Cause of Action and Draft Orders re: Appearance to Defend iro Effect of Non-Appearance

SC115-21 : ANDREW CHIGOVERA vs MINISTER OF ENERGY AND POWER DEVELOPMENT and ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (ZETDC)
Ruled By: GUVAVA JA, MAVANGIRA JA and KUDYA AJA

This is an appeal against the whole judgment of the High Court Harare, dated 25 July 2019. The court a quo dismissed with costs the application for a declaratory order that had been filed by the appellant.THE FACTSThe appellant is the owner of an immovable property situated in Mabelreign, Harare. ...

THE FACTS

The appellant is the owner of an immovable property situated in Mabelreign, Harare. He leased the property to one Crossland Mupfurutsa between June 2013 and August 2017.

The tenant concluded an agreement for the supply of electricity with the Zimbabwe Electricity Transmission and Distribution Company (ZETDC or the second respondent). The second respondent duly opened an account for the supply of electricity in the name of the tenant. All the supply and payment transactions were recorded in this account.

The tenant abandoned the immovable property in August 2017. He left an unpaid electricity bill of $4,689=89.

In September 2018, the second respondent installed a prepaid meter in the name of the appellant on the property.

Acting in terms of section 3(1) of the Electricity (Unpaid Bills, Prepayment Meters and Smart Meters) Regulations, SI44A of 2013, which was promulgated in terms of section 65 of the Electricity Act [Chapter 13:19] (the enabling Act), the second respondent unilaterally transferred the debt incurred by the tenant to the appellant.

The debt was to be liquidated by the unilateral debit of at least 50% of the prepaid electricity purchases made by the appellant.

On 1 June 2019, S.I.44A of 2013 was repealed by section 12 of SI85 of 2018.

Subsequent to the repeal, the appellant approached the High Court, on 3 September 2019, seeking two declaratory orders:

(i) The first was that section 3 of the Electricity (Unpaid Bills, Prepayment Meters and Smart Meters) Regulations, SI44A of 2013 be declared ultra vires the Electricity Act [Chapter 13:19] (the enabling Act) and therefore a nullity.

(ii) The second declaratory order was predicated on the first. The appellant sought that the transfer of the debt to him be declared unlawful and that the second respondent be ordered to stop the ongoing deductions from his periodic prepaid electricity purchases.

The application was opposed by the second respondent and not by the first respondent (the Minister of Energy and Power Development).

When he filed his application, the appellant was not aware that the enactment he sought to impugn had been repealed.

This is apparent from the manner in which he asserted his cause of action in his founding affidavit. The tenor of his averments tended to suggest that the impugned enactment was still extant.

The second respondent was equally oblivious to this fact, otherwise it would have raised it in its opposing affidavit.

That the enactment had been repealed was only disclosed by the appellant in his answering affidavit. He, however, with this belated knowledge, elected to proceed with the application in its original form.

The first respondent did not file opposing papers or seek an upliftment of the automatic bar. His legal practitioner appeared in the court a quo, where he was, however, granted a watching brief....,.

Counsel for the first respondent appeared before us. Apparently, the first respondent was served with the notice of set down by the Registrar and subsequently timeously filed his heads of argument.

We indulged him.

He contended, that, the relief sought by the appellant, after the repeal of the enactment, was an academic exercise. That, the retrospective declaration of invalidity of the repealed enactment was moot as the issue was no longer alive.

It was his further contention, that, the appeal constituted a classic search for a legal opinion on an abstract or academic issue that did not have any practical relevance to the parties.

View Appeal
HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.)
Ruled By: CHIRAWU-MUGOMBA J

This matter was placed before me as an urgent chamber application having been filed on the 23rd of February 2021. Upon receipt, I gave directions for the filing of notices of opposition and opposing affidavits as well as heads of argument.The second respondent did not file a notice of opposition, ...

SC129-21 : SONY PICTURES TELEVISION UK RIGHTS LTD vs C MEDIA AFRICA (PVT) LTD and ZIMBABWE BROADCASTING CORPORATION (PVT) LTD
Ruled By: MAVANGIRA JA, MAKONI JA and KUDYA AJA

This is an appeal against the whole judgment of the High Court dismissing the appellant's application, filed on 10 November 2017, for a permanent interdiction of the respondents from producing and broadcasting the television show known as Simba Savannah, which the appellant claimed to be “infringing or exploiting (its) right to the copyright, trademarks, and all other intellectual rights in and to the television show Format known as Dragon's Den.”

The order that the appellant sought in the court a quo was couched in the following terms:

“1. The application be and is hereby granted.

2. The 1st and 2nd Respondents, their officers, directors, agents, servants, employees, representatives, attorneys, related companies, successors, assigns, and all others in active concert or participation with them, are each and both immediately and permanently interdicted from producing and broadcasting the television show known as Simba Savannah or any such derivative work adapted or based on the Dragon's Den format.

3. The 1st and 2nd Respondents be and are hereby each ordered to account to Applicant, together with the supporting documents including, but not limited to, contracts for all gains, profits, and advantages derived by 1st and 2nd Respondents by their development, production, promotion, broadcasting and/or any other exploitation of the television show known as Simba Savannah;

4. The 1st and 2nd Respondents be and are hereby ordered to deliver to the Applicant for destruction all digital and/or physical copies of episodes of Simba Savannah, including without limitation, any development materials and/or advertising and other promotional material in the possession of each Respondent, within forty-eight (48) hours of the granting of this Order failing which the Sheriff of Zimbabwe and/or his lawful deputies be and are hereby directed to enter into 1st and 2nd Respondents respective premises from wherever such goods are located and seize for destruction all such digital and/or physical copies of episodes of Simba Savannah, including, without limitation, any development materials and/or advertising and other promotional material in the possession of each of the Respondents;

5. The Applicant be and is hereby authorised to take possession of the digital and physical copies of all episodes of Simba Savannah, including, without limitation, any development materials and/or advertising and other promotional material in the possession of each of the Respondents.

6. The 1st and 2nd Respondents shall, jointly and severally, the one paying the other to be absolved, pay the Applicant's Costs of this suit on the legal practitioner and client scale.”…,.

The second respondent did not oppose the application....,.

The second respondent, not having filed any opposing papers in the court a quo, was not present or represented at the hearing of this appeal.

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

The first respondent opposed the urgent application....,.The other respondents did not file any opposing papers.

SC132-21 : FRANK BUYANGA SADIQI vs CHANTELLE MUTESWA and OTHERS
Ruled By: UCHENA JA

On 16 June 2021, I partly heard the applicant's chamber application for condonation and reinstatement of an appeal in terms of Rule 70(2) of the Supreme Court Rules 2018.On 11 May 2020, the applicant filed a notice of appeal, but failed to inspect the record within the time prescribed by ...

SC134-21 : OK ZIMBABWE LIMITED vs BENJAMIN TAZVIVINGA
Ruled By: GWAUNZA DCJ, HLATSHWAYO JA and BERE JA

This is an appeal against the default judgment granted by the Labour Court on 2 November 2016.BACKGROUND FACTSThe respondent was employed by the appellant as a till operator. On 30 June 2015, there was a scuffle between the respondent and a customer over an issue of change. A spot check ...

This is an appeal against the default judgment granted by the Labour Court on 2 November 2016.

BACKGROUND FACTS

The respondent was employed by the appellant as a till operator. On 30 June 2015, there was a scuffle between the respondent and a customer over an issue of change. A spot check was conducted and a shortfall of $45 was discovered in the respondent's till. The respondent was asked to write a report of the incident and the shortfall.

In the report, he stated, that, the shortfall was caused by $50 which he had given to a fellow till operator, Nancy Chawanza, who had forgotten to return the money. The respondent also stated, in the report, that, he had served a customer and given him $180 cash back instead of $130. He averred that the customer later returned the $50 after realising the error and he replaced the money in his till without notifying his supervisors.

The respondent was subsequently charged with the offence of deliberately giving untrue or incorrect information and for unsatisfactory work performance.

A disciplinary hearing was conducted, and he was found guilty, and was subsequently dismissed.

He appealed against the decision to the Local Joint Committee which upheld the determination and the dismissal. Aggrieved, the respondent appealed to the National Employment Council for the Commercial Sections (NEC) which upheld the determination and dismissed the appeal.

As a result, the respondent noted an appeal with the Labour Court on 1 June 2016.

The appellant failed to file a notice of response at the Labour Court within the stipulated time, only to attempt to do so some four (4) months later, on 18 October 2016, together with heads of argument. This was so despite the appellant having been favoured with a letter from the Registrar of the Labour Court calling on it to file a response.

At the hearing of the matter, the court a quo proceeded in terms of Rule 22(b)(1) of the Labour Court Rules, 2006 (SI59 of 2006) (heinafter referred to as “the Rules”) and entered default judgement against the appellant.

Aggrieved by the decision of the court a quo, the appellant noted an appeal to this Court on the following grounds:

(a) The court a quo erred, on a question of law, by proceeding to enter default judgment against the appellant in circumstances in which the appellant had filed a notice of response, albeit belatedly, as well as heads of argument which would have enabled the court to determine the matter on the merits.

(b) The court a quo erred, on a question of law, by failing to find, that, the explanation which was given by the appellant for the delay in filing the Notice of Response constituted good cause for the delay.

(c) The court a quo made an error, on a question of law, by not taking into account the nature of the case and failing to apply its discretion judiciously, more specially by not considering the evidence on record which demonstrated that the respondent had admitted to the offences with which he was charged, which offences attracted a penalty of dismissal.

(d) The court a quo, in any event, erred, on a question of law, by failing to give reasons for the judgment which is appealed against. A failure to give reasons constitutes a judicial irregularity.

SUBMISSIONS BEFORE THIS COURT

At the hearing of the appeal, counsel for the appellant argued, that, the court a quo erred in not providing reasons for its decision, which was that of the default judgment.

Per contra, counsel for the respondent submitted, that, since what was being appealed against was a default judgement, it could only be set aside through an application for rescission of that judgment.

He further submitted, that, the appellant had not requested the reasons from the Labour Court.

APPLICATION OF THE LAW TO THE FACTS

After hearing submissions, my view is that the sole issue to be determined is whether the default judgment entered by the court a quo is appealable.

The respondent filed its notice of appeal to the Labour Court on 1 June 2016. In terms of the Labour Court Rules, 2006, the appellant had 14 days within which it could file its notice of response.

Rule 19(2) of the Labour Court Rules, 2006 provides as follows:

“(2) The registrar, shall, within thirty days of receiving a notice of appeal in terms of subrule (1)(d), give notice in Part I of Form LC2 to the respondent —

(a) To complete, in three copies, a notice of response to the appeal in Part II of Form LC2; and

(b) To do the following within fourteen days of the date when the registrar gives notice to the respondent under this subrule —

(i) Serve one copy of the notice of response on the appellant: and

(ii) File with the registrar one of the other copies of the notice of response, together with proof (as required by Rule 11) that the notice of response was served on the appellant….,.”

The appellant failed to adhere to the Rules of the court, and it later filed its notice of response and heads of argument way out of time - some four (4) months after the Registrar had given the appellant notice.

There is no evidence on record that an application for condonation for late filing of the notice of response and heads of arguments was made.

It therefore follows, that, the court a quo granted a default judgment in terms of Rule 22(b)(1) of the Labour Court Rules which provides as follows:

“22 Where a party fails to file a Notice of Response

Where notice has been given to a party to file a notice of response within the period specified in Rule 14, 15 or 16 and that party fails to comply, the matter shall nevertheless be set down in terms of Rule 21, and if, on the day of hearing, the defaulting party —

(a)…,.

