Urgency re: Land Reform, Spoliation or Mandament van Spolie Proceedings and Property Disputes

HH40-09 : DODHILL (PVT) LTD and SIMON KEEVIL vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and NYASHA CHIKAFU
Ruled By: BERE J

The first applicant is Dodhill (Pvt) Ltd, a company with limited liability duly registered in accordance with the laws of Zimbabwe. The second applicant is the director and shareholder of the first applicant.

The first respondent is the Minister of Lands and Rural Resettlement, cited in his capacity as the acquiring authority and is responsible for the administration and implementation of the Land Acquisition Act [Chapter 20:10] and other allied pieces of legislation currently in force.

The second respondent is Nyasha Chikafu who is, in terms of the Land Acquisition Act [Chapter 20:10], the beneficiary of subdivision 1 of Dodhill in Chegutu District, Mashonaland West Province; which, incidentally, the applicants claim to have legitimate right over.

For purposes of this judgment, I will refer to the property in question as Dodhill Farm.

THE BACKGROUND

From the papers filed of record, coupled with the submissions made by the two legal practitioners representing the applicants and the second respondent, there are conflicting perceptions as regards the current status of Dodhill Farm.

The applicants feel very strongly that annexure '2' confirms their legitimate possession of the property.

Annexure '2' is a court order which was consented to at a time when the other portions of the property were voluntarily conceded to the State for purposes of agricultural resettlement following the formal gazetting of the applicants farm in January of 2005.

The second respondent's position is that following the promulgation of the constitutional amendment number 17/05, Dodhill Farm was properly allocated to her by the first respondent.

I accept the position adopted by the second respondent, that, annexure '2' was overridden by the subsequent promulgation of constitutional amendment number 17/05 which culminated in the introduction of, inter alia, section 16B(2)(a)(i) of the Constitution which conferred the ownership of the farm in question firmly in the hands of the first respondent.

I will therefore proceed on the basis that Dodhill Farm was indeed allocated to the second respondent.

APPLICANTS CASE

The applicants case is predicated upon the mandament van spolie.

Their argument is, that, on the evening of Thursday 5th day of February 2009, the second respondent, without the applicants prior knowledge and consent, summarily entered Dodhill Farm and set up a camp near the main security gate housing the applicants residence, barns, and other buildings. A tent was put up as well as a makeshift shelter. The allegations went further to say, that, the second respondent introduced or brought with her some youth who camped in the premises.

On 20 February 2009, the second respondent summarily, and without the consent of the applicants, commenced ploughing in the applicants fields where tobacco had just been harvested and on which the applicants had intended to plough an onion crop, in conformity, with the applicants programme of rotational cultivation.

The applicants outlined other incidents which amounted to the second respondent's summary occupation of Dodhill Farm.

The applicants sought the services of the police to have the status quo ante restored - but to no avail.

According to the applicants, when the second respondent was confronted, she said she had a right to occupy Dodhill Farm on the strength of her offer letter, a copy of which is marked annexure '3' in the papers filed of record.

THE SECOND RESPONDENT'S CASE

The second respondent's response to the allegations of unlawful dispossession were basically three-pronged, viz;

(i) Lack of urgency in this matter;

(ii) Lack of locus standi on the party of the applicants in bringing this application; and

(iii) In the alternative, a complete denial of the allegations levelled against her by the applicants.

In order for one to effectively deal with the second respondent's two main defences, one must consider whether the allegations by the applicants are true or not. If they are not, the two main defences would fall away.

If the allegations are found to be true, the court must then proceed to deal with those allegations in so far as they impact on the defences of lack of urgency and locus standi on the applicants.

THE ALLEGATIONS BY THE APPLICANTS

In her notice of opposition, the second respondent has emphasized the point that the ownership of Dodhill Farm now vests in the first respondent and the fact that her offer letter authorizes her to stay on the farm in question to carry out agricultural activities.

I wish to re-affirm the accepted legal position, that, in applications for a spoliation order, the question of ownership of the property in issue does not arise. As I will demonstrate later in this judgment, lawfulness to possession of the farm is equally irrelevant.

There are numerous aspects which can be gleaned from the second respondent's notice of opposition which confirm the allegations levelled against her, not only on a balance of probabilities but beyond reasonable doubt.

(i) Firstly, despite her attempt to paint the picture that the applicants consented to her occupation of the farm, the second respondent gives a completely different picture when she states:

“…,. Applicants seem to be complaining, that, I should have sought their permission first before ploughing and that they wanted to plant onions on the land which I ploughed. I am advised, which advise I accept, that, I have the lawful authority to carry out agricultural activities at the farm in the form of an offer letter. Since applicants do not own the farm, there is no reason at all for me to seek their permission to do that which is lawful.

In any event, the applicants have no right whatsoever to continue carrying out agricultural activities at the farm since doing so amounts to a criminal offence. I intend to allow applicants to finish harvesting their crops before I commence to prepare the land…,.”…,.

In my view, the above averments confirm the point made by the applicants, that, the second respondent simply moved onto Dodhill Farm without their consent, because, in her view (of course as advised by her counsel), the applicants have no right to be on the farm.

It is inconceivable, that, given her perception of the law, as advised by her counsel, the second respondent would have sought the consent of the applicants before occupying the disputed property.

Further, in her affidavit, the second respondent confirms, that, there were fights between her own employees and those of the applicants which culminated is some employees being arrested by the police from Chegutu.

If the second respondent had occupied the farm in question by consent there would have been no cause to have such running battles on the farm between the two groups of employees.

All in all, I am satisfied, that, a cursory perusal of the second's respondent's affidavit lends credence to the allegations raised by the applicants. I have absolutely no doubt in my mind, that, the second respondent acted in the manner complained of by the applicants.

THE QUESTION OF URGENCY

If the court accepts the allegations, as raised by the applicants (which the court is inclined to accept), for reasons already outlined, then, it was inevitable that this matter be brought to court on an urgent basis.

There is no standard formula which determines the issue of urgency. Every case must be looked at within its own context.

This is one case where urgency is justifiable because of the manner in which the second respondent took occupation of Dohill Farm.

It must be understood, that, the applicants initial decision to involve the police was both natural and reasonable in the circumstances. It was only when the police could not assist that the applicants thought of lodging the instant application.

In any event, our courts have held, in some cases, that, delays in instituting mandament van spolie proceedings do not necessarily amount to acquiescence in the dispossession: see Manga v Manga 1991 (B) ZLR 251…,.

HH19-07 : PONDORO (PVT) LTD and DOUGLAS TAYLOR-FREME vs MENDE NEMAKONDE and THE MAGISTRATE, CHINHOYI
Ruled By: HUNGWE J

This matter was placed before me under a certificate of urgency on 17 January 2008. I gave directions that it be heard the following day as I deemed it appropriate that the Rules of Court be dispensed with in the interests of achieving justice in this particular matter.

HH111-12 : DARLINGTON SIREWU vs WAYNE (GALLOP) SWALES AND ANOTHER
Ruled By: CHIWESHE JP

This court has previously held that matters pertaining to land disputes should be heard on an urgent basis, as follows: "Having regard to the importance of land disputes, the need to provide order, peace and tranquillity and the restoration of legality on the land, there is need to resolve such disputes with a measure of urgency..., ...

HH95-09 : FORRESTER ESTATE P/L vs MUTUMWAPAVI CHARLES RITCHIE VENGESAYI
Ruled By: CHATUKUTA J

Counsel for the respondent raised a point in limine that the application was not urgent because the respondent's conduct did not amount to spoliation. He submitted that the determination of the preliminary issue would entail determination of the merits of the application. On that basis I considered it expedient to deal with the merits.

HH148-09 : BOK ESTATES (PRIVATE) LIMITED vs HUBERT MASARA AND MR MASARA AND MR MAKANDA AND MINISTER OF STATE FOR NATIONAL SECURITY, LANDS, LAND REFORM AND SETTLEMENT
Ruled By: BERE J

The aspect of bringing this matter on an urgent basis was vehemently challenged by counsel for the first and second respondents. Counsel for the applicant was of a very strong view that given the averments as contained in the certificate of urgency, as well as the applicant's founding affidavit, looked at in conjunction with what the ...

HH152-10 : MARATHON GROUP OF COMPANIES T/A HARRISON AND HUGHSON (PVT) LTD vs ALSTOM ZIMBABWE (PVT) LTD and MESSENGER OF COURT, HARARE
Ruled By: MUTEMA J

This is an urgent chamber application for a provisional order whose interim relief sought was couched in these terms:“1. That the second respondent be and is hereby ordered to stay ejectment of applicant from the premises known as 93 Coventry Road, Harare pending the hearing of this urgent application for ...

This is an urgent chamber application for a provisional order whose interim relief sought was couched in these terms:

“1. That the second respondent be and is hereby ordered to stay ejectment of applicant from the premises known as 93 Coventry Road, Harare pending the hearing of this urgent application for stay of execution.

2. In the event of the second respondent having ejected applicant from the premises known as 93 Coventry Road Harare, he is hereby directed, temporarily, to return possession of the premises to applicant pending the outcome of the application for stay of execution.”

The terms of the final order sought include, inter alia;

“That second respondent be and is hereby ordered to stay execution permanently against applicant pending the outcome of the Civil Appeal 251/10 ref CIV “A” 423/10.”

The background of the matter is briefly as follows:

The applicant and the first respondent entered into a lease agreement in respect of 93 Coventry Road wherein the applicant was the lessee.

On 9 September 2009, the first respondent's estate agents, Guest and Tanner, invited the applicant to come and discuss an increase in fair rental from $1,200 per month. The first respondent's representatives went for the discussion but the estate agents' representative missed the appointment, and, consequently, no discussion about the issue was ever held.

Subsequently, the applicant offered to increase the rental to $2,400 per month which was accepted by the first respondent. The estate agents communicated acceptance of the offer by a letter dated 21 October 2009 wherein they also gave the applicant a six month notice to vacate the premises on the ground that the first respondent required the premises for its own use. The notice period endured up to 30 April 2010.

Came 30 April 2010, the applicant did not vacate the premises.

On 17 May 2010, the first respondent filed an application for eviction of the applicant in the Magistrates' Court. On 7 June 2010, the Magistrates' Court granted the application. On 8 June 2010, the applicant noted an appeal in this court against the order for its eviction.

Since the noting of the appeal had the effect of suspending the judgment appealed against, the first respondent filed an application for leave to execute pending the appeal.

That application was granted.

The applicant, again, noted an appeal against the order granted to the first respondent to execute pending appeal. Thereafter, the applicant filed this urgent chamber application for the provisional order. The chamber application was accompanied by a certificate of urgency.

At the hearing, counsel for the first respondent raised the following points in limine:

(1) The application lacks urgency in that six months notice to vacate was given. Applicant sat back and it was only on 28 April 2010 (two days before expiry of the notice to vacate that the applicant, in vain, attempted to cajole the first respondent into signing an agreement it had drafted to have the notice period extended.

(2) If relief to stay the execution is granted, this would be tantamount to this court overruling the magistrate's decision to execute pending appeal. Effectively, the applicant was asking this court to determine the appeal when it is not sitting as the Appeal Court.

(3) The court should determine whether there is a valid appeal against the magistrate's decision to grant leave to execute pending appeal.

There is no appeal in this respect because that order to execute pending appeal is not a final or definitive one. It is merely an interlocutory order and such an order is not appeallable. Over and above that, the Notice of Appeal pertaining to that order is fatally defective in that it falls foul of Rule 7 of the Supreme Court Miscellaneous Appeal and Reference Rules, 1975 by not stating all the aspects required in a Notice of Appeal.

In the event, so the argument went, there is no appeal that was noted and the applicant has no basis to come before this court.

Counsel for the applicant, in response, contended that the matter was urgent in that the applicant believed that instead of the matter being brought by way of application, it should have been brought by way of summons since there existed a dispute of fact, viz whether the first respondent required the premises for its own use. Further, the urgency arises because of the first respondent's insistence on eviction before the applicant's appeal is heard.

Regarding the point that if relief to stay execution is granted, this would amount to overruling the magistrate's decision, he said it is interwoven with the one whether the judgment being appealed against is final or not. He submitted that the judgment is final in that once the applicant is evicted, the purpose of its appeal is frustrated.

On whether the Notice of Appeal is fatally defective, he denied that the same rules are applicable. Even if they are, the Notice is sufficiently clear, on the papers, regarding which judgment is being appealed against, the second one granting leave to execute pending appeal. He submitted that the prayer that the judgment of the court a quo be reversed is the standard practice in this regard....,.

1. Is the application urgent?

Counsel for the applicant contended that the urgency itself only arises because of the first respondent's insistence on evicting the applicant before the latter's appeal has been heard.

I am unable to subscribe to this submission.

The basis for so holding hinges on the validity or otherwise of the applicant's appeal, which issue I shall deal with when unraveling the third point in limine, viz whether the appeal against the magistrate's decision to grant leave to execute pending appeal is valid.

At this stage, it behoves me to look at the issue of urgency vis-a-vis the facts of this matter.

A party, whose ejectment from rented premises is imminent, may be excused in entertaining the belief that his/her matter is urgent for he/she has an understandable apprehension of fear of the threatened eviction.

However, this should not be accepted at face value.

There is need to follow the spoor, in a manner of speaking, leading up to the threatened eviction on the facts.

In the instant case, the applicant was given six months notice to vacate the premises. It was content to sit back, blissfully hoping that the first respondent was bluffing. It was only two days before the notice period was up that the applicant attempted to engage the first respondent in an endeavour to have the notice period extended by a month.

The applicant, in the draft agreement which the first respondent refused to sign, agreed to vacate at the end of the extra month but set certain conditions for its vacation from the premises.

If, therefore, the applicant was willing to vacate the premises on or before 31 May 2010 one can safely conclude that the applicant had alternative premises to go to. That date has passed and the applicant is still in situ fighting to remain there.

In view of the foregoing, the urgency of the matter has been grossly eroded. I would hold that the application is not urgent.

HH232-10 : ANDREW RICHARD BRUFORD vs THE ATTORNEY GENERAL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MAGISTRATE JARABINI and OTHERS
Ruled By: CHIWESHE JP

The first respondent also contends that this application is not urgent because the applicant does not have any right to the land in question as such had become the property of the State by operation of law. The applicant has neither a permit, offer letter, nor lawful authority to occupy State land. Any other defence ...

HH234-10 : RODGERS MADANGURE vs SHATO LUFEYI and DAYNDALE ENTERPRISES (PRIVATE) LIMITED and MUGEJO MAKONI
Ruled By: GOWORA J

As regards urgency counsel for the first and second respondents contended that although he was aware of the Rule that spoliation proceedings are ordinarily urgent, it does not stop the point being taken that a particular matter should not be brought to court on an urgent basis. He submitted that a party who does ...

HH148-11 : HUDSON JOSTINO ZHANDA and IRENE ZHANDA vs T.J GREAVES (PVT) LTD and T.J. GREAVES and THE HON. HERBERT MURERWA N.O.
Ruled By: BHUNU J

Secondly, it was argued that the matter is not urgent because the applicants only approached the first respondents in April after being issued with the offer letter at the end of November 2010. There were further delays resulting in this application being filed belatedly on 29 June 2011. Having regard to the importance of ...

HH174-11 : TAFIREYI NYIKADZINO vs JOHN CAMERON ASHER and MINISTER OF LANDS & RURAL RESETTLEMENT and THE DEPUTY SHERIFFF
Ruled By: MUTEMA J

So from October 2009, the applicant was aware that the first respondent was at liberty to execute his eviction from the farm. What then did he do? Nothing for about 1½ years until he got a Notice of Removal advising that he would be ejected on 13 July 2011 when he filed the ...

No explanation is proffered, either in the certificate of urgency or in the founding affidavit, giving any reasons for the delay. In the event, is the matter urgent?

On what constitutes urgency, it was held in Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (HC)…, that what constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent, if, at the time the need to act arises, the matter cannot wait. Urgency stemming from a deliberate or careless abstention from action until the deadline draws close is not the type of urgency contemplated by the Rules. It necessarily follows that the certificate of urgency, or the supporting affidavit, must always contain an explanation of the non-timeous action if there has been a delay. In casu, no such explanation was ever attempted.

The alleged urgency is therefore self-created and not the type contemplated by the Rules of this Court.

To now argue that the threatened execution be stayed pending determination of an application filed simultaneously with this one, to have the two judgments by CHATUKUTA J and MAKARAU JP…, corrected in terms of Rule 449, some 2½ years later, is idle to say the least. Why was that application not made within a reasonable time? No explanation therefor has been given.

To also now argue, as the applicant does, that the provisional order by CHATUKUTA J be dismissed for want of prosecution or that it be set down urgently for a return day is both idle and contradictory. For more than 2½ years if the first respondent failed to set the matter down why did the applicant fail to either have it set down himself or apply for its dismissal for want of prosecution? How has it now transformed from being a final order as argued initially? It has been said time without number that the law assists the vigilant and not the sluggard! The applicant in casu has been most sluggard….,.

In view of the foregoing, the application is devoid of urgency and in the result it is dismissed with costs.

HH48-14 : WINSLEY MILITALA N.O. and QV PHARMACIES PRIVATE LIMITED (Under Provisional Judicial Management) vs MUTUAL FINANCE PRIVATE LIMITED and MESSENGER OF COURT and SHINGIRAI USHEWOKUNZE
Ruled By: CHIGUMBA J

This is an urgent chamber application for a provisional order in which the applicants seek the following relief: “TERMS OF FINAL ORDER SOUGHT That you show cause to this Honorable Court why a final order should not be made in the following terms: 1. That it be and is hereby declared that applicant, his representatives, employees and ...

This is an urgent chamber application for a provisional order in which the applicants seek the following relief:

“TERMS OF FINAL ORDER SOUGHT

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

1. That it be and is hereby declared that applicant, his representatives, employees and invitees are entitled to remain in peaceful and undisturbed possession, occupation and use of Shops 1 and 2, Sam Levy's village (Borrowdale) hereinafter referred to as Borrowdale Shop, until such time as applicant (should it be necessary and expedient) is lawfully evicted in accordance with the due process of law.

2. That the respondents pay the costs of this application jointly and severally, the one paying the other to be absolved on the higher scale of legal practitioner and client.

INTERIM RELIEF

Pending determination of this matter, the applicants are granted the following relief:

(a) That 1^st, 2^nd and 3^rd respondents and all other persons claiming occupation or possession through them, jointly and severally, or any other person occupying the so called Borrowdale Shop without the knowledge and consent of the applicants shall forthwith vacate the said property and that such persons shall forthwith remove all property introduced by them thereon so that the status quo ante of the property by the applicant as at 23^rd January 2014 be and is hereby restored.

(b) To the extent that it becomes necessary, the Deputy Sheriff is hereby authorized and empowered to attend to the eviction and removal of any person and their property so occupying the so called Borrowdale Shop without the knowledge and consent of applicant. Pursuant thereto, the Deputy Sheriff be and is hereby authorized to enlist the assistance of any member of the Zimbabwe Republic Police who are hereby directed to provide such assistance to the Deputy Sheriff so as to ensure that the provisions of this order are executed and implemented in full.”

At the hearing of the matter, I directed the parties to address on the merits of the matter, it being trite that the remedy of mandament van spolie, by its very nature, qualifies to be determined as a matter of urgency.

Both parties agreed.

HH13-15 : MICHAEL BASIKITI vs CHIVERO STANELY MDOKWANI and MINISTER OF LANDS AND RURAL RESETTLEMENT and DEPUTY SHERIFF, MARONDERA
Ruled By: NDEWERE J

The second point in limine by the first respondent is whether the application is urgent. After having regard to Kuvarega v Registrar General and Anor 1998 (1) ZLR 188 (H), I am of the view that this case falls into the category of self-created urgency. The dispute between the parties has been on-going since 2009 ...

The second point in limine by the first respondent is whether the application is urgent.

After having regard to Kuvarega v Registrar General and Anor 1998 (1) ZLR 188 (H), I am of the view that this case falls into the category of self-created urgency. The dispute between the parties has been on-going since 2009 because of a double allocation of a farm. There is nothing new which warrants urgent treatment by this court. The writ of ejectment has been there all along; it is just that the applicant temporarily stopped ejectment by signing an affidavit promising to vacate by 15 April, 2014, without extension, and empowering the first respondent to evict him without further notice. The order in case number HC5896/12 has been there since July 2013 and the applicant has not done anything to have it rescinded.

The fact that the applicant, in its draft order, is asking this court to set that judgment aside is confirmation that he has always been aware of the existence of that judgment and that it is valid because it has not been set aside or rescinded by a competent court. The applicant made the situation worse by signing an affidavit accepting that judgment way back in January 2014. In fact, the applicant betrayed the first respondent's trust when, instead of moving out by 15 April 2014, he went and obtained an offer letter and then sought to evict the first respondent.

The applicant has been relying on the withdrawal letter sent by the second respondent to the first respondent. Suffice it to say that the validity of that withdrawal is a moot point given the sentiments expressed in Sigudu v Minister of Lands and Rural Resettlement N.O. and Phineas Chihota HH11-13 referred to by the first respondent.

Even if the withdrawal is said to be valid, the mere fact of a withdrawal does not automatically set aside or suspend a valid court order. The court order continues to stand until rescinded or set aside by a competent court….,. Accordingly, the court's ruling is as follows:-

(1) That the urgent application be and is hereby dismissed for the following reasons:

(a) The application is defective for failure to comply with Rule 241 and Form 29B.

(b) The application is not urgent.

