power of attorney. All he said is;

“My predicament now is that I have lost touch with the respondents and I am, as such, unaware of their present whereabouts.”…,.

What is puzzling is why the applicant was not candid with the court.

He certainly did not put the court into his confidence by intentionally concealing this crucial fact from its eyes. It appears the applicant was trying to pull the proverbial wool over the court's eyes. More interestingly and baffling is why Gavin Edwin Hayler would, mero motu, forge a power of attorney that would benefit the applicant.

This is not only odd but highly improbable and illogical too.

(g) The applicant used the fake power of attorney well knowing that it was bogus. It purports to appoint him as Gavin Edwin Hayler's “attorney in Zimbabwe…,” when it is common cause that the applicant is not an attorney in Zimbabwe. Notwithstanding, he proceeded to parcel out land and sell it to innocent third parties. The so-called power of attorney tells a lie and the applicant, nevertheless, used it and eventually uttered it to the City Valuer.

(h) As regards the criminal charges, the applicant has proffered a bold denial without addressing his mind to the specific factual averments therein. He has deliberately avoided to explain why he subdivided the land in question in October 2014 without a permit from the sixth respondent. More tellingly, he has skirted the allegation that he sold portions of the land in question between October 2014 and February 2015 before he acquired title to that land.

(i) For some strange reasons, the applicant totally underplays the seriousness of the criminal charges he is facing. In his answering affidavit, he adopts a cavalier approach in stating that the charges were not sustainable as I was 'placed off remand.' Further, in his heads of argument, he submitted that;

“…, the criminal charges against the applicant, which were preferred at the instance of the 6^th respondent, were withdrawn by the National Prosecuting Authority for lack of merit and evidence as shown by annexure I…,. There is no basis whatsoever to impugn the applicant's bona fides in the circumstances.”…,.

Quite to the contrary, Annexure I, which is an extract from the Court Record Book, shows the result as “Further remand refused. State to proceed by way of summons.”

Therefore, to state that the charges were withdrawn for lack of evidence, is to misrepresent the facts.

In my view, the charges and facts, as outlined in the State Outline, constitute a solid and reasonable basis for the suspicion that the applicant is engaged in fraudulent activities. A prima facie case has clearly been established. The fact that the State will proceed by way of summons does not make the allegations less serious, doubtful or ice cold. These charges are certainly not dead and buried; to the contrary, they are alive and kicking.

(j) While the applicant's founding affidavit is silent on what efforts he made to locate the first respondent, or any of them, he, surprisingly, in paragraph 13 of his answering affidavit, has the audacity to state;

“A fair attempt had been made to locate the 1^st respondent but to no avail. Hence, the court application was lodged in December 2014.”

This submission falls short of stating what exactly it is that the applicant did to locate the first respondent. More significantly, he does not say why he did not go to the address on the power of attorney in South Africa. Such conduct is very odd and illogical.

I take the view that the applicant did not go there, or attempt to initiate any kind of communication with the first respondent at that address, because he knew the first respondent was not resident at that address.

(k) The applicant's denial of the allegation that he targets absentee landlords' properties is hollow in that while he, tongue in cheek, states;

“The property owners, who have either sold me land or donated to me, are all in Zimbabwe and alive.”

He has dismally failed to parade them before the sixth respondent to prove his case once and for all. The applicant is the only person who knows where these people are.

Surely, if these people freely and voluntarily sold or donated their properties to the applicant, why is it that all of them have suddenly become difficult to locate. Is it a mere coincidence that the applicant has failed to produce even a single seller or donor. I think not.

In the result, I find that the applicant has not dealt with this allegation in a meaningful manner….,.

Evidently, the applicant, unashamedly, intends to feather his own nest at the expense of other people's sweat. Obviously, such conduct is disgraceful and outrageous in that the applicant could be stealing from the dead. In my view, to grant this application would intolerably hurt the conception of justice in the minds of sensible and fair-minded persons.

For these reasons, I am convinced, on a balance of probabilities, that the Agreement of Sale and the power of attorney are forged documents. Consequently, the so-called sale is a sham and this court cannot enforce an illegal contract. I find the explanation given by the applicant untenable, mainly because he is not being truthful. His reasoning, submissions and conclusions are so flawed that nothing meaningful comes out of them. The applicant has failed, on a balance of probabilities, to establish good cause for the order he seeks….,.

Accordingly, it is ordered that the application be and is hereby dismissed with an award of costs on attorney and client scale.

HH138-15 : GOLD DRIVEN INVESTMENTS vs WILLEMSE FARMING ENTERPRISES (PVT) LTD and FREDRICK CHRISTIAN MULLER
Ruled By: MATHONSI J

A party who has caused the other's breach by making it impossible or nugatory to perform cannot found any claim on the breach he has thus precipitated….,. The breach it committed vitiated any remedy it may have had. This is a basic principle of the law of contract…,.

HH128-06 : DOBROCK HOLDINGS (PVT) LTD and TURNER AND SONS (PVT) LTD vs TURNER AND SONS (PVT) LTD and ANTHONY TURNER and MARTIN KING and ZAMBEZI PADDLE STEAMER (PVT) LTD and DOBROCK (PVT) LTD
Ruled By: KUDYA J

An order for the consolidation of these two matters was granted by UCHENA J, by consent, with no order as to costs, on 2 June 2006, for hearing before me on 7 June 2006 in Case Number 3157/06.

The first application, Case No. HC5186/05, concerns an order for specific performance while the second one, Case No.5264/05 seeks an order for the provisional liquidation of Zambezi Paddle Steamer (Pvt) Ltd (hereinafter called ZPS).

On 7 June 2006, at the request of the parties, I postponed the hearing to 13 July 2006.

When the hearing resumed, Mrs Wood, for Turner and Sons (Pvt) Ltd, applied for the forced recusal of Mr de Bourbon, for Dobrock (Pvt) Ltd, on the basis that he had been an arbitrator between these parties in 1994.

She referred to Pertisilis v Calaterra & Anor 1999 (1) ZLR 70 (H) as authority for the proposition that the legal practitioner who acted for a former client is precluded from representing a different client in circumstances where a conflict of interest is likely to arise between the former and present client. SMITH J set out the basis of the rule…, as being that:

“A legal practitioner who represents the adversary of his own client in litigation would clearly be violating his or her duty of loyalty and the common law rules against conflict of interest.”

He proceeded to survey American, English, South Africa, and Zimbabwean decided cases on the point at pages 74C–77F.

While he held that neither a partner nor his employee could represent an opponent of a former client in order to fulfill the adage that justice must not only be done but that it must manifestly and undoubtedly be seen to be done, he nevertheless permitted a partner to represent the opponent on the basis that there was no allegation that the other partner had acquired information from the papers in the possession of his firm which could be used to the former client's disadvantage.

Mrs Wood contended, that, justice will not be seen to be done if Mr de Bourbon was allowed to represent Dobrock (Pvt) Ltd, especially on the liquidation case, where Turner and Sons allege a deadlock has manifested itself between the joint shareholders, a fact found by Mr de Bourbon, as arbitrator, to exist in his 25 June 1994 ruling.

She further foresaw a need to call Mr de Bourbon on the deadlock issue in the liquidation case.

Mr de Bourbon countered by contending that he did not represent either Dobrock (Pvt) Ltd or Turner and Sons (Pvt) Ltd but acted in a quasi-judicial capacity.

He knew of no law which debarred him from representing either party as long as he had not possessed confidential information which could be used to the detriment of his client's adversary. He referred to Benmac Manufacturing (Pvt) Ltd v Angelique Enterprises (Pvt) Ltd 1988 (2) ZLR 52 (H).

In that case, Mr de Bourbon accepted a general retainer from Angelique Enterprises in a matter in which that company was involved in a dispute with Albco. He was, at that time, already seized with a retainer for Benmac Manufacturing in its contest with Angelique Enterprises, supra. He had accepted the retainer in the matter against Albco after assurance from his instructing attorney that there would be no conflict of interest.

It was accepted, in that case, by that attorney, that, he had not come into contact with any confidential information which would prejudice Angelique Enterprises in its contest with Benmac. The Law Society, and two other counsel, had absolved him of any impropriety, but, the Managing Director of Angelique Enterprise, Mr Holland, was not satisfied with their findings and advice.

REYNOLDS J held, that, Angelique Enterprises had not shown that Mr de Bourbon had in fact become acquainted with information that could be used to its detriment which would result in real mischief and real prejudice if he continued to act for Benmac Manufacturing. He did express his reservation on a legal practitioner acting for and against his client in the same or different matters.

Mr de Bourbon submitted that he had not acquired any information that he could possibly utilize to the prejudice of Turner and Sons (Pvt) Ltd and that his impartiality in 1994 had not been impugned by any of the parties.

I went through the arbitral award.

It concerned and dealt with the share of each joint shareholder in the extra costs, which were above the original cost of construction of the large commercial houseboat which Zambezi Paddle Steamer (Pvt) Ltd (ZPS) was to own.

Turner and Sons (Pvt) Ltd was not able to show what information Mr de Bourbon accessed which could prejudice its present defence and claim. If anything, I was satisfied that the arbitral award stands on its own and there would be no need to call the arbitrator to testify on it.

I accordingly dismissed the application for the forced withdrawal of Dobrock (Pvt) Ltd's counsel.

I also postponed the hearing sine die and granted, by consent, authority to Turner and Sons (Pvt) Ltd to file a further affidavit in response to Dobrock (Pvt) Ltd's supplementary affidavit.

I further reserved the question of costs in the provisional liquidation claim to which these additional affidavits pertained.

I eventually set down the matter for hearing on 1 November 2006. I directed that the parties argue the specific performance case first and thereafter proceed to argue the liquidation case.

On 12 October 2005, Dobrock (Pvt) Ltd filed the court application for specific performance against Turner and Sons (Pvt) Ltd and two others. It sought the following order:

“1. That, the respondents, jointly as well as severally, the one paying the other to be absolved shall forthwith undertake all that is necessary and required, including making all payments and completion and signing all documents required in order to procure transfer, without delay, by first respondent to applicant of first respondent's entire shareholding in Zambezi Paddle Steamer (Pvt) Ltd.

2. That, immediately upon registration of transfer in the share register of Zambezi Paddle Steamer (Pvt) Ltd (ZPS) applicant shall pay to first respondent the balance of the purchase price for the said shares; such balance being the sum of $138 million.

3. That, the respondents, jointly as well as severally, the one paying the other to be absolved, shall pay the costs of this application on the scale of legal practitioner and own client.”

The application was served on the three respondents on 13 October 2005 (see Peter Dobson's opposing affidavit of 9 November 2005 for which this averment was accepted by Antony Turner on 2 December 2005).

The three respondents filed their opposition papers on 27 October 2005 and prayed for the dismissal of the applicant's case with costs on the higher scale and made reference to the liquidation claim, case number HC5264/2005.

Case number 5264/05 is a court application brought on 17 October 2005 by Turner and Sons (Pvt) Ltd against Zambezi Paddle Steamer (Pvt) Ltd and Dobrock (Pvt) Ltd. It prayed for the winding up of Zambezi Paddle Steamer (Pvt) Ltd and that a liquidator be appointed in the following terms:

“1. That, first respondent, Zimbabwe Paddle Steamers (Pvt) Ltd be provisionally wound up pending the granting of an order in terms of paragraph 3 hereof or the discharge of this order.

2. That, Mrs Theresa Grimmel, of KPMG Chartered Accountants, Mutual Gardens, 100 The Chase, Emerald Hill, Harare be appointed as provisional liquidator of first respondent company with the powers set out in section 221 of the Act.

3. Any interested party appear before this court sitting at Harare on (a date sixty days from the date of the order) to show cause why an order should not be made placing first respondent's company in liquidation and order that the costs of these proceedings all be costs of the liquidation.

4. That, this order shall be published once in the Government Gazette and once in the Herald Newspaper. Publication shall be in the short form annexed to this order.

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

5.1. Give due notice to the applicant at Messrs Byron Venturas & Partners, 2nd Floor Tanganyika House, Corner 3rd Street/Kwame Nkrumah Avenue, Harare.

5.2. Serve on the applicant, at the address given above, a copy of any affidavit which he files with the Registrar of the High Court.”

The application for provisional liquidation was served on the respondents on 17 October 2005, who entered opposition on 31 October 2005 and filed, on that day, their opposing affidavit by fascimile. The actual opposing affidavit was filed on 9 November 2005.

These two applications were consolidated on the bases that the principal parties were the same and that the fundamental issue in each matter related to the ownership and management control of Zambezi Paddle Steamer (Pvt) Ltd (ZPS).

The pleadings in these consolidated matters are voluminous.

The founding, opposing, answering and supplementary affidavits are reinforced by an assortment of attachments which consists of the Memorandum of Association of Zambezi Paddle Steamer (Pvt) Ltd, electronic mail between the parties, and other documents raised by various people who worked for the parties in various capacities.

