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

Appealed
SC70-18 : YUNUS AHMED vs DOCKING STATION SAFARIS (PRIVATE) LIMITED t/a CC SALES
Ruled By: BHUNU JA

After reading papers filed of record and hearing counsel in this matter, I dismissed the application that was before me with costs, and indicated that the reasons for judgment would be available in due course.
These are they.

The facts of this case can be summarised as follows:

The applicant, Yunus Ahmed, was the Director of a company known as Foldaway Investments (Private) Limited. The respondent, Docking Station Safaris (Private) Limited t/a CC Sales is a company duly registered in accordance with the laws of Zimbabwe.

The respondent and Foldaway Investments used to conduct business together, and, during the course of doing business, Foldaway Investments fell into debt with the respondent.

This caused the respondent to institute legal proceedings against it for the recovery of the debt.

The respondent was successful against Foldaway Investments and it obtained an order for the recovery of the debt.

The respondent then instituted proceedings against the applicant, imploring the court a quo to make an order declaring that the applicant be jointly and severally liable with Foldaway Investments for all the debts of Foldaway Investments to the respondent.

The dispute went for trial, and, the court a quo held that the applicant should rightly be found jointly liable with Foldaway Investments for all the debts it owed the respondent.

On 19 July 2017, the applicant noted an appeal against the judgement of the court a quo. The applicant, however, did not serve the notice of appeal on the Registrar of the High Court as stipulated by Rule 29(2) of the Supreme Court Rules 1964 thereby necessitating the present application.

Before I delve into the merits of this application, I find it pertinent to highlight the irregularities that accompany this application.

On the face of the application, it is indicated that the application is for condonation and extension of time in terms of Rule 31 of the Rules of the Supreme Court 1964.

The contents of the founding affidavit tell a different story.

The application is said to be an application for condonation and reinstatement of appeal arising from the fact that the applicant did not serve the Notice of Appeal on the Registrar of the High Court.

The applicant seems to be confused as to the nature of the application that he is supposed to bring before this Court.

It is trite, that, an application stands or falls on its founding affidavit: see Fuyana v Moyo SC54-06; Muchini v Adams & Ors SC47-13; and Austerlands (Pvt) Ltd v Trade and Investment Bank Ltd & Ors SC80-06.

In cases where the headings on the cover of an application tell one thing, and the contents of the founding affidavits tell another, the nature of the application that is before the court is determined by the contents of the founding affidavit and not the headings on the cover of the application.

This was aptly captured by GOWORA JA in Zimbabwe Posts (Pvt) Ltd v Communication & Allied Services Union SC20-16 as followings:

“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….,.”…,.

In casu, it is averred, twice, in the applicant's founding affidavit, that, the application is for condonation for non-compliance with the rules and reinstatement of appeal.

The contents of the founding affidavit thus take precedence over what is written on the headings of the application.

It is however expected, generally, that, the headings of an application should marry with the contents of the founding affidavit.

This application is thus one for condonation and reinstatement of appeal as averred in the founding affidavit.

An application for condonation and reinstatement of appeal is not the proper application to make given the circumstances of this case.

The applicant failed to comply with Rule 29(2) of the Supreme Court Rules 1964, a peremptory rule of the court which reads:

“The notice of appeal shall be served on the Registrar, the Registrar of the High Court, and the respondent.”

Failure to comply with a peremptory rule therefore renders the Notice of Appeal fatally defective.

In Econet Wireless (Pvt) Ltd v Trustco Mobile (Proprietary) Ltd & Anor SC43-13, GARWE JA stated as follows:

“The position is now well established, that, a notice of appeal must comply with the mandatory provisions of the Rules and that if it does not, it is a nullity and cannot be condoned or amended: see Jensen v Acavalos 1993 (1) ZLR 216 (S).”

The notice of appeal that the applicant seeks of reinstatement is therefore a nullity.

A nullity cannot be reinstated, it is dead at law and hence it cannot be resuscitated by means of an application for reinstatement of an appeal.

This point was clearly made in Bindura Municipality v Mugogo SC32-15 where GUVAVA JA stated that:

“It however seems to me, that, the applicant has filed a wrong application. Where a matter has been struck off the roll because it has failed to comply with the rules of court, one cannot simply apply for reinstatement of the appeal as such an appeal is a nullity. This position has been stated in a number of decisions of this Court.”

In view of the above, it is clear that the applicant has approached this court with a wrong application.

The circumstances of this case require the applicant to make an application for condonation for non-compliance with the rules and extension of time within which to file and serve a notice of appeal.

This, the applicant failed to do.

The net effect of bringing a wrong application before the court is that there will be virtually nothing placed before it, and, to that end, this application cannot stand.

Apart from the above irregularity, the applicant`s draft order is in shambles. It reads as follows:

“WHEREUPON, after perusing documents filed of record;

IT IS ORDERED AS FOLLOWS:

1. The Application for condonation for non-compliance with the rules of the Supreme Court and is hereby granted. (sic)

2. The application for extension of time with which (sic) to file and serve a notice of appeal in terms of the rules and is hereby granted.

3. The Applicant be and is hereby ordered to serve the Registrar of the Labour Court (sic) the notice of appeal within 7 days of this order.

4. No order as to costs.”…,.

This draft order is incompetent in various ways.

Apart from the several typographical errors, paragraph 1 does not state the Rule that the applicant failed to comply with, which the court should condone. Secondly, having established that this is an application for condonation and reinstatement of an appeal, paragraph 2 does not pray for the reinstatement of an appeal. Lastly, the applicant, in paragraph 3, prays that the notice of appeal be served on the Registrar of the Labour Court when it is common cause that he seeks to appeal against a decision of the High Court.

The sum effect of these errors render the draft order meaningless and inevitably fatally defective.

Such tardiness is least expected in court process that is drafted by a legal practitioner. Legal practitioners must be meticulous in drafting pleadings and process. Shoddily drawn process confuse the court and the other party.

The need to be meticulous is most important when drafting the relief sought. If the relief sought is imprecise and defective, the court cannot grant it.

It also goes without saying, that, as a general rule, where the Rules of Court, or a Practice Direction, prescribe a form to be followed when drafting court process, legal practitioners are enjoined to make use of that form.

In casu, Practice Direction 1 of 2017 gives the form to be followed when crafting a draft order for an application for reinstatement of appeal but the applicant simply neglected and failed to follow it.

The purpose of forms in Rules of Court and Practice Directions is to guide litigants as to the format of pleadings and process for the proper running of the courts.

The applicant has, however, neglected the use of the appropriate Practice Direction to his own peril. In this regard, therefore, the applicant has not placed anything before the court to grant.

In view of these irregularities, I found it proper to dismiss the application instead of striking it off the roll.

In Mudyavanhu v Saruchera SC75-17 GWAUNZA JA…, stated that;

“It is noted that a number of matters have been struck off the roll by this Court on the ground that the relief sought was not exact in nature, and that, as a result, the related notice of appeal was incurably defective: see Ndlovu & Anor v Ndlovu & Anor (supra). However, in this case, the court found that the appeal was not only incurably defective but wrong and bad in law. The appeal could therefore not properly be struck off the roll because the appellant had no avenue, legally or procedurally, to follow in case he was inclined to bring the same appeal before this Court.”…,.

The grave irregularities that accompany this application warrant a dismissal.

The applicant's draft order is fatally defective and the application, as a whole, is wrong and bad in law. This application can only be dismissed.

There being no reason to depart from the general rule, that, costs follow the result, the general rule shall prevail.

It is accordingly ordered that:

The application be and is hereby dismissed with costs.

Appealed
SC75-17 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS (ZIMBABWE) and CAIRNS FOODS LTD
Ruled By: GWAUNZA JA, GUVAVA JA and ZIYAMBI AJA

On 21 July 2016, the High Court dismissed the appellant's chamber application for the reinstatement of his claim on the third respondent's creditors list.

Aggrieved, the appellant filed this appeal, which we dismissed with costs on 6 July 2017. The appellant wrote to the Registrar requesting the reasons for the order. These are they.

The facts of this case are as follows:

The appellant was formerly employed by the third respondent. Sometime in 2004, he obtained judgment in the Labour Court awarding him damages for unlawful termination of employment. The quantum of damages that he was granted came to ZW$26,076,252 after quantification by the Labour Court.

However, before the third respondent could make any payment, it was placed under judicial management. The first respondent, who works for the second respondent, was appointed the Judicial Manager.

The appellant then filed with the Master of the High Court, a claim for his debt to be placed on the list of the third respondent's other creditors. The claim was provisionally accepted but later revoked at the instance of the first respondent.

This was because, while the appellant's debt was denominated in Zimbabwean dollars, he had lodged his claim in United States dollars amounting to USD3,057,199 - without an order of court converting his Zimbabwean dollar claim to United States dollars.

He had, it seemed, done the conversion of the amount himself.

The appellant then approached the court a quo seeking to be re-instated on the list of creditors.

The specific order that he sought read as follows:

“It is ordered that:

1. Applicant's claim be and is hereby reinstated to the creditors of third respondent.

2. Within 48 hours of the issuance of this order, fourth respondent avails to applicant the payment schedule for third respondent's judicial management creditors.

3. On a jointly and severally basis (sic) and within 21 days of the issuance of this order, first, second, and third respondents pay applicant:

(a) The full amount of his claim in accordance with the schedule of payment of creditors of the same class.

(b) Interest at the prescribed rate on all overdue payments.

(c) First, second, and third respondent pay costs of suit.”

A point in limine was raised by the first respondent, on behalf of the second respondent, to the effect that there was no legal basis for the appellant to sue the latter as this was done solely for the reason that the first respondent worked for the second respondent.

The court a quo upheld the point in limine and also dismissed the whole application on the merits for the following reasons;

(a) At the time the appellant filed the application before the court a quo, the third respondent was no longer under judicial management, therefore, the relief he sought could no longer bind the first respondent because he ceased to be the third respondent's judicial manager the moment it was removed under judicial management; and

(b) The claim lodged by the appellant before the Master of the High Court was an amount which had not been properly converted at law, therefore, the court could not direct the Master to reinstate the claim.

Aggrieved by the court a quo's decision, the appellant approached this Court, on appeal, seeking the following relief:

“It is prayed that;

1. The High Court judgment be set aside.

2. Leave be granted for registration with the High Court in Harare, for purposes of enforcement, my claim of USD3,057,199 against third respondent which was proved and admitted in the creditors meeting held on 13 February 2013 pursuant to the company's judicial management and has never been set aside or varied.

3. Interest at the prescribed rate be paid on the claim amount from 3 November 2015, the day following the date of cancellation of the final judicial management order, to the date of final settlement.

4. The respondents pay the whole litigation cost for this matter.”

In their heads of argument, the respondents raised three points in limine with regards to the relief sought:

(i) Firstly, they contended that the appellant failed to pray for the success of his appeal in this court, hence, the relief sought was incompetent.

(ii) Secondly, they argued that the relief which the appellant was seeking, on appeal before this Court, was different from that which he sought in the court a quo.

(iii) Thirdly, the respondents argued that the relief sought was 'fatally defective' in that the appellant sought an order for costs against all the respondents but did not seek any substantive relief against the first and second respondents.

In response to these points in limine, the appellant, in his heads of argument, argued that there is no provision in the Rules which requires a party to expressly state whether or not the appeal should succeed as the judges can themselves simply state that the appeal succeeds or not.

He explained, that, the intention that the appeal succeeds is apparent from the very act of appealing itself.

With regards to the allegation that he now seeks what he did not seek in the court a quo, the appellant's position was that only the method of enforcement had changed but he still sought the same relief.

On the point that he was not seeking any substantive relief against the first two respondents except for costs, the appellant argued that it is clear from his papers that the first two respondents were liable to him under delict for the third respondent's failure to pay his debt.

The Court found there was merit in the respondents points in limine, in particular, that the appellant's notice of appeal did not satisfy the provisions of Rule 29 of the Supreme Court Rules. This Rule provides that;

“29 Entry of Appeal

(1) Every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his legal representative, which shall state —

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

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

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

(d) The grounds of appeal in accordance with the provisions of Rule 32;

(e) The exact nature of the relief which is sought;

(f) The address for service of the appellant or his attorney;”

The wording of the provision shows that the Rule is mandatory in nature, meaning that any document labelled 'Notice of Appeal' must comply with it in order to be a valid notice of appeal.

The information required in terms of this provision must be clearly set out even where it may be obvious or deducible from the given text of the grounds of appeal.

The purported notice of appeal in casu, in the court's view, did not meet the requirements set out in the mandatory provision cited.

It also fell short in other respects as indicated below.

The respondents are correct in the submission, that, the appellant's failure to pray for the success of the appeal in this court, before the judgment a quo could be set aside and substituted, constitutes a serious defect in the Notice of Appeal.

Rule 29(1)(e) of the Supreme Court Rules is specific in its language and requires that the relief sought be exact and competent so that the court is left in no doubt as to what exactly the appellant seeks.

In Ndlovu v Ndlovu and Another SC133-02, MALABA JA…, dealing with a similarly defective notice of appeal, 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.”

These words are fully applicable to the circumstances of this case. The respondents point in limine, in this respect, is accordingly upheld.

The second point in limine raised by the respondents, concerning new relief being sought on appeal by the appellant, also has merit.

As correctly observed, the appellant approached the court a quo seeking to reinstate his claim on the third respondent's list of creditors in the office of the Master of the High Court. The application a quo having failed, the appellant, on appeal, now sought an order granting him leave to register his claim for payment of USD3,057,199 by the third respondent, for purposes of enforcement.

This request pre-supposes, quite erroneously, that the High Court made an order reinstating his claim on the creditors list.

This not having happened, the relief now sought is not one that is open to this Court to grant.

An Appeal Court, by nature, is one that considers and assesses the correctness or otherwise of the decision of a lower court on any particular issue. Where no such issue is considered by an inferior court, it follows, generally, that there is nothing for the Appeal Court to determine.

It is in the appellant's interest to fully appreciate this point, which was aptly captured in Dynamos Football Club (Pvt) Ltd & Anor v ZIFA & Ors 2006 (1) ZLR 346 (S) 355.

MALABA JA…, in that case, held, that, generally, a party cannot seek, on appeal, relief that they did not seek in the lower court.

See also Goto v Goto 2001 (2) ZLR 519 (S) where the court held, that, it was not open to the appellant, in that case, in the absence of an amendment to her declaration, to claim, on appeal, something which she did not claim in the court a quo.

The exception to this rule was outlined in Dynamos Football Club (Pvt) Ltd & Anor v ZIFA & Ors 2006 (1) ZLR 346 (S) where it was held as follows;

“There are, however, other decisions to the effect that the Appellate Court has a discretion, in appropriate cases, to grant relief claimed for the first time on appeal if it is satisfied that all the facts on which the court of first instance would have decided the matter had it been raised with it were available for its consideration, and such facts as are essential to the decision are common cause or well-nigh incontrovertible: see Workmen's Compensation Commissioner v Crawford and Anor 1987 (1) SA 290 at 307G; Donelly v Barclays National Bank Ltd 1990 (1) SA 375 at 380I-381A.”

When this is applied to the facts of this matter, it is evident that the requirements listed, which would have entitled the appellant to seek the relief in question for the first time on appeal, have not been met.

Related to this issue, this Court finds, as did the court a quo, that the amount claimed by the appellant was not converted into US dollars by a court of competent jurisdiction.

It was not enough for the appellant to attempt a conversion on his own, using a rate that was not known, and coming up with a figure which no court had endorsed.

Consequently, the appellant (a quo) failed to establish a proper basis for the inclusion of the US dollar amount that he sought, on the third respondent's list of creditors.

The judgment of the court a quo cannot, in this respect, be faulted.

Finally, and as correctly observed by the respondents, the appellant's claim for costs against parties from whom no substantive relief was sought was incompetent and therefore not to be sustained.

In this respect, the court notes, that, the appellant, in his draft order, did not seek the setting aside and substitution of the High Court's decision upholding the point in limine concerning the mis-joinder to the proceedings of the second respondent.

That part of the court a quo's decision therefore stands unchallenged, with the result that the second respondent was, in reality, wrongly cited in this appeal.

It follows that the order of costs sought against it is incompetent.

In any case, the court finds no merit in the appellant's submission, that the second and third respondents were liable to him 'in delict' and are therefore properly sued for costs.

The proceedings a quo were clearly not delictual in nature, and, the appellant's claim for costs cannot, by that token, be founded on them.

It is noted, that, a number of matters have been struck off the roll by this Court on the ground that the relief sought was not exact in nature, and that, as a result, the related Notice of Appeal was incurably defective: see Ndlovu v Ndlovu and Another SC133-02.

However, in this case, the court found that the appeal was not only incurably defective but wrong and bad in law.

The appeal could therefore not properly be struck off the roll because the appellant had no avenue, legally or procedurally, to follow in case he was inclined to bring the same appeal before this Court.

It is emphasized in this respect, that, the appellant could not have secured the relief that he sought in the court below, from the first respondent, for the simple reason that he had ceased to be the Judicial Manager of the third respondent, which, in its turn, had ceased to be a company under judicial management. There was, therefore, no longer a list on which the appellant's claim could be included.

In addition to this, the second respondent was improperly sued from the beginning because it was not an interested party in the dispute, it being the first respondent's employer.

Given that the appellant's notice of appeal was, for the reasons stated, fatally defective, that he sought relief that was incompetent, and that he sought to sue parties that not only had no interest in the suit, but, in the case of the first and third respondents, had ceased to possess the status indicated, the court's unanimous view was that the appeal ought to be dismissed, not struck off the roll.

HH707-15 : RICHARD MATTHEWS vs CRASTER INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

This was an application for the registration of an arbitral award. It was opposed.

Before the arbitrator, the within named applicant was the Claimant. The respondent herein was also the respondent therein.

The applicant was a former employee of the respondent.

The arbitration happened after the cessation of the employer-employee relationship. That cessation had been mutually and amicably agreed upon. Both parties were also agreed, in principle, that, the applicant was due a terminal package. However, they were not agreed as to the nature and quantum of that package.

It was for the determination of the appropriate terminal package that the matter was referred to arbitration.

The arbitrator was a retired judge of this court, Justice Smith. The operative part of his award read as follows:

“My award, therefore, is that the Respondent pays the Claimant -

(a) USD7,000 being his salary for August 2007;

(b) USD42,000 as a severance package;

(c) Cash-in-lieu of the leave he had acquired and not taken as at 4 September 2009 in line with the Respondent's leave policies.”

I have highlighted paragraph (c) of the award because argument for and against registration was partly centred on it.

The proceedings before me commenced by way of a chamber application. The heading to the application was:

“CHAMBER APPLICATION FOR REGISTRATION OF AN ARBITRAL AWARD IN TERMS OF SECTION 98(14) OF THE LABOUR ACT”

The highlighted portion was another source of argument.

The applicant vehemently sought to disown the reference to section 98(14) of the Labour Act, saying it was a mistake. He said his application had been made in terms of Article 35 of the Arbitration Act [Chapter 7:15], and not in terms of the Labour Act [Chapter 28:01].

On the other hand, the respondent sought to firmly bind the applicant to the letter of his heading.

It shall soon become apparent why the parties took such positions.

The opposition to the application was based on four grounds:

(i) The first was that paragraph (c) of the arbitral award did not sound in money. As such, it was unregistrable.

For support, the respondent cited the cases of Mandiringa & Ors v National Social Security & Ors 2005 (2) ZLR 329 (H) and Herbert Sauramba & Ors v Mitchells Bakery Mutare HH134-10.

(ii) The second ground of opposition was that the award had made no provision for Pay As You Earn tax (“PAYE”) in terms of the Income Tax Act [Chapter 23:06]. As such, the award was incomplete and therefore not registrable. Otherwise, to register it in that form, the court would be countenancing an illegality.

(iii) The third ground of opposition was that the applicant had failed to attach to his application for registration, a duly authenticated original of the arbitral award or a duly certified copy thereof. As such, he had breached the peremptory provisions of the Arbitration Act.

(iv) The fourth and last ground of opposition was that the respondent had earlier on obtained an arbitral award of its own against the applicant for an amount far in excess of what the applicant had been awarded in the arbitral award that he was seeking to register. As such, the principle of set-off had to be applied in order to do justice between man and man.

Otherwise, it would be inequitable that the applicant, who was owed much less by the respondent, should seek to recover from the respondent, which was owed much more by the applicant, when the two arbitral awards in question were intrinsically linked to each other, more particularly in that they had arisen out of the same set of facts and from the same relationship.

It seems logical that I should first deal with ground of objection No.3, namely, that the applicant failed to comply with the peremptory provisions of the Arbitration Act by omitting from his founding papers the duly authenticated original award or a duly certified copy thereof.

Although not expressly stated as such, the substance of this ground of objection, as I understood it, was that there was no application before me.

Thus, if I find for the respondent on this point, then, that will be the end of the matter. I will not have to deal with the rest of the other grounds.

(a) Award not authenticated or certified

Article 35(2) of the Arbitration Act says:

“(2) The party relying on an award or applying for its registration shall supply the duly authenticated original award or a duly certified copy thereof and the original arbitration agreement….,.”

The preceding sub-article (1) says that an arbitral award shall be recognised as binding and “…, upon application in writing to the High Court…,” shall be enforced, subject to the other provisions.

The respondent took the objection in its notice of opposition.

The applicant, in the answering affidavit, replied by saying, that, both the original award and a certified copy were available; that either of these would be tendered at the hearing; that, it was his legal practitioner who had refrained from attaching either of them to the chamber application to avoid the risk of them getting lost or misplaced; that, in any event, the Arbitration Act did not require that they be appended to the application for registration but merely that they be supplied; that, therefore, submitting them at the hearing would be sufficient compliance with the law.

The applicant, nonetheless, attached a certified copy to his answering affidavit “…, for completeness…,.” At the hearing, the applicant tendered the original award.

However, none of what the applicant said or did satisfied the respondent.

It stuck to its position. It argued, that, contrary to what he was now saying in his answering affidavit, the applicant had not mentioned, in his founding affidavit, that he would be tendering the original or certified copy of the award at the hearing. An application stands or falls on its founding papers. For counsel to submit the original or certified copy of the award at the hearing would be tantamount to tendering evidence from the Bar. That was inadmissible.

In my view, Article 35 of the Arbitration Act is clear, that, a party wishing to register an arbitral award with this court, does so through an application.

The application procedure is governed by the Rules of Court.

These Rules say, in Order 32, among other things, and in my own words, that, an application must consist of the written document signed by the party; an affidavit filed together with that application and to which may be attached documents verifying the facts or averments set out in the affidavit.

The Rules say nothing about the nature of the documents to be attached to the affidavit, i.e. whether or not they should be originals, certified copies, or otherwise.

But of course, Article 35 of the Arbitration Act says an authenticated original or certified copy of the award is what must be “supplied”.

As to when these may be supplied is not specified.

Counsel for the applicant said they may be supplied at any time as one moves one's application. Counsel for the respondent said they must be supplied at the outset when one files the application.

I find for the applicant on this point.

The respondent's objection amounts to nit picking.

I am satisfied, that, it was sufficient compliance with the law for the applicant to have attached to his application a copy of the arbitration award that had been filed with the Registrar of this court, and to have tendered the original in court.

I am not suggesting that this is, or shall be, the procedure for all time.

I am saying that in this matter, the applicant cannot be said to be non-suited. That he may not have promised, in his founding papers, to produce the original or certified copy of the award at the hearing, did not, in my view, preclude him from giving that promise in his answering affidavit in which he replied to the notice of opposition in which the objection had been raised.