SC66-18 : PATRICK MAKAVA vs ROSEMARY MUTINGWENDE and MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: GWAUNZA DCJ, GOWORA JA and MAKONI JA

GROUND 2 Counsel for the appellant contended that the finding by the court a quo that the matter was urgent “boggles the mind”. The first respondent had, on 28 April 2017, filed a Court Application in HC3759/17 seeking to interdict the appellant from conducting any activities on the farm and his eviction from the farm. The urgent application was filed on ...

HB154-16 : FORBES & THOMPSON (BULAWAYO) (PVT) LTD vs THE ZIMBABWE NATIONAL WATER AUTHORITY and TIMOTHY KADYAMUSUMA
Ruled By: MOYO J

At the beginning of the matter, counsel for the respondent sought to object to the proceedings as not being urgent. I advised him that, in my view, the matter was urgent hence my decision to set it down. It cannot be said where mine or a community has water supplies cut off arbitrarily that matter ...

HB233-16 : DOUGLAS NDLOVU vs THABO MASUKU
Ruled By: TAKUVA J

As regards the first issue, whether this application is urgent, the starting point is Rule 244 of the High Court Rules 1971. It states; “Where a chamber application is accompanied by a certificate from a legal practitioner in terms of paragraph (b) of subrule (2) of Rule 242, to the effect that the matter is urgent, ...

As regards the first issue, whether this application is urgent, the starting point is Rule 244 of the High Court Rules 1971. It states;

“Where a chamber application is accompanied by a certificate from a legal practitioner in terms of paragraph (b) of subrule (2) of Rule 242, to the effect that the matter is urgent, giving reasons for its urgency, the Registrar shall immediately submit it to a judge who shall consider the papers forthwith.

Provided that, before granting or refusing the order sought, the judge may direct that any interested person be invited to make representations, in such manner and within such time as the judge may direct, as to whether the application should be treated as urgent.”…,.

In Kuvarega v Registrar-General and Another 1998 (1) ZLR 188 (H) CHATIKOBO J remarked;

“Applications are frequently made for urgent relief. What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is also urgent if, at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules. If there has been any delay, the certificate of urgency or supporting affidavit must contain an explanation of the non-timeous action.”…,.

The matter was recently succinctly put by MALABA DCJ while dealing with what should be set out in a founding affidavit and certificate of urgency in Mayor Logistics (Pvt) Ltd v ZRA 2014 (2) ZLR 78 (C) as follows;

“A party seeking to be accorded such preferential treatment must set out, in the founding affidavit, facts which distinguish the case from others to justify the granting of the order for an urgent hearing without breach of the principle that similarly situated litigants are entitled to be treated alike.”

It is trite that, generally, an application for a spoliation order should be dealt with on an urgent basis – Gifford v Muzire and Others 2007 (2) 131 (H). It is also accepted that where a situation has existed for a significant time before an application is mounted such an application will be deemed not urgent. See Gwarada v Johnson and Others 2009 (2) ZLR 159 (H) where the court remarked thus;

“Urgency arises when an event occurs which requires contemporaneous resolution the absence of which would cause extreme prejudice to the applicant. The applicant must exhibit urgency in the manner in which he has reacted to the event or threat.”

In an urgent application, the applicant must act with the utmost good faith and lay all relevant facts before the court – Bulawayo Dialogue Institute v Matyatya NO and Others 2003 (2) ZLR 79 (H); Grasprak Investments (Pvt) Ltd v Delta OPS (Pvt) Ltd and Another 2001 (2) ZLR 551 (H). Further, urgency need not only be established but the applicant himself must have treated the matter as urgent - Madzivanzira and Others v Dexpoint Investments (Pvt) Ltd and Another 2002 (2) ZLR 316 (H).

Applying these principles to the facts in casu I find it extremely difficult to conclude, for a number of reasons, that this application is urgent.

(i) Firstly, the applicant does not, in his founding affidavit, state when he was despoiled. The certificate of urgency, signed by a legal practitioner, is also silent on this crucial point. I say this is a crucial issue because of the chequered history of the parties. It is common cause that the parties are embroiled in a running legal battle that started in 2015 under cover of case number HC920/15. It spilt into 2016 under cover of case number HC1457/16. Both cases are pending determination. Case number HC920/15 was referred to trial on 31 May 2016. Consequently, it becomes totally meaningless, in my view, for the applicant to simply file an urgent application on 24 June 2016 for a spoliation order without specifically stating when the conduct he is complaining about occured.

How is a court expected to ascertain the urgency of such an application? How is it possible to assess whether the applicant has acted timeously or not in the absence of a precise and specific averment on when he was dispossessed of the property?

(ii) Secondly, the applicant, in my view, has not made a full disclosure of all material facts in that he has dishonestly concealed material facts. For example, he refers to Plot 14 as his plot when in actual fact it is not his plot. Let me reproduce portions of his founding affidavit in order to illustrate the points I am making. In Paragraph 5, he gives the background as follows;

“5. I was allocated a plot in the year 2000 at Richardson Farm. I annex hereto and mark 'A' a copy of the offer letter.”

What should be noted is that he does not indicate the plot number and the so-called offer letter is not annexed at all.

“6. In 2005, the plot was increased from 100 hectares to 300 hectares as I was carrying on successful farming activities. The extension was approved by all the relevant bodies. However, the Minister of Lands and Rural Resettlements did not regularize the change in boundaries.

7. I have been in occupation of my plot with shifted boundaries for the past 15 years. The plot number is 14 on paper but 9 on the ground.

8. Meanwhile, the respondent voluntarily moved out of his plot 14 on paper but number 9 on the ground. This has been obtaining for the 15 years and either party has been in occupation without any disturbance or interference from the other.”

No documentary proof whatsoever has been attached in support of the averments in paragraph 6 in respect of “shifted boundaries.” Also, the apparently confusing and meaningless phrase “Plot 14 on paper but 9 on the ground” has been left unexplained. Instead, the applicant claims that Plot 14 is his. This, in my view, is when the element of dishonesty comes in because the undisputed facts are that the applicant was offered Plot 13 while the respondent was offered Plot 14 of the same farm. For some reason, the applicant has made overtures to the relevant authorities for permission to own Plot 14. This quest has triggered numerous legal disputes between the parties.

In paragraph 9 of his founding affidavit, the applicant states:

“9. On 10^th April 2015, the respondent caused to be issued, undercover of case number HC920/15, summons against myself wherein he claimed an order declaring that he is the lawful owner of Plot 14. I defended that matter through my legal practitioners of record and the matter reached pre-trial conference stage wherein the Hon. Mr Justice MATHONSI referred the matter to trial.

10. Pending the determination of that matter, the respondent has, in his wisdom, seen it fit to attend to the farm I am occupying and wreak all manner of havoc.

11. Initially he came with old tyres and dumped them in my yard. Later, he was to return and erect a fence around a portion of the farm, and, resultantly, cordone off the area making it inaccessible to me.”…,.

Quite evidently, the applicant has not divulged when the respondent allegedly “attended to the farm” or erected the fence. The use of words like “initially” and” later” are so vague that they tempt the court to venture into speculative mode.

I am aware that the applicant has filed what he called an “answering affidavit” in which he rather belatedly stated that he was despoiled on 12 June 2016. In my view, the applicant's case must stand or fall on the basis of the affidavits.

In casu, the founding affidavit, and the certificate of urgency, do not give the dates nor the Plot in issue. Allowing an answering affidavit in this case would seriously prejudice the respondent in that it deprives the respondent of an opportunity to deal with those issues.

An answering affidavit is provided for in court applications in Rule 234 of the rules and not in chamber applications. In terms of Rule 235, after an answering affidavit has been filed no further affidavits may be filed without the leave of a court or a judge. I take the view that a cause of action must be set out in the founding affidavit. It is improper to raise new matters in an answering affidavit. See Magwiza v Ziumbe NO and Another 2000 (2) ZLR 489 (S)….,.

The fact of urgency must appear from the founding affidavit, and where no such averment is made in that affidavit, there will be no legal basis for a legal practitioner to issue a certificate of urgency as that certificate is, in turn, based on the founding affidavit. Logically, if there is no valid certificate of urgency then Rule 244 has not been complied with.

In Econet Wireless (Pvt) Ltd v Postal and Telecommunications Regulatory Authority of Zimbabwe 2014 (2) ZLR 693 (H), DUBE J remarked that;

“A certificate of urgency is required to be premised on a founding affidavit….,. A legal practitioner cannot certify a matter as being urgent where the applicant itself does not hold the view that the matter is urgent. The founding affidavit must disclose urgency. The deponent to the founding affidavit should therefore be alive to the fact that he is bringing a matter to court on an urgent basis. It is incumbent upon him to articulate fully, in his affidavit, why he is bringing the matter on an urgent basis and why he cannot wait and enroll the matter on the ordinary roll. He cannot simply regurgitate the history of the matter and expect that he may persuade the court to find the matter urgent by merely outlining the irreparable harm likely to ensue. He must make specific averments on the allegation that the matter is urgent and cannot wait….,. Nor can the deponent to the founding affidavit leave it to his counsel to address the issue of urgency of the matter at the hearing either…,.”

In casu, both the founding affidavit and the certificate of urgency are woefully inadequate. For these reasons, I come to the conclusion that the applicant has failed to establish urgency in this matter. Accordingly, it is ordered that;

1. The application is not urgent.

2. The applicant shall pay costs of this application.

HB252-16 : ROBERT MAFU and 54 OTHERS vs AGRICULTURAL & RURAL DEVELOPMENT AUTHORITY (ARDA) and TREK PETROLEUM
Ruled By: MAKONESE J

The applicants seek an interim order in the following terms: “1. That pending confirmation or discharge of this provisional order applicant be and is hereby ordered to immediately cease evicting, demolishing and/or interfering with the applicants' homesteads, farming and grazing land, and to immediately restore applicants to their occupation and possession of their homesteads, farming, and grazing land. 2. In ...

The applicants seek an interim order in the following terms:

“1. That pending confirmation or discharge of this provisional order applicant be and is hereby ordered to immediately cease evicting, demolishing and/or interfering with the applicants' homesteads, farming and grazing land, and to immediately restore applicants to their occupation and possession of their homesteads, farming, and grazing land.

2. In the event of the respondents failing to restore applicants to their occupation and possession of their homesteads, farming, and grazing land, the Sheriff of Zimbabwe or his lawful deputy be and is hereby authorized to restore applicants to occupation and possession of their homesteads, farming and grazing land….,.

The respondents raised the following points in limine:

1. The application is not urgent

The respondents contend that the certificate of urgency does not mention one word on how and when the urgency arose. It argued that a document certifying urgency must itself disclose urgency, that is to say, the date when the cause of complainant arose and the time difference between such date and the date when action was eventually taken. These averments are evidently absent from the certificate of urgency, and, for that reason, the certificate of urgency is fatally defective.

The applicant alleges, in the founding affidavit of Robert Mafu, that the alleged cause of complaint arose on 5^th September 2016. The applicants allege that a bulldozer and various earthmoving equipment had been demolishing their dwelling structures since the 5^th of September 2016.

No explanation has been advanced as to why no action has been taken to seek this court's intervention if those allegations are true. It seems to me that the applicants' inaction seems to suggest that the demolitions never occurred at all. The photographs annexed to the applicants' papers do not show any demolished buildings or structures. They do not show any movable properties strewn all over the place.

Counsel for the applicants seems to have disclosed the real nature of the dispute when he commenced his submissions by stating that the respondents have encroached on to the applicants' grazing lands.

I hold the view that the applicants have not established urgency at all.

If the need to act had arisen on 5^th September 2016, one who have expected the applicants to spring into action at that stage. The applicants chose to wait and file the application at their pleasure and at the time of their choosing. This is not the urgency contemplated by the Rules. See the case of Kuvarega v Registrar General & Anor 1988 (1) ZLR 188….,.

The court is satisfied that the application does not pass the test of urgency…,.

HH349-14 : TRUSTEES OF THE S.O.S. CHILDREN'S VILLAGE ASSOCIATION OF ZIMBABWE vs BINDURA UNIVERSITY and MINISTER OF STATE, MASHONALAND CENTRAL and MINISTER OF LANDS and ATTORNEY – GENERAL
Ruled By: MAFUSIRE J

The first point in limine was that the matter was not urgent because a similar application had been made in 2011 and that it had been dismissed….,. With particular regard to the question of urgency I dismissed it because the first respondent had expressly conceded that a spoliation application is generally urgent by its very nature….,.

HH213-15 : BERNARD DUMBURA vs CHIEF LANDS OFFICER (MASH CENTRAL) (NO) and GEORGE MANYAME
Ruled By: NDEWERE J

The applicant was issued with an offer letter, Annexure A on 7 October 2004 for Subdivision 2 of Pimento Farm in Bindura District measuring 46 hectares.

On 28 November 2014, the applicant received a note from the Provincial Chief Lands Officer advising him of a re-planning of the land carried out in 2007 which resulted in his offer being withdrawn on 17 June 2013 by a withdrawal letter signed by the then Minister of Lands and Rural Resettlement. The withdrawal letter of 17 June 2013 was attached to the note by the Provincial Chief Lands Officer.

The applicant is challenging the withdrawal of the offer through a court application HC10653/14 which is still pending.

On 2 December 2014, the applicant then filed the current urgent application seeking an interdict against the first and second respondents to stop interfering with his rights on the disputed land pending the determination of his court application in HC10653/14.

Both respondents opposed the application....,.

The first respondent said the matter was not urgent because the note which the applicant received from the Chief Lands Officer on 28 November 2014 advised him to approach the Minister of Lands within seven days with any representations.

The first respondent said, instead of approaching the High Court four days after receiving notification from the Chief Lands Officer on behalf of the Minister, he should have approached the Minister of Lands and Rural Resettlement with his representations within the seven days communicated to him.

The first respondent submitted that the applicant should not have approached the court before exhausting the domestic remedies available to him as an occupier of State land.

The first respondent said the urgency is therefore self-created by the applicant's failure to make representations to the Minister of Lands and Rural Resettlement as advised; which was an alternative remedy available to the applicant....,.

The first respondent's argument that this application is not urgent is also convincing.

On 28 November 2014, the applicant received a note from the Chief Lands Officer, attaching a withdrawal letter by the Minister of Lands and Rural Resettlement. The last paragraph to that note of 28 November 2014 is very relevant. It stated as follows:

“Any representations that seek to contest that decision have to be in writing to the Acquiring Authority who is vested in the Minister of Lands and Rural Resettlement, Dr D. Mombeshora, within a 7day period.”

In that paragraph, the applicant, if aggrieved, was being given a chance to ventilate his grievances to the Acquiring Authority within seven days. The seven day period shows that the matter was being treated urgently by the Acquiring Authority.

Instead of using that avenue, the applicant decided to ignore it, and, instead, approached the High Court on an urgent basis.

In my view, this is self-created urgency in that the applicant deliberately refrained from utilising an alternative remedy available to him of making representations to the Minister of Lands and Rural Resettlement within 7 days.

In addition, the act of issuing offer letters and withdrawing them is an administrative act by the Acquiring Authority. It would be improper for the High Court to get involved in that administrative act before all the remedies provided in accordance with the Administrative Justice Act have been exhausted. In this regard, section 7 of the Administrative Justice Act [Chapter 10:28], referred to by the first respondent's counsel, is instructive. It provides as follows:

“Without limitation to its discretion, the High Court may decline to entertain an application made under section 4 if the applicant is entitled to seek relief under any other law, whether by way of appeal or review or otherwise and the High Court considers that any such remedy should first be exhausted.”

The invitation to the applicant to make representations to the Minister, within 7 days, was an invitation to make the Minister review his decision, if necessary, and the applicant ought to have seized that opportunity instead of mounting an application to this court on an urgent basis.

As correctly pointed out in Musunga v Utete and Another HH90-03…,;

“…, no litigant is entitled, as of right, to have his matter heard on an urgent basis; the test provided by the Rules is that the matter must be so urgent and the risk of irreparable damage so great that the matter cannot proceed within the normal time frames provided in the Rules.”

Consequently, this application cannot be dealt with as an urgent matter.

Having ruled that the application is not urgent, I shall not delve into the merits of the matter.

The applicant shall pay the respondents' costs.

HMT09-18 : MUBUSO CHINGUNO vs MINISTER OF LANDS, AGRICULTURE AND RURAL RESETTLEMENT and PROVINCIAL LANDS OFFICER MANICALAND and DISTRICT LANDS OFFICER CHIPINGE and COLONEL MAKUYANA
Ruled By: MWAYERA J

The applicant approached the court through the Urgent Chamber Book seeking for an interdict pendente lite.

The order sought seeks to restrain the respondents, in particular the fourth respondent, from evicting and or disrupting the applicant's farming activities at Subdivision 11 of Chipinge West Annex pending the finalisation of proceedings under case number HC52/18.

The order sought by the applicant, as discerned from the papers, is as follows:

“TERMS OF THE FINAL RELIEF:

(a) That the respondents, or anyone acting through them, be and are hereby interdicted from implementing the changes made to the applicant's farm and location by the letter dated 7 June 2018 from the 1st respondent pending the determination filed by the applicant under case number HC52/18.

(b) The respondents pay costs of suit on attorney client scale.

INTERIM RELIEF:

1. The 4th respondents, or anyone acting through him or under his instructions, be and are hereby ordered to stop, immediately, all evictions of the Applicant and removal of his property or farm workers.

2. The 4th respondent, or anyone acting through him or under his instructions, in particular members of the Zimbabwe National Army, be and are hereby interdicted from entering any part of the Applicant's farm where he is presently occupying and staying.”...,.

For the sake of completeness, I shall set out the brief background to the application.

Both the applicant and fourth respondents are beneficiaries of the land reform programme. They both were issued with offer letters by the first respondent, the relevant issuing authority.

The applicant was issued with an offer letter for Subdivision 11 of Chipinge West Annex on 9 May 2011. The applicant has been in situ since then, and, as at the time of the hearing, had been in possession of the land in question for about 7 years. The fourth respondent was issued with an offer letter on 18 June 2018 and the offer letter allocated him Subdivision 8 of Chipinge West Annex.

Following the issuance of the fourth respondent's offer letter, the fourth respondent sought to take occupation, and, in so doing, conflict arose with the applicant who was already on the ground.

The applicant was aggrieved by the relevant Ministry's re-allocation of the land on which he was settled and thus approached this court in terms of section 4(1) of the Administrative Justice Act [Chapter 10:28] under HC52/18.

The applicant further sought, on an urgent basis, an interdict to bar the fourth respondent from moving in and disturbing the applicant and his workers' activities at the farm pending determination of HC52/18.

Both the second and fourth respondents had no submissions on urgency.

Urgency, as contemplated by the rules of this court, is fairly settled and well defined in plethora of case law. One can safely summarise circumstances in which a matter can be viewed as urgent as follows:

1. That when the need to act arose, the party concerned sprang into action.

2. That the matter cannot wait; for waiting would render hollow any other remedy to be availed by the court in future.

3. That the party concerned will suffer irreparable harm and that there is no other remedy available.

4. The balance of convenience favours the granting of the application.

The requirements of urgency are ably and succinctly laid out in Kuvarega v Registrar General and Anor 1998 (1) ZLR 188; Document Support Centre v Mapuvire and Another 2006 (2) ZLR 240.

See also the case of Madzivanzira and 2 Ors v Dexprint Investments (Pvt) Ltd HH245-02 which quoted with approval sentiments of Paradza J…, in Dexprint Investments (Pvt) Ltd v Ace Property and Investments (Pvt) Ltd HH120-02 wherein the learned Judge stated that:

“For a court to deal with a matter on urgent basis, it must be satisfied of a number of important aspects. The court has laid down guidelines to be followed. If, by its nature, the circumstances are such that the matter cannot wait, in the sense that if not dealt with immediately irreparable prejudice will result, the court can be inclined to deal with that matter on urgent basis.”

Further, in Dexprint Investments (Pvt) Ltd v Ace Property and Investments (Pvt) Ltd HH120-02 the court stated as follows:

“…,. It must be clear that the applicant did, on his own part, treat the matter as urgent.”…,.

This same reasoning has been rehashed by the courts with emphasis on the importance of the party seeking redress on an urgent basis and not waiting for doomsday or the day of reckoning to arrive.

If the applicant in this case swiftly acted in the face of impending irreparable harm in circumstances where the matter cannot wait then there is justification in allowing the matter to jump the ordinary que and be heard on an urgent basis.

Given the common cause aspects emanating from submissions by Colonel Makuyana that he was advised by Mr Mukoyi that he should not move in too soon but give the applicant, who was already in situ, time to harvest his crop, and, also given the undisputed evidence by the fourth respondent that he moved in and that he intended to help the applicant with a sheller to shell his maize, it became apparent that the applicant, on realizing the disruption at his farm, had to urgently seek redress by way of an interim interdict.

The applicant received notification to vacate and that at more or less the same time the fourth respondent, and other people, moved and started settling in - in a manner tantamount to evicting the applicant and/or his workers.

In reaction to this disruption, the applicant, who had lodged an application with this court under HC52/18, also sought a provisional relief on an urgent basis.

Mr Mukoyi did not make any submissions as whether or not the application was urgent. This was despite the explanation by the court of the requirements of urgency as contemplated by the Rules of the court. He had no submissions to make on urgency and so did Mr Makuyana, the fourth respondent.

From the circumstances of this matter, going by the manner the applicant sought redress from the time of hearing about the intended evictions and disruptions on 18 June 2018, the requirements of urgency appear to have been met.

The applicant approached the High Court on 22 June 2018. The applicant treated the matter as urgent, and, indeed, the application is one which qualifies to be heard on an urgent basis.

