Urgency re: Forum Shopping, Contemptuous, Mala Fide, Ill-Advised, Frivolous and Abuse of Court Process Proceedings

HH57-12 : CENTRA (PVT) LTD vs PRALENE MOYAS and DEPUTY SHERIFF, HARARE
Ruled By: BERE J

This matter makes bad reading and its background can be summarised as follows:-After the arbitrator had considered the submissions made by both the applicant and the first respondent, the Arbitrator determined the matter in favour of the first respondent and ordered the applicant to pay the respondent a total sum ...

This matter makes bad reading and its background can be summarised as follows:-

After the arbitrator had considered the submissions made by both the applicant and the first respondent, the Arbitrator determined the matter in favour of the first respondent and ordered the applicant to pay the respondent a total sum of $10,060 (ten thousand and sixty dollars) for having unfairly terminated the latter's employment.

This determination was made on 17 November 2011.

The first respondent subsequently applied for the registration of the arbitral award in this Court to pave way for execution.

The applicant was served with the application for registration, and, when the application was considered there was no notice of opposition filed leading to the registration of the award in question which then became an order of this court.

On 15 December 2011, the applicant filed an appeal against the decision of the arbitrator. Simultaneously, the applicant filed an urgent chamber application to stay execution pending the determination of the appeal filed in the Labour Court.

When the urgent chamber application was served on the first respondent she filed her notice of opposition.

The urgent application, under HC723/12, was placed before my sister Judge, MWAYERA J, who, after perusing the papers, concluded the application was not urgent. She endorsed on the file “Not urgent” and returned the file to the Registrar's office.

The decision by MWAYERA J was made on 25 January 2012.

Two days after my sister Judge had declined to entertain the matter on an urgent basis, the applicant's counsel filed a notice of withdrawal of the matter.

To be precise, this was done on 27 January 2012.

On the same date, the same legal practitioners filed virtually the same urgent application seeking substantially the same remedy and the matter was placed before me under case No. HC981/12 for consideration.

Therein lies the problem.

When this matter was placed before me the founding affidavit was completely silent on the true history of this case.

When given the first opportunity to present the applicant's case to the Court, the applicant's counsel chose to be mum about the background of his client's case. Counsel's submissions were brief and pretended as if this case was being presented to Court for the first time.

The true position of this case only came to light when the first respondent, who was acting in person, presented her opposition to the relief sought by the applicant.

It is this total absence of candidness or deliberate act of non-disclosure of material information by the applicant's counsel that I wish to deal with first.

It is the accepted position that Courts detaste or frown on those litigants or legal practitioners who desire to derive the sympathy of the Court by deliberately withholding vital information which has a bearing on the very matter that the Court is called upon to determine.

My brother Judge, NDOU J, after considering a number of decisions from other jurisdictions, summed up the correct legal position on this issue when he stated as follows:

“The Courts should, in my view, discourage urgent applications, whether exparte or not, which are characterised by material non-disclosures, mala fides, or dishonesty.

Depending on the circumstances of the case, the Court may make adverse or punitive orders as a seal of disapproval of mala fides or dishonesty on the part of litigants.

In this case, the applicant attempted to mislead the Court by not only withholding material information but by also making untruthful statements in the founding affidavit. The applicant's non disclosure relates to the question of urgency. In the circumstances, I find that the application is not urgent and dismiss the application on that basis.”

I would not agree more with the ratio well laid down by the learned Judge.

I would extend the position further and say the need to disclose material information should in fact be extended to cover any matter that is brought before the Court - be it on urgent basis or not.

Courts have no capacity to reward dishonesty on the part of litigants.

In the instant case, I am extremely concerned that the applicant's counsel deliberately chose not to disclose to the Court that his client's case had been in and out of the same Court and that another Judge had declined to entertain it on an urgent basis.

The legal practitioner then chose to embark on forum shopping for Judges.

This conduct is most reprehensible and does not add value to the practice of law.

The issue of urgency can never be pinned on or founded upon incomplete disclosure. My view is that a matter ceases to be urgent if it is founded upon deliberate misrepresentation or the holding back of vital information.

The accepted procedure is that if one is not satisfied by the position taken by a particular Judge before he has been afforded an opportunity to address the court, such a lawyer must seek audience with the Judge concerned and ask to be given a chance to be heard after which he can ask for the reasons for the position taken before considering other options open to him, including, but not limited to, appealing against the decision.

Forum shopping for other Judges does not fit into the equation.

The point must be emphasized that legal practitioners are officers of the Court. They have a concomitant duty to both the Court and to their clients.

The level of dishonesty exhibited in this case is frighteningly high and I feel more inclined to dismiss this application without even bothering to consider the matter on the merits.

Accordingly, the application is dismissed with costs.

HH99-12 : SHUNGU ENGINEERING (PVT) LTD vs SIMBARASHE SANGONDIMAMBO & ORS
Ruled By: MATHONSI J

This is an urgent application in which the applicant seeks a provisional order in the following terms:-“(A) 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 the execution of the Arbitral Award in case ...

This is an urgent application in which the applicant seeks a provisional order in the following terms:-

“(A) TERMS OF FINAL ORDER SOUGHT

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

1. That the execution of the Arbitral Award in case number HC6251/11 by the respondents be and is hereby permanently stayed.

2. That there shall be no order as to costs of this application.

(B) INTERIM RELIEF GRANTED

Pending confirmation or discharge of the provisional order the applicant is granted the following relief:

(a) That the execution of the Arbitral Award registered in case number HC6251/11 be and is hereby stayed.

(b) In the event of this application being heard after execution has been carried out, that the applicant be restored to possession of its movable property.”

On 24 May 2011, labour arbitrator, L.M. Gabilo, handed down an arbitral award in an arbitration involving the parties in terms of which he directed the applicant to pay the respondents a total sum of US$24,103 as unpaid salaries and cash in lieu of notice.

It does not appear, from the papers, as if the applicant did anything about the award until recently.

The arbitral award was registered with this Court following an application made by the respondents in terms of section 98(14) of the Labour Act [Chapter 28:01] in case number HC6251/11 but not before that application was served upon the applicant on 4 July 2011.

According to the Deputy Sheriff's return of service, the application was served on an employee of the applicant, Mrs Mudyawabikwa, who is a responsible person.

The applicant did not see the wisdom of opposing the application and now claims that the employee did not bring it to the attention of management.

I find it incredible that Mrs Mudyawabikwa could have appropriated the application for herself - especially as no affidavit has been elicited from her explaining how this came about. In fact, I reject the argument that the applicant only got to know of the arbitral award at the time of attachment.

Looking at L.M. Gabilo's award, the arbitration costs were to be borne by the parties at the ratio of 15% by the respondents and 85% by the applicant. It is highly unlikely that the arbitrator would have failed to send the award to the applicant when the bulk of his fees were to come from the applicant.

I therefore proceed from the premise, that, aware of both the award and its registration as an order of this Court, the applicant did nothing about the matter until removal of its property on 12 January 2012.

This is particularly so given that the applicant did not act even when served with the notice of seizure and attachment on 6 September 2011 and with the notice of removal on 5 January 2012.

Following registration of the award, a writ of execution was issued and the applicant's property attached and removed for sale in execution on 13 January 2012. It is that removal which jolted the applicant into action, as, prior to that, it had blissfully allowed the matter to remain unattended.

The applicant promptly filed an urgent application in this Court, in case no. HC289/12, seeking an order for a stay of execution pending the hearing of a review application which it only filed in the Labour Court on 13 January 2012 when its property was removed.

The urgent application, in HC289/12, was placed before my brother MUTEMA J who refused it on 13 January 2012 on the basis that he lacked jurisdiction as section 89(6) of the Labour Act [Chapter 28:01] ousted the jurisdiction of this Court, the determination of such application falling within the exclusive purview of the Labour Court as well as the fact that no urgency was demonstrated by the applicant - it having waited until the eleventh hour to bring the application.

It would appear that after failing to get relief from this Court, the applicant tried its luck at the Labour Court but it met with no joy there either as Senior President, G. Mhuri, of that Court, threw out the application on 15 February 2012 “for want of jurisdiction”.

The applicant then returned to this Court, again, on an urgent basis, seeking a stay of execution pending the determination of its review application in the Labour Court.

Significantly, the applicant filed almost the same application rejected by MUTEMA J and did not attach the review application in question.

More importantly, the applicant did not disclose the fact that it had been to this Court before and had had the same application dismissed. Neither did it disclose that its property had been advertised by the Deputy Sheriff and part of it sold by public auction on 4 February 2012.

If I had not directed service of the application upon the respondents, I would have determined the matter without knowledge of the existence of a similar application dismissed by this Court or indeed the sale of the property sought to be protected.

The utmost good faith must be shown by litigants making applications of this nature. They should place all material facts before the Court to enable the Court to make an informed decision: see N & R Agencies (Pvt) Ltd & Anor v Ndlovu & Anor HB198-11 and Graspeak Investments v Delta Corporation (Pvt) Ltd 2001 (2) ZLR 551 (H)…, where NDOU J stated, as he quoted with approval, HERBESTEIN and VAN WINSEN, The Civil Practice of the Supreme Courts of South Africa;

“The utmost good faith must be observed by litigants making ex parte applications in placing material facts before the Court, so much so that if an order has been made upon an exparte application and it appears that material facts have been kept back, whether wilfully or mala fide or negligently which might have influenced the decision of the Court whether to make the order or not the Court has a discretion to set the order aside with costs on the grounds of non-disclosure.”

At p555C, the learned judge went on to say:-

“The Courts should, in my view, discourage urgent applications, whether ex parte or not, which are characterised by material non-disclosures, mala fides or dishonesty. Depending on circumstances of the case, the Court may make adverse or punitive orders as a seal of disapproval of mala fides or dishonesty on the part of litigants.”

I find myself in total agreement with the sentiments expressed by the learned judge.

Here is a litigant that had approached this court a few weeks earlier and had its case dismissed. Its property has already been sold in execution; it was sold on 4 February 2012. The same litigant returns to this Court on virtually the same facts but does not disclose the history of the matter.

In my view, this is a very material non-disclosure and it borders on dishonesty. The courts must always cast a dim view on litigants who pull the wool over its eyes.

HB102-09 : ERMANUS GERHADUS GROVE vs MARTIN MAKONESE and MRS MARWISA and MR CHIGARIRO
Ruled By: KAMOCHA J

What is clear is that he wanted to try his luck by “judge shopping”. This court has repeatedly emphasized the need for applicants in urgent matters to be always candid and reveal material facts to the court. The applicant in casu was not candid with the court. There is, in casu, no truth in the ...

HH61-10 : WILLIAM WACHENUKA vs JOHN STRONG (PRIVATE) LIMITED and TOBS STRONG (PRIVATE) LIMITED and MINISTRY OF LANDS AGRICULTURE AND RESETTLEMENT
Ruled By: BERE J

After listening to the submissions made by both legal practitioners what has exercised my mind is whether or not the matter is urgent. What is apparent to me is that the parties have been in an out of this court on numerous occasions with allegations and counter-allegations being thrown at each other as the parties stampeded ...

HH57-10 : AFRICAN CONSOLIDATED RESOURCES PLC and OTHERS vs MINISTER OF MINES AND MINING DEVELOPMENT and SECRETARY FOR MINES AND MINING DEVELOPMENT and CHIEF MINING COMMISSIONER
Ruled By: UCHENA J

The first applicant is a public company listed on the London Stock Exchange. The second to fifth applicants (Dashaloo Investments (Pvt) Ltd, Possession Investments (Pvt) Ltd, Heavy Stuff Investments (Pvt) Ltd, Olebile Investments (Pvt) Ltd) are Zimbabwean companies duly incorporated in terms of the laws of Zimbabwe. They are wholly owned subsidiaries of the first applicant.

The second to fifth applicants are holders of registered mining claims in the Chiadzwa diamond mining area of Manicaland. Their claims have been subjected to cancellations and litigation over such cancellations. The claims were declared valid by HUNGWE J in HC6411/07.

The respondents appealed against that decision to the Supreme Court, where the appeal is still pending.

The first respondent is the Minister of Mines and Mining Development. The second respondent is the Permanent Secretary in the Ministry of Mines and Mining Development. The third respondent is the Chief Mining Commissioner in the Ministry of Mines and Mining Development.

The second respondent gave notice to the second to fifth applicants of his intention to cancel their claims with effect from 10 March 2010. The notice is dated 28 January 2010. The cancellations are premised on the applicants' claims having been registered over a reserved area in contravention of the Mines and Minerals Act [Chapter 21:05] the (“Mines Act”). He advised the applicants that the area was reserved against pegging and prospecting by Reservation 1558, dated 19 February 2004.

The applicants filed an urgent application on 5 March 2010, seeking a provisional order interdicting the respondent's from canceling their claims on 10 March 2010.

The respondents opposed the application and raised the following preliminary issues:

1. That the application was not urgent.

2. That the applicants had not exhausted domestic remedies...,.

Urgency

Counsel for the respondents submitted that the applicants' application is not urgent because the applicants', who where notified of the cancellations on 28 January 2010, waited until the eleventh hour before filing their application.

He further submitted that the applicants have not exhausted domestic remedies provided in section 50(2) of the Mines and Minerals Act [Chapter 21:05].

He further submitted, that, the applicants appealed to the Minister, on 9 March 2010, therefore that process must be completed before this court can intervene.

Counsel for the applicants submitted that the delay was caused by the applicants' attempt to persuade the second respondent to withdraw the cancellation. The applicants had previously succeeded in getting the respondents to withdraw the 8 December 2009 cancellations. They believed communication with the second respondent would achieve similar results.

She further submitted that the applicants had applied to this court against the 8 December 2009 cancellations, and appealed to the Minister. Those proceedings were rendered academic by the second respondents' withdrawal of the 8 December cancellations.

The applicants had incurred heavy litigation expenses and wanted to avoid the same in respect of the 28 January cancellations.

The second to fifth applicants received the 8 December 2009 notices to cancel from the Acting Mining Commissioner Manicaland. They challenged the cancellations, by pointing out that there was no Mining Commissioner for Manicaland. That led to the withdrawal of that cancellation by the second respondent in this case.

In his letter of 28 January 2010, the second respondent advised the applicants that he had, in terms of section 341 of the Mines and Minerals Act, taken over the functions of the Mining Commissioners, Harare, Masvingo and Manicaland, and was withdrawing the 8 December 2009 cancellations to avoid unnecessary litigation.

The second respondent then gave the 28 January 2010 notices of the cancellation of the second to fifth applicants' claims. He again advised them that he had, in terms of section 341 of the Mines and Minerals Act, assumed the functions of the aforesaid Commissioners.

The second respondent's conduct was clearly aimed at correcting the error pointed out by the applicants, and to personally repeat the same act with resolve. The fact that the withdrawal, and the subsequent cancellations, took place on the same day must have been of significance to the applicants.

The applicants attached to their application the letters they wrote to and received from the second respondent before they filed this application. They attached the second respondents' letters dated, 28 January 2010, 12, 19 and 23 February 2010, and their letters to the second respondent dated 1, 11, 16, 23 and 24 February 2010.

The correspondence reveals the applicants' attempt to settle the dispute without litigation and the second respondent's insistence that the cancellations were not going to be reversed.

It is clear that the applicants genuinely wanted to avoid litigation, and hoped the second respondent could be persuaded to withdraw the cancellation. It is also equally clear, from the second respondent's letters, that the applicants' attempts were not going to be acceded to. This must have warned the applicants that their delay in applying to the courts or appealing to the Minister, may, in the circumstances, be to their own disadvantage.

I am therefore satisfied that the applicants' explanation for the delay is not satisfactory.

Counsel for the respondents made forceful submissions on the effect of the applicants' coming to this court before exhausting domestic remedies.

He submitted that section 50(2) of the Mines and Minerals Act provides for an appeal to the Minister.

The second respondent, in his notices of cancellation, drew the applicants' attention to their right to appeal. He submitted that the applicants had not appealed to the Minister when they filed this application. He further submitted that this was a deliberate abstention from exhausting domestic remedies. He further submitted that the applicants have now appealed to the Minister. They did so on 9 March 2010, a day before the date of cancellation, and four days after they filed this application.

Counsel for the applicants submitted that the applicants had no hope of a fair hearing before the Minister. She referred to HUNGWE J's comments in HC6411/07 where the applicants' chance for a fair hearing by the Minister was compared to that of “an ice block against hell fire.”

She pointed out the applicants' allegations of the Minister's alleged involvement with companies which have been granted rights to mine diamonds from the disputed claims.

If these were the true facts they would have been a fair response to counsel for the respondents submissions.

An analysis of the applicants' appeal to the Minister is revealing.

It seeks the Minister of Mines and Mining Development's recusal from considering the applicant's appeal. This means, if that request is acceded to, the Minister, who is alleged to be biased will not decide the applicant's appeal. If he considers the appeal against them without good grounds for refusing to recuse himself the applicants can take his decision on review.

The applicants, therefore, have a fair chance of their appeal being properly considered on the merits.

The appeal was submitted a day before the date of cancellation, and four days after this application was filed.

The filling of the appeal places this court in competition with the Minister on the determination of the dispute between the parties. When such a situation arises, the court must defer to the determination of the issues through domestic remedies.

That is consistent with the courts' clear position on the need for a party to first exhaust domestic remedies before seeking a remedy before this court.

In the case of Girjac Services (Private) Limited v Mudzingwa 1999 (1) ZLR 243 (SC)…, GUBBAY CJ, commenting on the need to exhaust domestic remedies said:

“In its opposing affidavit, the appellant specifically raised the complaint that the respondent had adopted the wrong procedure in applying to the High Court for relief rather than following the domestic procedure outlined in the Code of Conduct. In his answering affidavit, the respondent significantly proffered no explanation for taking the route he did. He appears to have been of the view that both options were open; the choice being un-inhibited.

