Interim Interdict or Final Order re: Interim Relief Expressed in Similar Terms to the Final Order Sought

Appealed
HH150-12 : CLETUS CHUKWUKA ANUEYIANGU vs CHIEF IMMIGRATION OFFICER and THE CO-MINISTERS OF HOME AFFAIRS and THE ATTORNEY GENERAL OF ZIMBABWE
Ruled By: MAVANGIRA J

The final relief sought by the applicant is in exactly the same terms as for the interim relief.

HH37-08 : MOVEMENT FOR DEMOCRATIC CHANGE and MORGAN TSVANGIRAI vs CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and CHIEF ELECTIONS OFFICER, ZIMBABWE ELECTORAL COMMISSION
Ruled By: UCHENA J

The first applicant, the Movement for Democratic Change, is a political party, commonly known as the (“MDC”). It will be referred to as the first applicant. The second applicant, Mr Morgan Tsvangirai, is its President. He was the first applicant's Presidential candidate in the just ended harmonized elections held on 29 March 2008. He will be referred to as the second applicant.

The first respondent is the Chairman of the Zimbabwe Electoral Commission, a Commission established in terms of section 61(1) of the Constitution of Zimbabwe. He was appointed in terms of section 61(1)(a) of the Constitution. He will be referred to as the first respondent. The Zimbabwe Electoral Commission is commonly known as (“ZEC”), in reference to the abbreviation of its name. It will be referred to as ZEC in this judgment.

The second respondent is the Zimbabwe Electoral Commission's (ZEC) Chief Elections Officer appointed in terms of section 11 of the Zimbabwe Electoral Commission Act [Chapter 2:12], hereinafter called the Zimbabwe Electoral Commission Act. He will be referred to as the second respondent.

The Facts

The first respondent, through the Zimbabwe Electoral Commission (ZEC), conducted harmonised elections which were held on 29 March 2008. The elections were contested by candidates aspiring for the following positions, Councilors of local authorities, Members of the House of Assembly and the Senate, and President of the Republic of Zimbabwe.

It is common cause that the contestants of the first three positions now know the results of their elections. The results were announced at the Ward Constituency, House of Assembly and Senatorial constituency levels. The winners were declared by the respective Ward and Constituency Elections Officers. House of Assembly and Senatorial results have also been announced by the National Collation Centre presided over by the second respondent.

It is conceded, by the respondents, that this was merely for the benefit of the general public as the legal requirements had been satisfied at constituency level.

The applicants, who have an interest in Presidential election results, filed an urgent application seeking this court's provisional order, compelling the respondents to announce the results.

The respondents, while conceding that Presidential results have not yet been announced, contented that they will announce them when they are ready....,.

After the court's ruling on the issue of jurisdiction, counsel for the applicants submitted that the application was urgent and outlined the facts establishing the urgency. In response, counsel for the respondents submitted that the application is not urgent and should have been brought by way of ordinary application....,.

Urgency

After the ruling on the issue of jurisdiction, counsel for the applicants made submissions on the urgency of the application.

He submitted that section 110(3) of the Electoral Act [Chapter 2:13] hereinafter called the Electoral Act, provides, for a re-run within 21 days after the previous election in the event of no candidate obtaining a clear majority in the election. This, he submitted, means a delay in announcing the election results will deprive candidates of sufficient time to prepare for the re-run. He also submitted that the respondents would not have enough time to prepare for the re-run.

Counsel for the respondents submitted that there was no urgency in the applicant's application because its cause of action was based on the announcement of the results of the Presidential poll. He argued that those results where not due as the provisions of the Second Schedule have not yet been complied with. He therefore reasoned that the cause of action would arise when the provisions of the Second Schedule of the Electoral Act would have been complied with. He summed up by submitting that the applicants cause of action, as stated in Tendai Biti's founding affidavit, has not yet arisen hence the absence of urgency in the application.

Counsel for the applicants, in response, disputed counsel for the respondents submission that the cause of action had not yet risen. He submitted that Tendai Biti's affidavit complains of delays and the respondent's wasting time on already declared election results instead of doing what they are mandated to do; that is, the collation and verification of Presidential results and their announcement.

A reading of Tendai Biti's founding affidavit confirms that though he, in some paragraphs, emphasised the announcement of results he clearly brought out a case against the general delay. That was in fact the theme of the applicants' complaint in paragraphs 5, 11, 12, 13, 14, 16, 17, 24, 26 and 27.

I am therefore satisfied that the applicants' application is premised on delays and the respondents' wasting time doing everything else other than what they should have been doing. Therefore, the cause of action has arisen though the wording of the provisional draft order seeks the announcement of results within four hours of the service of it on the respondents.

This can be corrected by a variation in terms of Rule 246(2) of the High Court Rules, 1971 which provides as follows:

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

This means an application for a provisional order which has been prima facie proved cannot be dismissed because of a poorly drafted order. The court can vary it and grant a correctly formulated provisional order consistent with the prima facie case proved.

In fact, on being granted, the order becomes the court's order. The court must therefore be satisfied by its formulation before granting it.

It was for these reasons, that I found the application was urgent and proceeded to hear it on the merits....,.

Procedural Issues

In response to counsel for the applicants submissions on the merits, counsel for the respondents raised several procedural issues which he should have raised as preliminary issues....,.

Counsel for the respondents fourth procedural issue was on paragraph (1) of the draft provisional order seeking the same relief as is sought in paragraph (1) of the final order.

Counsel for the applicants conceded the error and sought a variation of the provisional order so that it grants a relief different from that sought in the final order.

This issue has already been dealt with in my ruling on the issue of urgency.

HH26-11 : AMAPLAT MAURITIUS LIMITED and AMARI NICKEL HOLDINGS ZIMBABWE LIMITED and vs ZIMBABWE MINING DEVELOPMENT CORPORATION and OTHERS
Ruled By: BHUNU J

This is an urgent application for interim relief in the following terms:“The first respondent be and is hereby interdicted from alienating or otherwise disposing of or dealing with the rights of the third and fourth respondents arising out of the memoranda of understanding concluded between the applicants and the first respondent at Harare on 25 ...

This is an urgent application for interim relief in the following terms:

“The first respondent be and is hereby interdicted from alienating or otherwise disposing of or dealing with the rights of the third and fourth respondents arising out of the memoranda of understanding concluded between the applicants and the first respondent at Harare on 25 July 2008 and 13 October 2006, pending the outcome of an arbitration to be instituted by the applicants in Paris in accordance with the afore mentioned memoranda of understanding;

The first, third and fourth respondents be interdicted from amending, alienating or changing the shareholding in and the share registers of the third and fourth respondents pending the outcome of the arbitration referred to in prayer 1 above;

The applicants be and are hereby ordered to institute the abovementioned proceedings within sixty days of this order; and

Leave be and is hereby granted to the applicants.”

The matter could not be heard today because the first respondent only filed its opposing papers this morning shortly before the hearing at 9:00 hours. The parties are agreed that the matter be postponed sine die to enable the applicants to go through the opposing papers and to file the necessary responses.

The applicants have now applied for an order substantially in the same format as the interim order being sought in the main application to protect their interests pending my determination in the main matter. The interim order sought reads:

“The application is postponed sine die.

1. The applicants are ordered to give a replying affidavit by 31 January 2011.

2. The parties are to give supplementary heads of argument by Thursday 3 February 2011.

3. Pending the outcome of the hearing of this application:

3.1 The first, third and fourth respondents are interdicted from alienating or otherwise disposing of or dealing with the mining rights, licenses and other business interests of the third and fourth arising out of the Memoranda of Understanding concluded between the applicants and the first respondent; and

3.2 The first, third and fourth respondents are interdicted from amending, altering or changing the shareholding in and the registers of the third and fourth respondents.”

The application is strenuously opposed by the first respondent on the basis that the applicants want to smuggle the order they are seeking in the main application through the back door. Counsel for the first respondent, while viciously opposing the order being sought, has undertaken to advise his clients not to engage in the conduct complained of pending my determination.

It is a general rule of law and practice that parties must desist from conducting themselves in a manner that seeks to obstruct, pre-empt, undermine or sabotage the outcome of court proceedings.

Generally speaking, Zimbabweans are law-abiding citizens. In that regard, I do not see the first respondent, a statutory Board for that matter, acting contrary to the advice of its legal practitioners. For that reason I consider it wholly unnecessary to grant the interim order sought pending my determination in the main matter.

The application for an interdict pending my determination in the main matter accordingly fails with costs being costs in the cause.

The first respondent is, however, admonished to abide by the advice of its legal practitioner regarding the maintenance of the status quo ante pending my determination in the main matter.

HB63-13 : CHIEF GAMPU SITHOLE and GAMPU TOURS (PVT) LTD vs KENNEDY C. NDLOVU and THE DEPUTY SHERIFF OF BULAWAYO N.O.
Ruled By: MUTEMA J

Regarding the similarities between the interim and final orders sought in the provisional order it was submitted that the interim order does not seek to dispose of HC4182/12 without rescission of the judgment but seeks to stay execution. Regarding the issue concerning similarities in the interim and final orders sought in the draft provisional order, ...

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SC28-16 : ZIMBABWE REVENUE AUTHORITY vs PACKERS INTERNATIONAL (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GOWORA JA and HLATSHWAYO JA

The nature of the relief sought in the Provisional Order Finally, it falls upon this court to examine the nature of the relief sought by Packers as against the order actually issued by the court a quo. The relief sought, both in the main and in the interim, is substantially the same. This is a practice by ...

The nature of the relief sought in the Provisional Order

Finally, it falls upon this court to examine the nature of the relief sought by Packers as against the order actually issued by the court a quo.

The relief sought, both in the main and in the interim, is substantially the same. This is a practice by litigants that is strictly discouraged by the courts and the law on this point is set out in Kuvarega v Registrar-General & Anor 1998 (1) ZLR 188 (H) wherein CHATIKOBO J held:

“Before concluding this judgment, I must deal with a procedural matter which, regrettably, seems to present difficulty to many practitioners….,.

…,. The practice of seeking interim relief which is exactly the same as the substantive relief sued for, and which has the same effect, defeats the whole object of interim protection. In effect, a litigant who seeks relief in this manner obtains final relief without proving his case. That is so because interim relief is normally granted on the mere showing of a prima facie case. If the interim relief sought is identical to the main relief and has the same substantive effect, it means that the applicant is granted the main relief on proof merely of a prima facie case. This, to my mind, is undesirable especially where, as here, the applicant will have no interest in the outcome of the case on the return day.”

I fully associate myself with this interpretation of the law.

The court a quo should not have related to the application before it in the face of this apparent and fatal defect. What it did was to grant an order which had the effect of a final order on the strength of a prima facie case. The parties before it were not asked to argue on the final order. They argued only on the interim order and the court a quo, regardless, proceeded to grant an order which was neither prayed for nor argued upon. The Zimbabwean legal system remains adversarial and the dispute is between the parties.

On this basis, as well, the order of the court a quo begs vacation.

HB122-14 : GAMANGE (PVT) LTD vs SMELLY DUBE and LIMUKANI SIBANDA and MINISTER OF LANDS & RURAL RESETTLEMENT and OTHERS
Ruled By: TAKUVA J

The fourth and final point taken in limine was that the provisional order is invalid in that the interim relief is “substantially similar” to the final order sought. Particular reference was made to paragraph 4 which appears in both orders. In my view, the two orders are essentially different in that in the interim relief the protection ...

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SC43-13 : ECONET WIRELESS (PVT) LTD vs TRUSTCO MOBILE (PROPRIETARY) LTD and TRUSTCO GROUP INTERNATIONAL (PROPRIETARY) LTD
Ruled By: MALABA DCJ, ZIYAMBI JA and GARWE JA

WHETHER THE INTERIM AND FINAL RELIEF SOUGHT ARE THE SAMEIt is important at this stage to highlight the fact that the appeal to this Court is against the provisional order sought and granted by the court a quo. The agreement between the parties has since run its course and therefore the order sought on ...

WHETHER THE INTERIM AND FINAL RELIEF SOUGHT ARE THE SAME

It is important at this stage to highlight the fact that the appeal to this Court is against the provisional order sought and granted by the court a quo. The agreement between the parties has since run its course and therefore the order sought on the return day no longer arises.

It is the appellants' submission that the court a quo erred in finding that the relief sought in the amended provisional order did not suffer from the same defect as the provisional order originally filed and further erred in finding that the interim and final reliefs sought were not the same or substantially the same. In particular, the appellant has submitted that the court a quo erred in granting a provisional order which is final in effect and that consequently the respondents lost the incentive to have the provisional order so granted confirmed as it gave them final relief.

It is correct that in general terms a court should not grant interim relief which is similar to or has the same effect as the final relief prayed for. The reason for this is obvious. Interim relief should be confined to interim measures necessary to protect any rights that stand to be confirmed or discharged, as the case may be, on the return date. Indeed, in Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H), the High Court slammed the tendency by some litigants to seek the same relief both as a provisional and final order. The court stated…,:

“The practice of seeking interim relief which is exactly the same as the substantive relief sued for, and which has the same effect, defeats the whole object of interim protection. In effect, a litigant who seeks relief in this manner obtains final relief without proving his case. That is so because interim relief is normally granted on the mere showing of a prima facie case. If the interim relief sought is identical to the main relief and has the same substantive effect, it means that the applicant is granted the main relief on proof merely of a prima facie case. This, to my mind, is undesirable especially where, as here, the applicant will have no interest in the outcome of the case on the return day. The point I am making will become clearer if I put it another way. If, by way of interim relief, the applicant had asked for a postponement of the election pending the discharge or confirmation of the provisional order she would not in that event gain an advantage over the respondents, because the point she wanted decided would have been resolved before the election was held. But, if the interim relief were granted in the form in which it is presently couched, she would get effective protection before she proves her case and the election will be conducted on the basis that is unlawful to wear T-shirts emblazoned with party symbols and slogans. Thereafter it would be fruitless for the respondents to establish their entitlements to wear such T-shirts. Care must be taken in framing the interim relief sought as well as the final relief so as to obviate such incongruities.”

I would certainly agree with the above remarks.

Although the learned judge in that case did not suggest that such a defect renders an application a nullity, it seems to me that, whilst no hard and fast rule can be laid down, there may well be cases where a court would be justified in holding, in such a situation, that the application is not therefore urgent and that it should be dealt with as an ordinary court application. There may also be cases where the court itself, as it is empowered to do, may amend the relief sought in order to make it clear that what is granted is interim protection whilst the final order sought would be the subject of argument on the return date. Rule 240 of the High Court Rules permits a court, after hearing argument, to vary an order sought. It is this power to grant an order that is consistent with the facts which a court can use in order to obviate a situation where final relief is granted by way of a provisional order.

The order granted in the interim was to restore the internet links and to ensure the protection of the respondents' rights in the concept. The order obliges the parties, during that limited time, to perform in terms of the contract. In other words, the provisional order merely restored the status quo ante.

On the other hand, the order to be confirmed or discharged on the return date was to operate in contemplation of and pending the process of arbitration. It also sought to cast a broad obligation on the appellant not to conduct itself in a manner inconsistent with the agreement. In other words, on the return date, the respondent would have been required to show not only why the status quo ante should be confirmed but also that it was entitled to interdict the appellant from acting in a manner which might interfere with the broader demands of the agreement.