(b) Does not appear or show good cause why he or she did not file a response, the Court may, according to the nature of the case, or as the justice of the case requires —

(i) Enter a default judgement against the defaulting party;”

A reading of the above provisions will show, that, a respondent who has been served with a notice to respond by the Registrar must file its notice of response within 14 days and serve both the appellant and the Registrar.

Failure to act in terms of the above Rules of court results in the offending party being barred and default judgment entered against him at the discretion of the court.

In casu, the appellant, in the court a quo, was barred from making submissions as it had filed its notice of response out of time - which fact the appellant admitted in its heads of argument. It therefore followed that judgment was granted in default.

The court, in Katritsis v De Macedo 1966 (1) SA 613 (A), held that:

“It is clear from the authorities that the default in regard to a defendant is not confined to his failure to file the necessary documents required by the Rules in opposition to the claim against him, or to appear when the case is called, but, comprises also failure to attend Court during the hearing of the matter.”

As the judgment that was given by the court a quo was a default judgment in nature, the question that ought to be asked is: whether one can appeal on the merits before the bar has been lifted.

According to our law, a party cannot appeal against a default judgment.

The correct procedure would be for that party to make an application for the judgment to be rescinded first: see Chintengo v Tredcor & Anor SC67-19.

This approach was underlined by this Court in Sibanda and Ors v Nkayi Rural District Council 1999 (1) ZLR 32 (S) where it held as follows:

“The present appeal is therefore against the order of 23 May 1997 dismissing the application for rescission of the order made on 8 November 1996. That order of 23 May 1997, as I understand it, was effectively a default judgment. The practitioner who appeared for the appellants presented no submissions on the merits. There were no reasons given for judgment. Once the postponement was refused, the appellants were effectively in default. Procedurally, therefore, the appellants should have sought a rescission of the default judgment of 23 May, rather than appeal against it. On this ground alone, the appeal must fail.”…,.

In Zvinavashe v Ndlovu SC 2006 (2) ZLR 372 (S) it was held:

“The defining feature of a judgement granted after a party fails to appear is the default of the absent party…; that decision remained a default judgment whose setting aside could only follow a successful application for its rescission.”

This Court, again, had the occasion to deal with a similar matter in Guoxing Gong v Mayor Logistics (Pvt) Ltd and Anor SC02-17 wherein BHUNU JA held as follows:

“It is trite, that, save in special circumstances which do not concern us here, no appeal lies to this Court against a default judgment which is normally reversed by rescission of judgment or a declaration of nullity. It therefore follows, that, in the absence of special circumstances, no valid ground of appeal can be laid at the door of this Court concerning the propriety or otherwise of a default judgment. Whether or not there was non-joinder or any other irregularity pertaining to the default judgment, that is a complaint to be laid at the court a quo's door and not this Court.”

The appellant has invited this Court to deal with the merits of this matter as it is seized with all the material facts it needs to make a decision. He relies on the case of Madza & Ors v The Reformed Church in Zimbabwe Daisyfield Trust & Ors SC71-14 wherein ZIYAMBI JA held as follows:

“This court is always reluctant to decide matters at first and last instance although it is quite possible that it may do so in exceptional circumstances.”

Unfortunately, this case does not fall into the category of 'exceptional circumstances' as referenced above.

There is nothing exceptional in the circumstances, but, rather, what is there is a disregard of proper practice and procedure that a default judgment can only be set aside by its rescission. It follows, that, as this is not one of the exceptional circumstances, this Court cannot be moved to hearing this matter in the first and last instance: see Bakari v Total Zimbabwe (Private) Limited SC21-19.

DISPOSITION

The appellant, having had default judgment entered against it, and having not taken steps to have it rescinded, that default judgment remains extant. No appeal can lie against it.

The present purported appeal is improperly before this Court, and, it is, accordingly, struck off the roll with costs following the outcome.

SC141-21 : WISE GARIRA and SHEPHARD MASHINGAIDZE and BAYAI BAYAI vs NATIONAL ENGINEERING WORKERS UNION and FIRST CAPITAL BANK
Ruled By: GUVAVA JA, BHUNU JA and KUDYA AJA

This is an appeal against the whole judgment of the High Court (the court a quo) which ordered the removal of the three appellants from being signatories to the first respondent's Bank account with the second respondent.The appeal is opposed by the first respondent.The second respondent has chosen not to ...

SC143-21 : HAPPISON MUCHECHETERE vs ZIMBABWE BROADCASTING CORPORATION (PVT) LTD and RETIRED JUSTICE JAMES DEVITTE N.O. and GIBSON MUNYORO
Ruled By: GWAUNZA DCJ, UCHENA JA and MAKONI JA

This is an appeal against the entire judgment of the Labour Court handed down on 10 March 2017. The Labour Court dismissed the appellant's application for review challenging the disciplinary proceedings that led to his dismissal from the first respondent's employment.There were no appearances for the second and third respondents.

SC144-21 : FARAI MATSIKA and FAIRGOLD INVESTMENTS (PRIVATE) LIMITED vs MOSES CHINGWENA and 38 OTHERS
Ruled By: BHUNU JA

This is an opposed application for condonation of late noting of an appeal and extension of time within which to file a notice of appeal. The applicant brings the application in terms of Rule 43 of the Rules of Court 2018.THE PARTIESThe first applicant is a former employee of the ...

HB37-15 : LAWRENCE CLEMINSON vs BRIAN SHER and RUEBEN POSWELL (as executor in the Estate Late Sally Lieber also known as Sally Zella Lieber)
Ruled By: MUTEMA J

Order 7 Rule 50 of the High Court Rules 1971 provides that a defendant who has failed to enter appearance shall be deemed to be barred.

In case number HC1508/14 the respondents issued summons against the applicant on 2 July 2014 claiming arrear rentals and eviction as a result of breach of a lease agreement entered into by the parties.

The summons was served at the applicant's domicilium citandi et executandi, Number 5 Luton Street, Belmont, Bulawayo on 4 July 2014 by affixing it thereat on the door after unsuccessful diligent search.

The dies induciae expired on 18 July 2014.

On 17 July 2014, the respondents legal practitioners, out of courtesy, e-mailed the summons to the applicant and also alerted the applicant that they had served the summons at his domicilium citandi on 4 July 2014.

The applicant did not enter appearance to defend.

On 31 July 2014, the applicant filed a chamber application for the upliftment of the automatic bar.

The respondents opposed that application hence this opposed application.

Now, in an application by a defendant for the removal of a bar from entering appearance, that litigant should set out, briefly, his/her defence and the facts upon which he/she relies for that defence so that the court can form some opinion of its merits.

He or she must also set out, briefly, some facts which the court can scrutinize to gain some idea whether the defence is bona fide: see Broadley N.O. v Stevenson 1973 (1) SA 585 (R) and the cases cited therein.

This is the legal position pertaining to an application of this nature.

The explanation proffered by the applicant, for his failure to enter appearance, is contained in paragraphs 6 and 7 of his founding affidavit. They read:

“6. I did not see the summons as I had long vacated the premises where the summons were served and so I could not enter an appearance to defend within the time limit prescribed in the Rules.

7. I only got to know of the summons on the 18th of July, when the respondents legal practitioners sent me a copy through an e-mail and already the time within which I was supposed to have entered an appearance to defend had lapsed, which means I am automatically barred in terms of Order 7 Rule 50 of the High Court Rules 1971.”

In paragraphs 11 and 12 of his Heads of Argument, the applicant took a swipe at the respondents in these words:

“11….,. For the respondents to seek to cling on an (sic) application of default judgment will be tantamount to snatching of a judgment.

12. The respondents legal practitioners appear to be eager to obtain a default judgment at the slightest opportunity, disregarding the need for courtesy when dealing with fellow legal practitioners. The respondents legal practitioners are fully aware of the date when the applicant came to be aware of the summons, hence there is no need to oppose the present application except from malice.”

That applicant chose Number 5 Luton Street, Belmont, Bulawayo as his domicilium is beyond caevil. Clause 24 of the lease agreement signed by the parties provides:

“24. Domicilium and Notices

24.1 The parties choose domicilium citandi et executandi (“domicilium”) for the purposes of the giving of any legal notice or the serving of any process, as follows:

The Lessors

Room 24, SAVYON LODGE, CNR M. NDLOVU AVE AND ROBERT MUGABE WAY, BULAWAYO

The Lessee

5 LUTON STREET, BELMONT, BULAWAYO

24.2 Each of the parties shall be entitled, from time to time, by written notice to the other, to vary its domicilium to any other address which is not a post office address.”

It is trite, that, the purpose of choosing a domicilium address for the giving of a notice or service of process is to relieve the party giving the notice or serving the process, of the burden of proving actual receipt of the notice or process.

The manner of service of the summons in casu, of affixing it on the outer or principal door at the applicant's domicilium citandi, constitutes good and valid service permissible in terms of Rule 40(b) of the High Court Rules.

The applicant's explanation regarding his failure to enter appearance, in paragraph 6 of his founding affidavit, that he did not see the summons because he had long vacated his domicilium is neither here nor there.

As far as the respondents and the law are concerned, Number 5 Luton Street. Belmont, Bulawayo was, on 4 July 2014, still the correct address for service of the applicant.

The applicant very well knew, that, in terms of clause 24.2 he was obliged to write to the respondents advising them of his change of domicilium before, during, or after leaving 5 Luton Street.

He did not so do, thereby exhibiting a dearth of diligence regarding legal issues.

The applicant's lack of diligence did not end there.

Even after he got to know of the summons on 18 July 2014, and that the summons had been served at his last known address for service, on 4 July 2014, he adopted a lackadaisical approach to the matter.

He could still have entered appearance on 18 July 2014, either as a self actor and engage a legal practitioner thereafter, or through one, for. by that date, the automatic bar was not yet operative.

That was the last day of the dies induciae.

The applicant is not such an unsophisticated individual as not to be unable to draft an appearance to defend, simple as it is. Very unsophisticated litigants have managed to enter appearance as self-actors in this court.

In light of the above inexcusable shortcoming, the applicant had neither a moral nor a legal ground to pour scorn on the respondents or their legal practitioners using the verbiage he employed in paragraphs 11 and 12 of his Heads of Argument quoted supra.

Such indecent and intemperate language must be censored and discouraged - especially by legal practitioners whose client's cause looks doomed.

Regarding the merits, the applicant, in paragraph 8 of his founding affidavit gives this explanation:

“8. Further, there are prospects of success on the merits. The amount being claimed by the respondent is disputed as there was an agreement between the parties for the reduction of the rentals. For the months of February and March the rent was reduced from the original US$2,500 to US$1,250, but, surprisingly, in their claim, the respondents are still claiming US$2,500 for the above mentioned months.”

There are no facts which the applicant has set out upon which he relies for the alleged defence to enable the court to form some opinion of its merits or bona fides as is required by the law.

Clause 26 of the lease agreement provides, in clear and unambiguous language, what should happen in the event of any variations to the lease agreement in these words:

“26. Whole Agreement

This agreement constitutes the whole agreement between the parties and no variations, alterations, or collateral agreements shall be of any force or effect unless and until recorded in writing in a document signed by the parties.”

Such a document, satisfying the requirements stipulated in clause 26 above, was not produced, neither was there even the slightest allusion to its existence save the applicant's mere allegation that there was an agreement pertaining to a reduction of rentals for February and March.