HH213-18 : BULCHIMEX GmbH IMPORT-EXPORT CHEMIKALIEN und PRODUKTE and TECHNOIMPEX SOFIA BULGARIA JSC vs BULCHIMEX GMBH IMPORT EXPORT CHEMIKALIEN und PRODUKTE PL and SARAH HWINGWIRI and R. JOGI
Ruled By: MANGOTA J

The applicants are foreign legal entities. The first is a German company. It is owned by a Bulgarian Corporation. The second is a Bulgarian entity. It is a subsidiary of the first.

Until 22 November 2017 the first applicant was the owner of a certain piece of land which is situated in the district of Salisbury. The piece of land is called Stand Number 295, Northwood Township 2 of Sumbeni. It was held under Deed of Transfer number 5022/2008. It is commonly known as Number 116 Twickenham Road, Mount Pleasant, Harare [“the Mount Pleasant property”].

On 9 December 2013 one Rajendrakumah Jogi [Jogi] purchased the property. He took title in the property on 22 November 2017 following its sale to him. It is now registered under Deed of Transfer number 4766/17 which Deed records the name of the purchaser as the new owner of the same.

The second applicant was, and still is, the owner of a certain piece of land which is situated in the district of Salisbury. It is called Lot 12 of Lot 15 Block C of Avondale. It is held under Deed of Transfer number 1657/89. It is commonly known as Bath Mansions Flats. It is at Number 32, Bath Road, Avondale, Harare [“The Avondale property”].

The abovementioned two properties lie at the centre of the main application, HC12074/16 and the urgent chamber application, HC2012/18.

The applicants filed the main application on 28 November 2016. They successfully moved the court to interdict the first and second respondents from dealing in any way with the two properties and/or from coming within 100 metres of the same. The interim order which the applicants obtained in the mentioned regard is dated 2 December 2016.

On 22 February 2018 l heard the matter which related to the confirmation or discharge of the provisional order of 2 December 2016. Having heard submissions from both parties, I reserved judgment.

Before the ink which related to my hearing of the main application had dried up, the applicants filed the urgent chamber application, HC2012/18. They did so on 5 March 2018. They moved the court to restore to them possession of the Mount Pleasant property and to interdict:

(a) The first (Bulchimex GMBH Import Export Chemikalien und Produkte (Pvt) Ltd), second (Sarah Hwingwiri) and third (Rajendrakumar Jogi) respondents from selling, or, in any way, alienating or encumbering the Mount Pleasant property.

(b) The fourth respondent (Registrar of Deeds) from facilitating or making further transfer of the Mount Pleasant property which is held under Deed of Transfer number 4766/17 in favour of Rajendrakumah Jogi to anyone.

(c) All the respondents from facilitating or transferring title in the Avondale property which is registered under Deed of Transfer number 1637/89 to anyone.

(d) The fifth respondent (the Sheriff of Zimbabwe) from evicting occupants of the Avondale property.

Because title in the Mount Pleasant property had already changed hands from the first applicant to Mr Jogi when the application was filed, I disallowed paragraphs 1, 2 and 3 of the applicants draft order.

I allowed paragraphs 6 and 9 of the draft order with some amendments. I directed that the word Lease which appeared in paragraph 6 should be deleted. I further directed that the phrase or 116 Twickenham Drive, Mount Pleasant, Harare which appeared in paragraph 9 should also be deleted.

I, accordingly, allowed paragraphs 4, 5 and 6 as amended, 7, 8, 9 as amended and paragraph 11 to remain as the interim relief for the applicants.

The interim order was issued with the consent of all the parties.

My reading of the record satisfied me that HC2012/18 was urgent.

The applicants stated that they were not aware that their Mount Pleasant property had been sold and transferred to someone. They said they became aware of that fact on 1 March 2018 when the deponent to their founding affidavit received a call from one Kudzai Kupambana, the caretaker of the property. He submitted that Mr Kupambana informed him that the Messenger of Court was carrying out eviction at the premises. He said he immediately notified the applicants' legal practitioners of the development. These and him, he said, visited the Mount Pleasant property. He averred that the legal practitioners and him later established that it was not the Messenger of Court but the Deputy Sheriff who had carried out the eviction.

The supporting affidavit of Mr Kubambana was on all fours with that of the deponent of the founding affidavit especially on the portion which related to the latter's eviction.

The applicants filed the urgent chamber application a day after their discovery of what had occurred. They most certainly treated the matter with the urgency which it deserved.

The first, second and third respondents opposed the urgent chamber application. They, however, and to their credit, consented to the interim relief which I granted to the applicants in its amended form. They did so in the interests of progress. They agreed with me that the situation had to be arrested. All the parties shared the view which the court had.

The view was that the situation of the parties' case did not have to get out of hand whilst judgment in the main application, HC12074/16, was being awaited.

HH384-17 : NEWTON DONGO vs BABNIK INVESTMENTS (PVT) LTD and MESSENGER OF COURT
Ruled By: CHAREWA J

The applicant filed an urgent chamber application for a provisional order of stay of eviction as interim relief and a final order that he should remain in peaceful occupation of immovable property known being Stand number 107 of Salisbury Township, also known as Number 102 Harare Street, Harare.

I heard the application on 10 February 2017 and dismissed it with costs, giving reasons ex tempore, in the presence of the applicant, for lack of urgency and locus standi by the applicant.

On 22 May 2017, three and a half months later, the applicant wrote to the Registrar requesting the reasons for my decision, which I render hereunder.

The Facts

Stand 107 of Salisbury Township belonged to the late Sushila Natverlal Naik whose estate was duly registered on 9 May 2016 and administered under the Master's supervision to its final conclusion; (Letters of Administration issued to the deceased's son, Joytindra Natverlal Naik, dated 22 June 2016, refer). As part of the finalisation of the administration of the estate, the property was disposed of to the first defendant on 21 July 2016.

Upon finalisation of the administration of the estate, and the disposal of the estate property, three months' notice was properly given to the legal tenant, Goldpack Investments (Pvt) Ltd and all those claiming occupation through it, to vacate the property in favour of the new owner.

Upon failure of the occupants to vacate, the matter went before the Magistrates Court which granted an order of eviction on 3 February 2017.

Prior to her death, the deceased had leased the property for five years, commencing 1 November 1999 to 31 October 2004, to Goldpack Investments (Pvt) Ltd. The terms of the lease agreement did not allow for subletting or cession without the deceased's consent.

Contrary to the lease agreement, and subsequent to the deceased's death, Goldpack Investments (Pvt) Ltd “ceded” its rights to a company called Clintvest Investments (Pvt) Ltd. While the directors of the two companies were the same, the companies were, and are, separate legal entities.

Clintvest Investments (Pvt) Ltd subsequently allegedly sublet to several flea market stall-holders as is apparent from Magistrates Court Case No. 41044/2016. The applicant's name is not included as one of the stall holders in that matter though he swore an affidavit on their behalf - the basis of which is unclear. Nothing on the record, or in previous litigation, supports that the applicant was also a stallholder and subtenant of Clintvest Investments (Pvt) Ltd.

The applicant instituted the present application on his own behalf as appears from his founding and “supplementary founding affidavit” (sic). However, he purports to speak for other subtenants without laying the basis for doing so.

When the parties appeared before me, on 9 February 2017, I noted challenges with the draft order which the applicant sought; the interim order of which was to the effect that pending the determination of the urgent application before me, execution of any judgment of a Magistrate Court seeking his eviction be stayed in circumstances where the applicant had already been evicted.

Further, I could not grant any order pending the determination of the very application before me.

In addition, the final order sought continued peaceful occupation pending the determination of his application for a declaratory order that the sale of the property was invalid – when the applicant was no longer in occupation.

I also noted that the applicant had not properly laid the basis for seeking that the matter be heard on an urgent basis or established his locus standi to bring the application.

With the consent of the first respondent, I therefore directed the applicant to attend to his draft order to seek reinstatement of occupation and stay of any further execution thereafter.

In addition, I granted the applicant the indulgence, if necessary, to file a supplementary affidavit regarding;

(1) This change in the draft order.

(2) To traverse the issue of urgency, the requirements of which were explained to him; and

(3) To establish his locus standi after which the first respondent could file its opposing affidavit.

On the next hearing date, on 10 February 2017, the applicant submitted a supplementary founding affidavit which was effectively a new application for an interdict, bringing up new issues rather than reinstatement of occupation and stay of further execution contrary to the directions of the court.

Being mindful of the fact that the applicant was a self-actor, I however allowed the parties to make submissions on urgency and locus....,.

At the conclusion of the parties' submissions I dismissed the application on the basis that, firstly, it was not urgent, and, secondly, and in any event, the applicant lacked the locus standi to bring this or any other application in the matter - and these were my reasons:

Urgency

On urgency, the applicant submitted that he was being evicted, and had in fact been evicted, by someone with improper title. He averred that he should not be evicted until the issue of propriety of the administration of the estate of Late Sushila Naik was resolved.

In his affidavit of urgency…, the applicant averred that the matter was urgent because;

1. He had “been served with a writ, default judgment, and notice of removal to take place on the 9th of February 2017”…,.

2. He “was not cited in the matter…, threatening (his) rights in the premises and…, was not given the opportunity in the Magistrates Court to defend (his) rights.”

3. Unless this court intervened, he stands “to suffer repairable (sic) harm and it is clear that the 1st Respondent approached that (sic) Court with dirty hands by citing a party which is not in occupation and has ceased to have an interest in the premises.”

4. “…, 1st Respondent has abused the lower court by seeking such an order (presumably the order of eviction) when there is a case HC137/16 pending…,.”

5. “The reasons why 1st Respondent has acted in such a manner is that…, we both sale (sic) electrical goods and hardware and so he wants to kill competition.”

It is apparent that the applicant advanced no grounds at all why his application should be treated as urgent.

In fact, by his own admission, he knew by, at the very least, January 2017, that the first respondent had acquired title and intended to convert the property for its own use. And, as at that date, he had long been aware that in 2016, the first respondent had instituted eviction process against the legal tenant, Goldpack Investments (Pvt) Ltd and all those claiming occupation through it. If the applicant had any rights to protect, then, the need to act arose, at the latest, then.

As it turns out, and according to documents in the applicant's possession, and paragraph 5 of his supplementary founding affidavit, as at 25 August 2016, all subtenants at 102 Harare Street were given notice by Clintvest Investments (Pvt) Ltd that the property had been sold and that they had to vacate within three months. They sought an extension of the notice period to the end of December 2016, which was turned down by letter dated 16 November 2016.

At the earliest, therefore, the applicant was, as from 25 August 2016, always aware that the property had been sold as a consequence of the administration of the estate and he was required to vacate in favour of the new owner. The need to act arose then, should the applicant have had any remedy against the first respondent, and not as at the date of eviction by the Messenger of Court.

Instead of seeking to protect his alleged rights to occupation, what the applicant did, in fact, was to seek to impugn the administration of the estate of the late Sushila Natverlal Naik, in letters dated 21 and 29 December 2016. In response, the Master informed him, by letter dated 11 January 2017, to approach the courts for a review of the administration of the estate as it had been finalised.

Contrary to the advice from the Master, what the applicant did was to seek a declaratur, a month down the line. Thus, he himself did not treat his own cause as urgent.

Besides, execution of judgment being the natural consequence of an order of court, and the applicant having already been evicted, it is a principle of our jurisprudence that once the status quo ante has been lost, it can generally not be restored, unless there is a palpable miscarriage of justice, which is not apparent in this case.

Clearly, this matter did not deserve to be treated as urgent as it fell far short of the requirements necessary to jump the queue and take precedence over other matters.

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

This is an appeal against the whole judgment of the High Court handed down on 24 January 2020. The appeal seeks to impugn the court a quo's order awarding custody of the parties' three minor children to the respondent upon the separation of the parties.

The appellant also challenges the jurisdiction of the court a quo, and the urgency and validity of the interdict granted against him in respect of the parties' disputed properties.

Although the parties were also quarrelling about the respondent's right to access the matrimonial home, that dispute has since been resolved by the court a quo in the appellant's favour. That issue consequently falls away.

The respondent has, in turn, abandoned her claim that the appellant be barred from being heard until he has purged his dirty hands. That issue has also fallen away for the reason that it has been abandoned by the respondent.

CHOICE OF LAW

Although the parties were married under Customary Law, they have both elected to have their matrimonial rights and obligations regulated and determined in terms of General Law; section 3(b) of the Customary Law and Local Courts Act [Chapter 7: 05].

It is convenient that their dispute be regulated and determined in terms of General Law because of their sophisticated way of life and ownership of immovable private property.

As the concept of private ownership of immovable property is unknown at Customary Law, it is virtually impossible to determine rights and obligations pertaining to privately owned immovable property in terms of any law other than General Law. Thus, the appropriate applicable law in this case is the General Law. See Mandava v Chasekwa 2008 (1) ZLR 300…,.

BRIEF SUMMARY OF THE CASE

The appellant is the Vice President of Zimbabwe whereas the respondent is his estranged wife. The two were married under an unregistered customary law marriage also known as a customary law union. The marriage was blessed with three minor children. The eldest, Tendai Dominique Chiwenga, is aged 9 years whilst Christian Tawanazororo Chiwenga is 8 years, and Michael Alexander Tadisiswa Chiwenga is 6 years old respectively.

During happier times, the parties resided at their matrimonial home situate at Number 614 Nick Price Drive, Borrowdale Brooke, Harare together with their three minor children. During the subsistence of the marriage, the parties acquired both movable and immovable property either jointly or in their personal capacities. The acquired property includes the matrimonial home, a fleet of cars, immovable business premises known as Orchid Gardens, along the Domboshava Road, personal effects, and other paraphernalia.

It however so happened that the marriage later fell on turbulent times resulting in the appellant initiating divorce procedures under customary law. In those proceedings he alleged that he had given her a divorce token known as 'gupuro'.

In her papers before this Court, and in paragraph 8.1 of her heads of argument, the respondent continues to hold herself out as the appellant's wife. The divorce issue therefore appears not to have been resolved.

The appellant has nevertheless now issued summons against her in the court a quo under case number HC9837/19 claiming custody of the three minor children in terms of section 4 of the Guardianship of Minors Act [Chapter 5:08] and division of the matrimonial property acquired during the subsistence of the marriage.

The current proceedings and the parties' relationship are severely strained, acrimonious, and discordant. This is mainly because of the respondent's arrest on multiple charges of attempted murder of the appellant, fraud, money laundering, and contravention of the Exchange Control Regulations.

Upon her arrest, the respondent was detained in custody for a period spanning three (3) weeks, from 14 December 2019 to 6 January 2020. She went to prison without making proper provision for the custody of their three minor children, possession, and administration of her personal property and effects.

At the time of her arrest and detention, the appellant had voluntarily moved out of the matrimonial home. He avers that he returned to the matrimonial home to fill in the void occasioned by the respondent's arrest and detention in custody. In the absence of the respondent, he then assumed de facto custody of their three minor children and possession of their matrimonial property including the fleet of cars, Orchid Gardens, personal effects, and other paraphernalia.

His conduct in this respect was perfectly lawful and undisputed at the material time.

On 6 January 2020, the court a quo granted the respondent bail and ordered her to reside at the matrimonial home at her specific instance and request. Upon her release from prison, on bail, she returned to the matrimonial home to assume residence as ordered by the court a quo. State security guards stationed at the home denied her access to the matrimonial home.

The same scenario played out when she sought access to Orchid Gardens which was also guarded by State security guards. They also denied her access to the premises.

She further alleges that she claimed custody of her three minor children without success, a fact denied by the appellant.

THE RESPONDENT'S CLAIM A QUO

Under the circumstances, the respondent submits that she had no option but to approach the appropriate court, on an urgent basis, for relief. To that end, she lodged an urgent application in the court a quo for a 'provisional spoliation order' directing the appellant to grant her the following interim relief on a prima facie basis pending the return date for a final order:

1. Access to the matrimonial home.

2. Access to and use of her personal motor vehicles.

3. Access to her clothing, personal goods and effects.

4. Return of her safes containing her personal property.

5. An order directing the appellant to return the three (3) minor children of the marriage to the respondent.

6. An order compelling the appellant to return to the respondent all furniture, goods and effects removed from the business premises at Orchid Gardens.

7. An order denying the appellant access to the court until he has purged his dirty hands.

8. An order directing the Sheriff, with the assistance of the police, to execute the court a quo's order forthwith.

In the final order, the respondent sought the following relief:

9. That the appellant be interdicted and restrained from interfering with the respondent's use and enjoyment of the matrimonial home and her business premises at Orchid Gardens pending the conclusion of the matrimonial proceedings under case number HC9837/19.

10. That the appellant be restrained from removing the three (3) minor children of the marriage from the applicant's custody.

11. That the appellant be ordered to pay costs at the punitive scale as between legal practitioner and client scale.

Though the terms of the provisional and final orders sought are somewhat worded differently, the import and effect of the two orders are materially the same. This is because they both seek to wrestle custody of the three minor children and possession of the disputed property from the appellant and confer them on the respondent.

Basically, the respondent's complaint was that the appellant had abused his office as Vice President of Zimbabwe using soldiers to despoil her of access to the matrimonial home, her children, and property.

THE APPELLANT'S DEFENCE A QUO

The appellant objected to the respondent's claim that the matter was urgent.

He further questioned the assumption of jurisdiction by the court a quo as usurping the function of the Children's Court which is specifically conferred with the jurisdiction in terms of section 5 of the Guardianship of Minors Act [Chapter 5:08] to determine the question of custody of minor children when spouses begin to live apart.

He vehemently denied abusing his office as alleged or at all. He denied that the respondent had custody of the minor children and possession of the disputed property when he assumed de facto custody of the children and possession of the disputed property while she was in prison.

The appellant denied having given the guards at the matrimonial home, and Orchid Gardens, any orders to deny the respondent access to the premises.

His submission, to the effect that he had no control over the guards, was not rebutted.

Placing reliance on the South African case of Fraser v Children's Court, Pretoria North 1997 (2) SA 261, the appellant argued that it was wrong to discriminate against fathers in matters pertaining to the custody of their minor children.

It was his further submission that throughout the whole episode, he acted lawfully as a diligent pater familias. At paragraph 3(c) of his opposing affidavit, in the court a quo, the appellant makes the valid point that, as a responsible parent, he was obliged and duty bound to move into his home and take care of his minor children and family property when the respondent was detained in prison. He averred, further, that, as the father of the children, he was best suited to have their custody because the respondent was a drug addict and a psychiatric patient.

THE COURT A QUO'S FINDINGS AND DETERMINATION

On the basis of the above summation of evidence and arguments, the court a quo found that:

(a)...,. The matter was urgent because the respondent was arbitrarily evicted from the matrimonial home without a court order. It also found that spoliation matters are, by nature, urgent;...,.

Whether the court a quo correctly determined that the matter was urgent

As previously stated, the court a quo found that the application was urgent on the basis that... spoliation matters are generally treated as urgent....,.

It is common knowledge that minor children are a vulnerable class of persons under the special care of the High Court as their upper guardian. The same applies to spoliation, a remedy designed to avert self-help in a democratic civilized society. The remedy forbids the law of the jungle where survival of the fittest reigns supreme. Thus, the courts will quickly come to the aide of the vulnerable and the weak to restore custody and possession where one is unlawfully deprived of the same by the strong and valiant.

In this case, the respondent approached the court a quo complaining that she had been unlawfully deprived of the custody of her children and possession of her property by her powerful husband abusing State power.

That being the case, the court a quo cannot be faulted for granting her application for an urgent hearing. Doing otherwise would have amounted to abdicating its duty as the..., protector of the weak and vulnerable. In any case, an application for spoliation is generally treated as urgent because of the need to stop unlawful conduct pending the determination of the parties' competing rights....,.

The court therefore finds no merit in the appellant's complaint that the matter was improperly heard as an urgent matter.

HH634-15 : TETRAD HOLDINGS (PVT) LTD and OTHERS vs NATIONAL SOCIAL SECURITY and OTHERS
Ruled By: BHUNU J

On 28 May 2014 the first respondent, National Social Security Authority, obtained default judgment against the 11 applicants. The default judgment reads:

“WHEREUPON after reading documents filed of record and hearing counsel;

IT IS ORDERED That:

1. The 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, and 11th defendant(s) be and are hereby ordered, jointly and in solidium, the one paying and the other to be absolved, to pay the sum of US$4,988,564=29 (four million nine hundred and eighty-thousand, five hundred and sixty four United States Dollars and twenty nine cents) together with interest thereon at the rate of 7% per annum with effect from the 11th September 2013 up to date of payment in full and such interest being capitalised monthly.

2. The immovable properties situate in the district of Salisbury, which properties are described in the schedule hereto, be and are hereby declared specially executable.

2.1 Industrial plot 3 Salisbury Township of the Agricultural and Horticultural Society Showground of Salisbury Township Lands registered in the name of the 2nd defendant under Deed of Transfer (Reg. No. 11942/01);

2.2 Stand 11 Newlands, registered in the name of the 3rd defendant under Deed of Transfer (Reg. No. 7160/95) dated the 23rd day of October 1997.

2.3 An undivided 12.5 share being Share No.7 in lot 7B Rietfontein registered in the name of the 4th defendant under Deed of Transfer (Reg. No.1461/08) dated 8th day of April 2008.

2.4 An undivided 12.5 share being Share No.8 in lot 1 of lot 7B Reinfontein registered in the name of the 5th defendant under Deed of Transfer (Reg. No.1462/08) dated the 21st day of April 2008.

2.5 An undivided 12.5 share being Share No.9 in lot 1 of lot 7B Reinfontein registered in the name of the sixth defendant under Deed of Transfer (Reg. No.1484/08) dated the 9th day of April 2008.

2.6 An undivided 12.5 share being Share No.10 in lot 1 of lot 7B Reinfontein registered in the name of the 7th defendant under Deed of Transfer (Reg. No.1482/08) dated the 16th day of April 2008.