The learned judge a quo did not deal with this issue although it was argued and the relevant authorities referred to him. He ought to have done so.

In Tutani v Minister of Labour & Ors 1987 (2) ZLR 88 (H) at 95D, MTAMBANENGWE J observed that where domestic remedies are capable of providing effective redress in respect of the complaint, and, secondly, where the unlawfulness alleged has not been undermined by the domestic remedies themselves, a litigant should exhaust his domestic remedies before approaching the courts unless there are good reasons for not doing so.

The same approach was applied by SMITH J in Musandu v Chairperson Cresta Lodge Disciplinary and Grievance Committee HH115-94 (not reported); and was referred to with approval by MALABA J in Moyo v Forestry Commission 1996 (1) ZLR 173 (H) at 191 D-192B.

I respectfully endorse it.”

In this case, the applicants did not only come to court before exhausting domestic remedies; they are asking this court to determine the legality of the respondents' handling of the cancellations when an appeal is pending before the first respondent or another Minister who will decide the case if the first respondent accedes to the applicants' request for his recusal.

The later should, in terms of the case law referred to above, and section 7 of the Administrative Justice Act [Chapter 10:28] (hereinafter referred to as the AJ Act), be sought first.

The simultaneous filing of an application before this court, and an appeal before the first respondent, or his substitute, as already said, places this court in competition with the determiner of the domestic remedy.

When that happens, this court must defer to domestic proceedings and allow them to be exhausted before it can hear the dispute between the parties.

The pendency of the domestic remedy would, in my view, take away urgency from an application to this court.

Section 7 of the Administrative Justice Act [Chapter 10:28] provides as follows:

“Without limitation to its discretion, the High Court may decline to entertain an application made under section four, 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.”

My understanding of section 7 of the of the Administrative Justice Act is that this court can decline to hear an application, based on an alleged failure to comply with the provisions of the Administrative Justice Act, if it is of the view that the applicant has other legal remedies through which he can obtain the remedy sought before it and it considers that such remedy should first be exhausted.

The court can exercise its discretion, but, it should not do so in a manner that terminates pending domestic remedies unless there are compelling reasons for it to do so.

The intention of the legislature, in providing domestic remedies, must be respected by the courts, and the officials charged with the authority, to determine domestic appeals or reviews must be allowed to do their work before this court intervenes.

In my view, this court should only intervene in cases where it is obvious that domestic remedies will not do justice in the case before it.

This approach is consistent with the principle of judicial deference, commented on, in the South African cases of Bato Star Fishing (Pty) Limited v Minister of Environmental Affairs 2004 (4) SA 490…, and Ekuphuleni Metropolitan Municipality v Dada NO & Ors 2009 (4) SA 463 (SCA)…, where HURT AJA commented on judicial deference as follows:

“In Logbro Properties CC v Bedderson NO & Ors 2003 (2) SA 460 (SCA) (2003) 1 All SA 424, para 21, CAMERON JA referred, in the context of a necessity for 'judicial deference', with approval to the following passage from an article by CORA HOEXTER entitled The Future of Judicial Review in South African Administrative Law (2000) 117 SALJ 484, at 501-2, which is to the following effect:

'…, the sort of deference we should be aspiring to consists of a judicial willingness to appreciate the legitimate and constitutionally-ordained province of administrative agencies; to admit the expertise of these agencies in policy-laden or polycentric issues; to accord their interpretation of fact and law due respect; and to be sensitive in general to the interests legitimately pursued by administrative bodies and the practical and financial constraints under which they operate. This type of deference is perfectly consistent with a concern for individual rights and a refusal to tolerate maladministration.'

This passage was also referred to with approval and the theme taken up by SCHUTZ JA in Minister of Environmental Affairs and Tourism & Ors v Phambili Fisheries (Pty) Limited; Minister of Environmental Affairs and Tourism & Ors v Bato Star Fishing (Pty) Limited 2003 (6) SA 407 (SCA) ([2003] 2 All SA 616), paras 52 and 53, where, after quoting the passage set out above, the learned judge said:

I agree with what is said by HOEXTER (op cit at 185):

'The important thing is that judges should not use the opportunity of scrutiny to prefer their own views as to the correctness of the decision, and thus obliterate the distinction between review and appeal'.

(53) Judicial deference is particularly appropriate where the subject-matter of an administrative action is very technical or of a kind in which a court has no particular proficiency. We cannot even pretend to have the skills and access to knowledge that is available to the Chief Director. It is not our task to better his allocations, unless we conclude that his decision cannot be sustained on rational grounds.”

In the present case, the urgency of the application is diluted by the applicants' conduct.

They appealed to the Minister a day before the date of cancellation when this application was already pending before this court.

They knew, from 28 January 2010, that they had a right to appeal to the Minister. They avoided that option preferring to communicate with the Minister's subordinate, whose letters show that he was not prepared to budge. They then applied to this court, before appealing to the Minister, well knowing that they would also appeal to the Minister. They appeared before this court on 9 January 2010 when the case was postponed, to 12 March 2010, with the respondents' counsel undertaking to ensure that the applicants' claims would not be cancelled before the determination of this application.

They therefore resorted to applying to this court simultaneously with an appeal to the Minister.

This tends to show that the applicants deliberately delayed appealing to the Minister so that they could apply to this court on the pretext that they did not expect justice from the Minister, when they knew that they would appeal to the Minister and ask him to recuse himself so that their appeal would be heard by an impartial acting Minister.

No explanation was given as to why the applicants did not appeal to the Minister in the manner they did before 9 March 2010.

The delay in approaching this court, or appealing to the Minister, was, therefore, a result of a deliberate abstention from acting when the urgency arose on 28 January 2010.

In the case of Kuvarega v Registrar General & Anor 1998 (1) ZLR 188…, CHATIKOBO J said:

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

In the circumstances, it cannot be said that the application is urgent as I have to defer to the appeal under domestic remedies. I therefore hold that the applicants' application is not urgent.

HH192-10 : AEPROMM RESOURCES (PVT) LTD vs SAMUEL MAZOWE and PATTERSON TIMBA and STEVENSON TIMBA and MAGGIE DITIMA and TONDESAI KAPONDO
Ruled By: MTSHIYA J

On 20 August 2010, I dismissed this application with costs. The applicant has now placed before me a written request for the full reasons behind my dismissal of its application. The applicant says it needs the reasons because it intends to file an appeal in the Supreme Court urgently.

I give here below the reasons for my ruling.

On 12 August 2010, the applicant filed an urgent application in this court seeking the following interim relief:-

“Pending the finalization of the applicant is granted the following relief:

1. The 'Notice of Extraordinary General Meeting, issued by the first respondent, for a meeting to be held on 21 August 2010, is hereby declared null and void.

2. The respondents are hereby interdicted from purporting to act as Directors of the applicant and interfering with and/disrupting the applicant's management.

3. The respondents shall pay costs of this application.

4. That leave is granted to the applicant's legal practitioners to serve this order upon the respondents.”

The application was heard and dismissed for lack of urgency by HLATSHWAYO J on 19 August 2010. The result slip in the record confirms as follows:-

“Matter dismissed as not urgent.”

On 19 August 2010, the day HLATSHWAYO J made his ruling, the applicant noted an appeal in the Supreme Court. The Notice of Appeal states that the appeal is against the whole of the judgment of HLATSHWAYO J and grounds of appeal are then given as follows:-

“1. The learned Judge erred in finding that the applicant's application, HC5500/10, was not urgent on the basis that there was an inordinate delay between the time the issue of applicant's contested Directorship came to the attention of the applicant's deponent in HC5500/10 and the time of filing of HC5500/10.

In so doing, the learned Judge failed to appreciate the fact that the issue that has instigated urgency in HC5500/10 is the serving of notices of an Extraordinary General Meeting of the applicant, proposed by the respondents purportedly in their capacity as applicant's Directors.

The fact of speculative knowledge about the improper claim to Directorship by the respondents could not ground urgency in that that would essentially amount to creating urgency where none exists.

Prior to the issuance of the notice to attend an Extraordinary General Meeting therefore, the dispute as to Directorship could be resolved by way of an ordinary court application.

Upon the service of the notice to attend the Extraordinary General Meeting however, scheduled for 21 August 2010, the need arose to interdict the respondents from acting in a manner inconsistent with the position that their status as directors is disputed. Such an interdiction could not be dealt with by way of an ordinary court application. It could only be resolved by way of an urgent chamber application; as such, the learned Judge erred in finding that the matter was not urgent.

2. The learned Judge also erred in finding that the averment contained in the Supporting Affidavit of Ann Rushwaya, was evidence of the fact that as far back as the 22 August of June the applicant was aware of its purported change of Directorship. This is so because a speculative suspicion that party has done something unlawful does not ground urgency but the very act of actuating that illegal action, eg. by calling for an Extraordinary General Meeting, does ground such urgency; thus, despite the existence of that speculative suspicion in June 2010, the basis of urgency has only arisen upon the serving of the notices to attend an Extraordinary General Meeting.”

The judgment appealed against does not form part of the papers before me.

On 20 August 2010, the applicant filed this application seeking the following interim relief:-

“Pending the finalization of the applicant's appeal in the Supreme Court (SC197/10), the applicant is granted the following relief:

1. The respondents be and are hereby interdicted from holding the purported Extraordinary General Meeting of the applicant, scheduled for the 21st of August 2010.

2. The respondents shall pay the costs of this application.”

Clearly, the above is the same relief that was prayed for on 12 August 2010.

I heard the application on the same day it was filed, and, indeed, after hearing argument from both counsel I dismissed the application with costs.

The certificate of urgency in support of the application indicated that since the dismissal of the earlier application the issue of an interdict remained alive because the Extraordinary General Meeting proposed by the respondents was likely to be held on 21 August 2010. Furthermore, the certificate went on, the dismissed matter (HC5500/10) remained res litigiosa on account of the appeal noted in the Supreme Court. Accordingly, it was stated, if an interdict was not granted, the holding of the meeting on 21 August 2010, by the respondents, would stand to ignore the fact that there was pending litigation on the issue. The applicant therefore believed there was need for the matter to be dealt with through an urgent application.

I must hasten to mention that a few hours before the hearing of the application I had asked for heads of argument on whether or not leave to appeal was required in respect of the appeal filed in the Supreme Court on 19 August 2010.

I am indebted to counsel for the applicant who quickly filed heads of argument which I found useful.

In his heads of argument, counsel for the applicant drew my attention to section 43(2)(d)(ii) of the High Court Act [Chapter 7:06] which provides as follows:

“(2) No appeal shall lie -

(a)…,.

(b)…,.

(c)…,.

(i)…,.

(ii)…,.

(d) From an interlocutory order or interlocutory judgment made or given by a judge of the High Court, without the leave of that judge, or, if that has been refused, without the leave of a judge of the Supreme Court, except in the following cases -

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

(ii) Where an interdict is granted or refused;

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

Clearly, the relief sought is that of an interdict referred to in exception (ii) above.

Counsel for the applicant also advised, that, upon dismissing the application, the judge had intimated that his decision was final and definitive and did not therefore require leave of the judge for purposes of appeal.

I concur: see Mwatsaka v ICL Zimbabwe 1998 (1) ZLR 1 (H).

Counsel for the respondents, although intimating that leave should have been formally sought, was, however, of the view that since the appeal was already before the Supreme Court, the applicant should have applied to that court for an urgent hearing. He said the applicant could have done so in terms of Rule 58 of the Supreme Court Rules which provides as follows:-

“In any matter not dealt with in these Rules the practice and procedure of the Supreme Court shall, subject to any direction to the contrary by the Court or a Judge, follow, as near as may be, the practice and procedure of the High Court.”

He said the above Rule opened a window for urgent applications to be brought before the Supreme Court and that many cases had been handled through that window.

Without denying the fact that indeed many cases had reached the Supreme Court through that window, counsel for the applicant, relying on Lloyd Guwa (2) Hazel Claris Kumire v Willoughby Investments (Pvt) Ltd SC31-09, said, unlike the High Court, the Supreme Court had no inherent jurisdiction. He said it was a creature of statute whose powers are clearly defined in the Supreme Court Act [Chapter 7:13]. That being the case, there was no opening for urgent applications.

Counsel for the respondents was of the view that the route taken by the applicant was simply a way of bringing back the same refused application to the same court. This was so because, if granted, the effect of the relief sought meant a reversal of the earlier decision of this court.

I agree.

Indeed, if the interdict is granted, the effect is to reverse the earlier ruling of this court. As can be seen, the relief sought is the same as the one earlier prayed for.

However, counsel for the applicant's argument was that the court's duty was merely to determine whether or not, given the fact that an appeal now lies in a superior court, it could be proper for the respondents to proceed with their proposed meeting on 21 August 2010. In support of that stance, the applicant, in its founding affidavit, and in line with the certificate of urgency, states, in part:

“6. Pending the determination of that appeal, therefore, the issue of the application for the interdiction of the respondents from holding the proposed meeting of the 21st August 2010 remains a matter that is subject of pending litigation.

7. The applicant has a clear right to have that issue determined before any action as to holding the proposed meeting can take place. This is in line with protecting its right to proper recourse before the law.

8. To allow the meeting to proceed, therefore, would amount to the sanctioning of the dealing in and with issues that are res litigiosa. Such a situation would inevitably cause the applicant irreparable harm as the proposed meeting seeks to make various resolutions in respect of the applicant, which resolutions are intended, thereafter, to be put into effect. Such a situation must be stopped by this honourable court.

9. The risk of this irreparable harm is very imminent as the proposed meeting is scheduled for the 21st of August 2010 (the day after tomorrow). It is on this basis that the applicant prays for an order interdicting the respondents from holding the proposed Extraordinary General Meeting on the 21st of August 2010, pending finalization of the applicant's appeal in HC5500/10.”

The details relating to the business of the meeting to be held on 21 August 2010 were not given.

Whilst I am of the view that it is possible for the Supreme Court to be moved to grant an urgent hearing to an appeal already before it, my assessment in this application is that I am being asked to review the earlier decision of my brother HLATSHWAYO J.

That cannot be and is not permissible.

That being the case, there would therefore, in the main, be no compelling reason for me to have the earlier judgment placed before me. I simply do not have the power to review that judgment.

HH333-13 : GIVEMORE SAMBADZI and SALATIEL NHUBU vs REGISTRAR OF DEEDS
Ruled By: BHUNU J

The facts that gave rise to this dispute are as follows:

In January 2010, the first applicant, Givemore Sambadzi, purchased certain immovable property known as Stand 2048 Chadcombe Township of Stand 1257 Chadcombe Township from one Charity Nyarai Mupaya and a Deed of Transfer was made in his favour.

In November 2010, the first applicant then entered into an agreement of sale with the second applicant, Salatiel Nhubu, regarding this property.

However, he could not effect transfer to the second applicant as by then XN caveats had been placed on the property by one McDonald Freeman Tsambwa, who had also instituted proceedings with this court on the basis that the said property belonged to his two minor children Chido Jacquline Tsambwa, born 24 July 1998, and Chikomborero Ronald Ralph Tsambwa, born 23 August 2002, and had in fact been fraudulently sold by his wife Charity Nyarai Mupaya.

McDonald Tsambwa filed his principal application in Case No. HC461/11, in January 2011, to which the first applicant in this case filed his notice of opposition which was answered by McDonald Tsambwa.

Heads of argument were filed by the first applicant in that matter (as respondent) but it appears, thereafter, despite correspondence, McDonald Tsambwa did nothing to pursue his matter to finality.

It was on this basis that a Chamber Application was brought dismissing his case for want of prosecution.

This dismissal was the basis upon which the applicants in this case brought an unopposed application, through their lawyer, to get the respondent in this present matter, the Registrar of Deeds, to effect transfer to the second applicant.

In response to various correspondence written by the applicants lawyers, Messrs P Chiutsi, seeking transfer, the respondent wrote, on 7 March 2012, stating that certain discrepancies had been noted in the sale of the property in question to the first applicant which warranted cancellation of the Deed of Transfer 1559/2010.

These were to the effect that transfer from minors, Chido Jacquline Tsambwa and Chikomborero Ronald Ralph Tsambwa, required the Master's consent and that this had not been obtained.

Moreover, Charity Mupaya, who had appointed Wesley Thabang Khanda as conveyancer, did not appear anywhere in the previous Deed DT.8339/2007.

He also noted that the extending Deed made reference to one Lloyd Mudiwa Kativu instead of the two children.

Furthermore, the Zimra certificate was for transfer Kativu to Tsambwa which meant no capital gains certificate was issued for the transfer.

A discrepancy in the rates certificate was also observed.

The Deeds office had indicated that the matter was under investigation as the transaction appeared not to have been properly done.

The applicants, through their lawyer, sought an order, through an unopposed application, for transfer of the property to the second applicant in line with the agreement of sale entered into by the parties.

The first applicant challenged the respondent's refusal on the basis that it is the respondent and the seller who can explain the alleged discrepancies as he was merely an innocent purchaser.

They filed an unopposed application which was set down for hearing on the 4th of April 2012 whereby the Court directed that a copy of the chamber application for want of prosecution be attached. The matter was then postponed to 02 May where I raised the following queries:

(1) The property was originally in the names of the two minor children, Chido and Chikomborero Tsambwa born in 1998 and 2002 respectively.

(2) The property was transferred from them in contravention of the law in that there was no involvement of the Master or authorisation of the Court as required by the law.

If so, then, the purported transfer from the two minor children was fraudulent, and, to that extent, a nullity and of no force and effect at law. What this means is that whoever purchased the property might have acquired defective title incapable of transmission to any other person.

(3) The purported previous transfer is fraught with other irregularities for want of compliance with statutory requirements regarding payment of capital gains tax and rates. This again points to fraud which vitiates the validity of the transfer.

(4) The caveats in question were placed pending police investigations. There is no proof that the investigations have been completed.

