Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Grounds of Appeal and Notice of Appeal iro Approach

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SC18-18 : SHORAI NZARA and AAROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN vs CECILIA KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

It must be noted that the respondents' counsel only raised the issue of vast and substantial improvements on the property from the Bar on appeal….,. Therefore, the claim for improvements, not having been properly raised…, cannot be taken into consideration by this court.

HH801-15 : ENNOCENT T. MAPOSA vs CHRISTOPHER MATABUKA
Ruled By: CHITAKUNYE J and MWAYERA J

Counsel for the respondent contended that the supposed grounds of appeal pertained to procedural matters and such should have been brought as a review if the appellant felt the presiding magistrate had not conducted himself properly. In the first two grounds, the appellant alleges that he was denied the opportunity to file an answering affidavit and so ...

SC31-09 : LLOYD GUWA and HAZEL CLARIS KUMIRE vs WILLOUGHBYS INVESTMENTS (PVT) LTD
Ruled By: GARWE JA

In this application, the applicants seek an order declaring the Notice of Appeal filed by the respondent with the Registrar of the Supreme Court to be null and void. The facts giving rise to this application are common cause. On 29 September 2008, the applicants filed a court application in the High Court. The respondent in this matter ...

In this application, the applicants seek an order declaring the Notice of Appeal filed by the respondent with the Registrar of the Supreme Court to be null and void.

The facts giving rise to this application are common cause.

On 29 September 2008, the applicants filed a court application in the High Court. The respondent in this matter was also the respondent in that matter. The application was heard by the High Court on 21 January 2009 and judgment delivered the following day i.e. 22 January 2009. On 17 February 2009, well outside the fifteen day period within which an appeal can be noted, the applicants filed with the Registrar of the Supreme Court a Notice of Appeal. The Notice of Appeal did not state whether the appeal was against the whole or part only of the judgment appealed against.

The applicants have now applied to me, in chambers, for an order declaring the notice to be null and void. The respondent has, in its papers, opposed the relief sought.

At the hearing of this matter, in chambers, the respondent conceded that the Notice of Appeal did not comply with the Rules of this Court and was therefore null and void.

There can be no doubt that the Notice of Appeal is null and void. Firstly, as has been observed, it did not specify whether the whole or part only of the judgment was being appealed against. Secondly, the Notice of Appeal was filed out of time and no condonation for the late filing of the Notice of Appeal or for an extension of time within which to appeal had been sought and granted.

In Jensen v Avavalos 1993 (1) ZLR 216 this court had occasion to consider the effect of non-compliance with, inter alia, Rule 29(C) of the Rules of this Court which require that a Notice of Appeal shall state whether the whole or part only of the judgment is appealed against. At p220 of the judgment, KORSAH JA remarked that:

“…, a Notice of Appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad, and, unless the court is prepared to grant an application for condonation of the defect and to allow a proper notice of appeal to be filed, the appeal must be struck off the roll with costs: De Jager v Diner & Anor 1957 (3) SA 567 (A) at 574C-D.

In Hattingh v Pienaar 1977 (2) SA 182 (O) 182 at 183, KLOPPER JP held that a fatally defective compliance with the rules regarding the filing of appeals cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant rule.

With this view I most respectfully agree; for if the Notice of Appeal is incurably bad, then, to borrow the words of LORD DENNING in McFoy v United Africa Co Ltd [1961] 3 All ER 1169 (PC) at 11721, 'every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.'”

Clearly, therefore, the Notice of Appeal filed with the Registrar is a nullity. There is therefore no Notice of Appeal before the Supreme Court.

The interesting point of law that now arises is whether in these circumstances a Judge of this Court has the jurisdiction to declare the Notice of Appeal null and void.

During submissions, counsel for the applicants, indicated that the Registrar of Deeds had intimated that unless an order to the contrary was received, he would continue to regard the Notice of Appeal as valid. For this reason, the applicants have made this chamber application seeking a declaratur that the Notice of Appeal is null and void.

Whilst the applicants may well be entitled to such a declaration, I am of the view that the Supreme Court does not have the jurisdiction to make such a declaration in the first instance.

In terms of section 80 of the Constitution of Zimbabwe both the Supreme Court and High Court shall have jurisdiction and powers as may be conferred upon them by or in terms of the Constitution or any Act of Parliament.

The Supreme Court Act [Chapter 7:13] has, in sections 9 and 21, provided that the Supreme Court shall have jurisdiction to hear and determine an appeal in any criminal or civil case from the judgment of any court or tribunal and that unless provision to the contrary is made in any other enactment, the Supreme Court shall hear and determine and exercise powers in respect of an appeal in accordance with the Act.

It is clear from these provisions that the Supreme Court is a creature of statute and that it derives its jurisdiction specifically from the Supreme Court Act and other legislative provisions. In other words, although it is the highest court in the land, its powers are regulated strictly by statute. It is not a Court of first instance. It has no original jurisdiction but only appellate since it was created by statute purely as a Court of Appeal.

Nowhere in the Supreme Court Act nor in the Rules of the Court is the Supreme Court given jurisdiction to entertain, in the first instance, an application for a declaratur.

Whilst in terms of section 25 of the Supreme Court Act [Chapter 7:13] every Judge of the Supreme Court shall have the same review power and authority as are vested in the High Court to review proceedings, no person has the right to institute any review in the first instance before the Supreme Court.

The High Court, however, is different from the Supreme Court in that it has, in terms of the High Court Act [Chapter 7:06] full original civil and criminal jurisdiction over all persons and over all matters within Zimbabwe subject only to limitations placed either by the Act itself or by any other law.

In terms of section 14 of the High Court Act, the High Court may inquire into and determine any existing, future or contingent right or obligation, including the granting of a declaratur.

In terms of jurisdiction, the distinction between the Supreme Court and the High Court may be summarized as follows;

Except where specifically empowered, the Supreme Court has no jurisdiction to hear or determine any matter and may only exercise powers in respect of an appeal in terms of the provisions of the Supreme Court Act [Chapter 7:13] and Rules of the Court. The High Court, on the other hand, has the jurisdiction to hear all matters except where limitations are imposed by law. In other words, whilst the Supreme Court may do nothing that the law does not permit, the High Court may do anything that the law does not forbid.

The necessary corollary to the above is that a Judge of the Supreme Court has no jurisdiction, in the first instance, to hear and determine an application for a declaration of nullity in respect of an appeal that is not before it. In respect of matters before it, the Supreme Court does have inherent jurisdiction to make orders.

In the result, therefore, whilst there may well be substance to the application filed by the applicants, the application cannot succeed. It has been filed in the wrong Court….,.

In the result, I make the following order -

1. The application be and is hereby dismissed.

HHH724-15 : PETER CHIKUMBA vs THE STATE
Ruled By: MAFUSIRE J

Counsel for the State said the applicant's amended grounds of appeal were improper because they were not a mere amendment, but rather a completely new ground of appeal. He said to “amend” is to make minor improvements to a document or proposal. He argued that what the applicant had purported to do was to make ...

The applicant's amended grounds of appeal, filed of record a day before the second bail application was launched, read as follows:

“TAKE NOTICE that appellant applies to amend the grounds of appeal contained in the notice and grounds of appeal filed on the 21^st of April 2015 by adding to the grounds appearing in the said notice.”…,.

I find that “add” is a synonym of “amend”. Other synonyms are, “alter”, “adjust”, “modify”, “revise”, “change”, “improve”, “correct”, etc.

The applicant was not substituting a new ground of appeal in place of the old ones as implied by the State. In his application, and throughout the hearing, he stressed that he still stood by his old grounds of appeal and implored the court to reconsider his prospects of success in the light of the additional ground of appeal which he felt lent a different complexion altogether to his situation….,.

The applicant was bringing…, a new point, which, in my view, was both a point of fact and a point of law.

In its objection, the State relied on section 6 of the Supreme Court (Magistrates Courts)(Criminal Appeals) Rules. That provision reads:

“6. Amendment of notice of appeal

(1) The Attorney-General or an appellant…, may amend his notice of appeal by lodging a notice in duplicate with the Registrar setting out clearly and specifically the amendment to the grounds of appeal -

(a) In the case of an appeal against conviction or conviction and sentence, as soon as possible and in any event not later than twenty days after the noting of an appeal;

(b) In the case of an appeal against sentence only, as soon as possible and in any event not later than ten days after the noting of the appeal.

(2) A copy of the notice of appeal lodged in terms of subrule (1) shall, at the same time as the lodging of such notice, be served on the other party to the appeal.

(3) An amendment to a notice of appeal in terms of subrule (1) shall not delay the preparation and lodging with the Registrar of the record of the case to which the appeal relates.”

Counsel for the State's major concern was the potential violation of the time limits as set out in section 6 above. Counsel for the applicant countered by invoking section 5 of the same Rules. It reads:

“5. Departure from the Rules

A judge of the Supreme Court or the High Court, or the Supreme Court of (sic) the High Court, may direct a departure from these rules in any way where this is required in the interests of justice, and, additionally or alternatively, may give such directions on matters of practice or procedure as may appear to him to be just and expedient.”…,.

Section 6 of the Supreme Court (Magistrates Courts)(Criminal Appeals) Rules (the Appeals regulations) does not distinguish between a substantial or wholesome amendment from a minor amendment….,.

I felt I did not have to concern myself too seriously with whether the applicant's amended grounds of appeal were proper or not, or whether I could grant condonation or not. For me, those were aspects for determination by the appeal judges.

Before me was a second application for bail pending appeal based on alleged changed circumstances.

HHH231-17 : PETER CHIKUMBA and GRACE NYARADZAYI PFUMBIDZAI vs THE STATE
Ruled By: HUNGWE J and MUSHORE J

The appellants were charged, tried and convicted in the Magistrates Court of one count each of Criminal Abuse of Duty as defined in section 174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]….,. The first appellant raised 19 grounds against conviction and 5 grounds against sentence in his initial notice of appeal which was filed ...

The first appellant raised 19 grounds against conviction and 5 grounds against sentence in his initial notice of appeal which was filed with this court on 21 April 2015. The second appellant raised 7 grounds against conviction and 4 grounds against sentence in her initial notice of appeal which was filed on 16 April 2015.

On 1 September 2015, roughly five months after the initial notices of appeal were filed, the appellants both filed notices of amendments to their grounds of appeal. The first appellant announced his intention to add a further 4 grounds to his 19 initial grounds of appeal against conviction. The second appellant sought to add a further 3 grounds to her initial 7 grounds of appeal against conviction….,.

On the day of the appeal hearing, counsel for both appellants' got up to introduce their new notices of appeal and to move for their amendments to be adopted.

The respondent's counsel objected to the amendments being allowed to be introduced and raised four (4) reasons why his objection ought to be upheld;

1. The first point he raised in objection was that that both the appellant's grounds of appeal in their original notices of appeal were not in compliance with Rule 22 subrule 1 of the Supreme Court (Magistrates Courts) (Criminal Appeals) Rules S.I.504 of 1979.

2. The second point was that the first appellant's Heads of Argument are not compliant with Rule 238(1) of the High Court Rules, 1971 in that they are long-winded and convoluted and did not serve the purpose for which they were intended. The respondent's counsel suggested that the appellants ought to withdraw the appeal from the roll and ask for an extension of time within which to prepare proper heads of argument.

3. The third point was the amended grounds for both counsel were filed out of time and that neither of the appellants had made the requisite application for condonation. Further, he submitted that because both of the appellants' original notices of appeal grounds constitute a nullity and did not comply with the rules, the amended grounds could not be canvassed or relied upon.

4. The fourth point was that the appellants were estopped from raising the point of law which was being raised through the amendment, on the basis that it was being canvassed for the first time on appeal….,.

The grounds of appeal…, consist of an attack on findings of fact rather than raising points of law as is required when taking a decision up on appeal. To that end they are fatally flawed.

The second appellant's notice of appeal is also fatally flawed. Her notice of appeal is crafted in the format of Heads of Argument complete with references to case law as one would expect from Heads of Argument. Second, the appellant's original notice of appeal also fails to identify errors on points of law, but, instead, as is the case with the first appellant, in it, she makes numerous of attacks on the court a quo's findings of fact….,.

Counsel for the first appellant suggested that the measure for competently settled grounds of appeal is that if they are 'concise' then they're sound. The authority for his proposition was a Supreme Court judgment in the matter of Econet Wireless (Pvt) Ltd v Trustco Mobile (Proprietary) Ltd and Anor SC43-13.

However, his submission is not applicable to the current set of circumstances because in Econet Wireless (Pvt) Ltd v Trustco Mobile (Proprietary) Ltd and Anor SC43-13 the court was focused on the rules for Civil Appeals and not Criminal Appeals. The requirement in criminal appeals is that the grounds be outlined in a 'clear and specific' manner in terms of Rule 18 of the Rules of the Supreme Court, 1964 and Rule 22 of the Supreme Court (Magistrates' Court) (Criminal Appeals) Rules, 1979 as opposed for the requirement that the grounds be framed in a 'concise' manner per Rule 32(1) of the Rules of the Supreme Court, 1964 which applies to Civil Appeals….,.

That being the case, in respect of both the appellants, there were no appeals before the court on the hearing date….,.

The manner of appealing is governed by a number of rules which are very specific in guiding the parties as to what is and what isn't permissible.

Rule 6 of the Supreme Court (Magistrate Court) (Criminal Appeals) Rules, 1979 reads as follows:-

“6. Amendment of notice

(1) The Attorney-General or an appellant as defined in Part V, VI, VII or VIII may amend his notice of appeal by lodging a notice in duplicate with the Registrar setting out clearly and specifically the amendment to the grounds of appeal -

(a) In the case of an appeal against conviction and sentence, as soon as possible and in any event not later than twenty days after the noting of an appeal;

(b) In the case of an appeal against sentence only…,.”

In the present matter, the notice of amendment was handed up at the hearing of the appeal so the court and the respondent only laid eyes on it for the first time on the hearing date on 28 March 2016, some eleven months after the original notice was filed; and thus well beyond the time limits mentioned in Rule 6 subrule 1(a) of the Supreme Court (Magistrate Court) (Criminal Appeals) Rules, 1979. The notices of amendment were neither preceded by nor accompanied with any applications for condonation. Instead, both the appellants counsel attempted to make them part of their original notices of appeal.

The rules are peremptory….,.

Neither of the appellants sought condonation for the late filing of their amended grounds, and, on that basis alone, the notices of amendments themselves are not properly before the court.

The appellants submitted that it is competent to apply for condonation at the hearing of the matter.

However, the question is whether or not a fatally defective notice of appeal can be amended.

The legal position is that if the original notices of appeal are defective, then there is no appeal before the court. If there is no appeal before the court, then the matter ends there. It is not possible to amend or to seek condonation of a fatally defective notice of appeal. In Hama v National Railways 1996 (1) ZLR 664 (SC) the Supreme Court found that if a notice of appeal is fatally defective, then it is incapable of being amended for being incurably bad.

Counsel for the first appellant sought to persuade us that the decision in Hama v National Railways 1996 (1) ZLR 664 (SC) supports his contention that he can competently apply for condonation.

However, Hama v National Railways 1996 (1) ZLR 664 (SC) is distinguishable from the present matter in that in Hama v National Railways 1996 (1) ZLR 664 (SC) the party who moved the amendment withdrew its first notice of appeal thus presenting the amended notice of appeal as a belated notice of appeal as opposed to an amendment of the original notice of appeal. The Supreme Court, in accepting that the original notice of appeal had been withdrawn, then regarded the amended notice of appeal as being the only notice of appeal, and, accordingly, treated the notice of amendment as a belated notice of appeal for which condonation could be sought.

In casu, the appellants are asking us to cause the original grounds cited in the initial notice of appeal to be added to by the new grounds because they are not abandoning their original notices of appeal. As I mentioned earlier, the initial notices of appeal filed by the appellants are fatally flawed. In asking us to allow them to add new grounds to a fatally flawed notice of appeal, we find simply that the appellants are not entitled to add to something which is incurably bad.

Furthermore, it is important to recognise that in Hama v National Railways 1996 (1) ZLR 664 (SC), the court was applying its mind to the civil rules of the High Court and the various portions dealing with condonation....,.

The Heads of Argument filed by both the appellants do not comply with the clear and strict provisions requirement laid out in Rule 238(1)(a) of the High Court Rules, 1971 both in form and content.

They are voluminous - and not in a good way. They are rambling narratives which give a factual point of view the way that the appellants would have wanted the court a quo to analyse the facts. Both the appellants' heads of argument are of no assistance to the court. They are not clear. No points of law are made neither do they cite any authorities.

Accordingly, in terms of Rule 238(2) of the High Court Rules, 1971 the appellants are deemed to be barred.

HHH60-12 : CHRISTOPHER NYAMUKAPA vs THE STATE
Ruled By: ZIMBA-DUBE J and BHUNU J

The respondent's counsel…, submitted that the appellant's grounds of appeal are vague and too generalized….,. The appellant's counsel, in his response contended that the State has not suffered any prejudice as the grounds are amplified by the appellant's heads of argument….,. The procedure governing filing of notices of appeal is a procedure separate from that for heads of arguments. ...

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CC06-19 : BONNYVIEW ESTATE (PRIVATE) LIMITED vs ZIMBABWE PLATINUM MINE (PRIVATE) LIMITED and MINISTRY OF LANDS AND RURAL RESETTLEMENT
Ruled By: MALABA CJ and MAVANGIRA JCC and BHUNU JCC

It is settled law that a point of law can be raised for the first time on appeal if it involves no unfairness or prejudice to the party against whom it is raised. See Kufa v The President of the Republic of Zimbabwe Ors CC22-17. However, in this case, the position that the ...

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CC22-17 : MOVEN KUFA and VOICE FOR DEMOCRACY TRUST vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE and THE PRIME MINISTER OF THE REPUBLIC OF ZIMBABWE and OTHERS
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JA, GARWE JA, GOWORA JA and OMERJEE AJA

During oral submissions before this court, counsel for the appellants submitted that it was not permissible, on the part of the respondents, to raise the issue of locus standi, having abandoned the same before the court a quo. Asked by the court to state precisely in terms of what provision of the Constitution the appellants had approached the court, he told the court that they had done so pursuant to the provisions of section 18(1)(a) of the Constitution and that this section, to some extent, restores the actio popularis.

Counsel for the first and second respondents, on the other hand, submitted that the concession made by the Attorney–General in the court a quo was not binding as it was on a question of law and not fact. He argued that, where a party concedes a point of law, that concession can be withdrawn if, in fact, it is not properly made. The issue of locus standi, being one of law, can be revisited notwithstanding its abandonment a quo by the Attorney General….,.

A POINT OF LAW; WHETHER IT CAN BE RE-INVOKED ON APPEAL ONCE ABANDONED OR CONCEDED A QUO

The law is clear that once a fact is conceded, no evidence needs to be called to prove such fact. The law is also settled that once a concession on an issue of fact is made, such concession cannot be withdrawn, except on application and good cause shown. This position is so well established in our law that no authority need be cited in its support.

A concession on an issue of law is however different. It is not binding if it is not properly or correctly made.

The rationale for this position is obvious. A court cannot be bound by a concession on the law if such concession is not correct in terms of the law. This principle is based on public policy. Public policy demands that a court must be enabled to make a correct determination of the issues before it based on the correct law applicable and not on some incorrect concession made by one of the parties. It is for this reason that a question of law may be advanced, even for the first time on appeal, if its consideration involves no unfairness to the party against whom it is raised. Where it is not clear that the point has been fully investigated, the court will not, as a general rule, allow a new point of law to be taken for the first time on appeal. The court will however allow such a point where the point is canvassed in the pleadings, there is no unfairness to the other party, the facts are common cause, and there is no basis for considering that other or further evidence would have been produced that could have had an effect on the point in question.

In De Beers Holding v Commissioner for Inland Revenue 1986 (1) S.A. 8.33 CORBETT JA considered the effect of a concession on a question of law not supported by the undisputed facts and which was wrongly made. The learned judge concluded…,:

“Mr. Welsh, although contending that the concession was rightly made, did not suggest that it stemmed from anything other than an erroneous appreciation of the legal position. He therefore could not suggest that this court was precluded from dealing with the matter on the basis of the undisputed facts. Accordingly, there is no reason why this court should not give what it considers to be the right decision on the facts….,.”

In Paddock Motors (Pty) Ltd v Igesund 1976 (3) S.A 16 (AD), three questions of law, based on agreed facts, had been stated for determination by the court a quo. The first question of law was abandoned by the plaintiff at the commencement of the hearing. The question of law abandoned was basic to the determination of the other two questions of law. On appeal, the plaintiff was permitted to revive the first question of law. At page 23 G-H, JANSEN JA remarked:

“Were the raising now of the contention that the 'condition precedent' had been fulfilled, on the facts set out in the Special Case, to be treated merely as the raising of a new point on appeal, there can be little doubt that this court would have been bound to consider it and adjudicate accordingly. However, the appellant, through its counsel, expressly abandoned the contention in the court a quo and the question arises whether this alters the situation. It is difficult to see how it can. The facts are agreed and beyond dispute. Is this Court then to be bound by an order given by the court a quo, even if wrong on those facts, as a result of an abandonment of a legal contention flowing from a mistaken view of the law? I think not. If it were so, the intolerable situation envisaged in Van Rensburg v Van Rensburg, supra, would be created and this Court prevented from performing its 'duty to ascertain whether the court below came to a correct conclusion on the case submitted to it.'”

At page 24 B-G, the learned judge continued:-

“If e.g. the parties were to overlook a question of law arising from the facts agreed upon, a question fundamental to the issues they have discerned and stated, the court could hardly be bound to ignore the fundamental problem and only decide the secondary and dependent issues actually mentioned in the special case. This would be a fruitless exercise, divorced from reality, and may lead to a wrong decision. It follows that the court cannot be confined, in all circumstances, to the issues of law explicitly raised in the special case. This does not mean that the court will always be free to enlarge the issues, whether mero motu or at the request of a party. The question of prejudice may arise, e.g., where a party would not have agreed on material facts, or on only those stated in the special case, had he realised that other legal issues, not stated in the special case, were involved.

In the present instance, such considerations do not arise as the question the appellant now seeks to raise was actually part of the special case when the facts were agreed upon…,. Moreover, the contention as to the fulfilment of the 'condition precedent' turns on the proper construction of the contract, which is also basic to the adjudication upon the other two points of law.