Litigation is not a game of wits. It is a serious legal process to solve serious legal disputes.

In casu, I could not conceive of any prejudice suffered by the respondent by reason of the procedure that the applicant had adopted.

Counsel for the respondent pointed to none. He merely stressed, that, the law was the law.

But, in my view, the law on that point is not what he insisted it was.

At any rate, and in my considered view, an application for the registration of an arbitral award is largely an administrative process. Whilst in such an application the court is not really being called upon to rubber stamp the decision of an arbitrator, nonetheless, it is largely giving that decision the badge of authority to enable it to be enforceable.

If the court is satisfied, that, the award is regular on the face of it, and that it is not deficient in any of the ways contemplated by Articles 34 and 36 of the Arbitration Act, then, the court will register it.

In the circumstances, the respondent's third ground of opposition is dismissed.

SC15-17 : LIFORT TORO vs VODGE INVESTMENTS (PVT) LTD and MANYAME RURAL DISTRICT COUNCIL and MINISTER OF LANDS AND RURAL RESETLEMENT
Ruled By: ZIYAMBI JA, BHUNU JA and UCHENA JA

On 7 November 2016, we, after reading documents filed of record and hearing counsel's submissions, upheld the appellant's appeal and granted the following order:

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

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

“The application is dismissed with costs.”

We indicated that detailed reasons for granting that order would follow. These are they.

The appellant (Lifort Toro) is a beneficiary of the Land Reform Programme. He was allocated an A2 Farm Subdivision 1 of Beatrice Central.

The first respondent, Vodage Investments (Pvt) Ltd, is a company registered in terms of the laws of Zimbabwe. Despite several suspicious details in the agreement on which it relies, it claims to be a holder of a lease to buy agreement entered into between it and Manyame Rural District Council (the second respondent), in respect of the same piece of land allocated to the appellant.

The third respondent is the Minister of Lands and Rural Resettlement. He allocated the land in dispute to the appellant.

The land in dispute was, by Proclamation 3 of 2012, S.I. 115 of 2012 incorporated into Beatrice Urban area which is administered by the second respondent.

By letter dated 10 June 2013, the third respondent handed over the land in dispute to the Minister of Local Government, Rural and Urban Development.

It is now urban land which cannot be allocated for agricultural purposes.

It is common cause, that, the third respondent conceded that he no longer has authority over the disputed land. It is obvious that the appellant will, eventually, have to leave that piece of land. The third respondent has, in view of the changed circumstances, offered him another piece of land.

The first respondent issued summons in the Magistrate's Court for the eviction of the appellant. The appellant entered appearance to defend. The first respondent applied for summary judgment which the appellant opposed.

The appellant's opposition was premised on the first respondent's lack of locus standi to evict him.

He argued, that, the first respondent, being a lessee who had not taken occupation, had no locus standi to evict him.

In determining the application for summary judgement, the magistrate, at pp4 to 5 of his judgment, said:

“Based on that authority, I agree that the applicant does not have the locus standi to evict the second respondent but that it is the acquiring authority who (sic) does. I therefore feel that the application for summary judgment should not be granted, as applicant does not have the locus standi to institute these proceedings.”…,.

After the tag of incapacity to institute eviction proceedings had been placed on it, the first respondent made a subsequent application to the High Court for the eviction of the appellant.

The appellant opposed the application on the basis, that, the dispute between them was res judicata, that, there were material disputes of fact which could not be resolved through the application procedure, and, that the applicant did not have locus standi to institute eviction proceedings against him.

The High Court held, that, the issue of the appellant's eviction by the first respondent was not res judicata, and that, the first respondent had locus standi to evict the appellant.

It granted the first respondent's application for eviction without determining whether or not there were material disputes of fact which could not be resolved through the application procedure.

The appellant appealed against that decision to this court. He, in his grounds of appeal, submitted that the court a quo erred in the following respects:

1. In holding, that, the issue of his eviction by the first respondent was not res judicata.

2. In holding, that, the first respondent had locus standi to evict him.

3. By not determining the issue of there being material disputes of fact which cannot be resolved through the application procedure.

I deal with each ground in turn.

1. RES JUDICATA

Counsel for the appellant submitted, that, the Magistrate's decision, that the first respondent did not have locus standi to evict the appellant, extinguished the first respondent's claim to evict the appellant. She relied on the cases of Nyaguwa v Gwinyayi 1981 ZLR 25 and Chimponda & Anor v Muvami 2007 ZLR (2) 326.

Counsel for the first respondent supported the court a quo's decision, that, the Magistrate's decision was “founded purely on adjectival law, regulating the manner in which the court is to be approached for the determination of the merits of the matter.”

I do not agree.

The tag of incompetence placed on the first respondent by the Magistrate is definitive and final until set aside by a competent court. The High Court had no authority to set it aside as it was not sitting as a Review or an Appellate Court.

In Nyaguwa v Gwinyayi 1981 ZLR 25 PITMAN J…, said:

“I was of the opinion, that, in this country, each court is a creature of statute, and its powers are created and defined by statute. The function of every Civil Court is to recognize what it believes to be the rights of the parties before it. Once a Civil Court has given such recognition, that recognition must be accepted by each of the other courts, whatever its relative position in the hierarchy of courts may be, unless authority to overrule such recognition has been conferred upon it by statute. If one court were to claim that it has some inherent power to overrule another court, instead of a power specifically created by statute, in effect it will be claiming the power to nullify the body of statute law which specifically relates to the establishment and powers of each of the civil courts in the country. As no power to over-rule the decisions of magistrate's courts has been vested in the General Division of the High Court, I considered that this court could not grant the order sought by the petitioner.”

The High Court, sitting as a court of first instance, does not have authority to disregard or overrule extant decisions of the Magistrates Court.

The court a quo should therefore have declined to determine the already determined issue of the first respondent's locus standi to evict the appellant while the decision of the magistrate remained extant.

The court a quo failed to appreciate, that, the first respondent's application was aimed at seeking a re-determination of the first respondent's locus standi to evict the appellant or the avoidance of the magistrate's determination of that issue.

The failure to appreciate the nature of the application led to its failure to realize, that, it had no authority to overrule the magistrate's definitive finding that the first respondent had no locus standi to evict the appellant.

In the case of Chimponda & Anor v Muvami 2007 ZLR (2) 326 MAKARAU JP…, said:

“The requirements for the plea of res judicata are settled. Our law recognizes, that, once a dispute between the same parties has been exhausted by a competent court, it cannot be brought up for adjudication again as there is need for finality in litigation. To allow litigants to plough over the same ground hoping for a different result will have the effect of introducing uncertainty into court decisions and will bring the administration of justice into disrepute.

For the plea to be upheld, the matter must have been finally and definitively dealt with in the prior proceedings.

In other words, the judgment raised in the plea as having determined the matter must have put to rest the dispute between the parties, by making a finding in law and/or in fact against one of the parties on the substantive issues before the court or on the competence of the parties to bring or to defend the proceedings. The cause of action as between the parties must have been extinguished by the judgment.

A judgment founded purely in adjectival law, regulating the manner in which the court is to be approached for the determination of the merits of the matter, does not, in my view, constitute a final and definitive judgment in the matter. It appears to me that such a judgment is merely a simple interlocutory judgment directing the parties on how to approach the court if they wish to have their dispute resolved.”…,.

A determination by the magistrate on the competence of the first respondent to institute eviction proceedings against the appellant is not a finding in adjectival law regulating the manner in which the court is to be approached for the determination of the merits of the matter. It is a final and definitive determination barring the first respondent from instituting proceedings on the same cause of action against the appellant. Such a finding finally and definitively determines the capacity of a litigant to institute or defend the same cause of action before the courts.

The court a quo failed to distinguish between the magistrate's dismissal of the application for summary judgment, which could be interlocutory, from the reason for the dismissal, which is definitive and finally closes the door to the first respondent due to legal incompetence to litigate over the appellant's eviction.

The magistrate's judgment remains extant.

The first respondent could not, therefore, be entertained by any court on this issue, except on appeal or review, against the magistrate's decision that it had no locus standi to evict the appellant.

2. Whether the first respondent has locus standi to evict the appellant

The issue of locus standi was improperly before the court a quo because it was res judicata. It had been finally and definitively determined by the Magistrate's Court, and remains so determined until that decision is upset by a properly constituted Review or Appellate Court.

The court a quo should not have made a determination on that issue.

This Court, sitting as an Appellate Court over the High Court's decision, cannot pronounce itself over a matter which is not properly before it and over which there is an extant judgment which has not been appealed against.

The court a quo therefore erred when it determined an issue which was res judicata.

3. Whether or not the court a quo erred by not determining whether or not there were disputes of fact which could not be resolved through the application procedure

The purpose of litigation is for the court to determine disputes placed before it by the parties.

The court must therefore give reasons stating how it resolved all the disputes placed before it, unless the determination of one or some of the issues clearly renders the determination of one or other issues unnecessary.

The issue of whether or not there were disputes of fact was critical as to whether or not the respondent had used the correct procedure.

It could have established that the application procedure was inappropriate. That, in turn, would have left the court a quo with the option of either dismissing the application or referring it to trial. There would, in either of the two options, have been no need to determine the other issues.

Therefore, the issue of whether or not there were material disputes of fact should have been determined before the court could determine other issues. The court a quo, therefore, erred when it failed to determine this critical issue.

In the case of Gwaradzimba v C.J. Petron and Company (Pvt) Ltd SC12-16 GARWE JA said:

“The position is well settled, that, a court must not make a determination on only one of the issues raised by the parties and say nothing about other equally important issues raised 'unless the issue so determined can put the whole matter to rest': see Longman Zimbabwe (Pvt) Ltd v Midzi & Ors 2008 (1) 198, 203D (S).

The position is also settled, that, where there is a dispute on some question of law or fact, there must be a judicial decision or determination on the issue in dispute. Indeed, the failure to resolve the dispute or give reasons for a determination is a misdirection - one that vitiates the order given at the end of the trial. Charles Kazingizi v Revesai Dzinoruma HH106-06; Muchapondwa v Madake & Ors 2006 (1) ZLR 196…, D—G 201A (H); GMB v Muchero 2008 (1) ZLR 216 at 221C-D (S).”

I therefore agree, that, the court a quo misdirected itself when it failed to determine the issue of whether or not there were material disputes of fact.

It was in view of these findings that we upheld the appeal and granted the order set out on page 1 of this judgment.

SC24-14 : KUNDAI MAGODORA and OTHERS vs CARE INTERNATIONAL ZIMBABWE
Ruled By: MALABA DCJ, PATEL JA and GUVAVA JA

The appellants in this matter were engaged by the respondent on fixed contracts of nine (9) months duration. The last such contract was fixed from 1 October 2006 to 30 June 2007.

By letter dated 27 March 2007, the respondent purported to terminate the appellants contracts of employment before their scheduled date of expiry.

The contracts were to terminate on 31 March 2007 and the appellants were to be paid one month's pay in lieu of notice.

Clause 21 of the contracts required the application of retrenchment procedures in the event of premature termination.

Subsequently, after taking legal advice, the respondent reconsidered its position and accepted that the early termination may have been unlawful.

By letter dated 25 May 2007 from its lawyers, it cancelled the termination and reinstated the contracts of employment with full pay up to 30 June 2007, at which date the fixed term contracts would expire without being renewed.

The matter was then referred to arbitration.

The arbitrator held, that, the appellants had not been retrenched and that the respondent was entitled to act as it did. On appeal to the Labour Court, the arbitrator's decision was upheld. The court found, that, even if the contracts had been prematurely terminated, the appellants were only entitled to their pay for the duration of their fixed term contracts, that is, up to 30 June 2007, and that they were not entitled to any further payment.

The appellants now appeal against that decision.

In their revised grounds of appeal, they seek an order declaring them to have been unfairly dismissed. They also seek an order deeming them to be permanent employees on contracts without limit of time and without loss of salary and benefits, reckoned from the time of dismissal.

In the alternative, they should be deemed to have been re-employed for a further period of nine (9) months from the date of dismissal, on the same terms of employment, and without loss of salary and benefits.

At the hearing of the appeal, the additional claim for the payment of retrenchment packages, in the event of reinstatement not being possible, was abandoned on the basis that such relief was not competent as it was inconsistent with the primary relief sought....,.

Relief Sought

Apart from the demerits of the appeal, there is a more fundamental obstacle to the appellant's case.

As I have stated earlier, the relief sought on appeal is either that of permanent employment or re-employment for a further nine (9) months.

From the outset, the appellants case was that the letter of 27 March 2007 amounted to premature termination and was therefore subject to their being retrenched in accordance with clause 21 of their contracts of employment.

The terms of reference before the arbitrator primarily revolved around this question, and the relief sought was that the matter be referred to the Retrenchment Board.

The grounds of appeal to the Labour Court were also centred on retrenchment, challenging the arbitrator's decision for having declined the application of retrenchment procedures, and praying for an order compelling the respondent to comply with clause 21.

It is abundantly clear, therefore, that, the appellant's case did not involve any claim for permanent employment status or re-employment.

In essence, the relief that they pray for, on appeal to this Court, is completely different from what they sought hitherto.

In this respect, the appellants are effectively inviting this Court to sit as a court of first instance and to adjudicate a matter that was not ventilated before or determined by the Labour Court.

As was aptly observed by KORSAH JA in ANZ Grindlay Bank (Zimbabwe) (Pvt) Ltd v Hungwe 1994 (2) ZLR 1 (S)…, it would be highly irregular and unfair for an Appellate Court to assume the jurisdiction of a court of first instance and to pronounce on issues which are properly cognisable in a court of first instance but have not been canvassed before that court.

The same position was adopted by CHEDA JA in Total Marketing Zimbabwe (Pvt) Ltd v Pollylamp Investments (Pvt) Ltd 2007 (2) ZLR 60 (S)…,.

It was held, that, it would be wrong for this Court, as if it were a court of first instance, to consider the merits of an urgent application before the High Court where those merits were not considered by that court following its decision that the matter was not urgent.

In casu, the merits of the primary relief sought by the appellants were never debated or considered by the court a quo, and, consequently, they cannot be entertained or determined by this Court. In other words, the Court has no remit to exceed its jurisdiction and powers on appeal as prescribed by sections 21 and 22 of the Supreme Court Act [Chapter 7:13].

In the result, the appeal cannot succeed, both on the merits and on jurisdictional grounds. It is accordingly dismissed with costs.

SC32-15 : BINDURA MUNICIPALITY vs PAISON MUGOGO
Ruled By: GUVAVA JA

This chamber application was placed before me in terms of Rule 5 of the Supreme Court Rules 1964. Although it was unopposed, it raised an issue concerning the interpretation of Practice Directive 3/13.BACKGROUNDThe appeal relating to this matter was set down before the Supreme Court on 5 September 2014. It ...

BACKGROUND

The appeal relating to this matter was set down before the Supreme Court on 5 September 2014. It was struck off the roll because it did not comply with Rule 4(2) and Rule 7(b) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

Firstly, the notice of appeal reflected the wrong date on which judgment was delivered by the Labour Court. It was quite clear ex facie the judgment that it had been hand down on 29 June 2012. However, the Notice of Appeal stated that it was handed down on 29 May 2012.

Secondly, a copy of the Notice of Appeal was served on the Registrar of the Labour Court contrary to the order by GOWORA JA.

The order granted by GOWORA JA stated as follows:

“1. Leave be and is hereby granted to the applicant to note an appeal against the judgment of the Labour Court No. LC/H/196/2012 handed down on 29 June 2012.

2. The Notice of Appeal shall be noted within fourteen (14) days of the date of this order.

3. There be no order as to costs.”

It was thus incumbent upon the applicant to serve the notice of appeal with the Registrar of the Labour Court within fourteen days of the grant of the order.

The order was granted on 28 January 2014. It was only filed with the Registrar of the Labour Court on 28 February 2014 - a month later.

WHETHER THE APPLICATION IS PROPER

Following the decision to strike off the appeal, the applicant filed this chamber application seeking to reinstate the appeal.

The applicant stated, in his founding affidavit, that, the application was being made in terms of the Supreme Court (Miscellaneous Appeals and References) Rules 1975 as read with Practice Directive 3/13.

In support of the application, the applicant's legal practitioner conceded, that, there was an error on the Notice of Appeal since the date the judgment had been delivered was 29 June 2012 and not 29 May 2012. He however sought to explain the error by stating, that, it was a genuine mistake on the part of the legal practitioner dealing with the matter.

He further explained, that, the failure to serve the Registrar of the Labour Court with the notice of appeal within the time specified in the order was due to the fact, that, the Labour Court registrar had refused to issue out any court process in the absence of the record of proceedings.

The notice of appeal was only accepted on 28 February 2014 - after the record had been located.

He therefore submitted, that, the delay in the service of the notice of appeal to the Labour Court was occasioned by circumstances beyond the control of the applicant.

It was his submission, that, since no prejudice had been occasioned to the respondent by his failure to comply with the rules of the court, the application should be granted.

It however seems to me, that, the applicant has filed a wrong application.

Where a matter has been struck off the roll because it has failed to comply with the rules of court, one cannot simply apply for reinstatement of the appeal as such an appeal is a nullity.

This position has been stated in a number of decisions of this Court.

The leading case in this regard is the case of Jensen v Acavalos 1993 (1) ZLR 216 (S) where KORSAH JA stated as follows…,.:

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

INTERPRETATION OF PRACTICE DIRECTION 3/13

It was the applicant's contention, that, the application was being brought in terms of paragraph 5 of Practice Direction 3 of 2013.

In my view, it is necessary, for the sake of completeness, that I cite the relevant portion of the Practice Direction which relates to matters which have been struck off the roll:

“Struck off the Roll

3. The term shall be used to effectively dispose of matters which are fatally defective and should not have been enrolled in that form in the first place.

4. In accordance with the decision in Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLA 147 (S) and S v Ncube 1990 (2) ZLR 303 (SC), if a Court issues an order that a matter is struck off the roll, the effect is that such a matter is no longer before the Court.

5. Where a matter has been struck off the roll for failure by a party to abide by the Rules of the Court, the party will have thirty (30) days within which to rectify the defect, failing which the matter will be deemed to have been abandoned.

Provided that a judge may, on application, and for good cause shown, reinstate the matter on such terms as he deems fit.”…,.

It seems to me, that, a proper interpretation of paragraph 5 of Practice Direction 3/13 is that the applicant must, within thirty days, rectify the defect by applying for condonation for the late noting of appeal and an extension of time within which he should comply with the rules.

He may not do so after the window period which he has been given to rectify the defect as the matter will be deemed to have been abandoned.

It seems to me, that, the restriction on the period within which to rectify the defect was included in the Practice Directive in order to manage cases which would have been struck off the roll so that the registry would not be cluttered with “dead” files.

Thus, a litigant who wished to pursue his matter was granted a limited time within which to apply to cure the defect failing which the matter would be deemed abandoned.

In this case, the applicant correctly filed an application within the prescribed period of thirty days.

However, an application for reinstatement is not the appropriate remedy.

This position is confirmed by the case of Hattingh v Pienaar 1977 (2) SA 182 (0) where the court had occasion to deal with a defective compliance of the rules, such as in the present matter. The court held as follows:

“…, a fatally defective compliance with the rules, regarding the filing of appeals, cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant rule.”

I respectfully agree with this view.

The appeal, having been found to be fatally defective, cannot be reinstated after being struck off the roll.

The applicant's remedy to rectify the defect is to apply for condonation and extension of time within which to file a fresh notice of appeal in terms of Rule 6 of the Supreme Court (Miscellaneous Appeals and References) Rules. He should do so within the period of thirty days provided for in the Practice Directive.

DISPOSITION

In the result, the matter is struck off the roll with no order as to costs.

SC71-14 : EDWARD MADZA and OTHERS vs THE REFORMED CHURCH IN ZIMBABWE DAISYFIELD TRUST and THE REFORMED CHURCH OF ZIMBABWE and NAISON TIRIVAVI and THE DUTCH REFORMED CHURCH
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

The appellants, on 21 August 2013, brought an application in the High Court, on a certificate of urgency, seeking a provisional order in the following terms:

1. It is hereby ordered and declared, that, the management of Eaglesvale School vests in the Management of the Board of Governors of Eaglesvale School and the School Development Committees of the High School and Junior School respectively.

2. The First and Second respondents are not empowered to dissolve the Management Board of Governors and the School Development Committees of the High School and Junior School and any such acts are declared to be unlawful.

3. The unauthorised payment of any money from the school to the First and Second Respondents and/or any of their officers is unlawful.

4. Consequently, the First, Second, and Third Respondents be and are hereby restrained and interdicted from interfering, unlawfully, in the Applicants management of the administrative and financial affairs of Eaglesvale School.

5. The First, Second, and Third Respondents are ordered to pay the costs of this application.

INTERIM RELIEF GRANTED

6. Pending the final determination of this matter, the First and Second Respondents be and are ordered forthwith not to interfere and/or involve themselves in any manner in the administration and/or finances of Eaglesvale School.

7. The Board of Governors of Eaglesvale School, and the School Development Committee, shall continue to manage the school and its finances.

8. Third Respondent is ordered to take instructions concerning the administration and finances of school from the Applicants and not from the First and Second Respondents.

9. The Applicants and/or its legal practitioners be and are hereby authorised to serve this provisional order on the Respondents.

The learned Judge before whom the matter was placed dismissed the application with costs on the grounds, that, the appellants had no locus standi to bring the application, and, further, that the matter was not urgent.

Against this judgment, the appellants have appealed on grounds, inter alia, that, the court erred on both grounds.

It was prayed, on appeal, that, the judgment of the court a quo be set aside and substituted with an order granting the provisional order sought with costs.

THE BACKGROUND FACTS

In 1984, the Dutch Reformed Church formed and registered a non-profit making company under the name Daisyfield Trust.

The company was established as a not-for-profit welfare company in terms of the Companies Act. The purpose of the Daisyfield Trust was to establish and to ensure oversight of a Christian ethos for the schools established or falling under the Trust according to Dutch Reformed Church values, and, generally, to maintain a Christian character.

Eaglesvale School (previously Bothashof School) was brought under the oversight of the Trust for the aforesaid reason and purpose.

Sometime in 2010, a decision was taken by the Dutch Reformed Church to hand over the Trust to the Reformed Church of Zimbabwe.

With the authorization of the Minister of Justice, the Articles of Association of the Daisyfield Trust were altered to accommodate the change of ownership, and, on 15 March 2013, by special resolution of the Daisyfield Trust, its name was changed to THE REFORMED CHURCH IN ZIMBABWE'S DAISYFIELD TRUST.

I will refer to it hereinafter as “the Trust”.

Following the above, the oversight of the school then moved to the Reformed Church of Zimbabwe who then became the trustees of the Trust.

Up to 12 July 2013, the first to the eighth appellants were members of the Board of Governors responsible for the management of Eaglesvale School. The ninth and the tenth appellants are members of the School Development Committees of the Junior and Senior schools, respectively.

It appears from the opposing papers, that, on 12 July 2013, a letter was written by the Board of Trustees addressed to the third respondent as follows:

“Att: Mr N Tirivavi

Eaglesvale School Management Board

12 July 2013

RE: DISSOLUTION OF EAGLESVALE SCHOOL MANAGEMENT BOARD

The above matter refers.

You are hereby notified that the Reformed Church in Zimbabwe's Daisyfield Trust Board, of which you have been a board member, has been dissolved with immediate effect.