The Master of the High Court was accordingly directed:

(1) To appoint a curator bonis for the two minor children, Chido and Chikomborerero Tsambwa, and to render a report to the Court.

(2) To report this matter to the Anti-Corruption Commission which shall communicate its findings to the Master of the High Court.

(3) In the meantime, the caveats in question to remain in force.

The applicants' lawyers attempted to circumvent this order by filing yet another chamber application challenging this order and seeking upliftment of the caveats and seeking an order that the property be registered by the respondent into the names of the second applicant in line with the dismissal of the case for want of prosecution.

HB48-13 : T.M.R. (PVT) LTD vs KWEKWE PROPERTIES (PVT) LTD and PROVINCIAL MAGISTRATE, KWEKWE N.O. and MESSENGER OF COURT, KWEKWE N.O.
Ruled By: KAMOCHA J

This application was dismissed after hearing arguments from legal practitioners of the respective parties. The matter was firstly brought to this court on a certificate of urgency on 3 December 2012. I held the view that the application was not urgent and did not deserve to jump the queue. I accordingly refused to accord it the status ...

HH309-14 : TAFARA PANDE vs MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS & NATIONAL HOUSING and MAGISTRATE NDOKERA, N.O. and MESSENGER OF COURT/DEPUTY SHERIFF MASVINGO
Ruled By: MATHONSI J

As if that was not enough, the applicant appears to have followed the wrong procedure. He has appealed against the judgement of the Magistrate's Court granting eviction. He should pursue that appeal if he entertains a hope of its success. Instead, he has now taken a detour, again returning to this court seeking a review ...

HH631-15 : GOLDEN REEF MINING (PRIVATE) LIMITED and FERBIT INVESTMENTS (PRIVATE) LIMITED vs MNJIYA CONSULTING ENGINEERS (PTY) LIMITED and THE SHERIFF
Ruled By: MAFUSIRE J

The first point in limine was that the application lacked urgency….,.In its papers, and at the hearing, the applicants' case, in summary, was this. The respondent's appeal was invalid. The provisional order by NDEWERE J was an interlocutory order which was unappealable without leave. No leave had been sought, let alone obtained. Since no ...

The first point in limine was that the application lacked urgency….,.

In its papers, and at the hearing, the applicants' case, in summary, was this. The respondent's appeal was invalid. The provisional order by NDEWERE J was an interlocutory order which was unappealable without leave. No leave had been sought, let alone obtained. Since no result flows from an invalid process, the respondent could not possibly proceed with execution. JUSTICE NDEWERE'S order was still operative….,.

The argument was that the applicants knew very well that once the respondent had obtained the default judgment it was surely going to execute. It had indeed gone on to execute. It would have proceeded with execution but for the provisional order by NDEWERE J. But the respondent's argument was that its Notice of Appeal had been served on the applicants on 5 June 2015. From then on, the applicants should have known that the operation of the provisional order by NDEWERE J had automatically been suspended, thereby paving the way for the resumption of the execution process. But it was not until a month later that the applicants had filed the urgent chamber application, so ran the argument.

I dismissed the respondent's first point in limine.

Quite apart from the question whether or not the appeal was valid, which was the applicants' one and only strong point in support of the application, I considered that the argument lacked merit on two fronts. The purpose of the appeal was not, and could not have been, so as to enable the respondent to proceed with execution. The purpose of the appeal to the higher court must have, or ought to have been, a genuine desire to correct a perceived wrong by this court. In the particular circumstances of this case, given that this court had, after a full hearing, seen it fit to stay execution pending the determination of the application for rescission of judgment, an appeal noted solely, or essentially, to allow execution to proceed, when the reason for the stay was still there, would have been, in my view, brazenly contemptuous and mala fide.

Thus, it did not follow that once the respondent had noted its appeal, the applicants must have immediately anticipated that the respondent would be proceeding with execution forthwith.

HH722-15 : GOLDEN REEF MINING (PRIVATE) LIMITED and FERBITT INVESTMENTS (PRIVATE) LIMITED vs MNJIYA CONSULTING ENGINEERS (PTY) LIMITED and THE SHERIFF-GWERU N.O. and THE SHERIFF-MT DARWIN N.O.
Ruled By: MANGOTA J

I have, prior to this application, come across situations where a party makes an application of the present nature, the court gives directions to the Registrar to set the matter down for hearing as well as to serve the application on all the parties whom the applicant(s) has or have cited. An unscrupulous ...

An unscrupulous legal practitioner, I have noted, has acted contrary to the directions of the court and instructed the Sheriff to proceed with the execution of the writ. The legal practitioner's argument has, under the stated circumstances, been that what the court has given was a directive which was not binding on anyone, let alone his client. The Sheriff has, more often than not, been placed into a very invidious position which conflicts with the directive of the court. It was and is, therefore, important that the Sheriff should remain protected against acting contrary to the principles which govern and guide the courts' practices and procedures by the issuance of such temporary orders as the one which was issued on 20 August 2015.

Such orders are, and should, in my view, come into existence in the interest of the parties' cause. They aim at the attainment of real and substantial justice. They restrain one party from taking an unfair advantage over the other party on the basis of some technicality which, on the face of it, is operating in its favour….,.

The court's sworn duty is to do justice and not injustice to parties who appear before it. It, to the stated extent, exhorts the parties not to take an unfair advantage over each other as that remains a recipe for a multiplicity of litigation. Parties must, at all times, respect each other's positions and prosecute and/or defend their cases in terms of laid down principles of court's practices and procedures. They should not be allowed to rush each other into flouting processes of the court or court orders. They must have the necessary patience to exhaust the procedures of court and, at all times, allow due process to take place before they proceed to assert what they say rightly and lawfully belongs to them.

The above stated matters suffice as an explanation for the temporary interdict which was issued on 20 August 2015.

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

This judgment flows from an urgent application filed on behalf of the applicant. The brief background facts to this matter are as follows. On 15 August 2014, the applicant filed an urgent application for stay of execution of a judicial sale which was rejected by CHATUKUTA J on the basis that it was not urgent. ...

This judgment flows from an urgent application filed on behalf of the applicant. The brief background facts to this matter are as follows.

On 15 August 2014, the applicant filed an urgent application for stay of execution of a judicial sale which was rejected by CHATUKUTA J on the basis that it was not urgent. This was followed by this current application which was filed on 11 December 2014 in a bid to stop a sale of an immovable property that was scheduled to take place on the next day. The respondents re-advertised the property for sale and on the eve of the sale set for 12 December 2014. The same does not appear that counsel for the applicant edited the application, otherwise he would not have filed the papers with such glaring anomalies. When the application was placed before me, my first impression was that the application was way past its sale-by date. The sale sought to be stopped was going to take place on 16 August 2014 and yet we were already in December 2014. The sale is supposed to have taken place months earlier. The application was served on the Sheriff alone and he immediately stopped the sale. The first respondent, (hereinafter referred to as the respondent), was not served with a copy of the application. The respondent did not become aware of the application until the date of hearing.

The application was not followed up and set down until the respondent did so.

The certificate of urgency, as well as the founding affidavit, does not allude to the previous application. Amusingly, the certificate of urgency, signed on 11 December 2014, alludes to the fact that the sale sought to be stopped was to take place on 15 August 2014. Yet, the sale in issue was that of 12 December 2014.

If the application was not urgent in August 2014, what makes it urgent now?

This is not a valid certificate of urgency, and, consequently, the application cannot be urgent. It is this attempt to hoodwink the court into believing that this was a fresh application that this court takes serious exception to. This application amounts to an abuse of court process. It is as a result of these anomalies that I formed the impression that the application was not urgent and may have been previously brought although this fact had not been disclosed.

Although I had formulated the opinion that the application was not urgent, I directed that the matter be set down for an explanation from the applicant. On the appointed date, the respondent had filed its notice of opposition and counsel for the applicant was renouncing agency and was withdrawing the application with a tender of costs.

The respondent has asked the court to dismiss the application and make an award of costs de bonis propiis against counsel for the applicant.

Counsel for the applicant's explanation was as follows.

After he made the initial application, he was made to understand that it was not filed. His client misled him to believe that the matter had been resolved between the parties resulting in the sale being stayed. He learnt that this was not the correct position after the property was re-advertised for sale. He changed the dates of the previous application and re-filed the application. The application was served on the Sheriff alone. He suspects that the applicant may have connived with his messenger to refrain from serving a copy of the application on the respondent. He was taking responsibility for the melee and was renouncing agency. He sought to withdraw the application and tender wasted costs, presumably on the instructions of the applicant.

The applicant did not bother to attend the hearing of the application.

The facts surrounding the filing of both the first and the second application disclose a serious dereliction of duty on the part of counsel for the applicant. He appeared not to be aware, or care, about the progress of the applications. He was not even aware that the first application had been declined. He never followed it up. He filed the second application and did not bother to chase it up. A Judge saddled with an urgent chamber application is required to dispose of it within 48 hours. The application is required to be treated urgently and it is expected that the legal practitioner dealing with the matter views such application in the same light. Once a legal practitioner has lodged an urgent application he is required to pay security for costs so that the matter is placed before a judge. He is expected to consistently follow it up until he establishes what the attitude and decision of the court over the matter is. Where a matter has been resolved between the parties, this fact, or development, should be relayed to the judge. It is not good enough to file an urgent application and let it roll without following up on its progress.

An urgent application does not resolve itself. Counsel for the applicant's failure to follow up the applications attracts serious concerns regarding his attitude to his work and the manner in which he conducts himself as an officer of this court. He was irresponsible and grossly negligent and such conduct calls for censure.

The applicant did not only try to deceive the court.

The applicant has succeeded in pulling the carpet from under the feet of the respondent. The legal practitioner concerned, being fully aware that this application was not urgent, proceeded to file it as urgent. It is clear that the applicant did so simply to frustrate the execution against his property. This, the applicant achieved by selectively serving the application on the Sheriff and thereby inducing the Sheriff stop the sale.

The failure to serve the application on the respondent appears to me to be deliberate and gives the picture that the applicant did not want the respondent to become aware of the application.

The applicant further did not pay the requisite security for costs to enable the matter to be placed before a judge for determination and allocation of a possible set down date. The application was in the Registry from 11 to 17 December and was only referred to the court after the respondent itself had paid the security for costs so that the application could be determined. This confirms that the applicant did not file the matter with serious intention that the matter be determined but rather to subvert the sale of the property. The applicant worked in cahoots with his legal practitioners to frustrate the execution process and obstruct the administration of justice.

This sort of conduct cannot be overlooked.

The conduct complained against is attributable to the legal practitioner concerned, Mr Tariro Paul Machiridza. I am appalled by Mr. Machiridza's conduct .His conduct is disgraceful. He acted deceptively with a wanton disregard of the rules and procedures of this court. He not only abused this court but was casual in his approach, unethical and unprofessional. There is a growing tendency on the part of legal practitioners to recycle applications in the hope that courts will blink and deal with the matters as if fresh.

An application does not become urgent simply because you have re-launched it.

Once an urgent application has been filed, it should be served on all parties - and timorously. There is no room for hide and seek in the courts. Let me sound a warning to legal practitioners with a like mind. Laziness, ineptitude, and fraud do not pay and should never be a part of a legal practitioner's portfolio. Legal practitioners who resort to this sort of conduct do so at their own peril. They should not cry foul when courts frown at their conduct and visit such conduct with dismissal of applications and they get penalised personally for this type of conduct….,.

The applicant himself cannot escape unscathed.

The applicant himself has seriously abused this court, with the assistance of his legal practitioner, and I have decided, in my discretion, to dismiss the application and order that the applicant be barred from bringing the same application in the future.

In the result, it is ordered as follows:-

1. The Urgent Chamber Application be and is hereby dismissed and the applicant is barred from filing any application further to stay the sale in execution of the movable property known as Lot 4 of Subdivision E of Christon Bank.

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

In addition, the same applicant approached this court, in HC4050/15, in which it cited the first, the second and the third respondents and sought the same relief, as in the present application. The matter was placed before HUNGWEJ on 6 May 2015 who refused to deal with it as urgent and removed it from ...

HH41-15 : COLLEN KWARAMBA and McMEEKAN FOUNDERS & ENGINEERS 2014 (PVT) LTD vs WATSON GAVAZA and BRIGHTON PABWE N.O.
Ruled By: HUNGWE J

The first applicant is a Director in the second applicant in which the first respondent is also a co-Director. The applicants seek the following interim relief: “TERMS OF INTERIM ORDER SOUGHT Pending the determination of the application for review in HC46/15, the following order is granted: “1. The 1st respondent be and is hereby barred from the workplace ...

The first applicant is a Director in the second applicant in which the first respondent is also a co-Director. The applicants seek the following interim relief:

“TERMS OF INTERIM ORDER SOUGHT

Pending the determination of the application for review in HC46/15, the following order is granted:

“1. The 1^st respondent be and is hereby barred from the workplace and premises of the 2^nd applicant unless he has followed prescribed legal means provided under the Labour laws of Zimbabwe.

2. The ruling in MC30523/14 be and is hereby suspended from operation pending the hearing of the application for review.

3. The 1^st respondent be and is hereby interdicted from causing the breach of the peace at the premises of the 2^nd Applicant, McMeekan Founders and Engineers (Private) Limited.”

In November 2014, the first applicant, in his capacity as Chairman of the second applicant, addressed correspondence to the first respondent in which he suspended him. He also barred him from attending at his work-place. Thereafter, a battle for the control of the second applicant and/or Quad Founders & Engineers began. The first respondent obtained a spoliation order in the Magistrates Court in MC30523/14. The applicants claim that the order cannot be allowed to stand as it is vitiated by certain serious procedural irregularities.

The applicants filed an application for its review with this court.

In the meantime, the first applicant sought an urgent stay of the order the subject of review through the Chamber Book in HC46/15. The judge before who the matter was placed found that the matter was not urgent and declined to hear it as such. She also pointed out that there was need to join the second applicant. There is divergence of views between the parties regarding the outcome of that application. The first applicant contends that he withdrew the matter in order to join the second applicant, as advised by the judge; the respondent, on the other hand, says the matter was dismissed. As such the applicants cannot have a second bite of the cherry.

Whatever the position is, it is clear to me that where this court has ruled that a matter is not urgent, as conceded by the applicants, a party cannot file the same matter under a certificate of urgency unless it can establish new grounds upon which it can be said the matter is urgent….,.

Since I was similarly not satisfied that the matter was urgent, I declined to deal with it on that basis and directed that it be brought through the normal Rules of Court.

The matter is removed from the roll of urgent matters with no order as to costs.

HH50-15 : CLEOPAS MUGOMBA vs VICEMAST (PVT) LTD and ZIDCO (PVT) LTD
Ruled By: NDEWERE J

Furthermore, in August 2014, the High Court ruled that the first respondent's application on the same dispute was not urgent. The applicant should not, therefore, have brought the same dispute between the parties to the High Court on an urgent basis for the second time in the absence of any new exceptional circumstances. As stated in Mushonga ...

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

In HC596/12, which was filed out of the Bulawayo High Court, the second respondent brought a chamber application for the registration of an arbitral award made by Arbitrator I. Machingabi in his favour and against the applicant on 15 August 2011. An order for registration was granted by the court, per NDOU J, on 17 May 2012, ...

An order for registration was granted by the court, per NDOU J, on 17 May 2012, and, as a natural sequel to the grant of the order, a writ was issued for the recovery of the sums of $24,593=32 and $6,290=40.

On 9 December 2013, property belonging to the applicant was placed under attachment in execution of that writ prompting the applicant to approach this court, in HC10643/13, on a certificate of urgency, on 11 December 2013, seeking a stay of execution.

In its founding affidavit, sworn to by its Group Managing Director, one Godfrey Gift Mpofu, the applicant stated that it was making an application for condonation of the late noting of an appeal to the Labour Court against the arbitral award. The said application for condonation in the Labour Court was being filed “simultaneously” with the urgent application for stay of execution being made at the High Court.

The urgent chamber application was placed before Honourable CHATUKUTA J who initially refused it on the basis that it lacked urgency. The applicant persisted, requesting audience with the Honourable Judge as it was the firm view that the judge would be persuaded by the weight of its argument on that point if given an opportunity to present same orally. The learned judge obliged and set the matter down for argument in chambers.

Confusion was to visit the matter following a formal hearing on 24 December 2013.

What transpired on that date is contained in the result sheets penned by the Honourable Judge which are in the court record in that matter. On 24 December 2013, the judge initially granted the provisional order for stay of execution, in default, as the respondents had not been in attendance at the time set for the hearing. It would appear that the second respondent's counsel subsequently appeared, and, following deliberations, the learned judge recorded the outcome in the following:-

“Judgment granted for rescission of default judgment granted earlier. Application was opposed but I was persuaded that Mr Ndomene (respondent) was not in wilful default. Advocate Chingwena confirmed that Mr Ndomene contacted him earlier in the morning seeking confirmation of time of hearing. Mr Ndomene sent him a message explaining (being) delayed in bail court. Mr Ndomene arrived as the court had just made its order.

Main Matter

Application dismissed for want of urgency with no order as to costs (as confirmed by Mr Ndomene).”

Unfortunately, when the learned judge granted the provisional order in default, she had signed the draft to signify the grant of the order. She did not cancel the signing. This may explain why the provisional order was typed out, signed by a representative of the Registrar and made available to the parties. At the same time, the order dismissing the application was also processed and made available to the parties.

With confusion reigning supreme, the matter was again placed before Honourable CHATUKUTA, who, on 20 January 2014, further clarified the issue. She stated:-

“An order was granted in default on 24 January 2013. Soon after the granting of the order, the respondent's legal practitioner successfully applied for rescission of judgment. The matter was then heard as an opposed urgent chamber application. The urgent chamber application was dismissed for want of urgency with no order as to costs. The result sheet to this effect is on record. Order was therefore typed in error.”