In my view, the situation can be described in a more succinct manner. In the interim, the status quo ante was to be restored. On the return day, and only if the respondent proved that there was a binding agreement still in force, and, consequently, that the parties were obliged to go for arbitration, would the order be confirmed. In other words, if, on the return day, the appellant proved that the agreement had terminated or that the dispute was not subject to arbitration, the provisional order would be discharged. The mere restoration of the links was not to be panacea for the respondents' problems. At the end of the day, the agreement was about the payment of money and this was not going to happen if the appellant sat back in the hope that it had achieved, through the provisional order, what it required by way of final order, the very situation which Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H) cautions against.

In all the circumstances, therefore, I am of the view that the interim relief prayed for did not have the same effect as the final order sought.

Accordingly, this ground of appeal must fail.

HH11-15 : RM MINING AND INDUSTRIAL ZIMBABWE (PRIVATE) LIMITED vs STANBIC BANK ZIMBABWE LIMITED
Ruled By: MAFUSIRE J

The draft provisional order sought the same relief in both the interim and final orders. In both instances, it was, in essence, a final order being sought.

HMA12-17 : BRIAN ANDREW CAWOOD vs ELASTO MADZINGIRA and THE MESSENGER OF COURT – MWENEZI N.O.
Ruled By: MAFUSIRE J

The first respondent's second point in limine, namely, that the interim relief was exactly the same as the final one, had merit. But I held over decision on it and opted to hear the merits. A draft order can always be amended on good cause shown and with an appropriate order of costs….,. The ...

The first respondent's second point in limine, namely, that the interim relief was exactly the same as the final one, had merit. But I held over decision on it and opted to hear the merits.

A draft order can always be amended on good cause shown and with an appropriate order of costs….,.

The background to the application was this.

The first respondent was one of a number of persons allocated pieces of land by Government, as the acquiring authority, under its land re-distribution programme. The allocation was on the farm or ranch previously owned and occupied by the applicant. In addition to the subdivision allocated to him, the Government also leased to the first respondent, under a written agreement of lease for five years, the homestead on that farm. The lease agreement described the leased property as “…, a homestead on Lot 21A N.R.A in on land [sic] measuring +/- 224m2, approximately, situated in the district of Mwenezi as depicted on the map attached hereto. The site with the said buildings and improvements in hereinafter referred to as ['the leased premises'].” [sic].

The first respondent complained that the applicant was refusing to move out. He instituted ejectment proceedings in the Magistrate's Court. After a full trial, the order of eviction was granted. In the course of his judgment the magistrate said:

“There is therefore evidence to conclude that the homestead which is the subject matter is the one on the map and that it is occupied by the first defendant.”

The applicant appealed.

He attacked the magistrate's findings and the order of eviction. The one ground of appeal nearest in relevance to the proceedings before me said that the magistrate had erred at law by ordering the applicant's eviction from “a homestead” without a proper description as to whether the homestead referred to one residential dwelling, or several residential dwellings, and that this rendered the eviction order a brutum fulmen, and, therefore, not executable. The applicant sought that the appeal be upheld with costs; the judgment of the court a quo set aside and substituted with an order dismissing the claim for ejectment.

The first respondent countered by applying for execution pending appeal. The application was granted. Following that, the first respondent issued a warrant of ejectment. It was that warrant that the second respondent was executing when the applicant brought the present proceedings.

At the hearing, the second respondent denied that he was taking orders from the Lands Officer in executing the warrant. He explained, both by affidavit and through oral submissions, that when he got to the farm to execute the warrant, it was the applicant's manager, one Lilian van Beek ['Lilian'], who showed him the homestead the subject of the eviction. It comprised the main dwelling, which he said was a mere shell that had been razed to the ground by fire; and the adjacent buildings referred to in the applicant's founding affidavit. He said Lilian van Beek also showed him a compressor and some two big generators which she wanted to know whether the applicant could carry them away with him. The second respondent said on those 'removables' he referred her to the Lands Officer who was there present with him.

The second respondent also said he did not intend to evict anyone from the manager's house which was some considerable distance away from the homestead. He wondered why this structure had ever been referred to in the application. He said Lilian's major concern on the day had been whether she and her staff would be given the mandatory forty-eight hours' notice to vacate, as had been advised by their lawyer. He had said yes.

The second respondent also said that Lilian van Beek had agreed to do some money transfer into his bank account to cover the costs of eviction, but that she appeared to have reneged on that promise. He would then have to attach so much of the movables at the homestead as would satisfy his costs.

On the basis that the Messenger of Court was straying outside the confines of the court order, the applicant sought two sets of orders, one couched as interim relief, and the other as final. But they were exactly the same, word for word. They read:

“(a) The ejectment of the judgment [sic] under Case No. Ev04/15 be and is hereby confined to a homestead on LOT 21A NUANETSI RANCH A in Mwenezi measuring +/- 224 square metres as per the Court Order dated 25 November 2016.

(b) That if ejectment had already been effected in respect of any property or building not stated on the Court Order, that it be reversed and vacant possession be restored forthwith to the Applicant.”

The application failed on two major, but inter-related grounds.

The first was that the relief sought was incompetent. It was effectively a final relief. You do not seek a final order through an urgent chamber application.

It has been stated time and again that the object of an urgent chamber application is to get interim protection. Because of the urgency that may be manifest on the papers, the application is allowed to jump the queue of cases awaiting determination at the courts. But the issues are not interrogated to any great depth. As long as an applicant shows;

(i) A prima facie right, even if this be open to some doubt;

(ii) A well-grounded apprehension of an irreparable harm;

(iii) That the balance of convenience favours the granting of an interim interdict;

(iv) That there is no other satisfactory remedy; and

(v) That there are reasonable prospects of success in the merits of the main case, the applicant should be entitled to relief:

See Setlogelo v Setlogelo 1914 AD 221; Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 [1] ZLR 289 [SC]; Hix Networking Technologies v System Publishers (Pty) Ltd & Anor 1997 [1] SA 391 [A]; Flame Lily Investment Company (Pvt) Ltd v Zimbabwe Salvage (Pvt) Ltd and Anor 1980 ZLR 378; and Universal Merchant Bank Zimbabwe Ltd v The Zimbabwe Independent & Anor 2000 [1] ZLR 234 [H].

I can do no better than quote the seminal statement by CHATIKOBO J in Kuvarega v Registrar–General & Ors 1998 [1] ZLR 188 [H]…,.:

See also Women & Law in Southern Africa & Ors v Mandaza & Ors 2003 [2] ZLR 452 [H].

Justice delivery requires that in every case the real or main dispute between the parties be determined finally. It is like surgery. The main dispute is the cyst or boil or ulcer that is threatening the social harmony that must exist between people. That ulcer must be opened up and treated. The patient has to be booked for surgery. It may take time. The patient has to wait in the queue, just like in ordinary application or action proceedings. Until the ulcer is removed, the pain may remain. The ulcer may actually lead to other complications.

It often happens that pending the determination of the main dispute, i.e. the treatment of the ulcer by surgery, other side issues or disputes may develop. But these are mere symptoms of the main problem. They may not require elaborate surgery. A simple prescription may be all that is necessary to provide interim relief. That simple pain killer is the provisional order that may be granted in an urgent chamber application. But it is granted on the understanding that the main surgery to deal with the real problem is awaiting determination.

In this case, for both interim and final relief, the applicant sought that the eviction be confined to a homestead measuring +/- 224m² and that if the ejectment had already taken place that it be reversed.

Although imprecisely stated, the nature of the relief sought by the applicant belied an underlying problem. That problem was simple. It was this: what precisely was meant by homestead? The term, in this case, might or might not have borne the same dictionary meaning.

Ahead of the hearing, both parties had googled 'homestead.' They had come up with definitions that suited their stand-points. The applicant said a homestead was a single dwelling that, in the context of their case, was +/- 224 square metres on the farm in question. Anything outside +/- 224 square metres was straying outside the four corners of the Court Order.

On the other hand, the first respondent said in ordinary parlance, and by definition, a homestead is a farm house and its adjacent buildings. It is a cluster of houses. In the context of their case, it comprised not only the main farmhouse, that had been razed to the ground by fire and in which nobody was still living, but also the rest of the outbuildings mentioned in the applicant's papers, save for the manager's house which was, in effect, a separate homestead on its own, some appreciable distance away from the main homestead.

So, evidently, the main dispute between the parties, the ulcer, on that narrow issue, was what was the nature and extent of that homestead? Was it a single building +/- 224m² in extent? Or was it a cluster of buildings at the same location?

This main dispute had to be determined someday, if that had not been done already. Since the parties could not agree on what comprised a homestead it meant a court or tribunal somewhere would have to arbitrate on it and pronounce judgment. After that there should be no dispute as to the reach of the warrant of ejectment.

The one major weakness with the applicant's application was that the determination of that main dispute was pending nowhere.

It is true that there was an appeal against the magistrate's order of eviction. But in that appeal, the court was not being called upon to determine what 'homestead' meant. It was being called upon to reverse the eviction order on grounds completely unconnected to the meaning of homestead. In a nutshell, the applicant was challenging the loss of his farm.

In the one ground of appeal in which he said the magistrate had erred by ordering eviction from a homestead without a proper description of what homestead meant, the applicant was not calling upon the appeal court to define that term for them. Instead, he was calling upon the appeal court to brand the magistrate's order as an unenforceable brutum fulmen. So, nowhere was surgery pending to remove the ulcer. That means the urgent chamber application hung on nothing.

Determining what was meant by homestead was not the task before me. The task before me was, or ought to have been, if a prima facie case had been proved, to give interim relief to the applicant by stopping the eviction, pending the resolution of the main dispute, namely, determining what homestead meant.

That was the point lost to the applicant.

HB87-16 : COLD STORAGE COMPANY LTD vs ADDITIONAL SHERIFF OF THE HIGH COURT – E.M. MAGARA N.O. and HOLLANDS REAL ESTATE and AHMED ESAT and TREVOR AND TALENT and REGISTRAR OF DEEDS
Ruled By: MAKONESE J

It is also critical to note that if the interim relief were to be granted, it would amount to final relief in that there is no attempt to include Stand 8195 Bulawayo Township, in the final order. To that extent, the applicant would have obtained final relief in respect of Stand 8195, ...

HH225-15 : RITA MARQUE MBATHA vs CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: CHATUKUTA J

I further endorsed that the relief that the applicant was seeking was incompetent in that the interim relief sought was the same as the final order.

HH79-15 : NELSON DZIRUTWE vs DAIRIBOARD ZIMBABWE LIMITED and ADDITIONAL SHERIFF, MUTARE
Ruled By: BHUNU J

Although the provisional order sought is similar to the final order it is plain that the two are not identical. Unlike the final order, the interim order seeks to restore possession in the event that it might have been temporarily lost before judgment in this matter. There is therefore no merit in the preliminary points raised by ...

HH339-14 : ROCK CHEMICAL FILLERS (PVT) LTD vs BRIDGE RESOURCES (PVT) LTD and TAPIWA GURUPIRA and MOST CHIKUMBA
Ruled By: MATHONSI J

On the complaint by counsel for the respondents that the interim relief that the applicant seeks is final in nature and therefore unacceptable, counsel for the applicant urged of me, if so disposed, to amend the relief to bring it in line given that what the applicant submitted was a mere draft.

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

The nature of the relief sought is couched as follows; “TERMS OF INTERIM ORDER 1. That the respondents be and are hereby ordered to publicly apologise to the applicant. 2. The respondents be and are hereby ordered to place the public apology in the local and national paper for 4 consecutive weeks from date of this order at respondents' expense. 3. Respondents ...

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HB102-17 : TURFWALL MINING (PVT) LTD t/a BEENSET INVESTMENTS vs SIPHIWE DUBE and OTHERS
Ruled By: TAKUVA J

This is an urgent application in which the applicant sought the following order: “Terms of the final order sought That you show cause to this honourable court, if any, why a final order should not be made in the following terms: 1. The 1st respondent and anyone in her employ be and are hereby interdicted from carrying on any form of ...

This is an urgent application in which the applicant sought the following order:

“Terms of the final order sought

That you show cause to this honourable court, if any, why a final order should not be made in the following terms:

1. The 1^st respondent and anyone in her employ be and are hereby interdicted from carrying on any form of mining activities on the following of applicant's claims:

(i) Legion C under claim number 10244BM.

(ii) Legion D under claim number 10225BM.

(iii) Legion F under claim number 10226BM.

(iv) Legion 13 under claim number 33216PM.

(v) Legion 14 under claim number 33217PM.

2. That the costs be on attorney and client scale.

Interim relief granted

Pending the confirmation of the provisional order, the applicant be and is hereby granted the following relief:

3. That pending determination of the parties matters under case number HC2697/17 all forms of mining activities by the 1^st respondent and anyone in her employ be and are hereby suspended.”

The background facts are that the applicant is the registered holder of mining claims commonly known as Legion Mine in Gwanda. These claims were transferred to the applicant from Falcon Gold Zimbabwe Ltd in 2012. At the time of acquisition of the claims, the first respondent had a Tribute Agreement with Falcon Gold. The applicant, as “Grantor”, entered into a Tribute Agreement with the first respondent on 20 December 2012 which was to run for a three (3) year period commencing on 1 January 2013 to 31 December 2015. In terms of the agreement, the “Tributor” took five claims as listed above. Also, in terms of the Tribute Agreement, clause 15, the Tributor i.e. the first respondent paid royalties to the applicant.

As regards renewal of the Tribute Agreement, clause 1(b) of the agreement provides that:

“(b) The Tributor shall have the right to extent this period of the tribute for a further three years after the expiry of the above period provided he had complied with the terms of this tribute agreement and providing he gives notice of such intention to the Grantor as follows:

At least three months prior to the 31^st December 2015 (determination of the first period) the tributor shall give written notice to the Grantor stating whether he wishes to relinquish his tribute at the end of the 1^st period or to exercise his right to extend this tribute agreement for the further period stated.”

Before the expiry of the Tribute Agreement on 31 December 2015, the first respondent did not notify the applicant in writing three (3) months prior to that date of her election in terms of clause (1)(b) supra. Despite this default, the first respondent continued to mine on the claims without an agreement. The applicant offered the first respondent a new agreement but the latter refused to sign it prompting the applicant to enlist the assistance of the Zimbabwe Republic Police - to no avail. Faced with this hurdle, the applicant issued a written notice to vacate to the first respondent through her lawyers Majoko & Majoko on 6 October 2016. The first respondent's lawyers responded to that notice in the following terms:

“….,. A brief history, we believe, will assist in the understanding of our client's position. Our client has been mining from Legion since about 2003, having done so under tribute from Falcon Gold Zimbabwe Ltd.

Discussions involving the Ministry of Mines and Mineral Development were held with Falcon Gold and our client as a result of which it was agreed that the claim would be registered in our client's names and our client had and there is evidence of this written understanding, from so far back as 2007, been awaiting formal transfer and registration of the claims into her names.

If there were any changes in this understanding it was not communicated to our client. She has been in occupation and working the claims on the bona fide understanding that the claims were, to all intents and purposes, hers, awaiting only formalization of ownership of the claims.