I have read all these documents.

It is apparent from these documents that there are areas in which the parties agree and others where they are at variance.

It is appropriate that I first deal with the facts as I have determined them to be from the wealth of information that is set out in the pleadings in both these cases.

The preliminary details on the formation of Zambezi Paddle Steamer (Pvt) Ltd (ZPS), on 3 April 1989, are set out in detail by Anthony Turner (Antony) in his founding affidavit in the liquidation matter, case HC5264/05 (Case No.2). Those details were admitted to by Peter Jameson Dobson (Peter) in his opposing affidavit in that case.

Turner and Sons (Pvt) Ltd agreed with Dobrock (Pvt) Ltd, in 1988, on a joint venture to construct and thereafter operate a 'Mississippi River Boat' for commercial use on Lake Kariba.

The concept of the “Southern Belle” was created by Turner and Sons (Pvt) Ltd who approached Dobrock (Pvt) Ltd.

Dobrock (Pvt) Ltd agreed to become its joint partner in the venture and to provide working capital and investment in the project.

Zambezi Paddle Steamer (Pvt) Ltd was incorporated as the special purpose vehicle through which the large commercial houseboat, MV Southern Belle, would be owned and operated.

Zambezi Paddle Steamer (Pvt) Ltd was incorporated in terms of the Companies Act [Chapter 24:03] with an issued share capital of $30,000 divided into 30,000 shares of $1 each fully paid up. Each of the two joint partners subscribed to 15,000 shares of $1 each in Zambezi Paddle Steamer (Pvt) Ltd.

The joint shareholders agreed that Turner and Sons (Pvt) Ltd would first build a model of the craft, and, thereafter, carryout the necessary construction work and interior design of the vessel at a contracted price. Dobrock (Pvt) Ltd would source both local and foreign raw materials for this construction. The total costs of both these operations would be the total cost of the vessel and would be met equally by the joint shareholders.

The agreement was reduced to writing and signed on 31 May 1991.

The arbitral award, of 15 June 1994, indicated that the vessel was completed in 1994. The original construction price was set at $5,950,000.

The issue before the arbitrator centred on the amount by which the original contract price increased, which issue he resolved.

Zambezi Paddle Steamer (Pvt) Ltd was run for 18 months, from the completion of the vessel in 1994, by Turner and Sons (Pvt) Ltd. Dobrock (Pvt) Ltd thereafter took over the management control of Zambezi Paddle Steamer (Pvt) Ltd and appointed a Managing Director, Adamson, to run it.

It was common cause, that, from 2000, the tourism industry went into decline and this affected the bottom line of the MV Southern Belle operations of Zambezi Paddle Steamer (Pvt) Ltd.

There is evidence, in the form of electronic mail exchanged between Peter Jameson Dobson and Anthony Turner, the principal shareholders in Dobrock (Pvt) Ltd and Turner and Sons (Pvt) Ltd, respectively, between 19 January 2003 and 7 April 2004, that, the joint shareholders were prepared to sell their respective shareholdings in Zambezi Paddle Steamer (Pvt) Ltd to the right suitor - if one came along.

On 4 May 2004, Zambezi Paddle Steamer (Pvt) Ltd Managing Director presented a report which highlighted the difficult circumstances the commercial houseboat operations were in. It required urgent maintenance and refurbishment to attain its former glittering glory.

On 6 June 2004, Anthony Turner indicated his decision to sell his shares in the commercial houseboat to Peter Jameson Dobson. This was a clear pointer to his unwillingness to inject funds for maintenance and refurbishment of the houseboat.

On 18 June 2004, Peter Jameson Dobson indicated his willingness to inject $250 million, for this purpose, provided his shareholding in Zambezi Paddle Steamer (Pvt) Ltd increased by 10% while that of Anthony Turner was reduced by the same percentage. He suggested that the houseboat was valued at approximately $3.5 billion. He followed up this by another e-mail of 25 June 2004.

He received a response on that same day (contained in an email wrongly dated as 6 June 2004) from Anthony Turner in which he offered him his shareholding in Zambezi Paddle Steamer (Pvt) Ltd for the sum of $250 million.

Peter Jameson Dobson duly accepted the offer.

He came to Harare, and, during the period 28 June to 14 July 2004, discussed with Anthony Turner on the terms of payment of Antony's entire shareholding.

He agreed to procure payment where and when Anthony Turner wanted.

The purchase price was agreed at $250 million. It was to be paid by Peter Jameson Dobson into the account of Antony's daughter, Jenny, in the United Kingdom, the bank account details of which he received.

The following day, after the terms of payment had been agreed, Anthony Turner requested part payment of the purchase price in local currency.

Peter Jameson Dobson alleged that he made out cheque payments to Chitekeshe of $115 million and to Vretto of $25 million, as part payment, a total of $140 million which Anthony Turner used to buy a pick-up truck.

This averment was not disputed by Anthony Turner, yet, he maintained, in his other affidavits, that, he was paid $138 million and $112 million remained outstanding.

Peter Jameson Dobson, in his prayer, and in Mr de Bourbon's submissions on behalf of Peter's company, accepted that the outstanding purchase price was $112 million.

No cheques or proof of payment in the sum of $140 million was produced.

I am therefore prepared to hold, that, Peter Jameson Dobson paid $138 million and had an outstanding balance of $112 million.

Anthony Turner averred, in his opposing affidavit, that, he required £12,000 to import a new engine for the craft that he was building, known as the “Zambezi Trader”. This craft would not be in competition with the houseboat at all and he was building it for his own account with the moral support and blessing of Peter Jameson Dobson.

Peter Jameson Dobson agreed to pay this amount into his daughter's bank account in the United Kingdom.

He repeated this allegation in paragraphs 31 and 32 of his founding affidavit in Case No. HC5264/05.

This was to be in lieu of the balance of the purchase price of $112 million.

In Case No. 5264/05, in paragraphs 26 and 27 of his opposing affidavit, Peter Jameson Dobson did not respond to these averments in so far as they refer to the alleged mode of payment in foreign currency.

That payment was to be in foreign currency is clear from Peter Jameson Dobson's own founding affidavit.

In paragraph 18, he averred, that, even when he met Anthony Turner, per chance, at the Borrowdale Race Course, in November 2004, he reassured him, that, notwithstanding the fall in the value of the Zimbabwean dollar against the Pound Sterling, the amount outstanding as the purchase price remained £12,000 being the amount in pounds in July 2004.

The two gentlemen agreed, that, the accountant and company secretary of Zambezi Paddle Steamer (Pvt) Ltd, Paul Turner (Paul), a partner in Ernst and Young Chartered Accountants, would effect the share transfer and receive Anthony Turner's letter of resignation as a director therein.

There was a delay in the transfer of the shares which was occasioned by Paul Turner's attempts to structure a tax avoidance scheme for the benefit and at the insistence of Antony Turner.

I make this finding based on Antony Turner's deliberate failure to respond to Paul Turner's affidavit, which was filed in support of Peter Jameson Dobson's founding affidavit.

It was agreed, that, on 3 August 2004 and 21 August 2004, Peter Jameson Dobson wrote to Anthony Turner enquiring whether or not he had signed the necessary transfer documents and resigned as a director of Zambezi Paddle Steamer (Pvt) Ltd - the two factors which would trigger the payment of the balance of the purchase price by Peter.

It also appears, that, even on 5 November 2004, a date disputed by Athony Turner, who put it as being sometime in September 2004, when the two met at Borrowdale Race Course, Antony intimated that he had been too busy to visit Paul Turner. The parties re-affirmed, that, despite an adverse movement of the Zimbabwe dollar since July 2004, the balance of the purchase price would be paid into Antony's daughter's account in the United Kingdom at the exchange rate agreed in July 2004.

On 17 January 2005, Antony Turner proceeded to appoint Peter Drummond and Martin King as directors of Turner & Sons (Pvt) Ltd, in his stead, who were charged with the responsibility of overseeing Turner & Sons (Pvt) Ltd's interests in the Southern Belle.

A flurry of e-mails followed which attempted to resolve the issue of the sale of Antony Turner's shares in Zambezi Paddle Steamer (Pvt) Ltd, who was claiming, that, the failure by Peter Jameson Dobson to pay the balance of the purchase price timeously amounted to repudiation of the contract.

He therefore regarded himself released from the contract.

The negotiations by the parties culminated in a letter of 23 August 2004 by Turner & Sons (Pvt) Ltd's erstwhile legal practitioners to Dobrock (Pvt) Ltd's legal practitioners which set out the history of their association.

In that letter, Turner & Sons (Pvt) Ltd indicated that it would seek an order to wind up the company in terms of section 206(g) of the Companies Act [Chapter 24:03].

Dobrock (Pvt) Ltd held the firm belief that it had purchased Turner & Sons shareholding and was therefore the sole shareholder in Zambezi Paddle Steamer (Pvt) Ltd.

These disagreements resulted in the two applications, for specific performance and liquidation, that are now before me.

The first issue for determination is whether or not a binding contract of sale was reached between Dobrock (Pvt) Ltd and Turner & Sons (Pvt) Ltd.

It is, I believe, common cause that an agreement of sale was entered into.

In its opposing affidavit, in paragraph 17, Turner & Sons (Pvt) Ltd acknowledges that the parties had a loose gentleman's agreement. Antony Turner concludes that paragraph by stating that "I believe, with respect, that the only explanation that is reasonable in the circumstances is that applicant repudiated the contract."

Paragraph 49(iii), in Case No. HC5264/05, by Turner & Sons (Pvt) Ltd, is to the same effect.

Turner & Sons (Pvt) Ltd's defence was, in the main, predicated on repudiation by conduct of the contract that was executed between the parties. Indeed, Mrs Wood, for Turner & Sons (Pvt) Ltd, in paragraph 2 of her written heads of argument, wrote:

"It is apparent from the applicant's own case that the agreement in question was very loose even if it was binding between the parties."

Counsel concentrated their submissions on the question whether time was of the essence in the performance by Dobrock (Pvt) Ltd of the term relating to payment of the outstanding purchase price.

It was on the assumption that it was of the essence that Turner & Sons (Pvt) Ltd alleged repudiation.

The onus, in my view, lies on Turner & Sons (Pvt) Ltd to show that time was of the essence and that the failure by Dobrock (Pvt) Ltd to act timeously entitled it to rescind the contract.

Turner & Sons (Pvt) Ltd blamed Dobrock (Pvt) Ltd for the delay in paying the balance of the purchase price.

The facts, as I find them, do not bear out the correctness of Turner & Sons (Pvt) Ltd's view.

Paul Turner indicated, in his unchallenged affidavit, that, the tax avoidance scheme was initiated at the instance of Antony Turner, and was for Turner & Sons (Pvt) Ltd's benefit.

My view is that, at that stage, Paul Turner was working as an agent of Turner & Sons. It became, in my finding, the duty of Turner & Sons to impress on him to act with speed if time was of the essence to it.

It is clear to me, that, Antony Turner understood and appreciated that the balance of the purchase price would not be paid out until the share transfer had been effected by Paul Turner; until Antony Turner had resigned as a director of Zambezi Paddle Steamer (Pvt) Ltd; and, until Antony Turner had obtained a capital gains clearance certificate from the Zimbabwe Revenue Authority (ZIMRA).

The delay cannot, therefore, be attributed to Dobrock (Pvt) Ltd.

Peter Jameson Dobson, after all, was desirous that transfer be effected with speed as shown by his enquiries of 4 August and 21 August 2004 which Antony Turner did not acknowledge.

Antony Turner never did challenge the averment, that, when they met at Borrowdale Race Course, he indicated that he was responsible for the delay for he was too busy to make a follow up with Paul Turner.

Paul Turner, after all, was acting, as regards the tax avoidance scheme only, as an agent of Antony Turner.

It is therefore my finding, on the papers, that, it was in fact Antony Turner who was responsible for the delay. He could not, therefore, lawfully repudiate the contract by projecting his own inaction onto Dobrock (Pvt) Ltd.

HH73-15 : FUNGAI NHAU vs MEMORY KAFE and CHIPO NKUDZI
Ruled By: MATHONSI J

On the issue of locus standi, the plaintiff has stated in his declaration that he was allocated a Stand by a co-operative in consideration for payment of money. The Stand is registered in his name at the Municipality of Harare. In spite of all that, the defendants “unlawfully and violently evicted” him from the property after he ...

HB129-16 : FANELE MAQELE and ALDRIN NYABANDO and TENDAI WARAMBWA vs VICE CHANCELLOR, PROFESSOR N.M BHEBHE N.O. and MIDLANDS STATE UNIVERSITY
Ruled By: MATHONSI J

The respondents are seeking to rely on their own default to deprive the applicants a remedy, suggesting that the applicants have created the urgency.