It may again be mentioned that the Court a quo did not merely decide the question of the exceptio doli, but proceeded to give judgment against the appellant on the claim (judgment a quo at p. 299H). If the contention the appellant now seeks to revive is good, and the other two bad, it means that this court, by refusing to investigate it, would be upholding a wrong order. In all circumstances, it seems necessary for a proper adjudication to allow the appellant to revive its contention as based on the first question of law stated in the special case. The effect on costs if the appellant were now to succeed by virtue of this contention, need not be considered at this stage.”

In B.S.N.L. and Others v M/S Subash Chandra Karchan and Another 2006 (8) SCC 279, a decision of the Supreme Court of India, dated 13 September 2006, the Court remarked:

“A concession made by such an advocate is binding on the party whom he represents. If it is binding on the parties, again, subject to just exceptions, they cannot at a later stage resile therefrom. The matter may, however, be different if a concession is made on a question of law. A wrong concession on legal question may not be binding upon his client.” (sic)

In (1) Minister of Local Government, Rural and Urban Development N.O. (2) Chairperson of the Disciplinary Committee, City of Harare, Munamato Mutevedzi N.O. v Silas Machetu (2) Maxwell Katsande (3) Paul Gorekore (4) Johnson Zaranyika SC34-12, this Court made much the same remark. It stated…,.:

“…,. The court erred in interpreting the evidence before the second appellant…,. It also erred in relying on a concession which was improperly made by counsel for the appellants…,.”

The position must therefore be accepted as settled in this jurisdiction that a wrong concession on a point of law is neither binding on the party that made it nor on the court hearing the matter.

THE OBJECTION IN LIMINE A QUO

In his objection in limine, the Attorney General, inter alia, drew attention to the allegation by the appellants, as applicants, that the right they were relying on was the protection of the law guarantee enshrined in section 18(9) of the Constitution. It was the Attorney General's contention that section 18(9) does not itself confer the kind of right the appellants maintained they were possessed of in the application. He further submitted that section 18(9) merely conferred the right on a party to be afforded a fair hearing within a reasonable time by an independent and impartial court established by the law in the determination of the existence or extent of his civil rights or obligations. Therefore, so he argued, the right under section 18(9), not requiring adjudication, the applicants could not be possessed of a right protected in terms of section 18(9) of the former Constitution and therefore had no locus standi.

As already noted, this preliminary point, together with others, were abandoned in heads of argument filed before the hearing of the matter.

ISSUES THAT ARISE FROM THE PRELIMINARY POINTS TAKEN BOTH A QUO AND IN THIS COURT

It is clear that the basis upon which the appellants approached the court a quo remained a live issue. Firstly, they unequivocally stated, under oath, that they were approaching the court in terms of section 18(9) of the Constitution. Secondly, the question remained whether or not they had locus standi to seek the relief prayed for, particularly in the case of the second appellant.

Although the Attorney General abandoned the preliminary points, the issues nevertheless remained live and, in my view, should nevertheless have been dealt with by the court a quo. The court should have asked itself how it was possible, considering the relief the appellants were seeking, for the appellants to approach the court in terms of section 18(9) of the former Constitution. Further, the court should have asked itself whether it was sufficient for the first appellant to approach the court on the basis merely that he was a citizen of Zimbabwe and a taxpayer. The court should have gone further to determine whether a Trust, such as the second appellant, could properly launch an application for relief under section 18(9) of the former Constitution. It is clear that the court a quo failed to deal with these vital issues.

In general, where a lower court fails to determine issues placed before it, the approach of an Appellate Court is to remit the matter so that these issues can be properly determined.

On the facts of this case, it would serve no real purpose to remit the matter for these matters to be adjudicated upon by the court a quo. The issues are of law and this court can allow the raising of such issues for the first time on appeal. In this case, the issues were raised a quo but abandoned and then raised again before this court. I see no prejudice or impropriety in this regard. In Paddock Motors (Pty) Ltd v Igesund 1976 (3) S.A 16 (AD) the South African Appellate Division allowed the raising of issues previously abandoned in the court a quo.

Appealed
SC14-19 : JUDITH ISHEMUNYORO (NEE MANDIDEWA) vs ANTHONY ISHEMUNYORO and TYNSERVE DISTRIBUTORS (PVT) LTD and THE REGISTRAR OF DEEDS and THE SHERIFF FOR ZIMBABWE
Ruled By: GWAUNZA JA, HLATSHWAYO JA and ZIYAMBI AJA

A reading of the papers on record shows that nowhere in her founding papers was the allegation made by the appellant that the second respondent had unilaterally pledged his half share of the property as security for the debt that he had incurred - and without the appellant's consent. The appellant's grounds of appeal in ...

SC20-19 : GRACE SHURO vs MOLLY CHIURAISE and CITY OF MASVINGO
Ruled By: GARWE JA, HLATSHWAYO JA and BHUNU JA

The various grounds of appeal are repetitious. The same issues are regurgitated through the use of different terminology. This is not acceptable. Various decisions of this Court have stressed the need for grounds of appeal to be formulated with clarity and precision. The same decisions have stressed the need to avoid unnecessary repetition and prolixity. In my view ...

SC26-19 : MWAMI MULIZI SIAMSIPA N.O. vs KUNGANDA FARM (PRIVATE) LIMITED
Ruled By: PATEL JA, BHUNU JA and BERE JA

I have concluded that the first two grounds of appeal raise issues that were determinable aliunde and are therefore not properly before this Court....,.The third and only remaining ground of appeal impugns the reliance placed by the court a quo on the provisions of section 276(2) of the Companies Act [Chapter 24:03]. It ...

SC37-17 : TM SUPERMARKETS (PVT) LTD vs AVONDALE HOLDINGS (PVT) LTD and SHERIFF OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ

The applicant, in its founding affidavit, alleged that the application was for stay of execution pending the appeal noted under case number SC255/14. There is an apparent defect on the notice of appeal. It does not state the court which gave the judgment appealed against. This is a fatal defect incapable of amendment. The authorities are clear ...

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HH261-17 : NJZ RESOURCES (HK) LIMITED vs ANDREW ZINYEMBA AND 18 OTHERS
Ruled By: MWAYERA J and MUNANGATI-MANONGWA J

I find the grounds to be unnecessarily long, repetitive and not concise and precise as is demanded by the Rules. Most of the grounds could simply have been crystalised. It seems that a change of lawyers by the appellant brought about realization that the grounds of appeal were unnecessarily extensive. The new lawyers crystallised the grounds of ...

SC31-13 : LAWSIGN NYARUMBU vs SANDVIK MINING AND CONSTRUCTION ZIMBABWE (PVT) LTD
Ruled By: ZIYAMBI JA, GARWE JA and PATEL AJA

After hearing argument from counsel, we allowed the appeal in this matter and made the following order:1. The appeal is allowed with costs.2. The judgment of the Labour Court is hereby set aside and substituted as follows:(i) The appeal is dismissed with costs.(ii) The appellant shall reinstate the respondent to ...

After hearing argument from counsel, we allowed the appeal in this matter and made the following order:

1. The appeal is allowed with costs.

2. The judgment of the Labour Court is hereby set aside and substituted as follows:

(i) The appeal is dismissed with costs.

(ii) The appellant shall reinstate the respondent to his former position without loss of salary and benefits or pay damages to the respondent in lieu of reinstatement.

We further indicated that the reasons for our decision would follow in due course. These are the reasons.

BACKGROUND

The appellant was employed by the respondent as a Stores Clerk. On 12 February 2009, he issued a hydraulic pump to another employee without recording the issuance in the Stores Book. After the disappearance of the pump, the co-employee was convicted of theft. The appellant himself was also charged but later acquitted.

Following internal disciplinary proceedings, the appellant was dismissed.

The matter was referred to the relevant National Employment Council and then to an arbitrator. The latter referred the case back to the respondent's Disciplinary Committee to rehear the matter. The Disciplinary Committee found the appellant guilty of theft and that decision was confirmed by the respondent's Appeals Committee.

On appeal to the National Employment Council, it was ordered that the appellant be reinstated.

The respondent then appealed to the Labour Court on the ground that the appellant should have been found guilty of theft.

The Labour Court found the appellant not guilty of theft on the basis of what it regarded as purely circumstantial evidence. Instead, it found him guilty of negligence because of his apparent admission to that effect in the proceedings before the Disciplinary Committee. The court took the view that negligence was a competent verdict on a charge of theft. It also found that the appellant's negligence had resulted in prejudice to the respondent, and, therefore, constituted a grave offence warranting dismissal for a first offence. The court set aside the conviction of theft and substituted a conviction of negligent performance of duty resulting in loss to the employer. It then confirmed the penalty of dismissal.

The appellant now seeks an order for his reinstatement or damages in lieu thereof. His grounds of appeal are threefold:

(i) That the applicable Code of Conduct only permits dismissal for negligence following two prior warnings;

(ii) That the court's finding of negligence was not the subject of appeal; and

(iii) That negligence is not a competent verdict on a charge of theft.

I shall deal, firstly, with the last ground of appeal.

NEGLIGENCE AS COMPETENT VERDICT ON CHARGE OF THEFT

As a general rule, the standard of proof required in disciplinary matters is that on a balance of probabilities. This is obviously not as stringent as the standard required in criminal cases.

By the same token, a disciplinary tribunal is endowed with a greater measure of flexibility than that expected before a court of criminal law. Nevertheless, there are certain basic principles that neither a court nor tribunal can depart from.

One of those principles is that the offence that the accused is found guilty of must be commensurable with the offence that he has been charged with. In other words, both offences must bear some legally cognisable affinity with one another.

In our criminal law, as is probably the case in any other legal system, the essential elements of theft and offences based on negligence do not share any meaningful convergence. They are sui generis and fundamentally distinct offences. In my view, the same must apply to the treatment of these offences qua acts of misconduct in disciplinary matters.

This is clearly recognised in the Employment Code of Conduct applicable in the present matter – as prescribed in the Collective Bargaining Agreement: Engineering and Iron and Steel Industry (S.I.301 of 1996), amending the principal agreement contained in Statutory Instrument 282 of 1990, S.I.282 of 1990.

The Schedule to the Code of Conduct sets out four broad categories of misconduct and defines the diverse offences constituting misconduct. Negligence is identified as an act of misconduct under item B(4)(b), while the specific offence of theft is captured under item D(c).

They are clearly separate and distinct acts of misconduct.

The appellant in casu was charged with theft as defined in item D(c). The Labour Court found him guilty of negligence. That finding of negligence was clearly not a competent verdict on the particular charge of theft preferred against the appellant. In this regard, the court patently ignored the specific provisions of the Code of Conduct that should have guided its decision in the matter.

In short, as was conceded by counsel for the respondent, in his curious but not inappropriate reference to a malapropism having been committed, the court's finding was grossly erroneous....,.

POWER TO SUBSTITUTE DECISION OR ORDER

Section 89 of the Labour Act [Chapter 28:01] regulates the functions, powers, and jurisdiction of the Labour Court. Section 89(2), in its relevant portion, provides that:

“In the exercise of its functions, the Labour Court may –

(a) In the case of an appeal –

(i) Conduct a hearing into the matter or decide it on the record; or

(ii) Confirm, vary, reverse or set aside the decision, order or action that is appealed against, or substitute its own decision or order.”

It is axiomatic, in criminal as well as disciplinary proceedings, that a person cannot be found guilty of an offence that has not been preferred against him, unless that offence is a competent verdict on the offence originally charged.

The reason for this is obvious, viz: The person accused must be made aware of the case against him in order to enable him to effectively prepare his defence.

In this context, notwithstanding the provisions of section 89(2)(a)(ii) of the Labour Act, the Labour Court cannot, mero motu, substitute its own charge or make a finding of guilt on an entirely different offence.

Any such action would constitute a blatant miscarriage of justice: see Zimasco (Pvt) Ltd v Chizema 2007 (2) ZLR (S)…,.

Furthermore, sitting as a Court of Appeal, it can only deal with the matter on the basis of the grounds of appeal that have been raised by the appellant: see Chikanda v United Touring Company Limited SC07-99…,.

In the instant matter, it is not in dispute that the appellant was never at any stage charged with negligence. Moreover, the grounds of appeal before the Labour Court were confined to theft, without any reference to negligence, and negligence was not canvassed by the parties in the proceedings before it.

What the court did, by finding the appellant guilty of negligence, was to usurp the functions of the respondent's Disciplinary and Appeals Committees.

It follows that the court fundamentally erred in its finding of negligence, as that was an issue which was clearly not the subject of the appeal before it.

SC38-19 : PIA NGWARU vs FIRST MUTUAL HEALTH COMPANY (PRIVATE) LIMITED
Ruled By: GARWE JA, GUVAVA JA and MAVANGIRA JA

As held in Songono v Minister of Law Order 1996 (4) SA 384 (ECD)…, the purpose of grounds of appeal is to inform the respondent of the case that he has to meet and to notify the court of the points to be raised.

HH487-15 : MR AND MRS CHIMUZA vs OSWALD DZEPASI
Ruled By: MWAYERA J and TAGU J

The appellant approached the court expressing disagreement with the Chinhoyi Magistrate Court judgement wherein the court ordered the appellants to be evicted from House Number 14317 Brundish, Chinhoyi. It is apparent from the record of proceedings that the appellants and the respondent, at different times and for different purchase prices, purchased the house in question from the ...

HHH303-15 : LYSON ZIYADHUMA vs THE STATE
Ruled By: HUNGWE J and BERE J

This appeal is against both conviction and sentence. In his notice of appeal the appellant has laid basically three grounds of appeal, viz; (i)…,. (ii)…,. (iii) Finally, it was contended that the court a quo misdirected itself by failing to give reasons for the conviction of the appellant….,. It might well be true that at the time the appellant's counsel perused the court record ...

SC57-19 : THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST vs ROBSON MAKONI
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

On 21 December 1999 at the 12km peg along the Rusape to Nyanga road a horrific collision involving the respondent and an employee of the appellant occurred. The former sustained frightful injuries. Sadly, the appellant's employee succumbed to injuries occasioned from the collision. The following facts are common cause. The respondent sued for and was awarded damages by the ...

The following facts are common cause.

The respondent sued for and was awarded damages by the High Court on 23 January 2008. The damages so awarded were the following:

(i) BP (Botswana Pula) 63,750 for the cost of replacement of a vehicle;

(ii) BP83,717=90 in respect of medical expenses.

(iii) BP1,800,000 for loss of income.

(iv) Z$3,500 towing charges.

(v) BP12,000,000 car hire charges.

(vi) Z$2,000,000 shock, pain and suffering.

(vii) Z$850,000 disability damages.

(viii) Z$1,000,000 future medical expenses.

The appellant was dissatisfied with the judgment and appealed to this Court against the finding of vicarious liability as well as the amounts awarded in Botswana Pula (BP). There was no appeal against the amounts denominated in the Zimbabwe dollar. On 28 February 2012 this Court, in the case of The Cold Chain (Pvt) Ltd v Robson Makoni SC09-12, issued an order in the following terms:

“IT IS ORDERED THAT:

1. The application to adduce further evidence is dismissed with costs.

2. The appeal against the finding of vicarious liability is dismissed.

3. The appeals in respect of the value of the replacement motor vehicle, vehicle hire charges, and lost income are allowed and the order of the court a quo is altered in the following respects:

(i) In paragraph (a), Botswana Pula 40,000 is substituted for BP63,000;

(ii) In paragraph (c), Botswana Pula 616,200 is substituted for BP1,800,000;

(iii) In paragraph (e), Botswana Pula 6,000 is substituted for BP12,000,000.

4. There will be no order as to costs of appeal.

It is common cause that the appellant paid the amounts denominated in Botswana Pula. In respect of the other sums it tendered payment in Zimbabwe dollar. The respondent rejected the tender. He contended that due to the erosion of the currency it had become moribund due to disuse, and, as such, he had no use for it. He could not tender the same for payment to anyone.

An impasse ensued which resulted in the respondent filing an application with the High Court for the conversion to United States Dollars of the sums awarded to him in the local currency.

The High Court found that it had no jurisdiction to convert the amounts thus awarded to United States dollars. It said:

“In conclusion, this Court's opinion on the issue of currency nominalism, in the circumstances of this case, is that, while on the whole this Court has inherent jurisdiction to ensure that the process of execution is neither abused nor unfair, it does not have jurisdiction to rewrite an order in the manner sought by the applicant. I hold the considered view that this Court cannot revalue an order for purpose of execution.”

In short, it declined jurisdiction.

The respondent was aggrieved and appealed to this Court and was successful. In Robson Makoni v The Cold Chain t/a Sea Harvest SC55-16, this Court said the following:

“The principles enunciated in the case of Dube (supra) demonstrate that the once and for all rule is not applicable to the facts of this case because the applicant is not seeking further damages for the injuries he sustained in the accident. He is seeking the conversion of the damages he was awarded by the High Court in 2008 in Zimbabwean dollars to United States dollars. The appellant's application is intended to facilitate the enforcement of the order of damages in Zimbabwean dollars. The once and for all rule prevents a plaintiff from seeking further damages from a cause of action previously sued on. It does not prevent him from seeking the currency adjustment of an order already granted by the court.

Courts have authority to adjust their orders but under prescribed circumstances. Those circumstances depend mainly on whether or not the court will be functus officio.

The court a quo erred by relying on the once and for all rule to hold that it had no jurisdiction to hear the appellant's application. The application was for the conversion of already granted Zimbabwean dollar awards to United States dollars, which both parties agree have not yet been paid as there is a dispute as to how payment should be made. It was thus premised on a subsequent dispute over how damages awarded by the High Court in 2008 should be enforced.

The court's awards had been made uncertain by the dollarization of the Zimbabwean economy.

The appellant could not have reasonably foreseen that the Zimbabwe currency was going to be rendered moribund by the introduction of the United States dollar as usable currency in Zimbabwe.”

The court therefore allowed the appeal and issued an order in the following terms:

“Accordingly, it is ordered as follows;

1. The appeal is allowed with costs.

2. The decision of the court a quo is set aside.

3. The matter is remitted back to the court a quo for a hearing and determination on the merits.”

There were three issues for determination before the court a quo. These were the following:

(i) The amount in local currency to be converted into foreign currency;

(ii) The date of the prevailing rate of exchange to be applied for purposes of conversion.

(iii) The rate of exchange applicable for such conversion.

On the first issue, the court a quo found that the total amount to be converted into United States dollars was ZW$3,937,217=09. The learned judge concluded, on the second issue, that the date of rate of exchange to be applied was that rate which was prevailing on the date of judgment, being 23 January 2008.

It is this conclusion that the appellant disputes.

The appellant was aggrieved by that decision and noted this present appeal. The appellant moved an amendment to its grounds of appeal. The respondent did not object and the amendment was allowed by consent. The grounds of appeal, as amended, are framed as follows:

1. The court a quo erred at law in not finding that the ZW$ award made in favour of the respondent had, by operation of law, completely been decimated, and that, consequently, there was no ZW$ to convert to US dollars.

2. The court a quo erred in using the 23^rdofJanuary 2008 as the date of payment, and, therefore, the conversion date instead of using 24 October 2012 as the conversion date, it being the date on which the respondent demanded payment.

3. In any event, the court a quo erred in finding, as common cause, that the rate of conversion from Zimbabwean dollars to United States dollars, as at 23^rd January 2008, was USD$1: ZWD$30 contrary to the conversion rate of USD$1: ZWD$30,000= pleaded by the respondent and accepted by the appellant.

4. The court a quo erred in finding that, on the facts pleaded, the appellant was liable to the respondent in the amount of USD$131,240=56....,.

The first two grounds are being raised for the first time in this appeal.

Counsel for the appellant submitted that the issues being raised in those grounds were not before the court a quo. Critically, therefore, in its amended notice of appeal, the appellant seeks to introduce an issue that the court a quo erred in failing to note that the award made in favour of the respondent in 2008 was completely decimated and therefore there was nothing to convert.

The appellant argues that the amount awarded as damages had been ravaged by inflation, and, as a consequence, there was nothing to convert into foreign currency. In addition, it was contended that the currency was devalued in terms of S.I.109 of 2008, the effect of which was to render the local currency moribund.

It is common cause that the award of damages was appealed to this Court immediately after the judgment was rendered. The appeal itself was heard on 5 October 2010 and there is no indication that during the hearing the appellant made any effort to suggest that the amount being appealed was no longer capable of being paid and that the judgment could not in fact be given effect to. In addition to the above, the appellant did not, at any stage, attempt to have the order rectified following the promulgation of S.I.109/08. The appellant did not, in this Court, provide any authority that would support its contention that an order of court can be altered merely by the promulgation of a legal instrument without a formal request to a court for such alteration. In the premises, it is my view that the amount awarded as damages in local currency was what should have been used as a basis for the calculation of the foreign currency equivalent.

The further contention made on behalf of the appellant is that there was no jurisdictional basis for the court to exercise its original jurisdiction to convert the award to foreign currency on the basis that there was nothing to convert.

In Robson Makoni v The Cold Chain t/a Sea Harvest SC55-16 which was an appeal against a decision of the High Court in which that court had declined jurisdiction to grant an application for the conversion of the original award into foreign currency, this Court said:

“I am aware that the correction of judgments in terms of the court's jurisdiction to protect and regulate its processes in the interest of justice must be done within a reasonable time after the delivery of the judgment to be corrected. In this case, the judgment to be 'corrected' was taken on appeal. It thus had to await the decision of the Supreme Court after which the appellant sought payment. When the respondent refused to pay the appellant made the application which is the subject of this appeal. I am therefore satisfied that the appellant applied for conversion within a reasonable time. He, in other words, was not a sluggard.

Accordingly, this case should not be seen as opening the gates to all cases where judgments were denominated in Zimbabwean dollars and the affected parties failed or neglected to timeously do what the appellant in this case did, namely, seek the court's assistance to convert the awards to usable currency. A court order which is clear and enforceable at the time of delivery cannot be rendered nugatory and unenforceable by unforeseeable subsequent events which affect its clarity and render it unenforceable in its present form. The court a quo is entitled to protect and regulate its orders so that they remain enforceable.

I therefore hold that in terms of section 176 of the constitution, the court a quo has jurisdiction to hear and determine the appellant's application.”

What is evident in that passage is the absence of any suggestion from the appellant that the amount awarded as damages could not be converted by reason of the application to the award of the provisions of S.I.109 of 2008.

