Final Orders re: Procedural Irregularities iro Approach ito Discretion to Condone, Interfere, Dismiss, Remit or Strike

SC30-22 : RIOZIM LTD and RM ENTERPRISES (PVT) LTD vs MARANATHA FERROCHROME (PVT) LTD and JUSTICE MTSHIYA (RTD)
Ruled By: MAVANGIRA JA, UCHENA JA and MATHONSI JA

This is an appeal against the whole judgment of the High Court dismissing the appellants application for the setting aside of an arbitral award in terms of Article 34 of the First Schedule to the Arbitration Act [Chapter 7:15] hereinafter referred to as the Act.FACTUAL BACKGROUNDThe detailed facts of the ...

FACTUAL BACKGROUND

The detailed facts of the case can be summarised as follows:

The two appellants and the first respondent are Zimbabwean companies registered in terms of the law. The second respondent is an Arbitrator who is presiding over a dispute between the appellants and the first respondent.

RM Enterprises (Private) Limited (the second appellant) is a wholly owned subsidiary of Riozim Limited (the first appellant).

On 19 January 2010, the first appellant and Maranatha Ferrochrome (Private) Limited (the first respondent) entered into a memorandum of Shareholders Agreement. In terms of the agreement, the first appellant was to ensure that 40 per cent of issued shares in the second appellant would be transferred, without cost, to the first respondent so that the shareholding between the parties in the second appellant would be as follows; Riozim 60 per cent and Maranatha Ferrochrome 40 per cent.

On 29 January 2017, the first respondent wrote to the first appellant informing it of its breach of the terms of the Shareholder Agreement. It informed the first appellant that it had breached clause 1.1 of the agreement as it failed to transfer chrome claims as agreed between the parties.

The first respondent gave the first appellant notice that it would, in terms of clause 30 of the agreement, refer the dispute to an arbitrator if the first appellant failed to fulfil its obligations within 30 days.

The parties agreed to refer the dispute to arbitration before the second respondent.

At the commencement of arbitral proceedings, the first appellant raised preliminary points, objecting to the second respondent's jurisdiction, the validity of the agreement, and that the first respondent's claim had prescribed.

The first appellant averred, that, there was no arbitration agreement between the first appellant and the first respondent (the parties to the agreement) and the second appellant, who was the subject of the agreement.

The first appellant averred that clause 30 of the agreement sued upon by the first respondent was between it and the first appellant and did not extend to the second appellant.

The first appellant argued, that, the second respondent had no jurisdiction to preside over the dispute.

The first appellant averred, that, by the joinder of the second appellant to the dispute, the first respondent accepted that the dispute could not be resolved through arbitration as the arbitrator could not exercise jurisdiction over the second appellant.

The last point raised by the first appellant was to the effect, that, the first respondent's claim had prescribed as the cause on which the first respondent sued had arisen in 2010, and, as such, three (3) years had lapsed.

The first respondent opposed the preliminary points.

In determining the preliminary points, the second respondent ruled, that, he had jurisdiction to preside over the matter as there was a valid Shareholder's Agreement which the first appellant accepted to be valid. He further found, that, an interpretation of the Shareholders Agreement proved that clause 27 was placed in the agreement so as to bind the second appellant impliedly and expressly to the provisions of the agreement. The second respondent also ruled, that, the second appellant being a wholly owned subsidiary of the first appellant, and the subject of the agreement, was bound by the provisions of the agreement.

For these reasons, the second respondent dismissed the preliminary objections on jurisdiction and the validity of the Shareholder's Agreement.

On the issue of prescription, the second respondent held, that, the dispute between the parties was on whether or not there were stipulated time limits for performance in the Shareholder's Agreement to indicate when the cause of action would arise and make the debt due.

The second respondent held, that, as the Shareholder's Agreement was silent on the date of performance, the appellants could not be in mora until a reasonable time for performance had lapsed after the first respondent had made demand for performance.

He further found, that, demand for performance was made by the first respondent on 30 January 2018, and, as such, the debt had not prescribed.

In the result, the second respondent made an order dismissing the points in limine raised by the appellants in proceedings before him. He ruled that he had jurisdiction to preside over the dispute between the parties and held that the first respondent's cause of action had not prescribed.

Aggrieved by the second respondent's decisions, the appellants applied to the High Court (the court a quo) in terms of Article 34(2)(b)(ii) of the Model Law for an order setting aside the second respondent's interim award.

The first respondent opposed the application and raised two preliminary points to the effect, that, the appellants could not seek the setting aside of an interim award after a period of thirty (30) days.

It was argued on its behalf, that, in terms of Article 16(3) of the Model Law, a party requesting the High Court to determine a matter of jurisdiction had thirty (30) days within which to apply for a determination on the Arbitrator's ruling.

It was further submitted, that, in this case, the appellants applied to the court a quo out of time, as the interim award was granted on 10 June 2019. Therefore, the appellants had up to 23 July 2019 to approach the High Court to determine the matter in terms of Article 16(3) of the Model Law.

The court a quo upheld the preliminary points and dismissed the appellants application on that basis.

It held that Article 34 of the Model Law was a procedure for the setting aside of a final award and not an interim award.

It further held, that, the award made by the second respondent was an interim award dismissing the first appellant's special pleas and that such an award could not be set aside as it had not terminated the arbitral proceedings.

It reasoned, that, the appellants, having failed to make their application in terms of Article 16(3) of the Model Law, realized that they were out of time and sought to resurrect their right to approach the court by relying on Article 34(3) of the Model Law.

The court held, that, the appellants conduct was dishonest and an abuse of court process as they sought to approach the court out of time under the guise of a wrong procedure.

In the result, the court a quo upheld the first respondent's preliminary points and dismissed the appellant's application.

On the issue of costs, it ordered that the appellants (who were the applicants in the court a quo) to jointly and severally, the one paying the other to be absolved, pay the first respondent's costs of suit.

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

“GROUNDS OF APPEAL

1. The learned Judge erred in law and fact in finding that the Appellants application, under case number HC8150/19, should have been brought in accordance with the provisions of Article 16 to the First Schedule to the Arbitration Act [Chapter 7:15].

2. The learned Judge erred and misdirected himself in failing to find, that, the objections by the Appellants before the Second Respondent went beyond a preliminary enquiry into the arbitrator's jurisdiction. Consequently, the Appellant could approach the High Court in terms of Article 34 to the Arbitration Act [Chapter 7:15].

3. The learned Judge erred in law and fact in failing to find, as he should have, that an arbitration award, once handed down, becomes final on all issues canvased therein, and, consequently, such issues are rendered res judicata in future proceedings.

4. The learned Judge consequently erred in law and fact in finding, as he did, that, he had no jurisdiction over the Appellant's application in case number HC8150/19.

5. As regards the Second Appellant, the learned Judge erred in failing to find, as he should have, that, Second Appellant, as a third party who was not privy to the arbitration agreement between First Respondent and First Appellant, was improperly joined before the Second Respondent.”

SUBMISSIONS MADE BY THE PARTIES

In urging the court to exercise its discretion in the appellants favour, counsel for the appellants submitted, that, the court a quo erred in dismissing the appellants application.

He argued, that, the interim award made by the arbitrator could be challenged on the basis of Article 34 of the Model Law as the award was final on the determination of the preliminary points raised by the appellants.

Counsel for the appellants further argued, that, international case law, cited in the appellants heads of argument, establishes that an interim award can be challenged under Article 34 of the Model Law.

Counsel also argued, that, the appellants could not challenge the interim award in two applications, one under Article 16 of the Model Law, on the point of jurisdiction, and, another under Article 34 of the Model Law, on the point of prescription.

He contended, that, the correct procedure was to bring one application under Article 34 of the Model Law to challenge both points and question whether or not the award was contrary to public policy.

Per contra, counsel for the first respondent argued that the judgment of the court a quo was correct.

He argued, that, the international authorities cited by the appellants cannot be applied to the present matter as the Arbitration Acts of India and Indonesia provide a definition for an award to include interim awards.

Counsel for the first respondent also argued, that, the wording of Article 34 of the Zimbabwean Arbitration Act does not extend to interim awards.

Counsel further argued, that, the appellant ought to have challenged the preliminary points under the procedure provided for in Article 16(3) of the Arbitration Act within thirty (30) days and that when the appellants failed to do so, they sought to have a second bite of the cherry by employing the wrong procedure under Article 34 of the Arbitration Act.

ISSUE FOR DETERMINATION

The only issue to be determined in this appeal is whether or not the court a quo erred in dismissing the appellants application to set aside an arbitral award in terms of Article 34 of the Model Law of the First Schedule of the Arbitration Act on the basis that the application had not been properly placed before it.

THE LAW

Section 2(3), Schedule (section 2) Model Law, Articles 16, 31(7), 32(1), 33 and 34 of the Arbitration Act are relevant to the determination of this appeal.

Section 2(3) of the Arbitration Act provides for the interpretation of the Act as follows:

“2 Interpretation

(3) The material to which an arbitral tribunal or a court may refer in interpreting this Act includes the documents relating to the Model Law and originating from the United Nations Commission on International Trade Law, or its working group for the preparation of the Model Law, that is to say, the travaux preparatoires to the Model Law, and, in interpreting the Model Law, regard shall be had to its international origin and to the desirability of achieving international uniformity in its interpretation and application.”...,.

Courts should therefore always be conscious of the need to achieve international uniformity when interpreting provisions of the Model Law. This means the Model Law's interpretation by other jurisdictions should be taken into consideration subject to the exclusion of irrelevant interpretation of modifications by those jurisdictions.

It must be stated, that, relevant interpretations of modifications by other jurisdictions which bring out the correct interpretation of the Model Law can be taken into consideration.

In the case of Courtesy Connection (Pvt) Ltd and Another v Mupamhadzi 2006 (1) ZLR 479 (H)…, MAKARAU J, commenting on the international pedigree of the Model Law, said:

“I am further persuaded to hold as I do by the fact that the Act is of international pedigree, and, certainty and finality of legal proceedings were paramount in its formulation. It would destroy both features if courts of the different countries adopting the Model Law were to be allowed to extend the period within which an award is to be set aside. Section 2 of the Act specifically provides, that, in interpreting the Model Law, regard shall be had to its international origin and to the desirability of achieving international uniformity in its interpretation and application.

On the basis of the application of the above two principles, I would hold that the right to have set aside an arbitral award under Article 34 is irrevocably lost if it is not brought within 3 months of the date of receipt by the party intending to have it set aside.”…,.

See also Mtetwa and Anor v Mupamhadzi 2007 (1) ZLR 253 (S).

Schedule (section 2) of the Model Law provides for the identification of modifications of the Model Law by our Legislature. It provides as follows:

“Schedule (Section 2) Model Law

[This Schedule contains the United Nations Commission on International Trade Law (UNCITRAL) Model Law with modifications. The modifications appear in italics.]”…,.

Modifications to the Model Law by our Legislature are italicised. Their interpretation is guided by local precedents as they are not internationally applicable.

In interpreting the Model Law, courts should therefore bear in mind the distinction between provisions which are of international application and local modifications which are only applicable within our jurisdiction.

Article 16 of the Arbitration Act, which is not italicised, except for the words “High Court” and a Latin term, and is therefore internationally applicable, provides as follows:

“ARTICLE 16 Competence of arbitral tribunal to rule on its jurisdiction

(1) The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence. A party is not precluded from raising such a plea by the fact that he has appointed, or participated in the appointment of an arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. The arbitral tribunal may, in either case, admit a later plea if it considers the delay justified.

(3) The arbitral tribunal may rule on a plea referred to in paragraph (2) of this article either as a preliminary question or in an award on the merits. If the arbitral tribunal rules on such a plea as a preliminary question, any party may request, within thirty days after having received notice of that ruling, the High Court to decide the matter, which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal may continue the arbitral proceedings and make an award.”...,.

Article 16(1) of the Arbitration Act provides, that, an arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement.

A ruling on jurisdiction can therefore include that of any objections with respect to the existence or validity of the arbitration agreement.

A reading of Article 16(1), (2) and (3) of the Arbitration Act establishes, that, issues of the existence or validity of an arbitral agreement can be included in a ruling on the Arbitrator's jurisdiction.

It must be noted that Article 16(3) of the Arbitration Act consistently refers to the arbitrator's preliminary decision on jurisdiction as a ruling, and it, at the end, distinguishes it from a decision made at the termination of the proceedings which it refers to as an award.

A party aggrieved by the arbitral tribunal's ruling, can, within thirty days, ask the High Court to decide the matter if the arbitral tribunal rules on such a plea as a preliminary question.

The arbitral tribunal can opt to determine the issue of its jurisdiction as a preliminary issue or when it gives its award on the merits.

The Article does not provide for a request to be made to the High Court to decide the matter if the ruling is made in the award on the merits.

It is apparent from the wording of Article 16(3) of the Abitration Act, that, what the High Court can decide the matter on is whether or not the arbitral tribunal has jurisdiction and the existence or validity of the arbitral agreement.

The Article does not authorise it to go beyond those issues.

The decision of the High Court, on the ruling, is final as it cannot be appealed against.

The Article makes a distinction between a ruling and an award by pointing out, that, the arbitral tribunal can make the ruling to the preliminary question or make such a ruling in its award on the merits.

It is therefore clear that the ruling is not an award as it can be made in the award on the merits, and, that while the issue of the ruling is pending in the High Court, the Arbitrator can continue with the proceedings and make an award.

A ruling on jurisdiction is therefore distinct and different from an award.

Article 31(7) of the Arbitration Act provides for other types of awards as follows;

“(7) Unless otherwise agreed by the parties, an arbitral tribunal shall have the power to make an interim, interlocutory or partial award.”

Article 31(7) is, by virtue of its being italicised, a local modification.

It is however law in Zimbabwe and has to be taken into consideration in determining the dispute between the parties in this case.

In terms of this Article, an arbitrator has power to make an interim, interlocutory, or partial award.

These are types of awards which must be accorded their appropriate status. It must be noted that the modification does not alter the distinction between rulings and awards.

Article 32(1) of the Arbitration Act provides that arbitral proceedings are terminated by a final award. It reads as follows:

“(1) The arbitral proceedings are terminated by the final award or by an order of the arbitral tribunal in accordance with paragraph (2) of this article.”...,.

It is clear from a reading of Article 32(1) that a final award terminates arbitral proceedings.

This means reference to an award, in Article 34 of the Arbitration Act, is generic and does not only refer to the setting aside of final awards. If the intention was to exclude other types of awards, the framers of the Model Law would have used the words “final award” instead of “award”.

Article 33 of the Arbitration Act provides for additional, corrected, or interpreted awards. It reads as follows:

“ARTICLE 33 Correction and interpretation of award; additional award

(1) Within thirty days of receipt of the award, unless another period of time has been agreed upon by the parties -

(a) A party, with notice to the other party, may request the arbitral tribunal to correct in the award any errors in computation, any clerical or typographical errors, or any errors of similar nature;

(b) If so agreed by the parties, a party, with notice to the other party, may request the arbitral tribunal to give an interpretation of a specific point or part of the award.

If the arbitral tribunal considers the request to be justified, it shall make the correction or give the interpretation within thirty days of receipt of the request. The interpretation shall form part of the award.

(2) The arbitral tribunal may correct any error of the type referred to in paragraph (1)(a) of this article on its own initiative within thirty days of the date of the award.

(3) Unless otherwise agreed by the parties, a party, with notice to the other party, may request, within thirty days of receipt of the award, the arbitral tribunal to make an additional award as to claims presented in the arbitral proceedings but omitted from the award. If the arbitral tribunal considers the request to be justified, it shall make the additional award within sixty days.

(4) The arbitral tribunal may extend, if necessary, the period of time within which it shall make a correction, interpretation, or an additional award under paragraph (1) or (3) of this article.”

The reference to corrected, interpreted, and additional awards in this Article introduces other types of awards provided for in the Model Law. These awards should be accorded their appropriate status when interpreting Article 34 of the Arbitration Act's reference to an award.

Article 34 of the Arbitration Act provides as follows:

“ARTICLE 34 Application for setting aside as exclusive recourse against arbitral award

(1) Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paragraphs (2) and (3) of this article.

(2) An arbitral award may be set aside by the High Court only if -

(a) The party making the application furnishes proof that -

(i) A party to the arbitration agreement referred to in article 7 was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it, or, failing any indication on that question, under the law of Zimbabwe; or

(ii) The party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(iii) The award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or [Subparagraph amended by Act 14/2002]

(iv) The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Model Law from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Model Law; or [Subparagraph amended by Act 14/2002]

(b) The High Court finds, that -

(i) The subject-matter of the dispute is not capable of settlement by arbitration under the law of Zimbabwe; or

(ii) The award is in conflict with the public policy of Zimbabwe.

(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the award or, if a request had been made under Article 33, from the date on which that request had been disposed of by the arbitral tribunal.

(4) The High Court, when asked to set aside an award, may, where appropriate, and so requested by a party, suspend the setting aside proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the arbitral tribunal's opinion will eliminate the grounds for setting aside.

(5) For the avoidance of doubt, and without limiting the generality of paragraph (2)(b)(ii) of this article, it is declared that an award is in conflict with the public policy of Zimbabwe if -

(a) The making of the award was induced or effected by fraud or corruption; or

(b) A breach of the rules of natural justice occurred in connection with the making of the award.”

A reading of Article 34 of the Arbitration Act establishes, that, it provides for the setting aside of awards. It does not provide for the setting aside of rulings by arbitral tribunals.

It therefore seems to me clear, that, a party who fails to request the High Court to decide on a preliminary ruling on jurisdiction and the existence and validity of the arbitral agreement, within thirty days, cannot thereafter seek to set aside the ruling in terms of Article 34 of the Arbitration Act.

It also seems to me clear that the word “award” having been used in its generic sense accommodates the setting aside of all awards specified in the Arbitration Act.

Article 34 of the Arbitration Act provides for the setting aside of an award for specified reasons. Its scope is clearly wider than that of Article 16(3) of the Arbitration Act.

The word “award” is in this Article used in its generic sense. The Article does not use the words “final award” used in Article 32(1) of the Arbitration Act which would have restricted it to terminated arbitral proceedings.

A reading of Articles 16(3), 31(7), 32(1), 33, and 34 of the Arbitration Act establishes that rulings on the arbitral tribunal's jurisdiction and the existence and validity of arbitral agreements are not awards. This is because several Articles refer to various types of awards but none of them was used to describe what the Model Law calls a ruling in Article 16(3) of the Arbitration Act.

This means a ruling falls in its own class for which a separate and distinct procedure is provided for challenging it.

APPLICATION OF THE LAW TO THE FACTS

It is common cause that the appellants seek to challenge a ruling by the arbitral tribunal on jurisdiction, the existence and validity of an arbitral agreement and its decision/award on prescription.

In challenging a ruling, the aggrieved party is entitled to approach the High Court in terms of Article 16(3) of the Arbitration Act within a period of thirty (30) days. Failure to do so within the stipulated period leaves the party aggrieved by the ruling without any other recourse to the courts as Article 34 of the Arbitration Act does not provide for the setting aside of the arbitrator's rulings on jurisdiction.

The legislature, in crafting the Model Law, used the term “ruling”.

It cannot be argued that it meant an award as it went further to specify that such a ruling can even be made in an award on the merits.

A statute should be interpreted in a manner which gives the whole statute and every part, section, or word in it a meaning.

The word “ruling” was persistently used in contradistinction with the word “äward” in circumstances where the framers of the Model Law, as demonstrated by Articles 31(7), 32(1) and 33 of the Arbitration Act, were aware of other types of awards but chose to refer to it as a ruling and provided a separate procedure for challenging it.

I am aware that counsel for both parties referred to it as an interim award, but, that does not change the correct identity given to it by the framers of the Model Law.

The function of the court is to interpret a statute according to the words used by the legislature and to call and interpret a thing by the name given to it by the legislature.

In the case of Keyter v Minister of Agriculture 1908 NLR 522…, it was said:

“It is the duty of the court to give effect to every word which is used in a statute unless necessity or absolute intractability of the language employed compels the Court to treat the words as not written.”

In interpreting statutes, courts are bound to interpret and give effect to what the legislature actually said.

In the case of R v Kirk 1914 CPD 564…, KOTZE J said:

“We cannot import words into the section not to be found therein so as to arrive at what we think or assume is the intention of the Act. The Court must interpret and give effect to what the legislature actually said, and not what it may have intended to say but did not say. We cannot insert words not used by the legislature to meet what we may conceive was its real intention.”…,.

In The Queen v Bishop of Oxford 4 QBD 261 it was held that a statute “should be so construed, that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.”

It is therefore my view, that, the word “ruling” was intentionally used to bring out the distinction between it and an award.

What was issued by the Arbitrator, in respect of his jurisdiction, is not an award and cannot be challenged in terms of Article 34 of the Arbitration Act. It should have been challenged in terms of Article 16(3) of the Arbitration Act.

That opportunity was irrevocably lost and cannot be substituted by a challenge in terms of Article 34 of the Arbitration Act.

In my view, the court a quo did not err in finding that there was no proper application before it in respect of the second respondent's jurisdiction and the existence and validity of the arbitral agreement, as the appellants could not rely on Article 34 of the Arbitration Act to set aside the interim ruling when the legislature had, in terms of Article 16(3) of the Model Law, clearly provided the procedure to be followed.

The appellant's appeal against the court a quo's decision on this issue cannot succeed.

The position is however different in respect of the issue of prescription which is not provided for by Article 16 of the Arbitration Act.

The appellant also challenged the court a quo's decision on the dismissal of its application challenging the abitrator's finding that the first respondent's claim had not prescribed.

Counsel for the appellant, relying on several cases from international jurisdictions such as India, Indonesia, United States of America, and Singapore submitted, that, an interim award can be set aside in terms of Article 34 of the Model Law.

I agree.

On the other hand, counsel for the first respondent submitted, that, cases from Indonesia and India referred to by counsel for the appellant should not be followed because the decisions are based on modified Model Laws of those jurisdictions.

While caution should be exercised in following decisions made on the basis of modified Model Laws, a court should first consider the modifications made by those jurisdictions.

In this case, counsel for the first respondent's concern is that these jurisdictions have added to their Model Laws a definition of an award which includes interim awards.

That, in my view, is not of critical importance.

The real issue should be: are the definitions contrary to the contextual interpretation of the word “award” as it is used in Article 34 of the Model Law?

I have already found that the use of the word “award” in Article 34 of the Arbitration Act is generic and accommodates all types of awards. The framers of the Model Law could have used the words “final award” which they were aware of as they used them in Article 32(1) of the Model Law. The choice of the word “award” in Article 34 of the Model Law, which is repeated in various parts of the Article instead of the restrictive words “final award” means the intention was to allow applications for the setting aside of other types of awards in terms of Article 34 of the Arbitration Act.

The court a quo therefore erred when it held that only final awards can be set aside in terms of Article 34 of the Model Law.

It also erred when it dismissed the whole application for that reason as the application for the setting aside of the arbitrator's award on prescription was properly before it.

It is clear that the arbitrator's decision/award on prescription could not be challenged in terms of Article 16(3) of the Model Law which only applies to the arbitrator's jurisdiction and the existence and validity of arbitral agreements.

I am satisfied, that, the finding of the arbitrator on prescription can be classified as an interlocutory, interim, or partial award as provided by Article 31(7) of the Model Law.

The appellants reliance on Article 34(2)(b)(ii) of the Arbitration Act, in respect of the second respondent's decision on prescription, is, in my view, permissible because Article 16(3) of the Arbitration Act does not provide a procedure applicable to an arbitrator's decision other than that on jurisdiction and the existence and validity of an arbitral agreement.

I am satisfied, that, the appellants are entitled to be heard in respect of their application challenging the arbitral award on prescription.

DISPOSITION

In view of the findings already made, I am of the view that the appeal should partially succeed in respect of the issue of prescription and be struck off the roll in respect of the issue of jurisdiction and the existence and validity of the arbitral agreement.

As both parties partially succeeded, each party shall bear its own costs.

It is therefore ordered as follows:

1. The appeal partially succeeds in respect of the Arbitrator's decision on prescription, but is struck off the roll in respect of the Arbitrator's jurisdiction and the existence and validity of the arbitral agreement, with each party bearing its own costs.

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

“1.1 The application for the setting aside of the arbitrator's ruling on jurisdiction and the existence and validity of the arbitral agreement is a nullity and is struck off the roll.

1.2 The application for the setting aside of the arbitrator's interlocutory award on prescription shall proceed to a hearing on the merits.”

3. The case is remitted to the court a quo for it to hear and determine the application for the setting aside of the arbitrator's interlocutory award on prescription on the merits.

SC32-22 : CUTHBERT DUBE vs PREMIER MEDICAL INVESTMENTS (PVT) LTD and PREMIER SERVICE MEDICAL AID SOCIETY
Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

On 7 July 2021, the High Court (“the court a quo”) dismissed an application brought against the respondents by the appellant for want of prosecution with costs. It also ordered the appellant to pay the costs of the application brought by the first and second respondents for the dismissal of ...

THE FACTS

Both respondents are incorporated in terms of the laws of this country and are sister companies. The second respondent is a medical aid society while the first respondent is its investment vehicle.

For quite some time, the appellant was the second respondent's Chief Executive Officer, a position he vacated prior to the commencement of the proceedings forming the basis of this appeal.

On 27 March 2018, the appellant brought a court application in the court a quo for a declaratory order to the effect that he was the holder of ten million shares, representing a 20% shareholding in the first respondent. He also sought a declaration that the conduct of the first and second respondents, of regarding him as not being a shareholder, was unlawful, null and void and of no force or effect. He also sought costs on the scale of legal practitioner and client.

The basis of the application, as stated in the founding affidavit, was that the appellant had purchased the ten million shares of the first respondent on 29 July 2010. He attached a copy of a share certificate issued to him and signed by two directors of the first respondent whose names are not disclosed in the certificate.

While alleging that he paid for the shares, he did not produce proof of such payment.

According to the appellant, what prompted him to make the application for a declaratory order was the first and second respondents refusal to acknowledge him as the holder of the shares in question. This followed a meeting of the second respondent held on 21 May 2015 which resolved not to ratify the award of the 20% shareholding in the first respondent to the appellant.

On 11 April 2018, the respondents filed opposition to the application for the declaratory orders.

The opposing affidavit was deposed to by Jeremiah Bvirindi, the chairman of the Board of Directors of the second respondent, who denied that the appellant was ever a shareholder of the first respondent.

The respondents also took the view that there were disputes of fact and put in issue the circumstances under which the appellant had purported to acquire the shares at a time he was the Chief Executive Officer of the second respondent.

According to the respondents, the appellant obtained the share certificate he relied on “either illegally, fraudulently, or without following due process” as set out in the first respondent's Regulations.

Significantly, the respondents confirmed that the appellant had deposited a cheque of Z$6,585,672,555=75 into the second respondent's bank account.

The respondents view was that a mere deposition of the above amount in the Bank account was improper and motivated by fraudulent intent on the part of the appellant.

In any event, so the respondents argued, while the payment for the 15% shares (not 20%), should have been made on 25 April 2007, it was only made on 19 March 2008 when the amount had been ravaged by inflation rendering it inequitable to the value of the shares.

It was also the respondents case that the purported sale of the 15% shares and a donation of 5% shares to the appellant was done without the authority of the Board and/or the shareholders. The appellant took advantage of his position as the Chief Executive Officer to influence the sale to their prejudice.

It is common cause that the appellant did not act upon the notice of opposition filed by the respondents within the time allowed by the rules of court or at all. This prompted the respondents to file the initial application for dismissal of the application for want of prosecution under case number HC11129/18.

The application was opposed by the appellant and subsequently set down for hearing in March 2019.

Again, it is common cause that on the date of the hearing, following negotiations between the parties, the respondents withdrew the initial application for dismissal for want of prosecution. This was on the understanding that the appellant would purge his default by filing the outstanding pleadings in the main application and prosecute it.

He did not.

PROCEEDINGS IN THE COURT A QUO

When the appellant did not honour his undertaking to prosecute the main matter for about five (5) months, the respondents filed the second application for dismissal for want of prosecution in terms of Rule 236(3)(b) of the High Court Rules 1971 on 2 August 2019.

It is that application which forms the basis of the present appeal.

In the founding affidavit, again deposed to by the chairman of the Board of Directors of the second respondent, on behalf of both of them, the respondents stated, that, following their filing of their opposition on 11 April 2018, the appellant had neither filed an answering affidavit nor set the matter down for hearing.

The respondents chronicled the appellant's tardiness in the handling of his application which saw him failing to file heads of argument even in the initial application for dismissal.

They stated, that, even after being accorded the second chance to redeem himself, the appellant had snubbed the opportunity and done absolutely nothing until a second application for dismissal was lodged.

After stating that they had elected to file the application for dismissal for want of prosecution instead of setting the main matter down for hearing, as they are entitled to do in terms of the Rule, the respondents ended there.

They urged the court to grant the order for dismissal on that basis alone.

In opposing the application, the appellant took issue with the authority of the deponent of the founding affidavit to represent the respondents.

He contended that one person could not lawfully represent two separate artificial persons and that the resolutions relied upon by the respondents were invalid by reason that the signatories names were not declared.

His only explanation for the delay in prosecuting the application was that, to the knowledge of the respondents, he had “not been feeling well for a long time” which affected his ability to give instructions to his legal practitioners to file an answering affidavit.

The appellant insisted, that, he owns 20% shares in the first respondent and should be allowed to pursue his claim, otherwise his property rights would be infringed.

It is also important to note that the appellant made two assertions which have a bearing on the resolution of this appeal:

In paragraph 6 of his opposing affidavit, in response to the accusation that he had not filed an answering affidavit or taken steps to set the matter down, the appellant stated that:

“6. Ad para 8-9

These averments have been overtaken by events. On 19 August 2019, I filed my answering affidavit and heads of argument in HC2821/18. What remains is for the applicants herein, as respondents therein, to file their heads of argument.”

Regarding the question whether the respondents had made a good case for the relief sought, the appellant stated, at paragraph 8:

“8. Ad para 11-14

8.1. I do not accept that the applicants have met (sic) the case for the order they are seeking.

8.2. The founding affidavit does not advance any grounds for the court to exercise its discretion in favour of dismissal instead of determining the main matter on the merits. The applicants just want a dismissal because they are asking for it.”

The court a quo found that it was both convenient and logical for the deponent of the founding affidavit to represent the respondents as he had knowledge of the shareholding structure of the first respondent. In the court a quo's view a company has the liberty to authorize anyone it deems fit and proper to represent it in litigation.

It found that the delay in responding to the pleadings was evidence of the appellant's non-committal to finalize the matter, because, if it had been of importance to him, the appellant would have pursued the matter with diligence.

In the court a quo's view, the unsubstantiated claims of illness by the appellants were not an acceptable reason for the delay.

It granted the application for dismissal for want of prosecution.

PROCEEDINGS BEFORE THIS COURT

The appellant was aggrieved. He launched this appeal on the following grounds:

1. The court a quo misdirected itself and erred in law in not finding, in limine, that the respondents were not properly before it for the reason that the deponent to the respondents founding affidavit had no lawful authority to institute the proceedings on their behalf.

2. In dismissing the appellant's application under HC2821/18 for want of prosecution, the court a quo improperly exercised its discretion in that it only took into account one factor, namely, the reasonableness of the explanation for inaction, instead of also taking into account other mandatory factors such as possible prejudice to the respondents appellant's (sic), prospects of success on the merits, and the balance of convenience.

3. As an alternative to 2, the court a quo improperly exercised its discretion and erred in law in dismissing the appellant's application under HC2821/18 for want of prosecution without an analysis of, and application of its mind to all the mandatory factors to be taken into account before such dismissal.

4. With the court a quo having refused to take into account the established fact that the appellant's application under HC2821/18 had been ready for set down for a considerable period, its decision to dismiss the application for want of prosecution was so unreasonable that no reasonable court, applying its mind to the circumstances of the case, could ever have made such a decision.

5. The court a quo's finding that the appellant's explanation for the delay in prosecuting his application was inexcusable, was so unreasonable that no reasonable court, applying its mind to the circumstances of the case, could ever have made such a decision.

I mention, in passing, that, some of the five (5) grounds of appeal are repetitive and inconcise. They do not meet the threshold set by Rule 44.

As the issue was not raised with the parties at the hearing of the appeal, it shall not be considered in the determination of the appeal.

ISSUE FOR DETERMINATION

From the grounds of appeal and submissions made by counsel only one issue commends itself for determination in this appeal: it is whether the court a quo properly exercised its discretion in granting the application for dismissal for want of prosecution.

SUBMISSIONS ON APPEAL

At the commencement of the hearing, counsel for the appellant submitted, that, while not abandoning grounds of appeal 1, 4 and 5 for which he stood by heads of argument filed for the appellant, he would motivate the appeal on grounds of appeal 2 and 3. In his view, those two (2) grounds are dispositive of the appeal. In fact, ground 3 is in the alternative to ground 2.

Counsel for the appellant submitted, that, there are three (3) factors which are relevant in considering an application for dismissal of an application for want of prosecution in terms of the old Rule 236(3) or (4) of the High Court Rules. These are:

(a) The length of the delay and the explanation for it;

(b) The prospects of success on the merits; and

(c) The balance of convenience and the possible prejudice to the applicant caused by the delay.

He relied on the authority of Guardforce Investments (Pvt) Ltd v Ndlovu & Ors SC24-16.

It was submitted, that, when deciding the matter, the court a quo only considered the reasonableness of the explanation for the delay. Upon concluding that it was insufficient, the court a quo promptly granted the application without more. It did not consider the remaining two (2) relevant factors to be taken into account in exercising its discretion. For that reason, the judgment of the court a quo should be interfered with.

Per contra, counsel for the respondents submitted, that, grounds of appeal 2 and 3 raise brand new points of law not placed before the court a quo, without justification.

She submitted, that, even the case law authority relied upon by the appellant was not placed before the court a quo. Counsel suggested, that, the appellant cannot be allowed to do so as those points were not pleaded.

Counsel for the respondents submitted further, that, even were one to consider the two (2) factors to be taken into account by the court before exercising its discretion to grant or dismiss an application for dismissal for want of prosecution, the onus to set those out is on the appellant, who was the respondent a quo. It is him, according to counsel, who should show the prospects of success of his application and the absence of prejudice over and above providing a reasonable explanation for the delay.

Counsel for the respondents also made the point, that, the filing of an answering affidavit and heads of argument in the main case, by the appellant, was of no moment. He was precluded from doing so upon receiving the application for dismissal for want of prosecution.

In making that submission, counsel relied on the authority of the High Court judgment in Melgund Trading (Pvt) Ltd v Chinyama & Partners 2016 (2) ZLR 547 (H).

In Melgund Trading (Pvt) Ltd v Chinyama & Partners 2016 (2) ZLR 547 (H) the High Court remarked…,;

“The respondent suggests, that, because it filed an answering affidavit and caused the application for upliftment of bar before this application was dealt with, this application has been overtaken by events.

Rule 236(3) does not state so.

It is not a defence for a respondent who has been served with an application for dismissal for want of prosecution to plead that he subsequently made arrangements for the application to be set down.

Once a litigant has been served with an application for dismissal in terms of Rule 236(3), he cannot file any other process in pursuance of the proceedings under scrutiny. The application for dismissal has to be dealt with first. Once an application for dismissal for want of prosecution has been filed, it must be determined on the merits unless it is withdrawn or the bar is uplifted by consent.

If the courts were to allow a respondent who has failed to comply with the requirements of Rule 236(3)(b), to jump and set down the application complained against to defeat the application for dismissal, this would be tantamount to the courts allowing respondents to pull the carpet from under the feet of applicants.

The action that a respondent takes after an application for dismissal has been made is of no consequence. The only option open to him is to oppose the application for dismissal and let it be dealt with on the merits.”

Unfortunately, the High Court did not cite any authority for the above proposition.

In fact, one of the authorities cited in that judgment is Ndlovu v Guardforce Investments (Pvt) Ltd & Ors 2014 (1) ZLR 25 (H), a judgment which is of no consequence.

More importantly, as shall be seen shortly, the pronouncement by the High Court cited above, sought to overturn the judgment of the Supreme Court in Guardforce Investments (Pvt) Ltd v Ndlovu & Ors SC24-16.

ANALYSIS

Rule 236(3) of the High Court Rules (now Rule 59(15) of the High Court Rules 2021) does not set out the factors to be considered by a judge or the court on an application for dismissal for want of prosecution.

CHIDYAUSIKU CJ, however, set out those factors in the case of Guardforce Investments (Pvt) Ltd v Ndlovu & Ors SC24-16, at pp5-6, as:

“The discretion to dismiss a matter for want of prosecution is a judicial discretion, to be exercised taking the following factors into consideration -

(a) The length of the delay and the explanation thereof;

(b) The prospects of success on the merits;

(c) The balance of convenience, and the possible prejudice to the applicant caused by the other party's failure to prosecute its case on time.

Dealing with the delay and the explanation for the delay, there is no doubt that there was a delay in this matter.

However, the delay and the explanation thereof in this matter, alone, cannot form the basis for the dismissal. The other factors should also have been considered in determining whether or not to dismiss the application for rescission for want of prosecution. This is a serious misdirection.”…,.

Later in that page, going on to p7, the learned Chief Justice went on to state:

“There is no rule of law which barred the appellant from proceeding with its application for rescission of the default judgment despite the making of the application for dismissal for want of prosecution.

In fact, under Rule 236 of the High Court Rules, when faced with an application for dismissal of an application, the High Court is enjoined to consider options other than dismissing the application for want of prosecution.

The fact that the appellant sat around and did not attend to the setting down of the application for rescission of the default judgment is a factor that weighs against the appellant.

If anything, the chamber application ought to have triggered the appellant to attend to the finalization of the application for rescission of the default judgment. The only way the appellant could have shown that it was serious about the application for rescission was to proceed to have the matter set down after it was served with the chamber application for dismissal for want of prosecution.”…,.

See also Mashangwa & Anor v Makandiwa & Ors SC95-21.

In my view, this completely resolves the present appeal.

The jurisprudence coming out of this Court is completely at variance with that of the High Court.

The judgment in Guardforce Investments (Pvt) Ltd v Ndlovu & Ors SC24-16 was delivered on 31 May 2016. The one in Melgund Trading (Pvt) Ltd v Chinyama & Partners 2016 (2) ZLR 547 (H) was only delivered on 16 November 2016 - at a time when this Court had already set out the law.

The High Court was bound, by virtue of the stare decisis principle, to follow the judgment of this Court in Guardforce Investments (Pvt) Ltd v Ndlovu & Ors SC24-16.

See Commercial Farmers Union v Mhuriro & Ors 2000 (2) ZLR 405 (S)…,.

By the same token, the court a quo in the present case was bound to follow the requirements set out in Guardforce Investments (Pvt) Ltd v Ndlovu & Ors SC24-16 when it exercised its discretion to dismiss the appellant's application for want of prosecution.

It did not.

Instead, the court a quo only considered the extent of the delay and the reasonableness of the explanation for it. It ignored the prospects of success on the merits and the balance of convenience or prejudice.

By the authority of Guardforce Investments (Pvt) Ltd v Ndlovu & Ors SC24-16, this was a misdirection.

This Court is, therefore, at large on appeal.

Earlier on in this judgment, I made reference to portions of the appellant's opposing affidavit which unequivocally drew the court a quo's attention to the factors that it was required to take into account in exercising its discretion.

He made it clear, that, the inquiry on the delay was not the only factor. He also drew attention to the filing of the answering affidavit and heads of argument as measures taken to prosecute the application.

All that was overlooked by the court a quo.

This was a misdirection.

Apart from that, the appellant maintained his claim for ownership of the 20% shareholding in the first respondent.

There was evidence that a payment had been made for the shares. Indeed, both the payment and the existence of the agreement were acknowledged by the respondents.

The interests of justice require that the propriety of the appellant's claim be interrogated fully and that a decision on the merits be made. This is not a case for closing the door on the appellant merely on the basis of the inordinate delay in prosecuting the application.

In my view, the court a quo did not take into account relevant considerations in exercising its discretion to allow the application. This gives this Court a foothold to interfere with that discretion: see Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S).

The appeal has merit and ought to succeed.

Regarding the issue of costs, both a quo and before this Court, there is no explanation why the authorities upon which the matter has now been resolved were not brought to the attention of the court a quo.

This is moreso regard being had that the principles set out in Guardforce Investments (Pvt) Ltd v Ndlovu & Ors SC24-16 were captured in the opposing affidavit.

To that extent, counsel for the appellant conceded that their case could have been presented more elegantly.

In the exercise of the court's discretion on costs, the appellant will not be awarded the costs a quo.

The costs on appeal are well deserved and there is no reason why they should not follow the result.

I say so because the respondents persisted with their contestation of the appeal without regard to the authorities set out in the appellant's heads of argument filed as far back as 26 November 2021.

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

1. The appeal succeeds with costs.

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

“The application is hereby dismissed with each party to bear its own costs.”

SC52-22 : AL SHAMS GLOBAL BVI LIMITED vs DEPOSIT PROTECTION CORPORATION and KIITUMETSI ZAWANDA and EQUITY PROPERTIES (PVT) LTD and REGISTRAR OF DEEDS N.O.
Ruled By: MATHONSI JA, KUDYA JA and MUSAKWA JA

Counsel for the appellant relied on the case of Portland Holdings Ltd v Tupelostep Investments (Pty) Ltd Anor SC03-15 in which an application was adjudged by the court a quo as not urgent. The court a quo had however gone on to dismiss the application instead of striking ...

SC52-22 : AL SHAMS GLOBAL BVI LIMITED vs DEPOSIT PROTECTION CORPORATION and KIITUMETSI ZAWANDA and EQUITY PROPERTIES (PVT) LTD and REGISTRAR OF DEEDS N.O.
Ruled By: MATHONSI JA, KUDYA JA and MUSAKWA JA

On 4 November 2021 the High Court (“the court a quo”) struck off the roll with costs on a higher scale an urgent application filed by the appellant for an order directing the third respondent (Equity Properties (Pvt) Ltd) to forthwith surrender to the fourth respondent (Registrar of Deeds N.O.) a replacement Deed of Transfer number 9068/2008 and barring the third respondent from using such replacement Deed of Transfer in lieu of the original on the pain of costs on the adverse scale.

This appeal is against that striking off judgment which the appellant would like to have set aside and substituted with the substantive relief it unsuccessfully sought in the court a quo.

BACKGROUND FACTS

The facts relevant to the resolution of this appeal are largely common cause.

The first respondent (Deposit Protection Corporation) is the liquidator of Interfin Banking Corporation (“Interfin”) which is undergoing final liquidation. The second respondent (Kiitumetsi Zawanda) is the Company Secretary of the first respondent whom the appellant elected to join as a party to the proceedings, in her personal capacity, for unclear reasons.

The third respondent (Equity Properties (Pvt) Ltd) is the owner of certain immovable property known as Lot 3 of Bannockburn, Harare which it holds by Deed of Transfer Number 9068/2008.

As security for a debt owed to Interfin Banking Corporation (Interfin), the third respondent surrendered its title deed to Interfin which registered Mortgage Bond No.5818/2011 on the title deed.

In turn, Interfin obtained certain sums of money from the appellant which it secured by the third respondent's title deed surrendered to the appellant.

Since then, the appellant has tenaciously held onto the title deed in question despite demand for its release made by the liquidator in the discharge of its duties as such.

Indeed, the liquidator was constrained to demand the surrender of the title deed after the third respondent acquitted all its indebtedness to Interfin, the company in liquidation, thereby obliging the liquidator to cancel the mortgage bond.

Following the repayment of the loan, the liquidator was also obliged to hand the title deed over to the third respondent.

Bereft of any sense of solution, the liquidator applied for a replacement title deed from the Registrar of Deeds, the fourth respondent herein.

The fourth respondent acceded to the application and issued a replacement title deed on 7 September 2021.

That triggered the present litigation.

The appellant moved swiftly and filed an urgent application for a mandamus on 13 October 2021.

As I have said, it sought, in the interim, the immediate surrender to the fourth respondent of the replacement title deed and the barring of the third respondent from using it for whatever purpose.

The basis of the application was that, not only were the respondents aware that the appellant was in possession of the original title deed, the third respondent was selling properties to individuals using the replacement title deed.

According to the appellant, the third respondent's conduct was causing irreparable damage and undue hardship to it by dissipating the immovable property.

The application was opposed by the first, second, and third respondents.

They raised a number of preliminary objections, chief among which were the failure of the appellant to obtain leave of the court to sue the first respondent, the liquidator of a company in liquidation, and the misjoinder of the second respondent in her personal capacity.

The court a quo found that the application was improperly before it by reason that no leave to sue had been sought and obtained before embarking on litigation.

In arriving at that conclusion, the court a quo followed the case of Chikura N.O. & Anor v Alshams Global BVI Ltd SC23-20 in which this Court remarked…,.:

“As correctly observed, in part, by the court a quo, leave of the court is required before proceeding against a company and/or bank in liquidation.

This is so because the broad purpose of the law of insolvency, and the winding up of companies, is to ensure due distribution of the insufficient assets of the debtor company amongst the competing creditors under the watchful eyes of the court. Thus, the position is settled at law that an order placing an estate or a company in liquidation has the effect of creating a concursus of the creditors of the insolvent and no creditor can thereafter do anything that will alter the rights and interests of other creditors without the leave of the court.

Unsupervised and unsanctioned litigation and proceedings against the insolvent will disturb the due distribution of the insufficient assets and remove the role of the court from the process.

It may also be added, that, the leave of the court is necessary in such circumstances as a broader consideration of protecting the economically fragile company from unnecessary litigation quite apart from merely protecting the interests of the creditors.

It being common cause that leave of the court was not sought and obtained prior to the institution of the proceedings a quo, the appeal succeeds on this basis alone.”

Indeed, as in the present case, the respondent in that case had sued the liquidator of Interfin Banking Corporation (Interfin) without the leave of the court.

It argued, that, the cause was not against the Bank but was against the liquidator as an administrative authority under the Administrative Justice Act [Chapter 10:28].

The court a quo refused to be drawn to consider the merits of the application. It reasoned, at paragraph 20 of its judgment:

“There are set procedures that are followed by a creditor to recover a debt from a company under liquidation.

Leave to sue is necessary for a party to show the court why its particular case needs a suit outside the normal procedures that are there for recovering a debt by creditors through the appointed liquidator.

It is the court that is tasked with assessing the merits of any application, including its prospects of success, based on the sufficiency of evidence placed before it. Indeed, it would have been under such an application for leave to sue that an issue such as that raised by respondents herein, that the company is not registered locally, would have been considered under prospects of success in determining whether or not that leave to sue should be granted.”

THE APPEAL

The appellant was thoroughly disgruntled by that outcome.

It launched this appeal on six (6) grounds, including an attack on the conclusion of the court a quo that leave to sue was required.

Although there are multiple grounds, the issue for determination is very narrow indeed.

It is whether there was need for leave to be sought and obtained before filing the application against the liquidator.

I should add, that, prior to the date of hearing of the appeal, the first and third respondents gave notice of objections in terms of Rule 51 of the Supreme Court Rules 2018.

After hearing counsel on the objections, this Court requested to be addressed on the merits while parking its decision on the preliminary objections.

This was done in the interest of expediency to avoid reconvening again depending on the outcome of the preliminary objections.

Accordingly, with the consent of the parties, the court heard the merits of the appeal on the understanding that they will only be related to in the event of the preliminary objections not being upheld.

I proceed therefore to consider those objections.

Counsel for the first and second respondents premised his objections on three (3) points:

(i) First, counsel submitted that the judgment of the court a quo sought to be impugned, to the extent that it merely struck the applicant's application off the roll for want of leave to sue the liquidator, is not appealable at all. It does not meet the requirements of a judgment that can be appealed against.

In advancing that argument, reliance was placed on two South African authorities. The first is the case of Zweni v Minister of Law and Order 1993 (1) SA 523 (A) which set out three attributes of an appealable judgment. These are that;

(i) The decision must be final in effect and not susceptible to alteration by that court;

(ii) It must be definitive of the rights of the parties by granting definite and distinct relief; and

(iii) It must have the effect of disposing of at least a substantial portion of the relief claimed in the proceedings.

The first and second respondents case is that none of the foregoing three requirements of an appealable judgment exist in the impugned judgment because the court a quo deliberately refrained from delving into any of the merits of the dispute. Instead, it was content to strike off the application on the basis that leave was not obtained. The court a quo will still determine the merits once leave is obtained.

The other authority cited by counsel for the first and second respondents is Pretoria Garrison Institutes v Danish Variety Products 1948 (1) SA 839 (A)…, where the following remarks were made:

“A wholly unrestricted right of appeal from every judicial pronouncement might well lead to serious injustices. For, apart from the increased power which it would probably give the wealthier litigant to wear out his opponent, it might put a premium on delaying and obstructionist tactics.

This latter consideration has, I imagine, been the predominant one in leading legislators to try to restrain the bringing of appeals from orders of a preparatory or procedural character arising in the course of a legal battle.”…,.

Contesting that preliminary objection, counsel for the appellant submitted that whenever there is a sentence or judgment of the court that a litigant is unhappy with, there is a right to appeal.

In counsel's view, it would be a sad day indeed, were certain matters be made to end at the court a quo without testing their correctness on appeal.

(ii) Second, counsel for the first and second respondents submitted, that, the judgment of the court a quo, that the application was improperly before it for want of leave to sue the liquidator, and therefore striking it off the roll, was interlocutory in nature. For that reason, so it was argued, it could not be appealed without the leave of the court a quo.

In counsel's view, the striking off of the application was merely a procedural step which, at best, was merely interlocutory. To that extent, any challenge of the judgment is regulated by section 43(2) of the High Court Act.

Counsel for the third respondent also took a similar preliminary objection based on absence of leave to appeal.

She submitted, associating herself fully with submissions made on behalf of the first and second respondents, that, for all intents and purposes, the striking off was interlocutory.

Counsel maintained, that, the appeal is improperly before the court because leave to appeal was not sought.

In addition, counsel for the third respondent urged the court to take judicial notice of proceedings instituted by the appellant in case number HC6264/21.

According to counsel, it is an application, exactly the same as the one forming the basis of this appeal, brought by the appellant after its initial application was struck off the roll. It seeks the same relief, except that in it the appellant did not join the executor and its Company Secretary.

It was submitted that this was a clear case of peremption.

The right of an unsuccessful litigant to appeal, it was argued, is perempted when that litigant, at the same time, complies with the judgment.

By filing the same application, without citing the first and second respondents, the appellant should be taken as having accepted the correctness of the judgment a quo.

In response, counsel for the appellant did not directly address the question whether the judgment was interlocutory and therefore requiring leave of the court a quo before an appeal could be noted.

He submitted, that, in the body of the judgment, the court a quo commented on the merits of the matter. For that reason, the court is at liberty to entertain the appeal even though leave was not sought.

In making that argument, counsel for the appellant relied on the case of Portland Holdings Ltd v Tupelostep Investments (Pty) Ltd & Anor SC03-15 in which an application was adjudged by the court a quo as not urgent. The court a quo had however gone on to dismiss the application instead of striking it off the roll to enable the applicant therein, if it so wished, to proceed with the application as an ordinary application.

Apart from that, the court a quo had also made several comments on the merits of the matter and also overlooked most of the relevant evidence pointing to the urgency of the application.

This Court was clear that “the matter ought to have been dealt with on the basis of urgency.”

Taking all the mistakes made a quo into account and that the Appeal Court was in as good a position as the court of first instance to determine the matter and substitute its own discretion, this Court allowed the appeal. It granted the relief sought in the application.

Counsel for the appellant urged of this Court the adoption of the same approach because the court a quo, in the present case, also made comments on the merits of the matter.

He submitted that this Court should grant the full relief sought a quo even though the court a quo did not relate to the merits or the relief sought.

Regarding preemption, it was submitted on behalf of the appellant that its grief with the judgment a quo was recorded in the notice of appeal filed in this Court. In counsel's view, the fact that subsequent to the filing of that notice of appeal, the appellant saw it fit to return to the court a quo with another application did not signify satisfaction with the judgment appealed against.

This is so, so the argument goes, because the parties in the subsequent application are different from those in the present matter.

ANALYSIS

Regarding the issue whether the judgment of the court a quo is appealable: my view is that the procedure for appealing in this jurisdiction is heavily regulated.

As shall become apparent shortly, even the orders of the nature of the one which is the subject of the present appeal, are regulated by statute. As such, if the legislature intended to constrain any right of appeal it would have said so in specific terms.

Indeed, even the authority relied upon by counsel for the first and second respondents, Pretoria Garrison Institutes v Danish Variety Products 1948 (1) SA 839 (A) presupposes that the restrain from appealing certain court orders has to be imposed by the law-giver before the right of appeal can be restricted or prohibited.

I am therefore not persuaded by the first leg of the first and second respondents preliminary objection. It is accordingly rejected.

In my view, that position accords with the constitutional right of access to the courts for the resolution of any dispute enshrined in section 69(3) of the Constitution.

The question whether the judgment a quo is interlocutory or not is central in the resolution of the second leg of the preliminary objection.

Section 43(2) of the High Court Act [Chapter 7:06] governs appeals against interlocutory judgments or orders. It provides:

“(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 that judge, or, if that has been refused, without the leave of a judge of the Supreme Court, except in the following cases -

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

(ii) Where an interdict is granted or refused;

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

There is little doubt that the phrase “interlocutory order” is one that has vexed the legal mind for a considerably long time.

Its definition has eluded the courts, but, there is a very helpful discussion of it by DEVITTIE J in Mwatsaka v ILC Zimbabwe 1998 (1) ZLR 1 (H) where the learned Judge reviewed a number of authorities discussing the phrase “interlocutory orders”.

He referred to the reasoning of CORBETT JA…, in South Cape Corp v Engineering Management Services 1977 (3) SA 534 (A)…, where the court remarked:

“I think, nevertheless, the general effect of this series of decisions, together with consistent judgments of other courts, may be summarized as follows:

(a) In the wide and general sense, the term 'interlocutory' refers to all orders pronounced by the court, upon matters incidental to the main dispute, preparatory to, or during the progress of the litigation. But, orders of this kind are divided into two classes:

(i) Those which have a final and definitive effect on the main action; and

(ii) Those known as simple (or purely) interlocutory orders proper or 'interlocutory orders proper' which do not: see, generally, Bell v Bell 1908 TS 887 at p890; Steytler N.O. v Fitzgerald supra at pp303, 311, 325-6, 342; Globe & Phoenix Gold Mining Co. Limited v Rhodesian Corp Ltd 1932 AD 146 at pp153.”

The court went on, at p8C, relying on the authority of Pretoria Garrison Institutes v Danish Variety Products 1948 (1) SA 839 (A), to make the point that the test as to whether an interlocutory order is one which is preparatory or procedural and therefore not appealable unless it is such that it disposes of any of the issues or any portion of the issue in the main action or suit or it irreparably anticipates or precludes some of the relief which would or might be given at the hearing.

As stated in Mwatsaka v ILC Zimbabwe 1998 (1) ZLR 1 (H), those interlocutory orders which do not meet the criteria of non-appealable orders set out in Pretoria Garrison Institutes v Danish Variety Products 1948 (1) SA 839 (A) are termed simple interlocutory and are appealable with leave in terms of section 43(2) of the High Court Act.

It occurs to me that the order striking off the appellant's application from the roll was interlocutory in the sense that it did not determine any issue which was the subject of the main suit.

It was, however, appealable in the sense that it brought the entire edifice of the application to a screeching halt.

The application would not proceed any further until such time that the appellant sought and was granted leave to sue.

The judgment left the entire dispute unresolved.

While the appellant was seeking an interdict, the interdict was neither granted nor refused thereby disqualifying the matter from one of the exceptions to the requirement for leave to appeal to be sought.

It being an interlocutory judgment or order which did not fall under any of the exceptions set out in paragraph (d) of section 43(2) of the High Court Act, it means that leave should be sought and obtained from the judge a quo, or a judge of this Court, before an appeal can be brought to this Court.

On the issue of pre-emption raised by counsel for the third respondent, while it is correct that generally the court is always entitled to make reference to its own records and proceedings, see Mhungu v Mtindi 1986 (2) ZLR 171 (S), and it is not disputed by the appellant that it filed another application which excluded the first and second respondents, my view is that the issue was raised mainly to buttress the objection on the need for leave. In addition, it was relied upon to justify the prayer for costs on the adverse scale.

Having arrived at the conclusion that leave of the court was required to lodge the appeal, I find it completely unnecessary to engage the aspect of peremption beyond what I have done. Clearly, it does not change the fact that the appeal is improperly before the court.

DISPOSITION

The judgment or order striking off the application, by reason of the failure of the appellant to obtain leave to sue the liquidator of Interfin Banking Corporation (Interfin), a company in liquidation, was interlocutory in nature.

The court a quo summarized the respective positions of the parties but simply did not engage the merits at all. It left all the issues in dispute unresolved, and, it is open to the court a quo to engage and determine all the issues once leave to sue has been sought and granted.

The nature of the judgment or order in question is such that it does not meet the criteria of a non-appealable judgment or order.

While it is a simple interlocutory judgment or order it is appealable, but, only with leave as required by section 43(2)(d) of the High Court Act. Such leave not having been sought and granted, it was incompetent for the appellant to purport to appeal to this Court.

As a corollary to that, the matter is improperly before the court. It ought to be struck off the roll....,.

1. The matter is struck off the roll.

Appealed
HHHH262-10 : ZIMBABWE POSTS (PVT) LTD vs COMMUNICATION AND ALLIED SERVICES WORKERS UNION OF ZIMBABWE
Ruled By: MUTEMA J

This application is redolent with irregularities. This, understandably, constrained the respondent to raise a number of points in limine praying for its dismissal.

The irregularities complained of, which were not fully conceded by the applicant, are these:

1. The application does not comply with Rule 227(3) in that when it was filed, it did not contain a draft of the order sought;

2. It offends against Rule 227(2)(d) in that it has more than five (5) pages but does not have an index attached;

3. It is unclear whether the application is being brought in terms of Order 32 (Ordinary Court Application) or in terms of Order 33 (an Application for Review). The applicant has prefaced its founding papers with a document titled 'Court Application' and another titled 'Application for Review' both prepared by the applicant's legal practitioners on 4 May 2010 and filed on 17 May 2010.

3. If it be taken as an application for review, it is fraught with deficiencies in that it fails to comply with Rule 256, Rule 257 and Rule 259 by not citing the arbitrator whose award is sought to be reviewed, by not stating shortly and clearly the grounds upon which the applicant seeks to have the proceedings set aside or corrected, and, by not having been filed within the stipulated eight (8) week period. Further, this Court does not have review jurisdiction in respect of arbitration proceedings.

On the basis of the foregoing alleged irregularities, the respondent moved the court to dismiss the application with costs on a higher scale.

The gravamen of the application is essentially for the setting aside of an arbitral award.

The applicant's legal practitioner, while making half-hearted concessions in respect of the above cited irregularities through skilful manipulation that is not taught in law school but acquired naturally thereafter, endeavoured to persuade the Court to invoke Rule 4C(a) and condone the departure from the provisions of the Rules flouted.

Regarding the non-attachment of the draft order, he insisted that one was attached to the application. He submitted that in any event, when the objection pertaining thereto was raised in the respondent's opposing affidavit, one was attached to the answering affidavit in case the respondent was truthful in objecting.

I am not persuaded that the respondent would have been that naive to raise an objection of this nature merely for the “heck” of it if such documents were attached. If that were the sole flouting of the Rules, the Court would not have any difficulty in invoking Rule 4C(a).

There are numerous others which are more material.

As regards the non-indexing of the application, this was conceded with the qualification that it was subsequently cured by the filing of a consolidated index thereby rendering the initial non-indexing irrelevant.

He asked the Court to invoke Rule 4 and condone the departure from the provisions of the Rules in the interests of justice.

For the same reason given when dealing with the non-filing of the draft order supra, I am not persuaded to condone.

Over and above that, that consolidated index being alluded to was not prepared by the applicant's legal practitioners but by the respondent's legal practitioners, ex mero motu, who are not the dominus litus.

Regarding the issue that the application was made using the wrong form of review instead of in terms of Article 34(2) of the Model Law in terms of the Arbitration Act [Chapter 7:15], the legal practitioner conceded the error and attributed it to a genuine but mistaken belief of law on his part.

This, quite apart from being utterly footling at law, for lawyers are presumed to know the law, the alleged mistake of law is so gross and persistent as to render it not only not genuine but inexcusable.

Here is a terse recital of the legal practitioner's blunders of the law which culminated in the one at hand:

(a) In what is titled 'Application For Review' (p3), it is stated:

“TAKE NOTICE THAT on a date to be set by the Registrar, an application will be made for the review of an arbitrary (sic) award made by the Honourable Mr Mordecai P. Mahlangu on the 23rd of February 2010 but received by the applicant on 3 March 2010…, on the following grounds.”

Six grounds for the review are then enumerated.

The founding affidavit clearly deals with an application for review.

In spite of being alerted to the irregularities alluded to supra by the respondent in the opposing affidavit, including the wrong form of the application, the applicant did not “reck”. It remained obdurate in its answering affidavit that the application for review was the proper one.

In paragraphs 4.1 to 4.3:

“4.1 The long and short of it all is that this is a Court Application for review. This is quite apparent on the papers. The document says it's a Court Application and the other defines it as one for review. No magic is required to discern this much.

4.2 The basis for the application for review could not have been stated in better terms than what it is in the founding affidavit. In summary and in simple terms, the award is being challenged on the grounds that it is contradictory, it is unreasonable, and it offends against public policy.

4.3 Citing the Arbitrator as a party to the proceedings is not a rule cast in concrete. Such non-joinder is not fatal to the proceedings….,.”

In paragraph 5.1 the applicant reiterates that the application was one for review by averring:

“Again, I should emphasis (sic) that there is no magic in how the grounds for review should be stated as long as they are stated with sufficient clarity to enable the Court to appreciate their substance.”…,.

In paragraph 6 of the answering affidavit, the applicant attempts to defend why the review application was filed outside the required eight (8) week period.

It avers that it first filed an application for review in the Labour Court within the eight (8) week period and alleges that a copy of that application is attached marked 'A'.

However, no such copy is attached!

After being awakened to the fact that only the High Court had exclusive jurisdiction to set aside an arbitral award made in terms of the Arbitration Act, by way of application, it then withdrew that application from the Labour Court. It alleges also that a copy of such withdrawal is attached marked 'B'.

Again, no such copy is attached!

In paragraph 7.1 the applicant avers that it believed that “respondent is wrong in its view that the High Court has no review jurisdiction in respect of arbitration proceedings;” and in paragraph 8.2 the applicant alleges that “our Courts have dealt with applications for setting aside such awards as ones for review.”

The foregoing recital displays what I may call an orgy of legal blunders on the part of the applicant's legal practitioner.

At the hearing, while conceding that this application should not have been brought by way of review, counsel for the applicant submitted, that, this Court is perfectly entitled to condone the use of the incorrect form of application seeking to rely on the case of Moyo v Forestry Commission 1996 (1) ZLR 173 (a case not cited in his Heads of Argument).

That case does not support the applicant's cause because it was overturned on appeal in the case of Forestry Commission v Moyo 1997 (1) ZLR 254.

In the earlier case, the point had been made in limine that a wrong procedure had been used and that the decision complained of should have been brought on review instead of an ordinary court application. The court a quo had held that the relief susceptible to review could be granted even though the proceedings had not been brought under the review procedure provided in the Rules. The court had also condoned the delay of over two (2) years, although there had been no application for condonation or explanation for the delay. The reason for so doing was that the decision to dismiss the respondent from employment was null and void because of gross procedural irregularities by the disciplinary enquiry, and so, to dismiss the application would constitute a failure to redress an injustice.

The Supreme Court, in overturning the decision of the court a quo, held inter alia, that, though the rules of court are not an end in themselves, to be slavishly applied for their own sake, they are there to regulate the practice and procedure of the High Court, and, in general, strong grounds would have to be advanced to persuade the court or judge to act outside them.

In casu, have strong grounds been advanced to persuade the court to act outside the Rules?

The answer must be perfectly in the negative. The orgy of legal blunders recited supra speaks for itself and admits of no other answer.

In spite of it having been pointed out that a wrong format has been employed in the launch of this application, the applicant persevered undaunted in its argument in futility that the application was one for review and that 'no magic is required to discern this much' and that the High Court has 'review jurisdiction in respect of arbitration proceedings.'

It was only in the applicant's Heads of Argument that the legal practitioner made an unexplained about turn stating that the application is one in terms of Article 34 of the Model Law, a review sui generis to be understood as one for setting aside in terms of Article 34(2)(b)(ii).

Article 34(2)(b)(ii) of the Model Law provides, that, the High Court can only set aside an arbitral award if it finds that the award is in conflict with the public policy of Zimbabwe.

The mere fact that the arbitral award is alleged to be 'in conflict with the public policy of Zimbabwe' as one of the grounds for review in the application per se does not imbue the review application with the nuance to transform it into an application in terms of Article 34 of the Model Law.

That an application under Article 34 of the Model Law must be made in terms of Order 32 and not Order 33 of the High Court Rules 1971 was put beyond doubt by GWAUNZA JA in Mtetwa and Anor v Mupamhadzi 2007 (1) ZLR 253 (S)…,.

The words of the learned Judge of Appeal, in that case, bear useful repetition for clarity. She said:

“It is contended for the appellants, that, they were perfectly within their rights to file an application for review/setting aside of the decision of the arbitrator in terms of Order 33 Rule 256 of the High Court Rules since there is nothing in that Rule which precluded them from bringing such an application.

This contention, I find, has no validity.

As discussed below, the Model Law, in its Article 34(1), makes it clear that recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paragraphs (2) and (3) thereof. Specifically, the relevant provision reads as follows:

'ARTICLE 34 Application for setting aside an exclusive recourse against arbitral award

(1) Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paras (2) and (3) of this article.'…,.

The use of the words 'exclusive' and 'only' in my view suggest that there is to be no compromise when it comes to an attempt to have an arbitral award set aside. The application must be made in terms of the provision cited. That provision quite simply and effectively precludes the applicants from filing their application for the setting aside of an arbitral award otherwise than in terms of paras (2) and (3) of Article 34.”

Further, the learned Judge of Appeal also found that the contention that there is nothing in Order 33 Rule 256 of the High Court Rules that prevented them from making the application in question under that Order was misplaced.

Article 34 of the Model, being part and parcel of a statute, the Arbitration Act, should hold dominance over Order 33 of the High Court Rules, which is subsidiary legislation.

In any case, so the learned Judge found, the purported application in question failed to satisfy even the provisions of Order 33.

Rule 256 of Order 33 makes it imperative by the use of the word “shall” for an applicant to “direct” his application to the person whose decision is to be reviewed, as well as to all other parties affected.

In the instant case, the application, as already pointed out above, was one for review of the arbitral award up until the stage of the applicant's Heads of Argument when a u-turn was made in a vain endeavour to clothe it with a semblance of one made in terms of Article 34 of the Model Law.

Indeed, the respondent avers that there is even an application before this court, in Case No.4120/10, seeking condonation for late filing of the review.

I did not hear the applicant to dispute this assertion.

It goes without quarrel that a wrong form for this application was adopted.

Even assuming that the application were permissible in terms of Order 33 of the High Court Rules, it would still fail to scale the insurmountable difficulty besetting it for flagrantly flouting provisions of Order 33.

Rule 256 of Order 33 makes it imperative by the use of the word “shall” for an applicant to “direct” the application to, inter alia, the person whose decision is to be reviewed, viz the arbitrator.

This omission to cite the arbitrator is fatal to a review application.

The applicant in casu did not cite the arbitrator.

In paragraph 4.3 of its answering affidavit, the applicant lamely tried to defend this omission saying “citing the Arbitrator as a party to the proceedings is not a rule cast in concrete. Such non-joinder is not fatal to the proceedings. In any event, the relief sought is against the respondent only.”

This argument does not hold water for it merely amounts to digging in the ashes.

Further, a review application in casu would also have been hamstrung by it being lodged outside the eight (8) week period permitted by the Rules.

It also does not state shortly and clearly the grounds for review.

In the result, on the totality of the numerous fundamental irregularities alluded to supra, I am satisfied that the application was improperly brought and is ill-conceived. I have no option but to dismiss it with no need to delve into the merits, with costs on the scale of legal practitioner and client.

It also behoves me to remark that I hope that Mr Kwaramba will not charge his client any fees regarding this aborted application.

View Appeal
SCSC20-16 : ZIMBABWE POSTS (PRIVATE) LIMITED vs COMMUNICATION AND ALLIED SERVICES UNION
Ruled By: MALABA DCJ, GOWORA JA and HLATSHWAYO JA

As a result of runaway inflation and the sliding value of the local currency, in February 2009 the Government of Zimbabwe adopted the multi-currency regime as a mode of conducting financial transactions.

Salaries that had been pegged on the local currency lost buying power in the hands of the recipients. It became necessary to re-negotiate salaries and benefits across the board with the unions representing the appellant's employees.

In casu, the parties were unable to agree on a minimum wage and allowances. It was resolved to submit the dispute to voluntary arbitration through the Commercial Arbitration Centre.

On 13 January 2010, the Commercial Arbitration Centre in Harare appointed M.P. Mahlangu ('the arbitrator') to arbitrate the dispute between the parties.

After hearing the parties, on 23 February 2010 the arbitrator issued an award in the following terms:

“For the period between 1 May and 31 August 2009, the salary of the lowest earning employee of the respondent company should receive an adjustment of US$25 in respect of each month, and for the period between 1 September and 31 December 2009 a further US$25 adjustment should be effected. The effect of this on the lowest earning employee of the respondent is that, in total, the back-pay payable to him or her will be US$300.

In doing this, I realise that further financial strain will be added to the respondent but believe that this is necessary in fairness to the claimant.”…,.

The appellant was aggrieved by the award, and, on 17 May 2010 it filed a Court Application in the High Court.

Attached to the court application, under separate cover, was what was termed an Application For Review. One of the grounds upon which the review was sought was “that the arbitral award was in conflict with the public policy of Zimbabwe.”…,.

The respondent filed papers in opposition in which it raised a number of preliminary issues on alleged procedural irregularities appearing on the papers.

When the matter was heard, the High Court upheld the objections raised by the respondent, and, on 1 December 2010 the court a quo dismissed the application without determining the merits of the dispute.

This appeal is against the dismissal.

In the court a quo, the respondent relied on the following points in limine:

1. That, the application was fatally defective in that it was not clear whether or not it was a court application or an application for review;

2. That, in the event that it was an application for review, the application did not comply with the provisions of Order 33 of the rules of the High Court and the court should find that it was filed out of time;

3. That, if it was a review the arbitrator ought to have been cited as a party to the proceedings;

4. That, in any event, an arbitral award is not subject to review and the High Court lacks the jurisdiction to review an arbitral award outside the provisions of the Arbitration Act [Chapter 7:15] (the “Act”).

In upholding the preliminary issues, the learned judge in the court a quo said:

“In the instant case, the application, as already pointed out above, was one for review of the arbitral award up until the stage of the applicant's Heads of Argument when a u-turn was made in a vain endeavour to clothe it with a semblance of one made in terms of Article 34 of the Model Law. Indeed, the respondent avers that there is even an application before this Court in Case No. HC4120/10 seeking condonation for the late filing of this review.

I did not hear the applicant to dispute this assertion. It goes without quarrel that a wrong form for this application was adopted.

Even assuming that the application was permissible in terms of Order 33 of the High Court Rules, it would still fail to scale the insurmountable difficulty besetting it for flagrantly flouting provisions of Order 33.

Rule 256 of Order 33 makes it imperative by the use of the word 'shall' for an applicant to 'direct' the application to, inter alia, the person whose decision is to be reviewed, viz, the arbitrator.

The applicant in casu did not cite the arbitrator. This omission is fatal to a review application.

In para 4.3 of its answering affidavit, applicant lamely tried to defend this omission saying 'citing the arbitrator is not a rule cast in concrete. Such non-joinder is not fatal to the proceedings. In any event, the relief sought is against the respondent only.'

Further, an application for review in casu would also have been hamstrung by being lodged outside the 8 week period permitted by the rules.

The application does not comply with the requirements for an application for review in that it does not state, shortly and clearly, the grounds upon which an application for review would be sought in terms of Order 33 of the Rules of the High Court.”

The criticism that the learned judge in the court a quo placed more emphasis on form rather than substance cannot be denied.

It is true that the format adopted in launching the application does indeed cause confusion.

The applicant appears to have merged two applications into one. There is a court application to which is annexed an application for review, thus creating the impression that the applicant to the process is not confident of what form the intended proceedings should take.

Nevertheless, the application for review lists as one of the grounds of the application that the arbitration award was in conflict with the public policy of Zimbabwe.

That is a ground for review which is peculiar to the Arbitration Act, and, in particular, Article 34(2)(b)(ii) of the Model Law incorporated in the Arbitration Act.

To show the confusion under which the appellant's counsel was labouring under; in the answering affidavit, it is averred that the application is one for review in terms of the said Rules.

It was only in the heads of argument that reference was made to the Model Law.

Notwithstanding reliance by the appellant on the Model Law as a basis for the application, the court a quo was persuaded to find, that, what was before it was an ordinary review which had been brought in defiance of the provisions of Order 33 of the rules of the High Court.

Order 33 does not set out the grounds upon which a review may be launched. It merely sets out the form an application should take and sets out time limits for bringing such application.

The grounds upon which a review may be brought are set out in the High Court Act [Chapter 7:06], in particular section 27 thereof which reads in relevant part:

“27 Grounds for Review

(1) Subject to this Act and any other law, the grounds on which any proceedings or decision may be brought on review before the High Court shall be -

(a) Absence of jurisdiction on the part of the court, tribunal, or authority concerned;

(b) Interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case may be;

(c) Gross irregularity in the proceedings or the decision.

(2) Nothing in subsection (1) shall affect any other law relating to the review of proceedings or decisions of inferior courts, tribunals, or authorities.”

An examination of the additional grounds upon which the applicant sought reliance for relief points to those grounds as being an amplification of the first ground rather than grounds of review under Order 33 of the rules of the High Court.

None of those grounds are such as contemplated by the High Court Act as being grounds upon which the court could set aside any decision on the basis of its powers of review.

The conclusion by the court a quo, to the effect that what was before it was an ordinary review was therefore a misdirection.

The issue that begs an answer is: how the court a quo should have dealt with the matter given the apparent confusion that had been created by the appellant in settling its papers.

An application must be disposed of on the basis of the founding affidavit.

The only ground for review referred to in the affidavit is that the award is contrary to the public policy of Zimbabwe.

Granted, there is an averment within the affidavit to the effect that the decision of the arbitrator was irrational, but, the statement is made in the context of justifying the claim that the award was in conflict with the law.

The court a quo overlooked the dicta in ZESA v Maposa 1999 (2) ZLR 452 (S) wherein GUBBAY CJ stated…,.:

“Certainly, for some reason not easy to comprehend, the application purported to be in the nature of a review to the High Court rather than one brought pursuant to Article 34(2)(b)(ii) of the Model Law. Consequently, the ground justifying an order that the award be set aside was specified as 'gross unreasonableness in the decision arrived at.'

However, one of the particulars given of such unreasonableness was that the arbitrator had erred 'in holding that ZESA did not comply with section 13(2) of the code of conduct.'

This was to be read in conjunction with the earlier explanatory statement of the Chief Executive, that, the application in which Maposa sought an order that the looming disciplinary proceedings be held before an independent arbitrator as opposed to the disciplinary committee of the Board, caused such proceedings to be stayed.

When so viewed, it seems to me that the complaint, by implication, sets out the factual basis for the application to set aside the award as a breach of Article 34(2)(b)(ii). This is how the learned judge understood the contention, and, I do not think he was wrong. Accordingly, I am not persuaded that the objection raised is valid.”

In my view, these remarks apply with equal force to the facts of this case.

The facts, as contained in the founding affidavit, cried out for the setting aside of the award on the basis that it was contrary to the public policy of Zimbabwe.

Here, rather than an implication of the relief being sought, there was a statement identifying the basis upon which the award was being challenged. There was no need for further amplification, and, the fact that the applicant thereto described the application as one for a review to the High Court did not change the substance of what it was.

The applicant might have been confused as to the form that it was meant to take, but, the legal principle upon which the award was challenged was clearly stated and identified in the founding papers.

The heads of argument filed in support of the application state clearly and succinctly, that, the challenge to the award was predicated on the ground that recognition of the award would be contrary to the public policy of Zimbabwe.

The essence of the application was not lost upon the learned judge who commented that “…, the gravamen of the application is essentially for the setting aside of an arbitral award.”…,.

It becomes obvious that the learned judge understood the contention of the application and premise upon which it had been brought. It is then difficult to fathom the rationale for refusing to entertain the same on the premise that it was a review to the High Court.

The view I take is that there was no application for review before the court a quo. What was filed was an application to set aside an arbitral award under the Model Law.

It was for these reasons that we allowed the appeal and issued an order in the following terms:

“It is 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 for a determination on the merits by the same judicial officer.”

SC81-22 : EDMORE MAPONDERA and 55 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LIMITED
Ruled By: MAVANGIRA JA, BHUNU JA and CHITAKUNYE JA

In Edmore Taperesu Mazambani v International Trading Company (Private) Limited and Anor SC88-20 MATHONSI JA..., said:“This is a court of justice which is required to resolve the real issues between the parties. It should not dabble too much into small technicalities.”...,.It is also self-evident that the general courts of law ...

SC81-22 : EDMORE MAPONDERA and 55 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LIMITED
Ruled By: MAVANGIRA JA, BHUNU JA and CHITAKUNYE JA

This is a partial appeal against the judgment of the Labour Court (the court a quo) LC/H/2/19 dated 7 February 2019. The appeal is against the court a quo's ruling on the question of citation of the parties and the arbitrator's failure to award damages as an alternative to reinstatement.

The appeal was initially set-down for hearing on 11 September 2020 whereupon it was removed from the roll by consent of the parties to consider placing it before a full Bench comprising a panel of five (5) judges in terms of section 3 of the Supreme Court Act [Chapter 7:13].

Upon due consideration of the nature and complexity of the appeal, the learned presiding judge determined that there was no need to set up a full Bench comprising five (5) judges to deliberate over the appeal as it was eminently capable of resolution by a three panel Bench as previously constituted.

The appeal was then set down for hearing before the same panel of judges on 16 June 2021.

BRIEF SUMMARY OF THE CASE

The 56 appellants were employed by the respondent, Freda Rebecca Mine Holdings Limited, in various capacities at its mine in Bindura. Owing to virulent economic hardships at the time, the respondent ceased its mining operations sometime in 2008 without terminating the appellants respective contracts of employment.

Sometime in 2009, the respondent sought to resuscitate its mining operations.

In doing so, it unilaterally sought to re-engage the appellants on inferior contracts different from those obtaining as at the time it ceased operations in 2008.

A dispute then arose concerning the appropriate terms of employment upon resumption of mining operations.

Following failure to resolve the dispute, the respondent arbitrarily wrote to the appellants terminating their original contracts of employment.

The termination letters were written on a standard letterhead bearing the name FREDA REBECCA GOLD MINE. The letters were signed by one T Chivonivoni who designated himself/herself as the GENERAL MANAGER-FREDA REBECCA GOLD MINE.

Dissatisfied by the turn of events, the appellants took the dispute to the Designated Agent.

The Designated Agent referred the dispute to conciliation.

Upon failure of the conciliation process, the conciliator issued a Certificate of No Settlement and completed a Reference to Arbitration on a standard form in which he designated the parties as “Freda Rebecca Mine alleged unfair labour practice of E Mapondera and 60 others.”…,.

The reference form is dated 12 May 2010.

It is common cause that the proper citation of the respondent, as a party to legal proceedings, ought to have been Freda Rebecca Gold Mine Holdings Limited.

TERMS OF REFERENCE

The arbitrator's terms of reference were “to determine whether the dismissal of E. Mapondera and 60 others was lawful or not.”

At the hearing before the arbitrator, the respondent took the preliminary objection, that, apart from Edmond Mapondera, the rest of the remaining appellants had no locus standi because their names had not been listed as claimants and E. Mapondera was not authorised to represent them.

Counsel for the appellants argued, that, the respondent had always been aware that the case involved 61 employees whose identities had not been placed in issue at conciliation stage. It was only at the arbitration stage that the respondent belatedly sought to make it an issue.

During the course of the arbitration proceedings, the arbitrator was then provided with a list of the concerned employees comprising a total of 58 claimants. The list of the claimants who were party to the proceedings was availed to the respondent.

The arbitrator dismissed the objection in limine on the ground, that, the appellants had a real and substantial interest in the matter and that right from the initiation of the legal proceedings the respondent knew the identity of its adversaries.

Having dismissed the preliminary objection, the arbitrator proceeded to make an award in favour of E. Mapondera and 57 others on 12 January 2011. The award was couched in the following terms:

“1. That, the claimants are hereby reinstated to their positions without loss of salary and benefits with effect from the date of unlawful dismissal.

2. Each party to meet its own costs.”

Dissatisfied with the arbitral award, the respondent appealed to the court a quo with partial success. It took the following four (4) grounds on appeal:

“1. The Honourable arbitrator unprocedurally accepted evidence submitted by the claimants subsequent to the arbitration hearing in respect of the purported hearing in respect of the purported identity of the innominate (sic) 60 other claimants who had not been included by name in the original claim.

2. The Honourable arbitrator fundamentally misdirected himself in finding, that, since the alleged 60 other employees had a substantial interest in the matter they did not need to be identified and to be made parties in arbitration proceedings before him. The fact that the employees have any kind of interest in the matter did not dispense with the entitlement of the appellant to know who the said appellants were at the commencement and during the course of the proceedings. The production of the names of the employees subsequent to the hearing, and without an opportunity for the appellant to challenge the accuracy of the names and the positions so stated for the employees, violated the appellant's right to a fair hearing before an independent and impartial tribunal.

3. The Honourable Arbitrator fundamentally misdirected himself in failing to find that the contracts of employment for the said employees, E. Mapondera & 60 Others, had terminated by operation of law and the appellant could only re-engage the employees in terms of new contracts of employment. The said former employees, having refused to sign new contracts of employment, the appellant lawfully confirmed the termination of their contracts of employment by operation of law on the 5th of March 2010.

4. The Honourable arbitrator fundamentally misdirected himself in ordering the reinstatement of E. Mapondera & 60 other employees without affording the Appellant an opportunity to pay damages in lieu of reinstatement. The order of reinstatement, without the alternative for the payment of damages, is not consistent with the ordinary rules of the law of contract and the specific circumstances of the appellant.”

THE RELIEF SOUGHT

On the basis of the above grounds of appeal, the appellant sought the following relief:

“(i) That the claimant's claim be and is hereby dismissed.

(ii) Alternatively, that, in the event that the Honourable court finds that the contracts of employment for the Respondents were not lawfully terminated, that the Appellant is hereby directed to pay the Respondents damages in lieu (sic) of reinstatement.

(iii) The Respondents shall pay the costs of suit.”

Upon consideration of the facts and the law, the court a quo found that the arbitration proceedings were a nullity at law because the claimants had cited a non-existent person and that the 2nd to 60th employees were not a party to the arbitration proceedings.

It also found, that, the arbitrator had no discretion to award reinstatement without an alternative of payment of damages for unlawful dismissal. It therefore ordered as follows:

“It is accordingly ordered that -

1. The appeal be and is hereby allowed on grounds 1, 2, 4 and 5.

2. The appeal falls on ground of appeal 3.

3. Overly, the appeal succeeds as the proceedings were a nullity due to wrong identity of the employer.

4. Each party to bear its costs.”

Aggrieved by the above order, the appellants appealed to this Court challenging the court a quo's order on the following grounds:

“GROUNDS OF APPEAL

1. The court a quo erred at law in finding that the citation of the respondent, through its trade name 'Freda Rebecca Mine' was such an irregularity whose effect rendered the entire proceedings a nullity.

2. The court erred at law in finding that 2nd to 61st appellants were not properly cited before the Arbitrator and that the extent of the impropriety was such that they were all not party to the arbitration proceedings.

3. The court a quo erred at law in finding that the Arbitrator has no power to order an employer to reinstate an unlawfully dismissed employee without giving the same employer the option to pay damages in lieu of reinstatement to the employee.”

On the basis of the above grounds of appeal, the appellants prayed for the following relief:

1. That the appeal succeeds with costs.

2. That the judgment of the court a quo is partially overturned and the order substituted with the following:

“(a) The preliminary point raised by the Appellant relating to its mis-citation be and is hereby dismissed.

(b) The preliminary point raised by the Appellant relating to the proper citation of the 2nd to the 61st Respondents be and is hereby dismissed. The 2nd to 61st Respondents are hereby held to be properly before the court.

(c) The appeal be and is hereby dismissed with costs and the arbitration award be and is hereby upheld.”

ISSUES FOR DETERMINATION

The grounds of appeal raise the following three cardinal issues for determination:

1. Whether or not the alleged improper citation of the respondent rendered the entire proceedings a nullity.

2. Whether or not the appellants were properly before the Arbitral Tribunal.

3. Whether or not it was proper for the Arbitral Tribunal to order reinstatement of the appellants without an alternative of payment of damages in lieu of reinstatement.

ANALYSIS AND DETERMINATION OF THE ISSUES

It is pertinent to note at this juncture, that, the judgment appealed against in this case is, to a large extent, grounded on legal technicalities.

A lot of industry has been expended by learned counsel in placing reliance on procedural legal technicalities that are best suited for courts of law rather than arbitral tribunals.

It is trite that the object of arbitral tribunals is to do simple justice for the common person without being shackled by legal technicalities and formalities pertaining to an ordinary court of law. To this end, in arbitration, the rules of procedure are often relaxed and the arbitrator has a wide discretion provided that justice can be attained without doing violence to the basic tenets of natural justice.

Likewise, section 90A of the Labour Act [Chapter 28:01] is meant to unshackle the court a quo from the vice grip of rigid legal rules, formality, and technicalities. It provides as follows:

“90A Procedure and evidence in the Labour Court

(1) The Labour Court shall not be bound by the strict rules of evidence, and the court may ascertain any relevant fact by any means which the presiding officer thinks fit and which is not unfair or unjust to either party.

(2) Evidence may be adduced orally or in writing in any proceedings in the Labour Court, at the discretion of the presiding officer.

(3) The parties or their representatives to any proceedings in the Labour Court shall be entitled to question or cross-examine each other or any witness.

(4) It shall be the responsibilities of the presiding officer to ascertain the facts in any proceedings in the Labour Court, and, for that purpose, he or she may —

(a) Call any party or his or her representative;

(b) Question or cross-examine any party or his or her representative or witness; and

(c) Put any question to a party or his or her representative or witness which is suggested to him or her by any party.”

It is self-evident that section 90A of the Labour Act distinguishes ordinary courts of law from the Labour Court as a special court. The law maker therefore saw it fit to confer the court a quo with a wider discretion than that obtaining in the ordinary courts of law in order to do simple industrial justice.

Because of their legal training and the involvement of lawyers, Labour Court judges often stray into the morass of legal jargon and technicalities much to the bewilderment of the unsophisticated litigants. This unwelcome tendency has the undesirable effect of mystifying industrial legal proceedings thereby clouding the dispensation of industrial justice. It therefore acts as a barrier to accessing industrial justice.

This prompted McNALLY JA in Dalny Mine v Banda 1999 (1) ZLR 220 (S) to remark that:

“As a general rule, it seems to me undesirable that labour relations matters should be decided on the basis of procedural irregularities. By this, I do not mean that such irregularities should be ignored. I mean that such irregularities should be put right.”

In Edmore Taperesu Mazambani v International Trading Company (Private) Limited and Anor SC88-20 MATHONSI JA had occasion to make similar remarks when he said:

“This is a court of justice which is required to resolve the real issues between the parties. It should not dabble too much into small technicalities.”

It is therefore clear from the authorities, that, the primary function of the court a quo is to do simple justice between the parties without dwelling too much on legal technicalities. It is also self-evident that the general courts of law are beginning to mellow and drift towards the idea of correction of simple procedural errors in order to do real and substantial justice.

When interpreting statutes and codes of conduct, the court a quo should endeavour to give a broad liberal interpretation that is not embroiled in flimsy legal technicalities in order to achieve social justice based on equitable labour standards.

On that score, I now proceed to determine whether or not the alleged improper citation of the respondent rendered the entire proceedings a nullity.

WHETHER OR NOT THE ALLEGED IMPROPER CITATION OF THE RESPONDENT RENDERED THE ENTIRE PROCEEDINGS A NULLITY

Generally speaking, it is undisputable and a matter of trite elementary law, that, one cannot sue a non-existent person.

In the leading case of Gariya Safaris (Pvt) Ltd v Van Wyk 1996 (2) ZLR 246 (H) the High Court had occasion to remark that:

“A summons has legal force and effect when it is issued by the plaintiff against an existing legal or natural person. If there is no legal or natural person answering to the names written in the summons as being those of the defendant, the summons is null and void ab initio.”

That proposition of law was cited with approval by this Court in Fadzai John v Delta Beverages SC40-17 and a host of other cases cited by the respondent from both local and foreign jurisdictions. It is thus settled law and a matter of common sense that one cannot sue a non-existent person.

The main distinguishing feature in this case is that arbitral proceedings are different from trial proceedings in courts of law.

Sight should therefore not be lost that trial proceedings in a court of law are commenced by summons drafted by the plaintiff. On the other hand, arbitral proceedings are commenced by a reference drafted by the conciliator in terms of the Labour Act. The claimant has no control over the drafting of the reference to arbitration whereas the plaintiff has full control over the drafting of the summons.

It would therefore seem unfair and unjust to penalise the claimant for the sins of the conciliator in crafting the reference.

Counsel for the appellants further argued, that, where there is a person who actually exists who is sued in their colloquial, nickname, or some other informal name, an amendment is permissible to formalise or regularise the citation.

For that proposition of law, he placed reliance on the South African case of Four Tower Investments (Pty) Ltd v Andre's Motors 2005 (3) SA 39 (N) among others.

In that case, shortly before the hearing of the appeal it was discovered, that, in the summons and particulars of claim, the plaintiff had been incorrectly cited and referred to as a company called Four Tower Investments (Pty) Ltd whereas it had been at all times a close corporation called Four Tower Properties CC. In the lease agreement, which was the subject of the dispute between the parties, it was also referred to as a company.

The letting agent was responsible for the mis-description.

Following an application for an amendment to regularize the citation, the court held that under the circumstances, an amendment was permissible. The headnote reads:

“An application for an amendment would always be allowed unless it was made mala fide or would cause prejudice to the other party which could not be compensated for by an award of costs or by some other suitable order such as a postponement: (At 43H).

Held, further that there had been a gradual move from an overly formal approach, and, in line with this approach, courts should be careful not to find prejudice where none really exists: (At 44I-J).

Held further, that the fact, on its own, that the citation or description of a party happened to be of a non-existent entity should not render the summons a nullity.

Held further, that in the present case the citation of the plaintiff had been nothing more than a mis-description and the application for amendment had to be allowed: (At47F).”

It is needless to say that Four Tower Investments (Pty) Ltd v Andre's Motors 2005 (3) SA 39 (N) is on all fours with the instant case. The judgment is grounded on sound logic and meets the ends of justice between litigants.

Back home, in Muzenda v Emirates Airlines & Others HH775-15 the Emirates Airlines had been mis-described as Arab Airlines. In allowing the amendment to regularize the name, MATANDA MOYO J had this to say:

“I am of the view that the description of a party to a suit does not immutably determine the nature and identity of a party. The Law Reports are full with instances where the correct description of a party was allowed, in the absence of prejudice to the other party involved. This would be done after an application to amend.

The plaintiff herein was not diligent.

After being advised of the wrong citation of first defendant, all she had to do was apply for amendment. I would have granted such amendment as I am of the view that there was no prejudice to first defendant.

However, the court can only do so upon asking. The court cannot mero motu grant orders not sought.

Without such amendment, the first defendant remains wrongly cited: see ZFC Ltd v Taylor 1999 (1) ZLR 308 and Order 20 Rule 132 and 134 of this court's rules; Commercial Union Assurance Company Limited v Waymark NO 1995 (2) SA.”

The learned judge beautifully articulates the law in circumstances that are on all fours with the case at hand.

In the same vein, in Masuku v Delta Beverages 2012 (2) ZLR 112 (H) the same court held that:

“…, generally, proceedings against a non-existent entity are void ab initio and thus a nullity. However, where there is an entity which, through some error or omission, is not cited accurately, but where the entity is pointed out with sufficient accuracy, the summons would not be defective.”

I could go on and on, but, the principle of law established by case law is clear.

Where an existing entity is inadvertently mis-described in judicial proceedings it is permissible to apply for correction of the anomaly in good faith provided that there is no irreparable prejudice to the other party.

It is common cause, that, taking a cue from laid down precedent, the appellants successfully applied to the court a quo, before the same judge, for an amendment of the citation of the respondent's name. He granted the order on 31 May 2018 under order number LC/MD/ORD/78/2018. It reads:

“It is ordered that:

1. The application to amend the citation of the respondent be and is hereby granted.

2. Each party is to bear its own costs.”

It is amazing, that, when the matter came up for hearing on the merits, the same judge held that the proceedings before the arbitrator were a nullity because the appellants had sued a non-existent person.

This was clearly a serious misdirection considering that the honourable judge was bound by his earlier order that had regularised the incorrect citation of the respondent.

WHETHER OR NOT THE APPELLANTS WERE PROPERLY BEFORE THE ARBITRAL TRIBUNAL

It will be remembered, that, the arbitrator's terms of reference were “to determine whether the dismissal of E. Mapondera and 60 others was lawful or not.”

It is trite, that, an arbitrator is bound by the given terms of reference. He has no jurisdiction outside the terms of reference.

The respondent's objection sought to amend the terms of reference by limiting the terms of arbitration to E. Mapondera to the exclusion of the 60 other employees.

This the arbitrator could not do as it would amount to a violation of his terms of reference.

Placing reliance on the High Court cases of Panganai and 20 Others v Kadir and Sons (Private) Limited HH26-95 and Prosser and 35 Others v Ziscosteel Company Limited HH201-93, the learned judge a quo held, that, apart from E. Mapondera, the other 60 employees were not properly before the arbitrator. He reasoned, that, this was because the arbitrator had not been provided with a list of their names and they had not filed affidavits professing joinder to the arbitral proceedings.

It is rather ironic, if not irrational, that, the respondent sought validation of dismissals that were carried out in the name of a non-existent person styled Freda Rebecca Gold Mine which it disowns.

It was therefore a serious misdirection, that, after holding that the proceedings before the arbitrator were a nullity, the learned judge proceeded to determine the appeal on the merits. This was despite his ruling that there was no respondent before him.

What escaped the learned judge a quo's attention is that the two precedents he relied upon…, above were determined by the High Court in terms of the High Court Rules, which are not strictly applicable to arbitration proceedings in terms of the Labour Act.

Again, the learned judge failed to distinguish arbitral proceedings from trial proceedings in a court of law.

Conscious of his obligation to determine the complaint of the 60 other employees by reference, the arbitrator properly sought and obtained clarification on the identities of these other employees.

That clarification was communicated to the respondent thereby giving it an opportunity to be heard on the authenticity of the list of names provided. There was therefore no prejudice to the respondent, real or imagined.

In my view, the arbitrator did not misdirect himself in any way as that was the correct thing to do to facilitate the proper discharge of his mandate in terms of the reference.

Thus, again, the learned judge a quo misdirected himself and fell into error by holding that the other 60 appellants were not properly before the arbitrator.

Having come to the conclusion that the 60 other employees were not properly before the arbitrator, it was remiss of the learned judge a quo to proceed to deal with the merits of the appeal before him.

He, again, erred in this respect.

The proceedings beyond that finding were therefore a legal nullity. They cannot stand in light of the gross misdirection by the learned judge a quo.

WHETHER OR NOT IT WAS PROPER FOR THE ARBITRAL TRIBUNAL TO ORDER REINSTATEMENT OF THE APPELLANTS WITHOUT AN ALTERNATIVE OF PAYMENT OF DAMAGES IN LIEU OF REINSTATEMENT

In view of the finding that the proceedings pertaining to the merits of the case were a legal nullity, it shall not be necessary to determine the above issue.

DISPOSAL

For the foregoing findings of fact and law, I hold that both the appellants and the respondents were properly cited and lawfully appeared before the arbitrator.

The court a quo fell into error and misdirected itself by nullifying the proceedings before the arbitrator without any legal basis. The court a quo therefore ought to have dismissed both objections in limine and proceeded to hear and determine the appeal on the merits.

In the result, it shall be necessary to reverse the court a quo's judgment and order a re-hearing of the appeal before a different judge, as the judge a quo's views appear to have been clouded by his earlier faulty findings of fact and law.

Costs follow the result in respect of the appeal, whereas costs of the objection in limine shall be in the cause.

It is accordingly ordered that:

1. The appeal be and is hereby allowed with costs being costs in the cause.

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

“(a) The preliminary points raised by the appellant, relating to its mis-citation, be and is hereby dismissed.

(b) The preliminary point raised by the appellant, relating to the proper citation of the 2nd to the 60th respondents, be and is hereby dismissed. The 2nd to 60th Respondents are hereby held to be properly before the court.”

3. The court a quo's determination on the merits of the appeal before it be and is hereby quashed and set aside.

4. The matter be and is hereby remitted to the court a quo for a hearing de novo of the appeal before a different judge.

SC85-22 : BERNARD MUTANGA vs TSITSI MUTANGA
Ruled By: MAVANGIRA JA, UCHENA JA and MUSAKWA JA

This is an appeal against the entire judgment of the High Court delivered on 5 February 2020.

The court a quo held that eighty-five percent (85%) of Number 16 Hawkshead Drive, Borrowdale, also known as Lot 1 of Lot 4 of Lot FA Quinnington situate in the District of Salisbury, measuring 1,2770 Morgen held under Title Deed 3999/96 be awarded to the respondent as her sole and absolute share with the appellant being awarded the remaining 15 per cent share.

BACKGROUND FACTS

The appellant and the respondent married in terms of the Marriage Act [Chapter 5:11] in 1996. Both parties were business partners involved in the property sector. The appellant was into property development and the respondent was into real estate management. Both were directors of a company called Bern-win Development Company.

This company was liquidated, and the parties lost everything.

They were advised, by their lawyers, to separate their business properties from their family assets by forming Trusts.

Consequently, Mai-Kai Property Development Trust was formed in January 2000 and Paradza Trust in July 2000. The beneficiaries of both Trusts were Tsitsi Mutanga, Bernard Tanatsa Mutanga, Lucinda Ropafadzo Mutanga, and Rusiya Mutekenya, who is the appellant's mother.

It was the intention of both parties that Paradza Trust be the asset holding Trust while Mai-Kai Property Development Trust would be the property selling Trust.

The proceeds of the business were pooled together and used to buy assets for the family which were registered under Paradza Trust.

Unfortunately for the parties, their marital relationship broke down and the respondent issued summons for divorce in which she cited irretrievable breakdown of the marriage as the cause for divorce. She further sought an order for distribution of the assets of the parties.

PROCEEDINGS BEFORE THE COURT A QUO

During the proceedings in the court a quo, the parties agreed on all ancillary issues including custody and maintenance of their children save for the distribution of one immovable property which is No.16 Hawkshead Drive, Borrowdale (hereinafter referred to as the property).

According to the appellant, the property was not an asset of the spouses.

He claimed, that, the property belonged to a private company called Brabourn Investments (Private) Ltd and that the company was wholly owned by Brabourn Trust of which the respondent was neither a trustee nor a beneficiary.

The appellant further claimed, that, the reason why the property could not be distributed in terms of section 7 of the Matrimonial Causes Act was that Paradza Trust had failed to raise the purchase price and hence the sale was not perfecta.

He also claimed that it was at that point that Brabourn Trust purchased the shares in Brabourn Investments (Private) Limited.

He however failed to produce evidence to the effect that Paradza Trust had failed to raise the purchase price and that the contract had been cancelled.

According to the evidence adduced by the respondent during the trial, the property was acquired through the purchase of shares in Brabourn Investments (Private) Limited by Paradza Trust.

Paradza Trust purchased 100 per cent paid up shares in Brabourn Investments (Private) Limited which represented ownership of the property. The effect of such acquisition was that the property now vested in Paradza Trust in which the appellant, the respondent, their children, and the appellant's mother were beneficiaries.

The respondent claimed that the property in dispute was an asset owned by both parties, and, as such, was distributable in terms of section 7 of the Matrimonial Causes Act [Chapter 5:13].

The respondent further testified, that, Brabourn Trust which was purported to own Brabourn Investments (Private) Limited, was fraudulent.

She highlighted to the court, that, the Trust Deed creating Brabourn Trust was null and void as it did not have the mandatory protocol number; that the dates in the Deed were inconsistent with the sequence of events; and, lastly that the legal practitioner who purported to have drafted and registered the Trust Deed was still at law school at the time of such registration, and, as such, was not yet practicing law.

Basing on the evidence placed before it, the court a quo held that No.16 Hawkshead Drive, Borrowdale was an asset that belonged to Paradza Trust.

It further held that the property was distributable in terms of section 7 of the Matrimonial Causes Act.

It also held that Brabourn Trust was a stratagem by the appellant to thwart the respondent's claim to the property.

The property was then distributed, with the respondent being awarded an 85 per cent share in the property while the appellant received the remaining 15 per cent share.

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

1. The court a quo misdirected itself in finding that number 16 Hawkshead Drive, Borrowdale was a family asset and registered in Paradza Trust that could be distributed, a finding which is contrary to the evidence presented.

2. The court a quo misdirected itself in finding that the Brabourn Trust Deed was null and void.

3. The court a quo erred at law when it concluded that Paradza Trust was the original purchaser of Brabourn Investments (Private) Limited with 100 per cent paid up shares, being the only one with a claim to number 16 Hawkshead Drive, Borrowdale.

4. The court a quo erred at law when it concluded, that, the respondent was entitled to a share of number 16 Hawkshead Drive, Borrowdale, not just as a spouse but as a beneficiary of Paradza Trust, when there was no evidence that Paradza Trust acquired the property.

5. The court a quo misdirected itself in granting an order that number 16 Hawkshead Drive, Borrowdale also known as Lot 1 of Lot 4 FA Quinnington situate in the District of Salisbury held under title deed number 3999/96 measured 1,2770 Morgen instead of 1,0938 hectares.

SUBMISSIONS ON APPEAL

The appellant's counsel argued, that, the property in dispute did not belong to the appellant individually, and that it had not been purchased by and was not owned by Paradza Trust. He submitted, that, it did not fall under the ambit of property that was distributable under section 7 of the Matrimonial Causes Act as it was owned by a third party, which is Brabourn Investments (Private) Limited.

He further argued, that, besides the agreement of sale of the 100 per cent shares in Brabourn Investments (Private) Limited, there is no proof of transfer to Paradza Trust, which further clarifies the position that the property belonged to Brabourn Trust.

Counsel for the respondent, per contra, argued that the property belongs to Paradza Trust.

She submitted that the parties lived on the premises until the time they decided to lease it out.

She further submitted that to date, the property belongs to Paradza Trust and all monies derived from that property go to the beneficiaries of the Trust, who, at the time of registration were Rusiya Mutekenya (appellant's mother), their two children, Bernard Tanatsa Mutanga, Lucinda Ropafadzo Mutanga, and the respondent herself.

As will become apparent shortly, both counsels were asked to address this Court on the non-joinder of the trustees of Paradza Trust.

Counsel for the appellant submitted, that, the trustees of Paradza Trust should have been joined in the proceedings a quo. On the other hand, counsel for the respondent submitted that the issue of joinder was defeated by the appellant's claim that the property belonged to Brabourn Trust. That is why the chairman of the Trust was subpoenaed to testify before the court a quo.

Counsel for the respondent also placed reliance on section 7 of the Matrimonial Causes Act which provides that a court can direct that property of one spouse be transferred to another spouse.

ANALYSIS

In view of the non-determination by the court a quo of an issue that was argued before it, this appeal stands to be disposed of on that very issue.

It therefore becomes unnecessary to advert to the appellant's grounds of appeal.

At the onset of trial in the court a quo, counsel who appeared for the appellant highlighted to the court a quo that it was now seized with an issue in relation to whether or not the trustees who administered the property should be ordered to transfer property to either of the parties, when the trustees had not been cited in the proceedings.

He further submitted, that, there had been a material non-joinder of interested parties in the proceedings in that the court a quo was being asked to distribute the property of other people who were not parties to the proceedings.

Counsel who appeared for the appellant a quo went further to submit, that, while in terms of the rules a Trust can be cited in its own name, it does not hold property in its own name, but it does so for the benefit of the beneficiaries. Hence, the trustees should have been cited.

Lastly, he submitted that it would be more convenient, just, and proper for the administration of justice for the Trust to be joined to the proceedings to enable it to protect the interests of the beneficiaries.

Counsel for the respondent a quo drew the court a quo's attention to the joint pre-trial conference minute in which one of the issues was whether any trustees should be ordered to transfer assets to the parties. She further submitted that, that was why the joint pre-trial conference minute had been crafted in such a fashion.

She also submitted, that, there had been difficulties in establishing the identities of the trustees.

The appellant was also blamed for not furnishing the respondent with all the documentation that had been requested.

One of the issues in the joint pretrial conference minute was:

“Whether it would be fair and equitable to order any Trustees to transfer any of the Trust assets to either of the parties.”

The court a quo resolved to proceed with the matter notwithstanding that the issue of joinder had been raised.

In its judgment at the conclusion of the proceedings, the court a quo did not address the issue of joinder of the trustees.

I agree with counsel for the appellant a quo's submissions regarding the non-joinder of interested parties to the proceedings - especially the trustees. This is the same submission made by counsel for the appellant on appeal following questions from the Bench.

The duty of an Appellate Court is to determine whether a trial court came to the correct conclusion of the case that was placed before it. In this respect see the cases of Goto v Goto 2001 (2) ZLR 519 (S) and Cole v Government of the Union of South Africa 1910 AD 263.

A court is enjoined to determine all issues placed before it unless the issue that it determines to the exclusion of other issues is dispositive of the dispute before it: see the case of Longman Zimbabwe (Pvt) Ltd v Midzi and Others 2008 (1) ZLR 198 (S).

According to the decision in Arafas Mtausi Gwaradzimba v C.J. Petron and Company (Proprietary) Limited SC12-16 failure by a court to consider an issue placed before it amounts to gross irregularity.

Therefore, the failure by the court a quo to determine whether the trustees should have been joined to the proceedings amounts to gross irregularity.

DISPOSITION

In terms of section 25 of the Supreme Court Act [Chapter 7:13], the Supreme Court has certain powers that are vested in it which include the power to review proceedings and decisions of lower courts.

Of particular importance is subsection (2) which provides, that, the powers to review can be exercised whenever it comes to the attention of a judge or the Supreme Court that an irregularity has occurred in any proceedings notwithstanding that such proceedings or decision is not the subject of appeal.

It has come to this Court's attention, that, there was an irregularity in the proceedings of the court a quo, and, such irregularity is not the subject of appeal. The irregularity pertains to the court a quo's omission to determine the issue of joinder despite the fact that such issue was argued before the court a quo.

In light of the disposition of the appeal on a ground not raised in the notice of appeal, the appellant will not be awarded costs.

The matter will have to be remitted to the court a quo for hearing afresh before another judge since the trial judge is no longer on the Bench.

This will be subject to joinder of other interested parties.

In the result, it is ordered as follows:

(1) The appeal be and is hereby allowed.

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

(3) The matter is remitted to the court a quo for hearing afresh before another Judge.

(4) Each party shall bear its own costs.

SC88-22 : LOT SYATIMBULA vs CITY OF VICTORIA FALLS (FORMERLY VICTORIA FALLS MUNICIPALITY)
Ruled By: GWAUNZA DCJ, MATHONSI JA and CHIWESHE JA

Following a successful appeal to this Court against a judgment of the High Court ordering the eviction of the appellant from House Number 484 Jakaranda Drive, Victoria Falls (the house) when it had not heard the merits of the dispute, but only points in limine, this Court handed down judgment ...

SC102-22 : SAMANTHA NHENDE vs ANDREW ZIGORA and REGISTRAR OF DEEDS N.O.
Ruled By: BHUNU JA, MATHONSI JA and CHATUKUTA JA

On 6 April 2022, after hearing a contested urgent application for an interdict made by the first respondent, the High Court (“the court a quo”) granted a final order in the following terms:

“Accordingly, it is ordered as follows:

(a) Pending the finalisation of the applicant's claim under case number HC5227/21 the first respondent is hereby interdicted from dealing in any manner with the immovable property known as number 2 Glynde Avenue, Mabelreign, Harare held under Deed of Transfer number 2120/2017 registered in the name of the first respondent that may cause encumbrances or dispose by selling it to any third party.

(b) The first respondent be and is hereby ordered and directed not to alienate or remove any such improvement made on the property specified in para (a) until the matter under case number HC5227/21 is finalised.

(c) The second respondent, pending the finalisation of the applicant's claim under case number HC5227/21, be and is hereby ordered and directed to place a caveat on the property specified in para (a).

(c) There shall be no order as to costs.”

This appeal is against the whole judgment of the court a quo.

THE FACTS

The appellant, a female adult, and the first respondent, a male adult, entered into an unregistered customary union in August 2015 and were delighted to commence living together as husband and wife about October 2015.

During the subsistence of their customary union, they acquired both movable and immovable property, including House Number 2 Glynde Avenue, Mabelreign, Harare which is solely registered in the name of the appellant.

The mortgage finance sourced to acquire the house was secured in the appellant's name and in her account.

The first respondent however alleges, with significant assertiveness, that he also directly contributed to the acquisition of the property and the repayment of the loan. He further asserts that he added improvements to the house which enhanced its value.

The customary union broke down in February 2021.

As a result, the first respondent sued a summons against the appellant in the court a quo, under case number HC5227/21, seeking an order for the division of the parties property acquired during the subsistence of the customary union.

In his declaration, the first respondent pleaded, in part, thus:

“3. The plaintiff and the defendant entered into an unregistered customary union on or around the first of August 2015; with the traditional rites having been done, they began to reside together as husband and wife from November 2015. In terms of the tacit universal partnership;

(a) Each party worked independently and contributed individually to the acquisition of the property, both movable and immovable, for the joint ownership of the union.

(b)…,.

(c)…,.

4. Pursuant to the establishment of a tacit universal partnership by the parties, the parties acquired both movable and immovable property as shall appear in Annexure A attached.

5….,.

6….,.

7….,.

8. Pursuant to the universal tacit partnership, the plaintiff went on to further contribute by way of making improvements to the property, being complete renovation of the kitchen, painting the interior and exterior of the main house, gate, garage and external rooms, re-wiring of the whole house electrical system, plumbing of the kitchen, bathroom, servant's quarters, storage/laundry room, installation of solar geyser, water tank and pump, installation of the security system and planting of lawn around the yard, installation of a back-up power solution on the main gate, which renovations cost a total of USD16,000…, thereby increasing the market value of the said property as well as making it habitable for the parties.”…,.

The appellant entered appearance to defend the claim and filed a plea.

As the matter was pending before the court a quo, the parties engaged each other through correspondence as they bickered over the distribution of the immovable property, among other issues.

It was during the course of their engagement that the appellant admitted part of the averments made by the first respondent.

By letter dated 10 December 2021, to the first respondent's legal practitioners, the appellant's legal practitioner stated:

“RE: ANDREW ZIGORA v SAMANTHA NHENDE CASE NO. HC5227/21

Reference is made to the above and to your letter dated 26th November 2021, which we received on 30th of November 2021, the contents of which have been noted….,.

Further, our client disputes yours claim for improvements amounting to US$16,000.

We are advised that your client only contributed to the painting of the house and some kitchen renovations of which our client is prepared to offer US$2,500. Our client further advises that she believes that the other improvements, including solar system, alarm system, electric gate motor, and water tank are fixtures and fittings which can be removed and the plaintiff can collect same….,.“…,.

According to the first respondent, in February 2022, he got to know that the appellant intended to sell the immovable property forming the subject of the pending summons action.

His concerns were registered in a letter addressed to the appellant's legal practitioners which drew the attention of the appellant and her legal practitioner to the fact that he had become aware that she was sourcing agents and prospective buyers.

The letter entreated the appellant to assure the first respondent that the property was safe.

In response, the appellant did not give any such assurances. In fact, the letter written in response thereto was vague and unhelpful.

PROCEEDINGS BEFORE THE COURT A QUO

In the wake of those developments, the first respondent moved swiftly, filing an urgent chamber application on 24 February 2022.

In his founding affidavit, the first respondent attested to a reasonable apprehension that the appellant would dispose of the house, given that it is registered in her name only, in order to defeat his claim for division of the universal partnership property. He implored the court a quo to grant him protection from “the whims and decisions” of the appellant.

To the application, the first respondent attached a draft provisional order, the grant of which was motivated. It reads in relevant part:

“TERMS OF FINAL ORDER SOUGHT

1. Pending the finalisation of the applicant's claim under case number HC5227/21 the first respondent is hereby interdicted from dealing in any manner with the immovable property that may cause encumbrances and/or dispose by selling it to any third party.

2. The first respondent be and is hereby ordered and directed not to alienate or remove any such improvements made on the immovable property until the matter under case number HC5227/21 is finalised.

3. First respondent shall pay costs of suit on an attorney-client scale only if it (sic) opposes this application.

INTERIM RELIEF GRANTED

The second respondent, pending the finalisation of the applicant's claim under case number HC5227/21, be and is hereby ordered and directed to place a caveat on the immovable property, mainly, Stand Number 2 Glynde Avenue, Mabelreign, Harare held under Deed of Transfer number 2120/2017 registered in the name of Samantha Nhende, the first respondent herein.”

The application was strenuously opposed by the appellant who raised quite a substantial number of points in limine.

The appellant protested that the matter was not urgent; that the first respondent had not established a causa, having failed to plead the choice of law; and, finally that the relief sought was incompetent.

On the merits, the appellant argued that the first respondent had not presented any evidence to show that she intended to dispose of the house.

She rounded off by submitting that she, as the registered owner of the house, had exclusive rights over it unlike the first respondent who could not possibly claim any share to it.

The court a quo found, that, the application passed the test of urgency.

Regarding the objection that the application did not disclose a cause of action as it sought to import general law into a dispute governed by customary law, the court a quo found that the issue was not before it.

In the court a quo's view, that was an issue to be resolved when determining the claim for division of property in HC5227/21. The court a quo refused to be drawn to “pre-empt the dispute” in the main action.

The objection relating to the competency of the relief sought was also dismissed on the basis that the court had the discretion to grant an order that was competent and established by the case before it.

On the merits of the application, the court a quo found that indeed the first respondent was labouring under a reasonable apprehension that the appellant may dispose of the house before the finalization of the main claim. It took the view, that, those fears were bolstered by the unsatisfactory response to his enquiries given by the appellant.

As already stated, the court a quo granted final relief in favour of the first respondent. In doing so, it reasoned:

“With respect to the nature of the relief, there is no need of having terms of final order since there is no need for the return day. The provisional order has its final sunset clause being the finalisation of the matter under case number HC5227/21. Once the dispute for the division of the property has been finalised, the caveat will be no longer necessary.”

It is significant to note, that, the relief that the court a quo granted is what was set out both in the terms of the final order sought and the interim relief of the draft provisional order.

PROCEEDINGS BEFORE THIS COURT

The appellant was discontented by the judgment of the court a quo. She noted an appeal to this Court on the following grounds:

“1. The court a quo grossly erred at law in and misdirected itself in fact in granting an interdict (sic) as regards appellant's immovable property in circumstances where there was no evidence or at all that the appellant intended to alienate the property.

2. The court a quo erred at law in granting an interdict where the requirements of such relief had not been met, particularly where a clear right had not been established.

3. The court a quo grossly misdirected itself and erred in failing to consider that the issue of the choice of law was crucial in the determination of whether or not there was a cause of action against the appellant.

4. The court a quo grossly misdirected itself in fact in ordering appellant not to remove improvements on the property where no evidence or indications of the said improvements were made or proved by the respondent.

5. The court a quo misdirected itself in fact and subsequently erred at law in granting a final order in an urgent chamber application where an interim relief had been sought thereby denying the appellant the opportunity to make representations on the return date.”

At the hearing of the appeal, both counsel were in agreement that the grounds of appeal raise only three issues for determination in this appeal. These are:

1. Whether the requirements of an interim interdict were satisfied.

2. Whether the court a quo erred in refusing to determine the choice of law question; and

3. Whether the court a quo was correct in granting a final order.

SUBMISSIONS ON APPEAL

Counsel for the appellant adopted a three-pronged approach in motivating the appeal:

(i) Firstly, on the choice of law, he submitted that the first respondent ought to have pleaded the application of general law for him to sustain a valid cause of action. For that reason, so it was argued, the court a quo fell into error by proceeding to determine the application despite the first respondent's failure to plead a choice of law.

(ii) On the evidence placed before the court a quo, counsel for the appellant submitted, that, it did not sustain the relief that was sought.

In counsel's view, the first respondent did not substantiate his suspicion that the appellant intended to dispose of the house. In that regard, the requirements for the grant of a final interdict were not satisfied, and, as such, the application should have been dismissed.

(iii) Finally, counsel for the appellant strongly submitted, that, the court a quo misdirected itself in mero motu granting a final relief where the application had been one for interim relief and a case was not made for the grant of a final one. Counsel for the appellant insisted, that, by so doing, the court a quo also deprived the appellant the opportunity to contest the terms of the final order sought on the return date.

Counsel urged the court to intervene, bearing in mind the irrational manner in which the court a quo exercised its discretion to grant final relief.

Counsel for the first respondent defended the judgment of the court a quo.

In his view, the fact that there was a pending matter between the parties, in which the first respondent lay a claim to the house, which claim would be prejudiced if the status quo ante was not preserved, meant that a good case was made for the grant of an interdict. The choice of law argument was not before the court a quo and could not detract from the need to grant an interdict.

Counsel for the first respondent took the view, that, the moment the appellant failed to give the first respondent assurance that the house would not be disposed of, a basis for the issuance of an interdict arose because there was a reasonable apprehension of irreparable harm or prejudice.

Regarding the appellant's complaint against the grant of a final order, counsel for the first respondent submitted, that, there is room for the court a quo to grant it in the exercise of its discretion. This is so because such final relief is granted in spoliation proceedings. As such, nothing could stop the court a quo from granting it in the present case.

Whether the requirements of an interdict were satisfied

The starting point is to make the observation that all that the first respondent sought in his application was the interim relief of the placement of a caveat on the title deed to the house in dispute.

I am aware that in paragraphs 19 and 20 of his founding affidavit the first respondent made remarks in support of a final order for an interdict to be granted against the appellant.

However, a close reading of those remarks clearly shows that he was motivating what was sought as the terms of the final order which the court would have only related to on the return date of the provisional order had it been granted.

This is in line with the civil practice and procedure for urgent applications.

Earlier in this judgment, I reproduced the draft provisional order which the first respondent sought. It bears testimony that the court a quo was requested to grant the interim relief of the placement of a caveat - nothing more.

It is a relief which may be termed an interim interdict pendente lite. Briefly, its requirements are that:

(i) The right which is the subject matter of the main action is clear or prima facie established though open to some doubt;

(ii) If the right is only prima facie established, there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he or she ultimately succeeds in establishing the right;

(iii) The balance of convenience favours the granting of interim relief; and

(iv) The applicant has no other satisfactory remedy.

See Airfield Investments (Private) Limited v Minister of Lands & Ors 2004 (1) ZLR 511 (S)…,.

From the above requirements, there must be evidence establishing a prima facie right, even though it may be open to some doubt.

The evidence before the court a quo showed, that, the first respondent had made a claim for the sharing of property - including the house in dispute. I have cited verbatim the pleadings he placed before the court. It shows that he specifically pleaded the existence of a tacit universal partnership and his contribution to it.

Prima facie, therefore, the first respondent established a right, which may be subject to some doubt. Should that right be proved in the main case, there is a well-grounded apprehension of irreparable harm to him if it is not protected. For that reason, the balance of convenience favoured the grant of interim relief.

It was not suggested that there was any other remedy available to the first respondent other than that which was sought.

From the foregoing, I conclude that the requirements for the grant of the relief that was sought, with minor amendments, were satisfied.

It is however not the relief that the court a quo granted. I shall return to that issue shortly....,.

Whether the court a quo erred by granting a final order

The High Court Rules 2021 set out a procedure for the filing and determination of urgent applications.

They also provide a form for a provisional order which litigants approaching the court under that procedure are required to adhere to as well as to attach to the urgent chamber application.

In terms of Rule 69(9) of the High Court Rules:

“(9) Where, in an application for a provision order, the Judge is satisfied that the papers establish a prima facie case, he or she shall grant a provisional order either in terms of the draft filed or as varied.”…,.

There is a reason why the Rule is couched that way.

Firstly, in an urgent application, the applicant is usually granted interim relief on the basis of a prima facie case, as the applicant would not have proved his or her case. The procedure allows a litigant which can show a prima facie right to be accorded interim relief that usually protects the status quo ante until the return date of the provisional order: see Kuvarega v Registrar General & Anor 1998 (1) ZLR 188.

After the grant of interim relief, in the form of a provisional order, the matter does not end there.

The procedure is that the respondent is allowed to file a full dossier of opposition to the confirmation of the provisional order, which confirmation takes the form of granting the terms of the final order sought in the prescribed form of the provisional order.

After the provisional order is granted, the full procedure of a court application, including the filing of a notice of opposition, answering affidavit, and heads of argument, kicks in.

It is a procedure which allows the applicant to fully prove his or her case, and the respondent to disprove it, without the pressure of urgency.

On the return date of the provisional order, a fully-fledged opposed application is set down and heard on the opposed roll.

Following that hearing, the court may either confirm or discharge the provisional order. It confirms it by granting the terms of the final order sought.

Having said that, I must reiterate what this Court stated in Nzara & Ors v Kashumba N.O. & Ors 2018 (1) ZLR 194 (S)…, that, the court cannot grant an order that has not been sought by a party.

The point is also made in Chiwenga v Mubaiwa SC86-20, that, the purpose of provisional relief is to preserve the status quo pending the return day. At p13 of the cyclostyled judgment, the court stated:

“The purpose of a final order is different from that of a provisional order in that a final order is conclusive and definitive of the dispute. It finally settles the issues and has no return date. Once a final order is given, the court issuing the order becomes functus officio and it cannot revisit the same issues at a later date.”

I have had to give a detailed account of the procedure for provisional relief because there appears to be a signal failure or lack of appreciation, at the moment, at the High Court, that, when approached on an urgent basis, except where spoliatory relief is sought, in which case the court grants final relief, the court is required to issue interim or provisional relief in the form of a provisional order.

Given that, by its very nature, an urgent application requires the applicant to establish a prima facie case for the grant of interim relief, the jurisdiction of the court to grant final relief is not triggered.

In this case, the court a quo completely ignored the draft provisional order that was presented to it by the applicant, and related to the matter as if it was an ordinary application, where its jurisdiction to grant final relief would have been triggered.

It had not.

Doing so was a misdirection which resulted in a gross irregularity.

What is even more unfortunate is that the first respondent had made a case for the interim relief that he sought.

The fifth ground of appeal ought to succeed.

DISPOSITION

The first respondent made a case for the placement of a caveat on the title deed to the property in dispute as interim relief. The court a quo elected to grant the relief which it ought to have related to on the return date, and not on an urgent basis. As a result, the court granted relief which was not sought by the parties.

This was a misdirection and ought to be interfered with....,.

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

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

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

“1. The application is granted in terms of the draft provisional order as amended.

2. The interim relief granted is amended to read:

'INTERIM RELIEF GRANTED

Pending the return date of this provisional order, the second respondent is directed to place a caveat on the immovable property known as Stand Number 2 Glynde Avenue, Mabelreign, Harare held under deed of transfer number 2120/2017 registered in favour of the 1st respondent.'”

SC103-22 : BENSON MAKACHI and MR. MUGAVA and SIMON NOTA and SILAS GWESHE and GIBSON MUTSAKA and EVERSON BREAKFAST and DAVISON CHIVESO and FREDSON GAMA vs EVANGELICAL CHURCH OF ZIMBABWE
Ruled By: UCHENA JA, CHITAKUNYE JA and CHATUKUTA JA

Counsel for the respondent raised a preliminary point, that, the appeal had been deemed abandoned as the appellants heads of argument did not address the grounds of appeal.Per contra, counsel for the appellants submitted that they had motivated each ground of appeal.He submitted that the issue is really one of ...

SC106-22 : ROLEN TRADING (PRIVATE) LIMITED vs PARKSIDE HOLDINGS (PRIVATE) LIMITED
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

On 24 July 2013, the High Court granted judgment in favour of the respondent herein. Consequent thereto, the court ordered that the appellant vacate premises known as Shops 1 and 2 Benhay Art House, situated at 120 Chinhoyi Street, Harare and pay the sum of USD22,730=99 being arrear rentals, and ...

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HBHB160-21 : BLANKET MINE (1983) (PVT) LTD vs FISANI MOYO and VALENTINE MINE (Represented by THOMSON MOYO) and ZIMBABWE REPUBLIC POLICE, GWANDA and PROVINCIAL MINING DIRECTOR N.O.
Ruled By: KABASA J

Counsel for the applicant referred to MATHONSI J's judgment in Telecel Zimbabwe (Pvt) Ltd v POTRAZ and Others HH446-15, where the learned Judge had this to say:“I take the view, that, rules of court are there to assist the court in the discharge of its day to day function of ...

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HH240-15 : VALENTINE ZISWA and MARGARET ZISWA vs GREAEME CHADWICK and LANDOS FARM (PVT) LTD
Ruled By: MATHONSI J

The point was made by BEADLE CJ in Supreme Service Station (1969) (Pvt) Ltd v Fox Goodridge (Pvt) Ltd 1971 (1) RLR (A)…, that:“…, rules of procedure are made to ensure that justice is done between the parties, and, so far as possible, courts should not allow rules ...

SC03-15 : PORTLAND HOLDINGS LTD vs TUPELOSTEP INVESTMENTS (PROPRIETARY) LIMITED and TOBACCO WAREHOUSE & EXPORT t/a BAK LOGISTICS
Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

After hearing counsel in this matter, we allowed the appeal with costs and issued an order in the following terms:“IT IS ORDERED THAT:1. The appeal succeeds with costs.2. The judgment of the court a quo is set aside and substituted with the following:'The application is hereby granted in terms of ...

After hearing counsel in this matter, we allowed the appeal with costs and issued an order in the following terms:

“IT IS ORDERED THAT:

1. The appeal succeeds with costs.

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

'The application is hereby granted in terms of the draft order.'”

We intimated that our reasons would follow in due course. These are they.

The appellant (hereinafter referred to as 'Portland') and the second respondent (hereinafter referred to as 'Bak Logistics') are private companies duly registered as such under the laws of this country. Portland is a producer of cement which is sold both locally and externally. Bak Logistics provides warehousing and bulk storage services to the general public.

The first respondent (hereinafter referred to as 'Tupelostep') is a company registered under the laws of South Africa. It has its headquarters in that country. It provides extensive haulage freight services throughout Southern Africa.

At the beginning of 2012, Portland obtained orders for the export of cement to Mozambique. Sometime in February or March 2012, Portland engaged Tupelostep to arrange the transportation of cement into Mozambique on its behalf.

The terms of the contract obliged Portland to convey the cement to Tupelostep by rail. In turn, Tupelostep would arrange for the storage of the cement pending receipt of export documents from Portland.

In order to comply with its obligations under this contract, Tupelostep entered into an agreement with Bak Logistics for storage and warehousing of the cement pending its conveyance to Mozambique.

On receipt of clearance documents from Portland, Tupelostep would then arrange for the transportation of the cement by road. The process would, on occasion, entail the hire of vehicles from third parties. There was, however, no contract between Portland and Bak Logistics, and Portland was not privy to the contract between Tupelostep and Bak Logistics.

In September 2012, Portland transported a consignment of 1,270 tons of cement to Tupelostep by rail. It was stored with Bak Logistics.

A dispute then arose between Portland and Tupelostep regarding charges claimed by the latter in the discharge of its obligations and services under the contract. The parties attempted to settle the dispute but failed.

In December 2012, Tupelostep advised Portland that it would no longer allow movement of stock from the warehouse unless it was paid certain sums of money being claimed by it for demurrage and transportation costs.

On 16 January 2013, Portland gave notice to Tupelostep of its intention to terminate the mandate for storage and transportation of the cement.

On 29 January 2013, Portland addressed an email to Tupelostep demanding the release to it of documentation availed to Tupelostep in respect of the consignment of cement under its control and in the possession of Bak Logistics.

In turn, Tupelostep responded by refusing to release the documents in its custody for a number of reasons which are not germane to the resolution of this dispute.

On 4 February 2013, Portland filed an urgent application with the High Court in respect of which it sought relief expressed as follows:

“INTERIM RELIEF GRANTED

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

1. That 1st and 2nd Respondent be and are hereby ordered to release to applicant the applicant's cement being 1,270 tons of cement held by 1st and 2nd respondent at 2nd respondent's premises at 106 Dartford Road, Willowvale Industrial Area, Harare.

2. That the proceeds of sale of the cement be held at a trust account in the law firm of Messrs Gill, Godlonton & Gerrans of 7th Floor, Beverly Court, 100 Nelson Mandela Avenue.

TERMS OF THE FINAL ORDER SOUGHT

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

1. That the proceeds of the cement held by Messers Gill, Godlonton & Gerrans in their trust account be disbursed in terms of an order of this Honourable Court confirming the entitlement of either party to such proceeds.

2. That the costs of this application be borne by the party succeeding in the anticipated litigation between the parties. (sic)”

The application was opposed by both respondents.

The High Court heard the parties on the question of urgency and decided that the application was not urgent.

The court then dismissed the application with costs on the basis of lack of urgency.

This appeal is against that decision.

It was contended that the High Court erred in the exercise of its discretion, and that, to that extent, it had misdirected itself.

Portland approached the High Court for urgent relief on the premise that Tupelostep was holding on to cement which belonged to the former and that its actions were illegal and unjustified.

It was also alleged, in the certificate of urgency, that, cement, by virtue of its hygroscopic nature, had a limited lifespan and that any continued delay in its release to Portland would result in financial loss to Portland.

Whilst accepting that commercial interests can be advanced as a basis for urgency, the learned judge in the court a quo found that the urgency in the matter before him was self-created. This is what the learned judge stated:

“I am however persuaded by counsel for respondents argument, that, the urgency pleaded by the applicant is self-created. In the first place, it was not denied that the cement has been with the respondents since September 2012. If, therefore, cement has a short shelf life, why did the applicant not seek its release much earlier? Secondly, the argument that it tends to attract moisture is as relevant now as it was from the onset of the rainy season. The need to act was ever present from the onset, taking into account the nature of the product that is in dispute. In other words, the matter cannot assume more urgency towards the end of the shelf life of a product whose delicacy has never been in doubt.”

It seems to me that the court a quo determined the matter on facts which were not before it.

The consignment of cement was sent to the warehouse in September 2012, but, the record shows that there was movement of stocks from the warehouse without hindrance. The problem arose on 16 January 2013 when Tupelostep wrote an email to Portland advising that a halt had been placed on the movement of the product from the warehouse on its instructions.

That is when in fact the need to act arose and not in September 2012 as stated by the learned judge in the court a quo.

This fact is confirmed by the opposing affidavit filed on behalf of Tupelostep in which the statement is made that:

“Up until 15 January 2013, the first respondent never prevented the removal of cement.”

It is therefore accepted by Tupelostep that cement was being moved up until that date.

If Portland had the right to remove cement up until that date, it follows that the need to act cannot, by any stretch of the imagination, have arisen prior to that date.

In its judgment, the court accepted that what triggered the application was the negation, on 31 January 2013, of an agreement by the parties allowing the removal of the cement by Portland.

The application was filed on 4 February 2013 - a mere four days after the agreement was negated by Tupelostep.

The suggestion that the cement should have been removed in September 2012 is therefore not supported by the record, as, the storage in September was for purposes of facilitating its transportation. The storage was part and parcel of the modus operandi of the contract by the parties.

I am satisfied that the matter ought to have been dealt with on the basis of urgency. No delay had been established on the respondents papers.

Portland also alleged urgency on the premise that cement had a limited shelf-life and that any delay in access to the product, for purposes of sale, would result in economic loss.

Whilst accepting that the law recognised economic loss as a factor for urgency, the court rejected an argument for the granting of relief on this basis on the grounds that the cement had been with Tupelostep and Bak Logistics since September 2012 and that its release should have been sought earlier.

Again, the learned judge fell into error in his assessment of the evidence before him.

The Court placed reliance on the date when the consignment was sent to Bak Logistics and fell into the error of regarding that date to be the time at which it should have sought its removal from storage. The court a quo failed to appreciate, that, the cement was destined for export orders and that any failure on the part of Portland to deliver would cause it harm in the eyes of its external customers.

In addition, the refusal to release export documents would place Portland at cross purposes with the exchange control authorities through its failure to acquit CD1 export forms.

These factors, although adverted to in the application, were not dealt with by the court a quo.

Tupelostep is a peregrinus, a fact which was not disputed before the court a quo.

It was contended on behalf of Portland, that, the fact that Tupelostep is resident in South Africa would tend to complicate issues as the suit would have be instituted in that country. It was contended further, that, in the event that it was sued in this country, any judgment obtained as a result would have to be registered there.

All this entails a lot of litigation and the remedy of damages then becomes theoretical.

The court a quo however felt persuaded that there was an alternative remedy available to Portland, and, consequently, there was no urgency to the application.

The practical difficulties attendant upon such a process for recovery should have been obvious to the court. The failure by the court to appreciate these factors was a clear misdirection warranting the interference by this Court with the exercise of its discretion.

However, over and above these criticisms, the High Court, having decided to determine the matter on the issue of urgency, dismissed the application on the basis that it was not urgent.

This was not the proper course to follow.

Instead, it should have removed the matter from the roll on the basis that it lacked urgency.

Such a course would have left the door open for the appellant to place the matter before the court for determination as an ordinary court application.

In Madza & Ors v The Reformed Church in Zimbabwe Daisyfield Trust SC71-14, ZIYAMBI JA remarked as follows:

“However, having concluded the matter was not urgent, the proper course would have been to remove the matter from the roll of urgent matters to allow the appellants, if so minded, to place the matter before the High Court on the ordinary roll for determination. The order of dismissal was improper in the circumstances.”…,.

I respectfully associate myself with the dicta by her Ladyship. It follows, that, the dismissal of the application for want of urgency is improper.

It is also contended on behalf of Portland, that, in addition to this, the court fell into further error by commenting on the merits of the case.

It is contended that even if this court were to remit the matter for hearing before the High Court, a plea of res judicata could be successfully raised by the respondents.

I agree, in Purchase v Purchase 1960 (3) SA 383, CANEY J had this to say:…,.

“…,. He submitted, that, that dismissal of an application had the effect of an absolution; he likened that to dismissal of an action, which is an absolution from the instance. Becker v Wertheim, Becker and Leveson, 1943 (1) P.H.F 34 (A.D.). I am disinclined to agree with him, for I think that dismissal and refusal have the same effect, namely, a decision in favour of the respondent.”

This principle was approved in African Farms & Townships v C.T. Municipality 1963 (2) SA 555 by STEYN CJ where he stated as follows:…,.

“Counsel for the appellant further argued, that, the order in the original proceedings, which as such is an order dismissing the application, is to be equated with absolution from the instance, leaving the issue undecided.

In my view, there is no substance in that argument.

As Sande, De Diversis Regulis ad L 207, points out, the res judicata is not so much the sentia, the sentence, or the order made, as the lis or negotium, the matter in dispute or question at issue about which the sentia is given, or the causa which is determined by the sentia judicis.

As pointed out in Purchase v Purchase 1960 (3) SA 383 (N) at p385, dismissal and refusal of an application have the same effect, namely, a decision in favour of the respondent.

The equivalent of absolution from the instance would be that no order is made, or that leave is granted to apply again on the same papers.

In Commissioner of Customs v Airton Timber Co. Ltd 1926 CPD 351 at p359, WATERMEYER J draws a distinction between the actual judgment and the reasons for judgment, and the question is not necessarily determined by the judgment, the matter is not res judicata.”…,.

Being a Court of Appeal, this Court cannot interfere with the exercise of judicial discretion by a lower court except in very limited circumstances.

Counsel for the parties in this case have advocated two approaches to the manner of determining the appeal.

The approach favoured by counsel for the appellant is set out in Crouch v Dube 1997 (1) ZLR 427 (S). At 436D-437F KORSAH JA described it as follows:

“Learned counsel were in agreement that the remedy provided under Rule 359 was of a discretionary nature, but, they differed as to the category of the discretion which the court of first instance exercised under Rule 359. The reason for their disagreement is exemplified in the following statement by STEGMAN J in Tjospomie Boerdery (Pty) Ltd v Drakensberg Botteliers (Pty) Ltd 1989 (4) SA 31 (T) at 35I-36H:

'…, when the exercise of a discretionary power by a court of first instance is taken on appeal, the court of appeal is faced with at least two distinct tasks. The first task relates to the general characterisation of the discretionary power in question in the case. The purpose is to determine whether the function of the court of appeal is to re-examine any aspect which the parties may seek to re-argue on the existing record; or whether such court's function is limited to an enquiry into the question whether the court below exercised its discretion judicially.

When that task of characterisation has been performed, the second task (if it arises at all) relates to the examination of the particular exercise of the discretionary power by the court of first instance, and the decision whether or not to interfere with it. The nature of such second task varies according to the characterisation of the discretionary power in terms of the first task.

There are at least two categories to one or other of which the discretionary powers exercised by courts of first instance may be assigned.

The first of such categories relates to matters having the character of being so essentially for determination by the court of first instance that it would ordinarily be inappropriate for a Court of Appeal to substitute its own discretionary power for the exercise thereof decided on by the court of first instance.

The first matters identified as falling within this category were those discretionary powers that related to a judge's control of the conduct of the business in his own court. Later, the first category was broadened to include certain other discretionary powers.

The second category relates to matters having the character of being equally appropriately determinable by the court of first instance and the court of appeal.

When a particular discretionary power has been found to be of the character which places it in the first category, the Court of Appeal has no jurisdiction to substitute its own exercise of discretionary power for that decided upon at first instance, unless it has been made to appear that the exercise of the power at first instance was not judicial. That can be done by showing that the court of first instance exercised the power capriciously, or upon a wrong principle, or with bias, or without substantial reasons.

When a particular discretionary power has been found to be of the character which places it in the second category, the Court of Appeal has jurisdiction to substitute its own exercise of the discretion for that decided upon at first instance without first having to find that the court of first instance did not act judicially. Sufficient reason for the Court of Appeal to do so must be shown, but, the reason need not reflect on the judiciality of the decision at first instance. The Court of Appeal may interfere on the simple basis, that, it considers its own exercise of the discretionary power to be wiser or more appropriate in the circumstances.'”

Counsel for the respondents, however, has placed reliance on Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S). At p62F-63A, the learned GUBBAY CJ stated:

“The attack upon the determination of the learned judge, that there were no special circumstances for preferring the second purchaser above the first – one which clearly involved the exercise of a judicial discretion: see Farmers Co-operative Society (Reg.) v Berry 1912 AD 343 at 350.

These grounds are firmly entrenched.

It is not enough that the Appellate Court considers that if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, it if it mistakes the facts, if it does not take into account some relevant consideration, then, its determination should be reviewed and the Appellate Court may exercise its own discretion in substitution, provided always it has the materials for so doing.”

The substance of the principles in the authorities relied upon by both counsel is the same.

What was at issue in the lower court was whether or not the court, in the exercise of its discretion, considered the application placed before it to constitute urgency justifying the matter being heard and determined outside the normal roll.

In the case of Crouch v Dube 1997 (1) ZLR 427 (S) it was held by the court, that, this category of exercise of discretion by an Appeal Court cannot be interfered with unless it has been made to appear that the exercise of the power at first instance was not judicial.

Both counsel are agreed, that, the case in point is not one where the Appeal Court is in as good as the court of first instance of being equally able to determine the matter and substitute its own discretion for that of the court of first instance.

An Appeal Court cannot interfere with an exercise of judicial discretion unless it can be shown, that, some error was made in the exercise of that discretion or that the court acted on a wrong principle or allowed extraneous or irrelevant material to guide or affect its decision.

Although purporting to dismiss the application on the basis that it lacked urgency, the court a quo did make pronouncements on the merits of the application. At p2 of the judgment, the learned judge states:

“A perusal of the papers convinced me that there was no basis for granting the interim relief sought and I declined to set the matter down.”

Later on in the judgment…, the learned judge again comments on the merits of the application and states:

“I would have held the same in the present case, save that the reasons advanced for seeking interim relief cannot be sustained.”

And later at p3:

“If the respondents are owed substantial sums of money by the applicant, they would be entitled to a right of retention over the applicant's goods. There is nothing unlawful about such retention as claimed by the applicant. It seems the applicant is basing illegality on the respondents refusal of the security that is being offered. But, as contended by Mr Uriri, no adequate security arrangements have been made by the applicant. For example, he highlighted that security equivalent to the value of the goods is far less than what is owed to the respondents. He further pointed out that there has not been payment of transport costs acknowledged by the applicant.”

As a consequence of the comments by the learned judge as to the merits of the dispute, I am not persuaded by the argument advanced by counsel for the respondents, that, the learned judge in the court a quo did not deal with the matter on the merits.

The judgment has specific findings on the merits of the application, which findings are not confined to the issue of urgency.

The judgment speaks to the security being offered by the applicant being less than what is allegedly owed as transport costs. It mentions that no costs had been paid even though the sum due was acknowledged by the applicant.

It is for the above reasons that the court determined that the appeal had merit and granted the same with costs.

SC13-23 : ERICA NDEWERE vs PRESIDENT OF THE REPUBLIC OF ZIMBABWE and SIMBI MUBAKO and CHARLES WARARA and YVONNE MASVORA
Ruled By: MATHONSI JA, CHATUKUTA JA and MWAYERA JA

The famous remarks of LORD DENNING, in MacFoy v United Africa Company Limited [1961] 3 All ER 1169 (PC)…, remain true:“But, if an act is only voidable, then, it is not automatically void. It is only an irregularity which may be waived. It is not to be avoided unless something ...

SC13-23 : ERICA NDEWERE vs PRESIDENT OF THE REPUBLIC OF ZIMBABWE and SIMBI MUBAKO and CHARLES WARARA and YVONNE MASVORA
Ruled By: MATHONSI JA, CHATUKUTA JA and MWAYERA JA

In Chombo v National Prosecuting Authority Ors SC158-21, the court struck the appeal off the roll because it was based on a decision reached without jurisdiction.In other words, no appeal could lie against a decision marred by lack of jurisdiction.

SC28-22 : RIOZIM (PVT) LTD vs FALCON RESOURCES (PVT) LTD and RUSUNUNGUKO NKULULEKO (PVT) LTD
Ruled By: MALABA CJ, UCHENA JA and CHIWESHE AJA

This is an appeal against the judgment of the High Court (“the court a quo”) which effectively held that a dispute over which party, between the appellant and the first respondent, owned certain mining claims, registered in the appellant's name, was incapable of resolution on the papers.

At the hearing of the appeal, the Court found that the decision of the court a quo was incorrect, for the reason that it failed to appreciate the evidence of registration of the mining claims in the appellant's name.

The appeal was allowed with costs and the judgment of the court a quo set aside.

The Court indicated that reasons for the decision would be given in due course. These are they.

FACTUAL BACKGROUND

The facts giving rise to the appeal are largely common cause. They may be summarised as follows:

The appeal revolved around mining claims at Wendale 43 Block situated in Domboshava registered under certificate no.18007. The parties were all registered companies, having been registered in terms of the company laws of Zimbabwe.

In February 2018, the first respondent wrote to the appellant, seeking from it a tribute arrangement in respect of the mining location in issue.

The request was rejected.

Despite the rejection, on 30 May 2018, the first respondent was observed exploiting minerals at the appellant's mining location. When confronted, the first respondent indicated that it had partnered with the second respondent in a mining venture for the exploration of minerals in the area in dispute.

The appellant contended, that, it was the registered holder of the said mining claims, as evidenced by a certificate of registration filed of record.

It was alleged by the respondents, that, the Minister of Mines and Mining Development (“the Minister”) had gazetted the area in dispute as a reserved area. They further alleged, that, the reservation of the area by the Minister had a profound effect on the status of the mining area, in that title over mining claims vested in a party only through the issuance of special grants. It was alleged that the legal status of the mining claims changed as a result of the reservation.

As holders of a special grant in the mining area, it was alleged that the respondents were the rightful owners of the mining claims in question.

The appellant approached the court a quo, in an application for a provisional order, in which it sought an interdict against the respondents and any person acting under their authority, preventing them from carrying on mining activities on the disputed mining claims. It further sought an order that the respondents, and any person acting under their authority, vacate the mining claims and remove all mining equipment belonging to them. The appellant sought an order declaring it to be the holder of title over the mining claims in dispute.

The respondents raised two points in limine in opposing the provisional order sought:

(i) The first point was that the Minister had not been joined in the proceedings.

(ii) The second point was that there was a material dispute of fact.

The import of the first objection was not understood, as the respondents were not claiming that they had the right to exploit the mineral resources at the mining location in dispute.

Regarding the second preliminary objection, the nature of the dispute was not identified. As such, the court granted a provisional order pending the determination of the matter on the return day whereupon the respondents were called upon to show cause why the appellant should not be declared the rightful holder of title over the mining claims in dispute.

On 15 June 2018, the appellant filed an application for confirmation of the provisional order granted.

The respondents opposed the application.

They persisted with the two points in limine, namely, that, there was material non-joinder of the Minister, and that there was a material dispute of fact which could not be resolved on the papers.

The court a quo upheld the two points in limine and dismissed the application.

The court a quo was of the view, that, the dispute of fact as to which party was the rightful owner of the mining claims was apparent to the appellant before the application was instituted. It said that it should have been clear to the appellant that the dispute would require the involvement of the Minister, as it related to title of a mining claim. The court a quo said at pp2-3 of the judgment:

“The Minister of Mines and Mining Development clearly has a direct and substantial interest in the subject matter of this matter because he is the authority responsible for giving title to mining claims, including the one in dispute….,.

The respondents allege that the mining claim no longer belongs to the applicant because it was forfeited by the Minister responsible for Mines and Mining Development.

This dispute of fact as to who holds title cannot be resolved on papers….,.

It would also have been clear to the applicant that this dispute would require the involvement of the Minister of Mines and Mining Development to resolve as it pertains to title to a mining claim. It would be untidy to refer the matter to trial on the bulky papers filed and in circumstances where an interested party has not been joined….,.

It seems to me that it is appropriate, given that the dispute of fact was obvious, to dismiss the application….,.”

Dissatisfied with the decision of the court a quo, the appellant noted the appeal on three grounds, which essentially raised one issue for determination:

The issue was whether there was a material dispute of fact.

It was argued, that, the court a quo misdirected itself in dismissing the application for the confirmation of the provisional order on the basis that there was a material dispute of fact.

THE APPELLANT'S ARGUMENT ON APPEAL

At the hearing of the appeal, counsel for the appellant submitted, that, the appellant has held title over the mining claims since 1974, as evidenced by the certificate of registration.

It was alleged that the same was inspected by the Minister, who confirmed the ownership of the mining claims by the appellant.

It was argued, that, mineral rights are real rights and once acquired they remain effectual until lost in terms of the Mines and Minerals Act [Chapter 21:05].

The certificate of title was filed of record and it was submitted that it was current.

It was also argued, that, the Ministry of Mines and Mining Development did not reserve the block over which the appellant had mining rights: therefore, the appellant's rights were never lost.

The appellant relied on the case of Chase Mineral (Pvt) Ltd v Madzikita 2002 (1) ZLR 488 (H)…, where the court said:

“It will be seen, therefore, that the applicant, as the holder of the registered claims, has the exclusive rights of mining the claims under dispute. Such rights are protected by section 379 of the Act…,. It is thus submitted that the respondent has been, in fact, working on the applicant's claims (and) he is therefore guilty of contravening section 379 of the Act. To suggest that the eviction order be suspended or stayed pending appeal…, so as to enable the respondent to continue mining, amounts to authorising the contravention of section 379 of the Act. That would create an untenable situation in which this court would not only be condoning, but authorizing, the criminal conduct of the respondent in breach of the provisions of the Act.”

THE RESPONDENTS ARGUMENT

Counsel for the respondents submitted that the finding by the court a quo, that there was a material dispute of fact incapable of resolution on the papers, was correct.

He argued that the area containing the mining claims had been reserved and that title to the mining claims could only be by way of a special grant, which was not granted to the appellant.

He also argued that both parties claimed to have obtained title to the mining claims through the Ministry of Mines and Mining Development.

The question as to which party held title, between the holder of the special grant or the certificate of registration, raised a material dispute of fact.

The respondents relied on the case of Anjin Investments (Pvt) Ltd v Minister of Mines and Mining Development and Ors HH228-16, where the court held that no person can claim any right in a mining claim falling under a reserved area without a special grant.

It was also held, that, it was for the Minister to confirm whether the appellant's title to the area, notwithstanding the reservation and subsequent special grant in favour of the second respondent, still existed.

Lastly, counsel for the respondents submitted that the appeal was without merit and ought to be dismissed.

THE LAW AND THE FACTS

The finding by the court a quo, that there was a material dispute of fact, is being tested as a matter of misdirection.

It is a settled principle of law that an Appellate Court will not readily interfere with the findings of fact made by a lower court.

In Beckford v Beckford 2009 (1) ZLR 271 (S)…, the following was stated:

“In any event, an Appellate Court would not readily interfere with the findings of fact made by a trial judge.”

It is trite that for an Appellate Court to interfere with factual findings of a lower court, gross misdirection must be alleged and established. This was enunciated in TM Supermarkets v Mangwiro 2004 (1) ZLR 186 (S)…, where the following was stated:

“I am also persuaded by the contention, that, the court a quo, in this particular respect, misinterpreted the evidence before it….,. The evidence makes it clear this was not so. The misdirection of the court is thus evident.”

The grounds on which the finding of the court a quo is being challenged have to be looked at from the point of view of the sequence of events.

The first issue that has to be considered relates to the issues that were before the court a quo: the main issue was whether there was a dispute of fact.

It was the respondents contention, that, there was a dispute of fact in respect to which a robust approach could not be adopted for its resolution. The appellant argued that there was conclusive evidence on record to prove that there was no dispute of fact.

What a dispute of fact entails was well articulated in Supa Plant Investments (Pvt) Ltd v Chidavaenzi 2009 (2) ZLR 132 (H)…, where the court said:

“A material dispute of fact arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.”

In Pignons S.A. de Mecanique de Precision v Polaroid Corporation 657 F 2d 482, the United States Court of Appeals had this to say regarding material disputes of fact:

“A factual dispute is material if it affects the outcome of the litigation, and genuine if manifested by substantial evidence going beyond the allegations of the complaint.”

In this regard, the mere allegation of a possible dispute of fact is not conclusive of its existence.

From the decided cases, it is evident that a dispute of fact arises where the court is left in a state of reasonable doubt as to which course to take in resolving the matter without further evidence being led.

The alleged dispute of fact, in the present case, pertained to the ownership of the mining claims where the respondents had commenced mining activities.

They averred that they were digging where they had lawful authority to dig, on the basis that a special grant had been given to them by the Mining Commissioner. They claimed, therefore, that they had rights over the mining area in dispute.

It was the same mining area that the appellant has held title over the mining claims in question since 1974 and has never ceased to hold such title.

The existence of the alleged dispute of fact, regarding the ownership of the mining claims, was not supported by the evidence on record.

The Court was called upon to test what the claim by the respondents entailed.

They alleged they had legal title over Wendale Block 43, which was granted to them by the Ministry of Mines and Mining Development through a special grant.

It is therefore critical to look at the special grant, as it was a legal document which gave the respondents authority to explore a specific mining area.

Looking closely at the appellant's certificates of registration, it is evident from the record, that, the appellant was the registered holder of claims that were specifically identified as Wendale 42 Block under registration number 18006B.M. Darwendale and Wendale 43 Block under registration number 18007B.M. Darwendale, issued in 1974.

The special grant being referred to by the respondents, as proof of title over the mining claims in dispute, was identified as relating to “an area situated within RAMSW003 Darwendale” and this area was depicted on the Ministry of Mines and Mining Development map.

The mining claims referred to in the special grant clearly differed from the location of the appellant's mining claims.

It is a misrepresentation of fact by the respondents that they had legal rights over Wendale 43 Block under registered certificate number 18007B.M. Darwendale.

The respondents mining activities were encroaching onto the appellant's claims, yet, as the evidence on the map clearly showed, the respondents should have been on a different location on the ground.

The court a quo failed to appreciate the evidence placed before it.

The appellant's rights were conferred in terms of the law and there was precedent evidence in the record proving that the appellant has always been there since 1974.

The appellant also had a letter dated 22 June 2018, filed of record, from the Ministry of Mines and Mining Development, confirming that it was the rightful owner of the mining claims in dispute. The letter reads as follows in relevant part:

“Please be advised, according to records held by this office, Wendale 43 chrome mine Registration Number 18007 BM is owned by Rio Zim Limited. The block was inspected under Inspection Certificate Number 235014P….,.”…,.

The above documentary evidence is clear and unambiguous.

A written proof of title is indispensable evidence as regards proof of ownership.

By holding that there was a dispute of fact because of the respondents special grant, the location of which was different from the appellant's mining claims, the court a quo undoubtedly misdirected itself.

As further evidence of the appellant's ownership of the said mining claims, the Ministry of Mines and Mining Development continued to collect money from the appellant for the purposes of renewing its certificate of registration.

Such payments can only be done by the holder of legal entitlement over a mining location.

This means, that, not only did the appellant get confirmation from the Ministry of Mines and Mining Development that it was the owner of the claims and had the right to mine them, but, that its registration was current.

The court a quo erred and misdirected itself by failing to appreciate that the letter from the Ministry of Mines and Mining Development was further confirmation of the appellant's legal entitlement to the mining claims.

As such, there was no dispute of fact....,.

In Agrifoods v Chiruka and Ors SC116-04, the court said the following at p4 of the judgment:

“The legal position regarding misdirection based on facts is clearly articulated in the case of Hama v National Railways of Zimbabwe 1996 (1) ZLR 774 (S) where, at p670A, the learned judge observed as follows:

'For an appellant to avail himself of a misdirection as to the evidence, the nature and circumstances of the case must be such that it is reasonably probable that the Tribunal would not have determined as it did had there been no misdirection; in other words, that the determination was irrational.'

I am satisfied, on the strength of this dictum, which I find to be apposite in casu, that the court a quo did indeed misdirect itself as to the evidence before it. Had the court not so misdirected itself, I have no doubt in my mind that it might very well have reached a different conclusion.

In particular, the court a quo may not have reached the conclusion that the order to report for work the following morning would have violated the respondents right to one day off per week. The misdirection in question amounts to a misdirection in law.”…,.

Applying the reasoning in Agrifoods v Chiruka and Ors SC116-04, it is apparent that if the court a quo had taken into account the evidence placed before it, it would not have reached the decision that it did.

It would have confirmed the provisional order granted to the appellant.

The failure by the court a quo to appreciate the nature of the evidence placed before it warranted interference by the Court....,.

“1. The appeal hereby succeeds with costs.

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

'1. The provisional order be and is hereby confirmed.

2. It is declared that the applicant is the holder of title over mining claims under Certificate No.18007BM, being Wendale 43 Block situate in Darwendale.

3. That the respondents, and any person acting under their authority or direction, be and are hereby interdicted from conducting mining activities, including the prospecting and extraction of chrome ore, at Wendale 43 Block.

4. That the respondents, and all those claiming occupation through them, be and are hereby ordered to evacuate the mining location covered by Block 43 Wendale, and shall, to that end, remove all their mining equipment.

5. The respondents shall cease and desist from interfering with the applicant's mining operations at Wendale 43 Block.

6. Costs of this application shall be borne by the respondents, jointly and in solidium, at the scale of legal practitioner and own client.'”

SC40-17 : FADZAI JOHN vs DELTA BEVERAGES LIMITED
Ruled By: GUVAVA JA

This is a chamber application for leave to appeal against the decision of the Labour Court in terms of section 92F of the Labour Act [Chapter 28:01].

After hearing arguments from both parties on the preliminary points raised, I dismissed the application with costs. The applicant has requested written reasons for the decision. These are they.

The brief facts of the matter may be summarized as follows:

The applicant was employed by the respondent as a Sales Representative. The respondent alleged, that, on 20 September 2010, the applicant requested and was given 40 cases of soft drink cans in order to replace a bad batch which had been delivered to Food World, a shop based along Cameron Street.

The respondent further alleged, that, the 40 cases were never delivered to Food World.

Based on these allegations, the applicant was charged with theft under section 1(1) of the respondent's Code of Conduct.

Following a disciplinary hearing, the applicant was found guilty of theft and dismissed from employment.

The main evidence against the applicant was a document which was allegedly signed by an employee from Food World acknowledging receipt of 21 cases instead of 40.

During the disciplinary hearing, the Food World employee who had signed for the 21 cases was made to sign, five times, to check his signature against that on the delivery note in question. The members of the Disciplinary Committee came to the conclusion that the signatures did not match, and, consequently, that the drinks were never delivered.

Based on that conclusion, the applicant was found guilty of theft.

The applicant was aggrieved by the decision and appealed to the Labour Court. On appeal to the Labour Court, the disputed signatures were sent to a handwriting expert.

The expert confirmed the finding before the Disciplinary Committee, that the signatures which had been taken during the hearing did not match the signature of the witness.

The appeal was thus dismissed.

The applicant applied for leave to appeal to the Supreme Court, which leave was denied. The applicant then filed the present application.

The respondent opposed the application, and, in its Notice of Opposition, raised six preliminary points. It was argued on behalf of the respondent:

(i) Firstly, that the application was fatally defective as it did not contain a record of the proceedings before the Labour Court.

(ii) Secondly, the application did not contain a prayer for the relief sought by the applicant.

(iii) Thirdly, the application did not conform with the form for such applications, as there was no document setting out the grounds supporting the granting of leave.

(iv) Fourthly, the application did not contain grounds that can support the relief sought.

(v) Fifthly, the application did not state the date when the Labour Court refused to grant the applicant leave to appeal as required by the Rules.

(vi) Sixthly, the affidavit filed in support of the application was defective; and, lastly

(vii) The applicant had cited a non-existent respondent.

At the hearing, the respondent submitted that the application should be dismissed due to the following points:

1. Defective Relief Sought

The applicant's prayer in the draft Notice of Appeal was defective as it was incomplete. The relief sought was drafted as follows:

“Wherefore, the appellant prays that the appeal be allowed with costs and the decision of the court a quo to be set aside and it be substituted as follows:

'1. The appellant be and is hereby reinstated with full benefits and back pay with effect from the date of unlawful dismissal.

2. In the event that the reinstatement is no longer possible, either party is entitled to approach the court for quantification of damages and back pays.'”

It has been emphasized in several judgments of this court, that, the Rules require that that prayer in the Notice of Appeal must exact in nature.

This matter came to the Labour Court as an appeal from a determination of the Disciplinary Committee. This application is to appeal against the decision of the Labour Court. In seeking the setting aside of the decision of the court a quo, the applicant neglected to address what should happen to the decision of the disciplinary hearing.

In casu, for the avoidance of doubt, the prayer ought to have read as follows:

“Appellant prays that the appeal be allowed with costs and the decision of the court a quo to be set aside and substituted as follows:

'1. Appeal be and is hereby allowed…,.

2. The decision of the Workers Council is set aside.

3. The appellant be and is hereby reinstated…,.”

In the case of Ndlovu & Anor v Ndlovu & Anor SC133-02, MALABA JA…, held that:

“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.”…,.

In this case, the applicant not only failed to pray for the success of the instant appeal but also failed to highlight what order he seeks to substitute in the event that the appeal is allowed.

In the case of Chamboko v Dorowa Minerals Limited SC26-15, this court stated as follows:

“In any case, an applicant for leave to appeal must file a Notice of Appeal that conforms to the requirements of the rules of court at the time the application for leave to appeal is made. Where the Notice of Appeal filed is fatally defective, there is no valid application.”

2. Failure to cite the correct respondent

The respondent highlighted that it has been cited as 'Delta Beverages Limited' as opposed to 'Delta Beverages (Private) Limited.'

The applicant concedes this point in his answering papers.

In Gariya Safaris (Pvt) Ltd v Van Wyk 1996 (2) ZLR 246 (H) it was stated as follows:

“A summons has legal force and effect when it is issued by the plaintiff against an existing legal or natural person. If there is no legal or natural person answering to the names written in the summons as being those of the defendant, the summons is null and void ab initio.”

In this case, the applicant cited a non-existent respondent. Thus, in the same vein, the application was a nullity.

3. Failure to attach the record of the court a quo

Counsel for the respondent contended, that, the failure by the applicant to attach the record of the court a quo to the present application was fatal.

Although this is not a requirement in terms of the Supreme Court (Miscellaneous Appeals and References) Rules, 1975 as the matter is an appeal from the Labour Court; in this case, the court, in dealing with the matter in a previous application, had directed that the record of proceedings should form part of the record.

In spite of such direction, the applicant failed to do so.

This was fatal to the application: see Masenga v Guthrie 2002 (2) ZLR 321…,.

Although it is generally accepted that dismissing matters on technicalities is not desirable, the defects in the present application were of such a nature that they went to the root of the application.

Where the court is presented with a defective application, the applicant must seek the indulgence of the court in order for the irregularities to be condoned.

It has been stated in numerous decisions of this court, that, legal practitioners are officers of the court charged with exercising due care in the execution of their roles.

The court is inundated with pleas of mercy where legal practitioners have not carried out their work with due diligence.

There comes a time when the court, in the exercise of its discretion, must decide that that there is a limit to which such indulgences can be granted to an applicant, and such applications will be dismissed where they fail to comply with the rules of the court.

Striking the matter off from the roll does not finalize the matter, but merely means the matter will be filed again; thus, clogging the court system with recycled cases.

In my view, there is a limit to which the court will indulge a litigant, as there must be finality in litigation.

This is so especially in circumstances where a matter has been brought before the court previously and an indulgence granted by the court and an interim order given, as in this case, directing that certain things be done – yet, the matter is filed again without complying with the courts direction.

In this particular case, the parties had specifically agreed that this application would be placed before me to ensure that what had been agreed to would be done.

Despite that undertaking, the application was filed without doing what had been agreed to and directed by the court.

In most cases, the courts refrain from visiting the errors of a practitioner on the client; however, as McNALLY JA stated in the case of Ndebele v Ncube 1992 (1) ZLR 288 (S)…,:

“It is a policy of the law that there should be finality to litigation. On the other hand, one does not want to do injustice to litigation, but, it must be observed that in recent years applications for condonation, for leave to apply or appeal out of time, and for other relief arising out of delays either by the individual or his lawyer have rocketed in numbers. We are bombarded with excuses for failure to act. We are beginning to hear more appeals for mercy than justice.

Incompetence has become a growth industry….,.

The time has come to remind the legal profession of the old adage: vigilantibus non dormientibus jura subveniunt, roughly translated; the law will help the vigilant but not the sluggard.”…,.

Vigilance applies not only with respect to time taken to file process, but, incorporates careful observation, due care, prudence, attention to detail, and a conscientiousness that exemplifies diligence on practitioners part in drafting documents for a litigant and obeying court orders.

All these factors were lacking in this application.

It was for the above reasons that I upheld the points in limine and dismissed the application with costs.

SC44-20 : TAFADZWA SAKAROMBE N.O. and WONDER SIMUKA vs MONTANA CARSWELL MEATS (PVT) LTD
Ruled By: GOWORA JA, PATEL JA and BERE JA

This is an appeal against a judgment of the Labour Court dismissing the first appellant's, a labour officer, application for confirmation.

The ruling was in favour of the second appellant, a former employee of the respondent, who was dismissed from employment sometime in March 2016 on allegations of certain acts of misconduct, including theft and/or fraud.

At the hearing of the appeal, we allowed the appeal and issued an order in the following terms:

IT IS ORDERED THAT:

1. The appeal be and is hereby allowed with no order as to costs.

2. The proceedings before the Labour Officer and the Labour Court be and are hereby set aside.

2.1 The matter is remitted to the Labour Court to be heard as an appeal against the decision of the Designated Appeals Officer in terms of section 92(1) of the Labour Act.

3. The second appellant herein shall file his Notice of Appeal to the Labour Court within 15 days from the date of this order.

3.1 Thereafter, the matter shall proceed in terms of the Labour Court Rules.

We indicated that reasons for judgment would follow. These are they.

FACTUAL CONSPECTUS

The second appellant was employed by the respondent as an Administration Clerk in charge of cash sales. He was in the respondent's employ for a period running from May 1998 until March 2016 when he was dismissed from employment following allegations of misconduct.

The background relating to the dismissal is the following:

On 29 February 2016, the second appellant was issued with a charge letter detailing the grounds upon which the misconduct charges were premised. He was charged with theft or fraud in breach of section 4(d) of the Labour (National Employment Code of Conduct) Regulations, 2006 (S.I.15/2006), also commonly known as the Model Code of Conduct.

It was alleged, that, sometime in October to November 2015, he was assigned, by management, to backstop one Shayne Mbizi who was going on leave, and, that, during the course of that period the appellant failed to account for R1,780 and USD600 respectively.

The respondent alleged that during the period in issue, the second appellant had:

(a) On 29 October 2015, been given a cash sales book together with sales for that day. Among those sales was R1,780 as per receipt number 018461. The said amount was neither posted onto the daily cash book nor was it banked with the cash office as per the company practice.

(b) On 2 November 2015, received USD1,200 in cash sales but had only posted USD1,000 onto the cashbook. In terms of receipt number 018529, received a cash sale of USD286 but only USD186 was posted onto the cashbook.

(c) On 16 November 2015, posted USD120 from receipt number 018538 valued at USD220, and, as a result, USD100 was not remitted to the cash office.

(d) On 18 November 2015, a receipt number in the name of a client, one Thomas Knowledge, indicated a cash payment of USD546 but only USD446 was posted onto the cash sale.

In response to the charge letter, the second appellant accepted indebtedness of the USD600, and, as far as the issue of the missing R1,780 was concerned, he requested that further investigations be conducted.

Pursuant to the charges, disciplinary proceedings were conducted wherein the second appellant was found guilty and dismissed from employment.

An internal appeal was lodged to the Appeals Committee which upheld the decision of the disciplinary authority.

Thereafter, the second appellant approached the Ministry of Public Service, Labour, and Social Welfare with a complaint of unfair dismissal.

The parties then appeared before the first appellant for conciliation.

They reached a stalemate, which led to the subsequent issuance of a Certificate of No Settlement.

The first appellant, the labour officer, then proceeded to deal with the matter in terms of section 93(5)(c) of the Labour Act [Chapter 28:01].

Before the labour officer, the second appellant raised six grounds of appeal in which he contended, that, he had been wrongly accused of the said charges. He further argued, that, the acknowledgment of debt, which he is said to have purportedly written, was fabricated. In his final submissions, the second appellant argued, that, these charges were a ploy by the respondent to deprive him of his retrenchment package.

The respondent opposed the second appellant's case in all material respects.

Following the arguments, the labour officer made a ruling in favour of the second appellant. She overturned the decision of the Disciplinary Committee on the basis, that, the respondent had failed to prove its case beyond a reasonable doubt. In arriving at this decision, reliance was placed on the case of Astra Industries Ltd v Chamburuka SC27-12.

The labour officer consequently ordered the reinstatement of the second appellant without loss of salary and benefits.

It is this ruling which was subject of confirmation before the court a quo in terms of section 93(5a) and (5b) of the Labour Act.

The application for confirmation was opposed.

The issue for determination before the court a quo was whether or not the second appellant was unfairly dismissed.

Contrary to the findings of the labour officer, the court a quo held that the onus of proof in disciplinary proceedings was on a balance of probabilities.

The court a quo held, that, the labour officer had erred in placing reliance on Astra Industries Ltd v Chamburuka SC27-12.

In assessing the charge, on a balance of probabilities, the court a quo found that there was no unfair dismissal and proceeded to dismiss the application for confirmation.

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

“(a) The court a quo erred on a point of law in finding, that, the second appellant (the employee) had the onus to prove the admitted fact, that, in compiling the electronic cash book, he had relied only upon the cashier's handwritten notes.

(b) Further, the court a quo erred on a point of law in not finding that the respondent had failed to prove the essential elements of theft or fraud.

(c) Further, the court a quo misdirected itself in interfering with the labour officer's factual findings which had not been proved to be irrational or grossly unreasonable.”

ARGUMENTS ON APPEAL

Although the labour officer was cited as the first appellant she has not participated in this appeal nor has she filed any documents.

That is the proper way of dealing with the dispute, as she is not a litigant.

She would only have filed the application for confirmation in compliance with the law. She would therefore have no interest in the matter and we heard the appeal in her absence.

In his heads of argument, the second appellant argued, that, the court a quo erred in holding that he, the second appellant, had the onus to prove an admitted fact.

The appellant argued, that, the nature of the court a quo's misdirection in that regard was such that the conclusion arrived at by the court a quo was per incuriam.

The appellant further argued, that, the court a quo erred when it failed to make a finding that the respondent had failed to prove the essential elements of theft or fraud.

It was his argument that the respondent failed to prove its case, even on a preponderance of probabilities, and, as such, the court a quo ought not to have found in its favour.

In his final submissions, the appellant averred that the court a quo misdirected itself when it interfered with the factual findings of the labour officer without a finding of irrationality on the part of her decision.

Per contra, the respondent argued that the key issue for determination was whether or not the court a quo had erred in making its decision.

The respondent argued, that, the burden of proof in labour proceedings was proof on a balance of probabilities; therefore, the appellant had failed to interpret the position in Astra Industries Ltd v Chamburuka SC27-12.

It further argued, that, what determines where the onus of proof lies is the person who makes the allegations. In casu, the respondent argued, that, it was the appellant making the allegations, and, therefore, on principle, he must be able to prove the point.

The respondent further argued, that, the court a quo was not in error, as such, the appeal ought to be dismissed with costs.

Although the parties have made arguments on the merits, it is our view that a more fundamental issue, pertaining to the procedure adopted by the parties, including the labour officer, in the resolution of the matter, arises in this case.

It is imperative to note, that, a claim for unfair dismissal was brought by the second appellant in terms of SI 15/2006 subsequent to the dismissal of an appeal by the appeals authority.

The court notes, that, the disciplinary authority, when hearing the matter, made factual findings which were confirmed by the designated Appeals Officer.

It is against this background that the court takes the view, that, a properly considered critical analysis of the proceedings before the labour officer, under section 93 of the Labour Act, be made to establish whether or not those proceedings in question were properly before the labour officer in the first place.

In that regard, the issues that arise for determination are the following:

(i) The ambit of the jurisdiction of a labour officer, under section 93 of the Labour Act, where a matter is referred to him or her in terms of section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I. 15 of 2006, otherwise referred to as the Model Code of Conduct; and

(ii) Consequent thereto, whether or not the subsection is consistent with sections 101 and 92D of the Labour Act [Chapter 28:01] (the Act) as well as section 12B thereof.

We are indebted to counsel for undertaking further research and submitting additional written submissions to the court so that clarity on this issue may be achieved.

Counsel for the appellant made the following submissions:

He submitted that sub-section (6) of section 8 of the Labour (National Employment Code of Conduct) Regulations S.I. 15 of 2006 (the Model Code of Conduct) is inconsistent with sections 92D and 101(5) of the Labour Act [Chapter 28:01].

In this regard, he sought reliance on the authorities of Mwenye v Lonrho Zimbabwe Ltd 1999 (2) ZLR 429 (S) and Watyoka v Zupco (Northern Division) 2006 (2) ZLR 170 (S).

In consequence thereto, he has submitted that due to the inconsistency, subsection (6) of section 8 of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) should be struck down.

On the other hand, counsel for the respondent has argued an alternative position to that presented by counsel for the appellant.

He urged the court to find, that, there is in fact no conflict between the provisions of the Labour Act and the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct).

Further to the above, counsel has urged the court to find that a labour officer has the requisite jurisdiction to deal with a matter referred to him on the basis that a dismissal has been effected in contravention of section 12B(3) of the Labour Act.

THE ISSUES AND DISPUTES FOR DETERMINATION BY A LABOUR OFFICER FOLLOWING A REFERENCE UNDER SECTION 101 OF THE LABOUR ACT

Although the issues for determination in this appeal emanate from a reference of an unfair dismissal under section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct), the enabling legislative provision for such reference is section 101 of the Labour Act, in particular subsections (5) and (6) thereof.

The law provides:

“(5) Notwithstanding this Part, but subject to subs (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings.

(6) If a matter is not determined within thirty days of the date of the notification referred to in paragraph (e) of subs (3), the employee or employer concerned may refer such matter to a labour officer, who may then determine or otherwise dispose of the matter in accordance with section ninety-three.”

The Labour Act has been subjected to numerous amendments ever since it was initially promulgated as the Labour Relations Act [Chapter 28:01], ultimately ending as the Labour Act as it is currently known.

For some reason, section 101 of the Labour Act has remained in the same format as it was, with minor amendments which are not pertinent for the resolution of this dispute.

Subsections (5) and (6) have been considered by this Court in order to ascertain what it is that a labour officer is empowered to do or determine upon reference of a matter to such labour officer in terms of section 101(5) or (6) of the Labour Act.

Section 101(5), under the former Labour Relations Act, was considered by this Court in Mwenye v Lonrho Zimbabwe 1999 (2) 429 (S). At 433C-434B, GUBBAY CJ remarked as follows:

“Section 93(1) vests in a labour relations officer a general jurisdiction to deal with any dispute, either on his own initiative or on reference to him by one of the parties. Section 101 of the Act (then as s117A) was introduced on January 1, 1993 by the Labour Relations Amendment Act 12 of 1992. It then became possible for an employment code of conduct, binding in respect of a particular industry, undertaking, or workplace, to be registered; provided it contained the matters specified in s101(3) of the Act….,.

Against this background, it does not seem to me that the legislative objective introducing the new procedure was to relieve labour relations officers of the burden of determining disputes. It was rather to return to the employee and employer a greater degree of autonomy with regard to the determination of their disputes than previously enjoyed.

Section 101(5) of the Act is, in effect, an exception to section 93.

It is a provision designed for the benefit of the parties. As long as the dispute or matter is: (a) the subject of proceedings under a code; or (b) liable to be the subject of proceedings under a code; no labour relations officer may intervene.

His power to determine or otherwise dispose of the matter under section 101(6) is placed in abeyance for a period of thirty days. This is to afford the parties, should one of them so wish, the opportunity to utilize the internal mechanisms specified in the code.

Consequently, if either party were to refer the matter to a labour relations officer before the expiry of the thirty day period, the other could raise section 101(5) as a defence.

On the other hand, where the parties are ad idem that their dispute is incapable of resolution under the code, or both deem it more advantageous to have it determined by a labour relations officer, then, the dispute or matter is no longer 'liable' to be the subject of proceedings under the code. It may be referred immediately to a labour relations officer.”

The import of this authority is to illustrate the ambit of the jurisdiction of the labour officer under section 93 of the Labour Act.

In other words, does a labour officer have carte blanche to deal with the matter as he sees fit or is his jurisdiction specific?

The import of these provisions was considered by this Court in Watyoka v Zupco (Northern Division) 2006 (2) ZLR 170. At p172F-173D, this Court said:

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

(a) The matter must not be one that is liable to be the subject of proceedings under a code of conduct;

(b) The matter has not been determined within thirty days of the date of notification; and

(c) Where the parties to the dispute request and are agreed on the issues in dispute.

Section 93(1)(ii).

In this case, there were delays in the determination of the matter due to a number of postponements at the request of the appellant. At one meeting, the appellant and his legal practitioner attended without submitting the appellant's response to the allegations. At yet another meeting, the appellant and his legal practitioner walked out before the meeting was closed, as the legal practitioner said he wanted to catch his flight and had other business to do in Harare.

When the appellant and his legal practitioner raised the issue of delay, the chairperson did point out to them that it was actually their fault, as they were responsible for the delay.

Subsection (6) of section 101 provides for a referral of the matter to a labour relations officer if it has not been determined within thirty days. It does not provide for a referral of a matter that has been determined.

The referral to a labour relations officer is a relief granted to a party who is concerned about the delay in the determination. It is not a referral intended to challenge a determination that has already been made.”…,.

And later, at p173H-174A, the court put the issue beyond any doubt and stated:

“The section cannot be read as providing for a second determination over and above the one already made by a disciplinary committee. Once there was a determination, the correct procedure was to appeal to the company's management as provided in the code of conduct.”…,.

And later still at p175B-C:

“In this case, by the time the matter was entertained by the labour relations officer, two separate provisions had ousted his jurisdiction. They were, firstly, the fact that a determination had been made, and, secondly, the dispute had prescribed in terms of section 94(1)(b), in that the allegations of unfair labour practice were raised at meetings held with the disciplinary committee in November 1997 but the labour relations officer only entertained the complaint on 6 August 1999, a period of about eighteen months, and well beyond the period of one hundred and eighty days provided in section 94(1)(b).”

Although this Court has clearly set out the procedures applicable when a matter is referred to a labour officer in terms of section 101 of the Labour Act, it is evident that the process is fraught with confusion.

In fairness to the parties involved in this debacle, the incidence of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) and the provisions of section 8(6) and (7) of the Model Code of Conduct might have, to a large extent, contributed to the confusion.

It is imperative, therefore, that the role of a labour officer under the enabling sections be examined.

WHAT IS THE JURISDICTION OF A LABOUR OFFICER UNDER SECTION 93 OF THE LABOUR ACT

The issue before the court is a simple one: what are the powers exercisable by a labour officer in terms of section 93 of the Labour Act?

A labour officer is not a stand-alone court or tribunal, and exercises his or her powers upon reference to him of matters or disputes.

Viewed in this context, one does not envisage any issue over the exercise of those powers under the Labour Act.

The labour officer is a creature of the Labour Act. He is imbued with certain and specified duties and obligations under the Labour Act, and, perforce, his powers are only to be exercised as defined in the Labour Act. Therefore, the jurisdiction that he is empowered to exercise, and the nature of the relief that he provides, after an exercise of such jurisdiction, must be found in the Labour Act.

It cannot emanate from any other source.

However, a ticklish question on the exercise of this jurisdiction may arise in this regard, mainly emanating from the provisions which stipulate the matters in terms of which the labour officer exercises his jurisdiction and make provision for the reference of such matters to the labour officer.

Section 93 of the Labour Act is not a stand-alone provision. It must be read with other provisions in the Labour Act or related provisions from codes of conduct. It is therefore to the Labour Act that one must look, in particular section 93(1), (2) and (3) of the Labour Act.

Section 93 of the Labour Act, as amended by Act 5 of 2015, reads:

“93 Powers of labour officers

“(1) A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation, or, if agreed by the parties, by reference to arbitration.

(2) If the dispute or unfair labour practice is settled by conciliation, the labour officer shall record the settlement in writing.

(3) If the dispute or unfair labour practice is not settled within thirty days after the labour officer began to attempt to settle it under ss (1), the labour officer shall issue a certificate of no settlement to the parties to the dispute or unfair labour practice.”

The question is: what dispute is a labour officer empowered to preside over in terms of section 93(1) of the Labour Act?

The clear principle that emerges from the authorities in which section 93 of the Labour Act has been considered is that his mandate is to preside over a fresh hearing wherein a complaint has been lodged against an employer or there exists a dispute between the parties.

Consequently, his jurisdiction is limited to matters where there are allegations of unfair labour practices or unfair dismissal.

Unfair labour practices are defined in section 8 of the Labour Act and include a whole host of wrongs that an employer may be guilty of in the workplace.

This is not the complaint here.

On 5 May 2016, the designated Appeals Officer advised the second appellant, in writing, that his appeal had not been successful. The latter acknowledged receipt on 9 May 2016.

On 29 April 2016, he filed a complaint with the Ministry of Public Service, Labour and Social Welfare, alleging “an unfair dismissal”.

On 3 May 2016, the labour officer notified the parties to appear before her for a hearing on 7 May 2016.

On 17 May 2016, the labour officer issued a Certificate of No Settlement.

On some unnamed date, she advised the parties to file submissions for her consideration. It is common cause that she issued a draft ruling on 5 September 2016, which ruling was the subject of the application for confirmation which was refused by the Labour Court. She stated therein that she had determined the matter in accordance with section 93(5)(c) of the Labour Act.

In his submissions before the labour officer, the second appellant made allegations that there had been a delay in the determination of his appeal - even though, at the time he lodged the complaint, he had been notified of its dismissal.

I note that he did not seek an appeal before the labour officer.

The respondent filed a response in which it responded to the complaints on the merits. It also feebly raised a point in limine on the procedure adopted by the second appellant.

The labour officer was of the opinion that the second appellant had lodged an appeal for determination by her.

This is confirmed by the labour officer making reference to the following grounds of appeal as being issues for determination before her:

“1. Wrongly accused of stealing 1,730 Rands (one thousand seven hundred and thirty rands);

2. Wrongly accused of stealing/misrepresenting US600 (six hundred dollars);

3. Withdrawal of police report;

4. Fabricated acknowledgement of debt;

5. Report to Ministry of Labour and subsequent courtesy call from M C Meats Human Resources;

6. Prejudiced of retrenchment package.”

The labour officer thereafter proceeded to analyze the facts and consider the applicable law. She then addressed the grounds of appeal.

After this exercise, she went on to quash the conviction of the second appellant on the misconduct charges and ordered that he be reinstated to his original position without loss of salary and benefits.

In making this ruling she said:

“It is clear from what has been discussed above, that, the Respondent failed to prove its case that the appellant contravened section 4(d), theft or fraud (sic) of the National Employment Code of Conduct S.I. 15 of 2006. In light of the above, the conviction of Appellant be and is hereby quashed. The Respondent be and is hereby ordered to reinstate the appellant to his original position without loss of salary and benefits from the date of dismissal within 30 days of receipt of the ruling.”

A perusal of the ruling issued by the labour officer will tend to show, that, the proceedings conducted by her were in effect an appeal against the decision of the designated Appeals Officer dismissing the second appellant's appeal against the findings of guilt by the disciplinary authority and the penalty of dismissal meted out as a result.

Undoubtedly, she was acting as an appeal tribunal.

A simple reading of the subsections of section 93 of the Labour Act set out above gives the reader the impression, that, when a labour officer deals with a matter or a dispute which has come to him in terms of section 93(1) of the Labour Act, it is a matter where the labour officer must conciliate on the dispute.

At this stage, all that a labour officer is obliged to do under the Labour Act is to attempt to bring the parties to a stage where a settlement is achieved.

Thus, the proceedings before the labour officer, under section 93(1) of the Labour Act, constitute the first step towards achieving a resolution of the dispute. His office is the body under the Labour Act that is tasked with the receipt of the initial complaint of an unfair labour practice or disputes for conciliation as provided under the subsection.

There is no suggestion therein that he is empowered to sit as an appeal or review tribunal over completed disciplinary proceedings conducted at the workplace.

In casu, since the disciplinary proceedings against the appellant were conducted under the aegis of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) it stands to reason that the matter was referred to a labour officer in accordance with the provisions of the same.

Section 8(6) and (7) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 provide as follows:

“(6) A person or party who is aggrieved by a decision or manner in which an appeal is handled by his or her employer or the Appeals Officer or Appeals Committee, as the case may be, may refer the case to a Labour Officer or an Employment Council Agent, as the case may be, within seven working days of receipt of such decision.

(7) The Labour Officer or an Employment Council Agent to whom a case has been so referred shall process the case as provided for under section 93 of the Act.”

Section 8 of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) is concerned with the respective parties rights in a disciplinary process to appeal against a determination made in terms of the Code.

Provision is made in the section for internal processes of appeal against determinations of formal tribunals at the workplace.

To be fair, a simple reading of the above statutory provisions would appear to suggest, that, a reference to a labour officer, or an Employment Council Agent, under the same, is an appeal.

To place the matter in its proper context, regard must be had to the provisions in the Labour Act which permit a reference to a labour officer, or an Employment Council Agent, as the case may be.

Therefore, and in addition, regard must be had to section 101(5) and (6) of the Labour Act which empower a labour officer to exercise powers inherent in such officer under section 93 of the Labour Act.

Section 93(1), (2) and (3) of the Labour Act make provision for conciliation.

To conciliate is to reconcile or make compatible. Thus, the first duty of a labour officer, in conciliation proceedings, is to attempt to resolve the dispute within thirty days after he or she began to attempt to settle the dispute.

Section 93 of the Labour Act, as a whole, does not give a labour officer the power to act as an appeal tribunal or to review the decisions of the disciplinary authority and the internal processes attendant thereto.

The finding that the labour officer had no jurisdiction to entertain the matter disposes of the issue.

In casu, it matters not that the labour officer went on to decide the matter under section 93(5) of the Labour Act after which she issued what she termed “a draft ruling”.

That is not an issue for consideration before the court as nothing turns on that ruling.

The method by which she arrived at a draft ruling is, as a result, of no consequence to the determination of this appeal.

The reason I say this is that section 93(5) of the Labour Act does not empower a labour officer to examine earlier proceedings and make a determination as to their correctness.

That said, it only remains for me to consider the relationship of section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) with section 93 and section 101 of the Labour Act.

It seems to me that section 8(6) of the Model Code of Conduct appears to be out of sync with the whole section.

It seems to suggest, that, a party aggrieved by a decision or manner in which an appeal has been conducted has a right of appeal to a labour officer in terms of section 93 of the Labour Act.

To my mind this is obviously incorrect, if regard is had to the wording of section 93 of the Labour Act.

The powers bestowed upon a labour officer under the section are confined to disputes related to unfair labour practices or unfair dismissals.

A reference under section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 cannot be defined as relating to either an unfair labour practice or unfair dismissal.

Given the scenario related above, what is it that the labour officer was presiding over?

What then is the import of section 8(6) and (7) of the Model Code of Conduct in terms of which this dispute was referred to the labour officer?

Is the reference meant to give the parties an opportunity to present their respective positions to the dispute before the labour officer afresh and for him to make a determination?

Is the labour officer exercising review or appeal powers, and, in accordance with which provision of the Labour Act?

If regard is had to the nature of the disputes that a labour officer is mandated to deal with, it becomes clear that the jurisdiction is limited to a dispute or unfair labour practice or unfair dismissal.

When one has regard to section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code) one may be misled into assuming that even completed disciplinary hearings should be referred to a labour officer.

It is not suggested, in the Labour Act, that the labour officer, in this context, can exercise powers of appeal or review.

In casu, a determination on the merits had been made by the disciplinary authority, as provided for in the Code of Conduct. The reference to the labour officer, in terms of section 8(6) of the Model Code of Conduct would, as a consequence, seem to be in direct conflict with the provisions of section 101(5) and (6) of the Labour Act.

And yet, under the various provisions of the Labour Act and the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) a labour officer has been imbued with the power to entertain parties to a dispute without any apparent restriction.

The nature of the disputes he can entertain is not specifically defined. They have to be construed by reference to section 93(1) of the Labour Act in order to achieve clarity.

An exercise of power under section 93 of the Labour Act must be provided for in terms of the Labour Act itself. Reference must therefore be had to section 101 of the Labour Act, which reads in relevant part:

“101 Employment Codes of Conduct

(5) Notwithstanding this Part, but subject to subsection (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings.

(6) If a matter is not determined within thirty days of the date of the notification referred to in paragraph (e) of subsection (3), the employee or employer concerned may refer such matter to a labour officer, who may then determine or otherwise dispose of the matter in accordance with section ninety-three.”

A perusal of the Labour Act will show, that, the only section providing for reference of a matter to a labour officer for intervention under section 93 is to be found in section 101(6): and yet, when read with subsection (5) of the same section, it becomes evident that the procedure adopted before the labour officer was not permitted by law.

In this context, the implications of what the labour officer did are obvious.

First, she assumed jurisdiction to entertain a matter which the law did not sanction. An appeal against proceedings under the Code can only lie to a court or a tribunal which is empowered by law to act as an Appeal Court or tribunal.

In casu, the labour officer assumed unto herself the jurisdiction that is imbued, by law, in an Appellate Court or tribunal.

A labour officer is not an appeal structure for purposes of section 93 of the Labour Act, nor can that power be read into the section no matter where the referral of a dispute or matter emanates from.

The view I take, therefore, is that a labour officer is empowered to determine complaints of unfair labour practice and unfair dismissal where there has not been any procedural process that has been completed.

His jurisdiction is limited to that of a tribunal of first instance.

There is a presumption that the Legislature does not intend to alter the law, whether it is statutory or common law, unless it provides so in specific terms. This presumption is fundamental to the interpretation of statutory provisions.

As a result, courts are enjoined, as much as possible, to construe statutes in a manner that seeks to reconcile seemingly contradictory provisions.

The appellant in this dispute was charged with misconduct in terms of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) after which he was dismissed from employment.

It is therefore clear to the naked eye, that, he could not lodge a complaint with the labour officer alleging unfair dismissal.

The labour officer would not have the jurisdiction to entertain any complaint from the appellant, as what the appellant was seeking was the setting aside of the determination of the disciplinary process.

She also, again without having the jurisdiction to even hear the parties, set aside findings of fact made by a tribunal of first instance without regard to settled principles by which such findings should be set aside.

These same findings of fact reached by the disciplinary authority were confirmed by the appeal structures of the respondent.

To describe the process by which this decision was reached as being irregular is mild. It is not only irregular, it was unlawful and nothing can stand on that decision.

The provisions of section 8(6) and (7) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) must be read together with the Labour Act under which the statutory instrument was promulgated. Where the Code conflicts with any provision of the Act, it stands to reason that the provisions of the Act must prevail.

Section 2A(3) provides that the Labour Act shall prevail over any enactment which is inconsistent with it.

DISPOSITION

In my view, the principle emerging from all the authorities referred to above can be summarized by the statement to the effect, that, a labour officer does not have any jurisdiction, under section 93 of the Labour Act, to entertain a matter once a determination on the merits has been made through a disciplinary process under a registered Code of Conduct.

It is clear that the labour officer presided over a matter over which she did not have any jurisdiction.

As stated in Watyoka v Zupco (Northern Division) 2006 (2) ZLR 170, once there is a determination on the merits of a dispute, a labour officer has no jurisdiction under section 93 of the Labour Act. Accordingly, the subsequent procedures were a nullity as the labour officer could not subsequently purport to make factual findings on the same matter.

I conclude, therefore, that, the labour officer did not have jurisdiction to hear a complaint from the appellant, of whatever nature, and, therefore, the proceedings conducted under section 93(5)(c) of the Labour Act, by the labour officer, were, as a result, an irregularity.

In addition, the proceedings before the Labour Court, to confirm the ruling, were also a nullity.

This Court is of the view, that, the matter should have been brought before the Labour Court as an appeal.

Both counsel were in agreement with this position.

This finding has necessitated the writing of the present judgment so as to give the position that should obtain where a dispute is dealt with in terms of an employment code of conduct.

In addition it is necessary, in order that the apparent confusion that exists between the Labour Act and section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code), as highlighted in this judgment, be rectified; that the relevant Minister responsible for the administration of the Labour Act be appraised of the need to call upon the Legislature to align S.I 15/2006 to its parent statute, the Labour Act.

It is for the above reasons that this Court issued an order as described above.

SC52-19 : ZIMBABWE OPEN UNIVERSITY vs PERPETUAL NDEKWERE
Ruled By: GARWE JA, GUVAVA JA and MAVANGIRA JA

At the conclusion of the hearing of an appeal noted to the Labour Court by the appellant, the Labour Court upheld the point in limine taken by the respondent, that, the appeal was improperly before the court as it sought to impugn findings of fact rather than law.

As a consequence of that finding, the court a quo dismissed the appeal with costs.

It is against that order that the appellant has now approached this Court seeking an order setting aside that finding and remitting the matter to the court a quo for a determination of the matter on the merits.

FACTUAL BACKGROUND

The respondent was employed by the appellant as its Finance Director. Although both the arbitrator and the court a quo say that she was employed on fixed term contracts which were periodically renewed, the record, in fact, shows that she was employed in that capacity on a fixed three-year contract which commenced on 8 June 2009 and was set to expire on 7 June 2012.

For the duration of the contract period, either party had the right, in terms of the contract, to terminate the contract upon giving six months notice in writing of such termination.

On 27 March 2012, less than three months before her contract was set to expire, the appellant's Human Resources Committee held a meeting at which all the members present (excluding the respondent, who had been asked to recuse herself) recommended that her contract be renewed, subject to approval by the Council of the appellant.

A special executive committee of the Council met two days later and also “strongly and unanimously” recommended that the respondent's contract of employment as Finance Director be renewed for a further period of three years, on the same terms and conditions, subject to approval by the Minister.

On 7 June 2012, the date on which her contract was set to expire, the Vice-Chancellor of the appellant, a Dr P. Kurasha, wrote to the respondent advising that the Council of the appellant had decided to appoint her in an acting capacity from 9 June 2012 “until further notice”.

Pursuant to that communication, the respondent continued offering her services as Finance Director until 27 June 2013, over a year later, when she received a letter from the chairman of the Council.

The letter advised that the Council was now in a position to make a substantive appointment of a Finance Director.

In the letter, the chairman gave the appellant notice of termination of her contract of employment, effective 30 September 2013.

It bears mention, at this stage, that, as a matter of fact, the chairman of Council gave her three calendar months notice of the termination of her employment.

The letter also requested that she vacates her office immediately and that she carries out a handover-takeover of assets and records with the Acting Finance Manager.

Unhappy with the sudden turn of events, the respondent lodged a complaint of unfair dismissal with a labour officer.

Having failed to conciliate the dispute between the parties, the Labour Officer (then) referred the matter to an arbitrator to determine whether she had been unlawfully dismissed, and, if that was the case, the appropriate remedy.

In proceedings before the arbitrator, the appellant disputed that the respondent could have entertained a legitimate expectation of her contract being renewed. It argued that the respondent could not rely on a mere recommendation of a committee of the Council.

The appellant also argued, that, the respondent had accepted her termination, and, pursuant thereto, had vacated her office and accepted her terminal benefits.

In his findings, the arbitrator rejected the contention that the respondent had waived her right to appeal.

The arbitrator agonised over the status of the respondent between 7 June 2012 and 27 June 2013 when her employment was formally terminated.

He noted that the acting appointment did not “mention an extension of the fixed term contract…,.; nor does it specify the basis for such acting appointment or the duration of the same.”

He concluded that this was a contract without limit of time as there could not be an employment relationship “on a temporary basis.”

He expressed the view that the nature of the employment relationship that subsequently subsisted between the parties was one of a contract without limit of time.

Notwithstanding that conclusion, the arbitrator proceeded to determine whether the respondent had a legitimate expectation of being re-engaged.

He noted that the position that she had previously occupied had been filled by someone else in an acting position. He concluded, that, the respondent may have had a legitimate expectation of her contract being renewed, taking into account the favourable recommendation made by both the Human Resources Committee and the Special Executive Committee of Council, and the fact that she was appointed to act in the same position, albeit for an indefinite period.

Consequently, he determined that the respondent had been unfairly dismissed and that she should be reinstated to her position without loss of salary or benefits, or, alternatively, that the appellant pays damages in lieu of reinstatement.

PROCEEDINGS BEFORE THE LABOUR COURT

Aggrieved by the above arbitral determination, the appellant appealed to the Labour Court. It did so on a number of grounds of appeal.

As the determination of the Labour Court was predicated on the validity of those grounds of appeal, it is necessary to set these out in full. I cite them verbatim:

“1. The Honourable Arbitrator erred at law in exploring and making a finding on the nature of the contract entered into between the parties with effect from 9 June 2012 when such was not an issue before him.

2. The Honourable Arbitrator erred, grossly, on the facts, in finding that the contract entered into between the parties, with effect from 9 June 2012, was a contract without limit of time. The Honourable Arbitrator's findings in this respect is not supported by any evidence and is so grossly unreasonable such that no reasonable person, properly applying his mind to the matter, would have arrived at such a decision.

3. The Honourable Arbitrator made a finding to the fact, that, the respondent had legitimate expectation of renewal of a contract based on recommendations made during Council meetings.

4. The Honourable Arbitrator erred at law in relying on the proceedings and resolutions in those meetings.

The Honourable Arbitrator erred, grossly, on the facts, in finding that respondent was legitimately entitled to expect the renewal of her contract. The Arbitrator's findings in this regard are so grossly unreasonable such that no reasonable person, properly applying his mind to the matter, would have arrived at such a decision.

4.1 The Honourable Arbitrator also made a finding that the fact that the Executive Committee made its decision subject to the approval of full Council or the Minister did not deny respondent a legitimate expectation since her appointment on 7 June 2012 was not blessed with Council or Ministerial approval.

The Arbitrator's finding in this regard is grossly unreasonable as:

(a) Whether or not the consent of Council or the Minister was asked for and/or obtained for the 7 June 2012 appointment was never an issue; in any event, the 7 June 2012 appointment was a temporary appointment (sic) while the appointment allegedly expected is a three (3) year appointment;

(b) Further and any event, it is the employer's prerogative to choose which appointment to subject to approval and which not. Once one is informed that a specific appointment is subject to approval, then, without such approval, no legitimate expectation can arise.

(c) The Arbitrator also made a finding that a year's delay in obtaining Council or Ministerial approval entitled respondent to legitimately expect that her three year (3) fixed term contract will be renewed. This finding by the Arbitrator is so grossly unreasonable such that no person, properly applying his mind to the matter, would arrive to such a decision.

4.3 The Arbitrator also held that no proof of a negative decision from the decision maker was furnished, and, as a result, respondent was entitled to legitimately expect that her contract will be renewed. The Arbitrator's decision in this respect is so grossly unreasonable such that no person, properly applying his mind to the matter, would arrive at such a decision.”

In its submissions a quo, the appellant stated as follows:

1. First, that the arbitrator made a finding on an issue that was not before him and in respect of which no evidence had been led. In particular, the appellant submitted that the nature of the contract that subsisted between the parties, from 7 June 2012, was not an issue before the arbitrator, and, therefore, his finding that there existed a contract without limit of time was irregular.

2. Second, that the crux of the matter revolved around the question of legitimate expectation. The recommendation to extend her contract had not been communicated to her. It had been made by the appellant's Executive Committee of Council, not to her, but to the appellant. The respondent could not, therefore, rely on a representation that was never made to her. In any event, no representation was ever made by the appellant so as to induce her to legitimately expect that her contract was to be extended.

3. Third, the recommendation made by Council was subject to acceptance or rejection by the appellant. That recommendation was therefore “not clear, unambiguous, and devoid of relevant qualifications” as required by the law.

4. Lastly, the submission was made that criminal conduct, involving abuse of trust, had been unearthed in the finance department, and the respondent's innocence was therefore questionable. She could not therefore have expected her contract to be extended given that circumstance.

In her submissions before the Labour Court, the respondent argued that the arbitrator had correctly found that she had a legitimate expectation to be re-engaged as Finance Director. It being common cause that another person had been engaged in her place, she had therefore been unlawfully dismissed.

The respondent also took the point, that, the appeal had been noted against findings of fact and not law. No real question of law had been ventilated.

She therefore prayed that the appeal should fail on that basis and that costs be awarded in her favour.

At the hearing of the appeal, the court a quo, quite correctly, decided to determine the point in limine raised by the respondent, that the appeal was not properly before the court as it did not implicate any issues of law.

The first and second grounds of appeal were abandoned by the appellant at the commencement of the hearing. The court a quo accordingly confined its enquiry to the remaining grounds of appeal.

The court found, that, the third ground of appeal raised a factual finding since no allegation had been made that the arbitrator's reasoning was so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided would have arrived at such a conclusion.

It also found the fourth ground to have been similarly afflicted.

Whilst in this ground the appellant had alleged that the arbitrator's finding had been grossly unreasonable, the court found, that, on a perusal of the record, it was apparent that the issue whether or not the recommendation had been communicated to her had not been raised before the arbitrator. It accordingly found, that, it was improper for the appellant to have raised this issue for the first time on appeal; the issue raised before the arbitrator having been whether the respondent could rely on a recommendation made by a Committee of Council to found a claim for legitimate expectation.

The court also considered the submission by the appellant, that, the Executive Committee of Council had made its decision to recommend the re-appointment of the respondent subject to approval by the full Council and the Minister, and that, in the circumstances, no legitimate expectation could have arisen.

The Court accepted the respondent's submission, that, a legitimate expectation can arise from a representation made by, or the conduct of, the employer.

It determined, that, the placement of the respondent in an acting position, coupled with the recommendation by the Executive Committee of Council that her contract of employment be extended, gave rise to that expectation. Therefore, the arbitrator could not be faulted for relying on previous conduct by the appellant, regard being had to the fact that the two meetings that recommended her re-engagement were held before she was re-appointed in an acting capacity.

It found that the arbitrator's reasoning in this regard could not be termed outrageous or irrational.

The court also considered the attack against the arbitrator's finding, that a year's delay in obtaining a determination from the Council or the Minister, on the recommendations previously made, was a basis for legitimate expectation.

It considered, that, in the absence of a further averment that the finding was so grossly unreasonable that no person properly applying his mind to the fact would have arrived at such a decision, the attack remained one on a factual finding.

Lastly, the court a quo found that the attack against the finding by the arbitrator that “no proof of a negative decision from the decision maker was furnished” and, consequently, that the respondent legitimately expected that her contract would be renewed, did not elaborate in what way the finding was grossly unreasonable. Merely stating that the decision was grossly unreasonable does not suffice.

The court accordingly found, as it had done with the other grounds, that the appeal was improper as it sought to impugn factual findings.

Having found that all the grounds of appeal were impugning factual findings, the court a quo upheld the point in limine. Consequently, it dismissed the appeal with costs.

Hence the appeal to this Court.

GROUNDS OF APPEAL

The appellant seeks an order setting aside the judgment of the court a quo and remittal of the matter to the Labour Court for a determination of the dispute between the parties on the merits.

“1. The court a quo erred in finding that the grounds of appeal relied upon by appellant did not raise points/issues of law either in the primary or secondary sense of the expression.

2. The court a quo erred in finding that grounds of appeal which attack factual findings made by a Labour Arbitrator fail by that circumstance to disclose points/issues of law as required by statute.

3. The court a quo erred in failing to appreciate the distinction between the validity of grounds of appeal, on the one hand, and the sufficiency thereof, on the other, and, so erred in finding that there were no valid grounds of appeal based on the view it took to the effect that the grounds were meritless.

4. Having found, at any rate, that there were no valid grounds of appeal, the court a quo erred in -

(a) Relating to the substantive issues raised in the grounds which it had found to be non-existent; and

(b) In dismissing the appeal instead of striking it off the roll.

5. Alternatively, the court a quo erred in finding that the Arbitrator had properly come to the conclusion that respondent had a legitimate expectation of continued employment with appellant and that appellant's failure to so employ her constituted unfair dismissal.”

APPELLANT'S SUBMISSIONS ON APPEAL

In its submissions before this Court, the appellant has argued, that, in large part, the determination of the court a quo was predicated on a finding that the grounds of appeal had no merit.

This, the appellant submitted, was an incorrect approach.

The court a quo was limited to an assessment of the phraseology of the grounds of appeal, without reference, at that stage, to the merits. Instead, the court assessed the merits of the grounds of appeal in order to determine whether or not they properly raised issues of law. It was for that reason that the court a quo remarked at one stage that it found “…, the arbitrator's reasoning cannot be termed outrageous or irrational.”

The merits were not a relevant consideration in determining the validity of the grounds of appeal.

Therefore, the court a quo conflated the two processes, namely, the assessment of the validity of the grounds of appeal and their sufficiency.

Further, the appellant submitted, that, if, indeed, there were no valid grounds of appeal before the court a quo, the court should have found that there was no valid appeal before it. Consequently, it should have simply struck the matter off roll instead of dismissing it.

A dismissal would ordinarily suggest that the matter was considered on the merits and was then dismissed.

The appellant has further argued, that, there was no legitimate expectation that the contract would be renewed. No evidence of the expectation was given.

Moreover, the resolution on which the respondent's claim was predicated was never officially communicated to her by the full Council of the appellant. In any event, the resolution remained a mere recommendation which meant that Council was at liberty either to accept or reject it.

Lastly, the appellant submitted, that, having found that the respondent was not on a fixed term contract, but, was on a contract without limit of time, the question of legitimate expectation did not, therefore, arise.

Since the acting appointment did not provide for the duration of the contract, she became a permanent employee whose tenure could be terminated on notice as enunciated in the case of Nyamande & Anor v Zuva Petroleum SC43-15.

The arbitrator could not, therefore, apply section 12B of the Labour Act which applies to a person on a fixed term contract.

RESPONDENT'S SUBMISSIONS ON APPEAL

In her response, the respondent has submitted, that, the court a quo was correct in finding that the grounds of appeal were impugning factual findings and that they were, therefore, not valid.

It is not sufficient, in formulating grounds of appeal, to merely assert that a judicial officer erred at law. The particular mistake of law should be stated, and, unless substantiated, such a ground remains one of fact.

The respondent further argued as follows:

Since the sole issue for determination before the court a quo was whether the arbitrator's findings on the issue of legitimate expectation could be impugned, that issue could only be dealt with by considering the merits.

In any event, a court can interrogate the record of the proceedings in order to resolve the question whether there is substance to the grounds themselves. Having found that the grounds raised factual issues, and that the grounds had no merit, the court a quo correctly dismissed the appeal.

Further, the court a quo was correct in finding that the respondent had a legitimate expectation that her contract would be extended.

Lastly, the submission made by the appellant, that, the contract was terminated on notice was not an issue before the court a quo and cannot, therefore, be an issue before this Court.

ISSUES FOR DETERMINATION

On a consideration of the record of the proceedings, and the submissions made by both parties before this Court, it seems to me that three issues arise for determination by this Court:

(i) The first relates to the correct approach in determining whether a ground of appeal raises an issue of law, and whether, in so determining, it is permissible for a court to have regard to the merits of the matter in order to make that determination.

(ii) The second is whether the grounds of appeal before the Labour Court raised questions of law, i.e. whether they were valid grounds of appeal.

(iii) The third is whether the court a quo was correct in dismissing the appeal once it found, as it did, that the grounds of appeal were not valid.

I consider each of the issues in turn.

DETERMINATION OF THE VALIDITY OF GROUNDS OF APPEAL

There is a dispute in this matter on the correct approach by a court in determining whether a ground of appeal raises an issue of law. There is, therefore, need to clarify the correct approach in assessing whether a ground of appeal complies with the legal requirement that it must be predicated on an issue of law.

The term “question of law” is used in three distinct, though related, senses:

(i) First, it means a question which the law itself has authoritatively answered to the exclusion of the right of the court to answer the question as it thinks fit;

(ii) Second, it means a question as to what the law is; and

(iii) Third, any question which is within the province of the judge instead of the jury or assessors;

See Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S)…,.; Sable Chemical Industries Ltd v David Peter Eastenbrook SC18-10.

Used in the three related senses referred to above, the term causes no difficulty.

It is, however, used in a fourth sense, that is: where the finding complained of is so outrageous in its defiance of logic or accepted moral standards that no sensible person, who has applied his mind to the question to be decided, could have arrived at such a conclusion.

The nature and circumstances of the case must be such that it is reasonably probable that the tribunal would not have determined as it did had there been no misdirection; in other words, that the determination was irrational.

A serious misdirection on the facts amounts to a misdirection in law: see Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (SC)…,.

The dispute in this case centres around how an appellant, who alleges a misdirection on the facts, should formulate such a ground in his Notice of Appeal.

To answer this question, I proceed to look at cases previously decided by this Court on the subject.

In Reserve Bank of Zimbabwe v Granger & Anor SC34-01, MUCHECHETERE JA remarked as follows:

“An appeal to this Court is based on the record. If it is to be related to the facts, there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person, who applied his mind to the facts, would have arrived at such decision. And a misdirection of facts is either a failure to appreciate a fact at all, or a finding that is contrary to the evidence actually presented….,.”

In Zvokusekwa v Bikita Rural District Council SC44-15, this Court further added:

“(22)…,. The remarks in Granger's case (supra) need to be qualified, to the extent that they may be interpreted as saying, that, to constitute a point law, in all cases where findings of fact are attacked, there must be an allegation that there was a misdirection on the facts which was so unreasonable that no sensible person, properly applying his mind, would have arrived at such a decision.

One must, I think, be guided by the substance of the grounds of appeal and not the form….,.

What is important, at the end of the day, is that the grounds must disclose the basis upon which the decision of the lower court is impugned in a clear and concise manner.”

The pertinent question in the present case is this: in determining whether a ground of appeal raises an issue of law, should a court be confined to the wording of the ground of appeal only or should it, additionally, have recourse to the record or the merits of the case?

In Chinyange v Jaggers Wholesalers SC24-04 GWAUNZA JA…, writing for the court, stated at page 2 of the cyclostyled judgment:

“…,. The appellant must, in other words, not only allege, but, also show, that the Labour Court misdirected itself on a point of law.”

At page 3, the learned judge continued:

“The appellant has not alleged, nor shown, that the Labour Court misdirected itself, nor that such misdirection, being based on findings of fact, was so unreasonable that no sensible person applying his mind to the facts would have arrived at such a conclusion.”

In Mutsuta and Anor v Cagar (Private) Limited SC47-09 SANDURA JA stated at page 6 of the cyclostyled judgment:

“Applying the principles set out in the three cases cited above, I have no doubt in my mind that the appeal raises questions of law. There are allegations in the grounds of appeal that the Labour Court committed misdirections on the facts which are so unreasonable that no sensible person who had applied his mind to the facts would have arrived at such a decision. The appeal is, therefore, properly before the court.”

In Sable Chemical Industries Ltd v David Peter Eastenbrook SC18-10, this Court remarked at page 5 of the judgment:

“The first ground of appeal is that the Labour Court erred on a question of law in holding that the disciplinary committee was improperly constituted. It is the respondent's submission that this question is one of fact and not law. I agree with the respondent's submission in this regard.”

And at page 7:

“There is no suggestion by the appellant that the court a quo misdirected itself on the facts in coming to the conclusion that the committee was not properly constituted and that such misdirection constitutes a question of law. I would agree with the respondent that this ground of appeal raises a question of fact and not law.”

It is correct, that, in Sable Chemical Industries Ltd v David Peter Eastenbrook SC18-10, the impression was created that a court can have regard to the merits in order to determine the validity of a ground of appeal.

It is clear, however, on a proper reading of the case, that, in fact, the court determined the validity of the grounds of appeal based only on the specific allegations made in the grounds of appeal and not the merits of the matter.

Everything considered, therefore, the correct approach, in my view, is that, in determining whether a ground of appeal raises an issue of law, a court will confine itself to the wording of the ground of appeal only and not to the merits of the matter.

The merits of the matter only become relevant if a ground of appeal is found to be valid.

Whether or not an appellant's case has merit and whether or not the appeal should succeed are issues to be determined separately - and only after a finding on the validity of the grounds of appeal.

A ground of appeal which attacks findings of fact must, therefore, not only allege that the lower court misdirected itself on the facts, but, must go further and show how that misdirection came about.

Merely alleging a misdirection, without further substantiation, would not be enough, as the attack would remain one against a factual finding.

In other words, in alleging a misdirection on the facts, the ground of appeal must also show in what way those findings of fact are irrational.

To the extent, therefore, that the decision of this Court in Sable Chemical Industries Ltd v David Peter Eastenbrook SC18-10 may have created an impression to the contrary, it does not reflect the correct approach and should therefore, to that extent, not be followed.

THE GROUNDS OF APPEAL BEFORE THE COURT A QUO - WHETHER VALID

This is really the crux of the matter.

To answer the question, it is necessary to look at the individual grounds that were considered by the court.

The judgment of the court a quo reflects that grounds one and two were abandoned at the hearing of the matter. Essentially, therefore, there were three grounds of appeal before the court a quo. The court a quo found that these attacked factual findings.

I proceed to consider each of these in turn.

The third ground of appeal before the Labour Court was couched in the following manner:

“3 The Honourable Arbitrator made a finding to the fact, that, the respondent had legitimate expectation of renewal of the contract based on the recommendations made during council meetings. The Honourable Arbitrator erred at law in relying on the proceedings and resolutions of these meetings.”

Whilst the ground could have been more elegantly phrased, there is no doubt in my mind that it did, in fact, raise the question whether the arbitrator could base his finding, that the respondent had a legitimate expectation of re-engagement, on proceedings and resolutions of a Council meeting.

As stated in Zvokusekwa v Bikita Rural District Council SC44-15, one should be guided by the substance rather than the form.

I am satisfied, that, the court a quo was wrong in treating this ground as one attacking a finding of fact.

The fourth ground of appeal before the court a quo read as follows:

“The Honourable Arbitrator erred grossly on the facts in finding that the respondent was legitimately entitled to expect the renewal of her contract. The arbitrator's findings in this regard are so grossly unreasonable such that no reasonable person properly applying his mind to the matter would have arrived at such a decision.”

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.

Ground 4.1 read:

“4.1 The Honourable arbitrator made a finding that the fact that the Executive Committee made its decision subject to the approval of full council or the Minister did not deny respondent legitimate expectation since her appointment on 7 June 2012 was not blessed with council or ministerial approval. The arbitrator's finding in this regard is grossly unreasonable as:

(a) Whether or not the consent of Council or the Minister was asked for and/or obtained for the 7 June 2012 appointment was never an issue;

(b) In any event, the 7 June 2012 appointment was a temporary appointment while the appointment allegedly expected is a 3 (three) year appointment;

(c) Further, and any event, it is the employer's prerogative to choose which appointment is subject to approval and which not (sic). Once one is informed that a specific appointment is subject to approval, then, without such approval, no legitimate expectation can arise.”

The difficulty with this ground was its lack of particularity and precision. It sounded argumentative.

Unlike in appeals from the High Court, there has not been a requirement, in labour cases, that the grounds of appeal must be clear and concise.

However, the Labour Court Rules 2017, in LC4, now require grounds to be clear and concise.

This was not a requirement at the time the present appeal was argued before the Labour Court.

In my view, the ground, though not formulated with precision, did indeed raise an issue of law.

What the ground says, in a nutshell, is that, whilst the recommendation that the respondent's contract be renewed was subject to approval by both the Council and the Minister, this did not affect the decision of the appellant to appoint her in an acting position for an indefinite period.

The appellant was further saying, that, the issue whether or not the consent of the Council or Minister was sought and obtained was not an issue before the arbitrator, and that, in any event, the appointment was temporary.

Lastly that, once an employee is advised that a re-engagement is subject to approval, then, without such approval, no legitimate expectation of re-engagement can, in this situation, arise.

I am satisfied, that, properly considered, ground 4.1 did in fact raise issues of law and that the court a quo was wrong in reaching a contrary conclusion.

Ground 4.2 stated, and I quote:

“4.2.The arbitrator also made a finding that a year's delay in obtaining council or ministerial approval entitled respondent to legitimately expect that her three (3) year fixed term contract will be renewed. This finding by the arbitrator is so grossly unreasonable such that no person properly applying his mind to the matter would arrive at such a decision.

4.3 The arbitrator also held that no proof of a negative decision from the decision maker was furnished, and, as a result, respondent was entitled to legitimately expect that her contract will be renewed. The Arbitrator's decision in that respect is so grossly unreasonable such that no person applying his mind to the matter would arrive at such a decision.”

What the appellant sought to challenge in the court a quo was the conclusion reached by the arbitrator on the facts which were before him.

The appellant was saying delay, on its own, could not have led the respondent to believe that her employment would be extended by a further three years and that a conclusion to that effect would be irrational.

The court a quo was therefore wrong in coming to the conclusion that grounds 4.2 and 4.3 did not raise any questions of law.

In all the circumstances, therefore, I am satisfied, that, save for the fourth ground of appeal, the court a quo was not correct when it non-suited the appellant on the preliminary point raised; that the appeal before that court was not predicated on issues of law.

Having made that decision, the court a quo went on to dismiss the appeal in its entirety.

That this was also improper goes without saying.

COURT A QUO SHOULD HAVE STRUCK THE MATTER OFF THE ROLL

One of the complaints by the appellant is that once the court a quo had come to the conclusion that the appeal before it was a nullity, on account of defective grounds of appeal, it should not have dismissed the appeal, but, rather, struck the matter off the roll.

I agree entirely with this submission.

Once the court had determined that all the grounds of appeal before it were attacking factual findings and not issues of law, it should have found that there was, therefore, no proper appeal before it; and, if there was no proper appeal before it, there was, in fact, nothing before it; and, if there was nothing before the court, there was therefore nothing to dismiss.

The only appropriate course of action, in these circumstances, would have been to strike the matter off the roll.

An appellant whose matter is struck off would not be without a remedy. He can still apply for condonation and extension of time in which to appeal. But, if a matter is dismissed, then, in reality, that is a final determination.

DISPOSITION

I am satisfied, that, the court a quo was wrong in determining, as it did, that the grounds of appeal did not, in their entirety, raise issues of law. The appeal must therefore succeed.

The appellant has largely been successful, and is, therefore, entitled to an award of the costs of this appeal.

In the result, it is ordered as follows:

1. The appeal succeeds, in part, with the respondent paying the costs of the appeal.

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

“Save in respect of ground 4, the preliminary point raised by the respondent, in respect of the remaining grounds, is dismissed.”

3. The matter is remitted to the Labour Court for a determination on the merits.

SC86-23 : GUTU RURAL DISTRICT COUNCIL vs JASON MUGAYO
Ruled By: GWAUNZA DCJ, MAKONI JA and CHITAKUNYE JA

This is an appeal against the whole judgment of the Labour Court handed down on 11 November 2022 wherein it dismissed the appellant's appeal against a decision of a Designated Agent of the National Employment Council for Rural District Councils.FACTUAL BACKGROUNDThe respondent was employed by the appellant as a Housing ...

FACTUAL BACKGROUND

The respondent was employed by the appellant as a Housing Officer. He was indicted for a disciplinary hearing on 11 November 2017 before the appellant's Disciplinary Committee. He was charged with 'committing any act or conduct inconsistent with the fulfilment of the express or implied conditions of the contract of employment' in terms of clause 8(d) of Statutory Instrument 87/2017; specifically, that, he unilaterally and unlawfully exempted some council tenants from paying rentals which resulted in the appellant losing revenue.

The Disciplinary Committee found in favour of the employer and dismissed the respondent.

He then appealed the decision to the Internal Appeals Committee which upheld the decision of the Disciplinary Committee.

Aggrieved by the decision, the respondent again appealed to the National Employment Council Exemptions Committee (“the Exemptions Committee”) which set aside the decision of the Internal Appeals Committee and referred the matter back to the Disciplinary Committee, for a hearing de novo, on the basis that the Disciplinary Committee was not properly constituted when it presided over the matter.

The matter was heard again by the Disciplinary Committee and it reached the same verdict and penalty. The respondent then appealed to the Internal Appeals Committee which, again, upheld the dismissal.

On 13 March 2018, he further appealed the dismissal to the National Employment Council Exemptions Committee (the Exemptions Committee) which heard the matter on 14 March 2018.

On the basis that the Exemptions Committee failed to conclude the matter within the time stipulated in section 14 of SI 87/17, and on 26 November 2018, the respondent wrote to the Designated Agent advising him of that fact.

Consequent to the respondent writing to the Designated Agent complaining about the failure by the National Employment Council Exemptions Committee to determine the matter within 30 days, the Exemptions Committee handed down reasons for its determination on 4 December 2018.

On 11 March 2021, the respondent filed an appeal with the Labour Court under cover of case number LC/H/57/19 seeking a referral of his appeal in accordance with clause 14(c) of SI 78/17.

He was seeking that the appeal be disposed of by the Designated Agent due to non-observance of the timelines and the lack of jurisdiction of the National Employment Council Exemptions Committee (the Exemptions Committee).

The grounds of appeal were couched as follows:

1. The Exemptions Committee erred at law in determining a matter without jurisdiction outside the prescribed thirty (30) working days and after the matter had been referred to the Designated Agent for disposal.

2. The Exemptions Committee erred at law in making a determination without providing reasons for such determination.

The respondent sought the following relief:

'(a) That the appeal succeeds with costs.

(b) That the decision of the Exemptions Committee be set aside.

(c) That the matter shall be disposed of by the Designated Agent in accordance with section 93 of the Labour Act in terms of the referral made by the appellant on 26 November 2018.'

On 22 May 2020, the Labour Court allowed the appeal under case number LC/H/57/19. It granted the following order:

“(a) That the instant appeal succeeds with costs.

(b) That the decision of the Exemptions Officer be set aside.

(c) That the matter be disposed of by the Designated Agent in accordance with section 93 of the Labour Act in terms of the referral made by the respondent.”

The respondent then approached the Designated Agent on the basis of this order of the Labour Court.

On 21 June 2021, the parties attended proceedings before the Designated Agent who advised the parties that he would proceed in terms of section 63(3a) of the Labour Act (the Act).

The parties were invited to file written submissions and the Designated Agent proceeded to pronounce on the matter on 19 October 2021.

In his determination, he made a finding that he lacked the requisite jurisdiction to preside over the matter as it raised review grounds. He, however, went on to deal with the substantive aspects of the matter and ultimately gave an order reinstating the respondent.

Disgruntled by the determination of the Designated Agent, the appellant appealed to the court a quo on 17 November 2021. The court found that the Designated Agent properly dealt with the matter.

It found that the issue of grading was before the Designated Agent and that he properly disposed of it. In addition, it found that the reinstatement of the respondent was proper as reinstatement could be ordered where the merits of the matter have not been entertained. In the result, the court a quo dismissed the appeal.

It is against this judgment that the present appeal was noted.

SUBMISSIONS ON APPEAL

At the hearing of the appeal, the court asked counsel for the appellant to address the question of whether section 63(3a) as read with section 93 of the Labour Act confer appellate jurisdiction on a Designated Agent in view of the referral of an appeal to him by the Labour Court.

Counsel for the appellant submitted, that, the matter was referred for hearing before the Designated Agent as an appeal. He contended that the National Employment Council Exemptions Committee (the Exemption Committee) was seized with an appeal that it failed to conclude within the prescribed 30 days hence the appeal was then placed before the Designated Agent.

He submitted that section 63(3a) of the Labour Act does not confer appellate jurisdiction on Designated Agents, but, that a provision in SI 87/17 allows for matters not determined within the stipulated timeframe to be referred to a Designated Agent.

He asserted that Designated Agents have no such powers to hear appeals.

It was his submission that the Labour Court ought to have presided over the matter instead of deferring it to the Designated Agent. He relied on section 14 of SI 87/17 which provides that an appeal against the determination of the National Employment Council Exemptions Committee (the Exemptions Committee) lies with the Labour Court.

Counsel submitted that if a matter is not concluded within 30 days, it is then supposed to be referred to the Designated Agent who will dispose of it in accordance with section 93 of the Labour Act.

On the merits, counsel submitted that the court a quo erred in upholding the decision of the Designated Agent when he had conceded that he did not have jurisdiction, but, nonetheless, went on to deal with the substance of the matter.

In addition to this, it was his contention that the court a quo misdirected itself by upholding the appeal and reinstating the respondent without having dealt with the merits of the matter.

In this light, he moved that the matter be remitted to the Labour Court to deal with the matter on the merits and that the decision of the Designated Agent be set aside.

He also stated, that, if the respondent's contention was that his matter was not heard within 30 days, the correct procedure available to the respondent was to file an application for review and not launch an appeal as he did.

Conversely, the respondent submitted that his appeal lay with the Designated Agent in terms of section 14 of SI 87/17 given that the matter was not heard and concluded by the National Employment Council Exemptions Committee (the Exemptions Committee) within 30 days.

He was convinced that the determination of the Designated Agent, despite the absence of jurisdiction, was proper as well as the accompanying order for reinstatement. He believed that the Designated Agent has powers conferred upon him to give redress in matters such as his.

THE LAW

Section 63(3a) of the Labour Act provides as follows:

“(3a) A designated agent of an employment council who meets such qualifications as may be prescribed shall, in his or her certification of appointment, be authorised by the Registrar to redress or attempt to redress any dispute which is referred to the designated agent or has come to his or her attention; where such dispute occurs in the undertaking or industry and within the area for which the employment council is registered, and the provisions of Part XII shall apply, with the necessary changes, to the designated agent as they apply to a labour officer.”

It is common cause that the provision that confers power on the Designated Agent to give redress to parties is section 63(3a) of the Labour Act.

The role of a Designated Agent was explained in the judgment of Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa CC06-20 wherein the court remarked as follows…,.:

“Section 63(3a) of the Act allows a designated agent, upon authorisation by the Registrar of Labour, to either redress or attempt to redress any dispute which is referred to the designated agent or has come to his or her attention. That is the case where such dispute occurs in the undertaking or industry and within the area for which the employment council is registered.

Section 63(3b) of the Act expressly ousts the jurisdiction of a labour officer where a designated agent is authorised to redress any dispute or unfair labour practice in terms of section 63(3a) of the Act….,.

What is key in understanding what a designated agent can or cannot do is to understand the meaning of the phrase 'redress any dispute' used in section 63(3a) of the Act.

When used as a verb, the word 'redress' according to the Oxford English Dictionary, means to remedy or set right an undesirable or unfair situation. A designated agent authorised by the Registrar of Labour redresses a dispute referred to him or her. He or she offers a remedy or sets right an unfair situation.”

In as much as the above case discusses the role of a Designated Agent, it does not expressly deal with whether or not a Designated Agent has any powers conferred upon him to deal with appeals.

From a reading of the provision, there is nothing suggesting that a Designated Agent has appellate jurisdiction.

To have an appreciation of the powers bestowed upon a Designated Agent, one has to examine what it is that the Designated Agent has to do in redressing or attempting to redress a dispute.

In Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa CC06-20…, it was stated;

“A designated agent may only exercise one power over a dispute. He or she may redress the dispute or attempt to redress it. He or she cannot do both. If he or she chooses to redress the dispute by hearing and determining the issues in dispute, he or she cannot, at the same time, attempt to redress the dispute.

It is clear from the provisions of section 63(3a) as read with section 93(1) of the Act that a designated agent can only proceed in terms of section 93 of the Act if he or she has not redressed the dispute.

He or she would be attempting to settle the dispute through conciliation.

There can be no attempt to settle a dispute which has been redressed.

The provisions of section 93 of the Act would apply when the power to be exercised by the designated agent is an attempt to redress the dispute through conciliation.”

From the above, it is clear that a Designated Agent can do one of two things, that is;

(i) Redress a dispute by hearing and determining the issues in dispute; or
(ii) Attempt to redress the dispute through conciliation.

He cannot do both.

What is coming up from the above-quoted excerpts from Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa CC06-20 is that the Designated Agent will be redressing or attempting to redress a dispute in a fresh hearing.

Given the above, it is apparent that a Designated Agent does not have any jurisdiction, under section 93 of the Labour Act, to entertain a matter once a determination on the merits has been made through a disciplinary process under a registered Code of Conduct.

In casu, the matter was referred to the Designated Agent by the Labour Court in terms of section 14(c) of S.I. 87/17 which provides as follows:

“Appeals to the NEC

14. The Exemptions Committee of the National Employment Council shall hear and conclude appeals referred to it within seven working days;

(a)…,.

(b)…,.

(c) An appeal against the decision of the Exemptions Committee shall lie with the Labour Court;
if a matter is not determined or concluded within 30 working days, the employee or employer concerned may refer such matter to the Designated Agent who will dispose of it in accordance with section 93 of the Labour Act [Chapter 28:01].”

The 'matter' being referred to in subsection (c), in the context of the present matter, is an appeal against the determination of the Appeals Committee.

In other words, the above provision purports to give the Designated Agent power to 'redress or attempt to redress' the determination of the Appeals Committee.

This Court, in a line of authorities, has spoken on this, that, a Designated Agent cannot preside over a matter where a determination has been made: see Watyoka v Zupco (Northen Division) SC87-05; Mabeza v Sandvick Mining (2) Construction (Pvt) Ltd & Anor SC91-19; and Living Waters Theological Seminary v Rev Chikwanha SC59-21.

These matters were analysed in the recent case of Nicholas Mukarati v Pioneer Coaches (Private) Limited SC34-22 where MATHONSI JA concluded on the issue as follows:

“The reasoning in Mabeza, supra, rhymes with that in Sakarombe N.O. & Anor v Montana Carswell Meats (Pvt) Ltd SC44-20 where the court was called upon to consider the ambit of the jurisdiction of a Labour Officer under section 93 of the Act where a matter is referred to him or her in terms of section 8(6) of the National Code of Conduct.

It concluded that under section 93(1) of the Act, a Labour Officer is only mandated to preside over a fresh hearing where a complaint has been lodged. The Labour Officer does not preside over any matter where a determination has been made or one in which completed disciplinary proceedings were conducted at the workplace.”

Although the above authorities were dealing with the powers of a labour officer, the same principle applies with equal force to a Designated Agent, as, in terms of section 63(3a) of the Labour Act “the provisions of Part XII shall apply, with the necessary changes, to the designated agent as they apply to a labour officer.”

Section 8(6) of the National Code, which was under discussion in these cases, is similarly worded to section 14(c) of SI 18/17.

Further down on the same page, MATHONSI JA observed the following:

“In fact, in Living Waters Theological Seminary v Chikwanha, supra, the court went further to state that the provisions of section 8(6) of the National Employment Code are rendered inoperative by their being ultra vires and inconsistent with the provisions of sections 93 and 101 of the Labour Act.”

The same can be said about section 14(c) of S.I. 87/17.

It is rendered inoperative by being ultra vires and inconsistent with the provisions of sections 63(3a) and 93 of the Labour Act.

In casu, the Designated Agent presided over a matter over which he did not have jurisdiction.

When there is a determination on the merits of a dispute, a Designated Agent has no jurisdiction, under section 93 of the Labour Act, to redress or attempt to redress such a dispute.

The ramifications of what the Designated Agent did in this situation are clear.

There is no power conferred upon him to hear appeals in terms of the Labour Act.

The matter was improperly referred to him, and, consequently, the proceedings before him and the resultant appeal before the court a quo were a nullity.

There was therefore no proper appeal before both the Labour Court and this Court.

Regarding costs, the appellant had prayed for costs of the appeal. In view of the fact that the matter turned on the interpretation of section 14 of SI 18/17 it would be in the interests of justice that there be no order as to costs.

Given the irregularities deliberated in this judgment; in the result, it is ordered as follows:

1. The matter be and is hereby struck off the roll with no order as to costs.

2. In terms of this Court's review powers in section 25(1) of the Supreme Court Act [Chapter 7:13] the proceedings before the Designated Agent and the Labour Court are hereby set aside.

Appealed
SC78-23 : SAVIOUR KASUKUWERE vs LOVEDALE MANGWANA and ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: GUVAVA JA, BHUNU JA and CHATUKUTA JA

On 28 July 2023, this Court dismissed, with no order as to costs, an appeal against the judgment of the High Court under judgment number HH418-23 dated 12 July 2023.At the end of the proceedings, this Court indicated that the reasons for this decision would be availed in due course. ...

On 28 July 2023, this Court dismissed, with no order as to costs, an appeal against the judgment of the High Court under judgment number HH418-23 dated 12 July 2023.

At the end of the proceedings, this Court indicated that the reasons for this decision would be availed in due course. Set out hereunder are the Court's reasons thereof.

THE PARTIES

The appellant is a prospective Presidential candidate in the forthcoming Presidential Election slated for 23 August 2023. The first respondent is a registered voter in Ward 1 Mhondoro Ngezi Constituency. The second respondent is the Zimbabwe Electoral Commission (ZEC), established in terms of section 238 of the Constitution of the Republic of Zimbabwe Amendment (No.20) 2013 (the Constitution). It is responsible for the administration of elections in Zimbabwe. The third respondent is the Minister of Justice, Legal and Parliamentary Affairs. He is cited in his official capacity.

FACTUAL BACKGROUND

The facts founding the instant appeal are as follows:

On 21 June 2023, the appellant, amongst other prospective candidates, successfully lodged his nomination papers as a Presidential candidate before the Nomination Court. The first respondent became aware of the appellant's nomination and acceptance of candidature through the social media.

He took exception to the acceptance of the appellant's candidature.

In a letter dated 22 June 2023, addressed to the Chief Elections Officer, the first respondent stated, that, the appellant had not been resident in his constituency, and in the country, for a continuous period of eighteen (18) months.

He further stated, that, the appellant did not therefore meet the requirements set out under section 91(c)–(d) of the Constitution.

He also stated that section 23(1) and (3) of the Electoral Act [Chapter 2:13] (the Act) mandated that a registered voter ceased to be retained on the voters roll if he had not resided in that constituency for a continuous period of eighteen (18) months.

In reply to the letter, the second respondent advised the first respondent to approach the Electoral Court for relief.

The first respondent, thereafter, filed, in the High Court, an urgent court application under section 85(1)(a) of the Constitution alleging that his fundamental rights under section 56(1), section 67(1)(a) and 67(3) had been violated.

He contended, that, the decision of the Nomination Court to accept the nomination for candidature of the appellant violated section 91(1)(c)–(d) as read together with paragraph 1(2) of the 4th Schedule to the Constitution as read with section 23(3) of the Electoral Act.

The first respondent averred, that, he approached the High Court as he was of the view that the Electoral Court does not have the jurisdiction to issue declaratory relief.

He further averred, that, the Electoral Act and Electoral (Applications Appeals and Petitions) Rules 1995 (S.I.74A of 1995) (the Electoral Rules) did not provide him with any relief.

In opposing the application, the appellant raised several preliminary objections:

He stated, that, the court a quo did not have the jurisdiction to hear and determine electoral matters in which the Electoral Court has exclusive jurisdiction. He argued, that, the first respondent could have proceeded in terms of section 28(1) and 33(1) of the Electoral Act.

He further stated, that, the first respondent had no locus standi to bring the application.

The appellant further alleged, that, the first respondent approached the court a quo on wrong choice of law, and in violation of the principle of subsidiarity.

On the merits, the appellant stated that the first respondent failed to show how the decision of the Nomination Court violated his constitutional rights.

The appellant admitted that he temporarily left the country on medical grounds but denied that he was out of the country for a continuous period of eighteen (18) months.

The second respondent filed a notice indicating that it would abide by the decision of the court a quo.

FINDINGS BY THE COURT A QUO

On the preliminary points raised, the court a quo made the following findings:

(a) On jurisdiction, that it had jurisdiction in terms of section 171(1)(a) and (c) as read with section 85(1) of the Constitution;

(b) In respect to locus standi of the first respondent, it found that he had the locus by virtue of section 85(1)(a) of the Constitution, which accords an individual the right to approach a court alleging a violation of his fundamental rights;

(c) On wrong choice of law, it found that the Electoral Court does not have the necessary jurisdiction to issue declaratory orders. It further found, that, the application was not a review disguised as a declarator as the first respondent had no remedy of review under any other law; and

(d) On the question of breach of the principle of subsidiarity, it held that the first respondent had no other remedy under any other law but to approach a court under section 85(1)(a) of the Constitution.

On the merits, the court a quo made the following findings:

(a) That, once the first respondent had made a negative averment, which was admitted by the appellant, that the appellant had left the country, the onus shifted to the appellant to prove that he was not out of the country and his constituency for a continuous period of eighteen (18) months;

(b) That, the appellant had failed to discharge the reverse onus placed upon him;

(c) In interpreting section 23(3) of the Electoral Act, it held that once a person is absent from the country, and, therefore his/her constituency, for the prescribed period, he/she is deemed, by operation of law, to have ceased to be a registered voter.

It further found, that, cessation of registration as a voter in turn disqualifies one from nomination as a Presidential candidate;

(d) That, the appellant was not resident in the country, and, as such, not resident in his constituency for a continuous period of eighteen (18) months.

Accordingly, the court found, that, the appellant had ceased to be a registered voter, and, consequently did not qualify for nomination as a Presidential candidate.

Following the above findings, the court a quo issued the following order:

“IT IS DECLARED:

1. That, the decision of the Nomination Court sitting at Harare on 21 June 2023 to accept first respondent's nomination paper and candidature for election to the office of the President of the Republic of Zimbabwe in the elections scheduled to be conducted on 23 August 2023 was a violation of the provisions of section 91(1)(c) and (d) read together with paragraph 1(2) of the Fourth Schedule of the Constitution of Zimbabwe 2013 as further read together with section 23(2) of the Electoral Act.

2. That, the decision of the Nomination Court sitting at Harare on 21 June 2023 to accept first respondent's nomination paper and candidature for election to the office of the President of the Republic of Zimbabwe in the elections scheduled to be conducted on 23 August 2023 is in violation of applicant's constitutional rights as set out in sections 56(1), 67(2)(a) and 67(3)(a) of the Constitution of Zimbabwe 2013.

3. That, the decision of the Nomination Court sitting at Harare on 21 June 2023 to accept first respondent's nomination paper and candidature for election to the office of the President of the Republic of Zimbabwe in the elections scheduled to be conducted on 23 August 2023 is declared null and void and of no force and effect and hereby set aside.

4. That, first respondent is not a candidate for election to the office of President of Zimbabwe in the elections scheduled to be conducted on 23 August 2023.

ACCORDINGLY, IT IS ORDERED:

5. Second and third respondents shall not include the name of first respondent in the preparation of ballot papers to be used in the elections scheduled to be conducted on 23 August 2023.

6. First respondent is interdicted from representing of holding himself out to the general public and electorate in Zimbabwe of abroad, whether physically or through any form of media, as a candidate for election to the office of the President of Zimbabwe in elections scheduled to be held on 23 August 2023.

7. Each party shall bear its own costs.”

Dissatisfied with the court a quo's decision, the appellant filed the instant appeal on the following grounds:

“GROUNDS OF APPEAL

1. The court a quo erred at law in finding that it had the requisite jurisdiction to deal with the matter when the dispute before it clearly emanated from the Electoral Act [Chapter 2:13], and, in particular, sections 23, 28 and 33 thereof.

2. By finding that the 1st respondent had locus standi in judicio and adopting a liberal approach to it in a clearly non-constitutional matter, the court a quo committed an error at law which must be impeached by this Court.

3. By finding that the General Notice 1128-2023 made in terms of section 106 of the Electoral Act [Chapter 2:13] did not constitute law, the court a quo grossly erred and misdirected itself as it ignored the provisions of section 15A and 20 of the Interpretation Act [Chapter 1:01].

4. By entertaining the application on constitutional basis as it did, the court a quo erred and violated the constitutional principle of subsidiarity as it ignored specific provisions in the Electoral Act [Chapter 2:13], Administrative Justice Act [Chapter 10:28] and/or common law, which provide specific, adequate, and satisfactory remedies to the 1st respondent.

5. A fortiori, the court a quo erred in making an uncanny finding, that, the decision of the Nomination Court did not constitute a reviewable decision at law thereby dismissing the preliminary point that the application was a disguised review process.

6. The court a quo further erred in placing reverse onus to the appellant to prove his residence status in violation of the law and in complete disregard of the averments that were made by the 1st respondent in evidence.

7. Further, the court a quo erred in making a finding that the averments pertaining to the residence status of the appellant, as made by the 1st respondent, were in the negative thereby improperly applying the law.

8. Related to ground number 7 above, the court a quo grossly misdirected itself in making a factual finding that the appellant was not or has not been in the country for a period stipulated in section 23(3) of the Electoral Act in the absence of evidence establishing the same.

9. In taking purported judicial notice of the alleged absence of the appellant from Zimbabwe, the High Court erred, in using the principle of judicial notice to assist the 1st respondent in discharging an onus that he had miserably failed to establish on the founding papers.

10. The court a quo erred and misconstrued section 23 of the Electoral Act in deeming the appellant removed from the voters roll without having regard to section 28 of the same which posits a process which must be followed in removing a registered voter from the voters roll thereby disqualifying him as a Presidential candidate for the forthcoming plebiscite.

11. All in all, the court a quo erred at law by granting as it did, an unspeaking order with the result that no one knows what relief exactly was granted in the absence of an un-issued draft order which does not form part of the disposition of the judgment.

12. The court a quo erred at law in granting an application without making a positive finding on the infringement of section 67 of the Constitution.

RELIEF SOUGHT

The appellant prays that the appeal be allowed with costs and that the judgment of the court a quo, handed down under EC10/23, on 12 July 2023, be set aside and in its place and stead thereof be substituted with the following:

'IN THE MAIN, the court declines its jurisdiction.

IN THE ALTERNATIVE, the application is struck off the roll with costs.

IN THE ALTERNATIVE, the application is dismissed with costs on an attorney-client scale.'”

By consent, the above grounds were amended by adding the following:

“13. In dealing with the question of the perceived absence of the appellant from a constituency, and not cessation of residence in a constituency, the court a quo erred, and, by so doing, conducted a wrong enquiry leading to a judgment that is contrary to the dictates of section 23(3) of the Electoral Act.

The court a quo erred at law in disposing of the matter before it on the basis of perceived absence from a constituency when the law upon which the application was predicated, section 23(3) of the Electoral Act, relates to cessation to reside in a constituency, a totally different concept that has its own different requirements.”

PROCEEDINGS BEFORE THIS COURT

Prior to the hearing of this appeal, the appellant had, by letter dated 21 July 2023, and addressed to the Registrar, requested the appointment of a five-member Bench to determine whether or not the case of Kambarami v 1893 Mthwakazi Restoration Movement Trust & Ors SC66-21 was properly decided.

At the commencement of the proceedings, the appellant abandoned the request and submitted that the matter should proceed before the Bench as constituted.

Counsel for the second and counsel for the third respondent submitted that they would abide by the decision of the court....,.

VALIDITY OF THE NOTICE OF APPEAL

The second preliminary objection related to the validity of the Notice of Appeal.

The first respondent argued, that, the Notice of Appeal was defective in a number of respects, inter alia, in that:

1. The grounds of appeal lacked clarity and precision, were prolix, and attack every finding of the court a quo in violation of Rule 37(1)(d) as read with Rule 44(1) of the Supreme Court Rules 2018;

2. The failure by the appellant to properly cite, in the Notice of Appeal, the second respondent's correct address is contrary to Rule 11 of the Supreme Court Rules; and

3. The appellant seeks, in its prayer, several forms of relief in the alternative and therefore the relief sought is not exact.

The first respondent abandoned the objections in the second and third paragraphs, and, in our view, properly so.

This leaves the first paragraph for the Court's consideration.

The first respondent's main complaint was that the grounds were prolix. The appellant, on the other hand, submitted that the grounds of appeal complied with the Rules.

Having carefully considered the objections, we are of the firm view, that, although the grounds are rather inelegantly worded, prolix, and attack almost every finding made by the court a quo, they are, nevertheless, substantially in compliance with the Rules.

The Court comes to that conclusion having due regard to the importance of the case.

SC91-19 : MISHECK MABEZA vs SANDVIK MINING (2) CONSTRUCTION (PRIVATE) LIMITED
Ruled By: GOWORA JA, PATEL JA and BHUNU JA

On 9 January 2008, the respondent engaged the appellant as an Operations Contract Manager in terms of a written agreement.

The agreement provided that the appellant would be an area manager responsible for Ngezi North.

The preamble to this agreement read as follows:

“Sandvik Mining and Construction Zimbabwe have entered into an agreement with various mines to provide maintenance service contracts. Under the terms of these contracts, Sandvik Mining and Construction Zimbabwe has agreed to make human resources available to these mines in order to maintain their equipment.”

At the time of the occurrence of the events central to the dispute between the parties, the appellant was based at Unki Mine.

For reasons known only to the parties, its exact location has never been revealed. It was probably assumed that the location plays very little part in the determination of the dispute.

The parties may be correct.

Early in the morning of 8 October 2014, the appellant and a colleague, one Christopher Tias, left the mine proceeding to Harare. It is common cause that Christopher Tias was the appellant's subordinate.

The appellant was driving.

Sometime around 7am the appellant received a telephone call from Sandi Zaranyika, his immediate supervisor based in Harare. The connection was bad resulting in Sandi Zaranyika terminating the phone call.

When the duo were near Featherstone, Sandi Zaranyika sent a message on Christopher Tias's mobile phone.

Although addressed to Christopher Tias, it is common cause between the parties, that, the appellant was the intended recipient.

He was told to go back to the mine and not to come to Harare until the situation at the mine had become stable.

It is common cause that the appellant was shown the message by Christopher Tias. They proceeded to Harare nevertheless.

The appellant, instead, called a subordinate at the mine. He was given information on the situation. On arrival in Harare, he was informed that the meeting had been cancelled. He was instructed to return to the mine.

On the same day, that is, 8 October 2014, he was given notification to attend a disciplinary hearing on 22 October 2014. The charge against him was that he had willfully disobeyed a lawful order in contravention of section 4(b) of the Labour (National Employment Code of Conduct) Regulations, Statutory Instrument 15 of 2006 (“the National Code of Conduct”).

The disciplinary hearing was held as scheduled and he was convicted of misconduct on the single charge and was dismissed from employment.

He appealed internally but was not successful.

In accordance with the Code of Conduct, the matter was referred, by the appellant, to a labour officer.

The labour officer was unable to resolve the matter and it was referred to compulsory arbitration for resolution.

The arbitrator found, that, the appellant had not willfully disobeyed a lawful order.

It was his finding, that, the only thing that the appellant did not do was to return to the mine. It was also his conclusion that it was not necessary for the appellant to go to the mine to physically check the situation in view of the fact that “someone competent to do his duties was fully in charge of the mine and confirmed that the situation was under control.”

As a result of the above findings, the arbitrator found that the appellant had committed no wrong justifying his dismissal. He ordered that the appellant be reinstated without loss of salary and benefits, or, in lieu of reinstatement, that he be paid damages if his employment was no longer tenable.

The respondent appealed to the Labour Court, which appeal succeeded.

The Labour Court found, that, the appellant had committed the misconduct that he had been charged with. The learned judge in the court a quo, as a result, found that there was wilful disobedience of a lawful order. The court therefore allowed the appeal and set aside the arbitral award in its entirety.

It is against that decision that the appellant approaches this Court.

The grounds of appeal upon which the appellant seeks relief are the following:

(1) The court a quo grossly misdirected itself on the facts, amounting to a misdirection at law, in finding that the appellant's conduct, in ascertaining the situation at the mine through his subordinate, Luis Matizha, constituted a wilful disobedience to a lawful order. Such a finding is grossly unreasonable so as to raise a sense of shock that no reasonable tribunal properly applying its mind to the question and the order given by the employer would come to that conclusion.

(2) The court a quo grossly misdirected itself on the facts, amounting to a misdirection at law, in failing to appreciate that the effect of the evidence of Luis Matizha showed that he had managed the situation at the mine to be stable. Thus, the court's finding that the witness's evidence connoted that all was not well at the mine was so outrageous in its defiance of logic that no sensible person who has applied his mind to the question to be decided could arrive at it.

This matter proceeded to compulsory arbitration through a reference to the labour officer in terms of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006 (the National Code of Conduct).

The documentation in terms of which the matter was referred to the labour officer is not on record. His deliberations are not on record. His own referral to compulsory arbitration is also not on record.

What is on record is what the arbitrator recorded as the terms of reference by the labour officer to arbitration. The terms of reference agreed by the parties were the following:

Whether or not the claimant was unlawfully dismissed; if so, to determine the appropriate remedy.

It is obvious that, in casu, the termination was effected in terms of the Labour (National Employment Code of Conduct) Regulations, SI15 of 2006 (the National Code of Conduct).

The appellant in this dispute was charged with misconduct in terms of the National Employment Code of Conduct. He was subjected to a disciplinary hearing in terms of a Code of Conduct, as required by the law, after which he was dismissed from employment.

Given that the appellant was subjected to a properly conducted disciplinary process which culminated in a verdict and a dismissal consequent thereto, a reference to the labour officer, alleging unfair dismissal, does not accord with the law.

The labour officer did not deal with the merits of the disciplinary process.

On that premise, it cannot be said that the dismissal was unfair as envisaged in terms of the Labour Act.

It is therefore clear to the naked eye, that, he could not lodge a complaint with the labour officer alleging unfair dismissal.

The labour officer would not have the jurisdiction to entertain any complaint from the appellant, as what the appellant was seeking was the setting aside of the determination of the disciplinary process.

This process could only be set aside through an appeal or a review.

The process before the labour officer was none of the above.

In casu, since the disciplinary proceedings against the appellant were conducted under the aegis of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 it stands to reason that the matter was referred to a labour officer in accordance with the provisions of the same.

Sections 8(6) and (7) of the Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006 provide as follows:

“(6) A person or party who is aggrieved by a decision or manner in which an appeal is handled by his or her employer or the Appeals Officer or Appeals Committee, as the case may be, may refer the case to a Labour Officer or an Employment Council Agent, as the case may be, within seven working days or receipt of such decision.

(7) The Labour Officer or an Employment Council Agent to whom a case has been so referred shall process the case as provided for under section 93 of the Act.”

In casu, a determination on the merits had been made by the disciplinary authority, as provided for in the Code of Conduct.

The reference to the labour officer, in terms of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006, would, as a consequence, seem to be in direct contrast to the provisions of section 101(5) and (6) of the Labour Act.

When one has regard to section 8(6) of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006 (the National Employment Code) one may be misled into assuming that even completed disciplinary hearings should be referred to a labour officer.

It is not so.

In sum, this means that the proceedings before the labour officer are a nullity as are the proceedings before the arbitrator.

It is therefore disquieting to note what the arbitrator said:

“Unless there are other hidden issues, there is absolutely nothing wrong with what the claimant did that warrants dismissal. Moreso when one considers the fact, that, the claimant had a clean record and also making decisions from a managerial realm, there was nothing weird done to warrant dismissal. The issue is simply trivial to say the least; for it seems the respondent simply wanted the claimant to go back to the mine even though the assignment could have been simply and easily done by just making a phone call and check on the stability of operations at the mine, like what the claimant did.”

A perusal of the record will show that a claim for unfair dismissal was presented before the arbitrator.

In his statement of claim, the appellant made reference to the disciplinary proceedings instituted against him and the fact that he was found guilty of the charge of misconduct preferred against him resulting in his dismissal from employment. He also made reference to the fact that he had appealed against the verdict and the penalty to the Appeals Authority which authority confirmed both the verdict and the penalty.

The appellant ends his claim by stating that he was wrongly found guilty.

As a consequence, he prays for reinstatement, back-pay from the date of dismissal, and damages in lieu of reinstatement.

It is clear that the claim brought by the appellant, although disguised as an unfair dismissal, was in actual fact an appeal against the dismissal of his appeal by the Appeals Authority.

This much is obvious from his statement that he was wrongly found guilty.

What he sought was a reversal of the findings of the disciplinary authority.

The question is: did the arbitrator have the jurisdiction to act as an Appeal Tribunal and set aside the decision of the Appeals Authority?

This matter made its way to the arbitrator as a reference to compulsory arbitration from a labour officer acting in terms of section 93 of the Labour Act [Chapter 28:01].

His function, under section 93 of the Labour Act, is to conciliate or settle the dispute, failing which he issues a Certificate of No Settlement and refers it to an arbitrator, under section 93(5) of the Labour Act, where the dispute is a dispute of right.

In Watyoka v ZUPCO (Northern Division) 2006 (2) ZLR 170, at p172, this court said:

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

(a) The matter must not be one that is liable to be the subject of proceedings under a Code of Conduct;

(b) The matter has not been determined within thirty days of the date of notification; and

(c) Where the parties to the dispute request and are agreed on the issues in dispute.

Section 93(1)(ii))…,.

Subsection (6) of section 101 provides for a referral of the matter to a labour relations officer if it has not been determined within thirty days. It does not provide for a referral of a matter that has been determined.

The referral to a labour relations officer is a relief granted to a party who is concerned about the delay in the determination. It is not a referral intended to challenge a determination that has already been made.”

And later, at p173H-174A, the court put the issue beyond any doubt and stated:

“The section cannot be read as providing for a second determination over and above the one already made by a disciplinary committee. Once there was a determination, the correct procedure was to appeal to the company's management as provided in the Code of Conduct.”

And later still at p175B-C:

“In this case, by the time the matter was entertained by the labour relations officer, two separate provisions had ousted his jurisdiction. They were:

(i) Firstly, the fact that a determination had been made; and

(ii) Secondly, the dispute had prescribed in terms of section 94(1)(b), in that the allegations of unfair labour practice were raised at meetings held with the disciplinary committee in November 1997 but the labour relations officer only entertained the complaint on 6 August 1999, a period of about eighteen months, and well beyond the period of one hundred and eighty days provided in section 94(1)(b).”

These remarks were made in consideration of the powers that a labour officer is imbued with under section 93 of the Labour Act prior to its amendment in 2015 by Act 5 of 2015.

It is obvious, therefore, that, completed proceedings under a Code of Conduct are not subject to scrutiny by a labour officer as that process is confined to initial complaints where a labour officer exercises his powers under section 93 of the Labour Act in order to conciliate, failing which he is empowered to refer the parties to arbitration.

The view I take, therefore, is that a labour officer is empowered to determine complaints of unfair labour practice and unfair dismissal where there has not been procedural process that has been completed.

His jurisdiction is limited to that of a tribunal of first instance.

In my view, the principle emerging from all the authorities referred to above can be summarized by the statement to the effect, that, a labour officer does not have any jurisdiction, under section 93 of the Labour Act, to entertain a matter once a determination on the merits has been made through a disciplinary process under a registered Code of Conduct.

It is clear, that, in this case, the labour officer presided over a matter over which he did not have any jurisdiction.

As stated in Watyoka v ZUPCO (Northern Division) 2006 (2) ZLR 170, once there is a determination on the merits of a dispute, a labour officer has no jurisdiction under section 93 of the Labour Act.

In this context, the implications of what the arbitrator did are obvious.

He was aware that the appellant had been dismissed as a result of a finding of guilt made by a disciplinary body set up under a Code of Conduct. He was equally aware that an appeals authority, set up under the same Code of Conduct, had confirmed not just the findings of guilt on the part of the appellant but had also confirmed the penalty of dismissal.

Notwithstanding this knowledge on his part, the arbitrator proceeded to entertain a claim, the premise of which was to set aside proceedings of a disciplinary body.

He obviously was not acting as an Appeals Tribunal.

He however considered himself properly seized with the proceedings. The latter proceedings were, in fact, a re-hearing of the facts of the dispute.

It is pertinent to note, that, the arbitrator did not have regard to the record of proceedings of the disciplinary hearing. The ruling by the arbitrator was couched in a manner which ignored the findings of the disciplinary tribunal. The arbitrator proceeded to substitute his own determination on the facts as if a disciplinary hearing had not been conducted and the appellant dismissed consequent to a finding of guilt.

He exercised a power he clearly did not have.

And yet, by the stroke of a pen, without exercising any appeal jurisdiction over the disciplinary body, the arbitrator went on to set aside the findings of fact reached by the disciplinary authority, which were confirmed by the appeal structures of the respondent.

Such a result would, in my view, lead to an absurdity.

To describe the process by which this decision was reached as being irregular is mild. It is not only irregular, it was unlawful, and, nothing can stand on that decision.

I conclude, therefore, that, the labour officer did not have jurisdiction to hear a complaint from the appellant, of whatever nature, and that the referral to compulsory arbitration was unlawful, and the proceedings before the arbitrator were, as a result, an irregularity.

In this case, the appeal is against the decision of the Labour Court, which set aside the arbitral award.

The court, in determining the appeal before it, had regard to the record of proceedings of the disciplinary hearing.

In my view, very little purpose would be served in setting aside the proceedings before the arbitrator.

I intend to consider the appeal in light of the findings by the Labour Court with regard to the disciplinary proceedings....,.

PATEL JA: I have read the judgment of GOWORA JA, with which judgment BHUNU JA concurs, and wish to add the following remarks.

While I agree that the appeal is devoid of merit and ought to be dismissed, I have certain reservations apropos the preliminary observations in the main judgment curtailing the jurisdictional role of labour officers and arbitrations under the governing statutory provisions.

In particular, I am inclined to the view, that, section 8 of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006 (the National Code of Conduct), construed in a purposive manner, is reconcilable with sections 93 and 101 of the Labour Act in such manner as to accommodate the jurisdictional competence of labour officers and arbitrators over labour disputes emanating from internal disciplinary proceedings.

Nevertheless, given the view that I take of the merits of this matter, I do not think it necessary to elaborate the aforesaid reservations in the context of this particular case....,.

BHUNU JA: I wish to comment as follows:

I have read the comments by my brother PATEL JA and I do not see how the three (3) sections alluded to by PATEL JA can be reconciled to accord a Labour Officer jurisdiction that he does not have.

It is inconceivable that a Labour Officer can assume jurisdiction over a completed matter by another tribunal without being clothed with appellate or review jurisdiction.

In the absence of specific statutory provisions, it is only appellate or review jurisdiction that authorizes a higher court or tribunal to intervene in the conduct or verdict of a subordinate court or tribunal.

In the circumstances, both the Labour Officer and the Arbitrator acted without power, jurisdiction, or authority to intervene in a matter completed in terms of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 (the National Code of Conduct).

It is for the foregoing reasons that I agree with my sister GOWORA JA.

CC04-23 : EDWIN MUSHORIWA and FIRINNE TRUST OPERATING AS VERITAS and BRIAN CROZIER and VALERIE INGRAM-THORPE vs PARLIAMENT OF ZIMBABWE and PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

In Tour Operators Business Association of Zimbabwe v Motor Insurance Pool and Ors CC05-15, this court held, that, the non-joinder of all parties who have a direct interest in a matter does not, in all cases, render the proceedings a nullity.This court delineated four factors that would render the non-joinder ...

Appealed
CC05-24 : PENELOPE DOUGLAS STONE and RICHARD BEATTIE t/a Stone/Beattie Studio Partnership vs CENTRAL AFRICA BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

This matter was placed before the full bench of this Court for confirmation of an order of constitutional invalidity pursuant to Rule 31 of the Constitutional Court Rules 2016 (hereinafter “the Rules”) as read with section 175(1) of the Constitution, against the judgment of the High Court (hereinafter “court a quo”) in the case of Penelope Douglas Stone & Anor v Central Africa Building Society & Ors HC4243/21.

At the end of the proceedings, the Court made an order, the operative part of which read as follows:

“1. The confirmation of the order of the court a quo is declined.

2. The order of the court a quo is set aside in its entirety.

3. There shall be no order as to costs.

4. Reasons for the decision are to follow in due course.”

What follows are the reasons for that order.

FACTUAL BACKGROUND

The applicants before this Court are partners in an architectural enterprise. The first respondent is Central African Building Society (CABS). The second respondent is the Reserve Bank of Zimbabwe (RBZ), with the third respondent being the Minister of Finance and Economic Development.

The applicants applied to the court a quo, purportedly in terms of section 85(1) of the Constitution. They sought a declarator to the effect, that, Exchange Control Directive No. RT120/2018, issued by the second respondent, was unconstitutional due to an alleged violation of the right to property enshrined under section 71 of the Constitution.

In addition, the applicants sought a declaration to the effect, that, the same directive was grossly unreasonable and ultra vires section 35(1) of the Exchange Control Regulations, SI109 of 1996, and was accordingly invalid.

The constitutionality of sections 44B(3)-(4) and 44C of the Reserve Bank Act [Chapter 22:15] was also impugned on the premise that the provisions in question violated section 71 of the Constitution.

A similar declaration was sought with respect to sections 21(1)(b), 22(2), 22(4)(a) and 23(1)-(3) of the Finance (No.2) Act of 2019 for allegedly violating the aforementioned section 71 of the Constitution.

Consequent to the above, the applicants sought a further declaration that the conversion of their USD142,000 to RTGS142,000 was unconstitutional and violated section 71 of the Constitution. They therefore sought an order compelling the first respondent to reimburse them the sum of USD142,000.

The genesis of the dispute stemmed from the applicants inability to access funds in USD from an account maintained by them with the first respondent.

The applicants are architects and are partners in an architectural firm. The firm operates bank accounts with the first respondent. On 17 October 2018, they demanded the release to themselves of the sum of USD142,000 from one of their accounts.

By letter dated 4 October 2018, the first respondent responded to the demand and indicated that it was unable to pay them that amount as the account was now denominated in the RTGS currency following a directive from the second respondent, the Reserve Bank of Zimbabwe (RBZ).

The first respondent advised them that the requested sum could not be paid out in United States Dollars on the basis of the Exchange Control Directive RT 120/2018, which essentially converted the pre-existing sum to RTGS denomination.

This was confirmed in correspondence between the parties on 24 October 2018.

The applicants do not accept that the conversion of that account was lawful, and, as a consequence, contend that a constitutional issue arose from the fiction of equating the United States Dollar with the local RTGS by the authorities.

It was submitted on their behalf, that, the Government itself had recognised the superficiality of the parity argument between the United States Dollar with the local RTGS currency. Contrary to its stated position, on the argument of parity between the USD and the local currency, Government had insisted on payment of certain obligations be made exclusively in United States Dollars. To cement their argument, the applicants made reference to the exclusive levy of fuel prices in United States Dollars.

It was contended, that, the first respondent would be unjustly enriched at their expense due to this legal fiction of parity.

They submitted before the court a quo, that, the impugned legislation served to deprive them of their rights under section 71 of the Constitution and could not be justified under the limitation clause in section 86 of the Constitution.

The applicants argued, that, section 71(3) of the Constitution sets out the standards for the compulsory acquisition of property, which requirements were not satisfied by the impugned legislation.

It was further submitted, that, the law of general application which authorizes compulsory deprivation must also entitle claimants to apply for compensation, which was not satisfied by the impugned law.

Further to this, the applicants contended, that, their application was properly before the court, regard being had to the judgment by the Supreme Court involving the same parties.

They contended, that, the remarks in the judgment had given them the conviction that they could succeed in suing the respondents once they had impugned the parent statute that had given birth to the Exchange Control Directive in question.

For these reasons, they contended that Exchange Control Directive No. R120/2018, sections 44B(3)-(4) and 44C of the Reserve Bank Act and sections 21, 22 and 23 of the Finance (No.2) Act of 2019 violated section 71 of the Constitution, and, that, as a consequence, the first respondent was obliged to reimburse them the sum of USD142,000.

The application was opposed by all the respondents in the court a quo.

The first respondent raised the preliminary issue that the relief sought was defective. It argued that a declaration of constitutional invalidity could not give rise to any automatic positive rights on behalf of the applicants, and further, that, it could not be compelled to effect payment in a constitutional matter until such proceedings were confirmed by the Constitutional Court.

On the merits, it maintained that its actions in the matter were guided by validly promulgated laws.

The first respondent contended, that, the impugned directive only mandated the deposit of foreign currency from offshore sources into Nostro accounts. However, the funds in the account maintained by the applicants had emanated from local deposits and were therefore excluded from this category.

The first respondent further submitted, that, there could not be a claim for unjust enrichment against it because, as a Building Society, its funds were deposited with the second respondent, the Reserve Bank of Zimbabwe.

It noted that the second and third respondents had the requisite legal authority to regulate monetary and fiscal matters in terms of the Reserve Bank Act.

The first respondent also submitted, that, the plea of res judicata was applicable in casu as the matter had been argued to finality in the Supreme Court.

In turn, the second respondent also submitted that the matter was res judicata as the Supreme Court had dealt with the same matter on appeal from the court a quo.

On the merits, it submitted that the impugned legislation did not violate section 71 of the Constitution.

The third respondent also associated itself with the arguments by the first and second respondents, and, further submitted that the impugned legislation did not take away any of the applicants rights.

Counsel for the third respondent suggested that the applicants ought to have joined Parliament to the proceedings as they had sought to impugn acts done in terms of a valid statute.

In response, the applicants submitted, that, after the operationalisation of the Directive, the funds in their account with the first respondent, when converted at the official exchange rate, amounted to a mere US$1,604=52 which they suggested constituted a violation of section 71 of the Constitution.

They sought to counter the allegation that the issue had not been properly taken, regard being had to the doctrine of res judicata, on the basis that there had been no determination on the constitutionality of the exchange control directive by either the High Court or the Supreme Court.

Although the court a quo agreed that the subject matter in the dispute before it was the same as that previously litigated upon, it concluded that the matter was not res judicata because the question regarding the constitutionality of the impugned legislation remained in issue. As a consequence, it dismissed the preliminary point.

It also disregarded the preliminary point raised on the principle of subsidiarity, terming the point in limine “pedantic and a miscarriage of justice.”

On the merits, the court a quo held that it would determine the constitutionality of the Exchange Control Directive separately from the issue that it was ultra vires section 35(1) of the Exchange Control Regulations, 1996.

Although its constitutional validity was not an issue for determination before it, the court a quo found that section 35(1) of the Exchange Control Regulations 1996 was not ultra vires section 71 of the Constitution.

Thereafter, the court a quo concluded that paragraphs 2.5 and 2.6 of the Exchange Control Directive RT120/2018 were ultra vires section 35(1) of Exchange Control Regulations 1996. It further determined, that, Exchange Control Directive RT 120/2018 was impeachable along with the other impugned legislative provisions in the sense that they interfered with the contractual rights of the parties, and, in turn, breached section 71 of the Constitution. The provisions were held to invade property rights protected under section 71(2) of the Constitution.

Consequent thereto, it issued an order which is now subject to confirmation by this Court. The order reads as follows:

“(i) Paras 2.5 and 2.6 of the Exchange Control Directive RT 120/2018, dated 4 October 2018, are ultra vires section 35(1) of the Exchange Control Regulations 1996, SI 109 of 1996, and are hereby set aside.

(ii) Subject to section 175(1) of the Constitution of Zimbabwe -

1. The conversion of the amount of USD142,000 standing to the credit of the applicants savings account No.1005428905 with the first respondent, as at 28 November 2016, violated section 71 of the Constitution.

2. Paras 2.5 and 2.6 of the Exchange Control Directive RT120/2018 aforesaid violate section 71 of the Constitution.

3. Section 22(1)(b) and (d) and section 22(4)(a) of the Finance Act (No.2) Act No.7 of 2019 violate section 71 of the Constitution and are hereby set aside.

4. The first respondent shall pay the applicants the sum of USD142,000 together with interest thereon at the rate of 5% per annum from 28 November 2016 to the date of payment.

5. The respondents shall pay the costs of suit jointly and severally, the one paying the others to be absolved.”

SUBMISSIONS ON BEHALF OF THE APPLICANTS

At the onset of proceedings, the parties were directed to address the Court on whether the matter was properly before the court a quo.

Counsel for the applicants submitted, that, the matter was properly before the court a quo.

He argued that the applicants rights, under section 71 of the Constitution, had been violated by the impugned laws. He suggested that the co-joining before the court a quo of constitutional and non–constitutional issues was not improper.

To that end, he made reference to several authorities that he contended provided exceptions to the principle of constitutional avoidance, and, in this particular respect, submitted that the conflation of issues was held to be non-fatal in the seminal case of Mudzuru & Anor v Minister of Justice, Legal & Parliamentary Affairs NO & Ors CC12-15, now reported as M & Anor v Minister of Justice, Legal & Parliamentary Affairs N.O. & Ors 2016 (2) ZLR 45 (CC).

Counsel for the applicants submitted, that, the principle of res judicata was inapplicable in casu because the aforementioned constitutional issues were not determined in previous litigation.

Therefore, his view was that the matter was properly before the court a quo.

SUBMISSIONS ON BEHALF OF THE FIRST RESPONDENT

Per contra, counsel for the first respondent submitted, that, the matter was not properly before the court a quo.

Counsel contended that the matter, as pleaded by the applicants, went beyond the confines of an application within the contemplation of section 85(1) of the Constitution.

In addition, it was contended on behalf of the first respondent, that, the applicants pleadings lacked the specificity required by the Rules and that the court a quo, mero motu, had identified paragraphs 2.5 and 2.6 of Exchange Control Directive RT128/2018 as being impeachable, and, therefore, unconstitutional.

Counsel for the first respondent further argued, that, the court a quo over-reached its jurisdictional ambit by determining a constitutional issue once it had dealt with a non–constitutional issue.

In addition, it was his contention that the principle of res judicata was applicable in casu since there was previous litigation concerning the same subject matter between the same parties, and, critically, premised on the same cause of action.

He further submitted, that, the court a quo fell into error when it invalidated section 22 of the Finance Act [Chapter 23:04] because that piece of legislation sought to be impugned had only come into effect after the applicants cause of action had allegedly arisen.

SUBMISSIONS ON BEHALF OF THE SECOND RESPONDENT

In turn, counsel for the second respondent associated himself with and concurred with submissions made on behalf of the first respondent, that, the constitutional jurisdiction of the court a quo was not properly invoked.

He made specific reference to Rule 107 of the High Court Rules 2021 as indicative of the appropriate procedure to be followed in constitutional matters before the High Court.

Counsel for the second respondent submitted, that, the applicants reliance on section 85(1) of the Constitution placed an obligation on the applicants to establish the violation of a fundamental right. He pointed to the applicants reliance on exceptions to the general rule of constitutional avoidance as an admission that the matter was principally non–constitutional in nature.

Consequently, counsel for the second respondent submitted, that, the judgment of the court a quo ought to be set aside in its entirety.

SUBMISSIONS ON BEHALF OF THE THIRD RESPONDENT

Counsel for the third respondent also buttressed the point, that, the matter was improperly before the court a quo.

He submitted that the constitutional relief sought before the court a quo was merely tangential to the motive of the applicants, which was the recovery of USD142,000.

He submitted that there must be specificity in the pleadings when declarations of constitutional invalidity are sought in order to preserve the principle of the separation of powers.

It was his submission that the relief sought should not be granted.

THE LAW

Section 175(1) of the Constitution provides, that, where a court makes an order concerning the constitutional invalidity of any law or the conduct of the President or Parliament, the order has no force or effect unless it is confirmed by this Court. Thus, the order of constitutional invalidity by a subordinate court does not bind the Constitutional Court.

It must itself conduct an examination into the constitutionality of the impugned conduct or statute as it is the sole court with the jurisdiction, under the Constitution, to declare such conduct or statute as being unconstitutional or invalid.

As a consequence, the law requires that the Constitutional Court must itself be satisfied as to the invalidity of the law or conduct being impugned.

It is trite that under section 175(1) of the Constitution any declaration is subject to the over-arching jurisdiction and supervisory role of the Constitutional Court.

In this enquiry, it must first decide whether the challenge to the constitutional validity of the law or impugned conduct was properly before the court a quo.

By operation of law, the confirmation proceedings before this Court are, in essence, a process of review of the proceedings before the court a quo.

The principles which are applicable in confirmation proceedings are settled:

(i) Firstly, given the limited jurisdiction of the Constitutional Court as a special court, it has to be determined whether there was a constitutional matter before the subordinate court.

(ii) Secondly, the constitutional matter which would have arisen in the subordinate court must have been properly before that court, and that court must have had the competence to deal with the matter.

The power of this court, in confirmation proceedings, takes the form of a review of the constitutional matter to satisfy itself that the order of constitutional invalidity was correctly made: see S v C (A Juvenile) (Justice for Children's Trust and Zimbabwe Lawyers for Human Rights Intervening as Amici Curiae) 2019 (2) ZLR 12 (CC) and Mupungu v Minister of Justice Legal & Parliamentary Affairs CC07-21.

In Makamure v Minister of Public Service, Labour and Social Welfare and Anor CC01-20 MALABA CJ pertinently posited the following:

“The Court is also not bound by the order of constitutional invalidity made by the court a quo. In S v Chokuramba CC10-19, the Court held at p6 of the cyclostyled judgment as follows:

'The Court is empowered to confirm an order of constitutional invalidity only if it is satisfied that the impugned law or conduct of the President or Parliament is inconsistent with the Constitution. It must conduct a thorough investigation of the constitutional status of the law or conduct of the President or Parliament which is the subject-matter of the order of constitutional invalidity. The Court must do so irrespective of the finding of constitutional invalidity by the lower court and the attitude of the parties.'”

The Court therein noted, that, the invalidity of the law or conduct was a legal consequence of a finding of inconsistency between the law and conduct which the Court might not necessarily be in agreement with.

Thus, the Constitutional Court is empowered to confirm an order of constitutional invalidity only if it is satisfied that the impugned law or conduct of the President or Parliament is indeed inconsistent with the Constitution.

See also Phillips and Anor v Director of Public Prosecutions and Ors 2003 (3) SA 345 (CC)…,.

Given the foregoing, it seems to me that three issues arise for determination:

(i) The first is whether the court should have found that the matter was res judicata, and, as a consequence, declined exercising its jurisdiction in determining the application.

(ii) The second, but quite fundamental issue, is whether a proper constitutionally based cause of action was placed before the court a quo justifying its assumption of jurisdiction and the order that it made.

The respondents contend, that, the lack of specificity in pleading the cause of action should have non-suited the applicants before the court a quo.

(iii) The third is whether the court a quo should have declined to consider the alleged unconstitutionality of the Directive based on the doctrine of subsidiarity, as argued by the respondents.

WHETHER THE CAUSE OF ACTION WAS PROPERLY PLEADED

The applicants a quo approached the court in terms of section 85(1)(a) of the Constitution.

The procedure in section 85(1)(a) of the Constitution is a direct enforcement procedure for the enforcement of fundamental rights and liberties. It is meant to secure constitutional remedies.

It cannot be invoked in respect of non-constitutional remedies.

The applicants founded their locus standi to institute legal proceedings in terms of section 85(1)(a) of the Constitution on the premise of an allegation of the violation of the right to property as enshrined under section 71 of the Constitution.

What the applicants filed in the High Court can best be described as a hybrid application.

They claimed locus standi to approach the court for a declaration of invalidity on an alleged violation of a right and in that respect invoked section 85(1) of the Constitution.

A court that is approached in terms of section 85(1)(a) of the Constitution cannot exercise its jurisdiction on any other matter besides matters that seek redress for direct and actual infringements or likely infringements of fundamental rights and freedoms set out in the Bill of Rights.

Thus, where the court is approached in terms of section 85(1)(a) of the Constitution, it must not involve itself in the determination of non-constitutional issues.

It is evident that the proceedings a quo went beyond the enforcement of fundamental rights and freedoms contained in Chapter 4 of the Constitution.

It is common cause that the application for constitutional relief was conjoined with a cause of action based on non-constitutional relief.

It is also not in dispute that the applicants sought the declaration of invalidity of the Exchange Control Directive on the basis that it violated the right to property as enshrined in section 71(2) of the Constitution.

Further to this, a declarator was prayed for to the effect, that, the conversion of USD142,000 to RTGS142,000 was unconstitutional and invalid as it violated section 71(2) of the Constitution.

The order sought further included a declarator to the effect, that, the Directive was grossly unreasonable and ultra vires section 35(1) of the Exchange Control Regulations, Statutory Instrument 109 of 1996. This relief is not available under section 85(1) of the Constitution upon which they sought to establish locus standi for approaching the court a quo.

The order was not concerned with a violation of a constitutional right.

It has been emphasised in a plethora of judgments of this Court, that, once a litigant pleads their locus standi under the ambit of section 85 of the Constitution, the application must meet certain requirements.

The specificity in pleading locus standi is of prime consideration.

In Zimbabwe Human Rights Association v Parliament of Zimbabwe and Ors CC06-22, PATEL JCC advanced the following:

“In essence, what the applicant has purported to do is to proceed under two mutually exclusive provisions of the Constitution, viz. section 85(1) and section 167(2)(d). This course of action was pointedly frowned upon in Central African Building Society v Stone & Ors SC15-21, at p.17, para. 38, where GWAUNZA DCJ observes that:

'..., an application under section 85 of the Constitution should not be raised as an alternative cause of action...,. Section 85(1) is a fundamental provision of the Constitution and an application under it, being sui generis, should ideally be made specifically and separately as such.'”...,.

See also Law Society of Zimbabwe v Parliament of Zimbabwe & Ors CC10-23.

In casu, it is evident that the applicants conflated the constitutional application under section 85 of the Constitution with a non-constitutional cause of action.

The link between the two is impermissible, in that, in conjunction with a declaration of invalidity, they sought a declaration that Exchange Control Directive No. R120/2018 be declared grossly unreasonable and ultra vires its enabling provision, section 35(1) of the Exchange Control Regulations 1996.

The latter did not envisage the enforcement of a fundamental right under section 85(1) of the Constitution as pleaded in the founding affidavit establishing locus standi.

I have no hesitation in stating, that, not only is this impermissible but the procedure adopted was grossly irregular.

Further to the above, the applicants application, purportedly made in terms of section 85(1)(a) of the Constitution, did not specifically plead an infringement of any of their fundamental rights and freedoms.

The law is settled, that, in constitutional litigation, the constitutional issue to be decided by the court must be specifically pleaded. The requirement of specificity in constitutional litigation cannot be overlooked.

The procedural requirement for specificity in pleading requires that the challenged legislation and the grounds of such challenge be properly raised in pleadings.

There is need for accuracy in pleading in constitutional litigation and the required accuracy in pleading cannot be overlooked. It is critical in the determination of the issues to be decided by the court: see Philips & Ors v National Director of Public Prosecutions 2006 (1) SA 505 (CC)…, and Shaik v Minister of Justice & Constitutional Development 2004 (3) SA 599.

The failure to plead a cause of action with the required accuracy and specificity in the matter a quo was fatal.

Despite the irregularity and the inherent conflict, the court a quo found that the Directive was not grossly unreasonable but still granted an order declaring it ultra vires the Exchange Control Regulations.

It also found, that, the Reserve Bank was empowered to issue Directives under the Regulations.

By eschewing fundamental constitutional principles, the court a quo determined an application that was improperly placed before it.

It must be reiterated that issues regarding the cause of action are rooted in law and not abstract personal convictions.

Thus, the court a quo, by failing to recognise the sui generis nature of an application whose genesis emanates from section 85 of the Constitution grossly misdirected itself by assuming jurisdiction over two conflicting causes of action, the determination of which was reposed under different species of the law.

On this score alone, the order granted by the court a quo cannot be confirmed by this Court as the conflated application was not properly before it.

As regards the Directive, the court a quo considered both issues, the constitutional and the non-constitutional.

First, it declared paragraph 2.5 and paragraph 2.6 of the Directive as being ultra vires section 35(1) of the Exchange Control Regulations S.I.109/1996. It then proceeded to set the provisions aside.

Effectively, therefore, the paragraphs in question were no longer of any force or effect.

Unlike a declaration of constitutional invalidity, a declaration that a provision is ultra vires its parent statutory provision does not require confirmation by this Court.

It stands to reason, therefore, that, once the court a quo made this declaration, the paragraphs were no longer law. They ceased to exist.

Notwithstanding the declaration of invalidity, and the consequential setting aside of the paragraphs in question, the court a quo then proceeded to declare that the same paragraphs violated section 71 of the Constitution.

The court could not logically declare invalid a provision that it had already set aside.

THE PRINCIPLE OF SUBSIDIARITY AND THE ULTRA VIRES DOCTRINE

An inherent theme in constitutional litigation is the consideration of whether there is a constitutional matter requiring adjudication by the Court. In the absence of an identifiable constitutional issue, the jurisdiction of this Court, in any suit before it, is not triggered.

This point was emphasized in the case of Moyo v Chacha & Ors 2017 (2) ZLR 142 (CC)…, wherein the following was reiterated:

“The import of the definition of a 'constitutional matter' is that the Constitutional Court would be generally concerned with the determination of matters raising questions of law, the resolution of which require the interpretation, protection, or enforcement of the Constitution.

The Constitutional Court has no competence to hear and determine issues that do not involve the interpretation or enforcement of the Constitution or are not connected with a decision on issues involving the interpretation, protection, or enforcement of the Constitution.”

The learned authors MAX du PLESSIS, GLENN PENFOLD and JASON BRICKHILL, 1st ed…, also state that:

“The quintessential example of a constitutional matter is one that involves the direct application of the Bill of Rights, that is, a constitutional challenge to law or conduct based on an unjustified infringement of a fundamental right. This includes challenges to the constitutionality of:

(i) An Act of Parliament, a local government by-law or conduct of a State functionary; and
(ii) A rule of the common law or customary law.”

The same definition of a constitutional matter is to be found in section 332 of the Constitution.

This requirement also extends to other courts that, in certain respects, enjoy concurrent constitutional jurisdiction with this Court excluding those matters that are explicitly within the exclusive jurisdiction of this forum.

The genesis of the impugned Exchange Control Directive No. R120/2018 is section 35(1) of the Exchange Control Regulations 1996. The provision is worded as follows:

“35. Authorised dealers and other persons to comply with directions

(1) Authorised dealers shall comply with such directions as may be given to them by an exchange control authority relating to —

(a) The exercise of any functions conferred on them by or under these regulations;

(b) The terms on which they are to exchange foreign currency for Zimbabwean currency;

(c) The offer of foreign currency in their possession for sale to the Reserve Bank.”

The law is settled, that, where there is a statute or law designed to provide effective redress, litigants must find redress in that law rather than approaching the court pleading a constitutional issue: see Zinyemba v Minister of Land and Rural Resettlement and Anor 2016 (1) ZLR 23 (CC)…,.; South African National Defence Union v Minister of Defence and Others 2007 ZACC 10 (CC); MEC for Education, Kwa-Zulu Natal and Others v Pillay 2008 (1) SA 474; and Chani v Mwayera & Ors.

The twin concepts of constitutional avoidance and the principle of subsidiarity are part of our law.

In terms thereof, where redress can be afforded in subsidiary legislation, and without pleading constitutional issues, such remedies must be exhausted before approaching the court on a constitutional premise: see Magurure and 63 Ors v Cargo Carriers International Hauliers (Pvt) Ltd CC15-16; Majome v Zimbabwe Broadcasting Corporation and Ors 2016 (2) ZLR 27 (CC).

In Moyo v Sergeant Chacha & Ors 2017 (2) ZLR 142 (CC), the Court held that:

“Where the question for determination is whether conduct the legality of which is impugned is consistent with the provisions of a statute, the principle of subsidiarity forbids reliance on the Constitution, the provisions of which would have been given full effect by the statute.

The principle of subsidiarity has been explained in the cases of Majome v Zimbabwe Broadcasting Corporation and Ors CC14-16 and Boniface Magurure and 63 Ors v Cargo Carriers International Hauliers (Pvt) Ltd CC15-16.

It states, that, a litigant who avers that his or her constitutional right has been infringed must rely on legislation enacted to protect that right and may not rely on the underlying constitutional provision directly when bringing action to protect the right, unless he or she wants to attack the constitutional validity or efficacy of the legislation itself.

Norms of greater specificity should be relied upon before resorting to norms of greater abstraction.”

It was the applicants argument, that, Exchange Control Directive No. R120/2018 was ultra vires its parent provision.

However, they did not seek to challenge the constitutional validity of section 35(1) of the Exchange Control Regulations 1996 and, in its remarks, the court a quo confirmed that section 35(1) of the Exchange Control Regulations 1996 did not violate section 71 of the Constitution.

The applicants in fact concede the validity of the provision.

In view of this concession, they cannot challenge the constitutional validity of the Directive.

On the doctrine of subsidiarity, therefore, their constitutional challenge to the Directive is ill-founded and baseless. I am fortified in this view by the remarks of the Court in Makanda v Magistrate Sande N.O. & Ors CC03-21.

In Majome v Zimbabwe Broadcasting Corporation and Ors CC14-16, the Court stated:

“According to the principle of subsidiarity, litigants who aver that a right protected by the Constitution has been infringed must rely on legislation enacted to protect that right and may not rely on the underlying constitutional provision directly when bringing action to protect the right, unless they want to attack the constitutional validity or efficacy of the legislation itself. See AJ van der Walt: 'Constitutional Property Law' 3ed Juta p66; MEC for Education, KwaZulu Natal v Pillay 2008 (1) SA 474 (CC) paras 39-40; Chirwa v Transet Ltd 2008 (2) SA 24 (CC) paras 59, 69.”

Regulations are subordinate legislation. When subordinate regulations are under consideration, however, it is necessary to consider them in relation to the empowering provisions under which they have been made.

It is a trite principle, that, the doctrine of subsidiarity serves as a gate keeping function to guard against the hearing of constitutional matters on an ad hoc basis. It ensures that the courts apply a general principle to all cases, and that, in that manner, the courts are protected from criticism with regard to their decisions on which matters they consider as appropriate to determine.

The principle thus ensures that there is certainty in the law and that the principle of constitutional consistency and validity, required by the Constitution in the law, is upheld: see Boniface Magurure and 63 Ors v Cargo Carriers International Hauliers (Pvt) Ltd CC15-16 and Berry (nee Ncube) & Anor v Chief Immigration Officer & Anor 2016 (1) ZLR 38 (CC).

On the basis of the above authorities, it is evident that the doctrine of ultra vires, as pleaded by the applicants, has no comity with the remedy envisaged in respect of an application under section 85 of the Constitution.

It is on this basis, that, the court a quo ought not to have proceeded to determine a constitutional question once the applicants had a remedy provided for under general law.

Given the finding in favour of the applicants on a non-constitutional basis, namely, on the ultra vires argument, it was not competent for the court a quo to have proceeded to determine issues of constitutional validity.

The court a quo was not content with merely setting aside the Directive.

It considered that the task before it was to “locate the particular legislative provision, or provisions, in the whole gamut that has been impugned which the respondents relied on as the basis for that conversion, in contravention of section 71(2) of the Constitution.”...,.

It then proceeded to issue an order declaring section 22(1)(b) and section 22(4)(a) as being in violation of section 71(2) of the Constitution.

It gave no specific reason for the declaration.

In its concluding paragraph, it stated that paragraphs 2.5 and 2.6 were impeachable because, among other things, they, together with the legislative provisions specifically singled out, were collectively the device by which the second and third respondents improperly interfered with the contractual rights and obligations between the applicants and the first respondent.

The court said that this interference resulted in the deprivation of the applicants property.

Given my conclusion with regard to the absence of a constitutional issue based on the Directive, it becomes unnecessary to comment further on this issue.

WHETHER HIGH COURT SHOULD HAVE UPHELD THE PLEA OF RES JUDICATA

The applicants took this issue and argued it before the court a quo as a preliminary point. The respondents contend, that, the court a quo should have declined jurisdiction on the ground that the matter before it was res judicata, or, that alternatively, issue estoppel applied.

However, the court a quo disregarded this procedural issue on the basis that the reasoning of the High Court, in the earlier dispute between the parties, was vacated by the Supreme Court under SC15-21 and hence the constitutionality of Exchange Control Directive No. R120/2018 remained unresolved as an issue for determination.

The court a quo found, or alternatively observed, that, the first and second applicants had previously litigated on the same subject matter, involving the same respondents “in the main impugning Exchange Control Directive RT120/2018.” The court a quo further found that the said applicants were “now back again in this court, their cause of action having been re-formulated.”

The learned author, ISAACS, in his text Beck's Theory and Principles of Pleading in Civil Actions, specifies in what respects a previous judgment may be res judicata. At p171, he states as follows:

“The previous judgment is only res judicata as regards matters between the parties which the judgment actually affects and when the plea is raised, it therefore becomes essential to determine whether the present claim is actually affected by the previous judgment.”...,.

See also Wolfenden v Jackson 1985 (2) ZLR 313 (S)...,.

An authoritative discussion on the requirements of res judicata was set out by SANDURA JA in Banda & Ors v Zisco 1999 (1) ZLR 340 (S), wherein the court affirmed the dicta in several decided authorities on the issue. The court stated:

“The requisites of the plea of res judicata have been set out in a number of previous cases. In Pretorius v Barkly East Divisional Council 1914 AD 407 at 409, Searle J set them out as follows:

'As to the first point, the requisites for a plea of res judicata have several times been laid down in this court.

The three requisites of a plea of res judicata, said the Chief Justice in Hiddingh v Denyssen & Ors (1885) 3 Menz 424, quoting Voet (44.2.3), are that the action in respect of which judgment has been given must have been between the same parties or their privies, concerning the same subject matter, and founded upon the same cause of complaint as the action in which the defence is raised…,.

In order to determine the cause of complaint, the pleadings, and not the evidence, in the case must be looked at.'

Subsequently, in Mitford's Executor v Ebden's Executors & Ors 1917 AD 682 at 686, Maasdorp JA said the following:

'The question now arises whether that decision was given under circumstances which preclude the plaintiff from bringing his present action. Are the first defendants entitled to set up that decision as res judicata in the present action? To determine that question, it will be necessary to enquire whether that judgment was given in an action -
(1) With respect to the same-subject matter;
(2) Based on the same ground; and
(3) Between the same parties.'”

From the above authorities, the following essential elements of the plea may be distilled as follows:

(1) The two actions must be between the same parties or their privies;
(2) The two actions must concern the same subject-matter; and
(3) The two actions must be founded upon the same cause of action.

The first two elements of the plea are common cause. The parties in the suits under discussion are the same.

In its judgment, the court a quo made the finding that the subject matter was the same as that of the case which culminated in the appeal under SC15-21.

The third element is that both actions are founded on the same cause of action - this is related to the legality of the legislation in question.

This last is the issue that the court a quo decided to determine.

The court a quo decided to hear the matter on the premise that it could legitimately do so on the “basis that the issue of the constitutionality of the Directive, and of those legislative provisions, was not determined, either to finality or at all.”

The court a quo specifically found, that, the plea did not apply because the earlier judgment by the High Court, which had discussed the Directive, had been set aside by the Supreme Court. The court said:

“[15] I disagree, that, in the present application, issue estoppel or res judicata can be invoked successfully for the reason that the Supreme Court has determined that the consideration of the constitutionality of the Exchange Control Directive RT120/2018 had not been properly motivated before this court in those proceedings and had therefore been improperly decided. The decision of this court on that point has been vacated. Manifestly, it remains open. In other words, the question of the constitutional validity of the Exchange Control Directive RT120/2018 and of section 44B(3) and (4) of the Reserve Bank Act has not been determined.”

The following passage of the court a quo's judgment perfectly encapsulates the essence of the applicants cause of action as follows:

“[22] Holistically, what the applicants want in these proceedings is the impeachment of the device by which the monetary authorities managed to convert their USD142,000 bank balance into an RTGS bank balance, and, thereafter, to be able to stop the applicants from accessing the amount in the original currency of the deposit.”

It is a settled principle, that, where a matter is res judicata, no court can competently re-open it.

In Wolfenden v Jackson 1985 (2) ZLR 313 (S)…, the court held as follows:

"The exceptio rei judicatae is based principally upon the public interest that there must be an end to litigation and that the authority vested in judicial decisions be given effect to, even if erroneous: see Le Roux en 'n Ander v Le Roux 1967 (1) SA 446 (A) at 461H.

It is a form of estoppel and means, that, where a final and definitive judgment is delivered by a competent court, the parties to that judgment or their privies (or, in the case of a judgment in rem, any other person) are not permitted to dispute its correctness."

In casu, the High Court proceeded to hear the matter in the face of spirited objections from the respondents. They contended, that, the court was procedurally barred from hearing the parties on the specific application before it.

By parity of reasoning, a finding by the High Court that the matter before it was res judicata would have disposed of the dispute at that stage.

The respondents have raised the same issue before this Court, arguing that the High Court ought to have upheld the objection by withholding its jurisdiction.

Notwithstanding the allegation of a plea of res judicata, the Constitution provides, in section 175(1), that where a court makes an order of constitutional invalidity, such order has no force and effect unless and until confirmed by the Constitutional Court.

Since confirmation proceedings are in the nature of constitutional review, the court is enjoined to carry out an independent investigation as to whether the proceedings which resulted in the order of constitutional invalidity of legislation now before it, for confirmation or variation, followed the adjectival or procedural tenets of constitutional litigation before confirming or declining to confirm the proceedings as required by section 175(1) of the Constitution.

The High Court proceeded with the matter and this renders the question of issue estoppel as being moot.

Whether the matter was res judicata is of no moment in view of the role of the Constitutional Court in confirmation proceedings following a declaration of invalidity of any law. The Constitutional Court would be seized with the matter irrespective of the plea of res judicata.

A finding that the matter was res judicata would not be dispositive of the dispute nor would it satisfy the requirements set out in section 175(1) of the Constitution which oblige the Constitutional Court to undertake a review of the proceedings resulting in the order of invalidity.

As I have concluded above, there was no constitutional issue for determination before the High Court. In the circumstances, it becomes unnecessary to consider the content of the right to property under section 71 of the Constitution.

DISPOSITION

The proceedings in the court a quo were procedurally deficient.

The applicants approached the court in terms of section 85(1)(a) of the Constitution. The procedure contemplated in section 85 of the Constitution is a direct enforcement procedure for the enforcement of fundamental rights and freedoms.

The provision cannot be invoked in respect of non-constitutional remedies.

The cause of action seeking the invalidation of the Exchange Control Directive R120/2018 on the basis that it is ultra vires section 35(1) of the Exchange Control Regulations 1996 had no relationship with the protection and enforcement of fundamental rights and freedoms contained in the Declaration of Rights.

The same applies to the cause of action seeking the payment of USD142,000.

To the extent that the application comprised two composite causes of action, on the one hand, constitutional and the other non-constitutional, it was therefore improperly before the court a quo.

By a combination of imprecise pleading and improper conflation of constitutional and non-constitutional issues in one application, there was no valid constitutional application before the court a quo.

The fact that it was contended by the applicants that the Exchange Control Directive R120/2018 is ultra vires section 35(1) of the Exchange Control Regulations 1996 is evidence that there was no ripe constitutional question.

The law is settled, that, where there is a statute or law designed to provide effective redress, litigants must find redress in that law rather than approaching the court pleading a constitutional issue.

The court a quo ought to have avoided the purported constitutional question before it.

In the light of these reasons, judgment was entered as aforestated.

View Appeal
HH118-23 : PENELOPE STONE and RICHARD BEATTIE t/a Stone/Beattie Studio Partnership vs CENTRAL AFRICA BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE & ECONOMIC DEVELOPMENT
Ruled By: MAFUSIRE J

ABSTRACTThe applicants are importunate. They want back their money, $142,000, all in the currency of the United States dollars [USD].If the first respondent, their banker, will not pay, then the second and third respondents, collectively the monetary authorities, should.The applicants allege these monetary authorities are partly the reason the first ...

ABSTRACT

The applicants are importunate. They want back their money, $142,000, all in the currency of the United States dollars [USD].

If the first respondent, their banker, will not pay, then the second and third respondents, collectively the monetary authorities, should.

The applicants allege these monetary authorities are partly the reason the first respondent will not pay.

The applicants want a whole range of some financial legislation, and certain monetary policies or directives, set aside on the grounds of constitutional invalidity.

They first came to this court in 2019. The subject matter was the same. This court ruled in their favour. It directed the first respondent to pay: see Stone & Anor v CABS & Ors HH287-20.

The first respondent did not pay.

All the respondents appealed separately. The appeals succeeded. The judgment of this court was vacated: see CABS & Ors v Stone & Ors SC15-21.

That was in March 2021.

In August 2021, the applicants were back in this court. It is still the same subject matter. But the thrust is now different. They seek the following orders:

(i) That, Exchange Control Directive No. R120/2018 issued by the Reserve Bank [is] unconstitutional and invalid as it violates section 71 of the Constitution;

(ii) That, the Exchange Control Directive No. RT120/2018 is grossly unreasonable and ultra vires section 35(1) of the Exchange Control Regulations, SI 109 of 1996, and is invalid;

(iii) That, section 44B(3) and (4) of the Reserve Bank Act are unconstitutional and invalid as they violate section 71 of the Constitution;

(iv) That, section 22(1)(b) and (d), section 22(4)(a) and section 23(1) and (2) of the Finance (No.2) Act of 2019 are unconstitutional and invalid as they violate section 71 of the Constitution;

(v) That, the conversion of the applicants USD142,000 to RTGS142,000 is unconstitutional and invalid as it violates section 71 of the Constitution;

(vi) That, the first respondent should pay to the applicants the amount of USD142,000;

(vii) That, the first respondent is to pay interest on the aforestated amount at the rate of 5% per annum from 28 November 2016 to the date of payment; and

(viii) That, the respondents must pay costs of suit, jointly and severally, the one paying the other[s] to be absolved.

BACKGROUND

The first respondent is a building society. It is a bank or an authorised dealer for the purposes of exchange control regulations.

At all relevant times, the applicants were in business as architects. They banked with the first respondent. As at 28 November 2016 the balance in their account was $142,000. The designation of the account was USD.

That designation was in line with the currency regime in force at the time. At the time, the national economy was on a multi-currency system. That had been the situation since 2009.

In terms of that system, the currencies of other countries, specifically the British pound, the euro, the USD, the South African rand and the Botswana pula had been made legal tender in Zimbabwe, courtesy of an amendment to the Reserve Bank Act [Chapter 22:15]: see section 17 of the Finance (No.2) Act No.5 of 2009.

The local currency would float and find its own level in the basket of all these other currencies.

Over the years, the local currency depreciated in value so much that it practically became non-existent. In 2015, the State President officially demonetized it through statutory instrument S.I.70 of 2015: see Reserve Bank of Zimbabwe (Demonetisation of Notes and Coins) Notice 2015, SI70 of 2015.

After the demonetization as aforesaid, there followed some rapid developments in the monetary system.

These were achieved through policy pronouncements and legislative changes by the State President in terms of the Presidential Powers (Temporary Measures) Act [Chapter 10:20], or via the second respondent, as the Central Bank, and the third respondent, as the Minister in charge of finance.

Among other such changes, the third respondent, was empowered in 2016, through a statutory instrument, to reintroduce some form of local currency: see Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act and Issue of Bond Notes) Regulations 2016, SI133 of 2016.

Such currency would comprise what would become known as 'bond notes' and 'bond coins'.

It would become legal tender. It would be exchangeable at par value with any specified currency. Each unit of a bond note would be exchangeable for one USD. The bond notes and coins eventually came into operation in March 2017. This was achieved through an amendment to the Reserve Bank Act: Reserve Bank Amendment Act No.1 of 2017.

The amendment practically reproduced S.I.133 of 2016. But, there were two significant additions:

(i) The amendment was deemed to have come into operation on 31 October 2016 (section 1 thereof) the date of SI 133 of 2016; and

(ii) The bond note would be backed by a guarantee extended to the Reserve Bank by one or more international financial institutions: see section 44B(1) of the Reserve Bank Act.

In a press statement on 4 May 2016, the second respondent had disclosed the extent of that financial guarantee. It was in the sum of USD$200 million. It had been issued by the African Export-Import Bank [Afreximbank].

The next significant development was on 4 October 2018.

On that date, the second respondent issued the Exchange Control Directive RT120/2018. The second respondent is empowered to issue such directives by section 35(1) of the Exchange Control Regulations 1996, SI 109 of 1996.

The background to the Exchange Control Directive RT120/2018 is this.

At that time, the economy was still operating in the multi-currency system. Bank accounts were all Nostro foreign accounts. “Nostro” is an accounting term used by banks and monetary authorities. A bank in Zimbabwe will operate a Nostro account with a foreign or correspondent bank in the world financial centres where a float of money designated in foreign currency is maintained. The Nostro account is for settling foreign obligations of the local bank.

The local bank account transactions are replicated or “mirrored” in the Nostro account of the correspondent bank.

Of the basket of currencies in use, the USD was the most predominate. Thus, most Nostro foreign currency accounts were predominantly in USD.

The intrinsic provision of the Exchange Control Directive RT120/2018 directed banks to separate foreign currency accounts into two categories, namely, Nostro foreign currency accounts [Nostro FCAs] and Real Time Gross Settlement [RTGS] foreign accounts [RTGS FCAs].

For the present narrative, RTGS would be the new form of the local currency.

It would eventually be brought into circulation by the Central Government via SI33 of 2019. Its effective date was 22 February 2019: see the Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act and Issue of Real Time Gross Settlement Electronic Dollars (RTGS Dollars) Regulations 2019, SI 33 of 2019.

Exchange Control Directive RT120/2018 was directed at authorised dealers, principally banks.

It addressed a number of issues. It said its purpose was to “operationalise” the measures which had been incepted earlier on to strengthen the multi-currency system to enhance business viability and price stabilization; to increase export generation capacity and to improve market confidence.

It explained, further, that, the measures were aimed at encouraging diaspora remittances, the banking of foreign currency into the Nostro FCAs and to eliminate the co-mingling effect or dilution of Nostro FCAs by RTGS balances.

It was further stated, that, the relationship between the two categorise of the foreign currency accounts would continue to be at parity in order to preserve value for money for the banking public and the investors during the transition to a more market-based foreign currency allocation system. The market based foreign currency allocation system would be implemented once the economic fundamentals had become appropriate.

Before this court, the third respondent has provided some further insights into the thought process behind the implementation of the measures above, particularly the split of people's bank balances into Nostro FCAs and RTGS FCAs.

In summary, and as I have understood him, the multi-currency regime had come with its own problems.

Market distortions, liquidity crunches, cash shortages, and so on, dogged the economy. Public confidence became difficult to maintain. Pressed by international financial institutions, such as the Bretton Woods, it became imperative to initiate currency reforms. Key amongst such reforms would be the adoption of a domestic currency.

As at 1 October 2018, the currencies in use in the economy were both the USD and another which had been created by the State, through borrowing from the second respondent, and the issuance of treasury bills. The latter currency was at first nameless even though it continued to pass off as USD. It was not a physical currency. It was a currency that could only be transacted through the RTGS system.

It was not a genuine USD currency.

The third respondent further explains, that, the purpose of borrowing by Government from the Central Bank, and the issuance of treasury bills, had been to cover the domestic debt of State-owned entities.

So, to achieve the intended reforms, particularly the currency reforms, it became necessary to separate the two types of currencies in use. In pursuance of that policy, and through the second respondent's monetary statement of 1 October 2018, financial institutions had been directed to separate their customers bank accounts into two categories:

(i) Those holding actual dollars of the United States; and
(ii) Those holding this other nameless currency still passing off as USD.

Banks would open Nostro FCAs into which genuine dollars of the United States would be deposited. That other non-United States dollar currency would remain as the existing customers accounts.

Such process of separation would take about ten days. The modalities would be left to the financial institutions themselves. They would use their own data bases, such as the Know Your Customer [KYC] principles, to determine the source of the deposits in their individual customers accounts. Henceforth, deposits or remittances from sources outside the country would be channelled into the Nostro FCAs which would automatically be created by the banks at no cost to their customers. All other deposits would continue to be channelled into the existing accounts.

The separation of the FCAs in terms of the Exchange Control Directive RT120/2018 entailed that foreign currency realized from offshore or foreign currency cash deposits would be credited into individual or corporate Nostro FCAs. The sources specifically listed in these regards included export proceeds, offshore loan proceeds, offshore funds from foreign investors, diaspora remittances, and so on.

On the other hand, all RTGS or mobile transfers and deposits in bond notes or coins would be credited into individual or corporate RTGS FCAs.

The third respondent eventually gave the nameless currency a name. This was through SI 33 of 2019 aforesaid.

That currency would be called the RTGS dollar.

SI33 of 2019 empowered the second respondent to issue the RTGS dollar as an electronic currency. It would be legal tender in Zimbabwe. The RTGS balances, expressed in USD immediately before the effective date, would be, from that date, deemed to be opening balances in RTGS dollars at par with the USD at a rate of one-to-one.

Thereafter, any variance in parity would be determined by market forces on a willing-seller willing-buyer basis.

Bond notes and coins in circulation at the time would continue to be legal tender exchangeable at parity with the RTGS dollar on the same ratio of one-to-one.

All the aforesaid changes and reforms would formally be incorporated into the statute books, primarily through appropriate amendments to the Reserve Bank Act. The details are not important for the moment, save just to mention that this is the gamut of the legislation the applicants want knocked down.

They aver that watching those changes from 2016, they feared the value of their deposit would devalue significantly. To them, the unfolding situation was not without precedence.

They cite the bearer cheque dispensation of 2007 and 2008 when inflation had risen phenomenally. Money would be counted in quintillions of dollars.

When the economy had dollarized, people's savings had been wiped out.

Therefore, to avert another disaster, the applicants say they instructed the first respondent, on 28 November 2016, to “freeze” their account so that no deposits or withdrawals from it would be effected except upon the written instructions by the authorised signatories.

It did not work.

The first respondent cited the policy and legislative changes above and said it had to comply.

The applicants aver that their bank account, which previously reflected a balance of USD142,000 now reflected the same figure - but in RTGS.

Due to the movement of the exchange rate between the USD and the RTGS dollar and the depreciation of the RTGS dollar against all the other major currencies, the applicants allege that their deposit has become a minuscule fraction of its original value.

They submit that this cannot be right. They will not accept it. Apparently, neither will so many other customers: As a matter of fact, there has been persistent litigation over the same subject matter since the changes in the monetary regime.

So, in 2019 the applicants sued the first respondent, their Bank, on the basis of the banker-customer principles of the common law. In the alternative, they sued the monetary authorities, the second and third respondents, in the main impugning Exchange Control Directive RT120/2018.

As mentioned at the beginning of this judgment, the applicants cause found favour with this court. But, they lost on appeal. They are now back again in this court, their cause of action having been re-formulated.

But, inevitably, and quite characteristically in matters such as this, the court has been called upon to first determine the numerous points in limine which have been raised by the respondents.

These are dealt with below, not necessarily in the order that they have been raised in the affidavits, but rather on the basis of their individual likelihood or potential to dispose of the entire application without going into the merits.

POINTS IN LIMINE

(i) Matter is res judicata or issue estoppel

The second respondent alleges, that, by reason of the doctrine of res judicata or issue estoppel, the applicants are barred or estopped from bringing this claim in the form that they have, or at all.

Singled out for impeachment under this objection are paragraphs 1, 2, 3, 7, 8 and 9 in the applicants draft order.

Respectively, these are the paragraphs alleging that the Exchange Control Directive RT120/2018 is unconstitutional; that it is ultra vires the Exchange Control Regulations 1996; that section 44B(3) and (4) of the Reserve Bank Act are unconstitutional; that the first respondent should refund them the contentious USD142,000 together with interest and costs of suit on the higher scale.

Paragraphs 4, 5 and 6 that the second respondent has not expressly singled out, respectively, contain the claim for the impeachment of section 44C of the Reserve Bank Act; the impeachment of certain provisions of the Finance (No.2) Act of 2019 (sections 22(1)(b)(d); section 22(4)(a) and (2) thereto) and the impeachment of the act of converting the applicants bank balance from USD142,000 to RTGS142,000, all on the basis of unconstitutionality.

The second respondent argues, that, the substance of the applicants claim then and now, was, and is the payment of USD142,000 irrespective of the form in which it was, and is being pleaded.

It further argues, that, this substantive claim was determined to finality by both this court and the Supreme Court.

In particular, this court declared the Exchange Control Directive RT120/2018 invalid. It then went on to order the first respondent to refund the applicants the USD142,000 in question. But, the judgment of this court was vacated by the Supreme Court. There ended the case. There is no right of appeal beyond the Supreme Court.

The second respondent cites widely case authorities from around the globe on res judicata and issue estoppel.

Many jurists and scholars, here and abroad, have written extensively on res judicata and issue estoppel. Without in any way being presumptuous and pre-emptive, it is doubtful whether there remains anything that can usefully be added to the body of knowledge on this subject. So, I merely paraphrase the principles:

Issue estoppel is a species of res judicata: Munemo v Muswera 1987 (1) ZLR 20 (SC)…,.
They are almost analogous concepts: Galante v Galante (1) 2002 (1) ZLR 144 (H)…,.

Issue estoppel has been described in Mills v Cooper [1967] 2 ER 100, per LORD DIPLOCK, as follows…,.:

“A party to civil proceedings is not entitled to make, as against the other party, an assertion, whether of fact or of legal consequences of facts, the correctness of which is an essential element in his cause of action or defence, if the same assertion was an essential element in his previous cause of action or defence in previous proceedings between the same parties or their predecessors in title and was found by a court of competent jurisdiction in such previous civil proceedings to be incorrect, unless further material which is relevant to the correctness or incorrectness of the assertion and could not by reasonable diligence have been adduced by that party in the previous proceedings has since become available to him.”

Quoted by KHOSA JA in Willowvale Mazda Motor Industries v Sunshine Rent-a-Car 1996 (1) ZLR 415 (S)…,.

In Carl Zeiss Stiftung v Rayner & Keeler [1976] 1 AC 853 (quoted by KHOSA JA in Willowvale Mazda Motor Industries v Sunshine Rent-a-Car 1996 (1) ZLR 415 (S)…,.) the three essential requirements of res judicata or issue estoppel were listed as follows:

(i) That, the same question has been decided;
(ii) That, the judicial decision which is said to create the estoppel was final; and
(iii) That, the parties to the judicial decision, or their privies, were the same persons as the parties to the proceedings in which estoppel is raised.

I disagree with the second respondent, that, the applicants are estopped from bringing their claim in the manner that they have.

Admittedly, the impeachment of the Exchange Control Directive RT120/2018 and section 44B(3) and (4) of the Reserve Bank Act had been issues before the courts in the applicants previous claim - albeit as alternative claims.

Admittedly, this court had gone on to determine the issue of the constitutional validity of the Exchange Control Directive. It had expressly declined to determine the constitutional validity of section 44B(3) and (4) of the Reserve Bank Act on the grounds that it had become unnecessary to do so.

The Supreme Court, in CABS & Ors v Stone & Ors SC15-21, declared the whole approach by this court a faux pas.

According to the Appellate Court, and in summary, the applicants main claim being one ad pecuniam solvendum (i.e. a claim for the payment of a sum of money); that claim having been made expressly against the first respondent only, this court having found against the applicants on it; the claim for the constitutional invalidity of, inter alia, Exchange Control Directive RT120/2018 not having been made at all, this court had gone on a frolic of its own to assume that it could determine that aspect of the claim.

What is worse, according to the Appellate Court, this court had gone on to pronounce judgment against the first respondent in circumstances in which neither the constitutional validity of the Exchange Control Directive RT120/2018 had been pleaded by the applicants as against the first respondent, nor the conditions dealt with by this court argued by any of the parties in those proceedings.

On that basis, the Appellate Court set aside the judgment of this court in its entirety....,.

It was the respondents argument before the Supreme Court, which was upheld, that it was this court, not the applicants, which had improperly formulated the cause of action on which it had eventually granted them relief.

View Appeal
HH118-23 : PENELOPE STONE and RICHARD BEATTIE t/a Stone/Beattie Studio Partnership vs CENTRAL AFRICA BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE & ECONOMIC DEVELOPMENT
Ruled By: MAFUSIRE J

ABSTRACT

BACKGROUND

POINTS IN LIMINE

[iv] Applicants Draft Order is Defective

The first respondent's sole point in limine, distilled, is that it is incompetent for the applicants to seek a declaration of invalidity of the range of legislation that they have singled out, and then, in the same claim, seek consequential relief in the form of an order directing the respondents to pay back the USD142,000 in contention.

The first respondent's point is that in terms of section 175(1) of the Constitution, a declaration of constitutional invalidity made by any court has no force until confirmed by the Constitutional Court.

The first respondent avers, that, the applicants are seeking to be paid the money before any order of constitutional invalidity which this court may make is confirmed by the Constitutional Court.

The first respondent concludes, that, by reason of the fact that the applicants draft order fails to reflect this position, it is fatally defective. The defect cannot be cured by an amendment. As such, the application ought to fail in its entirety.

With all due respect, this objection lacks merit.

By operation of the law, any declaration of unconstitutionality this court, or any other, may make, stands suspended until confirmed by the Constitutional Court. That should mean that any consequential relief that the court may see fit to grant also stands suspended until the declaration of unconstitutionality is confirmed. If the unconstitutionality is not confirmed, then, the consequential relief that is based upon the constitutional point should automatically fall away.

But, such a position cannot preclude a litigant from claiming consequential relief where a declaration of constitutional invalidity is sought. He or she brings his or her claims in one motion to avoid a multiplicity of proceedings.

The first respondent's objection is hereby dismissed.

CC07-23 : RITA MBATHA vs VINCENT NCUBE and MESSENGER OF COURT
Ruled By: PATEL JCC

This is a chamber application for condonation and extension of time within which to file an application for direct access due to non–compliance with Rule 9(7) of the Rules of this Court. The instant application was made in terms of Rule 35 of the Constitutional Court Rules 2016.The BackgroundThe applicant ...

The Background

The applicant in this matter is a self-actress seeking the indulgence of this Court to be granted condonation for non-compliance with the Rules.

On 29 March 2023, her application for direct access to this Court, under Case No. CCZ55/22, was struck off the roll due to her failure to effect proper service on the first respondent. The application was one of many suits between the applicant and the first respondent who have been deadlocked in protracted litigation since 2016 when the latter sought to evict the former from his property.

The dispute between the parties appeared to have reached finality when the Supreme Court, in Case No. SC443/21, dismissed the applicant's appeal in which she had challenged the court a quo's dismissal of her urgent chamber application for an interdict meant to bar the first respondent from effecting eviction in terms of the ejectment order granted in his favour under Case No. MC39520/16.

However, the applicant was dissatisfied with the verdict rendered by the Supreme Court, taking particular issue with the utilisation of Rule 53(3) of the Supreme Court Rules 2018.

It was on the basis of the aforementioned Rule that the matter was determined on the merits, having regard to the papers filed of record following the applicant's default of appearance before the Supreme Court.

The dismissal of the appeal culminated in the applicant filing an application for rescission which was subsequently dismissed by the Supreme Court.

Aggrieved by this turn of events, the applicant sought to challenge the final verdict of the Supreme Court before this forum arguing that her fundamental right to a fair trial had been unduly violated.

However, it was due to the earlier-mentioned defective manner of service that the applicant found herself seeking this Court's indulgence to file a proper application for direct access.

In her founding affidavit, the applicant proceeded to narrate the background of her prospective application before this Court. She made unsubstantiated allegations of professional impropriety against the Registrar of this Court which suggested that there was collusion with the first respondent.

There was no explanation tendered for her non–compliance with the Rules of this Court save to insist upon vindicating her allegedly impugned constitutional rights.

According to the applicant, the main application enjoys prospects of success as she was discriminated against by the Supreme Court in Case No. SC443/21.

She also made the bald averment that the first respondent also wanted the matter to be determined to finality by this Court.

The applicant advanced the argument, that, it was important for this Court to make a ruling on whether the Supreme Court's decision to proceed with the matter under Case No. SC443/21 in her absence was fair and just.

It was the applicant's case, that, the Supreme Court furthered her injustice by dismissing her application for rescission in Case No. SC237/22, especially since the matter was determined by the same Bench which had presided over her appeal in Case No. SC443/21.

The grant of condonation was opposed by the first respondent.

It was submitted, that, the applicant's conduct was driven by a desire to remain on his property despite a valid ejectment order from the Magistrates Court under Case No. MC39520/16.

The first respondent alleged, that, the applicant was creating a trail of purportedly pending litigation to frustrate her eviction. He reasoned that the Supreme Court was well within its power to utilise Rule 53(3) of the Supreme Court Rules in the appeal proceedings under Case No. SC443/21. Thus, it was argued that the present proceedings were now a mere abuse of court process.

In response, the applicant submitted that the first respondent was intent on preventing the finalisation of the dispute. She proceeded to justify her interests in several matters pending before this Court and other judicial fora.

The rest of her answering affidavit was dedicated to objectionable material save for the insistence that her fundamental right to a fair trial had been violated by the conduct of the Supreme Court in the proceedings under Case No. SC443/21.

Submissions before this Court

At the hearing of the matter, it came to the Court's attention that the applicant had now been evicted by the first respondent in terms of the eviction order under Case No. MC39520/16.

The applicant confirmed that she was evicted on 23 May 2023.

She added that she had since filed a spoliation application in the High Court, which matter was still pending determination.

It became apparent that the instant application had since been overtaken by events and was now academic.

This point was appreciated by both parties, but, the applicant was resolute in proceeding with the matter despite its nominal bearing on her present predicament.

The applicant had no reasonable explanation for her failure to serve the first respondent as per Rule 9(7) of the Constitutional Court Rules 2016.

She persisted with the argument that she had effected service personally on the first respondent.

When directed to the content of Rule 9(7) of the Constitutional Court Rules, no credible or reasonable explanation was proffered as to why service had not been effected through the Sheriff as stipulated by the Rules.

She submitted, that, her intended application for direct access was in the interests of justice since the Supreme Court had violated her fundamental rights by proceeding with the appeal under Case No. SC443/21 in her absence.

The applicant suggested that there was evidence in her favour that she could have provided at the hearing before the Supreme Court.

In addition, she also impugned the conduct of the bench in Case No. SC237/22 for refusing to recuse themselves from determining her application for rescission.

Per contra, counsel, on behalf of the first respondent, submitted that the matter was now merely academic following the applicant's eviction from the property. As such, no consequential relief from this Court would restore her occupation since eviction was made in terms of a valid order under Case No. MC39520/16.

Counsel for the first respondent reiterated that the present proceedings were now an abuse of court process by the applicant. To that end, she sought costs on a higher scale as the first respondent was being constantly dragged to court without any just cause.

The applicant disputed the claim for costs as she insisted that she was merely vindicating her constitutional rights.

The Relief Sought

The relief sought before this Court was for an order framed as follows:

“1. Application for condonation of non-compliance with Rule 9(7) of the Constitutional Court Rules be and is hereby granted.

2. Application for extension of time within which to file and serve an application in terms of the rules be and is hereby granted.

3. There shall be no order as to costs if the matter is not opposed.”

The Governing Principles

The parties have helpfully referred the Court to some of the relevant principles in an application of this nature. Some of these principles will inform the Court's determination and are listed as follows:

(i) The degree of non-compliance;

(ii) The explanation for the non-compliance;

(iii) The importance of the case;

(iv) The prospects of success;

(v) The interests of justice;

(vi) The interests of finality in the case; and

(vii) The avoidance of unnecessary delay in the administration of justice.

See Mhora v Mhora CC05-22; K.M. Auctions (Pvt) Ltd v Samuel & Anor SC15-12…,.; Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S)…,.; Terera v Lock & Others SC93-21; and Maheya v Independent African Church 2007 (2) ZLR 319 (S).

The Degree of and Explanation for the Non–Compliance

The warning has long often been sounded to litigants that petition the courts regarding non-compliance with the Rules. In the case of Museredza and Ors v Minister of Agriculture, Lands, Water and Rural Resettlement and Ors CC11-21, the following was reiterated by MAKARAU JCC:

“It is a rule of common law and an entrenched part of our practice and procedure that matters are to be brought before the court in accordance with the Rules of that court. The remarks of PATEL JCC in Marx Mupungu v The Minister of Agriculture, Lands, Water and Rural Resettlement and Others CC07-21 are apt. He wrote:

'One cannot institute an action or application in the High Court, or any other court, without due observance of and compliance with the Rules of that court. The Rules inform a litigant of what is required of him to access the court concerned. If he fails to observe or comply with those Rules, he will inevitably be non-suited.'”

Flowing from the above is the necessary implication, that, where litigants fall foul of the applicable Rules, a sufficient explanation must be tendered in order to be granted the Court's indulgence.

However, in the present case, the applicant's founding affidavit is bereft of any reasonable explanation.

Save for a heading titled “Extent of the delay and reasonableness of the explanation” the applicant made no attempt to bring the Court into her confidence regarding the circumstances that led to her non-compliance.

This deficit was further compounded during submissions before this Court where the applicant tendered no reasonable explanation for her non–compliance, except to insist that she had effected service personally upon the first respondent.

Generally, a measure of tolerance is afforded to self-actors. Reference is made to the case of Sibangani v Bindura University of Science and Education CC07-22…, wherein GOWORA JCC posited the following:

“There is an unwritten rule of practice, that, wherever possible and where justice demands, courts should ensure that unrepresented litigants be accorded a measure of tolerance where it concerns procedural issues.”

However, in this instance, where the applicant is seeking the indulgence of the Court, a failure to satisfy the foremost requirement for condonation cannot pass unheeded. The applicant does not accept any accountability for how and why her matter was struck off the roll.

She alternated between simply laying blame upon the first respondent and/or the Registrar.

As such, she has failed to provide an adequate explanation for her non-compliance in addition to completely disregarding the need to plead the degree of non-compliance adequately.

CC08-23 : QEDISANI MACHINE vs SHERIFF OF ZIMBABWE and ZB BANK LIMITED and REGISTRAR OF DEEDS and PAPERHOLE INVESTMENTS (PVT) LTD
Ruled By: GARWE JCC, MAKARAU JCC and HLATSHWAYO JCC

This is an application for direct access to this Court.If the application is granted, it is the applicant's intention to approach this Court in terms of section 85(1)(a) of the Constitution of Zimbabwe, alleging and arguing that a judgment of the Supreme Court, handed down on 31 December 2020, infringed ...

This is an application for direct access to this Court.

If the application is granted, it is the applicant's intention to approach this Court in terms of section 85(1)(a) of the Constitution of Zimbabwe, alleging and arguing that a judgment of the Supreme Court, handed down on 31 December 2020, infringed his dual rights to equal protection and benefit of the law and to a fair hearing before an independent and impartial court.

Background

The applicant owed the second respondent the sum of US$327,345=77 plus interest thereon at the rate of fifty percent per annum. On a date that is not material, the second respondent obtained judgment in the High Court against the applicant for the payment of the debt together with the accrued interest.

The applicant failed to satisfy the judgment debt.

In due course, the first respondent attached the applicant's farm and sold it by public auction. The sale realized the sum of US$205,000. The applicant successfully objected to the sale. The first respondent set the sale aside, accepting that the sale had been conducted in an irregular manner.

It had not been preceded by a nulla bona return against the applicant's movables and the property had been poorly described in the advertisement flighted before the sale.

In his ruling setting aside the sale, the first respondent indicated that he would offer the property for sale by private treaty for the following thirty days on certain specified conditions.

The first respondent proceeded to sell the property to the fourth respondent by private treaty for the sum of US$825,000.

Clearly not anticipating any further objections from the applicant, the first respondent advised the judgment creditor's legal practitioners of the sale by letter, which he also copied to the applicant.

In the same breath, he advised the parties that he had declared the fourth respondent the purchaser of the property and had consequently confirmed the sale in accordance with the rules of court.

The germane part of the letter reads:

“I refer to the sale in the above matter and advise that on 27 February 2018, the Sheriff declared and confirmed the highest bidder, Paperhole Investments (Pvt) Limited, to be the purchaser at the sum of US$825,000 after the property was sold by private treaty.”

The letter advising and confirming the sale at the same time was written on 27 February 2018, the same date on which the sale was concluded.

Upon receipt of his copy of the letter, the applicant approached the first respondent, intending, once again, to object to the sale.

The first respondent raised the defence of functus officio. He advised the applicant that after confirming the sale, his mandate was discharged and the applicant had to approach the High Court for any possible relief.

In due course, the applicant filed an application for review in the High Court, seeking an order setting aside the confirmation of the sale. He alleged that such confirmation was irregular and not in accordance with the rules of the High Court.

The application was opposed by all the respondents save for the third.

In opposing the application before the High Court, the first respondent stated in his opposing affidavit, that, he had declared the fourth respondent as the purchaser and had confirmed the sale in the same breath because it was his reading of the rules of court that the applicant had no right to object to the second sale. It was his considered position that the rules did not permit him to entertain multiple objections in respect of the same property sold in execution.

Dismissing the first respondent's contentions, the High Court upheld, and correctly so in my view, the applicant's right to challenge the second sale.

It found that the applicant's right to object to any sale of his property in execution was not limited by the certain number of objections he had taken. For as long as there was a sale in execution against his property, the applicant had the right to object to any such sale on the grounds given in the law.

The High Court, however, went on to dismiss the application for review on the basis that the applicant had failed to disclose in the papers before the court the grounds of his objection to the second sale.

Aggrieved by the dismissal of the application for review, the applicant appealed to the Supreme Court.

Before that court, he contended that once the High Court had upheld his right to object to the second sale, it ought to have given him an opportunity to lodge his objection with the first respondent in accordance with the Rules.

It was his argument, that, the nature and content of his objection, embodying the recognised grounds of objecting to the sale, was not an integral part of the application for review such that its absence would be fatal to that application.

Fully developed, it was his argument that the law did not require him to lodge his objection to the sale with the court in the application for review, but to lodge it with the first respondent once the court had upheld and protected his right to object.

Viewed differently, he argued that the High Court had wrongfully conflated the application seeking the declaration of his right to object to the second sale with the procedure that he had to adopt to enjoy that right.

In its judgment, the Supreme Court took a few steps backwards, and, without making any reference to the Notice of Appeal or seeking further submissions from the parties, found that the applicant had not lodged with the first respondent an objection to the second sale as was required of him by Rule 359(1) of the High Court Rules 1971 (now Rule 71(38)).

After setting out the relevant Rule in detail, the Supreme Court found that the applicant had not complied with the provisions of the Rule, which, in its view, is worded in peremptory terms.

For emphasis, the court a quo went further to hold that there was no provision in the Rule that imposes a duty on the first respondent to invite persons to submit objections to the confirmations of the sale of immovable property in execution of court judgments.

The above finding became the ratio decidendi of the Supreme Court judgement....,.

Respecting the finality of the judgment of the Supreme Court, the applicant brought this application for leave.

It is his intention to bring an application alleging that the Supreme Court judgment breaches his right to equal protection and benefit of the law and the right to a fair hearing before an independent and impartial court.

He submitted, in this regard, that the Supreme Court judgement is erroneous both in fact and in law....,.

I turn, first, to the Supreme Court decision.

The finding by the Supreme Court, that, the applicant had not lodged an objection with the first respondent to trigger the exercise of discretion by the first respondent in terms of the then Rule 359 of the High Court Rules was clearly not in answer to any of the issues that arose from the appeal or could have risen therefrom.

This is so because it was common cause amongst the parties, that, the applicant was not afforded the mandatory fifteen days within which to lodge the objection to the second sale.

It was this denial of the right, created and afforded him by the law, which triggered the litigation before the High Court.

In the circumstances of this application, the conclusion that the Supreme Court did not determine the real issue that was placed before it by the appeal is unavoidable.

The import of a failure by the Supreme Court to deal with the issues raised by the appeal has been discussed in a number of decisions of the Supreme Court itself: see Nzara & Others v Kashumba N.O. and Others SC18-18; A Adam & Company (Private) Limited & Others v Good Living Real Estate (Private) Limited & Others SC18-21; Zimbabwe Revenue Authority v Packers International (Private) Limited SC28-16; and Gwaradzimba N.O. v C.J. Petron & Company (Proprietary) Limited SC12-16.

It is the settled position that any failure to determine the issue or issues arising from the dispute between the parties is a misdirection gross enough to vitiate the order made at the end of the hearing.

The Supreme Court has held, that, it is improper for any court to either stray from the issues arising from the pleadings or to pick up an issue for the parties and determine the dispute on the basis of the issue so created by it.

This is the standard that the Supreme Court, as the apex court in all common law matters, has, since time immemorial, set and enforced upon the procedures and decisions of lower courts.

It is therefore the standard against which its own procedures and decisions must, in turn, be measured.

CC09-23 : TENDAI MASHAMANDA vs BARIADE INVESTMENTS (PVT) LTD and PUWAYI CHIUTSI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT and ELLIOT ROGERS and ATTORNEY GENERAL ZIMBABWE
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

This is an application for direct access to this Court made in terms of Rule 21 of the Constitutional Court Rules 2016 ("the Rules").

The applicant is Tendai Mashamanda. The first respondent is Bariade Investments (Pvt) Limited, a company duly incorporated in terms of the laws of Zimbabwe. It was the appellant in SC09-20. The second respondent, Puwai Chiutsi, was one of the respondents in SC09-20.

The third respondent, the Registrar of Deeds is a public official appointed in terms of section 4 of the Deeds Registry Act [Chapter 20:05]. The fourth respondent is the Sheriff of the High Court cited as the officer responsible for executing judgments of the High Court.

The fifth respondent, Eliot Rogers, was the fifth respondent in SC09-20.

It is the applicant's case that the Supreme Court, in its determination in SC09-20, infringed several of his constitutional rights. These rights are the following;

(i) The right to the protection of the law which he says is enshrined in section 56(1) of the Constitution;
(ii) The right to a fair hearing in terms of section 69(2) of the Constitution; and
(iii) The right of access to the courts enshrined in terms of section 69(3) of the Constitution.

BACKGROUND

Sometime in 2012, the fifth respondent (Elliot Rogers) obtained judgment in the High Court under HC3331/14 against the second respondent (Puwayi Chiutsi). The court ordered the sale in execution of the second respondent's property known as the remainder of Subdivision C of Lot 6 of Lots 190,191,192,193,194 and 195, Highlands Estate of Welmoed (hereinafter referred to as “the property”).

On 18 September 2017, the first respondent participated in the Sheriff's sale by public auction of the property and was declared the highest bidder after offering to pay USD$270,000.

Thereafter, the second respondent lodged an objection to the confirmation of the sale by the fourth respondent (Sheriff of the High Court) in terms of Rule 359(1) of the High Court Rules 1971 (hereinafter referred to as “the High Court Rules”) and the objection was dismissed.

Subsequently, the second respondent filed a court application under case number HC11349/17 in which he sought the setting aside of the confirmation by the Sheriff of the sale of the disputed property, to the first respondent.

MATHONSI J..., dismissed the application on the basis that the second respondent had conducted himself in a dishonourable and unworthy manner by mis-appropriating trust funds, and that “he had employed every trick in the book to avoid paying his debt” to the fifth respondent.

The second respondent then proceeded, unsuccessfully, to file an urgent chamber application for an interdict against the transfer of the property pending the outcome of the appeal that he had filed.

Notwithstanding the fact that the second respondent had failed to secure an interdict against transfer of the property in question to the first respondent, the latter (Bariade Investments (Pvt) Ltd) submitted it became aware that the second respondent had not only sold the property in question, but had also transferred it into the applicant's name on 8 February 2019 under Deed of Transfer No.708/19.

The fifth respondent (Elliot Rogers) then filed an urgent chamber application under HC1444/19 in which he sought the cancellation of Deed of Transfer No.708/19.

This was on the basis, that, the second respondent's conduct was fraudulent since he had knowingly sold the property which was under judicial attachment without the knowledge of the fourth and fifth respondents (Sheriff of the High Court and Elliot Rogers).

As a result, the fifth respondent argued, the sale in question was null and void.

The court a quo dismissed the application, not on the merits, but on the basis that it could not grant a final order in an urgent chamber application which sought a provisional order.

The fifth respondent went on to appeal to this Court against that decision, and the appeal was heard jointly with the second respondent's appeal.

Thereafter, the first respondent filed an application for the cancellation of Deed of Transfer No.708/19 under HC2620/19.

The court a quo dismissed the application holding that the matter was res judicata because it had already been decided by MANZUNZU J in HC1444/19, a circumstance that rendered the court functus officio.

The court also held, that, a pignus judiciale could not conclusively be considered to have been created over the property in question since the first respondent had not proved the existence of a caveat registered against the title deed in the first respondent's name.

Aggrieved, the first respondent noted an appeal to the Supreme Court ('the court a quo') under case number SC9-20. The argument advanced by the first respondent was that the High Court had erred in coming to the conclusion that the material and live issue of the second respondent's fraud and forgery was not relevant to the just determination of the matter which was before it.

It was the first respondent's further argument, that, the High Court had erred when it came to the conclusion that the judgment of the High Court, per MANZUNZU J, concerned the same subject matter as the application before it.

The first respondent also argued, that, the High Court had erred in not coming to the conclusion that the question of equities was not a live issue before it and that it (the Court) had to determine, instead of, the question of the validity of the sale and transfer to the appellant in view of the pignus judiciale brought about by the attachment in execution.

In disposing of the matter, the court a quo held that the original judgment by MATHONSI J..., had been competently made and that it was an order against the transfer of the property in question otherwise than through the process ordinarily followed after a sale in execution is duly confirmed.

The court a quo went further to hold, that, although the property was still in the second respondent's name, it had ceased to be his to deal with as he wished from the moment that it was attached in execution, and, thereafter, sold to the appellant because of the pignus that was operating against the property.

The court a quo then dealt extensively with the judgment by CHITAPI J under judgment number HH477-21.

In analysing the judgment, the court a quo found that the processes leading to the default judgment granted by CHITAPI J, as well as the order itself, were irregular. That judgment was subsequently reviewed by the court a quo in terms of section 25 of the Supreme Court Act [Chapter 7:13].

The result was that the order of CHITAPI J was vacated.

CC13-23 : PATRICIA DENGEZI vs MUNYARADZI NYAMURURU and XOLISAN MOYO and CHAMPIONS INSURANCE COMPANY LTD and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

This is a referral from the High Court (“the court a quo”) of a constitutional matter in terms of section 175(4) of the Constitution of Zimbabwe 2013 (“the Constitution”).

The question referred to this Court for determination is:

“Whether or not section 70 of the Police Act, which sets the prescription period of eight (8) months for any person to institute civil proceedings against the Police, is ultra vires section 56(1) and 69(3) of the Constitution and therefore unconstitutional.”

It seems to me that the matter ought to be struck off the roll for two reasons:

(i) The first is that the referral was improperly made. I say this because, the issue of prescription not having arisen in proceedings before the court a quo, that court could not have properly referred the matter to this Court for determination in terms of section 175(4) of the Constitution.

(ii) The second, though ancillary reason, is that the matter set down before the court a quo, at the commencement of which this referral was made, was rendered abortive following the death of the presiding Judge.

The referral of the matter to this Court suffers from these deficiencies and must, as a consequence, be struck off the roll.

The reasons for the foregoing now follow.

FACTUAL BACKGROUND

The applicant is Patricia Dengezi who operates as an informal trader. The first and second respondents are, respectively, Munyaradzi Nyamururu and Xolisan Moyo. The first respondent was employed by the second respondent as a driver of a commuter minibus owned by the second respondent. The third respondent is Champions Insurance Company (Private) Limited, the third-party insurer of the commuter minibus owned by the second respondent. The fourth and fifth respondents, respectively, are the Commissioner General of Police and the Minister of Home Affairs.

The facts of this matter are largely common cause.

The applicant was in the informal business of vending. On 17 April 2017, while selling her wares from a pavement on Chinhoyi Street, close to Robert Mugabe Avenue in Harare, she was involved in a tragic accident. In her company was her son who was aged one year and two months.

In her declaration, she stated that on that fateful day, three officers of the Zimbabwe Republic Police who were carrying out their duties along Robert Mugabe Street threatened to arrest and intimidated certain commuter minibus drivers who were driving their vehicles in the area. Consequently, the commuter minibuses haphazardly sped off, in the process, driving against oncoming traffic moving along Chinhoyi Street, which is a one-way street.

The applicant alleges, that, as a result of the unlawful actions of the Zimbabwe Republic Police, the commuter minibus that was being driven by the first respondent, though travelling in the proper vehicular direction, veered off the road, hit the applicant and “smashed” her son who was killed immediately.

On 9 April 2018, almost a year later, the applicant sued out a summons commencing action out of the High Court at Harare claiming damages arising out of the said road traffic accident.

In her declaration, she made several claims for damages against the respondents.

The applicant's case before the court a quo was that, although the accident was caused by the first respondent, it was members of the Zimbabwe Republic Police who instigated the melee that resulted in the fatal incident. She alleges that the details from the Zimbabwe Republic Police were reckless and negligent and that they ought to have realized that their unlawful actions and intimidatory behaviour would “unleash [a] foreseeable chain of events including the loss of life.”

The third (Champions Insurance Company Limited), as well as the fourth and fifth respondents (Commissioner General of Police and Minister of Home Affairs), entered appearance to defend, and, in their pleas, denied liability.

The third defendant essentially pleaded that it has no knowledge of the facts forming the applicant's cause of action. On their part, the fourth and fifth respondents have pleaded that the actions of the officers of the Zimbabwe Republic Police were not unlawful and that they were not responsible for the death of the applicant's minor child.

That was the essence of their plea.

They said nothing about prescription and whether the claim should be dismissed on that basis. In their separate pleas, they simply prayed that the claim be dismissed with costs.

The applicant replicated to the pleas.

Following that replication, a pre-trial conference was convened before a Judge of the court a quo. For the purpose of that pretrial conference, the fourth and fifth respondents proposed three issues for determination in their pre-trial minute filed a quo. The proposed issues for determination were stated to be:

“1. Whether or not the plaintiff's claim has prescribed in terms of section 70 of the Police Act [Chapter 11;10].

2. Whether or not the police officers negligently caused the accident in question.

3. Whether or not the plaintiff is entitled to damages which are claimed.”

The record of the proceedings of the court a quo reveals that on 16 May 2019, following a pre-trial conference, three issues were referred for trial. These were:

(i) Whether the police officers controlling the traffic along Robert Mugabe Avenue were negligent;
(ii) If so, the quantum of damages payable by the State; and, lastly
(iii) The extent of damages recoverable from the insurance company.

It bears mention at this stage, that, the parties did not regard as an issue for determination the question whether or not the applicant's claim had prescribed in terms of section 70 of the Police Act [Chapter 11:10] (“the Police Act”).

Just before the trial commenced in the court a quo, on 14 February 2022, following what appear to have been informal discussions with the fourth and fifth respondents counsel, the applicant filed an affidavit in support of a request to refer a matter to this Court in terms of section 175(4) of the Constitution.

Therein, the applicant alleged that two issues had arisen, namely:

(i) The constitutionality of section 23(3)(b) and (c) of the Road Traffic Act [Chapter 13:01] (“the Road Traffic Act”); and of
(ii) Section 70 of the Police Act.

The applicant pertinently averred that:

“24. During the course of proceedings today, despite the fact that the Commissioner General and the Minister of Home Affairs had not insisted on prescription, today, they insisted that my matter was prescribed.

25. I could not bring legal proceedings within six months as I was ill, and, in any event, mourning the loss of my child.

26. I however contend, that, section 70 of the Police Act is clearly unconstitutional.

27. Why, for instance, should the police have protection when every other defendant, including the President or large corporations like Delta or Econet, do not have the same six months protection.

28. Clearly, section 70 is unconstitutional and I make reference to the judgment of Justice Tsanga in another related matter.”

Two days later, on 16 February 2022, the parties then filed what they termed a Statement of Agreed Facts “for reference to the Constitutional Court in terms of Rule 108(4) of the High Court Rules, SI 202/2021.”

Therein, the parties outlined the facts that they considered to be “common cause”.

However, contrary to the fourth and fifth respondents plea, to which reference has already been made, the parties purported to agree that “the fourth defendant, [the] Commissioner General of Police, had pleaded prescription based on the fact that the summons was issued way after the 8 months provided for by section 70 of the Police Act.”

The request for the referral of the questions relating to the constitutionality of section 23(3)(b) and (c) of the Road Traffic Act and section 70 of the Police Act was heard by the court a quo, per MAKOMO J, on 14 May 2022, on the basis of the applicant's affidavit filed in support of the said request and the Statement of Agreed Facts.

The reasons for the court a quo's determination on the request were delivered on 10 October 2022.

The court a quo concluded, that, the request to refer the question relating to the constitutionality of section 70 of the Police Act was not frivolous and vexatious and accordingly granted the request. However, the request relating to the question of the constitutionality of section 23(3)(b) and (c) of the Road Traffic Act was found to be frivolous and vexatious and was therefore refused.

Consequently, the court a quo only referred the question relating to the constitutionality of section 70 of the Police Act to this Court for determination and stayed the proceedings before it pending the determination of the question referred to this Court.

Sadly, on 25 December 2022, before this matter could be heard and finalised by this Court, Mr Justice MAKOMO, the presiding Judge a quo, passed on.

APPLICANT'S SUBMISSIONS BEFORE THIS COURT

At the commencement of the hearing, the Court directed the parties to advance submissions on the question whether or not the referral was properly made.

Counsel for the applicant submitted, that, the matter was properly referred to this Court.

This, so he submitted, was because, if a constitutional matter arises in non-constitutional proceedings before a lower court, the lower court has no jurisdiction to itself determine the constitutional matter but must refer the matter to this Court.

In counsel for the applicant's view, the fact that the defence of prescription had not been pleaded by the respondents, as defendants, was not a bar to the raising of a constitutional matter.

Further asked during oral submissions whether the death of the presiding judge a quo had any effect on the validity of the referral, counsel for the applicant contended, that, the Judge a quo had become functus officio on the referral and that his judgment referring the constitutional question to this Court remained extant.

As such, the referral can properly be determined by this Court, and, thereafter, the matter can proceed before another judge of the High Court for a final determination of all the issues raised in the pleadings before the court.

FOURTH AND FIFTH RESPONDENTS SUBMISSIONS BEFORE THIS COURT

Counsel for the fourth and fifth respondents submitted, that, although no evidence had been led before the late Mr Justice MAKOMO, the proceedings had indeed commenced before him. She stated that the “special plea” on prescription was raised in the fifth respondent's pre-trial conference minute but conceded that it was not identified as an issue requiring determination at the trial.

On whether the question relating to the constitutionality of section 70 of the Police Act had arisen before the court a quo, it was her submission, that, the issue indeed arose before MAKOMO J.

ISSUES ARISING FOR DETERMINATION

The main issue that arises before this Court is whether the court a quo properly referred the matter to this Court. Put otherwise, this Court essentially has to determine whether or not section 175(4) of the Constitution, regulating the referral of constitutional matters to this Court, was complied with.

A further but incidental issue that arises from the facts of this case is whether the passing on of MAKOMO J had any effect on the referral. Put another way, the question is whether the referral, in any event, became a nullity following his demise.

This Court, in various decided cases, has stressed, that, in respect of matters referred in terms of section 175(4) of the Constitution, it is always obliged to determine whether a referral was properly made.

If a referral is not properly before the Court, it will be disposed of, without further ado, on that ground alone: see S v Nyathi CC16–19…,.; Muhala & Others v Mukokera 2019 (1) ZLR 294 (CC); Nyagura v Ncube & Others 2019 (1) ZLR 521 (CC)…,.; and S v Mwonzora & Others CC09–15…,.

WHETHER OR NOT THE REFERRAL OF THE CONSTITUTIONAL MATTER WAS PROPERLY MADE

The resolution of the question whether the instant referral was properly made requires this Court to examine whether there was a valid plea of prescription before the court a quo, taken on the basis of the prescriptive period set out in section 70 of the Police Act.

There would have been a need for the court a quo to have decided whether the validity of section 70 of the Police Act had been engaged by the facts that were before it the moment a request to refer a constitutional matter to this Court was made.

If the constitutionality of section 70 of the Police Act had not arisen before the court a quo, there would have been no basis to refer a constitutional matter to this Court.

In considering whether there was a valid plea raising the constitutionality of section 70 of the Police Act before the court a quo, there is need for this Court to examine the law governing the raising of special pleas.

Such an examination does not directly involve the interpretation, protection, or enforcement of the Constitution but is a matter connected with a decision on a constitutional matter.

I digress momentarily to discuss what constitutes an issue connected with a decision on a constitutional matter.

Section 167(1)(b) of the Constitution provides that:

“(1) The Constitutional Court —

(a)…,.

(b) Decides only constitutional matters and issues connected with decisions on constitutional matters, in particular, references and applications under section 131(8)(b) and paragraph 9(2) of the Fifth Schedule;”

We have not, as a jurisdiction, had occasion to clearly define what constitutes “issues connected with decisions on constitutional matters” as provided in section 167(1)(b) of the Constitution.

In this regard, it may be necessary to have regard to a number of decisions by the South African Constitutional Court.

Given that this Court only decides constitutional matters, an issue connected with a decision on a constitutional matter must be preceded by a constitutional matter and the determination of the issue must essentially be inseparable from the decision on the constitutional matter.

In Rushesha & Others v Dera & Others CC24–17…, this court expressed the view that the word “connected” in section 167(1)(b) of the Constitution means that the issue must bear a relationship to the decision on a constitutional matter.

In the leading South African case of Alexkor Ltd and Another v Ritchersveld Community and Another 2004 (5) SA 460 (CC)…, the Constitutional Court remarked that “when any factum probandum of a disputed issue is a constitutional matter, then, any factum probans bearing logically on the existence or otherwise of such factum probandum, is itself an issue 'connected with [a] decision on [a] constitutional matter.'”

In S v Basson 2005 (1) SA 171 (CC)…, the court further remarked that “legal and factual matters that need to be decided in order to determine a constitutional matter are issues connected with a decision on a constitutional matter.”

The enquiry that this Court sets out to make, of whether or not section 70 of the Police Act had been engaged and pleaded a quo so as to give rise to a constitutional matter, is clearly an issue connected with a decision on a constitutional matter.

The issue is connected with the decision that this Court is required to make on the constitutional question as to whether or not the present referral is valid.

Any question as to whether or not a referral was made in accordance with the provisions of the Constitution and is valid is no doubt an important question that this court must determine.

In the past, this Court has held that it has no discretion to condone a departure from the Constitutional provisions regulating the referral of constitutional matters: see Mukoko v Commissioner General of Police & Others 2009 (1) ZLR 21 (S)…,. and S v Kisimusi & Others CC01–14…,.

Bearing the above in mind, I now turn to consider whether the provisions of section 70 of the Police Act had been properly engaged in the proceedings before the court a quo so as to give rise to a constitutional matter.

Put another way, the issue that now arises is whether the validity of the prescriptive period in section 70 of the Police Act had been specially pleaded and therefore arose in proceedings before the court a quo.

It is only if the validity of section 70 of the Police Act properly arose in the proceedings that the question of its constitutionality could have arisen.

It is a settled position in our adjectival law, that, the appropriate procedure available in a situation where a party intends to plead the defence of prescription is through a special plea.

In Brooker v Mudhanda & Anor: Peace Mudhanda & Anor 2018 (1) ZLR 33, 38F-G, a decision of the Supreme Court of Zimbabwe, the court remarked as follows at p38F-G:

“The defence of prescription should not be raised by way of exception but must be specifically pleaded. The plea must set out sufficient facts to show on what the defence is based. However, due to its nature, the plea of prescription is a special plea. Such a plea is provided for in the High Court Rules 1971. Order 21 Rule 137 specifies the manner in which a party wishing to rely on a special plea may raise such.”

Similarly, in Tendayi v Twenty Third Century Systems (Pvt) Ltd SC135–20…, the Supreme Court reiterated the position, that, the defence of prescription must be raised as a special plea. In no uncertain terms, the Court stated that:

“It is settled, that, the defence of prescription must be raised as a special plea for the reason, that, a plaintiff confronted with a claim of prescription may wish to replicate to the objection. This is particularly pertinent where a defendant pleads that a claim has prescribed with a plaintiff replicating that prescription has been interrupted.”

Section 70 of the Police Act and Part IV of the Prescription Act [Chapter 08:11] (“the Prescription Act”) are in pari materia. The provisions of the two statutes, considered together, accentuate the need to raise a plea of prescription by way of special plea.

In this regard, I first cite section 70 of the Police Act which states as follows:

“Any civil proceedings instituted against the State or member in respect of anything done or omitted to be done under this Act shall be commenced within eight months after the cause of action has arisen, and notice in writing of any such civil proceedings and the grounds thereof shall be given in terms of the State Liabilities Act [Chapter 8:15].”

In turn, section 13 of the Prescription Act provides that:

“13 Debts to which Part IV applies

(1) This Part shall, save in so far as it is inconsistent with any enactment which —

(a) Provides for a specified period within which —

(i) A claim is to be made; or

(ii) An action is to be instituted in respect of debt; or

(b) Imposes conditions on the institution of an action for the recovery of a debt;
apply to any debt arising on or after the 1st January 1976.”…,.

It is clear, from the foregoing, that, section 13 of the Prescription Act applies to any claim to be made or action to be instituted in respect of a debt except to the extent different provision is made in another statute.

Given that the Police Act provides for a specific prescriptive period for actions against the State, section 13(1) of the Prescription Act must be interpreted to mean that the Prescription Act applies to and regulates the defence of prescription to the extent that its provisions would not be inconsistent with the Police Act, and, in particular, the prescriptive period delineated in section 70 of that Act.

There are provisions of the Prescription Act that have direct application in proceedings in which a special plea has been raised on the basis of section 70 of the Police Act.

The first is section 2 of the Prescription Act which defines the term “debt” to mean, without limiting the meaning of the term, anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise.

The second significant provision of the Prescription Act is section 16, which states thus:

“16 When prescription begins to run

(1) Subject to subsections (2) and (3), prescription shall commence to run as soon as a debt is due.

(2) If a debtor wilfully prevents his creditor from becoming aware of the existence of a debt, prescription shall not commence to run until the creditor becomes aware of the existence of the debt.

(3) A debt shall not be deemed to be due until the creditor becomes aware of the 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.”…,.

Section 17 then provides, that, if a creditor is prevented by superior force from interrupting the running of prescription in terms section 19(2), and the period of prescription would, but for the subsection, be completed before or on or within one year after the date on which the relevant impediment has ceased to exist, the period of prescription shall not be completed before the expiration of a period of one year which follows that date.

Section 18, in turn, provides for the interruption of prescription by an acknowledgement of liability whilst section 19 itemises instances of judicial interruption of prescription.

Several decisions of the courts in this jurisdiction have passed upon the necessity of determining when prescription began to run in any action in which the defence of prescription is raised and whether or not it was interrupted.

It is trite, that, as a general proposition, prescription generally begins to run from the date when the event giving rise to the claim occurs. However, the date on which a debt becomes due may be different. Prescription may also be delayed or interrupted.

For this reason, in the majority of matters coming before the courts, there is usually need for evidence to be led to establish when it started to run. The other party may also wish to lead evidence to show that the running of prescription was delayed or interrupted.

Thus, in Brooker v Mudhanda & Anor: Peace Mudhanda & Anor 2018 (1) ZLR at 39F, the Court pertinently remarked that:

“In a plea of prescription, the onus is on the defendant to show that the claim is prescribed, but if, in reply to the plea, the plaintiff alleges that prescription was interrupted or waived, the onus would be on the plaintiff to show that it was so interrupted or waived.”

And further, at 41A–B, the Court added:

“…, a special plea enables a litigant to obtain prompt resolution of a dispute because it either delays the proceedings or quashes them. Because of its ability to extinguish a claim, there is need for a judge faced with such a plea to hear evidence from the parties.”…,.

In light of the above, the defence of prescription has to be specifically pleaded and properly established by evidence.

Indeed, the Prescription Act itself provides, in section 20, that the defence of prescription must be specifically pleaded.

In casu, it is evident that the defence of prescription was not specifically pleaded.

A reading of the record of proceedings shows, that, although the issue first arose only in the fourth and fifth respondents draft pre-trial conference minute, it was never persisted with. Nor was any attempt made by the respondents, as fourth and fifth defendants, to amend their plea in order to introduce such a defence.

Before us, counsel for the fourth and fifth respondents accepted this to be the correct position.

The pleadings did not reflect that prescription was an issue. As a defence, it was not even mentioned during the pretrial conference that took place before a judge or in the conference minute prepared shortly thereafter. When the parties appeared before the court a quo on the first day of trial, it was not one of the issues requiring determination by the court.

In its judgment on the request to refer a constitutional matter to this Court, the court a quo, clearly misled by the Statement of Agreed Facts, incorrectly stated that “on filing her summons for damages and other claims, the applicant was met with a plea of prescription” by the fourth and fifth respondents in terms of section 70 of the Police Act.

That could not have been the case given that no such plea of prescription was ever made.

I conclude, therefore, that, the defence of prescription was never properly raised.

It is apparent, that, counsel for both the applicant and the fourth and fifth respondents had informal discussions just before the commencement of the trial. It was during these discussions that it appears the respondents indicated they were of the view that the claim had prescribed.

In the circumstances of this case, one can safely assume that the issue arose in vacuo.

The court a quo could not purport to refer a constitutional matter to this Court in respect of an issue that was not procedurally before it. Accordingly, the referral to this Court was not proper as the issue referred to this Court was not necessary for the court a quo to dispose of any of the issues arising in the matter before it.

In addition, without the benefit of a replication from the applicant on the claim of prescription informally raised by the fourth and fifth respondents, the court could not have assumed that prescription had run its course. The procedure for a referral made it incumbent for the court a quo to verify, in light of the pleadings filed in the matter before it, the accuracy of the Statement of Agreed Facts.

In accordance with the procedure set out in several judgments of this Court, there was a need for the court a quo to determine when the debt became due.

A reading of section 70 of the Police Act reveals, that, the court a quo had to make a specific finding that eight months had elapsed after the applicant obtained knowledge that her cause of action against the fourth and fifth respondents had arisen. The court should also have determined when the debt became due and whether the fact of the applicant's stay in hospital, captured in the parties Statement of Agreed Facts, would have, pursuant to section 17(1) of the Act, had any effect on such prescription.

In the absence of these factual findings, the referral was fatally defective.

In light of the foregoing, the undoubted corollary must be, that, the referral was improper and the matter should be disposed of on this basis.

CC01-14 : KISIMUSI DHLAMINI and GANDI MUDZINGWA and CHINOTO ZULU and ANDRISON MANYERE and ZACHARIAH NKOMO and REGIS MUJEYE and MAPFUMO GARUTSA vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and CHEDA AJA

This is a referral by the High Court for determination under section 24(2) of the Constitution of Zimbabwe of questions of alleged violations of the fundamental rights of the applicants guaranteed under sections 13(1) (right to personal liberty); 15(1) (right not to be subjected to torture or to inhuman or degrading treatment); and 18(1) (right to the protection of the law).

The applicants seek the following relief:

1. A declaration that their rights, in terms of sections 13(1), 15(1) and 18(1) of the Constitution have been violated.

2. An order for a permanent stay of the criminal proceedings before the High Court.

3. An order for mandamus directing the Attorney General to act in terms of section 76(4a) of the Constitution of Zimbabwe and investigate the alleged offences committed against the applicants.

4. A special order as to costs.

At the inception of the hearing before this Court, counsel for the respondent raised four points in limine.

The most important point, the determination of which disposes of the matter, is that the referral to the Supreme Court, by the High Court, of the questions of the alleged violations of the rights of the applicants, at the stage of the proceedings in which it was done, is prohibited by section 24(3) of the Constitution.

The point in limine is properly taken as the referral was incompetent.

The facts are as follows:

It was alleged by the applicants, at their initial remand hearing before the Magistrates Court, that, they were abducted from various places in Harare, Norton, and Masvingo between 25 November 2008 and 13 December 2008 by members of the State security agency.

The applicants alleged, that, they were taken to a secret detention centre, which they later found out to be Goromonzi Prison, where they were kept incommunicado until 22 December 2008. They were allegedly denied access to families, legal counsel, and medical treatment for injuries sustained as a result of torture inflicted by the abductors.

For the purposes of this judgment, the following are the facts which appear from the affidavits of all the applicants:

1. The modus operandi used in the alleged abductions is that each applicant had hands handcuffed behind his back, blindfolded, and driven around to disorientate. They were all detained at Goromonzi Prison.

2. The applicants were released from illegal detention on 22 December 2008 into the custody of the police and detained at various police stations.

3. The alleged abductors tried to conceal the location of their detention centre.

4. Statements were recorded from the applicants on 22 and 23 December 2008 in the absence of their legal representatives.

5. All the applicants were blindfolded when handed over to police stations on 22 December 2008, and when taken to record statements on 22 and 23 December 2008, in a bid to prevent them from seeing their abductors.

On 29 December 2008, the applicants were taken to Rotten Row Magistrates Court for initial remand.

They were each charged with insurgency, banditry, sabotage, or terrorism in contravention of section 23(1)(a)(i) and (ii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Code”) alternatively, malicious damage to property in contravention of section 140 of the Criminal Code.

Medical affidavits from two doctors who examined the applicants while in custody were produced to the court a quo. The reports were to the effect, that, the applicants had evidence of healed bodily injuries consistent with torture. They also exhibited clinical symptoms of psychological trauma.

The magistrate ordered an investigation into the allegations of abduction and torture.

Senior Assistant Commissioner Nyathi tendered his report to the court on 21 January 2009. On the same day, the then Minister of State Security in the President's office deposed to an affidavit in terms of section 296 of the Criminal Procedure and Evidence Act [Chapter 9:07].

He declined to disclose the places where the applicants had been detained and identities of State security agents involved in the investigation of the allegations against the applicants. The Minister denied that State security agents were involved in the alleged abduction, torture, or illegal detention of the applicants - admitting only that they were involved in investigating them for the alleged commission of the offences with which they were charged.

It is common cause, that, the applicants challenged the application by the State to have them placed on remand. They raised, at that stage, the question of their detention as a violation of their fundamental right to personal liberty.

They did not request the magistrate to refer any such question to the Supreme Court for determination.

The magistrate granted the application by the State and placed the applicants on remand on the ground that there was a reasonable suspicion that they had committed the offences with which they were charged.

If the applicants were of the view, that, the decision to place them on remand was a violation of their fundamental right to the protection of the law, they could, as an exceptional remedy, have made that allegation in an application to the Supreme Court for redress in terms of section 24(1) of the Constitution had they requested, before the decision to remand them was made, that the question of violation of their right to personal liberty be referred to the Supreme Court for determination and that request had been refused on the ground that the raising of the question was frivolous and vexatious.

The Supreme Court would then have decided whether the decision to place the applicants on remand was a violation of their right to the protection of the law under section 18(1) of the Constitution.

They did not invoke the provisions of section 24(2) of the Constitution at the time they ought to have done.

The applicants accepted the legality of the decision to place them on remand on the basis of which they were arraigned before the High Court in July 2009.

Prima facie, in finding that there was reasonable suspicion that the applicants committed the offences with which they were charged, the magistrate did not violate the applicants right to personal liberty.

On 25 February 2009, the High Court held, in cases HC42/09 and HC147/09, on review, that, the decision of the magistrate to place the applicants on remand was based on a proper application of the principle and finding on the facts that there was a reasonable suspicion that the applicants had committed the offences of which they were charged.

It is clear that section 24(2)of the Constitution was designed to enable the Supreme Court to adjudicate and consider the question whether there has been or there is likely to be a contravention of the Declaration of Rights, as a court of first instance exercising original jurisdiction.

Section 24(2) of the Constitution provides that:

“(2) If in any proceedings in the High Court, or in any court subordinate to the High Court, any question arises as to the contravention of the Declaration of Rights, the person presiding in that court may, and if so requested by any party to the proceedings, shall, refer the question to the Supreme Court unless, in his opinion, the raising of the question is merely frivolous or vexatious.”

Counsel for the respondent argued, that, what was required of the applicants was the raising of a question of a contravention of the Declaration of Rights and a request that the presiding magistrate refer the question to the Supreme Court for determination. In this case, the question was raised before the magistrate at the initial remand without a request that it be referred to the Supreme Court for determination.

Once the decision to remand the applicants was made, on the ground that there was a reasonable suspicion of their having committed the offences with which they were charged, and that position still prevailed at the time they appeared in the High Court for trial, the prosecution could not be stopped on the basis that they had been tortured or subjected to inhuman or degrading treatment.

There was no legal basis on which the trial judge could refer the questions of contraventions of sections 13(1), 15(1) and 18(1) of the Constitution to the Supreme Court for determination under section 24(2) of the Constitution because the question of the existence of a reasonable suspicion of the applicants having committed the offences with which they were charged had already been determined justifying their arraignment before the High Court.

The High Court could not turn the proceedings before it into an inquiry into the correctness or otherwise of the decision of the Magistrates Court to place the applicants on remand. It could not seek to have the correctness of that decision impugned through the procedure under section 24(2) of the Constitution because the Supreme Court would no longer be exercising original jurisdiction in the circumstances.

The court would not be determining the question of violation of the right to personal liberty but reviewing the decision of the Magistrates Court.

Section 24(3) of the Constitution provides that:

“(3) Where in any proceedings such as are mentioned in subsection (2) any such question as is therein mentioned is not referred to the Supreme Court, then, without prejudice to the right to raise that question on any appeal from the determination of the court in those proceedings, no application for the determination of that question shall lie to the Supreme Court under subsection (1).”

The procedure adopted by the High Court in this case had the effect of interrupting the criminal proceedings before determination, which, in a criminal case, is when the accused is convicted and the final sentence delivered.

The decision on the question whether there was a reasonable suspicion of the applicants having committed the offences they were charged with to justify placing them on remand had been made by a court of competent jurisdiction, and, in the absence of a request that the question whether placing them on remand was likely to violate their right to personal liberty be referred to it for determination, the Supreme Court could not be prevailed upon to exercise its original jurisdiction on the question of the contravention of sections 13(1) and 15(1) of the Constitution.

The case of Muchero & Anor v Attorney General 2000 (2) ZLR 286 (SC) is apposite.

The facts were that the applicants, who were on bail on allegations of fraud and corruption, challenged the right of the State to continue to remand them for trial and applied for their removal from remand on the grounds that no reasonable suspicion existed that they had committed an offence, as required by section 13(2)(e) of the Constitution.

Having heard evidence, the magistrate refused the application.

The applicants counsel requested, that, the question of whether section 13(2)(e) of the Constitution had been contravened be referred to the Supreme Court under section 24(2) of the Constitution. The matter was referred to the Supreme Court.

The headnote reads:

“The referral was incompetent. It should have been requested before the magistrate rendered a decision. Once he had made a decision, the matter could only be dealt with by way of appeal or review.”…,.

In this case, there was no request for a referral of the question, that, placing the applicants on remand was likely to violate their right to personal liberty protected by section 13(1) of the Constitution before the decision was made by the magistrate to remand them on the ground that there was a reasonable suspicion of their having committed the offences with which they were charged.

The magistrate made the decision to remand the applicants for trial notwithstanding the question of the alleged violation of their right to personal liberty having been raised because there was no request for a referral.

The question was therefore not referred, and, the decision of the magistrate, on review, was found to have been consistent with the factors the court was required to consider under section 13(2)(e) of the Constitution.

Section 24(3) of the Constitution applied to the proceedings.

In Jestina Mungarewa Mukoko v Commissioner General of Police & 4 Ors SC03-09, CHIDYAUSIKU CJ, at p2 of the cyclostyled judgment, said:

“Section 24 of the Constitution is peremptory. This court has no discretion to condone a departure from compliance with section 24 of the Constitution. Consequently, failure to comply with the procedure set out in section 24 of the Constitution is fatal to any Court application made in terms thereof.”

The learned CHIEF JUSTICE went on to say at p3:

“Thus, when a matter is before the High Court or any court subordinate to the High Court, such as the Magistrates Court in this case, the question of the contravention of the guaranteed right should be referred to the Supreme Court by the court mero motu or at the instance of any one of the parties to the proceedings.”

Section 24(2) of the Constitution clearly precludes a situation where the question is referred to the Supreme Court in respect of a matter which is no longer necessary for resolution by the lower court in the determination of the dispute before it.

If that were to be permitted, it would mean that the Supreme Court would not be rendering a decision on the question as a court of first instance in the exercise of original jurisdiction.

It was no longer necessary for the High Court to place the applicants on remand, and, ipso facto, to consider whether or not placing them on remand was likely to violate their right to personal liberty; the decision to place the applicants on remand having already been made by the Magistrates Court.

The applicants were before the High Court for trial on the basis of the decision that there was a reasonable suspicion of their having committed the offences with which they were charged.

Accordingly, the matter is struck off the roll with no order as to costs.

CC09-15 : DOUGLAS MWONZORA and OTHERS vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and MAVANGIRA AJCC

After perusing the papers filed of record and hearing counsel, the court dismissed the application and indicated that the reasons for the order would follow in due course.What follow are the reasons for that order.FACTUAL BACKGROUNDThe applicants appeared before a Magistrate at Nyanga on 18 February 2011 facing charges of ...

FACTUAL BACKGROUND

The applicants appeared before a Magistrate at Nyanga on 18 February 2011 facing charges of public violence as defined in section 36 of the Criminal Law [Codification and Reform] Act [Chapter 9:23].

The applicants were legally represented.

At the hearing, the applicants raised a number of complaints regarding the manner of their arrest. The matter was thereafter postponed on a number of occasions to enable the Court to deal with the various issues raised.

On a date that is unclear on the record, but in May 2011, the applicants, without giving notice to the prosecution, applied to the magistrate for the matter to be referred to the Supreme Court in terms of section 24(2) of the former Constitution of Zimbabwe.

They tendered a written application in which they chronicled various violations of their constitutional rights at the instance of the State and other persons.

In the application, the applicants raised the following issues:

(i) Whether or not the manner of their arrest violated their right to liberty protected by section 13(1) of the former Constitution.

(ii) Whether or not the failure by the police to apprehend the persons who had abducted, tortured, and assaulted them violated their right to the protection of the law enshrined in section 18(1) of the Constitution.

(iii) Whether or not the discretion to arrest bestowed upon the police was not improperly exercised.

(iv) Whether or not the assaults perpetrated upon them, as well as the subsequent torture and denial of medical attention, constituted inhuman and degrading treatment.

(v) Whether or not the failure by the State to cause investigations to be carried out into these complaints violated their rights under section 18(1) and 18(1)(a) of the Constitution.

(vi) Whether or not their detention at Nyamaropa and Nyanga police stations was under conditions that constituted inhuman and degrading treatment.

(vii) Whether or not section 121(3) of the Criminal Procedure and Evidence Act [Chapter 9:07], which provides that a person who has been granted bail by a court shall remain in custody for a period of up to seven (7) days once the Attorney-General indicates that he intends to appeal the decision, violates their right to the protection of the law.

During the hearing before the Magistrate, the applicants did not lead any evidence to substantiate these claims.

In his response, the prosecutor indicated, that, the application for referral was opposed.

He denied the suggestion that the police did not have a reasonable suspicion that a crime had been committed at the time they arrested the applicants.

In a terse judgment, the magistrate held that the issues of over detention and alleged kidnapping of the applicants deserved “the attention of the Supreme Court, which court would need to make a proper inquiry.”

On that basis, he then referred the matter to the Supreme Court.

ISSUES FOR DETERMINATION BEFORE THIS COURT

In his submissions before us, counsel for the applicants submitted, that, the rights of the applicants have been violated in several respects. He therefore implored the court to issue various declaraturs, and, as consequent relief, an order permanently staying the criminal proceedings they were being subjected to.

On the other hand, counsel for the State urged this Court to find, that, no proper inquiry had been carried out before the Magistrates Court, and, most importantly, the failure by the applicants to lead evidence to substantiate their allegations was fatal.

He therefore prayed for the dismissal of the application.

WHETHER THE MATTER WAS PROPERLY REFERRED

The position is settled, that, a judicial officer faced with an application for referral has no option but to refer, unless, in the opinion of the Court, the raising of the question is frivolous and vexatious: see Martin v Attorney-General 1993 (1) ZLR 153 (S)…,.

The Magistrate at Nyanga did not, as he should have, ask himself whether the issues raised were not frivolous and vexatious.

Indeed, it appears the magistrate was not sure as to what was required of him.

He made no finding that the application was not frivolous or vexatious. In justifying the referral of the issues to the Supreme Court, he stated:

“Over-detention and alleged kidnapping of some of the accused persons would need the Supreme Court to look into the matter.

It is therefore clear as the issues complained of are also linked to the death of one of the accused persons. The Supreme Court would need therefore to make a proper enquiry (sic).

The court is of the decision, that, the issues raised concerning the declaration of rights are referred to Supreme Court for determination.”

The above remarks clearly demonstrate, that, the Magistrate had no idea what he was supposed to do.

He seemed to think, that, the factual inquiry was to be undertaken by the Supreme Court – clearly a misdirection on his part.

This misdirection resulted in an even more serious irregularity, to which I now turn.

AN APPLICANT MUST ADDUCE EVIDENCE

Various allegations of impropriety had been made against the police and supporters of the Zanu (PF) Political Party. No evidence was led to substantiate these.

The prosecutor made it clear that the facts were in dispute.

Before permitting an accused person to raise the question whether his constitutional rights have been violated, it is a requirement that ample written notice of such an application should be given to the State. This is because the prosecution is entitled to be afforded the time and opportunity to investigate the complaint and to be ready to adduce evidence, if necessary: see S v Banga 1995 (2) ZLR 297.

Further, it is insufficient to make a statement from the bar, as the applicants legal practitioners did in this case.

The applicants should have been called to testify under oath in order to substantiate their complaints that their rights had been violated.

Had that happened, the prosecutor would then have had the opportunity to cross-examine the applicants, and, thereafter, to adduce such evidence as he may have considered necessary to contradict the allegations made by the applicants.

Only after hearing evidence from both sides would the magistrate have been in a position to make findings of fact, which findings he would have been bound to take into account in deciding whether or not to refer the issues raised to the Supreme Court.

In short, it is the responsibility of the court referring a matter to resolve any disputes of fact before making such a referral.

The absence of oral evidence can be fatal to an application of this nature because it completely disables findings to be made on the complaints raised. It is on the basis of those findings that the Supreme Court is called upon to deal with the allegations raised, and, where necessary, afford appropriate relief.

In S v Banga 1995 (2) ZLR 297 GUBBAY CJ remarked…,:

“I trust that I have made it clear, that, it is essential for an accused, who requests a referral to this court of an alleged contravention of the Declaration of Rights, to ensure that evidence is placed before the lower court. It is on that evidence that the opinion has to be expressed as to whether the question raised is merely frivolous or vexatious. It is on that record that the Supreme Court hears argument and then decides if a fundamental right had been infringed. Only in exceptional circumstances will an applicant be permitted to supplement the record of the proceedings before the lower court by the production of affidavits.”

The above remarks have been repeated by this Court in several other cases since then; see, for example, the following:

Matutu v S SC34-13; Hellen Matiashe v (1) The Honourable Magistrate Mahwe N.O. (2) The Attorney General of Zimbabwe CC12-14.

APPLICATION NOT PROPERLY REFERRED

This application was therefore not properly referred to the Supreme Court sitting as a Constitutional Court.

In the circumstances, the Court had no option but to dismiss the application.

CC12-14 : HELEN MATIASHE vs HONOURABLE MAGISTRATE MAHWE N.O. and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and PATEL JA

In this application, the applicant seeks the following relief:

1. A declaration that the refusal by the Magistrate to refer the issues raised by the applicant to the Supreme Court is wrong at law, and, consequently, a breach of the applicant's right to the protection of the law enshrined in section 18(1) of the former Constitution of Zimbabwe.

2. A declaration that the decision by the Attorney-General to proceed with the prosecution of the applicant, more than five years after the alleged commission of the offence, is a violation of the applicant's right to the protection of the law under section 18 of the former Constitution.

3. A declaration that the present application is properly before the Supreme Court.

4. An order, that, the prosecution of the applicant, being a violation of her right under section 18, such prosecution be and is hereby permanently stayed.

5. An order that the respondents pay the costs of this application.

THE BACKGROUND

The applicant and one Cecil Rhaniel Chengetai Muderede (“Muderede”) were engaged in an intimate relationship until about 2005 when the relationship came to an end. At the centre of the dispute giving rise to the present proceedings are two properties:

The first is Number 4 Goodall Avenue, Emerald Hill, Harare registered in the name of Helce Enterprises (Pvt) Ltd, a company incorporated according to the laws of Zimbabwe. It is common cause, that, from the time of its incorporation, the applicant's name appeared on the official records of the company as one of the two directors of the company.

The second property is Number 106 Lomagundi Road, Avondale, registered in the name of another company, Drisdane Investments (Pvt) Limited. It is not in dispute that it was Cecil Rhaniel Chengetai Muderede who purchased this property.

In May 2004, Cecil Rhaniel Chengetai Muderede was specified under the Prevention of Corruption Act [Chapter 9:16].

Following this development, the applicant proceeded to the offices of the Registrar of Companies, where, using the specification of Cecil Rhaniel Chengetai Muderede, she was able to remove the name of Muderede as a director of Helce Enterprises, and, in his place, had the names of her brothers, Kumbirai Matiashe and Kudzai Matiashe, substituted as directors.

On the strength of a Board resolution passed by the new Board, the applicant was able to obtain a duplicate copy of the Deed of Transfer for Number 4, Goodall Avenue, Emerald Hill. The applicant was able, using the same modus operandi, to get another duplicate copy of the title deeds for Number 106 Lomagundi Road, Avondale.

On 7 June 2007, Cecil Rhaniel Chengetai Muderede filed a complaint of fraud against the applicant with the police.

The allegation, on both counts, was that the applicant had misrepresented that Cecil Rhaniel Chengetai Muderede had resigned as a director of Helce Enterprises (Private) Limited and Drisdane Investments (Private) Limited, and, in his place, had appointed her two brothers, Kundai Matiashe and Kumbirai Matiashe. It was alleged, that, on the basis of the misrepresentation, the applicant managed to get duplicate title deeds for both properties.

On 25 June 2007, the applicant made a statement to the police. She was, thereafter, placed on remand.

On 26 February 2008, the charges against the applicant were withdrawn by the State.

However, on 17 July 2012, the applicant was served with summons to appear in court on 6 August 2012.

On 21 August 2012, the applicant then filed an application in the Magistrates Court seeking a declaration that the decision by the Attorney-General to try her after six years violated her right to the protection of the law enshrined in section 18 of the Constitution and that the matter be referred to the Supreme Court in terms of section 24(2) of the former Constitution.

In papers filed before the Magistrates Court, the appellant stated, that, the delay of six years during which no trial had taken place was wholly attributable to the State.

She had always been available to attend court to answer any allegations. Further, she stated that one of her defence witnesses, Doctor Iris Sarupinda, who was present during the time she had a relationship with Cecil Rhaniel Chengetai Muderede, had relocated to Europe and she was not aware of her present whereabouts.

The appellant did not give oral evidence in support of her application.

In the Magistrates Court, it was not in dispute that on 24 July 2009 and 2 November 2010 the applicant filed a complaint with the police against Cecil Rhaniel Chengetai Muderede and his wife Michelle. In the complaint, she alleged that the two had fraudulently used the title deeds for the two properties to secure mortgage loans in favour of Shankuru Estates. She also complained that a Mr Magwere, from the office of the Registrar of Deeds, a Mr Shadreck Beni from Metropolitan Bank, and one Mujokoro, a legal practitioner, had colluded with Muderede and his wife in the fraudulent registration of the mortgage bonds over the two properties.

The State opposed the application for referral of the matter to this Court and led evidence from the Investigating Officer, Detective Inspector Charles Chirove.

The Investigating Officer told the court, that, a number of factors had contributed to the delay in the prosecution of the matter. In 2008 and 2009, the country experienced a severe economic meltdown which affected the ability of the police to carry out its functions. At one stage, the police received reports that Cecil Rhaniel Chengetai Muderede was in South Africa.

Because Cecil Rhaniel Chengetai Muderede could not be located, the charges against the applicant were withdrawn.

Thereafter, in 2009 and 2010, the applicant filed reports with the police, based on the same facts, against Cecil Rhaniel Chengetai Muderede, his wife, and other persons resulting in the arrest of Muderede on fraud charges.

When both cases were sent to court, Cecil Rhaniel Chengetai Muderede queried why his complaint, which had been filed earlier, was being overtaken by the complaint filed later by the applicant. Muderede even approached the Anti-Corruption Commission alleging that the police were giving the applicant preferential treatment.

The applicant also harassed the police and even made complaints to Police General Headquarters against the witness and several of his fellow officers. She was saying she wanted to be consulted before the police made any decision on this matter.

He told the court he formed the opinion that the applicant was throwing spanners into the works to ensure that the matter went nowhere.

In an effort to make some progress, the State then reached an agreement with the applicant and Cecil Rhaniel Chengetai Muderede, that, the case in which Muderede was an accused was to be tried first. In the event that Muderede was convicted, then, the case in which he was complainant would die a natural death. However, in the event that he was acquitted, then, the case in which the applicant was an accused would then commence.

As it so happened, Cecil Rhaniel Chengetai Muderede was acquitted in 2012 as a result of which the applicant was then summoned to appear in court.

It was his evidence, that, it was the applicant who was largely to blame for the delay.

The Magistrates Court was of the view, that, since the applicant had participated in the agreement which had contributed to the delay she cannot now be heard to complain.

On that basis, the court found the application to be frivolous and vexatious.

The court further found, that, the application was an attempt to further delay the proceedings. The court therefore dismissed the application.

Following that decision, the applicant filed the present application in terms of section 24(1) of the former Constitution.

THE ISSUES FOR DETERMINATION

It seems to me that the issues that arise for determination are twofold. These are:

(i) Firstly, whether the matter has been properly brought before this Court in terms of section 24(1) of the former Constitution.

(ii) Secondly, if so, whether the applicant is entitled to a permanent stay of proceedings.

WHETHER THE MATTER IS PROPERLY BEFORE THIS COURT

In dismissing the application for the referral of the matter to the Supreme Court, the magistrate commented:

“Accused now wants to renege from her commitment that she would only be prosecuted if only Cyril Muderede was acquitted because the facts forming the basis of the court charges were similar. Cyril Muderede has now been acquitted, so, the natural interpretation of their agreement should follow. Accused participated in circumstances which caused the delay so she should not cry foul, because, if she had no hand in this matter, the State could have proceeded to cause the trial of both matters at the same time but in different courts.

Accordingly, I find that the application is just meant to further delay proceedings and it is frivolous and vexatious. Accordingly, the application is dismissed.”

It is common cause, that, at the time of the making of the application, there had been a delay of over five years in the prosecution of the matter. That this delay was presumptively prejudicial is without doubt.

The applicant was entitled to challenge the decision of the State to prosecute her on a charge of fraud in respect of which she had been charged more than five years previously. The delay was such as to trigger an inquiry into the possible violation of the applicant's rights to the protection of the law.

It is clear from his reasons for dismissing the request for referral, that, the Magistrate did not ask himself whether a constitutional issue did arise from the proceedings.

He considered that the applicant had contributed to the delay and that she was trying to further delay the day of reckoning. On that basis, alone, he found the application to be frivolous and vexatious.

I am satisfied that the Magistrate was wrong in determining the application on the basis of who was to blame for the delay.

As counsel for the applicant correctly submitted, the Magistrate asked himself the wrong question and inevitably came to the wrong conclusion.

Indeed, the State conceded that the decision to refuse to refer the application was wrong and that it violated the applicant's right to the protection of the law as provided in section 18(1) of the former Constitution.

In these circumstances, the applicant was entitled to approach this Court directly: see Martin v Attorney General & Another 1993 (1) ZLR 153 (S)…,.; Mukoko v Commissioner-General of Police & Ors 2009 (1) ZLR 21, 24B.

This Court must now place itself in the position it would have been in had the Magistrate, as he ought to have done, referred to it the question raised before him.

HH329-13 : RICHARD JAMBO vs CHURCH OF THE PROVINCE OF CENTRAL AFRICA and ANGLICAN DIOCESE OF MASVINGO and DEPUTY SHERIFF CHIVHU N.O.
Ruled By: GUVAVA J

This matter was placed before me, on a certificate of urgency, in terms of Rule 242 of the High Court Rules as amended. I dismissed the application with costs because of the preliminary issues raised.

The applicant has requested written reasons for my decision. These are they.

The applicant filed an urgent application for stay of execution. The interim relief is in the following terms:

“(a) The 1st, 2nd, and 3rd respondents be and are hereby ordered to stay eviction and removal of the applicant from No.2 Daramombe High School.

(b) The 1st and 2nd respondents shall bear the costs of this application on a legal practitioner client scale.”

The facts of the matter, as set out in the applicant's founding affidavit, may be summarized as follows:

The applicant is employed as a boarding master at Daramombe High School. The first respondent is the Church of the Province of Central Africa, a registered religious organization. The second respondent is the Anglican Dioceses of Masvingo, a division of the first respondent.

The third respondent is the Deputy Sheriff, cited in his official capacity.

On 26 April 2000, the applicant was appointed as the boarding master of Daramombe High School. He was furnished with a house, being House No.2 Daramombe Mission. On or around 4 May 2000 to February 2009 the applicant was demoted to the post of caretaker and transferred to St Michaels Secondary School near Dorowa Mine in Buhera.

The applicant challenged his demotion and an arbitral award was made in his favour on 9 July 2009 and he was reinstated back to the post of boarding master at Daramombe High School.

On 12 December 2012, he was served with an order for his eviction from House Number 2 Daramombe Mission and to hand over all the Mission property in his possession to the first respondent.

The warrant of ejectment which was attached to his Notice of Ejectment does not cite the applicant as a party to the proceedings.

The applicant claims that there is no basis to evict him as there is no order against him.

He also states, that, the Supreme Court judgment SC48-12 does not cite him as a party and he does not claim occupation of the property through the Diocesan Trustees for the Diocese of Harare.

The application was opposed by the first and second respondents.

Counsel for the first and second respondents raised four points in limine:

(i) He argued, firstly, that, the application was not filed in accordance with Rule 241 of the High Court Rules. He submitted, that, on that basis alone, the application should be dismissed as there is no application for condonation for the failure to comply with the Rules;

(ii) Secondly, he submitted that the matter was not urgent as contemplated by the rules of the court;

(iii) Thirdly, he submitted that the applicant had not disclosed material facts to the court with regards to his case; and, finally

(iv) That, the second respondent should not have been cited as a party as it is not a persona but a geographical area.

I will deal with each of the points which were raised in limine.

1. Non-Compliance with Rule 241(1) of High Court Rules

It was submitted, that, the applicant's chamber application does not comply with Rule 241(1) of the High Court Rules.

In terms of this Rule, the applicant must set out the facts upon which the application is based in Form 29B. The applicant did not attach Form 29B to the application and did not apply for condonation for his failure to comply with the rules.

The applicant's legal practitioner conceded, in argument, that, he had not complied with Rule 241(1) of the High Court Rules. He, however, argued that this did not invalidate the application and asked the court to condone the non-compliance with the rules.

Counsel for the first and second respondents relied on the case of Zimbabwe Open University v Madzombe 2009 (1) ZLR 101 where this court held, that, failure to comply with the provisions of Rule 230 of the High Court Rules 1972 means that the application was fatally defective.

In that case, the matter was struck off the roll as the court held that there was a failure to comply with the Rules, and, the failure to make an application for condonation showed a cavalier approach to compliance with the Rules which should be discouraged.

I agree entirely with the submissions made.

This court has stated, in a number of judgments of this court, that, parties are obliged to comply with the Rules. Where there is a non-compliance, the applicant must apply for condonation and give reasons for such failure to comply with the Rules: see also Jensen v Avacalos 1993 (1) ZLR 216 (SC).

In this case, the applicant's legal practitioner made no effort to comply with this Rule despite the fact that the point was raised in the respondents opposing affidavit. The request to the court, to condone the non-compliance, was made cursorily at the hearing as if the grant of such condonation is always there for the asking.

It seems to me, that, legal practitioners must be reminded that there is an obligation to comply with the rules of this court.

An examination of Rule 241 of the High Court Rules shows, that, the wording of the provision is obligatory. It states as follows:

“(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….,.”…,.

Clearly, where a party fails to comply with the Rules there must be a plausible reason why there has been a failure to comply.

In this case, the attitude of the applicant was that such non-compliance must be granted by the court, even though no explanation has been proffered for such failure. The applicant's counsel merely submitted, that, the defect was not material enough to vitiate the application.

In my view, this is not sufficient, and, on this basis alone, I would dismiss the application.

2. Application is not Urgent/ Material Non-Disclosure of Facts

The applicant submitted, that, he acted timeously as he approached the court as soon as he was served with the Notice of Eviction.

It was submitted by counsel for the applicant, that, as the applicant was not cited as a respondent in the case of The Church of the Province of Central Africa v The Diocesan Trustees For The Diocese of Harare SC48-12 (the Supreme Court Judgment) it should not apply to him.

I was, however, not persuaded by the stance adopted by the applicant.

The background to the Supreme Court Judgment, The Church of the Province of Central Africa v The Diocesan Trustees For The Diocese of Harare SC48-12, was that in 2007 a dispute arose between the respondents and the Diocesan Trustees of the Dioceses of Harare. The issue was whether the people who had been members of the Board of Trustees for the Dioceses of Harare withdrew their membership from the first respondent and thereby lost their right to control property such as church buildings, houses, schools, motor vehicles, and funds in the bank.

The Supreme Court, in its judgment, ordered that the Diocesan Trustees for the Dioceses of Harare should deliver all the properties to the first respondent.

Prior to this judgment, the Trustees of the Dioceses of Harare had taken control of all the properties and appointed its own employees after evicting the first respondent's employees.

The Trustees for the Dioceses of Harare also re-appointed some employees who were already in the employ of the first respondent. The applicant appears to have fallen in this category of persons as he had been previously employed by the first respondent.

It was apparent to me, that, the issue of urgency should be dealt with together with the issue of the failure to disclose material facts to the court as it seemed to me the points were interlinked.

It was submitted by the respondent's counsel, that, the applicant deliberately failed to disclose to the court that he had been appointed to the post of boarding master through Bishop Kunonga and the Anglican Church of the Province of Zimbabwe.

In order to confirm this assertion, the first respondent attached to its opposing papers a copy of a letter from the Anglican Diocese of Harare, dated 23 April 2012, appointing the applicant to the post of Boarding Master with effect from 1 October 2011. The applicant accepted the appointment by the Anglican Church of the Province of Zimbabwe.

The applicant did not disclose these facts to the court in his founding affidavit.

It was quite apparent from the papers filed, that, the applicant was re-appointed by the Anglican Church of the Province of Zimbabwe.

The first respondent, following the Supreme Court judgment, issued out writs of execution to recover all the immovable properties - including the property occupied by the applicant.

The applicant should have been aware that his occupation of the property would be affected by the Supreme Court judgment as his appointment was as a result of the Anglican Church of the Province of Zimbabwe as he was no longer in the employee of the first respondent.

The eviction was ordered as far back as October 2012 - after the Supreme Court judgment.

There is no explanation in the certificate of urgency why the applicant did nothing from that date until he received the Notice of Eviction.

In the case of Kuvarega v The Registrar General & Anor 1998 (1) ZLR 188 CHATIKOBO J…, stated that urgency does not arise on the day of reckoning but arises when the need to act arises.

The applicant was aware of the need to act as far back as October 2012 but did nothing. He then sought to hide his failure to act by not disclosing facts which were material to this case.

This point was highlighted in the case of Leader Trade Zimbabwe v Smith HH131-03 where the court held, that, where an applicant gives false evidence, then, the application should be dismissed.

In my view, therefore, the application may be dismissed on this basis of these two points.

3. Wrong Citation of the Second Respondent

It was also submitted on behalf of the respondents, that, the second respondent should not have been cited as a party to the proceedings as it is not a legal persona but a geographical area.

This position was set out clearly in the Supreme Court judgment, at page 15, where the court held as follows:

“In so far as the legal status of the diocese of Harare is concerned, the conclusion by the learned judge, that it is not a legal entity that can be withdrawn from the Province, is undoubtedly correct.

The holding is in accordance with the principle derived from the ancient laws and usages of the Catholic Church, that, dioceses should be associated in provinces. The preamble to the Constitution confirms that the Church was formed on the basis of the principle that a diocese is an administrative area or legal division of a Province under the episcopical jurisdiction of the Bishop. The word diocese is derived from a Greek term meaning administration….,.”

The applicant's legal practitioner correctly conceded, that, the second respondent should not have been cited.

Indeed, it would have been difficult for him to argue otherwise in view of the detailed judgment dealing with the point.

In my view, therefore, the points in limine which were raised by the respondents were proper and warranted the dismissal of the applicant's application without proceeding to deal with the merits.

With regards to costs, it was my view, that, the applicant should pay the respondents costs as not only did he cite a non-existent persona but he sought to hide material facts from the court. The application itself did not comply with the Rules and was clearly not urgent but filed merely to buy time for the applicant so that he would not be evicted.

It was for the above reasons that I dismissed the application with costs.

SSC28-17 : SAMSON MUTERO vs THE STATE
Ruled By: GWAUNZA JA, GOWORA JA and MAVANGIRA AJA

On 28 January 2015, the appellant was arraigned before the High Court sitting at Gweru on a charge of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the “Criminal Law Code”).

The allegations against him were that on 20 September 2013, at Gore Village, Chief Nyamhondo, the appellant had caused the death of Chipochashe Ndlovu, a female juvenile, by forcibly having sexual intercourse with her, and assaulting her all over her body with an unknown object, intending to kill her or realizing that there was a real risk or possibility that his conduct might cause her death.

The appellant tendered a plea of not guilty to the charge. He was convicted of murder with actual intent to kill the deceased and was sentenced to death.

The appellant noted an appeal against the sentence of death only.

However, in view of the death penalty imposed upon him, in terms of the law, an automatic right of appeal lies against both conviction and sentence....,.

The appellant was charged and convicted in terms of section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the “Criminal Code”). That section, which has since been amended to accord with the Constitution, provided as follows:

“47 Murder

(1) Any person who causes the death of another person -

(a) Intending to kill the other person; or
(b) Realising that there is a real risk or possibility that his or her conduct may cause death, and continues to engage in that conduct despite the risk or possibility;
shall be guilty of murder.

(2) Subject to section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07], a person convicted of murder shall be sentenced to death unless;
(a) The convicted person is under the age of eighteen years at the time of the commission of the crime; or
(b) The court is of the opinion that there are extenuating circumstances;
in which event the convicted person shall be liable to imprisonment for life or any shorter period.”

On a proper and literal construction, section 47(2) of the Criminal Law (Codification and Reform) Act, as it was prior to the amendment, requires that a person convicted of murder be sentenced to death in terms of section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Therefore, a court which convicts an accused person of murder must have regard to the provisions of section 337 of the Criminal Procedure and Evidence Act to pass a sentence that is in accordance with the law.

In turn, as at the date that the appellant was convicted and sentenced, section 337 of the Criminal Procedure and Evidence Act read in relevant part:

“337 Sentence of death for murder

Subject to section three hundred and thirty-eight, the High Court —

(a) Shall pass sentence of death upon an offender convicted by it of murder:
Provided that, if the High Court is of the opinion that there are extenuating circumstances or if the offender is a woman convicted of the murder of her newly-born child, the court may impose -

(a) A sentence of imprisonment for life; or
(b) Any sentence, other than the death sentence or imprisonment for life, if the court considers such a sentence appropriate in all the circumstances of the case.”

In casu, having found the appellant guilty of murder with actual intent, the trial court invited counsel for the defence and the State to address it in relation to the question of sentence.

The record reveals that counsel premised their addresses on the provisions of section 48 of the Constitution of Zimbabwe Amendment (No.20) 2013.

It is common cause, that, both counsel related their respective addresses to the question of whether or not the murder of which the appellant had been convicted had been committed in aggravating circumstances.

Neither made reference to section 47(2) of the Criminal Law (Codification and Reform) Act (the Criminal Code) or section 337 of the Criminal Procedure and Evidence Act.

Consequently, in passing sentence, the trial court invoked section 48(2) of the Constitution.

As prayed by the State counsel, the trial court exercised its discretion under section 48(2) of the Constitution on the issue of aggravating circumstances. The court was unable to find anything that would justify the imposition of a sentence other than death.

It imposed the death penalty upon the appellant.

At the hearing of the appeal, this court enquired from the legal representative of the appellant and the State as to the appropriateness of the sentence.

The question bedevilling the court was whether or not a trial court can impose a death sentence on a person convicted of murder with actual intent without reference to section 337 of the Criminal Procedure and Evidence Act.

Neither counsel was in a position to assist.

We are indebted to Mr Zhuwarara who successfully applied to assist the court as an amicus curia. He filed detailed submissions on the question posed.

It is not in dispute that section 337 of the Criminal Procedure and Evidence Act constitutes part of the law of this country.

Section 10 of the 6th Schedule of our Constitution has specifically provided for the continuation and efficacy of all laws in existence at the date of promulgation of the Constitution.

It seems to me, that, the trial court was aware that the provisions of section 337 of the Criminal Procedure and Evidence Act were in conflict and inconsistent with section 48 of the Constitution. This section read as follows:

“2 Supremacy of Constitution

(1) This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.

(2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative, and judicial institutions and agencies of Government at every level, and must be fulfilled by them.

48 Right to Life

(1) Every person has the right to life.

(2) A law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstances, and —
(a) The law must permit the court a discretion whether or not to impose the penalty;
(b) The penalty may be carried out only in accordance with a final judgment of a competent court;
(c) The penalty must not be imposed on a person —
(i) Who was less than twenty-one years old when the offence was committed; or
(ii) Who is more than seventy years old;
(d) The penalty must not be imposed or carried out on a woman; and
(e) The person sentenced must have a right to seek pardon or commutation of the penalty from the President.

(3) An Act of Parliament must protect the lives of unborn children, and that Act must provide that pregnancy may be terminated only in accordance with that law.”

The Constitution is the supreme law in Zimbabwe land and all laws and legislative instruments must be construed in such a way as to give efficacy to the provisions of the Constitution.

The Constitution requires, that, the death penalty may be imposed upon a person convicted of murder committed under aggravating circumstances in terms of a law. However, per contra, the Criminal Procedure and Evidence Act provides for the death penalty unless there are extenuating circumstances surrounding the commission of the offence.

This clearly is in conflict with the provisions of section 48(2) of the Constitution.

In addition, there are a number of inconsistencies apparent in the Constitution and section 337 of the Criminal Procedure and Evidence Act. These are the following:

The Constitution provides, that, the court has a discretion as to whether or to impose a death penalty; section 337 of the Criminal Procedure and Evidence Act is peremptory in its terms, in that a court which is unable to find factors of extenuation must impose the death penalty.

The Constitution provides, that, no court may impose a penalty of death upon a woman convicted of murder; whereas, in terms of section 337 of the Criminal Procedure and Evidence Act, only a pregnant woman is exempted from the imposition of the death penalty.

It is clear, that, section 47 of the Criminal Law (Codification and Reform) Act (the Criminal Law Code) and section 337 of the Criminal Procedure and Evidence Act are inconsistent with section 48(2) of the Constitution.

When regard is had to the provisions of section 2(2) of the Constitution, a court which convicts an accused person of murder can only sentence such an accused person to death in terms of a law which provides for a murder committed in aggravating circumstances.

It is common cause, that, as at 30 January 2015, when the appellant was sentenced, no such law was in place.

Although the trial court made no reference to section 337 of the Criminal Procedure and Evidence Act, it was correct in accepting, that, in view of its inconsistency with section 48 of the Constitution, section 337 of the Criminal Procedure and Evidence Act was invalid and therefore could not be given effect to.

The trial court sought to rely on section 48(2) of the Constitution to pass the sentence of death.

In my view, the court was wrong in simply ignoring the section; it should have made mention of the offending provision and given its reasons as to why it would not sentence the appellant in accordance with the same.

The court a quo, however, completely overlooked the section and went on to sentence the appellant in terms of section 48(2) of the Constitution.

The court was clearly in error as section 48 of the Constitution is not an operative provision for purposes of sentencing. It does not specify what sentence the court may pass upon a person convicted of murder.

It is a section which defines and sets outs out fundamental rights of a person convicted of murder.

In addition, and most fundamentally, section 48(2) of the Constitution requires that the death penalty be provided for in a law permitting a court to pass sentence for a murder committed in aggravating circumstances. Therefore, it stands to reason that section 48 of the Constitution is not such law.

In my view, it is an enabling provision for the promulgation of the necessary law.

In the absence of the contemplated law, therefore, the trial court could not pass a sentence of death. To do so would be a violation of section 48(2) of the Constitution.

Parliament has now complied with the provisions of section 48(2) of the Constitution.

The General Laws Amendment Act 3 of 2016 has made provision for the amendment of section 47 of the Criminal Law (Codification and Reform) Act (the Criminal Law Code).

Consequently, in so far as the trial court ignored the provisions of section 377 of the Criminal Procedure and Evidence Act in its consideration of the appropriate sentence, the sentence it passed was invalid. The sentence was passed outside the law and cannot stand.

The sentence, therefore, is set aside and the matter is hereby remitted to the trial court for the same to consider sentence in terms of the law.

Accordingly, it is ordered as follows:

1....,.

2. The appeal against sentence is allowed.

3. The sentence of death is set aside and the matter is remitted to the same court for consideration of and the passing of an appropriate sentence in terms of the law.

SSC34-13 : TONGAI MATUTU vs THE STATE
Ruled By: MALABA DCJ, ZIYAMBI JA and PATEL AJA

At the end of the hearing, the application was dismissed and it was indicated that reasons for the decision would follow in due course. These are the reasons.This matter was referred to the Supreme Court, by the magistrate, in terms of section 24(2) of the Constitution of Zimbabwe which provides ...

At the end of the hearing, the application was dismissed and it was indicated that reasons for the decision would follow in due course. These are the reasons.

This matter was referred to the Supreme Court, by the magistrate, in terms of section 24(2) of the Constitution of Zimbabwe which provides as follows:

“24 Enforcement of protective provisions

(1)…,.

(2) If in any proceedings in the High Court, or in any court subordinate to the High Court, any question arises as to the contravention of the Declaration of Rights, the person presiding in that court may, and if so requested by any party to the proceedings, shall, refer the question to the Supreme Court, unless, in his opinion, the raising of the question is merely frivolous or vexatious.”

The referral came about in the following manner:

On 8 February 2012, the applicant, who is a registered legal practitioner, appeared before the magistrate in Gweru in response to a summons to answer a charge of contravening section 16(2)(b) of the Public Order and Security Act [Chapter 11:17].

The offence was allegedly committed on 25 June 2005.

When the charge was put to him, the applicant did not plead to it, but, instead, made an application for the matter to be referred to the Supreme Court in terms of section 24(2) of the Constitution. It was his intention to seek an order:

“For a permanent stay of prosecution in terms of the Constitution of Zimbabwe, in section 18(2), on the basis that my right to a fair trial within reasonable time has been violated.”

He alleged that the charges emanated from an incident which occurred on 25 June 2005 in Zaka, and, that, a warned and cautioned statement was recorded in July of the same year.

The delay in bringing him to trial amounted to six years and eight months.

The allegation was that the delay was attributable to the conduct of the State because he resides in Masvingo and has never removed himself from the jurisdiction of the courts. He averred, that, nothing could have been done by him to assert his rights especially as the matter was not brought to court on a remand hearing.

He alleged further that “the only [State] witness who is available” had his statement recorded on 26 June 2005. According to him, the investigations were then complete and the prosecution ought to have taken place, at the latest, in December 2007, when authority was granted by the Attorney General to prosecute.

He alleged, that, the failure by the State to bring him to trial within a reasonable period constituted a violation of his constitutional right enshrined in section 18 of the Constitution.

The Prosecutor, in response, submitted that the delay “was not a deliberate act by the State.”

In the first place, one of the State witnesses had died. Secondly, there was, on record, a letter, dated 10 August 2008, wherein the applicant had requested that he be prosecuted by a person who did not know him; and thirdly, the applicant is a Deputy Minister tasked with national duties and the police were having difficulties in effecting personal service of the summons on him.

After the authority to prosecute was granted by the Attorney General, in 2007, there was a shortage of resources and transport.

The Prosecutor further alleged, that, when the matter was due to be heard, the Director of Public Prosecutions directed that the trial be heard in Gweru and not Masvingo.

Most of the court officials declined to deal with the matter because they knew the applicant on professional grounds, and, even on the date of the hearing, two court officials refused to entertain the matter on professional grounds.

Accordingly, the delay could not be wholly attributable to the State.

No evidence, whether on affidavit or viva voce, was led by the applicant in support of his allegations.

This is totally unacceptable.

In S v Banga 1995 (2) ZLR 297 this Court remarked as follows:

“Regrettably, the manner in which the legal practitioner requested the referral was totally misconceived. It was wholly insufficient to make a statement from the bar, and then to point soley to the length of the delay. He was obliged to call the applicant to testify to the extent to which, if at all, the cause of the delay was his responsibility; to whether at any time before 16 August 1994, he had asserted his right to be tried within a reasonable time; and, even more importantly, to whether any actual prejudice had been suffered as a result of the delay. Such a fundamental omission on the part of the defence is fatal to the success of the application.”

The magistrate was satisfied, that, the raising of the question of the violation of the applicant's constitutional right was not frivolous. He referred the matter to this Court.

The referral was improper.

This Court has so stated time and time again. As far back as 1995, it was said:

“It seems to me, also, that, before permitting an accused person to raise the question of not having been brought to trial within a reasonable time, the lower court should be satisfied, that, ample written notice has been given to the State, with a copy filed of record, of the intention to advance the complaint. The prosecution is entitled to be afforded the time and opportunity to investigate the cause of the delay and to be ready to adduce evidence as to the reasons therefor, if it is considered necessary to do so.”

See S v Banga 1995 (2) ZLR 297 at p302.

The prosecutor must be given written and adequate notice of the accused person's intention to make the application.

The magistrate must hear evidence from the applicant and the prosecutor must be given an opportunity to cross examine the applicant and to lead any evidence it considers necessary, after which the magistrate must make a ruling based on the evidence.

However, this was not done.

At the hearing before this Court, it was glaringly apparent that there were disputes of fact which needed to be resolved.

It is the function of the referring court to resolve disputes of fact.

It goes without saying, that, a delay of seven years in prosecuting a criminal charge is presumptively prejudicial and would, generally speaking, trigger an inquiry by this Court into the constitutionality of the delay: see Gadzanai Nkomo & Anor v The State SC52-06.

However, the applicant has placed no evidence before the Court from which it can be concluded, that, the delay in bringing him to trial is totally attributable to the State, has caused him prejudice, and is a violation of his right to a fair trial.

I stress here, that, the absence of evidence is fatal to the application.

In S v Banga 1995 (2) ZLR 297 at p301, it was held that the absence of viva voce evidence could be fatal to an applicant's case because it “completely disables findings to be made that the long delay has been the cause of mental anguish and disruption to the business and social activities of the accused…, and, that it has impaired his ability to exonerate himself from the charge due to death, disappearance, or forgetfulness of potential witnesses.”

The application in casu, having no evidential basis, is fatally defective.

CC13-20 : THABANI MPOFU vs ZIMBABWE ENERGY REGULATORY AUTHORITY and MINISTER OF ENERGY AND POWER DEVELOPMENT and GREEN FUELS (PVT) LTD
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWEJCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA JCC

The applicant having failed to establish locus standi for the matter to be heard by this Court, or direct access to be availed, the matter must be struck off the roll....,.Accordingly, this application is struck off the roll with each party bearing its own costs.

SC31-12 : ROBERT DOMBODZVUKU vs CMED (PVT) LTD
Ruled By: OMERJEE AJA

This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.The background relevant to the determination of this matter is as follows:In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 ...

View Appeal
SC50-12 : CABAT TRADE AND FINANCE vs MOVEMENT OF DEMOCRATIC CHANGE
Ruled By: MALABA DCJ, GOWORA JA and OMERJEE AJA

This is an appeal against the judgment of the High Court dated 5 January 2012 by which a claim by the appellant against the respondent for payment of money for goods delivered as per contract was dismissed following the upholding of a special plea in abatement.

The grounds of appeal allege a misdirection on the part of the court a quo in accepting the allegations placed before it as a special plea.

The brief background to the dispute is that the appellants issued summons against the respondent in the High Court on 14 July 2009 claiming payment of a sum of ZAR4,627,863=93 for goods manufactured and delivered at the respondent's specific instance and request in March 2008.

The appellants alleged, that, the respondent authorized one Eddie Cross and Simon Spooner to enter into an oral agreement with them, in terms of which the order for the manufacture of the goods was placed.

They alleged, that, in performance of the contract, the goods, comprising of T-shirts, wraps, and headscarves, which the respondent wanted to use for its election campaign in the June 2008 presidential election campaign were manufactured and delivered.

In the main plea, the respondent denied any knowledge of the alleged contract with the appellant. It denied entering into or authorising anyone to enter into the alleged contract with the appellant. It denied purchasing or receiving any of the goods.

Therefore, the matter went to trial, but, before trial commenced, the respondent filed a special plea in bar on 30 November 2009. The contents of the plea were as follows:

“The Defendant pleads in bar of the Plaintiff's claims as amended as follows:

1. The Defendant denies that it is obligated to the plaintiffs either in contract or in delict.

2. The defendant is a political association with its headquarters in Zimbabwe, accordingly, it is a Zimbabwean based association.

3. The contract alleged by plaintiffs would have been tainted with illegality for want of compliance with the Exchange Control Act [Cap. 22:05] as read with the Exchange Control Regulations, 1996 contained in Statutory Instrument 109 of 1996.

4. The alleged contract would have required payment to be made by Defendant to first plaintiff outside Zimbabwe.

5. The Defendant does not have any free funds nor did it then hold any money in a foreign currency account.

6. Accordingly, the alleged contract is void for illegality and the plaintiff's claims ex contractu should be dismissed.”

At the hearing of the special plea, the appellants argued, that, the allegations made did not meet the requirements of a special plea.

The learned judge, however, took the view of the respondent's legal practitioners and held that the requirements of a special plea had been met. In upholding the special plea, the learned judge said that:

“The issue that the defendant raised in this matter is that of illegality: in that the plaintiffs were attempting to enforce a contract tainted with illegality for want of compliance in the Exchange Control Act [Cap. 22:05] as read with the Exchange Control Regulations 1996 contained in Statutory Instrument 109 of 1996 as the contract would have required payment to be made by defendant to first plaintiff outside Zimbabwe.

Ideally, a plea of illegality should be raised before the trial and not in limine as stated in Abreu v Campos 1975 (1) RLR 198 at page 204H-205A.

In Adler v Elliot 1988 (2) ZLR 283 (S) illegality was raised as an exception as it appeared on the papers.

Illegality was also raised as an exception that the summons disclosed no cause of action in the case of York Estate Ltd v Wareham 1950 (1) 3A 125 (SR) where the summons had set out the factual basis that was then used to argue the point of illegality.

In Barker v African Homesteads Touring and Safaris (Pvt) Ltd and Anor 2003 (2) ZLR 6 (S) illegality for contravening section 8 (now section 11) of the Exchange Control Regulations raised in limine was upheld both by the High Court and an appeal in the Supreme Court resulting in the plaintiffs claim being dismissed.

Consequently, the submission by the plaintiffs, that illegality should not have been raised as a special plea and can only be raised on the merits is clearly untenable.”

The unanimous view of the court is that the court a quo misdirected itself by upholding the special plea on the allegations that were placed before it.

The allegations reflected a material dispute of facts arising from the defendant's plea.

As a result, the court a quo was required to resolve the dispute by the hearing of evidence on whether or not the denial by the respondent of having entered into a contract with the appellants was true.

If the denial was found to be substantiated, that would have terminated the action proceedings. There would be no question of illegality of the contract. The special plea would not have arisen in the circumstances.

A special plea is a plea in trial susceptible of a replication and must be heard separately on the adduction of evidence: see Doelcam v Pitchanik and Ors 1999 1 ZLR 390 (H)…,.

In this case, the court a quo did not resolve the dispute of fact on which the special plea was founded. It determined the issue of illegality of a contract which one of the parties was denying having entered into.

The special plea was based on speculation of fact of a contract which the respondent denied entering into.

Counsel for the respondent conceded, that, the court misdirected itself in considering the issue of illegality of the contract, which, on the plea, did not concern the respondent, without first determining whether or not, as a matter of fact, a contractual relationship existed between the parties.

It was in light of the clear misdirection by the court a quo, that, it was not found necessary of to hear counsel for the appellant. As a result, it is ordered as follows:

1. The appeal succeeds with costs.

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

'The special plea is dismissed with costs.'

3. The matter is remitted back to the court a quo for continuation of trial.

SC58-15 : ERICKSON MVUDUDU vs AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY
Ruled By: MALABA DCJ, GWAUNZA JA and PATEL JA

This is an appeal against a judgment of the Labour Court dismissing an appeal against an award rendered by an arbitrator. That arbitral award quantified the damages payable to the appellant pursuant to an earlier award ordering his reinstatement into the service of the respondent.BackgroundThe respondent is a statutory body ...

Background

The respondent is a statutory body established under the Agricultural and Rural Development Authority Act [Chapter 18:01].

The appellant was employed by the respondent in January 2008 as its Chief Executive Officer cum General Manager.

On 26 February 2009 he was sent on special leave, and, on 19 May 2009 he was notified by the respondent of its decision to terminate his employment.

The matter was then referred to an arbitrator.

On 26 January 2010, the arbitrator found that the appellant had been unlawfully dismissed and ordered his reinstatement with effect from the date of his purported dismissal. Thereafter, negotiations for reinstatement having failed, the matter was again referred to the arbitrator.

On 27 October 2010, the arbitrator quantified his award for damages in lieu of reinstatement. He based his award on a monthly salary of US$1,009 in accordance with documentary evidence furnished by the respondent. He then ordered the respondent to pay the following amounts:

$19,384 as back-pay and benefits from the date of dismissal to the date of his first award;
Cash in lieu of leave;
$60,540 being sixty months salary as damages for loss of employment;
A further $60,540 being sixty months salary as punitive damages for failure to reinstate; and
Interest at the prescribed rate on all of these amounts.

The appellant, being dissatisfied with the arbitrator's award, appealed to the Labour Court on several grounds pertaining to the question of his reinstatement, the date of termination of his employment, his correct monthly salary, and his entitlement to contractual benefits.

The respondent, in turn, cross-appealed, defending the propriety of its decision not to reinstate the appellant, and challenged the arbitrator's award of punitive damages and his failure to deduct certain amounts allegedly owed by the appellant to the respondent.

Decision Appealed

The court a quo dismissed the appeal and partially allowed the cross-appeal for the following reasons:

It found, having regard to the relevant correspondence, that, the possibility of reinstatement was not part of the arbitrator's mandate. The effective date of termination of employment was 4 February 2010, when the respondent opted to pay damages, and not when the Labour Court ruled against the appellant's reinstatement. The court also found that the arbitrator's reliance on a monthly salary of $1,009 was based on irrefutable evidence and more in accordance with reason, as compared with the figure of $5,000 claimed by the appellant.

As regards the appellant's claim for contractual benefits, no documentary or other evidence was placed before the arbitrator to substantiate that claim.

Again, his claim for punitive damages was neither placed before the arbitrator nor substantiated by any supporting evidence.

Similarly, the respondent's claim to deduct certain amounts owed by the appellant was not raised before the arbitrator.

In the event, the court a quo dismissed the appeal and allowed the cross-appeal to the extent of setting aside the arbitrator's award of punitive damages.

The issues raised in the notice of appeal herein are largely identical to those before the Labour Court and may be summarised as follows:

(i) Whether the question of reinstatement was an issue before the arbitrator, in addition to the quantification of damages in lieu thereof.

(ii) What was the effective date of termination of employment? (This issue was not pursued by counsel for the appellant and appears to have been abandoned).

(iii) What was the correct amount of the appellant's monthly salary?

(iv) Was the appellant entitled to his claim for contractual benefits?

(v) Whether the claim for punitive damages was properly before the arbitrator and correctly awarded by him.

Reinstatement and Quantification of Damages

At the hearing of this matter, counsel for the appellant largely focused his argument on the question of reinstatement.

He submits, that, damages are only payable if reinstatement is not tenable. This is not a matter for the employer's election, but, as envisaged in sections 89(2)(c) and 97(2) of the Labour Act [Chapter 28:01], a matter of fact to be alleged and proved by the employer.

There must first be an inquiry as to whether reinstatement is no longer tenable, and, the employee remains employed until that inquiry is finalised.

Despite the appellant's submissions on this point, the arbitrator proceeded on the basis that he was only dealing with quantification.

Similarly, although this was raised before the court a quo, it misdirected itself in not upholding this ground of appeal.

The matter should therefore be remitted to that court to determine this question.

SC59-21 : LIVING WATERS THEOLOGICAL SEMINARY vs REVEREND NGONI CHIKWANHA
Ruled By: MALABA CJ, UCHENA JA and CHIWESHE AJA

This is an appeal against the whole judgment of the Labour Court, dated 22 March 2019, setting aside an arbitral award which had been granted in favour of the appellant.FACTUAL BACKGROUNDThe detailed facts of the case can be summarised as follows:The respondent was, from 22 October 2013, employed by the ...

This is an appeal against the whole judgment of the Labour Court, dated 22 March 2019, setting aside an arbitral award which had been granted in favour of the appellant.

FACTUAL BACKGROUND

The detailed facts of the case can be summarised as follows:

The respondent was, from 22 October 2013, employed by the appellant as a Campus Co-ordinator. He was responsible for the Tynwald Campus.

On 27 May 2015, he was served with a letter advising him of his disciplinary hearing, which was to be held on 3 and 4 June 2015. The appellant was charging the respondent with gross inefficiency in the performance of his duties, wilful disobedience of a lawful order, and acts of misconduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract of employment in terms of the Labour (National Employment Code of Conduct) Regulations SI 15 of 2006 (hereinafter referred to as “SI 15 of 2006”).

The Disciplinary Committee found the respondent guilty of wilful disobedience of a lawful order and acts of misconduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment. He was served with a dismissal letter on 4 June 2015.

The respondent noted an appeal to the Appeals Committee, which upheld the decision of the Disciplinary Committee on conviction but set aside the penalty of dismissal and substituted it with a demotion to a lower position.

The respondent was required to indicate his acceptance of the demotion by signing a copy of the letter. He did not. As a result, the demotion was subsequently withdrawn by a letter dated 28 July 2015.

Aggrieved by that decision, the respondent referred the matter to a Labour Officer for conciliation. When conciliation failed, the Labour Officer referred the matter for compulsory arbitration.

In his terms of reference, the arbitrator had to determine whether or not the disciplinary proceedings had complied with the rules of natural justice; whether or not the respondent had been unfairly dismissed; whether or not the respondent had the right to demand reinstatement; and whether or not it was lawful for the respondent to accept an offer of a lesser penalty and/or the appropriate remedy.

The arbitrator found, that, the principles of natural justice had been observed, and that, as such, the respondent had been fairly dismissed. Concerning reinstatement, the arbitrator found that the respondent had no basis to make any demands as he had been properly dismissed.

The arbitrator, however, observed that the Appeals Committee had not exercised its mandate as an appeals authority. It reasoned, that, it ought to have deliberated on the appeal placed before it and not be side tracked by the mitigation tendered before it by the respondent.

The arbitrator, however, found that notwithstanding the error by the Appeals Committee, he, in his capacity as an Appeals Tribunal could determine the matter on the merits.

He, in his award, upheld the decision of the Appeals Committee.

Aggrieved by that award, the respondent noted an appeal to the Labour Court (“the court a quo”) on the ground that the award had erroneously ruled that the appellant had complied with rules of natural justice; that the arbitrator had erred and misdirected himself in not considering the real issues which were before him; and erroneously held that the Appeals Committee had not properly dealt with the appeal.

The court a quo found, that, the arbitrator incorrectly considered the dictates of procedural and substantive fairness as pronounced in the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 in terms of which the respondent was charged.

The court a quo found, that, the respondent had not been furnished with a charge sheet before the disciplinary hearing and that the hearing was not fairly conducted.

Further, the court a quo ruled, that, from the totality of the facts, there was bias in the proceedings because of the appellant's service of the charge sheet to the respondent on the date of the hearing; hearing submissions in mitigation before handing down the verdict; and handing down a guilty verdict together with the penalty of dismissal.

The court a quo ruled, that, the arbitrator erred in concluding that the Appeals Committee had not made a determination on the appeal when the record established that the respondent had abandoned his grounds of appeal and requested that the Appeals Committee only address the issue of the penalty imposed by the disciplinary committee, resulting in the Appeals Committee imposing a lesser sentence.

Consequently, the court a quo allowed the appeal and ordered that the arbitral award and the disciplinary proceedings by the appellant be set aside and that the respondent be reinstated to his original position without loss of salary and benefits, or, alternatively, that he be paid damages in lieu of reinstatement.

Aggrieved by the decision of the court a quo, the appellant noted this appeal on the following grounds;

GROUNDS OF APPEAL

“1. The court a quo erred at law in upholding review grounds in the form of bias and the failure to follow procedures which had been improperly placed before it by way of an appeal and not a review.

2. The court a quo erred at law in considering the incompetent remedy of reinstatement when it had upheld review grounds whose appropriate remedy, assuming the grounds had been properly placed before the court, would have been a hearing de novo. The court a quo erred at law in finding that the appellant's failure to follow the pre-termination process in section 49 of Statutory Instrument 1 of 2008 meant that the resultant termination was illegal or a nullity.

3. The court a quo further erred at law in upholding the appeal before it on the merits when it had made a finding in the judgment that the respondent had abandoned the appeal before the Appeals Committee and limited his appeal to sentence only.”

The appeal raises two issues for determination, the first issue having been raised by the court at the hearing of the appeal.

1. Whether or not the matter was properly before the labour officer, the arbitrator, and the court a quo?

2. Whether or not the court a quo's decision on the charge against the respondent, and finding of bias against him, was correct.

SUBMISSIONS MADE BY THE PARTIES

At the hearing, we indicated to the parties that the main issue for determination was whether or not the labour officer and the arbitrator had jurisdiction to hear the matter, and that, if they did, whether or not the court a quo's decision on the charge against the respondent and finding of bias against him was correct.

Counsel for the appellant submitted, that, the labour officer and the arbitrator had no jurisdiction to hear a matter which had already been determined and completed internally by the appellant. He submitted that the referral was done in terms of S.I.15 of 2006 and that the process was an appeal to the labour officer.

Counsel for the appellant contended, that, the grounds presented to the labour officer were grounds for review, particularly the issue of bias, therefore, the respondent should have approached the Labour Court for review.

On bias, he submitted that there were three charges against the respondent and he was acquitted on one, thus, the possibility of bias was unlikely. On the issue that the respondent was not given the particulars of the charge before the date of hearing, counsel for the appellant submitted that the respondent was, on 27 May 2015, served with a letter which articulated the charges.

Counsel for the respondent submitted, that, the labour officer and the arbitrator had jurisdiction to hear the matter. He submitted, that, in Makumire v Minister of Public Service, Labour and Social Welfare & Anor CC01-20…, a remedy was provided to a person aggrieved by the decision of the Appeals Committee or Disciplinary Committee and that the labour officer assumed jurisdiction on that basis.

Concerning the issue of bias, counsel for the respondent argued that the particulars of the charges were not served on the respondent with the charges. He contended, that, the Appeals Committee's hearing was tainted by irregularities and that the appellant's appeal is devoid of merit.

THE LAW

The validity of this appeal depends on whether or not a labour officer, and the arbitrator, have jurisdiction to preside over matters which will have been determined by disciplinary committees and appeals committees.

The jurisdiction of a Labour Officer is provided for by section 93(1) to (3) of the Labour Act [Chapter 28:01] which provides as follows:

“93 Powers of labour officers

(1) A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation or, if agreed by the parties, by reference to arbitration.

(2) If the dispute or unfair labour practice is settled by conciliation, the labour officer shall record the settlement in writing.”

In terms of section 93(1) to (3) of the Labour Act, the jurisdiction of a labour officer is limited to attempting to settle labour disputes or unfair labour practices through conciliation, or, by referring such labour disputes or unfair labour practices to arbitration.

The section does not give labour officers appellate jurisdiction over matters already heard and determined by disciplinary committees and appeals committees.

When a matter is determined by a disciplinary committee or appeals committee it can no longer be conciliated as a decision will have been made by a competent authority whose decision can only be appealed against to the Labour Court.

This issue was clarified by this Court in Sakarombe N.O. & Anor v Montana Carswell Meats (Private) Ltd SC44-20 where it held:

“A simple reading of the subsections of section 93 set out above gives the reader the impression, that, when a labour officer deals with a matter or a dispute which has come to him in terms of section 93(1), it is a matter where the labour officer must conciliate on the dispute. At this stage, all that a labour officer is obliged to do under the Act is to attempt to bring the parties to a stage where a settlement is achieved. Thus, the proceedings before the labour officer, under section 93(1) of the Act, constitute the first step towards achieving a resolution of the dispute. His office is the body under the Act that is tasked with the receipt of the initial complaint of an unfair labour practice or disputes for conciliation as provided under the subsection.

There is no suggestion therein that he is empowered to sit as an appeal or review tribunal over completed disciplinary proceedings conducted at the workplace.

Section 93(1), (2) and (3) make provision for conciliation. To conciliate is to reconcile or make compatible.

Thus, the first duty of a labour officer in conciliation proceedings is to attempt to resolve the dispute within thirty days after he or she began to attempt to settle the dispute. Section 93, as a whole, does not give a labour officer the power to act as an appeal tribunal or to review the decisions of the disciplinary authority and the internal processes attendant thereto.”…,.

A labour officer's jurisdiction is also provided for by section 101(5) and (6) of the Labour Act which provides as follows:

“(5) Notwithstanding this Part, but subject to subsection (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings.

(6) If a matter is not determined within thirty days of the date of the notification referred to in paragraph (e) of subsection (3), the employee or employer concerned may refer such matter to a labour officer, who may then determine or otherwise dispose of the matter in accordance with section ninety-three.”…,.

In terms of section 101(5) of the Labour Act, a labour officer is not allowed to intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings.

In terms of section 101(6) of the Labour Act, if a matter is not determined within thirty days of the date of the notification referred to in paragraph (e) of subsection (3), the employee or employer concerned may refer the dispute or unfair labour practice to a labour officer for conciliation or referral to arbitration in terms of section 93 of the Labour Act.

It is important to note, that, reference is made to section 93 of the Labour Act which clearly limits the labour officer's jurisdiction to conciliation and referrals to arbitration.

The notification referred to in section 101(3)(e) of the Labour Act is notification of a hearing.

The labour officer can therefore exercise his jurisdiction in terms of section 93 of the Labour Act if the matter is not determined at the workplace within thirty days of the date of the notification. His jurisdiction is therefore limited to conciliating and referring unresolved matters to arbitration.

He does not have jurisdiction to act as an appellate tribunal.

Section 101(5) and (6) of the Labour Act was interpreted by this Court in Watyoka v Zupco (Northern Division) SC87-05; 2006 (2) ZLR 170 (S). At p172F-G, the Court said at para 10:

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

(i) The matter must not be one that is liable to be the subject of proceedings under a code of conduct;
(ii) The matter has not been determined within thirty days of the date of notification; and
(iii) Where the parties to the dispute request and are agreed on the issues in dispute.

Section 93(1)(ii).”

At p173B, the court interpreted section 101(6) of the Labour Act as follows…,:

“Subsection (6) of section 101 provides for a referral of the matter to a labour relations officer if it has not been determined within thirty days. It does not provide for a referral of a matter that has been determined. The referral to a labour relations officer is a relief granted to a party who is concerned about the delay in the determination. It is not a referral intended to challenge a determination that has already been made.”…,.

Section 8(6) of the Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006 (the Model Code) seems to give a labour officer appellate jurisdiction as it provides that:

“A person or party who is aggrieved by a decision or manner in which an appeal is handled by his or her employer or the Appeals Officer or Appeals Committee, as the case may be, may refer the case to a Labour Officer or an Employment Council Agent, as the case may be, within 7 working days from the day of receipt of such decision.”

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 give a party aggrieved by a decision or manner in which an appeal is handled by his or her employer, or the Appeals Officer or Appeals Committee, as the case may be, a right to refer the case to a labour officer or an Employment Council Agent.

This suggests, that, a labour officer has appellate jurisdiction over decisions of the employer's Appeals Officer or Appeals Committee.

In view of the provisions of sections 93 and 101 of the Labour Act, this cannot, however, be the correct interpretation of the law as section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI15 of 2006 (the Model Code) is a provision in a statutory instrument enacted in terms of the Labour Act.

Therefore, sections 93 and 101 are provisions of the Labour (National Employment Code of Conduct) Regulations parent Act.

It is trite that subsidiary legislation should be intra vires and not ultra vires provisions of the parent Act. It is also trite, that, ultra vires provisions of subsidiary legislation cannot prevail over provisions of the parent Act.

In this case, the position of the law is further reinforced by section 2A(3) of the Labour Act which provides as follows:

“2A Purpose of Act

(3) This Act shall prevail over any other enactment inconsistent with it.”

In terms of section 2A(3) of the Labour Act, the provisions of the Labour Act shall prevail over any other enactment inconsistent with them.

The use of the words “any other enactment” means the provisions of the Labour Act prevail over other enactments, including regulations and statutory instruments. It is therefore clear, that, no legislation which is inconsistent with the provisions of the Labour Act can be enforced. Once an inconsistency is established, the provisions of the Labour Act should be enforced while those of the inconsistent enactment should be ignored.

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 are therefore rendered inoperative by their being ultra vires and inconsistent with the provisions of sections 93 and 101 of the Labour Act.

Whether or not the matter was properly before the labour officer, the arbitrator and the court a quo

Although the parties made submissions on the merits, it is my view that a more fundamental issue on the procedure adopted by the parties, and the labour officer, in the resolution of the matter puts this matter to rest.

It is imperative to note, that, the respondent referred the matter to the labour officer after the appellant's Disciplinary Committee and the Appeals Committee had determined the matter on the merits through a disciplinary process under the Labour (National Employment Code of Conduct) Regulations, S.I. 15/2006 (the Model Code).

It is against this background that I take the view that a properly considered critical analysis of the proceedings before the labour officer, under section 93 of the Labour Act, be made to establish whether or not those proceedings were properly before the labour officer and the arbitrator.

A labour officer is a creature of statute and can therefore only exercise jurisdiction granted to him in terms of the statute which created his office. As established under the analysis of the law, a labour officer does not have jurisdiction to exercise appellate jurisdiction over decisions of disciplinary authorities and appellate authorities in terms of Codes of Conduct.

In this case, the labour officer exercised appellate jurisdiction over the appellant's Appeals Committee's decision when he had no jurisdiction to do so. The proceedings before the labour officer are therefore a nullity. The referral to the arbitrator, and the arbitral proceedings, are also a nullity. The appeals to the Labour Court and this Court are also nullities as they are appeals against nullities.

The appellant's appeal to this Court must therefore be struck off the roll.

In terms of our review powers, as provided by section 25 of the Supreme Court Act [Chapter 7:13], the proceedings before the labour officer, the arbitrator, and the Labour Court, whose irregularities have been brought to our attention, must be set aside.

The finding that the appeal to the Labour Court was a nullity renders it unnecessary to determine issue number 2.

The appellant had to defend itself before the labour officer, the arbitrator, the Labour Court, and this Court because of the labour officer's, arbitrator's and the Labour Court's failure to understand the law on the jurisdiction of the Labour Officer. The respondent was also affected by the same failure by officials to execute their duties according to the law.

It is therefore fair and just that each party should bear its own costs.

I therefore order as follows:

1. The matter is struck off the roll.

2. The proceedings before the labour officer, the arbitrator, and the Labour Court be and are hereby set aside.

3. Each party shall bear its own costs.

SC73-19 : CUTHBERT DUBE vs PREMIER SERVICE MEDICAL AID SOCIETY and PREMIER SERVICE MEDICAL INVESTMENTS
Ruled By: GARWE JA

This is an application for condonation for non-compliance with the Rules of this Court and for an extension of time within which to file and serve a notice of appeal in terms of the same Rules.The respondents oppose the application.FACTUAL BACKGROUNDThe first respondent is a medical aid society registered in ...

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SC84-22 : TN HARLEQUIN LUXAIRE LTD vs MBERIKUNASHE MASVIMBO and 14 OTHERS
Ruled By: GARWE JA, HLATSHWAYO JA and GUVAVA JA

On 23 September 2020, we invited the parties to address the Court on a point in limine that arose after judgment was reserved in this matter.

The point in limine is whether the High Court, in the exercise of its powers to issue a declaratur, could properly issue one in a purely labour matter in the light of section 2A(3) of the Labour Act [Chapter 28:01] (“the Labour Act”) which provides, that, the Labour Act “shall prevail over any other enactment inconsistent with it” as read also with section 89(6) of the Labour Act, which provides for the exclusive jurisdiction of the Labour Court, in the first instance, to hear and determine any application, appeal or matter concerned with labour issues.

Both parties filed supplementary heads of argument.

It had been expected that the matter would be enrolled and viva voce submissions made. However, after receipt of the supplementary heads of arguments, it was considered that another hearing on the matter was not necessary, but the parties were given time to file any additional heads they deemed necessary in lieu of a hearing, which the respondents did on 11 April 2022.

FACTUAL BACKGROUND

The respondents were employed on contracts without limit of time by the appellant at its various branches across the country.

On 10 and 11 June 2015, the appellant wrote letters to the respondents advising them, that, due to viability constraints, their employment contracts had been terminated on three months notice.

In the same letter, the appellant offered to replace the terminated employment contracts with new ones which provided for remuneration based on productivity. The reason for so doing was that the appellant still required the respondents services.

The letters were couched in the following terms:

“The macro-economic challenges facing the country are seriously hampering the viability of the company. Particular reference is made to the poor performance of the company as reflected by the month-on-month sales figures from last year to date. The sales figures are well below operating costs. These figures show, that, it is impossible for the company to adapt the way it does business to its operating environment to ensure that it survives. The costs of the company must be aligned and positively correlated to productivity.

Your current contract of employment was concluded when the environment was not as hostile on manufacturers as it now is.

At the time that we concluded the employment contract, we agreed that the contract could be terminated on notice other than through dismissal. Because we still require your services, we wish to terminate your current contract on notice and replace it with one that provides for remuneration based on productivity.

We hereby give you three months notice for the termination of your current contract of employment. At the same time, we hereby offer you a new performance contract which aligns your remuneration to your productivity. Your new contract, if accepted, shall become effective on the date that the termination of your current employment contract becomes effective. Should you want to bring forward the effective date of your new contract, you will be required to waive the notice required to terminate your contract of employment.”…,.

There were several correspondences between the appellant and the respondents, through their legal practitioners, wherein, the respondents pointed out to the appellant that its decision to terminate the employment contracts and replace them with new ones was unlawful.

The appellant, however, remained adamant that its decision was lawful.

This prompted the respondents to approach the court a quo seeking an order declaring the termination. or variation of their employment contracts, to be unlawful on 4 September 2015.

The court issued the following declaratory order:

“1. The termination or variation of the applicants contracts of employment by the respondent be and is hereby declared unlawful.

2. The respondent be and is hereby ordered to reinstate the applicants to their employment without loss of salary and benefits.

3. In the event that reinstatement is no longer an option, the respondent be and is hereby ordered to pay the applicants damages to be determined by an arbitrator appointed by a Senior Labour Officer.

4. The respondent is ordered to pay the costs of suit.”...,.

The respondents case before the court a quo was that the purported termination of their employment contracts, and the offer of new contracts, was unlawful in that it was a calculated manoeuvre to circumvent the retrenchment procedures set out in section 12C of the Labour Act [Chapter 28:01] and the Regulations thereto.

The respondents argued, that, since the termination of the employment contracts had been necessitated by economic hardships, the appellant was in fact re-organising the undertaking, hence, the termination of employment contracts was a way to reduce costs.

The respondents thus prayed for an order declaring the termination or variation of their employment contracts to be unlawful....,.

The appellant contended, in opposition, that, the relief that was being sought by the respondents was within the powers of the Labour Court and hence they ought to have exhausted that remedy before approaching the High Court.

The appellant argued, that, section 89 of the Labour Act endows the Labour Court with the same review powers as the High Court, hence the Labour Court has power to grant the relief that the respondents sought in the court a quo.

To that extent, the appellant argued further, that, the court a quo should have declined jurisdiction on the basis of section 89(6) of the Labour Act....,.

The court a quo found, that, the circumstances of the case warranted the granting of a declaratur as provided for by section 14 of the High Court Act [Chapter 7:06]....,.

On the point in limine raised mero motu by the Court, the appellant's main bone of contention is that the Labour Court has exclusive jurisdiction to hear matters which are labour in nature.

The appellant contends, that, the Labour Court is a specialised court empowered, in terms of section 172(2) of the Constitution 2013, to have jurisdiction to deal with matters of employment and labour as may be conferred upon it by an Act of Parliament.

The appellant further argued, that, the provisions of section 89(6) of the Labour Act gives the Labour Court some special protection that ensures that it is only the Labour Court that fulfils the constitutional obligation of dealing with labour matters and matters relating to employment.

In that regard, the appellant is of the view that section 89(6) of the Labour Act gives the Labour Court exclusive jurisdiction to deal with the matters that are referred to in section 89(1) of the Labour Act.

Furthermore, it was the appellant's submission, that, section 89(6) of the Labour Act must be read together with section 2A(3) of the Labour Act which provides that the Labour Act shall prevail over any Act that is inconsistent with it.

It was further argued, that, although the High Court is empowered to grant declaraturs in terms of section 14 of the High Court Act [Chapter 7:06], that power is discretionary and ought to be exercised in cases that are justifiable, and that, therefore, the High Court's power to grant a declaratory order in a purely labour matter is curtailed by section 2A(3) of the Labour Act which provides that the Labour Act shall prevail in the event of any inconsistency with any other Act....,.

Per contra, the respondents submitted that there does not exist any conflict of jurisdiction in labour matters between the Labour Act and the High Court Act.

In that sense, they argued that section 89(6) of the Labour Act does not bring all labour disputes exclusively under the jurisdiction of the Labour Court.

It was further submitted, that, section 14 of the High Court Act is not inconsistent with section 89(6) of the Labour Act.

In that sense, the respondents argue that section 2A(3) of the Labour Act is of no application in this matter.

It was further submitted, that, as section 171(1) of the Constitution gives the High Court original jurisdiction over all civil and criminal matters, there does not appear to be any provision in the Constitution that limits the original jurisdiction of the High Court over all civil matters.

In that regard, it was submitted that the proper approach is that the High Court enjoys jurisdiction over all matters, including labour matters, and that, in fact, any unconstitutionality lay in the extent that section 89(6) of the Labour Act seeks to oust the jurisdiction of the High Court.

The respondents finally argued, that, the present matter was distinguishable from the recently decided cases of Nhari v Mugabe & Ors SC161-20 and Chingombe & Anor v City of Harare & Ors SC177-20.

They therefore submitted, that, the nature of the dispute between the parties was such that it required a declaration of rights which only the High Court could hear.

However, in an apparent realization of the weaknesses of their submissions, the respondents posited that if the court was not persuaded by their arguments, this Court should exercise its powers of review, in terms of section 25 of the Supreme Court Act [Chapter 7:13], and proceed to find that the actions of the appellant were unlawful and confirm the decision of the High Court on that basis....,.

This appeal will be decided on the preliminary point of whether or not the court a quo, in the exercise of its power to issue a declaratur, could issue one in a purely labour matter in the light of the provisions of the Constitution and relevant legislation.

WHETHER THE COURT A QUO COULD ISSUE A DECLARATUR IN THE CIRCUMSTANCES

Section 14 of the High Court Act [Chapter 7:06] enjoins the High Court to exercise its discretion, in appropriate cases, and issue a declaratur. Specifically, the provision is couched as follows:

“The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future, or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

Clearly, the power granted to the High Court above is discretionary and can be exercised only in appropriate circumstances.

In casu, the matter at hand was a labour matter, and, the question that ought to be answered is whether the High Court could issue out a declaratur in a matter that is purely labour in nature.

It is prudent to first note, that, the Labour Court is a court of specialised jurisdiction: see Lowveld Rhino Trust v Dhlomo-Bhala SC34-20.

The Constitution 2013, in section 172(2), provides that the Labour Court shall have such jurisdiction over matters of labour and employment as may be conferred by an Act of Parliament.

Section 89(6) of the Labour Act gives the Labour Court exclusive jurisdiction to hear labour matters and it provides thus:

“89 Functions, powers and jurisdiction of Labour Court

(6) No court, other than the Labour Court, shall have jurisdiction, in the first instance, to hear and determine any application, appeal or matter referred to in subs (1)…,.”

The essence of the above provision is that the Labour Court has exclusive jurisdiction when it comes to issues dealing with labour matters at the first instance.

This is further cemented by the provision of section 2A(3) of the Labour Act which provides that the Labour Act shall prevail over any enactment that is inconsistent with it.

Section 89(6) and section 2A(3) of the Labour Act therefore have to be read together.

And, the import of both provisions is that the inherent jurisdiction of the High Court becomes limited by the fact, that, the Labour Court has exclusive jurisdiction in respect of all labour matters at the first instance.

The above vexed question has been answered differently in various episodes of our legal history, which can be identified as the period before the inauguration of the new Constitution in 2013, the immediate post 2013 situation, and the current position.

Before the coming into force of the new Constitution in 2013, the position was settled, that, the High Court had no jurisdiction in matters of labour and employment.

Thus, various decisions handed down by the courts in this period confirm this: for example, in DHL International Ltd v Madzikanda HH51-10; 2010 (1) ZLR 201 (H) it was stated at paragraph 14:

“The Labour Court has exclusive jurisdiction in matters relating to suspensions from employment and that the possession of the employer's property by an employee, in terms of the contract of employment, is so interdependently linked to the contract that one cannot decide one without deciding on the other.”

Similarly, in Moyo v Gwindingwi NO & Anor 2011 (2) ZLR 368 the court held:

“Section 89(6) is clear and unambiguous that 'no court' has jurisdiction over matters falling under the purview of the Labour Court. This court does not possess the machinery to jealously guard its inherent jurisdiction where the legislature has specifically taken it away.”

See also Zimtrade v Makaya 2005 (1) ZLR 427 (H) 429 wherein the court held as follows:

“I am of the opinion that matters relating to suspension from employment with or without salary, and matters relating to dismissals, are specifically within the purview of the Labour Court as these matters are provided for in the Act and the Regulations made thereunder; the jurisdiction of this Court is specifically ousted in respect of matters of dismissals and suspensions, as these are specifically provided for in the Act.”

However, with the advent of the new Constitution in 2013, there followed a period of conflicting decisions in the High Court, with some opinions plumping for the High Court having original jurisdiction on all matters, including those involving labour and employment, on the basis that section 171(1) of the Constitution trumps section 89(6) of the Labour Act.

On the other hand, contrary opinion favoured the view that the Labour Court exercised exclusive jurisdiction, in the first instance, in all matters involving employment and labour.

These cases are concisely discussed in Nhari v Mugabe & Ors SC161-20.

One of the pillars of the opinions which championed the overall and original jurisdiction of the High Court in all matters was that only the High Court has jurisdiction to issue a declaratory order, per section 14 of the High Court Act.

However, in my view, this was an incorrect understanding of the nature of the remedy of a declaratory order.

While section 14 of the High Court Act captures this remedy in its broadest and classical form as a “gentle order” which may be issued with or without any consequential relief, there is absolutely no doubt in my mind that the Labour Court, in its daily operations, does routinely issue declaratory orders; holding, for example, that an employee has been wrongfully dismissed or certain actions constitute unfair labour practices and then proceeding to grant consequential relief.

I make this point to emphasize, that, even in the absence of Nhari v Mugabe & Ors SC161-20, the view of this Court would have been to uphold the Labour Court's exclusive jurisdiction in employment and labour matters.

Moreso, because it would have taken very clear and explicit provisions in the new Constitution to oust the legal regime established and solidified before its enactment.

Happily, the vexed controversy over the exclusive jurisdiction of the Labour Court on all labour matters versus the High Court's unlimited, original jurisdiction on all matters, which had led to “an unhappy state of law” has been put to rest in Nhari v Mugabe & Ors SC161-20 as follows…,.:

“The same Constitution that conferred original jurisdiction on the High Court over all civil and criminal matters also made provision for the creation of other specialised courts, whose jurisdiction over specialised areas of the law, and the exercise of such jurisdiction, was left entirely to Acts of Parliament.

In other words, it is the Constitution itself which has permitted the establishment of these specialized courts, and, in the same breath, provided for the issue of jurisdiction and exercise of such jurisdiction to be left to an Act of Parliament.

Section 172 of the Constitution, which establishes the Labour Court, is not made subject to section 171 which creates the High Court.

The two sections are in pari materia and must therefore be construed together.

In making provision for the establishment of specialised courts in Acts of Parliament, the Constitution has not in any way attempted to fetter or restrict the jurisdiction that is to be conferred upon such courts, or to make such jurisdiction subject to section 171 which creates and provides for the jurisdiction of the High Court.”

The learned Appeal Judge then goes on to give examples of specialised courts such as military tribunals, tax courts, and customary law courts, and concludes, that, not only would it be absurd to extend the jurisdiction of the High Court to all such specialized courts, but it would get the High Court “bogged down in matters over which it may have very little expertise or petty matters that should ordinarily not detain the court.”

Nhari v Mugabe & Ors SC161-20 was followed recently by Chingombe & Anor v City of Harare & Ors SC177-20, where, following their suspension from employment, the appellants unsuccessfully sought a declaration at the High Court that such suspension was unlawful and consequential relief.

The Supreme Court held that “the High Court had no jurisdiction to issue a declaratur in respect of issues of labour and employment” and that “Section 2A of the Labour Act makes it clear, that, notwithstanding the powers of the High Court to issue declaraturs, the Labour Act prevails over all other laws inconsistent with it.”

Accordingly, it this Court's conclusion that the High Court erred in assuming jurisdiction in a purely labour matter. It should have declined jurisdiction.

In light of the above, it is evident that section 25(2) of the Supreme Court Act confers upon this Court the power of review over matters that have come before it by way of appeal. The powers of review are exercisable upon the discovery of any irregularity in the proceedings which took place in the lower court.

In the circumstances, the matter in the High Court was a matter brought about as a result of the appellant's termination of the respondents contracts of employment on notice and replacing those terminated contracts with new ones which provided for remuneration based on productivity.

That, in my view, is purely a labour matter as enshrined in section 89(1) of the Labour Act.

The High Court did not have jurisdiction to hear the matter. Such an irregularity cannot stand.

DISPOSITION

Giving due regard to the submissions made by the parties, and the considerations of the law thereon, the court a quo ought to have declined its jurisdiction on the matter as it was a purely labour issue.

This Court, in the exercise of its review powers, sets aside the decision of the court a quo.

Accordingly, it is ordered as follows:

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

2. The Court, in the exercise of its review powers, in terms of section 25(2) of the Supreme Court Act [Chapter 7:13], hereby sets aside the decision of the court a quo and substitutes it with the following:

“The application is struck off the roll with costs.”

SC94-19 : ZIMBABWE ANTI CORRUPTION COMMISSION vs GIBSON MANGWIRO and CHRISTOPHER CHISANGO
Ruled By: MAVANGIRA JA

This is an application that is headed “Chamber Application for Condonation of Late Filing of Application for Leave to Appeal in terms of Rule 61 of the Supreme Court of Zimbabwe Rules 2018.”BackgroundThe respondents were employed by the applicant. On 14 June 2016 they were brought before a disciplinary committee ...

This is an application that is headed “Chamber Application for Condonation of Late Filing of Application for Leave to Appeal in terms of Rule 61 of the Supreme Court of Zimbabwe Rules 2018.”

Background

The respondents were employed by the applicant. On 14 June 2016 they were brought before a disciplinary committee on allegations of misconduct. They were found guilty. This culminated in their discharge from employment on 14 July 2016.

Aggrieved by the decision, the respondents filed with the Labour Court (the court a quo) an application for review of the proceedings.

The court a quo set aside the dismissal of the respondents. It remitted the matter for a re-hearing before “a properly constituted disciplinary committee.” It also ordered that the respondents “revert to the status quo ante which was suspension pending the disciplinary hearing.”

Aggrieved by the decision of the court a quo, the applicant sought the court a quo's leave to appeal against its decision to this Court.

On 17 August 2018, the court a quo dismissed the application for leave to appeal.

On 28 August 2018, the applicant filed with the Supreme Court a chamber application for leave to appeal, its right to do so deriving from section 92F(3) of the Labour Act [Chapter 28:01]. The application was set down for hearing on 19 October 2018, but was, on that date, struck off the roll.

On 5 April 2019 this application was filed.

The respondents opposed it.

The matter was set down for hearing on 26 July 2019, but was only eventually heard on 20 August 2019.

THIS APPLICATION

Preliminary Issue

At the onset of proceedings, counsel for the respondents raised what he termed a composite preliminary point, to the effect that the matter was not properly before the court and must be struck off the roll with costs.

Counsel for the respondents submitted, that, Rule 61 of the Rules of this Court, in terms of which the applicant has purported to bring this application, is inapplicable in this matter as the Rule only relates to applications for condonation of failure to note an appeal timeously and extension of time for instituting the appeal.

He submitted that Rule 61 of the Supreme Court Rules relates to situations where leave to appeal (where necessary) would have been granted in terms of Rule 60 and a party fails to file its notice of appeal within the time frame stipulated in Rule 60(2) of the Supreme Court Rules. Such a party would then have recourse to Rule 61 and make an application in which it shows special circumstances why its failure should be condoned and extension of time granted.

Counsel for the respondents further submitted, that, the applicant ought to have proceeded in terms of the relevant provisions in Part VI of the Rules. He also made reference to Part VII headed “Miscellaneous Appeals and References” with particular emphasis on Rule 64 of the Supreme Court Rules which provides, that, in the case of a lacuna, the provisions of Part VI shall apply.

The second aspect of the preliminary point was that the applicant's founding papers do not set out factual averments for motivation of extension of time, thereby compounding the impropriety of the application.

Counsel for the applicant, on the other hand, submitted that the application is properly made in terms of Rule 61 of the Supreme Court Rules and is properly before the court.

He submitted, that, Rule 61 of the Supreme Court Rules provides for a “composite or in-series” application and is not only meant for situations where leave to appeal has been granted. He further submitted, that, what the applicant seeks from this Court in this application is “condonation and extension of time to seek leave to appeal.”

If Rule 61 of the Supreme Court Rules is inapplicable, as contended on behalf of the respondents, then, this application ought to be struck off the roll as the court would have no jurisdictional basis on which to relate to it on the merits.

Analysis

Rule 61 of the Supreme Court Rules provides:

“Applications for extension of time to appeal

Save where it is expressly or by necessary implication prohibited by the enactment concerned, a judge may, if special circumstances are shown by way of an application in writing, condone the late noting of the appeal and extend the time laid down, whether by Rule 60 or by the enactment concerned, for instituting an appeal.”

The context of Rule 61 is as a sequel to Rule 60 of the Supreme Court Rules which reads:

“Time within which notice to be given

60(1) Subject to the provisions of Rule 61 and the enactment under which the appeal is lodged, a notice of appeal shall be delivered and filed in accordance with the provisions of Rule 59 within 15 days of the date of the decision appealed against.

(2) An appeal from a decision of the Labour Court in terms of section 92F of the Labour Act [Chapter 28:01] shall be delivered and filed with a registrar within 15 days from the grant of leave to appeal by the Labour Court, or, where such leave is refused, within 15 days from the grant of leave by a judge:

Provided that where leave to appeal is refused by the Labour Court, the applicant shall apply for leave to appeal to a judge within ten days of the refusal to grant leave.”

The right to make an application pursuant to the above quoted proviso to Rule 60(2) of the Supreme Court Rules derives or emanates from section 92F(3) of the Labour Act which provides:

“(1) An appeal on a question of law only shall lie to the Supreme Court from any decision of the Labour Court.

(2) Any party wishing to appeal from any decision of the Labour Court, on a question of law, in terms of subsection (1), shall seek from the President who made the decision leave to appeal that decision.

(3) If the President refuses leave to appeal in terms of subsection (2), the party may seek leave from the judge of the Supreme Court to appeal.”

According to the applicant's founding affidavit, the striking off by this court on 19 October 2018 of the application that had been timeously filed on 28 August 2018 was by consent of the parties, and, it was for the reason that “the appeal record…, was not attached to the application.”

That application having been struck off the roll, the applicant was well within its rights to approach this Court, again, as it has done, by way of the instant application.

Unfortunately, however, the applicant has approached this court in terms of Rule 61 of the Supreme Court Rules as already indicated above.

Rule 61 of the Supreme Court Rules provides for an application to be made for the court to “condone late noting of the appeal and extend the time laid down.”

There is no reference to condonation of failure to apply for leave to appeal timeously. Neither is there any provision in Part VII under which Rule 61 of the Supreme Court Rules falls, that provides for such.

However, Rule 64 of the Supreme Court Rules (in Part VII) provides:

“In the event of any casus omissus in this Part, the provisions of Part VI shall apply, mutatis mutandis.”

In Part VI which is headed “Applications for leave to appeal or extension of time to appeal” Rule 43(3) of the Supreme Court Rules provides as follows:

“An application for condonation of non-compliance with the rules and for extension of time in which to appeal shall have attached to it a notice of appeal containing the matters required in terms of subrule (1) of Rule 37 and an affidavit setting out the reasons why the appeal was not entered in time or leave to appeal was not applied for in time. Counsel may set out any relevant facts in a statement. Where such application is in relation to a matter in which leave to appeal is necessary the application shall, in addition, comply with the requirements of subrule (2).”

Subrule (2) reads:

“An application for leave to appeal shall set out the date on which the High Court refused leave to appeal and shall have attached to it –

(a)…,.

(b)…,.

(c)…,.”

Rule 43(3) of Part VI, applying herein mutatis mutandis, would provide for the making of an application for condonation of non-compliance with the proviso to Rule 60(2) of the Supreme Court Rules, viz, the failure to apply for leave to a judge of this Court within ten days of the refusal to grant leave by a judge of the court a quo.

Subrule (8) of Rule 43 of the Supreme Court Rules is also pertinent in its provision, that:

“If leave to appeal or condonation and extension of time to appeal is granted, the appeal shall be deemed to have been instituted in accordance with the notice of appeal filed in the application on the date on which leave is granted, unless the judge otherwise orders.”

I might comment, in passing, on the draft Notice of Appeal filed together with the application.

It seeks to appeal against the judgment of the court a quo dismissing the applicant's application for “upliftment of bar and condonation of late filing of an application for leave to appeal to the Supreme Court” (sic). The ultimate relief sought, besides being improperly drafted, is for the setting aside of the order refusing leave to appeal and purportedly the substitution thereof with an order that reads:

“The application for upliftment of bar and condonation of filing of application for leave to appeal to the Supreme Court be and is hereby granted.” (sic)

The notice of appeal is therefore not meant to institute an appeal against the decision of the court a quo in the main matter for which leave to appeal was originally sought before the court a quo. The applicant seems to labour under a misconception or probably confusion as to the course it ought to follow.

In essence, the applicant seeks before a judge of this Court condonation for its non-compliance with Rule 60 of the Supreme Court Rules upon which a judge of this Court will then allow it to file its application for leave to appeal within five days of this court's order.

This accords not only with counsel for the applicant's submission cited earlier but with the terms of the draft order that it prays for in this application which reads as follows:

“IT IS ORDERED THAT:

1. The non-compliance with Rule 60 of the Supreme Court Rules be and is hereby condoned.

2. Application for condonation of late filing of application for leave to appeal in terms of Rule 61 of the Supreme Court Rules be and is hereby granted.

3. The applicant is to file its application for leave to appeal within 5 days of this order.

4. That there be no order as to costs.”

The applicant seems unclear as to the correct procedure to be followed.

Its application for leave to appeal having been dismissed by the court a quo, it then applied to this Court for the leave that it supposedly craved. Its first application to this Court was allegedly timeously made, but, unfortunately, for the applicant it was struck off the roll.

It then filed this application.

The “disconnect” now appears from the relief sought herein. The applicant now seeks to go back to the court a quo to seek the very leave that section 92F(3) of the Labour Act and the proviso to Rule 60(2) of the Supreme Court Rules require that it seeks from this Court.

In University of Zimbabwe v Jirira & Another SC12-18 BHUNU JA aptly stated:

“In terms of section 92F(3) of the Labour Act [Chapter 38:01], where a judge of the Labour Court refuses to grant leave to appeal, the applicant may seek leave from a judge of this Court. When a judge of the Supreme Court sits in chambers to decide the application for leave to appeal, he does not treat the application as an appeal against the refusal to grant leave by the court a quo. He simply decides the matter on the merits as if it was fresh application before him/her.”

On a view of the applicable law, as provided in section 92F of the Labour Act as well as Rule 60(2) of the Supreme Court Rules, it is clear that when a party seeks before a judge of this Court leave to appeal, such leave is for the purpose of appealing against the decision in the main matter and not against the refusal to grant leave.

This court cannot possibly be asked to grant leave to the applicant for the applicant to go back to the court a quo for the purposes of seeking leave to appeal as that would be an absurd outcome.

The application in casu is fundamentally flawed. It is not properly before me as it is predicated on an inapplicable Rule and ought to be struck off the roll for that reason.

The applicant ought to have been guided by Rule 43(3) of the Supreme Court Rules and ought to have filed a composite application for;

(i) Firstly, condonation and extension of time within which to apply for leave to appeal to a judge of the Supreme Court; and

(ii) Secondly, leave to appeal.

In its opposing papers, the respondent's stance was that the application was devoid of merit and ought to be dismissed with costs on the higher scale. In oral submissions at the hearing, at which only the preliminary point was argued, counsel for the respondents urged the court to strike the matter off the roll with an order of costs in favour of the respondent.

The preliminary point that was raised at the hearing had not been raised in the opposing papers.

It is trite that costs will follow the cause.

However, I am unable to find any justification for the exercise of my discretion that would justify an award of costs on the higher scale in favour of the respondent.

Rule 61 of the Supreme Court Rules being inapplicable, this application is not properly before me.

It must be, and it is hereby, struck off the roll with costs on the ordinary scale.

SC141-20 : HARARE WETLANDS TRUST vs MINISTER OF ENVIRONMENT, TOURISM & HOSPITALITY and NEWLIFE COVENANT CHURCH and DIRECTOR GENERAL OF THE ENVIRONMENTAL MANAGEMENT AGENCY
Ruled By: CHITAKUNYE AJA

This is a chamber application for condonation of the late noting of appeal and extension of time within which to appeal, purportedly in terms of Rule 38(1) of the Supreme Court Rules 2018.

The brief facts giving rise to this application may be stated as follows:

On 22 September 2016, the first respondent made a decision allowing the second respondent to effect developments on Stand 18962 Boundary Road, Eastlea, Harare, whose location the applicant contends is a wetland.

The decision was made under section 130(3) of the Environmental Management Act [Chapter 20:27].

Section 130 of the Environmental Management Act prescribes a period of 28 days within which an appeal must be filed in these terms:

“(1) Subject to this section, any person who is aggrieved by any decision of any authority in terms of this Act, may, within twenty-eight days after being notified of the decision or action of the authority concerned, appeal in writing to the Minister, submitting with his appeal such fee as may be prescribed:

Provided that such appeal shall not suspend the operation of any order, decision or action of the authority issued by the Authority.

(2) For the purpose of determining an appeal noted in terms of subsection (1), the Minister (if he is not the authority concerned in the appeal) may require the authority to furnish him with the reasons for the decision or action that is the subject of the appeal and a copy of any evidence upon which the reasons are based.

(3) The Minister, after due and expeditious inquiry, may make such order on any appeal noted in terms of subsection (1) as he considers just.

(4) An appeal shall lie to the Administrative Court against any order of the Minister in terms of subsection (3).

(5) An appeal in terms of subsection (4) shall be made in the form and manner and within the period prescribed in the rules of court.

(6) On appeal, in terms of subsection (4), the Administrative Court may confirm, vary, or set aside the decision or action appealed against and may make such order, whether as to costs or otherwise, as the court thinks just.”

The Minister, having made his decision on 22 September 2016, it was apparent that when the applicant sought to appeal against the Minister's decision, in March 2019, it was out of time.

The applicant therefore approached the Administrative Court with an application for condonation of late filing of appeal on 18 March 2019 under Rule 6 of the Administrative Court Rules, SI 122 of 1980.

On 7 June 2019, the applicant's application for condonation of late noting of appeal was dismissed by the Administrative Court for lack of prospects of success.

Aggrieved by that decision, the applicant filed a notice of appeal with this Court on 1 July 2019 and served the same on the other party on 2 July 2019.

The appeal was subsequently set down for hearing on 10 July 2020.

On that date, counsel for the respondent advised counsel for the appellant that the notice of appeal had been filed one day out of time and he was going to raise that as a preliminary point. Counsel for the applicant, without much reflection, conceded and opted to have the matter removed from the roll.

It is in an endeavour to overcome the alleged late filing of the notice of appeal that the applicant has now approached this Court with this application.

In the founding papers, the applicant averred that its notice of appeal was filed one day out of time and proffered reasons for that delay. Those reasons pertained essentially to administrative issues at the law firm of the applicant's legal practitioners.

The applicant asserts, in its founding affidavit, that this is an application for condonation of the applicant's failure to file its notice of appeal against the judgment of the Administrative Court within fifteen days in terms of Rule 38(1)(a) of the Supreme Court Rules 2018 and for an extension of time within which to appeal.

The relief sought was couched as follows:

“It is ordered that:

The failure to file a notice of appeal within fifteen days of the date the judgment appealed against was given, in terms of Rule 38(1)(a) of the Supreme Court Rules 2018, be and is hereby condoned.

The extension of time within which to note an appeal be and is hereby granted. The appeal is to be deemed to have been noted on the date of this order.”

The second respondent opposed the application.

In its opposition, it raised some preliminary points. The preliminary points were that:

(i) The application was not in the form provided for in terms of Practice Direction Number 1 of 2017;

(ii) This is a Rule 43 of the Supreme Court Rules application, yet, the applicant appears to be lodging one in terms of Rule 38 of the Supreme Court Rules; and

(iii) The relief sought is incompetent as Rule 38 of the Supreme Court Rules does not provide for condonation.

The applicant, in its answering affidavit, maintained that the application was compliant with Practice Direction Number 1 of 2017, Form 3. On the appropriate Rule, the applicant agreed that this was an application under Rule 43 of the Supreme Court Rules and that reference to Rule 38 of the Supreme Court Rules was only for the fifteen-day period for lodging an appeal.

On the date of hearing, counsel for the parties maintained their positions on the points in limine.

It was apparent that both counsel were of the view that the appeal in question was under Part VI of the Supreme Court Rules 2018 hence reference to Rule 38 and Rule 43 of the Supreme Court Rules.

It was only after I pointed out that Part VI pertains to civil appeals from the High Court and the appeal in question was from the Administrative Court that counsel for the applicant realized the error and submitted, that, in that case, the application should be under Part VII of the Supreme Court Rules.

She submitted that any reference to Rule 38(1) of the Supreme Court Rules should be substituted with Rule 60(1) of the Supreme Court Rules.

Unfortunately, this belated effort to amend the application, from the bar, could not amend the applicant's founding affidavit in which the applicant was clear on the Rules under which the application was being brought and attempted to provide requirements for condonation under those Rules.

I am of the view, that, where an application is brought under Part VI of the Supreme Court Rules and the founding affidavit is specific in this respect, as in this case, a legal practitioner cannot purport to amend it.

It is also pertinent to note, that, the legal practitioner was not the deponent of the affidavit. She could, therefore, not, in any event, seek to amend an affidavit deposed to by another person and seek to substitute it with provisions under Part VII of the Supreme Court Rules.

It is apparent from a reading of the relevant provisions under those parts that their requirements are not exactly the same.

For instance, Rule 61 of the Supreme Court Rules is to the effect, that, condonation can only be granted if special circumstances are shown by way of application in writing. The applicant must thus address the issue of special circumstances in the application. A Part VI application, on the other hand, does not require the applicant to establish special circumstances (see Rule 43 of the Supreme Court Rules).

The submission by the applicant's counsel, to simply substitute Rule 38(1) with Rule 60(1) of the Supreme Court Rules, is thus untenable.

The application must stand or fall on its founding papers.

Another fatal irregularity with this application is that even if it were to be considered under Part VII, the relief sought is incompetent. Rule 60(1) of the Supreme Court Rules 2018 provides that:

“Subject to the provisions of Rule 61 and the enactment under which the appeal is lodged, a notice of appeal shall be delivered and filed in accordance with provisions of Rule 59 within 15 days of the date of the decision appealed against.”

The aforesaid Rule 61 of the Supreme Court Rules provides that:

“Save where it is expressly, or by necessary implication, prohibited by the enactment concerned, a judge may, if special circumstances are shown by way of application in writing, condone the late noting of the appeal and extend the time laid down, whether by Rule 60 or by the enactment concerned, for instituting an appeal.”

It is apparent that the 15 days period, and extension thereof, is subject to the provisions of the enactment in question. It is only where the enactment permits such extension that this Court may proceed to grant condonation and extension of the period.

In casu, this was an appeal from the Administrative Court and thus the question is: does the relevant enactment provide for extension of time within which to appeal?

Section 20 of the Administrative Court Act, which provides for any aggrieved party to appeal to this Court, states that:

“(1) Subject to subsection (2) and except as otherwise provided in any other enactment, any person who is dissatisfied with any decision of the Court may lodge an appeal with the Supreme Court within the period of twenty-one days immediately following the announcement by the Court of such decision.”

The section, or any part of the Administrative Court Act, does not in any way give leeway for the extension of that period of 21 days. Once an aggrieved party decides to appeal, such appeal must be lodged within 21 days.

In Shumba v Chairman, ZEC and Another HH116-08; 2008 (2) ZLR 370 (H)…, the court aptly noted in paragraph 23 the following on the use of the term 'within' before a period:

“The thirty-day period is peremptory because of the use of the word 'within' before the stipulated period. In Black's Law Dictionary, 5th Edition, the word 'within' when used relative to time has been defined, variously, as meaning 'time before, at or before, at the end of, not later than.' It is clear from the above definitions that the period of thirty days cannot be exceeded.”

Further, in commenting on the application to condone non-compliance with the stated 30-day period, the court aptly opined in paragraph 26, that:

“The applicant is asking me to condone an act provided for in an Act of Parliament. I have no such powers.

It is trite that Rules of this court cannot interfere or derogate from a specific provision of the Act. Rules are subordinate to an enactment.

To ask the court to condone a period provided for in an enactment, as urged by the applicant, would be to usurp the functions of the legislature, by purporting to amend a specific provision, which this or any other court cannot do: see Registrar General of Elections v Combined Harare Residents Association & Anor SC07-02 at p6 of the cyclostyled judgment.”

It is clear, therefore, that this Court has no jurisdiction to entertain an application for condonation for failure to comply with the period provided in section 20 of the Administrative Court Act.

That section has no provision for condonation and for extension of the period provided within which to appeal, and so, by necessary implication, Parliament did not intend that such period be extended.

Accordingly, the relief sought is incompetent.

In the circumstances, it is not necessary to consider the other point as there is no competent application before me.

On costs, I am of the view that as both parties were intent on arguing on the wrong premise, that the application was under of Part VI of the Supreme Court Rules, it is only proper that each party bears their own costs.

The application is therefore dismissed with each party bearing their own costs.

SC148-21 : NESTLE ZIMBABWE (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

This is an appeal against part of the judgment of the Special Court for Income Tax Appeals, handed down on 25 March 2020, which dismissed the appellant's appeal filed in terms of section 65 of the Income Tax Act [Chapter 23:06] (“the Act”) against the decision of the respondent.

The respondent had dismissed certain aspects of an objection filed by the appellant against various amended assessments that the respondent had issued.

FACTUAL BACKGROUND

The respondent, which is the administrative body tasked with assessment, collection, and enforcement of the payment of taxes leviable under the Income Tax Act, carried out an investigation and audit into the appellant's tax compliance for annual income tax assessment returns for the period 2009 to 2013.

The investigation constituted a review into the appellant's submitted tax self-assessment returns.

Several documents were submitted to the respondent, and a number of meetings were held between the parties. During the scope of the review, the respondent noted numerous anomalies within the tax self-assessment returns submitted by the appellant.

Thereafter, on 1 June 2016, the respondent issued five amended tax assessments for the 2009 to 2013 tax years on all the disputed issues claiming an aggregate amount of US$4,905,776=34.

The appellant proceeded to note its objection to the amended income tax assessments in terms of section 62 of the Income Tax Act. The appellant's objections centred on prescription regarding the 2009 income tax year, written-off bad debts, disallowed excess capital, accrued expenses, management fees, and excess royalty payments on brands.

On 26 September 2016, the Commissioner determined the objections lodged by the appellant.

The Commissioner held, that, he was entitled to issue amended tax assessments with regards to the tax year 2009 as a result of the various misrepresentations arising from excess capital allowances, unrealised exchange losses, and bad debts that were deducted from the taxable income and were unsubstantiated.

In respect of the other years, the Commissioner largely disallowed the objections lodged by the appellant except excess royalty on grossed up payments due to adjustments on withholding tax which was paid late.

The respondent ruled, that, the fifty per centum penalty on unpaid principal tax would remain in force to deter non-compliance.

The appellant, dissatisfied with the determination by the Commissioner, appealed to the court a quo.

At the pre-hearing meeting, the parties settled ten issues to be determined by the court a quo. During the hearing, the appellant called evidence of two tax experts and produced two sets of documentary exhibits.

The respondent did not call oral evidence but relied on the pleadings filed of record.

The court a quo made the following findings in respect of the issues appealed against. It found that —

(i) The respondent was entitled to re-open the 2009 tax assessment, after six years, in terms of section 47(1)(ii) of the Income Tax Act in light of the misrepresentation by the appellant of its tax affairs in its tax returns;

(ii) The respondent correctly disallowed capital allowances for mark-ups on capital assets acquired by the appellant's related company exceeding the perimeter of the margins used by the appellant's Group as these were in excess of the unconditional legal obligation to pay the related company;

(iii) The appellant had failed to prove that the basis of the deductions on management fees were equivalent to the cost mark-up formula provided in the appellant's Management Services Agreement and that the respondent had correctly disallowed the deductions in respect of the management fees relating to the appellant's related company;

(iv) The appellant could not claim deductions in respect of brands as this expenditure was indivisible from expenditure in respect of intellectual property.

The appellant, aggrieved by the decision of the court a quo, noted an appeal to this Court against part of the judgment on the following grounds:

GROUNDS OF APPEAL

“1. The learned President erred as a matter of law in determining that the word 'misrepresentation' as used in proviso (ii) of section 47(1) of the Income Tax Act [Chapter 23:06] fell to be interpreted as any error made by the taxpayer in submitting a return, regardless of the state of mind of the taxpayer.

2. The learned President erred on the facts in finding that the appellant had misrepresented any facts to the respondent when it filed its self–assessment for the tax year ending 31 December 2009.

3.The learned President accordingly erred in finding that the respondent was entitled, as a matter of law, to issue an amended assessment in respect of the tax year ending 31 December 2009.

4. The learned President erred as a matter of law and fact in holding, that, the appellant was only entitled to a deduction, in terms of section 15 of the Income Tax Act, in respect of charges raised by and paid to a related party on the acquisition of capital goods on the basis of an unconditional legal obligation to pay rather than on the basis of expenditure actually incurred in the tax year in which the deduction was made, for the purpose of trade and producing income, and erred in imposing a ceiling of Swiss francs 8,000 on such expenditure.

5.The learned President erred in fact by rejecting the evidence of the appellant as to the amount it had actually expended in each of the tax years in question in respect of management fees, which, because of exchange control requirements, had been capped at 2% of its annual turnover, and which amount had actually been paid to its regional management service company in the Republic of Kenya, and was thus expenditure actually incurred for the purposes of its business and in the production of income, and, as such, deductible in terms of the legislation.

6.The learned President erred in fact and as a matter of law in holding, that, the appellant was not entitled to claim a deduction in terms of section 15 of the Income Tax Act in respect of expenses incurred on branding, and disregarded the fact that those expenses were actually incurred for the purposes of its trade or the production of income.

7.The learned President erred both as a matter of law and as a matter of fact in holding that tax was payable on expenditure incurred in respect of branding yet having agreed that the expenditure was deductible for corporate income tax, being indivisible from expenditure incurred in the use and application of other intellectual property rights.”

RELIEF SOUGHT

The appellant prays that the appeal be allowed and that an order for costs be made in its favour in terms of section 15(2)(bb) of the Income Tax Act [Chapter 23:06], and that paragraph 2 of the order of the Special Court for Income Tax Appeal be altered as follows:

(i) By the deletion from sub–paragraph (c) thereof of US$32,094=23 to the 2009 tax year;

(ii) By the deletion from sub–paragraph (d) thereof of US$303,379 to the 2009 tax year;

(iii) By the deletion therefrom of sub–paragraphs (e), (f), and (h);

(iv) By the insertion at the end of sub–paragraph (i) of the words 'other than the 2009 tax year'.

SUBMISSIONS BEFORE THIS COURT

At the hearing of the appeal, counsel for the appellant, took two preliminary points which were not raised in the appellant's Heads of Arguments:

(i) His first point was that a quo the respondent did not lead any evidence.

It was only the appellant that led evidence.

He stated that this has consequences in that in the absence of evidence led by the taxman, the prima facie case led by the appellant coalesces into a conclusive case in its favour. For authority he relied on CIR v Middleman 1991 (1) SA 200 (C) and A & Anor v Commissioner of Taxes 2018 ZATC 10.

He submitted, that, in respect of issues relating to management fees, handling fees, and branding fees, it is only the taxpayer which established a case before the court a quo.

(ii) Counsel for the appellant's second point was that the assessments before the court a quo, for tax years 2010 to 2013, did not comply with the requirements of section 2 of the Income Tax Act.

He submitted, that, in effect, there were no assessments. For authority, he relied on Barclays Bank of Zimbabwe v Zimbabwe Revenue Authority HH162-04; 2004 (2) ZLR 151 (H).

The assessment for the year 2009 would otherwise have been an assessment as contemplated in terms of section 2 of the Income Tax Act but negated its validity upon being made “subject to an audit”.

It was his submission, that, the position of the law is that if a taxman is adjusting an assessment, he cannot make that assessment subject to an audit because it is a correction of an assessment already accepted.

On the merits, counsel for the appellant contended, that, the purported revised assessments did not contain a statement stating the respondent's reasons for undertaking the re-assessment, which is contrary to the law.

He submitted that section 37A(13) of the Income Tax Act provides, that, if the Commissioner intends to re-visit an assessment he is required to include, with the re-assessment, a statement of reasons why he considers it necessary to make such an assessment. There were no such statements in respect of all the assessments in issue that were before the court a quo.

Where the taxman intends to re-visit a prescribed assessment, he must be satisfied that there has been fraud, wilful non-disclosure, or misrepresentation.

The existence of the fraud, wilful non-disclosure, or fraud must be communicated in the statement.

There is no such statement regarding the 2009 assessment. The factors that must be considered before a prescribed assessment can be re-assessed do not exist. For that reason, the 2009 assessment must be withdrawn.

Counsel for the appellant further submitted, that, misrepresentation, in terms of the Income Tax Act, must be construed with regard to the taxpayer's intentions or state of mind. He contended, that, any contrary interpretation voids the statutory immunity provided in section 47 of the Income Tax Act.

Regarding management fees, counsel for the appellant submitted, that, the taxman does not determine the necessity of expenditure or regulate how the taxpayer runs his affairs. He submitted, that, once expenditure has been incurred in the production of income, it is deductible. He also submitted, that, on branding fees, the appellant led evidence on payments made for technical assistance which was not rebutted.

Per contra, counsel for the respondent submitted, that, in terms of section 63 of the Income Tax Act, the onus to prove that one is not liable to tax lies with the taxpayer.

Counsel submitted, that, detailed assessments were provided on p98 of the record which negated the preliminary points raised by the appellant.

On the merits, counsel for the respondent submitted, that, misrepresentation ought to be construed on an objective basis that does not delve into the intentions of the taxpayer. He also submitted, that, the respondent failed to show how the management fees were expended in the production of income. In respect of branding fees, he submitted that intellectual property expenditure could not be separated from branding. Hence, the court a quo was justified in disallowing the deduction.

On the need for a statement in terms of section 37A(13) of the Income Tax Act, counsel for the respondent submitted the statements were provided to the appellant, although they do not appear in the record.

This is explained by the fact, that, the appellant did not raise these issues in its objection and in the court a quo.

There was, however, an extensive exchange of documents between the parties in respect of the tax period between 2009 and 2013. There is a document on p123 of the record that reflects that the appellant was aware that the assessment of 2009 is being re-opened as it is the only year affected by prescription.

ISSUES FOR DETERMINATION

1. Whether the assessments that were before the court a quo complied with the provisions of section 2 of the Income Tax Act?

2. What is the effect of failure by the respondent to lead evidence before the court a quo?

3. Whether or not the court a quo erred in its interpretation of 'misrepresentation' and finding that the respondent had a legal basis to issue an amended assessment in respect of the tax year 2009?

4. Whether or not the appellant was entitled to a capital expenditure allowance in respect of handling fees paid in the acquisition of capital assets?

5. Whether or not the appellant was entitled to a deduction based on management fees?

6.Whether or not the appellant could claim deductions for branding costs as expenditure distinct from that incurred in the use and application of other intellectual property rights in the production of income?

APPLICATION OF THE LAW TO THE FACTS

I will start by dealing with the points in limine raised by counsel for the appellant before delving into the merits of the appeal. In doing so, I will deal with the second point in limine first as it might dispose of the appeal.

Counsel for the appellant's second point in limine was that there were no assessments a quo as is defined in section 2 of the Income Tax Act and as laid down in Barclays Bank of Zimbabwe v Zimbabwe Revenue Authority HH162-04; 2004 (2) ZLR 151 (H).

He submitted, that, the assessment for the year 2009 could have passed as an assessment were it not for the remark that 'the assessment is subject to an audit'. This also applies to the assessments for the year 2010 and 2011. They negate their validity by the endorsement 'subject to an audit.'

In respect of the years 2012 and 2013, the purported assessments do not meet the requirements of section 2 of the Income Tax Act at all. Those kind of documents are not known in law.

He further contended, that, our tax system is based on self-assessment. If the taxman accepts the self-assessment in terms of section 37A of the Income Tax Act, it becomes his assessment. If he raises queries or adjusts that assessment, what he then issues is a final assessment. It cannot be an estimate or subject to an audit. The assessments in issue are therefore invalid on that basis.

Counsel for the respondent started by pointing out that the issues being raised by counsel for the appellant were being raised for the first time in this court. They were not raised in the objection to the Commissioner neither were they raised in the court a quo.

He however submitted, that, for a taxpayer to object in terms of section 62 of the Income Tax Act and to appeal in terms of section 65 of the Income Tax Act, there would have to be an assessment. Where there is no assessment, there can be no valid objection or appeal.

If the appellant felt that there were no valid assessments, it should have approached the High Court seeking a declaratur to that effect.

On being engaged by the court in respect of the purported assessments for 2012 and 2013, he conceded that the documents do not meet the requirements of section 2 of the Income Tax Act.

He, however, sought to explain that there is an endorsement that “a detailed assessment can be made available on request'. He then directed the court to p98 for the detailed statement of the taxable income, deductions, and the tax payable.

On being further engaged on what the import of the term “this assessment is subject to audit” was, he submitted that it meant that the assessment was as a result of an audit that was done and not that it is going to be the subject of a further audit.

I must observe that the points raised by counsel for the appellant were points of law which can be raised at any time. It is trite and requires no authority that a point of law can be raised at any time provided that there is no prejudice to the other party. Counsel for the respondent did not seriously contest the point. He also did not argue that the respondent would be prejudiced in any way.

As was stated in Barclays Bank of Zimbabwe v Zimbabwe Revenue Authority HH162-04; 2004 (2) ZLR 151 (H), an assessment must contain the taxable income and the credits to which a person is entitled or the determination of an assessed loss ranking for deduction.

Going by the above definition, the purported assessments for the years 2012 and 2013 fall far short of being assessments as defined in section 2 of the Income Tax Act. The document on p98 titled 'Income Tax Computation' did not, and could not, save the respondent. It is a detailed assessment covering the period 2009 to 2013.

There is no provision in the Income Tax Act for such an omnibus assessment.

Counsel for the respondent conceded the point in respect of the assessments for the years 2012 and 2013.

The concession is properly made.

The assessments for the years 2009, 2010 and 2011 would have met the requirements of the Income Tax Act were it not for the endorsement that they were subject to an audit.

Counsel for the respondent struggled when asked to explain the import of the endorsement “subject to audit.”

Counsel for the appellant's point, which I agree with, is that when the respondent issues an assessment, after having considered a taxman's self-assessment, that resultant assessment is final. It cannot be subject to an audit.

There is no provision for such an assessment in terms of section 2 of the Income Tax Act.

The only endorsements permitted on an assessment are found in section 51 of the Income Tax Act, such as notice of the period within which to file an objection.

The rationale for the Commissioner to comply with the Income Tax Act, regarding assessments, was given in Barclays Bank of Zimbabwe v Zimbabwe Revenue Authority HH162-04; 2004 (2) ZLR 151 (H)…, as follows:

“It is imperative that an assessment contains the requirements of the Act, as the administrative functions bestowed by the Act on the Commissioner amount to a determination which is executable through a garnishee. He is also bestowed with the power to hear any objections, in terms of the assessment made, after which he can insist on payment of the tax pending the determination of any dispute arising from an assessment. The legislature could only have envisaged granting the Commissioner power to execute pending determination in circumstances where the taxpayer has been clearly advised of the basis for the assessment.

In addition, section 51 requires the taxpayer to be given due notice of the assessment and the tax payable in the manner stipulated in that section. There should be no doubt as to whether the document sent by the Commissioner to a tax payer is an assessment in view of the taxpayer's right to object within 30 days.

Annexure A is not headed 'Notice of Assessment' nor 'Assessment' and does not give 30 days notice for objection as is required by the Act. Further, the document cannot be said to constitute an assessment as it falls short of the definition of assessment in terms of section 2 of the Act.

In the process of serving the taxpayer with an assessment and hearing objection, the Commissioner should comply with the provisions of the Act as his administrative acts have far reaching consequences of a garnishee on the taxpayer.”

Although the above remarks were made in a case where the Commissioner had issued a garnishee order to a disputed assessment, they apply with equal force in casu.

There should never be any doubt as to whether what the Commissioner would have issued is an assessment or not, as any default by the taxpayer can be met with the administrative powers bestowed on the Commissioner in the Income Tax Act.

In view of the above, the assessments are null and void as they were issued contrary to the requirements of the Income Tax Act. They were a nullity and cannot create any obligation to pay tax.

What this means is that there were no proper assessments for the court a quo to relate to. Consequently, there is no proper appeal before this court.

Counsel for the appellant's second point in limine has merit and is upheld.

Having made the above findings, it will not be necessary for me to deal with the first point in limine raised by counsel for the appellant and the merits of the matter.

This is an appropriate case to invoke the provisions of section 25(2) of the Supreme Court Act [Chapter 7:13] to set aside the proceedings of the court a quo as they are irregular. Costs will follow the cause.

Accordingly, I will make the following order:

1. In terms of the powers set out in section 25(2) of the Supreme Court Act, the proceedings of the court a quo, in ITC 9/2016, be and are hereby set aside.

2. The respondent is to pay the appellant's costs in terms of section 15(2)(bb) of the Income Tax Act [Chapter 23:06].

SC165-21 : SHARADKUMAH PATEL and MEADOWS (PVT) LTD vs THE COSMO TRUST and OTHERS
Ruled By: GARWE JA, GUVAVA JA and MATHONSI JA

Where a court, or any administrative authority, finds that procedural prerequisites have not been complied with in an application, it does not dismiss the application. It should strike the matter of the roll. This would enable the affected party to correct the procedure and thereafter approach the court again for ...

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Final Orders re: Procedural Irregularities iro Approach ito Discretion to Condone, Interfere, Dismiss, Remit or Strike

SC30-22 : RIOZIM LTD and RM ENTERPRISES (PVT) LTD vs MARANATHA FERROCHROME (PVT) LTD and JUSTICE MTSHIYA (RTD) Ruled By: MAVANGIRA JA, UCHENA JA and MATHONSI JA

SC32-22 : CUTHBERT DUBE vs PREMIER MEDICAL INVESTMENTS (PVT) LTD and PREMIER SERVICE MEDICAL AID SOCIETY Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

SC52-22 : AL SHAMS GLOBAL BVI LIMITED vs DEPOSIT PROTECTION CORPORATION and KIITUMETSI ZAWANDA and EQUITY PROPERTIES (PVT) LTD and REGISTRAR OF DEEDS N.O. Ruled By: MATHONSI JA, KUDYA JA and MUSAKWA JA

SC52-22 : AL SHAMS GLOBAL BVI LIMITED vs DEPOSIT PROTECTION CORPORATION and KIITUMETSI ZAWANDA and EQUITY PROPERTIES (PVT) LTD and REGISTRAR OF DEEDS N.O. Ruled By: MATHONSI JA, KUDYA JA and MUSAKWA JA

Appealed HHHH262-10 : ZIMBABWE POSTS (PVT) LTD vs COMMUNICATION AND ALLIED SERVICES WORKERS UNION OF ZIMBABWE Ruled By: MUTEMA J

View Appeal SCSC20-16 : ZIMBABWE POSTS (PRIVATE) LIMITED vs COMMUNICATION AND ALLIED SERVICES UNION Ruled By: MALABA DCJ, GOWORA JA and HLATSHWAYO JA

SC81-22 : EDMORE MAPONDERA and 55 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LIMITED Ruled By: MAVANGIRA JA, BHUNU JA and CHITAKUNYE JA

SC81-22 : EDMORE MAPONDERA and 55 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LIMITED Ruled By: MAVANGIRA JA, BHUNU JA and CHITAKUNYE JA

SC85-22 : BERNARD MUTANGA vs TSITSI MUTANGA Ruled By: MAVANGIRA JA, UCHENA JA and MUSAKWA JA

SC88-22 : LOT SYATIMBULA vs CITY OF VICTORIA FALLS (FORMERLY VICTORIA FALLS MUNICIPALITY) Ruled By: GWAUNZA DCJ, MATHONSI JA and CHIWESHE JA

SC102-22 : SAMANTHA NHENDE vs ANDREW ZIGORA and REGISTRAR OF DEEDS N.O. Ruled By: BHUNU JA, MATHONSI JA and CHATUKUTA JA

SC103-22 : BENSON MAKACHI and MR. MUGAVA and SIMON NOTA and SILAS GWESHE and GIBSON MUTSAKA and EVERSON BREAKFAST and DAVISON CHIVESO and FREDSON GAMA vs EVANGELICAL CHURCH OF ZIMBABWE Ruled By: UCHENA JA, CHITAKUNYE JA and CHATUKUTA JA

SC106-22 : ROLEN TRADING (PRIVATE) LIMITED vs PARKSIDE HOLDINGS (PRIVATE) LIMITED Ruled By: MAKARAU JA, GOWORA JA and BERE JA

View Appeal HBHB160-21 : BLANKET MINE (1983) (PVT) LTD vs FISANI MOYO and VALENTINE MINE (Represented by THOMSON MOYO) and ZIMBABWE REPUBLIC POLICE, GWANDA and PROVINCIAL MINING DIRECTOR N.O. Ruled By: KABASA J

View Appeal HH240-15 : VALENTINE ZISWA and MARGARET ZISWA vs GREAEME CHADWICK and LANDOS FARM (PVT) LTD Ruled By: MATHONSI J

SC03-15 : PORTLAND HOLDINGS LTD vs TUPELOSTEP INVESTMENTS (PROPRIETARY) LIMITED and TOBACCO WAREHOUSE & EXPORT t/a BAK LOGISTICS Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

SC13-23 : ERICA NDEWERE vs PRESIDENT OF THE REPUBLIC OF ZIMBABWE and SIMBI MUBAKO and CHARLES WARARA and YVONNE MASVORA Ruled By: MATHONSI JA, CHATUKUTA JA and MWAYERA JA

SC13-23 : ERICA NDEWERE vs PRESIDENT OF THE REPUBLIC OF ZIMBABWE and SIMBI MUBAKO and CHARLES WARARA and YVONNE MASVORA Ruled By: MATHONSI JA, CHATUKUTA JA and MWAYERA JA

SC28-22 : RIOZIM (PVT) LTD vs FALCON RESOURCES (PVT) LTD and RUSUNUNGUKO NKULULEKO (PVT) LTD Ruled By: MALABA CJ, UCHENA JA and CHIWESHE AJA

SC40-17 : FADZAI JOHN vs DELTA BEVERAGES LIMITED Ruled By: GUVAVA JA

SC44-20 : TAFADZWA SAKAROMBE N.O. and WONDER SIMUKA vs MONTANA CARSWELL MEATS (PVT) LTD Ruled By: GOWORA JA, PATEL JA and BERE JA

SC52-19 : ZIMBABWE OPEN UNIVERSITY vs PERPETUAL NDEKWERE Ruled By: GARWE JA, GUVAVA JA and MAVANGIRA JA

SC86-23 : GUTU RURAL DISTRICT COUNCIL vs JASON MUGAYO Ruled By: GWAUNZA DCJ, MAKONI JA and CHITAKUNYE JA

Appealed SC78-23 : SAVIOUR KASUKUWERE vs LOVEDALE MANGWANA and ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS Ruled By: GUVAVA JA, BHUNU JA and CHATUKUTA JA

SC91-19 : MISHECK MABEZA vs SANDVIK MINING (2) CONSTRUCTION (PRIVATE) LIMITED Ruled By: GOWORA JA, PATEL JA and BHUNU JA

CC04-23 : EDWIN MUSHORIWA and FIRINNE TRUST OPERATING AS VERITAS and BRIAN CROZIER and VALERIE INGRAM-THORPE vs PARLIAMENT OF ZIMBABWE and PRESIDENT OF THE REPUBLIC OF ZIMBABWE Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

Appealed CC05-24 : PENELOPE DOUGLAS STONE and RICHARD BEATTIE t/a Stone/Beattie Studio Partnership vs CENTRAL AFRICA BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

View Appeal HH118-23 : PENELOPE STONE and RICHARD BEATTIE t/a Stone/Beattie Studio Partnership vs CENTRAL AFRICA BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE & ECONOMIC DEVELOPMENT Ruled By: MAFUSIRE J

View Appeal HH118-23 : PENELOPE STONE and RICHARD BEATTIE t/a Stone/Beattie Studio Partnership vs CENTRAL AFRICA BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE & ECONOMIC DEVELOPMENT Ruled By: MAFUSIRE J

CC07-23 : RITA MBATHA vs VINCENT NCUBE and MESSENGER OF COURT Ruled By: PATEL JCC

CC08-23 : QEDISANI MACHINE vs SHERIFF OF ZIMBABWE and ZB BANK LIMITED and REGISTRAR OF DEEDS and PAPERHOLE INVESTMENTS (PVT) LTD Ruled By: GARWE JCC, MAKARAU JCC and HLATSHWAYO JCC

CC09-23 : TENDAI MASHAMANDA vs BARIADE INVESTMENTS (PVT) LTD and PUWAYI CHIUTSI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT and ELLIOT ROGERS and ATTORNEY GENERAL ZIMBABWE Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

CC13-23 : PATRICIA DENGEZI vs MUNYARADZI NYAMURURU and XOLISAN MOYO and CHAMPIONS INSURANCE COMPANY LTD and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

CC01-14 : KISIMUSI DHLAMINI and GANDI MUDZINGWA and CHINOTO ZULU and ANDRISON MANYERE and ZACHARIAH NKOMO and REGIS MUJEYE and MAPFUMO GARUTSA vs THE STATE Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and CHEDA AJA

CC09-15 : DOUGLAS MWONZORA and OTHERS vs THE STATE Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and MAVANGIRA AJCC

CC12-14 : HELEN MATIASHE vs HONOURABLE MAGISTRATE MAHWE N.O. and ATTORNEY GENERAL OF ZIMBABWE Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and PATEL JA

HH329-13 : RICHARD JAMBO vs CHURCH OF THE PROVINCE OF CENTRAL AFRICA and ANGLICAN DIOCESE OF MASVINGO and DEPUTY SHERIFF CHIVHU N.O. Ruled By: GUVAVA J

SSC28-17 : SAMSON MUTERO vs THE STATE Ruled By: GWAUNZA JA, GOWORA JA and MAVANGIRA AJA

SSC34-13 : TONGAI MATUTU vs THE STATE Ruled By: MALABA DCJ, ZIYAMBI JA and PATEL AJA

CC13-20 : THABANI MPOFU vs ZIMBABWE ENERGY REGULATORY AUTHORITY and MINISTER OF ENERGY AND POWER DEVELOPMENT and GREEN FUELS (PVT) LTD Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWEJCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA JCC

SC31-12 : ROBERT DOMBODZVUKU vs CMED (PVT) LTD Ruled By: OMERJEE AJA

View Appeal SC50-12 : CABAT TRADE AND FINANCE vs MOVEMENT OF DEMOCRATIC CHANGE Ruled By: MALABA DCJ, GOWORA JA and OMERJEE AJA

SC58-15 : ERICKSON MVUDUDU vs AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY Ruled By: MALABA DCJ, GWAUNZA JA and PATEL JA

SC59-21 : LIVING WATERS THEOLOGICAL SEMINARY vs REVEREND NGONI CHIKWANHA Ruled By: MALABA CJ, UCHENA JA and CHIWESHE AJA

SC73-19 : CUTHBERT DUBE vs PREMIER SERVICE MEDICAL AID SOCIETY and PREMIER SERVICE MEDICAL INVESTMENTS Ruled By: GARWE JA

View Appeal SC84-22 : TN HARLEQUIN LUXAIRE LTD vs MBERIKUNASHE MASVIMBO and 14 OTHERS Ruled By: GARWE JA, HLATSHWAYO JA and GUVAVA JA

SC94-19 : ZIMBABWE ANTI CORRUPTION COMMISSION vs GIBSON MANGWIRO and CHRISTOPHER CHISANGO Ruled By: MAVANGIRA JA

SC141-20 : HARARE WETLANDS TRUST vs MINISTER OF ENVIRONMENT, TOURISM & HOSPITALITY and NEWLIFE COVENANT CHURCH and DIRECTOR GENERAL OF THE ENVIRONMENTAL MANAGEMENT AGENCY Ruled By: CHITAKUNYE AJA

SC148-21 : NESTLE ZIMBABWE (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

SC165-21 : SHARADKUMAH PATEL and MEADOWS (PVT) LTD vs THE COSMO TRUST and OTHERS Ruled By: GARWE JA, GUVAVA JA and MATHONSI JA

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SC30-22 : RIOZIM LTD and RM ENTERPRISES (PVT) LTD vs MARANATHA FERROCHROME (PVT) LTD and JUSTICE MTSHIYA (RTD)
Ruled By: MAVANGIRA JA, UCHENA JA and MATHONSI JA

SC32-22 : CUTHBERT DUBE vs PREMIER MEDICAL INVESTMENTS (PVT) LTD and PREMIER SERVICE MEDICAL AID SOCIETY
Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

SC52-22 : AL SHAMS GLOBAL BVI LIMITED vs DEPOSIT PROTECTION CORPORATION and KIITUMETSI ZAWANDA and EQUITY PROPERTIES (PVT) LTD and REGISTRAR OF DEEDS N.O.
Ruled By: MATHONSI JA, KUDYA JA and MUSAKWA JA

SC52-22 : AL SHAMS GLOBAL BVI LIMITED vs DEPOSIT PROTECTION CORPORATION and KIITUMETSI ZAWANDA and EQUITY PROPERTIES (PVT) LTD and REGISTRAR OF DEEDS N.O.
Ruled By: MATHONSI JA, KUDYA JA and MUSAKWA JA

Appealed
HHHH262-10 : ZIMBABWE POSTS (PVT) LTD vs COMMUNICATION AND ALLIED SERVICES WORKERS UNION OF ZIMBABWE
Ruled By: MUTEMA J

View Appeal
SCSC20-16 : ZIMBABWE POSTS (PRIVATE) LIMITED vs COMMUNICATION AND ALLIED SERVICES UNION
Ruled By: MALABA DCJ, GOWORA JA and HLATSHWAYO JA

SC81-22 : EDMORE MAPONDERA and 55 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LIMITED
Ruled By: MAVANGIRA JA, BHUNU JA and CHITAKUNYE JA

SC81-22 : EDMORE MAPONDERA and 55 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LIMITED
Ruled By: MAVANGIRA JA, BHUNU JA and CHITAKUNYE JA

SC85-22 : BERNARD MUTANGA vs TSITSI MUTANGA
Ruled By: MAVANGIRA JA, UCHENA JA and MUSAKWA JA

SC88-22 : LOT SYATIMBULA vs CITY OF VICTORIA FALLS (FORMERLY VICTORIA FALLS MUNICIPALITY)
Ruled By: GWAUNZA DCJ, MATHONSI JA and CHIWESHE JA

SC102-22 : SAMANTHA NHENDE vs ANDREW ZIGORA and REGISTRAR OF DEEDS N.O.
Ruled By: BHUNU JA, MATHONSI JA and CHATUKUTA JA

SC103-22 : BENSON MAKACHI and MR. MUGAVA and SIMON NOTA and SILAS GWESHE and GIBSON MUTSAKA and EVERSON BREAKFAST and DAVISON CHIVESO and FREDSON GAMA vs EVANGELICAL CHURCH OF ZIMBABWE
Ruled By: UCHENA JA, CHITAKUNYE JA and CHATUKUTA JA

SC106-22 : ROLEN TRADING (PRIVATE) LIMITED vs PARKSIDE HOLDINGS (PRIVATE) LIMITED
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

View Appeal
HBHB160-21 : BLANKET MINE (1983) (PVT) LTD vs FISANI MOYO and VALENTINE MINE (Represented by THOMSON MOYO) and ZIMBABWE REPUBLIC POLICE, GWANDA and PROVINCIAL MINING DIRECTOR N.O.
Ruled By: KABASA J

View Appeal
HH240-15 : VALENTINE ZISWA and MARGARET ZISWA vs GREAEME CHADWICK and LANDOS FARM (PVT) LTD
Ruled By: MATHONSI J

SC03-15 : PORTLAND HOLDINGS LTD vs TUPELOSTEP INVESTMENTS (PROPRIETARY) LIMITED and TOBACCO WAREHOUSE & EXPORT t/a BAK LOGISTICS
Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

SC13-23 : ERICA NDEWERE vs PRESIDENT OF THE REPUBLIC OF ZIMBABWE and SIMBI MUBAKO and CHARLES WARARA and YVONNE MASVORA
Ruled By: MATHONSI JA, CHATUKUTA JA and MWAYERA JA

SC13-23 : ERICA NDEWERE vs PRESIDENT OF THE REPUBLIC OF ZIMBABWE and SIMBI MUBAKO and CHARLES WARARA and YVONNE MASVORA
Ruled By: MATHONSI JA, CHATUKUTA JA and MWAYERA JA

SC28-22 : RIOZIM (PVT) LTD vs FALCON RESOURCES (PVT) LTD and RUSUNUNGUKO NKULULEKO (PVT) LTD
Ruled By: MALABA CJ, UCHENA JA and CHIWESHE AJA

SC40-17 : FADZAI JOHN vs DELTA BEVERAGES LIMITED
Ruled By: GUVAVA JA

SC44-20 : TAFADZWA SAKAROMBE N.O. and WONDER SIMUKA vs MONTANA CARSWELL MEATS (PVT) LTD
Ruled By: GOWORA JA, PATEL JA and BERE JA

SC52-19 : ZIMBABWE OPEN UNIVERSITY vs PERPETUAL NDEKWERE
Ruled By: GARWE JA, GUVAVA JA and MAVANGIRA JA

SC86-23 : GUTU RURAL DISTRICT COUNCIL vs JASON MUGAYO
Ruled By: GWAUNZA DCJ, MAKONI JA and CHITAKUNYE JA

Appealed
SC78-23 : SAVIOUR KASUKUWERE vs LOVEDALE MANGWANA and ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: GUVAVA JA, BHUNU JA and CHATUKUTA JA

SC91-19 : MISHECK MABEZA vs SANDVIK MINING (2) CONSTRUCTION (PRIVATE) LIMITED
Ruled By: GOWORA JA, PATEL JA and BHUNU JA

CC04-23 : EDWIN MUSHORIWA and FIRINNE TRUST OPERATING AS VERITAS and BRIAN CROZIER and VALERIE INGRAM-THORPE vs PARLIAMENT OF ZIMBABWE and PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

Appealed
CC05-24 : PENELOPE DOUGLAS STONE and RICHARD BEATTIE t/a Stone/Beattie Studio Partnership vs CENTRAL AFRICA BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

View Appeal
HH118-23 : PENELOPE STONE and RICHARD BEATTIE t/a Stone/Beattie Studio Partnership vs CENTRAL AFRICA BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE & ECONOMIC DEVELOPMENT
Ruled By: MAFUSIRE J

View Appeal
HH118-23 : PENELOPE STONE and RICHARD BEATTIE t/a Stone/Beattie Studio Partnership vs CENTRAL AFRICA BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE & ECONOMIC DEVELOPMENT
Ruled By: MAFUSIRE J

CC07-23 : RITA MBATHA vs VINCENT NCUBE and MESSENGER OF COURT
Ruled By: PATEL JCC

CC08-23 : QEDISANI MACHINE vs SHERIFF OF ZIMBABWE and ZB BANK LIMITED and REGISTRAR OF DEEDS and PAPERHOLE INVESTMENTS (PVT) LTD
Ruled By: GARWE JCC, MAKARAU JCC and HLATSHWAYO JCC

CC09-23 : TENDAI MASHAMANDA vs BARIADE INVESTMENTS (PVT) LTD and PUWAYI CHIUTSI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT and ELLIOT ROGERS and ATTORNEY GENERAL ZIMBABWE
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

CC13-23 : PATRICIA DENGEZI vs MUNYARADZI NYAMURURU and XOLISAN MOYO and CHAMPIONS INSURANCE COMPANY LTD and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

CC01-14 : KISIMUSI DHLAMINI and GANDI MUDZINGWA and CHINOTO ZULU and ANDRISON MANYERE and ZACHARIAH NKOMO and REGIS MUJEYE and MAPFUMO GARUTSA vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and CHEDA AJA

CC09-15 : DOUGLAS MWONZORA and OTHERS vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and MAVANGIRA AJCC

CC12-14 : HELEN MATIASHE vs HONOURABLE MAGISTRATE MAHWE N.O. and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and PATEL JA

HH329-13 : RICHARD JAMBO vs CHURCH OF THE PROVINCE OF CENTRAL AFRICA and ANGLICAN DIOCESE OF MASVINGO and DEPUTY SHERIFF CHIVHU N.O.
Ruled By: GUVAVA J

SSC28-17 : SAMSON MUTERO vs THE STATE
Ruled By: GWAUNZA JA, GOWORA JA and MAVANGIRA AJA

SSC34-13 : TONGAI MATUTU vs THE STATE
Ruled By: MALABA DCJ, ZIYAMBI JA and PATEL AJA

CC13-20 : THABANI MPOFU vs ZIMBABWE ENERGY REGULATORY AUTHORITY and MINISTER OF ENERGY AND POWER DEVELOPMENT and GREEN FUELS (PVT) LTD
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWEJCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA JCC

SC31-12 : ROBERT DOMBODZVUKU vs CMED (PVT) LTD
Ruled By: OMERJEE AJA

View Appeal
SC50-12 : CABAT TRADE AND FINANCE vs MOVEMENT OF DEMOCRATIC CHANGE
Ruled By: MALABA DCJ, GOWORA JA and OMERJEE AJA

SC58-15 : ERICKSON MVUDUDU vs AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY
Ruled By: MALABA DCJ, GWAUNZA JA and PATEL JA

SC59-21 : LIVING WATERS THEOLOGICAL SEMINARY vs REVEREND NGONI CHIKWANHA
Ruled By: MALABA CJ, UCHENA JA and CHIWESHE AJA

SC73-19 : CUTHBERT DUBE vs PREMIER SERVICE MEDICAL AID SOCIETY and PREMIER SERVICE MEDICAL INVESTMENTS
Ruled By: GARWE JA

View Appeal
SC84-22 : TN HARLEQUIN LUXAIRE LTD vs MBERIKUNASHE MASVIMBO and 14 OTHERS
Ruled By: GARWE JA, HLATSHWAYO JA and GUVAVA JA

SC94-19 : ZIMBABWE ANTI CORRUPTION COMMISSION vs GIBSON MANGWIRO and CHRISTOPHER CHISANGO
Ruled By: MAVANGIRA JA

SC141-20 : HARARE WETLANDS TRUST vs MINISTER OF ENVIRONMENT, TOURISM & HOSPITALITY and NEWLIFE COVENANT CHURCH and DIRECTOR GENERAL OF THE ENVIRONMENTAL MANAGEMENT AGENCY
Ruled By: CHITAKUNYE AJA

SC148-21 : NESTLE ZIMBABWE (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

SC165-21 : SHARADKUMAH PATEL and MEADOWS (PVT) LTD vs THE COSMO TRUST and OTHERS
Ruled By: GARWE JA, GUVAVA JA and MATHONSI JA