So, where are the prospects of success vaunted by the applicant in paragraph 8 of his founding affidavit?

Clearly, the applicant has no defence no matter how reluctant the court may be to reach a decision that would result in giving leeway to a judgment against a person without him being heard in spite of his protestations that he has a valid defence.

Again, there was absolutely no plausible reason for the applicant's legal practitioner…, to get overly excited, in paragraph 18 of his Heads of Argument. wherein he poured further vitriol upon the respondents legal practitioners by alleging that their conduct is not only unethical but they should be ordered to pay costs “de bonis proprisii” (sic).

If any costs de bonis propriis were to be ordered, between the two sets of legal practitioners, it is counsel for the applicant himself who qualifies to be so mulcted, for launching an application that was hopeless from the outset.

In the result, the application for the removal of the automatic bar be and is hereby dismissed with costs.

HH686-20 : NATIONAL ENGINEERING WORKERS UNION and WISE GARIRA and SHEPHERD MASHINGAIDZE vs NATIONAL EMPLOYMENT COUNCIL FOR THE ENGINEERING IRON & STEEL INDUSTRY and OTHERS
Ruled By: MUSHORE J

The first plaintiff is the National Engineering Workers Union. The second plaintiff is the elected President of the first plaintiff, and the third plaintiff is the Secretary General of the first plaintiff.

The first defendant is the National Employment Council for the Engineering and Iron and Steel Industry. The second defendant is the Engineering Iron and Steel Association of Zimbabwe with the third defendant (Bekezela Mangena) being the second defendants current President. The fourth to ninth defendants (Ben Mamabara, Silas Mkodza, Righton Moyo, Dennis Muchenu, Abel Gumpo and Clement Kausa) are employees in the industry.

The plaintiffs instituted a court action against the defendants in which they sought the following order:

“THAT:

1. It is hereby declared that the 4th to 9th defendants are not legitimate members or holders of any office position in the 1st plaintiff and/or 1st Defendant;

2. It is hereby declared that 2nd to 9th Defendants, or anyone claiming though them, have no locus standi to act for or represent, in any capacity whatsoever, the 1st plaintiff and/or the 1st Defendant or any institution/without the express approval of the 1st Defendant;

3. Defendants are hereby interdicted whatsoever in the management/affairs in the 1st Plaintiff or deciding who should represent the 1st plaintiff or deciding who should represent the 1st Plaintiff in the 1st defendant;

4. It is hereby declared that the 2nd Plaintiff (or any person succeeding him as President of the 1st Plaintiff) be allowed to chair the proceedings/business of the 1st defendant up to the 31st of the month of December that follows the lapse of a period of 12 calendar months from the date of this court's order after which the chairmanship of the 1st Defendant shall proceed on a rotational basis and in terms of 1st Defendant's constitution.

5. The 4th to 9th defendants (or anyone acting through them) are hereby interdicted from entering the 1st plaintiff's property/premises or using the 1st plaintiff's name, letterhead, or logogram.

6. The 1st, 2nd and 3rd defendants (or anyone acting through them) are hereby ordered not to deny the Plaintiffs/1st Plaintiff's officials full and unfettered access to all the premises/property and business of the 1st defendant.

7. In respect of all acts, meetings, negotiations, decisions, resolutions, building contracts, collective bargaining agreements, payments or transactions conducted or executed by the Defendants (or some or one of them) at/or in the name of the 1st Defendant or 1st plaintiff, without the participation and approval of the plaintiffs, from 1st November 2018 to the date of this court's order, be and are hereby declared null and void.

8. The chairing of the meetings/business of the 1st defendant by the 3rd defendant or any person who succeeds him before the grant of this order is hereby declared null and void.

9. The 1st defendant pay to the plaintiff the industrial outreach monetary disbursements computed at 1% of the Engineering Monetary Fund's monthly takings, plus 1% of the defendants monthly takings, with effect from the 1st November 2018 to the date of this court order.

10. Any monetary payments purportedly made to the 1st plaintiff through the defendants or through modes/accounts other than 2nd plaintiff, 3rd plaintiff or the 1st plaintiff's official bank accounts, are hereby declared void.

11. The 2nd to 9th defendants shall bear the costs of this suit on an attorney and client scale.”

The plaintiffs claims were met with a special plea being filed by the defendants on three (3) aspects:

(i) The first aspect being a special plea on a lack of locus standi in judicio by all three plaintiffs stating that the first plaintiff body was a bogus union and a fabrication and that it belonged to the second and third plaintiffs who had been ousted by the entire engineering industry.

Further, it was specially pleaded that the second and third plaintiffs were no longer office bearers in the genuine workers union and that they had been dismissed from employment, and, therefore, the second and third plaintiffs had no capacity to sue on behalf of the National Workers Engineering Union.

(ii) The second special plea was that the matter was pending in another court (lis alibi pendens) under case number HC8051/19; in which the defendants claim was to cause the second and third plaintiffs to be barred from instituting proceedings from filing suits in the name of the first plaintiff.

(iii) Lastly, the defendants specially pleaded that matter had already been determined in part (res judicata) in that some of the claims in the declaration had already been determined and disposed of by the Magistrates Court.

The defendants sought a dismissal of the plaintiffs claims in their entirety, if all or any of those special pleas were upheld.

Thereafter, the defendants seemed to have abandoned taking the next procedural steps in pursuing the determination of the special pleas immediately as laid out under Order 20 Rule 138(a) and (b) of the High Court Rules 1971; in that, they failed to set the matter down for the hearing of their special pleas separately.

Order 21 Rule 138 of the High Court Rules reads as follows:

“138 Procedure on filing special plea, exception or application to strike out

When a special plea, exception, or application to strike out has been filed —

(a) The parties may consent within ten days of the filing to such special plea, exception or application being set down for hearing in accordance with subrule (2) of Rule 223;

(b) Failing consent, either party may, within a further period of four days, set the matter down for hearing in accordance with subrule (2) of Rule 223;”

In the result, the special pleas would be held over for determination at the trial in this matter; but, in the meantime, and in terms of (c) the defendants were required to have pleaded over the merits of their respective cases in terms of Rule 138(c) which prescribes that:

“(c) Failing such consent and such application, the party pleading specially, excepting or applying, shall within a further period of four days plead over to the merits if he has not already done so and the special plea, exception or application shall not be set down for hearing before the trial.”

When no pleas on the merits were forthcoming from the defendants, on the 17th of January 2020, the plaintiffs filed a notice to plead and intention to bar and served the same on the defendants.

The defendants elected, deliberately, to withhold their pleas on the merits and cited their reason for that decision as being that they had pending special pleas which were yet to be disposed of by the court.

Such an irreverent approach by the defendants resulted in the defendants being barred from pleading and appearing in accordance with Order 12 Rule 83 of the High Court Rules which states:

“83 Effect of Bar

While a bar is in operation —

(a) The registrar shall not accept for filing any pleading or other document from the party barred; and

(b) The party barred shall not be permitted to appear personally, or by legal practitioner, in any subsequent proceedings in the action or suit; except for the purpose of applying for the removal of the bar.”

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

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

CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE
Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

On 20 October 2020, counsel for the third and fourth respondents wrote to the Registrar of this Court advising that he did not file opposing papers for the third and fourth respondents as they did not intend to oppose the order sought by the applicants. The letter was a courtesy ...

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

The third, fourth, and fifth respondents opposed the application.The first (Minister of Justice, Legal and Parliamentary Affairs), second (Judicial Service Commission), sixth (Attorney General) and seventh (the President) respondents were content to keep a watching brief during the hearing of the application.

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.”

The respondents a quo, including the judges of this Court, were aggrieved by the order.

Under separate and different covers, they filed notices of appeal in the Supreme Court challenging the correctness of the decision.

It is not necessary that we set out the grounds of appeal of each appellant in full. As and when it is it necessary to do so, we shall advert to the notices of appeal.

The applicant, strongly believing, that, the effect of the first part of the order was to declare constitutionally invalid the letter of 11 May which constituted the legal authority for the Chief Justice to continue in office, filed this application in terms of section 175(3) of the Constitution.

As indicated above, he sought the setting aside of the entire order.

This he did notwithstanding, that, on its mere reading, the High Court order did not in any way refer to the conduct of the seventh respondent (the President) as constitutionally invalid.

We observe, at this stage, that, the interpretation of the High Court order by the applicant in this regard was conceded as correct by the fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondent's counsel during the hearing of the application.

We shall advert to this concession in detail in due course.

The Application in terms of section 175(3) of the Constitution

It is common cause that the applicant was not a party to either of the two applications that were determined by the High Court. He brought this application in the first instance. In the application, he alleged that he is an adult Zimbabwean who is asserting his right to access this Court directly to defend and protect the Constitution.

Arguing that the state of affairs in the country following the issuance of the High Court order was undesirable as there should never, in any jurisdiction, be doubt as to who the Chief Justice is, the applicant made two basic contentions:

(i) Firstly, he contended, that, the juristic act by the seventh respondent (the President) of accepting a medical report as to the mental and physical fitness of the Chief Justice to remain in office for an additional five years, after attaining age seventy, was valid and the High Court orders purporting to hold such as constitutionally invalid had to be set aside.

(ii) Secondly, he contended, that, section 328(7) of the Constitution, relied upon by the third (Musa Kika), fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondents as precluding the amendment of the Constitution from applying to the Chief Justice and other sitting judges was not applicable as section 186(4) of the Constitution was the applicable section.

The third, fourth, and fifth respondents opposed the application.

The first (Minister of Justice, Legal and Parliamentary Affairs), second (Judicial Service Commission), sixth (Attorney General) and seventh (the President) respondents were content to keep a watching brief during the hearing of the application.

The third respondent (Musa Kika) opposed the application on the basis of a sole preliminary point. It was his position that this court should refrain from exercising jurisdiction in the matter.

Put differently, it was his position, edified during the proceedings by an oral application, that, this Court should recuse itself. In his view, since the second part of the High Court order declared that the judges of this and the Supreme Court could not extend their respective terms of office beyond the age of seventy, the order under scrutiny in the confirmation proceedings affects the judges of this Court directly.

In this regard, he was keen to highlight and place it on record, that, the judges of this Court had not only participated in the proceedings before the High Court but had since filed a notice of appeal against the High Court order.

It was therefore the mainstay of his exception and position, that, the judges of this Court were completely non-suited to hear this application on account of their positions as active litigants who were already seeking the vacation of the High Court order by way of appeal.

In his further view, the determination of the application by this Court, as constituted, would, in the circumstance of the matter, implicate a breach of the common law principle nemo judex in sua causa.

In opposing the application, the fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondents raised a number of issues:

(i) Firstly, they challenged the competence of this Court to determine the application. They also sought the recusal of the entire bench of this Court on the same ground that the third respondent (Musa Kika) had relied upon.

(ii) Secondly, and before a competently constituted Court, the fourth respondent took issue with the locus standi of the applicant to bring the application in the manner that he did. In essence, it was the fourth respondent's position that the applicant, not having obtained any rights under the High Court order, could not purport to challenge the order.

(iii) Thirdly, and regarding the merits of the matter, the fourth respondent challenged the procedural steps taken and leading to the acceptance by the seventh respondent (the President) of a medical report as to the mental and physical fitness of the Chief Justice to continue in office for an additional five years after his seventieth birthday.