Had the court been addressed on this critical issue it would have made a determination as to whether, in addition to the question of jurisdiction relating to the conversion, the High Court enjoyed a jurisdictional base related to the existence or otherwise of an amount capable of conversion. The contention by the appellant that there was nothing for it to convert to foreign currency therefore raises two critical issues for determination.

(a) The first is that the court a quo is being criticised for failing to determine an issue that was never placed before it for adjudication.

It is evident that the appellant chose to have the matter decided without alerting the court of its views on the provisions of the statutory instrument in question. After counsel for the appellant's admission that this was an issue being placed before the court for the first time, it stands to reason that for that reason the ground cannot succeed.

In addition to the above, it was contended that notwithstanding that this issue was not before the court a quo this Court could make a determination on the same. We were not invited to remit the matter for the determination on this issue.

It is trite that a point of law may be raised for the first time on appeal. The question is, is this a point of law strictu sensu?

In my view, whether or not S.I.109/2008 should be applied to the amount to be converted constitutes not merely a question of law, it also involves factual issues. The exercise in its application to the dispute would, of necessity, require the leading of evidence from both parties as to how the statutory instrument should be implemented, the amount to be converted and the sum available, if any. This, in my view, would have been an exercise properly undertaken before the court a quo. It was not and it does not fall for this Court to undertake this exercise for the simple reason that this Court is not a court of first instance.

In my view, the two grounds on which this premise is taken therefore lack merit and ought to be dismissed.

In addition to the above, a decision of the Supreme Court on a factual issue is final.

In Robson Makoni v The Cold Chain t/a Sea Harvest SC55-16, this Court confirmed that the amount of damages awarded in the local currency be converted to foreign currency. I am fortified in this view by the remarks of MALABA CJ, in the case of Lytton Investments (Pvt) Ltd v Standard Chartered Ltd & Anor CC11-18, to the following effect:

“What is clear is that the purpose of the principle of finality of decisions of the Supreme Court on all non-constitutional matters is to bring to an end the litigation on the non constitutional matters. A decision of the Supreme Court, on a non-constitutional matter, is part of the litigation process. The decision is therefore correct because it is final. It is not final because it is correct….,.

The law of finality of decisions of the Supreme Court on non-constitutional matters applies to all litigants equally, whether they become winners or losers in the litigation process. The declaration of finality of a decision of the Supreme Court, on a non-constitutional matter, is itself a protection of the law. Once a decision is as a matter of fact a decision of the Supreme Court on a non-constitutional matter, no inquiry into its legal effect can arise.”

View Appeal
SC29-13 : BETTY KANYUCHI vs DRAWING SERVICES (PVT) LTD
Ruled By: MALABA DCJ, GARWE JA and GOWORA JA

Counsel for the appellant, having noticed the difficulty the appellant's case was meeting on appeal, argued that the parties entered into an oral agreement. With respect, this was never alleged before the court a quo when the parties actually gave evidence and it is not alleged as a ground of appeal.

HH212-18 : HOSEA OZIAH NCUBE vs SIMBARASHE MUPINGA
Ruled By: CHAREWA J

This matter emanates from a judgment I granted, with costs, in favour of the applicant on 13 September 2017 in HH614-17 (HC9698/17).

Therein, the applicant had sued the defendant claiming possession of certain piece of land situate in the District of Salisbury called the Remainder of Subdivision B of Marshlands of Delft of Hopley (the Remainder) and payment of the sum of two thousand three hundred and eighty United States Dollars (USD2,380) per month calculated from 10 July 2013.

After a full trial, I granted the applicant the order he sought.

The Facts

The parties entered into an Agreement of Sale sometime in 2005 wherein the applicant sold, and the respondent purchased Stand 694 of subdivision B of Marshlands of Delft of Hopley (Stand 694). It later became evident that, during the sale transaction, the parties had used a wrong map, rather than CG2907, which was duly approved by the Surveyor General on 1 November 2003. As a result, the respondent in fact purchased a road - Stand 694 having become a thoroughfare upon completion of the survey plan by the Surveyor General.

Efforts to rectify the error were unsuccessful, mostly due to the respondent's intransigence, who spurned the offer of a replacement Stand and cash adjustment or a refund of the purchase price. Ultimately, the respondent approached this court for an order compelling the applicant to transfer to him, Stand 694, which was duly done. Case number HC1205/07 and DT502/2011 dated 18 February 2011 being apposite.

Thus, the respondent currently holds title to Stand 694. Unfortunately for him, Stand 694 is a road in accordance with the properly approved subdivision permit and survey diagram, CG2907, aforesaid.

The respondent subsequently obtained an order from this court, authorising the eviction of the applicant from Stand 694 (case number HC6804/11 refers). However, quite contrary to the title he holds and the eviction order he obtained, the respondent went on to evict the applicant from the Remainder using the eviction order granted in respect of Stand 694.

Upon obtaining judgment for the restoration of his possession in HC9698/17 aforesaid, the applicant issued a warrant of execution on 20 September 2017. The warrant of attachment with respect to the monetary portion of my judgment was served on the respondent on 25 September 2017, with eviction scheduled for 28 September 2017.

On 27 September 2017, the respondent noted an appeal against my judgment which effect was to suspend any execution of the judgment. Consequently, the applicant filed, on 5 October 2017, this application for leave to execute pending appeal.

Parties' Submissions

The applicant submits that the respondent noted the appeal with no bona fide intention to test the correctness of the judgment of the court a quo, but that the appeal is merely intended to either harass him or buy time for the following reasons:

(i) It is fundamentally defective and is likely to be struck off by the superior court;

(ii) The two grounds of appeal raise no issues at law as no averment is made as to how the court a quo erred at law as the respondent avers no rights entitling him to remain in occupation of the Remainder or why he should continue receiving rentals therefrom and should be absolved from making good the same.

The applicant submits, therefore, that he stands to suffer irreparable harm and prejudice if the application for leave to execute is not granted as the respondent will continue to occupy the applicant's property and receive rentals in circumstances where the appeal is frivolous and vexatious and hence has no reasonable prospects of success.

On his part, the respondent submits that he has good prospects of success on appeal as the judgment appealed against seeks to reverse previous orders of this court which recognised his title to the property in dispute. Besides, execution pending appeal should not be lightly granted as that would abrogate his right to appeal.

In any event, the respondent further submits, the applicant has not demonstrated any special circumstances necessitating execution pending appeal. Therefore, the balance of convenience favours a freezing of the parties' positions until the litigation has run its course, particularly since the superior court might come to a different conclusion with regard to the issue of res judicata and compensation.

The respondent seems to suggest, in his further submissions, that because the applicant did not mount a vigorous defence to his ejectment from Stand 694, and did not immediately institute proceedings challenging such ejectment, that gave the respondent rights to the Remainder.

The Law

It is trite that the right to appeal is fundamental to justice and is not lightly interfered with as a party has the right to test the correctness of a decision of a lower court. See Zimbabwe Mining Development Corporation v African Consolidated Resources PLC & Ors SC01-10 Therefore, I do agree that the right to appeal is absolute.

However, the consequence of noting an appeal is not an absolute right to stay of execution pending appeal, else the law would not grant a litigant the right to apply for leave to execute pending appeal. Further, the law would not grant the courts the discretion to allow execution pending appeal where an appellant has no bona fide intention to test the correctness of the decision of the lower court, but is driven by a desire to frustrate a successful party or to buy time. Therefore, the right to stay of execution pending appeal is limited to the extent that the courts have the ultimate and wide discretion to grant leave to execute pending such appeal. See Arches (Pvt) Ltd v Guthrie Holdings (Pvt) Ltd 1989 (1) ZLR 152 (HC).

However, the court's discretion, to interfere with stay of execution pending appeal, can only be exercised within the confines of four fundamental common law principles, the sum total of which is that it is just and equitable to allow execution pending appeal. See South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A)…,.

In this regard, jurisprudence, in Zimbabwe, has identified these principles, which I list in no particular order, as follows:

1. The prospects of success on appeal, with special emphasis on whether or not the appeal is frivolous or vexatious or has been noted with no bona fide intention to reverse the judgment but only to buy time or harass the successful party.

2. The potentiality of irreparable harm or prejudice to the appellant if leave to execute is granted.

3. The potentiality of irreparable harm to the respondent if leave to execute is refused; and

4. Finally, the balance of hardship or convenience as the case may be.

See Whata v Whata 1994 (2) ZLR 277 (S)…,. See also Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S)…,.

The law in Zimbabwe does not require for “special circumstances” to be established for an application for leave to execute pending appeal to be instituted or granted, outside the principles enunciated above. What the law requires is that a specific application has to be made seeking such leave. Some judgments have termed this a “special application”, but, that is as far as the law has gone: Arches (Pvt) Ltd v Guthrie Holdings (Pvt) Ltd 1989 (1) ZLR 152 (HC). See also Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S)…, which cited with approval South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A)…,.

Finally, while the law is clear that a Notice of Appeal must be directed at the order of the court a quo and not the reasons thereof (Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (SC)), it seems logical to me that the substantive legal grounds for attacking such order must be made. Else, how does a court requested to grant leave to execute pending appeal, or even the Appellate Court itself, assess the bona fides of the appeal?

In fact, Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (SC), which the respondent seeks to rely on, must be read within its own context. Therein, the notice and grounds of appeal had been made against an order rather than a fully reasoned judgment.

Analysis

It is my considered view that the appeal in this case has no reasonable prospects of success at all. This is because, firstly, the Notice of Appeal only attacks two issues in the judgment of the court a quo:

(a) That it erred in granting an order of ejectment; and

(b) That it erred in granting an order for payment of rental at the rate of $2,380 per month from July 2013 to the date the respondent gives vacant possession.

In the first place, the court a quo did not give an order of ejectment as that was not the relief sought by the applicant. The applicant sought, and was granted, an order restoring his entitlement to possession of the Remainder. In any event, even if an order of ejectment had been given, the grounds of appeal do not specify why such order is wrong at law.

In the second place, the Notice of Appeal attacks the period and amount of rentals that the respondent must pay without specifying why, in substance, that order is wrong at law.

It seems to me, therefore, that the grounds of appeal raise no issues, cementing the notion that the appeal has been filed merely to prevent the applicant from using his own property.

Secondly, the respondent has introduced, in his appeal, matters which were not before the court a quo.

For instance, Annexure C to the opposing affidavit cannot form part of the appeal record as it was never a matter raised at the trial.

It is trite that one can only introduce new evidence with leave of the court, which leave the respondent did not seek during this hearing nor has sought for purposes of appeal.

But, even if he does seek and obtain such leave, Annexure C would actually vindicate the applicant's position, that Stand 694, to which the applicant is entitled by virtue of the title deed he holds in his favour, is in fact not part of the Remainder, and, further, that the respondent's ground of appeal that the applicant does not hold title to the Remainder is in fact baseless.

Further, the issue of compensation for the buildings constructed by the respondent on the Remainder cannot be subject of appeal as it has not been raised in the grounds of appeal.

This is precisely because it was never a claim before the court a quo, and, in any case, there is no admission, tacit or otherwise, on the trial record, that the applicant was prepared to pay compensation for any buildings put up by the respondent on the Remainder without the applicant's consent. In any case, any purported offer of compensation was made on a without prejudice basis, and, at the behest of the court, to facilitate an equitable settlement.

In fact, the record will show that, in the face of the defendant spurning any offer of a replacement Stand or refund of the purchase price, the applicant specifically withdrew any offer of compensation he might have made.

In addition, that the City of Harare may have approved the respondent's building plans, or received rates payments from the respondent, does not give title to the Remainder to the respondent. It is also neither here nor there that the applicant did not vigorously mount a defence to his eviction from Stand 694. There was absolutely no reason for him to do so since he acknowledged selling that Stand to the respondent and was not in occupation thereof, besides which it was a road anyway.

The court a quo only dealt with two issues, predicated on the court's finding that the applicant's claim was in fact an action for rei vindicatio: viz;

(i) Whether the respondent had any entitlement to keep possession of the Remainder; and, if not

(ii) Whether he should be ordered to refund the rentals he has received for the Remainder.

The applicant was therefore only required to prove his ownership of the Remainder, thus dis-entitling the respondent thereto; and, that the respondent was in occupation thereof and collecting rentals therefrom - which he did to the Court's satisfaction.

As a result, the Court's finding was that the applicant was wrongfully ejected from the Remainder, which property he owned, on the basis of an order relating to Stand 694. And, further, that the Respondent was residing, and building on the Remainder, as well as collecting rental therefrom, in circumstances where he held no title thereto. That finding is unassailable and the respondent has absolutely no prospects of success thereon.

Further, the issue of res judicata has also not been raised in the grounds of appeal.

Besides, save to state that HC5728/13 was not dealt with on the merits and cannot therefore be regarded as having disposed of the rights of the parties to the Remainder to merit the respondent's resort to res judicata, the court a quo did not interfere with or set aside any previous judgments of the court.

In particular, the court a quo was careful to note that HC1205/07, HC3900/11 and HC6804/11, being matters dealing with rights to Stand 694, had nothing to do with the matter before it - being a matter requiring resolution to the parties' rights to the Remainder.

Clearly, any appeal on this basis is spurious and has no reasonable prospects of success.

SC85-14 : REMO INVESTMENT BROKERS (PRIVATE) LIMITED and MAHOMED IQBAL MAHMED and REZANA EBRAHIM and JOHN MOTSI vs SECURITIES COMMISSION OF ZIMBABWE
Ruled By: GARWE JA, GOWORA JA and PATEL JA

This is an appeal against a judgment of the Administrative Court by which the court dismissed the appeal to that court against a decision of the Securities Commission of Zimbabwe (“the Commission”) cancelling the licences of the first and second appellants and imposing sanctions upon the third and fourth appellants.

The first appellant, Remo Investment Brokers (Pvt) Ltd (“REMO”), is one of the longest established registered securities exchanges within Zimbabwe. The second appellant, Mahomed Iqbal Mahmed (“Mahmed”), is a securities dealer and is also the Managing Director of Remo Investment Brokers (Pvt) Ltd. The third appellant, Rezana Ebrahim (“Ebrahim”), is married to Mahomed Iqbal Mahmed and is a Compliance Officer for Remo Investment Brokers (Pvt) Ltd. She and Mahomed Iqbal Mahmed are the beneficial owners of Remo Investment Brokers (Pvt) Ltd. The fourth appellant, John Motsi (“Motsi”), is a Registered Securities Dealer.

Following upon turbulence within the securities sector, the Securities Commission of Zimbabwe suspended Remo Investment Brokers (Pvt) Ltd from trading for a period of six months. After the suspension of REMO, the Commission instituted investigations, through Proctor and Associates, who compiled a report. Armed with that report, the Commission charged REMO and Mahomed Iqbal Mahmed of contravening certain specified sections of the Securities Exchange Act [Chapter 24:25] (“the Act”).

The appellants were invited to make representations to the charges. Ultimately, the Securities Commission of Zimbabwe confirmed the convictions and cancelled the licences of Remo Investment Brokers (Pvt) Ltd and Mahomed Iqbal Mahmed for a period of five years after which they could re-apply for registration. Rezana Ebrahim was advised by the Commission that she was permanently disapproved as a Compliance Officer. John Motsi was able to retain his Dealer's licence but was advised that he had to practise under a supervising senior broker for a period of one year.

Aggrieved by the decisions of the Securities Commission of Zimbabwe, the appellants collectively launched an appeal with the Administrative Court which dismissed the appeal and confirmed both the conviction and sanctions imposed by the Commission.

The appellants now appeal to this Court on several grounds.

Counsel for the Securities Commission of Zimbabwe took the point, in his heads of argument, that the grounds of appeal complain against every finding made by the court a quo. The grounds, which number thirteen, have been framed too widely. They are not clear and concise as required by the Rules of this Court.

Although the manner in which the grounds have been set out is not in itself fatal to the appeal, it would be neater to deal with the appeal on the basis of the substantive issues for resolution rather than the piece meal approach detailed within the grounds.

SC10-20 : ZIMBABWE SCHOOL EXAMINATIONS COUNCIL vs VICTOR MUKOMEKA (on behalf of a minor Charmaine Mukomeka) and CHINGASIYENI GOVHATI (on behalf of a minor Anesu Govhati)
Ruled By: PATEL JA, BHUNU JA and BERE JA

This is an appeal against the judgment of the High Court setting aside the decision of the appellant, made on 8 February 2018, ordering the rewrite of an English language examination at Ordinary Level taken by candidates in November 2017.The appeal is mounted against part of the judgment, in particular, ...

This is an appeal against the judgment of the High Court setting aside the decision of the appellant, made on 8 February 2018, ordering the rewrite of an English language examination at Ordinary Level taken by candidates in November 2017.

The appeal is mounted against part of the judgment, in particular, paragraph 2 of the operative order of the court a quo.

Background

The appellant is the Zimbabwe School Examinations Council (ZIMSEC), a statutory body created in terms of the Zimbabwe School Examinations Council Act [Chapter 25:18]. It is responsible for conducting examinations for primary and secondary schools in Zimbabwe. It is also empowered, in terms of section 34 of its enabling Act, to annul examination results.

The respondents are the respective guardians of two school children who sat to write the Ordinary Level English Paper 1 and Paper 2 examinations conducted by the appellant in November 2017.

It is common cause that there was a leakage of English Paper 2 which led to widespread cheating by candidates who sat for the examination in that paper.

On 6 February 2018, the appellant took the decision to nullify the results of that examination. The appellant also directed a re-sit of that examination which was scheduled for 16 February 2018.

The respondents, being aggrieved by these decisions, filed an urgent chamber application in the High Court for an order setting them aside.

They averred that the decisions were arbitrary and would cause undue hardship to their respective daughters as well as other students who had written their examinations in earnest and without cheating. At the time of the application, the first respondent's daughter had travelled to Australia, while the second respondent's daughter was in Bindura but her examination centre was located in Goromonzi.

The court a quo identified the issues before it as follows:

(i) Whether or not the appellant's nullification of the English Paper 2 examination results ought to stand; and

(ii) Whether a rewrite of that examination was the appropriate remedy.

The court proceeded to uphold the appellant's decision to nullify the results of the Paper 2 examination. However, it set aside the appellant's decision calling for a re-write of the examination and substituted it with an order to the effect that the results of candidates be based on the results in Paper 1 only, as per the recommendations of the English Subject Manager dated 8 January 2018.

In arriving at its decision, the court a quo (which comprised two judges) reasoned that it could not uphold the results of the Paper 2 examination as this would amount to the court aiding and abetting cheating in examinations.

However, the appellant's decision to order a rewrite of the Paper 2 examination was taken without regard to the recommendations of the Subject Manager and was therefore arbitrary in nature. Additionally, that decision was made without taking into account the interests of those children who did not cheat in the examination. It was also possible that many innocent children did not have access to information pertaining to the scheduled re-write of the examination as the notice given by the appellant for the scheduled rewrite was grossly and unreasonably short.

The appellant impugns the judgment a quo on the following grounds, as summarised:

(a) The court granted relief that was not sought or justified on the papers without advance notice or warning to the appellant.

(b) The court substituted its own substantive decision without being possessed of the tools to make such a technical and far-reaching decision.

(c) The only relief that was affordable was an extension of time for re-taking the examination and the effect of the court's substantive decision was to negate the exercise of the appellant's statutory function.

(d) The issues in question were not resoluble on the basis of the Subject Manager's recommendations which had already been rejected by the authority vested with the mandate to consider them.

(e) The court granted final relief on an urgent basis in a matter that was hotly contested and where the parties were not availed sufficient time to advance their contentions.

I should note, at the outset, that the decision appealed against is an ex tempore judgment handed down with full reasons to follow, given the importance of the matter as perceived by the court a quo.

Although those full reasons have not as yet been availed by the court, I take the view, with the concurrence of my brother judges, that the judgment that was rendered adequately sets out its essential reasons and basis so as to enable this Court to consider and determine the grounds of appeal in casu.

In any event, both counsel for the appellant and the respondents were willing and prepared to proceed with the appeal on the basis of the available judgment.

SC37-20 : ROSEMARY BASTIN vs KUFA MADZIMA (IN HIS CAPACITY AS THE EXECUTOR OF THE ESTATE LATE MARIMO MADZIMA)
Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

This is an appeal against the whole judgment of the High Court handed down on 20 February 2019 which granted summary judgment in favour of the respondent for the eviction of the appellant, and all those claiming occupation through her, from Stand No.3437 Highfield Township, Harare (“the property”) after dismissing the appellant's application for condonation of the late filing of heads of arguments in opposition to the summary judgment application.

The facts of the matter are these;

The respondent's father, Marimo Masawi Madzima, died at Marondera in 1985. He was the registered owner of the property. Following his death, the respondent was appointed heir to, as well as executor of, the estate. In 2001 the respondent engaged the law firm of Karuwa and Associates with instructions to dispose of the property. In due course, and entirely without the authority and consent of the respondent, that law firm sold the property to the appellant.

The appellant took transfer of the property and held title by Deed of Transfer No.1948/2007.

The respondent was aggrieved. He instituted an action in the court a quo against the appellant and others under case number HC2120/07, inter alia, for the cancellation of the sale and the return of the property to its rightful owner.

Although the action was contested, the respondent was successful.

By judgment delivered on 23 May 2012, being HH221-12, the court a quo found that the transfer to the appellant had been fraudulent and that the owner of the property was entitled to vindicate his title against any other person in possession of the property. The order which was issued included an award of costs on the legal practitioner and client scale against the law practice of Karuwa and Associates.

As the appellant remained in occupation of the property notwithstanding the judgment of the court a quo referred to above, which was only appealed against by Karuwa and Associates in respect of the award of costs, the respondent instituted action proceedings for eviction under case number HC1025/18.

The action was opposed by the appellant whose only discernible defence was that the judgment of the court a quo, in terms of which her claim was dismissed, had been taken on appeal to this Court under case number SC211/18.

As it turned out, that was an appeal lodged by Karuwa and Associates against only a part of the judgment “that granted costs” against the law firm and nothing else.

The respondent was understandably un-impressed, and, believing that the appellant did not have a bona fide defence, and that appearance to defend had been entered for dilatory purposes only, made an application for summary judgment.

Although the appellant still opposed to the application, maintaining that no relief could be afforded the respondent by summary judgment, her legal practitioners failed to file heads of argument within the time allowed by the Rules of Court. She was therefore automatically barred in terms of Rule 238(2b) of the High Court Rules, 1971.

The appellant did not file a formal application for the upliftment of the bar.