2.7 An undivided 12.5 share being Share No.11 in lot 7B Reinfontein registered in the name of the 8th defendant under Deed of Transfer (Reg. No.1461/08) dated the 16th day of April 2008.

2.8 An undivided 12.5 share being Share No.12 in lot 1 of lot 7B Reinfontein registered in the name of the 9th defendant under Deed of Transfer (Reg. No.1483/08) dated the 9th day of April 2008.

2.9 An undivided 12.5 share being Share No.14 in lot 1 of lot 7B Reinfontein registered in the name of the 10th defendant under Deed of Transfer (Reg. No.1460/08) dated the 24th day of April 2008.

2.10 An undivided 12.5 share being Share No.15 in lot 1 of lot 7B Reinfontein registered in the name of the 11th defendant under Deed of Transfer (Reg. No.1477/08) dated the 9th day of April 2008.

3. The 1st to the 11th defendant(s) be and are hereby ordered jointly, severally, and in solidium, the one paying the others to be absolved, to pay costs on legal practitioner and client scale.”

Following the granting of the above default order, the second respondent sold the said properties in execution at various public auctions in March 2015 according to law. The relevant respondents were duly declared the highest bidders of the respective properties on offer for which they sought transfer.

Aggrieved by the prices obtained for the properties, the applicant challenged confirmation of the sales which challenges were dismissed by the second respondent on 11 May 2015. With full knowledge of the dismissals, the applicants only approached the court on 5 June 2015, more than 20 days later, on an urgent basis challenging transfer of the properties in question to the respective highest bidders.

The applicants seek an urgent order interdicting transfer pending its challenge to the sales in execution in terms of Rule 359 arguing that the properties were sold for unreasonably low prices.

The applicant started by inviting the court for an inspection in loco to enable it to view the disputed properties and make its own assessment. They also endeavoured to argue that there was no finality to litigation as they were still vigorously pursuing rescission of the default judgment in question.

The respondents countered by quickly raising the point in limine that the matter was not urgent.

It is common cause that the applicant delayed in bringing this application by more than 20 days with full knowledge that its properties had been sold for that much. The applicant openly admitted the delay but sought to shift the blame to its erstwhile legal practitioner, Mr Mlotshwa, whom it accused of incompetence and delaying the proceedings by clinging onto the case despite being asked to renounce agency.

The applicant's strategy, in this respect, reminds me of two village pranks in our area who used to start a fight between themselves whenever food and drink were running low only to regroup, sit down, and enjoy the left overs after everyone else had fled in panic.

The change of lawyers appears to be a trick to explain the inexplicable inordinate delay in bringing this application.

I take that view because the applicants have filed no affidavit or explanation from Mr Mlotshwa explaining his alleged misconduct. I would therefore hesitate to ascribe any wrong doing to Mr Mlotshwa without hearing him.

A perusal of the papers shows that the applicants current lawyers are not saying anything different from what Mr Mlotshwa has always been saying. In any case, Mr Mlotshwa was the applicants' agent and it is an established principle of the law of agency that he who does a thing through another does it himself. Thus, Mr Mlotshwa's conduct became theirs and his principals cannot, without more, easily discard him and seek to distance themselves from his actions. This is for the simple reason that in the ordinary run of things a principal is bound by the conduct of his agent.

The onus is on the principal who seeks to resile from the conduct of his agent to show why he might not be bound by his agent's conduct.

In this case, the applicants have fallen far too short of proving that onus.

Unfortunately, the conclusion that the admitted inordinate delay in this case was self-made is unavoidable.

Although the applicants have told me that they have filed an application for rescission of judgment they have omitted to dwell on their prospects of success and reason for default. That omission has a bearing on the urgency of the matter because the respondents already have a lawful judgment in their favour and the courts generally lean in favour of the urgent and timely enforcement of its judgments to the exclusion of any unwarranted delay or interference.

The headnote in the case of Chibanda v King 1983 (1) ZLR 116 clearly puts the point home thus:

“It must also be borne in mind that if the court were to extent mercy it will be doing it at the expense of a litigant who has already established, in court, his right and title to what is being claimed. Such mercy should rather be sought in the action itself, before judgment is given, not afterwards.”

For the foregoing reasons, in the absence of any justifiable excuse, I cannot countenance any further delay in giving effect to a lawful judgment of this court.

I accordingly hold that the matter before me is not urgent.

HH177-17 : GILBERT JONGA vs NYASHA CHABATA
Ruled By: CHATUKUTA J

The applicant seeks an interdict restraining the respondent from interfering with his farming operations at Subdivision 3 of Farm 45, Glendale (the farm).

This is not the first time that the parties are before this court. The parties are fighting over who has the right to occupy the farm which belongs to the State. On 6 December 2016, the respondent successfully approached this court in case number HC12380/16, on an urgent basis, seeking spoliatory relief. On 9 December 2016, MATANDA-MOYO J ruled in favour of the respondent in case number HC12380/16 and issued the following order:

“TERMS OF FINAL ORDER SOUGHT

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

1. The interim order be confirmed.

2. It be and is hereby declared that applicant, his representatives, employees and invitees are entitled to remain in peaceful and undisturbed possession, occupation and use of subdivision 3 of Farm 45 of Glendale in Mazowe District of Mashonaland Central measuring 36.21 hectares.

3. The respondent pays the costs of this (application) on the higher scale of legal practitioner and client.

TERMS OF THE INTERIM ORDER GRANTED

Pending the finalisation of this matter, the applicant is granted the following interim relief –

1. That the respondent restore to the applicant possession of subdivision 3 of Farm 45 Glendale in Mazowe District of Mashonaland Central measuring 36.21 hectares.

2. The Deputy Sheriff be and is hereby authorised and empowered to ensure that such restoration is done and that the applicant remain in peaceful and (undisturbed) occupation of the above property.

3. The respondent and all those claiming through him vacate the said property forthwith of which the Deputy Sheriff is authorised to evict same from the property.

4. That the respondent pays costs of suit.”

On 13 December 2016 the applicant noted an appeal against the judgment of MATANDA-MOYO J.

On 22 December 2016, the respondent destroyed part of the applicant's crop resulting in the present application.

The background to this application was articulated in case number HC12380/16 in which the court found that the respondent is a holder of an offer letter for a portion of the farm measuring 36.21 hectares. The offer letter was issued on 6 November 2015. The applicant produced documents proving that he was in occupation of the Remaining Extent of Farm 45 (Truro) Glendale and Plots 1, 4, and 5 of Dunmaglas Farm in Mazoe. The court found that the portions allocated to the two parties are different.

The applicant contended, in HC12380/16, and still contends in the present application, that the portions are one and the same and he has a 99 year lease over the entire farm. He has been in occupation of the entire portions since 2002 - well before the respondent was issued with the offer letter on 6 November 2015.

Believing that the court in case number HC12380/16 erred in holding that the portions are different and that he was not in possession of the farm, the applicant filed an appeal against that decision in SC771/16.

The applicant avers, in the present case, that, at the beginning of 3 October 2016, he entered into an agreement to grow 100 hectares of maize with the Government under the Special Programme on Maize Production for Import Substitution (popularly known as “the Command Programme”). He was given inputs under the Programme, and, during the first half of November 2016, and before the respondent had filed her application in case number HC12380/16, he planted his maize. On 13 December 2016 he filed the appeal against the decision. On 21 December 2016, the respondent returned to the farm and destroyed 7 hectares of the maize crop. Fearing that the respondent could proceed to destroy further hectarage, the applicant has approached this court on a certificate of urgency for an interdict.

At the commencement of the hearing, the respondent contended that the application was not urgent. The issue was abandoned during argument.

HH240-18 : KENNETH SCHOFIELD vs FBC BANK LIMITED and THE SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O.
Ruled By: CHIKOWERO J

On 27 April 2018 the applicant filed an urgent chamber application for suspension of a sale in execution of a dwelling in terms of Rule 348A(5b) of the High Court Rules, 1971.In line with Rule 348A(6) l treated this matter as urgent. I caused it to be set down for ...

HH318-15 : DAVID JACK and OTHERS vs LLOYD MUSHIPE (in his capacity as joint executor of Estate Late Keresia Jack) and OTHERS
Ruled By: CHITAKUNYE J

The applicants (David Jack, Theresia Jack and Theresa Jack) and the first to fourth respondents (Lloyd Mushipe, Simbarashe Mushipe, Jesca Mushipe and Keresia Mushipe) are children of the late Keresia Jack who died intestate on 15 March 1997. The late Keresia Jack's estate comprises an immovable property, namely, House ...

HH417-18 : STUTTAFORDS REMOVALS (PVT) LTD vs ZIMBABWE ASSET MANAGEMENT CORPORATION (PVT) LTD and YCOB INVESTMENTS (PVT) LTD
Ruled By: CHIKOWERO J

I have no doubt at all that this application is not urgent.

Upon receipt of the application, on 3 July 2018, I perused same and instructed that it be set down for hearing on 5 July 2018 at 9:00am.

The second respondent was not cited. It was not a party to the proceedings at that stage.

This notwithstanding, around 2:30pm, on 3 July 2018, I received copy of letter of the same date wherein the second respondent's legal practitioners expressed, among other things, Ycob Investments (Pvt) Ltd's real and substantial interest in the matter. The letter was addressed to the applicant's legal practitioners and copied to the Registrar. The latter placed the correspondence before me.

Come 5 July 2018, at 9:00am, legal practitioners for all the parties herein appeared before me.

Upon the second respondent's counsel stating that an application for joinder would be filed, I postponed the hearing to the next day to enable such an application to be instituted.

This resulted in the second respondent's joinder, by consent, when the parties and their legal practitioners appeared on 6 July 2018 for the hearing.

The first respondent had filed opposing papers. The second respondent had not, but was ready to make oral submissions.

The first respondent raised a single point in limine. It submitted that the application was not urgent.

I agree that this is a classic case of self-created urgency.

That is not the type of urgency contemplated by the Rules. I refer to a few only of the decided cases on what urgency is: Kuvarega v Registrar General and Another 1998 (1) ZLR 188 (H) and Documents Support Centre (Pvt) Ltd v Mapuvire 2006 (1) ZLR 2323 (H).

In sum, a matter is urgent if, when the need to act arises, the matter cannot wait.

In this matter, the applicant waited from 16 March 2017 to 2 July 2018.

On the former date, it sold its rights, title and interest in Stand 1578 Ardbennie Township measuring 2,0371 hectares held under Deed of Transfer number 5348/2011 to the second respondent. On the latter date it filed the present application.

The applicant seeks an interim order compelling the first respondent to furnish the former with its requirements for cancellation of mortgage bonds registered in its favour in respect of the property concerned and, against payment of the value of the loan, delivery of the title deed.

The first respondent had taken over the applicant's non-performing loan from NMB Bank. It then proceeded to register mortgage bonds against the applicant's immovable property.

The second respondent had seven days, from 16 March 2017, to pay the balance of the purchase price, the transfer fees, and agent's commission. Part of the purchase price was payable upon signing the agreement of sale on 16 March 2017.

Between then and filing of the application there was a lengthy period of inaction by the applicant. Same was punctuated, among other events, by the applicant waking up from its slumber to cancel the agreement of sale (which was contested), entering into another agreement of sale in respect of rights, title and interest in the same property with Nyaradzo Life Assurance Company (Private) Limited (“Nyaradzo”), on 15 June 2018, and the applicant's letter of 27 June 2018 requesting the first respondent to state its bond cancellation requirements.

The urgency is premised on the continued accrual of interest on the loan for as long as the debt is not cleared. It also is based on the fear that Nyaradzo Life Assurance Company (Private) Limited may resile from the agreement of sale if the bond cancellation requirements are not availed urgently to facilitate transfer to this second purchaser.

But, interest has always been running ever since the first respondent took over the applicant's debt on a date not disclosed in the application.

Equally, interest has always been accruing since 16 March 2017 when the agreement of sale between the applicant and the second respondent was entered into.

The matter cannot become urgent now just because the applicant has entered into an agreement of sale with Nyaradzo Life Assurance Company (Private) Limited and is desperate to effect transfer of title to Nyaradzo and not to the second respondent.

I totally agree with both respondents that this application is not urgent but is a clear abuse of court process. It is, I am compelled to remark, a mischievous application.

I therefore uphold the point in limine. The application is clearly not urgent....,.

The second respondent contended that I should either dismiss the urgent chamber application or decline to hear it on the basis of urgency by reason of material non-disclosure.

In this application, the material non-disclosure relates to the aspect of urgency as well as to the merits of the application.

It is sufficient that I point out that the applicant did not disclose that the second respondent had telephonically communicated, through its legal practitioners, and on 29 June 2018, that it regarded the cancellation of the agreement of sale as invalid and would be filing summons for a declaration of nullity of that cancellation.

That dispute was material.

By not disclosing the existence of the dispute in the founding affidavit, and proceeding to avoid citing the second respondent, the applicant was clearly not being candid with the court; Graspeak Investment (Pvt) Ltd v Delta Ops (Pvt) Ltd and Another 2001 (2) ZLR; Nehanda Housing Co-operative Society and Ors v Simba Moyo and Others HH4169/15; Centra (Pvt) Ltd v Pralene Moyas and Anor HH57-12.

Its application had four annexures relating to the second respondent. They ran from pages 11 to 25 of the application. The non-disclosure was designed to give the court the impression that the second respondent consented to the cancellation of the agreement of sale. It gave the impression that the second respondent was not an interested party.

In so far as the non-disclosure related to urgency, the untrue picture was painted that the first respondent's refusal to avail its cancellation of the mortgage bonds requirements qualified the matter as urgent because it exposed the applicant to continued accrual of interest. No mention was made of the dispute between the second respondent and the applicant over cancellation of the agreement of sale as that would have demonstrated that this application was not only not urgent but calculated to present the second respondent with the fact of transfer before resolution of the dispute between the applicant and the second respondent.

In all the circumstances, therefore, I find that the application is not urgent and accordingly order as follows:

1. The application is removed from the roll of urgent matters.

2. The applicant shall pay the first and second respondent's costs of this application on the legal practitioner and client scale.

HH198-10 : BIRCH WILLIAMS vs MARIA KATSANDE and DELITTE PRODUCTS (PRIVATE) LIMITED
Ruled By: MAWADZE J

The applicant seeks a provisional order in the following terms:-“Terms of the provisional order granted1. Respondents be and are hereby ordered to forthwith hand over a property listed in Annexture 'B' to the founding affidavit to the applicant upon service of this order.1(a) In the event of the respondents refusing ...

The applicant seeks a provisional order in the following terms:-

“Terms of the provisional order granted

1. Respondents be and are hereby ordered to forthwith hand over a property listed in Annexture 'B' to the founding affidavit to the applicant upon service of this order.

1(a) In the event of the respondents refusing or forbidding to comply with the terms of para 1 above, the Deputy Sheriff be and is hereby authorized to retrieve the said property from the respondents' property and deliver it to the applicant.

2. Respondents are required to account for one applicant's property sold prior to 14 of July 2010 and to handover all proceeds of such sales to the applicant within 48 hours of service of this order.

3. Leave is given to the applicant's attorney to serve a copy of this order.”

The terms of the final order sought are constructed as follows:-

“Terms of the final order sought

1. It is hereby declared that the property listed in annexture 'B' attached to the founding affidavit is the exclusive property of the applicant.

2. Respondents be and are hereby ordered to pay costs of suit on legal practitioner client scale.”

The brief facts of the matter can be briefly stated as follows:-

The applicant conducts the business of interior and exterior decorations and sells diversified specifically-designed household goods and effects. On or about October 2009, the applicant entered into negotiations with the first respondent who was allegedly representing herself and the second respondent. It was agreed that that the first respondent, through the second respondent, would act as an agent of the applicant.

The nature of the agency relationship was that the applicant would supply the respondents with goods for sale which would be sold on the applicant's behalf by the respondents who would, in turn, receive 20% commission on any goods sold.

On 14 July 2010, the applicant wrote to the respondents cancelling the agency agreement alleging improper conduct and breach of the material term of the agreement between the parties by the respondents.

The second respondent, by way of letter on 15 July 2010, confirmed the cancellation of the agency agreement but sought to remain in possession of the property listed in Annexture 'B' until a certain date and that the respondents be paid certain amounts due arising from the applicant's cancellation of the agreement.

The applicant persisted in demanding to be handed over the property in Annexture 'B' valued at US$116,627=50 but the respondents refused indicating that certain conditions should be met.

When the applicant visited the respondent's shop, on 13 August, ostensibly for a stock take, the applicant was denied access into the shop. The applicant alleges that some of the property had been removed from the shop and property valued at about US$100,000 was no longer in the shop.

The applicant's fear was that the respondents were disposing of the applicant's property hence causing possible irreparable loss to the applicant.

The applicant then approached this court, on a certificate of urgency, praying for the interim relief already alluded to.

This application is opposed.

Counsel for the respondents raised three points in limine, two of which he argued are capable of resolving the matter without even going into the merits of the application. The points in limine are;

(i)...,.

(ii)...,.

(iii) Thirdly, that the matter is not urgent....,.

Urgency

The question of what constitutes urgency was aptly dealt within the case of Kuvarega v Registrar General & Anor 1998 (1) ZLR 188…, wherein the learned judge has this to say:-

“There is an allied problem of practitioners who are in the habit of certifying that a case is urgent when it is not one of urgency…,.

What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent, if, at the time the need to act arrives, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the Rules. It necessarily follows that the certificate of urgency or supporting affidavit must always contain an explanation of the non-timeous action if there has been a delay.”

See also Madzivanzira & Ors v Dexprint Investment (Private) Limited and Anor HH145-02.

In casu, the question of urgency is closely linked to the exact nature of the dispute between the parties.

I am unable to agree with counsel for the respondents that the dispute between the parties arose on 14 July 2010 when the applicant wrote the letter terminating the Agency Agreement. It is important in this regard to deal with the sequence and chronology of events to appreciate what ultimately was the dispute between the parties leading to this application.

In the letter dated 14 July 2010 the applicant did not seek the immediate return of the goods after terminating the Agency Agreement but stated as follows:-

“We again ask you to set a time in the next few days to enable us to collect our property.”

In the letter dated 15 July 2010, the second respondent confirmed the cancellation of the agency relationship but sought to impose certain conditions which are summed up as follows:-

“In the event that you want to immediately collect all the items, please be advised that payment of anticipated commission is required first.”

In fact, in the letter dated 15 July 2010, the second respondent indicated that despite the cancellation of the agency relationship, the applicant's goods will remain in the second respondent's shop and would continue to be sold as usual as per the cancelled Agency Agreement and that the second respondent would give monthly reports and make payments weekly to the applicant on the goods sold.

The second respondent's argument was that the second respondent had already incurred costs on the goods in the shop and would not release those goods immediately.

In my view, it is the contradictory nature of the second respondent's letter which initially caused problems between the parties. The second respondent, while confirming cancellation of the Agency Agreement, still insisted that the status quo ante should remain.

The subsequent correspondence between the parties is instructive.

After the second respondent's letter, dated 15 July 2010, the applicant then wrote to the second respondent, on 2 August 2010, indicating that the applicant would collect the goods on 3 August 2010 at 1500hrs irrespective of the second respondent's concerns raised in this letter dated 15 July 2010.

However, when the applicant visited the second respondent's shop, on 3 August 2010, the second respondent locked the shop and refused to handover the property.

In a letter dated 5 August 2010, the applicant protested to the second respondent about events of 3 August 2010 and proposed to collect the goods on 16 August 2010. However, before that date, and on 6 August 2010, the second respondent wrote to the applicant reiterating the second respondent's unwillingness to surrender the goods as proposed on 16 August but to surrender the goods on 31 August 2010.

The applicant then capitulated, and, in a letter dated 11 August 2010, agreed to collect the goods on 31 August 2010 but suggested that the applicant would visit the second respondent's shop on Friday 13 August 2010 for purposes of stock take and accounting pending the collection of the goods on 31 August 2010. However, the second respondent was not agreeable to this and wrote, in a letter dated 12 August 2010, but only delivered to the applicant on 16 August 2010 at 1334hrs, that the second respondent's counsel was not available on Friday 13 August and will only contact the applicant after Monday 16 August to respond to the applicant's request for a stock-take.

Needless to say, the applicant proceeded to the second respondent's shop on Friday 13 August 2010 (applicant had not received the second respondent's letter objecting to this). What then transpired on 13 August 2010 is captured in paragraph 19 of the applicant's founding affidavit.

In brief, the applicant was denied access to the shop, no cash was handed over to the applicant, and the applicant realised that some of the goods had been removed from the display and placed in a storeroom, tables were dumped carelessly outside, and some goods, valued at about US$100,000, were removed from the shop and the second respondent was unwilling to disclose the whereabouts of those goods.

In my view, the sequence of events clearly shows that, as at 13 August 2010, both parties were agreeable that goods would be collected on 31 August 2010. The purpose of the proposed visit on 13 August 2010 was not to collect the goods but to carry out a stock take pending the surrender of the goods on 31 August 2010.

What then prompted this application is captured in the applicant's founding affidavit, paragraph 20:-

“On 13 August 2010 it became clear to the applicant that he stands to suffer irreparable loss because his property was no longer accessible to him and he has no knowledge of its whereabouts and no longer trusted the promise to handover property on 31 August 2010.”

It is pertinent to note that 13 August 2010 was a Friday hence after only one working day, and on 17 August 2010, the applicant filed this application.

In my view, one cannot seriously argue that a delay of one day constitutes inordinate delay, and, therefore, would qualify this matter as not being urgent. To that extent, therefore, the applicant acted diligently and timeously in a bid to address the problem which arose on 13 August 2010.