Thus, broadly speaking, the application raised for determination three distinct issues. The second issue would only become relevant and fall for determination if the respondents were not successful on the first issue and the third issue would only require determination if the respondents failed on the second issue.

(i) The first issue was whether this Court should recuse itself;

(ii) If the Court did not recuse itself, the second issue would be whether the applicant had locus standi to bring the application under section 175(3) of the Constitution; and

(iii) Finally, if he did have the requisite standing, whether the application had merit....,.

PATEL JCC: It is pertinent, at this juncture, before addressing the substance of the matter, to make an observation concerning the conduct of the third respondent (Musa Kika).

Even though he was primarily instrumental in initiating the proceedings a quo, he deliberately chose not to address any issue other than that of recusal; either in his opposing affidavit or in his heads of argument.

Equally curiously, at the end of the proceedings on the question of recusal, he and his counsel elected not to appear in any further proceedings before the Court. In the event, the matter proceeded in the absence of the third respondent and without the benefit of his submissions on the substantive merits of the matter.

The relief sought by the applicant in this matter is essentially threefold:

(i) The first is a declaratur to the effect that paragraphs 1 and 2 of the operative part of the High Court judgment No.264-21, handed down on 15 May 2021, are orders of constitutional invalidity within the contemplation of section 175(1) of the Constitution.

(ii) The second is a further declarator to the effect, that, the aforesaid High Court orders have no force unless confirmed by this Court.

(iii) Lastly, the applicant seeks a substantive order declining to confirm and setting aside the impugned High Court orders.

My learned sister, MAKARAU JCC, in addressing the application for recusal, has earlier outlined the broad issues raised by this application. Having regard to the averments contained in the affidavits filed by the parties and the arguments presented before us, the specific issues that now arise for determination in this matter are as follows:

(i) Whether the applicant has the requisite locus standi to institute this application.

(ii) The effect of the failure by the applicant in the proceedings a quo (i.e. the third respondent herein) to seek and obtain leave to sue all the judges that were cited as respondents in that matter.

(iii) Whether the orders of the court a quo are orders of constitutional invalidity requiring the confirmation of this Court.

(iv) The correctness of the judgment of the court a quo -

(a) In its interpretation of sections 186 and 328 of the Constitution; and

(b) As regards the alleged violation of the right to equal protection of the law and the right of access to the courts.

(v) Whether this Court should decline to confirm and accordingly set aside the orders granted by the court a quo.

I propose to address and determine the foregoing issues ad seriatim....,.

Absence of Leave to Sue Respondent Judges

It is common cause, that, before instituting proceedings in the court a quo, the third respondent herein did not seek and obtain leave to sue the second to the eighteenth respondents in that matter, who were, at that time, the Chief Justice, Deputy Chief Justice, Acting Judges of the Constitutional Court, Judges of the Supreme Court and Acting Judges of the Supreme Court.

The court a quo reasoned, that, such leave to sue was unnecessary for a variety of reasons:

(i) The first was that the relevant rule of court only applied to actions instituted by way of summons and not to application proceedings.

(ii) The second was that the applications before the court were made in terms of section 85 of the Constitution and there was no requirement for leave to be granted in an application made in terms of that section.

(iii) Lastly, the court opined, that, the respondents in question were cited in their official capacities and had not filed any opposing papers challenging their citation without leave....,.

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

At the hearing of the application, the first respondent was barred for failure to file any opposing papers in the matter.

HB12-21 : ADHESIVE PRODUCTS MANUFACTURERS (PVT) LTD vs PARKAM ENTERPRISES (PVT) LTD (Under provisional judicial management of N. Motsi) and ASSISTANT MASTER OF THE HIGH COURT N.O.
Ruled By: DUBE-BANDA J

This application was set down during vacation, i.e. on the Motion Court for 17 December 2020.

When this matter was called, Mr Moyo, counsel for the applicant rose and made a submission that the papers were in order, and he prayed for an order in terms of the draft order. Mr Mazibiko stood up and said he was representing the first respondent.

I noted that the first respondent was not served with the notice of set down. Mr Mazibuko might have only become aware of the application because the matter was called out in his presence in the Motion Court.

I pointed out to Mr Mazibuko that the first respondent was barred and the application was not opposed.

He was not deterred.

He attacked the validity of the service of the application on the first respondent and attacked the competence of the application itself. Notwithstanding that he was further advised that the first respondent was barred, he argued that he was raising points of law, and, in his view, a court cannot grant such an order as sought by the applicant.

On his part, Mr Moyo contended that the first respondent was barred for want of filing a notice of opposition, and the application was not opposed, and he submitted that his papers were in order and prayed for an order in terms of the draft.

After briefly hearing both counsel, I granted the order sought, couched in the following terms:

“1. The provisional judicial management order issued on the 1st day of March by this court, under cover of HC3455/15 be and is hereby discharged.

2. Nyasha Motsi, in his personal capacity, be and is hereby directed to pay applicant's costs of suit on an attorney and client scale.”...,.

The brief relevant facts of this matter are, on the 1st of March 2016, the first respondent was placed under provisional judicial management. This is an application for the discharge of the provisional judicial management order.

The anchor of this application is that the order was obtained fifty-six months ago, and, it has not been confirmed.

It is contended, that, the order is a sham designed and calculated to shield the first respondent from paying its debts.

The applicant then sued out this court application on 12 August 2020. A copy of the application was served by the Sheriff, on the first respondent, on 9 September 2020. Again, another copy of the application was served by a clerk in the employ of the applicant's legal practitioners on 8 October 2020.

There is proof that the Assistant Master of the High Court was served with a copy of the application.

The first respondent, on the papers before me, had not filed a notice of opposition.

The Assistant Master filed a report, and made the point, that, she was not opposed to the order sought by the applicant, and made the point that the provisional judicial management order must be taken by the court as dead.

I then took the view that the first respondent was barred for failure to file a notice of opposition and opposing affidavit within the time allowed by the rules of court, then, the application was not opposed.

The bar against the first respondent, in such circumstances, is automatic and brings about a default: Rule 233(3) of the High Court Rules 1971 provides that a respondent who has failed to file a notice of opposition and opposing affidavit in terms of subrule (1) shall be barred.

I took the view, that, in this application, Mr Mazibuko had no right of audience before court, because the first respondent was barred. The effect of a bar is that while it is in operation, the party barred shall not be permitted to appear personally, or through a legal practitioner, in any subsequent proceedings in the action or suit; except for the purpose of applying for the removal of the bar: see Rule 83(b) of the High Court Rules 1971.

It is clear from Rule 83(b) of the High Court Rules, that, once a party is barred, the matter is treated as unopposed unless the party so barred makes an application before that court for the upliftment of the bar.

It is also clear, that, in making the application to uplift the bar, the party that has been barred can either file a chamber application to uplift the bar, or, where this has not been done, the party can make an oral application at the hearing: see Grain Marketing Board v Muchero SC59-07.

Mr Mazibuko was not applying for the removal of the bar. He was attacking the application.

In fact, I found his conduct somehow unacceptable, that, after I had pointed out to him that the first respondent was barred, and that the application was therefore not opposed, he persisted in argument.

After considering a number of factors, I refrained from calling him to order.

I take the view, that, such conduct is a deviation from the normal practice; it is inappropriate and unnecessarily belligerent towards the court, and it serves no useful purpose in litigation.

In the result, in deciding this application for default judgement, I did not factor into the equation Mr Mazibuko's submissions. I concluded, that, the respondents, having been duly barred in terms of the rules of the court, and not having made an application for the upliftment of the bar, the application was unopposed.

I took the view, that, the papers before me were in order, and the order sought was competent, I then felt inclined to grant the order in terms of the draft.

CC02-22 : MUTUMWA MAWERE and OTHERS vs TICHAONA MUPASIRI and OTHERS
Ruled By: MAKARAU JCC

Under case no CCZ10/2022, the applicants (Mutumwa Mawere, SMM Holdings Ltd, Africa Resources Ltd, Africa Construction Ltd, Tap Building Products Ltd and Friends of Shabanie Mashava Mines Trust) applied to intervene in certain ongoing proceedings brought by the first respondent (Tichaona Mupasiri) against the second and third respondents (the ...

CC03-22 : DIANA KAWENDA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HEALTH AND CHILD CARE and THE ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MAKARAU JCC, HLATSHWAYO JCC and PATEL JCC

In addition to placing his views before the court in an opposing affidavit, the second respondent was content to abide by the decision of the court.

CC04-13 : BRIAN JAMES vs ZIMBABWE ELECTORAL COMMISSION and MINISTER OF LOCAL GOVERNMENT RURAL & URBAN DEVELOPMENT and MINISTER OF JUSTICE & LEGAL AFFAIRS and OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, PATEL JA, HLATSHWAYO JA and CHIWESHE AJA

After hearing argument from counsel, the court was unanimous in granting this application in the following terms:“1. It is declared that the applicant is not disqualified from standing as a candidate for election as a councillor in the forthcoming municipal elections.2. There shall be no order as to costs.”We further ...

After hearing argument from counsel, the court was unanimous in granting this application in the following terms:

“1. It is declared that the applicant is not disqualified from standing as a candidate for election as a councillor in the forthcoming municipal elections.

2. There shall be no order as to costs.”

We further indicated that our reasons would follow in due course and these are those reasons.

BACKGROUND

The applicant is a registered voter who was duly elected as a councillor and mayor of Mutare in 2008. He was suspended from his position as councillor in January 2012 by the second respondent (Minister of Local Government, Rural and Urban Development) on allegations of misconduct under section 114 of the Urban Councils Act [Chapter 29:15].

Following the second respondent's failure to determine those allegations within 45 days, the applicant challenged his continuing suspension before the High Court in Case No. HC3875/12.

That matter is awaiting set-down for hearing and is yet to be determined.

The applicant has been requested by his constituents to stand as an independent candidate in the council elections to be held on 31 July 2013. However, section 119(2)(i) of the Electoral Act [Chapter 2:13] disqualifies a suspended councilor from being re-elected.

The applicant avers, that, this provision infringes his fundamental right to stand for election to public office in terms of section 67(3)(b) of the Constitution.

He further avers, that, the provision is unfair, unreasonable, and arbitrary because it imputes guilt where it is not proven and operates without interrogating the circumstances of the suspension.

It is also unjustifiable as it presupposes that the person suspended is not suitable for public office.

Moreover, it is illogical and inutile and does not serve any public interest because a suspended councillor can still stand as a candidate for Parliamentary or Presidential elections.

It has dire consequences since there is no remedy once the elections are held, even if the councilor is subsequently vindicated and absolved of guilt.

For all of these reasons, the applicant contends, that, the provision is unconstitutional insofar as it disqualifies suspended councillors from standing for re-election.

The matter is not only of personal importance but also of national importance.

The applicant accordingly seeks an order striking out the provision as being inconsistent with the Constitution. He also seeks an order directing the relevant Nomination Court to accept, and not reject, his nomination papers on the ground of his suspension.

The first respondent (the Zimbabwe Electoral Commission) has stated that it would abide with the decision of the court as it has no factual basis to controvert the applicant's position.

The second respondent (Minister of Local Government, Rural and Urban Development), despite his obvious and direct interest in the matter, has not filed any notice of opposition.

CC09-22 : MINISTER OF MINES & MINING DEVELOPMENT and THE PROVINCIAL MINING DIRECTOR FOR MIDLANDS PROVINCE vs FIDELITY PRINTERS & REFINERS (PVT) LTD and JONAH NHEVERA
Ruled By: GOWORA JCC

The second respondent did not oppose the grant of the relief sought and chose to abide by the decision of the Court. Accordingly, he did not attend the virtual hearing.