Instead, counsel for the appellant still proceeded to file heads of argument out of time in which she sought to lead evidence from the Bar on the reasons for failure to timeously file the heads of argument.

At the hearing before the court a quo, an application for condonation of the late filing of the heads of argument was then made on behalf of the appellant - from the Bar.

The application was dismissed and the court a quo proceeded to determine the summary judgment application on the merits unopposed.

It granted the application.

The appellant was not happy with that turn of events. She has noted an appeal on the following grounds;

1. The court a quo erred in dismissing the application for condonation thereby unprocedurally hearing the matter unopposed.

2. The court a quo misdirected itself in finding that the appellant did not satisfy the requirements for condonation.

3. The court a quo erred in finding that the appellant did not have a bona fide defence to the application for vindication.

4. The court a quo erred in finding that the respondent had made a case for summary judgment.

While the appellant has listed four appeal grounds, they are clearly repetitive. Only two issues have to be determined in this appeal. They are:

(a) Whether the court a quo erred in dismissing the appellant's application for condonation and the upliftment of the bar; and

(b) Whether the court a quo erred in granting summary judgment.

At the hearing of the appeal, counsel for the appellant initially appeared to make an application, in terms of Rule 40 of the Supreme Court Rules, 2018, to lead further evidence on appeal. She submitted that the appellant had effected improvements on the property during the period of almost 13 years that she has been in occupation. In that regard she has an improvements lien over the property and cannot be evicted therefrom without compensation for those improvements.

It was further submitted that the appellant filed an action in the court a quo in November 2019 for compensation. She therefore desired to lead further evidence on appeal relating to the suit now pending in the court a quo which should be determined before the appeal is determined.

Counsel for the respondent opposed the application to lead evidence on appeal.

He submitted that the claim for compensation is a separate action pending before a court of competent jurisdiction. It had nothing to do with the present appeal which is only concerned with the rights of the parties as determined by the judgment of the court a quo delivered in 2012.

Upon this Court engaging counsel for the appellant further on the nature of her application to lead evidence on appeal, she changed gear and made an application for a postponement to enable the appellant to prepare a formal application to lead evidence on appeal.

Counsel submitted that the application could not be made earlier because;

(i) Firstly, she had not been involved in the preparation of the appeal, her instructing legal practitioner was.

(ii) Secondly, the idea of leading evidence on appeal only occurred to her when she was preparing for the appeal hearing.

It may have been an afterthought.

Clearly, there was no merit in whatever application the appellant sought to make from the Bar. An application to lead further evidence is governed by Rule 40 of this Court's rules which provides:

“An application to lead further evidence on appeal shall be accompanied by that evidence in the form of an affidavit and also by an affidavit, or statement from counsel, showing why the evidence was not led at the trial, together with a copy of the judgment appealed from and a statement indicating in what manner it is alleged the evidence sought to be adduced affects the matter at issue.”

The appellant's counsel could not make an oral application to adduce evidence on appeal from the Bar. It was simply incompetent to do so as such an application was not in the form, and did not meet the standard set by the Rules.

Perhaps it was upon a realization of that fact that the application quickly morphed to one for a postponement to allow for the preparation and filing of a proper application.

A postponement is not there for the asking.

The court has a discretion, which it exercises judiciously, to grant or refuse a postponement. Where the reason for a party's non preparedness to proceed with the hearing has been fully explained and the non-preparedness to proceed is not due to tardiness and some delaying tactics, the court will be very reluctant to refuse a postponement.

It is settled, however, that an application for a postponement must be made timeously and as soon as the circumstances justifying it become known. An application for a postponement, being used as a tactical manoeuvre to gain an unfair advantage, will not be granted for its lack of bona fides. The main consideration in determining whether to accede to an application for a postponement is whether prejudice will be suffered by the other party. See Myburgh Transport v Botha 1991 (3) SA 310 (NSC)…,.

In this matter, a postponement was sought in order to enable the appellant to create a case which was not placed before the court a quo whose judgment is on appeal.

In response to the respondent's claim for eviction, the appellant filed a plea which, as I have said, only raised the defence that the judgment of HUNGWE J…, had been appealed to the Supreme Court. The defence of an improvements lien was not raised.

Indeed, even in case number HC2120/07, which settled the rights of the parties, that defence was not raised.

The appellant wants to raise it for the first time on appeal.

It occurs to me that Rule 40 of this Court's Rules is not intended to be used for the purpose of building a new case altogether which was not before the court a quo.

More importantly, the evidence which the appellant intended to lead is certainly not necessary for the determination of the present appeal.

It is for that reason that, on the turn, this court dismissed the application for a postponement in order to make an application to adduce what was clearly extraneous evidence and proceeded to hear the matter on the merits.

Appealed
SC45-20 : MUCHANETA CHATAMBUDZA vs KUDAKWASHE MURAPE and MARBEL MURAPE
Ruled By: GWAUNZA DCJ, GARWE JA and MAKONI JA

This is an appeal against the whole judgment of the High Court declaring the Agreement of Sale between the appellant and the respondents valid and binding on the basis that the appellant had the requisite mental capacity to contract and granting the consequential relief of eviction of the appellant.FACTUAL BACKGROUNDPrior ...

FACTUAL BACKGROUND

Prior to 26 January 2006, the appellant had rights and interest in a property called Flat 46, Block 13 Odzi Flats, Eastlea, Harare (“the property”). She instructed Fingold Real Estate (Fingold) to sell the property on her behalf. An advertisement of the sale of the property was published in the Herald newspaper by Fingold, prompting one Abel Murape, the first respondent's father, who acted as the respondents' agent, to engage with Fingold regarding the sale.

The respondents are husband and wife.

The engagement resulted in an Agreement of Sale between the appellant and the respondents, wherein the appellant sold her rights and interest in the property to the respondents. The Agreement of Sale was reduced to writing and duly signed by the appellant and Abel Murape before the estate agent and two witnesses on 26 January 2006.

It is not in dispute that the full purchase price of ($1,950,000,000) one billion nine hundred and fifty million Zimbabwean dollars was paid in full on the date of signature of the agreement. It was paid through Fingold Real Estate, and, of that amount, the appellant withdrew fifty million ($50,000,000).

Thereafter, the appellant, together with Abel Murape, proceeded to the Ministry of Local Government and National Housing (The Ministry) for confirmation that the purchase price had been paid in full. As the property had no title deeds, the parties proceeded to the City of Harare offices to effect cession from the appellant into the respondents' names.

A few days later, on 30 January 2006, and before the respondents had taken occupation, the appellant wrote a letter to Fingold Real Estate cancelling the Agreement of Sale. The appellant indicated that the money paid towards the purchase price was of no use to her. This was done notwithstanding the fact that the appellant had already withdrawn part of the money that had been paid for the property for her own use.

The respondents, on 5 March 2006, instituted proceedings in the court a quo seeking a declaratur that the agreement entered into between the parties was valid, the eviction of the appellant from the property, and costs of suit.

The appellant resisted the claim on the basis that, at the material time that she entered into the Agreement of Sale, she did not have the requisite mental capacity to contract. She pleaded in the following terms;

“1. At the material time, the Defendant did not have the requisite mental capacity to enter into an Agreement of Sale since she suffers from psychiatric problems. As such, the Agreement of Sale is null and void.”

Thereafter, the matter was referred to trial.

PROCEEDINGS IN THE COURT A QUO

One of the issues for determination at trial was whether or not the appellant had capacity to enter into a valid contract.

The appellant adduced evidence from two witnesses. The first witness was one Bothwell Tawanda Chinenguo (Bothwell), son to the appellant, and, the second witness was Dr Sekai Nhiwatiwa, a medical doctor specialising in psychiatry.

Bothwell Tawanda Chinenguo gave the following evidence;

He was appointed curator ad litem of the appellant on 22 September 2016. The appellant was mentally ill and he would occasionally take her for treatment. It was because of the mental illness that the appellant left her employment around 2001. He claimed that the respondents took advantage of the appellant's mental condition in buying the property at a value below the market price as the property was sold at a time when the country was facing hyperinflation. He could not comment on the appellant's state of mind at the time of the sale as he was at a boarding school.

Dr Sekai Nhiwatiwa testified that she treated the appellant from 2005. She found that the appellant suffers from 'bipolar affective disorder' the effects of which include impairment of judgment. She stated that if a patient takes her medicine properly, she could have lucid intervals and could work as a professional such as a lawyer or a doctor. She however conceded that she could not, with certainty, state that the appellant was not lucid in January 2006 when she sold the house as she neither examined the appellant nor stayed with her. She further highlighted that the letter she had written at the time the appellant sold her property, that she was mentally incapacitated, was at the request of the appellant's son.

No medical records were availed to the court to substantiate her averments.

The respondents' case was led by two witnesses, namely, the first respondent and Abel Murape. The first respondent was not directly involved in the transaction thus he could not comment on the mental state of the appellant as the contract was concluded by his father on his and his wife's behalf.

Abel Murape, who interacted with the appellant and with whom the appellant concluded the Agreement of Sale, gave the following evidence.

The appellant did not show any signs of mental incapacitation during and after the sale. He accompanied the appellant to the Ministry of Local Government and National Housing and to the Municipal offices in order to effect transfer of the property. The appellant wanted to opt out of the contract because she had, unsuccessfully, requested a top up of the purchase price after she had withdrawn part of the money from her estate agents.

DETERMINATION OF THE COURT A QUO

The court a quo found that the appellant had failed to discharge the onus placed on her by law to prove that she did not have the requisite mental capacity to contract. The court a quo also concluded that no evidence had been led to show that the appellant exhibited signs of mental illness at the time the agreement was signed on 26 January 2006.

It further found that the evidence of the expert witness was not sufficient to prove that, at the material time, the appellant was mentally ill. Instead, her testimony was that if the appellant took her medication daily, she would be sane. She could not dispute that the appellant might have had a lucid interval at the time the Agreement of Sale was entered into.

The court a quo found as insufficient the evidence of the appellant's son who testified that the appellant was mentally ill at the time of contracting. Its reasoning was that when the property was sold, the son was away at a boarding school and could not therefore comment, with certainty, on the mental state of the appellant at the material time.

Further, it found that there was no evidence to prove that the property was undervalued at the time that it was sold. As such, the argument advanced for the appellant that the respondents took advantage of the appellant to purchase the property for a sum less than its open market value could not be sustained.

The court a quo also reasoned that the appellant was not detained at a mental institution when she signed the agreement. Additionally, no evidence was led by persons staying with, or neighbours of the appellant from the time of advertisement of the sale to the time of signing of the agreement, on her mental state.

The court believed the testimony of Abel Murape, who interacted with the appellant at the material time, that the appellant did not exhibit signs of mental illness. Thus, the court a quo found, as a matter of fact, that the appellant had the mental capacity to contract.

GROUNDS OF APPEAL

Aggrieved by this decision, the appellant noted the present appeal on the following grounds:

1. The court a quo erred and misdirected itself by failing to appreciate that the defendant lacked the requisite mental capacity to enter into an Agreement of Sale since she suffers from psychiatric illness and does not appreciate and understand the contractual obligations (sic).

2. The court a quo erred and misdirected itself on a point of law by failing to appreciate that a contract that was entered into by a person who lacked mental capacity to transact was null and void and of no force and effect.

3. The court a quo erred and misdirected itself granting an order for ejectment against the defendant and all those claiming occupation through her despite the fact that the agreement was contracted by a person who was suffering from a mental illness or incapacity at the time of contracting.

4. The court a quo erred and misdirected itself on points of law by failing to appreciate that the defendant, at the time of the contract, did not appreciate what was going on in her world of living and could not be accountable for her action whatsoever. As such, the court misdirected that by ordering that the respondents are entitled to cession of right, title and interest in Flat No.46, Block 13 Odzi Flats, Eastlea, Harare.

5. The court a quo erred and misdirected itself by ordering that the defendant shall pay costs of suit....,.

Although the appeal raises various grounds, only one issue arises for determination in this appeal which is whether or not the appellant had the mental capacity to contract at the material time.

View Appeal
SC47-20 : ROBSON MAKONI vs CBZ LIMITED
Ruled By: GWAUNZA DCJ, GUVAVA JA and MAKONI JA

This is an appeal against the whole judgment of the High Court sitting at Harare in which the court dismissed an application for rescission of a default judgment entered against the appellant on 23 July 2015.BACKGROUND FACTSOn 19 March 2015, the respondent issued summons against the appellant in the High ...

BACKGROUND FACTS

On 19 March 2015, the respondent issued summons against the appellant in the High Court under Case No. HC2525/15, wherein it claimed the sum of US$521,083=41 being the capital claim of US$258,019=29, interest adjusted by the in duplum rule in the sum of US$258,019=29 and bank charges in the sum of US$5,044=83. The respondent further claimed interest on the amounts at the rate of 28 percent per annum from the date of demand, being 24 February 2015, to the date of full and final payment.

The summons were served on the appellant on 30 April 2015. He filed a Notice of Appearance to Defend (the Notice) on 12 May 2015 through his legal practitioners, Messrs Nyikadzino, Simango & Associates. The Notice was duly served on the respondent's legal practitioners on 20 May 2015.

The Notice, so filed and served, had no reference of the legal practitioner handling the matter on behalf of the appellant.

Pursuant to this Notice, the respondent filed a Notice to Plead and Intention to Bar on 27 May 2015. It was served on Messrs Nyikadzino, Simango & Associates on 1 June 2015 with no reference of the legal practitioner handling the matter on behalf of the appellant, as it had not been provided on the Notice.

On receipt of the Notice to Plead, the appellant did not file any plea or other response. As a result, a bar was effected on 23 June 2015. A copy of that bar was served on Messrs Nyikadzino, Simango & Associates on 25 June 2015.

On 10 July 2015, the respondent filed a chamber application for default judgment. The default judgment was duly granted on 23 July 2015.

On 24 July 2015, a day after judgment had been granted against him, the appellant filed a chamber application for the upliftment of the bar in terms of Rule 84 of the High Court Rules, 1971 (the Rules). Subsequently, he filed the application for rescission of the judgment on 12 August 2015....,.

The appellant also challenged the interest rate of 28 per cent per annum. He averred that in terms of the agreement the interest rate was 12 per cent per annum. When it was pointed out to him, in the notice of opposition, that the interest rate was increased in terms of clause 7.1.2 he had no meaningful response....,.

On appeal..., counsel for the appellant…, made the following submissions;...,.

In respect of the interest charged, counsel for the appellant submitted that there was a dispute regarding the interest rate in that the rate that was agreed on was not the one used to calculate the amount claimed. The court a quo relied on clause 7.1.2 which requires that notice be issued before the adjustment of the interest rate. No such notice was ever given. A trial ought to have been conducted so that the question of the interest rate could have been resolved....,.

Regarding prospects of success, counsel for the respondent submitted that the..., Bank had the right to alter the rate of interest, on notice, in terms of section 7.1.2 of the credit facility agreement. The appellant does not mention clause 7.1.2 in his paragraph 4.

The issue of not being served with the requisite notice is not part of the appellant's case. There is no averment that the alteration of the interest rate was unilateral.

As a result, he was of the view that the appellant had no prospects of success in the main matter....,.

1....,.

2. Whether or not the court a quo violated the in duplum rule in finding that the amount claimed by the respondent and the claim of interest at the rate of 28 percent per annum was correct....,.

The appellant further alleged the violation of the in duplum rule in that the respondent charged interest in excess of the capital debt at a rate that was not agreed to by the parties.

In terms of clause 7.1.1 interest was to be payable at a rate of 12 percent per annum plus 4 percent facility fee to be charged upon acceptance of facilities offered. Clause 7.1.2 went on to provide;

“The Bank reserves the right to give notice, at any time, of any alteration in the rates of interest, and, thereafter, the Bank shall be entitled to charge such other rate as it may prescribe.

If the Borrower continues to avail of the facilities after receipt of the aforesaid notice by not fully repaying the amount due to the Bank, the Borrower shall be deemed to have agreed to the change in interest rate.”

Counsel for the appellant argued, at length, that for the respondent to alter the rate of interest from 12 percent to 28 percent per annum, it ought to have given prior notice to the appellant in terms of clause 7.1.2. As such, a unilateral variation in interest could not be permissible. The result would be a violation of the in duplum rule, in that the interest charged would be in excess of the principal debt of US198,000.

As was correctly pointed out by counsel for the respondent, this argument, regarding the unilateral variation of interest, was not pleaded by the appellant in his founding papers. It was not his case before the court a quo neither was it raised in the grounds of appeal.

It is trite that a new point may be advanced for the first time on appeal if its consideration then involves no unfairness to the party at whom it is directed.

AC CILLIERS, C LOOTS and HC NEL in HERBSTEIN and Van WINSEN, The Civil Practice of the High Courts, 5th ed, Juta & Co Ltd, Cape Town, 2009…, explains as follows;

“A question of law may be advanced for the first time on appeal if its consideration then involves no unfairness to the party against whom it is directed…,.

A second requirement for the raising of a new point on appeal is that the point must be covered by the pleadings. Where it is not clear that the point has been fully investigated (ie that all the evidence which might have been placed before the court if the point had been taken was in fact led), the court will not allow a new point to be raised for the first time on appeal.”

In Donelley v Barclays National Bank Ltd 1990 (1) SA 375…, the court held as follows;

“Secondly, it is clearly a wholly new line of defence now being taken. It was not mentioned in the summary judgment proceedings nor in the plea. It was never referred to in evidence or argument at the trial. Its mere novelty, of course, is no ground per se for rejecting it. However, generally speaking, a Court of Appeal will not entertain a point not raised in the court below and especially one not raised on the pleadings in the court below.”

Applying the above principles to the present matter, this would not be a proper case to allow the appellant to raise, for the first time on appeal, this new point.

The point was not raised in the pleadings and was not argued before the court a quo.

Accordingly, no basis has been laid out to attack the court a quo's finding that the sum claimed by the respondent was not in violation of the in duplum rule, and, consequently, that the appellant has no prospects of success in the main matter.

This ground of appeal must also fail.

SC48-20 : EMMA KUNDISHORA vs ZIMBABWE RED CROSS SOCIETY
Ruled By: HLATSHAWO JA, MAKONI JA and BERE JA

It is settled law that an Appellate Court can only interfere with the findings of fact made by a lower court in exceptional circumstances.

In Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…, KORSAH JA remarked:

“The general rule of the law, as regards irrationality, is that an Appellate Court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion….,.”

In Susan Rich v Jack Rich SC16-01, EBRAHIM JA cited with approval the remarks in HOFFMAN and ZEFFERT, The South African Law of Evidence, 4th ed…, that:

“There are no rules of law which define circumstances in which a finding of fact may be reversed, but, as a matter of common sense, the Appellate Court must recognize that the trial court was in some respects better situated to make such findings. In particular, the trial court was able to observe the demeanor of the witnesses, and courts of appeal are therefore very reluctant to disturb findings which depend upon credibility.

The Appeal Court has rather more latitude in criticizing the reasons which the court a quo has given for its decision.

The reasons given for accepting certain evidence may be unsatisfactory, eg. they may involve a clear non sequitur. Alternatively, it may be plain from the record that the reasons are based upon a false premise, eg. a mistake of fact, or that the trial judge has ignored some fact which is clearly relevant. Errors of this kind are generally referred to as misdirections of fact.

Where there has been no misdirection of fact by the trial court, the Appeal Court will only reverse it when it is convinced that it is wrong.”…,.

In Reserve Bank of Zimbabwe v Granger and Anor SC34-01…, the court held that if an appeal is to be related to the facts “there must be an allegation that there has been a mis-direction on the facts which is so unreasonable that no sensible person who had applied his mind to the facts would have arrived at such a decision; and, a misdirection of fact is either a failure to appreciate a fact at all, or a finding of fact that is contrary to the evidence actually presented.”

In Zvokusekwa v Bikita Rural District Council SC44-15 this Court clarified this obvious but often misunderstood position. It said;

“[20] It is correct, as submitted by the appellant, that an appeal to this Court must be based on a point of law.

What constitutes a point of law has been stated and restated in a number of decisions of this Court. See for example Muzuva v Limited Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S); Hama v NRZ 1996 (1) ZLR 664; RBZ v Granger & Anor SC34-01.

[21] It is also correct that in RBZ v Granger & Anor (supra), this Court stated that if an appeal is to be related to the facts, 'there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who has applied his mind to the facts would have arrived at such a decision. And a mis-direction of fact is either a failure to appreciate a fact at all, or a finding of fact that is contrary to the evidence actually presented.'

[22] In my view, the remarks made in Granger's case (supra) need to be qualified, to the extent that they may be interpreted as saying that, to constitute a point of law, in all cases where findings of fact are attacked, there must be an allegation that there was a misdirection on the facts which was so unreasonable that no sensible person properly applying his mind would have arrived at such a decision.

One must, I think, be guided by the substance of the grounds of appeal and not the form.

Legal practitioners often exhibit different styles in formulating such grounds. What is important at the end of the day is that the grounds must disclose the basis upon which the decision of the lower court is impugned in a clear and concise manner.

If it is clear that an appellant is criticising a finding by an inferior court on the basis that such finding was contrary to the evidence led, or was not supported by such evidence, such a ground cannot be said to be improper merely because the words 'there has been a misdirection on the facts which is so unreasonable that no sensible person…, would have arrived at such a decision' have not been added thereto.

If it is evident that the gravamen is that an inferior court mistook the facts and consequently reached a wrong conclusion, such an attack would clearly raise an issue of law and the failure to include the words referred to above would not render such an appeal defective. After all, there is no magic in the above stated phrase and very often the words are simply regurgitated without any issue of law being raised. See, for example the case of Sable Chemical Industries v David Peter Easterbrook SC18-10 where it was noted that the words 'erred on a question of law' are sometimes included in grounds of appeal but without any question of law actually being raised.”

See also Kukwenge v Clan Transport Co. 2001 (1) ZLR 199 (S) and Mutsuta and Another v Cagar (Pvt) Ltd 2009 (2) ZLR (S).

Appealed
SC50-20 : ALASTAIR SMITH vs ABIGAIL SMITH
Ruled By: GARWE JA, BHUNU JA and MAKONI JA

This is an appeal against part of the judgment of the High Court. The appellant specifically appeals against paragraphs 2 and 3 of the operative part of the judgment which awarded the respondent maintenance at the rate of US$3,000 per month until she dies, remarries, or cohabits with another man ...