It is remarkable that when all this was happening, the applicant was represented by counsel and it was therefore privy to what transpired.

The inconvenience of that simple and straight forward explanation given by the Honourable Judge could not possibly stand in the way of the applicant. Taking full advantage of the existence of two (2) conflicting orders, with one patently typed in error, the applicant filed another urgent application, in HC1729/14, still represented by the same firm of legal practitioners. It sought an order interdicting the first respondent, the Sheriff, from removing its property in execution of the writ.

In its founding affidavit, sworn to by Chiwaka Mutambatuwisi, the Group Chief Operations Officer, the applicant chose to be selective with the truth. Whether it was selective amnesia or not but the applicant said nothing about how the events of 24 December 2013, as clearly described by the judge, unfolded. Instead, Chiwaka Mutambatuwisi only stated that its legal practitioners uplifted, on 8 January 2014, an order for stay of execution. On 29 January 2014, they received “another court order, under HC10643/13, which stated that the urgent application had been dismissed.”

As the Registrar could not clarify the existence of two (2) conflicting orders, the second respondent had no reason instructing the Sheriff to proceed with execution, who, equally, had no reason complying with such instruction. To them the Sheriff does not have the power to select which court order to respect.

This, despite the fact that both Ms P. Ncube and Mr Chingwena had been in attendance when the first order for stay of execution was rescinded and were therefore aware that there existed no conflicting orders here. Significantly, it is the same law firm, Mawere & Sibanda, which represented the applicant at the hearing of HC10643/13 before CHATUKUTA J - and also prepared the present application.

The height of dishonesty.

Now, whether or not the court was correct in dismissing the urgent application for want of urgency as opposed to merely refusing to hear it is outside the scope of the present application. The applicant did not contest the dismissal. It is its attempt to take advantage of the administrative mistake of typing what it knows to be a non-existent court order to the extent of even bringing an application based on a falsehood, which is reprehensible and should not be tolerated at all….,.

Returning now to the merits of the matter, I have already said that this application should not have been made at all and that it is anchored on false pretences. I have quoted extensively above from the court record in HC10643/13 where the presiding judge captures what transpired. What it means, therefore, is that the application for stay of execution was dismissed. There is nothing stopping execution as things stand.

Counsel for the applicant submitted that the applicant is entitled to a final interdict because the papers demonstrate a clear right signified by the existence of two (2) conflicting orders.

One would sympathise with counsel for the applicant, being a junior legal practitioner at the law firm of Mawere and Sibanda, who says he was handed the file only a week ago by his superior, Mr Muza, a partner at the firm. He was instructed to appear in court today and present the applicant's case as appears on the papers. I say so because Mr Muza had no reason, whatsoever, being the legal practitioner who prepared the initial application dismissed by CHATUKUTA J and instructed Mr Chingwena, to entertain the belief that there were two (2) conflicting orders.

Counsel for the applicant conceded that the judge was entitled, in terms of Rule 449(1), to rescind the default judgment she had earlier made on 24 December 2013. His contention, however, was that having made that decision, it should have been communicated to the parties, which was not done, hence the existence of the applicants clear right to the interdict.

The fallacy of that argument is self-evident.

The judge communicated the decision to rescind to the parties orally. She went on to hear arguments on the merits of the matter with the applicant participating fully. There can exist not the remotest of right for the applicant to seek to interdict execution.

I agree with counsel for the second respondent that the application betrays unethical, dishonourable, and, indeed, deplorable conduct on the part of the legal practitioner representing the applicant, who, quite aware of the outcome of proceedings before CHATUKUTA J, felt he could take advantage of the erroneous typing of a non-existent court order (it having been rescinded), in order to snatch a provisional order to delay execution. He did not end there, but saw it fit to pursue this ill-advised and patently dishonest application all the way. Obviously aware of the lack of merit, the legal practitioner decided to hide behind his subordinate, Mr Madzedze, and sacrifice him at the alter of expediency….,.

In the result, IT IS ORDERED THAT:-

1. The application is hereby dismissed.

2. The provisional order issued on 6 March 2014 be and is hereby discharged.

HMA12-18 : CONSTABLE CHIHWAI vs BOARD PRESIDENT N.O., CHIEF SUPERINTENDENT NYATHI M and COMMISSIONER GENERAL OF POLICE
Ruled By: MAFUSIRE J

After granting counsel for the applicant the audience that he had requested to convince me that my preliminary view on urgency was wrong, I only stood down my decision on the point to reflect on something else that he vigorously pressed home. He said the Suitability Enquiry Board's (SEB) insistence on proceeding with its deliberations in ...

HMA13-18 : JONATHAN CHIKUKWA vs BEAUTY and GAME DOLLAR
Ruled By: MAWADZE J

Our job or call as judicial officers is definitely not short of its comic moments. I never did foresee that the establishment of a third High Court in Zimbabwe, at Masvingo, under the good intentions of decentralisation and bringing justice to people would at times achieve the unintended. Indeed, it has opened flood gates to all manner ...

Our job or call as judicial officers is definitely not short of its comic moments.

I never did foresee that the establishment of a third High Court in Zimbabwe, at Masvingo, under the good intentions of decentralisation and bringing justice to people would at times achieve the unintended. Indeed, it has opened flood gates to all manner of court processes especially by self-actors who nonetheless have the right of audience before this court.

After this matter landed on my desk in the afternoon of 5 February 2018 when I was pressed for time due to other pressing commitments, I did the expected by abandoning all other duties to attend to this “Urgent Chamber Application”. I dutifully ploughed through the “application.” By the time I finished reading the papers I was unable to control a bout of laughter which seized me in the privacy of my chambers. I could not resist the temptation to share this light moment with my brother MAFUSIRE J who was equally busy in his chambers. The interruption, in my view, was worth his while. After my brother perused the papers he was so mesmerised that he laughed uncontrollably and was unable to proceed with his work load for that day. He simply packed his bags and left his chambers!

I have decided to dispose of this matter in a rather unusual way without hearing oral submissions from the parties. One of the reasons informing this decision is that I am not sure if I would be able to maintain the decorum expected of me if I was to call the parties to my chambers. I am still seized with the bout of laughter and amazement. I therefore decided to dispose of the matter on the papers and give my brief reasons in the privacy of my chambers.

I turn to the matter.

This urgent chamber application has the following heading;

“URGENT CHAMBER APPLICATION FOR AN APOLOGY”

The relevant papers are drafted by the applicant who is a self actor. What is evident is that the applicant should have sufficiently bothered some other person or law firm for precedents in urgent chamber applications which he then used to suit his own application with astounding disastrous consequences.

The papers include, inter alia, what is called “an affidavit of urgency” duly commissioned. This should be in lieu of a certificate of urgency not required for a self-actor.

The nature of the relief sought is couched as follows;

“TERMS OF INTERIM ORDER

1. That the respondents be and are hereby ordered to publicly apologise to the applicant.

2. The respondents be and are hereby ordered to place the public apology in the local and national paper for 4 consecutive weeks from date of this order at respondents' expense.

3. Respondents to pay costs of suit the one paying the other to absolved payment.

Service of order

Service of this order shall be made on:

(a) Beauty and Game Dollar Restaurant

Respondents at

GAME DOLLAR

JERERA” (sic)

The terms of the final order are drafted as follows;

“TERMS OF FINAL ORDER SOUGHT

1. The respondents be and are hereby ordered to publicly apologize to the applicant.

2. The respondents be and are hereby ordered to place the public apology in the local and national paper for 4 consecutive weeks from the date of this order at the respondents' expense.

3. Respondents to pay costs of suit the one paying the other to be absolved payment.” (sic)

All I can say is that the nature of the relief sought is simply astounding. One should not even bother to state that both the so-called interim relief and final order sought are the same, never mind the propriety of the relief sought being a public apology and on an urgent basis.

It is in the founding affidavit which steals the thunder as it were and forms the basis of this so called urgent application. I cannot do no more than to quote it in its entirety lest I do an injustice to what the applicant perceives to be his case. It is as follows;

“APPLICANT'S FOUNDING AFFIDAVIT

I, JONATHAN CHIKUKWA, hereby make oath and state the following in support of my application.

1. I am the applicant in this case and my address of service is as stated in the Notice of Application.

2. The 1^st respondent is female only known to me as BEAUTY, a waiter employed by Game Dollar Restaurant situated in Jerera.

3. The 2^nd respondent is Game Dollar Restaurant, a restaurant whose principle place of business is Game Dollar Restaurant, Jerera, which I believe is registered in terms of the company laws of this land.

4. On Sunday 4^th of February 2018 around 3pm I entered the respondents' place of business and ordered sadza and chicken.

5. I was served by the 1^st respondent along with about 8 or so other customers. It was a little dark in the respondents' place of business as Jerera was experiencing a power cut and it was not easy to see clearly.

6. I secured a table and sat by myself. As I was having my meal I noticed that there was something in my relish that I did not clearly understand what it was.

7. In an effort not to cause displeasure among other customers I politely summoned the 1^st respondent who was having a conversation at another table where she was seated. The 1^st respondent did not oblige. I asked her more than three times she did not heed my plea.

8. Instead of approaching my table 1^st respondent, to my amazement, started to be rude and disrespectful towards me. She said in Shona;

'Tino sevha macustomers akawanda pano handina nguva yekuuya ipapo kana kuita zvaunoda taura zvaunoda ndo zvihwa mukagodii kuroora kana muchida attention yemukadzi? Ndozva unoregera kuroora uchida kuzotinyangadzira chikafu chedhora, iye ungada kugara nemunhu ane mop yemusoro ndiani? Dzosa sadza redu ndikupe chidhora chako'.

Meaning: we serve many customers here. I don't have time to attend to you specifically. Why don't you marry so that your wife will attend to you specifically? Is it the reason why you are not married so that you come here for attention? Who would be married to someone with a mop hairstyle? Bring back our food and get your refund'.

The 1^st respondent said the above words to amuse the other customers by injuring my feelings and indeed the other customers were amused as they cracked their ribs with laughter at the words of the 1^st respondent. My marital status and hair style is a question of my privacy and has no bearing on the 1^st respondent at all. The 1^st respondent's intention was malicious and injurious.

9. The 1^st respondent's words were injurious; they were said with the intention to injure my feelings in front of the other customers and indeed I was injured.

10. Angry and embarrassed I walked to the counter with the hope that the 1^st respondent would come to the counter and address my issue. She remained seated. She said she was not going to tolerate complaints over food which costs a dollar. Thus, I did not get a refund.

11. I left the respondents place of business and as I walked from the respondents' restaurant 1^st respondent said something I did not grasp and she busted into laughter in concert with other unknown people. I later texted a message on the 2^nd respondent's number which I used for making payments through Ecocash and demanded an apology. Minutes later I received a call me back message and I complied. To my outer amazement I was again verbally insulted by someone who refused to identify herself.

12. The respondents are in the hospitality industry which industry demands that service providers should be polite and courteous. The conduct of the 1^st respondent should not be left without restraint. As a customer I had a right to complain if I was not satisfied, to be treated with dignity and respect and to be listened to. 1^st respondent should have heard my issue and apologised. 1^st respondent had no right to be rude towards me or to utter the words she did and insult me. I verily believe that the 1^st respondent owes me a public apology and by virtue of her employment with the 2^nd respondent the 2^nd respondent is also vicariously liable for such an apology.

13. The apology should be made in the local and national paper for 4 consecutive weeks from the date of this order at the respondents' expense.

14. This matter is urgent in that if time lapses the issue will lose its worth. I have no ordinary remedy at law other than for and order in terms of the draft hereto annexed.”

The District Administrator for Masvingo suffered the agony and clearly the indignity of commissioning this founding affidavit….,.

Without much ado all I can say is that there is absolutely nothing urgent about this “application” if I can even call it an application. The so-called urgent chamber application is clearly bogus. There is absolutely nothing in the papers showing what constitutes urgency in this matter. What is the impending harm to the applicant or his interests? What is the irreparable harm the applicant would suffer if this matter is not allowed to jump the queue?

The long and short of it all is that the papers filed by the applicant do not even disclose a cause of action. They even do not make sense at all. All what the applicant is saying is that he felt insulted while he was enjoying his meal (sadza and meat) at Jerera Growth point in Zaka. For that inconvenience he believes he can rush to this court and seek an incomprehensible remedy on an urgent basis. The applicant should be a very litigious person to say the least. This is clearly taking the High Court for granted.

In conclusion, therefore, these papers do not make a case at all and it is trite that an application falls on the founding affidavit. The application does not even begin to be an application without a cause of action. Clearly it has no merit.

All the applicant has managed to do is to attract the precious attention of this court's time. Maybe his only reward or consolation is this judgment which he can always flaunt to show that he instituted some proceedings in the High Court.

Accordingly, the application be and is hereby dismissed with no order as to costs.

HH173-15 : BAYRICH ENTERPRISES (PVT) LTD vs XGMA ZIMBABWE (PVT) LTD and THE SHERIFF
Ruled By: MATHONSI J

Wonders never cease in the practice of law. As to how and indeed why the applicant would deem it fit to prepare and file two (2) applications worded almost the same and seeking what is, in essence, the same relief, is difficult to fathom. The same could be said about the dusting and re-filing of an ...

Wonders never cease in the practice of law.

As to how and indeed why the applicant would deem it fit to prepare and file two (2) applications worded almost the same and seeking what is, in essence, the same relief, is difficult to fathom. The same could be said about the dusting and re-filing of an application that was dismissed.

On 10 February 2015, the applicant filed an ordinary court application for stay of execution in HC1180/15 in which it sought the following relief:

“IT IS ORDERED THAT:

1. The 1^st and 2^nd respondent(s) are hereby ordered not to sell the property of applicant save by private treaty.

2. The 1^st respondent to pay costs of suit on the attorney and client scale.”

In the founding affidavit deposed to by the Truman Joma, its Company Secretary, the applicant stated that it had entered into an agreement with the first respondent in terms of which it had taken delivery of equipment with the purchase price of such equipment being paid from income derived from the business it was engaged in. Due to harsh economic conditions prevailing in the country its business ran into trouble resulting in the first respondent taking judgment against it.

Truman Joma went on to say that following negotiations the parties reached a further agreement in terms of which the applicant pledged and surrendered its movable property to the first respondent as security for the faithful payment of the debt owed to the first respondent. In pursuance thereof, the applicant attempted to liquidate the debt and succeeded in paying a sum of $160,000= towards settlement of the debt. This, however, did not stop the first respondent instructing the second respondent, the Sheriff, to execute against the applicant's property to satisfy the judgment debt. The applicant became aware of the sale date, 14 February 2015, on 6 January 2015.

The applicant maintained that this was in breach of the agreement of the parties to the effect that the pledged property would be returned to the applicant upon payment of at least half of the purchase price and that if the sale was to occur it would be “by private treaty”. For that reason, the applicant sought an order for stay of execution aforesaid.

It however did not produce the alleged agreement of the parties recording those terms relying only on letters authored on its behalf by its own legal practitioners with no corresponding commitment from the first respondent. What is more, the applicant did not show that it paid at least half of the purchase price given that the purchase price was $416,712=39, the judgment debt, when it only paid $160,000=.

On 13 February 2015 the applicant filed another application, this time on a certificate of urgency, in HC1356/15 (which is the application before me), on virtually the same facts (in fact the founding affidavit is a regurgitation of the one founding the court application in HC1180/15) seeking the following interim relief:

“INTERIM RELIEF

Pending the finalisation of the proceedings in HC1180/15 the 2^nd respondent be and is hereby ordered to:

1. Return all the goods of the applicant attached in consequence of the writ issued in HC7669/13, to the applicant pending the final resolution of case HC1180/15.

2. Stay all execution proceedings related to HC7669/13 until the finalisation of the case in HC1180/15.”

I have said that the relief sought in both matters is the same. It is not clear why the applicant has made two different applications seeking virtually the same thing. Even more baffling is why the applicant, which says it became aware that its property would be sold on 14 February 2015 as far back as 6 January 2015 not only did not do anything until the day of reckoning but also elected to proceed by ordinary application on 10 February 2015.

If the above stated scenario is a strain to the mind, then the fact that this urgent application is being made for the second time in as many days is remarkably disheartening. I say this because on 10 February 2015, the applicant filed the same urgent application in HC1216/15 on the same set of facts, the same founding affidavit and the same annexures which it merely photocopied for HC1356/15. In short, the applicant issued the same application twice after the first one was set down before UCHENA J on 13 February 2015 at 10am and the learned judge issued an order dismissing the application with costs on an attorney and client scale.

What we therefore have here is an application that has been dismissed with costs on an adverse scale being re-instituted and placed before me when the order of dismissal remains extant. Its simply not possible because it was dismissed and cannot be revived. How such a simple and straight forward procedural fact could have escaped the gaze and understanding of the applicant's counsel is difficult to comprehend.

What I find even more disturbing is that the applicant did not see the need to disclose to the court that its application has already been dismissed by this court, per UCHENA J, and did not find it necessary to even append HC1216/15 as a cross reference for the ease of the court. There is little doubt that there was an attempt to pull the wool over the court's eye which conduct should be frowned upon. This is particularly so when the applicant is represented by counsel who is an officer of this court.

As if that was not bad enough as it is, the application itself is legendary by its lack of merit. On 25 March 2014, this court, per MANGOTA J, granted an order in favour of the first respondent in HC7669/13 for payment of the sum of $416,712=39 together with interest at the prescribed rate from the date of issue of the summons, being 18 September 2013, to date of payment and costs of suit on a legal practitioner and client scale. That court order is still extant and no attempt has been made to challenge it meaning that the applicant has to satisfy it or face execution against property.

The applicant claims to have paid only $160,000= towards the judgment debt - which is not even half the judgment debt. If we were to assume in the applicant's favour that there exists an agreement in terms of which its goods would be saved upon payment of half what it owes, the applicant would still be without such remedy as it has not paid half what is owed. In addition, I have already alluded to its failure to prove the existence of what it prefers to refer to as “an interpartes bilateral stay of execution”, whatever that is.