CC01-18 : TIMOTHY SANGO and EDWARD DUMBURA vs BOARD OF TRUSTEES OF THE ANGLICAN DIOCESE OF MANICALAND and THE CIVIL SERVICE COMMISSION and MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: CHIDYAUSIKU CJ and MALABA DCJ and GWAUNZA JCC and GOWORA JCC and HLATSHWAYO JCC and PATEL JCC and GUVAVA JCC and MAVANGIRA AJCC and BHUNU AJCC

An exercise of a right may bring about undesired consequences. These include reactions by others whose interests are adversely affected by the exercise of one's right. The applicants cannot seek protection from consequences of their own voluntary acts.

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SC13-18 : TBIC INVESTMENTS PL and PAUL CHIDAWANYIKA vs KENNEDY MANGENJE and MINISTER OF LANDS and RURAL DEVELOPMENT and REGISTRAR OF DEEDS and ATTORNEY GENERAL and COMMISSIONER OF POLICE
Ruled By: GWAUNZA JA, GOWORA JA and BHUNU JA

I note, in passing, that the prevalence of fraudulent and corrupt disappearance of records and documents in the Deeds Registry has now reached alarming proportions. This prompted MATHONSI J to lament, in the case of Cosmas Luckson Zavazava and Anor v Tendai Anania Tendere and 2 Ors HH740-15, to remark as follows: “It would appear that conveyancing laws ...

View Appeal
HH193-16 : GRANDWELL HOLDINGS PL vs MINISTER OF MINES and ZIMBABWE MINING DEVELOPMENT CORPORATION and MARANGE RESOURCES PL and ZIMBABWE CONSOLIDATED DIAMOND COMPANY and MBADA DIAMONDS PL and ANOR
Ruled By: MAFUSIRE J

The law says no one maintains an action from his own wrong: see Riggs v Palmer [1899] 115 NY 506, NE 188; “All courts may be controlled in their operation and effect by general, fundamental maxims of the common law. No one shall be permitted to profit from his own fraud, or to take advantage of his own ...

View Appeal
HH24-16 : MEGALINK INVESTMENTS (PVT) LTD and OWEN PETER MURUMBI and THERESA MUSINA vs AFRICAN CENTURY LIMITED and SHERIFF OF ZIMBABWE
Ruled By: TSANGA J

The applicant's counsel…, did not object to the absence of heads of argument from the respondent presumably due to the applicant's own stance, in correspondence with the Registrar, that heads had not been necessary in the initial chamber application.

Appealed
SC46-18 : CITY OF HARARE vs TAWANDA MUKUNGURUTSE and PATRICK CHIKOHORA and CLEDWYN MUTETE and MINISTER OF LOCAL GOVERNMENT PUBLIC WORKS AND NATIONAL HOUSING
Ruled By: GARWE JA, GUVAVA JA and ZIYAMBI AJA

On the question of costs, the respondents' success on appeal should normally carry with it an award of costs. However, for the reasons given by the court a quo, and set out below, which sentiments I endorse, I will order each party to pay its own costs. The learned Judge said the following: “In a nutshell, ...

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HH558-16 : TAWANDA MUKUNGURUTSE and PATRICK CHIKOHORA and CLEDWYN MUTETE vs CITY OF HARARE and MINISTER OF LOCAL GOVERNMENT RURAL AND URBAN DEVELOPMENT
Ruled By: TAGU J

It must be noted however, that the person who allocated the land on which the applicants illegally built their houses is not the City of Harare who is cited as the first respondent. The applicants were illegally allocated the said land by a co-operative. The said cooperative was served with notifications by the first respondent, as per ...

Appealed
SC49-18 : RICHARD SIBANDA and JONAH MUDONDO and L. D. MATEZA vs THE APOSTOLIC FAITH MISSION OF PORTLAND OREGON (SOUTHERN AFRICAN HQ) INC.
Ruled By: GOWORA JA, HLATSHWAYO JA and UCHENA AJA

A party who is suspended from an organisation must, in the first place, legally confront such suspension instead of resorting to the devious ruse of challenging the locus standi of such organisation or any person appointed in their stead, in order to escape judicial scrutiny of their conduct.

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HH463-15 : APOSTOLIC FAITH MISSION OF PORTLAND OREGON (SOUTHERN AFRICAN HQ) vs REV. RICHARD SIBANDA and JONAH MUNONDO and REV. L.D MATEZA and JULIUS T MATOPE
Ruled By: DUBE J

The applicant maintains that the respondents have violated scriptural doctrine by litigating, and, for that matter, in secular courts. I must observe that the applicant appears to have fallen foul of the same misdemeanour complained against it. It has also sought redress in the same 'secular courts'.

HH250-18 : WIDE FREE (PVT) LTD t/a CORE SOLUTIONS vs MEIKLES LTD
Ruled By: MUREMBA J

In conclusion, refusing to recognize the award in the present case will be allowing the respondent to take advantage of the situation it deliberately engineered. It deliberately chose not to proceed with the matter despite being given an opportunity to present its case.

HB137-16 : TETRACH ENTERPRISES (PVT) LTD vs IRVINE MANHIRE and TECHMATE ENGINEERING (PVT) LTD and MUNICIPALITY OF KWEKWE
Ruled By: MATHONSI J

The applicant seems to be hiding behind a finger, not a very effective instrument for cover, and is obviously taking advantage of an insignificant error in records to try and reverse what is, on the face of it, a genuine sale. There must have been a reason for the parties to record the name of the seller ...

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CC10-19 : THE STATE vs WILLARD CHOKURAMBA (JUSTICE FOR CHILDREN'S TRUST INTERVENING AS AMICUS CURIAE and ZIMBABWE LAWYERS FOR HUMAN RIGHTS INTERVENING AS AMICUS CURIAE)
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, HLATSHWAYO JCC, MAVANGIRA JCC, BHUNU JCC, UCHENA JCC and MAKONI AJCC

The use of unauthorized means cannot be justified on the basis of the legitimate objective sought to be achieved….,. In Ex parte Attorney-General, Namibia In Re Corporal Punishment by Organs of the State 1991 (3) SA 76 (Nm. SC)…, MAHOMED AJA…, said: “…., Means otherwise un-authorised by the law do not become authorised simply because they seek to ...

HH198-16 : TANIA ROCHE (as Curator Bonis of Anita Bruk-Jackson) vs IAN MIDDLETON (as Testamentary Executor to Estate Late Chester Bruk-Jackson) and THE MASTER OF THE HIGH COURT
Ruled By: CHITAKUNYE J

The applicant's claim that the estates were merged is also defeated by her own action upon being appointed curator bonis. It is common cause that upon being appointed curator in 2013 she disposed of the only immovable property that was solely owned by Anita June Bruk-Jackson. After the disposal she then had a misunderstanding with the executor of the estate ...

HH461-15 : PATTERSON TIMBA vs REGGIE SARUCHERA N.O. and RESERVES BANK OF ZIMBABWE and NATIONAL SOCIAL SECURITY AUTHORITY and RENNAISSANCE FINANCIAL HOLDINGS LTD and RENAISSANCE MERCHANT BANK LTD
Ruled By: MAKONI J

Counsel for the applicant submitted that the first respondent was cited in his official capacity. The post was removed, therefore, he ceases to be before the court. There in no-one to insist on costs. He referred the court to Gariya Safairs (Pvt) Ltd v Van Wyk 1996 (2) ZLR 246 (HC). A party claims for costs because he ...

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HH273-16 : KINGDOM BANK LIMITED vs THE RIGHT INVESTMENTS (PVT) LTD and OPIUM INVESTMENTS (PVT) LTD and PHILLIPA COUMBIS
Ruled By: CHAREWA J

The plaintiff does not deny that all the loan agreements state that the principal debtor is Stir Crazy Group of Companies but avers that this was a non-material error common to the parties and which does not vitiate their consensus….,. Further, the plaintiff avers that the defendants are the authors of the error and cannot use it ...

HH43-09 : ZIMBABWE OPEN UNIVERSITY vs DR. O MAZOMBWE
Ruled By: HLATSHWAYO J

The applicant seeks an order setting aside the registration of an arbitral award granted in favour of the respondent. The award was submitted for registration at the High Court in terms of the provisions of the Labour Act [Chapter 28:01] and was duly registered on 25 February 2008. The applicant submits that the registration of the award ...

HB02-12 : MUNICIPALITY OF VICTORIA FALLS vs LOIDA NYATHI and 11 OTHERS
Ruled By: NDOU J

These are twelve cases, which were consolidated into two matters, which were heard at the same time.

For easy reference, the one matter involved what may be called the ZimSun houses (five (5) defendants under HC2224/08). The five defendants being Alice Ndlovu, Sivumo Ndlovu, Kambarachi Zex Raura, Freda Khumalo and Simolita Maseko.

The other matter involved what may be called the National Housing Fund (“NHF”) houses ((seven (7) defendants under HC2225/08). The seven defendants being Loida Nyathi, Everson Ndebele, Collen Ndebele, Phindile Ncube, Sihlobo Sibanda, Shadreck Ndlovu and Stephen Ndlovu.

The trial lasted twelve days, which is understandable, considering that there were two witnesses for the plaintiff and twelve (12) witnesses for the defendants i.e. all the defendants.

Two of the defendants had died by the time the trial commenced, and they were substituted by the executrix of their estates.

There was a bundle of documents with slightly over four hundred (400) pages as well as some more documents which were later introduced during the course of the trial. However, a closer analysis will show that the issues are fairly simple, and are similar in the seven National Housing Fund (NHF) houses and the five ZimSun houses.

Basically, it boils down to this:

(a) Is the plaintiff the owner of the twelve houses in question, or are the defendants the owners?

(b) If the plaintiff is the owner, then the plaintiff is entitled to an order for:-

(i) Evicting the defendants.

(ii) Damages.

(iii) Costs of suit.

(c) If the defendants are the owners, then they are entitled to transfer of these houses into their names with an order for costs against the plaintiff.

In essence, the defendants have to prove that there were valid contracts of purchase in respect of each of the houses in dispute. The houses concerned are the following:

Loida Nyathi - House 4251
Everson Ndebele - House 4255
Collen Ndebele - House 4247
Phindile Ncube - House 4242
Sihlobo Sibanda - House 4246
Shadreck Ndlovu - House 4241
Stephen Mpofu - House 4244
Alice Ndlovu - House 4403
Sivumo Ndlovu - House 4401
Smolita Maseko - House 4408
Kambashu Zex Raura - House 4407
Fred Khumalo - House 4400

All these properties are at Chinotimba, Victoria Falls.

Cut to the bone, in all instances, the plaintiff claims that these are pool houses for use by plaintiff employees. The plaintiff contends that the defendants were given these pool houses by virtue of their employment with the plaintiff. It further being contended that upon termination of such employment, each individual defendant will cease to occupy the property in issue.

This position does not apply to one of the defendants, Stephen Mpofu, who was never employed by the plaintiff. His case is different but the bottom line is that he was granted occupation through a lease.

Of the twelve defendants, only two, namely, Sihlobo Sibanda and Smolita Maseko are still in the employ of the plaintiff.

As alluded to above, the defendants' counter claim is for an order directing the plaintiff to take all necessary steps to transfer the various stands to each defendant on the basis that the defendants purchased the Stands on a rent-to-buy scheme.

This is denied by the plaintiff.

It is beyond dispute that these properties in issue are registered in the name of the plaintiff. The plaintiff is the registered owner of these twelve Stands. This point is admitted in paragraph 2.3 of each of the defendants' plea under HC2225/08 and paragraph 2.5 in each defendants' plea under HC2224/08.

There are documents from the Ministry of Local Government (“Ministry”) dated 20 July 2000 (pages 45 and 55 of the bundle of documents) which evince the transfer from the Ministry to the plaintiff.

This creates a problem for the defendants who contend the Stands still belong to the Ministry.

They, however, did not take any legal action against the Ministry to prevent the transfer of the Stands from the Ministry to the plaintiff. Be that as it may, I propose to consider the evidence adduced by the parties in turn.

Phillip Ndlovu

He testified on behalf of the plaintiff. He evinced that he has been the Chamber Secretary of the plaintiff since 2006. Whilst he was not employed by the plaintiff in the 1980s or 1990–1992, when most of the events occurred, from the official records available to him, and from his own investigations, the plaintiff was the legitimate owner of the houses in dispute.

He said that the defendants obtained the houses in question from the plaintiff, because of their employment with the plaintiff or because they were quasi-employees of the plaintiff such as Government teachers working at the plaintiff's schools.