HMA38-19 : BERRINGTON ZVANYANYA and OTHERS vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION and OTHERS
Ruled By: MAFUSIRE J

Applicants 1 to 10 (Berrington Zvanyanya, Samuel Jinjika, Nyararai Dembo, Madhuvura Emmanuel, Madzuro Stiriki, Lovemore Muteurwa, Vengai Masungwini, Ngonidzashe Mabina Mudambanuki, Joe Gasva and Masacha Tapiwa) are one faction of a trade union.Respondents 2 to 6 (Godfrey Katerere, Brawl Chikandiwa, Tavanga Vandirai, Lucia Chirilele and Nokhutula Dube) are the other.The ...

View Appeal
SC01-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

This is an appeal against the whole judgment of the High Court (court a quo). The suspension from office of the appellant led to a flurry of court applications in the court a quo. This is just one of them in which the court a quo dismissed the appellant's application.

The application was made in terms of section 4 of the Administrative Justice Act [Chapter 10:28] ('the Act') on the basis that the respondents had failed to comply with the provisions of section 3(1)(a) of the Administration Justice Act.

BACKGROUND FACTS

The appellant is a former judge of the Supreme Court of Zimbabwe having been dismissed from office by the sixth respondent (the President of Zimbabwe).

The first respondent (Judicial Service Commission) is a body corporate established in terms of section 189 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 ('the Constitution').

The second respondent (Simbi Mubako) (being the Chairperson), third and fourth respondents (Rekayi Maphosa and Takawira Nzombe) (being members), constituted a Tribunal appointed by the President of the Republic of Zimbabwe in terms of section 187(3) of the Constitution. The Tribunal was set up to inquire into the removal of the appellant from the office of a judge.

The fifth respondent (Virginia Mabhiza) was the Secretary of the Tribunal and is the Permanent Secretary of the Ministry of Justice, Legal and Parliamentary Affairs. She is also the coordinator of the Special Anti-Corruption Unit in the Office of the President.

The sixth respondent is the President of Zimbabwe (the President) and the seventh respondent is the Minister of Justice, Legal and Parliamentary Affairs.

The Tribunal has since completed its mandate and is no longer in existence.

On 17 March 2020, the President, acting in terms of section 187(4) of the Constitution of Zimbabwe 2013 issued, in a Zimbabwean Government Gazette Extraordinary Proclamation 1 of 2020 Statutory Instrument 70 of 2020, in which, amongst other things, he established a Tribunal to investigate the question of removing the appellant from the office of a judge. The Tribunal's terms of reference were set out as follows:

“(i) To investigate into the matter of the removal from office of Honourable Justice Francis Bere JA;

(ii) To investigate into the matter of Honourable Justice Bere's conduct, whether it can be deemed to have been tantamount to gross misconduct;

(iii) To investigate whether the Honourable Judge conducted himself or presided over matters where there was conflict of interest;

(iv) To investigate any other matter which the Tribunal may deem appropriate and relevant to the enquiry;

(v) To consider all information submitted by the Judicial Service Commission and any other relevant information in order to arrive at an appropriate recommendation to the President;

(vi) To recommend to the President whether or not the Honourable Judge should be removed from office in terms of section 187 of the Constitution; and

(vii) To report to the President, in writing, the result of the inquiry within a period of five (5) months from the date of swearing in of the members.”

On 13 May 2020, following the publication of Proclamation 1 of 2020, SI70 of 2020 the appellant made an application in terms of section 4 of the Administrative Justice Act (the Act) before the court a quo.

The application was made on the allegation, that, the first respondent failed to comply with section 3(1)(a) of the Administrative Justice Act in that it failed to “act lawfully, reasonably, and in a fair manner” in advising the President to set up a Tribunal to investigate the appellant.

In making the application, it was the appellant's complaint, that, by letter dated 3 March 2020, he was suspended from the office of a judge pending the determination of the question of his removal from office by a three member Tribunal appointed by the President.

The appellant further averred, that, the suspension was preceded by a letter addressed to him by the Acting Secretary of the first respondent dated 28 February 2020. In the letter, the appellant was informed, that, at a meeting held on 13 December 2019, the first respondent had resolved to advise the President to consider the appointment of a tribunal to conduct and further investigate him for alleged misconduct.

The appellant raised five grounds, asserting that the first respondent failed to comply with section 3(1)(a) of the Administrative Justice Act:

(i) Firstly, it was his averment that the first respondent had no jurisdictional grounds for referring the matter to the President.

(ii) Secondly, the appellant averred that there was gross irregularity in the referral by the first respondent as it failed to accord him the right to be heard.

(iii) Thirdly, he asserted, that, at the time the first respondent made its decision to refer the matter to the President it had become functus officio as it had previously made a determination on the matter exonerating him of any wrongdoing.

(iv) Fourthly, that the first respondent, in making its decision, was not properly constituted as it lacked a proper quorum.

(v) Finally, that the fifth respondent was biased as she was the person who referred the complaint which was made by Mr Moxon (Moxon) to the first respondent. It was thus argued, that, as a secretary to the Tribunal, she was a judge in her own cause.

The second, third, fourth and seventh respondents (Simbi Mubako, Rekayi Maphosa, Takawira Nzombe and Minister of Justice, Legal and Parliamentary Affairs) submitted that they had no interest in the outcome of the application and would abide by the court's decision.

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

The applicants filed an Urgent Chamber Application on 26 September 2019. The first to seventh respondents (Zimbabwe Sugar Milling Industry Workers Union, Godfrey Katerere, Brawl Chikandiwa, Tavonga Vandirai, Lucia Chirilele, Nokhutula Dube and Faster Gono) filed opposing papers on the date of the hearing.The 8th to 14th respondents (Berrington Zvanyanya, ...

CC15-17 : JONATHAN MOYO vs SERGEANT CHACHA and ZIMBABWE ANTI-CORRUPTION COMMISSION and COMMISSIONER GENERAL OF POLICE, ZIMBABWE REPUBLIC POLICE and PROSECUTOR GENERAL
Ruled By: CHIDYAUSIKU CJ

This is a Chamber application in which the applicant sought an order in terms of the draft. The applicant and the fourth respondent (the Prosecutor General) consent to an order of the Court in terms of the draft order, as amended.The third respondent's position (the Commissioner General of Police, Zimbabwe ...

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

IntroductionThis judgment is in respect of two matters, HC2128/21 and HC2166/21. The two matters were heard together because the substance of their complaints is the same.Both matters were brought by way of application. HC2128/21 was instituted as an urgent court application while HC2166/21 was brought as an urgent chamber application.Both ...

Introduction

This judgment is in respect of two matters, HC2128/21 and HC2166/21. The two matters were heard together because the substance of their complaints is the same.

Both matters were brought by way of application. HC2128/21 was instituted as an urgent court application while HC2166/21 was brought as an urgent chamber application.

Both applications are opposed by some of the respondents.

Opposing papers, answering affidavits, and heads of argument were filed following a case management meeting with the parties representatives at which the dates for filing the papers were set by consent.

In case no. HC2128/21 the applicant, a legal practitioner and director of the Zimbabwe Human Rights NGO Forum, cited the Minister of Justice, Legal and Parliamentary Affairs, and all the judges of the Constitutional Court and Supreme Court as well as some of the judges of the High Court, on the basis that they are acting judges of the Supreme Court or have been called upon to act as such.

The judges were cited in official capacities.

The Judicial Service Commission (JSC) was joined in the proceedings, at its instance, at the case management conference.

In HC2166/21 the respondents cited are the Judicial Service Commission (JSC), the Chief Justice of Zimbabwe, Honourable Luke Malaba N.O. and the Attorney General N.O. The applicants in that case are Young Lawyers Association of Zimbabwe and Frederick Charles Moses Mutanda, a liberation war veteran.

Background

On 7 May 2021, the Constitution of Zimbabwe Amendment (No.2) Act 2021 became law after being assented to by the President. The contentious aspects of the Amendment Act which are the subject of the instant applications are found in its section 13.

That section repealed section 186 of the Constitution 2013 and substituted it with a new section 186.

Upon gathering that section 186 of the Constitution, introduced by the Amendment, would apply to the second to eighteenth respondents (Luke Malaba, Elizabeth Gwaunza, Paddington Garwe, Rita Makarau, Anne-Mary Gowora, Ben Hlatshwayo, Bharat Patel, Antonia Guvava, Susan Mavangira, Chinembiri Energy Bhunu, Tendai Uchena, Nicholas Mathonsi, Charles Hungwe, Felistus Chatukuta, Alfas Chitakunye, Samuel Kudya and Lavender Makoni) the applicants instituted the two applications. The applicant in Case No. HC2128/21 seeks the following relief:

“IT IS DECLARED THAT:

1. In accordance with provisions of sections 186(1)(a) and 186(2) (of the Constitution of Zimbabwe 2013) in their original form and notwithstanding provisions of Constitutional Amendment Number 2, second to eighteenth respondents hold office they reach the age of seventy years, whereupon they must, by operation of law, retire.

2.The attempt to subvert the position encapsulated in the "original" section 186(1)(a) and 186(2) of the Constitution of Zimbabwe 2013 is contrary to law and therefore in breach of applicant's right to the protection of the law as set out in section 56(1) of the Constitution of Zimbabwe 2013.

IT IS CONSEQUENTLY ORDERED THAT:

3. LUKE MALABA, must or did, at midnight on 15 May 2021, cease to hold the office of CHIEF JUSTICE OF ZIMBABWE.

4. Any action, conduct, or deed of LUKE MALABA post the 15th of May 2021, purportedly as CHIEF JUSTICE OF ZIMBABWE, is null and void and of no effect.

5. ln accordance with the provisions of section 181 of the Constitution 2013, with effect from midnight on the 15th of May 2021, ELIZABETH GWAUNZA became/becomes the ACTING CHIEF JUSTICE OF ZIMBABWE until such a time as a substantive CHIEF JUSTICE OF ZIMBABWE is appointed.

6. In accordance with the provisions of section 181 of the Constitution 2013, with effect from midnight on the 15th of May 2021, PADDINGTON GARWE became/becomes the ACTING DEPUTY CHIEF JUSTICE OF ZIMBABWE until such a time as a substantive DEPUTY CHIEF JUSTICE OF ZIMBABWE is appointed.

7.There shall be no order as to costs."

During argument, counsel for the applicant abandoned the relief sought in paragraph 6 of the draft order and moved that the draft be amended accordingly.

We point out, that, notwithstanding the statement suggesting that what is being sought in paragraphs 3-7 of the draft order is consequential relief, the relief is clearly in the form of a declaration.

The second to eighteenth respondents did not file opposing papers.

They will therefore be taken not to have opposed the application: see Prosser & 35 Others v Ziscosteel Company Ltd HH201-93 and Panganai and 20 Others v Kadir & Sons (Pvt) Ltd HH26-95.

We do not accept the submission by their counsel that they oppose the application without filing opposing papers. This is because the directions issued on 12 May 2021 required the respondents to file opposing papers if they were opposing the application.

Their grounds of opposition would have to be contained in the opposing affidavits.

HH62-14 : JOHANNES MAKONYE vs KENAE RAMODIMOOSI and ENTREDEV PROPERTY GROUP and C.H. LUKAS
Ruled By: CHIGUMBA J

This is an application in terms of section 34 of the Model Law as set out in the Second Schedule to the Arbitration Act [Chapter 7:15] for the setting aside of an arbitral award dated 23 February 2012, granted by the third respondent.The second respondent was the applicant's estate agent....,.The ...