What remains, therefore, is a judgment that has not been fully satisfied entitling the judgment creditor to execute against the judgment debtors property in order to recover what is owed. There is no basis whatsoever for a stay of execution in the circumstances of the case.

The application itself is a serious abuse of process and may have been brought in this manner in order to defeat the due process of execution that had been set for Saturday 14 February 2015. This is because upon this matter being referred to me on Saturday morning, the Sheriff agreed to postpone the sale pending the determination of this application, an application which was non-existent, it having been dismissed the previous day.

There is need for admonition because such abuse cannot be allowed to perpetuate in our courts. Legal practitioners have been warned repeatedly against the kind of conduct undertaken by the applicant's counsel, who, although it should have been apparent from the very beginning that the applicant had no case, she proceeded notwithstanding even when she knew that that the order dismissing the application remained effectual: See Moyo & Anor v Hasbro Properties & Anor 2010 (2) ZLR 194 (H) 197 C; Hughber Petroleum (Pvt) Ltd & Anor v Nyambuya & Anor HH78-14; Macro Plumbers (Pvt) Ltd v Sheriff of Zimbabwe N.O & Anor HH57-15.

The only way to bring legal practitioners to line is to strike at their pockets so that in future this will not be repeated.

Accordingly, I make the following order, that:

1. The application is hereby dismissed with costs on the scale of legal practitioner and client.

2. Such costs shall be borne by the law firm of Takawira Law Chambers de bonis propriis.

3. The law firm of Takawira Law Chambers shall not recover any fees for this application.

HB73-10 : THABANI MOYO and ALEXANDER MUNYAKA vs HASSBRO PROPERTIES (PVT) LTD and MESSENGER OF COURT
Ruled By: MATHONSI J

Legal practitioners have a duty to restrain their clients from abusing the process of the court and from making untruthful assertions and yet this application is littered with not only wrong conclusions of the law but outrightly mendacious statements….,. Courts frown at such applications where they are characterised by mala fides and material non disclosures as in ...

HH208-15 : GOOD LIVING REAL ESTATE PL vs ADAM AND COMPANY PL and SGI PROPERTIES PL and HONOURABLE JUSTICE SMITH
Ruled By: MUREMBA J

On 16 February 2015 I delivered an ex tempore judgment in this matter dismissing this application with costs on a legal practitioner client scale. Now I have been asked for the written reasons thereof and these are they.

The facts of this matter are common cause.

The applicant and the first and the second respondents are involved in an arbitration dispute before the third respondent. The arbitration proceedings started in October 2013 and are still on going. When the applicant filed this application, on 13 February 2015, the hearing of the arbitration proceedings had been postponed to 16 February 2015 for continuation.

The background of the matter is that during the course of the arbitration proceedings, and on 29 May 2014 and 8 September 2014, the third respondent granted two interim awards in favour of the first and the second respondents. Dissatisfied by the granting of the interim awards, the applicant filed two applications in this court challenging the awards. The reference files are HC5209/14 and HC750/15. These two applications are still pending before this court.

The applicant filed this urgent application for the purposes of having the arbitration hearing scheduled for the 16th of February 2015 stayed pending the determination of the two pending applications. The applicant is of the view that the outcomes of the two applications have a bearing on the dispute, and, as such, the arbitration proceedings ought to be stayed until the two applications have been disposed of by this court.

On 11 February 2015, the applicant filed an ordinary court application under case number HC1268/15 seeking the same relief as the present one.

That application was served on the first and the second respondents' legal practitioners on the same day of 11 February 2015 and on the third respondent on 12 February 2015 at 10:28am. On the same day of 12 February 2015 the applicant's counsel wrote a letter to the third respondent and this letter accompanied the court application. The letter was asking the third respondent to give an assurance to the applicant that he was not going to proceed with the hearing on 16 February 2015 since he had been served with the court application to stay proceedings pending the determination of the two applications, HC5209/14 and HC750/15. In that letter, the applicant's lawyers indicated that if they did not get a response on that day, by 4pm, from the third respondent in writing to the effect that proceedings were not going to continue, they were going to file an urgent chamber application.

The applicant's lawyers did not get any response from the third respondent by 4pm of 12 February 2015. This prompted them to file the present urgent chamber application on Friday the 13th of February 2015 in the evening.

I had to be called from home around 7:30pm to attend to it. I set the matter down for hearing on Sunday 15 February 2015 at 2pm because I was not available on Saturday 14 February 2015.

As the hearing started, I was served with the first and the second respondents' notice of opposition. As a result, I was not able to read through the opposing affidavit before the hearing. It being a Sunday, and all the parties being in attendance, I decided to hear the parties and then go through the opposing affidavit later. The third respondent, who is a retired judge of this court, who was a self-actor, had not prepared any written response to the application. He made submissions that as the arbitrator between the applicant and the first and the second respondents he was not taking any sides, but he said that he just wanted to shed light on some issues for my benefit. So he made some submissions during the hearing.

I started by asking counsel for the first and second respondents if he had any points in limine that he wanted to raise and he said he had none. So we went straight into the merits of the matter with the applicant addressing me first.

He submitted that the application should be granted for the reason that since the High Court, which is superior, is now seized with the applications, the arbitrator ought to stay proceedings until determinations have been made.

What emerged from counsel for the first and second respondents was that the letter of 12 February 2015 from the applicant's lawyers which was addressed to the third respondent asking the third respondent to give an assurance that he was not going to proceed with the arbitration proceedings on 16 February 2015 was not served on the first and the second respondents despite them being interested parties. I found it a very shameful thing that Advocate Hashiti, counsel for the applicant, insisted that the first and the second respondents had been served with that letter when they had not been served. There was no proof to that effect. Even the letter itself does not show that it was copied to the first and the second respondents.

All the three respondents indicated that from the time the arbitration proceedings started, about five (5) postponements of the hearing had been made by consent but they were all made at the instance of the applicant. They said each time the applicant sought a postponement it would engage new lawyers. The other reason was that the applicant continued to say its key witness, one Mr Okeke, was not feeling well and was out of the country. The third respondent indicated that on the occasions that he granted the requests for postponement for this reason, he was never furnished with medical proof of the witness' illness. He said that he recently told the applicant that he now wanted medical proof of Mr Okeke's illness if he was going to grant another postponement because they were not making any progress with the arbitration proceedings.

Counsel for the applicant did not make any submissions to challenge these averments by the respondents.

The three respondents also highlighted that the hearing of the arbitration proceedings was postponed to 16 February 2015 on 29 January 2015, by consent, and the request for the postponement had been made by the applicant.

Again, counsel for the applicant did not dispute that.

The first and the second respondents were surprised that the applicant was now making the present application. To them, it was just an afterthought by the applicant which was meant to delay the finalisation of the arbitration proceedings.

Counsel for the first and second respondents argued that the matter had been postponed on 29 January 2015 and there was no reason why the applicant had waited until 11 February 2015 to file the court application and less than 24 hours later to file the present chamber application. To counsel for the first and second respondents the matter was not urgent at all.

Let me say this submission on urgency by counsel for the first and second respondents, during the hearing of the merits, surprised me because, naturally, it should have come as a point in limine. Earlier on he had said he had no points in limine that he wanted to raise.

Personally, I had not raised any query on the issue of urgency because it was not apparent on the face of the application that the matter was not urgent. The application did not disclose, on the face of it, that the arbitration hearing had been postponed to 16 February 2015 from 29 January 2015.

Be that as it may, counsel for the first and second respondents further submitted that since the continuation of the arbitration hearing was scheduled for 16 February 2015 the application should be dismissed to allow the parties to appear before the third respondent. He said since the third respondent is seized with the matter, the applicant can make his application for stay of arbitration proceedings before the third respondent.

The third respondent also made submissions that since he was already seized with the matter he did not see why the applicant had not made the application for stay of proceedings before him all along from the time it made the two High Court applications. He said that if the applicant had made the application he would have heard the application and made a ruling on whether or not to grant it.

He further submitted that he had not responded to the applicant's letter of 12 February 2015 because it required him to respond by 4pm of the same day, yet, when that letter was served at his office at 10:28am, he was not in the office. He only got to the office at 4pm and that is when he saw the letter. It was already too late for him to respond. It was already past the deadline that the applicant's lawyers had given.

He further averred that on that same day he also received another letter from Mr Nkomo of Mtetwa & Nyambirai Legal Practitioners, also representing the applicant, stating that on 16 February 2015 they were going to seek a postponement of the hearing for the reason that its witness, Mr Okeke, was still unwell. To him, the two letters were in conflict.

Having heard the parties, I dismissed the application on the merits since the parties had mainly addressed me on the merits.

I considered the requirements of a temporary interdict since what the applicant is seeking is an interim interdict. The requirements are as follows:

(1) The applicant must prove a prima facie right.

(2) There must be a reasonable apprehension of irreparable harm if the interdict is not granted.

(3) There must be no other ordinary adequate or appropriate remedy which would give the applicant some protection.

(4) The balance of convenience must be in the applicant's favour.

This means that the circumstances must be such that the prejudice suffered by the applicant, if the interdict is not granted, will be greater than the prejudice suffered by the respondent if the interdict is granted.

See the cases of Hix Networking Technologies v System Publishers (Pty) Ltd & Another 1997 (1) SA 391 (A)…, and Flame Lily Investments Company (Pvt) Ltd & Another 1980 ZLR 378 (G).

As correctly submitted by counsel for the first and second respondents, and the third respondent, there is an alternative satisfactory remedy that is available to the applicant. The remedy is for the applicant to make this application for stay of proceedings before the third respondent who is already seized with the arbitration matter.

Despite the availability of that remedy, the applicant never sought to make an application before the third respondent from the time it filed the two applications to this court.

This is a case where the applicant ought to have exhausted that domestic remedy before rushing to this court with the present application.

Counsel for the applicant submitted that they had filed this urgent application because the third respondent had not responded to the applicant's request not to proceed with the hearing on 16 February 2015.

For a matter which had continued to be postponed from the time the two High Court applications were made I do not see why the applicant did not make this application before the third respondent. I find no merit in the course of action that the applicant took.

It would appear that the applicant would do anything to have the finalisation of the arbitration proceedings delayed. It waited until the 11th hour to make both the ordinary court application and the present application for stay of the arbitration proceedings. Besides that, the applicant had even tried to manipulate the third respondent, by way of an ordinary letter, into giving an assurance that he was not going to proceed with the hearing. This letter was not even served on the first and second respondents.

That was highly unprofessional, unprocedural and improper especially coming from legal practitioners. As interested parties, the first two respondents deserved to be served.

I do not think that the applicants really expected the third respondent to grant the applicant's request without hearing the first and the second respondents. What the applicant ought to have done was to make a proper application for a postponement or stay of proceedings before the third respondent, either in writing or orally, giving the first and second respondents a chance to respond. No such application can be made without the other party being given a chance to be heard. It defeats the principle of the audi alteram partem rule.

I would like to make some remarks on the issue of urgency.

In the case of Kuvarega v Registrar General & Anor 1998 (1) ZLR 188…, CHATIKOBO J said;

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

In casu, if this issue had been raised as a point in limine I would have struck off the matter from the roll for the reason that the matter was not urgent.

The interim awards were granted in May and September 2014. The two court applications to challenge them were made last year and in January this year, before 29 January 2015. So the urgency arose at the time the court applications were made. Obviously it dawned on the applicant, at the time of filing the applications, that their outcomes had a bearing on the main dispute. Under the circumstances, I do not see why the applicant waited until 12 February 2015 to make the court application for stay of the arbitration proceedings.

Before that, the applicant had been making requests for postponements of the hearings for totally different reasons; for instance, that its key witness was ill.

The question is why were they not raising the issue of the need to stay proceedings pending the determination of the two court applications?

It would appear that the application was made as an afterthought, just to delay the finalization of the arbitration proceedings.

In any case, the latest arbitration hearing was postponed to 16 February 2015 on 29 January 2015, by consent, at the instance of the applicant. Honestly, by that time, the applicant already knew that the outcomes of the two applications pending in this court had a bearing on the main dispute. There is no explanation why the applicant asked for a postponement of the hearing to 16 February 2015 instead of making an application for stay of the proceedings. That application could have been made to the third respondent since he is the one who is presiding over the matter. There was no justification for the applicant to wait until the 11th of February 2015 to make the ordinary court application and the 12th of February 2015 to make the present urgent chamber application.

It is apparent that the urgency was self-created.

It appears to me that this was just a tactic by the applicant for it not to appear before the third respondent on 16 February 2015 for the third respondent had indicated that in the absence of medical proof to show that Mr Okeke was ill, he was not going to grant another postponement. This is evidenced by the letter dated 12 February 2015, which was written by Mr Nkomo of Mtetwa & Nyambirai Legal Practitioners to the third respondent, indicating that on the 16th of February 2015 the applicant was going to seek a postponement of the hearing to a further date to enable Mr Okeke, who was ill, to be available.

What is interesting is that the date of 12 February 2015 is the same date the third respondent was served with the court application for stay of arbitration proceedings together with the accompanying letter which was asking the third respondent to give an assurance that he would not proceed with the arbitration hearing on 16 February 2015. These were served by Zuze Tawanda Law Chambers - a different law firm. Zuze Tawanda Law Chambers was representing the applicant for the first time and it appears that it was not even aware that Mtetwa & Nyambirai Legal Practitioners were also representing the applicant in the same matter.

This confirms what was said by the respondents that the applicant was in the habit of changing legal practitioners each time the hearing was postponed.

It is puzzling that the applicant engaged two different law firms to represent it at the same time. The two law firms ended up writing letters with different requests to the third respondent on the same day. One was asking the arbitrator to stay proceedings pending the determination of the two High Court applications while the other was asking for a postponement to enable Mr Okeke to recover.

All these actions by the applicant show that it was desperate not to have the hearing of 16 February 2015 proceed.

Despite the lack of urgency I decided to dispose of the matter on the merits.

The point being that the applicant has an alternative satisfactory remedy of making the same application before the third respondent who is already dealing with the main dispute as the arbitrator. Even if I had felt inclined to grant the application on the merits I still would not have granted it for its lack of urgency.

I dismissed the application with costs on a higher scale. I awarded costs on a higher scale because this application was frivolous and a clear abuse of court process.

It is an application that the applicant could have made before the third respondent who is already seized with the matter. The applicant was even aware of that remedy being available to it because it had even made an attempt to have the third respondent give it an assurance that he was not going ahead with the hearing on 16 February 2015. It did this by way of the letter of 12 February 2015 - it even wanted him to do it unprocedurally without the first and the second respondents being notified and being heard.

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

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

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

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

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

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

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

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

1....,.

2. The court a quo erred at law in dismissing the preliminary point that the interim relief sought was res judicata and failing to find that the first respondent was the privy of the second respondent;...,.

In the second ground of appeal, the appellant alleges that the court a quo erred at law in dismissing the preliminary point that the interim relief sought was res judicata and in failing to find that the first respondent was the privy of the second respondent.

In dismissing the point in limine, the court a quo found that the applicant before it was different from the applicant in the earlier proceedings. The court a quo did not avert to the issue whether or not the first respondent is a privy of the second respondent, a contention which the appellant invites us to accept.

It is trite that a judgement, unless in rem, binds only the parties to the suit to which it relates. It cannot bind third parties even though the action concerns the same subject matter and is based on the same cause of action.

The appellant has sought to have the first respondent bound by the dismissal of the first application by alleging that, in the earlier application, she was the privy of the second respondent. This is so because a privy to a party in legal proceedings is bound by the outcome of such litigation even if they do not participate in the actual proceedings by virtue of their relationship at law to the participating party.

Becks Theory and Principles of Pleading in Civil Action, 5th ED…, state:

“Persons are privy to parties when they claim or derive title or interest through or by parties…,.”

I cannot agree with the contention by the appellant that the first respondent was the privy of the second respondent in the earlier application before the court a quo. The first respondent is not asserting a right to the property that is derived from the second respondent. She is asserting an independent right to the property in her individual capacity. Whilst accepting that the property attached is joint matrimonial property, she avers that she has directly and indirectly contributed to the acquisition of the assets, which averment, in my view, amounts to averring ownership of the assets either outrightly or jointly with the second respondent.

There is no privity between co-owners of an estate simply because they jointly own a common asset.

It is therefore my finding that the first respondent was not the privy of the second respondent and is therefore not bound by the decision against the second respondent.

On the basis of the above, the second ground of appeal is dismissed.

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.

HH477-16 : RICHARD SEAGER vs ALESTER ZIYANGA
Ruled By: DUBE J

The applicant applies for an anti-dissipation order to restrain the respondent from removing and disposing of joint venture farm equipment owned by a partnership pending his claim.

The circumstances surrounding this application are as follows:

The applicant was the owner of UNA Farm, Wedza. The farm was subsequently offered to the respondent under the Land Reform Programme and the allocation is subject of disagreement between the parties.

The parties entered into a joint venture agreement in terms of which they would engage in farming activities.

The applicant was, in terms of the agreement, to supply farming equipment - including the farm. The respondent was responsible for the financial aspects of the joint venture as well as supervision of the growing of crops. The parties were to share profits and losses.

The applicant avers that the respondent has failed and refused to pay him his share of profits. The applicant also avers that the joint venture has bought a number of farming equipment which he lays a claim to.

On 23 June 2016, the applicant caused a summons to be issued under HC6415/16 claiming his share of the partnership profits. The applicant's protest is based on the averment that the respondent has started to remove agricultural equipment and other assets purchased from proceeds of the joint venture from the farm. The applicant has the apprehension that the respondent intends to defeat the object of his claim by removing assets from the farm so that there will be no evidence of the assets when he finally obtains judgment.