At no time was our client advised, as she would have been entitled, of any change in the ownership of the claims from Falcon Gold to yourselves. You will appreciate, in the circumstances, that our client cannot, without prejudicing her rights, accede to your demand that she vacate the claims, until she has received formal communication from the Ministry of Mines and Falcon, that what was agreed upon regarding the claims has since been changed. On receiving such communication, if she will, our client will take advice and only then will she reply substantively to your demand. Until then she will remain on the locations.”

This letter is dated 1 December 2016 and appears on page 35 of the record.

The parties continued to engage each other through their legal practitioners on 12 and 13 January 2017.The first respondent appeared to have accepted to negotiate terms of a new tribute agreement until 20 January 2017 when she refused the offers proffered by the applicant and insisted on her earlier position that she had a right to anticipate transfer of registration of the claims into her name.

Frustrated, the applicant then filed this application on 30 January 2017 praying for the relief referred to above.

Before arguing on the merits, counsel for the first respondent took a couple of points in limine….,.

The second point in limine was that the interim relief is the same as the final relief. Counsel for the first respondent relied on Dodhill v Chikafu 2009 (1) ZLR 293 in arguing that this is a fatal defect.

I disagree for the simple reason that what is sought in the interim is a suspension of mining operations, whereas the final order prays for a total and complete cessation of mining activities pending the finalisation of case number HC269/17. I must point out, however, that the applicant conceded that there is a need to amend their terms to make them clearer. The amendment sought, however, does not affect the essence of the relief sought. Therefore, the application cannot be dismissed solely on this ground because the respondent in casu has not been prejudiced by the applicant's failure to put the relief in the proper form. See Rule 229C of this Court's rules. In my view, the point was not well taken and it is hereby dismissed.

On the merits, counsel for the first respondent submitted that the applicant has not fulfilled the requirements of an interdict in that the applicant has an alternative remedy of damages which remedy they are pursuing in the summons. The applicant has not claimed that the first respondent is impecunious or that her assets are being dissipated. He cited the case of Bozimo Trade and Development Co (Pvt) Ltd v First Merchant Bank of Zimbabwe Ltd & Ors 2000 (1) ZLR (H).

As regards the availability of a satisfactory remedy, I prefer SACHS LJ's approach in Evans Marshal & Co Ltd v Bertola SA [1973] IALL ER 992 (CA)…, where the learned judge, who was dealing pertinently with the enquiry as to whether damages were an adequate remedy, said:

“The standard question in relation to the grant of an injunction, are damages an adequate remedy? Might perhaps, in the light of the authorities of recent years, be re-written: is it just, in all the circumstances, that plaintiff should be confined to his remedy in damages?

The touchstone in every case is to ensure that justice is done. The test of the adequacy of damages is however not conclusive in that even where an injury is capable of compensation the court will generally grant an interdict if:

(a) The respondent is a man of straw; or

(b) The injury is a continuing violation of the applicant's rights; or

(d) If the value of a damages award in several years' time would be of questionable adequacy because of high inflation.”

See also C B Prest, The Law & Practice of Interdicts Juta & Co 1993…,.

I would also add that the court should guard against assisting confiscation of private rights by unnecessarily confining the applicant to damages.

In casu, it is common cause that the first respondent is carrying out mining operations on the applicant's claims without a valid tribute agreement. Not only that, she is harvesting gold without paying royalties to the applicant. Quite clearly, her conduct amounts to a continuing violation of the applicant's rights. Such an injury, by its very nature, makes an accurate assessment of damages in lost mineral value extremely difficult.

For these reasons I find that it is not just that the applicant be confined to its remedy in damages as this would be unsatisfactory.

It was also submitted, on the first respondent's behalf, that the applicant has not shown that it would suffer irreparable injury. Further, it was submitted that the applicant repudiated the contract by letter dated 6 October 2016 and should therefore stop complaining about non-payment of royalties. The first respondent insisted that she would continue to mine because she got assurance from the Ministry of Mines that the claims will be registered in her name in due course. Consequently, it was argued that a case for an interdict has not been set out in the papers, and, for that reason, it should be dismissed.

The requisites for the right to claim an interdict are a well-beaten path. In Airfield Investments (Pvt) Ltd v Minister of Lands & Ors 2004 (1) ZLR 511 (S) they were put as follows:

“Briefly, these requisites are that the applicant for such temporary relief must show -

(a) That the right which is the subject matter of the main action and which he seeks to protect by means of interim relief is clear, or, if not clear, is prima facie established though open to some doubt;

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

(d) That the applicant has no other satisfactory remedy.”

In the present case, the facts that cannot be disputed are that the applicant is the registered owner or holder of the claims in dispute. The five certificates of registration are on pages 29–33 of the application. Also, in terms of the Tribute Agreement referred to earlier the applicant is the “Grantor” while the first respondent is the “Tributor”. For approximately three and a half years, the first respondent was working the same claims mining gold and other minerals therefrom against payment of royalties to the applicant. She stopped paying in October 2016 following a dispute over the formula to be used to calculate royalties. The parties then failed to reach an agreement and the applicant filed this application.

On the other hand, the first respondent claims to have a right to remain on the mine, courtesy of a promise from the Ministry of Mines.

On these facts, there can be no doubt that the applicant has established the existence of a clear right. The applicant is a holder of real rights over the mine. This is in terms of the substantive law. Surely, a real right cannot be superceded by a mere promise. C B Prest, The Law & Practice of Interdicts Juta & Co 1993…, states;

“Interdicts are based on rights; rights which, in terms of the substantive law, are sufficient to sustain a cause of action. Such right may arise out of contract, or a delict; it may be founded in the common law or on some or other statute; it may be a real right or a personal right. The applicant for an interlocutory interdict must show a right which is being infringed or which he apprehends will be infringed, and, if he does not do so, the application must fail.

An applicant must establish 'some just right'. It must not be a mere moral right; it must be a strict legal right.”

In casu, the right arises out of contract and I am satisfied that the first requirement of an interdict has been met on the facts.

In view of my finding on the existence of a clear right, it would not be necessary to establish a well-grounded apprehension of irreparable harm. Assuming that I am wrong, I am convinced that in casu, there is a well grounded apprehension of irreparable harm in that it goes without saying that minerals extracted from the ground are irreplaceable. Therefore, the financial loss to the applicant is irreparable. The test for apprehension is an objective one. Essentially, the applicant must show, objectively, that his apprehensions are well-grounded. A reasonable man faced with facts in casu might entertain a reasonable apprehension of injury. In the circumstances, I find that the second requirement has been met.

The third requirement is the balance of convenience. Here, the court is required to weigh the prejudice the applicant will suffer if the interim interdict is not granted against the prejudice to the respondent if it is. Where there is greater possible prejudice to the respondent, an interim interdict will be refused. If, however, the prejudice to the respondent is less than that of the applicant, the interdict will be granted. Put differently, the essence of the balance of convenience is to assess which of the parties will be least seriously inconvenienced by being compelled to endure what may prove to be a temporary injustice until the just answer can be found at the end of the trial.

As I indicated above that the applicant's right has been clearly established, it follows that it has strong prospects of success. It is trite that the stronger the prospects of success, the less the need for such a balance to favour the applicant; the weaker the prospects of success, the greater the need for it to favour him. In the present case, the continued contractual breaches will cause greater prejudice to the applicant if the interdict is not granted than the possible prejudice to the first respondent if it is granted. From the totality of the circumstances in this case, there is a higher risk that injustice may result if an interdict is declined. Accordingly, I find that the balance of convenience favours the granting of the interdict.

I have already discussed the fourth requirement.

Finally, I find that the applicant has established the requisites of an interdict. Accordingly, I order as follows:

Interim relief granted

Pending the confirmation of the provisional order, the applicant be and is hereby granted the following relief:

1. That all forms of mining activities by the first respondent and anyone in her employ on the five disputed claims be and are hereby suspended.

HMA36-18 : AMALGAMATED RURAL TEACHERS UNION OF ZIMBABWE vs OBERT MASARAURE and ZIMBABWE AFRICAN NATIONAL UNION [PATRIOTIC FRONT] and MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: MAFUSIRE J

The matter before me was an urgent chamber application by the applicants for an interdict against the respondents….,. The interdict was sought to restrain the respondents from certain activities that the applicants considered harmful to themselves and the school children under their care. These activities included: (i) Coercing school children to attend and participate in political rallies or other ...

The matter before me was an urgent chamber application by the applicants for an interdict against the respondents….,.

The interdict was sought to restrain the respondents from certain activities that the applicants considered harmful to themselves and the school children under their care. These activities included:

(i) Coercing school children to attend and participate in political rallies or other activities of the first respondent.

(ii) Causing the closure of schools to accommodate the first respondent's political activities.

(iii) Compelling teachers to attend the first respondent's political rallies.

(iv) Compelling teachers to wear the first respondent's party regalia and to prepare performances for school children to deliver at its rallies.

(v) Compelling teachers to make contributions in cash or kind towards the first respondent's rallies.

(vi) Commandeering school premises, school buses, furniture, or other property for the first respondent's political rallies….,.

The first respondent's last point in limine was that the draft order was defective in that the interim relief sought was almost identical to the final order prayed for. The argument was that the applicants were seeking a final remedy on an urgent basis and that if the interim relief was granted there would be no need for a return day.

Again, the dichotomy between an interim relief and a final order in an urgent chamber application is a well-trodden path. It has been stated time and again that the object of an urgent chamber application is to get interim protection. Because of the urgency that may be manifest on the papers, the application is allowed to jump the queue of cases awaiting determination at the courts. But the issues are not interrogated to any great depth. As long as an applicant shows a prima facie right, even if this be open to some doubt; a well-grounded apprehension of an irreparable harm; that the balance of convenience favours the granting of an interim interdict; that there is no other satisfactory remedy; and that there are reasonable prospects of success in the merits of the main case, the applicant should be entitled to relief.

In Kuvarega v Registrar-General & Anor1998 [1] ZLR 188 [H] CHATIKOBO J said:

See also Women & Law in Southern Africa & Ors v Mandaza & Ors2003 [2] ZLR 452 [H].

In casu, it is true that the interim relief sought in the original draft order was almost identical to the final order sought on the return day. In essence, this relief was the interdict to restrain the respondents from continuing with the activities complained of.

But, my view is that the principle or requirement that the interim relief in an urgent chamber application should not be the same as the final relief to be sought on the return day is not cast in stone. Every case depends on its own facts. In appropriate situations it may be that the relief sought in the interim may be all that an applicant was concerned with yesterday, today and tomorrow. He may want it today on an urgent basis. That does not stop him from wanting it again on a permanent basis on the return day. If it is granted today, on an interim basis, all he may want on the return day is its confirmation. All he shows in the interim, among other things, is an actual or perceived infringement of a prima facie right, even if that right be open to some doubt. On the return day he must prove, on a balance of probabilities, an actual or perceived infringement of a clear right. It is not altogether uncommon for the court to grant interim relief, only to discharge it on the return day.

Thus, I found the first respondent's objection a moot point and lacking in merit.

HH228-15 : HERBERT MUDZVOVA vs ROBERT MUDZVOVA and THE REGISTRAR OF DEEDS
Ruled By: MATHONSI J

In HC1541/15, the applicant and his youngest brother, Happyson Mudzvova, have sued the two respondents seeking an order confirming the existence of a verbal sale agreement allegedly concluded in 2004 in terms of which Happyson Mudzvova purchased from their brother, Robert Mudzvova, the first respondent herein, Stand 2323 Chadcombe Township of Stand 1257 Chadcombe, Harare.

They also seek to interdict Robert Mudzvova from selling the said property and to evict him from it and transfer of the property to Happyson.

In their declaration, they averred that when Robert fell on hard times, in 2004, he had approached them with an offer to sell the property which he holds by Deed of Transfer number 10676/2000 for a sum of $120,000,000 Zimbabwean currency. The offer was duly accepted resulting in Happyson Mudzvova raising $80,000,000 while the applicant raised $40,000,000 to make the purchase price required by the first respondent who was promptly paid.

As the three are blood brothers, they did not bother to have the property transferred to the purchaser and also allowed the first respondent to continue residing at the property; the only footnote being that Happyson brought their mother from her rural home to come and stay at the property as well. She still enjoys occupation up to now.

What has prompted this application is that the first respondent has advertised the property for sale at an asking price of $70,000 without the knowledge, authority or consent of the real owner under circumstances which suggest that he wants to swingle the owner of his house.

A number of interested people have been coming to view the house and the applicant fears that the first respondent may dispose of the property any time and effect its transfer to the purchaser to their detriment.

He has, therefore, approached this court, on a certificate of urgency, seeking the following relief:

“TERMS OF THE FINAL ORDER SOUGHT

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

(a) That the 1st respondent be and is hereby interdicted from selling certain piece of property known as Stand 2323 Chadcombe Township of Stand 1257 Chadcombe pending finalisation of the applicant's action filed in this court under Case Number HC1541/15.

(b) Each party to bear its own costs.

INTERIM RELIEF GRANTED

(a) The second respondent registers a caveat on the following immovable property, certain piece of land situate in the District of Salisbury called Stand 2323 Chadcombe Township of Stand 1257 Chadcombe measuring 422 square metres registered under Deed of Transfer 10676/2000 in favour of Robert Mudzvova pending the finalisation of the applicant's action filed in this court under Case No. HC1541/2015.”

It is surprising that the applicant only seeks the registration of a caveat when clearly the case that he has made is for an interdict against the first respondent preventing him from selling the property until the respective rights of the parties have been determined. The registration of a caveat will merely prevent the passing of transfer to the purchaser but not the sale of the property. At the end of it all, this court may find itself having to untangle conflicting claims which may include that of an innocent third party.

This court has a duty to regulate its process and will, at all times, move in to protect that process so that it is not rendered useless by the conduct of the parties before determination at the appropriate time. Quite often, in recent history, litigants appearing before this court have shown a disdain to the process of the court and are invariably found stampeding to defeat such process. Where one party has filed court process seeking some form of relief it is only prudent that the other party should respect that process and await finalisation of the matter instead of acting in a way that negates the process.

Counsel for the applicant submitted that the difficulty she has, although conceding that the first prize was to interdict the sale, was that she would be seeking an interim relief which is the same as the final relief. She could not conjure a final relief different from the interim relief.

I am aware that authorities say that, namely, that interim relief is meant to be precisely that and legal practitioners should be careful in framing the interim and final relief sought to avoid such incongruities: Kuvarega v Registrar General & Anor 1998 (1) 188 (H)…,.

In my view, this does not mean that the legal practitioner must prejudice the client, in this case, the applicant, by requesting an order which does not fully protect the interests of the applicant in order not to appear seeking interim relief which is identical to the main relief and the same as the substantive relief.

The thrust of CHATIKOBO J's pronouncement, in Kuvarega v Registrar General & Anor 1998 (1) 188 (H), was that an applicant is not entitled to substantive relief before proving his case as interim relief is granted on proof merely of a prima facie case.

Whereas in the present case, the applicant has established that he is entitled to what his legal practitioner wanted to secure on the return date of the provisional order, the court should not deprive him of that relief because the legal practitioner has had drafting challenges and failed to construct the draft order properly.