In the case of Stephen Mpofu, he obtained the house because the plaintiff had previously made available accommodation to him. It is his testimony that there was a shortage of houses in Victoria Falls during the 1980s, 1990s and to date. This is evinced by documents like the minute from the parent Ministry dated 15 September 1997 produced as evidence. There are various Council deliberations and resolutions captured in the minutes filed of record which confirm the shortage. Such deliberations and resolutions centered around the necessity to provide the plaintiff's employees with accommodation.

There is a memorandum which goes further to explain that some employees were living in toilets on account of the shortage of houses. The National Housing Policy Frameworks for Zimbabwe: A Review of the Policies and Strategies, confirms the shortage.

The defendants also confirm the shortage and concede that they had to wait for some years before they were allocated the houses.

He said there must have been a connection between the defendants' employment with the plaintiff and the allocation of the houses.

This is an independent witness who spoke of matters which related to his professional responsibilities. He was expounding to the court what he knew and observed from the official records. He has no personal interest to pursue and no hidden agenda.

This is in stark contrast to the defendants who had an obvious massive financial interest in the outcome of this case, namely, to retain the houses which they had been informed, as early as 1993, were not theirs, but were in fact pool houses of the plaintiff.

This witness confirmed that all these disputed houses were registered in the name of the plaintiff. This is important as such registration is matter of substance and not form.

He explained that there were attempts to assist the plaintiff employees to acquire houses through CABS finance. These initiatives came to naught because they required the plaintiff to pay cash deposits on behalf of its employees. As the plaintiff is a creature of the Urban Councils Act, section 148 of the Act made such initiatives impossible.

The plaintiff could only act as a guarantor to the employees and not pay cash deposits on their behalf. In such an event, the plaintiff would still require ministerial approval. There is no record of such approval.

He also significantly testified that none of the defendants has written agreement evincing that they have become owners of these houses.

According to the plaintiff's record, there is nothing that shows that ownership of the houses was passed to the defendants. The defendants paid security deposits and monthly rentals and allied charges but not purchase prices for the houses.

The records clearly show that these are pool houses for use by those in the plaintiff's employ.

All the defendants were given notice to vacate these pool houses after they were allocated residential Stands of their own and they refused to do so. They have defiantly remained in occupation of the plaintiff's houses even when most of them have left the plaintiff's employ save for the two defendants still in the plaintiff's employ. They have not exhibited any contract of sale to the plaintiff.

In brief, they have not shown the legal basis upon which they claim the plaintiff sold them the houses. There is no record produced by the defendants that they acquired the houses on rent-to-buy contracts.

He also indicated that other plaintiff employees did not claim these pool houses and moved out.

This witness was subjected to lengthy, tactful, and determined cross-examination. At the end of the day I find that he is a credible witness. He made several concessions favourable to the defendants' case. He is a truthful witness.

Thembinkosi Khumalo

He has been employed by the plaintiff for nineteen (19) years. He is the acting Town Treasurer for the plaintiff. He started in the plaintiff's employ as a Senior Accounting Officer in the Treasury Department.

He mainly corroborated what the first witness said in a material way.

As far as the ZimSun houses are concerned, he said, in 1992, ZimSun had built 160 houses for its staff. These houses were built at the time when the plaintiff was facing acute shortage of accommodation for its staff. The plaintiff approached ZimSun who offered them twelve (12) houses including the five (5) subject of these proceedings as stated above. The plaintiff paid for these houses using Stands on which ZimSun built their staff houses plus an additional amount of Z$68,000.

After acquiring these ZimSun houses, they put in the plaintiff staff and quasi-plaintiff staff.

He confirmed that there were initiatives to sell these houses to staff through CABS, but, as stated by the previous witness, all these came to naught on account of the low salaries of staff and statutory limitations as the plaintiff is a local government.

He said some of the defendants stopped paying rentals in 2007 whereas two, who are still plaintiff employees, have continued paying. These two defendants, who are still plaintiff employees, are Smolita Maseko and Sihlobo Sibanda.

He evinced that if council property is being sold, Treasury Department would be served with an Agreement of Sale. The Agreement of Sale must state the tenure of the loan (if it is not a cash sale), the instalment payable by the beneficiary, and the interest on the loan amount.

He categorically stated that none of the defendants had any Agreement of Sale with the plaintiff.

He said that the Z$500 paid by each defendant was Z$250 for rent and Z$250 for security deposit (good tenancy deposit). He also said when the plaintiff's employees wanted to carry out repairs in these houses, such repairs must first be certified as necessary by the Town Engineer. This is a pre-condition of reimbursement of the tenant by the plaintiff.

As far as defendant Steven Mpofu is concerned, he was not employed by the plaintiff. He was employed by ZimSun. He was renting the plaintiff's guest house. They decided to accommodate him in one of the pool houses on a lease basis.

He was adamant that the plaintiff made a decision to allocate these houses to its employees to attract and retain them. The houses were, however, to remain as pool houses.

He further stated that when houses were allocated by the plaintiff to individuals, whether employees or not, the plaintiff ensured that there were documents which showed the various costs centres such as for the sewer, education levy, etc. This is reflected in receipts such as on pages 250, 251 and 356 of the bundle of documents. This was because the houses in question were being rented.

The defendants had rent cards where credits were entered when payments were made and the payments credited to the appropriate costs centres.

He said Treasury had agreements of sale (rent-to-buy) for other properties allocated to the defendants, but did not have that in respect of the twelve (12) houses in issue. What the defendants had, even on their own admissions, were rent cards. He said a rent card is self-evident and cannot be stretched to mean rent-to-buy.

As far as the letter written by a Mr Lucas M M Sibanda, the former Chief Executive Officer of the plaintiff, he said this individual was dismissed by the plaintiff on account of documented acts of misconduct. He said his letter of support of the defendants is untrustworthy and devious.

On the question of damages, he said rentals for the houses in question were US$150 per month at the lowest rate to US$200 per month for the more expensive ones. He said damages in the sum of US$150 per month in respect of each of the defendants would be appropriate.

This witness was extensively cross-examined by the defendants' counsel. I am satisfied that he gave his evidence well. I find that he is a credible witness. He is very familiar with the financial operations of the plaintiff, and, in particular, he is very familiar with the acquisition of the houses in issue and how the defendants ended up in occupation.

Coming to the defendants' case, I also propose to consider the evidence adduced in turn.

Phindile Ncube

He was employed by the plaintiff between 11 May 1987 and February 2009. He had joined the plaintiff as Revenue Clerk responsible for housing. In 1988 he was elevated to the position of Senior Housing Clerk responsible for the supervision of housing clerks and the computation of the home ownership scheme. He gave a detailed account of the Government Housing policy.

Most of the evidence is not relevant for the determination of the legal issues before me. I will only focus on the relevant part of the testimony.

In relation to the house in dispute, between him and the plaintiff, he says he placed his name on the Housing Waiting List as he was staying with his parents at the time at 3133 Chinotimba. He was allocated the disputed Stand number 4242 Chinotimba. After the allocation, he made improvements on the property as evidence that he considered that the plaintiff allocated the property to him on a rent-to-buy basis. Such improvements comprise of installing burglar bars, fencing of the property, and sharing of the walling costs with the neighbour.

He conceded that he has another property, being Stand 4222 Chinotimba allocated to him by the plaintiff. He said that he, like the other defendants, was sold Stand 4242 because he was on the waiting list. He, however, did not have a single document to prove the purported sale.

Despite the fact that he alleged that he was virtually running the Housing Department of the plaintiff at the relevant time, he could not produce any document to prove his claim. All he had is a rent card.

It is quite clear that the rent card is a tenant's card, not a card to prove ownership. Even his erstwhile legal practitioners conceded this fact on pages 94-95 of the bundle of documents.

He could not explain why he and the other defendants did not sue the Minister responsible for National Housing to transfer the houses in dispute to them, but adopted an attitude of supine indifference, when the said Minister transferred the said houses into the plaintiff's name.

He tried to suggest that during the early 1990s there were no rent-to-buy agreements, and that is why he and other defendants had no documents to support their version of events.

Unfortunately for him, the documents from pages 279 to 415 on the bundle of documents proved otherwise.

In pages 279–285 is a rent-to-buy entered into in 1994 in respect of Stand 5053 Chinotimba. On page 299, the sale agreement was entered into in 1997. His own Agreement of Sale, in respect of Stand 4222, supra, was entered into around 1994. He said that the document by Mr Sibindi, on page 76 of the bundle of documents, was the source of all the defendants' problems.

This is patently untrue because the document was authored in 2007 and yet, at least 14 years earlier, the plaintiff had already said that the houses in question were pool houses and belonged to it.

The plaintiff even has the support of the Workers' Committee in this regard.

This witness held himself out as an expert and the spokesperson for all the twelve defendants. He confidently described himself as a “local government practitioner”. He did this to try to speak with an authoritative voice that brooked no contradiction.

Regrettably, he failed dismally in this endeavour. He was an extremely poor witness. He was not credible as alluded to above. Further, he was a witness with an interest, not only in retaining Stand 4242 Chinotimba, but also because he had obviously misled the other defendants and given them the impression that he was the authoritative voice in respect of the twelve houses in question.

There was the difficulty in that as early as 1991, 1992 and 1993 onwards, the plaintiff had made it clear that the twelve in question belonged to the plaintiff and the plaintiff wanted them back. This is clear in the letters from legal practitioners and also minutes of the seven National Housing Fund houses.

He tried to assert that Central Government gave directives to Councils, such as the plaintiff and thus the plaintiff was obliged to obey these directives which had the force of law. In other words, the local authorities were only agents, or implementing arms of the Central Government.

This assertion was clearly flawed.

The witness was unable to point to any such legislation which made suggestions by Central Government law binding upon Council.

It is clear that the National Housing policies were guidelines. In fact, on page 208 of the bundle of documents, it is made clear that these were guidelines....,.

When he was cross-examined, and asked how it was that all twelve defendants had other Stands in breach of the Central Government policy which he appeared to champion so enthusiastically because it was convenient to him, he made a volte face and said that this policy on the prohibition against multiple ownership of houses in the high density suburbs was relaxed by the plaintiff.

However, he was unable to provide documentary evidence of such relaxation of the policy. He was unable to do so because he was misleading this court.

HH53-09 : ZIMBABWE ALLIED GROUP LTD vs MILDRED AND MATHIAS (PVT) LTD
Ruled By: MAKONI J

In its heads of argument, the respondent raised three points in limine. The first point was that the application for summary judgment was still pending on the basis that the applicant had not tendered costs. The second one was that the present application was not supported by a founding affidavit but by a supporting affidavit. The third ...

HH241-18 : CLOVER LEAF MOTORS GROUP (PRIVATE) LIMITED vs BUTHOLEZWE ZHOU and PATRICE SHAYAMANO
Ruled By: CHITAKUNYE J

This is an application for the return of the applicant's motor vehicles that it had issued to the respondents during the tenancy of their employment with the applicant. The two respondents were employed by the applicant as Group Accountant and Branch Accountant respectively until 31 October 2015 when their services were terminated on notice. During the tenancy ...

This is an application for the return of the applicant's motor vehicles that it had issued to the respondents during the tenancy of their employment with the applicant.

The two respondents were employed by the applicant as Group Accountant and Branch Accountant respectively until 31 October 2015 when their services were terminated on notice. During the tenancy of their employment contracts, the respondents had been issued with motor vehicles for both business and private use on terms set out in their contracts as read with the applicant's motor vehicle policy.

The first respondent was issued with a Nissan Qushquai Registration No. ACX 4888 and the second respondent was issued with a Nissan Almera Registration No. ACU 6164. They were both obliged to return the motor vehicles upon termination of their contracts of employment.

When their contracts were terminated, on 31 October 2015, both respondents did not return the vehicles. Instead, they filed a complaint of unfair dismissal against the applicant. Their effort in that direction was unfruitful as the Labour Court, on the 23^rdof September 2016, held that the applicant was entitled to terminate the contracts on notice, and, instead, ordered that the respondents be paid compensation for loss of employment in terms of section 12(4b) as read with section 12C(2) of the Labour Act [Chapter 28:01] as amended.

Neither respondent appealed against the Labour Court judgement hence that decision remained extant to this day.

Despite not having appealed against the Labour Court judgment, the respondents refused to surrender the applicant's motor vehicle. It was, in such circumstances, that the applicant approached this court in this application seeking an order in the following terms:-

1. The respondents shall surrender to the applicant, or its authorised representative, a Nissan Qushquai registration No. ACX 4888 and a Nissan Almera registration No. ACU 6164, respectively, within 24 hours of service of this order.

2. Should the respondents fail or refuse to surrender the said vehicles, the Sheriff be and is hereby authorised to utilise the services of the police to repossess the said vehicles.

3. The respondents shall pay the costs of this application on a legal practitioner and client scale.

Upon being served with the application, the second respondent duly surrendered the vehicle that had been allocated to him. The first respondent, on the other hand, opposed the application.