The applicant seeks an order barring the respondent from removing the joint venture equipment from the farm pending the finalisation of the summons action. The applicant avers that he has no other remedy to stop the respondent from removing and disposing of the agricultural equipment.

The respondent is opposed to the application.

He challenges the urgency of the matter as well as the propriety of this application....,.

The applicant issued summons claiming his share of the proceeds of the partnership on 23 June 2016. The applicant avers that he realized that the respondent was removing partnership equipment from the farm, namely, tractors, on 27 June 2016. The applicant immediately lodged this application on 29 June 2016....,.

The respondent submitted that the applicant filed a similar application in the Magistrates Court on 18 May 2016 seeking to prohibit him from removing any equipment from the farm. The court issued a rule nisi which was suspended on the return date.

He submitted, further, that the applicant has failed to disclose this fact to the court and contended that the applicant is abusing the court by filing a similar application in this court.

In paragraph 8 of the ex parte application filed at the Magistrates Court, the applicant avers that he wants the farm equipment ''thereat'' bonded so that the respondent is interdicted from taking any of the property outside the farm. He also says that he fears that the respondent is misappropriating his property he brought to the joint venture. In addition, he asks the court to stop removal of all the property from the farm.

The application does not deal solely with his personal property.

The applicant is not being candid with the court when he states that this application was prompted by what transpired after the issuance of the summons.

He knew as far back as May that he had a cause of action and did decide to ask the Magistrate Court to intervene. The relief sought is similar to that sought in the Magistrate's Court.

Having chosen to go to the Magistrates Court, the matter could not be filed in this court again. The same application is before me and the applicant is trying to circumvent an order of the Magistrates Court by way of this application.

He ought either to have appealed against that order or sought its review.

The matter is not urgent and is removed from the roll. The applicant is to pay the costs of this application.

HB46-14 : TOPPERS UNIFORMS PL vs HYDE PARK INVESTMENTS PL and TOTALLY UNIFORMS PL and AHMED ESAT and NKANI KHOZA and ZULEKA ESAT
Ruled By: MUTEMA J

The first respondent owns a building formerly known as Toppers Building, situate at corner Fort Street and 13th Avenue, Bulawayo [the premises].

The applicant leased the premises for several years carrying on the business of manufacturing and retailing school uniforms and other items of school wear. During that period, the applicant was wholly owned by the directors of the first respondent.

In about 2007, the then directors of the applicant sold their entire shareholding in the applicant to the applicant's current directors, viz Mohamed Zakariya Patel and Daud Isa Patel. The business was sold as a going concern.

The parties also concluded a restraint of trade agreement wherein it was agreed that the former shareholders would, for a period of five years, not engage in any school uniform manufacture and retail in competition with the applicant.

The applicant continued trading from the premises under a five year lease agreement.

Subsequently, the parties got embroiled in several acrimonious legal battles whose culmination was the conclusion of an out of court settlement on 30 October 2012 which was imbued with a Magistrates' Court order – annexure “B”.

Pursuant to paragraph 1 of the consent order, the applicant vacated the premises on 31 January 2014 and handed over the premises to the first respondent.

Upon retaking possession of the premises, the first respondent immediately put on display in the shop windows various types of uniforms for different schools in alleged direct contravention of the terms of paragraph 5 of the consent order, annexure “B”.

That paragraph 5 reads as follows:

“5. The plaintiff [1st respondent herein] shall not, directly or indirectly, after 31st January 2014, and on the entire property described in paragraph 1 above, sew and/or sell school wear and/or raw materials thereof or school related products for a period of 5 years from 31 January 2014….,.”

Alarmed by this development, the applicant's legal practitioners wrote a letter to the first respondent protesting at the unlawfulness of its actions and demanding that it removes the displayed uniforms from the shop windows.

This letter was responded to by the fourth respondent, on behalf of the first respondent, on 6 February 2014 stating, inter alia, that, they were only displaying the uniforms and not selling them so therefore there was no contravention of paragraph 5 of the consent order.

The applicant, however, contends that the real reason for displaying the uniforms is that across the road from the premises there is a shop called Totally Uniforms owned by the second respondent which is conducting the business of retailing school uniforms.

The second respondent is wholly owned by the directors of the first respondent.

What happens is that if a customer enters the premises enquiring about the displayed uniforms, the first respondent's staff refers the customer to Totally Uniforms across the road to buy. This, according to the applicant, amounts to the first respondent directly and indirectly manufacturing and selling school uniforms in breach of paragraph 5 of annexure “B”.

Further, the applicant contends, the premises are well known and generally associated with the manufacture and sale of school uniforms of virtually all schools in Bulawayo and the Matabeleland region if not throughout the country. The mention of the name Toppers is naturally linked to the premises. The name Totally Uniforms is displayed boldly and prominently in red on the second respondent's premises. The name somewhat resembles the applicant's trading name, Toppers Uniforms.

What the respondents are doing is all intended to hoodwink the school uniform buying public into thinking that the applicant is still operating from the premises and that the second respondent is somehow associated with the applicant – some form of passing off.

The foregoing is the reason why the applicant filed the urgent chamber application whose interim relief sought is:

“Pending the finalization of this matter, applicant is granted the following interim relief:

1. 1st, 3rd, 4th and 5th respondents be and are hereby ordered and directed to remove all school uniforms and any other type of school wear on display in the shop windows of or anywhere inside the premises formerly known as Toppers Building situated at 129A Fort Street/13th Avenue, Bulawayo.

2. 1st, 2nd, 3rd, 4th and 5th respondents be and are hereby interdicted and prohibited from manufacturing, selling, and advertising for sale in any manner whatsoever including referring customers to 2nd respondent any school wear, raw materials, or any school related products from the aforesaid premises.”

Counsel for the respondents, who said was standing in for Mr Lubimbi who is seized with the matter but is still at the Lupane Magistrates' Court, said his instructions were to raise the point in limine that the matter was not urgent for the following reasons:

The applicant once filed an ex parte application in the Magistrates' Court on 20 May 2012, in case number 2721/12, wherein it was alleged that some of the respondents herein had violated the court order granted by consent (annexure “B”). That application was dismissed on 12 November 2013. Thereafter, the applicant issued summons in the Magistrates' Court, under cover of case number 8616/13, against the first respondent herein raising the same issues. That litigation is still pending and is at plea stage of the pleadings.

In the event, the applicant is precluded from approaching this court three months after the plea was filed alleging that the matter is urgent.

The applicant deliberately omitted to disclose this information in its founding affidavit thereby hiding lack of urgency in the matter by omission.

Also, in paragraph 34 of its founding affidavit, the applicant avers that it has no alternative remedy, yet, the summons alluded to above constitute an alternative remedy.

I must say that the timing of the raising of the point in limine was a poor technique in litigation on the part of counsel for the respondents.

A point in limine must be timeously raised even where no opposing papers have been filed such as in casu. One cannot raise it after the other party had finished making submissions on the merits.

Be that as it may, the point in limine is ill-conceived.

If the ex parte application alleged to have been dismissed was under cover of case number 2721/12, as stated by counsel for the respondents, then, that averment cannot be true because that case number relates to the consent order granted on 30 October 2012 (annexure “B”). That order does not exhibit dismissal of any exparte application.

Over and above that, the parties in that suit were only the first respondent as plaintiff and the applicant as defendant.

Further, the parties in the summons in case number 8616/13 are only the applicant as plaintiff and the first respondent as defendant and the cause of action therein is hinged on alleged contempt of court of the consent order of 30 October 2012 (annexure “B”).

The allegations therein are that the defendant breached the consent order by leasing part of the premises to As Busy As A Bee and Tamara Fashions which entities were into manufacturing of school wear.

That relief, sought against the first respondent only, cannot ground lack of urgency and/or alternative relief against the second – fifth respondents cited in the present application. The respective reliefs being sought in the two instances are totally disparate in nature and the harm alleged in the present application being of a continuing nature; the point in limine has no leg to stand on.

HH08-12 : LOREEN MASHANGWA vs CHRISPEN BHADHI and TICHA DARANGWA and THE MINING COMMISSIONER GWERU
Ruled By: MAWADZE J

This is an urgent chamber application for a provisional order whose interim relief sought is stated as follows:“INTERIM RELIEF GRANTEDPending determination of the lawful owner of ANSH NORTH situated on the following map coordinates;Point A 0187976 ...

This is an urgent chamber application for a provisional order whose interim relief sought is stated as follows:

“INTERIM RELIEF GRANTED

Pending determination of the lawful owner of ANSH NORTH situated on the following map coordinates;

Point A 0187976
7820147

Point B 0188251
7820232

Point C 0188307
7820018

Point D 0188139
7820018

The first and second respondents be and are hereby barred and interdicted from carrying out any mining operations on ANSH NORTH and coming within one hundred metres of the coordinates stated above.

SERVICE

Service of this provisional order to be effected by a clerk in the employ of Messrs Chinyama and Partners Legal Practitioners.”

The terms of the final order sought are in the following terms;

“TERMS OF FINAL ORDER SOUGHT

1. The applicant be and is hereby declared the sole and lawful holder of title over six gold reef claims knows as ANSH NORTH situated on the following map coordinates:

Point A 0187976
7820147

Point B 0188251
7820232

Point C 0188307
7820018

Point D 0188139
7820018

2. The first and second respondents be and are hereby barred and interdicted from entering and mining on ANSH NORTH on the map coordinates stated in (1) above.

3. The first and second respondents to pay the cost of suit on a legal practitioner to client scale.”...,.

I turn to the facts of the matter giving rise to this application.

It is common cause that the applicant and the first respondent are registered owners of mining claims in the Midlands Province, being ANSH NORTH 28896 for the applicant, and ANSH BLUE 4 29220 for the first respondent. Both the applicant and the respondent have attached their respective registration licences or certificates.

The applicant's claim was registered on 10 December 2010 and there is also the applicant's inspection certificate indicating that the next inspection is due on 10 December 2012. The first respondent's certificate of registration, of ten (10) good reefs, is dated 7 July 2011. The first respondent has also attached Annexure D to the notice of opposition which shows the map of the first respondent's claim ANSH NORTH BLUE 4.

The map coordinates for the claims for both the applicant and the first respondent are not in issue and can be illustrated as tabulated hereunder;

Applicant 1st Respondent

Point A 0187976 0188899
7820147 7820142

Point B 0188251 01889302
7820232 7820441

Point C 0188307 0189378
7820018 7820263

Point D 0188139 0188957
7820018 7819944

The applicant, in her founding affidavit, stated that she has been carrying out mining operations on her claims since December 2010. According to the applicant, what has led to this urgent application for an interdict is that on or about 20 November 2011 the first and second respondents, both residents of Number 6120 Gwee Street, South Downs, Gweru descended on or invaded the applicant's claim, ANSH NORTH, and started to mine gold ore to the exclusive benefit of the first and second respondents.

According to the applicant, she protested against this blatant disregard of her mining rights and produced her certificates of registration for the six (6) gold reefs ANSH NORTH claim and the inspection certificates to the first and second respondents.

The applicant stated that the first respondent countered this by producing his own certificate of registration dated 7 July 2011 but was unable to produce the map coordinates for their alleged claims.

The second respondent had no certificate of registration.

The applicant alleges, therefore, that the first and second respondents are mining within the applicant's map coordinates illegally.

It is the applicant's contention that the certificates of registration bestows upon her the legal right to be at ANSH NORTH gold claims in terms of the Mines and Minerals Act [Chapter 21:05] (hereinafter the Act).

The applicant avers, in her founding affidavit, that she has been carrying out mining operations lawfully, in a peaceful and undisturbed manner, from December 2010 until about 20 November 2011 when the first and second respondents unlawfully came on to her claims thereby taking the law into their own hands and imposing themselves on the applicant's mining claims.

The basis for the urgent application, according to the applicant, is that the unlawful conduct by the first and second respondents is ongoing and that there is no other remedy available to the applicant as the first and second respondents are not accounting for the gold mined at the applicant's claims hence the applicant would not be able to sue for damages.

It is the applicant's belief that since the injury perpetrated by the first and second respondents is on-going in nature, this matter cannot await the normal court processes to be heard as irreparable harm would be occasioned to the applicant.

It is trite law that the requirements for an interdict are as follows;

(i) A prima facie right even if it is open to doubt;

(ii) An infringement of such right by the respondent or a well-grounded apprehension of such infringement;

(iii) Well-grounded apprehension of irreparable harm to the applicant if the interlocutory interdict should not be granted and if he should ultimately succeed in establishing his right finally;

(iv) The absence of any satisfactory remedy; and

(v) That the balance of convenience favours the granting of an interlocutory interdict.

See Bozimo Trade & Development Company (Pvt) Ltd v First Merchant Bank of Zimbabwe Limited & Ors 2000 (1) ZLR 1 (H)…,.

The applicant's contention is that she meets all the above requirements.

The certificate of registration of her claim, ANSH NORTH, confers upon her a prima facie right. Her view is that the injury caused to her by the first and second respondents is clear as the first and second respondents are infringing upon her right to own the mining claims by extracting gold ore on her claim in quantities unknown to her, illegally, and to the sole benefit of the first and second respondents.

The applicant's view is that her fear of irreparable harm is well grounded as the gold extracted by the first and second respondents is not quantifiable and proceeds thereof remain unaccounted for. This would make it difficult, if not impossible, for the applicant to claim for damages. As a result, the applicant strongly feels that there is no other satisfactory remedy available to her save to seek the protection of the law through the interlocutory interdict.

Lastly, the applicant contends that the balance of convenience favours the granting of an interlocutory interdict on the basis that she was granted the certificate of registration in December 2010 ahead of the first respondent who was granted his certificate of registration in July 2011; that she has been on site earlier than the first and second respondents and is unable to quantify the loss occasioned to her by the first and second respondents even if she would opt to sue for damages.

Counsel for the first and second respondents did not seek to challenge the applicant's perception of the law as already articulated. Instead, the first and second respondents opposed this application on basically two grounds;

(i)...,.

(ii) The second basis upon which the argument by the first and second respondents is premised is that the applicant's request for an interlocutory interdict lacks merit and is based on false allegations of facts.

The first and second respondents averred, in their respective opposing affidavits, that the applicant's founding affidavit is fraught with material omissions which borders on deliberate misrepresentation of facts and falsehoods....,.

I am also inclined to dismiss this application for not only the lack of merit but that the applicant has not been candid with the court.

In the case of Graspeak Investments (Pvt) Ltd v Delta Corporation (Pvt) Ltd & Anor 2001 (2) ZLR 551…, NDOU J dealt with the question of material non-disclosure, mala fides or dishonesty in urgent applications and how this should impact upon the case of the offending litigant.

The learned judge had this to say:

“The courts should, in my view, discourage urgent applications, whether ex parte or not, which are characterised by material non disclosures, mala fides or dishonesty.

Depending on the circumstances of the case, the court may make adverse or punitive orders as a seal of disapproval of mala fides or dishonesty on the part of litigants.

In this case, the applicant attempted to mislead the court by not only withholding material information but also by making untruthful statements in the founding affidavit. The applicant's non-disclosure relates to the question of urgency.

In the circumstances, I find that the application is not urgent and dismiss the application on that basis.”

In casu, the applicant has withheld material information in the founding affidavit both in relation to the question of urgency and the merits of the matter.

Counsel for the applicant could not make meaningful submissions in that regard.

Let me deal with the material non-disclosure by the applicant which only became apparent after the first and second respondents had filed opposing affidavits and relevant annexures.

The applicant did not disclose, that, when this dispute arose, between the applicant and the first and second respondents, she referred the dispute to the Mining Commissioner, Gweru, Midlands possibly in terms of the Mines and Minerals Act [Chapter 21:05] (hereafter the Act).

The Mines and Mineral Act provides various remedies in sections 345, 346, 348, 353 and 354. I find no cause to refer in any detail to these provisions – suffice to state that some of the provisions relate to jurisdiction of the Mining Commissioner to investigate and determine complaints, the judicial powers bestowed upon Mining Commissioners, the procedure in summary hearing of complaints by Mining Commissioners, powers of the Mining Commissioner to deal with disputes relating to encroachment, and the power to grant injunctions in appropriate cases.

The Mines and Minerals Act, therefore, provides various domestic remedies which an aggrieved party may elect to pursue before approaching this court.

The applicant, in a very dishonest manner, has decided to approach both the Mining Commissioner and this court with the same dispute without making/noting that disclosure to this court, a phenomenon generally described as double dipping or forum shopping.

When the Mining Commissioner received the applicant's complaint, a letter was written, by the Mining Commissioner, to the officer in charge CID Minerals Gweru on 2 December 2011 which letter was copied to the applicant and the first respondent. The letter acknowledges the receipt by the Mining Commission of the complaint by the applicant that the first and second respondents were mining gold ore on the applicant's claim, ANSH NORTH, and that the Mining Commissioner was in the process of examining all relevant documents pertaining to the claims owned by the applicant and the first respondent and to also visit the disputed area to ascertain, physically, the location of the claims.

Lastly, the Mining Commissioner requested the police to stop mining operations at the disputed site until the matter is finalised and that anyone claiming the area must approach the Mining Commissioner first for verification and clearance.

All this material information was not disclosed by the applicant and no explanation was proffered for that.

If indeed the Mining Commissioner is seized with the matter, and had stopped mining operations at the disputed site until further notice, what would be the basis for the applicant to seek an interlocutory interdict?

My view is that the applicant decided not to reveal this vital information in order to create the urgency now averred in the application and justify the basis to seek the provisional order.

This letter was written eight days before the applicant approached this court.

The applicant did not even deem it proper to refer to or attach a copy of the complaint she referred to the Mining Commissioner.

The Mining Commissioner, three days later, on 5 December 2011, well before this application, wrote another letter to officer in charge CID Minerals Shurugwi making reference to the letter dated 2 December 2011 written to CID Minerals Gweru. The contents of the letter are self-explanatory and are as follows:

“Be advised that there should be no dispute on these mines at all as according to records in this office 28896 ANSH NORTH is to the east of the Shurugwi-Zvishavane highway and 299220 ANSH BLUE 4 is to the west of the same highway. Whoever is mining on the wrong side of the highway must be stopped.”