It would be irresponsible for the court to fold its arms and do nothing when, at the end of the day, it will have to sit to determine a matter that has been filed. If the conduct of a party would result in the ultimate decision of the court being rendered academic, what is referred in common parlance as a brutum fulmen, the court should be quick to prevent such eventuality.

It was for that reason that I preferred to give reasons for the order to be made.

The first respondent was served with the Notice of Set Down but chose not to appear.

Until such time that the respective rights of the parties have been determined in HC1541/15 both the sale and transfer of the property should be prevented.

Accordingly, the provisional order is granted as amended.

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA
Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

This is an appeal against the whole judgment of the High Court handed down on 24 January 2020. The appeal seeks to impugn the court a quo's order awarding custody of the parties' three minor children to the respondent upon the separation of the parties.

The appellant also challenges the jurisdiction of the court a quo, and the urgency and validity of the interdict granted against him in respect of the parties' disputed properties.

Although the parties were also quarrelling about the respondent's right to access the matrimonial home, that dispute has since been resolved by the court a quo in the appellant's favour. That issue consequently falls away.

The respondent has, in turn, abandoned her claim that the appellant be barred from being heard until he has purged his dirty hands. That issue has also fallen away for the reason that it has been abandoned by the respondent.

CHOICE OF LAW

Although the parties were married under Customary Law, they have both elected to have their matrimonial rights and obligations regulated and determined in terms of General Law; section 3(b) of the Customary Law and Local Courts Act [Chapter 7: 05].

It is convenient that their dispute be regulated and determined in terms of General Law because of their sophisticated way of life and ownership of immovable private property.

As the concept of private ownership of immovable property is unknown at Customary Law, it is virtually impossible to determine rights and obligations pertaining to privately owned immovable property in terms of any law other than General Law. Thus, the appropriate applicable law in this case is the General Law. See Mandava v Chasekwa 2008 (1) ZLR 300…,.

BRIEF SUMMARY OF THE CASE

The appellant is the Vice President of Zimbabwe whereas the respondent is his estranged wife. The two were married under an unregistered customary law marriage also known as a customary law union. The marriage was blessed with three minor children. The eldest, Tendai Dominique Chiwenga, is aged 9 years whilst Christian Tawanazororo Chiwenga is 8 years, and Michael Alexander Tadisiswa Chiwenga is 6 years old respectively.

During happier times, the parties resided at their matrimonial home situate at Number 614 Nick Price Drive, Borrowdale Brooke, Harare together with their three minor children. During the subsistence of the marriage, the parties acquired both movable and immovable property either jointly or in their personal capacities. The acquired property includes the matrimonial home, a fleet of cars, immovable business premises known as Orchid Gardens, along the Domboshava Road, personal effects, and other paraphernalia.

It however so happened that the marriage later fell on turbulent times resulting in the appellant initiating divorce procedures under customary law. In those proceedings he alleged that he had given her a divorce token known as 'gupuro'.

In her papers before this Court, and in paragraph 8.1 of her heads of argument, the respondent continues to hold herself out as the appellant's wife. The divorce issue therefore appears not to have been resolved.

The appellant has nevertheless now issued summons against her in the court a quo under case number HC9837/19 claiming custody of the three minor children in terms of section 4 of the Guardianship of Minors Act [Chapter 5:08] and division of the matrimonial property acquired during the subsistence of the marriage.

The current proceedings and the parties' relationship are severely strained, acrimonious, and discordant. This is mainly because of the respondent's arrest on multiple charges of attempted murder of the appellant, fraud, money laundering, and contravention of the Exchange Control Regulations.

Upon her arrest, the respondent was detained in custody for a period spanning three (3) weeks, from 14 December 2019 to 6 January 2020. She went to prison without making proper provision for the custody of their three minor children, possession, and administration of her personal property and effects.

At the time of her arrest and detention, the appellant had voluntarily moved out of the matrimonial home. He avers that he returned to the matrimonial home to fill in the void occasioned by the respondent's arrest and detention in custody. In the absence of the respondent, he then assumed de facto custody of their three minor children and possession of their matrimonial property including the fleet of cars, Orchid Gardens, personal effects, and other paraphernalia.

His conduct in this respect was perfectly lawful and undisputed at the material time.

On 6 January 2020, the court a quo granted the respondent bail and ordered her to reside at the matrimonial home at her specific instance and request. Upon her release from prison, on bail, she returned to the matrimonial home to assume residence as ordered by the court a quo. State security guards stationed at the home denied her access to the matrimonial home.

The same scenario played out when she sought access to Orchid Gardens which was also guarded by State security guards. They also denied her access to the premises.

She further alleges that she claimed custody of her three minor children without success, a fact denied by the appellant.

THE RESPONDENT'S CLAIM A QUO

Under the circumstances, the respondent submits that she had no option but to approach the appropriate court, on an urgent basis, for relief. To that end, she lodged an urgent application in the court a quo for a 'provisional spoliation order' directing the appellant to grant her the following interim relief on a prima facie basis pending the return date for a final order:

1. Access to the matrimonial home.

2. Access to and use of her personal motor vehicles.

3. Access to her clothing, personal goods and effects.

4. Return of her safes containing her personal property.

5. An order directing the appellant to return the three (3) minor children of the marriage to the respondent.

6. An order compelling the appellant to return to the respondent all furniture, goods and effects removed from the business premises at Orchid Gardens.

7. An order denying the appellant access to the court until he has purged his dirty hands.

8. An order directing the Sheriff, with the assistance of the police, to execute the court a quo's order forthwith.

In the final order, the respondent sought the following relief:

9. That the appellant be interdicted and restrained from interfering with the respondent's use and enjoyment of the matrimonial home and her business premises at Orchid Gardens pending the conclusion of the matrimonial proceedings under case number HC9837/19.

10. That the appellant be restrained from removing the three (3) minor children of the marriage from the applicant's custody.

11. That the appellant be ordered to pay costs at the punitive scale as between legal practitioner and client scale.

Though the terms of the provisional and final orders sought are somewhat worded differently, the import and effect of the two orders are materially the same. This is because they both seek to wrestle custody of the three minor children and possession of the disputed property from the appellant and confer them on the respondent.

Basically, the respondent's complaint was that the appellant had abused his office as Vice President of Zimbabwe using soldiers to despoil her of access to the matrimonial home, her children, and property.

THE APPELLANT'S DEFENCE A QUO

The appellant objected to the respondent's claim that the matter was urgent.

He further questioned the assumption of jurisdiction by the court a quo as usurping the function of the Children's Court which is specifically conferred with the jurisdiction in terms of section 5 of the Guardianship of Minors Act [Chapter 5:08] to determine the question of custody of minor children when spouses begin to live apart.

He vehemently denied abusing his office as alleged or at all. He denied that the respondent had custody of the minor children and possession of the disputed property when he assumed de facto custody of the children and possession of the disputed property while she was in prison.

The appellant denied having given the guards at the matrimonial home, and Orchid Gardens, any orders to deny the respondent access to the premises.

His submission, to the effect that he had no control over the guards, was not rebutted.

Placing reliance on the South African case of Fraser v Children's Court, Pretoria North 1997 (2) SA 261, the appellant argued that it was wrong to discriminate against fathers in matters pertaining to the custody of their minor children.

It was his further submission that throughout the whole episode, he acted lawfully as a diligent pater familias. At paragraph 3(c) of his opposing affidavit, in the court a quo, the appellant makes the valid point that, as a responsible parent, he was obliged and duty bound to move into his home and take care of his minor children and family property when the respondent was detained in prison. He averred, further, that, as the father of the children, he was best suited to have their custody because the respondent was a drug addict and a psychiatric patient.

THE COURT A QUO'S FINDINGS AND DETERMINATION

On the basis of the above summation of evidence and arguments, the court a quo found that:

(a) The matter was urgent mainly because of the welfare of the minor children. It also found that the matter was urgent because the respondent was arbitrarily evicted from the matrimonial home without a court order. It also found that spoliation matters are, by nature, urgent; and

(b) Notwithstanding that the respondent was in prison, she was unlawfully despoiled of the custody of her children and property.

The court a quo proceeded to make the following final order despite the fact that the respondent had asked for a provisional order on a prima facie basis:

“1. The respondent (Constantino) is hereby ordered to restore custody of the minor children, namely, Tendai Dominique Chiwenga (born 4 November 2011), Christian Tawanazororo Chiwenga (born 5 November 2012), and Michael Alexander Tadisiswa Chiwenga (born 13 February 2014) to the custody of the applicant (Marry) within 24 hours of this order.

2. The respondent (Constantino) is hereby interdicted and restrained from interfering with applicant's (Marry) access to, use and enjoyment of the property known as 614 Nick Price Drive, Borrowdale, Harare.

3. The respondent (Constantino) is hereby interdicted and restrained from interfering with applicant's (Marry) access to, use and enjoyment of the property known as Orchid Gardens, Domboshawa, Harare.

4. The respondent (Constantino) is hereby interdicted and restrained from interfering with applicant's (Marry) access to, use and enjoyment of the motor vehicles, namely, Toyota Lexus, Mercedes Benz S400, Mercedes Benz E350 (Black).

5. Respondent (Constantino) is interdicted and restrained from interfering with applicant's (Marry) access and/or possession of her clothing.

6. The respondent (Constantino) is ordered to pay applicant's (Marry) costs of suit.”

GROUNDS OF APPEAL AND ISSUES FOR DETERMINATION

Aggrieved by the above order, the appellant appealed to this Court on ten (10) grounds of appeal which in fact raise only three issues for determination by this Court on appeal. It is cumbersome to regurgitate all the ten (10) grounds of appeal. It is however convenient to dwell on the three issues raised by the grounds of appeal. These are;

1. Whether the court a quo correctly determined that the matter was urgent.

2. Whether or not it was competent for the court a quo to grant a final interdict when the respondent had asked for a 'provisional' spoliation order.

3. Whether the court a quo had jurisdiction to determine the question of custody of the three (3) minor children in light of the provisions of section 5 of the Guardianship of Minors Act [Chapter 5:08].

APPLICATION OF THE LAW TO THE FACTS...,.

The court now turns to determine the appeal on the remaining two issues.

WHETHER OR NOT IT WAS COMPETENT FOR THE COURT A QUO TO GRANT A FINAL ORDER IN THE FORM OF AN INTERDICT?

Despite the respondent having asked for a 'provisional' spoliation order based on a prima facie case, the learned judge in the court a quo went on to grant an interdict which neither party had asked for nor pleaded.

The two critical questions to be answered are:

1. Was it competent, at law, for the court a quo to grant the respondent a final order when her claim was for a 'provisional' spoliation order? In any case, was the provisional order sought a competent remedy?

2. What were the parties' rights of custody of their three minor children at the time of separation?

The court now proceeds to deal with the two questions in turn.

(a) Whether it was competent at law for the court a quo to grant the respondent an interdict when she had asked for a 'provisional' spoliation order?

In answering this question, it is necessary to set out the applicable law in some detail as it is apparent that both the court a quo and the respondent's legal practitioners were labouring under some serious mis-apprehension of the law in this regard.

THE APPLICABLE LAW

The answer to this question is a well beaten path at home, regionally, and abroad. In this judgment, the word 'injunction' is used interchangeably with the term 'interdict' with reference to English and Roman Dutch Law, respectively.

The respondent approached the court a quo seeking a 'provisional' spoliation order on a prima facie basis. It is however trite that a spoliation order, being final in effect, cannot be granted as an interim order on the evidence of a prima facie right, as happened in this case. See Blue Ranges Estates (Pvt) Ltd v Muduviri & Anor 2009 (1) ZLR 370…,.

On this basis, the respondent's quest for a 'provisional' spoliation order was misplaced and bad at law.

The court expects legal practitioners to place before it, cases that are founded on sound substantive and procedural law. The court cannot, and should not, be expected to make a case for the parties. Its role is to determine the dispute put before it, on the basis only of the applicable law and procedure.

The definition and purpose of a provisional order is diametrically different from that of a final order. C. B. PREST in his book, The Law and Practice of Interdicts, 9th ed Juta & Co (Pty) Ltd…, defines and explains the purpose of a provisional order as follows;

“A provisional order is a remedy by way of an interdict which is intended to prohibit all prima facie illegitimate activities. By its very nature, it is both temporary and provisional, providing (interim) relief which serves to guard the applicant against irreparable harm which may befall him, her, or it, should a full trial of the alleged grievance be carried out. As the name suggests, it is provisional in nature, as the parties anticipate certain relief to be made final on a certain future date upon which the applicant has to fully disclose his, her or its entitlement to a final order that the interim relief sought was ancillary to.”

In the South African case of Development Bank of Southern Africa (Ltd) v Van Rensburg NO and Ors [2002] 3 All SA 669 (SCA) the court clarified that its purpose is to preserve the status quo pending the return day.

Australia has intrinsically the same definition and purpose. In Re Brian Charles Gluestein; Exparte Anthony [2014] WASC 381 the court said:

“Relatively, the purpose of an interlocutory injunction is to preserve the position until the rights of the parties can be determined at the hearing of the suit. A plaintiff seeking an interlocutory injunction must be able to show a sufficiently arguable claim to a right to the final relief in aid of which the interlocutory relief is sought.”

Under English Law, the law remains virtually the same. In Attorney General v Punch Limited and Anor [2002] UKHL 50, the court held that:

“The purpose for which a court grants an interlocutory injunction can be stated quite simply. In American Cyanamid Co v Ethicon Ltd [1975] AC 396, 405D LORD DIPLOCK described it as a remedy which is both temporary and discretionary. Its purpose is to regulate, and, where possible, to preserve, the rights of the parties pending the final determination of the matter which is in issue by the court.”

The purpose of a provisional order is the same in our jurisdiction as in the other jurisdictions stated above.

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

It is settled law that the standard of proof for a provisional order is different from that of a final order.

A provisional order is established on a prima facie basis because it is merely a caretaker, temporary order pending the final determination of the dispute on the return date. The parties have an opportunity to argue the matter again on the return date.

On the other hand, a final order is obtained on the higher test of a clear right because it is final and definitive as it has no return date.

It so happens that lawyers often seek a final order disguised as a provisional order as happened in the well-known case of Blue Ranges Estates (Pvt) Ltd v Muduviri & Anor 2009 (1) ZLR 368 and in this case.

That case lays down the test for distinguishing a provisional order from a final order despite the presentation of a final order disguised as a provisional order. In that case MALABA DCJ…, had this to say…,.:

“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 of which relief is sought from the court…,.

For an order to have the effects of an interim relief it must be granted in aid of, and as ancillary to the main relief which may be available to the applicant on final determination of his or her rights in the proceeding.

…,. The test is whether the order made is of such a nature that it has the effect of finally determining the issue or cause of action between the parties such that it is not a subject of any subsequent confirmation or discharge.”

In the South African case of Pretoria Racing Club v Van Pietersen 1917 TS 687…, SMITH J had occasion to remark that:

“In order to decide whether such an order is final or not I think the test must be arrived at by considering what the object of the proceedings is as a matter of substance. See the Judgment of ROMER LG in RE Herbet Reeves & Co [1902] 1 Ch 29.”

The respondent's object and purpose in filing the urgent chamber application was to obtain custody of her minor children, access to the matrimonial home and repossession of the disputed property.

It is self-evident that the interim relief she sought was crafted in such a way that if granted she would get the primary relief sought. Through the interim relief, she would have obtained access to the matrimonial home, custody of her children, and disputed property.

Such an order does not fit the definition of an interim order. It is nothing other than a final order disguised as a provisional order.

The learned judge a quo, perhaps having realized that the interim order sought fitted the definition of a final order, apparently threw caution to the wind and granted a final order that had not been sought by the respondent.

By going on a frolic of his own and determining issues not placed before him, the learned judge fell into grave error and misdirected himself.

The net result was that the respondent was granted a final interdict when she had asked for a provisional order after pleading a prima facie right.

In Nzara & Ors v Kashumba NO & Ors SC18-18…, this Court held that:

“It is clear from the court a quo's orders that some of the orders it granted had not been sought by the other party. It is also clear that parties had not made any submissions for and against those orders. They were granted mero motu by the court a quo. It did so without seeking the parties' views on those orders. There is no doubt that the court a quo exceeded its mandate which was to determine the issues placed before it by the parties through pleadings and proved by the evidence lead.

The function of the court is to determine the disputes placed before it by the parties. It cannot go on a frolic of its own. Where a point of law or a factual issue exercises the court's mind but has not been raised by the parties or addressed by them either in their pleadings, in evidence, or in submissions from the bar, the court is at liberty to put the question to the parties and ask them to make submissions on the matter.”

It is therefore settled law that a judicial officer is strictly bound by the issues pleaded by the parties. Going on a frolic of his/her own and determining issues not pleaded or raised by the parties constitutes a fatal procedural irregularity.

When this is taken together with the fact that the respondent sought relief that was incompetent at law, in respect of her claims to property and custody of the children, there can be no doubt that the entire proceedings before the court a quo were a nullity ab initio.

The appropriate remedy would, therefore, have been to strike out the entire chamber application without any further ado....,.

At law, a 'provisional' spoliation order is incompetent as relief for the acquisition of a final interdict. This is because a final interdict cannot be founded on a 'provisional' spoliation order which is, in itself, a nullity at law.

You cannot put something on nothing as it will collapse; see Mcfoy v United Africa Co. Ltd [1961] 3 All ER 1169…,.

HH520-18 : AIR NAMIBIA (PROPRIETARY) LTD vs CHENJERAI MAWUMBA and JULIANA MAGOMBEDZE and FADZAI MAWUMBA and RUTENDO MUWUMBA and TADIWANASHE MAWUMBA (minors represented by father & natural guardian)
Ruled By: CHITAPI J

In this urgent application for a provisional order, the applicant prays for relief as set out as follows;“FINAL ORDER SOUGHT1. That the stay of execution is hereby granted.2. Respondents shall pay costs of suit on an attorney-client scale.INTERIM RELIEF GRANTED1. The respondents are interdicted to conduct the attachment of the ...

HH35-08 : BRETT LEONADES PISSAS vs HELEN LOUISE PISSAS
Ruled By: GOWORA J

The parties herein were formerly husband and wife. Two minor children were born from the union, namely, Anthony Christie Pissas (born 8th March 1994) and Dean Alexander Pissas (born 13th October 1995).

On 2 November 2006, this Honourable Court granted a decree of divorce in favour of the respondent herein. The respondent was awarded custody of the minor children.

Prior to the decree of divorce being granted, the parties had entered into a Consent Paper in terms of which other ancillary relief was provided for. The terms of the Consent Paper defined the right of access to the minor children by the applicant (described in the Consent Paper as defendant) as follows:

“Defendant shall be entitled to exercise access to the minor children on alternate weekends, including alternate public holidays and school exeat weekends, and alternate school holiday periods.

The parties will alternate Easter holiday periods and Christmas/New Year periods (where the Christmas/New Year period will be from the morning of 24 December to the afternoon of 2 January.

On those occasions when it is the defendant's weekend for access he will collect the children every Thursday on termination of school activities and shall have them with him until he returns them to school the following Monday morning.

The parties agree that access periods will necessarily need to be flexible depending upon the personal and business commitments from time to time of each of the parties.”

On 18 March 2008, GUVAVA J granted an order in favour of the respondent.

The order is not before me but is common cause that the respondent had applied to this court for an order permitting her to take the children out of this country on an urgent basis and relocate with them in the United Kingdom. The applicant had opposed the granting of the order but was unsuccessful.

The applicant has noted an appeal against the order of 18 March 2008.

Subsequent to the appeal being noted, the applicant sought an assurance that the respondent would not depart with the children before the appeal was determined. Notwithstanding the noting of the appeal, the respondent did not feel compelled to provide the undertaking sought by the applicant.

He has learnt it was her intention to take the children out of the country on 26 March 2008.

The applicant wishes to have the appeal heard and has filed an urgent application for relief which is in the following terms:

“TERMS OF ORDER MADE

That the respondent show cause to the Honourable Court why a final Order should not be made in the following terms:

1. That, pending the Appeal instituted by the Applicant in Case No SC/08 (Refer HC1476/08) or the earlier written consent of the Applicant, the Respondent be and is hereby interdicted from removing the minor children, ANTHONY CHRISTIE PISSAS and DEAN ALEXANDER PISSAS, from Zimbabwe.

2. That the Respondent shall bear the costs of this application.

INTERIM RELIEF GRANTED

1. The respondent is hereby directed to forthwith deliver up all the passports of each of the minor children, ANTHONY CHRISTIE PISSAS (born 8th March 1994) and DEAN ALEXANDER PISSAS (born 13th October 1995), to the Registrar of this Honourable Court who shall retain the said passports pending the outcome of the Applicant's appeal in SC/08 (Refer HC1476/08) or the earlier receipt of Applicant's written consent to the release of the passports to Respondent.

2. The Applicant's legal practitioners, Atherstone & Cook, be and are hereby authorized to serve this order on the Department of Immigration Offices in Liquenda House and on an Immigration Officer at Harare International Airport or any other point of entry to/exit Zimbabwe and to serve the Order on Respondent at the offices of her legal practitioners, Scanlen & Holderness.

3. This Order shall take effect upon the Respondent immediately upon issue without the need for service on her.”

In his founding affidavit in support of the application, the applicant has averred that he had filed a notice of appeal to the Order granted on 18 March 2008. The Notice of Appeal is filed with his papers.

He goes on further to state that whilst he does not object, in principle, to the children relocating to England, such relocation should be in circumstances where it is in their best interests to do so.

He says, further, that there should be a proper infrastructure for the children's day to day care, supervision and stability, all living costs, education, and medical transportation and proper arrangements for paternal access.

He goes further to state that he had learnt that the respondent was due to depart this country with the minor children on 26 March 2008 and was then desirous of having her interdicted from taking the children away until the details on their livelihood had been established in a satisfactory manner.

In seeking to oppose the grant of this provisional order, apart from raising issues on the merits which I believe were dealt with by my sister judge, GUVAVA J…, the respondent contended that the appeal had not been properly filed in the absence of leave from this court because the appeal was against an interlocutory order.

Per contra, the applicant contends that the order, although issued as a provisional order, is final in effect due to the nature of the relief granted.

The question as to whether the applicant required leave to appeal can be resolved in another way without the need for me to enquire into the nature of the order issued, be it interlocutory or final.

Although both parties went to some detail to justify their respective stances, it is my view that these are issues that were before the judge who granted the respondent the authority to depart from Zimbabwe with the children.

For me to rehash them again would be akin to reviewing those proceedings. I will not do so.

In my view, the only issues for determination by me is whether or not the applicant required the leave of this court to note the appeal, and, whether having noted such an appeal, the Order of this court, is, as a result, suspended.

In addition, the applicant has sought a temporary interdict pending the appeal.

The temporary interdict is being sought as part of the final order, and, although it is not before me, I would still have to determine whether or not I should, on the facts, issue a Provisional Order incorporating as part of the final order a temporary interdict against the respondent.

In terms of section 43 the High Court Act [Chapter 7:06] appeals from the court are provided for 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.

2. No appeal shall lie -

(a)…,. not applicable

(b)…,. not applicable

(c)…,. not applicable

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

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

(ii) Where an interdict is granted or refused;

(iii)…,..not applicable.”

According to counsel for the applicant, the applicant is entitled, by virtue of the provisions of the section, to launch an appeal directly to the Supreme without the need for leave, because not only did GUVAVA J issue an interdict, but the issue then before her Ladyship was concerned with question of the custody of the minor children of the parties.

Counsel for the respondent's view is that what the applicant is seeking to ensure is that his access rights to the children are secured. She argues that access is not custody, and, as a result, the exception provided in the section does not apply in this particular instance.

Access is an incidence of custody, and, in my view, the two go hand in hand where there are rights of more than one parent are at stake.

It cannot have been the intention of the Legislature to accommodate parents who are engaged in issues relating to custody specifically to the exclusion of anyone and to grant such parents an automatic right of appeal to the Supreme Court whilst not granting the right to parents wishing to enforce rights to access.

Were access to be excluded in the exception to the section, it would, in my view, lead to an absurdity such as would not have been the intention of the Legislature.

In any event, as pointed out by counsel for the applicant, the provisional order issued on 18th March 2008 was, in its final terms, to the effect that the respondent should retain custody of the minor children of the parties.

It is obvious that, therefore, the appeal is properly taken as the court had been dealing with the custody of the minor children of the parties. The fact that what the applicant wishes to enforce is access and not custody would not, in my reading of the section, preclude him from being able to launch his appeal. My reading of the exception is that it would be if No mention is made of the access rights of the applicant and it is to that extent that the applicant wishes to have the order appealed against.

In terms of the interim relief granted, apart from an authorization to remove the children from the jurisdiction, the respondent was granted an interdict in terms of which the applicant was restrained from preventing the respondent from removing the children from this jurisdiction.

So, assuming I am incorrect in finding that access is an incidence of custody, and that, on that basis, the applicant would not have required leave to file the appeal, part of the order from the judgment appealed against was an interdict, and, on that basis, the appeal would qualify under the exceptions referred to section (2)(d).

I find, therefore, that there was no need for leave to appeal and that, therefore, there is an appeal pending before the Supreme Court.

The next rung of my enquiry is whether or not the appeal filed on 25 March 2008 would have the effect of suspending the order of GUVAVA J.

The noting of an appeal has the effect of suspending the order or judgment which is the subject matter of the appeal. The authority for that principle is the dicta by CORBETT JA…, in South Cape Corp (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534.

What the learned Judge of Appeal had to say was to the following effect…,.:

“Whatever the true position may have been in the Dutch Courts, and more particularly the Court of Holland (as to which see Ruby's Cash Store (Pty) Ltd v Estate Marks and Another 1961 (2) SA 118 (T) at pp120-3), it is today the accepted common law rule of practice in our Courts, that, generally, the execution of a judgment is automatically suspended upon the noting of an appeal, with the result that, pending the appeal, the judgment cannot be carried out and no effect can be given thereto, except with the leave of the court which granted the judgment. To obtain such leave, the party in whose favour the judgment was given must make special application.”

These remarks were quoted with approval by CHATIKOBO J in PTC v Mahachi 1997 (2) ZLR 71 and by GILLESPIE J in Vengesai & Ors v Zimbabwe Glass Industries Ltd 1998 (2) ZLR 593.

I humbly associate myself with the views of CHATIKOBO J to this effect:

“To me, this statement is no more than an expose of the time honoured rule that the court has an inherent jurisdiction to control the operation of its own judgments:” PTC v Mahachi 1997 (2) ZLR 71.

The High Court is a superior court with inherent jurisdiction. Thus, it has the right to regulate its proceedings and judgements. This inherent jurisdiction includes the power to grant leave to have its judgments executed pending appeal.

As submitted by counsel for the applicant, it is trite that the noting of an appeal against a judgment or order of a superior court has the effect of suspending the judgment. The purpose of the rule was to prevent irreparable harm to an appellant either by the issue of a writ of execution or the execution of the judgment in any manner pending the appeal.

In my view, the noting of the judgment by the applicant had the effect of suspending the order issued by GUVAVA J until the conclusion of the appeal and the respondent is not entitled, without having obtained leave to execute the judgment, to remove the children from the jurisdiction of this court.

The applicant has, however, sought that the passports of the minor children be rendered to the Registrar of this Honourable Court pending the hearing of the appeal or written permission by the applicant for the removal of the children by the respondent.

The removal of the passports from the respondent to the custody of the Registrar has the effect of interdicting the applicant from removing the children to England until the appeal has been determined.

As the question of an interdict is part of the relief being sought in the final order of this application, it is not necessary, in my view, that I come to a firm view as to whether or not there exist factors entitling the applicant to such relief. My prima facie view of the matter is that the applicant was awarded access rights which may be prejudiced by the removal of the children in the absence of a variation of those rights to accommodate their intended place of abode.

The respondent did not really raise a defence to the application before me as she sought to rely on issues of a technical nature.

I am therefore inclined to grant relief as sought in the Provisional Order.

In the premises there will be an order in terms of the Provisional Order.

SC25-22 : ELLIOT RODGERS vs PUWAYI CHIUTSI and TENDAYI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE and BARIADE INVESTMENTS PL and LAW SOCIETY OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GUVAVA JA and BHUNU JA

This is an appeal against the whole judgment of the High Court handed down on 14 March 2019, in which the court a quo dismissed the appellant's application for interim relief. The appeal was heard together with that in SC09/20 which involved the same parties, centered around the same dispute and effectively sought the same relief that the appellant seeks in casu.

However, separate judgments for the two appeals have been issued.

The sixth respondent, having applied for the de-registration of the first respondent as a legal practitioner, indicated it would abide by the decision of the court.

FACTUAL BACKGROUND

In 2012, the appellant in this matter sold his house, at No.30 Arundel School Road, with the conveyancing done by the first respondent (a legal practitioner). From a series of actions and applications brought before the courts, it was accepted that the first respondent misappropriated some of the proceeds from the sale of the immovable property.

Consequently, the appellant successfully instituted legal proceedings against the first respondent and obtained a judgment against him in 2015.

Despite a multiplicity of legal proceedings at the instance of the first respondent, the appellant managed to place a caveat on the latter's immovable property, being a certain piece of land situate in the district of Salisbury called the remainder of subdivision C of Lot 6 of Lot 190, 191, 192, 193, 194 and 195 Highlands estate of Welmoed measuring 4,377 square metres, under Deed of Transfer No. 8421/2000.

Pursuant to this, the Sheriff successfully sold the first respondent's property in execution, to the fifth respondent. The first respondent, in a number of applications, challenged the sale in execution which the Sheriff, nevertheless, eventually confirmed.

The High Court as well as this Court further upheld the confirmation of the sale.

Despite these numerous judgments, and the caveat placed upon his property, the first respondent managed to transfer the same property to the second respondent on 8 February 2019. The appellant, in his founding affidavit a quo, averred that such transfer could only have been made possible through some fraudulent conduct on the part of the first respondent in connivance with the Registrar of Deeds.

Subsequently, the appellant filed an urgent application before the court a quo seeking a provisional order in the following terms:

“Terms of final order sought

It is ordered that:

1. Puwayi Chiutsi be and is hereby struck off from the roll of legal practitioners.

2. Puwayi Chiutsi and the Sheriff of Zimbabwe each paying the other to be absolved, pays costs of suit on a scale as between attorney and client.

3. The applicant's legal practitioners be and is hereby given leave to serve the copy of this order to the Registrar of Deeds.

Terms of Interim Order Sought

Pending the final determination of this matter, at the return date, the applicant is granted the following relief;

1. That Deed of Transfer No.708/19, issued in the name of Tendai Mashamhanda in respect of a piece of land in the district of Salisbury called the remainder of subdivision C of Lot 6 of Lot 190, 191, 192, 193, 194 and 195 Highlands estate of Welmoed measuring 4,377 square metres be and is hereby cancelled.

2. That forthwith, the Law Society of Zimbabwe, must place the law firm of Puwayi Chiutsi under curatorship in terms of the Legal Practitioners Act.

3. Puwayi Chiutsi be and is hereby suspended from the practise of the legal profession (at the commencement of proceedings, counsel for the appellant informed the court that both the first respondent and his legal firm had since been de-registered by the Law Society of Zimbabwe).”...,.

Interestingly, both the appellant and the first respondent cite the same passage from Kuvarega v Registrar General and Anor 1998 (1) ZLR 188 (HC) in support of their opposing views on the propriety of the order sought by the appellant a quo, as follows:

“There was nothing interim about the provisional relief sought. It would have provided the applicant with the relief she sought on the day of the election. The practice of seeking interim relief, which is exactly the same as the substantive relief sued for and which has the same effect, defeats the whole object of interim protection. In effect, a litigant who seeks relief in this manner obtains final relief without proving his case. That is so because interim relief is normally granted on the mere showing of a prima facie case. If the interim relief sought is identical to the main relief and has the same substantive effect, it means that the applicant is granted the main relief on proof merely of a prima facie case. This, to my mind, is undesirable especially where, as here, the applicant will have no interest in the outcome of the case on the return day.

The point I am making will become clearer if I put it in another way.

If, by way of interim relief, the applicant has asked for a postponement of the election pending the discharge or confirmation of the provisional order, she would not, in that event, gain an advantage over the respondents, because the point she wanted decided would have been resolved before the election was held. But, if the interim relief were granted in the form in which it is presently couched, she would get effective protection before she proves her case and the election would be conducted on the basis that it is unlawful to wear t-shirts emblazoned with party symbols and slogans.

Therefore, it would be fruitless for the respondents to establish their entitlement to wear such t-shirts.

Care must be taken in framing the interim relief sought as well as the final relief so as to obviate such incongruities.”…,.

The first respondent relies on this passage to buttress his argument that the final order sought by the appellant could not be granted on the basis of a prima facie case.

Per contra, the appellant argues that the same passage:

“Supports the position that where the matter is argued on the basis of a final relief, and there are facts that show that a final relief should be granted, then the court should grant a final relief.”

While it is not clear just what part of the passage cited supports the appellant's assertions in this respect, it is evident, from the record, that the appellant, a quo and in this Court, argued for and effectively sought either provisional relief or final relief, based on the same set of evidence and facts. That this was the appellant's somewhat unusual, if not questionable, approach in the court a quo is explained in the following remarks in the court's judgment:

“The applicant, in his papers, seeks a provisional order with an interim order which is in fact a final order.

Urgent applications are brought to seek provisional orders as a measure to secure someone's interests pending a return day for confirmation or discharge.

The draft order by the applicant, under the interim order sought, says 'pending the final determination of this matter, at the return date, the applicant is granted the following relief.'…,. It is then a self-defeating argument to say one should get a final order at this stage.

What should then happen on the return date.

In fact, the return day will no longer be necessary for the applicant.

I disagree with Mr Biti for the argument he advanced to secure a final order. He relied on the inherent jurisdiction of this Court, that the High Court Act does not prohibit such order being granted and also referred to some case law which I did not find helpful to resolve this issue.

There are a number of issues which ought to be fully argued on the return day, e.g. the effect of the payment by Chiutsi; whether applicant has the locus standi to bring this application; issues of an innocent purchaser; existence of caveat or otherwise etc.

This matter is an urgent application.

If granted, it must have a return day, giving an opportunity to all parties to present their side of story not in an urgent atmosphere.

While it is accepted that there are instances where the court may grant a final order in an urgent application. However, that depends with the uniqueness of the nature of relief sought.

In casu, it is not desirable because the applicant's interests can be secured with a temporary interdict prohibiting any transfer of property by the second respondent.

The interim interdict has not been pushed for by the applicant as an alternative. The court can therefore not grant that which has not been asked for.

The omnibus approach advocated by Mr Biti, in his submission, is undesirable; one cannot obtain a final order in these circumstances. For these reasons, this application is bound to fail.”

We find it difficult to assail the reasoning of the court a quo as set out above.

The appellant, through his counsel, sought to secure what even he knew was a final order on the basis of a draft order formulated as a provisional order. In other words, he sought to be granted the main relief that he really craved, on an urgent basis, on proof merely of a prima facie case, and in circumstances where other relief would easily have secured his interests pending the return date.

The court a quo properly applied the applicable law and gave cogent reasons for its inability to grant the provisional order in the form that it was presented by the appellant.

SC101-21 : EQUITY PROPERTIES (PVT) LTD vs ALSHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS
Ruled By: BHUNU JA, UCHENA JA and KUDYA AJA

This is an appeal against part of the judgment of the High Court of Zimbabwe sitting at Harare on 20 November 2019 granting an interim interdict in favour of the first respondent.THE FACTSThe appellant and the first respondent have been engaged in a flurry of litigation, and, at other times, ...

This is an appeal against part of the judgment of the High Court of Zimbabwe sitting at Harare on 20 November 2019 granting an interim interdict in favour of the first respondent.

THE FACTS

The appellant and the first respondent have been engaged in a flurry of litigation, and, at other times, with Interfin Banking Corporation Ltd in liquidation (the Bank) in both the High Court and in this Court. Some of the cases have been concluded while others are still pending.

The facts relevant to this appeal are narrow.

On 16 March 2018, in HC2463/18, the appellant brought motion proceedings against the first respondent seeking vindication of its original title deed no. 9068/2008, which pertains to Lot 3 of Bannockburn (the immovable property), within 10 days of the grant of the order failing which the second respondent was to issue a duplicate replacement deed within 90 days of that order.

The order was granted, purportedly in default of the first respondent, on 6 June 2018.

On 18 July 2018, while the application for rescission of the default judgment was pending, the appellant obtained the duplicate replacement title deed from the second respondent.

The first respondent filed three urgent chamber applications to stop the second respondent from issuing the replacement deed and one court application to prevent the appellant from using it.

The three urgent applications were all removed from the roll for lack of urgency while the court application was withdrawn.

The default judgment, upon which the replacement deed was issued, was rescinded a quo, in terms of Rule 449 of the High Court Rules 1971, on 21 November 2018.

The appellant duly appealed against the rescission of the judgment of the court a quo to this Court. The appeal was dismissed with costs on the higher scale on 7 October 2019 in case number SC924/18 for two reasons:

(i) The first was that the substituted service, upon which the rescinded judgment was based, had been effected on legal practitioners who did not have the mandate to represent the first respondent.

(ii) The second was that the order for substituted service had, by consent of the parties, been rescinded by this Court in SC733/18 on 25 March 2019.

It was common cause that the appellant used the duplicate title deed to subdivide an undisclosed number of Stands on Lot 3 of Bannockburn. He also used it to conclude an undisclosed number of agreements of sale with purchasers such as Conradie Tinofirei Mutumbuki, the third respondent in the application for rescission, on 11 October 2019, and to transfer title thereof to three purchasers, one of which was David Madyausiku who took transfer on 12 April 2019.

On 21 October 2019, the first respondent filed the urgent chamber application which has given rise to this appeal. It sought, in the interim, the return of the replacement deed to the second respondent; its cancellation by the second respondent; and the setting aside of all transactions based on it.

On the return date, it sought confirmation of the interim relief and costs de bonis propriis on the higher scale against the appellant's legal practitioner of record, one Mr Kwaramba.

On 29 October 2019, the appellant opposed the application.

It also filed a counter urgent chamber application in terms of Rule 229A of the High Court Rules, 1971. It raised five preliminary points. These were;

(i) That one of the urgent chamber applications that had been removed from the roll was lis pendens;

(ii) There was material non-disclosure of all the urgent applications that had been removed from the roll and the court application that had been withdrawn;

(iii) The application was not urgent;

(iv) There was non-joinder of third parties who had benefited from transactions based on the replacement title deed; and

(v) Lastly, that the relief in the interim order was the same as the one in the final order.

On the merits, it sought the dismissal of the application.

In the counter application, the appellant sought the retention of the replacement deed in the interim and determination of the lawfulness of the first respondent's possession of the original title deed on the return date.

It indicated its avowed intention to utilize the replacement deed to conduct further subdivisions, conclude more agreements of sale, and transfer the subdivisions that had been sold.

One such purchaser was Conrad Tinofirei Mutumbuki, who was joined in the proceedings on his own motion as the third respondent at the hearing on 29 October 2019 and made common cause with the appellant.

The first respondent also raised the preliminary point of lack of urgency against the counterclaim and sought its dismissal on the merits.

THE FINDINGS A QUO

The court a quo dismissed all the preliminary points raised by the appellant.

While it regarded one of the urgent chamber applications that had been removed from the roll to be pending at the instance of the first respondent, it found the cause of action and relief sought to be different from those before it.

It found the non-disclosure of prior urgent chamber applications and court application irrelevant to the determination of whether the main application was urgent.

It held, that, as the appellant had only impugned the interim relief pertaining to the setting aside of all transactions based on the replacement deed, and not the surrender and cancellation relief as final in effect, it could exercise its Rule 240 discretion to grant interim relief that was not final in effect.

It proceeded to do so by suspending, rather than cancelling, all the transactions predicated upon the replacement deed.

The court a quo further determined, that, the relief sought did not seek to stop past events but “recent and ongoing events.”

It also relied on the provisions of Rule 87 to find that the non-joinder of the third parties who purchased or took transfer of the purchased subdivisions was not inimical to their rights and interests as they were not involved in the procurement of the impugned replacement deed.

Lastly, it found that the first respondent had acted with speed after the decision of this Court of 7 October 2019 to launch the urgent chamber application after the subsequent ten-day negotiations for the voluntary surrender of the replacement deed failed.

Under the consequence factor, it held, that, the first respondent had established that the failure to intervene on an urgent basis would result in the attenuation and dissipation of the immovable property to the detriment of the first respondent's rights in the security pending litigation in HC8113/16, the consolidated case under which the application for rescission had also been incorporated.

Regarding the counter-application, it upheld the preliminary point of lack of urgency that was raised by the first respondent and struck it off the roll with costs on the higher scale.

On the merits of the main application, the court a quo was cognisant of the fact that the issue before it concerned the legality of the possession of the duplicate title deed by the appellant and not the legality of the possession of the original title deed by the first respondent.

It held, that, the appellant had fraudulently procured the duplicate title deed through a deliberate omission of the timeous opposition to its application in HC2463/18 from the bundle of documents for default judgment and the improper appeal against the rescission of the default judgment.

It reasoned that the appellant had done so for the twin purposes of obtaining and utilizing the duplicate deed to undertake the transactions it could not do without the original title deed; such as, the advertisements for the sale of Stands, the conclusion of agreements of sale, and the transfer of the Stands.

It also determined, that, the rescission of the default judgment restored the status quo ante, thereby effectively maintaining and preserving the first respondent's possession of the original deed and preventing the appellant from utilizing the duplicate deed to attenuate and dissipate the security by subdividing, selling, and transferring any subdivisions.

Lastly, it held that the first respondent had established all the requirements for a mandamus.

It therefore granted the provisional order for the return of the duplicate deed to the second respondent for cancellation and suspended all pending activities founded on the subdivisions, agreements of sale, and transfers of title predicated upon the duplicate title deed.

The appellant was accordingly estopped from effectuating all activities based on the duplicate title deed.

The court a quo reserved the nature and level of costs for the return day.

GROUNDS OF APPEAL

Aggrieved by the determination a quo, the appellant sought the setting aside of the order in the main application only and its substitution by a dismissal of the urgent chamber application with costs on the following four grounds of appeal:

“1. The court a quo erred in concluding that the 1st respondent's application was urgent when the 'time' and 'consequence' factors of urgency were not satisfied.

2. The court a quo erred in granting the relief of an interdict when all the requirements of an interdict were not met.

3. The court a quo grossly misdirected itself by granting a final interdict on an interim basis.

4. The court a quo grossly misdirected itself by purporting to interdict past events done pursuant to the replacement title deed.”

It is noteworthy that the appellant did not appeal against the striking off order against its counter urgent chamber application.

THE ISSUES

It was common cause that the issues for determination that arise from the grounds of appeal are:

1. Whether the court a quo correctly determined that the matter was urgent.

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

3. Whether or not the court a quo granted a final interdict when the first respondent had sought an interim order....,.

On the merits, the appellant contended that the court a quo erred in holding;

(i) Firstly, that, the time to act commenced soon after this Court's judgment of 7 October 2019 rather than 18 July 2018, when the replacement title deed was issued by the second respondent; and

(ii) Secondly, that, the continued use of the replacement deed to subdivide, sell, and transfer the subdivisions constituted an irreversible dissipation of the immovable property secured by the collateral held by the first respondent.

It submitted, that, the previous attempts, in HC5466/19 and HC7769/19, to stop the use of the replacement deed negated the “time and consequence” based urgency by the time the provisional order was sought on 21 October 2019, since the dissipation of the immovable property, which began in 2008, was known to the first respondent from March 2012 when it took possession of the original deed.

On the consequent aspect, the appellant argued, that, the failure a quo to determine whether the tender of security in lieu of the original deed negated any irremediable harm arising from the indebtedness claimed in HC8113/16, which had been fully ventilated by the parties, constituted a fatal misdirection warranting interference with its discretion on appeal.

The appellant further submitted, that, as the immovable property was not hypothecated, it could not constitute security for the Bankers Acceptances.

It strongly contended, that, the absence of irreparable harm therefore negated the finding a quo of urgency.

The appellant further impugned the finding that the first respondent had established a prima facie case for granting the provisional order.

It assailed the existence of a prima facie entitlement, though open to some doubt, to possess the original title deed pending determination of HC8113/16, on four grounds:

(i) Firstly, the absence of a debtor-creditor relationship;

(ii) Secondly, the absence of a cession between the two protagonists;

(iii) Thirdly, that the appellant had discharged its obligations in full to the Bank; and

(iv) Lastly, that possession of the original title deed was contrary to the Security Trust Deed and Assignment Agreement between the first respondent and the Bank.

The appellant also emphasized, that, as the title deed was not the subject of the claim in HC8113/16, nor encumbered, the purported tender of the bond of security countervailed the existence of actual or reasonable apprehension of harm.

It further argued, that, the balance of convenience favoured the appellant in that it had earned US$15 million from the sale of 300 stands on which third parties had invested a further US$18m, which, in aggregate, significantly eclipsed the claim of US$2.3m in HC8113/16.