The first respondent contended that after being appointed as Branch Accountant, on 1 March 2009, he was subsequently appointed Company Secretary for another company, Clover Leaf Panel Beaters (Pvt) Ltd (herein after referred to as CLPB) which appointment was made before he had completed his probation period with the applicant. This was done without cancelling his appointment as Branch Accountant with the applicant. The appointment as Company Secretary was, however, verbal. He averred that the applicant and Clover Leaf Panel Beaters (Pvt) Ltd are two different companies but with common ownership. When he was promoted to the position of Group Accountant he also continued as Company Secretary for Clover Leaf Panel Beaters (Pvt) Ltd (CLPB).

He further contended that when the vehicle was issued to him, he used it to carry out duties for the two companies. Upon termination of his contract with the applicant, he retained the vehicle as his terms of contract with Clover Leaf Panel Beaters (Pvt) Ltd (CLPB) also entitled him to a motor vehicle. According to the first respondent, it was not clear as to which company had issued him the vehicle....,.

A further point in limine raised was that the applicant is approaching court with dirty hands as it has not paid the first respondent his terminal benefits in terms of section 13 of the Labour Act [Chapter 28:01].

It is my view that the principle of dirty hands is inapplicable in the circumstances of this case.

The first respondent himself has been in unlawful possession of the applicant's motor vehicle from the date of termination of employment. The applicant has not refused to release the terminal package but has simply asked the first respondent to surrender the applicant's motor vehicle. It is the attitude of the first respondent that led to the delay in the payment of his terminal benefits, and, in my view, he cannot turn around and seek to benefit from his own intransigent attitude.

These points in limine were thus without merit and are accordingly dismissed.

HH223-15 : ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION (ZSMIWU) vs ALFRED MAKWARIMBA and KENNIAS SHAMUYARIRA and ELIAS MADZIVA and FREEDOM MUDUNGWE and OTHERS
Ruled By: MANGOTA J

The applicant represents workers in the sugar industry. It allegedly carries a membership of 16,000 workers. It is an affiliate of the Zimbabwe Federation of Trade Unions…,.The National Executive Committee is the applicant's governing body. The committee manages the affairs of the applicant. Its elected office bearers comprise:(a) The President;(b) ...

The applicant represents workers in the sugar industry. It allegedly carries a membership of 16,000 workers. It is an affiliate of the Zimbabwe Federation of Trade Unions…,.

The National Executive Committee is the applicant's governing body. The committee manages the affairs of the applicant. Its elected office bearers comprise:

(a) The President;

(b) The Vice-President;

(c) The Secretary-General; and

(d) Three other committee members.

In or about 24 February 2014, the deponent to the applicant's affidavit, one Simbarashe Nyemba, and members of his National Executive Committee, were removed from their positions and replaced by the fourth respondent and his team of committee members.

Mr Nyemba, and members of his committee, made an urgent chamber application to the court. The application was filed under case number HC1603/14. The court granted a provisional order to the applicant. It, in effect, directed that paragraphs 3, 4, 5 and 6 of the letter which the second respondent addressed to the seventh respondent on 24 February 2014 should not be executed until proceedings which pertained to case number HC1603/14 had been completed.

The court mentions, in passing, that the proceedings in question are still pending determination.

The present urgent chamber application was premised on the allegations that, on 14 February 2015, the first and second respondents visited Chiredzi in the company of persons who, it was claimed, were from the office of the fifth respondent. The visitors, the applicant averred, appointed the third and fourth respondents as members of the applicant's Executive Committee. The fourth respondent, it said, was appointed president of the applicant's governing body.

It, accordingly, made every effort to move the court to prohibit the fourth respondent and the latter's committee members from representing the applicant until case number HC1603/14 has been conclusively dealt with.

The applicant attached to its application Annexure D. The annexure is a letter which the fifth respondent (the Minister of Public Service) addressed to the applicant's secretary-general. The letter is erroneously dated 16 January 2014. It should have read 16 January 2015 which the applicant said was the correct date.

In the letter, the fifth respondent prohibited the applicant from deducting union dues from the seventh respondent (Tongaat Hullet Zimbabwe).

The fifth respondent stated that, from reports which had been submitted, she had reasonable cause to believe that the funds of members of the applicant were being abused and mis-appropriated. She said she would appoint an investigator who would look into the affairs of the applicant. She prohibited the applicant's national executive committee from using the funds for any purpose other than what the investigator or she herself would have directed.

The fifth respondent copied her letter to, among other authorities, the seventh respondent.

The applicant appealed to the Labour Court against the decision of the fifth respondent. It did so on 22 January 2015 under case number LC/MS/03/15.

The appeal is pending before the Labour Court.

The first, second, third and fourth respondents opposed the application and so did the seventh respondent. The fifth and sixth respondents did nothing about the application. They remained uncommitted to the matter notwithstanding the fact that they were served with the application.

The Sheriff's returns of service showed that both respondents were served on 19 February 2015. Their attitude to the application, therefore, remained unknown. It was, in the premise, assumed that they would abide by the decision of the court as they did not appear in person or through legal representation.

The first four respondents raised some preliminary issues after which they proceeded to deal with the substance of the application.

The seventh respondent adopted a pattern which, to all intents and purposes, was similar to that of the first, second, third and fourth respondents....,.

The applicant stated that the fourth respondent and his team of office bearers were appointed and not elected.

The fourth respondent stated to the contrary.

He stated that his office bearers and him were elected into the applicant's National Executive Committee on 14 February 2015. He attached to his opposing papers Annexure B. The annexure was a copy of the minutes of the meeting to which members of the applicant were invited to, among other matters, pass a no-confidence vote on Mr Nyemba and members of his National Executive Committee and replace them with the fourth respondent and his team of office bearers. He also attached to his papers annexure D which was a register of the workers who attended the meeting of 14 February 2015.

The meeting which ushered into office the fourth respondent's National Executive Committee was convened in terms of section 9.2 of the applicant's Constitution. The section reads, in part, as follows:

“A Special Annual General Meeting may be called whenever desired by a member of the Executive Committees….,.

The business of the special meeting shall be confined to the matter that necessitated its calling.” …,.

It was in the spirit of the section that the third respondent, who was a member of the outgoing committee, called the meeting of 14 February 2015. The attendees of the meeting were registered in the attendance register, Annexure D.

The applicant did not make any reference to the annexure let alone challenge its contents.

The court, therefore, accepted that persons who were mentioned in the annexure attended the meeting, passed a no-confidence vote on Mr Nyemba and his team and replaced the latter with the fourth respondent and his office bearers.

The deponent to the applicant's affidavit raised a complaint as regards the manner in which the meeting of 14 February 2015 was convened.

He stated that the fifth and sixth respondents did not advise his team of office bearers and him of the calling of the meeting. He said his members and him had a constitutional right to be heard at the meeting.

It is accepted that Mr Nyemba and his team were, for some time, office bearers of the applicant. They were, therefore, aware of the existence of section 9.8 of the applicant's Constitution. The section reads:

“The proceedings of any meeting shall not be invalidated by reason of the non-receipt by any member of the notice of that meeting.”

The above stated provision of the applicant's Constitution was, and is, in direct conflict with what Mr Nyemba stated. It was, at best, undemocratic, and, at the worst, very oppressive.

Mr Nyemba and his team did nothing to make it more user friendly than it currently is couched. They allowed it to remain as it is. They cannot, therefore, be heard to be crying foul if they were not invited to the Special General Meeting.

The conveners of the meeting of 14 February 2015 must have been aware of the provision's existence in the Constitution. They, not unnaturally, took advantage of it and proceeded to call, as well as hold, the meeting in the absence of their adversaries secure in the knowledge that the business of the day would not be subsequently invalidated by such a complainant as Mr Nyemba raised.

HH226-15 : VALLEY MINING PL and ISAAC NJAINJAI and OTHERS vs AFRICAN BANKING CORPORATION t/a BANC ABC and MIRIRAI WASHAYA and SHERIFF OF ZIMBABWE and REGISTRAR OF DEEDS
Ruled By: ZHOU J

The applicants' immovable property, Stand 650 Borrowdale Township of Stand 10 of Lot C Borrowdale Estate, also known as 21B Crowhill Avenue, Borrowdale, Harare, was attached in execution of a judgment of this court granted in Case No. HC5872/12.

The judgment was given in favour of the first respondent and against the applicants.

Following its attachment by the Sheriff, the property was advertised for sale in the Government Gazette as well as in The Herald newspaper.

An offer of US$275,000 was made by one David Chawota. The Sheriff did not declare David Chawota the purchaser on the basis that the price was too low having regard to the value of the property. The property was therefore made available for sale by private treaty. The second respondent's offer to purchase the property by private treaty, for a sum of US$360,000, was accepted by the Sheriff on 27 June 2013.

The instant application, which the applicant filed as one for review, seeks the setting aside of the sale of the property to the second respondent. The application is opposed by the first and second respondents.

The applicant states that it received the letter notifying it of the Sheriff's acceptance of the second respondent's offer on 15 July 2013. The letter had a wrong date suggesting that it had been written on 26 June 2013. That clearly is a typographical error as the second respondent was only declared to be the purchaser on 27 June 2013.

On 15 July 2013 the applicant, through its legal practitioners, wrote a letter to the Sheriff. The letter stated the following, among other things:

“We write to advise that our client objects to the sale/declaration and that the objections will be delivered within 15 days of the date it was notified of the sale [i.e. 15 days from the 15th July 2013]. Our client was only informed of Mirirai Washaya's offer on the 15th July 2013 and was not aware of this declaration prior to this date. In any event, you posted the letter with this information on the 2nd of July a good five days after the declaration had been made.”

On 23 July 2013, the Sheriff notified the first respondent's legal practitioners that the second respondent had been confirmed to be the purchaser on that day because no objection had been received.

That letter also bears a wrong date, as it is dated 23 June 2013.

While the first mistake is excusable, the officers of the third respondent must be cautioned to be meticulous in ensuring that appropriate dates are inserted in all documents which they send out. That is particularly important given that in respect of certain of their correspondence there are time frames provided for in the Rules which are reckoned from the dates that their letters are written. If they continue to write letters bearing wrong dates with such amazing regularity then they risk having some of the Sheriff's decisions being challenged based on confusion created by wrong dates. That scenario is clearly undesirable.

Be that as it may, the applicant did not lodge an objection with the Sheriff as stated in its letter of 15 July 2013. Instead, on 30 July 2013, the applicant filed the instant application for review.

“1. The Sheriff did not properly advertise the sale as envisaged by Rule 352 of the Rules of this Honourable Court.

2. In deciding to sell by private treaty, the Sheriff did not comply with Rule 358(1) of the High Court Rules in that he did not obtain the consent of the judgment debtors.

3. The third respondent did not exercise his discretion properly, in terms of the proviso to Rule 359(2), in denying the first applicant lodge (sic) its objections late, or at all, to sale.

4. The Sheriff did not exercise his discretion properly in terms of Rule 358(2), and, resultantly, did not ensure that the sale and the price offered by second respondent was (sic) fair and reasonable.

5. The declaration that the second respondent was the purchaser was improperly made, alternatively, was not made at all. The Sheriff's letter dated 26 June 2013 states that the declaration was made on 27 June 2013, a feat which is impossible.

6. The Sheriff denied applicants an opportunity to be heard before the confirmation. This was the viotion (sic) of High Court Rules and the common law. The first applicant received the notice to object on 15 July 2013, and the other applicants did not receive the notice at all. The Sheriff went on to confirm the sale on the 23rd July 2013 before the fifteen days expired.”

Order 40 Rule 359 of the High Court Rules, 1971 provides as follows:

“(1) Subject to this rule, any person who has an interest in a sale in terms of this Order may request the Sheriff to set it aside on the ground that –

(a) The sale was improperly conducted; or

(b) The property was sold for an unreasonably low price; or

(c) On any other good ground.

(2) A request in terms of subrule (1) shall be in writing and lodged with the Sheriff within fifteen days from the date on which the highest bidder was declared to be the purchaser in terms of Rule 356 or the date of the sale in terms of Rule 358, as the case may be:

Provided that the Sheriff may accept a request made after the fifteen-day period but before the sale is confirmed, if he is satisfied that there is good cause for the request being made late.”

The applicants did not submit a request in terms of Rule 359 for the sale to be set aside.

Rule 359(3) provides that such a request should set out the grounds upon which the sale concerned should be set aside. The request must also be supported by one or more affidavits detailing the facts relied upon in seeking the setting aside of the sale. There is a requirement, in terms of that sub-rule, for copies of the request to be served upon interested parties.

Instead of making the request, the applicants, by letter dated 15 July 2013, advised the Sheriff of their intention to file an objection to the sale within fifteen days from the date of their letter.

The letter itself does not purport to be a request to have the sale set aside or an objection to the sale. Neither is it a request for an extension of the time within which to make the request. Such extension is provided for in the proviso to Rule 359(2).