BACKGROUND FACTS

The appellant sued his wife, the respondent, seeking a decree of divorce and other ancillary relief. The respondent did not contest the appellant's claim for a decree of divorce. She however sought the distribution of the assets of the spouses and post-divorce maintenance.

The parties found each other regarding the distribution of their assets including the matrimonial home. They agreed to sell the matrimonial home and most of the proceeds were used to purchase an immovable property which was registered in the name of the respondent and the major, and only son, of the marriage. The appellant received the remainder of the proceeds.

PROCEEDINGS IN THE COURT A QUO

The court a quo captured the only outstanding issue before it as whether or not the defendant is entitled to post divorce maintenance and the quantum of such maintenance….,.

At the end of the trial, the court a quo found that the appellant was currently maintaining the respondent in the sum of US$3,000 per month and that from his income he could continue to maintain the respondent in that amount. It then concluded that, on the basis of the proven facts, the appellant was well able to maintain the respondent in the sum of US$3,000 per month. It also found that the defendant's health condition entitled her to maintenance until she dies, remarries, or cohabits with another man.

The appellant, aggrieved by the decision, filed the present appeal on the following grounds.

GROUNDS OF APPEAL

“1. The court a quo erred in awarding respondent post-divorce maintenance in the sum of USD3,000 per month on the basis that appellant had in the past afforded it and so erred in making that award against the background of appellant's dwindling income and increase in his financial obligation.

2. The court a quo misdirected itself in failing to take into account the fact that respondent had taken all the proceeds from the sale of the sole immovable property of the parties and that she has effectively been paid a lump sum payment by the appellant.

3. The court a quo misdirected itself in finding, without credible evidence, that respondent suffers from a medical condition rendering her permanently incapable of engaging in any income generating project.

4. The court a quo erred in failing to take into account the rental income derived by respondent from her Zvishavane properties and misdirected itself in putting any premium on the fact that respondent's late father's estate had not been wound up.

5. The court a quo erred in failing to grant an award which releases appellant from the control and influence of respondent and so erred in failing to take into account the fact that he is entitled to move on with his life.”

APPELLANT'S SUBMISSIONS BEFORE THIS COURT

Counsel for the appellant made the following submissions;

(a) The court a quo's findings were contrary to the evidence adduced and principles of law applicable in such matters.

(b) The exercise of the discretion by the court a quo was therefore improper and must therefore be vitiated.

(c) Contrary to evidence presented before it, the court a quo imposed an obligation upon the appellant to work for the respondent for life.

(d) The respondent has some free income in the sum of US$3,800 whilst the appellant's free income is under US$1,000.

(e) It is settled law that marriage is not a bread ticket for life.

(f) The court a quo further made a finding that the respondent was entitled to US$3,000 per month when no evidence had been placed before it showing the respondent's expenses to be in that amount. The court had no basis to come to the conclusion that her expenses were US$3,000 per month. The award did not take into account that she was earning $3,800 from her father's deceased estate through the properties she was leasing out in Zvishavane.

(g) The court further fell into error in finding that the respondent was unable to work, based on a report produced by a Dr Gunning. The appellant complained that he paid for the production of the report and yet it was only produced after he had testified and during the respondent's case. The finding that she cannot work does not mean she cannot generate income. She could employ people to do the running around for her.

(h) The respondent got a lump sum in sum of US$200,000 from the proceeds of the sale of the parties' matrimonial home which enabled her to buy another property. The appellant had to obtain a mortgage bond to acquire his own property. The US$200,000 should have set up the respondent and she should have used it in a profitable endeavour.

(i) The question of the respondent's adultery should have been taken into account in coming up with the quantum.

(j) Counsel for the appellant further submitted that the court a quo had erred in not considering the income due to the respondent from the Zvishavane properties on the basis that the estate has not been wound up. If ever it changes then she would approach the court for variation. Instead, the court turned principles of law on the head by asking the appellant to approach the court for variation if the respondent is awarded the properties.

(k) He prayed that the court interferes with the quantum and the period.

RESPONDENT'S SUBMISSIONS BEFORE THIS COURT

Per contra, counsel for the respondent made the following submissions;

(a) The court a quo did not act in a vacuum but in terms of facts it found to have been proven. He referred to the judgement where the court a quo deals with the facts that the court found to have been proven.

(b) The appellant, in his pleadings, did not put in issue the fact of entitlement to maintenance and the period. He offered to pay maintenance until such time as the respondent remarried or cohabited with another man. In the Notice of Appeal, he now prays that he pays the defendant the sum of US$1,500 per month for a period of five years reckoned from the date of this order until the respondent either remarries or commences to cohabit with another man. He now seeks to re-argue his case on appeal.

(c) The finding that the respondent had many ailments was based, inter alia, on the appellant's own admission. These are findings of fact. When the report by Dr Gunning was introduced there was no objection from the appellant. There was no insistence that Dr Gunning be called to testify. It would therefore be unfair to attack the court's reliance on the report.

(d) The issue of adultery was never raised as an issue to be considered regarding the respondent's entitlement to maintenance and the quantum.

(e) Again, the issue of the lump sum, realised from the disposal of the matrimonial home, was never raised as a factor in determining the amount of maintenance to be awarded to the respondent. The appellant should have given the respondent due notice that the lump sum would be taken into account in considering the issue of maintenance.

ISSUES

From the above submissions, and the pleadings by the parties, the issue for determination is the quantum of post divorce maintenance and the period.

In my view, this should have been the sole issue before the court a quo. It however proceeded to consider the question of entitlement to such maintenance. This was improper as the appellant, in paragraph 9 of his declaration, pleaded as follows:

“9 It is just and equitable that plaintiff (appellant) pay maintenance to defendant in the sum of US$750 per month for a period of one year commencing with effect from December 2009 or until such time as the defendant should remarry or live with another man as man and wife whichever should occur first.”…,.

Clearly, the appellant did not take issue with the respondent's entitlement to post divorce maintenance at that stage, and throughout the trial, but, rather, put in issue the quantum and the period.

The trial was long-drawn and judgment was only rendered on 22 September 2016. The appellant did not seek to amend the period indicated in paragraph 9 of his Declaration. The offer to pay maintenance for one year, from December 2009, was, consequently, overtaken by events.

THE LAW

The law is settled that an Appellate Court can interfere with factual findings of a lower court in very limited circumstances.

In Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…, KORSAH JA remarked:

“The general rule of the law, as regards irrationality, is that an Appellate Court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion….,.”

In Reserve Bank of Zimbabwe v Granger and Anor SC34-01…, the court held that if an appeal is to be related to the facts “there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who had applied his mind to the facts would have arrived at such a decision. And a misdirection of fact is either a failure to appreciate a fact at all, or a finding of fact that is contrary to the evidence actually presented.”

As regards the quantum in maintenance matters, the approach to be adopted, on appeal, was laid out in Mentz v Simpson 1990 (4) SA 455 where HEFER JA held that the approach should be along the lines adopted in compensation cases as indicated in Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 where WATERMEYER JA stated…, that:

“…, a Court of Appeal should not interfere unless there is some striking disparity between its estimate of the damages and that of the trial court, and, further, unless there is some unusual degree of certainty in its mind that the estimate of the trial court is wrong.”

The position of the law, regarding post divorce maintenance, and the duration, is now well established in our law. In Chiomba v Chiomba 1992 2 ZLR 197 the following is captured in the headnote;

“Marriage can no longer be seen as providing a woman a bread ticket for life. A marriage certificate is not a guarantee of maintenance after the marriage has been dissolved. Elderly women who have been married for a long time and are too old to now go out and earn a living and are unlikely to re-marry will require permanent maintenance.”

APPLYING THE LAW TO THE FACTS

The starting point in such matters, where the lower court would have given a decision within its discretion, is to look at the power of this court on appeal. As clearly comes out from the above authorities, this Court cannot interfere with factual findings made by the trial Court except;

(a) On the basis of irrationality.

(b) Where the trial court reaches a decision which is not supported by the evidence.

(c) Where the finding is patently wrong.

The question, therefore, is whether the findings of fact made by the court a quo can be interfered with on any of the bases set out above.

The court a quo made the following factual findings;

“The facts found proved are;

1. The plaintiff is currently maintaining the defendant at US$3,000 per month.

2. He earned an average of US$12,923=81 per month in 2015 and an average of US$10,868 per month between January and March this year.

3. That salary is well able to maintain him and the defendant at US$3,000 each per month.

4. It leaves him a balance of between US$2,868 to US$4,913 per month from which he can save for the future.

5. His current means therefore enables him to continue maintaining the defendant at US$3,000 as he is currently doing. He has been able to do so, and more, since their separation.

6. The defendant is not the type of spouse who should be weaned off from her former husband on divorce. Her medical condition qualifies her for maintenance till death or when she remarries or cohabits with another man.

7. That the defendant's father's estate is still to be wound up. If the defendant's means improves from what she will get from it the plaintiff can seek variation.

8. The plaintiff's fear, that his means may come down and make him unable to maintain the defendant at US$3,000 per month, is not a bar to his maintaining her at that rate till the arrival of that eventuality, which would entitled him to seek variation of the Maintenance Order.

9. Their son has acquired his first degree and is currently staying with the defendant. This increases the defendant's expenses. The possibility of his going for further education does not presently dis-entitle the defendant from the maintenance she seeks. If those changes come they can only be relevant in an application. This also applies to the possibility of the plaintiff having to pay fees for their son's further studies.”

It then concluded as follows:-

“I am therefore satisfied that, on the present facts, the plaintiff is well able to maintain the defendant at US$3,000 per month. He has been doing so and his means enables him to do so.”

I turn to deal with the two issues that arise before this Court.

QUANTUM

Counsel for the appellant's argument was that the court a quo found, without a basis, that an award of US$3,000 was a reasonable monthly award. In doing that it committed many cardinal sins which he listed as set out below;

(a) It made an award in the absence of evidence showing her monthly requirements and how they answer to the US$3,000 awarded.

(b) It failed to factor in the respondent's income from Zvishavane.

(c) It did not consider the net effect of the award in that it left the respondent with an income of $3,800 as against that of the appellant in the sum of $700.

The court a quo reasoned that the appellant, in his evidence-in-chief, stated that he could probably afford US$3,000 per month although he could not say for how long he will be able to sustain that amount. He did not put in issue the aspect of the respondent's schedule of expenses despite the question being put to him by his counsel.

It is the figure of US$3,000 that he kept toying around with throughout the proceedings.

He also told the court that his own expenses were about US$3,000 per month.

It must be noted that due to the long drawn nature of the proceedings, the appellant successfully applied to re-open his case. This was to enable him to lead further evidence regarding his dwindling income.

Despite leading that evidence, he still confirmed, under cross-examination, that, at that moment, he could afford to pay the respondent the sum of US$3,000 per month and make provision for his own expenses in the same amount and still have an amount left over for savings.

In arriving at its decision, the court a quo looked at all the above and the appellant's average income of US$12,923=81 per month in 2012 and US$10,686 per month between January and March 2016. It went further to analyse the figures and concluded that, after paying US$3,000 to the respondent and to himself, he would remain with a balance of between US$2,686 and US$4,913 per month which he could save for the future.

I find no misdirection in the court's reasoning.

The appellant himself did not place emphasis on the absence of the schedule of expenses. His main concern was whether he could be able to pay the figure of US$3,000 per month in future in view of his dwindling income and whether he would remain with some savings for the future.

These factors were taken into account by the court a quo in arriving at the quantum it awarded.

THE ZVISHAVANE PROPERTIES

The court a quo had this say on the above issue;

“That the defendant's father's estate is still to be wound up. If the defendant's means improves from what she will get from it the plaintiff can seek variation.”

Counsel for the appellant submitted that the court asked itself the wrong question. It ought to have asked itself whether, as at the date of the trial, and subsequent thereto, the respondent was receiving income from the Zvishavane properties. He opined that what can happen in the future is immaterial. In ignoring the reality of that income from the estate, the court a quo hopelessly misdirected itself.

I am persuaded by the submission by counsel for the respondent that there was no misdirection by the court in finding that the estate of the respondent's father had not been wound up.

It would have been speculative on the part of the court to rely on the existence or otherwise of income from that estate at that stage.

In any event, the court made a finding that the evidence led from an investigator hired by the appellant was not conclusive. This was not challenged on appeal.

The court could not have been expected to take into account evidence from a report it had adjudged inconclusive.

ADULTERY

The court a quo was attacked on the basis that it failed to consider that the respondent had committed adultery which had not been condoned. Counsel for the appellant relied on section 10 of the Maintenance Act [Chapter 5:09] which provides as follows:-

“Where a spouse is proved to have committed adultery before or after the making of an order and such adultery has not been condoned, the Maintenance Court may refuse to make an order for maintenance in favour of such spouse or may discharge an order for maintenance made in favour of such spouse.”

I find merit in the submission, by counsel for the respondent, that, whilst the appellant expected the court a quo to deal with the issue, and, consequently, this court, he never pleaded that such alleged marital misconduct be used against her in his pleadings. Doing so would have been inconsistent with his prayer which offered post-divorce maintenance until the respondent remarried or cohabitated with another man.

LUMP SUM PAYMENT OF $200,000

Counsel for the appellant submitted that the judgment of the court a quo was irregular in that it ignored the lump sum payment made to the respondent in fixing the quantum of maintenance and its duration.

Again, as submitted by counsel for the respondent, this does not arise from the proceedings.

When the parties agreed on the distribution of the proceeds of the matrimonial home, they did not agree that that aspect was to be taken into account in the maintenance dispute.

DURATION

Counsel for the appellant attacked the court's findings that the respondent was incapacitated from working on the basis of her medical condition. He submitted that the court relied on a medical report prepared by a Dr Gunning which report was signed on 25 October 2015 - after the appellant had testified. It did not, at any rate, claim that the respondent could not work.

Per contra, counsel for the respondent submitted that the appellant's case, on appeal, is certainly different from his case in the court a quo.

In his declaration, he tendered maintenance until such time as the respondent cohabited with another man or remarried, whichever occurred sooner. The appellant, in his prayer before this court, now seeks an order for payment for a period of five (5) years reckoned from the date of the order of this Court. No amendment to the declaration was sought and granted.

The law is clear that parties are bound by their pleadings and they are not allowed to depart from them without leave.

The remarks by the authors JACOB and GOLDREIN in Pleadings: Principles and Practice (Sweet & Maxwell, London, 1990)…, which are cited with approval in the judgment in Jowel v Bramwell-Jones & Ors 1998 (1) SA 836,898 are apposite and to the following effect:

“As the parties are adversaries, it is left to each of them to formulate his case in his own way, subject to the basic rules of pleadings…; for the sake of certainty and finality, each party is bound by his own pleading and cannot be allowed to raise a different or fresh case without due amendment properly made.

Each party thus knows the case he has to meet and cannot be taken by surprise at the trial.

The Court itself is as much bound by the pleadings of the parties as they are themselves. It is no part of the duty or function of the court to enter upon an enquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings…,.

In the adversary system of litigation, therefore, it is the parties themselves who set the agenda of the trial by their pleadings and neither party can complain if the agenda is strictly adhered to…,.”

See also Dube v Bushman Safaris & Another HB112–13; Matambanadzo Bus Service (Pvt) Ltd v Magner 1971 (1) RLR 543…,.

The appellant is therefore bound by his pleadings wherein he offered to pay maintenance until such time as the respondent remarries or cohabites with another man.

This is the order that the court a quo granted.

Appealed
SC56-20 : MOVEMENT FOR DEMOCRATIC CHANGE and NELSON CHAMISA and MORGAN KOMICHI vs ELIAS MASHAVIRA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA
Ruled By: GARWE JA, PATEL JA and GUVAVA JA

There are numerous grounds of appeal herein, some of which are repetitive or should have been conjoined....,.Some of the grounds of appeal ought to be combined so as to rationalize their disposition.

SC62-20 : THANDO NCUBE vs FIDELITY PRINTERS AND REFINERIES (PRIVATE) LIMITED
Ruled By: MAKARAU JA

In an application for leave to appeal, the judge considering the application acts as a gate-keeper. The role of the judge is to keep out appeals with no prospects of success.It presents itself very clearly to me that an application that raises a point that has already been determined by ...

HH440-19 : INTRATREK ZIMBABWE (PVT) LTD vs ZIMBABWE POWER COMPANY (PVT) LTD
Ruled By: CHITAPI J

In an appeal, the appellant should not generalize a ground of appeal. The appeal should attack the courts findings and whether the court misdirected itself in fact or law or both....,.It is what the court determined which the Supreme Court may be called to find fault with....,.Grounds of appeal should ...

SC72-20 : TAYENGWA MUSKWE vs LAW SOCIETY OF ZIMBABWE
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

This is an appeal against the decision of the Legal Practitioners' Disciplinary Tribunal handed down on 6 March 2019, ordering that the appellant's name be deleted from the register of Legal Practitioners, Notaries' Public and Conveyancers.On the day following the hearing in this matter, the court issued an order dismissing ...

This is an appeal against the decision of the Legal Practitioners' Disciplinary Tribunal handed down on 6 March 2019, ordering that the appellant's name be deleted from the register of Legal Practitioners, Notaries' Public and Conveyancers.

On the day following the hearing in this matter, the court issued an order dismissing the appeal with costs, and indicated that the reasons for the order would follow in due course. These are the reasons.

FACTUAL BACKGROUND

The respondent is a statutory body established in terms of the Legal Practitioners Act [Chapter 27:07] (the 'Act'). It is a regulator of the legal profession in Zimbabwe. The appellant is a legal practitioner duly registered with the respondent.

In 2013, the Commercial Bank of Zimbabwe Limited ('CBZ Bank') sold a certain piece of land called Stand Number 543 of the remainder of subdivision D of the Grange Township to Mr and Mrs Jambo (hereinafter referred to as 'the purchasers') for US$68,411 inclusive of value added tax (VAT). CBZ Bank appointed Messrs Muskwe and Associates ('Messrs Muskwe') as its conveyancers in the Grange Project under which Stand Number 543 fell. The appellant is the principal of Messrs Muskwe and Associates.

The purchasers secured mortgage finance from the Central Africa Building Society ('CABS Bank') in the sum of US$54,911. On 19 December 2013, through the purchasers' legal practitioners, Messrs Wintertons, the appellant received a letter of undertaking from CABS Bank for the payment of the sum of US$54,911. This amount fell short of the required total by US$9,546, which was to be paid by the purchasers. On 12 February 2014, the purchasers paid US$8,753 to CBZ Bank instead of the full balance of US$9,546. CBZ Bank sent the US$8,753 back to the purchasers, indicating it would only accept the full purchase price. After the refund, the purchasers did not transmit the money to the appellant. The latter proceeded to effect transfer and registration of the property into the names of the purchasers on 3 April 2014 under Deed of Transfer 194/2014. This was before he had received the full purchase price from CABS Bank and the purchasers. The appellant acted on the basis of the undertaking by CABS Bank to pay US$54,911 even though it fell short of the purchase price by US$9,546. On 23 April 2014 CABS Bank honoured its guarantee and paid the sum of US$54,911 into the appellant's trust account. The appellant, however, did not promptly remit the amount to CBZ Bank.

As at 9 December 2014, the purchasers had not paid the full amount required of them.

The full purchase price of US$68,411 was eventually paid into the appellant's trust account. However, it had taken the appellant two years to secure the balance from the purchasers and pay it to CBZ Bank. This process was, however, not without its own rough patches. It appears that prior to 27 January 2016 the appellant and CBZ Bank discussed the payment of the amount held in the appellant's trust account. The appellant requested a grace period of up to 31 March 2016 to effect the required payment. CBZ turned the request down. On 27 January 2016 CBZ Bank gave the appellant seven (7) days' notice to effect full payment, failing which it would register a complaint against him with the respondent. On 15 February 2016, the Bank, through its legal practitioners, wrote to the appellant indicating that consequent upon his failure to comply with the directives and the demands of the letter of 27 January 2016, it was going to register a complaint with the respondent as well as institute legal proceedings against him. Subsequently, the Bank filed a complaint with the respondent on 8 March 2016.

Before this date, the appellant made part payment of US$20,000, on 5 February 2016, leaving a balance of US$48,411. The balance was paid in instalments of US$47,000, on 29 March 2016, and US$1,411, on 22 April 2016 - both after the complaint had been registered with the respondent.

The latter then filed an application with the Legal Practitioners Disciplinary Tribunal (the Tribunal') seeking the deletion of the appellant's name from the register of legal practitioners in terms of section 28(1)(i) of the Legal Practitioners Act [Chapter 27:07]. This would, effectively, mean that the appellant would be de-registered as a legal practitioner. The respondent averred that the appellant, by his conduct, in the course of his practice as a legal practitioner, was guilty of unprofessional, dishonourable, and unworthy conduct contrary to what was expected of him in terms of the relevant provisions of the Legal Practitioners Act and related Statutory Instruments. In particular, the respondent charged that the appellant:-

“(a) Failed to pay promptly to his client, funds that had been deposited in his trust account amounting to $68,411, when the money became due and payable;

(b) Withheld payment of the funds without lawful excuse; and

(c) Failed to produce, despite demand, proof that he, at all material times, held the said funds in his trust account.”

The appellant filed a counter-statement disputing the allegations against him. However, at the hearing of the matter before the Tribunal, he pleaded guilty to all the charges against him and was duly found guilty. He thereafter proceeded to address the Tribunal in mitigation but to no avail. The Tribunal imposed the penalty of deregistration.

Aggrieved at this penalty, the appellant noted this appeal on the following grounds, that I have taken the liberty to summarise:-

1. The Disciplinary Tribunal erred and misdirected itself in taking into account, and premising its findings on irrelevant, extraneous and manufactured facts;

2. The Disciplinary Tribunal erred and misdirected itself in the outright dismissal of the appellant's mitigation, and in finding that migratory (sic) circumstances were only relevant for the purpose of making an application for re-admission to the Registrar of Legal Practitioners, Notaries Public and Conveyancers.

3. The Disciplinary Tribunal erred and misdirected itself by insisting on the ultimate penalty in the face of weighty mitigating factors pleaded by him, including his long blame-free legal career, full restitution made, and demonstrated contrition;

4. The Disciplinary Tribunal erred and misdirected itself in failing to consider the concessions made by the respondent's legal practitioner, that the facts 'squarely' before it did not warrant the ultimate penalty.

5. The Disciplinary Tribunal misdirected itself by mis-reading the facts contained in the appellant's opposing papers which clearly indicated that the full purchase was done (sic) sometime in 2015.