In that context, therefore, one may be inclined to rule that the matter is indeed urgent.

The problem in making such a finding arises from the relief sought by the applicant.

The question to be asked first is: what was the dispute between the parties on 13 August 2010 which prompted this application?

It was certainly not in relation to ownership of the goods. The ownership of the property was never in issue at any stage.

This then begs the question why in the final order the applicant seeks a declaration that this property in Annexture 'B' belongs to the applicant.

That is a non-issue.

It is disingenuous for counsel for the applicant to argue that the applicant merely seeks a declarator in the final order when in fact what is before this court is not an application for a declarator but a provisional order subject to confirmation on the return date.

The other aspect to note is that as at 13 August 2010 the surrender of the goods in Annexture 'B' to the applicant, by the respondent, was not an issue. The parties had agreed that this would be done on 31 August 2010. There could not therefore have been an urgency in the surrender of the goods on 13 August 2010 when the parties had already agreed that this would happen on 31 August 2010.

This would mean that in the context of the relief sought by the applicant, which is the surrender of the goods, there is no urgency at all. It would be self-created urgency as the parties had agreed to 31 August as the date to collect the goods.

On this score alone, this court is of the view that the matter is not urgent.

View Appeal
HH480-21 : EZEKIEL CHINOINGIRA vs BALWEARE HOLDINGS (PVT) LTD and SABRE SERVICES (PVT) LTD
Ruled By: MUCHAWA J

This is an urgent chamber application in which the interim relief sought is that the first respondent be barred and interdicted from evicting the applicant from a certain farm known as “the remainder of Westhey, Sabonabon Estate, Kadoma arbitrarily without a court order.As a final order, it is prayed that ...

HH974-15 : GUGULETHU HURASHA vs CENTRAL AFRICAN BUILDING SOCIETY and FIRST CAPITAL PLUS and ITAYI MUNYEZA and SHERIFF OF ZIMBABWE and MASTER OF THE HIGH COURT
Ruled By: NDEWERE J

The applicant and the third respondent divorced on 16 January 2014 in Case No. HC7328/13.

In terms of a consent paper concluded on 14 November 2013, which became part of the divorce order of 16 January 2014, the applicant and the third respondent agreed to give their matrimonial home, Stand No.17074 Giraffe Crescent, Borrowdale West, Harare to their two minor children in equal shares.

Paragraph E.5 of the Consent Paper stated as follows:

“E. Division of Matrimonial Property

5. Stand No.17074 Giraffe Crescent, Borrowdale West, Harare shall be awarded to the two minor children in equal shares. The property shall be transferred and registered in the said minor children's names within one year of the order. The parties shall sign all relevant papers to effect transfer to the minor children, failing which, the Sheriff Harare shall sign all such papers as if it were the plaintiff and defendant. The plaintiff shall pay the cost of the transfer. In addition, the defendant shall exercise the rights (usufruct) of use and occupation until she dies or remarries whichever occurs sooner.”

Stand No.17074 Giraffe Crescent was not transferred and registered in the children's names within one year, contrary to what was ordered by the court.

The court was not told of any steps which were taken by the applicant and the third respondent towards complying with the Divorce Order.

It also appears, that, the Sheriff, who was supposed to sign all the papers, for purposes of transfer and registration, if the applicant and the third respondent failed to do so, was never approached.

The property thus remained in the third respondent's name, in contravention of the divorce order.

It is common cause, that, in August, 2015, the above property was attached by the first respondent in order to satisfy a debt by the second respondent where the third respondent had signed as surety.

The applicant says she became aware of the attachment on 21 August 2015. On 2 September 2015 the applicant filed an urgent chamber application for stay of execution of the writ of attachment.

There was a delay of more than 10 days from the date of the attachment to the date of filing of the urgent application. That delay is not explained, contrary to case authorities which indicate that any delay in approaching the court urgently should be explained since an applicant in an urgent application should herself treat the matter urgently.

The first respondent opposed the urgent application.

It said the applicant had no locus standi; that she should have instituted inter pleader proceedings; and that the application is not urgent....,.

As regards urgency, I have already criticised the applicant for not explaining her delay in approaching the court after the attachment.

In addition to that, the first respondent argued, that, the applicant was aware that the first respondent was searching for assets to attach for the same debt as far back as December 2014 because the first respondent once attached her movables but released them after she proved that the goods were hers and not the second respondent's.

The first respondent submitted, that, her cry now was a matter of self-created urgency.

There is merit in the first respondent's argument on the lack of urgency of the application. However, in view of the minor children who have an interest in this matter, I have decided to exercise my discretion in favour of the applicant and treat the application as urgent.

HB41-15 : CHITRINS GARAGE (PVT) LTD (In Provisional Liquidation) vs CHYCRY TRADING (PVT) LTD and DUMISANI MUTORERA
Ruled By: MOYO J

This is an urgent application wherein the applicant seeks an order that the Deputy Sheriff be authorized to enter the premises leased by the respondents and attach and seize all movable assets therein including motor vehicles.The applicant alleges, that, the respondents owe a total sum of $52,950 in rental arrears ...

The applicant alleges, that, the respondents owe a total sum of $52,950 in rental arrears since May 2013. The applicant alleges, that, the lease agreement expires on 1 February 2015, and, therefore, they are apprehensive that the respondents will flee without making good the arrears.

It is important to note, at this stage, that, this application was in fact heard after 1 February 2015.

The applicant has instituted legal proceedings for the recovery of the rentals in HC360/13, a matter which is still pending before this Honourable court.

The applicant alleges, that, it was prompted into action by the respondent's plea filed of record in HC360/13. The applicant further alleges, that, the plea was filed and served on 2 December 2014, prompting it to file this application on 19 December 2014. It further alleges that the plea is frivolous and vexatious.

Paragraph 9 of the founding affidavit states thus:

“On the 25th of November 2014, respondents were called upon to file a plea to the claim on the merits and such plea was filed on 2 December 2014. It is patently clear from the contents of the plea, that, respondents have no bona fide defence to the applicant's claim on the merits and have only raised frivolous and vexatious defences to the claim. I propose to demonstrate this by reference to material aspects of the plea.”

In paragraph 14 of the applicant's heads of argument, it is stated thus:

“In casu, the respondents filed their plea in the main action on the 2nd December 2014. The plea obviously caused alarm bells to ring due to the nature of the frivolous defences raised.”

The applicant's heads of argument go further and correctly state, in paragraph 12, that, in the case of Kuvarega v Registrar General and Others 1998 (1) ZLR 188, it was held, that, the supporting affidavit should always contain an explanation for the non-timeous action if there is a delay.

In paragraph 13 thereof, the applicant proceeds to submit that the non-timeous action is not always fatal to an application and that the court has a discretion to hear an application on the merits if there is an explanation for the delay.

The applicant further submits, in paragraph 15 of the heads of argument, that, technically, the lease agreement expired on 21 November 2014, that is when the applicant's provisional liquidator was appointed.

The respondents, on the other side, raised points in limine with regard to this application....,.

The respondents also contend that the case is not urgent....,.

The application would still fail on the basis of lack of urgency.

This is an application premised on the exercise of the landlords hypothec where a tenant has allegedly fallen into arrears.

The papers show, that, as at 2013, two years ago, the tenant had fallen into arrears; the lessor was entitled, as at that juncture, to seek to exercise the landlord's hypothec, as clearly, the law of Landlord and Tenant provides that the landlord's hypothec is exercisable anytime from the occasion of the tenant falling into arrears.

The tenant allegedly fell into arrears dating back to 2013 - no action was taken to exercise the landlord's rights except that a civil suit for the arrears was initiated.

It is at that juncture that the process of exercising the landlord's lien, on the movables of the tenant, should have been initiated.

Again, the applicant further states, that, the application was prompted by the imminent expiry of the lease; this, in my view, does not formulate any basis for urgency at all as the applicant has always known that come February 2015, the lease expires - the applicant had all the time, prior to the expiry of the lease, to exercise its rights and seek protection in terms of the law.

We are also not told why nothing was done to protect the landlord's interests for all this time.

There is, in my view, no reasonable explanation for the delay to act.

Kuvarega v Registrar General and Others 1998 (1) ZLR 188 states clearly, that, there must be a reasonable explanation for the inaction. None has been given in this case.

I accordingly uphold the points in limine and dismiss the application with costs.

HH91-09 : SANANGURAI GWARADA vs KEVIN JOHNSON and MR WILLIAMSON and BERNARD CHOTO
Ruled By: GOWORA J

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

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

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

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

The facts relevant to this dispute are as follows:

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

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

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

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

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

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

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

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

Counsel for the respondents did not object to its amendment.

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

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

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

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

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

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

I turn next to the issue of urgency...,.

It was contended, on behalf of the respondents, that, the applicant's papers did not exhibit urgency.

The leading case within this jurisdiction, in relation to urgency, is Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H), a judgment by CHATIKOBO J. The learned judge had the following to state…,:

“What constitutes urgency is not only the imminent arrival of the day of reckoning, a matter is urgent, if, at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated rules. It necessarily follows, that, the certificate of urgency or supporting affidavit must always contain an explanation of the non-timeous action if there has been any delay.”

When an applicant files an urgent application, the Rules require, where such an applicant is legally represented, that a certificate of urgency be filed setting out why, in the opinion of the legal practitioner, the matter should be treated as urgent and not await set down in normal course.

The certificate of urgency filed on behalf of the applicant suggested an infringement on the part of the respondents and an interference with his occupation of the piece of land that he was in occupation of. There was also a statement that the applicant was being denied access to a borehole.

On the face of it, therefore, the matter appeared to be urgent and an impression was created that the applicant should be allowed, through this court, unhindered access to the borehole and the homestead.

It is not stated, in the certificate, when precisely the alleged interference commenced.

It is only when the respondents papers are examined that it becomes clear that there is no urgency in the application.

The applicant has been on the farm since 2008. He has not given a precise date, but, going by the averment that he moved onto the farm in order to comply with the requirements on the offer letter, that obliged him to take occupation within 30 days of the acceptance of the offer, it is safe to assume that he had moved onto the farm soon after the month of April 2008 when the farm was offered to him.

He alleges, that, soon after he moved onto the farm, the respondents started interfering with his activities in that they began to construct permanent structures on the farm, guarded the borehole (sic), refused to surrender the farmhouse, and occupied the pigsty that is located on his portion of the farm.

Since this application was launched in June 2009, the applicant had waited a full year before approaching this court on an urgent basis for relief over happenings that had taken place on the subdivision.

Given that the situation that the applicant seeks this court to reverse has been in existence for the better part of a year, it is mischievous in the extreme for a legal practitioner to issue a certificate that a matter is urgent in circumstances such as the above.

A matter does not assume urgency because a litigant has plans, the fulfillment of which require an immediate solution.

Urgency, in my view, arises when an event occurs which requires contemporaneous resolution the absence of which would cause extreme prejudice to the applicant.

The existence of circumstances which may, in their very nature, be prejudicial to the applicant, is not the only factor that a court has to take into account, time being of the essence in the sense that the applicant must exhibit urgency in the manner in which he has reacted to the event or the threat - whatever it may be.

In the matter before me, there is no urgency established.

I wish to respectfully associate myself with the comments by GILLESPIE J in the case of General Transport & Engineering P/L v Zimbank Corp P/L 1998 (2) ZLR 301…, wherein the learned judge stated:

“It is therefore an abuse for a lawyer to put his name to a certificate of urgency where he does not genuinely hold the situation to be urgent. Moreover, as in any situation where the genuineness of a belief is postulated, the good faith can be tested by the reasonableness or otherwise of the purported view.

Thus, where a lawyer could not reasonably entertain the belief that he professes in the urgency of a matter, he runs the risk of a judge concluding that he acted wrongfully, if not dishonestly, in giving his certificate of urgency.”

There is a duty incumbent upon a legal practitioner, before he files a certificate that a matter is urgent, to carefully examine the case that his client puts to him and to satisfy himself that indeed the matter is urgent.

As was stated by BERE J, in Dodhill P/L and Anor v Minister of Lands and Anor HH40-09 there is no formula which determines what constitutes urgency, nevertheless, a legal practitioner should be diligent in certifying the urgency of a matter.

Sufficient thought ought to be given to the instructions from the client as regards the issue of urgency and an opinion expressed clearly to the applicant as regards the lack of cogent grounds to justify urgency.

An applicant who has his matter dealt with on an urgent basis steals a march on other litigants and it is a facility which should be accorded only to a few deserving cases.

On the facts presented, this case did not merit such an accommodation.

In the premises, I find that the application was not well founded and the application is therefore dismissed with costs.

HB46-15 : ZENZO NTULIKI vs TIMOTHY SEAN WHITE and OFFICER COMMANDING MATEBELELAND SOUTH PROVINCE and THE SHERIFF OF ZIMBABWE N.O.
Ruled By: MOYO J

This is an application wherein the applicant seeks a provisional order whose interim relief is couched as follows:

“(1) That the applicant shall be allowed unhindered access to the farm known as Lot 2 of Lot 36 Essexvale also known as Avalon Farm, Esigodini and to carry out thereupon all normal farming activities.

(2) That the respondents, its agents, assignees, associates, or employees be and are hereby interdicted and stopped from interfering with the applicant's operation of the farm known as Lot 2 of Lot 36 Essexvale also known as Avalon farm.”

The facts of the matter are that the applicant was allocated Lot 2 of Lot 36 of Essexvale (Avalon) in Umzingwane Matebeleland South Province by the Ministry of Lands in an offer letter dated 4 December 2014.

He then went to the farm and sought to occupy same.

He alleges that an agreement had been reached with the first respondent who had agreed to vacate the farm in January 2015, but, that, on 10 January 2015, the first respondent reneged on his word and stopped the applicant's workers from moving into the farm.

The applicant alleges, that, the first respondent then went on to evict the rest of his workers who were at the farm. He alleges that the first respondent has disturbed his peaceful possession of the farm.

The first respondent has raised points in limine in opposition to the urgent application:

(i) He avers, that, there is no urgency in this matter as evidenced by the fact that the applicant has never been in occupation of the farm in the first place.

He avers that he has always been in lawful occupation of the farm and that he never suggested that he would vacate the farm by 10 January 2015.

He alleges that the applicant sent his workers to the farm without the first respondent's consent thereto.

He avers, that, his legal practitioners then wrote to the applicant advising him that due process had to be followed in taking over the farm and that he could not forcibly dispossess him of the farm....,.

On the issue of urgency, the problem is that the applicant seems to have sought to occupy the farm without following due process.

The applicant must wait for the law to take its course before creating an urgency for himself.

It would seem the applicant failed in his bid to despoil the first respondent, rather than that he was in peaceful and undisturbed possession as he clearly failed to obtain the possession in the first place....,.

By due process, I mean, that, rather than confronting the first respondent and advising his imminent take over of the farm, he should have left it to the land authorities to notify the first respondent to vacate the land and give him a reasonable period within which to leave;...,.

HH118-18 : PINKSTONE MINING (PVT) LTD and TIMOTHY MATANGI and AFRICAN MILLS & MINERALS (PVT) LTD vs LAFARGE CEMENT ZIMBABWE LTD and MINISTER OF MINES AND MINES DEVELOPMENT
Ruled By: ZHOU J

This is an urgent application for an order interdicting the first respondent from carrying on mining operations on the applicant's mineral claims described in the papers as Contrica 9 Registered Number 23331BM; Contrica 21 Registered Number 24482BM; Contrica 45 Registered Number 24866BM; and Contrica 46 Registered Number 24867BM.

The order also seeks the barring of the first respondent from coming within two hundred metres of the mining claims referred to above.

The terms of the final order, in addition to seeking the interdict as recited above and costs of suit, asks the court to set aside the first respondent's mining claims under Registration numbers 41334BM and 42332BM.

The mining claims in dispute are in an area falling under the Pfura Rural District Council.

The application is opposed by the first respondent.

The second respondent, through his legal practitioner, advised that he would abide by this court's decision.

The brief facts upon which the application is founded are as set out below:

The third applicant is the holding company in the first applicant. The first applicant is the holder of the mining claims described above. It registered the claims in 1996. The current certificates of registration and inspection are attached to the applicants papers.

At some point, the applicants and the first respondent had business dealings involving minerals from those claims. It appears that the agreement was not pursued.

The respondent went on to register mining claims over a piece of land which included the claims already registered under the applicants names.

The applicants became aware of the first respondent's intention to carry on mining operations on the claims in dispute on 19 February through an article which appeared in The Herald newspaper of 14 February 2018.

The first respondent does not dispute that it has registered the claims in dispute. It, however, contests the relief being sought in this application.

The first respondent, in its opposing affidavit, took the point, that, the matter should not be heard on an urgent basis.

No submissions were made in support of that objection at the hearing.

Clearly, this is a matter which is urgent.

The applicants acted quickly by instituting the instant application within four days after becoming aware of the applicant's claims to the disputed mining claims.

Further, if the matter is not dealt with urgently, and the applicant ultimately succeeds, there will be irreparable prejudice as the first respondent has not stated that it will not proceed with carrying on mining activities on the disputed claims.

The fact that it has not yet started carrying on the mining work is not relevant as there is no undertaking that mining activities will not be undertaken pending the determination of the dispute.

The matter is therefore urgent.

HH11-17 : ANDREW PASCOE vs MINISTRY OF LANDS AND RURAL RESETTLMENT and W. BUNGU and THE ATTORNEY GENERAL N.O.
Ruled By: CHITAPI J

In this application, the applicant seeks the following relief as set out in the provisional order:“TERMS OF FINAL ORDER SOUGHT1. That it be and is hereby declared that second respondent's dispossession of certain land and buildings in respect of applicant's offer letter for a certain piece of land described as ...

In this application, the applicant seeks the following relief as set out in the provisional order:

“TERMS OF FINAL ORDER SOUGHT

1. That it be and is hereby declared that second respondent's dispossession of certain land and buildings in respect of applicant's offer letter for a certain piece of land described as Subdivision 2 of Ivordale in the Goromonzi district of Mashonaland East Province measuring approximately 449.792ha in extent dated 16 July 2014 (hereinafter called “the property”) which physical dispossession took place on or about the 5th December 2016 and on subsequent days thereafter is and was unlawful on account that this was done without the consent of the applicant and without following due process and therefore in circumstances amounting to spoliation.

2. That it be and is hereby declared that the applicant, his agents, representatives, employees and invitees are entitled to peaceful and undisturbed possession of the property until such time as the respondents or one or other of them applies for and obtains an order of ejectment against applicant having final effect from a competent court.

3. That Respondents jointly and severally pay the costs of this application.

INTERIM RELIEF

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

(a) That applicant's possession of the property referred to in his offer letter dated 16 July 2014 called Subdivision 2 of Ivordale in the Goromonzi District of Mashonaland East Province measuring approximately 449.792ha in extent (“the property”) be and is hereby restored in its entirety; and

(b) That second respondent and all other persons acting through or in common purpose with him remove all and any impediments on the property so as to permit free and unimpeded access by the applicant, his agents, employees, and invitees in and to the property and of all improvements on it; and

(c) That the second respondent and all persons acting through or in common purpose with him shall forthwith, upon the grant of this order, vacate the property, including any buildings and that all movable assets and property including livestock that may have been introduced by them onto the property also be removed. Failing vacation and removal, that the Sheriff or his Deputy be and is hereby authorised and empowered to attend to the ejectment of the second respondent and of all other persons claiming occupation and use of the property through him.

SERVICE OF THE PROVINCIAL ORDER

That leave be and is hereby granted to applicant's legal practitioners or the Sheriff or his Deputy to attend to the service of this order forthwith upon the Respondents in accordance with Rules of the High Court.”

On 16 December 2016, which was the set down date, the respondents sought a postponement of the hearing. The respondents had not had enough opportunity to peruse the application and to prepare and file their responses.

I postponed the hearing, and, following submissions by the applicant who was concerned that he could not access his planted crop, I asked the second respondent whether he had any problems with allowing the applicant to attend on his planted crop. The second respondent did not have a problem with this. I then granted an interim order pending the final disposal of the matter by myself.

I consequently granted an interim order in the following terms:

“IT IS ORDERED THAT:

1. The hearing of the application be postponed to 19 December 2016 at 2:30pm and ruling on wasted costs is reserved.

2. In the intervening period, the 2nd respondent, his agents or any other person so inclined is hereby ordered not to interfere with or impede in any manner the applicant or his workers access to and tending his crop of maize, groundnuts, and soya beans and already planned on the disputed land, subdivision 2 of Ivordale in Goromonzi as described in the applicant's founding affidavit.

3. The applicant shall not plant any new crops and the 2nd respondent shall not do or suffer to be done anything either by himself of through his agents on the disputed land as may affect the status quo which should remain so until the application is determined.

4. The respondents to file any opposing papers if they oppose the relief sought by no later than 12noon on 19 December 2016 and to serve the applicant's legal practitioner by no later than 1:00pm on the same date.”

The first and second respondents filed their responses.

The first respondent responded on the merits through an affidavit deposed to by the Permanent Secretary of the relevant Ministry. The first respondent's position was set out in the relevant paragraphs of her affidavit as follows:

“3. I have read the applicant's founding affidavit and wish to respond as follows;

4. All due processes leading to the downsize of the applicant's farm size were observed and adhered to and the applicant was left with enough land to conduct his dairy farming activities and other operations.

5. The Ministry policy permits the applicant to wind up any operations and harvest any crops that he might have planted without any interference from the incoming beneficiary.

6. In essence, the 2nd respondent is to allow the applicant to wind up operations with no interference from himself and/or any others that claim occupation through him.

7. In the premise, we abide with the court's ruling.”

The first respondent's position was therefore that the Minister did not oppose the interim relief sought. This much appears clearly from an analysis of paragraphs 5 and 6 of the first respondent's affidavit.