The period of fifteen days passed without the applicants making the objection to the Sheriff as stated in their letter of 15 July 2013. The Sheriff proceeded to confirm the sale to the second respondent on 23 July 2013 because no objection was made to the sale; neither was there a request for an extension of the time within which to make that objection or request.

It is clear, therefore, that the application in casu is improperly before the court. It is not an application made in terms of Rule 359(8).

The failure by the applicant to follow the correct procedure was of the applicant's own making.

There is no provision for the setting aside of the Sheriff's confirmation of a sale other than by way of an application filed in terms of Rule 359(8).

Appealed
SC56-20 : MOVEMENT FOR DEMOCRATIC CHANGE and NELSON CHAMISA and MORGAN KOMICHI vs ELIAS MASHAVIRA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA
Ruled By: GARWE JA, PATEL JA and GUVAVA JA

This is an appeal against the entire judgment of the High Court, sitting at Harare, handed down on 8 May 2019, in which the following order was granted:

1. The appointment of the 2nd and 3rd respondents as Deputy Presidents of the Movement for Democratic Change party were unconstitutional therefore null and void.

2. The appointments of the 2nd respondent, as Acting President and President of the Movement for Democratic Change party, were unconstitutional and therefore null and void.

3. All appointments and/or re-assignments and actions of the 2nd respondent, in his purported capacities as Deputy/Acting or incumbent President, were unconstitutional and therefore null and void.

4. The 1st respondent be and is hereby ordered to hold an Extra-Ordinary Congress after the lapse of at least one month after the date of this Order.

5. The respondents are ordered to pay the applicant's costs of suit, jointly and severally, the one paying the others to be absolved.

The Background

The first appellant is the Movement for Democratic Change, a political party which has capacity to sue and be sued in its own name (“the Party”).

The remaining protagonists are members of the Party who were cited as follows in the court a quo;

The second appellant is the President of the Party, while the third appellant is its National Chairman.

The first respondent, who was the applicant a quo, is the Organising Secretary for the Gokwe Sesame District. The second respondent is the Deputy President, the third respondent is the Acting President and the fourth respondent is the Secretary General of the Party.

The facts relating to this matter are as follows;

On 15 July 2016, the second appellant and the second respondent were appointed Deputy Presidents of the Party by the founding President, the late Dr Morgan Richard Tsvangirai. At the time these appointments were made, the post of Deputy President was occupied by the third respondent, having been elected as such at the Party's Congress held in October 2014.

Following the death of Dr Tsvangirai, on 14 February 2018, a special National Council meeting was convened, on 15 February 2018, whereat the second appellant was confirmed as the Acting President of the Party.

On 24 September 2018, the first respondent launched an application in the High Court challenging the validity of the President's appointment of the second appellant and second respondent as Deputy Presidents of the Party. He averred that such appointments were made ultra vires the Party's constitution as they were not done via an election by Congress. The first respondent argued that the meeting of 15 February 2018 was a non-event as the National Council did not have powers to ordain an Acting President or a President of the Party. He further emphasised that Article 9.21.1 of the Party's constitution was clear that, upon the death of the President, the Deputy President assumed the role of Acting President. As such, he argued that the third respondent, as the duly elected Deputy President of the Party, became Acting President upon the death of Dr Tsvangirai, and was obliged to call for an Extraordinary Congress within a year.

The third appellant opposed the application and deposed to an affidavit on behalf of the first and second appellants as well as the second and fourth respondents. He took four preliminary objections to the application;

(i) Firstly, he contended that the first respondent did not have locus standi to represent the first appellant as he had not produced a solemn declaration reflecting proof of acceptance of his membership of the Party.

(ii) Secondly, he stated that the first respondent's delay in raising his complaints was inordinate and would cause prejudice as many developments had occurred since the appointments under challenge. Further, he claimed that the first respondent had waived his rights to challenge the appointments.

(iii) Thirdly, he argued that the first respondent ought to have exhausted internal remedies provided in the Party's constitution by noting an appeal to its Appeal's Tribunal.

(iv) Lastly, the third appellant contended that the order directing the first appellant to hold an Extra-Ordinary Congress was incompetent relief in an application for a declaratur.

Regarding the merits of the application, the third appellant disputed the validity of the Constitution relied on by the first respondent. He submitted that the “true Constitution” was attached to the late President's opposing affidavit in the case of Patson Murimoga & Anor v Morgan Richard Tsvangirai & Ors HC7453/16.

The third appellant also argued that the appointments by the late President were made in terms of Article 9 of the Constitution which gave the President power to appoint deputies to “officers of Congress” on the instructions of the National Executive and the National Council. It was submitted that the appointments were made on the instructions of the National Council and ratified by the same in terms of Article 18 of the Party's constitution.

The third appellant further submitted that the subsequent occupation, by the second appellant, of the office of Acting President, was valid as it was the result of unanimous assent and was based on the second appellant's valid election as Deputy President.

In his replying affidavit, the first respondent challenged the validity of the third appellant's opposing affidavit. He stated that, in the absence of a mandate from the other parties, the third appellant could not depose to solemn facts on their behalf.

Further, he contended that the third appellant had not shown that he was authorised to represent the Party.

Lastly, the first respondent took the position that the first appellant, together with the second, third, and fourth respondents, were barred for having failed to file their opposition to the application.

Determination of the Court A Quo

On the preliminary objections raised by the parties, the court a quo made the following rulings;

It held that the first appellant was barred for having failed to file an opposing affidavit, as the third appellant, who purported to act on its behalf had failed to show proof of his authority. The court also held that the second and fourth respondents were barred for having failed to file their own opposing papers, while the third respondent was barred for having failed to oppose the application.

In relation to the first respondent's locus standi to institute the proceedings, the court held that his membership card was sufficient proof of his membership of the Party.

Regarding the issue of exhaustion of internal remedies, the court a quo reflected that the relief sought by the first respondent would not be competently granted by the Party's appeals tribunal. The court reasoned that it was more probable that the appeal would not be heard in an impartial manner due to the composition of the Appeals Tribunal.

On the issue of waiver of the first respondent's right to challenge the appointments, the court found that the first respondent had timeously approached the court after he became aware of his rights through a legal opinion furnished to the Party.

On the merits of the application, the court held that the appointments of the second appellant and second respondent, as Deputy Presidents of the Party, having by-passed the electoral process, were ultra vires the Party's constitution.

The court reasoned that the Constitution clearly provided that a Deputy President could only hold office by virtue of an election by Congress. This position was fortified by the court's interpretation of several provisions of the Party's constitution. The court considered the provisions of Article 6.4.4, which relate to the composition of the National Standing Committee. In particular, Article 6.4.4.1 was clear that a member could only occupy the office of Deputy President pursuant to an election at Congress. The late President had acted contrary to this provision by “picking” the second appellant and the second respondent as Deputy Presidents. The court also had regard to Article 9 of the Constitution which provides for the functions of various office bearers, including Deputy Presidents. In particular, Article 9.14 stipulates that all office bearers hold office by virtue of winning an election in Congress in terms of Article 6.4.4. The court highlighted that the President's powers of appointment, in terms of Article 9.1.4, had to be exercised “where such is provided for in the Constitution.” Thus, the President could only appoint the Secretary for Elections in terms of Article 6.4.4(k). The court further indicated that Article 9 listed office bearers and the Deputy President in the singular. In light of this, the court reasoned that the mention of Deputy Presidents in the plural was a typographical error.

The court further considered the powers of the National Council, in terms of Article 18 of the Constitution, to cure an oversight or omission in the appointment of office bearers. The court held that the contention that the National Council had delegated to the late President the power to make the contested appointments was not supported by the evidence. The oversight or omission sought to be cured was not identified in the papers pertaining to the deliberations of the National Council in 2016. Accordingly, Article 18 could not aid the appellants' case. Neither the President nor the National Council could bypass the requirement of holding an election at a Congress to fill those offices that were already provided for under the Constitution.

Additionally, the court took the view that the Party was founded on constitutionalism and social democracy, as per Article 3.1. Thus, the imposition of Deputy Presidents, by the late President, and the imposition of the second appellant as Acting President, acting in concert with the National Council, at its meeting on 15 February 2018, was contrary to those founding values.

In light of these considerations, the court a quo held that the contested appointments were unconstitutional and granted the order aforementioned.

Consequently, the court applied the provisions of Article 9.2.1(b) of the Constitution, in terms of which the Deputy President becomes the Acting President, where the President is unable, for any reason, to perform his or her powers, functions, or administrative duties. The court accordingly concluded that at the time of the late Dr Tsvangirai's death, the third respondent was the Deputy President and ought to have assumed presidential duties, pending the holding of an Extra Ordinary Congress to elect a new President, in terms of Article 9.21.1 of the Constitution.

Grounds of Appeal

There are numerous grounds of appeal herein, some of which are repetitive or should have been conjoined. They are reproduced verbatim as follows:

1. The court a quo erred in coming to the conclusion that first appellant was barred for failing to file an opposing affidavit and so erred in treating a valid affidavit deposed to by the third appellant as pro non scripto, and, in proceeding to determine the matter without hearing the first appellant.

2. A fortiori, the court a quo erred in proceeding in a manner which is in violation of the first appellant's constitutionally-protected right to be heard before an independent and impartial court as envisaged by section 69(2) of the Constitution of Zimbabwe, 2013.

3. Having found that the Constitution relied upon by the appellants at least contemplated the appointment of Deputy Presidents, the court a quo misdirected itself in concluding, without hearing evidence on this material issue, that the reference to Deputy Presidents in that Constitution was a typographical error.

4. A fortiori, the court a quo erred in writing a Constitution for the first appellant and in irregularly bringing it under the authority of such a document.

5. The court a quo erred in not concluding that the appointment of Deputy Presidents in the first appellant was in accordance with the Constitution of that party, had been mandated by congress and the highest decision making organ outside congress, and was, for all purposes, valid as a unanimous decision of a voluntary association.

6. Having been addressed on the law governing voluntary organisations and its effect on the subject before it, the court a quo misdirected itself in not pronouncing itself on that issue and in not deciding a question which was material to the decision required of it.

7. The question of the proper Constitution for the first appellant having been previously resolved in terms of an extant judgment in a matter which involved the same parties and/or at least their privies, the court a quo erred in allowing that issue to be re-opened and in founding its judgment on a Constitution which is foreign to the first appellant.

8. The court a quo erred in treating, without a valid legal or factual basis, the domestic remedies set out under the first appellant's Constitution as ineffectual and in not requiring, in accordance with superior court authority, the exhaustion of those remedies ante the bringing of the matter to court.

9. The court a quo misdirected itself, such misdirection amounting to an error in law, in not finding that the first respondent's participation in the activities of the first appellant, under the leadership of the second appellant, and duration of same, estopped him from contending against the validity of his appointment to the prejudice of the first appellant.

10. The ordinary congress for the first appellant having become due, the court a quo erred in finagling upon that party an extra ordinary congress and so erred in creating a totally untenable position which is at variance with the first appellant's Constitution and is totally unworkable either in fact and/or in law.

11. The court a quo erred in intervening, without a valid legal or factual basis, in the workings of a voluntary association and in subordinating its statutes and unanimous assent to the whims of a dishonestly disgruntled individual....,.

Preliminary Objections

In their heads of argument, the first and third respondents raised certain preliminary objections in terms of Rule 51 of the Rules of this Court.

(i) The first was that the first appellant, the Party, was not properly before this Court in that, having been found to be not properly before the court a quo, it remained barred and could not be an appellant in casu.

(ii) The second objection was that the appellants had failed to comply with Rule 37(2) in that they did not serve the Notice of Appeal on the second, third and fourth respondents.

(iii) The third and final objection was that the appellants had failed to file their heads of argument, as required by Rule 52, and, consequently, this appeal must be regarded as having been abandoned and deemed to be dismissed in terms of Rule 53.

At the hearing of the appeal, Messrs Mutungura and Madhuku indicated that the first and third respondents did not wish to persist with their objections in limine. Instead, they wished to argue and deal with the merits of the matter.

Mr Mpofu retorted that the preliminary objections should be dismissed with costs to be borne by the respondents. Costs have been incurred by the appellants, separately from the main appeal, in filing their submissions to resist the preliminary objections raised by the respondents. The respondents have now retreated from their objections because of those submissions. The points in limine should not have been taken in the first place.

It is not in dispute that the appellants did not file any heads of argument when called upon to do so by the Registrar. They did not seek or obtain any condonation for that failure and only filed their substantive heads of argument following the directions of this Court - after the hearing of the matter had already commenced.

Given this background, the Court is inclined to accept the submissions by counsel for the respondents that their non-persistence with the preliminary objections was proffered, not because the objections lacked merit, but in the spirit of making progress and avoiding purely procedural technicalities....,.