These grounds of appeal, in my view, raise one issue for determination, which is, whether or not the Disciplinary Tribunal erred in imposing the ultimate penalty of striking out the appellant's name from the register of Legal Practitioners, Notaries Public and Conveyancers.

The appellant avers that the Disciplinary Tribunal relied on irrelevant, extraneous and manufactured facts. It is contended, through his first ground of appeal, that the judgment of the Tribunal demonstrates that it related to another person, not the appellant.

The appellant, in his heads of argument, however did not motivate this ground of appeal nor did he make any further reference to it.

Accordingly, the first ground of appeal stands abandoned and will not be considered in this judgment.

SSC59-19 : PROSECUTOR-GENERAL OF ZIMBABWE vs INTRATREK ZIMBABWE PL and WICKNELL CHIVAYO and L. NCUBE N.O.
Ruled By: PATEL JA

This is an application for leave to appeal to the Supreme Court in terms of section 44(6) of the High Court Act [Chapter 7:06].

In particular, the applicant seeks leave to appeal against the decision of the High Court handed down on 20 March 2019 in Case No.11141/18 (as Judgment No. HH229-19).

The effect of that judgment was to quash the criminal charges against the respondents in Case No. CRB P 9114-5/18, and, consequently, to order their acquittal on those charges.

The Background

The applicant herein is the Prosecutor-General. The first respondent is a company styled Intratrek Zimbabwe (Pvt) Ltd (Intratrek), while the second respondent, Wicknell Munodaani Chivayo (Chivayo), is that company's Managing Director.

The respondents were charged with two counts of fraud and two counts of contravening local exchange control requirements. All four charges emanate from an Engineering, Procurement, and Construction Contract (the Contract) entered into between Intratrek, represented therein by Wicknell Munodaani Chivayo (Chivayo), and the Zimbabwe Power Company (Pvt) Ltd (the ZPC).

The Contract, which was concluded on 23 October 2015, was for the construction of a 100 megawatt solar power generation plant in Gwanda (the Project).

The first charge alleges fraud pursuant to misrepresentation by the respondents through the submission of invoices designed to fund a feasibility study for the Project. It is alleged that the Zimbabwe Power Company (Pvt) Ltd (ZPC) released a total of US$2,435,654 on the strength of those invoices and that the respondents converted those funds to their own use thereby causing actual prejudice in that amount.

The second charge also alleges fraud by misrepresentation through the presentation of invoices for pre-commencement works on the Project. Again, it is alleged that the Zimbabwe Power Company (Pvt) Ltd (ZPC) acted upon the misrepresentation and released funds to the respondents who converted those funds to their own use thereby causing actual prejudice in the sum of US$3,188,476=80.

The third and fourth charges pertain to alleged exchange control violations.

The third charge alleges that the respondents entered into an unlawful agreement with a company resident in the United States of America involving the payment of recurring fees amounting to US$849,479 without seeking prior approval from the Exchange Control Authority. The fourth charge alleges that the respondents were granted exchange control approval to load Wicknell Munodaani Chivayo's VISA cards with funds amounting to US$849,479 to import earthmoving equipment for civil construction purposes at the Project. It is alleged that the respondents failed to provide bills of entry to the CBZ Bank as proof of receipt of the imported goods for acquittal purposes within 90 days of effecting payment.

Magistrates Court and High Court Proceedings

In Case No. CRB P 9114-5/18, before the Magistrates Court, the respondents pleaded not guilty and excepted to all four charges in terms of section 171(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The exception was premised on the assertion that the facts as alleged in the Charge Sheet and State Outline did not disclose any offence, whether as alleged or at all.

The learned magistrate found that the charges in question did capture the essentials expected of a charge to enable the accused persons to properly plead thereto. He accordingly dismissed the exception.

Aggrieved by that ruling, the respondents filed an application to the High Court for the review of the magistrate's decision on the ground that it was grossly unreasonable and patently contrary to law. The respondents also filed a separate application to the High Court for the stay of proceedings before the Magistrates Court pending the determination of the application for review.

The latter application was heard and determined in Case No. HC11205/18 (as Judgment No. 849-18 per MUSAKWA J) on 31 December 2018. The learned judge found that there were no formal defects in three of the four counts and that the applicants (the respondents herein) had no prospects of success on review in respect of those three counts. The third count was found to be defective. The court accordingly ordered that the criminal trial be suspended only in respect of the third count and that the trial could proceed in respect of the other three viable counts.

High Court Judgment on Review

In the judgment which the applicant seeks leave to appeal against, the High Court found that the learned magistrate had misdirected himself because he dealt with an issue that was not before him. In particular, he had been asked to adjudicate whether or not the facts alleged disclosed an offence, but, instead, decided that the charges against the respondents were properly framed and therefore disclosed an offence. The High Court held that this was a reviewable irregularity that went to the root of the matter. The court then proceeded to determine the question itself by way of considering, in great detail, the merits of the entire case against the respondents. I summarise its principal findings as follows:

(i) The payments made by the Zimbabwe Power Company (Pvt) Ltd (ZPC) were advance payments authorised by contract and this negated any intention to deceive or cause prejudice.

(ii) The Zimbabwe Power Company (Pvt) Ltd (ZPC) incurred its own loss by negligently paying the respondents before any performance bond or guarantee was put in place.

(iii) Where a contractual agreement provides effective redress, the dispute should be resolved contractually and liability should not be extended under the different remedial regime of Criminal Law.

(iv) The respondents did not commit any offence under the Exchange Control Regulations as the Guidelines in question were not made under the Exchange Control Act, and, in any event, the respondents could have sought exchange control approval after entering into the relevant contract.

(v) No criminal offence was established in relation to the non-acquittal of payments as the Authority in question was not promulgated under the Exchange Control Act and did not prescribe any offence.

(vi) Wicknell Munodaani Chivayo (Chivayo) merely represented Intratrek Zimbabwe (Pvt) Ltd (Intratrek) in his capacity as its Managing Director and was therefore wrongly charged in his personal capacity.

(vii) To the extent that section 277(5) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code) imputes vicarious liability to Wicknell Munodaani Chivayo in respect of an offence allegedly committed by Intratrek Zimbabwe (Pvt) Ltd, the charges in question breached the protective provisions of sections 49(1) and 56(1) of the Constitution and were therefore invalid.

(viii) On the totality of the facts and the merits, it was highly improbable that a criminal suit would succeed, and, therefore, its continuation would violate section 49(2) of the Constitution.

The learned judge concluded by reiterating that a Criminal Court does not have any jurisdiction to hear or determine any case of a civil nature as in casu. He then set aside the learned magistrate's ruling and substituted it with an order that the exception to the charges should succeed, resulting in all of the charges being quashed and both respondents being formally acquitted....,.

As already stated, the applicant seeks leave to appeal against the judgment of the High Court in terms of section 44(6) of the High Court Act.

His intended appeal is premised on points of law and on the averment that the court acquitted the respondents on a view of the facts which could not reasonably be entertained....,.

Grounds of Appeal

The intended grounds of appeal herein, as paraphrased, aver that the learned judge a quo misdirected himself and/or erred in the following respects:

1. In finding that the facts do not disclose an offence of fraud when it was apparent from the State Outline that the respondents had misrepresented to the Zimbabwe Power Company (Pvt) Ltd (ZPC) that a total of US$1,960,125 had been paid to subcontractors when such money had not been paid and was used by the respondents for their own benefit to the prejudice of the Zimbabwe Power Company (Pvt) Ltd.

2. In failing to consider the provisions of section 278(3) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (Criminal Law Code) which impute that a person's conduct can constitute both criminal and civil liability and that the State could resort to criminal redress in a matter that was not purely contractual.

3. In finding that the facts do not disclose an offence of fraud as against the second respondent where he was chargeable in his personal capacity as a director of the first respondent and there was a paper trail to show that both respondents misrepresented facts to the Zimbabwe Power Company (Pvt) Ltd to its prejudice and that the funds were used by both respondents for their own benefit.

4. In making a finding that effectively interfered with un-terminated proceedings where there were no exceptional circumstances to warrant such interference and where trial had commenced and evidence was being led before the Magistrates Court.

5. In finding that the facts pertaining to the fourth count do not disclose an offence of entering into an agreement without seeking prior exchange control approval.

The relief sought by the applicant, on appeal, is that the appeal should succeed and that the judgment of the court a quo be set aside and substituted with an order dismissing the exception and continuing the trial under Case No. CRB P 9114-5/18.

At the hearing of the matter, the Court noted two anomalies in the grounds of appeal.

The first relates to the first ground with reference to the total amount involved under the first and second counts, i.e. US$5,624,130=80 as opposed to US$1,960,125. The second pertains to the fifth ground of appeal which erroneously refers to the allegations contained in the third count (which count was dropped at the criminal trial) as opposed to the fourth count.

Counsel for the applicant acknowledged these anomalies and sought an amendment to the first ground to reflect the correct amount of US$5,624,130=80. She also abandoned the fifth ground and requested that it be expunged.

Counsel for the respondents did not oppose these amendments. The grounds of appeal were accordingly amended as prayed for by consent.

SC84-20 : TIZAI CHISWANDA (in his capacity as father and guardian of CHIDOCHASHE CHISWANDA) vs OK ZIMBABWE LIMITED
Ruled By: GARWE JA, GOWORA JA and BERE JA

When this matter was called, counsel for the appellant applied to amend the grounds of appeal.Counsel for the respondent was not averse to the application. The matter was stood down to allow counsel to confer on the proposed amendments. When the matter resumed the parties indicated that they had agreed ...

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

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

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

Whether the court a quo correctly determined that the matter was urgent...,. An order granting the urgent hearing of a matter is generally not appealable. This is for the simple reason that the order has no bearing on the merits of the application or judgment.This is akin to a Bank ...

Appealed
SC87-20 : CECK ENTERPRISES PL vs MARIA SITHOLE and MATHIAS SITHOLE (represented by TAKURA MUKWESHA as Executrix Dative) and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT
Ruled By: GWAUNZA DCJ, HLATSHWAYO JA and BHUNU JA

This is an appeal against the whole judgement of the High Court handed down on 14 March 2018 dismissing the appellant's counter claim against the first respondent.FACTUAL BACKGROUNDThe first and the second respondents were married and later on divorced. They owned a property, namely, Stand No.2395 Glen View (“the property”). ...

This is an appeal against the whole judgement of the High Court handed down on 14 March 2018 dismissing the appellant's counter claim against the first respondent.

FACTUAL BACKGROUND

The first and the second respondents were married and later on divorced. They owned a property, namely, Stand No.2395 Glen View (“the property”). Unbeknown to the first respondent, the appellant purchased the property from the second respondent in or about September 1997. In the court a quo, the first respondent averred that she only became aware of the sale when 'strangers came to view the house' pursuant to the offer they had received from the second respondent.

The first respondent accordingly, on 11 September 1997, successfully filed an urgent chamber application seeking a provisional order interdicting the second respondent from selling, ceding or otherwise disposing of his right, title and interest in the property pending the hearing of an appeal that she had noted in the divorce proceedings. The order, which was not opposed by the second respondent, who was then alive, also interdicted the third respondent from registering or giving effect to any sale or disposal of the second respondent's title in the said property. This was followed by a letter addressed to the Registrar of the High Court, on behalf of the first respondent, requesting that a caveat be registered over the Title Deed of the property (it is noted in this respect that this letter should properly have been addressed to the Registrar of Deeds).

The second respondent, nevertheless, proceeded to transfer the said property to the appellant on 3 November 1997, contrary to the terms of the order interdicting him from doing so. The transfer was executed through the same law firm that had failed, on his behalf, to oppose the application that culminated in the order interdicting him from effecting transfer of the property.

The appellant, thereafter, attempted to enforce its perceived rights in the property by seeking the eviction therefrom of the first respondent. The latter immediately filed an urgent chamber application and obtained a provisional order interdicting the appellant from evicting her from the property or interfering with her peaceful occupation thereof in any way.

In May 2002, the appellant filed a counter application seeking an order compelling the first respondent to deliver to it the title deeds of the property. The first respondent, in response, then filed an application a quo for confirmation of the provisional order granted in her favour in 1997. The appellant opposed the application and averred that it was not aware of the 1997 Order interdicting the second respondent from selling or otherwise disposing of the property....,.

In its third ground of appeal, the appellant contends that the court a quo grossly misdirected itself in making an award of costs against the appellant 'in view of the circumstances' of the case....,. Further, that the first respondent had exhibited lack of diligence in protecting her rights, given that she had only sought to have the 1998 provisional order confirmed after the appellant had instituted vindicatory action against her in the court a quo....,.

There is..., no evidence that the timing of the application for confirmation of the 1998 provisional order brought by the first respondent was an issue before the court a quo.

SC91-20 : CONSTANTINE CHIMAKURE and ALPHA MEDIA HOLDINGS PL vs AMBASSADOR AGRIPPA MUTAMBARA and ESTER MUTAMBARA
Ruled By: GOWORA JA, MAKONI JA and BERE JA

BACKGROUND FACTSThe respondents are husband and wife. They are before this Court pursuant to a suit for defamation instituted by them in the High Court against the appellants herein. In the declaration, the first respondent is described as an Ambassador. It is a description which appears common cause. The first ...

BACKGROUND FACTS

The respondents are husband and wife. They are before this Court pursuant to a suit for defamation instituted by them in the High Court against the appellants herein. In the declaration, the first respondent is described as an Ambassador. It is a description which appears common cause. The first appellant is the editor of the Newsday Newspaper, with the second appellant being the publisher, printer and distributer of the publication.

On 19 May 2014, the respondents, as plaintiffs, instituted proceedings by way of summons claiming damages for defamation arising out of an article published by the second appellant on 6 July 2012.

On 23 November 2016, the High Court dismissed with costs an exception filed by the appellants in answer to the claim for defamation damages instituted by the respondents herein. The court also ordered the respondents to furnish the appellants with the particulars of the exact words being relied on in the defamation suit within a specified period from the date of judgment.

This appeal is against that judgment.

In their declaration in the suit described above, the respondents alleged that one Francis Mhere had, on 5 July 2012, written a letter to the first respondent imploring him to rein in his spouse, the second respondent. The letter alleged that the second respondent was meddling in, and involving herself in child custody issues between Francis Mhere and his wife.

The respondents alleged that, without establishing the veracity or truthfulness of allegations in the letter, the appellants had gone ahead and published an article on 6 July 2012 in the Newsday publication of that day. The respondents alleged that the article was defamatory of and concerning them. It is alleged that despite the falsity of the article, the appellants published the statements in the letter which were made with the intention of making a public spectacle of the first respondent in the office of Ambassador with the intention of injuring his reputation.

It was further alleged that the statements were understood by the ordinary reasonable man within the readership of the Newsday newspaper to mean that the second respondent was out of control, meddled in other people's affairs, was selfish and cruel, vindictive in nature, and was not a law abiding citizen, and lacked moral fibre.

Based on the above allegations, the respondents claimed damages for the article published by the appellants in the sums of USD120,000 and USD80,000 respectively.

The appellants did not plead. They jointly filed an exception and application to strike out in the form set out hereunder:

“A. No cause of action disclosed.

1.1. First Defendant is cited as Constantine Chimakure cited herein in his capacity as the Editor of Newsday Newspaper.

1.2 First Defendant as cited does not exist and no cause of action is consequently disclosed against first defendant. Alternatively, the proceedings are as against first defendant a nullity. (sic)

1.3 First plaintiff does not allege that the publication on which he sues and its unnamed words were published of and concerning him. No cause of action is consequently set out in favour of first plaintiff. (sic)

1.4 Second plaintiff does not allege that the publication of 6 July 2012 was made of and concerning her. No cause of action is consequently set out in favour of second plaintiff.

B. Vague and embarrassing

1.5 Plaintiff alleges in para 9 of the declaration that -

'Defendant went ahead and published a damning article on 6 July 2012 on page 2 of that publication to the Plaintiff's mortification and detriment'.

In paragraph 11 they allege -

'The article contained falsehoods of a venomous type'.

1.6 The words complained of which are alleged to appear in the said article are not set out and their effect cannot be ascertained.

1.7 The claim is consequently vague and embarrassing.

C. Application to strike out

1.8 Plaintiffs tell a story in a declaration made up of 21 paragraphs. The declaration is argumentative, superfluous, irrelevant is crafted in breach of the rules of court and must be struck out.(sic)

Wherefore, defendants pray, in the main, that the exception be upheld and the claim be dismissed with costs. Alternatively, defendants pray that the declaration be struck with costs.”

PROCEEDINGS BEFORE THE COURT A QUO

Before the court a quo, the parties made the following contentions. As regards the appellants, it was contended, firstly, that the summons and declaration did not disclose a cause of action primarily because the first appellant, as defendant, did not exist. It was argued that the improper citation rendered the proceedings a nullity.

It was also contended that the summons was vague and embarrassing because the exact words published were not set out in the declaration. It was argued, further, that the declaration told a story which was superfluous, irrelevant, and argumentative contrary to the rules of court. To that end, it was only right that the declaration be struck out as being vague and embarrassing.

Premised on the above arguments, the appellants prayed that the exception be upheld with the claim being dismissed with costs. In the alternative, the appellants prayed that the declaration be struck out with costs.

The respondents countered by arguing that the first appellant, a natural person, had been properly cited. The description of the first appellant, as Editor of the newspaper, did not render the citation defective in any manner.

As to the objection that the summons and declaration did not allege that the publication was made of and concerning the respondents, it was contended that the declaration alleged that the publication made reference to a letter wherein certain specific allegations were made of both respondents. It was argued that the exception to the summons and declaration should, as a consequence, be dismissed with costs.

Turning to the allegation that the summons was vague and embarrassing, it was argued that the claim was not vague or embarrassing. In this regard, it was argued that the prayer for the striking out of the declaration should be dismissed with costs.

It was further contended that the prayer for the dismissal of the claim, in the event of the exception being upheld, was misplaced. The proper course, it was argued, would be to afford the respondents an opportunity to amend the declaration.

The court a quo reasoned as follows:

“The defendants do not know which words are defamatory according to the plaintiff and this is 'embarrassing' to them. See National Union of Distributive Workers v Cleghorn & Harris Ltd 1946 AD 984; Sutton v Brown 1926 AD 155 @ 163; Demmers v Wylie & Ors 1980 (1) SA 835 @ 842D.

In the alternative, the objection taken is that the declaration is argumentative, superfluous, irrelevant, and is crafted in breach of the rules. The declaration tells a story, it is not a pleading. See Masukusa v National Foods Ltd & Anor 1983 (1) ZLR 232 (H) @ 236F-237A where it was held that;-

'Procedure, by way of notice of motion, though often convenient, is far less disciplined than procedure by action. A good novelist can write a series of exciting affidavits, and, at the end, claim large sums of money. It takes a lawyer to draw a declaration.'

Taruona v Zvarevadza & Ors HH87-12; Mwayisa v Jumbo & Ors HH03-10; Morris v Morris & Anor HH71-11.

Rule 99 (c) of the Rules of this court provides that:

'A pleading shall -

…,.

(c) Contain a statement, in a summary form, of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are proved.'

It is trite that a pleading which is irrelevant must be struck out. See Stephens v De Wet 1920 AD 279 @ 282; Golding v Torch Printing & Publishing Co. (Pty) Ltd & Ors 1948 (3) SA 1067 (C) @ 1090.

It is my considered view that the defendants' remedy lies in an application for further particulars if they are of the view that the exact words relied upon by the plaintiff's ought to form part of the summons and declaration. This would cure the defendants' embarrassment, if any. An exception which goes to the root of the matter and is calculated to divest the plaintiffs of any vestige of a cause of action is ill conceived in these circumstances, and inappropriate.

We find merit in the submission made on behalf of the plaintiffs that the case law which is relied upon by the defendants is distinguishable from the circumstances of this case and inapplicable. That case implies that the court must exercise its discretion in the circumstances of the case before it, and in this case, it is my view that the defendants are not embarrassed by the plaintiff's claim to the extent that the plaintiff's case should be dismissed by the upholding of the exception. Rather than delay the resolution of this matter further, the court directs that the plaintiffs set out the exact words that they allege to be defamatory as they appear in the letter which they refer to in the declaration.”

The court a quo dismissed the exception with costs being made to be in the cause. The respondents were ordered to furnish the appellants within a period of ten days, with the particular words on which the claim for defamation was premised.

THE APPEAL

With the leave of this court, the appellants have noted an appeal on the following grounds:

“1. The court a quo erred in holding that the appellants' exception did not go to the root of the respondents' claim. At law, where a party fails to plead and set out actual allegedly defamatory statements upon which its claim for defamation is based, then such pleading is patently defective and cannot be amended.

2. The court a quo further erred in holding that the appellants' exception was without merit and worthy of dismissal. Such holding was, at law, anomalous on account of the finding by the same court that the respondents' pleadings were deficient and called for better particulars.

3. The court a quo erred in granting to the respondent's relief that was not sought or pleaded. There was no cause for the amendment of the respondents' pleadings, and, the court went beyond the purview of its jurisdictional mandate in ordering an amendment and particularizing the details of such amendment.

4. Additionally, the court, again, erred in disregarding the mis-citation of the first appellant. At law, a summons that cites a non-existent person or capacity is a nullity.

5. The court a quo grossly misdirected itself and erred in holding that the respondents' declaration was capable of being pleaded to. Once a declaration is vague and embarrassing the defendant ought not to be required or compelled to plead to it.”

Three issues for determination emerge from the grounds set out above;

(i) First and foremost is whether or not the citation of the first appellant is defective rendering the summons and declaration a nullity as contended by the appellants.

(ii) The last two issues are whether or not the summons and declaration do not establish a cause of action rendering them subject to an exception and also vague and embarrassing and liable to be struck out....,.

It only remains for me to deal with the arguments made by the parties on the application to strike out the declaration.

The appellants submitted that the declaration was crafted in breach of the rules of court and on that premise ought to be struck out in its entirety.

It is argued, by the respondents, that the application was not in the proper form, and, as a result, was not before the court a quo.

It seems to me that counsel on both sides of the appeal have overlooked one fundamental issue; that there is in fact no appeal against the refusal by the court a quo to strike out the declaration. None of the grounds speak to the issue of the alleged irrelevant, superfluous, or argumentative nature of the declaration. The court a quo has not been impugned for its decision not to strike out the declaration.

