The applicant applied for an order placing the respondent under provisional liquidation in terms of sections 207, 206(f)(g) as read with section 205(c) of the Companies Act [Chapter 24:03].

This Court, per MAKONESE J, on 18 September 2014, issued the following provisional order:

“1. The respondent, Aquirium Trading (Pvt) Ltd is 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 24:02], Mr Knowledge Hofisi of Aurifin Capital (Pvt) Ltd is appointed as provisional liquidator of the respondent company with the powers set out in section 221(2)(a) to (g) of the Act.

3. Any interested party may appear before the court, sitting at Bulawayo on 11th December 2014, to show cause why a final order should not be made placing respondent company in liquidation and ordering that the costs of these proceedings shall be costs of liquidation.

4. This order shall be published once in the Zimbabwe Government Gazette and once in the Herald newspaper. Publication shall be in the short form annexed to this order.

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

(a) Give due notice to the applicant at care of its legal practitioners, Messrs G. N. Mlotshwa & Company c/o Majoko and Majoko Legal Practitioners, 1st Floor, Triumphant House, 111a Josiah Tongogara Street, between 11th and 12th Avenue Bulawayo.

(b) Serve on the applicant a copy of an affidavit which he files with the Registrar of the High Court.”

The respondent filed a notice of opposition on 18 October 2014. It also filed its heads of argument on 28 November 2014 and its legal representative appeared in court on 11 December 2014 and opposed the confirmation of the provisional order....,.

The respondent's opposition is based on a number of grounds. Perhaps, it would be instructive to state the brief background facts before I consider the respondent's grounds for opposing the matter.

The respondent company was incorporated in 2004 by one Taleb Mohamad and Sandra Van Rooyen, to, among other things, pursue mining interests in the Midlands Province.

Sometime in 2012, the applicant company, Tamira Overseas SA, sought to invest in Acquirium Trading (Pvt) Ltd. In pursuant of that quest, various tentative agreements were entered into subject to the fulfillment of certain conditions.

On or about the 28th of August 2014, the applicant filed for the respondent's liquidation alleging that the respondent was heavily indebted to the applicant. On 18 September 2014, the applicant obtained the order referred to earlier in this judgment.

Let me come back to the notice of opposition and the grounds thereof. They are as follows:

1. The order for provisional liquidation was improperly prayed for and granted and must be set aside. The respondent submitted, that, it was not served in terms of the Rules before this provisional order was granted.

2. That, Messrs G.N. Mlotshwa and Company Legal Practitioners are conflicted out in this matter.

3. That, the application has not been properly brought before the court.

4. That, on the facts, the respondent company should not be placed under liquidation as there are no proper grounds for the placement of the respondent company under liquidation.

5. That, at the very least, the respondent should be placed under judicial management.

In respect of the first ground, it was submitted, on the respondent's behalf, that, before the provisional order was granted, the application for the provisional order was not served on the respondent at its registered address. The application was purportedly served on Heena Joshi who is not a director of respondent.

The notice of set down was not served on anyone.

Further, there was no affidavit of service filed with the court before the order was obtained.

The respondent also contended, that, the manner in which the applicant proceeded under the circumstances is in breach of section 5(2) of the Companies (Winding Up) Rules 1972 which provides;

“Except where the petition is presented by the company itself, a copy of the petition and the notice of set down for hearing shall be served upon the company by delivering of such copy at its registered office or to a responsible person at its place of business, failing such service, to a director or secretary of the company, or, if the company is in voluntary liquidation, to the liquidator. An affidavit of service shall be filed with the petition.”

Reliance was placed on the principle set out in African Gold (Zimbabwe) (Pvt) Ltd v Modest (Pvt) Ltd 1999 (2) ZLR 61 (SC)…, where the court observed as follows:

“A respondent company must not be deprived of the opportunity to put forward its opposition to the grant of an order which will have the effect of causing it to suffer an immediate diminution in personal status and a removal of control over all its assets.

The manifestly serious consequences flow from the issue of a provisional winding up order.

The provisional liquidator is almost invariably vested by the court with the wide powers set out in paragraphs (a) to (h) of section 221(2) of the Companies Act [Chapter 24:03]: see the remarks of HOFMEYER J in Mackay v Cahi 1962 (4) SA 193 (O) at 203G-H, which, though referring to sequestration proceedings, are nonetheless apposite and Walsh v Kugar 1965 (2) SA 756 (E) at 760B.

A fortiori, so it seems to me, the present appellant, being the victim of an inexcusable breach of procedure, the High Court ought to have afforded it the opportunity to oppose the application for the provisional order by the only means available, namely, by setting aside of the order that had been improperly obtained.”…,.

See also Reserve Bank of Zimbabwe v Trust Bank Corporation Ltd HC1070/13.

For this reason, the respondent prayed for the discharge of the provisional order with costs without even considering any other issues.

As pointed out above, the applicant did not file any heads of argument despite having been served with the respondent's heads.

Also, the applicant's principal legal practitioners did not attend and no explanation for their absence was proffered.

Counsel for the applicant submitted, that, he was a mere corresponding legal practitioner who was not versed with the facts of the matter. He indicated that he would stand by the papers filed of record.

There is no proof of service of the application for a provisional order in the record.

Consequently, the only inference is that it was granted on an ex parte basis.

This is irregular and I would discharge the provisional order for this reason.

Had the respondent not prayed for an order that the respondent be placed under judicial management the matter would have ended here.

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

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.

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.

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.

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.

The delay in handing down judgment in this matter, especially considering the manner in which the matter will be disposed of, is most sincerely regretted.

The appellant employed the respondent as a Security Officer.

It has appealed against the entire judgment of the Labour Court (“the court a quo”) handed down on 14 September 2012. The judgment allowed an appeal by the respondent against the decision of the appellant's disciplinary committee (“the committee”) which found him guilty of misconduct and dismissed him from employment.

On a date that is not material, the respondent allegedly gave copies of his payslips to a former employee of the appellant who was involved in a labour dispute with the appellant. The payslips were duly attached as evidence by the former employee to his court papers which were served on the appellant.

Thereafter, the appellant charged the respondent with two counts of misconduct for breaching Clause 8.5 of the Zimbabwe Newspapers Company Code of Conduct. Specifically, the respondent was accused of committing any act, misconduct or omission inconsistent with the express or implied conditions of employment and acting in conflict with the Group Business or Editorial Policies.

I note, in passing, that, the single act gave rise to two separate charges neither of which was preferred in the alternative, a glaring irregularity that was not adverted to by either of the parties at the hearing of the matter, as it offends the rule against the splitting of charges.

The issue was not raised with counsel and it cannot be a point on which this appeal may turn.

In his written response to the charges, the respondent denied that he had furnished the former employee with his payslips for personal use.

He appeared before a disciplinary committee on 19 November 2010.

At the hearing of the matter, the respondent argued, that, the disclosure of a payslip was not an act of misconduct specifically provided for in the code of conduct. He further argued, that, the prohibition against disclosure of a payslip was only introduced after he had been charged.

At the end of the hearing, the disciplinary committee found that the copies of the pay slips attached to the former employee's application appeared to belong to the respondent; that two witnesses testified that the respondent had admitted to them that he had given his payslips to the former employee; and that the respondent, in furnishing his payslips to the former employee, was being disloyal to the employer.

On the basis of these findings, the committee duly found the respondent guilty and dismissed him from employment.

I also note at this stage, that, there was no specific finding by the disciplinary committee that the respondent knew, at the time he allegedly gave his payslips to the former employee of the appellant, that his conduct was prohibited. It was the finding of the disciplinary committee, that, by giving his pay-slips to the former employee, the respondent acted disloyally.

Aggrieved by that decision, the respondent appealed to the Group Chief Executive Officer. He raised a number of grounds of appeal:

(i) The first was that the “offence involving payslips” was not provided for in his contract of employment or the code of conduct and that the endorsement on all payslips that they are “private and confidential” only appeared after his conviction and not before.

(ii) Secondly, the respondent argued, that, there was no evidence of any wrongdoing on his part and that the charges preferred against him were contrary to public policy as the appellant wanted to further its illegal practice of underpaying workers, and, as such, the respondent was not obliged to protect such an interest.

The respondent also alleged, that, the verdict of guilty went against the weight of evidence in that the former employee testified that he had not received the payslips from the respondent and no evidence was led to controvert such testimony.

He also attacked the procedure adopted in sentencing him alleging that he was not called upon to mitigate before the penalty was imposed on him.

Finding no merit, the appellant's Group Chief Executive Officer dismissed the appeal.

He found, that, the offence was provided for in the appellant's code of conduct and that the disclosure of payslips, or copies of pay slips, to any third party, is inconsistent with the implied conditions of the employment contracts of all the appellant's employees and in direct conflict with the interests of the Group.

He found, that, the burden of proof was on the respondent to prove that he did not give his payslips to the former employee. It was his finding that the respondent had failed to discredit the evidence that his pay-slips were found attached to the former employee's court papers.

The Group Chief Executive Officer relied on the minutes of the disciplinary committee hearing in holding that the respondent had made an admission to the two witnesses called by the appellant.

Still dissatisfied, the respondent noted an appeal to the court a quo on a multiplicity of grounds, nine in total. Only three of those grounds of appeal raised issues of law.

In essence, they raised the issue whether the respondent's conduct, if proved, amounted to an act inconsistent with the express or implied conditions of his contract of employment.

This is so because the respondent's conduct complained of occurred immediately before the condition that payslips were private and confidential was introduced. This, in addition to the other issues, was a live issue that had to be determined.

Using somewhat different language, the court a quo also identified the issue of whether the conduct of giving a payslip to a third party, prior to their being endorsed “private and confidential” constituted a misconduct.

The court a quo regarded it as the sole issue for determination.

In a rather terse judgment, the court a quo upheld the appeal on essentially three premises, namely:

1. That, the respondent, and all other employees of the appellant, were not aware that furnishing their payslips to another was conduct inconsistent with the terms of their employment.

2. That, there was no evidence on record to prove that the respondent had given his payslips to the former employee.

3. That, the failure to allow the respondent the opportunity to mitigate before the pronouncement of a penalty was incurably bad and vitiated the entire proceedings.

The roles were immediately reversed. Dissatisfied with the decision of the court a quo, it became the appellant's turn to appeal to this court.

It attacked the decision a quo on several bases:

(i) First, that the court a quo erred in finding that the respondent was not properly charged.

(ii) Second, that it erred in finding that the respondent was not aware that the confidential nature of the payslips did not have to be spelt out.

(iii) Third, that it erred in finding that there was no adequate evidence before the disciplinary committee that the respondent had given his payslips to the former employee.

(iv) Lastly, that the court a quo erred in finding that the failure to mitigate vitiated the proceedings as dismissal was the only appropriate penalty in terms of the Code of Conduct.

At the commencement of the hearing of the appeal, counsel for the appellant made an oral application to amend the prayer in the Notice of Appeal.

Counsel desired to insert words to provide for an order that the appeal be allowed. He did so upon a realization that this was omitted in the prayer contained in the Notice of Appeal.

Counsel for the appellant submitted, that, no prejudice will be suffered by the respondent if the amendment is granted especially as the respondent's counsel had not even picked up the defect in the prayer. In fact, the respondent had prepared to meet the appeal without regard to the defect.

While acknowledging that he had not even noticed the defect, counsel for the respondent opposed the application for the amendment.

He submitted, that, the Notice of Appeal must clearly set out the relief sought. If it fails to do so, it is null and void and cannot be amended for the reason that one cannot amend a nullity.

For his part, counsel for the appellant was quick to concede that the prayer is defective as it does not meet the requirements of Rule 37(1)(e) of the Supreme Court Rules 2018. He, however, refuted that the defect is one which renders the appeal a nullity.

In his view, the court is empowered, by Rule 41, to allow an amendment to the grounds of appeal or to any pleadings filed before it, presumably including a prayer.

It has been stated, repeatedly, by the courts, that, a failure to comply with the mandatory provisions of the Rules when lodging an appeal renders the appeal a nullity: see Matanhire v BP Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S).

Generally, where a Notice of Appeal does not comply with the Rules, the matter ought to be struck off the roll. This is because a nullity cannot be amended: see Chikura N.O. & Anor v Al Shams Global BVI Ltd SC40-17.

The belated application for an amendment is meant to bring the appeal within the remit of Rule 37(1) which requires, that, every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his or her legal practitioner which shall state, inter alia “the exact relief sought.”

The relief sought by the appellant in this case is couched in the following words:

“WHEREFORE appellant prays that the judgment of the court a quo be altered to read as follows –

'The appeal be and is hereby dismissed.'”

If the proposed amendment is granted, the prayer will read:

“WHEREFORE the appellant prays that the appeal be allowed with the judgment of the court a quo altered to read as follows -

'The appeal be and is hereby dismissed.'”

The concession made by counsel for the appellant, that the prayer is defective, is properly made.

The question however is whether the application should be granted. Put in another way: can the defective prayer be amended?

This Court was confronted with a similar situation in the case of Ndlovu & Anor v Ndlovu & Anor SC133-02. In that case, the prayer in the Notice of Appeal was couched in the following terms:

“…, that the judgment of the court a quo be dismissed with costs.”

Writing for the court, MALABA JA…, followed the reasoning in Jensen v Acavalos 1993 (1) ZLR 216 (S)…,.

He observed, that, the Notice of Appeal was clearly defective as there was no mention whether the whole or only part of the judgment was being appealed against and the exact nature of the relief sought.

At p2 of the cyclostyled judgment, he stated:

“In this case, there was no mention of whether the whole or part only of the judgment was being appealed against. The exact nature of the relief sought was not stated. What was prayed for in the notice of appeal was that the judgment of the court a quo be dismissed with costs. It is the appeal which is dismissed or allowed. If the appeal is allowed the judgment or decision appealed against is then set aside and a new order substituted in its place. In this case, it was not known what order the appellants wanted this Court to make in the event the appeal succeeded.”

The court concluded, that, the notice of appeal, which purported to institute the appeal “was incurably defective.” As there was no appeal before the court, the matter was struck off the roll with costs.

The case of Ndlovu & Anor v Ndlovu & Anor SC133-02 is on all fours with the present matter.

It has not been suggested that a departure from the case is called for. It settles this matter because the prayer is incurably defective. It cannot be amended.

A Notice of Appeal which does not meet the requirements of the Rules of court is fatally defective and invalid. A fatally defective compliance with the Rules on the filing of an appeal cannot be condoned or amended.

The appellant's Notice of Appeal suffers the fate of all fatally defective appeals.

Having come to the conclusion, that, there is no valid appeal before the court, there is no basis for relating to the merits.

In the result, it be and is hereby ordered as follows:

1. The matter is struck off the roll.

2. The appellant shall bear the costs.

This is an appeal against the whole judgment of the High Court which was handed down on 10 April 2019. The gripe of the appellant is that the court a quo dismissed its claim and granted an order in favour of the respondent's counter-claim.

The facts of the matter which have a bearing on the dispute may be summarised in the following manner:

The appellant is a private limited company duly registered in accordance with the laws of Zimbabwe. The respondent is a private individual and resides at 12 Le Roux Drive, Hillside, Harare.

On 19 July 2017, the appellant issued summons against the respondent and sought an order in the following terms:

“(a) Ejectment forthwith of the defendant and all those claiming occupation through him from the property at Number 12 Le Roux Drive, Hillside, Harare.

(b) Payment of damages in the sum of US$58,000 to plaintiff;

(c) Payment of holding over damages in the amount of US$700 per month calculated from the 01st June 2017 to date of eviction;

(d) Costs of suit on the higher scale of legal practitioner and client.”

The basis of the claim followed a purported breach of contract by the respondent.

In its declaration to the summons, the appellant averred, that, sometime in September 2009, the parties entered into a verbal agreement for the sale and purchase of a portion of immovable property known as Number 12 Le Roux Drive, Harare ('the property'). The sale was facilitated by an estate agents company known as Property Plus Realtors (Private) Limited which was acting on behalf of the appellant.

The agreement of sale stipulated, that, the respondent would pay the purchase price of US$75,000 by paying a deposit of US$15,000 upon agreement. The balance of US$60,000 was to be paid at the rate of US$5,000 per month for 12 consecutive months with interest on the purchase price being calculated at the rate of 1 per cent per month. The full purchase price was to be paid on or before 30 August 2010.

The parties further agreed, that, the respondent would take immediate occupation of the property upon payment of the deposit.

The appellant alleged, that, the respondent failed to pay the full instalments by the due date, and, as such, breached the verbal agreement of sale. It was the appellant's evidence, that, the respondent failed to pay the sum of US$39,100 which comprised the principal debt and interest.

The appellant further stated, that, the respondent acknowledged, in writing, on 30 March 2017, that he had not paid the full purchase price.

On 17 May 2017, the appellant served the respondent with a notice to rectify its breach within 30 days. Despite the notice, the respondent failed or neglected to comply. As a result of the respondent's breach, the appellant cancelled the agreement of sale on 23 June 2017 and demanded vacant possession of the property.

Following the issuance of summons, the respondent entered an appearance to defend.

In his plea, he averred, that, the agreed purchase price for the property was US$68,000 and that he was to pay a deposit of US$15,000, and, thereafter, instalments of US$5,000 until the balance was paid in full.

The respondent further averred, that, he paid the deposit and a further US$37,000 and that the remaining balance, as at 1 May 2010, was US$16,000.

The respondent averred, that, he failed to continue with the payments as the appellant refused to come up with a written Agreement of Sale which would enable him to obtain a mortgage loan to pay for the outstanding balance for the property.

The respondent further averred, that, both parties, as a compromise to their verbal agreement, agreed, that, upon payment of US$300 by the respondent, the appellant would draft the Agreement of Sale.

The respondent paid the US$300 but no agreement was drafted.

The respondent further stated, that, the appellant, without his knowledge and consent, sought to subdivide the property.

In reaction to the subdivision, the respondent, through his legal practitioners, wrote a letter, on 30 March 2017, to the appellant, informing it to refrain from the illegal sub-division and for it to provide a written agreement of sale.

The respondent stated, that, the appellant did not comply with his notice.

The appellant decided to give him notice to rectify a non-existent breach of the verbal agreement. It was the respondent's averment that the notice by the appellant was a legal nullity and of no force and effect.

The respondent thus denied the appellant's entire claim, and, consequently, filed a counter-claim against the appellant seeking the following order:

“(a) An interdict restraining the Plaintiff from subdividing the property known as Stand 10830 Salisbury Township of Salisbury Township Lands Held Under Deed of Transfer Number 11900/2005.

(b) An order that the Plaintiff take all necessary steps to prepare an agreement of sale within 10 days of the granting of judgment reflecting the terms of the verbal agreement as set out in paragraphs 16 and 17 of this Declaration including the amount paid as of date and the balance outstanding in the sum of US$16,000.

(c) Costs of suit on a Legal Practitioner and client scale.”

In its plea to the counterclaim, the appellant maintained, that, the agreement between the parties was for the sale and purchase of a portion of the property.

The appellant further denied the payments and outstanding balance which the respondent purportedly made to it.

The appellant also denied that it had an obligation to draw up an Agreement of Sale.

It was the appellant's argument, that, the agreement of sale did not have a term which provided that the balance of the purchase price would be paid through a Bank loan.

Following a pre-trial conference before a Judge, in chambers, the parties entered into a joint pretrial conference minute which read as follows:

“ISSUES

1. What were the initial and later compromise terms of the agreement?

2. Whether or not the defendant breached any of the terms of the agreement.

3. Whether or not the plaintiff should not be interdicted from subdividing the property?

4. On both parties in respect of issue number 1.

5. On the plaintiff in respect of issue 2.

6. On defendant in respect of issue 3.

7. Plaintiff admits to receiving US$300 for the purposes of drafting an agreement of sale.

8. Defendant is presently in possession of the property.”

At the trial, the appellant led evidence through a single witness, one Brian Machengo (Machengo), a Sales Manager at Property Plus Realtors (Private) Limited.

Brian Machengo testified, that, the advertisement of the property was published through The Herald newspaper. It did not indicate that only a portion of the property was being sold. It simply made reference to 'one acre of panoramic views'.

He further stated, that, he was given a mandate by the appellant to sell the property for US$90,000 but published the advertisement with an offer price of $70,000.

His mandate was to sell land with a residential property measuring plus or minus 1,500 square meters. It was part of the whole property that comprised 12 Le Roux Drive.

The respondent was one of the persons who responded to the advertisement and made an offer to purchase the property for US$68,000. This offer was rejected by the appellant.

He could, however, not explain how the purchase price changed from US$90,000 to US$70,000, and, subsequently, to US$75,0000. It was his evidence, that, as the agreement was verbal there was no paper trail explaining what had taken place.

Brian Machengo further accepted, that, at the time when the sale was concluded, there was no subdivision permit as the permit was only granted on 10 February 2015.

He further accepted, that, the respondent paid about US$52,000 towards the purchase of the property and that he paid US$300 for the drafting of an Agreement of Sale.

He confirmed that the respondent filled in an offer to purchase form.

He also highlighted, that, the form did not make any reference to the respondent accessing mortgage finance to pay off the purchase price.

He denied that he was obliged to give the respondent a written agreement.

He further stated, that, the appellant was within his rights to sub-divide the property as he had only sold a portion of it to the respondent.

The respondent testified on his own behalf and led evidence from two other witnesses.

The respondent testified, that, he saw an advert for the property which had a purchase price of US$70,000. He made an offer for US$68,000 on an Offer Form provided to him by Brian Machengo.

He indicated that it was never mentioned to him that only a portion of the property was being sold and that from the description of the property on the advertisement he believed he was purchasing the whole property.

He denied that the purchase price of the property was agreed as US$75,000 as alleged by the appellant.

The respondent admitted that he had not paid the full purchase price for the property.

He attributed his failure to meet the terms of the agreement to the fact that his company was facing economic hardships and that he failed to acquire a Bank loan as the appellant had refused to give him a written Agreement of Sale.

He explained, that, since he failed to get a written agreement he was unable to obtain a loan to offset the outstanding balance.

The respondent testified, that, in 2010, he met Mr Van Hoogstraten, whom he believed to be the seller, for the first time, who informed him that he never signs written contracts in his business dealings.

He then formed the opinion that he was dealing with “crookey, dodgy, people” and decided not to pay the balance of the purchase price.

He testified, that, he later received a report that there were people subdividing the property.

He wrote to the appellant protesting the subdivision as he believed he had purchased the whole property. When he did not get a response, he made a report to the police. Following the report to the police, he then received a letter informing him that he was in breach of the agreement.

The respondent denied that he owed the sum of US$58,000 as damages for rentals calculated at the rate of US$700 per month.

In 2014, he again met Mr Van Hoogstraten, and, this time, he agreed to have a written Agreement of Sale, provided the money for drafting such agreement was paid. It was on this basis that he paid the $300 for drafting the Agreement of Sale.

However, in spite of paying the $300, no agreement was drafted by the appellant.

The evidence of Patrick Mapfumo, the respondent's second witness, was admitted with the consent of both parties.

Patrick Mapfumo's evidence, as stated in the respondent's summary of evidence, confirmed, that, in 2014, the witness and his wife had gone with the respondent to see one Mr. Nicholas Van Hoogstraten along Mazowe Road. Their party also included Brian Machengo. It was Patrick Mapfumo's evidence, that, at the meeting, the parties agreed that an Agreement of Sale be drawn up upon payment of US$300 (being made) by the respondent for drafting the agreement.

The respondent's third witness was Patrick Nyamugama, a registered estate agent, who appeared to give expert evidence in support of the respondent's case.

Patrick Nyamugama testified, that, around the year 2009 the property in dispute would have been valued at about US$70,000 – US$80,000. He also stated, that, if the property was to be subdivided, the value of the property would be about US$50,000.

At the conclusion of the trial, the court a quo found, that, the respondent purchased the entire property and not a subdivision as alleged by the appellant.

The court disbelieved the evidence of Brian Machengo and found him to be an evasive witness. The court also found that Brian Machengo made a number of concessions in favor of the respondent.

The court a quo thus found that the appellant had failed to prove its claim.

It noted, that, there were gaps in the evidence given by Brian Machengo and that the appellant ought to have called its directors.

The court further noted, that, as the subdivision of the property had already been granted it could not make any order interdicting the operation of the subdivision permit.

However, the court found, that, the subdivision permit number SD/CR/15/14, dated February 2015, was null and void as it had been granted six years after the whole property had been sold to the respondent.

In the result, the court made the following order:

“1. The plaintiff's claim is dismissed.

2. The defendant's counter-claim is granted.

3. The plaintiff shall take all the necessary steps to prepare an Agreement of Sale within ten (10) days of the handing down of this judgment reflecting the terms of the verbal agreement entered into on 30 August 2009 including the following:

3.1 That plaintiff sold to the defendant certain piece of land situate in the district of Salisbury called Stand 10830 Salisbury Township of Salisbury Township Lands measuring 3,033 square metres held under Deed of Transfer number 11900/2005 in favour of Divvyland Investments (Private) Limited.

3.2 That the agreed purchase price for the immovable property was the sum of US$68,000 (sixty eight thousand United States dollars).

3.3 That the defendant paid a deposit in the sum of US$15,000 (fifteen thousand United States dollars) on 04 September 2009.

3.4 That the defendant has paid a total of US$56,900 (fifty six thousand nine hundred United States dollars) to date towards liquidating the purchase price inclusive of interest.

3.5 That the defendant shall pay the outstanding balance of $14,384-01 (fourteen thousand three hundred and eighty four United States dollars and one cent) through a Bank loan.

4. The plaintiff shall pay the defendant's costs of suit, in respect of both the main claim and the counter-claim, on the legal practitioner and client scale.”

Aggrieved by the judgment of the court a quo, the appellant noted the present appeal on the following grounds:

1. The court a quo erred and misdirected itself in granting relief not sought by the parties, and, in consequence, by creating a non-existing contract for the parties.

2. The court a quo erred and misdirected itself in setting aside a valid subdivision permit when no such relief had been sought before it.

3. The court a quo erred and misdirected itself in failing to find, that, once the respondent was in willful default/breach for a period in excess of five years, and contrary to the agreement, the appellant was entitled to cancellation of the agreement and to the consequential relief of eviction and holding over damages.

4. Furthermore, the court a quo erred in its failure to find, that, the absence of a written agreement is no bar to payment of the purchase price and that the respondent was not absolved from performing his side of the agreement as he could still tender into court or have made payment as he had previously done.

5. The court a quo further erred and misdirected itself in failing to find, that, an advertisement is an invitation to treat and does not create a binding contract. Furthermore, it misdirected itself in failing to find, per the evidence led, that, the respondent's offer had not been accepted by the appellant.

6. The court a quo further erred in imposing a contractual obligation of loan/mortgage financing which did not form part of the agreement between the parties and which did not exist at the time of contracting as per the evidence led.

7. The court a quo further erred and misdirected itself in failing to find, that, the admissions made by the respondent entitled the appellant to succeed on its case and have the counterclaim dismissed. These were:

(a) The property is registered in the name of the appellant who still possesses all rights of ownership in terms of the title deed.

(b) The respondent had not paid the full purchase price, whether for the half portion or for the full portion. It doesn't matter which portion he has not paid and persists in breach beyond the contracted time period (sic).

(c) The appellant, like any other party, had a right to cancel the agreement and claim eviction and holding over damages consequent to cancellation.

8. The court a quo further erred and misdirected itself in disregarding the uncontroverted evidence that the land in issue was a half-acre portion as opposed to a full acre, regard being had to the mandate to sell letter and to the advertisement placed by the appellant.

9. The court a quo further erred and misdirected itself in failing to find, that, the agreement to sell a portion of land, absent a subdivision permit, was, in any event, unlawful and could consequently not be enforced.

The appellant's grounds of appeal, in my view, raise the following issues for determination:

1. Whether or not the court a quo granted relief not sought by either of the parties.

2. Whether or not the court a quo erred in dismissing the appellant's claim.

3. Whether or not the court a quo erred in granting the respondent's counterclaim.

I will proceed to deal with these issues seriatim.

Counsel for the appellant argued, that, the court a quo fell into error when it granted relief which was not sought by either of the parties.

It was counsel's submission, that, the court a quo's finding, that the subdivision permit was null and void, was made in error as the issue of its legal effect was never an issue for determination before the court.

Counsel argued, that, the court found that it could not interdict the operation of the sub-division permit as the permit had already been granted and yet the court a quo went on to grant the respondent's counterclaim - including the part which sought to interdict the appellant from subdividing the property.

It was also counsel's submission, that, paragraph 3 of the order granted by the court a quo was made in error as the court enforced a non-existent agreement made on 30 August 2009 when the verbal agreement was in September 2009.

The appellant submitted, that, the court a quo erred in granting a computation of figures which were to be included in the Agreement of Sale. In support of the point, counsel argued, that, the court misdirected itself when it ordered that the respondent was to pay US$14,384=01 through a Bank loan when the respondent, by his own admission during trial, maintained that he owed US$16,000.

In relation to the issue of whether or not the respondent proved his counterclaim, counsel for the appellant argued, that, the respondent, by his own admission, stated, that, in a period of over nine years he failed to pay the full purchase price of the property. He thus had no valid claim to the property which remained under the ownership and title of the appellant.

It was the appellant's further argument, that, the respondent's claim, that he was to obtain a Bank loan to pay off the outstanding amount, was never agreed to as between the parties and therefore the court a quo should not have granted an order allowing the respondent to pay the outstanding balance through a Bank loan.

Counsel concluded by submitting, that, it was a basic principle of law, that, where a person occupies another person's property he or she must pay rent.

Counsel thus argued, that, the respondent, having been in occupation of the property for over nine years without being able to satisfy the purchase price, was liable to pay the appellant damages of US$58,000 and holding over damages of US$700 per month calculated from 1 June 2017 to the date of eviction.

Per contra, counsel for the respondent submitted, that, the court a quo did not misdirect itself in its findings as it dealt with all the issues which were raised in the pre-trial conference minutes.

Counsel submitted, that, the court had to resolve whether there was a breach by the respondent.

Counsel further submitted, that, the events that led to the appellant issuing summons only arose after the respondent wrote to it informing it to stop the subdivision of the property as this was a breach of the agreement of sale.

It was counsel's argument, that, the court correctly believed the respondent's version of how the purchase price was paid. He also submitted, that, the respondent made efforts to pay off the outstanding balance by paying the US$300 for a written contract which would help him secure a loan.

The appellant's witness, Brian Machengo, made concessions during the trial which destroyed the appellant's claim. Counsel thus argued, that, the appellant's case was full of improbabilities and inconsistencies.

He therefore submitted, that, the judgment of the court a quo was unassailable and prayed for the dismissal of the appeal.

Before the court a quo, the appellant sought an order for the eviction of the respondent and all those claiming occupation through him, damages in the sum of US$58,000, holding over damages at the rate of US$700 per month calculated from 1 June 2017 to the date of eviction, and costs of suit on a higher scale.

The respondent, in his counter claim, sought an interdict restraining the appellant from subdividing the property and an order that the appellant take all necessary steps to prepare a written Agreement of Sale which would reflect the terms of the verbal contract and the outstanding balance of US$16,000.

The appellant's claim was dismissed by the court a quo and the respondent's counterclaim granted.

The question of whether or not the court granted competent relief sought by either of the parties shall thus be determined with regard to the order granted in favour of the respondent only.

The court a quo found, that, it could not grant an interdict against the subdivision permit as the permit had already been issued. The court also found, that, the subdivision permit was null and void.

The court, upon making this finding, thereafter proceeded to grant the respondent's counterclaim in its entirety.

In my view, this was the first error made by the court a quo.

As if this was not enough, the court went ahead and ordered that the appellant to facilitate the writing of an agreement of sale between the parties.

The court a quo laid out the terms to be included in the Agreement of Sale.

A close reading of the judgment of the court shows a marked discrepancy between what was prayed for by the respondent and what was eventually granted.

(i) Firstly, it should be noted, that, it is an accepted principle of our law that it is not open to a court to rewrite terms of a contract for the parties. A court cannot infer or imply terms of a contract between parties but must simply interpret the terms of the contract in the event that a dispute arises.

In Magodora & Ors v Care International Zimbabwe 2014 (1) ZLR 397 (S)…, it was reiterated by the Court that:

“In principle, it is not open to the courts to re-write a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted…,.”

Further, in Wells v Southern African Alumenite Co. 1927 AD 69…, INNES J expressed that:

“If there is one thing which, more than another, public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred and shall be enforced by the courts.”

Paragraph 3 of the order of the court a quo clearly shows, that, the court fell into error in failing to appreciate the sacrosanct nature of the contract which existed between the parties.

Even if it was clear that the agreement between the parties was marred by different versions of events, the court could not dictate the terms of the agreement as the court was not party to the agreement nor was it present when the verbal agreement was concluded.

To further compound the error on the order, the court wrongly computed the dates when the agreement was made. Both parties agreed that the agreement was made in September 2009 and not 30 August 2009 as stated by the court.

The court went on to compute figures for the parties, which figures were disputed by the appellant and which were equally not clearly proved by the respondent.

The court a quo ordered that the agreement be written to reflect that the respondent paid a deposit of US$15,000 on 4 September 2009; that he paid a total of US$56,900 to date towards the purchase price plus interest; and that the outstanding balance to be paid by the respondent was US$14,384=01 to be paid through a Bank loan.

The court, however, failed to take cognizance of the fact, that, in making his counterclaim, the respondent stated the terms of the contract between the parties.

Under paragraph 17 of his claim, he averred, that, he paid a deposit of US$15,000; paid instalments of US$37,000 for a period between 30 September 2009 to 1 May 2010; and that a balance of US$16,000 remained.

The court a quo could not draft a new contract for the parties and dictate new terms.

The terms in the order were not the terms admitted and set out by the respondent in making the counter claim.

The court did not give justification for arriving at the amount it stated as US$56,900 (being the purchase price and interest) as the respondent himself never made reference to the amount of interest he paid in making the purchase price.

The court further arrived at the outstanding amount of US$14,384=01 without showing how such amount was calculated and yet the respondent had made an admission that the outstanding balance was US$16,000.

It can thus be deduced that the court misdirected itself by purporting to lay out terms of an agreement it was not a party to.

(ii) Secondly, the court a quo granted the respondent's counterclaim despite finding that it could not grant the interdict sought because the subdivision permit had already been granted. The court also went on to find, that, the subdivision permit was null and void.

A reading of the record shows that neither of the parties sought a declaration on the legality of the subdivision permit. Further, the record shows that the respondent did not motivate his claim by satisfying the requirements for an interdict - but the court still made a finding on the interdict sought.

A court must determine a matter based on the papers and evidence placed before it by the parties. It cannot go on a frolic of its own. This principle was stated in Nzara and Ors v Kashumba N.O. and Ors SC18-18…, wherein the Court held that:

“The function of a court is to determine the dispute placed before it by the parties through their pleadings, evidence, and submissions. The pleadings include the prayers of the parties through which they seek specified orders from the court.

This position has become settled in our law.

Each party places before the court a prayer he or she wants the court to grant in its favour. The Rules of Court require that such an order be specified in the prayer and the draft order.

These requirements of procedural law seek to ensure that the court is merely determining issues placed before it by the parties and not going on a frolic of its own. The court must always be seen to be impartial and applying the law to facts presented to it by the parties in determining the parties issues.”

Also, in Proton Bakery (Pvt) Ltd v Takaendesa 2005 (1) ZLR 60 (S)…, GWAUNZA JA…, noted the following:

“The appellant argues, in light of all this, that the action of the court a quo, in reaching a material decision on its own, amounted to gross irregularity justifying interference by this court on the principles that have now become trite.

I am, for the reasons outlined below, persuaded by this argument….,.

The misdirection, on the part of the court a quo, is left in no doubt. It is, in my view, so serious as to leave this Court with no option but to interfere with the determination of the lower court.”

The court a quo thus erred and misdirected itself by mero motu granting relief which had not been sought by the respondent in his counterclaim. Such misdirection warrants interference by this Court as the court clearly went on a frolic of its own.

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

There were no appearances for the second and third respondents.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. The court a quo erred and misdirected itself in law in holding, that, under the Labour National Employment Code of Conduct Regulations, 2006, S.I.15 of 2006, the appellant could be charged with, and convicted of alleged acts of misconduct arising from an expired contract.

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

3. The court a quo erred and misdirected itself in law in failing to hold, that, it was not competent for the first respondent to impose the penalty of dismissal before its own appointed disciplinary authority had made a determination on the appropriate penalty.

4. The court a quo fell into an error of law in failing to find that the appellant's conviction was contrary to the evidence that was placed before the disciplinary authority....,.

The appellant submitted, that, the first respondent pronounced the penalty of dismissal improperly, having done so before the disciplinary committee had made its determination on that issue.

In the appellant's heads of argument, and in oral submissions before the court, counsel for the appellant sought to expand the scope of this ground of appeal by impugning the determination and pronouncement of the penalty by the first respondent rather than the disciplinary authority. Counsel for the appellant contended, that, he was challenging both the timing of the penalty and the medium by which the penalty was determined and pronounced.

He submitted that there was no distinction between the two....,.

A quo, the appellant's ground of review, concerning the timing of the pronouncement of the penalty of dismissal, read as follows:

“The first respondent arrived at a decision on the penalty before the disciplinary proceedings were completed, in contravention of SI15/2006 as well as section 12B of the Labour Act (Chapter 28:01).”

The appellant, in his third ground of appeal in casu, elaborated on this argument by stressing that the first respondent had imposed the penalty of dismissal before its own appointed disciplinary authority had made a determination on the appropriate penalty.

The court a quo, as already indicated, made the finding, that, the first respondent had not 'prematurely concluded' the disciplinary proceedings when it pronounced the penalty of dismissal. The court stated as follows:

“The applicant filed his closing submissions (actually, submissions in mitigation) on 8 May 2015. On 19 May 2015 the submissions were considered by the Board. It was then resolved that the contract should be terminated with effect from 30 January 2014. The decision was communicated on 21 July 2015 through a letter dated 17 July 2015. It is therefore not correct to say the Board prematurely concluded the disciplinary proceedings….,.”

This finding by the court a quo echoed the first respondent's response to the allegation by the applicant in his founding affidavit that the former had arrived at a verdict before the disciplinary authority had done so.

The first respondent responded as follows in its opposing affidavit:

“This is denied. Retired Judge James Devittie handed down his determination on 22 April 2015.

The applicant filed his submissions in mitigation on 8 May 2015.

Thereafter, on Tuesday 19 May 2015, the ZBC Board of Directors sat and considered the nature of the offences with which applicant had been found guilty, and the submissions in mitigation filed by applicant. The ZBC Board of Directors resolved that a penalty of dismissal met the justice of the case.

Applicant's conduct, particularly acts of theft, go to the root of the employer-employee relationship.

The penalty of dismissal was handed down subsequent to the completion of the disciplinary hearing and after considering the judgment by Justice Devittie and whether there were any mitigatory circumstances….,.”

The above excerpts capture a factual conspectus which is not disputed by the parties.

The excerpts also make it abundantly clear that the first respondent, and the court a quo, subscribed to the view, that, the disciplinary proceedings were 'completed' upon the pronouncement of the guilty verdict by the disciplinary authority.

That being the case, according to that view, the first respondent, through its Board, was at large to thereafter step in and consider the appellant's submissions in mitigation and other factors, determine, and pronounce what it considered to be the appropriate penalty.

In addition to the timing of the event, the appellant takes issue with this conflation of the roles played by the first respondent and the hearing authority in a situation where the latter ought to have, itself, completed the proceedings.

It is contended, that, the proceedings could only have properly ended with the disciplinary authority hearing the parties submissions in aggravation and mitigation, and, thereafter, considering and pronouncing the appropriate penalty.

Counsel for the appellant contended, in this respect, that, the first respondent 'usurped' the responsibility of its own disciplinary authority and 'completed' the disciplinary proceedings itself.

He asserted, further, as follows in the appellant's heads of argument:

“A proper reading of SI15/2006, in the light of the lawmaker, shows, that, an employer who has appointed a disciplinary authority must live with its decision. It is unlawful for the employer to split the disciplinary process into two phases, namely, conviction and sentence, with the disciplinary authority handling the conviction phase while the employer takes over at the sentencing stage.”

The court finds there is merit in the appellant's submissions as outlined above.

While it is inelegantly formulated, the import of the disciplinary procedure laid out in section 6 of the Labour (National Employment Code of Conduct) Regulations, S.I.15/2006 is that disciplinary proceedings against an employee facing misconduct charges are conducted by the employer or a disciplinary authority appointed by it.

The tone of section 6(4)(b) of the Labour (National Employment Code of Conduct) Regulations, SI15 of 2006 makes it clear, that, where a disciplinary authority is appointed, it is expected to conduct the hearing as set out therein, including hearing submissions in mitigation, as well as determining and imposing the 'ultimate' penalty.

The hearing, in other words, is only completed after the 'ultimate' penalty is imposed.

The impression created in the end is that the disciplinary authority, once it starts the hearings, enjoys a great measure of autonomy in the conduct of the hearing until it has completed the process.

Considerations of fairness and the interests of justice in disciplinary proceedings support this procedural route.

It is also a route that is emphasized in various authorities on the subject.

In a section of the book 'Workplace Law' 11th Ed…., by the learned author JOHN GROGAN, that addresses the requirements of fair disciplinary hearing, the following is stated:

“As in criminal proceedings, the decision of the presiding officer should be made in two distinct stages. First, the guilt of the accused employee should be determined on the evidence, without reference to the employee's disciplinary record….,. Secondly, and after the verdict is decided, a penalty must be determined which is appropriate to the offence and the particular employee….,.”…,.

The above caption underlines three procedural issues:

(i) Firstly, the decision, must be that of the presiding officer.

(ii) Secondly, the decision consists of two parts - the verdict and the penalty.

(iii) Thirdly, and to that extent, a 'decision' that ends with just the verdict would not be complete.

What should and generally happens after a guilty verdict is pronounced, is aptly articulated as follows in what is termed 'corporate disciplinary hearing templates for misconduct' by the learned author MICHAEL OPPERMAN in his book 'A Practical Guide to Disciplinary Hearings'…,:

“Stage 5 – Mitigation, Aggravation and Sanction

1. If the employee is found guilty, the employer may formulate arguments in aggravation and the employee may advance arguments in mitigation of the offence, for purposes of the sanction to be imposed;

2. This process will be in the form of a mini-hearing and is removed from the facts of the main hearing;

3. The (disciplinary) panel will then adjourn once more and consider a sanction befitting the verdict and the arguments in aggravation and mitigation.”…,.

It would follow from what is set out above, that, after it pronounces a verdict of guilty, only the disciplinary authority is mandated to move on to the part of the proceedings that relates to mitigation, aggravation, and sanction.

Accordingly, the assumption of this mandate by someone, who, as happened in casu, did not preside over the proceedings nor participate as a member of the disciplinary panel, would be highly irregular.

That the person happened to have been the employer of the appellant, and, therefore, an interested party in the proceedings, could only have served to compound the irregularity.

The first respondent, as the employer, chose to appoint the disciplinary authority that presided over the proceedings. All that it had to do, after that, was to let the disciplinary authority conclude its work by imposing the penalty that it would have adjudged appropriate under the circumstances.

Only thereafter could the first respondent have properly taken the matter on and proceeded to determine the appellant's fate.

The evidence on record shows, that, the appellant expected the convening, by the hearing officer, of the 'mini-hearing' on 'Mitigation, Aggravation, and Sanction' that is listed by the authority cited above, as the final stage in disciplinary proceedings.

The chairperson of the disciplinary hearing, on or about 25 June 2015 received a letter to this effect from the appellant's legal practitioners, Messrs Mawire JT & Associates:

“Re: ZBC (Pvt) Ltd vs Happison Muchechetere: Mitigation Hearing

We refer to the above matter in which you availed your determination on the verdict on 22 April 2015. We filed our written mitigatory submissions on 7 May 2015. We now enquire as to when you intend to invite the parties for a mitigation hearing. Our client is now anxious to have the matter completed.”…,.

While there is no record of any response to the letter, by the chairperson of the disciplinary authority, the letter terminating the appellant's employment removes any doubt as to what then ensued.

As already indicated, the letter advised the appellant, that, following the verdict of guilty pronounced by the disciplinary authority, the full Board of the first respondent, on 19 May 2015, sat to consider the submissions made on his behalf in mitigation and resolved that termination of his contract of employment would 'meet the justice of the case.'

The first respondent, through its Board, as argued for the appellant, clearly jumped the gun, as it were, and assumed a responsibility that was properly meant to be discharged by the hearing authority.

In that way, the first respondent interfered with ongoing proceedings and irregularly brought them to an end.

This clearly cast into serious doubt the fairness of the proceedings post the pronouncement of the guilty verdict by the disciplinary authority.

It does not escape notice that the Board, having taken over a quasi-judicial role that it should not have done after the parties had filed submissions in aggravation and mitigation, is said to have related only to the appellant's submissions in mitigation and not the respondent's own submissions in aggravation.

This circumstance ran counter to the accepted procedure where an independent tribunal weighs and balances the mitigating and aggravating features of the offence in question against each other, before reaching and pronouncing an appropriate penalty.

The appellant had the right to have his submissions in mitigation considered and assessed by the same authority that had presided over the disciplinary proceedings, before pronouncement, by it, of the penalty. By the same token, the first respondent should have allowed its own submissions in aggravation to be heard and assessed by the same hearing authority.

Although not argued, the point must also be made, that, section 69 of the Constitution of Zimbabwe Amendment (No.20) Act 2013, guarantees the right of a litigant to a fair hearing before an independent and impartial court or tribunal.

The first respondent was a party to the proceedings and had an interest in seeing the appellant dismissed from his employment. Having taken over a crucial part of the disciplinary process from the independent hearing authority, the court finds, that, the first respondent, through its Board, crucially undermined the fairness of the sentencing part of the disciplinary proceedings. This could only have been to the detriment of the appellant.

Conduct that conjures the much-condemned circumstance, where someone is seen to act as both a prosecutor and judge in the same cause, flies in the face of the time-honoured adage 'justice must not only be done, but must be seen to be done.'

The court therefore finds, that, in all respects, the conduct of the Board, as outlined, constituted gross irregularity whose effect was to render the part of the disciplinary proceedings that pertained to 'mitigation, aggravation, and sanction' a nullity.

The conduct was without any legal basis, and therefore surpassed the bounds of what would ordinarily be regarded as a procedural faux pax meriting disregard or condonation by a tribunal or court in the determination of labour matters.

The court a quo accordingly erred in its finding that the following excerpt was applicable:

“…, a person guilty of misconduct should not escape the consequences of his misdeeds because of a failure to conduct proceedings properly by another employee. He should escape such consequences because he is innocent: Air Zimbabwe v Chiku Mensa & Anor SC89-10.”

The disciplinary authority in casu was prevented from conducting 'the proceedings properly' by the employer, who, acting on some undefined basis, stepped in midstream of the disciplinary proceedings, and purported to complete the process itself.

Accordingly, the 'sentencing' stage of the proceedings cannot stand and must be vacated. It is important that the disciplinary authority be allowed to properly complete its mandate.

What was before the court a quo were review proceedings.

Of the appellant's two valid grounds of appeal, the first lacks merit and will be dismissed. The second ground of appeal, being meritorious, will be upheld.

The court a quo, acting on the basis of a wrong procedural principle, erred in its finding, that, the disciplinary proceedings properly ended with the pronouncement of the guilty verdict against the appellant.

In the result, it is ordered as follows:

1. The appeal succeeds, in part, with each party bearing its own costs.

2. The judgment of the court a quo is set aside and substituted with the following:

'(a) The applicant's first, second, and third grounds for review are dismissed;

(b) The appellant's fourth ground for review is upheld.

(c) The matter is remitted to the disciplinary authority for it to consider the parties submissions in mitigation and aggravation, and, thereafter, to pronounce the appropriate penalty against the applicant.

(d) Each party shall bear its own costs.'

This is an application for condonation of late noting of appeal and extension of time within which to note the appeal in terms of Rule 43 of the Supreme Court Rules 2018.

The application is opposed.

The matter was argued on 24 November 2020. At the conclusion of argument the parties were granted the opportunity to canvas the possibility of an amicable settlement. The matter was then postponed sine die pending settlement, failure of which the court would proceed to determine the application.

The parties did not, however, come back to the court within a reasonable time to advise it of the outcome of their negotiations.

Prompted by the inordinate delay, on 1 June 2021, I asked the Registrar to write to the parties enquiring about the outcome of the envisaged settlement.

The enquiry elicit no response.

Having received no response, I directed that the matter be set down for 11 October 2021.

At that hearing, the parties, again, agreed to a further two weeks postponement to canvas settlement. The matter was then postponed to 18 October 2021 by consent of the parties.

At the resumed hearing, on 18 October 2021, the applicant was in default. Counsel for the respondent, however, advised that the parties had failed to settle their dispute thereby paving the way for me to determine the application.

I now proceed to determine the application on the merits.

The applicant is a Trust duly registered in terms of the laws of Zimbabwe whereas the respondent (the company) is a duly registered juristic person in accordance with the laws of Zimbabwe.

It is common cause, that, the applicant owns 50 per cent shares in the respondent.

On 19 February 2019, the applicant made an application in the High Court (the court a quo) for the liquidation of the respondent company. It sought liquidation of the company on the basis that the directors had irretrievable differences as they were deadlocked on the management of the company.

The respondent opposed the application, raising a counterclaim coupled with a point in limine in the process.

It is convenient to deal with the point in limine first before delving into the merits of the application.

The point in limine raised by the company is procedural in nature.

Counsel for the company submitted, that, the application before the court a quo was fatally defective for failure to comply with the mandatory provisions of section 5(4)(a) and (b) of the Insolvency Act [Chapter 6:07].

The court a quo upheld the point in limine hence the appeal.

The section provides as follows:

“5. Application by debtor for the liquidation of a trust, company, private business, corporation, co-operative or other debtor other than a natural person or partnership

(1)…,.

(b) By the company, or one or more directors or by one or more members for an order to wind up the company on the grounds that –

(i) The directors are deadlocked in the management of the company, and the members are unable to break the deadlock; and

A. Irreparable harm is resulting or may result from the deadlock; or

B. The company business cannot be conducted to the advantage of members, generally, as a result of the deadlock: or

(ii) The members are deadlocked in voting power, and have failed, for a period that includes at least two financial years, to elect successors to directors whose terms have expired; or

(iii) It is just and equitable for the company to be liquidated.

…,.

(4) Every application to the court referred to in subsection (1) except an application by the registrar of companies in terms of subsection 1(e) and the Master in terms of paragraph (h) of that subsection must be accompanied by -…,.

(a) A statement of affairs of the debtor corresponding substantially with Form A of the First Schedule; and

(b) A certificate of the Master, not issued more than four days before the date on which the application is to be heard by the Court, that sufficient security has been given for the payment of all costs in respect of the application that might be awarded against the applicant.”

It is common cause that the applicant did not comply with the mandatory provisions set out in section 5(4)(a) and (b) of the Insolvency Act in so far as the application was not accompanied by a statement of affairs of the debtor corresponding substantially with Form A of the First Schedule. That omission was in contravention of paragraph (a) above.

Secondly, there was no Master's certificate as is required by paragraph (b).

In paragraph 5.9 of its heads of argument, the applicant concedes that the application before the court a quo was in fact a nullity where it says:

“In casu, the application a quo was fatally defective and same should have been struck off the roll and not determined on the merits.”

On that score, counsel for the applicant argues, that, the court a quo committed a gross irregularity by proceeding to deal with the merits of proceedings which were a nullity at law.

It is correct to say, that, the learned judge a quo found that the applicant failed to comply with the strict mandatory provisions of the law, and that, therefore, the application before him was a nullity.

At page 5 of his cyclostyled judgment, the learned judge properly relied on the dictum in Air Duct Fabricators (Pvt) Ltd v A M Machado & Sons (Pvt) Ltd HH54-16.

That case is authority for the proposition, that, failure to comply with a mandatory course of action invalidates the thing done.

Having correctly articulated the law, the learned judge a quo appreciated that he ought to have struck the application off the roll as a nullity for want of compliance with the law. He however did not strike off the application but went on to consider the company's counter application.

In his own words, this is what he had to say at page 5 of HH606-20:

“So much for the preliminary point which the entity raised. It is not without merit. But, for the need on my part to consider the application as a whole, the same would have been struck off the roll with costs. I remain alive to the fact that the parties placed before me an application and a counter-application. It is therefore necessary for me to consider both and make a determination, which, in my view, serves the interests of the parties.”

Having said that, the learned judge a quo went on to consider the merits of the counter application and issued the following order at page 17 of HH606-20:

“I have considered all the circumstances of this case. I remain alive to the fact that the counter-application in favour of the entity in terms of paragraph (d) of subsection (2) of section 197 of the Companies Act. I am satisfied that the requirements which are mentioned in section 196 of the Companies Act are met.

It is in the result ordered that:

(a) The main application be and is hereby dismissed with costs.

(b) The main order in the draft of the counter application be and is hereby granted.”

Thus, the learned judge a quo determined both the main application and the counter-application notwithstanding the fact that he had previously observed that the proper course of action to take was to strike off the main application for want of compliance with the mandatory provisions of the law.

On the facts before him, the learned judge was undoubtedly correct in his view, that, the main application ought to be struck off for none-compliance with the law. The applicant's failure to comply with the mandatory procedural requirements of the law meant that the application was not properly before the court a quo.

The proper order in that regard is to strike off the proceedings as a nullity.

In Chirosva Minerals (Pvt) Ltd v Minister of Mines and Ors 2011 (2) ZLR 274, the court held, that, the disregard of a peremptory provision in a statute is fatal to the validity of the proceedings affected.

What this means is that the main application that was launched in the court a quo, without the statement of affairs of the debtor and the Master's certificate, as required by law, was void, and, to that extent, a legal nullity.

The leading case on the effect and import of void proceedings is Mcfoy v United Africa Co Ltd [1961] 3 ALL ER 1169…,. In that case, LORD DENNING observed that:

“If an act is void, then, it is, in law, a nullity. It is not only bad but incurably bad. There is no need for an order of court for it to be set aside. It is automatically null and void without more ado, although it is sometimes more convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad. You cannot put something on nothing and expect it to stay there. It will collapse.”…,.

On the basis of the law, as articulated through the cases, once the learned judge had taken the correct view that the main application upon which the counter application was founded was a nullity, he ought to have declared the application a nullity and stop there.

Since the counterclaim was founded on a nullity, it had no independent existence of its own. It would therefore have collapsed together with the main application as it was riding on the back of the main application.

Faced with the same situation in Care International Zimbabwe v ZIMRA & Ors HH373–15…,.; 2015 (1) 567…, MTSHIYA J, sitting in the same court, had this to say:

“I agree with the first respondent, that, there is no valid application before the court, and, accordingly, the rest of the issues raised by the respondents cannot be delved into. The finding estops me from going any further.”

MTSHIYA J was undoubtedly correct that once an application is found to be fatally defective the court cannot go on to determine any other issues based on the defective application.

In light of established precedent, it is plain that the learned judge a quo strayed into the morass of irregularity when he proceeded to determine both the main application and the counter application in circumstances where it was clear to him that the main application was a nullity.

There is, therefore, merit in the applicant's complaint, that, the court a quo could have misdirected itself by failure to strike off the main application, and, by extension, the counter-application.

For the foregoing reasons, I find that the applicant has bright prospects of success on appeal. It is accordingly ordered that:

1. The application for condonation of late noting of appeal and extension of time within which to note the appeal be and is hereby granted.

2. The notice of appeal shall be filed and served within five (5) days of this order.

3. There shall be no order as to costs.

The respondent filed an application for Directions in terms of Order 23 of the High Court Rules 1971.

On 26 November 2014, I directed that the Urgent Application for Stay of Execution, filed under case number HC2009/14, be set down for argument during the first term of 2015. The matter was set down for argument on 20 February 2015.

This judgment deals with the confirmation or discharge of the Provisional Order granted by this court on 28 August 2014.

The factual background to this matter is as follows:

On 28 August 2014, the respondent (as plaintiff) obtained a judgment in the Magistrates Court for the cancellation of the lease agreement between the parties signed and concluded on 30 July 2012. The Applicant (as defendant) was also ordered to pay arrear rentals in the sum of $2,500 per month with effect from January 2013. The applicants were ejected from Shop Number 2, 79A Jason Moyo, Bulawayo and were ordered to pay collection commission together with interest at the prescribed rate and costs of suit.

Aggrieved by the judgment of the Magistrates Court, the applicants filed a Notice of Appeal and such appeal is pending before this court under case number HCA92/14.

Armed with the Notice of Appeal, the applicants approached this court, under cover of case number HC2009/14 on an urgent basis and obtained a provisional order whose interim provides that:

“Pending the finalization of this matter, execution of the magistrates court judgment under case number 732/13 is stayed.”

The respondents sought to set the matter for hearing, a move resisted by the applicants.

This prompted the filing of the application for directions.

I directed the parties to file their heads of argument and present argument on whether the application for Stay of Execution should be confirmed or discharged.

The first issue I must determine is whether the Notice of Appeal filed by the applicants is valid and complies with the rules.

Rule 29 of the Supreme Court Rules 1964 (which Rule applies to appeals to the High Court), provides that:

“Every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his legal representative, which shall state:

(a) The date on which, and the court by which the judgment appealed against was given;

(b) If leave to appeal was granted, the date of such grant;

(c) Whether the whole or part only of the judgment is appealed against;

(d) The grounds of appeal in accordance with the provisions of Rule 3;

(e) The exact nature of the relief sought;

(f) The address of service of the appellant or his legal practitioner.”

In this matter, the Notice of Appeal does not state whether the appeal is against both liability for arrears and ejectment from the rented property.

This is far short from the peremptory requirements for the Rules.

Furthermore, to merely state, that, the appellants pray that their appeal be allowed with costs is grossly inadequate and not in compliance with the rules of the court.

The Notice of Appeal, is, in my view, fatally defective to the extent that it is a nullity.

There has been no attempt to seek to amend the Notice of Appeal in spite of the fact that the issue was raised way back in October 2014.

What this boils down to is whether the applicants can hold on to an Order for Stay of Execution obtained pursuant to a defective Notice of Appeal.

I am of the firm view, that, once it is established that the Notice of Appeal is defective and a nullity, the applicant's order for stay of execution cannot be allowed to stand.

In the case of Jensen v Acavalos 1993 (1) ZLR 216, KORSHA JA…, stated the position as follows:

“The reason is that a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad, and, unless the court is prepared to grant an application for condonation of the defect and allow a proper notice of appeal to be filed, the appeal must be struck off the roll with costs.”

On 30 November 2005, the first respondent, Bell Inn (Pvt) Limited, was granted a spoliation order by GOWORA J in the following terms:

“INTERIM RELIEF GRANTED

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

1. That 1st respondent is directed to remove himself and property and all persons holding through him from Arden Estate within 24 hours of the date of service of this order.

2. The Deputy Sheriff is authorised to evict 1st respondent and all persons holding through him from the farm.

3. That 1st respondent is interdicted from interfering with applicant's farming activities.

4. That 2nd respondent is directed to give the necessary instruments to Nyabira police to render all necessary assistance to the Deputy Sheriff in implementing his order should 1st respondent offer any resistance thereto.

1. That 1st respondent be interdicted from returning or visiting Arden Estate.

2. That 1st respondent pay the costs of application on a legal practitioner and client scale.”

In that case, Bell Inn (Pvt) Ltd, the first respondent in the present proceedings, was the applicant while Mr Zakeyo Mereki, the applicant in the present case, was the first respondent, and the Commissioner of Police was the third respondent.

On that same day, id est 30 November 2005, Zakeyo Mereki filed an application to suspend service of Bell Inn's application on himself. His application was heard in chambers on 5 December 2005 and judgment was handed down on 7 December.

The order that the court issued was as follows:

“TERMS OF RELIEF MADE

1. That the 2nd respondent be and is hereby ordered to suspend service of the order annexure “C” on the applicant.

2. That the applicant be and is hereby entitled to remain in occupation of subdivision 1 of Arden Estate in Zvimba District of Mashonaland West Province until the final determination of this matter and to carry on all farming activities which he was engaged in or intended to engage in consequent upon his right to occupation in terms of annexure “A” the letter dated 10th November 2005 from the acquiring authority.

1. That the applicant be and is hereby declared to be the rightful occupier of No.1 Arden Estate in Zvimba District of Mashonaland West Province in terms of the offer letter annexure “A” dated 10th of November 2005.

2. That the 1st respondent be and is hereby ordered to cease occupation of the subdivision 1 of Arden Estate in Zvimba District of Mashonaland West Province.

3. That the 1st respondent pay the costs of this application.”

When Bell Inn's application was served on Zakeyo Mereki, on 2 December 2005, he had already filed the above application seeking to prevent the Deputy Sheriff from effecting service on him.

In the same application, Zakeyo Mereki was seeking for a declarator.

As already stated above, the court handed down the judgment on 7 December 2005 wherein it declared Zakeyo Mereki as the correct occupier of the disputed piece of land.

Two days later, Bell Inn filed a notice of appeal against that judgment.

Zakeyo Mereki, who is the respondent in the appeal, contended, that, the appeal was a nullity. Hence the order that he was granted remained operative. It could only have been suspended had the appeal been properly and validly noted against that judgment and order, so his contention went.

The appellant appealed against the granting of an interdict to the respondent.

The respondent argued, that, when an interdict is granted it was not appellable. It was only the refusal of an interdict which is appellable.

Counsel for the respondent argued this point at some length citing some South African authorities.

He concluded, that, the legal position on that point was as stated in the South African authorities and went on to submit, that, the appellant had misread the law.

It turned out, however, that it was him who had misread the law.

There was no need for the respondent to refer to foreign authorities when our statutes have the answer to the question that falls to be decided.

In casu, the answer lies in section 43(2)(d)(ii) of the High Court Act [Chapter 7:06] which recites that –

“(2) No appeal shall lie –

(a)…,.

(b)…,.

(c)…,.

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

(i)…,.

(ii) Where an interdict is granted or refused.”

Quite clearly, there was no need for the appellant to obtain leave of the judge in this matter.

Its appeal was properly and validly noted and it suspended the judgment and order handed down on 7 December 2005.

In this application, Zakeyo Mereki sought confirmation of the provisional order which the noting of an appeal suspended.

That is clearly untenable.

There is another issue in this application which is a cause for concern.

The applicant did not file a draft of the order that he sought. He merely stated what he was seeking at the conclusion of his founding affidavit.

As mentioned above, what he was seeking was the confirmation of the order which had been suspended by the noting of an appeal.

On realising that what he was seeking could not possibly be granted, he, a day after the hearing, then filed a draft order which was different from what he originally sought. This time around his interim relief read -

“TERMS OF RELIEF MADE

A(1) That the writ of execution issued by this Honourable Court, on the 5th of January 2005, be and is hereby set aside pending the confirmation or discharge of the order reflected in “B” below.

(2) That notwithstanding the noting of appeal in case no. HC6286/05 and this case, the Provisional orders be operative with immediate effect.”

This is completely new and was never addressed at the hearing in chambers.

The application was defective because it did not comply with the peremptory provisions of the rules of this court, in particular Rule 227(3), which reads -

“(3) Every written application shall contain a draft of the order sought."

The applicant did not seek condonation from the court for failure to file a draft order with the application.

When attention was drawn to this defect, all that the applicant's legal practitioner could say was that the applicant would have no problems with filing a draft order. He then went on to file a draft order which was totally unrelated to what was argued at the hearing.

The application also fails for failure to provide a draft of the order sought.

In conclusion, I hold that the application fails on two grounds:

(a) That the order in case No. HC6286/05 was suspended by noting of an appeal on 9 December 2005; and

(b) That the application was defective in that it had no draft order for which no condonation was sought for the failure to do so.

In the result, I would dismiss the application with costs.

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.

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.

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.

ln Case No. HC2166/21 the applicant sought declaratory relief as follows:

“IT IS DECLARED THAT:

1. The first respondent (Judicial Service Commission) in failing to activate the provisions of section 180 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 and/or the provisions of section 180 of the Constitution of Zimbabwe as amended by Constitution of Zimbabwe Amendment (No.2) Act 2021 (No.2 of 2021) diligently and without delay violated section 324 of the Constitution of Zimbabwe as amended.

2. The second respondent (Chief Justice Luke Malaba) cannot, by virtue of section 328(7) of the Constitution of Zimbabwe, as amended, benefit from the term limit extension as introduced by an amendment of section 186 by the Constitution of Zimbabwe Amendment (No.2) Act 2021.

3. As a consequence of 2 above, the second respondent shall vacate office as the Chief Justice of Zimbabwe on (sic) midnight of 15 May 2021.

4. Any action, conduct, act, or deed of second respondent post the 15th of May 2021, purportedly as Chief Justice of Zimbabwe, is null and void and of no force or effect.

5. Any attempt to continue in office by second Respondent as Chief Justice of Zimbabwe and/or any continuation in office by second respondent, purportedly as Chief Justice of Zimbabwe, violates applicants right of access to a court of law established by law and applicants right to protection of the law in accordance with section 69(4) and section 56(1) of the Constitution 2013 as amended.

6. The second respondent, in any event, can no longer be a judge of the Constitutional Court for more than 15 years in violation of section 186(1) of the Constitution 2013 as amended.

7. ln the alternative, section 14 of the Constitution of Zimbabwe Amendment (No.2) Act 2021 (No.2 of 2021) is invalid for violating section 56(3) of the Constitution 2013 and is accordingly struck down.

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

The relief set out in the first paragraph was not persisted with as it was predicated upon a misreading of the Constitutional provisions pertaining to the appointment of a Chief Justice in Zimbabwe.

The applicants were under the mistaken belief that the first respondent, the Judicial Service Commission (JSC) had the mandate to call for candidates to participate in an interview.

Section 180 of the Constitution provides that the Chief Justice is appointed by the President after consultation with the Judicial Service Commission (JSC).

The relief sought in paragraphs 2, 3, 4 and 5 is the same one being sought by the applicant in HC2128/21 save for the reference to section 69(4) of the Constitution.

The relief sought in paragraph 6 of the draft order was abandoned during argument. Also, the applicant did not make any submissions in support of the alternative relief being sought in paragraph 7 of the draft order.

We take it that this relief, seeking the declaration of invalidity in respect of section 13 (which was incorrectly referred to as section 14) of the Constitution of Zimbabwe Amendment (No.2) Act 2021, is not being persisted with.

The parties raised preliminary issues and objections:...,.

The respondents objection is that the court application filed on behalf of the applicant is not in Form 29, as is required by Rule 230 of the High Court Rules 1971. The respondents point out, that, the form filed does not alert the respondents to their procedural rights, such as the consequences of any failure to oppose the application.

The only missing portion of Form 29 is the one that warns the respondents, that, if they fail to file their opposing papers within the dies induciae, then, the matter would be dealt with as an unopposed application. In all the other respects, the Form complies with the requirements of Form 29. The dies induciae are not contained in the Form 29 itself but are stated in Rule 232.

The failure to state the period of ten days cannot, therefore, be a failure to comply with Form 29.

The other requirements of Form 29, like the need to file a notice of opposition and opposing affidavit; the need to serve opposing papers; and the entitlement to attach annexures to the opposing affidavits, are stated.

Given that this application was filed under a certificate of urgency, and with truncated periods for filing papers, and would be subject to the directions to be issued by the judges who would be seized with the case, we do not believe that it would have been up to the applicant to warn the respondents of the consequences of a failure to file opposing papers within the proposed dies induciae which were, after all, proposed by the applicants.

These would be subject to whatever directions that the court would give.

These directions were given with the consent of all the parties. No prejudice was occasioned by the failure to state the consequences of a failure to file the opposing affidavit within the period proposed. Those who intended to oppose the applications did file their opposing papers in accordance with the directions issued.

We take note of, and draw attention to, the provisions of section 85(3)(c) of the Constitution 2013, which state that:

“The court, while observing the rules of natural justice, is not unreasonably restricted by procedural technicalities."

Given that all the parties had the opportunity, by consent, to file the opposing and answering affidavits and heads of argument, the objection pertaining to the form used cannot be sustained having regard to the important constitutional questions which arise from the papers.

For these reasons, we dismiss the objection.

This is an appeal against the judgment of the High Court dismissing, with costs on a legal practitioner and client scale, an application for condonation of the failure to apply for the rescission of a default judgment granted in Case No. HC2424/17 within the time stipulated by the High Court Rules 1971.

The appellant had simultaneously filed an application for the rescission of the default judgment. However, this part of the application was abandoned following strenuous opposition by the respondents and with the concurrence of the court a quo.

The respondents issued summons against the appellant on 21 March 2017, in Case No. HC2424/17, for the payment of $98,979=, together with interest, in respect of sums allegedly misappropriated by the appellant from the second respondent.

The appellant disputed the claim and denied owing any monies as alleged.

A pre-trial conference was set down for 9 October 2017 and was postponed to 26 October 2017. The appellant failed to appear at the pretrial conference because he was unaware that he was required to be present. His legal practitioner also did not appear himself but was represented by his colleague who was unable to explain the appellant's absence.

A default judgement in favour of the respondents was entered against the appellant who consequently filed the dual application for condonation and rescission referred to above through a different firm of legal practitioners.

As was noted by the court a quo, none of the appellant's erstwhile lawyers had filed any supporting affidavits explaining their conduct and the appellant's absence from the pre-trial conference. Furthermore, there was no supporting affidavit from the employee in that firm of lawyers who was said by the appellant to have called him belatedly on the day of the pretrial conference.

In his founding papers, the appellant lamented the “gross negligence” on the part of his erstwhile lawyers and the “great disservice” occasioned to him by their conduct.

The court a quo found, that, in view of the above evidentiary deficiencies, the appellant's averments remained unsubstantiated.

In the court's view, this was a typical case where the dereliction of professional duty, imputed by the appellant to his legal practitioners of choice, should be held against him personally.

The court observed that the pre-trial conference was postponed and that the appellant must have been aware of the postponement. There was therefore no reason why he did not attend the pretrial conference since any diligent litigant would attend unless excused from so doing.

Additionally, the fact that the appellant had accepted the wrong legal advice from his lawyers, in noting an appeal against the default judgement, did not justify his subsequent attempt to follow the correct procedure because, if he were allowed to do so, there would be no finality to litigation.

As regards the appellant's prospects of success, the learned judge a quo found, that, the appellant had not shown that the intended application for rescission had any merit. This was due to the fact that his defence to the claim instituted by the respondents was not articulated in his application.

As for costs, the learned judge took the view, that, the appellant had persisted with the application even though he knew that it had no merit. Consequently, the respondents had been unnecessarily put out of pocket for the costs of attendance by an advocate on two different days when the matter could have been argued in less than an hour.

In the event, the application for condonation of the failure to timeously apply for rescission of the default judgment was dismissed with costs on a punitive scale.

The grounds of appeal in this matter, as grammatically corrected, are as follows:

(1) The court a quo erred at law in finding, that, the appellant did not articulate his defence to the claim despite such defence being addressed in the application for condonation and the heads of argument. The failure to properly deal with prospects of success amounts to a failure to determine the matter according to law.

(2) The court a quo erred in not making a cumulative assessment on whether all the requirements had been satisfied as required by law. A court is bound, at law, to consider and evaluate all the requirements in conjunction with each other and not to place too much emphasis on the requirements individually.

(3) The court a quo grossly misdirected itself in extending the sins of the appellant's erstwhile legal practitioners to the appellant. The peculiar circumstances of the matter were that the appellant could not make an independent assessment or give a considered instruction on the remedies adopted, and, therefore, non-compliance should not have been extended to him.

(4) The court grossly erred at law in failing to find that the appellant had high prospects of success and in failing to exercise its discretion to grant condonation in the interests of justice.

The factors to be considered in an application for the condonation of any failure to comply with the rules of court are well-established. They are amply expounded in several decisions of this Court in which the salient criteria are identified. They include the following:

(a) The extent of the delay involved or non-compliance in question.

(b) The reasonableness of the explanation for the delay or non-compliance.

(c) The prospects of success should the application be granted.

(d) The possible prejudice to the other party.

(e) The need for finality in litigation.

(f) The importance of the case.

(g) The convenience of the court.

(h) The avoidance of unnecessary delays in the administration of justice.

See Forestry Commission v Moyo 1997 (1) ZLR 254 (S); Maheya v Independent African Church SC58-07; Paul Gary Friendship v Cargo Carriers Limited & Anor SC01-13.

As was observed in the latter case, the factors listed above are not exhaustive.

In its judgment, the court a quo found that “the applicant has not shown that the intended application for rescission has merits [because] the applicant's defence to the claim is not articulated in this application.”

Having regard to the contents of the applicant's founding affidavit a quo, the above finding is patently erroneous.

In that affidavit, the appellant not only attacks the order sought to be rescinded but also categorically articulates his defence to the main claim, to wit, that the alleged payments of salary were not made by the second respondent but by a different company run by the first respondent and that, therefore, the respondents had no cause of action against him.

In their opposing papers, the respondents did not challenge the appellant's averments as to his defence.

What this shows is that there was a dispute between the parties which required a determination on the merits.

The court a quo did not find that the appellant's defence was spurious or unsustainable. It simply declared that there was no defence whatsoever.

It is relatively clear, therefore, that, the court a quo failed to take into account the appellant's averments, and, consequently, made findings that were entirely inconsistent with the affidavits filed by the parties.

In this regard, it obviously erred and misdirected itself in the exercise of its discretion on the facts that were placed before it, by not dealing properly with the appellant's defence and his prospects of success.

An interesting point of law that arose in the course of submissions by counsel relates to the following question: which prospects of success must a court assess in considering an application for condonation of the failure to apply timeously for the rescission of a default judgment?

Is it the prospects of success in the application for rescission or the prospects of success in the main matter in which the default judgment was granted?

Counsel for the respondents insists, that, it is the former only, while counsel for the appellant contends that it is either the latter or both, the former and the latter.

In this context, the cases relied upon by both counsel do not afford any definitive answer to the question raised.

In Maheya v Independent African Church SC58-07, the Court was seized with an application for the reinstatement of an appeal. MALABA JA…, held…, that, the appellant could not escape the consequences of the lack of diligence on the part of her legal practitioners and that this, coupled with the absence of prospects of success on appeal, justified the dismissal of the application for reinstatement of the appeal.

In Chomurema & Anor v Telone SC86-14, the applicants sought leave to file a belated appeal against their dismissal from employment.

GWAUNZA JA…, noted…, that, there was nothing to prevent the Labour Court, in the interests of finality to litigation, from hearing a composite application for condonation of the late filing of an application for leave to appeal together with an application for leave to appeal to the Supreme Court.

Finally, the case of Hove v Zimphos Ltd & Ors SC08-18 concerned an application for condonation of the late noting of an application for the rescission of a default judgment.

ZIYAMBI AJA…, found that the applicant had to establish that the intended application for rescission enjoyed prospects of success. The learned judge then proceeded to find that it had not been shown that there were prospects of success on appeal on the grounds of appeal raised or that there was any impropriety in the manner in which the Labour Court exercised its discretion to dismiss the application for condonation. For these combined reasons, the instant application for condonation was dismissed with costs.

As I have already intimated, these decisions, rendered in chamber applications, do not decisively answer the question posed.

My tentative and obiter view is that it is the merits of the main matter and the prospects of success therein that the court is enjoined to consider in an application for the condonation of the late noting of an application for the rescission of a default judgement.

I take this view on the basis, that, it is necessary for the court seized with either application to grapple with the merits of the main matter in order to properly address the gravamen of the real dispute between the parties involved. Any other approach would tend to militate against the need for finality in litigation as well as the interests of justice.

In any event, my view on this question is rendered somewhat superfluous by the fact that the court a quo did not address any prospects of success whatsoever in disposing of the application before it.

The appellant does not dispute that his erstwhile legal practitioners displayed a flagrant disregard for the Rules in the manner in which they conducted themselves in the main matter. Nevertheless, he avers that he has a viable and bona fide defence to the respondents claim in that matter.

In this respect, counsel for the respondents submits, that, condonation for non-compliance may be refused even if the applicant concerned has demonstrated good prospects of success.

This submission is clearly correct as is illustrated by the case of Kodzwa v Secretary for Health and Child Welfare & Anor SC50-99…, where SANDURA JA remarked:

“Thus, in the case of a flagrant breach of the Rules, particularly where there is no acceptable explanation for it, the indulgence of condonation may be refused, whatever the merits of the appeal may be.”

While this approach is unassailable, it does not, whether expressly or impliedly, discount the need to consider, cumulatively, all of the factors to be taken into account, and to weigh them in a measured balancing exercise, before deciding whether or not condonation should be granted in any given case: see Maheya v Independent African Church SC58-07 …,.

This position is also aptly captured in Chiweza & Anor v Mangwana & Ors HH186-17 per DUBE J…, as follows:

“The court is required to consider the requirements for an application for condonation cumulatively and weigh them against each other.

The application for condonation is not decided on one exclusive factor.

The existence of strong prospects of success may compensate for any inadequate explanation given for the delay. Where the applicant proffers a good explanation for the delay this may serve to compensate for weak prospects of success in the main matter.

Good prospects of success and a short delay, albeit with an unsatisfactory explanation, may lead to granting of the application.

The court dealing with the application has a wide discretion which it must exercise judicially after considering all the circumstances of the case. The factors are not to be individually considered, but cumulatively considered with the strong making up for the weak. The court should endeavor [sic] to be fair to all the parties involved.”

In the instant case, it is evident that the court a quo focused solely on the reasons for non-compliance, i.e. the gross lack of diligence on the part of the appellant's erstwhile legal practitioners and the vicarious attribution of their incompetence to the appellant himself.

The court failed to assess all the other relevant aspects of the test for condonation.

In particular, it totally failed to evaluate the appellant's prospects of success, whether in respect of the intended application for rescission or in respect of the main matter. The court only considered the reasonableness of the explanation proffered by the appellant for the delay in applying for rescission of the default judgment.

Having found that the appellant's explanation was not reasonable, the court proceeded, without further ado, to dismiss his application for condonation.

However, it was imperative for the court to have assessed all the other salient factors to be considered, in a cumulative fashion, and then to have weighed them against each other, before declining to grant the application before it.

In failing to do so, it proceeded upon the wrong principle and consequently gravely misdirected itself.

Given my findings in respect of the first and second grounds of appeal in favour of the appellant, I do not deem it necessary to consider the merits of the third and fourth grounds which are essentially tangential to and dependent upon the first two grounds.

A determination of those grounds is also rendered otiose in light of the amended relief sought by the appellant at the hearing of this appeal, viz. that the matter be remitted to the High Court, before a different judge, to deal with the matter de novo.

The decision of the court a quo was based on the exercise of its discretion on whether or not to grant the application for condonation.

It is trite that an Appellate Court will not readily interfere with the exercise of discretion by a subordinate court. It should only do so, having regard to the oft-quoted test enunciated in Barros & Anor v Chimponda 1999 (1) ZLR 58 (S)…, per GUBBAY CJ:

“If the primary court acts upon a wrong principle; if it allows extraneous or irrelevant matters to guide or affect it; if it mistakes the facts; if it does not take into account some relevant consideration.”

In casu, I have earlier adverted to the errors made by the learned judge a quo in the exercise of his discretion:

(i) Firstly, he mistakenly found that the appellant had not articulated his defence to the main claim and thereby failed to take into account the relevant considerations underlying the appellant's prospects of success.

(ii) Secondly, he confined his attention to the reasonableness or otherwise of the explanation advanced by the appellant for the delay in applying for rescission of the default judgment.

By not having regard to all the salient factors to be considered in an application for condonation, in particular, the appellant's prospects of success in either the intended application for rescission or in the main matter, and by not balancing those factors against each other, the learned judge proceeded on the wrong principle and thereby incurably misdirected himself.

Consequently, the foregoing errors and misdirections, in the injudicious exercise of his discretion, operated to vitiate his decision to dismiss the application for condonation before him. It follows that the decision cannot be allowed to stand and must be set aside.

As regards the relief to be granted in casu, the most appropriate remedy would be to remit the matter to the High Court to enable a different judge to address and determine the application for condonation on a proper basis.

Furthermore, it also seems expedient, in order to expedite the finalisation of the matter, that the application for rescission be adjudicated at the same time as the application for condonation.

In my view, there is nothing, in principle, to preclude the composite adjudication of the two applications together, especially as the considerations to be applied in the determination of both applications are virtually identical.

As regards the costs of this appeal, there is no compelling reason why they should not follow the cause.

It is accordingly ordered that:

1. The appeal be and is hereby allowed with costs.

2. The judgment of the court a quo be and is hereby set aside.

3. The matter is remitted to the High Court, before a different judge:

(a) To determine the application in Case No. HC1067/18 for condonation of the late filing of the application for rescission of the default judgment granted in Case No. HC2424/17 on 26 October 2017; and

(b) Thereafter, in the event that the aforesaid application for condonation is granted, to determine the aforesaid application for rescission of the default judgment.

This is an appeal against the judgment of the High Court handed down on 4 May 2018.

The appellant had, before that court, sought a declarator that the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations 2016 published as Statutory Instrument 117/2017 were null and void and of no force or effect.

The appellant had also sought an order declaring the enabling Act, the Presidential Powers (Temporary Measures) Act [Chapter 10:20] to be inconsistent with the Constitution of Zimbabwe, and, as a consequence, the striking down of that Act.

In the alternative, the appellant sought a declaratur that section 2(2) of the Presidential Powers (Temporary Measures) Act [Chapter 10:20] is inconsistent with the Constitution and that the same be struck down.

After hearing argument from both parties, the High Court dismissed the application with costs. It is against that order that the appellant has now appealed to this Court.

The Presidential Powers (Temporary Measures) Act [Chapter 10:20] (“the Act”) provides as follows in section 2 thereof:

“2. Making of Urgent Regulations

(1) When it appears to the President that:

(a) A situation has arisen, or is likely to arise, which needs to be dealt with urgently in the interest of defence, public safety, public order, public morality, public health, the economic interests of Zimbabwe or the general public interest; and

(b) The situation cannot adequately be dealt with in terms of any other law; and

(c) Because of the urgency, it is inexpedient to await the passage through Parliament of an Act dealing with the situation; then, subject to the Constitution and this Act, the President may make such regulations as he considers will deal with the situation.

(2) Regulations made in terms of subsection (1) may provide for any matter or thing for which Parliament can make provision in an Act:

Provided that…,. (not relevant).”…,.

Section 5 of the Presidential Powers (Temporary Measures) Act provides:

“Regulations made in terms of section two shall, to the extent of any inconsistency, prevail over any other law to the contrary, apart from regulations that have been made and are in force in terms of the Emergency Powers Act [Chapter 11:04].”

Acting in accordance with the above provisions of the Presidential Powers (Temporary Measures) Act, the President of the Republic of Zimbabwe, who is the respondent in this matter, published, on 15 September 2017, in the Government Gazette Extraordinary, the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, SI117 of 2017 (“the Regulations”). The Regulations sought to amend certain sections of, and the Schedule to, the Electoral Act [Chapter 2:13].

On 20 October 2017, the applicant filed a court application seeking the declarators referred to and an order setting aside both the Presidential Powers (Temporary Measures) Act [Chapter 10:20] and the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, S.I.117 of 2017.

In his founding affidavit in the court a quo, the appellant, as applicant, stated as follows:

The Presidential Powers (Temporary Measures) Act is unconstitutional because it gives the President of the Republic of Zimbabwe the power to enact Regulations which override existing Acts of Parliament. Nowhere in the Constitution is the President given the power to make law as provided for in the Presidential Powers (Temporary Measures) Act.

Although section 116 of the Constitution states that the Legislature of Zimbabwe consists of Parliament and the President, it is clear that the President is involved only to the extent stipulated in Chapter 6 as read with the Fifth Schedule to the Constitution.

Section 134 of the Constitution makes it clear that Parliament may, in an Act of Parliament, delegate the power to make statutory instruments within the scope of and for purposes laid out in the Presidential Powers (Temporary Measures) Act but in no uncertain terms prohibits the delegation of Parliament's primary law making function.

It was never the intention that delegated legislation could have the effect of altering an existing Act of Parliament.

In terms of section 5 of the Presidential Powers (Temporary Measures) Act, the President has sweeping powers to make laws that transcend existing Acts of Parliament.

For that reason, the applicant sought an order striking down both the Presidential Powers (Temporary Measures) Act [Chapter 10:20] and the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, SI117/2017.

In his opposing affidavit, the respondent stated as follows:

The provisions of the Electoral Act amended by the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, S.I.117/2017 had not envisaged the use of the biometric voter registration system which requires voters to have fingerprints and photographs taken in addition to filling in forms.

The President accepted, that, in terms of section 2 of the Presidential Powers (Temporary Measures) Act, he can enact laws, but, submitted that any Regulations he makes are subject to scrutiny by Parliament which can resolve either to have them amended or repealed.

Further, and in any event, section 110 of the Constitution gives him the power conferred by the Constitution, an Act of Parliament, or other law, to enable him to exercise his functions as Head of State.

The reference to “other law” includes provisions of the common law, customary law, and international law in force in Zimbabwe.

Under the common law, the President has always enjoyed prerogative powers which entitle him to promulgate temporary legislation in urgent situations. Those prerogative powers have not been abolished under the Constitution and consequently remain at his disposal.

In its determination, the court a quo found, that, in invoking his powers under the Presidential Powers (Temporary Measures) Act, the respondent was not abusing the law-making function conferred upon him by the Act.

The new voters roll could not properly be covered by a law which Parliament would have introduced, debated, and passed into law without interfering with the requisite time lines of the 2018 harmonised elections.

The court a quo accepted, that, the question whether or not the Presidential Powers (Temporary Measures) Act is legal depends on the interpretation of the Constitution.

It found, that, the President's “necessary and unavoidable intrusion into the function of Parliament” is evident from a reading of section 86 of the Constitution.

It further found that “it is only the President who has the power to limit, through the Act, the people of Zimbabwe's fundamental rights and freedoms which are contained in the Constitution”.

The court also found that “because the President's law making power exists in the Act, the drafters of the Constitution did not include it in section 134 of the Constitution” and that “because his powers, as stated in section 86(2)(b) of the Constitution, relate to the limitation of the people of Zimbabwe's fundamental rights and freedoms in certain unforeseen circumstances, he could not effectively exercise the same under section 134 of the Constitution.”

The court consequently dismissed the application with costs.

Unhappy with the dismissal of his application by the court a quo, the appellant noted an appeal to this Court. His grounds of appeal are that:

“1.1 The court a quo erred as a question of law, in upholding the validity of the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations 2016 published in Statutory Instrument 117/2017.

1.2 A fortiori, the court a quo erred in holding that the President could make law.

1.3 In addition, the court a quo erred in failing to hold that the Presidential Powers (Temporary Measures) Act [Chapter 10:20] was an unlawful delegation of legislative power and was therefore ultra vires the Constitution of Zimbabwe.

1.4 In the alternative, the court a quo failed to uphold that section 2(2) of the Presidential Powers (Temporary Measures) Act [Chapter 10:20] was null and void and of no force and effect to the fact that it permitted the making of laws overlooking Parliament.”…,.

In his prayer, he seeks an order setting aside the order of the court a quo, and, in its place, an order granting the relief he had sought before the court a quo.

In his submissions, the appellant states as follows:

Section 86 of the Constitution is just a limitation clause and does not allow the President to limit rights or to be the person who curtails the rights of persons. Section 86 of the Constitution only relates to a law of general application made and passed by Parliament and not by an individual.

The Presidential Powers (Temporary Measures) Act [Chapter 10:20], that is the subject of this appeal, amounts to Parliament outsourcing its original law-making powers.

The function of the President, under section 110 of the Constitution, is not to make law, but, merely to assent to a Bill, and, if he does not agree, to refer the Bill to the Constitutional Court for an opinion on its constitutionality.

He further argues, that, there is a difference between delegating authority to make subordinate legislation within the framework of a statute under which the delegation is made, and assigning primary law making power to another body.

In this case “the President is even higher than Parliament because he can amend what Parliament has done.”

On the remedy, the appellant submits, that, an order should be issued nullifying the Presidential Powers (Temporary Measures) Act [Chapter 10:20].

However, since the retrospective declaration of invalidity might produce significant disruption in the voter registration exercise, the court should make an order that limits the retrospective effect of any such declaration.

He makes it clear, that, he has no difficulty with the substance of the amendments and that the gravamen of his displeasure is the manner in which they were effected.

In his heads of argument, the President states, that, whilst he does not entirely agree with the reasoning of the court a quo, he agrees with the order made.

He submits, as he did before the court a quo, that, the Presidential prerogative is a power that attaches to the President by virtue of his office, and that, under the common law, he has always enjoyed prerogative powers which entitle him to promulgate temporary legislation in urgent situations. Those prerogative powers were never abolished but are now codified under the Presidential Powers (Temporary Measures) Act.

The reference to “other law” in section 110(1) of the Constitution includes, by necessity, the provisions of the common law in force in this country.

Lastly, he maintains, that, as the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, S.I.117/2017 have to be laid before Parliament for approval, this shows that Parliament, essentially, still retains its primary lawmaking power.

In the course of considering the possible disposition of this matter, a question of law arose, namely, whether the appellant could properly appeal to this Court against a determination of constitutional validity by the court a quo.

Being an important issue that could be dispositive of this matter, and in light of the fact that neither party had hitherto addressed the court on it, this Court asked both parties to file supplementary submissions within a given time frame.

This the parties proceeded to do.

In his supplementary heads of argument, the appellant has submitted, that, where the High Court, as in this case, issues an order of constitutional validity, that determination is subject to an ordinary appeal to this Court. Where, however, the same court issues an order of constitutional invalidity, then, that order must be referred to the Constitutional Court in terms of section 175 of the Constitution.

In other words, in the former case, there is no obligation that the order of constitutional validity be referred to the Constitutional Court for confirmation.

The appellant further submitted, that, in terms of section 43 of the High Court Act [Chapter 7:06], the Supreme Court has an obligation to hear and determine all appeals from the High Court of Zimbabwe, whether in the exercise of its original or appellate jurisdiction.

Further, in terms of section 21 of the Supreme Court Act, the Supreme Court has jurisdiction to hear and determine an appeal in any civil case from the judgment of any court or tribunal from which, in terms of any other enactment, an appeal lies to the Supreme Court.

In terms of section 22 of the Supreme Court Act, the Supreme Court shall have the power to confirm, vary, amend or set aside the judgment appealed against or give such judgment as the case may require.

There is, therefore, nothing in the High Court Act or Supreme Court Act, so the appellant argues, that takes away the power of the Supreme Court to entertain an appeal from the High Court. The only limitation is in respect of an order of Constitutional invalidity which must be confirmed by the Constitutional Court before it has any effect.

The appellant has further submitted, that, in light of the wording of section 175(3) of the Constitution, any interested person has a right to appeal or apply directly to the Constitutional Court to confirm or vary the order of constitutional validity.

Subsection (3) of section 175 of the Constitution refers to a court order made in terms of subsection (1) of that section, which subsection provides for an order of constitutional invalidity. The reference, in subsection (3), to an order concerning constitutional validity in terms of subsection (1) restricts the meaning of subsection (3) to orders of constitutional invalidity only.

In other words, the right to appeal to the Constitutional Court is restricted by the fact that such a right only applies to an order of constitutional invalidity provided for in subsection (1).

Further, Rule 31 of the Constitutional Court Rules refers to an order of constitutional invalidity and not an order of constitutional validity. The express mention of orders of constitutional invalidity excludes orders of constitutional validity.

In the event that the Supreme Court declares a law to be invalid, then, that order has to be confirmed by the Constitutional Court.

The respondent does not accept the appellant's submissions in this regard and submits that the Supreme Court has no jurisdiction to hear and determine such an appeal, because, in terms of section 175(1) of the Constitution only the Constitutional Court is empowered to confirm or vary an order concerning constitutional validity by any court.

Subsection (3) of section 175 of the Constitution refers to an order concerning constitutional validity by a court in terms of subsection (1). If subsection (1) and (3) of section 175 are read together, it becomes apparent that section 175 of the Constitution refers not only to orders of constitutional invalidity but also orders of constitutional validity.

Only the Constitutional Court is empowered to confirm or vary an order of Constitutional invalidity.

The Supreme Court would be unable to sufficiently deal with the issue of constitutional validity or invalidity of any law and is not in a position to vary or confirm any order concerning constitutional validity of any law. Although the Supreme Court is the final court in non-constitutional matters, it cannot usurp the powers of the Constitutional Court in this regard.

From the foregoing, it seems to me that two broad issues arise for determination before this Court:

(i) The first is whether an order of constitutional validity by the High Court can be appealed against to the Supreme Court rather than directly to the Constitutional Court.

(ii) The second is whether the Presidential Powers (Temporary Measures) Act is consistent with the Constitution of Zimbabwe.

I proceed to deal with these two issues in turn.

The question whether an order of constitutional validity is appealable to the Supreme Court is one of interpretation. To determine the question there is need to look at the provisions of the Constitution that have a bearing on this issue.

One must, I think, start with section 167(3) of the Constitution which states as follows:

“(3) The Constitutional Court makes the final decision whether an Act of Parliament or conduct of the President or Parliament is constitutional and must confirm any order of constitutional invalidity made by another court before that order has any force.”

Section 169(1) of the Constitution, in turn, provides:

“169 JURISDICTION OF SUPREME COURT

(1) The Supreme Court is the final court of appeal for Zimbabwe, except in matters over which the Constitutional Court has jurisdiction.”

This is then followed by section 175 of the Constitution which provides, in relevant part, as follows:

“175 POWERS OF COURTS IN CONSTITUTIONAL MATTERS

(1) Where a court makes an order concerning the constitutional invalidity of any law or any conduct of the President or Parliament, the order has no force unless it is confirmed by the Constitutional Court.

(2)…,. (Not relevant)

(3) Any person with a sufficient interest may appeal or apply, directly to the Constitutional Court to confirm or vary an order concerning constitutional validity by a court in terms of subsection (1).

(4)…,. (Not relevant)

(5) An Act of Parliament or rules of court must provide for the reference to the Constitutional Court of an order concerning constitutional invalidity made in terms of subsection (1) by a court other than the Constitutional Court.”

In Mawarire v Mugabe & Ors 2013 (1) ZLR 469, the Constitutional Court of Zimbabwe remarked as follows…,:

“In general, the principles governing the interpretation of a Constitution are basically the same as those governing the interpretation of statutes.

One must look to the words actually used and deduce what they mean within the context in which they appear: see Hewlett v Minister of Finance 1981 ZLR 571 (S) at 580.

If the words used are precise and unambiguous, then, no more is necessary than to expound them in their natural and ordinary sense: see The Sussex Peerage (1843-1845) 65 RR 11 at 55.

In essence, it is necessary to have regard to the words used and not to depart from their literal and grammatical meaning unless this leads to such an absurdity that the Legislature could not have contemplated it.”

Constitutional interpretation, however, often requires more than simply according words their literal or ordinary grammatical meaning. Various decided cases have also stressed the need for a generous and purposive interpretation to give expression to the underlying values of the Constitution.

In S v Makwanyane 1995 6 BCLR 665 (CC) the Constitutional Court of South Africa also stated, that, the provisions of the Constitution should not be construed in isolation but in their context.

It is permissible to have regard to the purpose and background of the legislation.

The court cited with approval remarks in Jaga v Donges N.O. and Another 1950 (4) SA 653 A…, that:

“Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context.

But, it may be useful to stress two points in relation to the application of this principle.

The first is that 'the context' as here used is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted. Often of more importance is the matter of the statute, its apparent scope and purpose, and, within limits, its background.”

A further consideration in the interpretation of a statute is that the legislature is presumed not to intend an absurdity, ambiguity, or repugnancy to arise out of the grammatical and ordinary meaning of the words it uses in an enactment.

Therefore, in order to ascertain the true purpose and intent of the legislature, regard is to be had, not only to the literal meaning of the words, but, also to their practical effect.

In this respect, the words in question must be capable of an interpretation that is consistent with the rest of the instrument in which the words appear.

In interpreting the provisions of the Constitution, it is, as stated, necessary to adopt a broad and generous approach and also to ensure that all the relevant provisions on the subject are considered.

As stated in Attorney-General v Dow (1992) BLR 119 (CA)…,:

“…, the very nature of a Constitution requires that a broad and generous approach be adopted in the interpretation of its provisions; that all the relevant provisions bearing on the subject for interpretation be considered together as a whole in order to effect the objective of the Constitution.”

Indeed, section 46 of our Constitution, which deals with the interpretation of Chapter 4, makes it clear, that, such interpretation must pay due regard to all the provisions of the Constitution, and, in particular, the principles and objectives set out in Chapter 2.

Section 331 of the Constitution, in turn, provides that section 46 of the Constitution applies, with any necessary changes, to the interpretation of the rest of the Constitution.

The Constitutional Court Rules 2016, in Rule 21, make provision for the matters that do not require the leave of the court. These include “appeals in terms of section 175(3) of the Constitution, against an order concerning the constitutional validity or invalidity of any law.”

It is apparent that the framers of the Rules considered that even an order of constitutional validity could be the subject of an appeal directly to the Constitutional Court and that leave to appeal was not necessary in such a case.

One must, I think, accept that the ordinary literal and grammatical interpretation of section 175(1) of the Constitution is that an order concerning the Constitutional invalidity of any law has no force or effect unless confirmed by the Constitutional Court. In my view, such an interpretation is in accord with section 169(3) of the Constitution which makes it clear that the Constitutional Court must confirm any order of constitutional invalidity made by another court before that order has any force.

The real question, as already noted, is: which court should hear and determine an appeal against an order of constitutional validity?

The Constitution has not, itself, stated to which court such an appeal shall lie.

It should also be accepted, that, in general, appeals from the High Court lie with the Supreme Court.

Section 169(3) of the Constitution, however, makes it abundantly clear, that, the Constitutional Court makes the final decision whether an Act of Parliament is constitutional.

It does not state that the Constitutional Court only makes the final decision on whether an Act of Parliament is invalid.

The clear intention that comes out from a careful reading of that section is that it is the Constitutional Court that makes the final decision on whether an Act of Parliament is constitutional or not. That means the Constitutional Court makes the final decision whether an Act of Parliament is valid or not.

In the event that an order of constitutional invalidity is made by a lower court, such an order has no effect until the Constitutional Court has confirmed such invalidity.

Section 175(3) of the Constitution provides, that, an interested person may appeal or apply directly to the Constitutional Court to confirm or vary an order concerning constitutional validity by a court in terms of subsection (1).

Whilst the subsection refers to subsection (1), it also refers to “an order concerning constitutional validity” – and not only constitutional invalidity.

An order concerning constitutional validity is exactly that. It is not limited to orders concerning constitutional invalidity only.

Taken together, therefore, sections 169(3) and 175(3) of the Constitution simply mean that an order of constitutional validity or invalidity may be appealed against directly to the Constitutional Court.

Bearing in mind that only the Constitutional Court makes the final decision on the validity of an Act of Parliament, it could not have been the intention of the legislature that an order concerning constitutional validity be the subject of an appeal to the Supreme Court in the normal way for the reason that the Supreme Court does not make the final decision on whether or not an Act of Parliament is valid.

Only the Constitutional Court has that jurisdiction.

In any event, the submission that an appeal against an order of constitutional validity should lie to the Supreme Court and not the Constitutional Court would result in a patent absurdity.

The Supreme Court is an Appellate Court and does not, itself, deal with matters at first instance. It does not itself declare, at first instance, an Act of Parliament to be valid or invalid.

Its powers, in terms of section 22 of the Supreme Court Act, are to confirm, vary, amend, or substitute the order appealed against. If it amends the order of the lower court, that amended order becomes the order of the lower court. Similarly, where it substitutes an order, that order becomes the order of the lower court.

In this case, the High court made an order that the impugned Act, the Presidential Powers (Temporary Measures) Act, was valid and constitutional.

The appellant wants this order set aside and replaced with an order declaring the Presidential Powers (Temporary Measures) Act unconstitutional.

Assuming, arguendo, that the Supreme Court were to agree with the appellant and grant the order substituting the order of the court a quo with one of constitutional invalidity, the Supreme Court would not itself have the power to refer the order to the Constitutional Court for confirmation. The order substituting the judgment of the High Court with one of invalidity would become a judgment of the High Court itself, to be actioned by that court.

The record would have to be returned to the High Court.

The High Court would, thereafter, refer the order of constitutional invalidity to the Constitutional Court for confirmation.

Such a process would be convoluted and unnecessary. An appeal from an order of constitutional validity directly to the Constitutional Court would resolve the issue of validity or invalidity once and for all.

Subsection (3) of section 175 of the Constitution could have been more elegantly worded to obviate possible confusion as to its interpretation.

It is garbled. Its gibberish.

Taking into account their ordinary signification, the words used in the subsection create uncertainty as to the real intention of the Legislature as regards appeals against orders concerning constitutional validity, which, no doubt, would include both orders of constitutional validity and invalidity.

One can understand a situation where a person with sufficient interest applies directly to the Constitutional Court to confirm an order of constitutional invalidity so that the order has force. It is, however, difficult to imagine an interested person appealing directly to the Constitutional Court to confirm an order, presumably made in its favour.

An interested person would, surely, appeal directly to the Constitutional Court to have an order either of constitutional validity or invalidity set aside and substituted with one to the contrary.

In the final analysis, however, it seems to me that the intention of the legislature was that appeals against both constitutional validity and invalidity be determined by the Constitutional Court, which has the jurisdiction to make the final decision in this regard.

Consequently, the appeal noted to this Court is invalid, and, for that reason, the matter ought to be struck off the roll.

For the sake of clarity, it must be stressed, that, it is the order of constitutional validity or invalidity which may be appealed directly to the Constitutional Court for that court “to confirm or vary” the order.

The right to appeal directly to the Constitutional Court does not apply to orders made in respect of other constitutional matters in which the Constitutional Court exercises concurrent jurisdiction with the other courts established under the Constitution.

In view of the above conclusion, it becomes unnecessary to consider the issue whether or not the Presidential Powers (Temporary Measures) Act is constitutional or not.

The question whether an appeal lies to the Supreme Court from an order of constitutional validity is one that has hitherto not come before this Court. It is a question that was, at worst, moot.

In the circumstances, an order that each party bears its own costs would appear to me to be the most appropriate.

The order of constitutional validity should have been the subject of an appeal directly to the Constitutional Court and not to this Court. The appeal filed with this Court is, therefore, irregular and a nullity. The matter ought therefore to be struck off the roll.

In the result, the following order is made:

The matter is struck off the roll with each party paying its own costs.

With this in mind, I nevertheless hazard to express the view, that, contrary to its finding, the Labour Court was, in effect, not functus officio and should properly have entertained the application filed by the applicants on 21 December 2010.

It seems to me, that, the Labour Court judge failed to appreciate the fact, that, the applicant's seemingly repeated filing of the same application was traceable, in part, to the court's failure from the onset (i.e. 16 March, 2010) to indicate to the applicants (by striking the matter off the roll) that they could not apply to it for leave to appeal to the Supreme Court without first seeking its condonation of the late filing of such application.

That the court fully appreciated that this was the correct sequence of events to be followed, is evident from the following observations contained in the judge's reasons for the decision in the question;

“The reason (for dismissing the application of 21 December 2010, for condonation and for leave to appeal) are that on 23 June 2010 an application for leave to appeal was dismissed because it was filed out of time. At that time, no application for condonation was made….,.

The two applications that were filed sought to resuscitate a matter that had been dealt with to finality - at least before this Court. Should I condone the application for leave that has already been denied? I could not consider the second application for leave to appeal because I had already denied it. It was water under the bridge. I could not deal with the application because it was ill timed. It ought to have preceded the first application for leave which I had already dismissed.”

15. A couple of pertinent observations can be made from this rather unclear reasoning.

(i) Firstly, the judge a quo properly realised that the first application by the appellants needed to be preceded by an application for condonation of its late filing. The learned judge, however, then fell into the error of not fully appreciating the implication of this default vis a vis the application for leave to appeal to the Supreme Court.

This was that, absent an application for condonation of late filing of the application for leave to appeal, there was nothing before the court to dismiss.

The later application could not stand on its own, being premised on nothing.

(ii) Secondly, since the dismissal in question was, in my view, incompetent, there would have been nothing to prevent the court from hearing the two applications.

Thus, nothing was dealt with 'to finality'.

16. Be that as it may, the applicants did not, as they may have done, take the requisite steps to appeal to this Court against the Labour Court's finding that;

(i) It was functus officio; and

(ii) That, it had already dealt with the application for leave to appeal to the Supreme Court.

17. The applicants, instead, came back to this court seeking an order for leave to appeal against the court a quo's decision on the main dispute.

18. Needless to say, this application was repetitive and therefore improper.

The ground upon which the first application had been dismissed, that is, absence of condonation by the Labour Court, was still in point.

19. The application was heard and dismissed by GARWE JA on 17 November 2011. As a mark of its displeasure, this Court ordered that the applicants pay costs on the higher scale.

20. To the extent that this court had earlier dismissed the same application, albeit, and also without considering the merits, it could have been argued that the matter was res judicata and that this court was functus officio.

The judge, however, did not make a pronouncement nor issue an order to this effect.

21. The appellants apparently felt they could still pursue the dispute, and, in a manner suggestive of their now being totally confused and entangled in a true web of procedural technicalities, the relentless applicants went back to the Labour Court on 7 December 2011 and filed an application with this somewhat confusing title;

“CHAMBER APPLICATION FOR CONDONATION FOR LATE FILING OF AN APPLICATION FOR LEAVE TO APPEAL AGAINST THE DENIAL OF CONDONATION AND APPLICATION FOR LEAVE TO APPEAL AGAINST THE DENIAL OF CONDONATION FOR LEAVE TO APPEAL TO THE SUPREME COURT”

What immediately becomes evident from this title is the fact, that, the application in question was premised on the view, that, an application for condonation of the late filing of an application for leave to appeal to the Supreme Court had been heard and refused by the Labour Court.

The opposite was in fact the case.

The learned judge, in the excerpt from her judgment that is cited in paragraph 14 above, made it very clear why she was not going to entertain such an application. Nor did she, in the end, do so.

The application was therefore misguided.

22. Having, again, found no satisfaction from the Labour Court, the applicants have now, yet again, approached this Court with this application, which is no less misguided than the last one they made before the Labour Court (see above).

The application brings nothing new to this Court unless it is to demonstrate the applicants sheer determination to pursue the matter to what they perceive to be its logical conclusion - whatever pitfalls may stand in their way.

As this Court has entertained the same matter several times, it is my view, that, the court is now functus officio.

The dispute has gone round in circles for a period of over five years and there must be finality to litigation.

The application now before me is, in any case, not sustainable in its current form.

Accordingly, the application is dismissed with costs.

On the 4th July 2018, the applicant (Ruben Zimondi) filed an application seeking the following relief:

“IT IS ORDERED THAT:

1. It is declared that the discharge of the applicant herein, wherein he held the rank of Superintendent, be and is hereby declared unlawful.

2. The 1st respondent be and is hereby ordered to entertain the applicant's appeal lodged on 12 February 2015 within twenty one (21) days of this order being granted.

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

On or about December 2014, the applicant was charged with contravening section 3(46) of the Prisons (Staff) (Discipline) Regulations 1984. It was alleged, that, at Mutare Farm senior officers Mess, the applicant, being a member of the service, did wrongfully and unlawfully utter despicable words against the first lady, Dr Grace Mugabe, saying “Ma problems ese arikuitika mumusangano anokonzereswa nembwa inonzi Dr Grace Mugabe asi isu musangano tinouda.”

This was against the discipline - especially of a commissioned officer.

The disciplinary hearing was conducted in January 2015 in terms of section 10(1) and (11) of the Prisons (Staff) (Discipline) Regulations 1984.

The applicant was found guilty and discharged from service.

He filed an application for review to the Commissioner in terms of section 22(1) of the Prisons (Staff) (Discipline) Regulations 1984. The Commissioner confirmed the Board's decision and dismissed the application for review.

The applicant did not rest, he appealed to the Public Service Commission in terms of section 22(4) of the Prisons (Staff) (Discipline) Regulations 1984.

The Public Service Commission refused to entertain the appeal citing lack of jurisdiction and the relevant portion of the letter of 17 March 2015, addressed to the applicant's legal practitioners, reads as follows:

“It has been noted that you were engaged as a Commissioned officer at the rank of Superintendent in the Zimbabwe Prisons and Correctional Services. In terms of section 9(1)(e) of the Prisons Act (Chapter 7:11) the President may reprimand, suspend, reduce rank or discharge any Commissioned officer. The Prisons and Correctional Service does not have the jurisdiction to preside over cases involving Commissioned officers.

This rests your case with us. Please be guided accordingly.”

The applicant genuinely believes that the Public Service Commission has the jurisdiction to entertain the appeal made in terms of section 22(4) of the Prisons (Staff) (Discipline) Regulations 1984. However, up to now, the first respondent has failed to hear the appeal hence this application.

The application is opposed.

In the opposing papers, the first respondent raises a preliminary point premised upon the citation of the first respondent.

According to the respondents, the first respondent does not, and has no jurisdiction to determine the applicant's appeal in her capacity as Secretary of the Public Service Commission.

The Public Service Commission, she argues, is a separate legal entity to the Prisons and Correctional Services Commission. The Secretary, Public Service Commission acts as the Secretary to the Prisons and Correctional Services is incorrectly cited as she does not represent the Commission, the applicant ought to have cited the Chairperson to the Prisons and Correctional Services Commission.

Further, the first respondent does not deal with appeals in her official capacity, and, as such, she is incorrectly cited....,.

Counsel for the first respondent submitted, that, the improper citation of a party renders the application void.

Counsel for the first respondent cited the matter of Matida v Chairman, PSC and Anor 1998 (1) ZLR 507 (H): ADAM J…, had this to say relating to the citation:

“Now, that court application, firstly, cites the Chairman of the Public Service Commission as the first respondent. Yet, the annexure to the founding affidavit gives the Public Service Commission as the decision maker. The wrong party has been cited. Rule 256 surely is concerned with the decision or proceedings of the legal persona, be that an inferior court, tribunal, board or officer. This means it is that legal persona whose decision or proceeding has to be reviewed that must be cited and the application must be directed and delivered, in the case of the tribunal or board, to the Chairman of that body: see in this regard Maxwebo v Chairman, Public Service Commission HH125-97 at p6-7 where SMITH J said:

'Before concluding, I wish to make an observation on the party cited as respondent. The Chairman of the Public Service Commission was so cited. Although exception was not taken there, I considered that it was improper to cite him as respondent. Section 74 of the Constitution establishes the Public Service Commission which consists of the Chairman and not less than two and not more than seven other members.

Any findings, rulings or decisions of the Public Service Commission are those of the body and not of the Chairman.

Accordingly, the Chairman of the Public Service Commission cannot do anything in the name of the Commission if the majority of members do not agree with him.

The distinction is illustrated by the order sought by the applicant.

The draft order states that the respondent's decision to find the applicant guilty of misconduct should be set aside. However, the findings of guilty was not a decision of the respondent. It was a decision of the Public Service Commission.

I therefore consider that it was improper to cite the Chairman as respondent. The Public Service Commission should have been cited as the respondent.'”

In the case of City Bolts (Pvt) Ltd v Workers Committee SC16-12, GARWE JA.., ruled as follows:

“At the hearing of this matter, it appeared to this court, that, the respondent, simply cited as 'Workers Committee' was not a legal persona capable of being sued. Accordingly, both counsel were asked to address the court on the matter. Both counsel accepted, that, the respondent, which is a Workers Committee appointed by workers of the appellant company, is not a legal persona and cannot therefore be sued.”

The applicant improperly cited the Secretary as the first respondent instead of citing the Public Service Commission. That was a fundamental error and the preliminary point finds favour with this court, and, accordingly, the point in limine is upheld and the application is dismissed with costs.

It is so ordered.

On 18 September 2018, the applicant filed a court application for review seeking the following relief spelt out in the draft order:

“1. The decision of the first respondent in which she made an order for the rescission of default judgment in court case number 127/18 in favour of second respondent be and is set aside.

2. The application of second respondent for rescission of default judgment be remitted for rehearing before a different magistrate.”

On 28 September 2018, the second respondent filed its opposing papers.

On 5 February, the applicant initiated summons at the Magistrates Court claiming US$651 from the second respondent, the Zimbabwe National Roads Administration.

The applicant, on 21 May 2013, attempted to receive an exemption over a number of his motor vehicles from Zimbabwe National Roads Administration for the period extending 1 June 2013 to 31 May 2014.

The Zimbabwe National Roads Administration officials demanded a letter from a commercial garage certifying such automobiles inoperative for a specified period.

From 2013 to 2018, a number of correspondences took place between the applicant and the second respondent.

In January 2018, the applicant was told, by the Zimbabwe National Roads Administration, to pay a total of $696 licencing penalty and penalty fees up to 30 April 2018.

The applicant admitted to pay $45 but resolved to claim $651, being the difference between $699 and $45, which amount he argued was excessive and unjustified in his view.

On 25 February 2018, a default judgment was granted in favour of the applicant.

On 12 March 2018, the Zimbabwe National Roads Administration filed an application for rescission of judgment.

The second respondent also filed, on the same date, an ex parte application for stay of execution.

On 26 March 2018, the applicant filed his opposing papers for the rescission of judgment as well as stay of execution.

On 13 July 2018, the magistrate, the first respondent in this application, heard the application for rescission and stay and deferred her ruling to 27 July 2018.

It is common cause, that, both applications, for rescission and stay of execution, were granted.

The second respondent was given leave by the magistrate to file a notice of appearance to defend. It filed it, and, then, proceeded to file an exception to the current applicant's summons.

Meanwhile, the applicant embarked on a vitriolic attack of the judicial officer, the magistrate, through writing of letters up to the Chief Justice.

When the second respondent caused the exception to be set down for argument, the trial magistrate, recused herself, patently because of the attack by the applicant.

The exception was set down for 11 September 2018 and postponed to 20 September 2018 so that a different magistrate would deal with the matter.

Before the matter could be heard, as already indicated, the applicant filed a court application for review.

Meanwhile, the hearing of the exception was deferred indefinitely until the finalisation of the review application.

On 24 June 2019, I gave the following order, indicating that I would give reasons for that order:

“IT IS ORDERED THAT:

1. Points in limine raised by the 2nd Respondent is upheld.

2. Application for review is dismissed with costs on attorney client scale.”

On the very date, 24 June 2019, the applicant submitted a letter addressed to the Registrar which he wanted to be placed before me raising my attention “on matters which he might have overlooked in an attempt to deal expeditiously with the proceedings before him” to use the applicant's own words.

As a matter of comment, I read the letter, but, at that stage, the court was functus officio. I could not revisit the proceedings.

I opted not reply the letter, serve to mention, that, the very points raised by the applicant had been extensively covered by the applicant in a document he produced in court.

I had read the document, and, in principle, covered the chronicle of what has built up in the matter before the application.

I wonder why the applicant assumed that I had not appreciated what he had submitted, but, presumably because I had dismissed his application, he thought that I had missed the point.

I had not, and, the following are my reasons for upholding the second respondent's preliminary points.

The second respondent submitted, that, the application for review is fatally defective for want of compliance with Order 33 Rule 257 of the High Court Rules of Zimbabwe.

Rule 257 of the High Court Rules provides:

“The Court application shall state, shortly and clearly, the grounds upon the applicant seeks to have the proceedings set aside or corrected and the exact relief prayed for.”

The applicant did not outline these reasons on the application.

They appear in paragraph 70 of his founding affidavit and stretches from paragraph 71 to paragraph 80.

Even assuming that the grounds were stated by the applicant; they are not short and precise, and, maybe the applicant followed Rule 256.

In addition, the exact relief prayed for by the applicant does not appear on the face of the application.

It is peremptory that the provisions of Rule 257 must be complied with, as well spelt out by MAKONI J…, in the matter of Fabiola N. Gonye v Fadzai Mtombeni N.O. and Others HH356-17.

“The import of the above Rule is that an applicant seeking a review must approach this court by way of court application unless it is a proceeding in terms of any other law other than Rule 256. It is incumbent upon such application to state clearly in terms of which law is proceeding under in filing the application for review right at the outset. Where no such clear statement is made in the court application it will be taken that the applicant is proceeding in terms of Rule 256.”

Hence, failure to comply with this Rule constitutes a fatal flaw.

“As regards the failure on the part of Chataura to comply with Rule 257 of the High Court Rules, it seems to me, that, non-compliance would constitute good grounds for dismissing this application. Rule 257 requires that an application to bring proceedings under review shall state shortly and clearly the grounds upon which the applicant seeks to have the proceedings set aside or corrected and the exact relief prayed for. In the Pen Transport, Mushaishi and Marumahoko cases referred to earlier, the courts clearly stated that failure to comply with Rule 257 constituted a fatal flaw. The time has surely come to say enough is enough and to dismiss the defective applications without considering the merits:” see Chataura v Zimbabwe Electricity Supply Authority 2001 (1) ZLR 30 (H) per SMITH J.

In the matter of Dandazi v Wankie Colliery Co. Ltd 2001 (2) ZLR 298 (H) the rationale of compliance with Rule 257 of the High Court Rules was reiterated and the court held:

“At this stage, I wish to make an observation which is relevant to many review applications that are brought to the High Court. In terms of Order 33 Rule 257, it is a requirement that: the court application shall state, shortly and clearly, the grounds upon which the applicant seeks to have the proceedings set aside or corrected and the exact relief prayed for.

This is not an idle requirement.

It was inserted in the rules of the court so that an applicant for review may apply his mind to the grounds upon which he seeks a review and be able to state them clearly and in brief form.

Often, in review applications, all sorts of grounds are lumped together in the body by the founding affidavit making it very difficult for the presiding judicial officer to determine the grounds upon which the matter is to be reviewed.”…,.

This is exactly what the applicant did in this application.

He vehemently argued, that, the grounds for review or relief sought, are part of the affidavit.

I conclude, that, in the light of the above cases cited, that is a gross irregularity; such non-compliance with Rule 257 of the High Court Rules goes to the root of the application, which only can be addressed by dismissing the application.

The applicant's grounds for review is that of bias and irrationality on the ruling of the Magistrate.

Such a ground must equally be stated in the court application: see Dandazi v Wankie Colliery Co. Ltd 2001 (2) ZLR 298 (H).

A failure to do so is a gross irregularity which renders a matter improperly before the court and that is where the court held that:

“If, as in the present case, the grounds are based on bias and gross irregularity in the proceedings, then, those grounds must be stated in the application. A failure to do so, as was the case in this application, is a failure to comply with Order 33 Rule 257. The consequence of that failure is that the matter is not properly before the court and the applicant must not be heard.”…,: see also the matter of Minister of Labour & Others v Pen Transport (Pvt) Ltd 1989 (1) ZLR 293 (S) per GUBBAY JA…,.

I allowed the applicant to make submissions relating to both the points in limine and the merits.

However, having looked at the preliminary points capably addressed by the second respondent, I am of the view, that, the applicant's papers are not in order and the points in limine were accordingly upheld with an order of costs on a punitive scale.

This is an income tax appeal filed in the High Court in terms of section 65 of the Income Tax Act [Chapter 23:06].

The two questions for determination are:

(i) Whether the appeal is valid; and

(ii) Whether the commission paid to two foreign agents for facilitating the sale of tobacco constituted fees for services of a technical, managerial, administrative or consultative nature as contemplated by section 30 of the of the Income Tax Act and the Seventeenth Schedule to the Income Tax Act.

The appellant, an exporter and seller of processed tobacco from Zimbabwe, is a locally registered company. It entered into two successive sales and marketing agreements with two foreign companies on 1 April 2004 (annexure 1 of respondent's case and p1-2 of appellant's bundle) and 1 April 2011 (annexure 2 of respondent's case and p3-4 of appellant's bundle) respectively, for the sale of export tobacco in foreign markets.

The sales were on commission of 7.5% of the aggregate net export sales and FCA Zimbabwe sales value of each export, respectively.

In 2007, the respondent audited the affairs of the appellant. It decided that the commission paid for the period to 2005 constituted fees for services of a technical and administrative nature performed by the overseas agent on behalf of the appellant for which the appellant was liable for withholding non-resident tax in terms of the Seventeenth Schedule to the Income Tax Act.

On 5 April 2007, the respondent submitted schedules showing the appellant's withholding tax liability on the tobacco sales commissions payable to the overseas agent.

The tax adviser of the appellant objected to the schedules and imposition of withholding tax on the sales commissions.

On 10 August 2007, the respondent disallowed the objection.

A notice of appeal was filed on 24 August 2007.

The appellant's case was not filed within 60 days of the service of the notice of appeal or at all. In accordance with the provisions of section 65(3) of the Income Tax Act, the appeal lapsed.

The appellant continued to remit non-residents withholding tax to the respondent until the advent of the multi-currency era.

On 24 October 2013, officials of the respondent conducted a routine audit visit at the premises of the appellant during which the Finance Director of the appellant indicated that further remittals had stopped in consequence of the unresolved 2007 appeal.

In a further meeting of 5 December 2013, the appellant requested and was provided with a schedule of the non-residents tax on fees payable from January 2009 to October 2013.

The schedules consisted of 11 columns showing the period covered, the amount of commission paid, the withholding tax rate, the witholding tax due, the penalty charged at 100%, the period covered in respect of interest computation, the period of delay in paying, the interest rate, and the amount of tax due.

The principal amount of the non-residents tax on fees due was in the sum of US$4,252,647=57. An equivalent amount was imposed as penalty and a further US$795,988=62 was imposed as interest.

The penalties were later reduced by half leaving the revised total liability of US$5,974,959=97.

The appellant responded to the schedule by way of the objection letter dated 10 December 2013, which was served on the respondent on the same day.

It disputed that the commissions constituted the fees contemplated in section 30 and the Seventeenth Schedule of the Income Tax Act. It undertook to pay the outstanding principal amount in four instalments between 13 December and 20 January 2014. In consequence of the undertaking, the respondent further waived the reduced penalty and interest by e-mail of 19 December 2013.

The appellant, however, paid the principal amount by 20 December 2013.

A meeting was held between the appellant's tax advisers and the respondent on 13 December 2013. The parties appeared to have agreed, in that meeting, that, the objection had been improperly made.

However, the appellant filed a notice of appeal on 25 March 2014 and served it on the respondent on the following day. The appeal was based on the deemed decision arising from the failure to respond to the letter of objection within three months as contemplated by section 62(4) of the Income Tax Act. The parties filed their respective cases on 28 May 2014 and 13 August 2014.

The respondent took the point, that, as it did not issue any assessment on the appellant on 5 December 2013 or any other date, the objection of 10 December 2013, and the subsequent notice of appeal of 25 March 2014, was invalid and of no force or effect.

The appellant contended, inter alia, that the appeal was validated by paragraph (y) of the Eleventh Schedule to the Income Tax Act.

Both counsel correctly submitted, that, the 2007 appeal was abandoned by the appellant.

The effect was that the appellant accepted liability for the non-residents tax on fees, which it failed to withhold and remit to the respondent. In addition, it also accepted that the commissions paid during the period prior to August 2007 constituted fees for services of a technical, administrative, managerial or consultative nature.

It was common cause that the 2007 matter was not pending and could not preclude the appellant from objecting, as it did, to liability for failing to remit non-residents tax on fees for the period from January 2009 to October 2013.

The suggestion, in the respondent's pleadings and minutes of meetings, that the present matter could not be objected to on the basis of the 2007 appeal was clearly devoid of any merit.

The Objection of 10 December 2013 (p12 of Rule 11 documents)

The basis for the objection was set out in paragraph 2 of the letter of 10 December 2013. It reads:

"We wish to object to the imposition of withholding tax on sales commissions. The 17th Schedule of the Income Tax Act defines fees as any amount from a source within Zimbabwe payable in respect of any services of a technical, managerial, administrative or consultative nature. The sales commissions paid to agents were for facilitating the sale of tobacco as a result of the sales and marketing services provided by the agent. It is clear that the commission was based on making a sale. Where there was no resultant sale, no commission was paid to the agent. It is therefore our contention that the sales commissions were not in any way technical, managerial, administrative or consultative in nature."

A reading of the whole letter clearly demonstrates that the appellant did not object to an assessment.

The averments in paragraph 3 and 4 of the appellant's case, to the extent that they declare that the appellant "duly objected to the said assessment" were not based on the letter of objection. In my view, the appellant merely objected to the decision of the Commissioner that the commissions constituted the type of fees contemplated by section 30 and the Seventeenth Schedule of the Income Tax Act.

In terms of section 65(4) of the Income Tax Act, both the High Court and Special Court are obliged to confine their decision to the grounds stated in the notice of objection unless leave, based on good cause shown, or agreement of the parties, has been granted to the appellant to rely on other grounds.

In the present matter, no such leave was sought nor granted.

It is therefore unnecessary for me to decide the issues that were raised and ventilated concerning assessments, notices of assessment, and estoppel.

A taxpayer is entitled to object, inter alia, to any written decision of the Commissioner mentioned in the Eleventh Schedule in terms of section 62(1)(b) of the Income Tax Act, which states:

"(1) Any taxpayer who is aggrieved by -

(b) Any decision of the Commissioner mentioned in the Eleventh Schedule;

"may, unless it is otherwise provided in this Act, object to such…, decision…, within thirty days after the date of the…, written notification of the decision…, in the manner and under the terms prescribed by this Act:"

Paragraph (y) of the Eleventh Schedule prescribes the decisions of the Commissioner that may be subjected to objection and appeal. In relevant, it reads:

"The decisions of the Commissioner to which any person may object under paragraph (b) of subsection (1) of section sixty-two are those made in terms of —

(y) The provisions of the Seventeenth Schedule, where the determination relates to —

(i) Whether or not any amounts are fees for the purposes of that Schedule;"

In the present matter, neither the appellant in its bundle of documents, nor the respondent in the Rule 11 documents, produced the written notification of the decision on which the letter of objection was based. The letter of objection does not indicate when the letter referenced 600/109/108/13 was written and what its contents were. The letter does not indicate whether the decision was verbal or in writing.

I am therefore unable to determine whether the letter of objection complied with the requirements of section 62(1)(b) of the Income Tax Act.

I would be inclined to strike the appeal off the roll for these reasons.

While I acknowledge that the appellant's case was predicated on "an assessment" and not on "any decision" it seems to me that the respondent should have been alerted by the letter of objection that the appellant was appealing against the decision.

I will, for that reason, assume that the requirements of section 62(1)(b) of the Income Tax Act were met.

This is an appeal against the four amended assessments issued by the respondent against the appellant on 23 June 2014 in respect of the four consecutive tax years ended 31 December 2009, 2010, 2011 and 2012.

The real issue for determination posed by these assessments is whether the respondent can tax non-existent income through the deeming provisions of section 98 of the Income Tax Act [Chapter 23:06].

At the commencement of the hearing, counsel for the appellant moved, in accordance with the notice filed of record on 24 August 2015, and served on the respondent on the same date, for the non-suiting of the respondent for failure to file Rule 11 documents.

Counsel for the respondent conceded the failure and sought the Court's indulgence for the respondent to participate in the appeal without the Rule 11 documents. He contended, that, the failure was not prejudicial to the appellant, and, in the alternative, promised to file the documents by the end of business on Friday 18 September 2015 failing which the Court would disregard all the evidence, contentions, and submissions made by the respondent at the appeal hearing.

Rule 11 is found in Part I of the Twelfth Schedule to the Income Tax Act [Chapter 23:06], the rules regulating Income Tax Appeals that are applied in the determination of an appeal under section 65 of the Income Tax Act or any proceedings incidental thereto or connected therewith. It stipulates that:

“The Commissioner shall transmit to the Special Court, together with the agreed case, or with the appellant's case and the Commissioner's case, a certified copy or extract of the assessment in so far as it relates to the assessment made upon the appellant, and also the notice of objection lodged and the notice of appeal, together with any material correspondence related thereto, unless the same have already been included in the statement of facts. A copy of the decision appealed from and of the reasons for the same shall accompany the documents above mentioned.”…,.

In the present case, the parties did not agree on a statement of facts. Rather, each party filed with the Registrar its respective case devoid of any attachments.

In this regard, it was mandatory for the respondent to file a certified copy or extract of each assessment raised against the appellant, the notice of objection, the decision appealed against and the reasons thereof, the notice of appeal, and any material correspondence relating to each assessment together with the Commissioner's case.

There was, and would be no need for the respondent to file the appellant's case with these documents as it was and would always be filed with the Registrar and served on the respondent prior to the filing of the Commissioner's case and its addendums.

In the same vein, it would serve no useful purpose for the respondent to file those Rule 11 documents which would have been attached to either the Appellant's case or the Commissioner's case together with the Commissioner's case.

The Rule 11 documents provide the contextual background to the objection and appeal and represent a “court record of sorts” from which the Appeal Court is able to derive important and material contentions of fact and law.

The failure to file the Rule 11 documents at the required time is not only contemptuous of the Rules of Court but is prejudicial to the appellant in that it deprives the Appeal Court of the material information on which the dispute between the parties is grounded.

In the present appeal, counsel for the appellant acceded to the submission made by counsel for the respondent in the alternative.

The appeal hearing proceeded in the normal way, and, true to his promise, counsel for the respondent filed the Rule 11 documents before the end of business on 18 September 2015.

The respondent is directed to abide by the mandatory requirements of Rule 11 in all future income tax appeals.

The appellant instituted summons at Rusape Magistrate Court claiming $5,000 from the respondent being general damages arising from the alleged unlawful destruction of the appellant's temporary structure constructed at No.7688 without a valid court order as well as for harassing the appellant's wife at the latter's work place without the appellant's consent.

After the issuing out of the summons, the appellant served the respondent with various court processes, and, on 9 April 2019, the appellant filed an application for default judgment.

Unfortunately, on 19 April 2019, the learned magistrate dismissed the application.

Un-amused by the dismissal, the appellant noted an appeal on 16 August 2019 outlining the grounds of appeal as follows:

“1. The respondent failed to plead hence the request for default judgment.

2. The learned magistrate erred to take into cognizance the appellant served the respondent with all the papers including the ones he further requested, but, for the second time, he defaulted to submit his plea.

3. The learned magistrate erred in failing to take cognizance that the appellant had stated, in case No. 2030/17 that the demolition of the temporal structure was illegal and it would attract costs.

4. The learned magistrate erred in failing to take into cognizance, that, the appellant applied for an interdict against the respondent in case 2030/17 and (he), the respondent, went further to demolish the appellant's structure without a court order.

5. The learned magistrate failed to consider, that, the appellant was allowed to erect a temporal structure after he had approached the Housing Director for approval.

6. The learned magistrate erred in failing to take into cognizance that no building plan is required in the Model Building By Laws Part 4 section 39 (1, 2, 3 and 4).

7. The learned magistrate erred in failing to take cognizance that the section she quoted from the respondent's papers does not apply to the contract and structure that the appellant had put up, the section consists of enforcement and prohibition orders.

8. The learned magistrate failed to take into cognizance that the respondent had harassed the appellant's wife without any reason to do so, on the matter she was not aware of.

9. The learned magistrate failed to take into cognizance that it was not the respondent's call to demolish the structure without a court order, thus, no need for the appellant to appeal for case no. 2030/17.”

When the respondent was served with the summons, it entered appearance to defend providing its address of service as 294 Chimurenga Street, Box 414 Rusape - its legal practitioners offices.

The appellant filed a notice to plead, and other subsequent pleadings, not on this given address, but, at 398 Manda Avenue Rusape - the Rusape Town Council's Offices.

The subject notice to plead, dated 28 March 2018, which led to the appellant applying for default judgement, was not served on the respondent's address of service but at the Town Council's physical address.

Order 10(3)(b) of the Magistrates Court (Civil) Rules, 2019 SI11 of 2019 provides as follows:

“(b) Subject to subrule (2), given an address for service within a radius of 15km of the courthouse from which the summons was issued, and;”

The operative clause relating to the issue of address of service is identical to the one which was in SI290 of the Magistrate (Civil) Rules, 1980.

Once a party has notified the Clerk of Court of its address of service, the other party shall serve all proceedings, pleadings, or processes on the chosen address.

Service of process, on any other address, other than the chosen address of service provided by the litigant, in my view, will not be in terms of the Rules and will be a nullity: see Order 7 Rule 5(2)(b) of the Magistrates Court (Civil) Rules, 2019…,.

On 9 April 2018, when the appellant filed a request for default judgment, on the basis that the defendant had been duly served and had not submitted its plea, it was not correct.

The appellant had failed to serve the process on the supplied address of service for the respondent, which was Messrs Chiwanza and Partners Legal practitioners, 294 Chimurenga Street. P.O. Box 414 Rusape.

That was the address of service to be used by the respondent, and that was where the Messenger of Court was to serve the process or pleadings.

The appellant did not follow the procedure in the rules of the court a quo and the application for default was not properly before the court; the appellant's papers were not in order, and the learned magistrate ought to have given directions to the appellant to comply with the rules than to dismiss the application on merits.

In doing so, the learned magistrate misdirected herself.

In an application for default judgement, where the plaintiff is claiming damages, as in casu, the plaintiff has to comply with Order 11(4)(5)(a) of the Magistrates Court (Civil) Rules, 2019 which provides:

“5. The Clerk of Court shall refer to the court any request made for the entry of judgment on a claim for damages; and –

(a) The plaintiff shall furnish to the court evidence, either written or oral, of the nature and extent of the damages suffered by him or her;”

See also matter of Mavheya v Mutangiri and Others 1997 (2) ZLR 462…,.

The order of the court a quo, in dismissing the application, was, in my view, not proper in the sense, that, the appellant's claim was prematurely terminated, and, for certain, the appellant did not know the way forward in the circumstances.

In his mind, he believed that the respondent had failed to file its plea within the time expected of it - albeit the wrong method of service of process.

As already ruled above, the court ought to have given the appellant an opportunity to comply with the Rules and resubmit its application in the event that the respondent continued to be in default of filing its plea or other processes....,.

The appeal succeeds on the reasons outlined herein, and the following order is returned:

1. The appeal is upheld.

2. The matter is remitted to the Magistrate Court for continuation before any magistrate.

3. The plaintiff is granted leave to issue a fresh notice to plead in terms of the Magistrate Court Rules and serve it on the defendant at the registered address of service.

4. Costs to be in the cause.

In March 2016, the applicant, Grandwell Holdings (Grandwell), which owns a 50% shareholding in Mbada Diamonds [Private] Limited (Mbada), a joint venture initiative for diamond mining in Chiadzwa, obtained an interim order under HC1977/16 (HH193-16).

The other 50% shareholding in Mbada is owned by Marange Resources [Private] Limited (Marange), a Government-owned company.

According to the applicant, the elements of the order which was granted entitled its security personnel, and its entire chain, to return to Chiadzwa in order to safeguard its assets. Among these are said to be diamond ore and unprocessed diamonds that are kept in a vault. The diamond ore, which has been crushed, awaits removal of diamonds.

What is not in dispute is that from March last year, the applicant's security personnel went on site as per the order by the court in HC1977/16.

What has brought the applicants back to court, on an urgent basis, is its allegation that their security personnel at the diamond site have now been removed and that massive looting of their diamond ore has taken place at the instance of the first respondent, Zimbabwe Consolidated Diamond Company Limited (ZCDC), and continues to take place - aided and abetted by the Zimbabwe Republic Police (the police), as the second respondent.

The ore is said to being loaded without any recording or chain of command making it impossible to ascertain what is being taken.

With the core mingling of the diamond ore with that being mined by the Zimbabwe Consolidated Diamond Company Limited (ZCDC), the fear is that it would be impossible to tell which diamonds come from which ore and that therein lies the irreparable harm.

Mbada Diamonds [Private] Limited's security personnel have been sterilised by these actions of ZCDC.

To compound the problem, the Zimbabwe Consolidated Diamond Company Limited (ZCDC) is said to have brought onto the mining site security personnel previously hired by Mbada Diamonds [Private] Limited who know how to open the vault locks. As such, a real fear is that of the diamonds being stolen.

Further, if the ore and the diamonds are taken, an equally real fear is that the pending appeal before the Supreme Court would be rendered nugatory.

Having invested US$100m in Mbada Diamonds [Private] Limited, Grandwell Holdings says it has a real and substantial interest in protecting the interests of Mbada Diamonds and its own investment.

An attempt is said to have been made to file the application on behalf of Mbada Diamonds [Private] Limited, but, it had failed to secure the signatures of representatives on the Board of Mbada Diamonds who represent Marange Resources [Private] Limited.

Grandwell Holdings, being a 50% shareholder in Mbada Diamonds [Private] Limited had therefore brought a derivative action to enforce the rights of Mbada Diamonds and to seek a possessory remedy to restore possession.

The basis upon which Grandwell Holdings says that Mbada Diamonds [Private] Limited has been despoilt is paragraph 7 of the Order that was granted in HC1977/16. The paragraph was couched as follows:

“Paragraph 7

For the purposes of safeguarding assets, all of the fifth respondent's security personnel, with all their chain of command, shall be entitled, authorised, and empowered to remain at the fifth respondent's mining site at Chiadzwa Diamond Concession, as directed in paragraph 2 of the order of this court on 29 February 2016, until the resolution of this matter.”

The police, as second respondents, were said not to have appealed against the order, whilst the Zimbabwe Consolidated Diamond Company Limited (ZCDC) which had indeed appealed, had only done so against the finding that it had committed acts of spoliation.

The appeal was therefore said to be in part, leaving paragraph 7, in essence, extant.

In addition, the fact, that, there was no appeal against the presence of security personnel, as per the court order, which is said to be extant, was said to be supported by the fact, that, for almost a year Mbada Diamonds [Private] Limited's security personnel remained firmly on site even as the appeal was pending.

However, the Zimbabwe Consolidated Diamond Company Limited's position is that any removal that has taken place has been as per the court order and arises from the fact, that, the mining grants which were acknowledged to have expired in the said order of the court have not been renewed.

Spoliation per se is denied.

The police say they are there in terms of their constitutional mandate, in section 219 of the Constitution, to maintain peace and order and safeguard property. They have asserted, that, they cannot be interdicted from carrying out a lawful mandate. Furthermore, their standpoint is that no police report was made regarding any theft to diamonds.

They too, essentially, deny despoiling Mbada Diamonds [Private] Limited.

Several technical points in limine were raised on behalf of the Zimbabwe Consolidated Diamond Company Limited (ZCDC) and the Commissioner of Police....,.

Counsel for the second respondent queried the certificate of urgency on account of it being dated 9 February when the actual founding affidavit in the matter was only signed on the 10th. He therefore asserted, that, there was no proper application before me on account of the certificate of urgency predating the founding affidavit.

The case of Condurago Investments (Pvt) Ltd v Mutual Finance (Pvt) Limited HH630-15 was cited.

The explanation given in casu by counsel for the applicant for the eventuality that had occurred was that the legal practitioner in question had read the application and completed the certificate of urgency whilst the application itself had had to be mailed to Cape Town as a matter of urgency as that is where the directors of Grandwell Holdings are based.

Furthermore, a supplementary certificate of urgency was filed at the hearing bearing a date that was post the return of the affidavit. The content of the affidavit, as regards urgency, had not in any way changed.

In my view, the explanation given, that the legal practitioner would have had sight of the affidavit before it was dispatched is plausible and would explain why its content, and that of the affidavit, indeed speak to the same exigencies.

Another objection taken to the application is the non-use of the relevant form in the application as required by Rule 241(1) of the High Court Rules 1971.

As stated in the case of Marick Trading (Pvt) Ltd v Old Mutual Life Assurance Company Zimbabwe Ltd and Anor 2015 (2) ZLR…, whilst it is critical for legal practitioners to follow rules, ultimately, it may be in the interests of justice to use Rule 4C which allows a condonation of departure from the rules where the facts permit.

In casu, where, at the heart of the application is spoliation, involving undisclosed though evidently considerable sums of money since diamonds are involved, it would, in my view, be inane to insist on the technicality of a form when this is clearly an instance that calls for the justified use of Rule 4C.

The issue of the certificate of urgency, and the non-use of the relevant form for urgent applications, as modified, is therefore condoned, in this instance, in terms of Rule 4C(a).

He submitted, that, the application for recusal, in any event, cited the judge as second respondent and yet the judge was supposed to determine it.

To this extent, counsel pointed out, correctly, of course, that, the application was defective to that extent....,.

The applicant approached this court seeking rescission of default judgment entered against him in Case No. HC9544/15 on 8 March 2016.

The background to the matter is that the applicant, as plaintiff, sued the respondent, then the defendant, in the Magistrates Court. The particulars of claim were not clear and concise but they referred to some breach of contract by the respondent; a delictual claim based on the mental suffering that the applicant suffered as a result of the breach of contract.

The magistrate granted absolution from the instance at the close of the applicant, then the plaintiff's case.

The applicant appealed against the decision, in CIV “A” 457/14.

On the day of the hearing, the appeal was dismissed because the applicant defaulted by not appearing.

The applicant, in Case No. HC9542/15, applied for rescission of the default judgment.

Again, at the hearing of Case No. HC9542/15 the applicant was in default and the case was dismissed.

The applicant now seeks rescission of the judgment in terms of Rule 63 of the High Court Rules 1971 (Rules).

In terms of Rule 63, the court may set aside a judgment if there is good and sufficient cause to do so.

Good and sufficient cause has been defined, in a number of jurisdictions, as:

(i) A reasonable explanation for the default;

(ii) Where there is a bona fide defence to the main claim; and

(iii) Where the application for rescission is itself bona fide.

See Chivhayi Enterprises (Pvt) Ltd v Attish Investments (Pvt) Ltd 2007 (2) 89 (S).

The applicant avers, that, the matter was set down in Court “M”. On the day of hearing, the matters were moved to Court “O”. By the time he realized that the matters had been moved, and by the time he managed to get to Court “O” his matter had been dismissed.

The explanation given by the applicant has not been controverted. It sounds probable. I will take that that is what transpired. The detail that he gives regarding the notice that was affixed at the courtroom door has some ring of truth.

The next issue is whether the applicant has a bona fide claim in HC9542/15.

He is seeking rescission of the judgment through which his appeal was dismissed.

The proper procedure would have been for the applicant to apply for reinstatement of the appeal. The applicant has adopted the wrong procedure.

His application, thus, has no prospects of success and it is likely to be dismissed.

In the result, the applicant has not satisfied the requirement that he show good and sufficient cause to have the default judgment rescinded....,.

1. The application is dismissed.

This was an urgent chamber application. At the end of the hearing, I dismissed it with costs on a legal practitioner-and-client scale. I deprecated the conduct of the applicant's legal practitioners.

The purported urgent chamber application was not only bad in many respects, it was incurably bad.

What I was particularly concerned with were the patent falsehoods in the applicant's papers.

Furthermore, there was an apparent disconnection between the order sought, the facts laid out in support thereof, and the allegations in the certificate of urgency.

Here are the details.

In the case of Marick Trading (Private) Limited v Old Mutual Life Assurance Company of Zimbabwe (Private) Limited & Anor HH667-15 I prefaced my judgment with the following remarks:

“Legal practitioners should keep abreast with, and heed pronouncements from the courts. It is a duty. The determination of cases, on the merits, should not be impeded or stalled unnecessarily for failure to follow the rules. This was the case in this matter.”

It was also the case in the instant matter.

In Marick Trading (Private) Limited v Old Mutual Life Assurance Company of Zimbabwe (Private) Limited & Anor HH667-15 I went on to say…,.:

“The point in limine by the respondent was that there was nothing before me to determine because the applicant's application was neither in Form No.29 nor Form 29B as required by Rule 241(1) of the Rules of this Court.

Rule 241 reads:

'(1) A chamber application shall be made by means of an entry in the chamber book and shall be accompanied by Form 29B duly completed, and, except as is provided in subrule (2), shall be supported by one or more affidavits setting out the facts upon which the applicant relies: Provided that, where a chamber application is to be served on an interested party, it shall be in Form No.29 with appropriate modifications.'…,.

In casu, the applicant's urgent chamber application was one to be served. Indeed, it was served.

So it had to be in Form No.29. But it was not. It was also not in Form No. 29(B) either. It read like this:

'TAKE NOTICE that the Applicant hereby makes an Urgent Chamber Application for an order in terms of the draft order annexed to this application and the accompanying affidavits and documents will be used in support of the application.'

I observe, in passing, that, the format of the application used by the applicant seems so popular among legal practitioners in this jurisdiction. I do not know where it comes from. But, all that is required of litigants is simply to copy and paste either Form 29B or Form 29, the latter with appropriate modifications if the application is a chamber application that needs to be served on interested parties.”

It was exactly the same situation obtaining in the instant matter.

The applicant's urgent chamber application read like this:

“BE PLEASED TO TAKE NOTICE THAT an Application is hereby made on an urgent basis and the accompanying affidavits and documents will be used in support thereof.”

Counsel for the applicant tried to save the situation, firstly, by arguing, that, the format used by the applicant was the “…, appropriate modification…,” contemplated by the proviso to Rule 241(1).

But, it could not possibly be.

Before you modify the forms prescribed by the Rules, you got to adopt them first. That is what the Rules command.

As with many other similar applications that have been rejected by the courts before, the applicant in casu adopted neither of the Forms.

At p3 of my cyclostyled judgment in Marick Trading (Private) Limited v Old Mutual Life Assurance Company of Zimbabwe (Private) Limited & Anor HH667-15, I re-stated what I believe is trite:

“Form 29 is for use in ordinary court applications, or those chamber applications that require to be served.

One of its most important features is that it sets out a plethora of procedural rights. It alerts the respondent to those rights. For example, in notifying the respondent of the court application, the form also notifies the respondent of his right to oppose the application and warns him of the consequences of failure to file opposing papers timeously.

On the other hand, Form 29B, for simple chamber applications, requires, that, the substantive grounds for the application be stated, in summary fashion, on the face of that form.

Nothing can be more elementary.

The courts, both in this jurisdiction and elsewhere, have repeatedly drawn attention to the need to follow the rules on this. It is not a 'sterile' argument about forms: Per HLATSHWAYO J in Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H) at p103C.

I sample some of the pronouncements by the courts…,.”

I then went on to cite and quote pertinent remarks in the cases of Simross Vintners (Pty) Ltd v Vermeulen; VRG Africa (Pty) Ltd v Walters t/a Trend Litho; Consolidated Credit Corporation (Pty) Ltd v Van Der Westhuizen 1978 (1) SA 779 (T); Jensen v Acavalos 1993 (1) ZLR 216 (S); Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H); Richard Itayi Jambo v Church of the Province of Central Africa & Ors HH329-13; Minister of Higher & Tertiary Education v BMA Fasteners (Private) Limited & Ors HB42-14; Base Minerals Zimbabwe (Private) Limited & Anor v Chiroswa Minerals (Private) Limited & Ors HH559-14.

So, counsel for the applicant could not save the application on the basis that the applicant's format was the appropriate modification contemplated by the Rules.

She changed tack and applied for condonation.

But, if the application was a nullity ab initio, there was nothing to condone.

At any rate, no good and sufficient cause was proffered why the applicant had, in the first place, refrained from simply “copying and pasting” the prescribed forms.

As the Supreme Court said, in Jensen v Acavalos 1993 (1) ZLR 216 (S), albeit in relation to a defective notice appeal, per KORSAH JA…,:

“The reason is that a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad, but incurably bad, and, unless the court is prepared to grant an application for condonation of the defect and to allow a proper notice to be filed, the appeal must be struck off the roll with costs….,.”

In casu, I was not prepared to grant condonation.

The application was dogged by numerous other defects.

Where a litigant has determined that his matter is so urgent that it cannot wait for determination in the normal course, the Rules of Court permit and facilitate the jumping of the queue.

This is done through an urgent chamber application.

In such a situation, the Rules require, that, if the applicant is to be represented by a legal practitioner, his urgent chamber application should be accompanied by a certificate from a legal practitioner certifying that the matter is urgent, and giving reasons for such belief.

Once that is done, the Registrar of this court is obliged to immediately submit such application to a judge in chambers.

On his part, the judge is implored to consider the matter forthwith, although retaining the discretion to call for oral submissions from interested parties as he or she may direct.

The duties of a legal practitioner, in relation to certificates of urgency, have been expounded in a number of cases.

In General Transport & Engineering (Pvt) Ltd & Ors v Zimbabwe Banking Corporation (Pvt) Ltd 1998 (2) ZLR 301 (H) GILLESPIE J said…,:

“Where the rule relating to a certificate of urgency requires a legal practitioner to state his own belief in the urgency of the matter, that invitation must not be abused.

He is not permitted to make, as his certificate of urgency, a submission in which he is unable to conscientiously concur. He has to apply his own mind and judgment to the circumstances and reach a personal view that he can honestly pass on to a judge and which he can support not only by the strength of his arguments but on his own honour and name.

The reason behind this is that the court is only prepared to act urgently, on a matter where a legal practitioner is involved, if a legal practitioner is prepared to give his assurance that such treatment is required.

It is, therefore, an abuse for a lawyer to put his name to a certificate of urgency where he does not genuinely believe the matter to be urgent.”

In Oliver Mandishona Chidawu & Ors v Jayesh Shah & Ors SC12-13, the Supreme Court (GOWORA JA) stated…,:

“In certifying the matter as urgent, the legal practitioner is required to apply his or her own mind to the circumstances of the case and reach an independent judgment as to the urgency of the matter.

He or she is not supposed to take verbatim what his or her client says regarding perceived urgency and put it in the certificate of urgency.

I accept the contention by the first respondent, that, it is a condition precedent to the validity of a certificate of urgency that a legal practitioner applies his mind to the facts.”

After making reference to General Transport & Engineering (Pvt) Ltd & Ors v Zimbabwe Banking Corporation (Pvt) Ltd 1998 (2) ZLR 301 (H), the learned judge of appeal continued as follows…,.:

“In order for a certificate of urgency to pass the test of validity, it must be clear ex facie the certificate itself that the legal practitioner who signed it actually applied his or her mind to the facts and the circumstances surrounding the dispute.”

In the present case, the certificate of urgency was furnished by legal practitioner Augustine Runesu Chizikani (“Chizikani”).

He certified a number of allegations as facts upon which he said his belief that the matter was urgent had been based.

He said the applicant and its entire membership would be irreparably harmed if the status quo ante was not restored on an urgent basis. He then listed those harmful events as follows:

(a) The fraudulent termination of the applicant's rights of possession of the property in question;

(b) The eviction of the applicant and its members from the property notwithstanding their right of occupation;

(c) The “[l]egitimisation through the back door of the 2nd Respondent's breach…,” of agreement with the applicant;

(d) Rendering homeless more than 7,600 owners of residential properties;

(e) Continuous harassment of the applicant and its membership through the print media by flighting malicious advertisements and through false and malicious police reports.

Chizikani's certificate also referred to the potential loss by the applicant and its membership of some US$10 million which, allegedly, had been invested in developing the property.

The rest of the certificate was largely legal argument on what the second respondent had allegedly done; what the result of a failure to restore the status quo ante could be; the absence of an alternative remedy; and the miscarriage of justice that would ensue if the matter was not heard on an urgent basis.

Plainly, none of what Chizikani stated in his certificate informed anyone how the matter was urgent.

Counsel for the applicant was in obvious difficulty on this.

The certificate said nothing about when those harmful acts, allegedly by the respondents, had occurred. It said nothing about how it would be justified that the matter be treated as urgent, moreso given that it was said that there was pending, before this court, an ordinary application to determine the substantive rights of the parties vis-a-vis the property at the centre of the dispute.

It is doubtful that Chizikani read the application, especially the draft order.

One remarkable thing about the application was the apparent dissonance between the founding affidavit, the certificate of urgency, and the draft order.

I deal with this aspect more fully below when I deal with the nature of the relief sought.

In Chizikani's certificate of urgency, probably only the reference to the alleged continuous harassment of the applicant and its members spoke to the nature of the relief sought. The rest of the averments, and of most of those in the founding affidavit, seemed a dress rehearsal of the arguments to be proffered in the main case.

A certificate of urgency, by a legal practitioner, is a sine quo non for an application being heard on an urgent basis where the applicant is to be represented.

Where that certificate is incurably defective, it is just as good as if there is no application.

That was another reason why, in this case, I declined to entertain the application on the merits.

The applicant's draft order was couched thus:

“TERMS OF FINAL ORDER SOUGHT

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

1. That, the 1st and 2nd Respondents be and are hereby interdicted from interfering with Applicant's operations on the Remainder of the Farm Ordar situate in the district of Salisbury pending determination of an application seeking the setting aside of title transfer under Deed No.2807/2015;

2. That, the 1st Respondent and 2nd Respondents (sic) shall bear the costs of this application on a legal practitioner and client scale.

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

1. That, the 1st Respondent be and is hereby interdicted from harassing Applicant's members and/or beneficiaries in any way whatsoever in respect of the Remainder of the Farm Odar immediately upon service of this order.”

The background to this case, in summary, and in my own words, as I understood it, and avoiding much of the contentious stuff, was that the applicant was a consortium or joint venture of some 56 members, comprising, among many others, companies, and State enterprises.

The first respondent was a private company fronted by one Phillip Chiyangwa (“Chiyangwa”).

The second respondent represented the Government.

It was said, in 2006, the Government, in terms of two written agreements, allocated to the applicant some 605,8092 hectares of a property known as Ordar Farm (“the property”).

The allocation was so that the consortium could develop, at its own cost, housing units for its members.

One important feature of the joint venture agreement was that the consortium would, through the Government, pay compensation to the former owner of the land at levels pegged by Government.

This former owner was identified in the agreements as the Zimbabwe Tobacco Association (“ZTA”).

Another feature of the agreements was that the parties to the joint venture would establish a partnership whose members contributions to the capital costs and whose entitlement to the individual land units would be in the proportions as set out.

The day to day management of the partnership would be entrusted to a committee of twelve persons appointed by the partners.

In due course, the Government would pass title to the owners of the individual units of land.

The applicant's case before me, again in my own words, and largely staying clear of the hotly contested facts, was that it had kept its side of the agreement.

Among other things, the relevant developmental permits had been put in place. The property had substantially been developed.

Yet, the Government had blatantly reneged on virtually every other undertaking that it had made to the applicant.

Among other things, the Government had surreptitiously surrendered the property to Phillip Chiyangwa, through his company, the first respondent herein.

A week before the application, the Government had, nicodemously, executed a Deed of Grant over the property in favour of Phillip Chiyangwa's company.

The applicant's members were now at Phillip Chiyangwa's mercy.

They were facing constant harassment from him as he relentlessly pursued compensation from them in return for individual title to the individual units occupied by them in terms of the agreements with the Government.

He was busy flighting malicious adverts in the media and making malicious reports to the police against the applicant's Management Committee.

The applicant did not recognise Phillip Chiyangwa or his alleged rights or title to the property.

In separate proceedings before this court, the applicant said it was challenging Government's actions. In particular, the applicant wanted the title to Phillip Chiyangwa's company reversed.

So. the applicant's case before me was that pending determination of the main case, it wanted a temporary interdict.

It was the nature of that temporary interdict that was the bone of contention.

Prima facie, the applicant had made out a case of double-dealing by the Government.

The Government's conduct was put into serious question.

It had acquired the property; it had allocated it to the applicant; the applicant had expended vast sums of money in line with the agreements; the applicant's members anticipated getting title to the individual units of land over which they had taken occupation, or were in the process of doing so; the level of compensation was, or had to be assessed by the Government.

Then, Phillip Chiyangwa zooms from nowhere, brandishing a title deed issued by the same Government - over the same property.

And the same Government was now tossing the applicant's members to Phillip Chiyangwa to whom payment of the compensation had to be made.

Thus, the Government was in the dock. It owed an explanation.

It was its secret execution of the title deed in favour of Phillip Chiyangwa's company that had prompted the applicant to approach the court on an urgent basis.

That, basically, was the applicant's case.

Unfortunately, it was not the one before me.

It was the case pending before this court for determination at another time and by another judge.

The case before me, as summarised in the interim relief sought, was that I should interdict Phillip Chiyangwa's company from “…, harassing Applicant's members and/or beneficiaries in any way whatsoever….,.”

But, there was a problem with that.

From the papers, it was not Phillip Chiyangwa's company that was doing the harm complained of - it was him personally.

But, he was not a party to the application.

Secondly, and more importantly, what really was being sought was an interdict to stop Phillip Chiyangwa from making police reports against the applicant's Management Committee.

There was attached to the founding affidavit, a document headlined “WANTED BY POLICE”.

Below were pictures of six named individuals and six other names without pictures to them. The six pictures included that of the deponent to the founding affidavit, one Benny Tangai Matenga (“Matenga”).

According to the applicant, the pictured and named individuals were the applicant's Management Committee.

The document offered a reward to anyone who reported them to the police.

However, before me, there was no telling whether the document had been from Phillip Chiyangwa himself or the police.

Also attached to the applicant's papers was another document headlined “PUBLIC NOTICE - WARNING MBAVHA KU SOUTHLEA PARK.”

“Mbavha” is Shona for thief or thieves.

In essence, the document informed the public, that, it had come to the attention of the first respondent that the named individuals, and other “unscrupulous” elements, were illegally selling residential Stands to unsuspecting members of the public.

The document said a report had been made to the police and that only the company could legitimately issue title deeds over the property.

In his affidavit, Phillip Chiyangwa said those individuals were the so-called land barons who had illegally sold off pieces of land from his company's property and whom he had reported to the police.

The point is: it is everyone's right to report what they may perceive to be criminal conduct.

The interim order sought was manifestly incompetent.

In substance, it was sought to gag someone from exercising his right or freedom.

Although not really conceding the point, counsel for the applicant seemed to appreciate the difficulty.

She sought to amend the draft order so that the interdict would read something like this:

“…, to restrain the first respondent from interfering with the applicant's operations at the property; or disposing of any Stands thereon and from harassing the applicant's members and from publishing any false statements pending the determination of the main case….,.”

The first respondent opposed the proposed amendment.

Among other things, counsel for the first respondent pointed out, that, it was the applicant, not the respondents, that was selling off units of land.

In my view, the proposed amendment still amounted to the same thing.

The applicant's real case was that it was for Government to answer why it was ditching its members.

But, no relief was being sought against the Government.

Furthermore, other than the two documents aforesaid, and the single allegation in the founding affidavit to the effect, that, such documents had been flighted in the media by the first respondent, there was nothing else said or shown that amounted to harassment.

There was simply a disconnection between what the application said or highlighted in its application, and the relief sought in the draft order.

Such defect was incurable.

That was yet another reason why I refused to deal with the application.

The applicant blatantly neglected to take the court into its confidence. Material facts were omitted from the founding papers.

This was fully exposed and exploited by the first respondent - with fatal consequences.

One example stuck out prominently.

As summarised above, the applicant condemned the Government for, as it were “selling” out to Phillip Chiyangwa.

The applicant did not recognise Phillip Chiyangwa or his company.

The applicant's position was that its members would pay compensation to no one else other than the Government.

The applicant's case, particularly that for urgency, was that it was only after the Government had surreptitiously issued title to Phillip Chiyangwa's company, on 8 July 2015, that it had finally become aware of the Government's sinister dealings.

That was what had triggered the urgent chamber application a week later.

To expose the falsehoods, the first respondent produced several correspondence and documents.

These showed, that, as far back as December 2014, the Government had written to the first respondent, inter alia, confirming its resolution to hand over the property back to it and advising that the first respondent would now receive its compensation directly from the applicant.

The first respondent, had, in turn, copied that letter to the applicant some five days later.

In answer to that, the applicant claimed not to have received the correspondence.

However, it admitted that it had received an agreement, dated 15 April 2015, between the Government and the first respondent.

That agreement was to the same effect as the correspondence.

In fact, it was more elaborate.

It explained the background to the devolution of the property from the Zimbabwe Tobacco Association (ZTA) to the first respondent. It explained how the first respondent would develop the property and receive compensation directly from the applicant, and how the Government would issue a Deed of Grant over the property in favour of the first respondent to facilitate the raising of capital for the developments intended, etc.

All that the applicant challenged, in the answering affidavit, was some inconsequential aspect of that agreement.

Its major argument was that the Government was dealing with the first respondent at its own risk because it had an agreement with the applicant over the property.

But, that was not the point.

The point was that such communication or documents had been concealed from me.

Furthermore, if the applicant had become aware of the Government's intention, inter alia, to issue a title deed over the property in favour of the first respondent as far back as, according to the applicant itself, mid-April 2015; how could the matter then suddenly become urgent only in mid-July 2015 when the applicant finally filed the urgent chamber application?

There was more.

The first respondent produced a sample of the correspondence signed by Benny Tangai Matenga, in February 2015, to members of the consortium.

The letters, referenced “PAYMENT OF COMPENSATION TO SENSENE INVESTMENTS (PVT) LTD” advised that the Government and the first respondent had settled the issue of ownership.

The applicant, itself, was confirming, that, indeed, the first respondent now owned Ordar Farm.

In the circumstances, the applicant's members were being directed to now pay compensation directly to the first respondent.

By all accounts, such correspondence damned the applicant's case.

So, anyone would naturally be curious what the applicant's answer to that could be.

Benny Tangai Matenga had an answer.

He claimed, in the answering affidavit, and in yet another affidavit attached to the answering affidavit, that, he had signed those letters, as it were, at gun point!

He said he had written them without consulting the applicant's Management Committee because a “representative” of the first respondent had stood over him demanding that he signed the letters!

The representative was not named.

Plainly, that was puerile.

At any rate, it was beside the point. The point was that such material correspondence and documents had not been disclosed.

Asked to explain, counsel for the applicant retorted what purpose disclosure would have served.

But, she could not possibly have been serious.

There was yet other more relevant and material letters that the applicant had concealed.

It turned out, that, the applicant had engaged more than one law firm over the issue of, inter alia, the level of compensation payable to Phillip Chiyangwa's company.

One of those law firms, Sawyer & Mkushi, had written to the Government on 28 April 2015.

On 30 April 2015, the Government had replied, advising the lawyers to deal directly with the first respondent to whom the property had been handed back.

The other law firm was Tamuka Moyo Attorneys.

On 6 July 2015, they had written directly to Phillip Chiyangwa, making substantial proposals on, inter alia, the level of compensation the applicant wished to pay him.

The letter clearly accepted, that, the first respondent was the owner of the property.

In the penultimate paragraph, the letter expressed gratitude to Phillip Chiyangwa for the good faith that he had demonstrated towards the applicant.

6 July 2015 was, of course, a mere one week before the urgent chamber application was launched.

Once again, the letters to or from the law firms aforesaid were quite damaging of the applicant's case.

So, again, one was curious what the applicant's answer would be.

It had an answer.

Of the Government's letter to Sawyer & Mkushi, Benny Tangai Matenga said the letter was “invalid” because the first respondent was not a party to the agreement between the applicant and the Government!

Of the letter from Tamuka Moyo Attorneys to Phillip Chiyangwa, Benny Tangai Matenga said the proposals on compensation therein were meant to put the issue of compensation to rest!

Demonstrably, the applicant was ill-advised.

As I dismissed the application, I mentioned that if costs de bonis propriis had been prayed for, I would have seriously considered the request.

The applicant's authority to bring the proceedings was seriously challenged by the second respondent in its notice of opposition.

One George Sipihlapi Mlilo, the second respondent's Permanent Secretary, said, in the opposing affidavit, that, the applicant had no locus standi to bring the application; that Benny Tangai Matenga had not shown the authority upon which he was acting, and that nothing had been presented to show that the applicant was legally constituted.

In the founding affidavit, Benny Tangai Matenga had attached some document purporting to be a resolution allegedly passed by the applicant's Management Committee authorising him to sign all court process in connection with the dispute.

The document was signed by the eleven persons, all of whom were the subject of Phillip Chiyangwa's police reports and press adverts.

In reply, Benny Tangai Matenga referred to the Joint Venture Agreement between the Government and the members of the consortium, and the purported resolution. He said that those were the proof of the applicant's locus standi; proof of his authority; and proof of the applicant's legal status.

That was not enough.

The consortium members, as listed on the Joint Venture Agreement, consisted of some 56 legal entities that comprised private companies, listed companies, some associations, State enterprises, co-operative societies, banks, etc. - virtually from the length and breadth of the country.

Certainly more was required of the applicant to prove its authority to bring these proceedings than a mere resolution, especially given that a frontal challenge had been taken.

All this, added to the fatal flaw in the application before me.

It was for the above reasons that I dismissed the application with costs on an attorney and client scale.

On 21 January 2015, the respondent obtained judgment in its favour against the applicant under case number HC1548/13. The judgment is for the payment of $35,873 with interest at the rate of 5% per annum from 1 January 2013, and legal costs in the sum of $2,500.

The judgment debt led to the attachment of the applicant's dwelling, namely, Stand 907 Mt Pleasant Heights, Mt Pleasant, Harare.

The applicant received the notice of attachment on 18 January 2016 and filed this application on 29 January 2016.

The applicant wants the sale of the dwelling suspended because, firstly, if the sale is allowed to proceed, her family will suffer great hardship. Secondly, the applicant says she is making a reasonable offer to settle the debt at the rate of $1,000 per month.

The following is the relief that she is asking for:

“Terms of final order sought

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

1. The sale in execution of the said dwelling is suspended on condition that the applicant carries out fully the terms of the offer of settlement made above, and, if applicant defaults on any one instalment, execution shall proceed.

2. No order as to costs.

Interim relief granted:

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

1. The Deputy Sheriff shall suspend the action towards the sale in execution of the said dwelling.

2. A copy of this order shall be served on the respondent's legal practitioners.”...,.

Although the applicant does not state in her application that she is making this application in terms of Order 40 Rule 348A(5a), I do agree with the respondent, that, looking at the nature of the application, it is indeed being made in terms of Order 40 Rule 348A(5a) which deals with applications for the postponement or suspension of the sale of a dwelling where that dwelling has been attached and is occupied by the execution debtor or members of his family.

The execution debtor is empowered to make a chamber application for the postponement or suspension of the sale of the dwelling or eviction of its occupants. The application should be made within 10 days of notice of attachment of the dwelling.

Once such an application is made, the Registrar of this court shall submit the chamber application to a judge who shall consider the papers forthwith: per Rule 244 of the High Court Rules, 1971.

In terms of Rule 348A(6), an application made under Rule 348(A)(5a) shall be treated as urgent and set down urgently, without delay.

However, even if the application is treated urgently, the order that is granted by the court is a final one.

This is supported by Rule 348A(5e) which states, that, if the judge is satisfied that there is good ground for postponing or suspending the sale of the dwelling concerned or postponing or suspending the eviction of the occupants, he may order the postponement or suspension of the sale or eviction subject to terms and conditions he may specify.

The Rule does not say that the order that is granted is a provisional one.

Even the Form 45 upon which this chamber application is made shows that the order which is sought by the applicant is final in nature.

The relevant portion of the Form reads as follows:

“The applicant seeks an order in the following terms:

The sale in execution of the said dwelling is postponed until…,. (date)

OR ALTERNATIVELY:

The sale in execution of the said dwelling shall proceed subject to the condition that the above mentioned occupants are permitted to remain in occupation until…,. (date)

OR ALTERNATIVELY:

The sale in execution of the said dwelling is suspended on condition that the applicant carries out fully the terms of the offer of settlement made above.”

It is apparent therefore, that, in this matter, the applicant ought to have made a chamber application and not an urgent chamber application as she did.

It will be futile to grant a provisional order suspending or postponing the sale.

Once this is done, there will not be anything to confirm on the return day as the provisional order that she is seeking is final in nature and has the effect of a final order. In fact, there will not be any need for confirmation of the provisional order on the return day.

Considering that the applicant is a self-actor who is not well versed with the rules of this court, I will condone her adoption of the wrong procedure.

This is in light of the fact, that, the respondent did not make it an issue.

It is just an observation that I made as the court.

Legal practitioners should keep up to date with and give cognizance to rules of the courts. They should not waste the court's time by bringing ludicrous applications before the court. The determination of cases should not be slowed or deferred un-essentially because a legal practitioner has failed to assimilate the Rules.

This was the case in this matter.

This was an application brought before the court on an urgent basis; but, before the court could hear the matter on the merits, the respondents took a technical objection in points in limine.

I reserved judgement, and, so here is my judgement.

The first point in limine raised by the respondent was that there was no application before me, based on the fact, that, the application did not comply with Rule 241.

Rule 241 states:

“(1) A chamber application shall be made by means of an entry in the chamber book and shall be accompanied by Form 29B duly completed and except as is provided in subrule (2) shall be supported by one or more affidavits setting out the facts upon which the application relies:
Provided, that, where a chamber application is to be served on an interested party, it shall be in Form No. 29 with appropriate modifications.”

However, the form in which this application was brought was neither in Form 29 nor 29B; I have no idea which form was used, nor do I know where the legal practitioner for the applicant got it from.

However, the lawyer for the applicant still managed to waste the court's time by referring the court to Rule 241 and Form 29B as read with Rule 244.

I do not have time to start teaching legal practitioners how to interpret statutes.

Rule 241 states that a chamber application should be in Form 29B; but, if it needs to be served, should be in Form 29.

Rule 244 is of no importance in answering a point in limine raised by the respondent: see Marick Trading (Pvt) Ltd v Old Mutual Life Assurance Company of Zimbabwe Ltd and Another 2015 (2) ZLR 343.

When such a chamber application is brought before the court, it should be in Form 29 as it would need to be served on all interested parties.

This was an application that was truly defective.

Fortunately, the law is very lenient with legal practitioners and allows such lawyers to correct their mistakes by making an application for condonation to rectify any faulty applications.

However, the applicant's lawyer denied that the application was defective.

The applicant thus never made any application: instead, he submitted that the application is not fatal and stated that so long as he is able to show that there is compliance with the Rules, the application should be heard.

In National Social Security Authority v D Chipunza SC116-04 the court had this to say on rules of court:

“…,. Rules of court are enacted for purpose of regulating the conduct of matters brought before the court and that condonation of failure to observe them is not automatic or there for the asking. An applicant must make out a good case for condonation of its non-compliance with the rules. Failure to do so is fatal to his application.”

The applicant herein was alerted of its failure to comply with the Rules but decided not to apply for condonation.

Without an application before me, I cannot mero motu grant condonation.

As soon as a party realizes it has not complied with any of the Rules, that party should file an application for condonation: see De Beer En'N Aner v Westen Bank Ltd 1981 (4) SA 255.

In addition, as I have stated above, condonation for non-observance of rules of court is by no means a mere formality. It is for the applicant to satisfy the court, that, there is sufficient cause for excusing the non-compliance: see Meinfjres v H–D Combrinck (EDMS) BPK 1961 (1) SA 262 (AD)…,.

In this instance, although it became clear to counsel for the applicant that he had not complied with Rule 241(1) - but he insisted he had breached no Rules.

It was clear that the application by the applicant was one which required to be served on the other party. It had to be in Form 29B.

Counsel for the applicant argued, that, the applicant was allowed, in terms of the proviso to Rule 241(1), to use the procedure with modification. He argued that what he did was to simply modify the procedure.

The proviso to Rule 241(1) reads;

“Provided that, where a chamber application is to be served on an interested party, it shall be in Form 29 with appropriate modification.”…,.

Modification has been defined as an act or process of changing parts of something. It is a change or alteration that makes something work better. Modification must leave some resemblance to the original form.

The original Form 29 informs the respondent that if he intends to oppose the application he should file a Notice of Opposition in Form 29A, together with opposing affidavits. It also states that such opposition must be served on the applicant.

The applicant's application reads;

“TAKE NOTICE THAT an application is hereby made for an order in terms of the provisional order annexed to this application on the grounds that;

1….,.

2….,.

3….,.

FURTHER TAKE NOTICE THAT THE accompanying affidavit and documents shall be used in support thereof.

Dated at Harare this 3rd of February 2017.”

Obviously, such format is very different from Form 29.

The format used does not inform the respondents of what they must do upon receiving the application.

As I said above, modification must be done in a manner which leave the Form 29, as provided, better. One cannot reduce the requirements in Form 29 and call such modification.

I am of the view, that, the applicant has failed to comply with Rule 241(1) of this court's Rules.

Whilst it is within my power to condone such non-compliance, it is trite I must do so upon request.

I have not been requested to condone such derogation from the Rules.

The only remedy I have is to strike off the matter from the roll: see Forestry Commission v Moyo 1997 (1) ZLR 254 (S).

The applicant made an application seeking the following order:

“IT IS HEREBY ORDERED THAT:

1. The cancellation of the Memorandum of Agreement of Sale of Stand No.11234 Darlington Extension, Mutare Township, measuring approximately 1,1759 hectares, entered into by the City of Mutare and Washington Jekanyika, jointly together with Cheneso Muvandi, is a nullity, of no force and effect.

2. The Memorandum of Agreement of Sale of Stand No.11234 Darlington Extension, Mutare Township, measuring approximately 1,1759 hectares, entered into by the City of Mutare and Washington Jekanyika, jointly together with Cheneso Muvandi, is declared valid.

3. The 1st respondent shall pay costs of suit on a higher scale of attorney and client.”

The application is opposed by the first respondent, the City of Mutare.

On 20 July 2016, Clayhill Trading (Private) Limited entered into an agreement of sale of a piece of land, namely, Stand No.11234 Darlington Extension, Mutare Township, measuring 1,1759 hectares, with the applicant and her late husband, Washington Jekanyika.

The purchase price was US$62,000.

Clause 3 of the agreement of sale stipulated the payment plan: US$20,000 was payable against the signing of the agreement; US$20,000 was payable three (3) weeks after the signing of cession papers; the balance of US$22,000 was going to be liquidated through monthly instalments of US$4,000 commencing 30 September 2016.

The preamble to the memorandum of agreement of sale between the seller and buyer provided, that, the buyers had to demand transfer from the Municipality of Mutare of such immovable property so purchased by the buyer; however, the seller was responsible for the payment of all cession costs, including the City Council's cession fees and capital gain tax, if any (clause 8 of the agreement of sale).

During the same year, 2016, the first respondent, City of Mutare, entered into an agreement of sale with the applicant and her husband.

Under clause 2 of this agreement, the purchase price “was the intrinsic value paid by Clayhill (Pvt) Ltd.”

Clause 14 thereto stipulates, that, the purchasers shall demand transfer of the Stand from the seller upon completion on the main building.

The agreement of sale does not state any conditions for breach or grounds for cancellation of the agreement of sale.

On 24 September 2019, the City of Mutare wrote a letter to the applicant's legal practitioners indicating that the agreement of sale between itself, the applicant, and her husband had been cancelled.

The first respondent alleged in the letter the applicant's late husband, Mr W. Jekanyika had misrepresented to the City Council that he had fully paid the purchase price of the property to the developer, Clayhill and that Clayhill had since cancelled the first agreement of sale.

As a result of the “fraud” committed by the purchasers, the first respondent was cancelling the agreement of sale.

A lot of correspondences were exchanged between the City Council's legal practitioners and the purchasers lawyers but nothing came out of the correspondences until the applicant approached this court.

Clayhill (Pvt) Ltd had since issued summons against the purchasers claiming an amount of US$28,000 for arrear payments.

It is important to note, that, there is no allegation nor prayer by Clayhill for the cancellation of the agreement of sale or a misrepresentation on the part of the applicant and her late husband.

The first respondent, in its opposing papers, contends, that, the applicant's application should fail for failing to join Clayhill Trading (Private) Limited as a party to the proceedings.

As already addressed in the foregoing above, the first respondent went on to state, that, the applicant and her husband breached the terms of their agreement with Clayhill by failing to pay the full purchase price and that led to the cancellation of the agreement of sale by letter of 21 November 2016 written by Clayhill Property Development: hence, the agreement of sale between City of Mutare and the applicant and her husband was a nullity, because, at the time it was drafted, the City Council did not hold any rights, interest or title in the Stand; instead, such rights were vested with Clayhill; and, as such, the cancellation of the agreement was above board; and, before the cancellation of that agreement, the applicant's legal practitioners were fully appraised of the whole scenario of the events.

To the respondent, the relief being sought by the applicant has no basis.

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.

Both the applicant and first respondent had raised preliminary points in their respective papers; and, I directed the legal practitioners to holistically address the court by commencing with points in limine and then the main issues.

The applicant, on filing her affidavit, raised a preliminary point to the effect, that, the first respondent's Town Clerk, in filing the opposing affidavit, was not authorised by the Council. Hence, the application should proceed as unopposed.

The applicant amplified her argument by submitting, that, the first respondent's notice of opposition is fatally defective for want of a proper opposing affidavit.

The Town Clerk, Mr Maligwa, did not attach authority which he alleges to have to depose to the affidavit.

Counsel for the applicant, to advance his argument, cited section 136(2) of the Urban Councils Act [Chapter 29:15] which basically provides as follows:

“Functions of Town Clerk

(1) The town clerk shall be responsible for -

(a) The proper administration of the council; and

(b) Managing the operations and property of the council; and

(c) Supervising and controlling the activities of the employees of the council in the course of their employment.

(2) For the purposes of subsection (1),the town clerk, in addition to any other duties that may be assigned to him by the council shall -

(a)…,.

(b) Where so authorised by the council, sign orders, notices, or any document requiring authentication or execution on behalf of the council…,.”

As such, the applicant contended, the Town Clerk was required to produce a resolution on which he relies on to depose to the opposing affidavit. To the applicant, the Town Clerk has no automatic authority to oppose this matter.

The first respondent, in response to this point in limine, submitted, that, the absence of the resolution does not prove that the Town Clerk did not have authority.

The Town Clerk is the Chief Executive Officer of the first respondent and in charge of the entity - including litigation and defending Council.

Counsel for the first respondent went on to cite the cases of Tian Ze Tobacco Co. (Pvt) Ltd v Muntuyedwa HH626-15 (per MATHONSI J…,.) and also the matter of Zimbabwe Open University v Magaramombe and Another.

In summary, the first respondent submitted, that, the averment in the deponent's opposing affidavit is adequate, and, in its view, there was no need to attach the resolution reached by the full Council meeting.

Given the nature of the facts in this application, more particularly, the stance adopted by the first respondent towards the application, the applicant's contention holds firm.

It was incumbent upon the Council to deliberate on the facts of this matter and consider whether there was any basis to oppose the application brought about by the applicant, and also seriously outline the basis of such opposition.

This analysis would be dealt with below on the aspect of costs, but, given the provisions of section 136(2) of the Urban Councils Act, I agree with the applicant's counsel, that, there was need for a special resolution passed by the Council mandating the Town Clerk to depose to an opposing affidavit on its behalf.

At the same time, this court will not lose sight of the fact, that, there is an opposing affidavit before it which affidavit contains material documents that are going to be of a great assistance in the resolution of this application.

It will be in the interests of justice that I will condone the failure to file that resolution by the first respondent and allow the first respondent to be heard on the merits.

The applicant's point in limine, though valid, is dismissed.

For reasons which are not apparent from the papers placed before me, the first respondent sued the first applicant in the Magistrate's Court of Harare in case number 19780/13 for payment of the sum of $73,577=93 together with interest of 5% per annum and costs of suit on the scale of legal practitioner and client and obtained judgement on 7 November 2013.

I say the reasons are not apparent because a claim of that magnitude would ordinarily be made in this court; the Magistrates Court's civil jurisdiction being currently limited to only $10,000.

Subsequently, a writ of execution against immovable property, being Stand 8 Good Hope Township of Lot 7 of Good Hope, Westgate, Harare, was issued on 14 November 2014 after the first respondent had failed to locate sufficient movable assets to satisfy the debt.

That property was then attached in execution by the second respondent in terms of Order 26 Rule 8 of the Magistrates Court (Civil) Rules 1980.

I say that because the second respondent sought authority from the resident magistrate for the area to sell the property, presumably acting in terms of Order 26 Rule 8(2) of that court's Rules which provides, that, whenever a dwelling is attached, the Messenger shall forthwith send written notification to the magistrate and then take no further steps.

The magistrate sent written notification of the attachment to the secretary in the Ministry of Local Government, Public Works and National Housing - who did not bother to respond.

On 19 February 2015, the magistrate wrote to the second respondent in the following:

“Reference is made to my letter to the Secretary dated 2 January 2015. The Secretary has not respondent (sic) to the letter. In terms of Order 26 Rule 8, you are hereby directed to proceed with the sale of four attached properties. Be guided accordingly.

B Pabwe
Resident Magistrate
Harare Civil Court”

After receiving those instructions from the magistrate, the second respondent, who I must stress is an officer of that court charged with the execution of writs coming out of that court, proceeded to advertise the property for sale by public auction on 10 April 2015.

It is that advertisement which has jolted the applicants into action and triggered the filing of this urgent application wherein they seek the following relief:

“TERMS OF THE FINAL ORDER SOUGHT

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

(a) The sale of Stand No.8 Goodhope Township of Lot 7 of Goodhope be and is hereby suspended on condition that the applicant pays the judgement in three equal monthly instalments of USD22,054 beginning on the 1st of July 2015 until the debt is settled, and, if applicant defaults on any one payment execution will proceed.

(b) Applicants pay the costs.

It is hereby ordered, that, pending the confirmation of this matter, the applicant is granted the following relief -

1. The sale of Stand No.8 Goodhope Township of Lot 7 of Goodhope be and is hereby suspended on condition that the applicant pays an amount of USD22,054 on or before the first day of each month provided that the first such payment shall commence on or before the 1st of July 2015. In the event that the applicants defaults in respect of any one payment the sale in execution shall proceed.

2. The 2nd respondent shall suspend any action towards the sale in execution of the property referred to in paragraph 1 hereof.

3. A copy of this order or shall be served on the 1st and 2nd respondent's legal practitioners.”

Never mind that the interim relief is the same as the substantive relief; (Kuvarega v Registrar General & Anor 1998 (1) ZLR 188), but, clearly, this is an application made in terms of Rule 348A of the High Court of Zimbabwe Rules 1971 for the stopping of a sale in execution to facilitate settlement of a claim.

Ordinarily, there would be nothing wrong with it except that it has been made in the wrong court.

Rule 348A of the High Court Rules deals with stopping sales in execution conducted by the Sheriff of the High Court in pursuance of a writ issued in terms of Rule 346 of the High Court Rules.

In terms of Rule 348A(1), where a dwelling has been attached, the Sheriff is required to forthwith send the Secretary of the Ministry responsible for the administration of the Housing and Building Act [Chapter 22:07] notification of the attachment.

Subrule (4) allows the Secretary to approach this court, by chamber application, for an order staying the sale.

A judge will issue a provisional order staying the sale if satisfied that there is a reasonable probability that the execution creditor's claim will be satisfied or settled from the National Housing Fund.

In terms of subrule (5a), the execution debtor himself is entitled to make the application where the dwelling is occupied by the execution debtor or members of his family.

This court ruled, in Masendeke v Central Africa Building Society and Anor 2003 (1) ZLR 65 (H)…, that, in terms of Rule 348A(6) any such application shall be treated as urgent as no valid argument can be advanced against the urgent treatment of an application in terms of Rule 348A of the High Court Rules.

A writ issued in terms of Rule 346 is in Form No.36 of the High Court Rules and is issued following the grant of an order by this court and cannot possibly relate to a writ issued following the grant of an order by a magistrate.

The procedure relating to attachment of immovable property in the Magistrates Court is governed by Order 26 Rule 8 of the rules of that court. It provides:

“8. Attachment of dwelling

(1) In this rule -

'dwelling' means a building or part of a building, including a flat, designed as a dwelling for a single family and includes the usual appurtenances and out buildings associated with such a building;

'Secretary' means the Secretary of the Ministry responsible for the administration of the Housing and Building Act [Chapter 22:07].

(2) Whenever a dwelling is attached under Rule 7, the messenger shall forthwith send the provincial magistrate or magistrate of the court from which the warrant of execution was issued, as the case may be, written notification that the dwelling has been attached and is to be sold in execution, and the messenger shall take no further steps in regard to the sale of the dwelling for a period of forty days, pending notification by the magistrate concerned in terms of subrule (4).

(3) Upon receiving notification of the attachment of a dwelling, in terms of subrule (2), the magistrate shall forthwith send the Secretary –

(a) Written notification that the dwelling has been attached under this order and is to be sold in execution; and

(b) Copies of all documents and particulars relating to its attachment.

(4) If, within 30 days after being sent notification under subrule (3), the secretary notifies the magistrate, in writing, that he proposes to satisfy or settle the judgment creditor's claim from the National Housing Fund established by section 14 of the Housing and Building Act [Chapter 22:07], the magistrate shall, without undue delay, notify the messenger in writing.

(5) On receiving notification under subrule (4), the messenger shall –

(a) Inform the judgment creditor of the Secretary's proposal; and

(b) Take no further steps in regard to the sale of the dwelling concerned until a period of sixty days has elapsed from the date on which he received such notification.

(6) For the purpose of calculating any time-limit under this order, any period during which the messenger is required by subule (2) or (5) to take steps in regard to the sale of any dwelling shall be disregarded.”

The provisions of Order 26 Rule 8 of the Magistrates Court (Civil) Rules are similar to those of Rule 348 of the High Court Rules.

They were meant to provide sanctuary to debtors when attachment of dwelling houses became a serious national problem which was rendering a lot of people homeless. The legislature intervened and a fund to cater for such problem was set up.

The High Court Rules went further, in Rule 348A(5a), to provide a remedy to a judgment debtor who has made a reasonable offer to pay, other than placing reliance on the Housing Fund administered by the Secretary, to approach the court to secure a stay of the sale on condition of the offer.

Unfortunately, there is no similar remedy in the Magistrates Court Rules.

Even if it were there, it would be available for enforcement in that court.

What the present applicants have done is to seek to stay proceedings being pursued by another court, which has complete enforcement mechanisms for its orders and Rules that provide for the procedure to be followed, in this court, employing Rules of this court applying to orders issued by this court.

In my view, that is incompetent. You cannot mix oil with water.

Counsel for the applicants conceded, that, the application seeks to stay execution which has been levied in terms of the Magistrates Court Rules. He further conceded, that, it seeks to apply High Court Rules on a matter governed by the Magistrates Court Rules and that it is therefore out of order.

He, however, submitted, that, I must indulge the applicants because there is no provision in the Magistrate Court Act [Chapter 7:10] and the Magistrates Court Rules allowing for such an application to be made. For that reason, the applicants had no option but to come to this court.

This is a matter in which no amount of benevolence or indulgence can save the applicants.

I can simply not entertain an application which has been made in the wrong court and seeks to apply rules not applicable to the case.

The first respondent opposed the application on grounds other than the issue of an approach made to the wrong court.

It stated, in the opposing affidavit of Loveness Ngwanga, its legal counsel, that, the property attached is not a family dwelling as the applicants and their family live at Dunine Farm in Beatrice and that they had in fact consented to the sale of the dwelling by private treaty as far back as January 2014.

It produced evidence, in the form of the Messenger of Court's returns, showing the attachment of their household furniture at Dunine Farm, Beatrice.

In addition to that, the first respondent attached proof that the applicants also own a house in Waterfalls, Harare.

It further asserted, that, the applicants have previously made endless undertakings and proposals to settle the debt which have not been honoured and there is nothing to show that the present offer will be different.

I do not consider it necessary to decide the merits of the application having taken the view that the applicants are in the wrong court.

I must say, however, that, in light of the evidence produced in opposition, the applicants would have had serious difficulties sustaining a case even on the merits.

In the result, the application is hereby dismissed with costs.

This is an application for a declaratur where that applicant is seeking the following relief as per her draft order:

“IT IS ORDERED THAT:

1. The application be and is hereby granted.

2. The disciplinary proceedings conducted by the respondent against the applicant, in terms of SI15 of 2006, be and is hereby declared a nullity.

3. The respondent be and is hereby ordered to reinstate the applicant without loss of salary and benefits with effect from the date of termination of contract of employment.

4. The respondent be and hereby ordered to pay costs of suit on an attorney-client scale up to the application is opposed.”

The application is opposed. The respondent raised three points in limine:

1. This matter has already been determined by the Labour Court sitting at Harare under case No. LC/H/LRA/216/17. This identical application already has a judgement.

2. In as far as this Honourable Court has jurisdiction over labour matters, it is not permissible for parties to approach the High Court and the Labour Court with the same issue as was done herein. In other words, the matter is res judicata.

3. The dispute has already been dealt with by the Labour Court....,.

Before dealing with the points in limine, the court needs to register its concern with the condition of the record of proceedings.

The index was randomly prepared and the documents are not arranged in tandem with their positions spelt out on the index. The papers are repeatedly annexed and it is clear that the applicant's legal practitioners did not check if the record was in order before the matter was set down for hearing.

It is the sole duty of the applicant's legal practitioners to ensure, that, the record is properly arranged, well paginated, in sequence of the pleadings, and, more particularly, that, the court's copy corresponds with the copies retained by the parties; this will make it easy for quick reference by the court during proceedings.

In future, the parties were informed, during the hearing, the matter can be struck off the roll and the applicant ordered to pay the wasted costs of the other party de bonis propriis.

The lack of order of the record was condoned and the application was allowed to be heard...,.

The first and second plaintiffs in this matter are son and father, respectively, and are self-actors.

The plaintiffs issued summons against the defendant claiming damages for what they termed “professional negligence for mental suffering” in the sum of US$1,200,000. In the very summons, the first plaintiff went on to claim against the defendant payment of $1,400,000 for what he termed “Defamation-Libel.”

The defendant entered appearance to defend and raised two defences, being special pleas and an exception to the summons and declaration.

At the hearing, the first plaintiff was not in attendance.

The second plaintiff, the father, sought a postponement of the hearing on the basis that the son might have been interfered with by certain perceived political foes, and, he wanted to go and report to the police.

The defendant opposed the application for postponement.

Service of the notice of set down having been effected on the plaintiffs, and the second plaintiff having confirmed that he had informed his son of the hearing date a day before, and also texted a message to him, the court refused to postpone the matter.

As the first plaintiff was in default, the defendant applied for dismissal of the plaintiff's claim, which application was granted.

The court proceeded to deal with the second plaintiff's claim.

The facts of the matter may be summarised as follows:

The first plaintiff wrote 'O' Level and 'A' Level examinations in 2006 and 2008 respectively. He was not satisfied with the results he got. The first plaintiff, once again, sat for another 'A' level examination in 2009 and got poor results. The first and second plaintiffs approached the court for relief. Below is the claim instituted, as stated in the summons:

“Professional negligence for mental suffering US$1,200,000 payable half and half to the first and second plaintiffs and defamation libel payable to the first plaintiff US$200,000 all in all being US$1,400,000.”

The first plaintiff stated his causes of action as follows:

“(i) Breach of contract because the first plaintiff paid exam fees for a fit and proper result; and

(ii) The omission or failure to issue fit and proper (or competent) results; and

(iii) The unfair and provocative discriminating results in the November 2006 and November 2008 diets which resulted in damage of mental suffering directly as a result of the defendant's carelessness.”

The second plaintiff's cause of action is couched as follows:

“The second plaintiff is suing for the careless and deliberate act by the defendant of having to watch ghastly and inexplicable subtle torture of his son as well as being his home-based tutor being denied his exam results in the specified years in what looked unprincipled political corruption which basically resulted in financial sabotaging circumstances and a forced wastage of money. The second plaintiff was also greatly physically inconvenienced.”

It is to these claims that the defendant raised the special plea and exception on the basis that:

1. The claims arising in 2006, 2008 and 2009 had prescribed.

2. There was a misjoinder as the defendant, the Director of ZIMSEC should not have been joined in the proceedings as he had no direct and substantial interest in the dispute. It is the Zimbabwe Schools Examination Council, a body corporate and a separate legal entity which should have been sued and not its Director.

As the first plaintiff's claim had been dismissed with costs earlier, the court was left with the second plaintiff's claim to deal with.

Counsel for the defendant submitted, that, as the plaintiffs alleged that their claims are based on contract and delict, the claims are therefore “debts”. He expounded on the scenario as follows:

(i) For November 2006 examinations, results were received in 2007.

(ii) For the November 2008 A Level examination, results were received in 2009.

(iii) For the November 2009 A Level examination, results were received in 2010.

That being the factual position, all the claims arising out of complaints pertaining to those results had prescribed as they were subject to the 3-year time limit within which a debt expires.

The second plaintiff only conceded, that, the claim arising out of the November 2006 examination, the results of which came out in 2007, had indeed prescribed.

He however argued, that, the rest of the claims were within the running time limits.

To determine this issue, one has to look to the relevant Act. The Prescription Act [Chapter 8.11] not only defines what a debt is, but also clearly states when a debt prescribes.

There was never an issue before the court that what was being claimed falls under a debt since the definition covers claims arising from delict; so, there is no need to dwell on the definition thereof.

Section 15(d) stipulates, that, an ordinary debt (as opposed to specific debts listed in subsection (a) to (c)) prescribes after 3 years.

It is therefore important to consider the period when the clock starts ticking for one to ascertain the duration for which the claim would still be alive.

Section 16(1) of the Prescription Act states, that, prescription shall commence to run as soon as a debt is due.

The Prescription Act further clarifies when a debt can be said to be due. Section 16(3) states as follows:

“A debt shall not be deemed to be due until the creditor becomes aware of identity of the debtor and of the facts from which the debt arises:
Provided that a creditor shall be deemed to have become aware of such identity and of such facts, if he could have acquired knowledge thereof by exercising reasonable care.”

The defendant's counsel submitted, that, the second plaintiff's cause of action, arising out of the results of the examinations at issue, would start running from the year the result was received. In that regard, the prescription periods for the two remaining claims would be as follows:

(i) Claim arising in 2009 would be 2012; and

(ii) The claim arising in 2010 would be sometime in 2013.

I agree with the defendant's analysis.

The claims should have been instituted within three (3) years. The second plaintiff knew, or was aware, of the identity of the debtor and of the facts giving rise to the cause of action such that he had no excuse for failing to institute his claim timeously.

This is buttressed by the fact, that, the second plaintiff detailed, in his declaration, the follow ups he made with the relevant authorities during the years 2007, 2008, and 2009.

Furthermore, the second plaintiff indicated, that, he had commenced proceedings in 2012 but had to withdraw the summons as they were fatally defective. This case was instituted on 29 June 2015 – three (3) years later after the initial proceedings which were withdrawn.

Clearly, the second plaintiff's claim has prescribed.

As the prescription period is stipulated by statute, the court has no power to extend the period or condone the delay. The court thus has no choice but to uphold the special plea of prescription raised by the defendant.

The defendant had further raised the defence of his joinder, alleging, that, the defendant, being the Director of ZIMSEC, should not have been cited in these proceedings, the body itself, being duly empowered by statute to sue or being sued in its own right.

Counsel for the defendant argued further, that, the defendant had no direct and substantial interest in the dispute. Even if an order was to be granted, the defendant would not be required to do something to give effect to the order.

Rule 87(1) of the High Court Rules 1971 makes it clear, that, no cause or matter shall be defeated by reason of the misjoinder or non-joinder of any party; the court being enjoined in its discretion to determine the issues or questions in dispute in so far as they affect rights and interests of persons who are parties to the matter.

Sub rule 2 empowers the court, at any stage of the proceedings, on such terms as it thinks just, and either of its own motion or an application -

(a) Order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party.

In essence, misjoinder or non-joinder of a party is not fatal to the cause of action per se. It remains intact as against the necessary parties.

The issue of whether the defendant was improperly or unnecessarily cited as a party to those proceedings can only be determined by a further consideration: this is whether that party has a direct and substantial interest in the dispute.

In Burdock Investments (Pvt) Ltd v Time Bank Zimbabwe Ltd & Others HH194-03…, in describing that interest, MAKARAU J…, remarked, that, the interest must be such that judgment cannot be carried into effect without adversely affecting the position of the party misjoined or without requiring the party misjoined to do something to give effect to the judgment. The required interest, she explained, must be based on a direct legal relationship between the parties such that the parties must owe each other obligations to the extent that one can compel the other to perform or discharge duties.

The court agrees with the defendant's submissions, that, the defendant has no direct or substantial interest in the dispute.

As the claim arises out of the issue of examination results, the correct body to deal with the matter or to answer the cause would be the Zimbabwe School Examinations Council, a body corporate capable of suing and being sued in its corporate name.

This body is the one mandated, by statute, to conduct examinations, confer or approve conferment of certificates. The defendant does not have to do something, or anything, to give effect to the order if it were to be granted.

There being no direct legal relationship between the second plaintiff and the defendant, to the extent that one can compel the other to perform or discharge duties, the court finds that it was not necessary to join the defendant to these proceedings; in that regard, the claim against him is again dismissed.

The defendant had also excepted to the plaintiff's summons and the declaration on the grounds that it does not disclose a cause of action, either in Contract Law or in Delict.

Further, it did not comply with Rules 11(c); 99(c) and 109 of this court's rules. The defendant averred, that, the declaration is argumentative and sets out historical and evidentiary facts not necessary in a pleading.

As the decision to dismiss the second plaintiff's claim has already been made, the court will briefly deal with this issue.

Rule 11 of the High Court Rules stipulates, that, every summons shall contain -

“A true and concise statement of the nature, extent, and grounds of cause of action and of the relief, or remedies sought in the action.”

Rule 99(c) of the High Court Rules states that -

“A pleading shall -

(c) Contain a statement, in summary form, of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.”

A look at the summons itself clearly shows that there is no concise statement of the nature, extent, and grounds of cause of action and of the relief sought.

I fully identify with the defendant's observations.

The declaration, which is meant to amplify matters raised in the summons, is not only confusing, full of evidence, fraught with allegations against named individuals not party to the proceedings, but also contains what seems to be legal research of sorts.

In one instance, the second plaintiff seeks to base his claim under delict (apparent on the face of the summons), and, in another instance, in his declaration, he seeks to rely on contract.

In both instances, the material averments necessary to sustain the claim under the stated branch of law are glaringly absent.

In my view, the second plaintiff himself is not clear as to the basis of his claim.

The defendant is left at a loss as to what case he has to answer to.

Even the relief sought is problematic and not competent at law.

One fails to comprehend the claim and relief moreso phrased as “professional negligence for mental suffering US$1,200,000.”

This is further compounded by the declaration which brings out all sorts of causes of action - all not supported by the material facts. The summons and declaration disclose no cause of action; the claim is bad in law and incurably bad....,.

The following order is granted:

1. The special pleas raised by the defendant be and are hereby upheld.

2. The first and second plaintiffs claims against the defendant be and are hereby dismissed.

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

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.

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.

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.

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.

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.

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.

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.

This is an appeal against the whole judgment of the High Court handed down on 1 June 2020 granting an interdict in favour of the first and second respondents (Lilian Timveos and Thabitha Kuhumalo).

On 3 April 2020, the second appellant (Douglas Mwonzora), in his capacity as Secretary General of the first appellant (Movement for Democratic Change-Tsvangirai), sent identical letters to the third and fourth respondents (Speaker of the National Assembly and President of the Senate) recalling the first and second respondents from the Parliament of Zimbabwe.

The reason for the recalls was that they had ceased to be members of the first appellant, Movement for Democratic Change-Tsvangirai (MDC-T).

On 5 May 2020, the third and fourth respondents informed their respective houses of the receipt of the second appellant's letter and vacancies created thereby.

The Zimbabwe Electoral Commission (ZEC) was duly informed of the same so that the electoral process could begin in terms of section 39(3) of the Electoral Act [Chapter 2:13] (herein after referred to as the Act).

The first and second respondents were aggrieved by the recalls. They approached the High Court with an urgent chamber application in a bid to stop the appellants from replacing their seats in Parliament.

The provisional order they sought was couched as follows:

“TERMS OF FINAL ORDER SOUGHT

It is ordered that:

1. It is hereby declared that first, second, and third respondents or anyone acting through them or on their behalf have no power or authority to replace second and third applicants (sic) who are members of the MDC–Alliance as members of the Senate and National Assembly respectively by members of the MDC-T, or any of their appointees and that such replacement of applicants is unlawful.

2. Pending a resolution of the applications in Case Nos. HC2308/20, HC2351/20 and HC2352/20 the replacements of applicants as Members of Parliament by the respondents be and is hereby stayed.

3. Respondents to bear the costs, jointly and severally, the one paying the other to be absolved.

Pending confirmation or discharge of the provisional order, it is ordered that:

1. First, second, and third respondents or anyone acting through them or on their behalf be and are hereby interdicted, barred, and stopped from replacing applicants as members of the Senate and National Assembly, respectively, by members of MDC-T or any of their appointees.

2. Sixth respondent be temporarily interdicted from Gazetting the existence of vacancies in applicants Constituencies for purposes of taking steps to have them filled by nominees of first, second, and third respondents.”

In their founding affidavit, the first and second respondents alleged that they did not belong to (MDC-T) but to Movement for Democratic Change Alliance (MDC-A) led by Nelson Chamisa, a party completely different from MDC-T.

According to them, only MDC-A could recall them from Parliament.

They further alleged that they were nominated to be voted into Parliament under MDC-A.

In opposing the application, the second appellant (Douglas Mwonzora) contended, that, the first appellant (MDC-T) was entitled to replace the first and second respondents as they were voted into office under the MDC-T party.

Further, he averred that the relief sought by the first and second respondents had an effect of interfering with the first appellant's right to replace its own members of Parliament.

He further stated, that, MDC-A is a pre-election pact of seven political parties that were constituted in terms of a Composite Political Agreement. The nominated candidates did not individually belong to the MDC-A, but to their respective political parties which formed the Alliance.

Further, he averred that the matter was not urgent.

The third appellant (Dr. Thokozani Khupe) raised the following preliminary points, that:

(i) The certificate of urgency was defective in that it did not state the date on which the need to act arose;

(ii) The Zimbabwe Electoral Commission ought to have been cited as a party and not citing the Chairperson;

(iii) The matter was not urgent as the founding affidavit did not have a cause of action;

(iv) There was material non-disclosure of the judgment under SC56-20 which nullified the appointment of Nelson Chamisa as president;

(v) The interim and final relief sought was the same;

(v) The court could not grant interim relief as the vacancies should be filled within 90 days.

On the merits, the third appellant associated herself with the arguments raised by the second appellant in as much as the argument that MDC-A is not a political party on its own.

She further averred, that, the first and second respondents have an alternative remedy which was to have the main matter resolved expeditiously.

The third and fourth respondents (Speaker of the National Assembly and President of the Senate) also filed their opposition.

In their opposition, they averred that the matter was not urgent as the alleged urgency was self-created.

They further contended, that, the High Court did not have jurisdiction to entertain the matter as the matter was a constitutional one.

They submitted, that, the first and second respondents case was based on the allegation that Parliament failed to fulfil its constitutional obligations by violating section 129(1)(k) of the Constitution. This allegation therefore placed the matter within the exclusive jurisdiction of the Constitutional Court in terms of section 167(2)(d) of the Constitution.

The court a quo dismissed all the points in limine.

It held that the certificate of urgency was not defective as it contained crucial information relating to the fears of the first and second respondents.

It further held that the matter was urgent.

On the question of non-citation of the Zimbabwe Electoral Commission (ZEC) the court a quo held, that, the citation of the Chairperson of ZEC, instead of the Zimbabwe Electoral Commission was proper.

It reasoned, that, the citation of the Zimbabwe Electoral Commission (ZEC) in legal proceedings is governed by section 14 of the Electoral Act which provides that the State Liabilities Act [Chapter 8:14] applies whenever ZEC is to be cited in legal proceedings.

The State Liabilities Act provides that when suing a Ministry, the Minister is to be cited.

The court held, that, equating the Zimbabwe Electoral Commission (ZEC) to a Ministry, the citing of the Chairperson of ZEC is proper.

In this regard, the court a quo also relied on the case of Shumba & Anor v ZEC & Anor 2008 (2) ZLR 65 (S)...,.

On the issue of material non-disclosure, the court a quo held that judgments of the courts are in the public domain.

It further held that the Supreme Court judgment declared what the position in the MDC was and this did not pertain to the expulsion of the first and second respondents from Parliament.

It also found that the substance of the interim relief sought and the final order sought was not the same.

On the merits, the court a quo found that the first and second respondents had established a prima facie right which must be protected. It thus granted the order on the premise, that, the first and second respondents had established a prima facie case for the grant of the provisional order.

The order granted reads as follows:

“Pending the determination, or disposal by this Court, of the proceedings under the reference case nos. HC2351/20 and HC2352/20, the first, second and third respondents, or anyone acting through them, or on their behalf, shall refrain and desist from, and they are hereby interdicted, barred, and restrained from submitting any nomination papers in terms of section 39(4)(b) of the Electoral Act [Chapter 2:13], or submitting or supplying the names of any other person for the purposes of filling up any perceived vacancies in the Parliament of Zimbabwe in respect of the seats held by the first and second applicants in the Senate and National Assembly, respectively, as at 3 April 2020.”

Dissatisfied with the decision of the court a quo, the appellants noted this appeal. The appellants raised ten (10) grounds of appeal.

In motivating the appeal, counsel for the appellants, on reflection, abandoned the first two grounds relating to findings on urgency. He also seemed to have abandoned grounds 4 and 10 as he did not address these grounds.

The grounds that remained pertained to:

(i) The findings that the joinder of the Zimbabwe Electoral Commission (ZEC) was not necessary;
(ii) That, the interim relief was not the same as the final relief;
(iii) That, the court a quo had jurisdiction to grant the interdict as it did not interfere with the process by the Zimbabwe Electoral Commission (ZEC); and
(iv) That, the respondents had established a case for the interdict.

Before counsel could make detailed submissions on the remaining grounds of appeal, the court drew the attention of counsel for the parties to the order granted by the court a quo and whether such was in sync with the relief the first and second respondents had approached the court for.

In addressing this point, counsel for the appellants submitted that though the grounds of appeal had not succinctly captured this anomaly, grounds 8 and 9, on the interim relief being the same as the final relief, were in fact intended to address the fact that the order granted was not proper as it was final in nature when the respondents had only sought a provisional order.

He further submitted, that, the court a quo erred in granting a final order upon a finding that only a prima facie case had been established.

It was his view that this Court may exercise its powers in terms of section 25 of the Supreme Court Act [Chapter 7:13].

As regards the citation of the Chairperson of the Zimbabwe Electoral Commission (ZEC) and not ZEC, counsel for the appellants submitted that the court a quo also erred in finding that the joinder of the Zimbabwe Electoral Commission was not necessary and the non-joinder was not fatal.

He also submitted, that, the court a quo erred in law in not finding that it had no jurisdiction to interdict a lawful process, namely, that it could not interdict the filling of vacancies that have arisen by operation of law.

Counsel for the first and second respondents conceded, that, the court a quo erred by granting a final order based on a finding that the first and second respondents had only established a prima facie case.

He submitted, that, the only amendment he made to the interim relief sought was the abandonment of paragraph 2 which sought to temporarily interdict the Zimbabwe Electoral Commission (ZEC) from gazetting the existence of vacancies in their respective constituencies. There was thus no other amendment to their prayer warranting the order that was granted.

He confirmed that what the court a quo granted was not what his clients had approached the court for.

Just as with the appellants counsel, he submitted that he only saw that the court had granted such an order upon reading the judgment.

In the circumstances, he was not averse to this Court exercising its powers in terms of section 25 of the Supreme Court Act in resolving the irregularity.

Regarding the citation of the Chairperson of the Zimbabwe Electoral Commission (ZEC) instead of ZEC, counsel insisted that the citation or joinder of the Zimbabwe Electoral Commission was not necessary, and failure to do so was not fatal, as no order was made against it.

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 client would abide by the court's decision, there was, however, an unsatisfactory position of the law regarding whether the Zimbabwe Electoral Commission (ZEC) should have been cited or not.

In this regard, he alluded to section 14 of the Electoral Act as amended by Act 3 of 2012 and Shumba & Anor v ZEC & Anor 2008 (2) ZLR 65 (S).

He juxtaposed these with section 4A of the Electoral Act as amended by Act 3 of 2012 on the corporate status of the Zimbabwe Electoral Commission (ZEC) and the Constitution of Zimbabwe Amendment (No.20) Act of 2013 which provides corporate status for independent commissions, of which ZEC is one.

Upon a careful consideration of the submissions made we are of the view that this appeal may be disposed of on the basis of the order granted.

The issue of citation is only pertinent in as far as it is necessary to bring to the fore the inconsistency alluded to.

The issues for determination may thus be restricted to:

(i) Whether or not the order granted by the court a quo was proper in the circumstances.

(ii) Whether or not the court a quo erred in finding that the citation of the chairperson of the Zimbabwe Electoral Commission (ZEC) was proper and that non-joinder of the Zimbabwe Electoral Commission, as a party, was not fatal to the proceedings as it was not necessary in terms of section 14 of the Electoral Act.

The appellants counsel submitted, that, the order granted by the court a quo was not in sync with the relief that the first and second respondents had approached the court for.

The order was not a provisional order at all and should not have been granted.

The appellants counsel submitted, that, the first and second respondents, in the urgent chamber application, had only established a prima facie case.

Counsel for the first and second respondents conceded, that, whilst his clients approached the court a quo seeking a provisional order, the court a quo granted a final order. He, in effect, conceded that the respondents had set out to establish a prima facie case for the grant of the interim relief.

That the order granted is not the one the first and second respondents sought is thus common cause.

In our view, in dealing with this case, it is necessary to restate the law relating to the grant of interdicts.

It is a settled principle, that, for a party to be entitled to an interdict, he or she has to satisfy the court that their particular case favours such with regards to the requirements for the granting of the interdict.

An interdict is a summary court order, usually issued upon application, by which a person is ordered either to do something, stop doing something, or refrain from doing something in order to stop or prevent an infringement of a certain right.

The requirements for an interim interdict were set out in Setlogelo v Setlogelo 1914 AD 221…, as:

“(i) A prima facie right, even if it be open to some doubt;

(ii) A well-grounded apprehension of irreparable harm if the relief is not granted;

(iii) That the balance of convenience favours the granting of an interim interdict;

(iv) That there is no other satisfactory remedy.”

If the above conditions are met, then, the court may grant the provisional order sought and provide for a return date for the parties to then make arguments on whether or not the final order sought can be granted.

On the return day, a party ought to establish a clear right as opposed to a prima facie right.

The requirements for a final interdict, on the other hand, are:

(i) A clear right;

(ii) Irreparable harm actually committed or reasonably apprehended; and

(iii) The absence of an alternative remedy.

In HERBSTEIN and Van WINSEN, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa, 5th Ed 2009…, the authors, whilst noting the difficulty in defining the term 'clear right' acknowledged that:

“What is meant by the phrase is a right clearly established; that the word 'clear' relates to the degree of proof required to establish the right and should strictly not be used to qualify 'right' at all;…, a clear right must be established on a balance of probabilities.”

From the authorities, it is clear that where a final interdict is sought, the right must be established clearly as opposed to it being prima facie established.

Thus, the word 'clear' in the context of rights in an interdict does not qualify the right but rather expresses the scope to which the right has been established by evidence on a balance of probabilities.

A prima facie case, on the other hand, does not have to be established on a balance of probabilities but can be granted even though open to doubt.

A provisional order granted on the basis of a prima facie case affords the parties opportunity to fully argue their case on the return date.

In Blue Rangers Estate (Pvt) Ltd v Muduwiri SC29-09, this Court aptly stated that:

“For an order to have the effects of an interim relief, it must be granted in aid of, and as ancillary to the main relief which may be available to the applicant on final determination of his or her rights in the proceeding.”

It is thus important to ascertain whether the order being granted affords the parties that opportunity to argue on the main relief that has to be proved on a balance of probabilities in the proceedings before that court.

As the basis upon which the interim and the final order are granted are different, it follows, that, where the relief being sought as an interim interdict has essentially the same effect as the final order, such is generally improper.

The grant of an interim relief, which is essentially the same as the final relief, would lead to that order being set aside.

In Registrar General of Elections v Combined Harare Residents Association & Anor SC07-02…, CHIDYAUSIKU CJ succinctly stated the position as follows:

“On that basis also, I would set aside the interim relief granted by the court a quo. In my view, the relief sought and granted in the draft interim order is the same as that sought on the return day.

Where the relief sought as interim relief is essentially the same as the relief sought on the return day, the court's correct approach should be to proceed by way of an urgent court application seeking final relief: see Econet v Mujuru HH58-97.”

In casu, the court a quo misdirected itself in granting a relief that had not been sought and which required no return date when all that the first and second respondents had established was a prima facie case and not a clear right on a balance of probabilities.

It is common cause that the first and second respondents approached the court a quo seeking an interim relief as outlined above. The only amendment they made was to abandon the paragraph interdicting the Zimbabwe Electoral Commission. Thus, their draft order remained as before save for the removal of paragraph 2 of the interim relief.

Thus, whilst the first and second respondents sought interim relief pending the confirmation or discharge of the provisional order on the return day, the court a quo went on a frolic of its own and granted them a final order that they had not asked for.

In doing so, the court simply plucked paragraph 2 of the draft final order and embellished it with verbosity after which it granted the order under the pretext that it was a provisional order.

The order granted did not require a return day and had no incentive for the parties to seek to come to court on a return date as it was granted pending the conclusion of other cases with their own procedures that were yet to be finalised.

The effect of the order is that the first and second respondents obtained a final order, in this matter, on merely establishing a prima facie case.

There was nothing to return to court for at all.

Where the order does not provide for a return date, it is a final order as regards those proceedings and such must only be granted where a clear right has been established on a balance of probabilities.

In Nzara & Others v Kashumba & Others SC18-18 this Court reiterated the need for a court to adhere to issues placed before it and not to go on a frolic of its own on issues not motivated by the parties. At page 13-14 of the cyclostyled judgment, the court aptly stated that:

“The function of a court is to determine the dispute placed before it by the parties through their pleadings, evidence and submissions. The pleadings include the prayers of the parties through which they seek specified orders from the court.

This position has become settled in our law.

Each party places before the court a prayer he or she wants the court to grant in its favour. The Rules of court require that such an order be specified in the prayer and the draft order. These requirements of procedural law seek to ensure that the court is merely determining issues placed before it by the parties and not going on a frolic of its own.

The court must always be seen to be impartial and applying the law to facts presented to it by the parties in determining the parties issues.

It is only when the issues or the facts are not clear that the court can seek their clarification to enable it to correctly apply the law to those facts in determining the issues placed before it by the parties.

The judgment of the court a quo unfortunately fell short of these guiding principles.

In seeking to find middle ground, the court a quo granted orders which had not been sought by either party. It granted the first and fourth respondents a further grace period and a referral to arbitration. The first and fourth respondents had not sought such orders.

Such orders cannot be sustained at law….,.

Where a court is of the view that an order not sought by the parties may meet the justice of the case, it must put that possible relief to the parties and allow them an opportunity to address it on such an order.”…,.

In casu, in granting an order whose genesis is in paragraph 2 of the draft final order, the court a quo indirectly accepted, that, the interim relief sought was essentially the same as the final relief despite its earlier ruling that the two were not the same.

The court a quo found itself entangled in a web of uncertainty on what order to give.

In the process, it considered factors not placed before it and granted an order which was final in effect without seeking the input of the parties on the order it intended to grant as this order was materially different from the order sought and upon which the parties had argued.

Whilst Rule 240 of the High Court Rules 1971 provided, that, in granting an order, the court may vary the order, this is not a licence to substitute a provisional order sought by a litigant with a final order.

Any variation of the order sought must still leave the order granted as a provisional order subject to confirmation or discharge on the return date.

The order was thus improper and cannot stand. It must be set aside.

In view of this irregularity, there is no proper appeal before us....,.

This composite application for condonation and extension of time for leave to appeal, and leave to appeal raises an interesting question.

It is whether an applicant who seeks and is denied condonation for the late filing of an application for leave to appeal in a lower court and therefore fails to make the actual application for such leave in that court, can procedurally seek leave to appeal from a judge of this Court in chambers.

The applicant filed the present application on 25 March 2021.

It seeks condonation and extension of time for leave to appeal and leave to appeal against the original judgment handed down by the Labour Court on 24 February 2017.

The application is opposed by both respondents.

The applicant is a constitutional body established in terms of section 254 of the Constitution of Zimbabwe 2013. It is charged with the responsibility of combating corruption in all its manifestations in Zimbabwe.

The two respondents are former employees of the applicant. The first respondent was a General Manager Finance, Administration and Human Resources and the second respondent was a Chief Accountant.

The two were charged with misconduct, found guilty and discharged from employment on 14 July 2016.

They filed an application for review against the composition and findings of the Disciplinary Committee. The review application was based on 10 grounds. They sought, firstly, the nullification of their suspension, verdict and sentence, and, secondly, their reinstatement to their previous positions on full benefits.

The applicant refuted each and every ground of review.

On 24 February 2017, the court a quo dismissed the first three grounds of review that impugned the procedural propriety of amending the statute under which they were charged from the Anti-Corruption Act [Chapter 9:22] to the Labour (National Employment Code of Conduct) Regulations, 2006, SI15 of 2006 model law.

It found, on the authority of Standard Chartered Bank v Matsika 1996 (1) ZLR 12 (S), that, the amendment of the statute under which they were charged, from the Anti-Corruption Act to the National Employment Code Model, was proper.

The amendment did not alter the charges of domiciling Treasury funds in their own company instead of in the account of the applicant nor was it prejudicial to the two as they were afforded adequate time, of at least a month, within which to respond to the charges and prepare their defences.

The Labour Court, however, upheld grounds 4 and 5, which it found to be dispositive of the review application without considering the remaining grounds of review.

It found that the Disciplinary Committee was improperly constituted, and held, on the authority of Madoda v Tanganda Tea Co. 1999 (1) ZLR 374, that, it was voidable at the instance of the prejudiced respondents. It set aside the proceedings and remitted the matter to a properly constituted Disciplinary Committee.

The remittal was based on the sentiments of MUCHECHETERE JA in Standard Chartered Bank of Zimbabwe Ltd v Chikomwe & Ors SC77/2000, SC77-00 that:

“…, reinstating the respondent in the circumstances implies a finding that respondents were innocent of the charges of misconduct against them by the hearing officers…,. A setting aside of the proceedings of the disciplinary committees should therefore lead the parties to the same position before the hearing in the disciplinary committees - appeals before a properly constituted disciplinary committee.”

The two respondents therefore remained on suspension but on full salary and benefits.

In terms of Rule 36 of the Labour Court Rules SI59/06, the applicant had 30 days from the date of the judgment within which to apply for leave to appeal to the Supreme Court against the judgment of 24 February 2017.

It failed to do so.

On 5 October 2017, it applied for the upliftment of the bar and condonation for late filing of an application for leave to appeal.

It did not co-join this application with an application for leave to appeal.

On 23 February 2018, the Labour Court dismissed the application for upliftment and condonation.

The requirements for such an application were the extent of the delay, the reasonableness of the delay and prospects of success, and the absence of prejudice to the other parties.

The Labour Court found the delay inordinate and the explanation for the delay unreasonable. It was unable to assess whether or not there were prospects of success in the absence of a draft notice of appeal. It reasoned, that, without the draft notice of appeal, it was unable to ascertain whether the grounds of appeal were based on points of law as mandated by section 92F(1) of the Labour Act [Chapter 28:01].

This was despite the fact, that, the applicant had raised substantive points of law impugning the review judgment.

The Labour Court clearly abdicated its responsibility to determine whether, on the averments and arguments submitted in the application for condonation, there were prospects of success.

However, having found the application to be defective for lack of a draft Notice of Appeal, the proper course of action that the Labour Court should have taken was to strike off the application from the roll and not to dismiss it.

Faced with this legal conundrum, on 16 March 2018, the applicant sought leave to appeal against the upliftment and condonation judgment before the Labour Court.

The application was heard on 25 June 2018 and dismissed on 17 August 2018. The basis for the dismissal was that the applicant failed to demonstrate that the intended appeal raised a question of law and that there were prospects of success on appeal.

On 28 August 2018, the applicant timeously sought leave to appeal against the upliftment and condonation judgment.

It did not seek leave to appeal against the review judgment.

On 19 October 2018, the application was struck off the roll by HLATSHWAYO JA…, for lack of the record of proceedings pertaining to the upliftment and condonation proceedings.

That record was availed by the Labour Court on 7 March 2019.

The applicant then filed an application for condonation for the late filing of leave to appeal in SC203/2019.

The matter was set down before MAVANGIRA JA on 25 August 2019.

She wrote a detailed 8 paged judgment, SC91-19, in which the application was struck off the roll with costs for the reason that it was lodged under the wrong Rule.

In the body of the judgment, MAVANGIRA JA lamented the fact that the applicant was assailing the upliftment and condonation judgment instead of the review judgment.

She found it absurd, that, she was being requested to grant leave to appeal the upliftment and condonation judgment, which, once granted, would then enjoin the Supreme Court to determine whether or not to direct the Labour Court to grant condonation and hear the actual application for leave.

She intimated that the applicant was enjoined by section 92F(3) of the Labour Act to seek leave from a judge of the Supreme Court, in chambers, once the Labour Court declined to grant it condonation for the late filing of an application for leave to appeal.

On 5 December 2019, the applicant sought condonation and extension of time to appeal under Rule 43(3) in SC685/19.

The application was struck off the roll by HLATSHWAYO JA, on 24 January 2020, on the ground that it should have been brought as a composite application.

On 29 May 2020, under SC201/20, the applicant filed yet another application.

On 16 July 2020, GUVAVA JA removed it from the roll with costs and ordered that the matter could only be reinstated upon the payment of the respondents taxed costs in SC685/19.

The taxed costs were duly paid.

The re-enrolled application was heard by MAKONI JA on 23 September 2020. Apparently, the draft Notice of Appeal did not identify the judgment sought to be appealed. The applicant, therefore, withdrew the application and tendered the respondents costs on the scale of legal practitioner and client.

The preceding five applications were lodged against the upliftment of the bar and condonation judgement.

The present application is the first one that seeks condonation and extension of time to file an application for leave to appeal and the application for leave to appeal against the review judgement.

It will be recalled that the review judgment was handed down by the Labour Court on 24 February 2017.

It is common cause that the applicant never did seek leave to appeal from the Labour Court after its stand-alone application for condonation and extension of time to file leave to appeal was dismissed.

Counsel for the respondents took two points in limine on that very point:

(i) The first was that the applicant could only make a chamber application for leave to appeal to a judge of this Court after such leave had been denied by the Labour Court. He therefore submitted that the application was improperly before me.

(ii) The second was that the sole ground of appeal sought to be raised was so vague as to not specify clearly and in un-ambiguous terms exactly what case the respondent must be prepared to meet. He argued that the ground of appeal, being fatally defective, rendered the application a nullity.

Per contra, counsel for the applicant contended, that, the ground of appeal was clear and concise and not vague.

Regarding the second preliminary point, he contended that the application was properly before me. He premised his argument on the lamentation of MAVANGIRA JA in SC91/94.

I turn to consider the diametrically opposed arguments....,.

The second preliminary point attacks the propriety of the sole ground of appeal, which reads as follows:

“The court a quo erred and misdirected itself in finding, that, the disciplinary committee was improperly constituted.”

The relief sought is the success of the appeal with costs, the setting aside of the judgment a quo, and its substitution with the dismissal of the application for review.

I agree with counsel for the respondents, that, the ground of appeal does not particularize the basis for the complaint. It is unclear whether the ground attacks a factual finding or a legal finding.

In my view, the ground of appeal is incomplete and therefore vague.

It falls squarely into the category of defective grounds of appeal that are bad at law; which, in the words of LEACH J in Sonyongo v Minister of Law and Order 1996 (4) SA 384…,:

“Specify the findings of fact or rulings of law appealed against so vaguely as to be of no value either to the Court or to the respondent, or, if they, in general, fail to specify clearly and in un-ambiguous terms exactly what case the respondent must be prepared to meet.”

Indeed, as pertinently observed by MAKONI JA in Mahommed v Kashiri SC85-19…,:

“The applicant's first ground of appeal simply complains that the court below was wrong in making a particular finding and should have, instead, made a different finding. The basis of the attack is not stated….,. Further, the ground of appeal does not indicate why the finding of fact or ruling is to be criticized as wrong, is said to be wrong.”

And, as it was so eloquently pitched by GARWE JA in Zimbabwe Open University v Ndekwere SC52-19…,.:

“The gross aberration on the facts was not articulated. It remained a bald allegation impugning findings of fact. It did not state how and in what way the arbitrator grossly erred in reaching the conclusion that was sought to be impugned. In these circumstances, it remained an attack against a simple finding of fact, and, clearly, does not raise any issue of law.”

All the above sentiments apply to the sole ground of appeal to be raised by the applicant on appeal.

The defective ground of appeal renders the application before me a nullity.

It is trite that a nullity cannot be condoned or amended: see Yunus Ahmed v Docking Station Safaris (Pvt) Ltd t/a CC Sales SC70-18...,.; Robert Dombodzvuku v CMED (Pvt) Ltd SC31-12...,.; and S v Jack 1990 (2) ZLR 166 (S)...,.

The composite application that seeks condonation and leave to appeal would have been properly before me but for the defective and irredeemable ground of appeal embodied in the draft Notice of Appeal.

Resultantly, the fatally defective Notice of Appeal renders the present application a nullity.

In the circumstances, I cannot delve into the merits of the composite application. The application ought, therefore, to be struck off the roll....,.

This is an application for reinstatement of an appeal, which was not deemed to have been dismissed, but was, by consent, struck off at the hearing on 24 November 2020 in SC99-20, for the reason (per paragraph 18 of the applicant's founding affidavit) that the applicant “had failed to file heads of argument as required by the rules of this Honourable Court.”

The applicant deliberately did not identify the Rule under which he lodged the application.

However, in oral argument, counsel for the applicant contended, that, it was filed in terms of paragraph 5 of Practice Direction No.3 of 2013 and not Rule 70(2) of the Supreme Court Rules 2018.

The main protagonists in this dispute are the applicant and the first respondent. The dispute turns on the scope and extent of the first respondent's shareholding in Adam Bede Manufacturing (Pvt) Ltd (the third respondent).

The second respondent is the majority shareholder in the third respondent.

The first and second respondents, with the assistance of a promoter of companies (Hove), concluded a Shareholders Agreement in which they became equal shareholders in Extreme Security Group (Pvt) Ltd (the Special Purpose Vehicle or SPV).

They further agreed to purchase the entire equity of Hunting Furniture (Pvt) Ltd t/a Adam Bede (Hunting) through the special purpose vehicle (SPV).

The two prospective shareholders soon realized that the participation of the first respondent would, at that time, be in conflict with his employment contract.

They sought to make Hove the first respondent's nominee shareholder, but, for professional reasons, he declined to undertake that role.

On the recommendation of the second respondent, and, again, with the help of Hove, the applicant became the first respondent's nominal shareholder in the special purpose vehicle (SPV).

The special purpose vehicle (SPV) purchased Hunting Furniture (Pvt) Ltd t/a Adam Bede and re-registered it as Adam Bede Manufacturing (Pvt) Ltd (the third respondent) on 4 May 2017.

The applicant and the second respondent were registered as the sole shareholders and directors in the third respondent. They each held one share apiece. The two directors became the sole joint signatories of the third respondent's bank account.

The conflict of interest situation that had previously bedeviled the first respondent ceased.

He sought to assume his role as the true shareholder and director in the third respondent.

His efforts were vigorously resisted by the applicant, who claimed to be a 50% shareholder in the third respondent in his own right.

The first and second respondents negotiated a settlement of the dispute with the applicant.

They concluded an oral agreement in which they restructured the shareholding of the third respondent by allotting 40 shares to the second respondent, 30 shares to the first respondent, 20 shares to the applicant and reserved 10 shares to a future technical partner.

The parties then reduced the oral agreement to writing but the applicant refused to sign it.

The applicant requisitioned an Extraordinary General Meeting on 3 November 2018 for the dismissal of the first respondent as a director of the third respondent.

He defaulted the meeting.

At the meeting, the first and second respondents removed the applicant as a director and company secretary of the third respondent.

He, however, was restored to both positions, unopposed, by the High Court in HC10298/18.

Thereafter, the applicant insisted that he was a 50% shareholder in the third respondent and sought to resile from the restructured shareholding agreement.

His assertions caused the first respondent to lodge a court application in the High Court for a declaration of his rights as a shareholder and director in the third respondent.

The application was opposed by the applicant.

At the hearing, a quo, the applicant raised three preliminary points:

(i) The first was that there were material disputes of fact that could not be resolved on the papers.

(ii) The second was that several paragraphs in the founding affidavit ought to be struck out in terms of Rule 141 of the High Court Rules 1971 for being argumentative, irrelevant, inconsistent, and contradictory.

(iii) The last was that the supporting affidavit of Hove ought to be expunged from the record for the reason that he was conflicted as he had rendered professional registration services to the third respondent.

On the basis of the common cause documents filed of record, such as the draft shareholders agreement, the judgment in HC10298/18 and Form CR2 and CR14, the court a quo held that the material disputes of fact were more illusory than real and could, therefore, be resolved on the papers.

Regarding the second preliminary point, it held that the court's power to strike out the impugned pleadings, under Rule 141 of the Rules of Court, could only be exercised in action proceedings and not in application proceedings.

Lastly, that, as the deponent to the supporting affidavit was not a legal practitioner, he could not, therefore, be a conflicted witness and his affidavit could not properly be expunged from the record.

All the preliminary points were, accordingly, dismissed.

On the merits, the court a quo found, that, the first respondent had established all the essential requirements for the grant of a declaratory order.

He had a direct and substantial interest in the application. He held existing rights that were under threat from the applicant's conduct.

The applicant sought to impugn, without evidence, and appropriate to himself the primary and pivotal role played by the first respondent and the second respondent in purchasing the entire equity in Hunting Furniture (Pvt) Ltd t/a Adam Bede through the special purpose vehicle (SPV).

The court a quo further found, that, the first and second respondents had contributed US$160,000 and US$180,000, respectively, into the special purpose vehicle (SPV) for the purchase price of, and as working capital in Hunting Furniture (Pvt) Ltd t/a Adam Bede while the applicant had not made any monetary or material contributions thereto.

The court a quo, therefore, declared the first respondent to be the holder of 30 ordinary shares, against the 20 shares of the applicant and 40 shares of the second respondent, in the third respondent.

It also declared him to be a duly appointed director of the third respondent; and, as consequential relief, ordered the restoration of his name as a director on the company's letterheads.

The applicant was also interdicted from misrepresenting to “clients and associates of third respondent” the extent of his equity holding, and the status of the first respondent, in the third respondent.

Lastly, he was ordered to pay the costs of suit.

Aggrieved by the decision a quo, the applicant appealed against the whole judgment of the court a quo to this Court in SC99-20, within the prescribed period.

On 30 September 2020, a day before they were due, the applicant's legal practitioners filed heads of argument, which, ex facie, bore the correct SC case number and designations of the parties.

It was common cause that these heads were a truncated version of the heads that had been filed a quo and even embodied the parties respective designations a quo. They, also, did not relate to the grounds of appeal.

The applicant raised the following four grounds of appeal:

“1. The court a quo erred in finding for the first respondent in para 2, 3 and 4 of the order notwithstanding that such determinations were not supported by any reasons for the decision.

2. A fortiori, the court a quo erred in making an order without considering the adverse factual position presented by the now appellant which contradicted the first respondent's version and not providing reasons for accepting the first respondent's story and rejecting the appellant's rendering its decision arbitrary and capricious.

3. The court erred and grossly misdirected itself in finding that the evidence of a professional who has previously acted for a company can be accepted to support a litigant against a shareholder of the same company without being conflicted.

4. The court a quo erred in making an order declaring first respondent owner and holder of 30 ordinary shares outside legally acceptable principles and norms of property acquisition. In particular, the order of the court does not relate with the cause of action proffered.”

The relief sought by the applicant was for the appeal to be allowed and the judgment a quo set aside and substituted with the dismissal of the application with costs.

The impropriety of the heads was brought to the attention of the applicant in the first respondent's heads filed on 16 October 2020 and served on 20 October 2020.

The applicant, however, sought to remedy the defect by filing “appellant's supplementary heads of argument (enrolled for hearing on 24 November 2020)” on 19 November 2020.

At the appeal hearing, on 24 November 2020, an order was issued, by consent, striking the matter off the roll with costs.

In his opposing affidavit, the first respondent raised five preliminary points against the application:

(i) The first was that the applicant had merely headlined the application as a “Chamber Application for the Reinstatement of an Appeal” and deliberately avoided identifying the Rule under which the application was being made;

(ii) Secondly, the application did not address the prospects of success in any meaningful detail;

(iii) Thirdly, the application did not embody the order granted in SC99-20;

(iv) Fourthly, the application was filed outside the 15-day time line prescribed in Rule 70(2) of the Rules of the Supreme Court 2018; and

(v) Lastly, the founding affidavit was deposed to by the applicant's legal practitioner of record, who did not indicate that he was authorised to depose to the affidavit.

The applicant did not file an answering affidavit: nor did the parties file any heads of argument prior to the hearing of this application.

Counsel for the first respondent abided by the contentions made in the first respondent's opposing affidavit. He sought the striking off of the matter with costs on the higher scale.

Counsel for the applicant, however, argued for the dismissal of all the preliminary points at the hearing.

He argued that the application was based on paragraph 5 of Practice Direction No.3 of 2013, and not Rule 70(2) of the Supreme Court Rules 2018.

The Practice Direction provides a dies induciae of 30 days for filing a reinstatement in which a matter has been struck off for failure to abide by the Rules of the Court. On the other hand, Rule 70(2) prescribes a dies induciae of 15 days within which to file a re-instatement of an appeal that has either been deemed to have lapsed, or regarded as abandoned, or deemed to have been dismissed in terms of any provision of the Supreme Court Rules 2018.

He accordingly prayed for the dismissal of the first and fourth preliminary points.

Regarding, the third preliminary point, he contended, that, the application raised prospects of success, notwithstanding that the first respondent may be dissatisfied with the manner in which they were addressed.

These were raised in paragraphs 23 to 26 of the founding affidavit.

The thrust of these paragraphs being that the decision of the court a quo is most likely to be overturned on appeal for being contrary to the stipulations enshrined in the Articles and Memorandum of Association of the third respondent regarding the acquisition and allotment of shares in the company after registration.

Further, that the judgment was based on a draft shareholding agreement that had not been executed.

And, lastly, that the endemic material disputes of facts presented by the parties were incapable of resolution on the papers without the hearing of oral evidence.

On the failure to attach the order of this Court in SC99-20, he argued that the order, and the circumstances under which it was issued, had been adequately adverted to in paragraphs 17 and 18 of the founding affidavit.

In any event, being a document emanating from this Court, the judge, in chambers, could always call for and refer to the order.

Lastly, on the authorization of the applicant's legal practitioner of record to depose the founding affidavit on his behalf, he argued that it was trite that a legal practitioner who had personal knowledge of the procedural facts is not precluded from filing a founding affidavit for and on behalf of his client.

He also took the point that the grounds of appeal were not prolix.

This point had been raised by the first respondent in the heads of argument filed in the appeal that was struck off the roll.

Counsel for the applicant sought to rely on Afritrade International Ltd v Zimbabwe Revenue Authority SC03-21 for the further submission, that, the question of prolixity could best be raised and dealt with at the reinstated appeal and not in these proceedings.

I turn to deal with the first preliminary point, which, in my view, is dispositive of this application.

The first respondent contended, that, the failure to identify the Rule under which the application was lodged embarrassed him and prevented him from adequately responding to the application.

He did not know whether the application was properly brought as a chamber application for reinstatement of an appeal or is a disguised application for condonation and extension of time within which to file an appeal.

It was only at the hearing that counsel for the applicant pontificated that the application was premised upon paragraph 5 of the Practice Direction 3/13.

That submission immediately raises the question of the propriety of bringing the present application under this Practice Direction.

The reinstatement of an appeal is dealt with under Rule 70 of the Supreme Court Rules 2018. The Rule states that:

“70. Reinstatement of appeals generally

(1) Where an appeal is —

(a) Deemed to have lapsed; or

(b) Regarded as abandoned; or

(c) Deemed to have been dismissed in terms of any provision of these rules; the registrar shall notify the parties accordingly.

(2) The appellant may, within 15 days of receiving any notification by the registrar in terms of subrule (1), apply for the reinstatement of the appeal on good cause shown.”

Reinstatement, for a matter that has been struck off for failing to comply with a provision of the Rules of Court, is also dealt with in terms of paragraphs 3 to 5 of Practice Direction 3/13. It reads:

“Struck off the roll

3. The term shall be used to effectively dispose of matters which are fatally defective and should not have been enrolled in that form in the first place.

4. In accordance with the decision in Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLA 147 (S) and S v Ncube 1990 (2) ZLR 303 (SC), if a Court issues an order that a matter is struck off the roll, the effect is that such a matter is no longer before the Court.

5. Where a matter has been struck off the roll for failure by a party to abide by the Rules of the Court, the party will have thirty (30) days within which to rectify the defect, failing which the matter will be deemed to have been abandoned.

Provided that a judge may, on application, and for good cause shown, reinstate the matter, on such terms as he deems fit.”

The meaning of paragraph 5 was rendered by GUVAVA JA in Bindura Municipality v Mugogo 2015 (2) ZLR 237 (S)…,.

That application for reinstatement of an appeal concerned a fatally defective notice of appeal that reflected the wrong date of judgment and which had been served on the registrar of the Labour Court outside the period granted in an order for leave to appeal.

At 238G, GUVAVA JA held that:

“Where a matter has been struck off the roll because it has failed to comply with the rules of court, one cannot simply apply for reinstatement of the appeal as such an appeal is a nullity. This position has been stated in a number of decisions of this Court.”

And, at pp239E-240A, relied on Hattingh v Pienaar 1977 (2) SA 182 (O) to construe paragraph 5 of the Practice Direction:

“It seems to me that a proper interpretation of para 5 of the Practice Direction 3/13 is that the applicant must, within thirty days, rectify the defect by applying for condonation for the late noting of appeal and an extension of time within which he should comply with the rules.

He may not do so after the window period which he has been given to rectify the defect as the matter will be deemed to have been abandoned.

In this case, the applicant correctly filed an application within the prescribed period of thirty days.

However, an application for reinstatement is not the appropriate remedy….,. The appeal, having been found to be fatally defective, cannot be reinstated after being struck off the roll.

The applicant's remedy to rectify the defect is to apply for condonation and extension of time within which to file a fresh notice of appeal in terms of Rule 6 of the Supreme Court (Miscellaneous Appeals and References) Rules. He should do so within the period of thirty days provided for in the Superior Court Practice Direction.”

Counsel for the applicant argued, that, the failure to file heads in SC99-20 did not render the appeal fatally defective because it was, but for this anomaly, a complete appeal that was ripe and ready for hearing.

His argument in this respect is totally misconceived.

Were he correct, then, this Court would not have struck the matter off the roll but would have, in the exercise of its inherent power to regulate its own proceedings, have regarded it as abandoned and deemed it dismissed as prescribed by Rule 70(1)(c) of the Supreme Court Rules.

The power of this Court to act in this manner does not only arise from its inherent power to control its own rules but is clearly codified in Rule 53(3) of the Supreme Court Rules, which reads:

“53. Dismissal of appeal in the absence of heads of argument or appearance

(3) Where, at the time of the hearing of an appeal, there is no appearance for the appellant or no heads of argument have been filed by him, the court may, at its discretion, determine or dismiss the appeal and make such order as to costs as it may think fit.”…,.

Rule 53(3) of the Supreme Court Rules confers a discretion on this Court by the use of the word “may” as well as the repeated use of its synonym “discretion” to determine or dismiss the appeal.

In my interpretation of the underlined words, the power conferred on this Court is not limited to determining or dismissing. It is trite that “may” is directory.

In its proper interpretation, the subrule merely means that this Court may or may not, in its discretion, determine or dismiss the appeal.

In striking off the appeal, this Court elected to not determine or dismiss the appeal. This Court did, by consent, strike off the matter from the appeals roll for the obvious reason that the appeal was fatally defective and could neither be determined nor dismissed.

Otherwise, were there room to salvage the matter, it would simply have, by consent, removed the matter from the roll thereby making it eligible for enrolment upon request: see Maparanyanga v Van Schalkwyk SC64-02.

That the application was fatally defective is apparent from a closer scrutiny of the grounds of appeal sought to be reinstated.

All the grounds of appeal are fatally defective in two main respects: they are all vague and embarrassing.

In the words of LEACH J in Sonyongo v Minister of Law and Order 1996 (4) SA 384…,.:

“It has been held that grounds of appeal are bad if they are so widely expressed that it leaves the appellant free to canvass every finding of fact and every ruling of the law made by the court a quo, or if they specify the findings of fact or rulings of law appealed against so vaguely as to be of no value either to the Court or to the respondent, or if they, in general, fail to specify clearly and in unambiguous terms exactly what case the respondent must be prepared to meet.”

The above cited words afflict the first ground of appeal.

It is so vague as to be of no value to either this Court or the first respondent. In addition, it is also simply inconceivable, and, in fact, incorrect to raise such a ground against a well-reasoned seven paged judgment.

The second ground of appeal is so widely cast that it leaves the applicant free to attack every finding of fact and ruling of law made a quo.

The manner in which the second ground of appeal is crafted has consistently been deplored in this jurisdiction since 1957 when the case of R v Emerson 1957 R&N 743 (SR)…, was decided. See also S v Ncube 1990 (2) ZLR 303 (S)…,.; Chikura NO & Anor v Al Shams Global BVI Ltd 2017 (1) ZLR 181 (S); Econet Wireless (Pvt) Ltd v Trustco Mobile (Pty) Ltd SC43-13.

This Court has consistently reminded legal practitioners to desist from drafting such vague and unacceptable grounds of appeal.

The ground falls into the same general genre with those that litter our law reports, some of which read as follows:

“The learned magistrate erred in accepting the complainant's evidence” or “the conviction is against the weight of evidence” or “the evidence does not support the conviction” or “the conviction is wrong in law”.

The latest case that lamented this failure to draft cogent grounds of appeal was Afritrade International Ltd v Zimbabwe Revenue Authority SC03-21…,.

In that case, the unacceptable ground of appeal impugned the judgment a quo for “rejecting the evidence given on behalf of the appellant as being unreliable.”

It was struck out on appeal for being too widely cast to such an extent that it failed to identify the specific evidence that was unreliable and to which the respondent and the court could relate.

The third and fourth grounds are also afflicted by the same malady as the first. They, too, are generalized, vague, and embarrassing. They fail to specify clearly and in un-ambiguous terms exactly what case the respondent must be prepared to meet.

The law to which ground number 3 is premised on is not specified nor are the “legally acceptable principles of property acquisition” identified. These are meaningless phrases that do not impugn the specific findings of fact or law that were made by the court a quo.

To suggest, as counsel for the applicant did, that these fatally defective grounds should be foisted upon an Appeal Court for it to deal with them, is simply preposterous.

To do so, would not only constitute an abdication of my responsibility as a gate keeper beholden to permit only deserving appeals to pass through, but would also result in a complete waste of valuable judicial time for the panel that would be seized with the defective appeal.

In any event, the first ground of appeal appears to be contradicted by the second, third, and fourth grounds which, in a misogynistic way, provide the reasons for the impugned orders.

They are that the court a quo accepted the version of the first respondent because it was supported by Hove's affidavit.

In his affidavit, Hove confirmed the existence of the Share Subscription Agreement between the first and second respondents prior to the involvement of the applicant in the affairs of the third respondent.

In addition, the court a quo based its determination on the common cause fact, that, the applicant and the first and second respondents negotiated a new shareholding structure and concluded an agreement in respect of the third respondent, which was critically captured in the draft written agreement and official CR2 and CR14 documents that the applicant failed to successfully impeach.

The court a quo also found that the probabilities supported the existence of the first shareholders document and the second unsigned restructuring and share allotment agreement. These were that:

(i) Firstly, Hove would not have been approached to be the first respondent's nominee shareholder had the Hunting Furniture (Pvt) Ltd t/a Adam Bede deal been consummated by the applicant and the second respondent.

(ii) Secondly, the applicant only came into the picture after Hove had declined the nomination.

(iii) Thirdly, the applicant had failed to impeach the existence of the second agreement. His refusal to sign the agreement was inadequate to dislodge the corroborated version of the first respondent.

The recasting of the onus to the applicant to impeach the agreement was restated by PATEL JA…, in Afritrade International Ltd v Zimbabwe Revenue Authority SC03-21 …,. He stated that:

“In principle, an unsigned agreement cannot ordinarily be relied upon as creating a valid and binding contract. However, the surrounding circumstances, including prior dealings between the parties concerned, may give rise to the prima facie presumption that the terms and conditions embodied in an unsigned agreement represent the true intention of the parties. The burden then shifts to the party disputing the authenticity of the agreement to show that it was not intended to be binding. This position was affirmed by this Court in Associated Printing and Packaging (Pvt) Ltd & Ors v Lavin & Anor 1996 (1) ZLR 82 (S) at 87.”

The point I make by these references is simply, that, all the four grounds of appeal were, on 24 November 2020, fatally defective. That is why the purported appeal was “by consent” struck off the roll.

Such a defective appeal cannot be reinstated: see Bindura Municipality v Mugogo 2015 (2) ZLR 237 (S).

The applicant misconceived the application of Practice Direction 3/13. It does not apply to a fatally defective appeal that is struck off the roll.

The first preliminary point is resolutive of the whole application. It is, therefore, not necessary for me to deal with the other preliminary points or to delve into the merits of the application.