It has come to the attention of the Reformed Church in Zimbabwe's Daisyfield Trust, that, the School Management Board did not follow instructions from the Board of Trustees, as written in the letter to you dated 21 June 2013. For avoidance of doubt, the letter instructed the School Management Board to:

1. Reinstate Mr. Tirivavi back to his work as the suspension was unlawful.

2. Give Mr. Tirivavi all his salary and benefits from the date of suspension.

The Reformed Church in Zimbabwe's Daisyfield Trust regrets, that, to this day, the Headmaster has not been given his dues and his office is still locked and blocked, thereby hindering the smooth running of the school. It would seem from the occurrences pertaining to various issues at the school, that, the school management board is not willing to co-operate or work with the trustees.

Therefore, the Board of Trustees has been left with no option but to dissolve you as the school management board. This means your membership to this board ceases forthwith. However, you are notified, that, if you are still interested to be part of the new Board to be set up, you should submit your application to the board of trustees by the end of the day of Monday 15 July 2013.”

It is not clear on the papers as to whether or not the letter was brought to the attention of the appellants, but, it is not disputed, that, the appellants, at some stage thereafter, came to know of the fact that an Interim Board of Governors had been appointed by the trustees.

Thereafter, a situation then allegedly pertained where instructions were being given to the administrative staff by both Boards of Governors, and the headmaster was taking instructions from the “Board of Trustees” and not from the appellants.

The third respondent, Naison Tirivavi, is the headmaster.

THE APPLICATION

The appellants averred, that, the urgent problem and reason for the application is that:

“The new trustees are running havoc and disrupting the management of the school. Unfortunately, they are also abusing school funds and resources for personal gain. Until recently, the reasons for the conduct of the RCZ and its appointed trustees, whilst still disruptive, were not clear. Sadly, it is now the clearer and urgent that the reason for this conduct is, inter alia, to take control of finances unlawfully and to plunder them.”

They averred, that, the trustees had lifted the suspension of the headmaster on charges of misconduct while the charges against him were still pending, and attached vouchers to show, that, within one month, that is to say, during the period 19 June 2013 to 19 July 2013, the first to third respondents had looted some $80,000 from the school coffers for their own gain and without the knowledge of the appellants.

They claimed, that, it had never been the practice for trustees to draw money from the school as evidenced by the fact, that, one Mr Van Vuuren, the former trustee of the Trust under the management of the Dutch Reformed Church, had never drawn or demanded money from the school throughout his term of office.

The role of the Trust, they stated, was to bring help, whether monetary or otherwise, to the school and not to plunder its resources.

They had grave concerns that the respondents were trying to access the bank accounts which have always fallen under 'the guardianship of the Board and the School Development Committees.'

They alleged, that, they wrote to the Trustees advising them that their attempt to dissolve the Board was void.

However, that letter does not form part of the record and details of the date or contents thereof cannot be ascertained.

They alleged, further, that, the Interim Board had taken control of the finances of the school and were making payments to the Trustees, for their services, in a manner which caused alarm to the appellants.

They attached to their papers a number of vouchers which they say caused them to fear that the funds of the school were being mis-managed to the personal benefit of the Trustees.

For the above reasons, they felt the need for an interdict to be granted as a matter of urgency.

The application was opposed by the respondents, who contended that the matter was not urgent.

The Board, they said, had been dissolved on 12 July 2013 and the appellants knew, as at that date, that an Interim Board had taken over the management of the school. It follows, that, the new administration would have access to the school's bank accounts and finances. Accordingly, the appellants had not made out a case for the matter to be given preference on the court roll by being accorded an urgent hearing.

In the respondents opinion, the matter ought to have been referred to the ordinary roll.

In any event, the appellants had no locus standi to make the application since they had not shown that they represented the Board. No resolutions or other forms of authority were produced to the court which would satisfy it of the locus standi of the appellants to bring this application.

THE ISSUES

At the hearing, a number of preliminary points were raised. The two which formed the basis of the decision were that the matter was not urgent; and that the appellants had no locus standi to make the application.

URGENCY

The appellants claimed, that, it was their discovery that money was being fleeced out of the school's finances which gave rise to the urgency and not the fact that the Trustees had authorised other persons to run the school.

In particular, they claimed that what triggered the application was their discovery, on 15 August 2013, of a number of vouchers which indicated that the school's finances were being misappropriated by the respondents. These vouchers date from 19 June 2013 to 19 July 2013.

The learned Judge was of the view, that, the urgency was created by the appellants since the chaos which existed at the school predated the alleged misappropriation of funds and the appellants ought to have known that the new Board would seek access to the finances and bank accounts of the school.

Indeed, the appellants were quite vague on the reasons for the urgent application.

They do not give the date when the problems began to surface with the Trustees. They mention that the Trustees had reinstated the headmaster whom they had suspended, even while the suspension order was extant. Their allegations boiled down to the fact, that, the Trustees were interfering with their management of the school yet they are silent on the dates of occurrences of these problems.

It appears, from the respondents opposing papers, that, the headmaster was allegedly reinstated sometime in June 2010.

In short, the appellants failed to provide, in their affidavits, sufficient detail from which the learned Judge could form the opinion that the matter merited an urgent hearing.

We do not find any impropriety in the learned Judge's exercise of his discretion in this regard.

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.

The main question faced by a Judge presented with an 'urgent application' is to decide whether or not to give priority to the application by dealing with it on an urgent basis. In arriving at a decision on this issue, he or she is called upon to exercise discretion. Such discretion must be exercised judicially, taking into account the factors urged in favour of, and against, an urgent hearing.

If, on perusal of the papers, the Judge comes to the conclusion that the matter is urgent enough to merit an urgent hearing, then, he or she conducts a hearing and gives such order as he thinks fit.

But, if the conclusion is reached, however, that the matter is not urgent, he or she must refuse to hear the application and remove it from the roll, in which event the applicant has the option of enrolling his matter for hearing on the ordinary roll of court applications.

It is a contradiction in terms to dismiss a matter on the twin bases that it is not urgent and that the applicant has no locus standi, for the latter basis indicates that a decision on the merits of the application has been made, in which event the applicant is barred from placing the matter on the ordinary roll for determination.

The effect of the dismissal on the latter basis is that the applicant is put out of court, and is deprived of his right to have the matter properly ventilated in a court application or trial.

Where, however, the matter is struck off the roll for lack of urgency, the applicant, if so advised, may place the matter on the ordinary roll for hearing.

The learned Judge, in giving his reasons for finding that the matter was not urgent, made certain findings of fact which involved the merits.

For example, he found that the appellants Board was dissolved on July 12, a fact of which the appellants claim they were unaware, and that the appellants had not established locus standi to act for the Board or to seek the remedy sought in the draft provisional order.

Those issues went to the heart of the matter. In proceeding to determine them, and to make those findings of fact, the court misdirected itself.

LOCUS STANDI

The issue of locus standi raises a dispute of fact which is capable of resolution by the production of further evidence by the parties, if so minded.

It falls to be resolved upon consideration of the merits, after all the evidence which the appellant is entitled, and wishes, to produce has been placed on record.

The insufficiency of evidence contained in the founding affidavit is not, in itself, fatal to the establishment of locus standi since that deficiency can, in given circumstances, be remedied by further evidence.

Because of the confused manner in which this application was dealt with by the court a quo, the appellant was deprived of an opportunity to adduce, if it so wished, evidence which would establish its locus standi to bring the application.

RELIEF SOUGHT

It was submitted by counsel for the appellants, that, if the appeal found favour with this Court, then, it should grant the provisional order sought as a remittal would cause hardship to both parties.

As stated above, we are not persuaded to interfere with the trial court's finding on urgency and the issue of locus standi has not been resolved on the papers.

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

This is because it is preferable to have the benefit of the reasoning of the lower court, and, that way, an appellant is not deprived of his right to appeal, and, in the exercise of this right, to place before this Court, for consideration, a different view from that of the court a quo.

We do not, in the circumstances, consider this to be a case where this court can make the final decision at first and last instance.

COSTS

The appeal has partially succeeded, in that this Court has found that the order dismissing the application was improper. The appellants are therefore entitled to their costs of this appeal.

Accordingly, it is ordered as follows:

1. The appeal succeeds in part.

2. The judgment of the court a quo is altered to read as follows:

“The matter is not urgent. It is removed from the roll. The applicants shall pay the costs of this application.”

3. The respondents shall pay the costs of the appeal.

SC10-24 : ELPHAS MAPHISA vs CLEVER SIBANDA N.O. (as executor dative of the Estate of the late Melusi Sibanda) and OTHERS
Ruled By: GWAUNZA DCJ, MAKONI JA and CHITAKUNYE JA

As aptly noted in Darangwa v Kadungure SC126-21…,.:“The rules of court are designed for the benefit of the court and the proper administration of justice. As has been said, they are 'not laws of Medes and Persians:' see Scottish Rhodesian Ltd v Honiball 1973 (2) SA 747 (R) at p748. ...

SC13-24 : UNKI MINES (PRIVATE) LIMITED vs SHURUGWI TOWN COUNCIL and JUSTICE A. EBRAHIM N.O.
Ruled By: UCHENA JA

This is an opposed chamber application in terms of Rule 43 of the Supreme Court Rules 2018, for condonation and extension of time within which to note an appeal.BACKGROUND FACTSThe applicant and the first respondent entered into an agreement of sale of land belonging to the first respondent. The land ...

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

BACKGROUND FACTS

The applicant and the first respondent entered into an agreement of sale of land belonging to the first respondent. The land is held under Deed of Transfer 1989/08. The first respondent proposed a subdivision of the piece of land. The proposed subdivisions were never taken out of the original land identified under Deed of Transfer 1989/08.

The proposed subdivisions were made the subject of a sale agreement between the applicant and the first respondent.

It was a term of the agreement, that, in the event of a dispute, the parties would refer the matter for arbitration.

The merx of the sale were the proposed subdivisions, as depicted on the map.

The said map was later found to be invalid as it identified wrong portions of the land. A new map was produced which identified land which is different from the land identified in the agreement of sale itself.

A dispute arose concerning the number of Stands or sub-divisions bought by the applicant.

The dispute was brought before an arbitrator, who is the second respondent in this matter. The arbitrator's award held, that, there was a binding agreement between the parties.

The first respondent was aggrieved by the arbitrator's award.

It filed an application for the setting aside of the arbitrator's award before the court a quo, on the basis that the arbitral award is contrary to public policy.

At the hearing of the matter, the first respondent raised a point in limine to the effect, that, the arbitrator failed to keep a complete record of proceedings with regards to the matter.

It also averred, that, the applicant's counter application was incompetent as it was lodged through an opposing affidavit.

It averred, that, an application in the High Court is made in the form of a founding affidavit and under Form 29.

On the merits, the first respondent argued, that, the award given by the arbitrator is a brutum fulmen in that the disposition of the award is incapable of enforcement as it did not make an enforceable order.

It argued, that, the arbitrator did not give a formal order directing either party to do anything.

It further argued, that, the arbitrator failed to comply with the provisions of Article 31 and 33 of the Arbitration Act. It further argued, that, the arbitral award is contrary to public policy because the order interfered with the sanctity of the parties agreement and the agreement is contrary to mandatory provisions of the law.

On the contrary, the respondent, who is the applicant in this case, raised a point in limine to the effect, that, the application for the setting aside of the arbitral award could not be heard before its application for dismissal for want of prosecution is heard and completed.

On the merits, it argued that there was no basis for the setting aside of the arbitral award as the findings of the arbitrator were factually and legally correct. It disputed that the first respondent bought individual Stands. It contended, that, it bought the whole subdivision through an addendum to the Main Agreement.

The court a quo ruled, that, in the absence of the arbitrator's record, it would not be possible for it to scrutinize the proceedings in terms of Article 34 and 36. It held, that, at law, any tribunal whose proceedings may be challenged before another tribunal ought to keep and maintain a record of proceedings.

Regarding the applicant's counter-application, the court struck it off on the basis that it was not filed in the prescribed form.

SC17-24 : TENDAI MASHAMHANDA vs BARIADIE INVESTMENTS (PRIVATE) LIMITED and SHERIFF OF THE HIGH COURT
Ruled By: BHUNU JA

INTRODUCTIONThe parties have been in and out of the courts embroiled in ferocious battles over the ownership, possession, and occupation of a certain piece of property commonly known as the Remainder of Subdivision C of Plot 6 of Lots 190, 191, 193, 194 and 195 of Highlands Estate of Welmoed ...

SC17-24 : TENDAI MASHAMHANDA vs BARIADIE INVESTMENTS (PRIVATE) LIMITED and SHERIFF OF THE HIGH COURT
Ruled By: BHUNU JA

Although legal practitioners are expected to proceed with due care and diligence in drafting legal documents at all material times, the courts are inclined to relax the strict adherence to the rules on account, that, in an urgent application, the legal practitioner will be operating under extreme pressure due to ...

SC18-23 : UNKI MINES (PRIVATE) LIMITED vs DOHNE CONSTRUCTION (PRIVATE) LIMITED
Ruled By: MUSAKWA JA

This is an opposed chamber application for condonation for non-compliance with the Supreme Court Rules 2018 and for extension of time in which to appeal made in terms of Rule 43.

The intended appeal is against a judgment of the High Court, handed down on 17 February 2021, upholding the respondent's application for a compelling order. The applicant seeks an order in the following terms:

1. The application for condonation for non-compliance with rules and extension of time within which to appeal be and is hereby granted.

2. The Notice of Appeal filed of record be and is hereby deemed to have been filed as of the date of this order.

FACTUAL BACKGROUND

On 6 and 7 March 2013, the applicant and the respondent entered into an agreement whereby the respondent was contracted to construct housing units for the applicant. It was a term of the contract, that, in the event of a dispute arising between the parties, an adjudicator would be appointed to resolve the dispute, and, the adjudicator's decision would be final.

Two disputes arose between the parties.

The first dispute was referred for adjudication and a determination was made. The applicant did not give notice of dissatisfaction with the adjudicator's decision, thus, rendering the decision final and binding.

Another dispute between the parties arose and this related to a termination certificate that was issued by the applicant, and the matter was also referred for adjudication.

The adjudicator ruled, that, the termination of the contract was improper as it arose out of the applicant's own wrongdoing. The adjudicator further ruled, that, the termination certificate was not issued promptly and in accordance with the terms of the contract.

It is in respect of the adjudicator's second decision that the respondent sought a compelling order against the applicant in the court a quo.

Before the court a quo, the respondent contended, that, the decision by the adjudicator was binding on the parties unless and until it was revised by the tribunal, and was enforceable as a matter of contractual obligation between the parties and not as an arbitral award. It thus argued, that, the respondent was entitled to the relief sought.

The applicant opposed the application arguing, that, there was no legal basis for the relief sought as the respondent was attempting to enforce the adjudicator's determination as if it was an arbitral award.

It further argued, that, the matter was already before the courts, thus, the application was an abuse of court process.

In addition, the applicant contended that the respondent's claim had prescribed.

It was the court a quo's finding, that, the parties relationship, rights, duties, and obligations were governed by the contract which the parties had entered into.

The court a quo ruled, that, since the adjudicator's decision was final and binding, until it was set aside by the tribunal, the argument by the applicant, that, the matter was improperly before the court fell away. It ruled, that, a notice of dissatisfaction or referral to arbitration did not, within the context of the contractual terms, serve to suspend or stay the adjudicator's decision.

On the issue of prescription, it was the court's finding, that, prescription only begins to run when a cause of action is complete, and, in this case, it was not complete since the entire decision of the adjudicator had been referred to arbitration by the applicant.

Consequently, the court a quo granted the application in favor of the respondent.

Irked by the decision of the court a quo, the applicant appealed to this Court. The appeal was struck off the roll on the basis, that, the notice of appeal was defective as the grounds of appeal did not comply with the Supreme Court Rules.

Accordingly, the applicant brings the present application to seek condonation and extension of time to file a fresh appeal.

SC40-23 : JOHANNES MANYENGA vs PETROZIM (PRIVATE) LIMITED
Ruled By: MAVANGIRA JA, MAKONI JA and CHITAKUNYE JA

This is an appeal against the entire judgment of the Labour Court (“the court a quo”), sitting at Harare, wherein it dismissed the appellant's appeal and upheld the decision of the respondent's disciplinary authority dismissing the appellant from employment.FACTUAL BACKGROUNDThe appellant was employed by the respondent as a Deputy General ...

FACTUAL BACKGROUND

The appellant was employed by the respondent as a Deputy General Manager on 1 November 2014. During the course of his employment, he was appointed as Acting General Manager during the following periods:

(i) 6 to 22 January 2016 (16 days);

(ii) 21 to 25 August 2017 (4 days);

(iii) 10 to 11 July 2018 (1 day);

(iv) 15 to 16 August 2018 (1 day); and

(v) 11 to 21 January 2019 (10 days).

The appellant was later charged with two counts of contravening section 4(a) of the Labour (National Employment Code of Conduct) Regulations 2006 (“the Regulations”), that is, committing any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract.

On the first count, the appellant was charged with failing and/or neglecting to advise the Board of Directors of the respondent (the Board) of the various problems and challenges that the company was facing in implementing its projects during the periods that he was employed as the Deputy General Manager, and, in particular, during the above-mentioned periods when he was the Acting General Manager.

On the second count, it was alleged, that, during the appellant's employment as Deputy General Manager, from 1 November 2014 to 22 March 2019 (when he was placed on mandatory leave), he attended PetroZim Board meetings and failed and/or neglected to advise the Board of the various problems and challenges that the company was facing in implementing its projects, in particular, the items numbered A to A(v) below:

“A. The following are the incidences you failed and/or neglected to report to the Board when you were Acting General Manager and during Board meetings as Deputy General Manager:

A(i) You failed and/or neglected to advise the Board that the Company had purchased two DRA skids from Kaltrade amounting to US$610,000. The purchase order was for new DRA skids. Kaltrade failed to deliver the skids. On their failure to deliver, Kaltrade then offered to sell to the Company the two used demo DRA skids. The Company accepted the old demo skids (which were bought as test kits against a deposit of US$35,000), as a replacement for the new skids that Kaltrade had failed to supply. Despite the skids being previously used, the Company accepted them at the price of US$610,000 that had been quoted for the supply of new skids by Kaltrade.

A(ii) You further failed and/or neglected to advise the Board that the Company had irregularly accepted a purported 5-year warranty on the demo skids from Kaltrade for the period 2013 to 2019. Despite the demo skids being purported to be on a 5-year warranty, the Company subsequently approved the purchase of DRA skid spares at a cost of US$91,082=30.

A(iii) You also did not advise the Board, that, despite various outstanding orders from Kaltrade, including 2 outstanding DRA skids which had been paid for in 2013, as late as September 2018, the Company went ahead and authorised the payment of US$267,760 to Kaltrade for the supply of another DRA skid. To date this has still not been delivered.

A(iv) You did not report to the Board that the ethanol project that had been purported to be commissioned as 100% functional was actually operating at 50% capacity due to the fact that only 3 out of 6 pumps had been installed, and, you failed and neglected to ensure delivery of the remaining 3 pumps from Kaltrade (Private) Limited despite having paid, in advance, the full purchase price.

A(v) You failed to advise the Board that the tank gauging system at Feruka was not working since its failure in 2017. Further, you did not advise the Board that the Company was relying on tank readings from the customer, NOIC, which compromised the Company's efficiency and systems.”

A disciplinary hearing was subsequently held.

It was the respondent's case, that, the material non-disclosures by the appellant, during the course of his employment, created the impression that everything was in order when, in fact, there were serious operational challenges that threatened the company's capacity to deliver on its mandate. The respondent averred, that, the appellant had failed to perform his duties in line with the dictates of his job description which was stipulated in the contract of employment. The contract required the appellant to report on overall company performance and provide input for Board meetings.

The appellant denied the charges.

He argued, that, he was never appointed as the Acting General Manager of the respondent and that the affairs of the company were regulated by a joint venture agreement between Lonrho and NOIC, which agreement reserved the right of appointment of a General Manager to Lonrho.

The appellant also claimed, that, in terms of the company organogram, no subordinates reported to him in his capacity as the Deputy General Manager. He further stated, that, all employees reported to the General Manager.

In addition, the appellant submitted, that, he had previously informed the Board that none of the other employees, including the Chief Engineer and the Accountant, were reporting to him, and, further, that he was being left out of project meetings and appraisals. The Board did not resolve this anomaly, but, instead, passed a resolution that only the General Manager was to communicate with the Board on all issues.

The Disciplinary Authority found, that, the evidence before it established that the appellant, as the Deputy General Manager, had been periodically appointed as the Acting General Manager of the respondent, in terms of the joint venture agreement.

It also found, that, the appellant, by virtue of being the next senior person available as the Deputy General Manager, would automatically be the Acting General Manager in the absence of the substantive General Manager when she either travelled or was on leave.

It further found, that, this evidence was conceded to by the appellant during cross-examination.

Furthermore, the appellant's contract of employment and job description showed, that, he was required to know and be responsible for the day-to-day monitoring of company operations and projects.

Regarding the question of whether the appellant had an obligation to report to the Board or the Board chairperson, it found that there were no Board meetings held during the time that the appellant was Acting General Manager. There was thus no way that the appellant could have reported challenges being faced by the company to the Board.

Nevertheless, it found, that, despite there being no meetings, the appellant was still expected to update the Board chairman on operational issues.

However, the Disciplinary Authority observed that the substantive General Manager, one Mrs Katsande, who the appellant would stand in for as the Acting General Manager, deliberately withheld information from the appellant such that this had an effect on his capacity to perform his duties as Acting General Manager.

It was also found, that, despite being excluded, the appellant was still aware of the challenges concerning the prover loop and metering project.

In light of the above, the Disciplinary Authority concluded, that, the appellant was aware of his responsibilities as stipulated in his contract of employment and the joint venture agreement.

It further held, that, the appellant had an obligation to report to the Board, through the chairperson, to inform it of the prover loop metering project problems and the other problems that he admitted to being aware of, because, as the Acting General Manager, he was the “gateway to the Board.”

The Disciplinary Authority ruled, that, the appellant was guilty, on both counts, of contravening of section 4(a) of the Labour (National Employment Code of Conduct) Regulations 2006. Consequently, the appellant was dismissed from his post as Deputy General Manager of the respondent on 14 August 2020.

Aggrieved by the decision of the Disciplinary Authority, the appellant filed an appeal in the court a quo.

SUBMISSIONS BEFORE THE COURT A QUO

At the hearing of the appeal, the court a quo struck out grounds of appeal one and two because they were improper. The appeal was, therefore, heard on the basis of the remaining three grounds of appeal.

The appellant submitted, that, the Disciplinary Authority erred at law by making wrong factual considerations and failing to consider factual evidence presented at the hearing which absolved the appellant from the allegations of misconduct.

It further erred at law by failing to consider, as it should have done, that the admission by the respondent, that, only the General Manager was permitted to report to the Board resolved the matter before it in favour of the appellant.

Having noted the admission by the respondent, that, there were no Board meetings convened during the period in which the appellant was accused of misconduct, the Disciplinary Authority erred in proceeding to find that the appellant was guilty of the misconduct alleged in that he should have reported to the Board Chair.

Finally, he argued that the Disciplinary Authority erred in failing to consider, as it should have done, that the respondent had failed to prove, on a balance of probabilities, that, the appellant was guilty of the alleged misconduct.

Per contra, the respondent argued, that, the appellant had a duty to report to the Board, which duty he was well aware of and did not perform.

It contended, that, the appellant had numerous occasions to report to the Board on the challenges faced by the company, even when it was not sitting, as he communicated with the Board Chairman on various occasions. The respondent was of the view, that, the appellant was the Acting General Manager at the material times in issue and had a duty to protect his employer's property and interests, hence, he could not escape liability for failure to act.

FINDINGS OF THE COURT A QUO

The court a quo opined, that, the appellant was an expert who had an obligation to perform his job for the benefit of the respondent. In view of this, the court a quo held, that, the appellant had a duty to report any anomalies concerning the functioning of the company, especially during the periods he was the Acting General Manager.

In relation to the grounds of appeal, the court a quo held, that, they had no merit.

It reasoned, that, in the absence of the General Manager, the appellant was the Acting General Manager who had a duty to report to the Board. It was also the court's view, that, even when the Board did not convene, the appellant still had access to the Board Chairman whom he should have advised of any challenges bedevilling the company.

The court a quo thus concluded, that, there was no need for it, as an Appellate Court, to interfere with the findings and the exercise of discretion by the Disciplinary Authority as there was no misdirection on its part, taking into account the evidence that was before it.

In the result, the court a quo dismissed the appeal and upheld the decision of the disciplinary authority.

Irked by the decision of the court a quo, the appellant noted the present appeal on the following grounds:

GROUNDS OF APPEAL

“1. The court a quo erred in law in not finding, that, the principle lex non cogit ad impossibilia applied to the appellant's circumstances, that is to say, that, objective impossibility of discharging a legal duty is always a defence when the type of the conduct charged is an omission.

2. A fortiori the court a quo erred and grossly misdirected itself on the facts and the evidence, such misdirection amounting to a misdirection in law, in not finding as it ought to have done, that, it was objectively impossible for the appellant to perform the obligation in respect of which the omission charged was alleged because on the common cause facts and evidence:

(i) There was no Board meeting that took place or a properly convened and constituted Board meeting that sat at all to deal with the affairs of the respondent during the period the omission is alleged to have taken place; and

(ii) There was an extant instruction from the Board of Directors directing that all communication to the Board, in relation to the affairs of the respondent, was to be through the General Manager only of which the appellant was not; and

(iii) There was no way appellant could have known of the operation challenges faced by the respondent in circumstances where it was clear, that, as a senior managerial employee who was not always on the ground, none of the subordinates with which (sic)? such information reported to him as they all reported directly to the substantive General Manager; and

(iv) In terms of his contract of employment, the appellant had no subordinate who reported to him.

3. The court a quo erred and grossly misdirected itself in law in finding, that, reporting to or advising the Board Chair in respect of issues meant for the whole Board of Directors, at a properly convened and constituted meeting, was enough to comply with the requirement to inform the Board and that appellant's failure and/or neglect to report the Board Chairman, as opposed to the Board, was fatal as to go to the root of his employment contract.

4. The court a quo having found, that, appellant's interpretation of the emails he received from the General Manager is correct, erred and grossly misdirected itself in any event in finding, that, he was appointed the Acting General Manager with duties and responsibilities of advising the Board of Directors on the operational challenges of the company.

5. The court a quo erred in law in considering, that, it was being asked to interfere with the exercise of a discretion (sic) in circumstances wherein the appellant impugned findings of fact.

6. The court a quo erred and misdirected itself, in any event, in not finding that there existed the jurisdictional facts upon which the court a quo could interfere with the factual findings of the disciplinary authority and in not interfering with the same.”

The appellant prays, that, the appeal be allowed with costs and that the decision of the court a quo be set aside and substituted with one allowing the appeal and setting aside the decision of the Disciplinary Authority....,.

Counsel for the appellant further contended, that, a further complaint by the appellant is that the court a quo erred in law in considering that it was being asked to interfere with the exercise of a discretion in circumstances wherein the appellant impugned findings of fact.

It is submitted, that, the record is clear that the appellant's grief a quo related to the disciplinary authority's findings of fact. The appellant clearly pointed out how impossible it was, on a careful application of the law to the facts, for the Disciplinary Authority to find him guilty of the charges he faced.

The fact that the court a quo went on to frame the appellant's grounds of appeal as impugning the exercise of discretion by the Disciplinary Authority, was a question that the court a quo invented for itself and answered.

In Proton Bakery (Pvt) Ltd v Takaendesa 2005 (1) ZLR 60 (S)..., GWAUNZA JA said:

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

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

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

I associate myself with the above sentiments. The court a quo created its own ground of appeal and answered it, which was a misdirection on its part.

SC41-23 : CASSIAN MANUHWA vs SEEDCO ZIMBABWE (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, KUDYA JA and MWAYERA JA

The appellant appeals against the whole judgment of the Labour Court (the court a quo), which was handed down on 9 January 2015. The court a quo dismissed his appeal against the determination of the disciplinary authority, which found him guilty of misconduct and dismissed him from employment.The FactsThe appellant ...

The Facts

The appellant was employed by the respondent as a Sales Distribution Services Manager. He was suspended from employment without any salary or benefits on 13 December 2010. On 4 January 2011, he was charged, by the disciplinary authority, with an act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract of employment in contravention of section 4(a) of the Labour (National Code of Conduct) S.I.15/2006 (the National Employment Code).

He was alleged to have authorized the dispatch of seed maize valued at US$931,735=06 on credit to Nelmah Holdings (Pvt) Ltd (the agro-dealer) in violation of the requisite internal procedures of the respondent.

He contested the charge, but, was subsequently convicted thereof, on 13 January 2011, and dismissed with effect from the date of suspension.

He was legally represented at the hearing.

He raised two defences:

(i) The first was that he was verbally authorized by his immediate supervisor, Ivan Craig, to dispatch the seed maize to the agro-dealer.

(ii) The second was that the respondent's electronic credit management system broke down and disabled him from detecting the breach of the credit limit of the agro-dealer and stop the sales transactions in real time.

He, however, conceded that he was well versed with the respondent's manual pre-credit check system.

The disciplinary authority found his “evidence to be full of inconsistencies” and his “conduct reckless”. It held, that, Ivan Craig did not authorize him to dispatch the seed maize to the agro-dealer.

It was common cause, that, the appellant did not conduct any pre-credit checks. It was also common cause, that, the manual pre-credit checks preceded the credit sales and the electronic notification of the breach of a credit sale. It was further common cause, that, the respondent's electronic sales management system was down and could not, therefore, alert the Sales Office of any credit limit breach in real time.

The disciplinary authority found, that, by virtue of his seniority, the appellant knew the manual, internal pre-credit checking procedures required of him before he could authorize the sale of seed maize on credit. It, therefore held, that, the failure of the electronic system to flag the breach would not absolve him from physically verifying the credit limit and status of the agro-dealer before authorizing the sale.

Lastly, it found that even though the electronic warning system was down, he ignored the verbal warning given to him by the Credit Controller, one Thomas Mavhurumutse, on 22 October 2010 and on 28 October 2010, that, the agro-dealer had exceeded its credit limit. He, therefore, failed to stop any further deliveries to the prejudice of the respondent.

He was thus convicted of misconduct and duly dismissed from employment.

Aggrieved by the determination of the disciplinary authority, he filed an appeal and an application for review in the court a quo, raising 15 grounds of appeal against conviction, an additional 5 grounds against the penalty, and, a further, 4 grounds of review.

The Contentions a quo

In the court a quo, counsel for the appellant impugned the disciplinary authority's factual findings on the basis, that, they constituted a gross misdirection, which amounted to a misdirection of law to which no sensible court applying its mind to the facts would have made.

He contended, that, the disciplinary authority incorrectly found that the appellant had mero motu authorized the dispatch of seed maize to the agro-dealer. He argued, that, the appellant had acted, as he was wont to do, on the verbal instruction of his immediate supervisor.

He contended, that, the contrary finding of the disciplinary authority ignored the testimony of Thomas Mavhurumutse and the contents of the input credit application forms submitted by the agro-dealer for its respective winter wheat and summer maize programs.

He argued, that, Thomas Mavhurumutse and the agro-dealer's representatives confirmed, that, Ivan Craig had verbally authorized the appellant to sell seed maize on credit.

He further argued, that, Ivan Craig's signature, for and on behalf of the respondent, on the summer maize application form signified two things:

(i) Firstly, the execution of a binding contract between the agro-dealer and the respondent.

(ii) Secondly, the written authorization by Ivan Craig to sell maize seed to the agro-dealer on credit.

He also contended, that, Bramwell Bushu, who replaced Ivan Craig as his immediate supervisor, had prior knowledge of the agro-dealer's credit transaction. This, so he argued, was demonstrated by the letter written to the agro-dealer by Bramwell Bushu on 6 October 2010. In the letter, Bramwell Bushu affirmed the respondent's ability to supply the agro dealer's seed maize requirements, specified in its letter dated 5 October 2010.

Counsel further argued, that, the failure by the respondent's electronic sales management system to block the excessive credit sales led the appellant to believe, that, it had an extant credit limit that had not yet been reached.

The appellant did not motivate any of his grounds of review in his main written heads of argument a quo. He was prompted to do so in his supplementary heads, which he filed in response to the respondent's heads.

He, therein, strenuously argued, that, his references to the conduct of Bramwell Bushu, which only came to his attention after the disciplinary proceedings, established his four grounds for review.

The only relevant ground for review was that Bramwell Bushu was an interested and biased party, who, for that reason, could not have represented the respondent as the complainant in the disciplinary proceedings. This was because he had concealed his letter of 6 October 2010 from the disciplinary authority.

The other three grounds for review related to the subsequent fraud charges levelled against Bramwell Bushu after the hearing, and the recovery efforts the appellant purportedly initiated and negotiated with the agro-dealer, after the misconduct came to light.

Per contra, the respondent made the following contentions in its written heads of argument a quo.

The application for review was fatally defective in that it sought to introduce new evidence which was not before the disciplinary authority.

This evidence, comprised the arrest of Bramwell Bushu for fraud, arising from the same transactions, subsequent to the disciplinary proceedings, and his letter of 6 October 2010.

The letter did not constitute a credit guarantee letter but was a supply guarantee letter.

In any event, the new evidence was not only irrelevant to the resolution of the dispute before the disciplinary authority but also negated the hallowed principle of finality to litigation.

It was improper for the appellant to seek to try out new issues on fresh facts simply because the first set of facts had proved inadequate.

The remaining grounds of review did not impugn the manner in which the disciplinary proceedings were conducted. They raised mitigatory factors, which rightly fall into the ambit of an appeal against sentence rather than the legality, procedural propriety, and rationality of the hearing.

Regarding the appeal, it argued that the determination was rationally linked to the facts and evidence and could not be interfered with on appeal. It submitted, that, the appellant was correctly convicted and rightly dismissed, because, the offence went to the substratum of and destroyed the employment relationship between the parties.

The findings of the court a quo

The court a quo reduced 15 grounds of appeal to a single issue of whether the hearing officer grossly misdirected himself by convicting the appellant on the evidence that was placed before him. Likewise, the issue raised against sentence was whether or not the sentence of dismissal was appropriate.

It held, that, the review grounds did not constitute proper grounds of review.

It however regarded them as abandoned as they had not been motivated, but, did not make a determination on the application.

Regarding the appeal, the court a quo held, that, the appellant authorized credit sales above the agro-dealer's US$20,000 limit. He did so without adhering to the prevailing manual procedures - which were known to him. He was required to follow them before authorizing the sale. The electronic credit sales management system would only be activated subsequent to the mandatory manual pre-credit checks. The malfunctioning of the electronic system did not, therefore, absolve him from making the manual pre-credit checks.

It also upheld the factual findings of the disciplinary authority, that, Ivan Craig did not authorize any sales in excess of the agro-dealer's credit limit. The findings were supported by the oral and written testimonies of Ivan Craig, Thomas Mavhurumutse, Melody, Locadia Marongwe and Muzadzi who all interacted with the appellant at all material times.

They were also confirmed by the documentary evidence and the probabilities.

It further found, that, the agro-dealer could not have concluded a summer seed maize credit sale contract with the respondent, as suggested for the first time on appeal by the appellant, without submitting the required credit insurance cover.

The court a quo further found, that, the probabilities demonstrated that the appellant's conversation with Ivan Craig, over the Zimbabwe Farmers Union (ZFU) seed maize voucher program, could not reasonably be construed as constituting the disputed verbal authorization. The court a quo, therefore, held that the appellant had disingenuously authorized the credit sale for the benefit of the agro-dealer in lieu of the ZFU voucher program.

By consent, the parties called, on appeal, the evidence of Ivan Craig and Bramwell Bushu and produced the letter written by the agro-dealer on 5 October 2010 and Bramwell Bushu's 6 October 2010 reply.

It found, that, Bramwell Bushu's reply did not constitute the requisite authority to open a credit sales trading account; its absence at the disciplinary hearing did not prejudice the appellant and its production thereat would have served no useful purpose.

The court a quo, consequently, dismissed the appeal with no order as to costs. It, however, did not pronounce itself on the application for review.

The grounds of appeal

Irked by the decision of the court a quo, the appellant appeals to this court on the following grounds of appeal:

“1. The court a quo erred at law in confirming the appellant's dismissal when there was no evidence that the appellant acted in a manner inconsistent with the fulfillment of the express or implied conditions of his contract of employment.

2. The court a quo erred at law in confirming the appellant's dismissal contrary to the evidence of Ivan Craig and Bramwell Bushu which exonerated the appellant of any wrongdoing.

3. The court a quo erred at law in confirming the appellant's dismissal for misconduct, yet the record clearly shows that appellant sought authorization before dispatching seed to Nelmah.”

He seeks the success of the appeal with costs, the vacation of the court a quo's judgment, and its substitution with an order granting both the appeal and the application for review with costs, his reinstatement with salary and other benefits, alternatively, damages, which may be computed by the Labour Court, if the parties fail to agree thereon within 30 days of the substituted order.

At the commencement of the hearing, counsel for the appellant moved for the addition of two other grounds of appeal. After some initial opposition, counsel for the respondent conceded to the addition thereof.

Consequently, the following two grounds of appeal were, by consent, added to the notice of appeal as numbers:

(4) The court a quo erred in finding, that, the appellant's first ground of review, alleging interest in the cause, did not raise a review ground, and, a fortiori, having heard new evidence on review, in failing to record the full evidence given by the parties and to determine the effect of the new evidence on that review ground; and

(5) The court a quo erred in groundlessly commenting, that, the review application had been abandoned and in leaving the same hanging and undetermined.

The contentions before this Court

The preliminary applications

At the commencement of the hearing before this Court, counsel for the appellant took two preliminary applications:

(i) Firstly, he sought the vacation of the judgment of the court a quo and the remittal of the matter before a different judge.

This was because of the common cause fact, that, the transcript of the proceedings and notes of the presiding judge a quo could not be located after diligent search. The transcript and the notes could also not be reconstructed due to the 5-year time lapse between the dates on which judgment was handed down and the request for reconstruction was made.

(ii) Secondly, he sought the amendment of the notice of appeal by the addition of the two grounds that are set out in paragraph (18), above.

After interacting with the Court, counsel for the appellant abandoned the first application. He conceded, that, it was in the interests of the due administration of justice that there be finality to this matter, which has been raging between the parties for the past decade. It was therefore dismissed.

The second application was, however, granted by consent.

The substantive contentions on the merits

On the merits, counsel for the appellant contended, that, the conviction was not established by the evidence called at the disciplinary hearing.

He argued, that, Ivan Craig and Bramwell Bushu exonerated the appellant of any wrongdoing.

He strenuously argued, that, the court a quo did not properly assess the common cause evidence of the telephonic conversation between Ivan Craig and the appellant, which took place when the appellant was in the company of Nyathi and the agro-dealer's Mahupete.

He submitted, that, a proper consideration of the evidence would have led to the inevitable conclusion, that, Ivan Craig had verbally authorized the sales transaction and resulted in the appellant's acquittal.

He also argued, that, an acquittal would also have followed from the correct appreciation of the minutes of the meeting held at Wild Geese Lodge on 15 December 2010 between the top management of the respondent and the agro-dealer.

Regarding the two additional grounds of appeal, counsel for the appellant argued, that, they raise the issue of whether or not the review application was dealt with and the manner of its disposal.

The review grounds concerned the alleged interest and bias of Bramwell Bushu, who acted as the complainant at the hearing. Counsel argued, that, the non-disclosure of Bramwell Bushu's letter of 6 October 2010, and of his arrest for fraud ex post facto the hearing, constituted a gross misdirection by the disciplinary authority.

He, however, failed to articulate how the disciplinary authority's failure to consider evidence that was never placed before it could ever amount to a misdirection.

He also argued, that, the failure to make a substantive order on the application for review was a misdirection which would be subject to correction by this Court.

Counsel for the respondent made the following contrary submissions.

The evidence on record confirmed, that, the appellant was guilty of the misconduct for which he was charged with. The evidence of Ivan Craig, Bramwell Bushu, Muzadzi and Locadia Marongwe implicated him of wrong doing. The tele conversation between Ivan Craig and the appellant, on 19 October 2010, which preceded the first dispatch of seed maize, and the minutes of the meeting at the Wild Geese Lodge, did not exonerate him of any wrong-doing. His assertion that he did not have access to the credit limit modules was controverted by Melody and Thomas Mavhurumutse. In any event, it was common cause, that, he never conducted the pre-creditworthiness checks required of him before authorizing the dispatch of the seed maize.

He further submitted, that, the two additional grounds of appeal could not properly be related to by this Court in view of the finding a quo, that, the appellant had abandoned the application for review.

He submitted, that, the court a quo dealt with the application for review and concluded that it had been abandoned.

He argued, that, the court a quo only assessed the evidence of the two witnesses that were called before it in the context of an appeal and not of an application for review.

He further contended, that, the appellant's failure to assail the finding on abandonment is fatal to his case.

He therefore implored the Court to dismiss the appeal in its entirety.

The Issues

The two issues that arise from the grounds of appeal are;

(i) Firstly, whether the court a quo correctly upheld the conviction of the appellant, which resulted in his dismissal from employment; and

(ii) Secondly, whether the application for review was abandoned and a substantive order pronounced a quo.

Analysis

Whether the application for review was abandoned and whether the court a quo pronounced a substantive order thereon

Counsel for the appellant's submission, that, the application for review was not abandoned runs contrary to the findings of the court a quo. It remarked thus in its judgment, at p143 of the appeal record:

“It will be noted, that, the application for review appeared to have lost its way and was not heard of in the addresses. The issues that were clearly pursued were those of the appeal. In fact, these are not review issues except for the first one, if it can be proved. If it can be proved it would fall under the appeal grounds as facts which can show that the hearing officer grossly misdirected himself on the facts proved. Therefore, there was no review case at all. None was genuinely pursued. There was no need to have a separate case for review.”

In our view, the correctness of this finding is affirmed by the fact, that, the appellant did not assail these findings in its written heads of argument, or even in the additional grounds of appeal. This was in spite of the categoric assertion advanced by the respondent in paragraph 2.5 of its written heads of argument that:

“The court a quo found, that, the same was not pursued at the hearing as the appellant only pursued the appeal. See page 143 of the record, last paragraph. This finding by the court a quo has not been challenged in the present appeal and the issue of the review is, therefore, resolved.”…,.

We also agree with counsel for the respondent's submission, that, the appellant's failure to impugn the finding was fatal to the appeal.

In our view, the appellant could not properly appeal against a review that it had abandoned. In the circumstances, we would dismiss the fourth ground of appeal.

We, however, agree with counsel for the appellant, that, the application for review was before the court a quo.

It is trite, that, where a party fails to motivate a ground of appeal, it is regarded as abandoned. An abandoned ground of appeal is struck out: see Colcom Foods Ltd v Taruva SC107-20…, and Equity Properties (Pvt) Ltd v Al Sham Global BVI Limited SC101-21…,..

In our view, where, as in this case, an application for review is enrolled before a court and is regarded as abandoned, it ought to be dismissed.

We, therefore, agree with counsel for the appellant, that, the court a quo ought to have pronounced itself on the application for review.

In terms of section 22(1)(a) of the Supreme Court Act [Chapter 7:13], this Court:

“Shall have power to confirm, vary, amend or set aside the judgment appealed against or give such judgment as the case may require.”…,.

We believe, that, this is a proper case to invoke the power vested in this Court by the closing phrase of section 22(1)(a) of the Supreme Court Act, that is “to give such judgment as the case may require.”

We will, therefore, amend the order a quo by inserting an additional paragraph 2 to the effect that: “the application for review be and is hereby dismissed.”

The net effect of the amendment is that the initial paragraph 2 will therefore become paragraph 3.

In view of the finding in paragraph [34] above, the fifth ground of appeal partially succeeds....,.

1. The appeal succeeds in part.

2. The appeal against conviction is dismissed in its entirety.

3. The judgment of the court a quo is amended by the insertion of paragraph 2, so that it reads:

“2. The application for review be and is hereby dismissed.

3. Each party shall bear its own costs.”

SC45-23 : ZONDIWA NYAMANDE vs ISAAC MAHACHI and CHITUNGWIZA MUNICIPALITY and MANYAME RURAL DISTRICT and MINISTER OF LANDS
Ruled By: GUVAVA JA, MUSAKWA JA and MWAYERA JA

The High Court (the 'court a quo') granted an application filed by the first respondent, on an urgent basis, for spoliatory relief. The appellant, disgruntled by the decision, appealed to this Court.

At the commencement of the hearing, counsel for the appellant raised a point in limine, that, the second respondent's heads of argument were improperly before the court as they were filed in support of the appeal. He thus prayed that they be struck out with no order as to costs.

Counsel for the second respondent was not opposed to the striking out of the heads of argument. As a result, an order by consent was issued striking out the second respondent's heads of argument.

There was, therefore, no appearance for the second respondent before the court.

FACTUAL BACKGROUND

The first respondent is the holder of an offer letter for subdivision 6 of Braemar Farm in Seke District (the farm) under the jurisdiction of the Manyame Rural District Council. The farm was allocated to him on 17 November 2009 and is 122,540ha in extent. The farm had been gazetted on 3 September 2004 in the Government Gazette Extraordinary Vol. LXXXII, No. 72.

The acquisition of the farm by Government is still extant.

On 10 May 2022, the first respondent filed an urgent chamber application for a spoliation order against the appellant.

The first respondent alleged, that, on 5 May 2022, at around 3:00pm, the appellant instructed his workers to build a two roomed house and a surrounding wall in his cattle grazing area. The appellant proceeded to dig trenches for the wall and completed building the two-roomed house.

Upon enquiring from the appellant about the reason why he had built a structure on his farm, the appellant responded, that, he had been allocated the piece of land by the second and third respondents for the purpose of constructing a school.

The first respondent requested for a meeting with the appellant as a means to iron out the issue, but, the appellant declined to attend.

The first respondent reported the invasion by the appellant to the police, but, did not get much assistance. The first respondent, thereafter, made an application for a spoliation order in a bid to recover the portion of the farm that had been taken by the appellant.

The appellant opposed the application.

In his opposing affidavit, he raised five preliminary objections:

(i) Firstly, he alleged, that, the first respondent had no cause of action against him.

It was the appellant's position, that, he was entitled to occupy and possess the portion of the farm as it was now Stand Number 7727 Nyatsime Township (the 'Stand'). The appellant further stated, that, he acquired the Stand through a lease agreement entered into between him and the second respondent.

He further stated, that, the Stand was not part of a farm but was a planned urban settlement which fell under the jurisdiction of the Manyame-Chitungwiza Joint Committee.

The appellant also stated, that, the land on which the first respondent was entitled to occupy was different from where his Stand was situated as evidenced by the layout plan and site plan for the area;

(ii) The second preliminary point was that the remedy of spoliation was wrongly sought. It was the appellant's view, that, any charge against the appellant should have been for trespass and not spoliation;

(iii) The third point was that the application was made using the wrong form thus failing to comply with the rules of court;

(iv) The fourth point was that the matter was not urgent; and finally

(v) That the first respondent ought to have joined the Minister of Local Government and Public Works as well as the Manyame-Chitungwiza Joint Committee to the proceedings.

On the basis of these preliminary points, the appellant sought an order that the application be dismissed.

On the merits of the matter, the appellant denied sending his workers onto the first respondent's farm. He argued, that, the piece of land belonged to him and that he was developing it in order to build a school. He maintained, that, the first respondent was never in peaceful and undisturbed possession of the land where the appellant built his structure as such piece of land did not belong to him. The appellant further averred, that, the first respondent was mistaken in thinking that the Stand was part of his farm as evidenced by the lease agreement.

The second respondent opposed the application and raised a preliminary point, that, the application was not urgent.

On the merits, the second respondent averred, that, the gazetted land, on which the farm stood, had since been placed under the jurisdiction of the Manyame-Chitungwiza Joint Committee as established under S.I. 211/21.

The second respondent averred, that, the Stand was allocated to the appellant lawfully with all processes duly followed.

It was also the second respondent's averment, that, the offer letter issued to the first respondent had since been withdrawn by the fourth respondent.

The second respondent thus prayed for the dismissal of the application.

The third respondent also opposed the application and raised two preliminary points:

(i) The first point being, that, there was non-joinder of the Manyame-Chitungwiza Joint Committee; and

(ii) Secondly, that, the matter was not urgent.

On the merits of the matter, the third respondent averred, that, the first respondent failed to furnish any proof that he was in peaceful and undisturbed possession of the land occupied by the appellant. Further, that, the first respondent failed to fulfil the requirements to be satisfied in an application for spoliation.

Not to be outdone, the fourth respondent also opposed the application and raised the preliminary point, that, the matter was not urgent.

On the merits, the fourth respondent averred, that, the offer letter giving the first respondent authority over the farm was withdrawn on 7 February 2015 and the land was subsequently parceled out to the Ministry of Local Government and Public Works.

Thus, the fourth respondent suggested that the offer letter in the possession of the first respondent was null and void and therefore he had no legal right to be on the farm.

DETERMINATION BY THE COURT A QUO

The court a quo, in dealing with the application, found no merit in the preliminary points raised. The court a quo held, that, an application for spoliation is urgent by its nature and thus the application was properly before it. It also found, that, there was a valid cause of action before it as the first respondent had an offer letter in his possession which gave him a right to be on the land. It held further, that, the form which had been used by the first respondent was not the correct one but found that there was substantial compliance with the Rules. It further found, that, non joinder of a party to proceedings did not necessarily vitiate the proceedings.

With regards to the merits of the case, the court a quo found, that, the land occupied by the first respondent was a commercial farm held by the fourth respondent. As it was a commercial farm, it fell outside the jurisdiction of the Ministry of Local Government and Public Works, the second, and third respondents. They thus had no mandate over the farm.

The court found, that, the Minister of Local Government and Public Works had no power or authority to establish or expand an urban settlement. The court held, that, the second and third respondents could not come on the first respondent's farm and impose conditions on that land.

It held further, that, the appellant had no legal basis to take the land from the first respondent as this was the sole prerogative of the President.

The court a quo noted, that, the actions by the second respondent, in issuing a lease agreement to the appellant, amounted to an exercise of authority reposed only in the President and that such actions were therefore illegal and criminal.

The court a quo accordingly found, that, the first respondent was despoiled of his farm and granted the application for spoliation against the appellant. It also ordered, that, the appellant, and all those claiming occupation through him, must vacate the farm. It made a further order, that, the appellant must remove all structures which he had constructed and refill all the trenches that he had dug on the farm.

Aggrieved by the decision of the court a quo, the appellant appealed to this Court on the following grounds of appeal;

“(1) The court a quo erred in finding, that, the requirements for spoliation were satisfied in circumstances where the 1st respondent failed to establish that the appellant was in occupation of subdivision 6 of Braemar Farm Plot thereby despoiling him.

(2) The court a quo erred in granting spoliatory relief in circumstances where there was no evidence before it that the appellant's lease agreement with 2nd respondent related to a farm and not a designated Stand.

(3) The court a quo erred in affording the relief of spoliation in circumstances where there existed material dispute of fact as to which land belonged to the appellant and which land belonged to the respondent.

(4) The court a quo erred in holding, that, the matter was urgent in circumstances where the urgency was self-created by the 1st respondent.

(5) The court a quo erred in determining, that, the appellant had a cause of action against the appellant in circumstances where they were in occupation of different pieces of land.

(6) The court a quo erred in ordering the appellant to pay costs of suit on a higher scale in the absence of evidence on record justifying such a course.”...,.

With regards to costs granted a quo, it is apparent that the court granted costs on a legal practitioner and client scale without giving the reasons for the order.

The court fell into error in this regard.

It is trite, that, while the award of costs is in the discretion of the court, a court that awards costs on a legal practitioner and client scale must establish a legal basis for doing so. These are punitive costs, and, the court must justify why the party so saddled with this cost has raised the ire of the court.

Whilst the award may have been justified, unfortunately, the reasons for this decision remained embedded in the mind of the judge.

In the absence of such reasons, the order of costs made by the court a quo cannot stand and all that can be done is to substitute the award to an award on the ordinary scale.

In this regard, the appeal will succeed only to the extent that the order for costs on a higher scale is set aside....,.

1....,.

2. Paragraph 3 of the order of the court a quo is set aside and substituted with the following:

“3. The first respondent shall pay costs on an ordinary scale.”

SC46-23 : GAYNOR CHITSAKA and OTHERS vs LORRAINE HEYNS and OTHERS
Ruled By: MAKONI JA, CHIWESHE JA and CHATUKUTA JA

This is an appeal against the entire judgment of the High Court (“the court a quo”) wherein it dismissed the appellants point in limine, that, the respondents application before it was a nullity for non-compliance with Rule 59 of the High Court Rules 2021 (“the Rules”).

At the hearing of the appeal, counsel for the first and second respondents (Lorraine Elizabeth Heyns and Kurt Louis Heyns) raised a point in limine to the effect, that, the present appeal was fatally defective for the reason, that, it had been noted without the leave of the court a quo, as the appeal is against an interlocutory order.

This judgment will thus be confined to the determination of this point in limine.

FACTUAL BACKGROUND

The parties are embroiled in a dispute over ownership of an immovable property known as a Certain Piece of Land Situate in the District of Hartley, called the Remainder of Westhey of Sabonabon Estate measuring 97,0653 hectares and held under Deed of Transfer Number 4110/92 (“the property”).

The first and second respondents approached the court a quo by way of an urgent court application for an order declaring certain court applications, instituted under the various case numbers, stated in their draft order, to be null and void ab initio; a declaration, that, the company known as Balwearie Holdings (Private) Limited, registered under Company Number 45/77, is the legitimate owner of the property; and, an order that the first, second and twelfth respondents have no enforceable rights or interests in the property.

They also sought a declaration, that, the first to eighteenth respondents have acted in common purpose to illegally acquire title in the above-described immovable property.

Further, there was consequential relief which was being sought as detailed in the draft order.

The application was opposed by the appellants as well as the third to the eighteenth respondents.

Following indications from some of the parties that they had preliminary objections to raise, the court a quo directed that the parties file their opposing papers.

The appellants (Gaynor Chitsaka, Herbert Mawema, Bherebende Law Chamber and W.O.M. Simango and Associates) in their opposing papers, raised two preliminary points, namely;

(a) Whether the application was fatally defective and therefore invalid for non-compliance with Rule 59 of the High Court Rules 2021; and

(b) Whether the matter was urgent.

PROCEEDINGS BEFORE THE COURT A QUO

The appellants submitted, that, the court application was fatally defective for non-compliance with Rule 59 of the High Court Rules 2021, in that it was not in the prescribed form.

They further submitted, that, the form used did not contain the mandatory plethora of procedural rights which are designed to inform them of their rights and obligations in relation to the application.

In response, the respondents submitted, that, the form used substantially complied with the requirements of Rule 59 of the High Court Rules 2021.

In the alternative, they argued, that, the court could invoke its inherent powers to deal with the application notwithstanding the failure to comply with the exact form required by the Rules.

The appellants further challenged the hearing of the application on an urgent basis mainly on two grounds:

(i) Firstly, they contended that the certificate of urgency did not show that the certifying legal practitioner applied an independent mind to the matter.

(ii) Secondly, they argued that the circumstances of the matter did not reveal any form of urgency.

FINDINGS OF THE COURT A QUO

The court a quo found, that, the current Form 23 is what used to be Form 29 of the now repealed High Court Rules 1971.

It does not contain the dies induciae. This is provided for in Rule 59(6) of the High Court Rules 2021.

Contrary to the submission made on behalf of the appellants, the period of ten days is not a mandatory requirement. The Rules refer to a dies induciae of “not less than ten days”. It further found, that, the Rules allowed a court application to specify a shorter period of a dies induciae, if the court, on good cause shown, agrees to such a shorter period.

Whilst the court a quo agreed that the form used by the first and second respondents was defective because it did not inform the appellants of the nature and scope of the notice of opposition; the consequences of a failure to file opposing papers within the dies induciae specified in the court application; and the failure to specify the High Court station at which the opposing papers were to be filed, the court found that such defects were not fatal to the application and did not prejudice the respondents in any manner.

Consequently, it dismissed the point in limine challenging the validity of the application.

In relation to the issue of urgency, the court a quo held, that, there was no requirement for a certificate of urgency in an urgent court application. The court stated, that, the certificate of urgency was only required in urgent chamber applications, in line with the provisions of Rules 60(4)(b) and 60(6) of the High Court Rules 2021.

The court further made a finding, that, the application before it did not specify when the need to act arose and, on this point alone, it held that the matter before it was not urgent.

The court further held, that, the irreparable harm which the first and second respondents would suffer had not been established.

The court also ruled, that, the declaratory and consequential relief being sought by the first and second respondents did not qualify for an urgent hearing.

As a result, the court a quo ordered that the matter be struck off the roll of urgent matters. It also ordered, that, the respondents file opposing papers, on the merits of the matter, within ten days of the order.

THE APPEAL

Dissatisfied by the decision of the court a quo, the appellants noted the present appeal on the following single ground:

GROUND OF APPEAL

The proceedings in the court a quo were void ab initio for the reason, that, the purported application by the first and second respondents was a nullity for non-compliance with Rule 59(6) of the High Court Rules 2021, with the result that the court a quo erred in law in not so finding and in:

1.1 Striking off the matter from the roll of urgent matters as there is no such roll for urgent court applications; and

1.2 Ordering the appellants to file opposing papers to a nullity.

The appellants pray that the appeal be allowed with costs and that the judgment of the court a quo be set aside and substituted with an order upholding the point in limine regarding the invalidity of the application and that the application be struck off the roll.

SUBMISSIONS BEFORE THIS COURT

Counsel for the first and second respondents submitted, that, the appeal was invalid as a result of the appellants failure to seek leave to appeal. He argued, that, the judgment which was being appealed against was an interlocutory order; as such, in terms of section 43(2)(d)(i) of the High Court Act [Chapter 7:13] (the Act), the appellants ought to have obtained leave to appeal before lodging their appeal.

Counsel for the first and second respondents prayed for costs de-bonis propriis on the basis, that, the first and second respondents had written a letter to the appellants advising them of the need to seek leave before noting the appeal, which letter the appellants ignored.

He further added, that, the appellants failed to address the case authorities that the respondents had highlighted in their letter and in their heads of argument.

He further contended, that, amongst the appellants were legal practitioners who should know the law.

He further argued, that, the appellants counsel was not new to the issue of seeking leave in relation to interlocutory orders.

He submitted, that, counsel for the appellants argued the matter in Mogola Enterprises (Private) Limited v Old Mutual Property Investment (Private) Limited SC26-20 where the matter was struck off the roll on account of failure to seek leave.

In the event that the court was not inclined to award costs de bonis propriis, counsel sought costs on a higher scale for the reason, that, the appeal was lodged mainly to frustrate the proceedings a quo.

Per contra, counsel for the appellants, argued, that, the dismissal of the preliminary point which they had raised before the court a quo resulted in a decision which was final and definitive. He submitted, that, the preliminary point went to the root of the application that was before the court a quo, hence, the decision was not interlocutory.

Counsel contended, that, the dismissal of the preliminary point yielded an automatic appeal, thus, there was no need to seek leave to appeal.

Regarding costs, counsel for the appellants stated, that, both costs de bonis propriis and costs on a higher scale were unwarranted.

THE ISSUE

The present appeal can be disposed of by the determination of the question whether the order granted by the court a quo, dismissing the appellants preliminary point regarding the invalidity of the application before it, was an interlocutory order.

THE LAW

The question whether an order is interlocutory or not is a well-trodden path within and outside this jurisdiction.

In the locus classicus, South Cape Corp v Engineering Management Services 1977 (3) SA 534 (A)…, the court, in defining what an interlocutory order is, stated the following:

“(a) In a 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:

1. Those which have a final and definitive effect on the main action; and

2. Those known as 'simple (or purely) interlocutory orders' or 'interlocutory orders proper' which do not: see, generally, Bell v Bell 1908 TS 887 at pp.890-1; Steytler N.O. v Fitzgerald supra at pp.303, 311, 325-6, 342; Globe and Phoenix Gold Mining Co. Ltd v Rhodesian Corporation Ltd 1932 AD 146 at pp.153, 157–8, 162-3; Pretoria Garrison Institutes v Danish Variety Products supra at pp.850, 867.

(b) Statutes relating to the appealability of judgments or orders (whether it be appeal ability with leave or appealability at all) which use the word 'interlocutory' or other words of similar import, are taken to refer to simple interlocutory orders.

In other words, it is only in the case of simple interlocutory orders that the statute is read as prohibiting an appeal or making it subject to the limitation of requiring leave, as the case may be.

Final orders, including interlocutory orders having a final and definitive effect are regarded as falling outside the purview of the prohibition or limitation: see, generally, Steytler's case supra at pp.304, 312,326, 345-6;

(c) The general test as to whether an order is a simple interlocutory one or not was stated by SCHREINER JA in the Pretoria Garrison Institutes case, supra, as follows (at p.870):

'…, a preparatory or procedural order is a simple interlocutory order, and, therefore, not appealable, unless it is such as to 'dispose of any issue, or any portion of the issue, in the main action or suit' or which amounts, I think, to the same thing, unless it 'irreparably anticipates or precludes some of the relief which would or might be given at the hearing.'"

The above position of the law has been followed in this jurisdiction as enounced in a number of cases: see Gillespies Monumental Works P/L v Zimbabwe Granite Quarries P/L 1977 (2) ZLR 436 (H); Mwatsaka v ICL Zimbabwe 1988 (1) ZLR 1 (H); Mogola Enterprises (Private) Limited v Old Mutual Property Investment (Private) Limited SC26-20; Al Shams Global BVI Limited v Deposit Protection Corporation & Ors SC52–22.

In Trust Merchant Bank Limited v Mako Properties (Pvt) Ltd t/a Musuna Safaris & Travel SC73–02 CHIDYAUSIKU CJ restated the applicable test on whether an order is interlocutory as follows:

“It is clear from its form and effect, that, the order made by the learned judge is an interlocutory order within the meaning of section 43(2)(d) of the Act. In Steytler N.O. v Fitzgerald 1911 AD 295, at 305, LORD de VILLIERS CJ said, that, the test whether or not an order was interlocutory was:

'Whether on the particular point in respect of which the order is made the final word has been spoken in the suit, or whether in the ordinary course of the same suit, the final word has still to be spoken.'”…,.

MALABA DCJ…, in the case of Blue Ranges Estates (Pvt) Ltd v Muduviri and Anor 2009 (1) ZLR 368 (S)…, further elaborated on the test as follows:

“To determine the matter, one has to look at the nature of the order and its effect on the issues or cause of action between the parties and not its form. An order is final and definitive because it has the effect of a final determination on the issues between the parties in respect to which relief is sought from the court.

An order for discovery or extension of time within which to appeal, for example, is final in form but interlocutory in nature. The reason is that it does not have the effect of determining the issues or cause of action between the parties.”…,.

The learned authors, HERBSTEIN and Van WINSEN, in their book Civil Practice of the High Courts of South Africa, 5th ed, Juta…, define an interlocutory order as:

“…, an order granted by a court at an intermediate stage in the course of litigation, settling or giving directions with regard to some preliminary or procedural question that has arisen in the dispute between the parties.”

The essential elements of an interlocutory order that are coming out of the above authorities can be summarized as follows:

(i) It is an order granted at an intermediate stage in the course of litigation of the dispute between the parties.

(ii) It could relate to a preliminary or procedural question that would have arisen in the course of dealing with the main dispute.

(iii) The final word still has to be spoken in the suit.

(iv) Its an order pronounced upon matters incidental to the main dispute, preparatory to, or during the progress of litigation.

(v) It can be final in form but interlocutory in nature, in that, it does not have the effect of determining the cause of action between the parties.

It is a settled principle of law, and is statutorily provided for, that, no appeal lies against an interlocutory order without the leave of the court which gave that order, or, where it is refused, without the leave of this Court.

This is laid out in section 43(2)(d) of the High Court Act [Chapter 7:06] in the following manner:

“43 Right of appeal from High Court in civil cases

(2) No appeal shall lie —

(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….,.”

Nevertheless, there are three instances in which an appeal against an interlocutory order may be noted without the leave of court. These three exceptions are provided for in the aforementioned section as follows:

(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.

APPLICATION OF THE LAW TO THE FACTS

In their heads of argument, the first and second respondents contend, that, the court a quo's judgment was not a final and definitive judgment as it did not bring the dispute between the parties to finality.

The appellants, on the other hand, insist that the court a quo's failure to hold, that, the proceedings before it were void ab initio resulted in a judgment which was final and did not require leave to be appealed against.

The court a quo was called upon to determine, in limine, whether or not the application before it was a nullity.

It determined that the application was valid.

Such a judgment is appealable without leave for the simple reason, that, it is not covered by any of the three prohibitions in section 43(2) of the High Court Act [Chapter 7:06].

A judgment that refuses to find that proceedings before a court are void ab initio cannot be interlocutory as it goes to the root of the litigation and has far reaching consequences as to fall outside the contemplation of the word “interlocutory” as used in section 43(2) of the High Court Act [Chapter 7:06].

Such a judgment forces a respondent to participate in subsequent proceedings that may be a nullity. This creates an absurdity not contemplated by the legislature in enacting the prohibition relating to 'interlocutory' orders.

In the circumstances, leave to appeal was not required.

In my view, the order granted by the court a quo fits squarely into the essential elements of an interlocutory order such as I have alluded to above in paragraph 25.

The court a quo dismissed the point in limine raised by the appellants, regarding the validity of the application before it, and gave an order striking the application off the roll of urgent matters.

In so doing, the court did not make a determination on the merits of the dispute between the parties. At the time the court a quo made the order “the final word has still to be spoken” regarding the cause of action between the parties.

The decision did not bring the rights of the parties, in relation to the dispute between them, to a final and definitive determination.

This is fortified by the fact, that, the court a quo went further and directed the respondents, before it, to file notices of opposition to the application on the merits. The main dispute between the parties was referred to the roll of ordinary court applications for a resolution.

This part of the order undoubtedly indicates, that, the dispute between the parties had not been resolved. It was still awaiting final determination.

The decision of the court a quo, although final in form, is purely interlocutory in nature, and would certainly require the leave of the court a quo.

Whilst counsel for the appellants was correct, that, the order issued by the court a quo was final, it is only final in form, but, interlocutory in nature, and does not fall under any of the exceptions set out in paragraph (d) of section 43(2) of the High Court Act.

In my view, litigants need to understand, that, finality of the order is not the determinant factor. One needs to go further and examine the nature of the order. The question that one must ask oneself is whether the order, though final, disposes of the main dispute between the parties. If it does not, then, it is an interlocutory order.

No absurdity will be created by the main matter proceeding as the appellants can appeal the decision - with the leave of the court a quo.

This appeal, having been filed without the leave of the court a quo, is improperly before the court. Consequently, I uphold the point in limine raised by the first and second respondents.

There is one issue which has caused me some disquiet, which issue, in my view, might have taken this matter this far. It concerns the manner in which the court a quo handled the urgent court application before it.

When seized with an urgent court or chamber application, and points in limine are taken, including that the matter is not urgent, the first point to be determined is whether the matter meets the requirements of urgency. If the court determines that the matter is urgent it then goes on to deal with the other points in limine, starting with those that have the potential to terminate the proceedings.

If the court a quo had adopted the correct approach and found, as it did, that the matter was not urgent, it should have ended there. The issue whether the application before the court was valid or not would then have been properly dealt with on the ordinary roll.

One can understand the appellants confusion.

When the matter comes up on the ordinary roll for determination, they can no longer raise the issue, regarding the validity of the application, lest they are confronted with a special plea of res judicata.

That, however, in my view, does not change the character of the order. It remains interlocutory in that it determined a procedural issue....,.

DISPOSITION

In light of the foregoing analysis, the point in limine, that, leave to appeal should have been sought, must be upheld. The order granted by the court a quo has all the attributes of an interlocutory order.

Accordingly, it is ordered as follows:

1. The matter be and is hereby struck off the roll.

SC59-24 : CHANDRA GOYEL vs MYRAMMAR FARMING (PRIVATE) LIMITED t/a COTTONZIM and OTHERS
Ruled By: MWAYERA JA

This is a chamber application for condonation for the late noting of an appeal and extension of time within which to note an appeal made in terms of Rule 43(1) as read with Rule 43(2) of the Supreme Court Rules 2018 (“the Rules”).The application is opposed.The order sought by the ...

This is a chamber application for condonation for the late noting of an appeal and extension of time within which to note an appeal made in terms of Rule 43(1) as read with Rule 43(2) of the Supreme Court Rules 2018 (“the Rules”).

The application is opposed.

The order sought by the applicant in this application is as follows:

“RELIEF SOUGHT

WHEREUPON after reading documents filed of record and hearing counsel;

IT IS ORDERED THAT:

1. The applicant's non-compliance with Rule 38(1)(a), Rule 37(1)(e), Rule 37(2), Rule 55(5) of the Supreme Court Rules be and is hereby condoned.

2. The application for extension of time within which to note an appeal be and is hereby granted.

3. Within 5 days of this order, the applicant shall file and serve its notice of appeal.

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

On 5 December 2023, in an ex tempore judgment, I struck the matter off the roll with costs. The applicant has requested for the written reasons for judgment. These are they.

FACTUAL BACKGROUND

The background to this application can be summarised as follows:

In December 2011, the applicant lent and advanced an amount of One Million United States Dollars (USD$1,000,000) (hereinafter referred to as the loan) to the first respondent to fund its cotton seed purchase for the 2012 buying season.

The second to the sixth respondents (Virendra Ranchod, Manojkumar Jivan, Jayprakash Patel, Vinodkumar Rama and Serish Ranchod) executed personal guarantees in respect of the transaction that bound them as guarantors of the loan.

They jointly and severally bound themselves in varying amounts in respect of the loan.

In addition, the respondents also bound themselves as sureties and co-principal debtors for a punctual re-payment of the loan.

The seventh respondent (Gloworm Investments (Pvt) Ltd) tendered Stand number 7489 of Salisbury Township held under Title Deed number 8677/97 as security for the loan.

The first respondent (Myrammar Farming (Pvt) Ltd) t/a Cottonzim), duly represented by the second and sixth respondents, undertook to pay this amount in full on or before December 2012.

Despite various letters demanding payment by the applicant, the respondents failed to pay the applicant back the full amount as had been agreed.

In November 2013, the first respondent signed an acknowledgment of debt in respect of the loan in the sum of one million United States dollars plus interest.

On 30 July 2014, the first respondent was placed under provisional judicial management.

On 8 June 2016, the applicant instituted proceedings against all the respondents in the High Court, under case number HC5762/16, wherein he sought, inter alia, the payment of the USD$1 million, which amount had been advanced to the first respondent.

PROCEEDINGS BEFORE THE COURT A QUO

On 10 May 2022, at the commencement of the trial, the third to the fifth respondents raised three points in limine:

(i) Firstly, that the matter had prescribed;

(ii) Secondly, that there was a violation of the provisions of the Exchange Control Regulations; and

(iii) Lastly, that leave of the court was required before suing the first respondent which was under provisional judicial management.

In arguing the third preliminary point, counsel for the applicant submitted, that, leave was only required in respect of already existing proceedings at the time the provisional order is granted and that no leave was required for new suits. In support of this argument, counsel cited the case of Zambezi Gas Zimbabwe (Pvt) Ltd & Anor v N.R. Barber (Pvt) Ltd & Anor SC03-20.

Per contra, counsel for the first respondent argued, that, leave to sue a company under judicial management was necessary, and, failure to do so was fatal. He further submitted, that, the rationale for judicial management is an endeavour to resuscitate a company and avoid liquidation hence the need for leave.

The court a quo dealt with the issue regarding leave to sue; it upheld, that, the first respondent, being a company under provisional judicial management, could not be sued without leave of the court.

Aggrieved by this decision, the applicant noted an appeal in the Supreme Court under case number SC146/23 wherein he sought the setting aside of the decision of the court a quo upholding the preliminary point.

The appeal was noted on the grounds, that, the court a quo erred in finding that the applicant was required to seek leave to sue the first respondent notwithstanding that the applicant instituted proceedings against the respondents after the provisional order placing the first respondent in judicial management was handed down.

Further, the applicant averred, that, the court a quo erred in overriding the position that leave to sue companies placed under provisional judicial management only applies to proceedings already in existence at the time the provisional judicial management order is granted.

Lastly, the applicant averred, that, the court erred in failing to find that the respondents were estopped from raising the point relating to leave to sue in light of the fact, that, the issue had already been dealt with by the High Court.

It is important to note, that, the appeal was timeously lodged on 15 March 2023. The applicant offered to pay security for the respondents costs, but, however, while such tender was made, the security for costs was not paid within one month from the date of filing the notice of appeal.

The appeal was then deemed to have been abandoned and dismissed by operation of the law.

On 18 October 2023, the applicant filed an application for reinstatement of the appeal that had been deemed abandoned and dismissed under case number SC579/23. However, the appeal that the applicant sought to reinstate was mistakenly set down for hearing on 31 October 2023.

In light of these events, the applicant wrote a letter to the Registrar of the Supreme Court seeking for the application for reinstatement to be heard prior to the set down date.

The applicant was advised by the respondent's legal practitioners, that, the correct application to be filed was an application for condonation and extension of time within which to note an appeal and not reinstatement since the appeal was regarded a nullity.

The Registrar sent the applicant a notice, that, the application for reinstatement was set down for hearing on 1 November 2023.

Consequently, on 31 October 2023, at the hearing of the appeal, the applicant sought for the removal from the roll of the appeal under SC146/23 for the reason, that, it had been deemed abandoned and dismissed by operation of the law.

By consent, the appeal was removed from the roll.

On 1 November 2023, the applicant withdrew the application for reinstatement with a view to filing an application for condonation and extension of time within which to note an appeal and ensuring that the appeal would be heard on the merits.

It is against this background, that, the applicant approached this Court with the present application seeking condonation for the failure to comply with Rule 38(1)(a), Rule 37(1)(e), Rule 37(2) and Rule 55(5) of the Supreme Court Rules 2018.

PROCEEDINGS BEFORE THIS COURT

At the hearing of the application, counsel for the applicant submitted, that, the application for condonation and extension of time within which to note an appeal had been necessitated by the apparent fact, that, there had been non-compliance with the rules of this Court.

She submitted, that, the failure to pay security for costs was not deliberate, but, actuated by a mis-interpretation and oversight on the import of Rule 55(1) and Rule 55(2) of the Supreme Court Rules.

She further submitted, that, the applicant, upon realising concerns raised by the respondents relating to the validity or otherwise of the appeal for non-compliance with the Rules, took steps to rectify the non-compliance.

She contended, that, the breach of the Rules was not deliberate and not caused by the applicant, but, borne out of a genuine oversight by his legal practitioners.

Further, she submitted, that, the respondents would not suffer any prejudice if condonation and extension of time is granted.

As regards prospects of success on appeal, counsel submitted, that, the applicant enjoyed prospects of success because leave to sue a company under judicial management only applies to actions or proceedings already in existence at the time that the provisional order is granted.

She argued, that, no leave is required to institute proceedings against a company under provisional judicial management after the provisional order has been granted.

She prayed, that, in view of the explanation for non-compliance and the delay which she described as “not inordinate” coupled with the fact, that, the applicant enjoyed prospects of success on appeal, the court ought to grant the indulgence.

Counsel thus sought that condonation and extension of time within which to note an appeal be granted.

Per contra, counsel for the third, fourth and fifth respondents opposed the application.

He submitted, that, the application was fatally defective for the reason that the earlier, albeit irregular appeal, remained hanging in the court's records as it was not struck off the roll at the instance of the applicant.

He further submitted, that, the applicant, despite being conscientised of the irregularities, persisted on a trajectory of filing defective processes. He argued, that, even the present application was improperly before the court as a Judge sitting alone in chambers could not strike off an appeal that has been filed, and, in casu, the appeal under SC146//23 remained on record.

He further submitted, that, the applicant did not proffer an explanation for the failure to pay security for costs and the reason for the filing of irregular process.

He also submitted, that, the applicant, instead of explaining the non-compliance with the Rules, merely alludes to the respondents having highlighted irregularities which they were quick to attend to.

He contended, that, the applicant did not tender an explanation for the delay and that there was no satisfactory explanation offered for the non-compliance and filing of a defective process.

He reiterated the point, that, the present application was improperly before the court as the appeal under SC146/23 was still before the court.

Regarding the merits of the appeal, counsel for the third, fourth and fifth respondents submitted, that, the application did not enjoy any prospects of success. He referred to the case of Allied Bank Limited v Dengu & Others SC52-16 which is authority for the requirement to seek leave to sue a company placed under judicial management.

Counsel submitted, that, the application, being improperly before the court, ought to be struck off the roll.

ISSUES FOR DETERMINATION

The issues that fall for determination in this case are as follows:

1. Whether or not the application is properly before the court.

2. Whether or not the requirements for granting condonation for late noting of an appeal and extension of time have been satisfied.

THE LAW

It is trite, that, when an application is improperly before the Court, there will be no application for the court to relate to. The matter which is improperly enrolled faces the fate of being struck off the roll.

In the case of Ahmed v Docking Station Safaris (Private) Limited t/a CC Sales SC70-18…, this Court made the following pertinent remarks:

“In view of the above, it is clear, that, the applicant has approached this court with a wrong application. The circumstances to make an application for condonation for non-compliance with the rules and extension of time within which to file and serve a notice of appeal. This, the applicant failed to do.

The net effect of bringing a wrong application before the court is that there will be virtually nothing placed before it, and, to that end, the application cannot stand.”..,.

The law applicable to applications for condonation and extension of time within which to comply with the Rules and file the relevant application or appeal is settled.

The requirements for this application were aptly captured by GUBBAY CJ…, in the case of Forestry Commission v Moyo 1997 (1) ZLR (S), and, they are as follows:

(a) That, the delay involved was not inordinate, having regard to the circumstances of the case;

(b) That, there is reasonable explanation for the delay;

(c) That, the prospects for success, should the application be granted, are good;

(d) The possible prejudice to the other party should the application be granted.

In addition to the above, in the case of Hove v Berea Mining Syndicate SC50-23…, it was aptly stated that:

“It is trite, that, for an application for condonation for non-compliance with the Rules and for extension of time within which to note an appeal to succeed, the applicant should satisfy the court, that, he or she has a reasonable explanation for the delay and non-compliance with the Rules, and also establish that there are prospects of success of the appeal.”

It is important to note, that, these factors are not individually decisive on whether the application for condonation for late noting of appeal and extension of time within which to appeal is granted. They are considered conjunctively.

In Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S), SANDURA JA remarked as follows:

“Whilst the presence of reasonable prospects of success on appeal is an important consideration which is relevant to the granting of condonation, it is not necessarily decisive. Thus, in the case of a flagrant breach of the Rules, particularly where there is no acceptable explanation for it, the indulgence of condonation may be refused - whatever the merits of the appeal may be.”

APPLICATION OF THE LAW TO THE FACTS

After considering both the written and oral submissions by counsel, it is apparent, that, the appeal in case number SC146/23 which was deemed abandoned and dismissed by operation of law has a life line for reinstatement as provided for in Rule 70 of the Supreme Court Rules 2018.

It is an established principle, that, when a matter is deemed abandoned and dismissed because of operation of the law, it is removed from the roll.

In casu, it is worthwhile to refer to the orders of this Court in respect of the matter. The order in the record, issued on 31 October 2023, is pertinent. The order reads as follows:

“IT IS ORDERED THAT:

1. By consent, the matter be and is hereby removed from the roll for the reason, that, it has been deemed abandoned and dismissed in terms of Rule 55(6) of the Supreme Court Rules 2018.

2. The appellant shall bear the respondent's costs for today's appearance.”

In respect of the chamber application for condonation and reinstatement of the appeal, the application was removed from the roll for the reason, that, it had been withdrawn. On 1 November 2023, the court ordered as follows:

“IT IS ORDERED BY CONSENT THAT:

The matter is removed from the roll, with no order as to costs, for the reason, that, it has been withdrawn.”

The import of these orders is that the appeal in case SC146/23 therefore remains deemed abandoned and dismissed.

Counsel for the third, fourth and fifth respondents submission, that, the application in the present case is fatally defective, is confirmed by the sequence of earlier highlighted proceedings before this Court.

In my view, the appeal under SC146/23 stands in the way of seeking condonation and extension of time within which to note an appeal by operation of the law. The proper way to revive an appeal deemed abandoned and dismissed is by seeking reinstatement.

In the present case, the applicant's non-compliance with Rule 55 of the Supreme Court Rules 2018 resulted in the appeal being deemed abandoned and dismissed. Rule 55 is instructive. It provides as follows:

“55. Security

1. If the judgment appealed from is carried into execution by direction of the court appealed from, security for the costs of appeal shall be as determined by that court and shall not be required under this rule.

2. Where the execution of a judgment is suspended pending an appeal and the respondent has not waived his or her right to security, the appellant shall, before lodging copies of the record with a Registrar, enter into good and sufficient security for the respondent's costs of appeal:

Provided that where the parties are unable to agree on the amount or nature of the security to be furnished —

(i) The matter shall be determined by the Registrar upon application by the appellant; and

(ii) The Registrar shall specify the period within which the security shall be furnished.

3. A judge may, on application, at the cost of the appellant, and for good cause shown, exempt the appellant wholly, or in part, from the giving of security under subrule (2).

4. No security for costs in terms of subrule (2) need be furnished by the Government of Zimbabwe or by a municipal or city council or by a town management board.

5. Subject to the proviso to subrule (2), where an appellant is required by this Rule to furnish security for the respondent's costs of appeal, such security shall be furnished within one month of the date of filing of the notice of his or her appeal in terms of Rule 37, or, where applicable, within the period specified by the Registrar in terms of the proviso to subrule (2).

6. If an appellant who is required to furnish security for the respondent's costs of appeal fails to furnish such security with (in) the period specified in subrule (5), the appeal shall be regarded as abandoned and shall be deemed to have been dismissed.”…,.

The rules provide for reinstatement of such an appeal that has been deemed abandoned and dismissed. Rule 70 of the Supreme Court Rules is apposite. It provides that:

“(1) Where an appeal is —

(a) Deemed to have lapsed; or

(b) Regarded as abandoned; or

(c) Deemed to have been dismissed in terms of any provision of these rules;
the Registrar shall notify the parties accordingly.

(2) The appellant may, within 15 days of receiving any notification by the Registrar in terms of subrule (1), apply for the reinstatement of the appeal on good cause shown.”…,.

In casu, the appeal was removed from the roll because it was deemed abandoned and dismissed since the applicant had not paid security for costs within the prescribed time.

The redress to this infraction is as provided for in the Supreme Court Rules 2018.

The applicant in this case, while apportioning blame to the respondents for consenting to the orders granted, cannot be exculpated from lack of probity and diligence.

It is clear, that, the applicant has approached this Court with a wrong application for condonation and extension of time within which to note an appeal, when, in actual fact, the deemed abandoned and dismissed appeal can be resuscitated by seeking condonation for non-compliance with Rule 55(5) of the Supreme Court Rules 2018 and extension of time within which to pay security of costs.

Further, the applicant ought to file for condonation for late filing of the application for reinstatement and extension of time within which to file an application for reinstatement and reinstatement of the appeal.

In the case of Gazi v Mbababala Properties (Pvt) Ltd SC24-23, MAVANGIRA JA, sitting in chambers, stated that:

“It is my considered view, that, in such a situation, a litigant, on becoming aware, by itself, of the fate of its appeal by reason of operation of the law, per Rule 55 as read with Rule 70, may properly apply for condonation of non-compliance with the rules and for the extension of time within which to file an application for reinstatement.”

These remarks resonate well with the circumstances of the present case.

See also Ahmed v Docking Station Safaris (Private) Limited t/a CC Sales SC70-18, which emphasized the fact, that, bringing a wrong application before the court virtually places nothing for the court to relate to.

The circumstances presented require the applicant to make a composite application for condonation for non-compliance with the rules and extension of time within which to pay security of costs of court, condonation for the late filing of the application for reinstatement and the extension of time within which to file the application for reinstatement and reinstatement of the appeal, which is already in the system.

In view of the fact, that, the matter is improperly before the court, it ought to be struck off the roll.

SSC03-18 : CHRISTOPHER SAMBAZA vs AL SHAMS GLOBAL BVI LIMITED
Ruled By: GARWE JA, MAVANGIRA JA and UCHENA JA

The appellant is a Zimbabwean who resides in South Africa. He is a former director of Rodstreet Trading (Private) Limited (“Rodstreet”), a company registered in terms of the laws of Zimbabwe. The respondent is a company registered in the British Virgin Islands but operating from Dubai though engaging in financial ...

Factual Background

The common cause facts on which the dispute arose are as follows:

On 22 August 2011, Rodstreet Trading (Private) Limited (Rodstreet) drew and issued a Bankers Acceptance (hereinafter called “the BA”) in the sum of US$117,335=91 in favour of Interfin Bank. Interfin Bank accepted the BA. The Bankers Acceptance's due date was 21 November 2011, that is, 91 days after sight.

Interfin Bank subsequently sold the Bankers Acceptance to the respondent on a buyback basis.

By letter dated 7 March 2012, Interfin Bank advised Rodstreet Trading (Private) Limited that it had sold the Bankers Acceptance (BA) to the respondent on a buyback basis, but, the respondent was demanding immediate payment of the BA.

The respondent demanded payment of the Bankers Acceptance (BA) from both Interfin Bank and Rodstreet Trading (Private) Limited. They both failed to pay.

The respondent issued a letter of demand to Rodstreet Trading (Private) Limited demanding payment in the sum of US$117,335=91. Rodstreet was not able to make any payment.

On 27 April 2012, the respondent issued summons against Rodstreet Trading (Private) Limited in the High Court, under case No. HC4556/12. On 18 June 2012, a default judgment was granted against Rodstreet.

The respondent instructed the Deputy Sheriff to proceed to Rodstreet Trading (Private) Limited's place of business to execute a writ issued in terms of the order granted on 18 June 2012. On 3 August 2012, the Deputy Sheriff filed a return indicating that Rodstreet was no longer operating from its registered premises.

The respondent applied to the court a quo for an order, in terms of section 318 of the Companies Act [Chapter 24:05], declaring the appellant personally liable to pay the respondent the sum of US$117,335=91 plus interest at the rate of 30 per cent per annum from 21 November 2011 to the date of full payment plus costs of suit.

The respondent sought the order against the appellant in his capacity as a director of Rodstreet Trading (Private) Limited.

It alleged, that, at all material times, the appellant knew, or should have known, that Rodstreet Trading (Private) Limited would not be able to pay the amounts owed in terms of the Bankers Acceptance (BA) which it issued. The respondent argued, that, the appellant, being a director of the company, negligently and/or fraudulently misrepresented to Interfin Bank that Rodstreet would liquidate the amount owed on the Bankers Acceptance on its maturity date.

The respondent submitted, that, due to his gross negligence and reckless trading, the appellant must be held personally liable in terms of section 318 of the Companies Act for monies owed by Rodstreet Trading (Private) Limited to the respondent. In the respondent's view, the appellant owed a duty of care to all parties which conducted business with Rodstreet, including the respondent, to ensure Rodstreet would be able to meet its financial obligations.

The appellant opposed the respondent's application in the court a quo, arguing that he was no longer a director of Rodstreet Trading (Private) Limited, having resigned from its Board on 3 November 2011 when he sold his shareholding in the company.

He further stated that the Bankers Acceptance (BA), which forms the main issue in these proceedings, was issued entirely and signed by his two co-directors, Mr Herbert Rinashe and Phillip Jonasi, without his knowledge, and that, to the best of his knowledge, no Board resolution was ever made in his presence to issue the BA.

The court a quo found the appellant personally liable for the amount owed to the respondent by Rodstreet Trading (Private) Limited, holding that the directors of Rodstreet, including the appellant, had acted recklessly, negligently, if not fraudulently, in drawing up the Bankers Acceptance (BA) and accepting money, despite their knowledge of the company's precarious financial position.

Aggrieved by the court a quo's decision, the appellant appealed to this court.

He filed a 'Notice of Appeal' against which the respondent raised preliminary issues. The respondent filed a notice of objection in terms of Rule 41 of the Supreme Court Rules, RGN 380 of 1964, objecting to the appellant's Notice of Appeal on the basis that it was fatally defective.

On the date of hearing, we decided that the parties address us on the preliminary issues raised by the respondent as well as on the merits of the matter.

The Preliminary Issues

Counsel for the respondent contended, that, the document which was filed by the appellant, as its Notice of Appeal, does not comply with the Rules of this Court, particularly Rule 29(1)(a), (d) and (e), and Rule 32(1).

Rule 29 of the Supreme Court Rules provides as follows;

“29. Entry of Appeal

(1) Every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his legal representative, which shall state —

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

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

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

(d) The grounds of appeal in accordance with the provisions of Rule 32;

(e) The exact nature of the relief which is sought;

(f) The address for service of the appellant or his attorney.”…,.

It is clear that Rule 29(1)(a) to (f) of the Supreme Court Rules provides the mandatory attributes of a compliant Notice of Appeal. A diligent legal practitioner is expected to use it as a check list in formulating a compliant Notice of Appeal. It clearly and succinctly lays out what must be stated in a Notice of Appeal.

The use of the words “which shall state” signifies the mandatory nature of Rule 29(1) of the Supreme Court Rules. It means if what the Rule says must be stated is not stated, the Notice of Appeal will be fatally defective.

In Freezewell Refrigeration Services (Private) Limited v Bard Real Estate (Private) Limited SC61-03, this Court, in explaining the effect of the mandatory provisions of Rule 29(1) of the Supreme Court Rules, quoted the case of Talbert v Yeoman Products (Private) Limited SC111-99 where MUCHECHETERE JA held, that, a Notice of Appeal which does not comply with the provisions of Rule 29(1) of the Supreme Court Rules was null and void.

Relying on the mandatory nature of Rule 29(1)(a)(d) and (e) and Rule 32(1) of the Supreme Court Rules, referred to above, counsel for the respondent submitted, that, the appellant's Notice of Appeal was fatally defective in three respects:

Counsel for the respondent submitted, that, the preamble incorrectly stated the court which handed down the judgment appealed against. The preamble reads;

“TAKE NOTICE THAT the appellant hereby appeals against the whole judgment by the Honourable Mr Justice TAGU of the High Court of Harare in Case Number HC4556/12 which was handed down on 22 June 2016.”…,.

He submitted, that, the appellant purports to appeal against the judgment of TAGU J of the High Court Harare. TAGU J is a judge and not a court. Rule 29(1)(a) of the Supreme Court Rules requires the appellant to state, in his Notice of Appeal, the court by which the judgment appealed against was given. Therefore, the appellant ought to have stated that he was appealing against the judgment of the High Court of Zimbabwe.

Counsel for the appellant submitted, that, Rule 29(1)(a) of the Supreme Court Rules requires an appellant to state the court whose judgment is appealed against. He submitted that the appellant stated that he was appealing against the judgment by TAGU J of the High Court. He submitted, that, in spite of the mentioning of the judge, the High Court was identified as the court against whose judgment the appeal was noted.

There is a distinction between a 'court' and a 'judge'.

Section 43(1) of the High Court Act [Chapter 7.06] provides as follows:

“(1) Subject to this section, an appeal in any civil case shall lie to the Supreme Court from any judgment of the High Court, whether in the exercise of its original or its appellate jurisdiction.”

It is therefore clear, that, an appeal from the High Court should be against a judgment of the High Court.

Order 1 Rule 3 of the High Court Rules 1971 defines the words 'court' and 'judge' as follows:

“'court' means the general division of the High Court;
'judge' means a judge of the court, sitting otherwise than in open court;”

The word 'judge' only applies when a judge is not sitting in open court. It only applies to a judge sitting in chambers.

Rule 29(1)(a) of the Supreme Court Rules requires an applicant to state “the date on which, and the court by which, the judgment appealed against was given. It specifies the court - not the judge.

Rule 29(1) of the Supreme Court Rules also specifies the format in which the appeal should be noted. It states:

“Every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his legal representative, which shall state -
(a)…,.”

It is therefore mandatory in respect of the format and what must be stated.

Practice Direction No.1 of 2017, though issued after the hearing of this matter, requires an appellant to state the court against whose judgment the appeal is noted. It is informed by section 43(1) of the High Court Act, and the definitions of 'court' and 'judge' by the High Court Rules.

I therefore agree with counsel for the respondent, that, the appellant's Notice of Appeal does not comply with Rule 29(1)(a) of the Supreme Court Rules.

Counsel for the respondent also submitted, that, the relief sought by the appellant is fatally defective because the nature of the relief sought is not exact. It reads as follows:

“WHEREFORE the Appellant prays that the judgment of the court a quo be set aside and substituted with the following:

'(a) The appeal be and is hereby allowed with costs.

(b) The judgment of the court a quo is set aside and substituted with the following;

The application be and is hereby dismissed with costs on an attorney and client scale.'”

He submitted that the relief sought is fatally defective for two reasons:

Rule 29(1)(e) of the Supreme Court Rules is mandatory. It requires the appellant or his legal practitioner to state the 'exact nature of the relief sought'. It follows therefore, that, the exact nature of the relief sought must be stated to inform the court about the nature of the order sought. The appellant must not leave it to the court to think for him and draft the order for him.

Counsel for the respondent submitted, that, the nature of the substituting order sought is not exact because the court a quo cannot grant parts (a) and (b) of the relief sought, which respectively pray that the appeal be allowed and the judgment of the court a quo be set aside and be substituted.

The case before the court a quo was not an appeal but an application, therefore, the appellant ought to have prayed, in paragraph (a) of his relief sought, that the application a quo be granted. With regards paragraph (b), it goes without saying that the court a quo cannot set aside its own judgment.

The exact nature of the relief sought referred to in Rule 29(1)(e) of the Supreme Court Rules refers to the type or characteristics of the relief sought. This means the relief sought must be of the type relevant to the dispute between the parties.

Therefore, the nature of the relief sought was wrongly framed and is incompetent as it refers to allowing an appeal and setting aside of an order, remedies which could not have been granted by the court a quo in a court application.

The nature of the relief sought in substituted orders (a) and (b) does not, therefore, comply with the requirements of Rule 29(1)(e) of the Supreme Court Rules.

Counsel for the appellant conceded, that, the appellant's Notice of Appeal does not comply with Rule 29(1)(e) of the Supreme Court Rules. He however submitted that the defective prayer could be amended.

I do not agree.

A fatally defective prayer, which does not state the exact nature of the relief sought, cannot be amended. In Dabengwa & Anor v ZEC & Others SC32-16, this Court held that:

“The Rule (29) is mandatory in its terms and has been construed as such in numerous decisions of this Court. The principle emanating from these authorities is that a document which fails to comply with the requirements of the Rule is fatally defective and cannot be amended.”

In Matanhire v BP Shell Marketing SC113-04 this Court refused to amend a Notice of Appeal which was fatally defective. At page 1 of the cyclostyled judgment, MALABA JA…, highlighting the importance of complying with the Rules of Court said:

“It is not usual to write a judgment on a matter that has been struck off the roll: see S v Ncube 1990 (2) ZLR 303 (S). This judgment has been written for purposes of drawing the attention of legal practitioners to the fact, that, all the matters required by the Rules of Court to be stated in a valid Notice of Appeal are of equal importance so that failure to state one of them renders the Notice of Appeal invalid.”...,.

The authorities clearly state, that, Rule 29(1)(a) to (f) of the Supreme Court Rules is mandatory and must be complied with.

A Notice of Appeal which does not comply with this Rule is fatally defective and cannot be amended as there will be nothing to amend.

A nullity cannot be amended.

Counsel for the respondent further submitted, that, the appellant's grounds of appeal are not concise and are repetitive. They therefore do not comply with the provisions of Rule 32(1) of the Supreme Court Rules which require that grounds of appeal “be set forth concisely”.

Rule 32(1) of the Supreme Court Rules provides for grounds of appeal as follows:

“(1) The grounds of appeal shall be set forth concisely and in separate numbered paragraphs.

(2)…,.

(3) Application to amend the grounds of appeal may be made before the hearing of the appeal to a judge or at the hearing of the appeal.”…,.

It is apparent from a close reading of Rule 32(1) of the Supreme Court Rules, that, it is mandatory. Grounds of appeal must therefore comply with it.

Counsel for the appellant agreed that some of the grounds of appeal are not concise and are repetitive. He suggested that they could be amended.

Rule 32(3) of the Supreme Court Rules provides for the amendment of grounds of appeal by way of a chamber application or at the hearing of an appeal.

Counsel for the appellant did not say which grounds of appeal should be amended, and how they could be amended.

The court cannot amend un-identified grounds of appeal. It is the duty of the appellant, or his counsel, to apply for the amendment of specified grounds of appeal suggesting how they should be amended.

It is however common cause, that, the Notice of Appeal in this case contains some valid grounds of appeal. The court could have considered them if the Notice of Appeal was not fatally defective in other respects.

A clear and concise ground of appeal in an otherwise valid Notice of Appeal cannot be disregarded because there are other defective grounds of appeal in the same Notice of Appeal. It should be considered while the defective grounds of appeal should be struck out.

It is clear that the Notice of Appeal in this case does not comply with Rule 29(1(a)(e) and Rule 32(1) of the Supreme Court Rules. It is fatally defective. It is therefore not necessary to deal with the merits of a fatally defective Notice of Appeal.

In the result, the matter is struck off the roll with costs.

SC64-23 : DOVES FUNERAL ASSURANCE (PVT) LTD vs HARARE MOTORWAY (PVT) LTD and AFRICAN BANKING CORPORATION LTD and BLUE STAR LOGISTICS PL and SHERIFF OF ZIMBABWE and REGISTRAR OF DEEDS
Ruled By: MAKONI JA

This is an opposed chamber application for condonation for non-compliance with rules and reinstatement of an appeal in terms of Rule 70 of the Supreme Court Rules 2018 (the Rules).After hearing submissions from counsel, I dismissed the application, with costs on a legal practitioner-client scale, and indicated that reasons will ...

This is an opposed chamber application for condonation for non-compliance with rules and reinstatement of an appeal in terms of Rule 70 of the Supreme Court Rules 2018 (the Rules).

After hearing submissions from counsel, I dismissed the application, with costs on a legal practitioner-client scale, and indicated that reasons will be furnished in due course. These are they.

BACKGROUND FACTS

The facts relevant for the determination of this matter are that the applicant, after being aggrieved by the decision of the High Court (the court a quo), duly filed a notice of appeal to this Court on 19 October 2022 under case number SC529/22.

In its notice of appeal, the applicant tendered security for the respondents costs of appeal 'in an amount agreed between the parties, failing such agreement, in an amount determined by the registrar'.

The tender was made as a requirement under Rule 55(2) of the Supreme Court Rules.

Pursuant to the tender, and on 26 October 2022, the applicant's legal practitioner wrote to the respective legal practitioners of the respondents seeking an indication as to the amount of security they required respectively. The respondents were given seven days within which to respond.

The respondents legal practitioners responded to the letter.

Messrs Gill Godlonton and Gerrans demanded security in the sum of USD10,000; Messrs Danziger and Partners and Kantor and Immerman demanded security in the sum of ZWL5,500,000.

On 16 November 2022, the applicant's legal practitioner wrote to the respondents legal practitioners, in identical terms, proposing security for costs in the sum of ZWL3,000,000 in respect of each of the respondents.

The respondents legal practitioners rejected the applicant's proposed amount in respect of each of them. However, after further discussions, all parties agreed that the applicant was to pay ZWL5,500,000 in respect of security of costs for each respondent.

The security for costs were eventually paid on 9 November and 1 December 2022, and, by then, the payment was out of time as it was due on 19 October 2022.

The appeal, in SC529/22, was heard in court on 15 May 2022.

The respondents objected, that, the appeal was deemed to have been abandoned and dismissed in terms of Rule 55(6) of the Supreme Court Rules on account of the applicant's failure to pay security for costs within the prescribed time frame of one calendar month.

The objection was upheld, and, consequently, the appeal was struck off the roll resulting in the filing of the present application.

The applicant seeks the following relief;

“The application be and is hereby granted.

1. Applicant's appeal in SC529/22 is reinstated and the registrar of this Court is ordered to re-enrol the matter for hearing.

2. First, second, and third respondents shall pay the costs jointly and severally.”...,.

The consequences of failure to pay security for costs timeously was decisively dealt with in Watermount Estates (Private) Limited v Registrar of the Supreme Court & Ors SC135-21.

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS
Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

The four appeals are against parts of the High Court's Judgment HB157-23 (“the court a quo”) which was handed down on 27 July 2023.

The appeals are against the decision of the court a quo setting aside the thirteenth respondent's decision to accept the appellants nomination papers as candidates for the impending harmonised general elections.

The four appeals SCB59/23, SCB60/23, SCB61/23 and SCB62/23 were consolidated and heard by this Court on 2 August 2023.

On 3 August 2023, we issued the following order:

1. The appeals be and are hereby allowed with costs.

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

'The applications be and are hereby dismissed with costs.'

3. The reasons for the court's decision will follow in due course.”

We undertook to furnish reasons for our disposition. These are they.

FACTUAL BACKGROUND

On 21 June 2023, the fourteenth respondent constituted a Nomination Court to receive submissions for the nominations of candidates for the election of constituency members to the National Assembly for the Bulawayo Metropolitan Province. This was in accordance with Proclamation 4 of 2023, gazetted under S.I. 85 of 2023 by the President.

The determinant facts of this appeal emanate from the events that transpired on 21 June 2023 at the Nomination Court.

The appellants appeared before the Nomination Court for their nominations as candidates for elections scheduled for 23 August 2023. The nomination officer accepted their nominations and registered them as candidates.

The respondents, except for the thirteenth to fifteenth respondents, applied to the court a quo for the setting aside of the appellants (respondents a quo) nominations. They alleged, that, their nomination papers were in disarray. They further alleged that when the appellants lodged their papers, before 4pm, they were advised to correct them. The respondents further alleged, that, the appellants thereafter filed their corrected papers out of time, after 4pm, in violation of the Electoral Act [Chapter 2:13] (“the Act”). They further alleged that, by 4pm, the appellants were outside the courtroom frantically trying to rectify their nomination papers. They further asserted, that, such nominations were null and void.

In response, some of the appellants asserted that their papers were in order and that they lodged them with the nomination officer who accepted them before 4pm. The other appellants stated, that, their papers had errors which were pointed out by the Nomination Court and were corrected and filed with the nomination officer before 4pm. Some of the appellants maintained, that, they were in court with their corrected papers which were accepted before 4pm.

In his opposing affidavit, the 13th respondent, Innocent Ncube, in his official capacity as the Provincial Elections Officer, and, for and on behalf of the Zimbabwe Electoral Commission (“ZEC”) and the Chairperson of ZEC, indicated that the nomination papers were procedurally and timeously lodged between 10am and 4pm. He also pointed out that the designated courtroom could only accommodate 12 to 15 people at any time. During the proceedings, at 3:55pm, he announced that all prospective candidates who were queuing outside because of his administrative decision (to allow 12 to 15 people at any time) should hand over their nomination papers to the police officer as the court was due to close at 4pm. The police officer collected all the nomination papers and handed them over to the thirteenth respondent before 4pm. Thereafter, the nomination officer would call in those whose papers he would be processing.

In respect of the form, Annexure “B” relied upon by the applicants a quo, he pointed out that it was a register in which the secretary captured the times when the nomination forms were inputted into the Zimbabwe Electoral Commission's (ZEC) records. In other words, he stated that the form was for the purpose of data capture into ZEC's system and not a record reflective of the time when the nomination papers were lodged with the nomination officer.

On the basis of the above facts, the court a quo found for the applicants a quo (now respondents). It held that the appellants nominations had been lodged after the stipulated cut-off time of 4pm. It, therefore, declared the nominations of the appellants as null and void.

PROCEEDINGS BEFORE THE COURT A QUO

The parties made submissions on both the preliminary points and the merits before the court a quo, after which the court a quo rendered a composite judgment for all the applications, which had been consolidated by consent.

Counsel for the thirteenth, fourteenth, and fifteenth respondents raised a preliminary point, that, the court a quo had no jurisdiction. He submitted that all the applications ought to have been filed in the Electoral Court.

Counsel for the first to the sixth appellants associated himself with the submissions made by counsel for the thirteenth, fourteenth, and fifteenth respondents on jurisdiction.

He further submitted, that, there was no application before the court because the first to twelfth respondents had irregularly truncated the dies induciae. Counsel also argued that the respondents had no locus standi and that the applications were based on hearsay evidence. He submitted that the first to twelfth respondents had not attended the Nomination Court but sought to rely on social media reports and a document, Annexure “B” which was differently interpreted by the Electoral Commission.

He also argued in limine, that, there were material disputes of fact that could not be resolved on paper.

He further submitted, that, there was a material non-joinder of Citizens Coalition for Change party (CCC) which had sponsored some of the appellants. In support of this assertion, he contended that the party would be prejudiced in obtaining proportional representation seats.

Finally, on preliminary points, counsel submitted that the applications were an abuse of the court process.

Counsel for the seventh to twelfth appellants in SCB59/23 associated himself with the preliminary points raised by counsel for the thirteenth, fourteenth, and fifteenth respondents and counsel for the first to the sixth appellants. He emphasised that the applications were based on hearsay evidence and that only the Electoral Court had exclusive jurisdiction to hear the applications.

Counsel for the first to fourth appellants in SCB61/23 associated himself with submissions made by counsel who addressed the court before him.

Counsel for the appellants in SCB60/23 also associated himself with submissions that had been made by counsel before him.

Per contra, counsel for the first to twelfth respondents opposed all the preliminary points raised, characterising them as meritless.

He relied on the case of Kambarami v 1893 Mthwakazi Restoration Movement Trust and Others SC66-21 for the proposition, that, the court had jurisdiction. Regarding the validity of the applications, he submitted that the parties had attended a case management meeting and agreed on truncating the dies induciae.

On locus standi, he submitted that the respondents had a legitimate interest in the nomination proceedings because they had a direct and substantial interest in the outcome of the process. In relation to the applications being based on hearsay evidence, he contended, that, the respondents relied on public information and that there was Annexure “B” which supported their position. He further submitted that there were no material disputes of fact. A robust approach would resolve the matter.

Counsel for the first to twelfth respondents further submitted, that, the applications a quo were not an abuse of the court process given the substantial interests which the respondents had in the nomination of candidates for the constituencies where they were registered voters.

Finally, in relation to the non-joinder of Citizens Coalition for Change party (CCC) he argued that the party had no direct and substantial interest in the acceptance of the nomination papers.

The court a quo deferred the determination of the preliminary points to the end of the hearing and sought to be addressed on the merits.

Counsel for the first to twelfth respondents submitted, in support of the applications, that, the nominations ought to be nullified since they were accepted after 4pm in defiance of section 46 of the Electoral Act [Chapter 2:13]. He further submitted that the nomination officer unlawfully opened the court to specifically allow the affected candidates to present their papers out of time. He argued that the police officer who collected the papers was not a nomination officer. Annexure “B” confirmed that the nomination papers were filed out of time.

Counsel for the thirteenth to fifteenth respondents submitted that Annexure “B” was not a document reflective of the times when the nomination papers were lodged with the nominations officer. Further, he submitted, that, the nomination papers were submitted and received before the cut-off time of 4pm on the day in question. He emphasised that the officers of the Zimbabwe Electoral Commission (ZEC) who placed evidence before the court, through their supporting affidavits, spelt out that no nomination papers were submitted after 4pm. Finally, he submitted that there was no breach of section 46 of the Electoral Act.

Counsel for the first to the sixth appellants in SCB59/23 submitted, that, the respondents were relying on hearsay evidence that the social media was awash with; information that the appellants nomination papers were in disarray and filed out of time. He pointed out that the appellants filed their papers in compliance with section 46 of the Electoral Act before 1600 hours. Further, in opposing the allegations, he relied on the Zimbabwe Electoral Commission (ZEC) and the nomination officer's evidence that Annexure “B” was not a document indicative of the lodgement of nomination papers, but, that the time reflected on it related to the time of data capture.

Counsel for the seventh to twelfth appellants in SCB59/23 was also critical of Annexure “B” and he agreed with submissions by counsel for the first to the sixth appellants in SCB59/23 on it. He submitted that the respondents were relying on hearsay evidence and that they failed to discharge the onus and to prove the factual basis of their allegations. Their evidence was speculative as they relied on social media assertions.

Counsel for the appellants in SCB60/23 associated himself with submissions made by counsel who addressed the court before him. He emphasised, that, his clients submitted their nomination papers on time. He further added that the collection of nomination papers by the police officer, at the instruction of the nomination officer, did not amount to contravening section 46 of the Electoral Act.

Counsel for the first to fourth appellants in SCB61/23 associated themselves with counsel for the other appellants submissions.

DETERMINATION OF THE COURT A QUO

The court a quo gave a composite judgment. It dismissed all the preliminary points and made a finding that Annexure “B” was a document prepared by a Zimbabwe Electoral Commission (ZEC) official and that it spoke for itself, that, the nomination papers were submitted after 4pm. It found that the submission of papers from the appellants, through the police officer, was unlawful. It thus declared the nominations as null and void and issued the following order:

“IT IS DECLARED THAT:

1. That, the decision of the 1st Respondent, sitting as a nomination court at Bulawayo on 21 and/or 22 June 2023 to accept the following Respondents nomination papers and candidature in the elections scheduled to be conducted on 23 August 2023 was in contravention of section 46(7) & (8) of the Electoral Act [Chapter 2:13].

2. That, the decision of the 1st Respondent, sitting as a Nomination Court at Bulawayo on 21 and/or 22 June 2023, to accept the following Respondents nomination papers and candidature in the elections scheduled to be conducted on 23 August 2023 is declared null and void and is hereby set aside.

ACCORDINGLY, IT IS ORDERED THAT:

3. 1st Respondent is prohibited from including the names of the following Respondents in the preparation of ballot papers to be used in the general elections scheduled to be conducted on 23 August 2023.

4. Respondents shall jointly and severally pay the costs of suit.

OBERT MANDUNA; ERECK GONO; DOUGLAS NCUBE; GIFT SIZIVA; SANPOULUS MAPLANKA; PRINCE DUBE; NQOBIZITHA NDLOVU; DESMOND MAKAZA; BAJILA COLLINS DESCENT; SICHELESILE MAHLANGU; DESIRE MOYO; ALELAIDE MHLANGA; NOMPILO BHEBHE; SURRENDER KAPOIKILU; RAPHAEL PASHOR SIBANDA; NTANDOYENKOSI MINENHLE GUMEDE; FRANK MHLANGA.

5. The application against Zvikwete Innocent Mbano be and is hereby dismissed with costs.

6. The application against ADMORE GOMBA, NIGEL NDLOVU, SONENI MOYO, DINGILIZWE TSHUMA, STRIKE MKANDLA & ALBERT MHLANGA be and is hereby withdrawn.”...,.

SUBMISSIONS BEFORE THIS COURT

(a) Preliminary Issues

Counsel for the first to the twelfth respondents raised three preliminary issues.

The first point related to the status of the fifth appellant in SCB59/23 (Jane Nicola Watson). He noted, that, the order of the court a quo did not list her as one of the respondents, which omission was accepted by the fifth appellant.

Counsel accordingly sought an order deeming the judgment of the court a quo as being applicable to the fifth appellant as such a course would prevent the appeal by the fifth appellant from being struck off the roll....,.

Per contra, counsel for the first to sixth appellants opposed the procedure suggested in respect of the omission of the name of the fifth appellant in the court a quo's judgment. He argued that it was incompetent.

After an argument by both counsels, it was resolved that the issue will be determined by the court in terms of section 22(1)(b)(ix) of the Supreme Court Act [Chapter 7:13]....,.

Eventually, all parties agreed that in light of the decision of the Constitutional Court in the case of Chamisa v Mnangagwa CC21-19 it was not necessary to dwell on the preliminary issues. Moreso considering the role of the court in matters of public importance as set out in the cited case.

Counsel for the first to twelfth respondents abandoned the preliminary points and accepted that the appeal be determined on the merits.

SC123-23 : ARISTON MANAGEMENT SERVICES vs ECONET WIRELESS ZIMBABWE LIMITED
Ruled By: GUVAVA JA, MAKONI JA and MATHONSI JA

This is the unanimous judgment of this Court.

This is an appeal against the judgement of the High Court handed down on 20 July 2023 dismissing the appellant's application to set aside an arbitral award and registering that award.

On 2 October 2023, the respondent filed a notice of objection in terms of Rule 51 of the Supreme Court Rules 2018, that, the appellant's founding affidavit filed in support of the application seeking to set aside the arbitral award in the court a quo was defective in that it was undated. The respondent submitted, that, for that reason, there was no valid application before the court a quo.

The respondent urged the court to dismiss the appeal with costs on that basis.

At the commencement of the hearing, counsel for the respondent, relying on the authority of Mandishaya v Sithole HH798-15, which is a judgment of two Judges of the High Court, submitted that the founding affidavit of the appellant, in the court a quo, was invalid as it was un-dated.

Per contra, counsel for the appellant submitted that the Mandishaya v Sithole HH798-15 judgment is wrong. He argued, that, section 8 of the Justices of the Peace and Commissioners of Oath Act [Chapter 7:09], which governs the administering of an oath, does not require the insertion of a date on an affidavit. Counsel further referred to section 2 of SI 183/98, which prohibits a Commissioner of Oaths from administering an oath in a matter in which he or she has an interest.

Counsel for the appellant also referred to the case of Firstel Cellular (Pvt) Ltd v Net One Cellular (Pvt) Ltd 2015 (1) ZLR 94 (S) which dealt with a matter where a wrong stamp had been appended by the Commissioner of Oaths.

In our view, that case is not useful for present purposes.

In Mandishaya v Sithole HH798-15, the court remarked that the deponent of an affidavit must take the oath in the presence of the Commissioner. Equally, the Commissioner must append his or her signature on the statement in the presence of the deponent. The court went on to say, that, the Commissioner must also endorse the date on which the oath was administered and that those acts must occur contemporaneously.

The reason behind that requirement is for the court to be satisfied, that, the oath was administered at a given date, in the presence of both the deponent and the Commissioner. Without the date, the court may never be able to ascertain if the oath was properly administered in accordance with the law.

The court a quo was bound by the Mandishaya v Sithole HH798-15 judgment, being a judgement of the two Judges.

Even though the issue was not argued a quo, it could be raised for the first time on appeal as it is a point of law.

We do not agree with counsel for the appellant, with his argument that the judgment was wrongly decided.

There is merit in the preliminary objection. It ought to be upheld. It renders the application for setting aside the award a nullity.

In view of the fact, that, the court a quo rendered a composite judgment in respect of the two applications, the invalid application and its outcome are capable of severance.

The application for registration, being a separate application, is not affected.

It follows that, absent a valid application a quo, there can be no valid appeal before this Court.

We therefore propose to proceed in terms of section 25 of the Supreme Court Act [Chapter 7:09], which allows this Court to review and set aside irregular proceedings.

Regarding costs, our view is that each party should bear its own costs because the respondent ought to have raised this defect to the application earlier.

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

1. The matter be and is hereby struck off the roll with no order as to costs.

2. In terms of section 25(2) of the Supreme Court Act [Chapter 7:13], the proceedings in the application to set aside the arbitral award are hereby set aside.

SC124-23 : CLEVER NJOVANA vs KUDAKWASHE KARAGA and COSMAS MASAWO and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL RESETTLEMENT and P. MAPARA
Ruled By: GWAUNZA DCJ, CHIWESHE JA and MUSAKWA JA

This is an appeal against the whole judgment of the High Court, Harare, handed down on 4 August 2022. The judgment granted an interim spoliation order and other relief against the appellant and in favour of the first and second respondents.

At the conclusion of the hearing in this matter, the court issued an order in these terms:

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

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

3. The matter is remitted to the court a quo for it to determine the case that was before it; and

4. The matter is to be placed before a different judge for determination.

The first and second respondents have requested full reasons for this order, and these are they.

FACTUAL BACKGROUND

The first, second and fourth respondents are holders of an offer letter in respect of Subdivision 2 of Lot 1 of Avalon, Hurungwe District, Mashonaland West Province (the 'farm'). In addition to the offer letter, there are various judgments and orders of the High Court which confirm the first respondent's right of occupation.

The farm was repossessed from the appellant by the third respondent following a national land audit and was jointly allocated to the first, second, and fourth respondents in 2013.

In 2018, the first respondent successfully instituted eviction proceedings against the appellant in judgment number HH707-20. Aggrieved by this judgment, the appellant appealed to this Court under case number SC39/21 but the appeal was dismissed.

The appellant, thereafter, filed an application for review under HC7124/21 which was dismissed. Undaunted, he further filed another case, under HC7057/21, which was also dismissed. He was thereafter evicted from the farm, with the result that the first respondent was granted vacant possession thereof.