In the absence of a ground of appeal on that aspect this Court cannot embroil itself in a matter not in contention.

SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS
Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

The stated grounds of appeal in this matter are conspicuously repetitive.

SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS
Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

The fourth ground of appeal invokes section 81(5) of the Constitution, a manifestly non-existent provision, and is obviously quite superfluous. It is accordingly struck out.

HH141-12 : JG CONSTRUCTION vs GRAEME CHADWICK AND DEPUTY SHERIFF
Ruled By: BERE J

In the headnote of the case of Hubert Davies Employees Trust (Pvt) Ltd Ors v Croco Holdings (Pvt) Ltd 2009 (2) ZLR (S)..., it is stated:"A notice of appeal which does not comply with the requirements of Rule 29 of the Supreme Court Rules, 1964 is fatally defective. ...

SC103-20 : VERITAS and FIRINNE TRUST ALSO KNOWN AS VERITAS vs ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: GOWORA JA, GUVAVA JA and BHUNU JA

The first appellant, Firinne Trust, is a trust incorporated as such by Deed of Trust under the laws of Zimbabwe and registered with the Registrar of Deeds. It trades as Veritas, which is the second appellant herein.

The first respondent, is the Zimbabwe Electoral Commission (ZEC), established in terms of section 238 of the Constitution. Although it is established under the Constitution it carries out its mandate in terms of the Electoral Act [Chapter 2:13] the (“Act”).

The second respondent, the (“Minister”) is the Government official assigned the administration of the Electoral Act [Chapter 2:13]. The third respondent (“the Attorney-General”), is the legal adviser to the Government.

On 19 December 2017, under Case No. HC11749/17, Veritas filed an application with the High Court in which it sought a declaratur and ancillary relief pertaining to sections of the Electoral Act. The premise of the application was that the specified sections of the Electoral Act imposed restrictions on conducting voter education by persons other than the Zimbabwe Electoral Commission (ZEC) and political parties.

In this application, Veritas, on its own behalf and on behalf of the public in general sought an order declaring sections 40C(1)(g), 40C(1)(h), 40C(2) and 40F of the Electoral Act [Chapter 2:13] as being ultra vires sections 56, 61 and 67 of the Constitution; the allegation being that the impugned sections infringe the right of the public in general, and that of Veritas in particular, to equality and non-discrimination, freedom of expression, and their political rights, including the right to a free and fair election and to make political choices freely.

The Zimbabwe Electoral Commission (ZEC) opposed the application raising several points in limine relating to the citation of the applicant in the matter and the form of the application which it contended was not in accordance with the requirements of the rules of court.

In response, and under Case No. HC4391/18, Firinne Trust filed an application for leave to amend the citation of Veritas as applicant. It sought that the record be amended to reflect the applicant as “Firinne Trust also known as Veritas.”

This application was also opposed by the Zimbabwe Electoral Commission (ZEC).

The Minister and the Attorney-General filed their opposing papers out of time. Their failure to adhere to the rules was condoned at the hearing of the applications and they were given leave to participate in the proceedings.

The matters were subsequently consolidated, by consent, and set down for hearing before the same judge.

The learned judge in the court a quo was persuaded to find that the application was fatally defective in that it had been filed by a non-existent party. As a consequence, he refused the request for leave to amend the citation of the applicant (Veritas) for the reason that there was no applicant before him.

He also found that the form used by Veritas in the court application rendered the application itself fatally defective.

Consequent thereto, he upheld the points in limine and dismissed both applications with costs.

This appeal is against the dismissal of the applications.

THE APPEAL

Although the learned judge did not delve into the merits of the dispute the Notice of Appeal filed sought to touch on the merits of the dispute. The court is grateful to counsel for accepting that the merits of the dispute are not in contention in this appeal. The appeal before us is, as a result, confined to the determination by the court of the points in limine.

SC107-20 : COLCOM FOODS LIMITED vs TARUVA TARUVA
Ruled By: GWAUNZA DCJ, GUVAVA JA and MATHONSI JA

At the commencement of the hearing of the appeal, counsel for the appellant abandoned the first ground of appeal....,. Accordingly, the first ground is struck out and will not be related to in this judgment.

Appealed
SC28-18 : NYAKUTOMBWA MUGABE LEGAL COUNSEL vs GETRUDE MUTASA and DIDYMUS MUTASA and SHERIFF OF ZIMBABWE
Ruled By: GARWE JA, MAKARAU JA and GUVAVA JA

This is an appeal against the judgment of the High Court of Zimbabwe ordering the return of all the goods belonging to the first and second respondents attached pursuant to a default judgment granted earlier by the same court against the second respondent.

The judgment appealed against also ordered that the returned goods remain under judicial attachment until the finalisation of the proceedings between the parties.

The facts of this matter are common cause. I summarise them hereunder.

The appellant rendered legal services to the second respondent and others which services were not paid for. The appellant sued for the unpaid fees in the High Court and was granted a default judgement against the second respondent. To satisfy the judgment, the third respondent attached certain goods and chattels at the residence of the first and second respondents, which is their matrimonial residence. The attached goods were removed.

The second respondent approached the High Court seeking an order staying the execution process that was underway. That court, being of the opinion that the application to stay execution had been brought after the event, the goods having been removed, declined to hear the application and accordingly dismissed it on the turn without going into the merits of the matter.

The first respondent approached the court a quo, on a certificate of urgency, seeking an order returning all the attached property that had been removed by the third respondent. The court a quo granted the application as prayed, prompting the appellant to note this appeal.

In attacking the decision of the court a quo, the appellant raised four grounds of appeal as follows:

1. The court a quo erred in finding that the matter was urgent;...,.

In University of Zimbabwe v Kwanele Muriel Jirira and Others SC45-13, this court had recourse to the nature of the decision that the court a quo had made to determine whether or not the judgment appealed against was interlocutory or final and definitive. This is what it had to say:

“What is to be determined in casu is the nature and effect of the decision of the court a quo.

Prior to that decision, the respondents had obtained a writ of execution against the movables of the appellant to satisfy the sum of US$291,214=13 awarded by the arbitrator. They had also proceeded to serve an application for a garnishee order on the applicant and its bankers, which operated to freeze the appellant's bank account. Thus, as at the time of its urgent application, the appellant was exposed to the imminent disposal of its library books, computers and other equipment, as well as the inability to access its bank account.

On these facts, we take the view that the court's refusal to deal with the matter as being urgent, whether correctly or otherwise, had the effect of finality. In that sense, the decision was final and definitive and not merely interlocutory.”

In the result, it found that the court had made a final pronouncement on the particular issue that was before it - the issue of whether or not the matter deserved to be treated urgently....,.

I turn to deal with the first ground of appeal.

In the first ground of appeal, the appellant argued that the court a quo should not have treated the matter as urgent as the second applicant had approached the court earlier, through another urgent chamber application, seeking to stay the execution of the default judgment.

It is common cause that the second respondent had approached the court on 10 February 2017. The attached property was removed on 11 February 2017. The second respondent's urgent application was heard and dismissed on 12 February 2017. The second application, by the second respondent, was then filed on 18 February 2017.

It is in these circumstances that the appellant argues that the court a quo mis-applied the principles regulating urgency by holding that the matter was urgent. In the appellant's view, the court a quo ought to have held that the matter was not urgent and should have resultantly dismissed the application on that basis.

It is further common cause that the court a quo, fully cognisant of the above facts, formed the opinion that the matter was urgent, and, thereafter, proceeded to hear and determine the matter on that basis.

The finding by the court a quo was an exercise of discretion by that court.

The issue that then presents itself in this appeal is whether or not the Appeal Court must interfere with such exercise of discretion.

Matters are heard urgently if, in the opinion of the court seized with the matter, the determination of the matter cannot wait the usual allocation of trial dates in terms of the rules of court. Whilst each matter falls to be determined on its own facts, there is a plethora of case authority on the factors that a court must advert to before it makes a finding that a matter warrants to be heard on an urgent basis.

In my view, a finding that a matter is urgent simply enables such a matter to go to the head of the queue of the matters that are before that court and thereby demand the urgent attention of the court. Such a finding does not colour the merits of the matter. More importantly, such a finding does not, in itself, dispose of the matter - unlike a finding that the matter is not urgent which is a final and definitive judgement as discussed above.

It is my further view that a finding of urgency by a court cannot constitute a substantive ground of appeal, one that can stand on its own in the absence of another ground showing that having exercised its discretion to hear the matter urgently, the court caused an injustice to the appellant or erred in some other regard.

In other words, it will not be proper, on appeal, to set aside an otherwise correct decision of the court a quo merely on the basis that the court a quo arrived at that correct decision on an urgent basis which was unwarranted. This is so because an appeal is a procedure through which the correctness of the decision of the lower court is tested and once its correctness is accepted, no appeal can lie against it.

It is my further view that a finding of urgency by a court cannot constitute a substantive ground of appeal, one that can stand on its own in the absence of another ground showing that having exercised its discretion to hear the matter urgently, the court caused an injustice to the appellant or erred in some other regard. In other words, it will not be proper, on appeal, to set aside an otherwise correct decision of the court a quo merely on the basis that the court a quo arrived at that correct decision on an urgent basis which was unwarranted. This is so because an appeal is a procedure through which the correctness of the decision of the lower court is tested and once its correctness is accepted, no appeal can lie against it.

I therefore find no merit in the first ground of appeal which is accordingly dismissed.

SC73-17 : TENDAYI TAMANIKWA and FRANK TINARWO vs ZIMBABWE MANPOWER DEVELOPMENT FUND and EMMERSON PAMIRE
Ruled By: GWAUNZA JA, BHUNU JA and UCHENA JA

This is an appeal coupled with a cross-appeal against the judgment of the Labour Court.

Both appellants, in the main appeal, and the respondent in the cross appeal, Emmerson Pamire, were employed by the respondent. Following leakages of confidential information at the work place, the respondent ordered them to sign declaration of secrecy forms. They wilfully disobeyed that order and were suspended from employment pending disciplinary action.

As managerial employees, the first and second appellants had been issued with motor vehicles by their employer. Upon suspension, they were ordered to return the motor vehicles. They both wilfully refused to return the motor vehicles as ordered by the employer.

All the three (3) employees were eventually charged with wilful disobedience to lawful orders before the Disciplinary Authority. They were all found guilty as charged and dismissed from employment on 28 November 2013.

Disgruntled by their dismissal from employment, they approached the Labour Officer, who, in turn, referred the dispute for arbitration in terms of section 93 of the Labour Act [Chapter 28:01].

The terms of reference before the arbitrator, branded, “CLAIMANTS' ISSUES FOR DETERMINATION” were as follows:

“Whether or not the dismissal of the three claimants was fair and lawful?

1. Whether or not the employer was entitled, at law, to institute fresh disciplinary proceedings without complying with the Supreme Court order of 16 July 2013 ordering them to reinstate the claimants without loss of salary and benefits?

2. Whether or not it was lawful for the employer to charge first and third claimants with wilful disobedience of lawful orders arising out of their failure to handover vehicles when the matter of ownership and possession of the vehicles was sub judice (the subject of a legal dispute) which is still pending in the High court in case numbers HC6419/2010, HC6420/10, HC4233/10 and HC4258/2010 which cases were all consolidated under case number HC4258/2010 for purposes of trial?

3. Whether the labour dispute leading to the disciplinary proceedings instituted by the respondent against claimants on 17 July 2013 had prescribed in terms of section 94 of the Labour Act Chapter 28:01 and whether the respondent had a right to charge the claimants for misconduct over the events that allegedly occurred on August 2009?”

The arbitrator, on the basis of the terms of reference placed before her, found that the employer's orders were lawful as they were meant to advance the employer's business. She accordingly upheld the claimants' conviction. She, however, overturned the penalty of dismissal and substituted it with a lesser penalty of final written warning.

The award reads:

“AWARD

1. The Respondent, Zimbabwe Manpower Development Fund (ZIMDEF), be and is hereby ordered to substitute the dismissal penalty with a final written warning valid for twelve (12) months.

2. Respondent be and is hereby ordered to reinstate the claimants without loss of pay and benefits from the date of dismissal.

3. If reinstatement is no longer tenable parties may negotiate for damages in lieu of reinstatement failure of which either party my approach the arbitrating authority for quantification.”

Dissatisfied with the above order reinstating the three (3) respondents, the employer appealed to the Labour Court. The respondents did not, however, cross-appeal against the arbitrator's award upholding the Disciplinary Authority's verdict convicting them of dismissible acts of misconduct as charged.

The second respondent, in the court a quo, Emmerson Pamire, was, however, partially successful in that Court. The court a quo set aside the arbitrator's award and upheld the decision of the Disciplinary Authority dismissing the first and third respondents from employment as prayed for by the employer.

The appeal against the reinstatement of the second respondent, in the court a quo, was, however, unsuccessful in that the court a quo upheld the arbitrator's order of reinstatement. The court a quo's order reads:

“WHEREFORE IT IS ORDERED THAT:

1. The appeal be and is hereby allowed.

2. The arbitration award issued by arbitrator C K Kadenga dated 8 December 2015 is set aside.

3. The dismissal from employment of 1st and 3rd respondents (Tendayi Tamanikwa and Frank Tinarwo) by appellant is upheld.

4(a) The appellant shall reinstate the 2nd respondent Emmerson (Emmerson Pamire) without loss of salary and benefits; or

(b) If reinstatement is no longer tenable, appellant shall pay 2nd respondent damages in such (sic) either agreed by the parties or assessed by this court.”

Unhappy with the Court a quo's judgment, ordering their dismissal from employment, the first and second appellants, in the main appeal, Tendayi Tamanikwa and Frank Tinarwo, appealed against part of the court a quo's judgment upholding their dismissal from employment. Having appealed only against part of the judgment, they erroneously went on to pray for the setting aside of the whole judgment.

The Notice of Appeal reads:

“TAKE NOTICE that the Appellants hereby appeal against part of the judgment of the Labour Court…,.”…,.

Whereas the relief sought reads as follows:

“RELIEF SOUGHT;

The appellants seek the following relief:

1. That the appeal is allowed with costs.

2. That the judgment of the court a quo is set aside and in its place substituted by the following:

2.1 The dismissal from employment of the 1st and 2nd appellants be and is hereby set aside.

2.2 The Respondent shall reinstate the 1st and 2nd Appellants without loss of salary and benefits with effect from their date of dismissal.

2.3 If reinstatement is no longer suitable, the Respondent shall pay damages to 1st and 2nd Appellants without loss of salary and benefits in an amount to be agreed or assessed by the Labour Court.”…,.

It is plain that the Notice of Appeal and the relief sought by the appellants are irreconcilably contradictory. It is rather irrational for the appellants to appeal against only part of the judgment and then seek to have the whole judgment set aside.

The learned Chief Justice, in his routine supervisory and administrative functions, noted the fatal irregularity and engaged counsel for the appellants with a view to enlighten him about the fatal defect in his Notice of Appeal.

His extra curial intervention was made in good faith to avoid clogging the court with fatally defective appeals. As the Chief Justice was not presiding over a court but merely performing his administrative function there was nothing he could do to prevent counsel from taking his patently defective Notice of Appeal to court.

Disputing the fatality of the defects in his Notice of Appeal, counsel for the appellants steadfastly stuck to his guns and refused to take the learned Chief Justice's wise counsel. It however dawned on counsel, later on, that his Notice of Appeal was defective.

He then filed an application to amend the defective Notice of Appeal on 6 September 2017.

In his application to amend the Notice to Appeal, counsel for the appellants acknowledged that the Notice was defective for want of compliance with Rule 7(b) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975 in two material respects, namely:

1. The mis-naming of the parties in the prayer as described at sub paragraph 2.2; and

2. The non-statement in paragraph 2 of the prayer that only part of the judgment of the court a quo should be set aside.

While accepting that his Notice of Appeal was defective, counsel for the appellants sought to persuade the court that the above defects in his Notice of Appeal were not fatal as they are capable of being amended.

Rule 7 is however couched in peremptory terms admitting no exception. It reads:

“7. Contents of Notice of Appeal

A notice instituting an appeal shall state —

(a) The tribunal or officer whose decision is appealed against; and

(b) The date on which the decision was given; and

(c) The grounds of appeal; and

(d) The exact nature of the relief sought; and

(e) The address of the appellant or his legal representative.”…,.

It is settled law that, save in exceptional circumstances, the term 'shall', denotes the law maker's intention to render the Rule mandatory.

This Court has ruled, on numerous occasions, that failure to comply with mandatory provisions of the Rules of court will render an appeal a nullity.

In Chikura and Another v Al Sham's Global BVI Limited SC17-17 ZIYAMBI JA had occasion to remark that:

“The Rules are made for the proper running of the Court. Failure to comply with its mandatory provisions will render an appeal a nullity. See Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S).”

In Freezewell Refrigeration Services (Private) Limited v Bard Real Estate (Private) Limited SC61-03, this Court held that a fatally defective appeal cannot be condoned or amended. It can only be struck off.

The Notice of Appeal, in this case, is, therefore, fatally defective and a nullity at law. For that reason it is incurably bad and beyond repair.

The authorities are clear, and it is now a matter of settled elementary law, that, when a proceeding is a nullity every proceeding based on it is also a nullity as observed by KORSAH JA in Ngani v Mbanje & Another; Mbanje & Another v Ngani 1987 (2) ZLR 111…, where the learned judge, relying on the dicta in McFoy v United Africa Company Ltd ALL ER 1169 remarked that:

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

What this means, in simple terms, is that the application to amend the fatally defective appeal is also in itself fatally defective and a nullity at law.

For the foregoing reasons, this Court unanimously holds that both the Notice of Appeal and the application to amend are fatally defective warranting being struck off without any further ado.

Counsel for the respondents, in the main appeal, has asked for costs on the higher scale. Counsel for the applicants sought to resist costs at the punitive scale arguing that the Chief Justice was not sitting as a court and therefore he was at liberty to disregard his caution.

It is correct that the Chief Justice was not sitting as a court but his views mattered. The administrative function to scrutinise court records and engage lawyers before going to court is a noble objective meant to save time and money by nipping defects in the bud before they get to court.

While counsel for the applicants was not bound by the learned Chief Justice's opinion it was wise to take heed of his caution unless he was sure of what he was doing. Had he taken heed, he would not have taken a dead case to court wasting everyone's time and putting the other party to unnecessary expense.

Those who deliberately defy wise counsel and go on to negligently cause others patrimonial loss must not cry foul when they are made to make good the loss.

Costs at the punitive scale are therefore warranted.

It would, in the court's view, be unjust for counsel for the appellants clients to bear the burden of making good the loss when it is his questionable conduct that caused it.

Legal practitioners must be warned that this is the sort of conduct that may attract costs de bonis propriis. By negating sound advice and incurring unnecessary costs in the process, counsel for the appellants was doing his clients a disservice. For that reason, the court considered that it would be patently unjust and unfair to allow him to benefit from his indecorous conduct.

It is for the foregoing reasons that the court proceeded to issue the following order:

“Whereupon, after reading papers filed of record,

IT IS ORDERED THAT:-

1. The application to amend the Notice of Appeal is dismissed with costs on the higher scale.

2. The Applicant's Counsel, Mr. G Machingambi, is barred from charging fees to his clients for the application to amend the defective Notice of Appeal.

3. The cross-appeal is to be heard.”

SC73-17 : TENDAYI TAMANIKWA and FRANK TINARWO vs ZIMBABWE MANPOWER DEVELOPMENT FUND and EMMERSON PAMIRE
Ruled By: GWAUNZA JA, BHUNU JA and UCHENA JA

“AWARD

Turning to the cross appeal, the appellant is appealing against the reinstatement of the respondent, Emmerson Pamire, to his former employment.

The main appeal was dismissed with costs at the legal practitioner client scale leaving the concerned parties to argue the cross-appeal.

I now proceed to consider the cross-appeal.

The facts giving rise to the cross appeal are by and large common cause. The undisputed facts are that the disciplinary authority convicted the respondent of wilful disobedience to a lawful order to sign declaration of secrecy forms and ordered his dismissal from employment. He appealed to the arbitrator who upheld the conviction but reduced the penalty of dismissal to one of final written warning. The arbitrator then ordered his reinstatement without any loss of salary or benefits. In the alternative, the court a quo ordered damages to be assessed in the event that reinstatement was no longer possible.

The appellant appealed to the court a quo against the order to reinstate the respondent. The respondent did not, however, cross-appeal against the arbitrator's verdict upholding the disciplinary authority's verdict of guilty.

The respondent's failure to cross appeal against conviction can only mean that he accepted his guilt as charged. All he was challenging in the court a quo was the severity of punishment and not his conviction. His plea in the court a quo was one for mercy rather than a denial of misconduct as alleged.

As none of the parties questioned the correctness of the guilty verdict, and, in the absence of a cross-appeal, the appeal in the court a quo fell to be determined on the basis of the issues raised by the appellant in its grounds of appeal which were laid down before the court as follows:

“1. The arbitrator erred, on a question of law, by substituting the employer's discretion to impose a dismissal penalty.

2. The arbitrator erred on a question of law by not realising that the respondent(s') misconduct went to the root of their employment contract(s) thereby justifying a dismissal penalty.

3. The arbitrator grossly erred and misdirected himself that she had no jurisdiction on the second count against the respondents as per section 4(2)b of the Arbitration Act.

4. The arbitrator grossly erred and misdirected herself at law by failing to find that the appeal to the internal appeals officer was filed out of time.”

From the above grounds of appeal it is self-evident that the question of liability was not one of the issues to be determined by the court a quo as that issue had already been conclusively determined by the lower adjudicating authorities. It was therefore remiss of the court a quo to determine an issue that was not before it when it held at page 3 paragraph 5 of its cyclostyled judgment that:

“5. All respondents were not guilty of the charge related to the secrecy document.”

By framing and determining its own issue not raised by the parties, the court a quo erred and strayed into the wilderness of illegality.

HH173-17 : F. MUTATA and OTHERS vs THE MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND URBAN DEVELOPMENT
Ruled By: CHITAKUNYE J and NDEWERE J

This is an appeal against the judgment of the magistrate sitting at Harare in which he granted an order for the eviction of the appellants from certain premises owned by the Government.

The appellants are retrenched or retired civil servants who occupied houses situate in the Messengers' Camp in Highfields, Harare.

The respondent is the Minister responsible for the Ministry that leased houses in question to the appellants.