The Ministry does not allow an incoming beneficiary to interfere with operations of the incumbent operative who is given an opportunity to wind up his or her operations without interference.

The second respondent, on the other hand, was opposed to the application on three (3) grounds;

(i) Firstly, that the application was defective and therefore a nullity;

(ii) Secondly, that the matter was not urgent; and

(iii) Thirdly, on the merits.

I deal with the issues raised in turn....,.

Counsel for the second respondent's next point in limine, as I have indicated, was that the application was not urgent.

The second respondent contended, in paragraphs 10.1 to 10.3 of his opposing affidavit, the applicant had created the urgent situation by ploughing on the second respondent's farm without the second respondent's consent.

The second respondent averred, that, he accepted an offer letter for the disputed piece of land and took possession of the piece of land on 16 November 2016. He argued that it was the applicant who had now invaded his piece of land by ploughing on it.

I noted, however, that the second respondent did not file a counter application to assert his rights.

The first respondent, in his affidavit, appeared to support the applicant's right to wrap up his operations without hindrance from the second respondent or the new beneficiary.

Counsel for the first respondent indicated that he had no submissions to make on the issue.

I took it that he was relying on the point in limine.

I should, in passing, indicate that it does not really assist a court or a judge for a legal practitioner to stand up and say he or she has no submissions. It assists the court if a legal practitioner takes a position because the party whom such legal practitioner represents cannot be said or held not to have a position on a point which arises in a matter in which such party has an interest.

By not taking up the issue of urgency, it can only mean that the first respondent accepted that the application was urgent. Had he been disposed otherwise, he would have argued the point.

Counsel for the applicant submitted, that, there was no self-created urgency.

She argued, that, the applicant's case was not based on when the applicant purported to have taken possession of the piece of land allocated to him. She submitted that the application was for a spoliation order arising from acts of spoliation as detailed in paragraphs 17 and 18 of the founding affidavit.

The allegations made by the applicant in these paragraphs were that the second respondent and some youths, had, on 8 December 2016, come in a combi vehicle around 9:20am to the applicant's field area where a tractor was spraying chemicals on a soya land. The second respondent is said to have ordered that all activities being carried out by the applicant or on his behalf be stopped. The second respondent proceeded to the applicant's occupied homestead and offloaded his belongings which included a bed, mattress, 5 chairs, and other household effects. The goods were then put in the applicant's security managers occupied house. The security manager was ordered to vacate the house, remove his belongings, and the second respondent fitted his own padlock to the main entrance.

On 9 December 2016, the second respondent reportedly threatened to bring five herd of cattle, some goats, as well as dogs to a cattle kraal within the applicant's occupied piece of land. He also reportedly threatened to bring some of his farm workers to take up residence near the cattle kraal.

The second respondent reportedly ordered that the applicant's mother should vacate her occupied residence within the disputed piece of land so that the second respondent takes over possession and occupation of the same.

The applicant filed the spoliation application before me on 9 December 2016.

It is clear, therefore, that the applicant did not wait a day longer after the acts complained of had taken place to petition the court for appropriate relief.

Whether or not a matter is urgent is a value judgment which a judge reaches upon a consideration of all the objective facts and circumstances surrounding the matter to be determined.

The celebrated judgment of CHATIKOBO J of Kuvarega v Registrar General & Anor 1998 (1) ZLR 189, has become the bible or leading case followed in this jurisdiction in so far as it sets out the factors which determine whether or not a matter qualifies for urgent hearing.

The learned judge stated as follows…,:

“What constitutes urgency is not only the imminent day of reckoning. A matter is urgent, if, at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from acting until the deadline draws near is not the type of urgency contemplated by the Rules.”

The upshot of the remarks of CHATIKOBO J, as above quoted, boil down to the need for an applicant, whose rights have been infringed or are about to be infringed, to assert such rights immediately and not wait for harm to draw near or eventuate before acting.

The remarks of GOWORA J…, in Triple C Pigs & Anor v Commissioner General, Zimbabwe Revenue Authority 2007 (1) ZLR 27…, put the icing on the cake by further ventilating CHATIKOBO J's remarks in Kuvarega v Registrar-General & Anor 1998 (1) ZLR 189. The learned judge stated:

“Naturally, every litigant appearing before these courts wishes to have their matter heard on an urgent basis, because, the longer it takes to obtain relief, the more it seems that justice is being delayed and thus denied. Equally, the courts, in order to ensure delivery of justice, would endeavour to hear a matter as soon as is reasonably practicable. This is not always possible, however, and, in order to give effect to the intention of the courts to dispense justice fairly, a distinction is necessarily made between those matters that ought to be heard urgently and those to which some delay would not cause harm which would not be compensated by the relief eventually granted to such litigant.

As courts, we therefore have to consider, in the exercise of our discretion, whether or not a litigant wishing the matter to be treated as urgent has shown the infringement or violation of some legitimate interest, and whether or not the infringement of such interest, if not redressed immediately, would not be the cause of harm to the litigant which any relief in the future would render brutum fulmen.”

The remarks of GOWORA J sums up the second consideration in determining urgency.

A party should act immediately when the need to act arises, and, in addition, must demonstrate irreparable harm, actual or potential, arising from the infringement of the party's legitimate rights or interests. The infringement must be such that failing immediate redress, there would be nothing left to redress and/or any other future redress would not provide adequate remedy to correct the wrong.

In casu, the applicant acted immediately upon the wrong, as perceived by him, having been committed.

He alleged acts of spoliation. A spoliation is an act that the court will not countenance. It smacks of anarchy whereby persons take the law into their hands. To allow spoliation a place in society, or condone it, will lead society back to pre-civilization days where the maxim 'each man for himself; and an eye for an eye' were the order of the day.

A court will therefore, as a matter of practice and routine, treat spoliation applications to be dealt with as urgent matters provided of course that the other procedural requirements have been met.

HH391-17 : ANDREW PASCOE vs MINISTRY OF LANDS & RURAL RESETTLEMENT and W. BUNGU and THE ATTORNEY GENERAL N.O.
Ruled By: FOROMA J

This is an urgent chamber application in terms of which the applicant seeks the following relief as set out in the provisional order:“TERMS OF FINAL ORDER SOUGHTThat you show cause to this Honourable Court why a final order should not be made in the following terms:1. That, it be and ...

This is an urgent chamber application in terms of which the applicant seeks the following relief as set out in the provisional order:

“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:

1. That, it be and is hereby declared, that, the letter of Mr A Tsimba, in his capacity as Acting Provincial Resettlement Officer, Mashonaland East Province drawn on the 10 May 2017 for the Ministry of Lands and Resettlement providing an eviction/vacate date and cessation of possession, occupation, use and all farming activities on Plots 3 and 5 of Ivordale Farm by 30 June 2017 is null and void and of no force or effect on account that, in its effect and implementation, it violates sections 68 and 69 of the Constitution of Zimbabwe and section 3 of the Administrative Justice Act [Chapter 10:28].

2. That, it be and is hereby declared that applicant, his agents, representatives, invitees and employees are entitled to the continued possession, occupation and use of the whole of subdivision 2 of Ivordale in the Goromonzi District of Mashonaland East Province measuring approximately 449.792ha (“the property”) until such time as a final determination has been rendered with regard to applicant's review proceedings and relief in HC12727/16.

3. That respondents, jointly and severally, the one paying the other to be absolved, pay the costs of this suit.

INTERIM RELIEF

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

(a) That first and second respondents and all other persons acting through them be and are hereby interdicted from interfering with applicant's farming operations, possession, and control of movable and immovable property including livestock on Subdivision 2 of Ivordale in the Goromonzi District of Mashonaland East Province measuring approximately 449.792ha, as reflected in applicant's offer letter dated 16 July 2014, incorporating as it does newly depicted Plots '3' and '5' as set out in a subdivision plan drawn by officers in the 1st respondent Ministry and fresh offer letters in favour of 2nd respondent and an unknown person.

(b) That, it be and is hereby declared that the interim relief granted by his Lorship, Mr Justice Chitapi, in favour of the applicant, on 11 January 2017, in HC12511/16, shall continue to apply until such time as a final determination is made by the High Court in regard to the validity of the withdrawal of applicant's offer letter and downsizing of applicant's property.”

The application was opposed and was heard before me on 5 June 2017....,.

Counsel for the first and third respondents then raised a point in limine in regard to urgency arguing that the matter was not urgent considering that the applicant was served the letter complained about on 12 May 2017 and had not done anything until 1 June 2017.

He therefore urged that the application be dismissed.

Counsel for the applicant opposed the respondents application for dismissal (on the basis that the matter was not urgent) pointing to the fact, that, what triggered the urgency was the position conveyed to the applicant by the first respondent's representatives at the meeting of 29 May 2017 at the Provincial Minister for Mashonaland East at Marondera, which, as recounted in paragraph 29 of applicant's affidavit says:

“29 They also emphasized, that, in their view, the notice to cease operations constituted an eviction order/notice and that should l fail to cease operations by 30 June 2017, I would be arrested and evicted without further ado and charged under the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]. I explained to the Committee, that, my understanding of the law was that an eviction order had to be issued by a judge or Magistrate in a court of law. I was told, in no uncertain terms, that, my understanding was incorrect and that they stood by their view that the notice to cease operations constituted an eviction sanctioned by law…,.”

Counsel for the applicant further argued, that, the threat uttered, as contained in paragraph 29, as quoted, grounded a reasonable fear of unlawful eviction by the respondents hence the urgent resort to seek interdictory relief pending the determination of the pending application for review per case no. HC12727/16.

Even though l considered the matter to be urgent, I was concerned with the procedure adopted and invited counsel for the applicant to address the issue i.e. whether the correct procedure in casu was an urgent court application as opposed to an urgent chamber application.

My concern was based on the fact, that, the applicant had more than one and half months as at 12 May 2017 to 30 June 2017 in the Rules of Court.

Counsel for the applicant did not consider that there was any scope for an urgent court application and brought my attention to Order 32 Rule 244 which she considered as authority for an urgent chamber application until I brought her attention to Rule 223A.

For the avoidance of doubt, the Rules of this court explicitly provide for urgent court applications and here is how:

Order 32 Rule 232 of the High Court Rules, dealing with the time for opposition to a court application, provides as follows:

“232 The time within which a respondent in a court application may be required to file a notice of opposition and opposing affidavit shall be not less than ten days, exclusive of the day of service, plus one day for every additional 200km…,: provided that, in urgent cases, a court application may specify a shorter period for the filing of opposing affidavits if the court, on good cause shown, agrees to such shorter period.”

The court's agreement to a shorter period would obviously be easily obtained, if, in the certificate of urgency, in terms of Rule 223A of the High Court Rules, the applicant addresses the issue of the shortened dies induciae.

Once an opposing affidavit is filed within the shortened dies induciae, the matter can be set down in terms of Rule 223(2)(a) as read with Rule 238(i)(a) and (b) which provides for setting down of urgent applications for hearing.

The respondent's heads of argument, in an urgent court application, have to be filed in terms of Rule 238(2a)(ii) which provides as follows;

“Provided that -

(i)…,.

(ii) The respondent's heads shall be filed at least five days before the hearing.”

There is, therefore, an obligation for the applicant, in an urgent court application, to afford the respondent at least five days to the hearing for purposes of filing heads of argument, as, in terms of Rule 238(2)(b), a party who fails to file heads of argument in terms of Rule 238(2)(a) shall be barred.

It is clear, that, when diligently applied, the Rules provide an alternative to the floodgate of urgent chamber applications that this court has to reckon with.

I dare say, that, an urgent court application can easily be disposed of within a period of about 15 working days.

Thus, a lot of urgent chamber applications are needless avoidance of urgent court applications.

In fact, l dare say, that, an urgent application should be made as an urgent court application unless as provided in Rule 226(2) of the High Court Rules, the matter is so urgent that it cannot wait to be resolved through an urgent court application.

This interpretation to Rule 226(2)(a) is as consistent with reference to a court application under the said Rule.

By its very nature, a court application, whether urgent or ordinary, provides litigants with an equal and proper opportunity to ventilate their positions on a matter in dispute unlike an urgent chamber application where a party may simply appear before a judge without any opposing papers and make submissions not supported on any evidence before the judge.

Urgent Chamber Applications, by their nature, are time-consuming as one has to content with at least two court appearances i.e. initially to obtain a provisional order, and, subsequently, at confirmation of the provisional order on the return date; whereas, an urgent court application will guarantee a final judgment based on one hearing thus reducing the court's workload through duplication as the papers have to be read at least twice.

There obviously are more advantages in adopting the urgent court application procedure than the urgent chamber application procedure.

It however is not proposed to provide an exhaustive list of the advantages at this stage. It is clear, therefore, that, in light of the foregoing, the applicant ought to have brought his application as an urgent court application.

HB58-15 : TRIANIC INVESTMENTS (PVT) LTD and MEYER DRAY vs NQOBILE KHUMALO and FRANCESCA MUFAMBI and OFFICER-IN-CHARGE (FILABUSI) ZIMBABWE REPUBLIC POLICE
Ruled By: MOYO J

This is an urgent application. The interim relief sought is couched in the following manner:

“(1) That, execution of case number 2167/14 be and is hereby stayed pending the finalization of the application for rescission of judgment under HC141/15.

(2) The respondents be and are hereby interdicted from interfering with the mine in question and the mining equipment thereof.

(3) The respondents be and are hereby interdicted from interfering with the mine in question and executing the order under HC2167/14 pending the application for rescission of judgment under HC141/15.”

The facts of the matter show, that, the dispute between the applicants and the respondents centre on a mine situated in Filabusi.

Apparently, in September 2014, the respondents filed an urgent chamber application and served it on the applicants legal practitioners. The applicants legal practitioners filed a notice of opposition thereto. The file was taken to a judge in chambers and he granted the provisional order without setting the matter down as he was at large, in terms of the Rules, regarding the set down or otherwise of the matter.

The respondent claims, that, upon receipt of the provisional order, they served same on the applicants legal practitioners and that no notice of opposition was filed to the confirmation of the provisional order leading them to confirm same on 15 January 2015.

In the confirmation proceedings, they filed a certificate of service confirming that indeed the provisional order had been served on the applicants.

Prior to the confirmation of the provisional order, the applicants legal practitioners were served, by the respondents legal practitioners, with an affidavit of evidence and a notice of set down of the matter on the unopposed roll. Such service was effected on 9 January 2015.

The applicants filed an application for rescission of judgment on 21 January 2015.

This is an application to rescind the confirmation of the provisional order.

The applicants now seek to stay execution of the provisional order pending the hearing of their application for rescission of judgement.

They seek rescission on the basis, that, they were not served with the provisional order, and that they would want to be given an opportunity to challenge same. They further contend, that, the relief that was in the provisional order and the one that was obtained upon confirmation of same were materially different.

The terms of the final order in the provisional order that was originally issued read as follows:

“(a) The respondents be and are hereby ordered not to sale the mine in question.

(b) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.

(c) The respondents pay the costs of suit on an attorney and client scale.”

The terms of the final order granted on confirmation read as follows:

“(1) The respondents be and are hereby ordered not to sell the mine in question.

(2) The respondents be and are hereby ordered not to interfere with the applicant's operations at the mine and not to interfere with the equipment thereat.

(3) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.

(4) The respondents be and are hereby interdicted from going to the mine known as Eric 21, Trianic Investments Filabusi.

(5) The respondents pay costs at an attorney and client scale.”

The interim relief, as per the provisional order that was granted on 20 November 2014, is as follows:

“(a) The respondents be and are hereby ordered not to interfere with the mine in question and the mining equipment thereof.

(b) The second respondent to fourth respondents be and are hereby interdicted from interfering with whatever nature of threats upon their persons or their family.”

The respondents have challenged the order sought on the basis that the matter is not urgent.

I now turn to look at the issues in this application....,.

The other issue is that of urgency.

The applicants got to know of the imminent confirmation of the provisional order they were apparently not served with on 9 January 2015. They did nothing despite knowledge that the matter had been set on the unopposed roll since they had been served with a notice of set down.

It is important to note, that, the application for rescission of judgment was filed on 21 January 2015. However, the urgent application was filed on 16 February 2015 - almost a month later.

Counsel for the applicants sought to bring up the issue of the placement under curatorship of the firm Cheda and Partners. This, however, he submits, occurred on 30 January 2015, more than 9 days after the filing of the rescission of judgment, which itself was filed almost two weeks after the applicants lawyers had been served with a notice of set down.

The applicants have not sought to explain, in the founding affidavit, why no action was taken from 9 January.

In the case of Kuvarega v Registrar General 1998 (1) ZLR 188 (HC) the position regarding the undesirability of delaying to launch urgent applications was cogently stated…,. This is what the learned judge had to say:

“What constitutes urgency is not the only imminent arrival of the day of reckoning; a matter is urgent, if, at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules. It necessarily follows, that, the certificate of urgency, or the supporting affidavit, must always contain an explanation of the non-timeous action if there has been a delay…,.”

In my view, the applicants inaction, from 9 January 2015 to 16 February 2015, is found wanting.

There is no explanation, either in the certificate of urgency or the founding affidavit, for this very long delay.

The application does not, in my view, meet the test on urgency. It has to fail on that basis as well.

HMA47-19 : TRIANGLE LIMITED and HIPPO VALLEY ESTATES LIMITED vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION (ZSMIWU) and OTHERS
Ruled By: WAMAMBO J

The applicants filed an Urgent Chamber Application on 26 September 2019. The first to seventh respondents (Zimbabwe Sugar Milling Industry Workers Union, Godfrey Katerere, Brawl Chikandiwa, Tavonga Vandirai, Lucia Chirilele, Nokhutula Dube and Faster Gono) filed opposing papers on the date of the hearing.

The 8th to 14th respondents (Berrington Zvanyanya, Samule Jijinka, P.Chikami, Z. Manara, A. Sibanda, J. Gwanyanya and Admore Hwarare) did not file any papers and their position is that they do not oppose the application, if the terms thereof are broadened to encapsulate their interests.

Mr K. Shamuyarira, a trade unionist representing the 15th respondent (Zimbabwe Federation of Trade Unions) is opposed to the application. He also did not file opposing papers.

The relief sought was amended at the eleventh hour.

The first to seventh respondents (Zimbabwe Sugar Milling Industry Workers Union, Godfrey Katerere, Brawl Chikandiwa, Tavonga Vandirai, Lucia Chirilele, Nokhutula Dube and Faster Gono) opposing papers were predicated upon the original relief sought.

The relief that is now sought reads as follows;

“1. INTERIM RELIEF SOUGHT

1.1 It is ordered that pending the final resolution of this matter either in the court of first instance or an appeal;

(a) The applicants are to deposit the 'Trade Union Dues' for the Zimbabwe Sugar Milling Industry Workers Union into the Master of the High Court Trust Account until the final resolution of SC518/19.

2. FINAL TERMS OF THE PROVISIONAL ORDER

2.1 The interim order is confirmed.

2.2 The 1st to 14th respondents shall pay costs of suit on an Attorney and client scale.”

The background of the matter can be traced back to a matter adjudicated upon by MAFUSIRE J in HMA38-19 referred to as Zvanyanya and Others v ZISMIWU and Others.

This matter was heard on 23 May 2019 and 27 June 2019 and the date of written reasons is 28 August 2019.

In HMA38-19 the applicants therein, who are members of a faction of a trade union, sought to have three respondents (namely 2nd, 3rd and 4th respondents, Godfrey Katerere, Brawl Chikandiwa and Tavonga Vandirai)) to be disqualified from membership of the trade union, and, flowing therefrom, to be disqualified from holding positions in the trade unions National Executive Committee. The applicants in HMA38-19 also sought an order to hold elections to choose members of the National Executive Committee and to hold annual general meetings in terms of its Constitution.

MAFUSIRE J resolved the issues by way of an order which reads as follows;

“(i) The second, third, and fourth respondents ceased being members of the first respondent upon the termination of their contracts of employment with the seventh respondent.

(ii) By reason of paragraph (i) above the second, third, and fourth respondents are hereby disqualified from holding any positions in the first respondents national executive committee.

(iii) The first respondent shall hold elections to choose members of the national executive committee within sixty (60) days of the date of this order, or within such other time frame as may be agreed upon.

(iv) The first respondent shall hold an annual general meeting in terms of its Constitution by no later than the 31st December 2019.

(v) The costs of this application shall be borne by the first, second, third, and fourth respondents, jointly and severally.”

The first to sixth respondents (Zimbabwe Sugar Milling Industry Workers Union, Godfrey Katerere, Brawl Chikandiwa, Tavonga Vandirai, Lucia Chirilele and Nokhutula Dube) have since appealed against the whole, final and definitive judgment under HMA38-19 to the Supreme Court. The appeal appears under cover of SC518/19.

It would appear that specifically because of the order under HMA38-19, and the developments thereafter, the acrimony between the parties intensified.

It may be necessary to identify the parties at this stage.

The first and second applicants (Triangle Ltd and Hippo Valley Estates Ltd) are the employers.

The first respondent (Zimbabwe Sugar Milling Industry Workers Union) is a registered trade union in terms of the laws of Zimbabwe.

The second to seventh respondents (Godfrey Katerere, Brawl Chikandiwa, Tavonga Vandirai, Lucia Chirilele, Nokhutula Dube and Faster Gono) are members of a faction of the first respondent while the eigth to fourteenth respondents (Berrington Zvanyanya, Samule Jijinka, P.Chikami, Z. Manara, A. Sibanda, J. Gwanyanya and Admore Hwarare) are members of the second faction.

The two factions are involved in a fierce battle to control the first respondent.