This letter is copied to the applicant, the first respondent, and officer in charge, CID Minerals Gweru.

Again, the applicant chose not to refer to this vital information in her founding affidavit. Such disclosure would have compelled the applicant to explain the current situation obtaining on the site.

In a letter dated 14 December 2011, the Mining Commissioner advised the first and second respondents counsel of the coordinates for corner beacons for the first respondent's claim 29220 ANSH BLUE 4 as already explained. The mala fides on the part of the applicant is also apparent in this letter to which a copy of the map of the first respondent's claim was attached. The relevant part reads as follows:

“Loreen Mushangwa (applicant) refused to produce the plan endorsed by this office. However, her 28896 (ANSH NORTH) is approximately 800 metres south west of homestead PL4–Shurugwi and falls east of Shurugwi-Zvishavane highway while Bhadhi (first respondent claim) falls west of the same highway.”

The effect of the non-disclosure of this material information, by the applicant, is that the applicant has not explained, in the founding affidavit, the current nature of the dispute warranting the granting of the relief sought in view of the explicit explanations and orders issued by the Mining Commissioner.

The applicant did not even disclose the outcome of findings, if any, made by the Mining Commissioner.

The urgency referred to by the applicant is therefore perjured and self-created as there is no evidence that the first and second respondents have defied the instructions by the Mining Commissioner and the police.

Further, on the facts before me, there is no basis for the claim or remedy sought.

I am therefore inclined to make an adverse finding in relation to the applicant's cause as a seal of my disapproval of her mala fides, material non-disclosure, and apparent dishonesty.

Lastly, I now deal with the issue of costs.

Counsel for the respondents sought an order for costs on a higher scale and counsel for the applicant was of the view that there is no basis for punitive costs.

My view is that the manner in which the applicant has conducted herself shows a wanton abuse of the court process. This application is not informed by the applicant's genuine desire to enforce her rights but rather to mislead the court and possibly win at all costs.

The relief sought was apparently granted by the third respondent at the behest of the applicant. There is no evidence that the order or directive given by the third respondent is no longer in force. In fact, the applicant chose to conceal all these facts from the court. There is therefore no need for this application besides wasting the court's valuable time and compelling the first and second respondents to defend themselves in this court.

All in all, the applicant has not been open, candid, honest, and sincere with the court.

The decision by the court to set a matter down on an urgent basis is informed, mostly, by the applicant's founding affidavit. In my view, it is high time that litigants should be made aware that they should not abuse this procedure and that such conduct would invariably be visited with a punitive order of costs.

Accordingly, the application is dismissed with costs on a legal practitioner and client scale.

HH74-16 : TRIANGLE LTD and HIPPO VALLEY ESTATES LTD and MKWASINE ESTATE and THE ZIMBABAWE SUGAR ASSOCIATION EXPERIMENT STATION (PVT) LTD vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS' UNION and OTHERS
Ruled By: MAKONI J

The applicants approached this court seeking a provisional order in the following terms:“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. The 1st respondent, its members, and all other persons acting through it and on ...

The applicants approached this court seeking a provisional order in the following terms:

“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. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action arising from the dispute around the 2015 to 2016 collective bargaining agreement, pending the finalisation of the dispute in accordance with due process.

2. That the 1st respondent shall pay the costs of this application on a legal practitioners and client scale.

INTERIM RELIEF

Pending confirmation or discharge of the final order the applicants are granted the following interim relief:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action.

2. Should any member of the 1st respondent resort to the said collective job action, such action shall be unlawful and the applicants shall have the right to bring such member before a disciplinary hearing.

3. The 2nd respondent shall, within 7 working days of this order, convene a meeting of the parties to the dispute for purposes of referring the matter to arbitration.

4. That leave is hereby granted to the applicants' legal practitioners or the Sheriff to attend to the service of this order forthwith upon the respondents in accordance with the Rules of High Court.”

The background to the matter is that the first respondent (Zimbabwe Sugar Milling Industry Workers Union) embarked on a collective job action sometime between 27 November 2015 to around 18 December 2015. As a result of the intervention of the second respondent (the Minister of Public Service, Labour and Social Welfare), the applicants and the first respondent agreed to the termination of the collective job action which termination took effect on 18 December 2015.

I must, at this stage, point out that there is a dispute between the parties whether the collective job action was suspended or terminated. The first respondent argues that it was suspended whilst the applicants argue that it was terminated.

The parties were supposed to resume efforts to resolve the dispute by way of due process from where they had left. This failed for reasons I will not go into.

The first respondent then wrote advising the applicants that it was resuming the collective job action.

The applicants then brought the present proceedings seeking to interdict the first respondent from embarking on a collective job action.

It is the applicants position that the parties agreed to the termination of the collective job action. It was not suspended. It cannot be resurrected.

The threatened and purported resumption of the collective job action is defective and such action will be unlawful for want of compliance to the provisions of the Labour Act [Chapter 28:01] (The Act) on collective job action.

The application was opposed by the first (Zimbabwe Sugar Milling Industry Workers Union) and fourth (Sugar Production Milling Allied Workers Union of Zimbabwe) respondents....,.

The first respondent raised, in limine, that this court has no jurisdiction to deal with this matter.

Counsel for the first respondent contended, that, in terms of section 89(6) of the Labour Act, the Labour Court was given exclusive jurisdiction to entertain labour disputes.

In terms of section 104 of the Labour Act, the employees are entitled to go on strike. If the employer regards the job action as illegal he will be entitled to act in terms of section 106 to apply for a show cause order returnable to the Labour Court which then disposes of the matter in terms of section 107. It further contended, that, in terms of section 106(2)(b), the second respondent (the Minister of Public Service, Labour and Social Welfare) can issue interim orders which include suspension of the collective job action.

The applicants seek to interdict the first respondent to embark on a collective job action which it perceives to be unlawful. The applicants are asking the court to take the powers given to the second respondent in terms of section 104 of the Labour Act.

Counsel for the first respondent further submitted that the relief that the applicants seek is available in the Labour Court.

Paragraph 2 of the Provisional Order is a declaratur which is not competent as interim relief.

In paragraph 3, they seek to compel the second respondent to convene a meeting of the parties for purposes of referring the matter to arbitration. Such relief can be obtained in terms of the Labour Act.

Counsel for the first respondent further submitted that the applicants had not exhausted the available domestic remedies.

They could appeal in the Labour Court in terms of section 110(1) of the Labour Act.

The applicants have since filed an application in the Labour Court for the determination of the substantive dispute between the parties.

Why should they then bring this issue before this court?...,.

Counsel for the applicants confirmed that the applicants have filed an application in the Labour Court. They therefore require that the status quo ante be maintained until the main dispute has been disposed of.

HH02-21 : ERNEST MHAMBARE vs ALFRED MWAZHA and OTHERS
Ruled By: MUREMBA J

Following a leadership dispute in the African Apostolic Church (VaApostora VeAfrica) which is the tenth respondent in this matter, the applicant approached this court, by way of a court application in case number HC2402/20 for a relief.

He petitioned the court, in his capacity as an interested party, reverend and church member, for a declaratur to set aside the purported appointment of the first respondent, Alfred Kushamisa Mwazha as the successor to the founder and Archbishop of the church, Paul Ernest Mamvuru Mwazha (Paul Mwazha) now a centurion at 102 years.

The first respondent (Alfred Mwazha) together with the second, third and fourth respondents (Ngoni Mwazha, Masimba Mwazha and James Mwazha) are sons of Paul Mwazha.

Whilst the first (Alfred Mwazha) and fourth (James Mwazha) respondents are bishops in the church, the second respondent (Ngoni Mwazha) is a former member and bishop of the church.

The third respondent (Masimba Mwazha) is a Seventh Day Adventist.

The rest of the respondents, from the fifth to the ninth respondents (Richard Juru, Elson Tafa, Charles Tekeshe, Lovemore Mharadze and Norman Siyamuzhombwe), hold high ranking positions in the church, the tenth respondent (African Apostolic Church (VaApostora VeAfrica)).

I must particularly mention that the fifth respondent (Richard Juru) is the General Secretary of the church....,.

In HC2402/20, it was the applicant's contention, that, the first respondent (Alfred Mwazha) usurped power by seeking to ascend to the position of Archbishop and leader of the tenth respondent (African Apostolic Church (VaApostora VeAfrica)) unconstitutionally, contrary to the provisions of the tenth respondent's Constitution.

He contended, that, the first respondent acted in connivance with the second to ninth respondents (Ngoni Mwazha, Masimba Mwazha, James Mwazha, Richard Juru, Elson Tafa, Charles Tekeshe, Lovemore Mharadze and Norman Siyamuzhombwe) in usurping power.

The applicant contended, that, the first respondent was purporting to have been appointed by the Archbishop as his successor.

Although the respondents opposed the application, CHITAPI J made a finding, that, the note the respondents were relying upon did not support their claim that the Archbishop nominated or appointed the first respondent as successor. He granted the following order on 3 December 2020:

“1 The purported nomination and/or appointment of the first respondent, as the Archbishop or successor to the Archbishop of the tenth respondent, presently Ernest Paul Mamvura Mwazha, is unconstitutional vis–a-vis the 10th respondent's Constitution, and, resultantly, is null and void.

2. Any appointments and re-assignments of personnel made by the 1st respondent, and other actions which changed the administration of the church made by the 1st respondent, in the purported position of Archbishop, are null and void.

3. The respondents are each and all of them ordered to comply with the provisions of clause 9.2.2 of the 10th respondent's Constitution in regard to the succession dispute bedeviling the 10th respondent. The respondents must comply with this order within seven (7) days of the date of this order.

4. The 1st to 9th respondents, jointly and severally, the one paying the other to be absolved, shall pay costs of this application on a party and party scale.”

Dissatisfied or aggrieved by the judgment of this court, the respondents noted an appeal, under SC552/2020, on 11 December 2020.

In turn, the applicant, on 17 December 2020, filed the present urgent chamber application for leave to execute pending appeal.

It is the applicant's contention, that, since noting the appeal, the first to ninth respondents (Alfred Mwazha, Ngoni Mwazha, Masimba Mwazha, James Mwazha, Richard Juru, Elson Tafa, Charles Tekeshe, Lovemore Mharadze and Norman Siyamuzhombwe) have been harassing him and other members of the church. They have been violently disrupting church services together with their followers. They have taken over the church structures and have been influencing their followers to disrupt church gatherings and places of worship.

He then referred to some specific incidents which I will refer to later on in the judgment.

The applicant averred, that, he wants peace and tranquillity.

In response to the application, the respondents raised two (2) points in limine....,.

I now revert to the points in limine raised by the respondents. As I have already stated elsewhere above, the respondents raised two (2) points in limine:

(i) Firstly, that the matter is not urgent.

(ii) Secondly, that the relief sought is not the remedy for the injury alleged. In addition to that, the interim relief and the final relief that are being sought are identical.

Urgency

The respondents averred that the matter should not be treated as urgent because the applicant is seeking leave to execute an order that was granted in an ordinary application on an urgent basis.

They averred, that, although the face of the judgment speaks of an urgent application, the matter was brought as an ordinary court application which shows that the applicant himself accepted that the matter was not urgent at the time that he filed it.

The applicant did not dispute that the matter was brought as an ordinary application and not as an urgent application.

The respondents averred, that, the certificate of urgency does not demonstrate the urgency of the matter save to make bald allegations of urgency. They averred, that, the applicant did not, in the founding affidavit, demonstrate how and when the urgency arose. The respondents averred, that, more importantly, no evidence was placed before the court to show that there was violence and what the form of violence was. They contended that it seems that the applicant is bent on having an application for leave to execute on an urgent basis when there is no such urgency.

In the certificate of urgency, it is stated, that, the respondents filed the appeal with the aim of abusing, victimising, and harassing members of the church.

The applicant, and over a hundred thousand members of the church, have been suffering the brunt of the respondents continuous violence and illegal actions and there is nowhere to run.

It was further averred, that, the applicant acted with urgency.

The notice of appeal was filed on 11 December 2020 and the said infractions had happened during the course of the previous week. There is imminent danger to the applicant's rights, most importantly the right to gather, freedom of assembly, and freedom of conscience. If the respondents are allowed to persist with their unlawful conduct it will lead to further violence, injury, and destruction of property.

In the founding affidavit, the applicant averred, that, the first to ninth respondents have been waging a war against church members.

They have been using groups of supporters to ferment violent habits, disrupt church services, and alienate church property. The places of worship have been turned into places of conflict. Vulnerable members, such as orphans, widows, the aged, and children are now unable to attend church services because of the violence. Their rights to freedom of assembly, association, and conscience as enshrined in sections 58 and 60 of the Constitution of Zimbabwe Act 2013 need to be protected and preserved pending appeal.

The applicant contended, that, there is danger of irreparable prejudice to him and hundreds of thousands of other church members in several countries and the ill Archbishop.

The applicant averred that he acted at the earliest opportunity in bringing this application.

Counsel for the applicant submitted, that, the applicant did not waste time in protecting his rights because the disruption of churches happened from 4 December 2020 up to 10 December 2020. The notice of appeal was filed on 11 December 2020 and the violence continued up to 14 December 2020. The application was then filed on 17 December 2020.

She further submitted, that, by noting the appeal, the respondents wanted to disobey the court order as it is frivolous and vexatious.

I find merit in the objection by the respondents.

The certificate of urgency, and the founding affidavit, do not inform why the application for leave to execute has to be heard on an urgent basis given that the main matter giving rise to this application was brought and heard as an ordinary application.

The judgment thereof by CHITAPI J shows that the hearing started on 31 July 2020 and the judgment was handed down on 3 December 2020. In between the two dates, the matter was heard on 5 August and 14 August 2020.

The question that comes to mind is how then can execution thereof become urgent all of a sudden?

A matter is urgent, if, at the time the need to act arises, the matter cannot wait: see Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H).

In other words, time being of the essence in urgent matters, the applicant should act when the need to act arises.

The certificate of urgency, and the founding affidavit, must therefore exhibit urgency in the manner that the applicant reacted to the events or situation complained of.

If the situation complained of has been existing for a significant time before the application is made, the matter is not urgent: see Gwarada v Johnson & Ors 2009 (2) ZLR 159 (H).

In casu, the anarchy in the church is what necessitated the filing of the present application.

The applicant is basically complaining about physical violence in the church, disruption of church services, and alienation of church property.

Despite his founding affidavit being 16 pages long, he only referred to three (3) specific incidents.

The rest are generalised averments about people fighting in the church over public address systems and other property of the church.

There are also averments about people having resorted to leaving children, wives, and the sick at home fearing violence at church.

It is not stated where and when this happened. The specific perpetrators thereof are not mentioned.

The following are the specific incidents that the applicant referred to:

On 5 December 2020, there was violence at Hopely Circuit, Zone 6, Harare. One Chikono came with a group of people to disrupt church service. They claimed to be acting for and on behalf of the first respondent. A case of assault was opened under RRB4620501 by the victim.

In Mutare, the weekend after the judgment was delivered, all church services were disrupted. People appointed into leadership positions by the first respondent tried to forcefully take control of church proceedings, resulting in resistance from the congregation. This led to violence erupting. Police had to be called to maintain peace and order during services.

The applicant also referred to an assault incident that allegedly happened on 27 October 2020 at Caledonia Farm African Apostolic Church, Eastview Circuit. One Onias Sibanda assaulted one Hatidani Maphosa and a police report was made at Mabvuku Police station under RRB4539885.

These incidents show, that, the anarchy in the church has been ongoing since October 2020 - well before the judgment was delivered on 3 December 2020. It continued even after the judgment had been passed and before the appeal was noted on 11 December 2020.

The incident of 5 December 2020 is pertinent.

Even after the appeal was noted, the anarchy is said to have continued. This has been a continuing state of affairs, with the bulk of the incidents complained of having happened before the appeal was noted on 11 December 2020.

The matter cannot therefore be urgent.

The applicant did not act when the need to act arose, as far back as October 2020, right up to the time the appeal was noted on 11 December 2020.

His application does not exhibit urgency in the manner that he reacted to the events or situation complained of.

The events or situations complained of were in existence for a significant time before the application was made. The matter cannot therefore suddenly become urgent because the respondents have filed an appeal.

To make matters worse, other than generalised averments, the applicant refers to no specific incident that happened after the 11th of December 2020 - after the appeal was filed.

Therefore, the applicant has not laid any foundation for his contention, that, since noting the appeal, the first to ninth respondents, together with their followers, have been harassing him and other members of the church by violently disrupting church services and taking over the church structures.

The matter cannot therefore be urgent.

Repetitive and unsubstantiated generalized averments, that the applicant's and other church members constitutional rights have been violated, do not help the applicant's case.

The relief sought is not the remedy for the injury alleged: what is alleged is wrongful conduct of violence, disruption of church services, and alienation of church properties.

On this basis, the applicant is seeking leave to execute pending appeal.

It is the respondents contention, that, the relief being sought by the applicant is not the remedy for the injury or wrongful conduct alleged. Their argument is that the injury complained of does not arise from the inability to execute the judgment that was granted by CHITAPI J on 3 December 2020.

Counsel for the respondents submission was, that, if these allegations are proven, they would entitle the applicant to some other remedy, like an interdict, but, certainly not leave to execute pending appeal.

His argument was that the judgment that the applicant is seeking to execute pending appeal is centred on a succession dispute between the parties which emanated from the interpretation of a note the respondents are relying upon as the basis of the first respondent's appointment. He further submitted, that, the judgment had nothing to do with the anarchy that the applicant is now complaining of in the present application. He argued that the two disputes are different. As such, the applicant cannot seek to execute a judgment that was granted on a different cause of action on the basis of a different cause of action.