In June 2021, the appellant filed an application for the review of the decision of the third respondent in withdrawing his offer letter. Despite the first and second respondents being correctly cited as interested parties to the review application, they were however not served with the notice of set down. As a result, an order against the third respondent was subsequently granted, in default, on 12 July 2022.

The order reads as follows, in the relevant part:

“IT IS ORDERED THAT:

1. The decision to withdraw a letter of withdrawal of applicant's offer letter, dated 18 November 2013, be and is hereby declared a nullity and set aside.

2….,.

3. In the result, it is hereby declared that the applicant is lawfully authorized and entitled to be in occupation of Subdivision 2 Lot 1 of Avalon Farm in Hurungwe measuring 115 hectares in terms of the offer letter issued to him by the respondent on 1 December 2006.

4….,.”

Following the granting of the review application, the appellant proceeded to invade the farm and eject the first and second respondents - without a court order or writ of eviction backing his actions.

In response to these actions, the first and second respondents filed an application seeking to have the order granted under case number HC3129/21 rescinded. In addition, the two filed an urgent chamber application for stay of execution pending the determination of the application for rescission of judgment that had already been filed. Both applications were premised on the fact that the judgment in HC3129/21 was granted in error.

In dealing with the urgent chamber application, the court a quo held that the requirements for a spoliation order were clear and that the first respondent was in peaceful and undisturbed possession of his part of the farm and was therefore dispossessed unlawfully (even though the court a quo, in its judgment, refers only to the first respondent as the one who was despoiled of the farm in question, it is pertinent to note that the second respondent, in his supporting affidavit a quo, asserts that he too was a victim of the alleged dispossession, and associated himself with the relief sought a quo).

The court a quo held that it was proper that the first respondent be restored to the farm.

The court further held, that, the appellant was not in possession of a court order for the eviction of the first respondent from the farm. Further, that he had invaded the farm and sought to dispossess the first respondent who was occupying the farm peacefully.

The court held, on this basis, that, this circumstance justified a spoliation order 'as pleaded' and prayed for.

The court a quo further held, that, even though no warrant of eviction had been issued against the first respondent, given that the order granted in HC3129/21 was declaratory in nature, the appellant had made it clear that he had come back to the disputed farm on the strength of that order.

The court then granted the order sought by the first and second respondents.

Disgruntled at that decision, the appellant filed this appeal on a number of grounds, but, only one of them is relevant for the determination of the matter at hand. The ground reads as follows:

1. Having been approached for an order for stay of execution, the court a quo erred at law and grossly misdirected itself in granting, on a prima facie basis, and in the form of a provisional order; interdictory relief, spoliatory relief, and eviction relief - which causes of action had not been pleaded or established by the first and second respondents and which is final in nature and effect.

ISSUE FOR DETERMINATION

The ground of appeal cited above raised the only issue that, in the event, was determined by the court and disposed of the appeal. This was:

Whether or not the court a quo erred in determining a matter that was not properly before it

The appellant, in his first ground of appeal, avers that the court a quo erred at law and grossly misdirected itself in granting, on a prima facie basis, and in the form of a provisional order, a spoliation order, an order of eviction, and an interdict. He avers that the relief was also granted in circumstances where the requirements for it were neither pleaded nor established by the first and second respondents.

In short, it is the appellant's submission that the court went on a frolic of its own and determined a matter not properly before it.

THE LAW AND APPLICATION THEREOF TO THE FACTS

It is common cause, that, the first and second respondents approached the court a quo on an urgent basis seeking a suspension or stay of execution of the order granted by the court in HC3129/21 pending determination of their application for rescission of judgment under case number HC4928/22.

Based on that application, the respondents sought the following interim relief, which the court a quo granted without any alteration:

“TERMS OF FINAL ORDER SOUGHT

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

1. The judgment of this Honourable Court granted under HC3129/21 on the 12 July 2022 be and is hereby suspended pending the determination of (the) Court Application filed by the Applicants under HC4928/21.

2. The first respondent shall pay the costs of suit on the higher scale of attorney and client.

INTERIM RELIEF GRANTED

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

3. Pending the determination of the application for rescission of default judgment, filed under case number 4928/22, the execution and operation of the court order granted under HC3129/21 on 12 July 2022 be and is hereby suspended.

4. The first respondent, and all those acting through him, be and are hereby ordered to vacate Subdivision 2 of Lot 1 of Avlon Farm forthwith.

5. The first respondent, and all those acting through him, be and are hereby ordered to forthwith return and give vacant possession of Subdivision 2 of Lot 1 Avlon Farm forthwith to the applicants.

6. First respondent is ordered not to interfere with applicant's exercise of rights in Subdivision 2 of Lot 1 of Avlon Farm.

7. First respondent be and is hereby ordered to pay costs of suit on a legal practitioner and client sale.”

Whatever the merits or demerits of the main relief that the respondents sought to secure from the court a quo, it is evident from a reading of the order granted by the court, that, pending the return date, the court granted a spoliation order simultaneously with an order for the eviction of the appellant from the disputed premises.

Whether or not the court could competently grant a spoliation order as interim, rather than final relief, is however not what is at issue in casu.

The issue, rather, is whether or not the court a quo reached its determination on spoliation on the basis of the matter having been fully pleaded, argued, and established.

In other words, was the matter properly before it?

A look at relevant excerpts from the court a quo's judgment is instructive in this respect. At pages 5 and 6 of the cyclostyled judgment of the court a quo, the learned judge opined as follows:

“I ruled that the matter is urgent given that the applicant was accosted at the farm on 22 July 2022. He filed this application on 25 July 2022, that is, three days after the incident….,. As for this application, it is the invasion and unlawful eviction which prompted him to seek the court's intervention on an urgent basis.

Equally, the point raised that there is no cause of action is without basis.

The applicant's farm was invaded. The first respondent was taking the law into his own hands. In as much as he had a court order declaring that the withdrawal of his offer letter is null and void, he had to properly seek the applicant's eviction.

The point that no writ has been issued, therefore, the relief is incompetent, does not hold. This is because the applicant seeks spoliatory relief and this is apparent from the averments. He also seeks the suspension of the order pending the hearing of the application for rescission of judgment.

The requirements of a spoliation order are clear and are that the applicant must have been in peaceful and undisturbed possession and has been disposed unlawfully.

This obtains herein, hence, it is justified that the applicant be restored to the farm.

The first respondent had no order for the eviction of the applicant, he invaded the farm and sought to remove the applicant who was occupying the farm peacefully. That justifies a spoliation order as pleaded and as prayed for.”…,.

The excerpts cited above, while showing that the court a quo was alive to the main relief that the first and second respondents papers and draft relief suggested they were seeking before it (whatever its merits or demerits), also demonstrate the fact that the court was pre-occupied, even in relation to the determination on the urgency or otherwise of the matter, more with the issue of spoliation than the matter that was substantively before it.

It is also evident, that, the ratio decidendi of the court's judgment was spoliation related, that is, that the appellant unlawfully raided the first respondent's farm and dispossessed him of his peaceful possession thereof.

This, notwithstanding the fact, that, according to the order sought and granted, the spoliation order was, improperly, in the form of interim rather than final relief.

In Gateway Primary School & Ors v Marinda Fenesey SC63-21, the court stated as follows:

“The leading case on this settled point of law is Blue Rangers Estates (Pvt) Ltd v Muduvuri & Anor 2009 (1) ZLR 368. That case is authority for the proposition, that, a spoliation order, being a final and definitive order, cannot be granted as a provisional order. That being the case, it follows that the respondent erred and strayed into the realm of illegality when it sought a spoliation order in the form of a provisional order.”

Notably, this Court finds that this ratio decidendi is not what would have properly founded any relief pertaining to whether or not execution of the court a quo's own earlier judgment, in HC3129/21, could be suspended or stayed.

On the basis of an application titled 'URGENT APPLICATION FOR STAY OF EXECUTION' the first and second respondents approached the court a quo seeking an order for stay of execution.

This is the matter that was properly before the court.

That this is the case is borne out by the final order sought by the respondents a quo, as well as paragraph 9 of the first respondent's founding affidavit, which reads as follows:

“This is an urgent chamber application filed to suspend or stay the operation of an order granted by KATIYO J on the 12 July 2022 in HC3129 pending the determination of an application for rescission of judgment by myself under HC4928/22.”

Settled law, supported by an abundance of authorities, sets out clearly what an applicant has to establish in order to secure an order staying or suspending the execution of a judgment of the court: see, among others, Humbe v Muchina & Ors SC81-21; Mupini v Makoni 1993 (1) ZLR 80 (S)…,.

Spoliation proceedings are determinable on completely different legal principles.

To the extent that the court did not advert to the relevant law in order to determine the real matter before it, but, instead, determined spoliation and other unrelated related claims, it went on a 'frolic' of its own.

It is important to note, that, courts should refrain from granting relief neither sought by the parties, nor based on a case properly argued and proved.

In other words, a court should not craft a case for any of the parties before it - no matter how badly the real case may have been pleaded and argued.

These principles are aptly captured in the matter of Nzara and Others v Kashumba NO and Others 2018 (1) ZLR 194 (S) where UCHENA JA…, held as follows:

“…,. In its judgment, a court must decide no more than what is absolutely necessary for the decision on the case. The decision of the court must always be based on the pleadings of the parties, the evidence placed before the court, and the submissions made by the legal practitioners representing the parties. The granting of relief which is not sought, and in respect of which no argument was heard, amounts to a violation of the right to a fair hearing. A court's judgment must be founded on legal principles and not equity.”

In casu, while the first and second respondents might have, in reality, craved spoliatory relief, they did not file, as they might have done, a substantive application for spoliation.

They, instead, filed an application for the stay or suspension of an earlier order of the court pending determination of their application for the rescission of the same order.

The spoliation case, as evidenced by the excerpts from its judgment, cited above, was, instead, crafted for them by the court a quo.

On the basis of Nzara and Others v Kashumba N.O. and Others 2018 (1) ZLR 194 (S), the court misdirected itself in so doing.

In light of the foregoing, this Court found, accordingly, that, the court a quo misdirected itself in granting defective relief that was neither premised on a sound legal basis, nor properly pleaded, argued, or proved. In the process, the court a quo determined a matter not properly before it.

The court thus found, that, the appellant's first ground of appeal had merit, and, to that extent, that the appeal ought to succeed, and the matter remitted to the court a quo for a proper determination of the matter that was before it. Costs follow the cause.

DISPOSITION

Having found that the court a quo erred, by not determining the real issue before it, the court granted the order cited at the beginning of this judgment.

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Law Portal
Zimbabwe

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

Appealed
SC70-18 : YUNUS AHMED vs DOCKING STATION SAFARIS (PRIVATE) LIMITED t/a CC SALES
Ruled By: BHUNU JA

Appealed
SC75-17 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS (ZIMBABWE) and CAIRNS FOODS LTD
Ruled By: GWAUNZA JA, GUVAVA JA and ZIYAMBI AJA

HH707-15 : RICHARD MATTHEWS vs CRASTER INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

SC15-17 : LIFORT TORO vs VODGE INVESTMENTS (PVT) LTD and MANYAME RURAL DISTRICT COUNCIL and MINISTER OF LANDS AND RURAL RESETLEMENT
Ruled By: ZIYAMBI JA, BHUNU JA and UCHENA JA

SC24-14 : KUNDAI MAGODORA and OTHERS vs CARE INTERNATIONAL ZIMBABWE
Ruled By: MALABA DCJ, PATEL JA and GUVAVA JA

SC32-15 : BINDURA MUNICIPALITY vs PAISON MUGOGO
Ruled By: GUVAVA JA

SC71-14 : EDWARD MADZA and OTHERS vs THE REFORMED CHURCH IN ZIMBABWE DAISYFIELD TRUST and THE REFORMED CHURCH OF ZIMBABWE and NAISON TIRIVAVI and THE DUTCH REFORMED CHURCH
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

SC10-24 : ELPHAS MAPHISA vs CLEVER SIBANDA N.O. (as executor dative of the Estate of the late Melusi Sibanda) and OTHERS
Ruled By: GWAUNZA DCJ, MAKONI JA and CHITAKUNYE JA

SC13-24 : UNKI MINES (PRIVATE) LIMITED vs SHURUGWI TOWN COUNCIL and JUSTICE A. EBRAHIM N.O.
Ruled By: UCHENA JA

SC17-24 : TENDAI MASHAMHANDA vs BARIADIE INVESTMENTS (PRIVATE) LIMITED and SHERIFF OF THE HIGH COURT
Ruled By: BHUNU JA

SC17-24 : TENDAI MASHAMHANDA vs BARIADIE INVESTMENTS (PRIVATE) LIMITED and SHERIFF OF THE HIGH COURT
Ruled By: BHUNU JA

SC18-23 : UNKI MINES (PRIVATE) LIMITED vs DOHNE CONSTRUCTION (PRIVATE) LIMITED
Ruled By: MUSAKWA JA

SC40-23 : JOHANNES MANYENGA vs PETROZIM (PRIVATE) LIMITED
Ruled By: MAVANGIRA JA, MAKONI JA and CHITAKUNYE JA

SC41-23 : CASSIAN MANUHWA vs SEEDCO ZIMBABWE (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, KUDYA JA and MWAYERA JA

SC45-23 : ZONDIWA NYAMANDE vs ISAAC MAHACHI and CHITUNGWIZA MUNICIPALITY and MANYAME RURAL DISTRICT and MINISTER OF LANDS
Ruled By: GUVAVA JA, MUSAKWA JA and MWAYERA JA

SC46-23 : GAYNOR CHITSAKA and OTHERS vs LORRAINE HEYNS and OTHERS
Ruled By: MAKONI JA, CHIWESHE JA and CHATUKUTA JA

SC59-24 : CHANDRA GOYEL vs MYRAMMAR FARMING (PRIVATE) LIMITED t/a COTTONZIM and OTHERS
Ruled By: MWAYERA JA

SSC03-18 : CHRISTOPHER SAMBAZA vs AL SHAMS GLOBAL BVI LIMITED
Ruled By: GARWE JA, MAVANGIRA JA and UCHENA JA

SC64-23 : DOVES FUNERAL ASSURANCE (PVT) LTD vs HARARE MOTORWAY (PVT) LTD and AFRICAN BANKING CORPORATION LTD and BLUE STAR LOGISTICS PL and SHERIFF OF ZIMBABWE and REGISTRAR OF DEEDS
Ruled By: MAKONI JA

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS
Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

SC123-23 : ARISTON MANAGEMENT SERVICES vs ECONET WIRELESS ZIMBABWE LIMITED
Ruled By: GUVAVA JA, MAKONI JA and MATHONSI JA

SC124-23 : CLEVER NJOVANA vs KUDAKWASHE KARAGA and COSMAS MASAWO and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL RESETTLEMENT and P. MAPARA
Ruled By: GWAUNZA DCJ, CHIWESHE JA and MUSAKWA JA

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Law Portal Zimbabwe

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

Appealed SC70-18 : YUNUS AHMED vs DOCKING STATION SAFARIS (PRIVATE) LIMITED t/a CC SALES Ruled By: BHUNU JA

Appealed SC75-17 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS (ZIMBABWE) and CAIRNS FOODS LTD Ruled By: GWAUNZA JA, GUVAVA JA and ZIYAMBI AJA

HH707-15 : RICHARD MATTHEWS vs CRASTER INTERNATIONAL (PRIVATE) LIMITED Ruled By: MAFUSIRE J

SC15-17 : LIFORT TORO vs VODGE INVESTMENTS (PVT) LTD and MANYAME RURAL DISTRICT COUNCIL and MINISTER OF LANDS AND RURAL RESETLEMENT Ruled By: ZIYAMBI JA, BHUNU JA and UCHENA JA

SC24-14 : KUNDAI MAGODORA and OTHERS vs CARE INTERNATIONAL ZIMBABWE Ruled By: MALABA DCJ, PATEL JA and GUVAVA JA

SC32-15 : BINDURA MUNICIPALITY vs PAISON MUGOGO Ruled By: GUVAVA JA

SC71-14 : EDWARD MADZA and OTHERS vs THE REFORMED CHURCH IN ZIMBABWE DAISYFIELD TRUST and THE REFORMED CHURCH OF ZIMBABWE and NAISON TIRIVAVI and THE DUTCH REFORMED CHURCH Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

SC10-24 : ELPHAS MAPHISA vs CLEVER SIBANDA N.O. (as executor dative of the Estate of the late Melusi Sibanda) and OTHERS Ruled By: GWAUNZA DCJ, MAKONI JA and CHITAKUNYE JA

SC13-24 : UNKI MINES (PRIVATE) LIMITED vs SHURUGWI TOWN COUNCIL and JUSTICE A. EBRAHIM N.O. Ruled By: UCHENA JA

SC17-24 : TENDAI MASHAMHANDA vs BARIADIE INVESTMENTS (PRIVATE) LIMITED and SHERIFF OF THE HIGH COURT Ruled By: BHUNU JA

SC17-24 : TENDAI MASHAMHANDA vs BARIADIE INVESTMENTS (PRIVATE) LIMITED and SHERIFF OF THE HIGH COURT Ruled By: BHUNU JA

SC18-23 : UNKI MINES (PRIVATE) LIMITED vs DOHNE CONSTRUCTION (PRIVATE) LIMITED Ruled By: MUSAKWA JA

SC40-23 : JOHANNES MANYENGA vs PETROZIM (PRIVATE) LIMITED Ruled By: MAVANGIRA JA, MAKONI JA and CHITAKUNYE JA

SC41-23 : CASSIAN MANUHWA vs SEEDCO ZIMBABWE (PRIVATE) LIMITED Ruled By: GWAUNZA DCJ, KUDYA JA and MWAYERA JA

SC45-23 : ZONDIWA NYAMANDE vs ISAAC MAHACHI and CHITUNGWIZA MUNICIPALITY and MANYAME RURAL DISTRICT and MINISTER OF LANDS Ruled By: GUVAVA JA, MUSAKWA JA and MWAYERA JA

SC46-23 : GAYNOR CHITSAKA and OTHERS vs LORRAINE HEYNS and OTHERS Ruled By: MAKONI JA, CHIWESHE JA and CHATUKUTA JA

SC59-24 : CHANDRA GOYEL vs MYRAMMAR FARMING (PRIVATE) LIMITED t/a COTTONZIM and OTHERS Ruled By: MWAYERA JA

SSC03-18 : CHRISTOPHER SAMBAZA vs AL SHAMS GLOBAL BVI LIMITED Ruled By: GARWE JA, MAVANGIRA JA and UCHENA JA

SC64-23 : DOVES FUNERAL ASSURANCE (PVT) LTD vs HARARE MOTORWAY (PVT) LTD and AFRICAN BANKING CORPORATION LTD and BLUE STAR LOGISTICS PL and SHERIFF OF ZIMBABWE and REGISTRAR OF DEEDS Ruled By: MAKONI JA

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

SC123-23 : ARISTON MANAGEMENT SERVICES vs ECONET WIRELESS ZIMBABWE LIMITED Ruled By: GUVAVA JA, MAKONI JA and MATHONSI JA

SC124-23 : CLEVER NJOVANA vs KUDAKWASHE KARAGA and COSMAS MASAWO and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL RESETTLEMENT and P. MAPARA Ruled By: GWAUNZA DCJ, CHIWESHE JA and MUSAKWA JA

Categories

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Law Portal
Zimbabwe

Appealed
SC70-18 : YUNUS AHMED vs DOCKING STATION SAFARIS (PRIVATE) LIMITED t/a CC SALES
Ruled By: BHUNU JA

Appealed
SC75-17 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS (ZIMBABWE) and CAIRNS FOODS LTD
Ruled By: GWAUNZA JA, GUVAVA JA and ZIYAMBI AJA

HH707-15 : RICHARD MATTHEWS vs CRASTER INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

SC15-17 : LIFORT TORO vs VODGE INVESTMENTS (PVT) LTD and MANYAME RURAL DISTRICT COUNCIL and MINISTER OF LANDS AND RURAL RESETLEMENT
Ruled By: ZIYAMBI JA, BHUNU JA and UCHENA JA

SC24-14 : KUNDAI MAGODORA and OTHERS vs CARE INTERNATIONAL ZIMBABWE
Ruled By: MALABA DCJ, PATEL JA and GUVAVA JA

SC32-15 : BINDURA MUNICIPALITY vs PAISON MUGOGO
Ruled By: GUVAVA JA

SC71-14 : EDWARD MADZA and OTHERS vs THE REFORMED CHURCH IN ZIMBABWE DAISYFIELD TRUST and THE REFORMED CHURCH OF ZIMBABWE and NAISON TIRIVAVI and THE DUTCH REFORMED CHURCH
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

SC10-24 : ELPHAS MAPHISA vs CLEVER SIBANDA N.O. (as executor dative of the Estate of the late Melusi Sibanda) and OTHERS
Ruled By: GWAUNZA DCJ, MAKONI JA and CHITAKUNYE JA

SC13-24 : UNKI MINES (PRIVATE) LIMITED vs SHURUGWI TOWN COUNCIL and JUSTICE A. EBRAHIM N.O.
Ruled By: UCHENA JA

SC17-24 : TENDAI MASHAMHANDA vs BARIADIE INVESTMENTS (PRIVATE) LIMITED and SHERIFF OF THE HIGH COURT
Ruled By: BHUNU JA

SC17-24 : TENDAI MASHAMHANDA vs BARIADIE INVESTMENTS (PRIVATE) LIMITED and SHERIFF OF THE HIGH COURT
Ruled By: BHUNU JA

SC18-23 : UNKI MINES (PRIVATE) LIMITED vs DOHNE CONSTRUCTION (PRIVATE) LIMITED
Ruled By: MUSAKWA JA

SC40-23 : JOHANNES MANYENGA vs PETROZIM (PRIVATE) LIMITED
Ruled By: MAVANGIRA JA, MAKONI JA and CHITAKUNYE JA

SC41-23 : CASSIAN MANUHWA vs SEEDCO ZIMBABWE (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, KUDYA JA and MWAYERA JA

SC45-23 : ZONDIWA NYAMANDE vs ISAAC MAHACHI and CHITUNGWIZA MUNICIPALITY and MANYAME RURAL DISTRICT and MINISTER OF LANDS
Ruled By: GUVAVA JA, MUSAKWA JA and MWAYERA JA

SC46-23 : GAYNOR CHITSAKA and OTHERS vs LORRAINE HEYNS and OTHERS
Ruled By: MAKONI JA, CHIWESHE JA and CHATUKUTA JA

SC59-24 : CHANDRA GOYEL vs MYRAMMAR FARMING (PRIVATE) LIMITED t/a COTTONZIM and OTHERS
Ruled By: MWAYERA JA

SSC03-18 : CHRISTOPHER SAMBAZA vs AL SHAMS GLOBAL BVI LIMITED
Ruled By: GARWE JA, MAVANGIRA JA and UCHENA JA

SC64-23 : DOVES FUNERAL ASSURANCE (PVT) LTD vs HARARE MOTORWAY (PVT) LTD and AFRICAN BANKING CORPORATION LTD and BLUE STAR LOGISTICS PL and SHERIFF OF ZIMBABWE and REGISTRAR OF DEEDS
Ruled By: MAKONI JA

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS
Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

SC123-23 : ARISTON MANAGEMENT SERVICES vs ECONET WIRELESS ZIMBABWE LIMITED
Ruled By: GUVAVA JA, MAKONI JA and MATHONSI JA

SC124-23 : CLEVER NJOVANA vs KUDAKWASHE KARAGA and COSMAS MASAWO and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL RESETTLEMENT and P. MAPARA
Ruled By: GWAUNZA DCJ, CHIWESHE JA and MUSAKWA JA