The fifteenth respondent (Zimbabwe Federation of Trade Unions) is ostensibly the mother body of the first respondent (Zimbabwe Sugar Milling Industry Workers Union) while the fourteenth respondent (Admore Hwarare) is cited in her official capacity.

The employer is, by virtue of the law, enjoined to transmit union dues to the first respondent.

The situation has been complicated by the fights and disagreements between the two factions set on wrestling and winning control over the first respondent.

The applicant is of the view, that, in order to safeguard the union dues they should be transmitted to a trustworthy and secure institution, namely, the Master of the High Court. This is to prevent the funds being misused or to stop or prevent the various warring factions seeking to apportion a slice of the cake to themselves.

As is usual in such applications, points in limine were raised.

Some of the points in limine seem to have been abandoned while others were seemingly overtaken by events.

Points in limine raised by the first to seventh respondents were;

Firstly, that the matter is not urgent.

Counsel for the first to seventh respondents referred to principles on urgency and various case law. She pointed out, that, the applicant filed heads of argument on 30 September 2019 as well as an amended draft order. These two sets of documents were only served on her, as counsel for the first to seventh respondents, ten minutes before the scheduled time for the hearing of this application. No warning was given of the amended draft order.

Counsel for the first to seventh respondents avers, that, in HMA38-19 the applicants chose to abide by the decision of the Court. She sought to demonstrate, that, the various cases relied upon by the applicants are either misplaced, irrelevant, or misunderstood. She averred, that, the applicants should not have approached the court without notifying all the parties.

In a long line of cases, the issue of urgency has been defined and traversed. Among other cases, see: Kuvarega v Registrar General and Another 1988 (1) ZLR 188 (HC); Shandong Taishon Sunlight Investments Limited v Yunnan Linkun Investments Group Company Limited & Others HH06-16…,.; Triple C Pigs (Partnership and Colcom Foods Limited) v The Commissioner General of Zimbabwe Revenue Authority HH07-07…,.; Document Support Centre (Private) Limited v T.F. Mapuvire HH117-06…,.

Counsel for the applicants argued, that, the matter is indeed urgent. He strongly based his argument on the fact that the applicants are enjoined, at law, to disburse union dues to the trade union every month lest they face civil or criminal liabilities.

He further pointed out, that, there has been a lot of infighting between the two factions of the first respondent. To that end, the two factions are battling, through the employer, and either faction is demanding union dues from the applicants.

A lot more was traversed by counsel for the applicants which spoke more to the merits of the case.

I am, however, of the view that urgency has been proved.

There is clear acrimony between the alleged factions. Pursuant to the judgment in HMA38-19 the fighting for control of the first respondent intensified. The appeal launched against the decision did not help matters either. The legal obligation of the applicants, to disburse union dues to the first respondent, is common cause.

The need to clarify how the disbursement, and to whom it should be made, is clearly an urgent matter.

I am satisfied, that, when the need to act arose, the applicants did act expeditiously in the circumstances of this case.

HMA55-19 : GREAT ZIMBABWE UNIVERSITY vs NESBERT MAREVERWA
Ruled By: WAMAMBO J

The applicant seeks a rei vindicatio order. It seeks to recover its property retained by the respondent.

The applicant is a body corporate duly constituted in terms of the Great Zimbabwe University Act [Chapter 25:24].

The respondent was an employee of the applicant holding the position of Chief Security Officer.

The respondent holds property belonging to the applicant, which property the respondent was holding by virtue of his being an employee of the applicant. The property consists of guns, a security motor vehicle and office and gun cabinet keys.

The respondent's contract of employment with the applicant has been terminated.

As is usual in such applications, respondent raised a number of points in limine.

The respondent contends, that, there is no proper certificate of urgency filed; that the matter is not urgent; that the draft order is defective and unlawful.

I will briefly deal with these points in limine....,.

On urgency, the respondent avers, that, the founding affidavit does not reflect urgency.

It is deposed to by the Vice Chancellor, Professor Rungano Jonas Zvobgo. A number of complaints are raised by the respondent. I find the complaints unmeritorious. The founding affidavit gives the background of the matter in detail. It spans almost 3 pages. The detailed background is essential for one to appreciate what steps the applicant took in the matter, what options were open to it, and whether or not there are alternative remedies.

For an appreciation of what the founding affidavit establishes, I will delve into some detail on the founding affidavit. This might illuminate issues, particularly on the raised issue of lack of urgency.

The facts, as per the founding affidavit, are as follows:

The respondent's employment with the applicant was terminated with the effective date of termination being 31 October 2019. The respondent retained the keys to the office housing the gun cabinet and the keys to the gun cabinet. The respondent also retained a motor vehicle used in the Security Department. As matters would have it, as will become clearer in due course, the three guns are lodged in the gun cabinet - effectively, the applicant cannot access its office and its three guns.

The applicant took steps to recover the property at the centre of the dispute to no avail.

The applicant sought the help of the police. To achieve this, the applicant wrote a letter, dated 23 October 2019, directed to the police seeking recovery of, inter alia, the property in contention in this case. The letter further emphasises the urgency of the matter citing that the State President would preside over a graduation ceremony at the applicant's premises on 1 November 2019.

The police responded to the request through a letter dated 29 October 2019 and indicated, that, the matter is more civil than criminal. In paragraph 4 of the said letter, the Officer Commanding, Police Masvingo Central District who penned the response indicated that his office is open “for further assistance should you legally require it.”

The invitation to assist culminated in the police taking custody of the guns and ammunition in question on 31 October 2019.

On 4 November 2019, the police returned the guns and ammunition to the gun cabinet.

Counsel for the applicant argued that there were efforts to calm the situation and the return of the guns and ammunition marked the point when the applicant acted by filing this application a day later.

I am satisfied in the circumstances, that, the applicant did act when the need to act arose and that he did so expeditiously. To that end, I dismiss this point in limine.

HH636-15 : SALTLAKES HOLDINGS (PVT) LTD and TEMBA MLISWA vs CBZ BANK LIMITED and THE SHERIFF OF ZIMBABWE N.O.
Ruled By: CHIGUMBA J

This is an urgent chamber application for stay of execution pending the determination of an application for rescission of judgment.

The certificate of urgency was signed by Mr. Takunda Samuel Gumbo, who stated that the applicants property had been attached by the second respondent, at the instance of the first respondent, and that, the applicants stood to be irreparably prejudiced if the relief sought was not granted.

Goods were attached on 29 June 2015 and the application was filed a day later. Execution was due on the 2nd of July 2015.

The applicants had applied for the rescission of the default judgment obtained against them by the first respondent under case number HC6111/15.

It was submitted, that, a normal court application would render the outcome of the application for rescission of judgment irrelevant - a brutum fulmen.

Mr. George Marere, a director of the first applicant, deposed to the founding affidavit in which he averred the following:

(i) Firstly, on urgency: that the relief sought renders this matter 'inherently urgent'.

(ii) Execution of the writ would cause irreparable harm to the applicants.

(iii) There is no cause of action against the applicants in the main matter so the application for rescission of judgment has good prospects of success.

(iv) The first respondent fraudulently inflated the principal sum claimed and that is a triable issue which can only be resolved by the adducing of evidence.

(v) The first respondent is not entitled to the amount it is claiming, in that, it is charging usurious interest, amongst other things.

(vi) If the default judgment is executed, the applicants stand to lose their livelihood.

Mr. Thomas Tsvangirai Gambiza deposed to the opposing affidavit on behalf of the first respondent.

He averred, that, this matter was not urgent because no evidence was adduced to buttress the requirements of urgency. A matter is not rendered urgent simply because an application for rescission of judgment has been filed and is pending resolution.

He attached a letter dated 3 December 2014, addressed to the applicants legal practitioners, which was a warning to them that default judgment was about to be obtained because the appearance to defend was defective as it was filed out of time. He submitted, that, the application for rescission of judgment has no prospects of success.

The test for urgency is settled. It has been held that:

“Applications are frequently made for urgent relief. What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent, if, at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the Rules.”

See Kuvarega v Registrar General and Anor 1998 (1) ZLR 189.

It has also been held that:

“For a court to deal with a matter on an urgent basis, it must be satisfied of a number of important aspects. The court has laid down guidelines to be followed. If, by its nature, the circumstances are such that the matter cannot wait, in the sense that, if not dealt with immediately, irreparable prejudice will result, the court can be inclined to deal with it on an urgent basis. Further, it must be clear that the applicant did, on his own part, treat the matter as urgent. In other words, if the applicant does not act immediately and waits for doomsday to arrive, and does not give a reasonable explanation for that delay in taking action, he cannot expect to convince the court that the matter is indeed one that warrants to be dealt with on an urgent basis….,.”

See Mathias Madzivanzira & 2 Ors v Dexprint Investments (Private) Limited & Anor HH145-02; Church of the Province of Central Africa v Diocesan Trustees, Diocese of Harare 2010 (1) ZLR 364 (H); Williams v Kroutz Investments (Pvt) Ltd & Ors HB25-06; and Lucas Mafu & Ors v Solusi University HB53-07.

In my view, which I previously expressed in the case of Finwood Investments (Private) Limited & Anor v Tetrad Investment Bank Limited & Anor (an unreported HH-2014 case. See also Denenga v Ecobank HH177-14, in order for a matter to be deemed urgent, the following criteria, which have been established in terms of case law, must be met:

“A matter will be deemed urgent if:

(a) The matter cannot wait at the time when the need to act arises.

(b) Irreparable prejudice will result if the matter is not dealt with straight away without delay.

(c) There is prima facie evidence that the applicant treated the matter as urgent.

(d) Applicant gives a sensible, rational, and realistic explanation for any delay in taking action.

(e) There is no satisfactory alternative remedy.”

It is my view, that, the requirements of urgency were not met in this matter because the evidence supports the conclusion, that, the applicants failed to act when the need to act arose on 3 December 2014.

No explanation has been proffered at all as to why the applicants did not respond to the letter in which they were advised that their appearance to defend was defective. No explanation at all has been proffered as to why no application was made to uplift the automatic bar. We have not been favored with an explanation as to why the appearance to defend was filed outside the prescribed time period. We have not had the courtesy of being favored with a reasonable explanation as to why the notice of entry of appearance to defend was not served on the first respondent's legal practitioners of record within the prescribed time period.

The matter could not wait in December 2014 when the need to act arose.

In the absence of any explanation from the applicants, which is sensible, rational, or realistic, we conclude that there was deliberate, if not careless, abstention from acting when the need to act arose.

There is no evidence that the applicant acted when the need to act arose.

The urgency is self-created, and it is not the type of urgency envisioned by the Rules of this court which would operate in favor of allowing the applicants to shortchange other litigants by being allowed to jump the queue.

There is no prima facie evidence that the applicants treated the matter as urgent.

Prejudice which might be occasioned from the loss of money is not irreparable; the applicants can always be restituted. There is nothing 'inherently urgent' about these circumstances.

However, out of abundance of caution, I will address the merits of the matter.

HH125-17 : GRANDWELL HOLDINGS vs ZIMBABWE CONSOLIDATED DIAMOND COMPANY LTD and COMMISSIONER GENERAL, ZIMBABWE REPUBLIC POLICE and MBADA DIAMONDS (PVT) LTD
Ruled By: TSANGA J

In March 2016, the applicant, Grandwell Holdings (Grandwell), which owns a 50% shareholding in Mbada Diamonds [Private] Limited (Mbada), a joint venture initiative for diamond mining in Chiadzwa, obtained an interim order under HC1977/16 (HH193-16).

The other 50% shareholding in Mbada is owned by Marange Resources [Private] Limited (Marange), a Government-owned company.

According to the applicant, the elements of the order which was granted entitled its security personnel, and its entire chain, to return to Chiadzwa in order to safeguard its assets. Among these are said to be diamond ore and unprocessed diamonds that are kept in a vault. The diamond ore, which has been crushed, awaits removal of diamonds.

What is not in dispute is that from March last year, the applicant's security personnel went on site as per the order by the court in HC1977/16.

What has brought the applicants back to court, on an urgent basis, is its allegation that their security personnel at the diamond site have now been removed and that massive looting of their diamond ore has taken place at the instance of the first respondent, Zimbabwe Consolidated Diamond Company Limited (ZCDC), and continues to take place - aided and abetted by the Zimbabwe Republic Police (the police), as the second respondent.

The ore is said to being loaded without any recording or chain of command making it impossible to ascertain what is being taken.

With the core mingling of the diamond ore with that being mined by the Zimbabwe Consolidated Diamond Company Limited (ZCDC), the fear is that it would be impossible to tell which diamonds come from which ore and that therein lies the irreparable harm.

Mbada Diamonds [Private] Limited's security personnel have been sterilised by these actions of ZCDC.

To compound the problem, the Zimbabwe Consolidated Diamond Company Limited (ZCDC) is said to have brought onto the mining site security personnel previously hired by Mbada Diamonds [Private] Limited who know how to open the vault locks. As such, a real fear is that of the diamonds being stolen.

Further, if the ore and the diamonds are taken, an equally real fear is that the pending appeal before the Supreme Court would be rendered nugatory.

Having invested US$100m in Mbada Diamonds [Private] Limited, Grandwell Holdings says it has a real and substantial interest in protecting the interests of Mbada Diamonds and its own investment.

An attempt is said to have been made to file the application on behalf of Mbada Diamonds [Private] Limited, but, it had failed to secure the signatures of representatives on the Board of Mbada Diamonds who represent Marange Resources [Private] Limited.

Grandwell Holdings, being a 50% shareholder in Mbada Diamonds [Private] Limited had therefore brought a derivative action to enforce the rights of Mbada Diamonds and to seek a possessory remedy to restore possession.

The basis upon which Grandwell Holdings says that Mbada Diamonds [Private] Limited has been despoilt is paragraph 7 of the Order that was granted in HC1977/16. The paragraph was couched as follows:

“Paragraph 7

For the purposes of safeguarding assets, all of the fifth respondent's security personnel, with all their chain of command, shall be entitled, authorised, and empowered to remain at the fifth respondent's mining site at Chiadzwa Diamond Concession, as directed in paragraph 2 of the order of this court on 29 February 2016, until the resolution of this matter.”

The police, as second respondents, were said not to have appealed against the order, whilst the Zimbabwe Consolidated Diamond Company Limited (ZCDC) which had indeed appealed, had only done so against the finding that it had committed acts of spoliation.

The appeal was therefore said to be in part, leaving paragraph 7, in essence, extant.

In addition, the fact, that, there was no appeal against the presence of security personnel, as per the court order, which is said to be extant, was said to be supported by the fact, that, for almost a year Mbada Diamonds [Private] Limited's security personnel remained firmly on site even as the appeal was pending.

However, the Zimbabwe Consolidated Diamond Company Limited's position is that any removal that has taken place has been as per the court order and arises from the fact, that, the mining grants which were acknowledged to have expired in the said order of the court have not been renewed.

Spoliation per se is denied.

The police say they are there in terms of their constitutional mandate, in section 219 of the Constitution, to maintain peace and order and safeguard property. They have asserted, that, they cannot be interdicted from carrying out a lawful mandate. Furthermore, their standpoint is that no police report was made regarding any theft to diamonds.

They too, essentially, deny despoiling Mbada Diamonds [Private] Limited.

Points in Limine

Several technical points in limine were raised on behalf of the Zimbabwe Consolidated Diamond Company Limited (ZCDC) and the Commissioner of Police....,.

The urgency of the matter was also queried on account that Grandwell Holdings had written, in January, to another set of practitioners with the same complaint. As such, it was said that urgency had arisen then and not at this point.

With the removal of ore, and the denial of security personnel at the site having been said to be ongoing, I cannot see how the matter ceases to be urgent.

As highlighted in the case of Telecel Zimbabwe (Pvt) Ltd v Portraz & Ors HH446-15, the essence of an urgent application is that if the court fails to act, the position would be irreversible to the prejudice of the applicant.

As was also pointed out in that case, by MATHONSI J, the issue of the urgency vis a vis the time taken to bring an application has tended to be blown out of proportion.

In that, case 22 days was said not to be inordinate.

In casu, where the violation is said to be ongoing, I cannot see how the matter loses its urgency simply because a letter was written some 18 days prior.

HH709-15 : ODAR HOUSING DEVELOPMENT CONSORTIUM vs SENSENE INVESTMENTS (PVT) LTD and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and ATTORNEY–GENERAL
Ruled By: MAFUSIRE J

This was an urgent chamber application. At the end of the hearing, I dismissed it with costs on a legal practitioner-and-client scale. I deprecated the conduct of the applicant's legal practitioners.

The purported urgent chamber application was not only bad in many respects, it was incurably bad.

What I was particularly concerned with were the patent falsehoods in the applicant's papers.

Furthermore, there was an apparent disconnection between the order sought, the facts laid out in support thereof, and the allegations in the certificate of urgency.

Here are the details....,.

(c) The Relief Sought

The applicant's draft order was couched thus:

“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:

1. That, the 1st and 2nd Respondents be and are hereby interdicted from interfering with Applicant's operations on the Remainder of the Farm Ordar situate in the district of Salisbury pending determination of an application seeking the setting aside of title transfer under Deed No.2807/2015;

2. That, the 1st Respondent and 2nd Respondents (sic) shall bear the costs of this application on a legal practitioner and client scale.

INTERIM RELIEF GRANTED

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

1. That, the 1st Respondent be and is hereby interdicted from harassing Applicant's members and/or beneficiaries in any way whatsoever in respect of the Remainder of the Farm Odar immediately upon service of this order.”

The background to this case, in summary, and in my own words, as I understood it, and avoiding much of the contentious stuff, was that the applicant was a consortium or joint venture of some 56 members, comprising, among many others, companies, and State enterprises.

The first respondent was a private company fronted by one Phillip Chiyangwa (“Chiyangwa”).

The second respondent represented the Government.

It was said, in 2006, the Government, in terms of two written agreements, allocated to the applicant some 605,8092 hectares of a property known as Ordar Farm (“the property”).

The allocation was so that the consortium could develop, at its own cost, housing units for its members.

One important feature of the joint venture agreement was that the consortium would, through the Government, pay compensation to the former owner of the land at levels pegged by Government.

This former owner was identified in the agreements as the Zimbabwe Tobacco Association (“ZTA”).

Another feature of the agreements was that the parties to the joint venture would establish a partnership whose members contributions to the capital costs and whose entitlement to the individual land units would be in the proportions as set out.

The day to day management of the partnership would be entrusted to a committee of twelve persons appointed by the partners.

In due course, the Government would pass title to the owners of the individual units of land.

The applicant's case before me, again in my own words, and largely staying clear of the hotly contested facts, was that it had kept its side of the agreement.

Among other things, the relevant developmental permits had been put in place. The property had substantially been developed.

Yet, the Government had blatantly reneged on virtually every other undertaking that it had made to the applicant.

Among other things, the Government had surreptitiously surrendered the property to Phillip Chiyangwa, through his company, the first respondent herein.

A week before the application, the Government had, nicodemously, executed a Deed of Grant over the property in favour of Phillip Chiyangwa's company.

The applicant's members were now at Phillip Chiyangwa's mercy.

They were facing constant harassment from him as he relentlessly pursued compensation from them in return for individual title to the individual units occupied by them in terms of the agreements with the Government.

He was busy flighting malicious adverts in the media and making malicious reports to the police against the applicant's Management Committee.

The applicant did not recognise Phillip Chiyangwa or his alleged rights or title to the property.

In separate proceedings before this court, the applicant said it was challenging Government's actions. In particular, the applicant wanted the title to Phillip Chiyangwa's company reversed.

So. the applicant's case before me was that pending determination of the main case, it wanted a temporary interdict.

It was the nature of that temporary interdict that was the bone of contention.

Prima facie, the applicant had made out a case of double-dealing by the Government.

The Government's conduct was put into serious question.

It had acquired the property; it had allocated it to the applicant; the applicant had expended vast sums of money in line with the agreements; the applicant's members anticipated getting title to the individual units of land over which they had taken occupation, or were in the process of doing so; the level of compensation was, or had to be assessed by the Government.

Then, Phillip Chiyangwa zooms from nowhere, brandishing a title deed issued by the same Government - over the same property.

And the same Government was now tossing the applicant's members to Phillip Chiyangwa to whom payment of the compensation had to be made.

Thus, the Government was in the dock. It owed an explanation.

It was its secret execution of the title deed in favour of Phillip Chiyangwa's company that had prompted the applicant to approach the court on an urgent basis.

That, basically, was the applicant's case.

Unfortunately, it was not the one before me.

It was the case pending before this court for determination at another time and by another judge.

The case before me, as summarised in the interim relief sought, was that I should interdict Phillip Chiyangwa's company from “…, harassing Applicant's members and/or beneficiaries in any way whatsoever….,.”

But, there was a problem with that.

From the papers, it was not Phillip Chiyangwa's company that was doing the harm complained of - it was him personally.

But, he was not a party to the application.

Secondly, and more importantly, what really was being sought was an interdict to stop Phillip Chiyangwa from making police reports against the applicant's Management Committee.

There was attached to the founding affidavit, a document headlined “WANTED BY POLICE”.

Below were pictures of six named individuals and six other names without pictures to them. The six pictures included that of the deponent to the founding affidavit, one Benny Tangai Matenga (“Matenga”).

According to the applicant, the pictured and named individuals were the applicant's Management Committee.

The document offered a reward to anyone who reported them to the police.

However, before me, there was no telling whether the document had been from Phillip Chiyangwa himself or the police.

Also attached to the applicant's papers was another document headlined “PUBLIC NOTICE - WARNING MBAVHA KU SOUTHLEA PARK.”

“Mbavha” is Shona for thief or thieves.

In essence, the document informed the public, that, it had come to the attention of the first respondent that the named individuals, and other “unscrupulous” elements, were illegally selling residential Stands to unsuspecting members of the public.

The document said a report had been made to the police and that only the company could legitimately issue title deeds over the property.

In his affidavit, Phillip Chiyangwa said those individuals were the so-called land barons who had illegally sold off pieces of land from his company's property and whom he had reported to the police.

The point is: it is everyone's right to report what they may perceive to be criminal conduct.

The interim order sought was manifestly incompetent.

In substance, it was sought to gag someone from exercising his right or freedom.

Although not really conceding the point, counsel for the applicant seemed to appreciate the difficulty.

She sought to amend the draft order so that the interdict would read something like this:

“…, to restrain the first respondent from interfering with the applicant's operations at the property; or disposing of any Stands thereon and from harassing the applicant's members and from publishing any false statements pending the determination of the main case….,.”

The first respondent opposed the proposed amendment.

Among other things, counsel for the first respondent pointed out, that, it was the applicant, not the respondents, that was selling off units of land.

In my view, the proposed amendment still amounted to the same thing.

The applicant's real case was that it was for Government to answer why it was ditching its members.

But, no relief was being sought against the Government.

Furthermore, other than the two documents aforesaid, and the single allegation in the founding affidavit to the effect, that, such documents had been flighted in the media by the first respondent, there was nothing else said or shown that amounted to harassment.

There was simply a disconnection between what the application said or highlighted in its application, and the relief sought in the draft order.

Such defect was incurable.

That was yet another reason why I refused to deal with the application.

(d) Falsehoods or material facts concealed

The applicant blatantly neglected to take the court into its confidence. Material facts were omitted from the founding papers.

This was fully exposed and exploited by the first respondent - with fatal consequences.

One example stuck out prominently.

As summarised above, the applicant condemned the Government for, as it were “selling” out to Phillip Chiyangwa.

The applicant did not recognise Phillip Chiyangwa or his company.

The applicant's position was that its members would pay compensation to no one else other than the Government.

The applicant's case, particularly that for urgency, was that it was only after the Government had surreptitiously issued title to Phillip Chiyangwa's company, on 8 July 2015, that it had finally become aware of the Government's sinister dealings.

That was what had triggered the urgent chamber application a week later.

To expose the falsehoods, the first respondent produced several correspondence and documents.

These showed, that, as far back as December 2014, the Government had written to the first respondent, inter alia, confirming its resolution to hand over the property back to it and advising that the first respondent would now receive its compensation directly from the applicant.

The first respondent, had, in turn, copied that letter to the applicant some five days later.

In answer to that, the applicant claimed not to have received the correspondence.

However, it admitted that it had received an agreement, dated 15 April 2015, between the Government and the first respondent.

That agreement was to the same effect as the correspondence.

In fact, it was more elaborate.

It explained the background to the devolution of the property from the Zimbabwe Tobacco Association (ZTA) to the first respondent. It explained how the first respondent would develop the property and receive compensation directly from the applicant, and how the Government would issue a Deed of Grant over the property in favour of the first respondent to facilitate the raising of capital for the developments intended, etc.

All that the applicant challenged, in the answering affidavit, was some inconsequential aspect of that agreement.

Its major argument was that the Government was dealing with the first respondent at its own risk because it had an agreement with the applicant over the property.

But, that was not the point.

The point was that such communication or documents had been concealed from me.

Furthermore, if the applicant had become aware of the Government's intention, inter alia, to issue a title deed over the property in favour of the first respondent as far back as, according to the applicant itself, mid-April 2015; how could the matter then suddenly become urgent only in mid-July 2015 when the applicant finally filed the urgent chamber application?

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Law Portal Zimbabwe

Urgency re: Land Reform, Spoliation or Mandament van Spolie Proceedings and Property Disputes

HH40-09 : DODHILL (PVT) LTD and SIMON KEEVIL vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and NYASHA CHIKAFU Ruled By: BERE J

HH19-07 : PONDORO (PVT) LTD and DOUGLAS TAYLOR-FREME vs MENDE NEMAKONDE and THE MAGISTRATE, CHINHOYI Ruled By: HUNGWE J

HH111-12 : DARLINGTON SIREWU vs WAYNE (GALLOP) SWALES AND ANOTHER Ruled By: CHIWESHE JP

HH95-09 : FORRESTER ESTATE P/L vs MUTUMWAPAVI CHARLES RITCHIE VENGESAYI Ruled By: CHATUKUTA J

HH148-09 : BOK ESTATES (PRIVATE) LIMITED vs HUBERT MASARA AND MR MASARA AND MR MAKANDA AND MINISTER OF STATE FOR NATIONAL SECURITY, LANDS, LAND REFORM AND SETTLEMENT Ruled By: BERE J

HH152-10 : MARATHON GROUP OF COMPANIES T/A HARRISON AND HUGHSON (PVT) LTD vs ALSTOM ZIMBABWE (PVT) LTD and MESSENGER OF COURT, HARARE Ruled By: MUTEMA J

HH232-10 : ANDREW RICHARD BRUFORD vs THE ATTORNEY GENERAL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MAGISTRATE JARABINI and OTHERS Ruled By: CHIWESHE JP

HH234-10 : RODGERS MADANGURE vs SHATO LUFEYI and DAYNDALE ENTERPRISES (PRIVATE) LIMITED and MUGEJO MAKONI Ruled By: GOWORA J

HH148-11 : HUDSON JOSTINO ZHANDA and IRENE ZHANDA vs T.J GREAVES (PVT) LTD and T.J. GREAVES and THE HON. HERBERT MURERWA N.O. Ruled By: BHUNU J

HH174-11 : TAFIREYI NYIKADZINO vs JOHN CAMERON ASHER and MINISTER OF LANDS & RURAL RESETTLEMENT and THE DEPUTY SHERIFFF Ruled By: MUTEMA J

HH48-14 : WINSLEY MILITALA N.O. and QV PHARMACIES PRIVATE LIMITED (Under Provisional Judicial Management) vs MUTUAL FINANCE PRIVATE LIMITED and MESSENGER OF COURT and SHINGIRAI USHEWOKUNZE Ruled By: CHIGUMBA J

HH13-15 : MICHAEL BASIKITI vs CHIVERO STANELY MDOKWANI and MINISTER OF LANDS AND RURAL RESETTLEMENT and DEPUTY SHERIFF, MARONDERA Ruled By: NDEWERE J

SC66-18 : PATRICK MAKAVA vs ROSEMARY MUTINGWENDE and MINISTER OF LANDS AND RURAL RESETTLEMENT Ruled By: GWAUNZA DCJ, GOWORA JA and MAKONI JA

HB154-16 : FORBES & THOMPSON (BULAWAYO) (PVT) LTD vs THE ZIMBABWE NATIONAL WATER AUTHORITY and TIMOTHY KADYAMUSUMA Ruled By: MOYO J

HB233-16 : DOUGLAS NDLOVU vs THABO MASUKU Ruled By: TAKUVA J

HB252-16 : ROBERT MAFU and 54 OTHERS vs AGRICULTURAL & RURAL DEVELOPMENT AUTHORITY (ARDA) and TREK PETROLEUM Ruled By: MAKONESE J

HH349-14 : TRUSTEES OF THE S.O.S. CHILDREN'S VILLAGE ASSOCIATION OF ZIMBABWE vs BINDURA UNIVERSITY and MINISTER OF STATE, MASHONALAND CENTRAL and MINISTER OF LANDS and ATTORNEY – GENERAL Ruled By: MAFUSIRE J

HH213-15 : BERNARD DUMBURA vs CHIEF LANDS OFFICER (MASH CENTRAL) (NO) and GEORGE MANYAME Ruled By: NDEWERE J

HMT09-18 : MUBUSO CHINGUNO vs MINISTER OF LANDS, AGRICULTURE AND RURAL RESETTLEMENT and PROVINCIAL LANDS OFFICER MANICALAND and DISTRICT LANDS OFFICER CHIPINGE and COLONEL MAKUYANA Ruled By: MWAYERA J

HH213-18 : BULCHIMEX GmbH IMPORT-EXPORT CHEMIKALIEN und PRODUKTE and TECHNOIMPEX SOFIA BULGARIA JSC vs BULCHIMEX GMBH IMPORT EXPORT CHEMIKALIEN und PRODUKTE PL and SARAH HWINGWIRI and R. JOGI Ruled By: MANGOTA J

HH384-17 : NEWTON DONGO vs BABNIK INVESTMENTS (PVT) LTD and MESSENGER OF COURT Ruled By: CHAREWA J

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

HH634-15 : TETRAD HOLDINGS (PVT) LTD and OTHERS vs NATIONAL SOCIAL SECURITY and OTHERS Ruled By: BHUNU J

HH177-17 : GILBERT JONGA vs NYASHA CHABATA Ruled By: CHATUKUTA J

HH240-18 : KENNETH SCHOFIELD vs FBC BANK LIMITED and THE SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. Ruled By: CHIKOWERO J

HH318-15 : DAVID JACK and OTHERS vs LLOYD MUSHIPE (in his capacity as joint executor of Estate Late Keresia Jack) and OTHERS Ruled By: CHITAKUNYE J

HH417-18 : STUTTAFORDS REMOVALS (PVT) LTD vs ZIMBABWE ASSET MANAGEMENT CORPORATION (PVT) LTD and YCOB INVESTMENTS (PVT) LTD Ruled By: CHIKOWERO J

HH198-10 : BIRCH WILLIAMS vs MARIA KATSANDE and DELITTE PRODUCTS (PRIVATE) LIMITED Ruled By: MAWADZE J

View Appeal HH480-21 : EZEKIEL CHINOINGIRA vs BALWEARE HOLDINGS (PVT) LTD and SABRE SERVICES (PVT) LTD Ruled By: MUCHAWA J

HH974-15 : GUGULETHU HURASHA vs CENTRAL AFRICAN BUILDING SOCIETY and FIRST CAPITAL PLUS and ITAYI MUNYEZA and SHERIFF OF ZIMBABWE and MASTER OF THE HIGH COURT Ruled By: NDEWERE J

HB41-15 : CHITRINS GARAGE (PVT) LTD (In Provisional Liquidation) vs CHYCRY TRADING (PVT) LTD and DUMISANI MUTORERA Ruled By: MOYO J

HH91-09 : SANANGURAI GWARADA vs KEVIN JOHNSON and MR WILLIAMSON and BERNARD CHOTO Ruled By: GOWORA J

HB46-15 : ZENZO NTULIKI vs TIMOTHY SEAN WHITE and OFFICER COMMANDING MATEBELELAND SOUTH PROVINCE and THE SHERIFF OF ZIMBABWE N.O. Ruled By: MOYO J

HH118-18 : PINKSTONE MINING (PVT) LTD and TIMOTHY MATANGI and AFRICAN MILLS & MINERALS (PVT) LTD vs LAFARGE CEMENT ZIMBABWE LTD and MINISTER OF MINES AND MINES DEVELOPMENT Ruled By: ZHOU J

HH11-17 : ANDREW PASCOE vs MINISTRY OF LANDS AND RURAL RESETTLMENT and W. BUNGU and THE ATTORNEY GENERAL N.O. Ruled By: CHITAPI J

HH391-17 : ANDREW PASCOE vs MINISTRY OF LANDS & RURAL RESETTLEMENT and W. BUNGU and THE ATTORNEY GENERAL N.O. Ruled By: FOROMA J

HB58-15 : TRIANIC INVESTMENTS (PVT) LTD and MEYER DRAY vs NQOBILE KHUMALO and FRANCESCA MUFAMBI and OFFICER-IN-CHARGE (FILABUSI) ZIMBABWE REPUBLIC POLICE Ruled By: MOYO J

HMA47-19 : TRIANGLE LIMITED and HIPPO VALLEY ESTATES LIMITED vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION (ZSMIWU) and OTHERS Ruled By: WAMAMBO J

HMA55-19 : GREAT ZIMBABWE UNIVERSITY vs NESBERT MAREVERWA Ruled By: WAMAMBO J

HH636-15 : SALTLAKES HOLDINGS (PVT) LTD and TEMBA MLISWA vs CBZ BANK LIMITED and THE SHERIFF OF ZIMBABWE N.O. Ruled By: CHIGUMBA J

HH125-17 : GRANDWELL HOLDINGS vs ZIMBABWE CONSOLIDATED DIAMOND COMPANY LTD and COMMISSIONER GENERAL, ZIMBABWE REPUBLIC POLICE and MBADA DIAMONDS (PVT) LTD Ruled By: TSANGA J

HH709-15 : ODAR HOUSING DEVELOPMENT CONSORTIUM vs SENSENE INVESTMENTS (PVT) LTD and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and ATTORNEY–GENERAL Ruled By: MAFUSIRE J

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Law Portal
Zimbabwe

HH40-09 : DODHILL (PVT) LTD and SIMON KEEVIL vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and NYASHA CHIKAFU
Ruled By: BERE J

HH19-07 : PONDORO (PVT) LTD and DOUGLAS TAYLOR-FREME vs MENDE NEMAKONDE and THE MAGISTRATE, CHINHOYI
Ruled By: HUNGWE J

HH111-12 : DARLINGTON SIREWU vs WAYNE (GALLOP) SWALES AND ANOTHER
Ruled By: CHIWESHE JP

HH95-09 : FORRESTER ESTATE P/L vs MUTUMWAPAVI CHARLES RITCHIE VENGESAYI
Ruled By: CHATUKUTA J

HH148-09 : BOK ESTATES (PRIVATE) LIMITED vs HUBERT MASARA AND MR MASARA AND MR MAKANDA AND MINISTER OF STATE FOR NATIONAL SECURITY, LANDS, LAND REFORM AND SETTLEMENT
Ruled By: BERE J

HH152-10 : MARATHON GROUP OF COMPANIES T/A HARRISON AND HUGHSON (PVT) LTD vs ALSTOM ZIMBABWE (PVT) LTD and MESSENGER OF COURT, HARARE
Ruled By: MUTEMA J

HH232-10 : ANDREW RICHARD BRUFORD vs THE ATTORNEY GENERAL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MAGISTRATE JARABINI and OTHERS
Ruled By: CHIWESHE JP

HH234-10 : RODGERS MADANGURE vs SHATO LUFEYI and DAYNDALE ENTERPRISES (PRIVATE) LIMITED and MUGEJO MAKONI
Ruled By: GOWORA J

HH148-11 : HUDSON JOSTINO ZHANDA and IRENE ZHANDA vs T.J GREAVES (PVT) LTD and T.J. GREAVES and THE HON. HERBERT MURERWA N.O.
Ruled By: BHUNU J

HH174-11 : TAFIREYI NYIKADZINO vs JOHN CAMERON ASHER and MINISTER OF LANDS & RURAL RESETTLEMENT and THE DEPUTY SHERIFFF
Ruled By: MUTEMA J

HH48-14 : WINSLEY MILITALA N.O. and QV PHARMACIES PRIVATE LIMITED (Under Provisional Judicial Management) vs MUTUAL FINANCE PRIVATE LIMITED and MESSENGER OF COURT and SHINGIRAI USHEWOKUNZE
Ruled By: CHIGUMBA J

HH13-15 : MICHAEL BASIKITI vs CHIVERO STANELY MDOKWANI and MINISTER OF LANDS AND RURAL RESETTLEMENT and DEPUTY SHERIFF, MARONDERA
Ruled By: NDEWERE J

SC66-18 : PATRICK MAKAVA vs ROSEMARY MUTINGWENDE and MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: GWAUNZA DCJ, GOWORA JA and MAKONI JA

HB154-16 : FORBES & THOMPSON (BULAWAYO) (PVT) LTD vs THE ZIMBABWE NATIONAL WATER AUTHORITY and TIMOTHY KADYAMUSUMA
Ruled By: MOYO J

HB233-16 : DOUGLAS NDLOVU vs THABO MASUKU
Ruled By: TAKUVA J

HB252-16 : ROBERT MAFU and 54 OTHERS vs AGRICULTURAL & RURAL DEVELOPMENT AUTHORITY (ARDA) and TREK PETROLEUM
Ruled By: MAKONESE J

HH349-14 : TRUSTEES OF THE S.O.S. CHILDREN'S VILLAGE ASSOCIATION OF ZIMBABWE vs BINDURA UNIVERSITY and MINISTER OF STATE, MASHONALAND CENTRAL and MINISTER OF LANDS and ATTORNEY – GENERAL
Ruled By: MAFUSIRE J

HH213-15 : BERNARD DUMBURA vs CHIEF LANDS OFFICER (MASH CENTRAL) (NO) and GEORGE MANYAME
Ruled By: NDEWERE J

HMT09-18 : MUBUSO CHINGUNO vs MINISTER OF LANDS, AGRICULTURE AND RURAL RESETTLEMENT and PROVINCIAL LANDS OFFICER MANICALAND and DISTRICT LANDS OFFICER CHIPINGE and COLONEL MAKUYANA
Ruled By: MWAYERA J

HH213-18 : BULCHIMEX GmbH IMPORT-EXPORT CHEMIKALIEN und PRODUKTE and TECHNOIMPEX SOFIA BULGARIA JSC vs BULCHIMEX GMBH IMPORT EXPORT CHEMIKALIEN und PRODUKTE PL and SARAH HWINGWIRI and R. JOGI
Ruled By: MANGOTA J

HH384-17 : NEWTON DONGO vs BABNIK INVESTMENTS (PVT) LTD and MESSENGER OF COURT
Ruled By: CHAREWA J

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

HH634-15 : TETRAD HOLDINGS (PVT) LTD and OTHERS vs NATIONAL SOCIAL SECURITY and OTHERS
Ruled By: BHUNU J

HH177-17 : GILBERT JONGA vs NYASHA CHABATA
Ruled By: CHATUKUTA J

HH240-18 : KENNETH SCHOFIELD vs FBC BANK LIMITED and THE SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O.
Ruled By: CHIKOWERO J

HH318-15 : DAVID JACK and OTHERS vs LLOYD MUSHIPE (in his capacity as joint executor of Estate Late Keresia Jack) and OTHERS
Ruled By: CHITAKUNYE J

HH417-18 : STUTTAFORDS REMOVALS (PVT) LTD vs ZIMBABWE ASSET MANAGEMENT CORPORATION (PVT) LTD and YCOB INVESTMENTS (PVT) LTD
Ruled By: CHIKOWERO J

HH198-10 : BIRCH WILLIAMS vs MARIA KATSANDE and DELITTE PRODUCTS (PRIVATE) LIMITED
Ruled By: MAWADZE J

View Appeal
HH480-21 : EZEKIEL CHINOINGIRA vs BALWEARE HOLDINGS (PVT) LTD and SABRE SERVICES (PVT) LTD
Ruled By: MUCHAWA J

HH974-15 : GUGULETHU HURASHA vs CENTRAL AFRICAN BUILDING SOCIETY and FIRST CAPITAL PLUS and ITAYI MUNYEZA and SHERIFF OF ZIMBABWE and MASTER OF THE HIGH COURT
Ruled By: NDEWERE J

HB41-15 : CHITRINS GARAGE (PVT) LTD (In Provisional Liquidation) vs CHYCRY TRADING (PVT) LTD and DUMISANI MUTORERA
Ruled By: MOYO J

HH91-09 : SANANGURAI GWARADA vs KEVIN JOHNSON and MR WILLIAMSON and BERNARD CHOTO
Ruled By: GOWORA J

HB46-15 : ZENZO NTULIKI vs TIMOTHY SEAN WHITE and OFFICER COMMANDING MATEBELELAND SOUTH PROVINCE and THE SHERIFF OF ZIMBABWE N.O.
Ruled By: MOYO J

HH118-18 : PINKSTONE MINING (PVT) LTD and TIMOTHY MATANGI and AFRICAN MILLS & MINERALS (PVT) LTD vs LAFARGE CEMENT ZIMBABWE LTD and MINISTER OF MINES AND MINES DEVELOPMENT
Ruled By: ZHOU J

HH11-17 : ANDREW PASCOE vs MINISTRY OF LANDS AND RURAL RESETTLMENT and W. BUNGU and THE ATTORNEY GENERAL N.O.
Ruled By: CHITAPI J

HH391-17 : ANDREW PASCOE vs MINISTRY OF LANDS & RURAL RESETTLEMENT and W. BUNGU and THE ATTORNEY GENERAL N.O.
Ruled By: FOROMA J

HB58-15 : TRIANIC INVESTMENTS (PVT) LTD and MEYER DRAY vs NQOBILE KHUMALO and FRANCESCA MUFAMBI and OFFICER-IN-CHARGE (FILABUSI) ZIMBABWE REPUBLIC POLICE
Ruled By: MOYO J

HMA47-19 : TRIANGLE LIMITED and HIPPO VALLEY ESTATES LIMITED vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION (ZSMIWU) and OTHERS
Ruled By: WAMAMBO J

HMA55-19 : GREAT ZIMBABWE UNIVERSITY vs NESBERT MAREVERWA
Ruled By: WAMAMBO J

HH636-15 : SALTLAKES HOLDINGS (PVT) LTD and TEMBA MLISWA vs CBZ BANK LIMITED and THE SHERIFF OF ZIMBABWE N.O.
Ruled By: CHIGUMBA J

HH125-17 : GRANDWELL HOLDINGS vs ZIMBABWE CONSOLIDATED DIAMOND COMPANY LTD and COMMISSIONER GENERAL, ZIMBABWE REPUBLIC POLICE and MBADA DIAMONDS (PVT) LTD
Ruled By: TSANGA J

HH709-15 : ODAR HOUSING DEVELOPMENT CONSORTIUM vs SENSENE INVESTMENTS (PVT) LTD and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and ATTORNEY–GENERAL
Ruled By: MAFUSIRE J