I am in agreement.

A judgment granted on a different cause cannot be executed on the basis of a different dispute.

In my discussion of the first point in limine, on urgency, I have already demonstrated, that, the wrongful conducts that necessitated the filing of the present application started as way back as October 2020 and continued after the judgment was delivered, before the appeal was noted.

The delivery of the judgment did not stop the anarchy.

The applicant did not, in his founding affidavit, explain how its execution pending appeal will stop the anarchy.

The judgment simply declared unconstitutional the purported appointment of the first respondent as the successor to the Archbishop. It nullified his appointment. It also nullified all appointments of personnel that he made in his purported position as Archbishop. The judgment further ordered the respondents to comply with the provisions of clause 9.2.2 of the tenth respondent's Constitution, for the Priesthood Council (a council of Bishops) to preside as the head of the church on behalf of the Archbishop.

If the judgment is executed, it will change the leadership of the church into a further dimension which is totally different from what is prevailing now and what was prevailing before the purported appointment of the first respondent. It is going to remove the first respondent from the position of Archbishop. At the same time, it is not going to restore Paul Mwazha as the Archbishop.

The question is: how is all of this going to resolve or stop the anarchy that has been ongoing since October 2020 - well before the judgment was delivered?

The applicant did not explain the link between the execution of the judgment pending appeal and the wrongful conduct complained of.

I am in agreement with the respondents that the two are divorced from each other. I will thus uphold the point in limine....,.

The two points in limine are interwoven as the second point in limine also determines whether or not the matter is urgent.

The applicant is seeking leave to execute judgment pending appeal, on an urgent basis, on the basis of a dispute that is different from the dispute that gave rise to the judgment. Clearly, the relief that he is seeking is not the remedy for the injury alleged.

In the circumstances, the matter cannot be urgent, even if it was timeously filed a few days after the appeal was noted. The relief sought is also an important consideration in determining whether or not the matter is urgent. If there is no link, whatsoever, between the injury complained of and the relief sought, as is the situation in casu, the matter cannot be urgent.

In the result, I make the determination, that, the matter is not urgent. It be and is hereby struck off the roll with costs.

Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

MAKARAU JCC:This is an application in terms of section 175(3) of the Constitution of Zimbabwe, for the setting aside in its entirety, of a High Court declaratory order handed down on 15 May 2021. The order, issued in respect of two distinct and separately filed applications, invalidated certain conduct by ...

MAKARAU JCC:

This is an application in terms of section 175(3) of the Constitution of Zimbabwe, for the setting aside in its entirety, of a High Court declaratory order handed down on 15 May 2021. The order, issued in respect of two distinct and separately filed applications, invalidated certain conduct by the President as unconstitutional. This it allegedly did in the first of its two parts.

Background

We summarise the facts giving rise to this application from the two applications that were filed in the High Court under case numbers HC2128/21 and HC2166/21, respectively. The facts are not complex.

The facts of this application coalesce, and relevantly so, around 15 May 2021 when the Chief Justice, Judge Malaba, reached the age of seventy. A few days before that date, on 7 May 2021 to be precise, the Constitution of Zimbabwe Amendment (No.2) Act (No.2 of 2021) came into force.

Among other provisions, it amended section 186 of the Constitution to provide for the tenure of judges in the following terms:

“(1) The Chief Justice and the Deputy Chief Justice hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire unless before they attain that age they elect to continue in office for an additional five years;

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(2) Judges of the Constitutional Court are appointed for a non-renewable term of not more than fifteen years; but

(a) They must retire earlier if they reach the age of seventy unless, before they attain that age, they elect to continue in office for an additional five years:

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(b) After the completion of their term, they may be appointed as judges of the Supreme Court or the High Court, at their option, if they are eligible for such appointment.

(3) Judges of the Supreme Court hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire, unless, before they attain that age, they elect to continue in office for an additional five years:

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(4) Notwithstanding subsection (7) of section 328, the provisions of subsections (1), (2) and (3) of this section shall apply to the continuation in office of the Chief Justice, the Deputy Chief Justice, Judges of the Constitutional Court and Judges of the Supreme Court.”

Acting in accordance with the provisions of section 186 of the Constitution, as amended, the Chief Justice exercised the option to extend his tenure of office beyond the age of seventy for an additional five years.

By letter dated 11 May 2021, the seventh respondent, the President, accepted a medical report as to the mental and physical fitness of the Chief justice to continue in office.

The third (Musa Kika), fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Mutanda) respondents formed the firm view, that, the seventh respondent (the President), by accepting the medical report, that the Chief Justice was mentally and physically fit to so continue in office, had subverted the correct constitutional position.

They filed the two applications in the High Court that we have detailed above, challenging the continuation in office of the Chief Justice for an additional five years beyond 15 May 2021.

In his application, the third respondent (Musa Kika), in addition to the Chief Justice, cited as respondents all the judges of the Supreme Court and some judges of the High Court.

At the time of the filing of the application, the five judges of this Court, other than the Chief Justice and the Deputy Chief Justice, were Supreme Court judges, acting as Supreme Court judges and were cited as such. Substantive appointments to this Court were made subsequent to the filing of the applications a quo but before the hearing of this application.

Whilst materially and correctly so, the third respondent (Musa Kika) averred in his application, that, the Chief Justice had opted to exercise the option introduced by the amendment, no such averment was made in respect of any or all of the other judges who were cited as respondents under case number HC2128/21.

We revert to this fact in detail later.

The primary relief sought in the applications a quo was a declaration that the amendment to the Constitution, in section 186, did not apply to the Chief Justice and the judges cited as respondents. Specifically, it was claimed, that, the amendment did not have any force and effect on the tenure of the Chief Justice and the cited judges as such an interpretation would fall foul of the provisions of section 328(7) of the Constitution.

Section 328(7) of the Constitution provides that:

“(7) Notwithstanding any other provision of this section, an amendment to a term–limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.”

The two applications, both brought urgently, were opposed on truncated dies induciae in accordance with the terms of a case management meeting order to which all the parties agreed.

At the end of the hearing of the applications, as indicated above, the court a quo issued a singular order in the following terms:

“IT IS DECLARED THAT:

1. The second respondent in HC2128/21 who is also the second respondent in HC2166/21 ceased to hold the office of the Chief Justice of Zimbabwe and judge by operation of law on 15 May 2021 at 4:00 hours.

2. The extension of the length of time in the office of the judge beyond the age of seventy provided for in section 186 of the Constitution does not apply to the second to fourteenth and eighteenth respondents.

3. There shall be no order as to costs.”...,.

We observe, common cause as it is, that, although the two applications a quo were brought on a certificate of urgency, such urgency was not demonstrated regarding the issuance of the second part of the order.

The third respondent made no averment in his application that the judges had indicated, by word or by deed, that they were about to exercise the option to remain in office for an additional five years at the same time that the Chief Justice did, or immediately thereafter.

It was clearly not the position of the third respondent a quo that the harm sought to be cured or arrested by the second part of the order a quo was imminent or needed the urgent attention of the court.

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Urgency re: Forum Shopping, Contemptuous, Mala Fide, Ill-Advised, Frivolous and Abuse of Court Process Proceedings

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HH08-12 : LOREEN MASHANGWA vs CHRISPEN BHADHI and TICHA DARANGWA and THE MINING COMMISSIONER GWERU
Ruled By: MAWADZE J

HH74-16 : TRIANGLE LTD and HIPPO VALLEY ESTATES LTD and MKWASINE ESTATE and THE ZIMBABAWE SUGAR ASSOCIATION EXPERIMENT STATION (PVT) LTD vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS' UNION and OTHERS
Ruled By: MAKONI J

HH02-21 : ERNEST MHAMBARE vs ALFRED MWAZHA and OTHERS
Ruled By: MUREMBA J

Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

Categories

Law Portal Zimbabwe

Urgency re: Forum Shopping, Contemptuous, Mala Fide, Ill-Advised, Frivolous and Abuse of Court Process Proceedings

HH57-12 : CENTRA (PVT) LTD vs PRALENE MOYAS and DEPUTY SHERIFF, HARARE Ruled By: BERE J

HH99-12 : SHUNGU ENGINEERING (PVT) LTD vs SIMBARASHE SANGONDIMAMBO & ORS Ruled By: MATHONSI J

HB102-09 : ERMANUS GERHADUS GROVE vs MARTIN MAKONESE and MRS MARWISA and MR CHIGARIRO Ruled By: KAMOCHA J

HH61-10 : WILLIAM WACHENUKA vs JOHN STRONG (PRIVATE) LIMITED and TOBS STRONG (PRIVATE) LIMITED and MINISTRY OF LANDS AGRICULTURE AND RESETTLEMENT Ruled By: BERE J

HH57-10 : AFRICAN CONSOLIDATED RESOURCES PLC and OTHERS vs MINISTER OF MINES AND MINING DEVELOPMENT and SECRETARY FOR MINES AND MINING DEVELOPMENT and CHIEF MINING COMMISSIONER Ruled By: UCHENA J

HH192-10 : AEPROMM RESOURCES (PVT) LTD vs SAMUEL MAZOWE and PATTERSON TIMBA and STEVENSON TIMBA and MAGGIE DITIMA and TONDESAI KAPONDO Ruled By: MTSHIYA J

HH333-13 : GIVEMORE SAMBADZI and SALATIEL NHUBU vs REGISTRAR OF DEEDS Ruled By: BHUNU J

HB48-13 : T.M.R. (PVT) LTD vs KWEKWE PROPERTIES (PVT) LTD and PROVINCIAL MAGISTRATE, KWEKWE N.O. and MESSENGER OF COURT, KWEKWE N.O. Ruled By: KAMOCHA J

HH309-14 : TAFARA PANDE vs MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS & NATIONAL HOUSING and MAGISTRATE NDOKERA, N.O. and MESSENGER OF COURT/DEPUTY SHERIFF MASVINGO Ruled By: MATHONSI J

HH631-15 : GOLDEN REEF MINING (PRIVATE) LIMITED and FERBIT INVESTMENTS (PRIVATE) LIMITED vs MNJIYA CONSULTING ENGINEERS (PTY) LIMITED and THE SHERIFF Ruled By: MAFUSIRE J

HH722-15 : GOLDEN REEF MINING (PRIVATE) LIMITED and FERBITT INVESTMENTS (PRIVATE) LIMITED vs MNJIYA CONSULTING ENGINEERS (PTY) LIMITED and THE SHERIFF-GWERU N.O. and THE SHERIFF-MT DARWIN N.O. Ruled By: MANGOTA J

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

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

HH41-15 : COLLEN KWARAMBA and McMEEKAN FOUNDERS & ENGINEERS 2014 (PVT) LTD vs WATSON GAVAZA and BRIGHTON PABWE N.O. Ruled By: HUNGWE J

HH50-15 : CLEOPAS MUGOMBA vs VICEMAST (PVT) LTD and ZIDCO (PVT) LTD Ruled By: NDEWERE J

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

HMA12-18 : CONSTABLE CHIHWAI vs BOARD PRESIDENT N.O., CHIEF SUPERINTENDENT NYATHI M and COMMISSIONER GENERAL OF POLICE Ruled By: MAFUSIRE J

HMA13-18 : JONATHAN CHIKUKWA vs BEAUTY and GAME DOLLAR Ruled By: MAWADZE J

HH173-15 : BAYRICH ENTERPRISES (PVT) LTD vs XGMA ZIMBABWE (PVT) LTD and THE SHERIFF Ruled By: MATHONSI J

HB73-10 : THABANI MOYO and ALEXANDER MUNYAKA vs HASSBRO PROPERTIES (PVT) LTD and MESSENGER OF COURT Ruled By: MATHONSI J

HH208-15 : GOOD LIVING REAL ESTATE PL vs ADAM AND COMPANY PL and SGI PROPERTIES PL and HONOURABLE JUSTICE SMITH Ruled By: MUREMBA J

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

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

HH477-16 : RICHARD SEAGER vs ALESTER ZIYANGA Ruled By: DUBE J

HB46-14 : TOPPERS UNIFORMS PL vs HYDE PARK INVESTMENTS PL and TOTALLY UNIFORMS PL and AHMED ESAT and NKANI KHOZA and ZULEKA ESAT Ruled By: MUTEMA J

HH08-12 : LOREEN MASHANGWA vs CHRISPEN BHADHI and TICHA DARANGWA and THE MINING COMMISSIONER GWERU Ruled By: MAWADZE J

HH74-16 : TRIANGLE LTD and HIPPO VALLEY ESTATES LTD and MKWASINE ESTATE and THE ZIMBABAWE SUGAR ASSOCIATION EXPERIMENT STATION (PVT) LTD vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS' UNION and OTHERS Ruled By: MAKONI J

HH02-21 : ERNEST MHAMBARE vs ALFRED MWAZHA and OTHERS Ruled By: MUREMBA J

Appealed CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

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Law Portal
Zimbabwe

HH57-12 : CENTRA (PVT) LTD vs PRALENE MOYAS and DEPUTY SHERIFF, HARARE
Ruled By: BERE J

HH99-12 : SHUNGU ENGINEERING (PVT) LTD vs SIMBARASHE SANGONDIMAMBO & ORS
Ruled By: MATHONSI J

HB102-09 : ERMANUS GERHADUS GROVE vs MARTIN MAKONESE and MRS MARWISA and MR CHIGARIRO
Ruled By: KAMOCHA J

HH61-10 : WILLIAM WACHENUKA vs JOHN STRONG (PRIVATE) LIMITED and TOBS STRONG (PRIVATE) LIMITED and MINISTRY OF LANDS AGRICULTURE AND RESETTLEMENT
Ruled By: BERE J

HH57-10 : AFRICAN CONSOLIDATED RESOURCES PLC and OTHERS vs MINISTER OF MINES AND MINING DEVELOPMENT and SECRETARY FOR MINES AND MINING DEVELOPMENT and CHIEF MINING COMMISSIONER
Ruled By: UCHENA J

HH192-10 : AEPROMM RESOURCES (PVT) LTD vs SAMUEL MAZOWE and PATTERSON TIMBA and STEVENSON TIMBA and MAGGIE DITIMA and TONDESAI KAPONDO
Ruled By: MTSHIYA J

HH333-13 : GIVEMORE SAMBADZI and SALATIEL NHUBU vs REGISTRAR OF DEEDS
Ruled By: BHUNU J

HB48-13 : T.M.R. (PVT) LTD vs KWEKWE PROPERTIES (PVT) LTD and PROVINCIAL MAGISTRATE, KWEKWE N.O. and MESSENGER OF COURT, KWEKWE N.O.
Ruled By: KAMOCHA J

HH309-14 : TAFARA PANDE vs MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS & NATIONAL HOUSING and MAGISTRATE NDOKERA, N.O. and MESSENGER OF COURT/DEPUTY SHERIFF MASVINGO
Ruled By: MATHONSI J

HH631-15 : GOLDEN REEF MINING (PRIVATE) LIMITED and FERBIT INVESTMENTS (PRIVATE) LIMITED vs MNJIYA CONSULTING ENGINEERS (PTY) LIMITED and THE SHERIFF
Ruled By: MAFUSIRE J

HH722-15 : GOLDEN REEF MINING (PRIVATE) LIMITED and FERBITT INVESTMENTS (PRIVATE) LIMITED vs MNJIYA CONSULTING ENGINEERS (PTY) LIMITED and THE SHERIFF-GWERU N.O. and THE SHERIFF-MT DARWIN N.O.
Ruled By: MANGOTA J

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

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

HH41-15 : COLLEN KWARAMBA and McMEEKAN FOUNDERS & ENGINEERS 2014 (PVT) LTD vs WATSON GAVAZA and BRIGHTON PABWE N.O.
Ruled By: HUNGWE J

HH50-15 : CLEOPAS MUGOMBA vs VICEMAST (PVT) LTD and ZIDCO (PVT) LTD
Ruled By: NDEWERE J

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

HMA12-18 : CONSTABLE CHIHWAI vs BOARD PRESIDENT N.O., CHIEF SUPERINTENDENT NYATHI M and COMMISSIONER GENERAL OF POLICE
Ruled By: MAFUSIRE J

HMA13-18 : JONATHAN CHIKUKWA vs BEAUTY and GAME DOLLAR
Ruled By: MAWADZE J

HH173-15 : BAYRICH ENTERPRISES (PVT) LTD vs XGMA ZIMBABWE (PVT) LTD and THE SHERIFF
Ruled By: MATHONSI J

HB73-10 : THABANI MOYO and ALEXANDER MUNYAKA vs HASSBRO PROPERTIES (PVT) LTD and MESSENGER OF COURT
Ruled By: MATHONSI J

HH208-15 : GOOD LIVING REAL ESTATE PL vs ADAM AND COMPANY PL and SGI PROPERTIES PL and HONOURABLE JUSTICE SMITH
Ruled By: MUREMBA J

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

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

HH477-16 : RICHARD SEAGER vs ALESTER ZIYANGA
Ruled By: DUBE J

HB46-14 : TOPPERS UNIFORMS PL vs HYDE PARK INVESTMENTS PL and TOTALLY UNIFORMS PL and AHMED ESAT and NKANI KHOZA and ZULEKA ESAT
Ruled By: MUTEMA J

HH08-12 : LOREEN MASHANGWA vs CHRISPEN BHADHI and TICHA DARANGWA and THE MINING COMMISSIONER GWERU
Ruled By: MAWADZE J

HH74-16 : TRIANGLE LTD and HIPPO VALLEY ESTATES LTD and MKWASINE ESTATE and THE ZIMBABAWE SUGAR ASSOCIATION EXPERIMENT STATION (PVT) LTD vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS' UNION and OTHERS
Ruled By: MAKONI J

HH02-21 : ERNEST MHAMBARE vs ALFRED MWAZHA and OTHERS
Ruled By: MUREMBA J

Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC