Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Suspension of Orders Pending Appeal iro Approach

HH192-10 : AEPROMM RESOURCES (PVT) LTD vs SAMUEL MAZOWE and PATTERSON TIMBA and STEVENSON TIMBA and MAGGIE DITIMA and TONDESAI KAPONDO
Ruled By: MTSHIYA J

On 20 August 2010, I dismissed this application with costs. The applicant has now placed before me a written request for the full reasons behind my dismissal of its application. The applicant says it needs the reasons because it intends to file an appeal in the Supreme Court urgently.

I give here below the reasons for my ruling.

On 12 August 2010, the applicant filed an urgent application in this court seeking the following interim relief:-

“Pending the finalization of the applicant is granted the following relief:

1. The 'Notice of Extraordinary General Meeting, issued by the first respondent, for a meeting to be held on 21 August 2010, is hereby declared null and void.

2. The respondents are hereby interdicted from purporting to act as Directors of the applicant and interfering with and/disrupting the applicant's management.

3. The respondents shall pay costs of this application.

4. That leave is granted to the applicant's legal practitioners to serve this order upon the respondents.”

The application was heard and dismissed for lack of urgency by HLATSHWAYO J on 19 August 2010. The result slip in the record confirms as follows:-

“Matter dismissed as not urgent.”

On 19 August 2010, the day HLATSHWAYO J made his ruling, the applicant noted an appeal in the Supreme Court. The Notice of Appeal states that the appeal is against the whole of the judgment of HLATSHWAYO J and grounds of appeal are then given as follows:-

“1. The learned Judge erred in finding that the applicant's application, HC5500/10, was not urgent on the basis that there was an inordinate delay between the time the issue of applicant's contested Directorship came to the attention of the applicant's deponent in HC5500/10 and the time of filing of HC5500/10.

In so doing, the learned Judge failed to appreciate the fact that the issue that has instigated urgency in HC5500/10 is the serving of notices of an Extraordinary General Meeting of the applicant, proposed by the respondents purportedly in their capacity as applicant's Directors.

The fact of speculative knowledge about the improper claim to Directorship by the respondents could not ground urgency in that that would essentially amount to creating urgency where none exists.

Prior to the issuance of the notice to attend an Extraordinary General Meeting therefore, the dispute as to Directorship could be resolved by way of an ordinary court application.

Upon the service of the notice to attend the Extraordinary General Meeting however, scheduled for 21 August 2010, the need arose to interdict the respondents from acting in a manner inconsistent with the position that their status as directors is disputed. Such an interdiction could not be dealt with by way of an ordinary court application. It could only be resolved by way of an urgent chamber application; as such, the learned Judge erred in finding that the matter was not urgent.

2. The learned Judge also erred in finding that the averment contained in the Supporting Affidavit of Ann Rushwaya, was evidence of the fact that as far back as the 22 August of June the applicant was aware of its purported change of Directorship. This is so because a speculative suspicion that party has done something unlawful does not ground urgency but the very act of actuating that illegal action, eg. by calling for an Extraordinary General Meeting, does ground such urgency; thus, despite the existence of that speculative suspicion in June 2010, the basis of urgency has only arisen upon the serving of the notices to attend an Extraordinary General Meeting.”

The judgment appealed against does not form part of the papers before me.

On 20 August 2010, the applicant filed this application seeking the following interim relief:-

“Pending the finalization of the applicant's appeal in the Supreme Court (SC197/10), the applicant is granted the following relief:

1. The respondents be and are hereby interdicted from holding the purported Extraordinary General Meeting of the applicant, scheduled for the 21st of August 2010.

2. The respondents shall pay the costs of this application.”

Clearly, the above is the same relief that was prayed for on 12 August 2010.

I heard the application on the same day it was filed, and, indeed, after hearing argument from both counsel I dismissed the application with costs.

The certificate of urgency in support of the application indicated that since the dismissal of the earlier application the issue of an interdict remained alive because the Extraordinary General Meeting proposed by the respondents was likely to be held on 21 August 2010. Furthermore, the certificate went on, the dismissed matter (HC5500/10) remained res litigiosa on account of the appeal noted in the Supreme Court. Accordingly, it was stated, if an interdict was not granted, the holding of the meeting on 21 August 2010, by the respondents, would stand to ignore the fact that there was pending litigation on the issue. The applicant therefore believed there was need for the matter to be dealt with through an urgent application.

I must hasten to mention that a few hours before the hearing of the application I had asked for heads of argument on whether or not leave to appeal was required in respect of the appeal filed in the Supreme Court on 19 August 2010.

I am indebted to counsel for the applicant who quickly filed heads of argument which I found useful.

In his heads of argument, counsel for the applicant drew my attention to section 43(2)(d)(ii) of the High Court Act [Chapter 7:06] which provides as follows:

“(2) No appeal shall lie -

(a)…,.

(b)…,.

(c)…,.

(i)…,.

(ii)…,.

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

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

(ii) Where an interdict is granted or refused;

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

Clearly, the relief sought is that of an interdict referred to in exception (ii) above.

Counsel for the applicant also advised, that, upon dismissing the application, the judge had intimated that his decision was final and definitive and did not therefore require leave of the judge for purposes of appeal.

I concur: see Mwatsaka v ICL Zimbabwe 1998 (1) ZLR 1 (H).

Counsel for the respondents, although intimating that leave should have been formally sought, was, however, of the view that since the appeal was already before the Supreme Court, the applicant should have applied to that court for an urgent hearing. He said the applicant could have done so in terms of Rule 58 of the Supreme Court Rules which provides as follows:-

“In any matter not dealt with in these Rules the practice and procedure of the Supreme Court shall, subject to any direction to the contrary by the Court or a Judge, follow, as near as may be, the practice and procedure of the High Court.”

He said the above Rule opened a window for urgent applications to be brought before the Supreme Court and that many cases had been handled through that window.

Without denying the fact that indeed many cases had reached the Supreme Court through that window, counsel for the applicant, relying on Lloyd Guwa (2) Hazel Claris Kumire v Willoughby Investments (Pvt) Ltd SC31-09, said, unlike the High Court, the Supreme Court had no inherent jurisdiction. He said it was a creature of statute whose powers are clearly defined in the Supreme Court Act [Chapter 7:13]. That being the case, there was no opening for urgent applications.

Counsel for the respondents was of the view that the route taken by the applicant was simply a way of bringing back the same refused application to the same court. This was so because, if granted, the effect of the relief sought meant a reversal of the earlier decision of this court.

I agree.

Indeed, if the interdict is granted, the effect is to reverse the earlier ruling of this court. As can be seen, the relief sought is the same as the one earlier prayed for.

However, counsel for the applicant's argument was that the court's duty was merely to determine whether or not, given the fact that an appeal now lies in a superior court, it could be proper for the respondents to proceed with their proposed meeting on 21 August 2010. In support of that stance, the applicant, in its founding affidavit, and in line with the certificate of urgency, states, in part:

“6. Pending the determination of that appeal, therefore, the issue of the application for the interdiction of the respondents from holding the proposed meeting of the 21st August 2010 remains a matter that is subject of pending litigation.

7. The applicant has a clear right to have that issue determined before any action as to holding the proposed meeting can take place. This is in line with protecting its right to proper recourse before the law.

8. To allow the meeting to proceed, therefore, would amount to the sanctioning of the dealing in and with issues that are res litigiosa. Such a situation would inevitably cause the applicant irreparable harm as the proposed meeting seeks to make various resolutions in respect of the applicant, which resolutions are intended, thereafter, to be put into effect. Such a situation must be stopped by this honourable court.

9. The risk of this irreparable harm is very imminent as the proposed meeting is scheduled for the 21st of August 2010 (the day after tomorrow). It is on this basis that the applicant prays for an order interdicting the respondents from holding the proposed Extraordinary General Meeting on the 21st of August 2010, pending finalization of the applicant's appeal in HC5500/10.”

The details relating to the business of the meeting to be held on 21 August 2010 were not given.

Whilst I am of the view that it is possible for the Supreme Court to be moved to grant an urgent hearing to an appeal already before it, my assessment in this application is that I am being asked to review the earlier decision of my brother HLATSHWAYO J.

That cannot be and is not permissible.

That being the case, there would therefore, in the main, be no compelling reason for me to have the earlier judgment placed before me. I simply do not have the power to review that judgment.

To the extent that the parties were heard on the merits of the case, relating to the sole issue of urgency, I hold the view that this matter is now res judicata.

I come to this conclusion on the basis that the relief being sought is the same one that was before my brother HLATSHWAYO J. As argued by counsel for the respondents, I believe I am being asked to grant the same relief under the excuse of an appeal now pending in the Supreme Court.

In addition to the above, I also want to recognise that generally, in civil matters, an appeal to the Supreme Court suspends the operation of the decision appealed against: see Founders Building Society v Mazuka 2000 (1) ZLR 52P (HC). However, given the fact that no operational order was ever granted by this court, I do not think the general rule applies.

The Judge, after having heard the parties, merely refused to hear the matter on the basis of urgency and there was never any consideration of the merits of the case. There was no executable order issued by the judge.

That is why it was not necessary for the respondents to make an application for execution pending appeal.

In line with its acceptance of that fact, the applicant, in its appeal, prays for the matter to be “remitted to the High Court to be heard and determined on an urgent basis.”

All in all, and for the reasons I have given above, I find myself totally disabled from granting the relief sought. The above conclusions preclude me from going any further because the appeal in the Supreme Court is indeed intended to direct this court to go into the merits of the matter.

The prayer in the appeal specifically reads as follows:

“That the ruling by the High Court in HC5500/10 be and is hereby set aside, and the matter is remitted to the High Court to be heard and determined on an urgent basis.”

It would therefore be improper for me to do what the Supreme Court has not yet directed this court to do.

In light of the foregoing, I dismissed the application with costs.

HH842-19 : BARIADIE INVESTMENTS (PVT) LTD vs PUWAYI CHIUTSI and TENDAI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. and ELLIOT ROGERS
Ruled By: CHITAPI J

The applicant prays for an order that Deed of Transfer No.708/19 made in favour of the second respondent should be cancelled and that the prior Deed of Transfer No.8421/2000 in the name of the first respondent, and from which transfer in favour of the second respondent was made should be revived.

Upon revival of the prior Deed, the applicant prays for an order that the property conveyanced therein, called Remainder of Subdivision C of Lot 6 of Lot 1890 to 195 (inclusive) measuring 4,377 square metres be transferred, by the third respondent, into the applicant's name.

I must note that the part of the order sought, directing transfer by the third respondent, is incompetent.

The third respondent is the Registrar of Deeds. The Registrar of Deeds does not transfer properties but registers them. A conveyancer, acting under a power of attorney given by the owner of the property or transferor is the one who transfers the property to the transferee. The Registrar of Deeds, as the name clearly denotes, registers the transfer documents subject to all requirements imposed by applicable law being met.

For the benefit of the applicant, the duties of a Registrar are set out in section 5 of the Deeds Registries Act [Chapter 20:05] as read with the Deeds Registries Regulations S.I.236 of 2018.

The court does not create a duty outside what the law permits for the Registrar to perform.

The relief sought, for the court to order the third respondent to transfer the property, assuming that the current holding Deed is cancelled as prayed for is therefore a non sequitur and cannot be granted.

The applicant also prays for costs against the first respondent and any other respondent who opposes the application on the scale of legal practitioner and client.

The basis of the application is succinctly set out in paragraph 8 of the founding affidavit deposed to by the applicant company's Managing Director, Kingstone Hamutendi Munyawarara who stated that he is aware of the facts of the matter. He states as follows in paragraph 8 of the said affidavit:

“8. The application is premised on the fact that the said property was sold to the applicant by the fourth respondent in execution proceedings against the first respondent in HC3331/14. First respondent, whilst aware that the property had already been sold to the applicant by the Sheriff, fourth respondent hereto, purported to sell and transfer the property to the second respondent.”...,.

The applicant's case, as set out in the founding affidavit, was to the following effect:

It averred, that, it was declared the highest bidder at a judicial auction held on 18 September 2017 wherein the first respondent's property, which had been judicially attached, was up for sale to satisfy the judgment in case no. HC3331/14 made in favour of the fifth respondent against the first respondent.

The applicant was declared the highest bidder, having offered US$270,000 for the property.

Following the dismissal of an objection to the confirmation of the sale, filed by the first respondent, the applicant avers that it paid the purchase price of $270,000 to the fourth respondent as confirmed by the letter from the fourth respondent, dated 6 November 2018, addressed to the fifth respondent's legal practitioners as execution creditor.

The applicant paid transfer fees to the fifth respondent's legal practitioners in the sum of US$23,100 on 9 November 2018 as per proforma invoice of the same date prepared by the fifth respondent's legal practitioners.

The applicant attached a copy of judgment no. HH604-18 by MATHONSI J…, wherein the first respondent had, in case no. HC11349/17, challenged the fourth respondent's decision to confirm the sale of the property to the applicant.

Judgment HH604-18 was delivered on 3 October 2018 and the first respondent's challenge to confirmation was dismissed.

Judgment no. HH604-18 also disposed of case no. HC2650/18 brought by the fifth respondent herein as applicant therein. Case no's HC11349/17 and HC2650/18 were consolidated for purposes of hearing.

In case no. HC2650/18, the fifth respondent prayed for a declaratur to be made by the court to the effect that once the Sheriff had confirmed a sale, after dismissal of any objection(s) made in terms of Rule 359(7), then the Sheriff was obliged to pass transfer to the purchaser as provided for in Rule 361 of the High Court Rules (1971).

The court dismissed the application for the declaratur.

In dismissing the application for the declaratur, the learned judge, albeit agreeing that Rule 361 in its wording appeared to support the fifth respondent's interpretation, that, following confirmation of the sale and compliance with sale conditions, the Sheriff was required to transfer the property to the purchaser against payment of the purchase price; it made sense for the Sheriff to await giving transfer to the purchaser until all objection procedures had been exhausted.

The learned judge also held that the court had the discretion to regulate its processes.

In commenting on the provisions of section 14 of the High Court Act [Chapter 7:06] which gives this court jurisdiction to determine existing, future, and contingent rights, the learned judge, after referring to several decided cases, correctly held that the grant of a declaratory order was a discretionary matter for the court.

In my view, there is a further consideration which attaches to the interpretation of Rule 361.

The consideration has to do with rules of statutory interpretation. Rules of court, as with other legislative statutes, are read as a whole and not as a collection of isolated phrases.

Rule 361 should be read together with the rest of the rules regarding execution on immovable property.

Rule 359(8) and (9) provide that the Sheriff's decision to confirm a sale is open to challenge by “any person” who is aggrieved by the Sheriff's decision made in terms of Rule 359(7), that is, to confirm or cancel the sale.

The person challenges the decision by way of court application made within one month of the Sheriff's decision.

In terms of subrule 9 of Rule 359, the court may confirm, vary, or set aside the Sheriff's decision or “make such order as the court considers appropriate in the circumstances.”

It cannot have been the rule maker's intention that the Sheriff should carry out a concomitant transfer of the property upon his or her confirmation of the sale without allowing for the exercise by aggrieved parties of their right to object to court. Such interpretation would render nugatory the rights of objectors aggrieved by the Sheriff's decision.

Therefore, Rule 361 should be read as directing the Sheriff to transfer the property following his or her confirmation of the sale, only after allowing for the objection period of one month to lapse and no aggrieved party has applied to court to set aside the Sheriff's decision, or after all court processes have been exhausted in the event that an aggrieved party has applied to court.

This includes the appeal process which would need to be exhausted where the challenge by an aggrieved person has progressed that far.

It must therefore follow, that, even if l was to cancel the Deed of Transfer in favour of the second respondent, an order of the transfer of the property to the applicant by the fourth respondent can only be made if all court processes have been completed to finality.

In the judgment HH604-18, the learned judge made an order that “this order shall not be suspended by any appeal by either party but shall remain in force not withstanding such appeal.”

The first respondent was dissatisfied with the judgment. He noted an appeal against that judgment.

The notice of appeal was not attached to the papers but it appears common cause that such appeal was noted.

The applicant, in its founding affidavit, did not relate to the appeal nor deny its existence save in the answering affidavit, in paragraph 4, where, in denying that the matter is lis pendens, the applicant contended that an order was made that the noting of an appeal would not suspend the operation of judgment no. HH604-18.

The first respondent, on the other hand, averred that his appeal was also against the order decreeing the judgment to remain operational despite the noting of the appeal.

The applicant also averred that the “purported” appeal did not affect this application.

I cannot agree in view of my interpretation that transfer in terms of Rule 361 cannot be proceeded with until the court challenge processes given in Rules 359(8) and (9) have been finalized....,.

The first respondent...,. indicated that his appeal was still pending - a fact which was not disputed by the applicant.

HMT12-21 : EMMANUEL RENSBURG vs KENNEDY NGIRAZI and NAN JIANG MINE (PVT) LTD and MEGAMANIA AUCTIONEERS and THE HIGH COURT SHERIFF (N.O.)
Ruled By: MUZENDA J

The Notice of Appeal has the general effect, at common law, of staying the writ of execution, but it is not intended to operate or come into effect in circumstances where such stay had the adverse effect of perpetuating a commission of an offence or to perpetrate criminal conduct: see ...

SC112-21 : OLIVER BWITITI vs STANLEY FARMS (PRIVATE) (LIMITED) and OTHERS
Ruled By: MWAYERA JA

It is common cause that the noting of an appeal against the High Court order would have the automatic effect of suspending the order.

SC08-16 : CFI RETAIL (PRIVATE) LIMITED vs ERIC MANYIKA
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA JA

After hearing counsel for the appellant, the appeal was allowed with costs and the order of the court a quo set aside. The matter was remitted to the court a quo for it to be determined on the merits. It was indicated that reasons for the decision would follow in ...

These are they

The respondent was employed by the appellant as an Empty Bottles Clerk until August 2009 when he was retired after having attained the retirement age of sixty (60) years in January 2009. Mr Manyika had originally been an employee of the then Farmers Co-op. He had joined the Farmers Co-op Pension Fund in 1982. Under that Pension Fund's regulations the date of retirement was said to be January 2014. In 1995, there were changes in the company and a merger which saw the creation of the CFI Pension Fund. The pension regulations were changed with the passage of time. Under the CFI Pension Fund regulations, the age of retirement was lowered to 60 years and all the employees were informed of the change through their subsidiaries. The information was also communicated to the employees through their payslips. The same information was also placed on the notice boards which were accessible to all employees.

The respondent was still of the belief that his retirement age was sixty-five (65) years which would have been reached on 30 January 2014. According to the new pension regulations, the respondent should have been retired from work in January 2009. He was however retired in August 2009. The appellant admitted that there was an oversight on their part as there had been changes in the Human Resources Department. Mr Manyika unsuccessfully pleaded with the appellant to remain at work until January 2014.

Mr Manyika was aggrieved by the decision of the appellant and approached a labour officer complaining of unfair labour practice. The dispute was referred to compulsory arbitration.

After hearing both parties, the arbitrator issued the following award:

“Having carefully considered both oral and written submissions and evidence from both parties, I hereby declare that:

1. Respondent committed an unfair labour practice by prematurely retiring Eric Manyika on 31 August 2009 having given him short notice.

2. In light of this finding, and as a remedy to the unfair labour practice, I hereby order respondent to comply with one of the two options given below:

Either: (a) Reinstate claimant without loss of pay and benefits from 1 September 2009 and keep him to the pay roll until his normal retirement age on 13 January 2014;

(b) If reinstatement is no longer an option for whatever reason, pay claimant the following:

(i) Full pay and benefits from 1 September 2009 to 31 July 2011.

(ii) Cash-in-lieu of leave from 1 September 2009 to 31 July 2011.

(iii) 12 months pay as damages for loss of employment before normal retirement age.

(iv) 3 months notice pay.

(v) Any other terminal benefits which claimant may be legally entitled.”

The appellant was aggrieved by the decision of the arbitrator and approached the Labour Court. The appellant lodged an application for interim determination in terms of section 92E(3) of the Labour Act [Chapter 28:01] (“the Act”). It however withdrew the application.

On the day of the hearing, the respondent raised a point in limine alleging that the appellant had approached the court with dirty hands since it had not complied with the arbitrator's decision.

The Labour Court held that the appellant ought to have complied with the arbitrator's award before approaching the court. It upheld the point in limine and dismissed the appeal from the arbitral award.

The appellant noted an appeal to this Court on the following grounds:

1. The court a quo erred at law in finding that the appellant's failure to comply with an arbitration award it was appealing against constituted dirty hands and even then, to the extent that the appellant should be denied audience.

2. The court a quo erred at law and erred grossly on the facts in finding that the appellant was contemptuously failing to comply with the award. In so finding, the court disregarded the fact that the amount payable by the appellant to the respondent was not quantified.

3. The court a quo erred at law in finding that the appellant had dirty hands when the appellant's non-compliance was one in the context of a pending application for interim relief.

4. Assuming, without conceding, that the appellant's hands were dirty such as to be denied audience, the court a quo erred at law in dismissing the appellant's appeal for the reason alone. Instead, the court a quo should have denied the appellant audience but postponed the matter till such time when the appellant had complied with the arbitration award.

Section 92E of the Labour Act [Chapter 28:01] provides as follows:

“Section 92E: Appeals to the Labour Court generally:

(1) An appeal in terms of this Act may address the merits of the determination or decision appealed against.

(2) An appeal in terms of subsection (1) shall not have the effect of suspending the determination or decision appealed against.

(3) Pending the determination of an appeal, the Labour Court may make such interim determination in the matter as the justice of the case requires.”

Section 92E(2) of the Labour Act [Chapter 28:01] only provides that the noting of an appeal to the Labour Court against a determination or decision does not have the effect of suspending the operation of the determination or decision appealed against. The purpose of the section is to provide for the effect of the noting of an appeal in terms of the Act on the enforcement of the determination or decision. The provision is the reversal of the common law principle that the noting of an appeal against a judgment or decision of a tribunal or lower court suspends the execution of the judgment or decision pending the determination of the appeal.

Section 92E(2) of the Labour Act [Chapter 28:01] does not impose an obligation on a party appealing against the determination or decision to act in terms of the determination or decision appealed against pending determination of the appeal. In other words, there is no provision requiring the appellant to first comply with the determination or decision appealed against in order to preserve the right of appeal.

There are remedies available to a party in whose favour the determination or decision appealed against has been made for its enforcement in the absence of an interim determination made by the Labour Court suspending the determination or decision appealed against pending determination of the appeal. The effect of the section is that it leaves the party in whose favour the determination or decision was given with a right to enforce the determination or decision appealed against by having it registered with the High Court or any Magistrates Court in terms of section 98(14) of the Labour Act [Chapter 28:01].

Section 92E(3) of the Act has no effect at all on the right to appeal.

It leaves the appellant with a right to apply for an interim determination suspending the execution of the determination or decision appealed against. The right holder may exercise the right or choose not to do so. He or she is not obliged to apply to the Labour Court for an interim determination. The fact that a party has opted, in the exercise of discretion, not to exercise a right given by law does not mean that he or she is guilty of approaching the court with dirty hands. Both parties are equally protected by the law as they have remedies available to them.

When the Labour Court refuses to hear an appeal on the basis that the appellant has not complied with the determination or decision appealed against, it is creating a remedy not provided for by the law.

The court a quo misapplied the principle of dirty hands to the facts of the case.

The principle of dirty hands governs a situation where a party is under a direct obligation imposed by law to act in a specific manner; which obligation the party deliberately refuses to perform. It is a time honoured principle based on the need for litigants who approach a court of law seeking relief to do so with the required degree of truthfulness and honesty. It does not apply in cases where the appellant fails to act in terms of a determination or decision appealed against under section 92E of the Labour Act [Chapter 28:01] because he or she would not be under an obligation to first comply with the determination or decision appealed against in order to be heard.

The right to be heard by a court in proceedings that have been properly instituted is a fundamental right that should not be lightly denied to a party.

In this case, the appellant was not guilty of contempt of court as suggested by the Labour Court because it was exercising the right to appeal to the court given by law. The court was obliged to hear the appellant in the appeal which was properly before it.

In the case of Zimbabwe Mining Development Corporation & Anor v African Consolidated Resources PLOC SC01-10, CHIDYAUSIKU CJ stated the following:

“The right of appeal is fundamental and critical to our justice system. Where the law confers the right of appeal on a litigant it should not be rendered nugatory or abrogated without due process. Due process requires that a case proceeds to finality, namely, the giving of a judgment. Once a judgment is given, the losing party who has a right to appeal is entitled, if he so wishes to note an appeal.”

See also Claudius Marimo and Anor v The Minister of Justice, Legal and Parliamentary Affairs SC25-06.

A party wishing to apply to the Labour Court for interim determination pending determination of the appeal against an arbitral award would have to consider the question whether the award appealed against is enforceable. The party contemplating to have the award registered with the High Court or Magistrates Court pending determination of the appeal by the Labour Court would have to consider the same question.

In this case, the award was not sounding in money.

It simply directed payment of damages. The parties were given the option of approaching the arbitrator in the event that they failed to agree on the quantum of damages. It goes without saying that the award could not be executed because the person in whose favour it was made could not even register it. That explains why the respondent did not take steps to enforce the award pending determination of the appeal notwithstanding the effect of section 92E(2) of the Labour Act [Chapter 28:01]. It also explains why the appellant was entitled, in the circumstances, not to apply for an interim determination.

If an arbitral award is patently ultra vires the jurisdiction of the arbitrator or is for some reason not executable what would happen if the Labour Court refuses to hear and determine the appeal on the ground that the appellant must first comply with the award appealed against?

It is clear that the right to be heard in the determination of the appeal noted in terms of the Labour Act remains extant even where an interim determination in the matter of the determination or decision appealed against is made.

At law, there cannot be a determination of an appeal without a hearing.

If the right to be heard on appeal were to be denied to the appellant on the ground that it had not applied for and obtained an interim determination suspending execution of the arbitral award, it would mean that the granting of an interim determination is obligatory when section 92E(3) of the Labour Act [Chapter 28:01] is a discretionary provision. A party may apply for an interim determination only when it realizes that there are chances of the determination or decision appealed against being executed pending determination of the appeal.

Section 92E(3) of the Labour Act is not limited to applications for suspension of determinations pending the outcome of the appeal. It is further not limited to interim determinations sought by a litigant against whom the determination or decision appealed against was made. A litigant in whose favour a determination was made, who is faced with an appeal against the determination or decision, may seek an interim determination.

If the court a quo's decision refusing to hear the appellant on the basis that it had not complied with the order was based on a sound principle of law, it would mean that the order would never be enforced and there would never be an appeal.

What is worse is that the court a quo dismissed the appeal instead of removing it from the roll.

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

In terms of section 92E(2) of the Labour Act [Chapter 28:01] an appeal shall not suspend the decision appealed against.

In interpreting the section, in CFI Retail (Pvt) Ltd v Manyika SC08-16…, MALABA DCJ…, observed that:

“Section 92E(2) provides, that, the noting of an appeal to the Labour Court against a determination or decision does not have the effect of suspending the operation of the determination or decision appealed against.

The purpose of the section is to provide for the effect of the noting of an appeal in terms of the Act on the enforcement of the determination or decision.

The provision is the reversal of the common law principle that the noting of an appeal against a judgment or decision of a tribunal or lower court suspends the execution of the judgment or decision pending the determination of an appeal.”

The same applies to appeals against the judgments or decisions of the Labour Court.

This is because there is no statutory provision for the suspension of its judgments or decisions pending appeal. The common law rule, that an appeal suspends the decision appealed against, only applies to superior courts of inherent jurisdiction.

In Founders Building Society v Mazula 2000 (1) ZLR 529 the court held that:

“The rule that an appeal suspends the operation of the decision appealed against applies only to superior courts. It does not apply to other tribunals unless the relevant statute so provides.”

In the absence of statutory authorisation, the common law rule that an appeal suspends the judgment or decision appealed against does not apply to any appeals in terms of the Labour Act....,.

In Williams & Anor v Msipha NO & Ors 2010 (2) ZLR 552 (S) this court held that:

“Once the Supreme Court is seized with a matter, it has inherent jurisdiction to control its process. That jurisdiction includes the power to control the process of the court, including the prevention of execution of a judgment pending the hearing of an application. It thus has the power to restrain the magistrate and the Attorney-General from relying on the magistrate's decision…,.”

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

This is an appeal against the whole judgment of the High Court (the court a quo) which ordered the removal of the three appellants from being signatories to the first respondent's Bank account with the second respondent.The appeal is opposed by the first respondent....,.BRIEF BACKGROUND OF THE CASEThe first respondent ...

This is an appeal against the whole judgment of the High Court (the court a quo) which ordered the removal of the three appellants from being signatories to the first respondent's Bank account with the second respondent.

The appeal is opposed by the first respondent....,.

BRIEF BACKGROUND OF THE CASE

The first respondent is a duly registered trade union representing the interests of employees in the Engineering, Iron and Steel sector (hereinafter referred to as “the Union”). The Union opened and maintains a Bank Account Number 6327897 with the second respondent Bank.

On the other hand, the first and second appellants were employed by the Union as its President and Secretary General, respectively, whereas the third appellant was its Trustee.

At the inception of the Bank account, the three appellants were appointed by Union resolution, dated 15 February 2019, as signatories to the said Bank account in their respective capacities as Union officials. The union then sought to remove the appellants from the panel of signatories to its Bank account on the basis that they had ceased to be union officials.

In its founding affidavit, deposed to by Ben Mambara, the Union averred, that, the first and second appellants were dismissed from employment following disciplinary proceedings on 22 April 2019 and 14 June 2019, respectively. The third appellant's trusteeship had expired through the effluxion of time.

The Union provided documentary evidence of the appellants dismissal from office.

The appellants however resisted their removals from being Bank account signatories on the basis that they were still Union officials.

They also challenged the authenticity of the Union resolution that authorised their removal as signatories to the Union bank account.

They challenged the legitimacy of Ben Mambara as the incumbent President of the Union and deponent to its founding affidavit.

In that vein, they refused to relinquish their respective mandates as signatories to the Union's bank accounts hence the application for their removal as Bank signatories in the court a quo.

The case has been the subject of various conflicting judgments in the court a quo which are now pending in this court on appeal.

On 23 January 2020, MUSHORE J issued a lengthy order in favour of the appellants under case number HC8111/19. The order basically declared that the three appellants were the legitimate office holders entitled to run the affairs of the first respondent without let or hindrance. On the other hand, the order declared Ben Mambara to be an illegitimate President of the first respondent.

In short, the judgment restored the status quo ante prior to the appellants dismissal from office.

The judgment is now a subject of appeal and it triggered a series of other appeals under appeal case numbers SC27/2020, SC32/2020, and SC34/2020.

Following the restoration of the status quo ante by MUSHORE J's order the respondents were aggrieved by the manner in which the appellants were handling the first respondent's funds.

Resultantly, the first respondent, represented by Ben Mambara, approached the court a quo under case number HC6844/19 seeking their removal from office as signatories of its Bank account.

The first respondent was successful in this respect.

The current appeal challenges the judgment on the basis that MUSHORE J's order had barred Ben Mambara and six others from acting as the Union's officers. The appellants claim to have been declared the legitimate signatories to the Bank account by the judgment which is still extant.

Notwithstanding the appeal, the first respondent sought leave of the court a quo to execute the order removing the appellants from being signatories to its Bank account under case number HC444/20.

CHIKOWERO J dismissed the application.

Another application, for the re-activation of the Union's bank account was dismissed by MUSITU J on 15 September 2020.

DETERMINATION OF THE COURT A QUO

The court a quo found, that, Ben Mambara had the requisite authority to represent the Union.

In coming to that conclusion, the learned judge a quo reasoned that the Union, being a legal persona, could only be represented by a natural person duly authorised thereto by a valid Union resolution.

Consequently, upon the removal of the first appellant from office as Union President, the Union, by resolution, dated 15 February 2019, replaced the first appellant with Ben Mambara. The resolution also conferred him with authority to represent the respondent in these proceedings.

The resolution reads in part:

“IT WAS RESOLVED:

2. That the President, Ben Mambara, shall sign documents and represent the Union and at NEC level.

SIGNED AT BULAWAYO this 15th February 2019.

Signed
……………………………………
(SECRETARY).”

Having found that Ben Mambara was properly appointed as the Union President and Union representative, the learned judge a quo proceeded to hold, that, the appellants were no longer Union officials. That being the case, they could no longer continue to be signatories to the Union's bank account.

On the basis of such finding, he proceeded to issue the following order:

“IT IS ORDERED THAT:

1. The first respondent be and is hereby ordered to delete or remove Shepard Mashingaidze, Wise Garira, and Bayayi Bayayi from being signatories of applicant's Account No.6327897 held with the 1st respondent.

2. The 2nd to 4th Respondents jointly and severally one paying the others to be absolved, pay costs at the legal practitioner and client scale.”

Counsel for the first respondent has not, however, sought to sustain and enforce the above order.

She has, in fact, implored the court to exercise its review jurisdiction under section 25 of the Supreme Court Act [Chapter 7:13] on account of perceived irregularity.

Wherefore she prayed for an order in the following terms:

“Having utilised the powers granted to it under section 25 of the Supreme Court Act [7:13], the following is ordered:

(a) Appeals under S-27-2020, S–32–2020, S–34-2020 and S222-20 be and are hereby set consolidated.

(b) The judgment of the High Court under HC8111/2019 granted by MUSHORE J on 23rd January 2020 be and is hereby set aside.

(c) The judgment of the High Court under HC6844/20 by TAGU J on 20th May 2020 be and is hereby set aside.

(d) The judgment of the High Court under HC444/20 granted by CHIKOWERO J on 8th July 2020 be and is hereby set aside.

(e) The judgment of the High Court under HC594/20 by MUSITHU J on 15th September 200 be and is hereby set aside.

(f) HC8111/19 is remitted back to the High Court for a hearing de novo before a different judge.

(g) Pending the determination of HC8111/19, 2nd Plaintiff, third plaintiff, 3rd-9th Defendants Plaintiff shall not take any steps that will interfere with the operations of the 1st Defendant.…,.

2. It is thus prayed.”

It is plain that the above relief sought is premised on the ill-conceived assumption that the court would grant the request for consolidation.

Paragraph 'g' of the draft order, however, seems to have some merits because it seeks to protect the Bank account from abuse by persons who are, for the time being, no longer its officials pending the final determination of the parties competing rights.

The Court, having dismissed the prayer for consolidation, paragraphs (a) to (f) of the first respondent's prayer cannot stand as they are premised on the envisaged consolidation which never materialised.

For that reason, the Court cannot interfere with appeals which are not before it.

I will therefore focus on the instant appeal before this Court.

No application for review can be brought in terms of section 25 of the Supreme Court Act. The court acts mero motu. Thus, counsel for the first respondent was merely raising the court's attention to exercise its discretion in this regard....,.

Paragraph (g) of the first respondent's prayer seeks to downgrade the order granted by the court a quo in HC8111/20 to a temporary interdict pending the determination of the main dispute on appeal.

There is need to interrogate that proposal on the merits.

It is common cause that the first and second appellants were employed by the Union. They were dismissed from employment following disciplinary proceedings. They have since appealed against their dismissal.

That much is not in dispute.

In terms of section 92E(2) of the Labour Act [Chapter 28:01] an appeal shall not suspend the decision appealed against.

In interpreting the section, in CFI Retail (Pvt) Ltd v Manyika SC08-16…, MALABA DCJ…, observed that:

“Section 92E(2) provides, that, the noting of an appeal to the Labour Court against a determination or decision does not have the effect of suspending the operation of the determination or decision appealed against.

The purpose of the section is to provide for the effect of the noting of an appeal in terms of the Act on the enforcement of the determination or decision.

The provision is the reversal of the common law principle that the noting of an appeal against a judgment or decision of a tribunal or lower court suspends the execution of the judgment or decision pending the determination of an appeal.”

The same applies to appeals against the judgments or decisions of the Labour Court.

This is because there is no statutory provision for the suspension of its judgments or decisions pending appeal. The common law rule, that an appeal suspends the decision appealed against, only applies to superior courts of inherent jurisdiction.

In Founders Building Society v Mazula 2000 (1) ZLR 529 the court held that:

“The rule that an appeal suspends the operation of the decision appealed against applies only to superior courts. It does not apply to other tribunals unless the relevant statute so provides.”

In the absence of statutory authorisation, the common law rule that an appeal suspends the judgment or decision appealed against does not apply to any appeals in terms of the Labour Act.

Had the appellants wanted to remain in office, despite their dismissal from employment, they should have successfully applied for an interim order staying execution pending appeal in terms of section 92E(3) of the Labour Act: see Greenland v Zimbabwe Community Health Intervention Research Project (ZICHIRE) HH93-13.

This they did not do.

What this means is that whether or not they have appealed against their dismissals in terms of the Labour Act, it does not matter whether or not the dismissals were correct at law. It is therefore an exercise in futility for both appellants, at this stage, to impugn or cast aspersions on the decision of the inferior tribunal that dismissed them from employment.

They stand dismissed from employment until their respective appeals have been reversed on appeal.

As regards the third appellant, it is common cause that he was appointed as Trustee by Union resolution and was removed from office by Union resolution on account of the expiration of his term of office.

Following his removal from office, he is de facto out of office.

The net result is that all the three appellants are de facto out of office as Union officials.

Although they have appealed against their removal from office, in the interim, the balance of convenience favours the respondents.

It is highly undesirable, and a recipe for disaster and irreparable harm, that a person dismissed from office, whether rightly or wrongly, continues to be a signatory to his/her principal's Bank account pending appeal.

Having come to the unassailable conclusion, that, the appellants are currently no longer officials of the first respondent, the court a quo cannot be faulted for holding, that, the appellants are unsuited to be signatories to the first respondent's Bank account as things stand....,.

HB38-15 : SIBUCO TRADING (PVT) LTD and EDITH KATAMBARARE vs LEADERS (PVT) LTD and MESSENGER OF COURT
Ruled By: MAKONESE J

The Magistrates Court Act [Chapter 7:10] provides, under section 40(3), as follows:“Where an appeal has been noted, the court may direct either that the judgment be carried into execution or that execution thereof shall be suspended pending the decision upon the appeal or application.”

HH11-06 : ZAKEYO MEREKI vs BELL INN (PVT) LTD and MICHAEL BELINSKY and OFFICER COMMANDING MASHONALAND WEST
Ruled By: KAMOCHA J

On 30 November 2005, the first respondent, Bell Inn (Pvt) Limited, was granted a spoliation order by GOWORA J in the following terms:“INTERIM RELIEF GRANTEDPending determination of this matter, applicant is granted the following relief:1. That 1st respondent is directed to remove himself and property and all persons holding through ...

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

“INTERIM RELIEF GRANTED

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

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

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

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

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

TERMS OF FINAL ORDER SOUGHT

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

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

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

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

The order that the court issued was as follows:

“TERMS OF RELIEF MADE

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

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

TERMS OF ORDER SOUGHT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“(2) No appeal shall lie –

(a)…,.

(b)…,.

(c)…,.

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

(i)…,.

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

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

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

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

That is clearly untenable.

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

It is trite, that, an appeal against the decision of a judicial body or quasi-judicial body that is not a superior court does not suspend the decision.It is also trite, that, an application for leave to appeal is not an appeal: Makarudze Anor v Bungu Ors ...

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

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

The 8th to 14th respondents (Berrington Zvanyanya, Samule Jijinka, P.Chikami, Z. Manara, A. Sibanda, J. Gwanyanya and Admore Hwarare) did not file any papers and their position is that they do not oppose the application, if the terms thereof are broadened to encapsulate their interests.

Mr K. Shamuyarira, a trade unionist representing the 15th respondent (Zimbabwe Federation of Trade Unions) is opposed to the application. He also did not file opposing papers.

The relief sought was amended at the eleventh hour.

The first to seventh respondents (Zimbabwe Sugar Milling Industry Workers Union, Godfrey Katerere, Brawl Chikandiwa, Tavonga Vandirai, Lucia Chirilele, Nokhutula Dube and Faster Gono) opposing papers were predicated upon the original relief sought.

The relief that is now sought reads as follows;

“1. INTERIM RELIEF SOUGHT

1.1 It is ordered that pending the final resolution of this matter either in the court of first instance or an appeal;

(a) The applicants are to deposit the 'Trade Union Dues' for the Zimbabwe Sugar Milling Industry Workers Union into the Master of the High Court Trust Account until the final resolution of SC518/19.

2. FINAL TERMS OF THE PROVISIONAL ORDER

2.1 The interim order is confirmed.

2.2 The 1st to 14th respondents shall pay costs of suit on an Attorney and client scale.”

The background of the matter can be traced back to a matter adjudicated upon by MAFUSIRE J in HMA38-19 referred to as Zvanyanya and Others v ZISMIWU and Others.

This matter was heard on 23 May 2019 and 27 June 2019 and the date of written reasons is 28 August 2019.

In HMA38-19 the applicants therein, who are members of a faction of a trade union, sought to have three respondents (namely 2nd, 3rd and 4th respondents, Godfrey Katerere, Brawl Chikandiwa and Tavonga Vandirai)) to be disqualified from membership of the trade union, and, flowing therefrom, to be disqualified from holding positions in the trade unions National Executive Committee. The applicants in HMA38-19 also sought an order to hold elections to choose members of the National Executive Committee and to hold annual general meetings in terms of its Constitution.

MAFUSIRE J resolved the issues by way of an order which reads as follows;

“(i) The second, third, and fourth respondents ceased being members of the first respondent upon the termination of their contracts of employment with the seventh respondent.

(ii) By reason of paragraph (i) above the second, third, and fourth respondents are hereby disqualified from holding any positions in the first respondents national executive committee.

(iii) The first respondent shall hold elections to choose members of the national executive committee within sixty (60) days of the date of this order, or within such other time frame as may be agreed upon.

(iv) The first respondent shall hold an annual general meeting in terms of its Constitution by no later than the 31st December 2019.

(v) The costs of this application shall be borne by the first, second, third, and fourth respondents, jointly and severally.”

The first to sixth respondents (Zimbabwe Sugar Milling Industry Workers Union, Godfrey Katerere, Brawl Chikandiwa, Tavonga Vandirai, Lucia Chirilele and Nokhutula Dube) have since appealed against the whole, final and definitive judgment under HMA38-19 to the Supreme Court. The appeal appears under cover of SC518/19.

It would appear that specifically because of the order under HMA38-19, and the developments thereafter, the acrimony between the parties intensified.

It may be necessary to identify the parties at this stage.

The first and second applicants (Triangle Ltd and Hippo Valley Estates Ltd) are the employers.

The first respondent (Zimbabwe Sugar Milling Industry Workers Union) is a registered trade union in terms of the laws of Zimbabwe.

The second to seventh respondents (Godfrey Katerere, Brawl Chikandiwa, Tavonga Vandirai, Lucia Chirilele, Nokhutula Dube and Faster Gono) are members of a faction of the first respondent while the eigth to fourteenth respondents (Berrington Zvanyanya, Samule Jijinka, P.Chikami, Z. Manara, A. Sibanda, J. Gwanyanya and Admore Hwarare) are members of the second faction.

The two factions are involved in a fierce battle to control the first respondent.

The fifteenth respondent (Zimbabwe Federation of Trade Unions) is ostensibly the mother body of the first respondent (Zimbabwe Sugar Milling Industry Workers Union) while the fourteenth respondent (Admore Hwarare) is cited in her official capacity.

The employer is, by virtue of the law, enjoined to transmit union dues to the first respondent.

The situation has been complicated by the fights and disagreements between the two factions set on wrestling and winning control over the first respondent.

The applicant is of the view, that, in order to safeguard the union dues they should be transmitted to a trustworthy and secure institution, namely, the Master of the High Court. This is to prevent the funds being misused or to stop or prevent the various warring factions seeking to apportion a slice of the cake to themselves....,.

On the merits, I should point out what has been pointed out elsewhere, that the parties are involved in various cases wherein their battles appear unabated.

The point is made, that, pursuant to the judgment in HMA38-19 there are only two (2) executive members of the first respondent remaining.

The question posed is: what will happen if there is a deadlock?

Counsel for the first to seventh respondents argues, that, upon the appeal being lodged, the position reverses to that before the appeal.

Counsel for the first to seventh respondents made further submissions as follows;

(i) The applicants are the ones manufacturing the confusion.

(ii) The applicants created the problem by participating in a meeting of 13 July 2019.

(iii) The applicants seek to cripple the first respondent and only want to place their favourite candidates in the first respondent's executive committee before they can transmit dues to the first respondent.

While there is clearly a tug of war between the parties, there is need for a resolution one way or the other. There may also be some truth as to the interests of the applicants in the matter.

But, is the best resolution to continue paying union dues to the first respondent in the current situation bedevilled by division and factual fighting?

While there may be other avenues or solutions to the problem, I am determining the matter with an eye on the relief sought.

Justification has been given of the need for a neutral party to receive the union dues pending the Supreme Court resolution of the appeal.

I find that the Trust Fund of the Master of the High Court is a secure account to deposit the union dues in the face of various efforts to control the first respondent.

To some extent, not having access to the dues by either faction may knock sense into the various factions to put their houses in order so that normality prevails.

I am mindful of counsel for the 8th to 14th respondents submissions on the merits. It appears, however, that he was principally not opposed to the application.

He had concerns on broadening the relief sought.

Mr Shamuyarira, a trade unionist representing the fifteenth respondent (Zimbabwe Federation of Trade Unions) pointed out that the first respondent is their affiliate.

I have to mention, that, that position is not shared by all – see Annexure 'K'…, of the 1st to 7th respondents notice of opposition.

In the circumstances, I find that the application has merit.

It is hereby ordered, that, the application be and is hereby granted in terms of the draft order.

HH57-14 : TAMUKA GIYA vs RIBI TIGER TRADING t/a TRIANLE TYRE
Ruled By: CHIGUMBA J

At the hearing of this matter, I granted the application for registration of an arbitral award with costs on an ordinary scale.

I gave brief reasons for the judgment, being of the view, that, the law that governs the question of whether the noting of an appeal against an arbitral award suspends the operation of the award is settled and that there was no evidence that the respondent could successfully rely on to challenge the registration applied for.

I have now been asked to provide detailed reasons for judgment. These are they.

The applicant sought the registration of a Labour arbitral award handed down in compulsory arbitration proceedings on 23 November 2012, by Ms E. Maganyani.

In terms of section 98(14) and (15) of the Labour Act, any party to whom an arbitral award relates may submit it for registration to a court of corresponding monetary jurisdiction.

The applicant was awarded various sums of money totalling US$19,125 plus interest thereon at the prescribed sum, calculated from the date of the arbitral award to the date of payment in full.

In his founding affidavit, he averred, that, as at the date of his application for registration of the arbitral award, 7 December 2012, the respondent had failed, refused or neglected to pay this sum. Registration of the arbitral award was sought for purposes of enforcement. The application was served on the respondent on 10 December 2012.

The respondent filed a notice of opposition on 19 December 2012. The grounds of opposition were;

(i) Firstly, that the applicant was never its employee, but a mere contractor;

(ii) Secondly, that there was need for oral evidence from both parties;

(iii) Thirdly, that no quantification was done by both parties.

(iv) The last reason for opposing the registration of the arbitral award was that the respondent had since appealed to the Labour Court against the decision of the arbitrator, on points of law.

The details of the appeal were attached to the notice of opposition.

The applicant filed his answering affidavit on 16 April 2013. He attached copies of both parties written submissions which had been submitted to the arbitrator, to counter the allegation by the respondent that it had been denied an opportunity to be heard by the arbitrator. He denied having been a contract worker, and reiterated that he fitted the statutory definition of employee, as set out in the Labour Act.

He averred, that, the respondent had deliberately chosen not to attend the date of the hearing by the arbitrator, despite being notified of it. He reiterated that the arbitrator was asked to determine the matter on the basis of the papers filed of record when the respondent failed to respond to the notice of set down of the hearing.

He alleged, that, the respondent's appeal to the Labour Court was fatally defective, being filed out of time, and alleged that the opposition to the registration of the arbitral award was an attempt by the respondent to frustrate him and delay in paying him his dues.

At the hearing of the matter, both parties abided by their heads of argument and had nothing of value to add.

The applicant submitted, that, the issue that the court ought to determine was whether the arbitral award, made on 23 November 2012, can be registered as an order of this court for purposes of enforcement.

I agree with that submission, and note, that, the issue is purely one of law....,.

Does the fact that an appeal has been noted against an arbitral award to the Labour Court preclude the High Court from registering the award for purposes of enforcement?

Section 98(14) of the Labour Act [Chapter 28: 01] provides for the registration of arbitral awards, to any court of corresponding monetary jurisdiction, for purpose of enforcement.

Section 92E of the Labour Act, which governs appeals to the Labour Court generally, provides that:

“92E Appeals to the Labour Court generally

(1) An appeal in terms of this Act may address the merits of the determination or decision appealed against.

(2) An appeal in terms of subsection (1) shall not have the effect of suspending the determination or decision appealed against.

(3) Pending the determination of an appeal, the Labour Court may make such interim determination in the matter as the justice of the case requires.”

It is trite, therefore, that, an appeal to the Labour Court, against the merits of a decision, does not suspend the operation of the decision appealed against: see Gaylord Baudi v Kenmark Builders (Private) Limited HH04-12; Elvis Ndluvu v Higher Learning Centre HB86-10; Net-One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275; DHL International Ltd v Clive Madzikanda HH51-10; Benson Samudzimu v Dairibord Holdings HH204-10.

This is expressly provided for in section 92E of the Labour Act.

There is a school of thought that adheres to the supposition, that, an arbitral award, being tantamount to an award by a tribunal, or an inferior court, cannot be suspended by the noting of an appeal for the simple reason, that, at common law, only decisions of superior courts, courts of inherent jurisdiction, are automatically suspended by the noting of an appeal.

The simplicity of this argument appeals to me.

It would appear, that, the Labour Act, in section 92E, sought to reinforce that common law position.

However, all is not lost, as the Labour Act provides a pressure valve, in the form of a medley of interlocutory remedies that can be employed pending determination of an appeal.

Section 92E(3) of the Labour Act provides, that, a Labour Court, may, pending the determination of the appeal, make interim orders that meet the justice of the case. Stay of execution pending appeal; suspension of the arbitral award, are, but some of the interim remedies that may be sought before the Labour Court pending determination of an appeal.

HH286-11 : ERICSON MVUDUDU vs AGRICULTURAL AND DEVELOPMENT AUTHORITY (ARDA)
Ruled By: BHUNU J

Van WINSEN, The Civil Practice of the Superior Courts in South Africa, 3rd Ed, at p643, states that:

“At common law, the execution of all judgments is suspended upon the noting of an appeal. The foundation of this rule is to prevent irreparable damage from being done to the intending appellant, whether such damage be done by a levy under a writ or by the execution of the judgment in any other manner appropriate to the nature of the judgment appealed from; but, by statutory instrument or rule of court, the trial court is usually empowered, upon application being made to it, to exercise a discretion in ordering execution of a judgment appealed against subject to security.”…,.

The learned author goes on to clarify the apparent confusion introduced by MUNGWIRA J in the case of Founders Building Society v Mazuka (1) ZLR 526 531 in which she quoted GILLESPIE J with approval in the case of Vengesai & Ors v Zimbabwe Glass Industries 1998 ZLR 593 (H)…, suggesting that the common law rule, that an appeal suspends the decision appealed against, is limited to superior courts of unlimited jurisdiction.

In Vengesai & Ors v Zimbabwe Glass Industries 1998 ZLR 593 (H), GILLESPIE J had this to say:

“In stating the common law, CORBETT JA referred to the automatic stay of execution upon the noting of appeal as a general rule of practice. That is, not a rule of law, but a long established practice regarded as generally binding, subject to the court's discretion. The concept of a rule of practice is peculiarly appropriate only to superior courts of inherent jurisdiction. Any other court, tribunal, or authority is a creature of statute and bound by the four corners of its enabling legislation. Moreover, the authorities cited by CORBETT JA are authorities relevant to appeals from superior courts.”

At p719, the learned author, however, goes on to say the rule applies to all adjudicating authorities without exception including the Magistrate's Court. He then states that:

“When a Magistrate's Court makes no order in terms of the above provisions, the ordinary common law rules govern the matter, and execution is automatically suspended by the noting of an appeal.”...,.

In the case of Phiri & Ors v Industrial Steel and Pipe (Pvt) Ltd 1996 (1) ZLR 45 (S), the Supreme Court re-affirmed the common law position to the effect, that, in the absence of statutory provisions to the contrary, an appeal to the Labour Tribunal, now the Labour Court, suspends the decision appealed against.

HH987-15 : NEHANDA HOUSING CO-OPERATIVE SOCIETY and OTHERS vs SIMBA MOYO and OTHERS
Ruled By: MAFUSIRE J

The first applicant was a duly registered co-operative society. The parties to this matter were two factions of its membership.

The one faction comprised applicants 2 to 6 (Never Kowo, Keri Mhute, Andrew Marauka, Charles Matapo and Jotamu Nkala).

The other was respondents 1 to 5 (Simba Moyo, Enesia Gutu, Elizabeth Gutu, Lloyd Hamamuti and Austin Hove).

Both sides were fighting for the control of the first applicant (Nehanda Housing Co-operative Society).

Both claimed to be the legitimate management committee of the first applicant. Both claimed to have been duly installed in office following due process.

For applicants 2 to 6, their claim to office was an alleged election allegedly won by them in September 2014. For the respondents, their claim to office was an alleged vote of no confidence against applicants 2 to 6 allegedly passed by the majority of the first applicant's members in April 2015.

The case before me was the return date of a provisional order issued by this court [per TAGU J] on 27 June 2015. It read [words in parenthesis added to somewhat straighten it out]:

“TERMS OF [FINAL] ORDER SOUGHT

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

1. That 1st to 5th respondents be and are hereby interdicted, restrained, and barred from conducting themselves as the managing committee of the 1st applicant pending the finalization of the Supreme [Court] Case No. SC267/15.

2. The 1st to 5th respondents jointly and severally with [the] one paying [and] the other[s] to be absolved be and are hereby ordered to pay [the] cost[s] of this application [on an] attorney and client scale.

INTERIM RELIEF GRANTED

1. Pending the finalization of this provisional order, the 1st to 5th respondents be and are hereby interdicted, barred, and restrained from holding any meetings for the purposes of running or deliberating on the management/or affairs of the applicants.”

During argument, it was apparent to me, that, the fight had nothing to do with the interests of the first applicant per se. It had everything to do with the protection of individual interests and the preservation of egos.

The interests of the first applicant seemed to have been consigned to the periphery.

Even though both sides purported to canvass the requirements for an interdict, namely, a prima facie or clear right; a well-grounded apprehension of an irreparable harm; an absence of an alternative remedy; and the balance of convenience should the interdict be granted or refused [see Setlogelo v Setlogelo 1914 AD 221…,.; Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 [1] ZLR 289 [SC]…,; and Universal Merchant Bank Zimbabwe Ltd v The Zimbabwe Independent & Anor 2000 [1] ZLR 234 [H]…,.] it was clear to me, that, this was a mere perfunctory exercise.

I wondered how, if the focus of the legal contest was really the first applicant, either of the parties could legitimately claim a right that could be harmed irreparably, with no other alternative remedy and how the balance of convenience could be said to favour either of them were I to confirm or discharge the provisional order.

It was just not adding up.

But, the protagonists having come to court, the outcome would have to be either win or lose, for one or other of them.

However, before reaching that point of finality, I suggested an alternative course of action, which, if acceptable and followed through, could produce an outcome that should be acceptable or binding to all.

It was this.

Could both sides consider going back and hold a fresh election within a reasonable period of time, say ten days from the date of any directive that I might give, and the winners of such an election be accepted as the legitimate management committee of the first applicant?

The modalities of running such an election could always be worked out later on if the suggestion was acceptable in principle.

At first, my suggestion was, through counsel, enthusiastically accepted by both sides. So, the matter was adjourned to another day to allow for further consultations and the crafting of an order by consent.

On resumption, a further postponement was sought and granted for the purposes of putting final touches to the Deed of Settlement and the draft consent order.

However, as a precautionary measure, I insisted on a deadline for the filing of the draft order by consent failing which I would hand down my decision on the merits.

I told the parties that I had come to a decision on the merits but that I would much rather defer it to their Deed of Settlement.

It is always preferable for litigants to settle their disputes amicably rather than through a court order which neither party might find palatable.

Thus, it was agreed, that, unless the Deed of Settlement was filed by 4 December 2015, I would proceed to hand down my judgment.

However, well before that date, I received communication to the effect, that, there was no chance of an out of court settlement as the parties were wide apart from each other, and that, therefore, they would be most happy to receive my judgment on the merits.

So, this here is my judgment on the merits.

I found the conduct of the applicants unacceptable. I am referring to the applicants 2 to 5 (Never Kowo, Keri Mhute, Andrew Marauka and Charles Matapo).

The first applicant, the soul for which both sides were fighting to control, had nothing to do with this wrangle.

The applicants conduct, that I found unacceptable, was that they were guilty of forum shopping and material non-disclosure.

The provisional order by TAGU J, on 27 June 2015, the confirmation for which was before me, was the second in a space of twenty-two or so days.

On 4 May 2015, this court, per MATANDA-MOYO J, had dismissed the same application.

The applicants did not disclose this in their founding papers. So, the learned TAGU J must obviously have been unaware of this information when he granted the provisional order.

I was told, that, the respondents were by then not represented. They had filed no opposing papers. They only did so afterwards when they were opposing the confirmation.

In my view, a party that conceals material information must be unworthy of the protection or assistance of the court. If you seek relief, you must take the court into your confidence, laying bare all the relevant facts on the matter - even those that you may perceive to be adverse to the relief that you seek....,.

The applicants justification for bringing the same application before another judge, TAGU J, in a space of less than a month was that, as I understood it, and in my own words, they had appealed to the Supreme Court against the decision of MATANDA-MOYO J.

It was argued, that, in accordance with the common law rule that an appeal suspends the decision appealed against, the judgment of Her Ladyship had automatically been suspended and that the status quo ante obtained.

Counsel for the applicants submitted, that, the pendency of an appeal finds a prima facie right. For support, he referred to the case of Timothy Sean White v Zenzo Ntuliki HB147-15.

The applicants position was, that, unless the respondents were barred, they would continue to purport to run the affairs of the first applicant, yet, the judgment of MATANDA-MOYO J had been suspended by the appeal. Unless they obtained leave to execute, the argument concluded, the respondents had no business purporting to be the management committee of the first applicant.

The applicants argument on this point was manifestly scrambled.

The respondents claim to office was not by virtue of the judgment of MATANDA-MOYO J. It was by virtue of the vote of no confidence on 25 April 2015. The learned judge, TAGU J, did not decide the issue. Neither have I.

It was simply not before us.

I accept, that, in paragraph 7 of their notice of opposition, the respondents stated unequivocally that they had been voted into office following the passing of the vote of no confidence. I am also aware, that, the applicants purported to refute that claim in their answering affidavit. But, they merely made a fleeting reference to it. Through the fourth applicant, Andrew Marauka, here is how the applicants responded:

“4. AD PARA 7–12

The purported mandate of the 1st to 5th respondents was later revoked at a meeting of 1st Respondent's [sic] members: see Annexure A; and, this position remains the true position to date and unchallenged clearly putting pad [sic] to the issue of whether or not the Respondents have a mandate to run 1st Applicant's affairs.”

But, there was no Annexure A attached. There was nothing more said about the so-called meeting of “…, the 1st Respondent's members…,.” that allegedly had revoked the respondents mandate and had put paid to the respondents ambition to control the affairs of the first applicant.

But, most importantly, an application stands or falls by its founding papers.

In Bayat v Hansa 1955 [3] SA 547 [N] the principle was summarised as follows…,.:

“[A]n applicant for relief must [save in exceptional circumstances] make his case and produce all the evidence he desires to use in support of it, in his affidavits filed with the notice of motion, whether he is moving ex parte or on notice to the respondent, and is not permitted to supplement it in his replying affidavits [the purpose of which is to reply to averments made by the respondent in his answering affidavits], still less make a new case in his replying affidavits.”

It is quite clear, that, the applicants in this case had no interest in the court prying into the propriety of the vote of no confidence.

The case of Timothy Sean White v Zenzo Ntuliki HB147-15 that counsel for the applicants referred to was irrelevant.

The issue there was quite different. Therein, the respondents had wanted to execute a certain order of the Magistrate's Court despite an appeal that was pending against it. This court barred them pending the determination of the appeal.

In casu, the respondents were not at all trying to execute any court order.

Even if one accepts, that, the operation of the judgment of MATANDA-MOYO J was automatically suspended by the appeal against it, and that the status quo ante obtained, the question is: what was this status quo ante?

Counsel for the applicants conceded, quite correctly, that, it was the vote of no confidence.

When the parties appeared before Her Ladyship, the vote of no confidence was the one obtaining. Evidently, the applicants did not wish to have it adjudicated upon. They concealed it from the court. However, the court picked it up, and, on the basis that it existed, but that it had been deliberately concealed, the urgent chamber application was dismissed.

So the appeal, and the resultant suspension of Her Ladyship's judgment, had no practical effect on the status quo ante.

On this basis alone, namely, that, even if it were to be accepted that one's election into the management committee of a co-operative society is a right accruing to oneself, in one's personal capacity, for the purposes of an interdict, I would dismiss the application because no such right has been established.

HMT34-20 : MARILYN BAXTER vs FUNGISAI CHIROCHANGU and RONALD CHIROCHANGU
Ruled By: MWAYERA J and MUZENDA J

This is an appeal brought by the appellant against the whole of the judgement issued by the Provincial Magistrate sitting at Mutare on the 3rd of January 2020.

The appellant spelt out the grounds of appeal as follows:

“1. The Honourable court below erred and grossly misdirected itself in law in ordering appellant's eviction from her home without considering all the relevant circumstances as contemplated in section 74 of the Constitution of Zimbabwe Amendment (No.20 Act 2013).

2. The court below erred and grossly misdirected itself in granting summary judgement over an illiquid claim for holding over damages.

3. The court a quo grossly erred and misdirected itself in law in ordering appellant to pay holding over damage in a non landlord-tenant dispute.

4. The Honourable inferior court grossly erred and misdirected itself in fact and law in ordering appellant to pay holding over damages with effect from 1 July 2019 in the sum of ZW$10,000 per month when appellant had alleged facts which, if pleaded and accepted at the trial, were sufficient to establish a defence.”

The appellant sought a relief to have the application for summary judgment to be dismissed with costs and that the appeal be upheld with costs on attorney-client scale.

The two respondents, who are husband and wife, purchased certain piece of land situated in the District of Umtali called Stand 86 Murambi Gardens of Umtali Township lands measuring 3,450 square metres for RTGS$450,000 through a Deputy Sheriff's public auction.

The property was previously owned by the now appellant.

The two were confirmed purchasers of the property on 5 March 2019. They are now title holders under Deed of Transfer No.3520/19.

The respondents then issued summons against the appellant in the Magistrate Court seeking her eviction from the property, at the same time claiming holding over damages in the sum of $10,000 per month from 1 July 2019 until her vacation, and costs of suit.

The appellant entered appearance to defend. The respondents filed an application for summary judgement, and, on 3 January 2020, the court a quo granted the application.

On 6 January 2020, the appellant filed the present appeal.

The respondents proceeded to file a further application, before the trial court a quo, for leave to vacate pending appeal and they obtained that order on 17 February 2020.

SC04-22 : HOMELINK (PRIVATE) LIMITED vs CLEVER MAPUTSENI
Ruled By: MAVANGIRA JA, UCHENA JA and CHITAKUNYE JA

This is an appeal against the whole judgment of the High Court handed down on 8 September 2020, declaring “that payment by the applicant (respondent) of the sum of RTGS$235,620=99 together with interest at the prescribed lending rate calculated from 19 February 2020 to the date of final payment shall ...

PRELIMINARY

At the commencement of proceedings, counsel for the respondent submitted that the matter was now moot as the respondent had since paid off what was due to the appellant.

This was disputed by counsel for the appellant, who submitted that there is no merit in the preliminary point taken by the respondent, and that this would become evident when facts which occurred outside of the record are taken into perspective.

He highlighted, that, the judgment being appealed against was handed down on 8 September 2020 and the parties uplifted it on 11 September 2020. On 15 September 2020, the respondent paid into the appellant's account the sum of ZWL$251,059=29. On 17 September 2020, the appellant filed a notice of appeal. This was done well within the dies induciae within which to appeal which was to expire on 29 September 2020.

On 22 September 2020, the respondent requested the appellant to pay security for its costs of appeal. The parties failed to agree on the quantum and the matter was, in terms of the Rules, referred to the Registrar. Before the Registrar set the matter down, on 13 October 2020, the appellant repaid the sum of $251,059=29 into the respondent's legal practitioners account. On the following day, 14 October 2020, the respondent returned the money to the appellant and also threatened litigation should the appellant make further attempts to return the funds. On 22 October 2020, the parties appeared before the Registrar for quantification of security of costs.

A determination was issued on the same day for payment of $100,000 to be made within 30 days of 22 October 2020. The said amount was paid on 12 November 2020 as security for costs of this appeal.

It was counsel for the appellant's submission, that, the above facts amply demonstrate that the contention
of mootness cannot, by any stretch of argument, be supported. It cannot therefore hold. He submitted, that, the issue of whether the loan is to be settled on a one-to-one rate in Zimbabwe dollars or it is to be settled in United States dollars remains a live matter between the parties.

THE APPLICABLE LAW AND ANALYSIS

In Movement for Democratic Change & 2 Ors v Elias Mashavira & 3 Ors SC56-20 PATEL JA…, stated as follows:

“The principles governing mootness are relatively well established. The first is that a court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy between the parties. Thus, if the dispute becomes academic by reason of changed circumstances, the case becomes moot and the jurisdiction of the court is no longer sustainable: Khupe & Anor v Parliament of Zimbabwe & Ors CC20-19 at p7. To put it differently, the controversy must be existing or live and not purely hypothetical: Koko v Escom Holdings Soc Limited [2018] ZALCJHB 76 at para 21; National Coalition for Gay and Lesbian Equality & Ors v Minister of Home Affairs 2000 (2) SA 1 (CC) at para 21 (footnote 18).

The second principle is that mootness does not constitute an absolute bar to the justiciability of the matter.

The court retains its discretion to hear a moot case where it is in the interests of justice to do so: Khupe's case, supra at p13; J.T. Publishing (Pty) Ltd v Minister of Safety and Security 1997 (3) SA 514 (CC) at 525A-B. This may arise where the court's determination will have some practical effect, either on the parties concerned or on others, and the nature and extent of such practical effect, or because of the importance or complexity of the issues involved: Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) at para 11.

In short, the court may exercise its discretion to hear a moot issue by reason of its significance, practical or otherwise, and the need for an authoritative determination on that issue in the interests of justice.”

In casu, it seems to me to be beyond doubt, that, the alleged to and fro movement of money in payment and refund between the parties is a manifestation of their opposing interpretations of the law as will appear later in this judgment. There is no agreed position between them. The alleged payment in settlement of the respondent's indebtedness has not been accepted because the appellant is of the view, that, the repayments by the respondent must be in United States dollars and not in RTGS dollars.

The matter, the subject of this appeal, cannot, in the circumstances, be said to be moot because of the existence of a live dispute between the parties that needs to be resolved by the court.

SC47-22 : ISMAIL LUNAT vs MOHAMMED PATEL
Ruled By: CHATUKUTA JA

This is an opposed chamber application for condonation of non-compliance with the rules and extension of time in which to appeal in terms of Rule 43(1) of the Supreme Court Rules 2018 (the rules).The application was filed on 6 October 2021.The applicant intends to appeal against the whole judgment of ...

SC49-22 : NGWARU MASANZA (Informa pauperis) and PRISCILLA ZUNGUZA (Informa pauperis) vs LUKE RWAFA and PLACXEDAS RWAFA and MESSENGER OF COURT
Ruled By: CHIWESHE JA

In this urgent chamber application, the applicants seek a provisional order couched as follows:“TERMS OF THE FINAL ORDER SOUGHTThat you show cause to this Honourable Court why a final order should not be made in the following terms:(1) That a stay of execution of the order given in CHN286/19 be ...

In this urgent chamber application, the applicants seek a provisional order couched as follows:

“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:

(1) That a stay of execution of the order given in CHN286/19 be granted pending application in the High Court for condonation for late filing of leave to appeal.

(2) In the event that this matter is opposed, that the Respondents be and are hereby ordered to pay costs.

INTERIM RELIEF GRANTED

Pending finalisation of this matter, an interim order is hereby granted in the following terms:

IT IS ORDERED THAT:

1. This application succeeds and a stay of execution of the judgment in the Chinhoyi Magistrates Court, under case number CHN286/19, be and is hereby granted to the applicants pending application in the High Court for condonation for late filing of leave to appeal to the Supreme Court.”

FACTUAL BACKGROUND

In early 2000, at the height of the land reform programme, the applicants and many others moved to occupy Heydon Farm on the outskirts of Harare. They proceeded to build family homes and to engage in agricultural activities.

Subsequently, the whole of Heydon Farm was compulsorily acquired by the State and a notice to that effect was published in the Government Gazette in terms of the Land Acquisition Act [Chapter 20:10].

Contrary to their expectations, none of the occupiers were favoured with either offer letters, permits, or lease agreements which documents would have regularised their stay at Heydon Farm.

Instead, part of the farm was subdivided into residential Stands with title deeds and sold to various persons.

This formalised part of the farm is referred to as Heydon Township.

The respondents, who are husband and wife, bought one of these residential stands, described as Stand 2915 Haydon Township, measuring 2193 square metres, and received title.

It is common cause, that, at the time of sale and transfer the applicants were resident at what became the respondents residential Stand. It is also common cause that the applicants have no legal basis to occupy Heydon Farm in general or the respondents Stand in particular.

In order to assert their proprietary rights, the respondents approached the Magistrates Court at Chinhoyi seeking an eviction order against the applicants. Their application succeeded and an order for the eviction of the applicants from Stand 2915 Haydon Township was granted under case number CHN286/19.

Aggrieved with that outcome, the applicants noted an appeal with the High Court (the court a quo). The court a quo dismissed the appeal and confirmed the eviction order granted by the Magistrates Court.

The respondents then noted an appeal with this Court under case number SC277/20 which appeal suspended the order of the court a quo.

Undeterred, the respondents filed an application for leave to execute pending appeal. The application was granted by CHITAPI J under case number HC3097/20.

The applicants noted an appeal against that judgment under case number SC441/20. The appeal was struck off the roll on the grounds that leave to appeal ought to have been sought in the court a quo.

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Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Suspension of Orders Pending Appeal iro Approach

HH192-10 : AEPROMM RESOURCES (PVT) LTD vs SAMUEL MAZOWE and PATTERSON TIMBA and STEVENSON TIMBA and MAGGIE DITIMA and TONDESAI KAPONDO
Ruled By: MTSHIYA J

HH842-19 : BARIADIE INVESTMENTS (PVT) LTD vs PUWAYI CHIUTSI and TENDAI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. and ELLIOT ROGERS
Ruled By: CHITAPI J

HMT12-21 : EMMANUEL RENSBURG vs KENNEDY NGIRAZI and NAN JIANG MINE (PVT) LTD and MEGAMANIA AUCTIONEERS and THE HIGH COURT SHERIFF (N.O.)
Ruled By: MUZENDA J

SC112-21 : OLIVER BWITITI vs STANLEY FARMS (PRIVATE) (LIMITED) and OTHERS
Ruled By: MWAYERA JA

SC08-16 : CFI RETAIL (PRIVATE) LIMITED vs ERIC MANYIKA
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA JA

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

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

HB38-15 : SIBUCO TRADING (PVT) LTD and EDITH KATAMBARARE vs LEADERS (PVT) LTD and MESSENGER OF COURT
Ruled By: MAKONESE J

HH11-06 : ZAKEYO MEREKI vs BELL INN (PVT) LTD and MICHAEL BELINSKY and OFFICER COMMANDING MASHONALAND WEST
Ruled By: KAMOCHA J

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

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

HH57-14 : TAMUKA GIYA vs RIBI TIGER TRADING t/a TRIANLE TYRE
Ruled By: CHIGUMBA J

HH286-11 : ERICSON MVUDUDU vs AGRICULTURAL AND DEVELOPMENT AUTHORITY (ARDA)
Ruled By: BHUNU J

HH987-15 : NEHANDA HOUSING CO-OPERATIVE SOCIETY and OTHERS vs SIMBA MOYO and OTHERS
Ruled By: MAFUSIRE J

HMT34-20 : MARILYN BAXTER vs FUNGISAI CHIROCHANGU and RONALD CHIROCHANGU
Ruled By: MWAYERA J and MUZENDA J

SC04-22 : HOMELINK (PRIVATE) LIMITED vs CLEVER MAPUTSENI
Ruled By: MAVANGIRA JA, UCHENA JA and CHITAKUNYE JA

SC47-22 : ISMAIL LUNAT vs MOHAMMED PATEL
Ruled By: CHATUKUTA JA

SC49-22 : NGWARU MASANZA (Informa pauperis) and PRISCILLA ZUNGUZA (Informa pauperis) vs LUKE RWAFA and PLACXEDAS RWAFA and MESSENGER OF COURT
Ruled By: CHIWESHE JA

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Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Suspension of Orders Pending Appeal iro Approach

HH192-10 : AEPROMM RESOURCES (PVT) LTD vs SAMUEL MAZOWE and PATTERSON TIMBA and STEVENSON TIMBA and MAGGIE DITIMA and TONDESAI KAPONDO Ruled By: MTSHIYA J

HH842-19 : BARIADIE INVESTMENTS (PVT) LTD vs PUWAYI CHIUTSI and TENDAI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. and ELLIOT ROGERS Ruled By: CHITAPI J

HMT12-21 : EMMANUEL RENSBURG vs KENNEDY NGIRAZI and NAN JIANG MINE (PVT) LTD and MEGAMANIA AUCTIONEERS and THE HIGH COURT SHERIFF (N.O.) Ruled By: MUZENDA J

SC112-21 : OLIVER BWITITI vs STANLEY FARMS (PRIVATE) (LIMITED) and OTHERS Ruled By: MWAYERA JA

SC08-16 : CFI RETAIL (PRIVATE) LIMITED vs ERIC MANYIKA Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA JA

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

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

HB38-15 : SIBUCO TRADING (PVT) LTD and EDITH KATAMBARARE vs LEADERS (PVT) LTD and MESSENGER OF COURT Ruled By: MAKONESE J

HH11-06 : ZAKEYO MEREKI vs BELL INN (PVT) LTD and MICHAEL BELINSKY and OFFICER COMMANDING MASHONALAND WEST Ruled By: KAMOCHA J

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

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

HH57-14 : TAMUKA GIYA vs RIBI TIGER TRADING t/a TRIANLE TYRE Ruled By: CHIGUMBA J

HH286-11 : ERICSON MVUDUDU vs AGRICULTURAL AND DEVELOPMENT AUTHORITY (ARDA) Ruled By: BHUNU J

HH987-15 : NEHANDA HOUSING CO-OPERATIVE SOCIETY and OTHERS vs SIMBA MOYO and OTHERS Ruled By: MAFUSIRE J

HMT34-20 : MARILYN BAXTER vs FUNGISAI CHIROCHANGU and RONALD CHIROCHANGU Ruled By: MWAYERA J and MUZENDA J

SC04-22 : HOMELINK (PRIVATE) LIMITED vs CLEVER MAPUTSENI Ruled By: MAVANGIRA JA, UCHENA JA and CHITAKUNYE JA

SC47-22 : ISMAIL LUNAT vs MOHAMMED PATEL Ruled By: CHATUKUTA JA

SC49-22 : NGWARU MASANZA (Informa pauperis) and PRISCILLA ZUNGUZA (Informa pauperis) vs LUKE RWAFA and PLACXEDAS RWAFA and MESSENGER OF COURT Ruled By: CHIWESHE JA

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Law Portal
Zimbabwe

HH192-10 : AEPROMM RESOURCES (PVT) LTD vs SAMUEL MAZOWE and PATTERSON TIMBA and STEVENSON TIMBA and MAGGIE DITIMA and TONDESAI KAPONDO
Ruled By: MTSHIYA J

HH842-19 : BARIADIE INVESTMENTS (PVT) LTD vs PUWAYI CHIUTSI and TENDAI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. and ELLIOT ROGERS
Ruled By: CHITAPI J

HMT12-21 : EMMANUEL RENSBURG vs KENNEDY NGIRAZI and NAN JIANG MINE (PVT) LTD and MEGAMANIA AUCTIONEERS and THE HIGH COURT SHERIFF (N.O.)
Ruled By: MUZENDA J

SC112-21 : OLIVER BWITITI vs STANLEY FARMS (PRIVATE) (LIMITED) and OTHERS
Ruled By: MWAYERA JA

SC08-16 : CFI RETAIL (PRIVATE) LIMITED vs ERIC MANYIKA
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA JA

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

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

HB38-15 : SIBUCO TRADING (PVT) LTD and EDITH KATAMBARARE vs LEADERS (PVT) LTD and MESSENGER OF COURT
Ruled By: MAKONESE J

HH11-06 : ZAKEYO MEREKI vs BELL INN (PVT) LTD and MICHAEL BELINSKY and OFFICER COMMANDING MASHONALAND WEST
Ruled By: KAMOCHA J

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

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

HH57-14 : TAMUKA GIYA vs RIBI TIGER TRADING t/a TRIANLE TYRE
Ruled By: CHIGUMBA J

HH286-11 : ERICSON MVUDUDU vs AGRICULTURAL AND DEVELOPMENT AUTHORITY (ARDA)
Ruled By: BHUNU J

HH987-15 : NEHANDA HOUSING CO-OPERATIVE SOCIETY and OTHERS vs SIMBA MOYO and OTHERS
Ruled By: MAFUSIRE J

HMT34-20 : MARILYN BAXTER vs FUNGISAI CHIROCHANGU and RONALD CHIROCHANGU
Ruled By: MWAYERA J and MUZENDA J

SC04-22 : HOMELINK (PRIVATE) LIMITED vs CLEVER MAPUTSENI
Ruled By: MAVANGIRA JA, UCHENA JA and CHITAKUNYE JA

SC47-22 : ISMAIL LUNAT vs MOHAMMED PATEL
Ruled By: CHATUKUTA JA

SC49-22 : NGWARU MASANZA (Informa pauperis) and PRISCILLA ZUNGUZA (Informa pauperis) vs LUKE RWAFA and PLACXEDAS RWAFA and MESSENGER OF COURT
Ruled By: CHIWESHE JA