It boasted of its ability to pay the claimed amount in the event liability was established.

Lastly, the appellant contended, that, the court a quo improperly granted final relief on an interim basis on a lower onus, which did not protect its rights pending HC8113/16.

Per contra, the first respondent contended, that, the court a quo had correctly found that the first respondent established both the “time and consequence” factors of urgency and all the four requirements for the grant of an interim interdict.

Counsel for the first respondent further argued, that, the provisional order was not final in form or substance as it was premised on the determination of HC8113/16, which was pending before the High Court.

THE LAW

The treatment of whether an application is urgent is a matter in the discretion of the court a quo.

This Court has very limited grounds upon which it can interfere with the exercise of that discretion. It can do so where the lower court makes a mistake on the law or the facts; acts upon a wrong principle; allows extraneous considerations to influence its decision; fails to take into account relevant facts; or, more generally, makes a decision that is irrational: see Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…,; Barros & Anor v Chimpondah 1999 (1) ZLR 58 (S)…,; and Econet Wireless (Pvt) Ltd v Trust Co Mobile (Pty) Ltd & Anor SC43-13.

The law on what constitutes urgency is settled.

Urgency is manifested by either a time or consequence dimension: see Kuvarega v Registrar-General & Anor 1998 (1) 188 (H)…,; Document Support Centre (Pvt) Ltd v Mapuvire 2006 (2) ZLR 240 (H); Gwarada v Johnson & Ors 2009 (2) ZLR 159 (H); and Sitwell Gumbo v Porticullis (Pvt) Ltd t/a Financial Clearing Bureau SC28-14…,.

In addition, in Econet Wireless (Pvt) Ltd v Trust Co. Mobile (Pty) Ltd & Anor SC43-13…, GARWE JA,…, further suggested that an urgent chamber application in which the interim relief is similar to or has the same effect as the final relief prayed for may justifiably be found to be not urgent.

While he generally approved the position articulated in Kuvarega v Registrar General & Anor 1998 (1) 188 (H), at 193A-C, he underscored that such an application could not be regarded as a nullity and stated that:

“Whilst no hard and fast rule can be laid down, there may well be cases where a court would be justified in holding, in such a situation, that the application is not therefore urgent and that it should be dealt with as an ordinary court application. There may also be cases where the court, as it is empowered to do…, may amend the relief sought in order to grant…, interim protection (and) obviate a situation where final relief is granted by way of a provisional order.”

It is apparent, that, the consequence dimension pre-supposes that the harm sought to be protected in an impending matter would be amorphously irremediable without the interim indulgence.

In Chiwenga v Mubaiwa SC86-20…, this Court further highlighted the incongruence of noting an appeal against a finding of urgency for the basic reason that the finding of urgency is a mere procedural device used by an applicant to jump the queue of other pending matters for a consideration of the merits. This Court reasoned that:

“Looked at differently, an order granting the urgent hearing of a matter is generally not appealable. This is for the simple reason that the order has no bearing on the merits of the application or judgment. This is akin to a bank customer who is, rightly or wrongly, allowed to jump the queue. His or her transaction cannot be impugned or rendered unlawful solely on the basis that he or she has jumped the queue. By the same token, a correct judgment cannot be impugned or rendered incorrect by the mere fact that the matter was improperly heard as an urgent application.”

In Nyakutombwa Mugabe Legal Counsel v Mutasa & Ors SC28-18…, this Court held that a finding of urgency by a court, on its own, cannot constitute a substantive ground of appeal.

In our law, a pledge vests real rights of security in the property pledged to the pledgee. This was pertinently pronounced by MFALILA J in Hughes v Lotriet 1985 (2) ZLR 179 (H)…, thus:

“This valid pledge, therefore, had the effect of conferring on the applicant (the pledgee) a real right in the articles pledged and this right can only terminate when the pledge is extinguished. The pledge is extinguished only after the original or principal obligation is discharged….,. Until this is done, the respondent, as pledgor, has no right of action either for their return or damages for their loss.”

The requirements and purpose of an interim interdict are also well settled in this jurisdiction.

It seeks to protect an existing right from unlawful infringement that is either continuing or reasonably anticipated: see Mayor Logistics (Pvt) Ltd v Zimbabwe Revenue Authority CC07-14; Setlogelo v Setlogelo 1914 AD 221…,; and Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 (2) ZLR 52 (S).

In the latter case, this Court stated…, that:

“An application for a mandamus or 'mandatory interdict' as it is often termed, can only be granted if all the requisites of a prohibitory interdict are established: see Lipschitz v Wattrus NO 1980 (1) SA 662 (T) at 673C-D; Kaputuaza & Anor v Executive Committee of the Administration for the Hereros & Ors 1984 (4) SA 295 (SWA) at 317E. These are:

1. A clear or definite right - this is a matter of substantive law.

2. An injury actually committed or reasonably apprehended - an infringement of the right established and resultant prejudice.

3. The absence of a similar protection by any other ordinary remedy. The alternative remedy must -

(a) Be adequate in the circumstances;

(b) Be ordinary and reasonable;

(c) Be a legal remedy; and

(d) Grant similar protection.”

In respect of an interim interdict, where the right sought to be protected is not clear “a right which 'though prima facie established, is open to some doubt'” suffices: see Eriksen Motors (Welkom) Ltd v Warrenton & Anor 1973 (3) SA 685 (A)…,.

Where a clear right is established, the applicant is precluded from establishing a well-grounded apprehension of irreparable harm, but must do so where only a prima facie right open to some doubt is established: see Pinkstone Mining (Pvt) Ltd & Ors v Lafarge Cement (Pvt) Ltd & Anor HH118-18…,.

Bankers Acceptances (BAs) meet the definition of a bill of exchange espoused in the Bills of Exchange Act [Chapter 14:02] (section 3(1)): A bill of exchange is an unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand, or at a fixed or determinable future time, a sum certain in money to, or to the order of, a specified person, or to bearer.

The Bills of Exchange Act also defines certain correlative terms to a bankers acceptance such as 'acceptance' 'bearer' 'delivery' 'endorsement holder' and 'payment in due course'.

“acceptance” means an acceptance completed by delivery or notification;

“bearer” means the person in possession of a bill or note which is payable to bearer;

“delivery” means transfer of possession, actual or constructive, from one person to another;

“endorsement” means an endorsement completed by delivery;

“holder” means the payee or endorsee of a bill or note, who is in possession of it, or the bearer thereof;

“payment in due course” means payment made at or after the maturity of a bill to the holder thereof in good faith and without notice that his title to the bill is defective.

APPLICATION OF THE LAW TO THE FACTS

The appellant submitted, that, the court a quo mis-applied the time aspect and failed to consider the “consequence” factor.

The ratio of the court a quo on these two aspects is delineated on p13 of the appealed judgment in these words:

“Notwithstanding that the order that enabled the first respondent to procure a duplicate title deed was effectively nullified by the Supreme Court on 7 October 2019, the first respondent (appellant) is still refusing to return the replacement copy of the title deed in terms of which it subsequently subdivided and sold parts of the property as evidenced by the agreement of sale in the third respondent's (Mutumbuki) notice of opposition, hence, first respondent is effectively in the process of developing and dissipating Stands to individual purchasers.

From the papers, applicant engaged the first respondent from 7th to 17th October 2019 but first respondent has made it clear that it wants to hold onto the replacement title deed at all costs to further its apparent unlawful activities of dissipating the immovable property before resolution of case HC8113/18 (sic).

It becomes prudent for this court to intervene, on an urgent basis, to force the first respondent to return the duplicate title deed and for the duplicate title deed to be cancelled, if necessary, to prevent first respondent from alienating the property or disposing of its title in the said immovable property pending litigation between the parties before MUSHORE J.”

The above sentiments are unassailable.

Before the order of this Court of 7 October 2019, all prior urgent applications to stop the issuance and use of the replacement deed by the second respondent were hamstrung by the extant default judgment that permitted the appellant to obtain the replacement deed.

The patently erroneous default judgment had been given a lease of life by the improper appeal lodged by the appellant against the order of rescission.

Notwithstanding that the service by substitution order upon which the default judgment was based was, by consent, rescinded by this Court on 25 March 2019, the appellant brazenly utilized the replacement deed to transfer a Stand on the immovable property to Madyausiku on 12 April 2019.

And, despite the confirmation, again by this Court, of the rescission of the default judgment, on 7 October 2019, which, by operation of law, rendered the replacement deed inefficacious, the appellant perverted the default judgement and the replacement deed by concluding an agreement of sale for a Stand on the immovable property with, amongst others, Mutumbuki, on 11 October 2019.

In its opposing affidavit, the appellant persisted with its avowed intention to continue using the replacement deed to subdivide, sell, and transfer Stands on the immovable property.

We are satisfied that the court a quo properly applied both the time and consequent factors of urgency.

The exercise of its discretion, on the question of urgency, is unassailable.

Again, on the authority of this Court in Nyakutombwa Mugabe Legal Counsel v Mutasa & Ors SC28-18 and Chiwenga v Mubaiwa SC86-20, the first ground of appeal is not only ill-conceived and misplaced but also devoid of merit.

The tenor of the contentions made by the appellant in respect of the second ground of appeal disingenuously relates more to the counter application that was struck off and not appealed against rather than the provisional order that it sought to impugn.

The provisional order protected the first respondent's right to legality, which constitutes a vital aspect of the rule of law.

The consolidated matter in which, inter alia, the first respondent sought the discharge of dishonored Bankers Acceptances drawn by the appellant and secured by the title deed was pending as was the claim of vindication that was lodged by the appellant.

The case was awaiting determination in accordance with the law.

This Court had effectively disgorged the appellant of the ill-gotten duplicate deed and nullified its efficacy on 7 October 2019.

The appellant's refusal to voluntarily surrender the duplicate deed was inimical to the first respondent's real rights in the security that are awaiting determination. The provisional order could not, and did not, determine the issues pending in HC8113/16.

It was remiss of the appellant to motivate the second ground solely on the legality of the possession of the original deed by the first respondent while studiously ignoring the legality of its own stranglehold on the duplicate deed.

The failure to properly demonstrate how the court a quo misdirected itself in finding that the constituent elements of an interim interdict were established is fatal to the second ground of appeal.

The second ground of appeal lacks merit and must, therefore, fail.

The appellant further contended, that, the court a quo erred in granting a final interdict on an interim basis.

The order granted a quo was a provisional order, which restored the status quo ante pending the conclusion of the consolidated matter, HC8113/16.

Before the replacement deed was issued, the appellant could neither subdivide, sell, nor transfer any Stands on the immovable property.

That is the position that was safeguarded by the provisional order.

The order sought to be confirmed or discharged is predicated on the pending consolidated matter HC8113/16, which, at the time the provisional order was sought and granted, incorporated HC2463/18.

In addition, the court will determine the propriety of mulcting Mr Kwaramba with costs on the higher scale de bonis propriis on the return date.

The first respondent will also be obliged to show not only why the status quo ante should be confirmed pending the determination of the disputes raised by both parties in the consolidated matter, HC8113/16, but also why Mr Kwaramba should personally be mulcted with punitive costs.

The provisional order did not stop the determination of HC8113/16 nor did it pre-empt any of the issues raised therein.

The provisional order was therefore not the same as the final order sought nor did it have final effect.

Accordingly, the third ground of appeal must fail.

COSTS

It is clear to us, that, the appeal was launched for the perverse purpose of prolonging the appellant's stranglehold on the replacement deed in order to render the security held by the first respondent redundant. This is a proper case for expressing our displeasure at the conduct of the appellant by mulcting it with costs on the scale of legal practitioner and client.

DISPOSITION

Accordingly, it is ordered that:

1. The appeal be and is hereby dismissed.

2. The appellant shall pay the first respondent's costs on the scale of legal practitioner and client.

HB46-15 : ZENZO NTULIKI vs TIMOTHY SEAN WHITE and OFFICER COMMANDING MATEBELELAND SOUTH PROVINCE and THE SHERIFF OF ZIMBABWE N.O.
Ruled By: MOYO J

This is an application wherein the applicant seeks a provisional order whose interim relief is couched as follows:

“(1) That the applicant shall be allowed unhindered access to the farm known as Lot 2 of Lot 36 Essexvale also known as Avalon Farm, Esigodini and to carry out thereupon all normal farming activities.

(2) That the respondents, its agents, assignees, associates, or employees be and are hereby interdicted and stopped from interfering with the applicant's operation of the farm known as Lot 2 of Lot 36 Essexvale also known as Avalon farm.”

The facts of the matter are that the applicant was allocated Lot 2 of Lot 36 of Essexvale (Avalon) in Umzingwane Matebeleland South Province by the Ministry of Lands in an offer letter dated 4 December 2014.

He then went to the farm and sought to occupy same.

He alleges that an agreement had been reached with the first respondent who had agreed to vacate the farm in January 2015, but, that, on 10 January 2015, the first respondent reneged on his word and stopped the applicant's workers from moving into the farm.

The applicant alleges, that, the first respondent then went on to evict the rest of his workers who were at the farm. He alleges that the first respondent has disturbed his peaceful possession of the farm.

The first respondent has raised points in limine in opposition to the urgent application:

(i) He avers, that, there is no urgency in this matter as evidenced by the fact that the applicant has never been in occupation of the farm in the first place.

He avers that he has always been in lawful occupation of the farm and that he never suggested that he would vacate the farm by 10 January 2015.

He alleges that the applicant sent his workers to the farm without the first respondent's consent thereto.

He avers, that, his legal practitioners then wrote to the applicant advising him that due process had to be followed in taking over the farm and that he could not forcibly dispossess him of the farm.

(ii) The first respondent also raises another point in limine which is to the effect that the relief sought in the provisional order is incompetent as the provisional order seeks interim relief that is the same as the terms of the final order sought and has in fact the import of a final order as opposed to interim relief.

Firstly, I will therefore move on to deal with the issue of the relief sought.

It is clear that the terms of the final order sought are similar to the interim relief and they are:

“(1) That the Provisional order set out herein be and is hereby confirmed.

(2) That the respondent shall pay the costs of suit at an attorney client scale.”

The interim relief itself, which I have alluded to earlier herein, has the import of a final order as it is to the effect that the applicant be given unhindered access to the farm and that he carries therein normal farming activities as well as that the respondent be interdicted and stopped from interfering with the applicant's operations on the farm.

This clearly is a final order couched as interim relief.

It is indeed undesirable to have such a state of affairs because the applicant virtually seeks to obtain final relief without having proved its case. This is because interim relief is obtained merely on establishing a prima facie case as opposed to a proven case: refer to the case of Kuvarega v Registrar General 1998 (1) ZLR 188 (H).

This is an irregularity; the applicant, in my view, wants to be granted final relief on a platform that requires that only a prima facie case be established.

This is not proper and the application cannot succeed by reason of this irregularity.

HMA55-19 : GREAT ZIMBABWE UNIVERSITY vs NESBERT MAREVERWA
Ruled By: WAMAMBO J

The applicant seeks a rei vindicatio order. It seeks to recover its property retained by the respondent.The applicant is a body corporate duly constituted in terms of the Great Zimbabwe University Act [Chapter 25:24].The respondent was an employee of the applicant holding the position of Chief Security Officer.The respondent holds ...