It is accordingly ordered that those objections shall be regarded as having been withdrawn, rather than dismissed, with each party bearing its own costs.

SC62-20 : THANDO NCUBE vs FIDELITY PRINTERS AND REFINERIES (PRIVATE) LIMITED
Ruled By: MAKARAU JA

This is an application for leave to appeal against a decision of the Labour Court, handed down on 27 October 2014, dismissing with costs, an appeal to that court against a decision of the respondent dismissing the appellant from employment.

Leave to appeal was denied by the Labour Court on the premise that the intended appeal had no prospects of success.

The facts of this application are common cause.

The applicant was employed as a Senior Security Officer by the respondent. Prior to that, he was employed by the Reserve Bank of Zimbabwe which owed him money upon the termination of his employment. It was a condition of the Reserve Bank that for the applicant, and others similarly placed, to access the money owed, they had to make an application showing good cause. A death or illness in the family could constitute such good cause.

In an effort to access the owed amount, the applicant applied to the Reserve Bank for the amount of US$3,500 attaching a burial order of one Sidubi D Moyo, his grandfather. The burial order was fake. The Reserve Bank reported the matter to the respondent, a sister company, which, acting on the report, charged the applicant with an act of misconduct. The applicant was convicted and thereafter dismissed from employment. He appealed to the Labour Court which, as stated above, dismissed the appeal.

It is the applicant's intention to appeal against the decision of the Labour Court.

I cite here...,, the grounds of the intended appeal. They are framed as follows:

1. The court a quo erred on a point of law by upholding the charge against the appellant when such a charge was founded on the requirement by the Reserve Bank that its former employee apply to it for payment of their arrear salaries and terminal benefits, which condition is unlawful and nullity. (sic).....,.

The first ground is ill-conceived as it seeks to challenge the validity of an administrative policy by the Reserve Bank of Zimbabwe to limit access to the arrear salaries and benefits of its former employees. This issue, even though raised before the Labour Court, was not an issue properly before that court in appeal proceedings in which the Reserve Bank of Zimbabwe not only lacked interest, but was not a party.

View Appeal
HB179-18 : YUSUF GAIBIE and MAHMOUD GAIBIE vs ALEXANDER CASTANHEIRA and RACHEL CASTANHEIRA
Ruled By: MAKONESE J

The defendants have made an application for absolution from the instance at the close of the plaintiffs case.

The defendants contend that the plaintiffs had failed to lead evidence upon which a court might find in favour of their claims. The application is made on the basis that an essential of the claim, an alleged breach of contract, was not proved in sufficient evidence. Further, the plaintiffs alleged right to cancel the agreement was not proved. The defendants aver that the evidence led by the plaintiffs was fraught with glaring inconsistencies and unacceptable variance with the plaintiffs' pleaded case.

The plaintiffs are opposing the application for absolution from the instance.

The plaintiffs' aver that taking into account the applicable law, and evaluating all the evidence adduced on behalf of the plaintiffs, the pleadings filed of record, the exhibits, and all the discovered documents as well as the viva voce evidence, the application for absolution from the instance is unsustainable and ought to fail with costs.

The plaintiffs aver that they have established a prima facie case of breach of contract and the plaintiffs' right to cancel the contract as a result of such breach. The plaintiffs alleged that the application for absolution from the instance is premised on a mis-interpretation of the terms of the Agreement of Sale, as amended, and a misconception of the consequences at law of the defendants' failure to pay the full purchase price after they were called upon to remedy their breach.

The Factual Background

On the 25th of January 2006 the parties entered into an Agreement of Sale in terms of which the plaintiffs sold to the defendants an immovable property for the agreed price of Z$11,5 billion, subject to certain terms and conditions as set out in the agreement. The plaintiffs alleged that the defendants breached the agreement by failing to pay the purchase price in full despite the extension of time to pay by the 28th of February 2006 in terms of an addendum to the Agreement of Sale signed on the 16th of February 2006.

The defendants deny having breached the agreement of sale and state that they have paid the purchase price in full. They aver that the Capital Gains Tax was paid to the plaintiffs' legal practitioners, who, incidentally, were also the defendants' legal practitioners at the relevant time in accordance with the Agreement of Sale.

The joint pre-trial conference memorandum filed by the parties' legal practitioners set out the following issues for trial;

1. Whether the defendants are in breach of contract.

2. Whether the plaintiffs' cancellation of the Agreement of Sale was in terms of the Contractual Penalties Act [Chapter 8:04].

3. Whether the plaintiffs' attempted to restitute the amount paid by the defendants towards the sale due to breach.

4. Whether the plaintiffs are entitled to cancel the agreement based on the defendants' breach of contract.

5. The onus on the plaintiffs on all the issues.

The Pleadings and Burden of Proof

This being a cause based on breach of contract, the onus of proof rests on the plaintiff to prove breach and the nature thereof. The plaintiffs not only have to allege breach in sufficiently clear terms in their pleadings, but also to prove such breach in evidence. In their pleadings, the plaintiffs allege breach in the following respects:

(a) Failure by the defendants to pay a balance of Z$1,2 billion.

(b) Failure by the defendants to pay the sum of Z$2,3 billion to the conveyancers. The breach, as alleged, is mentioned in paragraphs 4, 5, 6, 7 and 9 of the declaration.

(c) Failure to pay interest in the sum of Z$54,208,814.

In their plea, the defendants denied breaching the terms of the agreement and contend that they have complied fully with the Agreement of Sale.

Assessment of evidence

The plaintiffs filed both the Agreement of Sale and the addendum as part of their case. During the course of the proceedings, the plaintiffs also produced, as exhibit 2a, a schedule showing the defendants' payments totaling Z$9,2 billion made to the first plaintiff, and exhibit 3, a letter from Joel Pincus, Konson and Wolhuter, legal practitioners who were then legal practitioners for the plaintiffs.

The plaintiffs led oral evidence from two witnesses. The first plaintiff confirmed, wholesale, together with all and any defects therein, the evidence, beliefs, and recollections of the second plaintiff.

The evidence of the first plaintiff that he confirmed and adopted the evidence of the second plaintiff was of little probative value to the court.

The first plaintiff had no independent recollection of the matter and did not corroborate the second plaintiff's evidence in any material respects.

It has to be noted that corroboration can only be supplied by independent evidence of a witness giving independent recollections of an incident at issue.

Only one question was put to the first plaintiff, under cross-examination, which question elicited new evidence from the witness. The following exchange occurred between the first plaintiff and the defendants' legal practitioners;

“Q. Who is the registered owner of the property?

A. I am. I gave it to my brother, but I am not the registered owner.”

The only independent aspect of the witness' evidence was that he and not the second plaintiff, and not him and the second plaintiff is the registered owner of the property. The witness, under cross examination, suddenly wept copiously in court. He then informed the court that he and his father had worked hard to acquire the building at issue. He indicated that it was not proper for the property, to “just go like that”. The witness asked the court for a “good judgment”. The first plaintiff certainly displayed his emotions in a rather exaggerated manner.

The second plaintiff gave evidence central to the plaintiffs' claims. He was the single and key witness in this matter.

Clause 1.2 of the Agreement of Sale provides as follows:

“It is recorded herein that the purchase price has been determined and agreed in the context of the prevailing Midrate of Exchange between the Zimbabwean and United States Dollar…,.”

The second plaintiff confirmed that the price was set by him at an equivalent of US$120,000 which was a reasonable price and acceptable to him at the time. The second plaintiff accepted that the midrate only changed between 25 and 3 March 2006.

The suggestion that the purchase price was eroded by the slide of the Zimbabwean dollar, in a period of two months, is baseless.

The second plaintiff confirmed that he signed both the Agreement of Sale and the addendum and he signed both in his own name, and on behalf of the first plaintiff. This is evident from an examination of both documents.

The second plaintiff testified that he co-owns the building with the first plaintiff.

The witness testified that the defendants failed to pay the purchase price by the 27th of January 2006 as stipulated in the Agreement of Sale. Initially, the witness stated that he tried to pursue the defendants to no avail. He stated, further, that upon chasing the defendants he reached no agreement with them. He later conceded that he had signed the addendum with the defendants. After the addendum was signed the witness averred that the defendants were given up to the 28th of February 2006 to settle the balance.

By 28 February, the defendants had not paid the entire purchase price.

He then approached his lawyers who issued a notice to remedy the breach. By the time the notice and demand was issued, the defendants had paid a total of Z$9,2 billion. Such payments were recorded and agreed by the parties prior to issuance of summons.

The witness affirmed that his claim was for cancellation of the contract and that he was tendering a refund of all monies paid by the defendants against such cancellation.

Under cross-examination, an entirely different picture began to emerge.

The plaintiff was moving away and in some instances contradicting his initial evidence. The witness sought to allege that when the addendum was signed, on 16 February 2006, the defendants had already breached the Agreement of Sale by failing to pay the sum of Z$10 billion into his account by 27 January 2006. The witness admitted that, on the face of it, the addendum did not give the sellers the right to cancel the agreement on account of non-payment with the extended time limits. The witness conceded that the addendum gave the sellers the right to levy interest at the rate of 80% or at the NMB Bank investment rate for any further delays in paying off the purchase price. The witness emphatically denied, under cross examination, that he had advised the defendants how much they needed to pay on account of Capital Gains Tax, to the nominated conveyancers, Ben Baron & Partners. The witness repeatedly disputed that the figure of Z$2.3 billion as the amount of Capital Gains Tax in spite of a demand having been made to settle that amount. When it was put to the witness that his lawyers had pleaded on his behalf that Capital Gains Tax was in the sum of Z$2,3 billion the witness stood firm that there was no way he could calculate and demand capital gains tax from the defendants.

Under cross-examination, the witness contradicted his pleadings on the amount, excluding capital gains tax, which remained due to him under the agreement. He pleaded mistakes in the calculations.

The witness further contradicted the terms of the Agreement of Sale and the addendum in material respects.

One glaring contradiction is that the witness sought to argue that capital gains tax was not, contrary to clause 4.5 of the Agreement of Sale, and contrary to the wording of the notice and demand written by his legal practitioners, and the pleadings on record, payable directly to the conveyancers. The witness kept insisting that the money was his money and that it should have been paid to him. Later, in his cross-examination, the witness had departed from his earlier evidence and sought to assert that he had indeed “estimated” capital gains tax in the sum of Z$2,3 billion.

The witness conceded that, up to the time demand was made by his legal practitioners, he had not opened a file at Ben Baron & Partners or supplied the firm with an irrevocable power of attorney as required by the Agreement of Sale.

The witness conceded that the following payments were made to the plaintiffs by the defendant:

(a) Z$9.2 billion into the first plaintiff's account which was nominated in the Agreement of Sale.

(b) Z$2,3 billion in various instalments to Joel Pincus, Konson and Wolhuter.

(c) Z$54,208,844 on account of interest to Joel Pincus, Konson and Wolhuter.

It was accepted, by the second plaintiff, that at the time the last two payments were made, the plaintiffs still did not have an account with the nominated conveyancers for payment of capital gains tax.

Sufficiency of evidence at the close of plaintiffs case

The defendants argue that at the close of the plaintiffs case the plaintiffs failed to lead evidence upon which a court might return a judgment in their favour.

The plaintiffs, however, do not agree.

The plaintiffs urge the court to dismiss the application for absolution from the instance as it is wholly without merit. The plaintiffs argue that they have made a prima facie case for breach of contract, entitling them to cancel the Agreement of Sale. Further, it is alleged by the plaintiffs that there is abundant evidence upon which a court, directing its mind reasonably to such evidence, could or might find for the plaintiffs.

I shall examine the sufficiency or otherwise of the evidence presented by the plaintiffs at the close of their case.

(a) Firstly, the breach of contract pleaded by the plaintiffs was not proved.

In his evidence, the second plaintiff could not explain how the sum of Z$1,2 billion which was stated in his pleadings, and which the defendants were said had failed to pay was calculated or arrived at. The defendants are alleged to have failed to pay such amount in the plaintiffs' pleadings. That the plaintiffs relied on the defendants' failure to pay that amount is clear from the plaintiffs' declaration, which states, in paragraph 4, as follows:

“In breach of the aforesaid terms of the agreement, defendants only paid the plaintiffs' the amounts detailed in annexure 'B' hereto, leaving a balance of $1,200,000,000 plus accumulated interest on all outstanding amount.”

The obligation to pay the sum of Z$1,2 billion, which was termed a material breach, was not proved nor explained by the plaintiffs at all.

(b) Secondly, in their pleadings, the plaintiffs based their allegations of breach of contract upon the alleged failure by the defendants to pay the sum of Z$2,3 billion in respect of Capital Gains Tax on time and as provided under the Agreement of Sale.

In his evidence, the second plaintiff conceded that after payment of Z$9,2 billion into the second plaintiff's account, the defendants met with a Mr Lunat, the plaintiffs accountant, and enquired about the plaintiffs representation at Ben Baron & Partners. What was admitted, however, was that when the defendants intended to pay the Capital Gains Tax, the plaintiffs had no file or account at the nominated conveyancers. It was therefore not possible for the defendants to pay the amount at the offices of the seller's nominated conveyancers.

In the event, the plaintiffs cannot be allowed to rely on the delay in payment of Capital Gains Tax. To do so would be tantamount to allowing the plaintiffs to benefit from their own tardiness or wrongdoing which is not permissible at law.

(c) Thirdly, the plaintiffs, according to their own admission, were in breach of the contract.

Under cross-examination, the second plaintiff conceded that the plaintiffs were in breach of clause 4.7 of the agreement of sale which provides as follows:

“Upon signing of this agreement, the sellers shall furnish the conveyancers herein with an irrevocable power of attorney authorising them to do all such things and sign all such papers as might be necessary to give effect to the transfer.”

The plaintiffs, having breached the terms of the Agreement of Sale, which breach occurred prior to the alleged breach by the defendants, ought not to be permitted to profit from such breach. See Chioza v Siziba SC04-15 where the Supreme Court held that:

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

In this instance, the plaintiffs admittedly received the full market value of the property, as set out and accepted by them as at the time of the sale. I make the observation that the plaintiffs ensured that the fluctuating Zimbabwean dollar was pegged at the mid-rate of the United States dollar at the relevant time.

The plaintiffs received the full purchase price for the property.

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Law Portal Zimbabwe

Cause of Action and Framing of Draft Orders re: Doctrine Against Benefitting from One's Own Wrongdoing

Appealed SC36-12 : RESERVE BANK OF ZIMBABWE vs CAFCA LTD Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

HH32-12 : ZELLCO CELLULLAR PL vs NETONE CELLULLAR PL and DR CALLISTUS NDLOVU and REWARD KANGAI and LYNDON NKOMO Ruled By: GOWORA J

HH44-10 : JOHN STRONG (PVT) LTD and TOBS STRONG (PVT) LTD vs WILLIAM WACHENUKA Ruled By: CHATUKUTA J

SC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

HH35-10 : RUTH MUSONZA (nee MTANAUKWA) vs ESHMAEL MUSONZA Ruled By: GUVAVA J

HB153-11 : JONA NDALAMA vs CHIEF SUPERINTENDENT – HAPPYMORE SIGAUKE and COMMISSIONER GENERAL – AUGUSTINE CHIHURI Ruled By: NDOU J

Appealed HH195-14 : FARAI MUSHORIWA vs CITY OF HARARE Ruled By: BHUNU J

HH288-14 : CHRISTINE GOREMUSANDU and GODFREY MAHENGA vs EUNICE CHITAMBARA and MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS Ruled By: MWAYERA J

HH315-14 : TECLA KAMBARAMI vs PETER MAJONGWE and THE REGISTRAR OF DEEDS and THE DEPUTY SHERIFF HARARE Ruled By: DUBE J

SC30-13 : ARCHIPELAGO (PVT) LTD vs LOCAL AUTHORITIES PENSION FUND and ADDINGTON CHINAKE Ruled By: MALABA DCJ, ZIYAMBI JA and PATEL AJA

SC32-13 : HEYWOOD INVESTMENTS (PRIVATE) LIMITED t/a GDC HAULIERS vs PHARAOH ZAKEYO Ruled By: MALABA DCJ, GARWE JA and GOWORA JA

CC05-15 : TOUR OPERATORS BUSINESS ASSOCIATION OF ZIMBABWE vs MOTOR INSURANCE POOL and ZIMBABWE REVENUE AUTHORITY and INSURANCE AND PENSIONS COMMISSION and ATTORNEY-GENERAL Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

SC04-15 : AGSON MAFUTA CHIOZA vs SMOKING WILLIAMS SIZIBA Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

SC60-15 : SIMON GAZI vs NATIONAL RAILWAYS OF ZIMBABWE Ruled By: ZIYAMBI JA, GWAUNZA JA and MAVANGIRA AJA

CC14-16 : FUNGAYI MAJOME vs ZIMBABWE BROADCASTING CORPORATION and MINISTER OF MEDIA, INFORMATION AND PUBLICITY and THE ATTORNEY GENERAL OF ZIMBABWE Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

View Appeal HH767-15 : IN RE: STAND FIVE FOUR NOUGHT (PVT) LTD (Under Provisional Judicial Management) FOR AN ORDER FOR FINAL JUDICIAL MANAGEMENT vs x Ruled By: MATHONSI J

SC37-16 : MARANGE RESOURCES (PVY) LTD vs CORE MINING & MINERALS PL (IN LIQUIDATION), MOSES CHINHENGO (RETIRED JUDGE) N.O., PRESIDENT, LAW SOCIETY OF ZIMBABWE N.O., ATTORNEY GENERAL OF ZIMBABWE N.O. Ruled By: MALABA DCJ, HLATSWAYO JA and GUVAVA JA

SC49-17 : PHILLIP ELLSE vs MICHAEL JOHNSON Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

HH478-15 : MUKUVISI TASHINGA HOUSING CO-OPERATIVE vs DANNY MUSUKUMA and LAST MBIZVO and CHARLIE DENGA and MSASA PARK (PRIVATE) LIMITED and ZANU P.F Ruled By: MATHONSI J

HB84-16 : PHILANI GAMA N.O. vs LUNGISANI MPOFU and PATRICIA PHIRI and MBALI NGWENYA and THE ADDITIONAL ASSISTANT MASTER N.O. and THE ASSISTANT MASTER, HIGH COURT OF ZIMBABWE, BULAWAYO N.O. Ruled By: MATHONSI J

HB95-16 : NATIONAL RAILWAYS OF ZIMBABWE CONTRIBUTORY PENSION FUND vs EKUTULENE INVESTMENTS t/a WALKERS PUB AND RESTAURANT and WAYNE ALLAN JONES Ruled By: MATHONSI J

HH57-15 : MACRO PLUMBERS (PVT) LTD vs SHERIFF OF ZIMBABWE N.O. and OWEN CHIGOYA Ruled By: MATHONSI J

HB105-16 : MAXWELL SIBANDA vs GAVIN HAYLER and HAROLD HAYLER and MARGARET MEEK and AUDREY BENEDICT and REGISTRAR OF DEEDS N.O. and BULAWAYO CITY COUNCIL Ruled By: TAKUVA J

HH138-15 : GOLD DRIVEN INVESTMENTS vs WILLEMSE FARMING ENTERPRISES (PVT) LTD and FREDRICK CHRISTIAN MULLER Ruled By: MATHONSI J

HH128-06 : DOBROCK HOLDINGS (PVT) LTD and TURNER AND SONS (PVT) LTD vs TURNER AND SONS (PVT) LTD and ANTHONY TURNER and MARTIN KING and ZAMBEZI PADDLE STEAMER (PVT) LTD and DOBROCK (PVT) LTD Ruled By: KUDYA J

HH73-15 : FUNGAI NHAU vs MEMORY KAFE and CHIPO NKUDZI Ruled By: MATHONSI J

HB129-16 : FANELE MAQELE and ALDRIN NYABANDO and TENDAI WARAMBWA vs VICE CHANCELLOR, PROFESSOR N.M BHEBHE N.O. and MIDLANDS STATE UNIVERSITY Ruled By: MATHONSI J

View Appeal SC13-18 : TBIC INVESTMENTS PL and PAUL CHIDAWANYIKA vs KENNEDY MANGENJE and MINISTER OF LANDS and RURAL DEVELOPMENT and REGISTRAR OF DEEDS and ATTORNEY GENERAL and COMMISSIONER OF POLICE Ruled By: GWAUNZA JA, GOWORA JA and BHUNU JA

View Appeal HH193-16 : GRANDWELL HOLDINGS PL vs MINISTER OF MINES and ZIMBABWE MINING DEVELOPMENT CORPORATION and MARANGE RESOURCES PL and ZIMBABWE CONSOLIDATED DIAMOND COMPANY and MBADA DIAMONDS PL and ANOR Ruled By: MAFUSIRE J

View Appeal HH24-16 : MEGALINK INVESTMENTS (PVT) LTD and OWEN PETER MURUMBI and THERESA MUSINA vs AFRICAN CENTURY LIMITED and SHERIFF OF ZIMBABWE Ruled By: TSANGA J

Appealed SC46-18 : CITY OF HARARE vs TAWANDA MUKUNGURUTSE and PATRICK CHIKOHORA and CLEDWYN MUTETE and MINISTER OF LOCAL GOVERNMENT PUBLIC WORKS AND NATIONAL HOUSING Ruled By: GARWE JA, GUVAVA JA and ZIYAMBI AJA

View Appeal HH558-16 : TAWANDA MUKUNGURUTSE and PATRICK CHIKOHORA and CLEDWYN MUTETE vs CITY OF HARARE and MINISTER OF LOCAL GOVERNMENT RURAL AND URBAN DEVELOPMENT Ruled By: TAGU J

Appealed SC49-18 : RICHARD SIBANDA and JONAH MUDONDO and L. D. MATEZA vs THE APOSTOLIC FAITH MISSION OF PORTLAND OREGON (SOUTHERN AFRICAN HQ) INC. Ruled By: GOWORA JA, HLATSHWAYO JA and UCHENA AJA

View Appeal HH463-15 : APOSTOLIC FAITH MISSION OF PORTLAND OREGON (SOUTHERN AFRICAN HQ) vs REV. RICHARD SIBANDA and JONAH MUNONDO and REV. L.D MATEZA and JULIUS T MATOPE Ruled By: DUBE J

HH250-18 : WIDE FREE (PVT) LTD t/a CORE SOLUTIONS vs MEIKLES LTD Ruled By: MUREMBA J

HB137-16 : TETRACH ENTERPRISES (PVT) LTD vs IRVINE MANHIRE and TECHMATE ENGINEERING (PVT) LTD and MUNICIPALITY OF KWEKWE Ruled By: MATHONSI J

HH198-16 : TANIA ROCHE (as Curator Bonis of Anita Bruk-Jackson) vs IAN MIDDLETON (as Testamentary Executor to Estate Late Chester Bruk-Jackson) and THE MASTER OF THE HIGH COURT Ruled By: CHITAKUNYE J

HH461-15 : PATTERSON TIMBA vs REGGIE SARUCHERA N.O. and RESERVES BANK OF ZIMBABWE and NATIONAL SOCIAL SECURITY AUTHORITY and RENNAISSANCE FINANCIAL HOLDINGS LTD and RENAISSANCE MERCHANT BANK LTD Ruled By: MAKONI J

View Appeal HH273-16 : KINGDOM BANK LIMITED vs THE RIGHT INVESTMENTS (PVT) LTD and OPIUM INVESTMENTS (PVT) LTD and PHILLIPA COUMBIS Ruled By: CHAREWA J

HH43-09 : ZIMBABWE OPEN UNIVERSITY vs DR. O MAZOMBWE Ruled By: HLATSHWAYO J

HB02-12 : MUNICIPALITY OF VICTORIA FALLS vs LOIDA NYATHI and 11 OTHERS Ruled By: NDOU J

HH53-09 : ZIMBABWE ALLIED GROUP LTD vs MILDRED AND MATHIAS (PVT) LTD Ruled By: MAKONI J

HH241-18 : CLOVER LEAF MOTORS GROUP (PRIVATE) LIMITED vs BUTHOLEZWE ZHOU and PATRICE SHAYAMANO Ruled By: CHITAKUNYE J

HH223-15 : ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION (ZSMIWU) vs ALFRED MAKWARIMBA and KENNIAS SHAMUYARIRA and ELIAS MADZIVA and FREEDOM MUDUNGWE and OTHERS Ruled By: MANGOTA J

HH226-15 : VALLEY MINING PL and ISAAC NJAINJAI and OTHERS vs AFRICAN BANKING CORPORATION t/a BANC ABC and MIRIRAI WASHAYA and SHERIFF OF ZIMBABWE and REGISTRAR OF DEEDS Ruled By: ZHOU J

Appealed SC56-20 : MOVEMENT FOR DEMOCRATIC CHANGE and NELSON CHAMISA and MORGAN KOMICHI vs ELIAS MASHAVIRA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA Ruled By: GARWE JA, PATEL JA and GUVAVA JA

SC62-20 : THANDO NCUBE vs FIDELITY PRINTERS AND REFINERIES (PRIVATE) LIMITED Ruled By: MAKARAU JA

View Appeal HB179-18 : YUSUF GAIBIE and MAHMOUD GAIBIE vs ALEXANDER CASTANHEIRA and RACHEL CASTANHEIRA Ruled By: MAKONESE J

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