HMT12-20 : CHENESO MUVANDI vs CITY OF MUTARE and MATIVENGA MHISHI N.O. (as Executor of the Estate Late Washington Jekanyika)
Ruled By: MUZENDA J

The second respondent is an estate of the late Washington Jekanyika. The executor had notified the Registrar of the court that he will abide by the decision of this court.

HH420-17 : ELIAS MAPENDERE and FRANCIS PHIRI and JANI MUSANJEYA vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: MAKONI J

The second and fourth respondents (Minister of Finance and Economic Development and Gift Marunda) did not file any opposing affidavits.

HMT29-20 : THE TRUSTEES OF THE ARDA-TRANSAU RELOCATION DEVELOPMENT TRUST vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (ZETDC) (PVT) LTD
Ruled By: MWAYERA J

A raft of measures meant to comply with the World Health Organisation (WHO) guidelines on the prevention, containment, and treatment of Coronavirus disease, commonly known as COVID 19, prompted the Minister of Health and Child Care, and, indeed, the Government of Zimbabwe to make an order for National lockdown under Statutory Instrument 83 of 2020, SI83 of 2020, on 28 March with effective date of operation 30 March 2020.

The Order, among other important provisions, provides that the supply of water and electricity services are critical and essential services.

The virus is real and indeed a menace as evidenced by reports of the numbers of the infected and dead. Zimbabwe has not been spared by this invisible but real enemy wreaking havoc among the rich and the poor without distinction by colour, creed, or age.

At the time of hearing, nine (9) recorded cases had been confirmed and one (1) death recorded in Zimbabwe. South Africa had 1,505 positive cases and 9 deaths. Globally, there were 1,051,697 positive cases and 56,986 deaths: see Situation Report 75 - World Health Organisation www.who.int/emergencies/diseases/novel-coronavirus-2019/situation-reports

Bearing in mind the emphasis on personal hygiene, anchored on the need to regularly wash hands with clean running water and soap, the applicants jostled into action.

The applicants had no water supply since the Zimbabwe Water Supply pumps supplying the household with water for community consumption had been rendered dry by disconnection of electricity.

World over, including our neighbour South Africa, news reported increase in numbers of infected people and deaths due to the formidable pandemic.

The applicants, faced with COVID-19 outbreak and threat without running tap water due to ZESA power cut to the ZINWA outlet which supplies them with water, approached this court through the urgent chamber book. The applicant sought:

“TERMS OF THE FINAL ORDER SOUGHT

1. That the Respondent provides electricity supply services to the Zimbabwe National Water Authority water pumps within Arda–Transau community for the duration of the state of disaster subject to the load shedding schedule.

2. No order as to costs.

TERMS OF THE INTERIM ORDER SOUGHT

1. That the Respondent immediately restores electricity supply services to the Zimbabwe National Water Authority water pumps within Arda–Transau community.”

The respondents were properly served but did not respond or appear.

CC07-16 : AMOS MAKANI and OTHERS vs ARUNDEL SCHOOL and OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

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

SC02-22 : SUNKO MAURITIUS and JUDEX BURNETT vs VERSAPAK HOLDINGS (PRIVATE) LIMITED (In Liquidation) and CECIL MADONDO N.O. (Provisional Liquidator of Versapak Holdings)
Ruled By: MALABA CJ, BHUNU JA and CHIWESHE AJA

This is an appeal against the entire judgment of the High Court (the court a quo) which placed the first respondent in final liquidation.BRIEF BACKGROUND OF THE CASEThe first respondent, Versapak Holdings (Private) Limited (the company), is a juristic person incorporated in terms of the laws of Zimbabwe whereas the ...

This is an appeal against the entire judgment of the High Court (the court a quo) which placed the first respondent in final liquidation.

BRIEF BACKGROUND OF THE CASE

The first respondent, Versapak Holdings (Private) Limited (the company), is a juristic person incorporated in terms of the laws of Zimbabwe whereas the second respondent is the company's liquidator.

The company has three shareholders being:

(i) Sunko Mauritius (C15289); an offshore Mauritian company with a shareholding of 1,100 ordinary shares.

(ii) Versapak Employee Trust; with a shareholding of 73 ordinary shares.

(iii) Versapak Management Trust; with a shareholding of 49 ordinary shares.

The appellants have since acquired all the shares of the company with the result that it is now 100 per cent foreign owned.

The company is in the business of manufacturing expanded polythene products which have since been banned by Government through Statutory Instrument 84 of 2012, SI84 of 2012. Owing to the banning of its products, scarcity of foreign currency, and competition from cheap imports, the company fell on hard times. As a result, it became unviable as it was running at a loss.

This prompted the directors of the company to initiate the process of winding down the company.

On 14 December 2016, the company passed a special resolution authorising one Rangarirai Dadirai to commence the winding down process. They appointed the second respondent as the company liquidator.

The Resolution reads as follows:

“------------------------------------------------------------------------------------------
WRITTEN RESOLUTIONS OF THE DIRECTORS OF THE COMPANY
PASSED ON THE 14TH DAY OF DECEMBER 2016
----------------------------------------------------------------------------------------------

WINDING DOWN OF THE COMPANY

----------------------------------------------------------------------------------------------
SPECIAL RESOLUTION/S

IT IS HEREBY RESOLVED THAT:

1. The Company shall commence the winding down of its operations as it is no longer capable of operating profitably. The main factors leading to the crippling of the company, among others, are:

(a) The liquidity crunch and lack of foreign currency to pay for imported products and purchase raw material.

(b) Stiff competition from cheap imports which affected the sales of the Company.

2. The Company will be wound down in terms of section 206 of the Companies Act [Chapter 24:3]; that is, winding down by the Court.

3. Rangarirai Dadirai is appointed to sign all affidavits and documentation for purposes of process issued in the High Court of Zimbabwe in winding down the Company.

4. Rangarirai Dadirai be and is hereby authorised to appoint experts to assist in the attainment of the shareholders? Objective being the procedural winding up of Versapak Holdings (Private) Limited.

5. The liquidator of the Company shall be Mr Cecil Madondo of Tudor House Consultants.”

Pursuant to the special company resolution authorising the winding down of the company, it filed an exparte court application for a provisional order for its winding down. The application was duly supported by the Master's Report dated 7 March 2017.

The Provisional Order sought was granted ex parte, that is to say, in the absence of the other interested parties.

The order was crafted in the following terms:

“IT IS ORDERED THAT:

1. The applicant, Versapak Holdings (Pvt) Ltd, be and is hereby provisionally wound up pending the grant of an order in terms of paragraph 3 or the discharge of this order.

2. Subject to subsection (1) of section 274 of the Companies Act [Chapter 24:03], Cecil Madondo, of Tudor House Consultancy (Pvt) Ltd, is appointed as provisional liquidator of the above mentioned company with the powers set out in section 221(2)(a)–(g) of the Act.

3. Any interested party may appear before the court sitting at Harare on Wednesday the 15th of March 2017, to show cause why a final order should not be made placing the applicant company in liquidation and ordering that the costs of these proceedings shall be costs of liquidation.

4. The order shall be published once in the Government Gazette and once in the Herald newspaper in a Friday edition. Publication shall be in short form annexed to this order.

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

5.1. Give due notice to the applicant, on or before 10th of March 2017, at Nyakutombwa Mugabe Legal Counsel, 49 Old Enterprise Road, Newlands Harare, ref Joseph T Tazunguzwa.

5.2. Serve on the applicant a copy of any notice of opposition which he files with the Registrar of the High Court.”…,.

As can be seen, in respect of the time honoured audi alteram partem rule, the ex parte order provided a return date to afford all interested parties a chance to be heard on the issue before a final binding order could be made.

The return date was set for 15 March 2017.

It was widely published both in the Government Gazette and the Herald newspaper, and, it invited any interested person who had any objection to the final order sought to lodge their objection with the Registrar of the court a quo and also to appear on the return date.

For the avoidance of doubt, it read:

“In the petition of Versapak, Holdings (Private) Limited, applicant.

TAKE NOTICE that on Wednesday the 15th of February 2017, and before Mr Justice Foroma, the High Court at Harare issued an order for the provisional liquidation of Versapak Holdings (Private) Limited, and Cecil Madondo has been appointed provisional liquidator of the company.

Any interested person who wishes to oppose the winding up of the company shall file a notice of opposition with the Registrar of the High Court at Harare on or before the 10th of March 2017, and, shall serve a copy of the notice on the applicant's legal practitioners. He/she should then appear before the High Court at Harare at the hearing of this matter on 15th March 2017 to show cause why the company should not be wound up.

A copy of the application and of the full order granted by the court may be inspected at the office of the Registrar of the High Court at Harare, and the office of the applicant's legal practitioners – Joseph Tuzunguzwa c/o Nyakutombwa/Mugabe Legal Practitioners, 49 Old Enterprise Road, Newlands, Harare.”…,.

The return date was subsequently extended to 26 April 2017 by court order, under case number HC2304/17, on the same terms and conditions as before.

Any person intending to oppose the confirmation of the provisional order was now required to file their notice of opposition and serve a copy on the second respondent on or before 19 April 2017.

The appellants did not file any notice of opposition or serve a copy on the second respondent by the due date, as mandated by the provisional court order advertised in the Government Gazette and the Herald Newspaper.

The appellants, instead, filed a separate application seeking the discharge of the provisional order on the basis that it had been issued by mistake.

No founding affidavit was filed with the application for discharge of the provisional order. Only a supplementary affidavit for the application was belatedly filed on 21 April 2017 praying for an order discharging the provisional order on the return date which had already come and gone. They also sought an order directing the second respondent to return the cash and any documents belonging to the company.

The appellants did not apply for any condonation or reprieve for non-compliance with the court order.

The application was opposed by the second respondent resulting in both applications, in cases HC377 of 2020 and HC773 of 2017, being consolidated and referred to the opposed roll.

ISSUES FOR DETERMINATION BEFORE THE COURT A QUO

Both applications raised the substantive issue of whether the application for the winding up of the company should be confirmed or discharged.

At the commencement of the court hearing, the second respondent, however, raised three points in limine for determination.

In his first point in limine, the second respondent objected to the appellants locus standi, that is to say, their right to stand and be heard in the court a quo.

SUBMISSIONS FOR THE SECOND RESPONDENT BEFORE THE COURT A QUO

Counsel for the second respondent took a two pronged approach to attack the appellants locus standi:

(i) Firstly, he argued, that, the effect of the court order, placing the company on provisional liquidation, was to divest the appellants of their directorships in the company and vesting them in the second respondent in his capacity as provisional liquidator.

For that proposition of law, counsel placed reliance on the case of Volkskas BPK v Darrenwood Electrical (Pvt) Ltd 1973 (2) SA 386.

(ii) He further argued, that, the appellants had no locus standi because of their failure to comply with the mandatory terms of the provisional court order.

SUBMISSIONS FOR THE APPELLANTS BEFORE THE COURT A QUO

The appellants took the view, that, they had the necessary locus standi to appear and be heard in the court a quo.

Counsel for the appellants accepted, that, upon issuance of a provisional liquidation order, directors of a company lose their rights and powers which are vested in the provisional liquidator.

He, however, countered, that, despite having lost their power and rights as directors, they retain the residual power to challenge the liquidation process.