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Law Portal
Zimbabwe

Interim Interdict or Final Order re: Interim Relief Expressed in Similar Terms to the Final Order Sought

Appealed
HH150-12 : CLETUS CHUKWUKA ANUEYIANGU vs CHIEF IMMIGRATION OFFICER and THE CO-MINISTERS OF HOME AFFAIRS and THE ATTORNEY GENERAL OF ZIMBABWE
Ruled By: MAVANGIRA J

HH37-08 : MOVEMENT FOR DEMOCRATIC CHANGE and MORGAN TSVANGIRAI vs CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and CHIEF ELECTIONS OFFICER, ZIMBABWE ELECTORAL COMMISSION
Ruled By: UCHENA J

HH26-11 : AMAPLAT MAURITIUS LIMITED and AMARI NICKEL HOLDINGS ZIMBABWE LIMITED and vs ZIMBABWE MINING DEVELOPMENT CORPORATION and OTHERS
Ruled By: BHUNU J

HB63-13 : CHIEF GAMPU SITHOLE and GAMPU TOURS (PVT) LTD vs KENNEDY C. NDLOVU and THE DEPUTY SHERIFF OF BULAWAYO N.O.
Ruled By: MUTEMA J

View Appeal
SC28-16 : ZIMBABWE REVENUE AUTHORITY vs PACKERS INTERNATIONAL (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GOWORA JA and HLATSHWAYO JA

HB122-14 : GAMANGE (PVT) LTD vs SMELLY DUBE and LIMUKANI SIBANDA and MINISTER OF LANDS & RURAL RESETTLEMENT and OTHERS
Ruled By: TAKUVA J

View Appeal
SC43-13 : ECONET WIRELESS (PVT) LTD vs TRUSTCO MOBILE (PROPRIETARY) LTD and TRUSTCO GROUP INTERNATIONAL (PROPRIETARY) LTD
Ruled By: MALABA DCJ, ZIYAMBI JA and GARWE JA

HH11-15 : RM MINING AND INDUSTRIAL ZIMBABWE (PRIVATE) LIMITED vs STANBIC BANK ZIMBABWE LIMITED
Ruled By: MAFUSIRE J

HMA12-17 : BRIAN ANDREW CAWOOD vs ELASTO MADZINGIRA and THE MESSENGER OF COURT – MWENEZI N.O.
Ruled By: MAFUSIRE J

HB87-16 : COLD STORAGE COMPANY LTD vs ADDITIONAL SHERIFF OF THE HIGH COURT – E.M. MAGARA N.O. and HOLLANDS REAL ESTATE and AHMED ESAT and TREVOR AND TALENT and REGISTRAR OF DEEDS
Ruled By: MAKONESE J

HH225-15 : RITA MARQUE MBATHA vs CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: CHATUKUTA J

HH79-15 : NELSON DZIRUTWE vs DAIRIBOARD ZIMBABWE LIMITED and ADDITIONAL SHERIFF, MUTARE
Ruled By: BHUNU J

HH339-14 : ROCK CHEMICAL FILLERS (PVT) LTD vs BRIDGE RESOURCES (PVT) LTD and TAPIWA GURUPIRA and MOST CHIKUMBA
Ruled By: MATHONSI J

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

View Appeal
HB102-17 : TURFWALL MINING (PVT) LTD t/a BEENSET INVESTMENTS vs SIPHIWE DUBE and OTHERS
Ruled By: TAKUVA J

HMA36-18 : AMALGAMATED RURAL TEACHERS UNION OF ZIMBABWE vs OBERT MASARAURE and ZIMBABWE AFRICAN NATIONAL UNION [PATRIOTIC FRONT] and MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: MAFUSIRE J

HH228-15 : HERBERT MUDZVOVA vs ROBERT MUDZVOVA and THE REGISTRAR OF DEEDS
Ruled By: MATHONSI J

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA
Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

HH520-18 : AIR NAMIBIA (PROPRIETARY) LTD vs CHENJERAI MAWUMBA and JULIANA MAGOMBEDZE and FADZAI MAWUMBA and RUTENDO MUWUMBA and TADIWANASHE MAWUMBA (minors represented by father & natural guardian)
Ruled By: CHITAPI J

HH35-08 : BRETT LEONADES PISSAS vs HELEN LOUISE PISSAS
Ruled By: GOWORA J

SC25-22 : ELLIOT RODGERS vs PUWAYI CHIUTSI and TENDAYI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE and BARIADE INVESTMENTS PL and LAW SOCIETY OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GUVAVA JA and BHUNU JA

SC101-21 : EQUITY PROPERTIES (PVT) LTD vs ALSHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS
Ruled By: BHUNU JA, UCHENA JA and KUDYA AJA

HB46-15 : ZENZO NTULIKI vs TIMOTHY SEAN WHITE and OFFICER COMMANDING MATEBELELAND SOUTH PROVINCE and THE SHERIFF OF ZIMBABWE N.O.
Ruled By: MOYO J

HMA55-19 : GREAT ZIMBABWE UNIVERSITY vs NESBERT MAREVERWA
Ruled By: WAMAMBO J

Categories

Law Portal Zimbabwe

Interim Interdict or Final Order re: Interim Relief Expressed in Similar Terms to the Final Order Sought

Appealed HH150-12 : CLETUS CHUKWUKA ANUEYIANGU vs CHIEF IMMIGRATION OFFICER and THE CO-MINISTERS OF HOME AFFAIRS and THE ATTORNEY GENERAL OF ZIMBABWE Ruled By: MAVANGIRA J

HH37-08 : MOVEMENT FOR DEMOCRATIC CHANGE and MORGAN TSVANGIRAI vs CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and CHIEF ELECTIONS OFFICER, ZIMBABWE ELECTORAL COMMISSION Ruled By: UCHENA J

HH26-11 : AMAPLAT MAURITIUS LIMITED and AMARI NICKEL HOLDINGS ZIMBABWE LIMITED and vs ZIMBABWE MINING DEVELOPMENT CORPORATION and OTHERS Ruled By: BHUNU J

HB63-13 : CHIEF GAMPU SITHOLE and GAMPU TOURS (PVT) LTD vs KENNEDY C. NDLOVU and THE DEPUTY SHERIFF OF BULAWAYO N.O. Ruled By: MUTEMA J

View Appeal SC28-16 : ZIMBABWE REVENUE AUTHORITY vs PACKERS INTERNATIONAL (PRIVATE) LIMITED Ruled By: ZIYAMBI JA, GOWORA JA and HLATSHWAYO JA

HB122-14 : GAMANGE (PVT) LTD vs SMELLY DUBE and LIMUKANI SIBANDA and MINISTER OF LANDS & RURAL RESETTLEMENT and OTHERS Ruled By: TAKUVA J

View Appeal SC43-13 : ECONET WIRELESS (PVT) LTD vs TRUSTCO MOBILE (PROPRIETARY) LTD and TRUSTCO GROUP INTERNATIONAL (PROPRIETARY) LTD Ruled By: MALABA DCJ, ZIYAMBI JA and GARWE JA

HH11-15 : RM MINING AND INDUSTRIAL ZIMBABWE (PRIVATE) LIMITED vs STANBIC BANK ZIMBABWE LIMITED Ruled By: MAFUSIRE J

HMA12-17 : BRIAN ANDREW CAWOOD vs ELASTO MADZINGIRA and THE MESSENGER OF COURT – MWENEZI N.O. Ruled By: MAFUSIRE J

HB87-16 : COLD STORAGE COMPANY LTD vs ADDITIONAL SHERIFF OF THE HIGH COURT – E.M. MAGARA N.O. and HOLLANDS REAL ESTATE and AHMED ESAT and TREVOR AND TALENT and REGISTRAR OF DEEDS Ruled By: MAKONESE J

HH225-15 : RITA MARQUE MBATHA vs CONFEDERATION OF ZIMBABWE INDUSTRIES Ruled By: CHATUKUTA J

HH79-15 : NELSON DZIRUTWE vs DAIRIBOARD ZIMBABWE LIMITED and ADDITIONAL SHERIFF, MUTARE Ruled By: BHUNU J

HH339-14 : ROCK CHEMICAL FILLERS (PVT) LTD vs BRIDGE RESOURCES (PVT) LTD and TAPIWA GURUPIRA and MOST CHIKUMBA Ruled By: MATHONSI J

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

View Appeal HB102-17 : TURFWALL MINING (PVT) LTD t/a BEENSET INVESTMENTS vs SIPHIWE DUBE and OTHERS Ruled By: TAKUVA J

HMA36-18 : AMALGAMATED RURAL TEACHERS UNION OF ZIMBABWE vs OBERT MASARAURE and ZIMBABWE AFRICAN NATIONAL UNION [PATRIOTIC FRONT] and MINISTER OF PRIMARY AND SECONDARY EDUCATION Ruled By: MAFUSIRE J

HH228-15 : HERBERT MUDZVOVA vs ROBERT MUDZVOVA and THE REGISTRAR OF DEEDS Ruled By: MATHONSI J

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

HH520-18 : AIR NAMIBIA (PROPRIETARY) LTD vs CHENJERAI MAWUMBA and JULIANA MAGOMBEDZE and FADZAI MAWUMBA and RUTENDO MUWUMBA and TADIWANASHE MAWUMBA (minors represented by father & natural guardian) Ruled By: CHITAPI J

HH35-08 : BRETT LEONADES PISSAS vs HELEN LOUISE PISSAS Ruled By: GOWORA J

SC25-22 : ELLIOT RODGERS vs PUWAYI CHIUTSI and TENDAYI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE and BARIADE INVESTMENTS PL and LAW SOCIETY OF ZIMBABWE Ruled By: GWAUNZA DCJ, GUVAVA JA and BHUNU JA

SC101-21 : EQUITY PROPERTIES (PVT) LTD vs ALSHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS Ruled By: BHUNU JA, UCHENA JA and KUDYA AJA

HB46-15 : ZENZO NTULIKI vs TIMOTHY SEAN WHITE and OFFICER COMMANDING MATEBELELAND SOUTH PROVINCE and THE SHERIFF OF ZIMBABWE N.O. Ruled By: MOYO J

HMA55-19 : GREAT ZIMBABWE UNIVERSITY vs NESBERT MAREVERWA Ruled By: WAMAMBO J

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Zimbabwe

Appealed
HH150-12 : CLETUS CHUKWUKA ANUEYIANGU vs CHIEF IMMIGRATION OFFICER and THE CO-MINISTERS OF HOME AFFAIRS and THE ATTORNEY GENERAL OF ZIMBABWE
Ruled By: MAVANGIRA J

HH37-08 : MOVEMENT FOR DEMOCRATIC CHANGE and MORGAN TSVANGIRAI vs CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and CHIEF ELECTIONS OFFICER, ZIMBABWE ELECTORAL COMMISSION
Ruled By: UCHENA J

HH26-11 : AMAPLAT MAURITIUS LIMITED and AMARI NICKEL HOLDINGS ZIMBABWE LIMITED and vs ZIMBABWE MINING DEVELOPMENT CORPORATION and OTHERS
Ruled By: BHUNU J

HB63-13 : CHIEF GAMPU SITHOLE and GAMPU TOURS (PVT) LTD vs KENNEDY C. NDLOVU and THE DEPUTY SHERIFF OF BULAWAYO N.O.
Ruled By: MUTEMA J

View Appeal
SC28-16 : ZIMBABWE REVENUE AUTHORITY vs PACKERS INTERNATIONAL (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GOWORA JA and HLATSHWAYO JA

HB122-14 : GAMANGE (PVT) LTD vs SMELLY DUBE and LIMUKANI SIBANDA and MINISTER OF LANDS & RURAL RESETTLEMENT and OTHERS
Ruled By: TAKUVA J

View Appeal
SC43-13 : ECONET WIRELESS (PVT) LTD vs TRUSTCO MOBILE (PROPRIETARY) LTD and TRUSTCO GROUP INTERNATIONAL (PROPRIETARY) LTD
Ruled By: MALABA DCJ, ZIYAMBI JA and GARWE JA

HH11-15 : RM MINING AND INDUSTRIAL ZIMBABWE (PRIVATE) LIMITED vs STANBIC BANK ZIMBABWE LIMITED
Ruled By: MAFUSIRE J

HMA12-17 : BRIAN ANDREW CAWOOD vs ELASTO MADZINGIRA and THE MESSENGER OF COURT – MWENEZI N.O.
Ruled By: MAFUSIRE J

HB87-16 : COLD STORAGE COMPANY LTD vs ADDITIONAL SHERIFF OF THE HIGH COURT – E.M. MAGARA N.O. and HOLLANDS REAL ESTATE and AHMED ESAT and TREVOR AND TALENT and REGISTRAR OF DEEDS
Ruled By: MAKONESE J

HH225-15 : RITA MARQUE MBATHA vs CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: CHATUKUTA J

HH79-15 : NELSON DZIRUTWE vs DAIRIBOARD ZIMBABWE LIMITED and ADDITIONAL SHERIFF, MUTARE
Ruled By: BHUNU J

HH339-14 : ROCK CHEMICAL FILLERS (PVT) LTD vs BRIDGE RESOURCES (PVT) LTD and TAPIWA GURUPIRA and MOST CHIKUMBA
Ruled By: MATHONSI J

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

View Appeal
HB102-17 : TURFWALL MINING (PVT) LTD t/a BEENSET INVESTMENTS vs SIPHIWE DUBE and OTHERS
Ruled By: TAKUVA J

HMA36-18 : AMALGAMATED RURAL TEACHERS UNION OF ZIMBABWE vs OBERT MASARAURE and ZIMBABWE AFRICAN NATIONAL UNION [PATRIOTIC FRONT] and MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: MAFUSIRE J

HH228-15 : HERBERT MUDZVOVA vs ROBERT MUDZVOVA and THE REGISTRAR OF DEEDS
Ruled By: MATHONSI J

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA
Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

HH520-18 : AIR NAMIBIA (PROPRIETARY) LTD vs CHENJERAI MAWUMBA and JULIANA MAGOMBEDZE and FADZAI MAWUMBA and RUTENDO MUWUMBA and TADIWANASHE MAWUMBA (minors represented by father & natural guardian)
Ruled By: CHITAPI J

HH35-08 : BRETT LEONADES PISSAS vs HELEN LOUISE PISSAS
Ruled By: GOWORA J

SC25-22 : ELLIOT RODGERS vs PUWAYI CHIUTSI and TENDAYI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE and BARIADE INVESTMENTS PL and LAW SOCIETY OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GUVAVA JA and BHUNU JA

SC101-21 : EQUITY PROPERTIES (PVT) LTD vs ALSHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS
Ruled By: BHUNU JA, UCHENA JA and KUDYA AJA

HB46-15 : ZENZO NTULIKI vs TIMOTHY SEAN WHITE and OFFICER COMMANDING MATEBELELAND SOUTH PROVINCE and THE SHERIFF OF ZIMBABWE N.O.
Ruled By: MOYO J

HMA55-19 : GREAT ZIMBABWE UNIVERSITY vs NESBERT MAREVERWA
Ruled By: WAMAMBO J