For that proposition of law, he placed reliance on the case of Thaw Trading & Investments 005 CC v Central Lake Trading 214 (Pty) Ltd (666/2012) [2013] ZANWHC 47 (30 May 2013 para 11-13).

Counsel complained, that, although the point was raised in the court a quo, the learned judge a quo did not determine the legal point raised.

As regards the second limb of the second respondent's argument, counsel for the appellants conceded, that, the appellants did not comply with the mandatory time lines set out in the provisional liquidation court order.

He however argued, that, the parties entered into a consent order in which they agreed to purge the appellants breach of the time-lines set out in the provisional court order.

APPLYING THE FACTS TO THE LAW

It is convenient to deal with the procedural issue first as it has the potential of resolving all the other issues between the parties without delving into the substantive issues.

It is common cause that the appellants did not file and serve their notice of opposition by the due date of 19 April 2017 in terms of the mandatory provisions of the provisional liquidation court order.

It is also correct, that, the parties entered into a purported consent order which was not sanctioned by the court.

The purported consent order reads:

“IT IS ORDERED BY CONSENT THAT:

1. In the matter under case No. HC773/2017 (Ref Case No. HC2304/2017). The Provisional Liquidator, Dr Cecil Madondo, hereby agrees and consents to the late filing of the Notice of Opposition and opposing affidavit by Sunko (Mauritius) and Judex Burnett.

2. The late filing of the Notice of Opposition and opposing affidavit, by Sunko (Mauritius) and Judex Burnett, in the matter under case No. HC773/2017 (Ref Case No. HC2304/17), be and is hereby condoned and the Notice of Opposition and Opposing Affidavit, filed on 21 April 2017, in the said matter, be and is hereby deemed to have been properly filed of record.

3. The chamber application for condonation, filed under case No. HC6963/2017, is withdrawn.

4. The parties shall be at liberty to file Supplementary Heads of argument in the matter under case No. HC773/17 (Ref Case No. HC2304/2017) should they deem it necessary and shall proceed to set down the said matter for hearing on the opposed roll.

5. The costs of the application for condonation, filed under cases No. HC5341/2017 and HC6963/2017, shall be costs in the cause of this matter.

Signed Signed

_______________________ ____________________

COSTA & MADZONGA SCANLEN & HOLDERNESS

HARARE (NRM) HARARE (GN)

Not signed ______________________”

JUDGE/REGISTRAR

It is a misnomer to say, that, the above pact constitutes a court order because it was not given or signed by any court.

The effect of the so-called consent order is a futile attempt to alter the provisional liquidation order issued by the court a quo without its involvement and consent.

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

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

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

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

What this means is that it was not within the parties power to agree to condone the appellant's failure to comply with the extant provisional court order. It was equally not within their power to extend the period of compliance beyond 19 April 2017.

The parties purported consent order was therefore a nullity and of no force or effect as it sought to usurp the function and powers of the court a quo.

The appellants disregard of the timelines set out by the court a quo triggered an automatic bar shutting them out from being heard by operation of law. Consequently, the appellants were effectively divested of their locus standi before the court upon default.

That being the case, the court a quo's finding, that the appellants had no locus standi, is beyond reproach.

That finding of fact effectively put the appellants out of court rendering it unnecessary to consider any submissions they would have made. This is for the simple but good reason, that, they were not entitled to be heard by the court a quo on any issue pertaining to the case.

The appellants disdain of the time lines laid down by a court of law could only be purged by that court, on the merits, in a proper application for condonation and extension of time within which to comply with the terms set out in the provisional order.

The appellants withdrawal of that application sounded the death knell for any lawful reprieve for the appellants considering that the court a quo had already issued a substantive order confirming the provisional order.

DISPOSAL

In the result, the Court finds that there is no substance in this appeal. Costs follow the result. There is no reason why the respondents should be burdened with costs incurred by persons with no locus standi. It is accordingly ordered, that, the appeal be and is hereby dismissed with costs.

SC09-22 : MOVEMENT FOR DEMOCRATIC CHANGE (TSVANGIRAI) and DOUGLAS MWONZORA and DR THOKOZANI KHUPE vs LILIAN TIMVEOS and THABITHA KHUMALO and OTHERS
Ruled By: GUVAVA JA, MAKONI JA and CHITAKUNYE JA

Counsel for the third and fourth respondents (Speaker of the National Assembly and President of the Senate) had no submissions to make save to indicate that his clients would abide by the decision of the court.Counsel for the fifth respondent (Chairperson of the Zimbabwe Electoral Commission) indicated that whilst his ...

SC35-22 : JOHN BASERA vs REGISTRAR OF THE SUPREME COURT OF ZIMBABWE and SAMUEL MUVUTI and JOYLIN MUVUTI and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL SETTLEMENT
Ruled By: MATHONSI JA

This is a chamber application made in terms of Rule 13(1) of the Supreme Court Rules 2018 (“the Rules”).The applicant seeks the review of a decision of the first respondent, the Registrar of this Court, that deemed an application for condonation for the late filing of an appeal abandoned and ...

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Cause of Action and Draft Orders re: Appearance to Defend iro Effect of Non-Appearance

SC115-21 : ANDREW CHIGOVERA vs MINISTER OF ENERGY AND POWER DEVELOPMENT and ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (ZETDC)
Ruled By: GUVAVA JA, MAVANGIRA JA and KUDYA AJA

View Appeal
HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.)
Ruled By: CHIRAWU-MUGOMBA J

SC129-21 : SONY PICTURES TELEVISION UK RIGHTS LTD vs C MEDIA AFRICA (PVT) LTD and ZIMBABWE BROADCASTING CORPORATION (PVT) LTD
Ruled By: MAVANGIRA JA, MAKONI JA and KUDYA AJA

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

SC132-21 : FRANK BUYANGA SADIQI vs CHANTELLE MUTESWA and OTHERS
Ruled By: UCHENA JA

SC134-21 : OK ZIMBABWE LIMITED vs BENJAMIN TAZVIVINGA
Ruled By: GWAUNZA DCJ, HLATSHWAYO JA and BERE JA

SC141-21 : WISE GARIRA and SHEPHARD MASHINGAIDZE and BAYAI BAYAI vs NATIONAL ENGINEERING WORKERS UNION and FIRST CAPITAL BANK
Ruled By: GUVAVA JA, BHUNU JA and KUDYA AJA

SC143-21 : HAPPISON MUCHECHETERE vs ZIMBABWE BROADCASTING CORPORATION (PVT) LTD and RETIRED JUSTICE JAMES DEVITTE N.O. and GIBSON MUNYORO
Ruled By: GWAUNZA DCJ, UCHENA JA and MAKONI JA

SC144-21 : FARAI MATSIKA and FAIRGOLD INVESTMENTS (PRIVATE) LIMITED vs MOSES CHINGWENA and 38 OTHERS
Ruled By: BHUNU JA

HB37-15 : LAWRENCE CLEMINSON vs BRIAN SHER and RUEBEN POSWELL (as executor in the Estate Late Sally Lieber also known as Sally Zella Lieber)
Ruled By: MUTEMA J

HH686-20 : NATIONAL ENGINEERING WORKERS UNION and WISE GARIRA and SHEPHERD MASHINGAIDZE vs NATIONAL EMPLOYMENT COUNCIL FOR THE ENGINEERING IRON & STEEL INDUSTRY and OTHERS
Ruled By: MUSHORE J

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

CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE
Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

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

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

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

HB12-21 : ADHESIVE PRODUCTS MANUFACTURERS (PVT) LTD vs PARKAM ENTERPRISES (PVT) LTD (Under provisional judicial management of N. Motsi) and ASSISTANT MASTER OF THE HIGH COURT N.O.
Ruled By: DUBE-BANDA J

CC02-22 : MUTUMWA MAWERE and OTHERS vs TICHAONA MUPASIRI and OTHERS
Ruled By: MAKARAU JCC

CC03-22 : DIANA KAWENDA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HEALTH AND CHILD CARE and THE ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MAKARAU JCC, HLATSHWAYO JCC and PATEL JCC

CC04-13 : BRIAN JAMES vs ZIMBABWE ELECTORAL COMMISSION and MINISTER OF LOCAL GOVERNMENT RURAL & URBAN DEVELOPMENT and MINISTER OF JUSTICE & LEGAL AFFAIRS and OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, PATEL JA, HLATSHWAYO JA and CHIWESHE AJA

CC09-22 : MINISTER OF MINES & MINING DEVELOPMENT and THE PROVINCIAL MINING DIRECTOR FOR MIDLANDS PROVINCE vs FIDELITY PRINTERS & REFINERS (PVT) LTD and JONAH NHEVERA
Ruled By: GOWORA JCC

HMA38-19 : BERRINGTON ZVANYANYA and OTHERS vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION and OTHERS
Ruled By: MAFUSIRE J

View Appeal
SC01-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

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

CC15-17 : JONATHAN MOYO vs SERGEANT CHACHA and ZIMBABWE ANTI-CORRUPTION COMMISSION and COMMISSIONER GENERAL OF POLICE, ZIMBABWE REPUBLIC POLICE and PROSECUTOR GENERAL
Ruled By: CHIDYAUSIKU CJ

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

HH62-14 : JOHANNES MAKONYE vs KENAE RAMODIMOOSI and ENTREDEV PROPERTY GROUP and C.H. LUKAS
Ruled By: CHIGUMBA J

HMT12-20 : CHENESO MUVANDI vs CITY OF MUTARE and MATIVENGA MHISHI N.O. (as Executor of the Estate Late Washington Jekanyika)
Ruled By: MUZENDA J

HH420-17 : ELIAS MAPENDERE and FRANCIS PHIRI and JANI MUSANJEYA vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: MAKONI J

HMT29-20 : THE TRUSTEES OF THE ARDA-TRANSAU RELOCATION DEVELOPMENT TRUST vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (ZETDC) (PVT) LTD
Ruled By: MWAYERA J

CC07-16 : AMOS MAKANI and OTHERS vs ARUNDEL SCHOOL and OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

SC02-22 : SUNKO MAURITIUS and JUDEX BURNETT vs VERSAPAK HOLDINGS (PRIVATE) LIMITED (In Liquidation) and CECIL MADONDO N.O. (Provisional Liquidator of Versapak Holdings)
Ruled By: MALABA CJ, BHUNU JA and CHIWESHE AJA

SC09-22 : MOVEMENT FOR DEMOCRATIC CHANGE (TSVANGIRAI) and DOUGLAS MWONZORA and DR THOKOZANI KHUPE vs LILIAN TIMVEOS and THABITHA KHUMALO and OTHERS
Ruled By: GUVAVA JA, MAKONI JA and CHITAKUNYE JA

SC35-22 : JOHN BASERA vs REGISTRAR OF THE SUPREME COURT OF ZIMBABWE and SAMUEL MUVUTI and JOYLIN MUVUTI and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL SETTLEMENT
Ruled By: MATHONSI JA

Categories

Law Portal Zimbabwe

Cause of Action and Draft Orders re: Appearance to Defend iro Effect of Non-Appearance

SC115-21 : ANDREW CHIGOVERA vs MINISTER OF ENERGY AND POWER DEVELOPMENT and ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (ZETDC) Ruled By: GUVAVA JA, MAVANGIRA JA and KUDYA AJA

View Appeal HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.) Ruled By: CHIRAWU-MUGOMBA J

SC129-21 : SONY PICTURES TELEVISION UK RIGHTS LTD vs C MEDIA AFRICA (PVT) LTD and ZIMBABWE BROADCASTING CORPORATION (PVT) LTD Ruled By: MAVANGIRA JA, MAKONI JA and KUDYA AJA

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

SC132-21 : FRANK BUYANGA SADIQI vs CHANTELLE MUTESWA and OTHERS Ruled By: UCHENA JA

SC134-21 : OK ZIMBABWE LIMITED vs BENJAMIN TAZVIVINGA Ruled By: GWAUNZA DCJ, HLATSHWAYO JA and BERE JA

SC141-21 : WISE GARIRA and SHEPHARD MASHINGAIDZE and BAYAI BAYAI vs NATIONAL ENGINEERING WORKERS UNION and FIRST CAPITAL BANK Ruled By: GUVAVA JA, BHUNU JA and KUDYA AJA

SC143-21 : HAPPISON MUCHECHETERE vs ZIMBABWE BROADCASTING CORPORATION (PVT) LTD and RETIRED JUSTICE JAMES DEVITTE N.O. and GIBSON MUNYORO Ruled By: GWAUNZA DCJ, UCHENA JA and MAKONI JA

SC144-21 : FARAI MATSIKA and FAIRGOLD INVESTMENTS (PRIVATE) LIMITED vs MOSES CHINGWENA and 38 OTHERS Ruled By: BHUNU JA

HB37-15 : LAWRENCE CLEMINSON vs BRIAN SHER and RUEBEN POSWELL (as executor in the Estate Late Sally Lieber also known as Sally Zella Lieber) Ruled By: MUTEMA J

HH686-20 : NATIONAL ENGINEERING WORKERS UNION and WISE GARIRA and SHEPHERD MASHINGAIDZE vs NATIONAL EMPLOYMENT COUNCIL FOR THE ENGINEERING IRON & STEEL INDUSTRY and OTHERS Ruled By: MUSHORE J

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

CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

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

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

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

HB12-21 : ADHESIVE PRODUCTS MANUFACTURERS (PVT) LTD vs PARKAM ENTERPRISES (PVT) LTD (Under provisional judicial management of N. Motsi) and ASSISTANT MASTER OF THE HIGH COURT N.O. Ruled By: DUBE-BANDA J

CC02-22 : MUTUMWA MAWERE and OTHERS vs TICHAONA MUPASIRI and OTHERS Ruled By: MAKARAU JCC

CC03-22 : DIANA KAWENDA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HEALTH AND CHILD CARE and THE ATTORNEY-GENERAL OF ZIMBABWE Ruled By: MAKARAU JCC, HLATSHWAYO JCC and PATEL JCC

CC04-13 : BRIAN JAMES vs ZIMBABWE ELECTORAL COMMISSION and MINISTER OF LOCAL GOVERNMENT RURAL & URBAN DEVELOPMENT and MINISTER OF JUSTICE & LEGAL AFFAIRS and OTHERS Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, PATEL JA, HLATSHWAYO JA and CHIWESHE AJA

CC09-22 : MINISTER OF MINES & MINING DEVELOPMENT and THE PROVINCIAL MINING DIRECTOR FOR MIDLANDS PROVINCE vs FIDELITY PRINTERS & REFINERS (PVT) LTD and JONAH NHEVERA Ruled By: GOWORA JCC

HMA38-19 : BERRINGTON ZVANYANYA and OTHERS vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION and OTHERS Ruled By: MAFUSIRE J

View Appeal SC01-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

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

CC15-17 : JONATHAN MOYO vs SERGEANT CHACHA and ZIMBABWE ANTI-CORRUPTION COMMISSION and COMMISSIONER GENERAL OF POLICE, ZIMBABWE REPUBLIC POLICE and PROSECUTOR GENERAL Ruled By: CHIDYAUSIKU CJ

View Appeal HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS Ruled By: ZHOU J, CHAREWA J and MUSHORE J

HH62-14 : JOHANNES MAKONYE vs KENAE RAMODIMOOSI and ENTREDEV PROPERTY GROUP and C.H. LUKAS Ruled By: CHIGUMBA J

HMT12-20 : CHENESO MUVANDI vs CITY OF MUTARE and MATIVENGA MHISHI N.O. (as Executor of the Estate Late Washington Jekanyika) Ruled By: MUZENDA J

HH420-17 : ELIAS MAPENDERE and FRANCIS PHIRI and JANI MUSANJEYA vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS Ruled By: MAKONI J

HMT29-20 : THE TRUSTEES OF THE ARDA-TRANSAU RELOCATION DEVELOPMENT TRUST vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (ZETDC) (PVT) LTD Ruled By: MWAYERA J

CC07-16 : AMOS MAKANI and OTHERS vs ARUNDEL SCHOOL and OTHERS Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

SC02-22 : SUNKO MAURITIUS and JUDEX BURNETT vs VERSAPAK HOLDINGS (PRIVATE) LIMITED (In Liquidation) and CECIL MADONDO N.O. (Provisional Liquidator of Versapak Holdings) Ruled By: MALABA CJ, BHUNU JA and CHIWESHE AJA

SC09-22 : MOVEMENT FOR DEMOCRATIC CHANGE (TSVANGIRAI) and DOUGLAS MWONZORA and DR THOKOZANI KHUPE vs LILIAN TIMVEOS and THABITHA KHUMALO and OTHERS Ruled By: GUVAVA JA, MAKONI JA and CHITAKUNYE JA

SC35-22 : JOHN BASERA vs REGISTRAR OF THE SUPREME COURT OF ZIMBABWE and SAMUEL MUVUTI and JOYLIN MUVUTI and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL SETTLEMENT Ruled By: MATHONSI JA

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Law Portal
Zimbabwe

SC115-21 : ANDREW CHIGOVERA vs MINISTER OF ENERGY AND POWER DEVELOPMENT and ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (ZETDC)
Ruled By: GUVAVA JA, MAVANGIRA JA and KUDYA AJA

View Appeal
HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.)
Ruled By: CHIRAWU-MUGOMBA J

SC129-21 : SONY PICTURES TELEVISION UK RIGHTS LTD vs C MEDIA AFRICA (PVT) LTD and ZIMBABWE BROADCASTING CORPORATION (PVT) LTD
Ruled By: MAVANGIRA JA, MAKONI JA and KUDYA AJA

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

SC132-21 : FRANK BUYANGA SADIQI vs CHANTELLE MUTESWA and OTHERS
Ruled By: UCHENA JA

SC134-21 : OK ZIMBABWE LIMITED vs BENJAMIN TAZVIVINGA
Ruled By: GWAUNZA DCJ, HLATSHWAYO JA and BERE JA

SC141-21 : WISE GARIRA and SHEPHARD MASHINGAIDZE and BAYAI BAYAI vs NATIONAL ENGINEERING WORKERS UNION and FIRST CAPITAL BANK
Ruled By: GUVAVA JA, BHUNU JA and KUDYA AJA

SC143-21 : HAPPISON MUCHECHETERE vs ZIMBABWE BROADCASTING CORPORATION (PVT) LTD and RETIRED JUSTICE JAMES DEVITTE N.O. and GIBSON MUNYORO
Ruled By: GWAUNZA DCJ, UCHENA JA and MAKONI JA

SC144-21 : FARAI MATSIKA and FAIRGOLD INVESTMENTS (PRIVATE) LIMITED vs MOSES CHINGWENA and 38 OTHERS
Ruled By: BHUNU JA

HB37-15 : LAWRENCE CLEMINSON vs BRIAN SHER and RUEBEN POSWELL (as executor in the Estate Late Sally Lieber also known as Sally Zella Lieber)
Ruled By: MUTEMA J

HH686-20 : NATIONAL ENGINEERING WORKERS UNION and WISE GARIRA and SHEPHERD MASHINGAIDZE vs NATIONAL EMPLOYMENT COUNCIL FOR THE ENGINEERING IRON & STEEL INDUSTRY and OTHERS
Ruled By: MUSHORE J

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

CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE
Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

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

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

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

HB12-21 : ADHESIVE PRODUCTS MANUFACTURERS (PVT) LTD vs PARKAM ENTERPRISES (PVT) LTD (Under provisional judicial management of N. Motsi) and ASSISTANT MASTER OF THE HIGH COURT N.O.
Ruled By: DUBE-BANDA J

CC02-22 : MUTUMWA MAWERE and OTHERS vs TICHAONA MUPASIRI and OTHERS
Ruled By: MAKARAU JCC

CC03-22 : DIANA KAWENDA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HEALTH AND CHILD CARE and THE ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MAKARAU JCC, HLATSHWAYO JCC and PATEL JCC

CC04-13 : BRIAN JAMES vs ZIMBABWE ELECTORAL COMMISSION and MINISTER OF LOCAL GOVERNMENT RURAL & URBAN DEVELOPMENT and MINISTER OF JUSTICE & LEGAL AFFAIRS and OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, PATEL JA, HLATSHWAYO JA and CHIWESHE AJA

CC09-22 : MINISTER OF MINES & MINING DEVELOPMENT and THE PROVINCIAL MINING DIRECTOR FOR MIDLANDS PROVINCE vs FIDELITY PRINTERS & REFINERS (PVT) LTD and JONAH NHEVERA
Ruled By: GOWORA JCC

HMA38-19 : BERRINGTON ZVANYANYA and OTHERS vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION and OTHERS
Ruled By: MAFUSIRE J

View Appeal
SC01-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

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

CC15-17 : JONATHAN MOYO vs SERGEANT CHACHA and ZIMBABWE ANTI-CORRUPTION COMMISSION and COMMISSIONER GENERAL OF POLICE, ZIMBABWE REPUBLIC POLICE and PROSECUTOR GENERAL
Ruled By: CHIDYAUSIKU CJ

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

HH62-14 : JOHANNES MAKONYE vs KENAE RAMODIMOOSI and ENTREDEV PROPERTY GROUP and C.H. LUKAS
Ruled By: CHIGUMBA J

HMT12-20 : CHENESO MUVANDI vs CITY OF MUTARE and MATIVENGA MHISHI N.O. (as Executor of the Estate Late Washington Jekanyika)
Ruled By: MUZENDA J

HH420-17 : ELIAS MAPENDERE and FRANCIS PHIRI and JANI MUSANJEYA vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: MAKONI J

HMT29-20 : THE TRUSTEES OF THE ARDA-TRANSAU RELOCATION DEVELOPMENT TRUST vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (ZETDC) (PVT) LTD
Ruled By: MWAYERA J

CC07-16 : AMOS MAKANI and OTHERS vs ARUNDEL SCHOOL and OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

SC02-22 : SUNKO MAURITIUS and JUDEX BURNETT vs VERSAPAK HOLDINGS (PRIVATE) LIMITED (In Liquidation) and CECIL MADONDO N.O. (Provisional Liquidator of Versapak Holdings)
Ruled By: MALABA CJ, BHUNU JA and CHIWESHE AJA

SC09-22 : MOVEMENT FOR DEMOCRATIC CHANGE (TSVANGIRAI) and DOUGLAS MWONZORA and DR THOKOZANI KHUPE vs LILIAN TIMVEOS and THABITHA KHUMALO and OTHERS
Ruled By: GUVAVA JA, MAKONI JA and CHITAKUNYE JA

SC35-22 : JOHN BASERA vs REGISTRAR OF THE SUPREME COURT OF ZIMBABWE and SAMUEL MUVUTI and JOYLIN MUVUTI and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL SETTLEMENT
Ruled By: MATHONSI JA