During the early years of the appellants' occupation of the houses, the respondent caused them to sign lease agreements. As time progressed, the appellants continued occupying the houses without signed lease agreements. They were now statutory tenants.

As the appellants were no longer civil servants, the respondent later wrote letters demanding that the appellants vacate the houses they were occupying. The appellants resisted the eviction and did not comply with notices of eviction that were subsequently issued out by the respondent.

In 2006, the respondent issued summons for the eviction of each of the appellants and whoever was claiming occupation of the houses through them.

The appellants' plea was to the effect that they had been promised that the houses would be sold to them and that they were thus willing to purchase the houses. In the alternative, the defendants contended that they had been promised alternative suitable accommodation in the event of being evicted from their current houses. They thus demanded to either be sold the houses or to be provided with alternative suitable accommodation.

The appellants' defence, in the court a quo, was basically that they had a legitimate expectation that the houses will be sold to them as sitting tenants or suitable alternative accommodation will be provided by the Government in terms of what they said was Government policy.

The respondent disputed that hence the matter was referred to trial.

At the time of trial, in 2007, the appellants had lived in the houses for periods ranging from 10 to 19 years.

The issues for determination were basically on the respondent's right to evict the appellants and whether the appellants had any legitimate expectation that the houses will be sold to them, or, alternatively, that they should be provided with other suitable accommodation.

The trial magistrate ruled that the defence of legitimate expectation could not avail the appellants as such a defence only applied to procedural rights such as the right to be heard and not on substantive rights such as that the respondent be ordered to sell the houses to the appellants or to provide them with suitable alternative accommodation.

The magistrate's decision was premised on the fact that the appellants had been insisting that the respondent should sell the houses to them or provide them with alternative accommodation to buy failure of which they would not vacate the houses.

In as far as the trial magistrate understood the appellants to be resisting eviction on substantive rights and not procedural rights, he cannot be faulted. Besides the pleadings that have already been referred to, the appellants' witness, Nyasha Masawi, confirmed as much.

Under cross examination, the witness confirmed that upon receiving letters to vacate they went and saw the Minister seeking to be provided alternative accommodation. Upon the Minister's verbal promise to organise alternative accommodation for them, they left. He concluded by saying that: “we expect to be given Stands to move to.”

In his closing submissions, in the court a quo, the appellants' counsel reiterated the appellants' stance that the legitimate expectation the appellants were expecting was for these houses or alternative accommodation to be sold to the appellants. He thus asked court to order the disposal of the houses to the appellants.

In written submissions made at the court a quo's request, counsel repeated the same when he said that: “the delay in evicting the defendants, after the expiry of the leases and the promises of disposal, cemented defendants' legitimate expectation of disposal of the houses to them as sitting tenants.”

Counsel further argued that: “it is the duty of the Ministry of local government, public works and national housing to house the citizens of Zimbabwe rather than evict them like what they want to do in this case. If they are not prepared to dispose of these houses to the defendants it is only just and equitable to have plaintiff hear the side of defendants story in a hearing and map the way forward rather than evict them. They should then afford the defendants the procedural right of legitimate expectation that is available in our law.”…,.

It was clear that the rights the appellants were craving for pertained to substantive and not to procedural rights. They wanted to be sold the houses. The trial magistrate, having found that the defence of legitimate expectation is available only in instances of procedural rights, concluded that since the appellants were seeking substantive rights, their defence was untenable.

The appellants' grounds of appeal were couched as follows:

1. The learned magistrate, in the court a quo, erred by holding that courts cannot interfere in policy matters holding that they are solely for the Government, failing to take into account the basic and rational for Administrative Law is to exert legal control over the way in which administrative authorities exercise their functions in order to ensure that these authorities do not exceed or abuse their powers. The law promotes effective use of administrative power at the same time providing protection against misuse of power.

2. The learned magistrate in the court a quo erred by holding that long stay in Government house does not impute ownership failing to take into account the circumstances that led to the long stay. Due consideration was not given to the undisputed fact that the long stay was caused by the respondent's assurances. The appellants have been staying in the houses for a period ranging between 10 - 20 years, was a result of Ministerial and political promises that they were in the process of disposing the houses to the appellants.

3. The learned magistrate in the court a quo erred by overlooking the extent to which the respondent had gone in promising the appellants that they were going to buy the houses they were occupying. The respondents had, up to present day, registered the appellants' names with City of Harare for the payment of rates, water and electricity bills. According to the appellants, such actions legitimatized their expectations that the houses were going to be sold to them.

4. The learned magistrate in the court a quo erred, clearly misdirected himself, thus his analysis of the matter can successfully be challenged.

Before determining whether the magistrate in the court a quo erred or not, it is pertinent to appreciate the doctrine of legitimate expectation.

In Metsola v Chairman, Public Service Commission & Another 1989 (3) ZLR 147 (SC) …, GUBBAY JA…, had this to say on legitimate expectation:

“Mr. Gillespie laid much emphasis on the legitimate expectation test introduced by LORD DENNING MR in Schmidt & Anor v Secretary of State for Home Affairs [1969] 1 ALL ER 904 (CA) at 909C and upheld by the Privy Council in Attorney General of Hong Kong v N g Yen Shiu [1983] 2 ALL ER 346 (PC) at 350 a-j.

Yet, this catch-phrase is no more than a manifestation of the duty to act fairly. It is clearly connected with the 'right to be heard'. It does not constitute an additional ground for the application of the audi alteram partem principle. In essence, it means no more than that the decision-maker must act fairly and apply the principles of natural justice before reaching any decision that will adversely affect the legitimate expectations of the aggrieved party.”

In Matake & 17 Others v Ministry of Local Government and National Housing & 2 Others 2007 (2) ZLR 96, the basic requirements of this defence were summarised as including the following:

1. The expectation underlying the expectation must be clear, unambiguous, and devoid of relevant qualification.

2. The expectation must be reasonable.

3. The representation must have been induced by the decision-maker.

4. The representation must be one which it was competent and lawful for the decision maker to make, without which reliance cannot be legitimate.

The doctrine of legitimate expectation is really a call for fairness and for the right to be heard before a decision adverse to the expectation of an affected party is made.

In applying the above exposition to the case at hand, it is apparent that, in raising legitimate expectation, the appellants were not seeking a procedural right to be heard but that the houses be sold to them as per their expectation. The pleadings and evidence in court confirm as much. It is in that light that the trial magistrate alluded to the fact that legitimate expectation is for procedural and not substantive rights.

In his heads of arguments, counsel for the appellants made the following concessions:

1. That the appellants cannot argue that the respondent be ordered by this court to sell the houses to them, and seek to defend their eviction on that basis.

2. That the respondent never sold the houses in question to the appellants.

3. That the respondent did not offer the houses to the appellants for sale with the result that all the appellants had to do was to accept such offer for contracts of sale to be concluded.

The above concessions show a change in stance by the appellants.

It is this change that counsel now introduced as the basis for the appeal. In paragraph 8 of the heads of argument counsel stated that:

“The argument is not that respondent must either have sold the houses to appellants, or provided them with alternative accommodation before instituting eviction proceedings. Instead, the contention is this: that having raised their legitimate expectations to purchase the houses, and, alternatively, to provide them with alternative accommodation in the form of Stands to purchase, respondent is bound by the principle of legitimate expectation to hear the appellants before instituting eviction proceedings against them.”

This argument is not in tandem with what transpired in the court a quo.

In the court a quo, the appellants defence was not on the procedural right to be heard before summons were issued, but to have the respondent ordered to sell the houses or to provide them alternative accommodation.

CC08-20 : FEATHERS MUKONDO vs THE STATE
Ruled By: MALABA CJ

The remedy of an appeal is available to a litigant who is dis-satisfied with an outcome of a matter on the merits. A litigant defines the boundaries of the appeal through the grounds of appeal....,.In Mukondo v The State HH277-17…, the High Court said:“The evidence shows that it was the ...

The remedy of an appeal is available to a litigant who is dis-satisfied with an outcome of a matter on the merits. A litigant defines the boundaries of the appeal through the grounds of appeal....,.

In Mukondo v The State HH277-17…, the High Court said:

“The evidence shows that it was the appellant who solicited the bribe. The learned magistrate demonstrated the length to which the appellant went in order to make sure that he personally received the money from the complainant. See S v Fisher 1971 (1) SA 745 (RA); S v Kamtande 1983 (1) ZLR 302.

There is, in my view, no basis to interfere with the conviction by the magistrate as it is proper. The appellant, in any event, failed to discharge the reverse onus set out in section 170(2) above.”

It is apparent that the ratio decidendi applied by the High Court, in dismissing the appeal, was that there was sufficient direct evidence adduced by the prosecution to prove the guilt of the applicant beyond reasonable doubt. Reference to section 170(2) of the Criminal Law (Codification and Reform) Act is not evidence of the factors which the court took into account and which influenced its mind in making the determination it made. Reference to section 170(2) of the Criminal Law Code was made after the court had reached the conclusion, based on the analysis of the evidence adduced by the State, that the applicant had been properly convicted of the offence of bribery, as the evidence had proved his guilt beyond reasonable doubt.

The court a quo was also alive to the issue of the effect of the reference by the High Court to section 170(2) of the Criminal Law (Codification and Reform) Act.

The court a quo noted that the High Court commented on section 170(2) of the Criminal Law (Codification and Reform) Act. The court a quo found that the issue regarding the section in question was a red herring because the conviction was not predicated on that provision.

At p5 of the cyclostyled judgment in Mukondo v The State SC44-19 the court a quo said:

“It is clear from a reading of the record that the remarks by the court a quo were made mero motu and were not based on any submissions that had been made for and on behalf of the respondent before that court. Secondly, the remarks were incorrect as far as they purported to confirm a position that the trial court had taken on the matter. The trial court did not make any finding on the reverse onus that is created by section 170(2). Finally, and more importantly, the remarks by the court a quo, on section 170(2), were made after the court had concluded that the conviction of the appellant was proper on the basis of the weight of the evidence that the State had led against him.

Thus, the ratio decidendi of the court a quo was its finding that it could not interfere with the factual findings of the trial court, which findings were that the State had led overwhelming evidence against the appellant.

It is our finding that the remarks constitute an obiter dictum and had no effect on the court's ratio decidendi. Being such, the remarks cannot form the basis of an appeal. This is the trite position at law."

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

INTERPRETATION OF PRACTICE DIRECTION 3/13 It was the applicant's contention that the application was being brought in terms of paragraph 5 of Practice Direction 3 of 2013. In my view, it is necessary, for the sake of completeness, that I cite the relevant portion of the Practice Direction which relates to matters which have been struck ...

INTERPRETATION OF PRACTICE DIRECTION 3/13

It was the applicant's contention that the application was being brought in terms of paragraph 5 of Practice Direction 3 of 2013. In my view, it is necessary, for the sake of completeness, that I cite the relevant portion of the Practice Direction which relates to matters which have been struck off the roll:

“Struck off the roll

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

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

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

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

It seems to me that a proper interpretation of paragraph 5 of the Practice Direction 3/13 is that the applicant must, within thirty days, rectify the defect by applying for condonation for the late noting of appeal and an extension of time within which he should comply with the Rules. He may not do so after the window period which he has been given to rectify the defect as the matter will be deemed to have been abandoned. It seems to me that the restriction on the period within which to rectify the defect was included in the Practice Directive in order to manage cases which would have been struck off the roll so that the registry would not be cluttered with “dead” files. Thus, a litigant who wished to pursue his matter was granted a limited time within which to apply to cure the defect failing which the matter would be deemed abandoned.

In this case, the applicant correctly filed an application within the prescribed period of thirty days. However, an application for reinstatement is not the appropriate remedy.

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

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

I respectfully agree with this view.

The appeal, having been found to be fatally defective, cannot be reinstated after being struck off the roll. The applicant's remedy to rectify the defect is to apply for condonation and extension of time within which to file a fresh notice of appeal in terms of Rule 6 of the Supreme Court (Miscellaneous Appeals and References) Rules. He should do so within the period of thirty days provided for in the Practice Directive.

DISPOSITION

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

SC54-06 : VIGOUR FUYANA vs NTOMBAZA MOYO
Ruled By: CHIDYAUSIKU CJ

This is a Chamber application for the condonation of the late noting of an appeal. Although the applicant does not specifically aver this, I shall assume that the application is made in terms of Rule 31 of the Supreme Court Rules (“the Rules”).

On 25 July 2005, SANDURA JA, sitting with MALABA JA and NDOU AJA, issued the following order:

“WHEREUPON, after reading documents filed of record and hearing counsel, IT IS ORDERED THAT:

The matter be struck off the roll with costs.”

The record reveals that both parties were present, and the record of SANDURA JA, who presided over the matter, indicates that the matter was struck off the roll because the Notice of Appeal was filed out of time and no application for condonation had been made.

Because of the multiplicity of cases involving the same parties, it is important to understand that the Court was seized with appeal case no. SC236/2000, which was an appeal against judgment no. HB44/2000.

Where an appeal is noted out of time, before the matter can be heard by this Court an application for condonation has to be made, and such condonation granted, before the appeal can be entertained.

A matter that is set down for hearing without condonation being first granted will be struck off the roll, as happened in this case.

On 14 and 18 July 2000 the applicant filed a Chamber application for directions before KAMOCHA J. He handed down judgment dismissing the application on 20 July 2000. The judgment is judgment number HB44/2000, HB44-00.

Over a year after the handing down of the judgment, on 21 August 2001, the applicant filed a Notice of Appeal against the judgment of KAMOCHA J. The headnote of that Notice of Appeal reads as follows:

“Take notice that the applicant hereby appeals against the judgment of the High Court No. HB44/2000, in terms of which the Honourable Judge dismissed the applicant's application for discharge of the provisional order in case number HC5207/99 with costs on the grounds and reasons detailed below.”

Apart from the fact that the above Notice of Appeal does not comply with the Rules, in particular Rule 29(a) and (c), in that it does not give the date when the judgment was delivered nor state whether the appeal is against the whole or part of the judgment, and is therefore invalid, it was filed way out of time.

The applicant was appealing against the judgment of KAMOCHA J (No. HB44/2000) which had been handed down on 20 July 2000 and not any of the other judgments involving the same parties - of which there are several. Thus, the Court was seized with an appeal against judgment No. HB44/2000 and no other matter.

The applicant, in his submissions to the Court, alleges that he filed a Notice of Appeal against this judgment, No. HB44/2000, on 15 August 2000 and that the above Notice of Appeal, of 21 August 2001, was an amendment to the Notice of Appeal filed on 15 August 2000.

The alleged Notice of Appeal, of 15 August 2000, is not on the record.

The Notice of Appeal of 21 August 2001, cited above, is not an amendment but a Notice of Appeal on its own.

However, even if I were to accept that the applicant did file a Notice of Appeal on 15 August 2000, that Notice of Appeal would have been out of time. Judgment HB44/2000 was handed down on 20 July 2000, and, according to my calculations, the dies induciae for noting an appeal expired on 10 August 2000.

Thus, the Notice of Appeal filed on 15 August 2000 was outside the fifteen days prescribed by the Rules of the Supreme Court.

Thus, whichever of the two dates one accepts as the date for the filing of the Notice of Appeal makes no difference. Both dates were outside the dies induciae.

Consequently, the striking off of the matter from the roll admits no doubt.

Appealed
SC89-20 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: HLATSHWAYO JA, BHUNU JA and UCHENA JA

This is an appeal against part of the judgment of the High Court upholding the respondent's claim of a 50% share of an immovable property registered in the appellant's name pursuant to the distribution of property upon divorce.THE FACTSThe appellant and respondent were married in 1970 in terms of an ...

THE FACTS

The appellant and respondent were married in 1970 in terms of an unregistered customary law union. In 1971, they solemnised their marriage in terms of the African Marriages Act [Chapter 105]. On 27 May 2005 they upgraded their marriage by solemnising it in terms of the Marriage Act [Chapter 5:11]. The union was blessed with four children who are now adults.

Sometime in 2010, the respondent issued summons for divorce in the High Court seeking the following order:

“(a) A decree of divorce.

(b) Maintenance for the plaintiff.

(c) Distribution of property as listed in paragraphs 10 and 11 of the papers.

(d) That each party bears his/her own costs."

The respondent claimed that the marriage had irretrievably broken down and there were no prospects of the restoration of a normal marriage relationship. She alleged that the appellant was involved in adulterous affairs with other women and bore children out of wedlock whom he brought to the matrimonial home to be taken care of by her among other factors.

The appellant conceded that the marriage had indeed irretrievably broken down. He argued that it was the respondent who was in fact involved in adulterous affairs with other men and denied ever committing adultery....,.

In spite of the parties' not having contested the granting of a decree of divorce, the court a quo inadvertently omitted to grant such order. Its order reads as follows:-

“Accordingly, it is ordered as follows:-

1. The plaintiff be and is hereby awarded a 50% share of the immovable property, namely, 114 Lomagundi Road, Harare held under Deed of Transfer 5772/83 in the name of Govati Mhora.

2. The defendant is awarded a 50% share in the said immovable property. The immovable property shall be valued by an independent valuator appointed by the Registrar of the High Court from the list of valuators within 30 days of the date of this order.

3. The parties shall meet the costs of valuation in equal proportions.

4. Each party is hereby granted the option to buy out the other's share in the immovable property within three months from the date of receipt of the valuation report.

5. In the event that the plaintiff fails to buy out the defendant or the defendant fails to buy out the plaintiff within the three months, or such longer time as the parties may agree on in writing, the property shall be sold to best advantage by an estate agent mutually agreed to by the parties, and, in the event that they fail to agree, by one appointed by the Registrar of the High Court.

6. The net proceeds, after deducting the Real Estate Agents fees and other attendant costs, shall be deposited into the Trust Account of Jessie Majome and Company Legal Practitioners or their successors in title, and, thereafter, shared between the parties in the ratio set out above.

7. The movable property is awarded as per the joint pre-trial conference minute date-stamped 13 October 2017.

8. Each party shall bear their own costs."

Contrary to the provisions of section 7(1) of the Matrimonial Causes Act [Chapter 5:13] the order omitted to grant a decree of divorce before distributing the parties matrimonial property.

Section 7(1) of the Matrimonial Causes Act provides as follows:-

“7(1) Subject to this section, in granting a decree of divorce, judicial separation, or nullity of marriage, or at any time thereafter, an appropriate court may make an order with regard to -

(a) The division, apportionment or distribution of the assets of the spouses, including an order that any asset be transferred from one spouse to the other;"

The omission, though not the basis of the appeal, affected the validity of the order granted by the court a quo. The order deals with the distribution of the parties' property without a decree of divorce. Distribution of property is a consequence of divorce. A court cannot therefore distribute the divorcing spouses' property without first granting them a decree of divorce.

The issue of the omission not having been canvassed at the hearing of the appeal, the court agreed that the parties be given an opportunity to make submissions on it. Counsel for both parties, in the presence of their clients were, on 14 February 2020, given an opportunity to make submissions on the court a quo's failure to grant a decree of divorce before distributing matrimonial property.

They agreed that the court a quo's failure to grant a decree of divorce was a serious omission which has to be attended to, or that the court a quo's order be set aside and the matter be remitted to the court a quo for it to decide on whether or not to correct the omission and grant a decree of divorce and attendant relief.

I agree that the order granted by the court a quo has to be attended to, but do not agree that it has to be set aside and the matter be remitted to the court a quo. Setting aside the order and remitting the matter to the court a quo will have the effect of removing this appeal from this Court as an appeal cannot be based on an order which has been set aside. It means another appeal will have to be noted if the court a quo corrects its order by granting a decree of divorce.

The setting aside of the court a quo's order and remittal is not consistent with the provisions of section 22(1)(a) and (b)(ix) of the Supreme Court Act [Chapter 7:13] which provides as follows:

“22(1) Subject to any other enactment, on the hearing of a civil appeal, the Supreme Court -

(a) Shall have power to confirm, vary, amend or set aside the judgment appealed against or give such judgment as the case may require;

(b) May, if it thinks it necessary or expedient in the interests of justice -

(i)…,.;

(ii)…,.;

(iii)…,.;

(iv)…,.;

(v)…,.;

(vi)…,.;

(vii)…,.;

(viii)…,.;

(ix) Take any other course which may lead to the just, speedy and inexpensive settlement of the case;"…,.

Section 22(1)(a) of the Supreme Court Act empowers this Court to, on the hearing of an appeal, vary or amend, the judgment appealed against or give such judgment as the case may require. Section 22(1)(b)(ix) empowers this Court to take any other course which may lead to the just, speedy, and inexpensive settlement of the case.

Section 22(1)(b)(ix) of the Supreme Court Act gives this court a wide discretion to take any other course to justly, speedily, and inexpensively resolve issues which the court has to deal with on appeal. Section 22(1)(b)(ix) of the Supreme Court Act was commented on and relied on by this court in the cases of Eastern Highlands Electrical (Pvt) Ltd v Gibson Investments (Pvt) Ltd 02-SC-026, SC26-02…,; Kambuzuma and Others v Athol Evans Hospital Home Complex 04-SC-118, SC118-04…,; and Hwange Colliery Company Ltd v Tendai Mukute & Another 16-SC-046, SC46-16…,.

See also the case of H Jordan v The Bloemfontein Transitional Local Authority & Another Supreme Court of Appeal of South Africa Case No 248/2002…, where the South African Supreme Court commented on the meaning of the words "take any other course which may lead to the just, speedy, and, as much as may be, inexpensive settlement of the case.”

In this case, the respondent instituted proceedings for divorce. The appellant conceded that the marriage had irretrievabley broken down. The court, by proceeding to distribute the parties' matrimonial property, can be assumed to have believed that it had granted a decree of divorce.

Setting aside the court a quo's order, and remitting the matter to the court a quo, is not in the interest of justice as it will delay the finalisation of the dispute between the parties and increase the expenses they have to incur in the hearing before the court a quo on remittal and the noting of and hearing of a fresh appeal, if the court a quo, on remittal, grants a decree of divorce and the order it had previously granted.

In my view, a correction of the court a quo's order, by adding a decree of divorce to it, will result in a just, speedy, and inexpensive resolution of the court a quo's inadvertent omission to grant a decree of divorce.

Accordingly, the court a quo's order is corrected by prefixing it with the words:

“A decree of divorce be and is hereby granted.”

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Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Grounds of Appeal and Notice of Appeal iro Approach

View Appeal SC18-18 : SHORAI NZARA and AAROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN vs CECILIA KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

HH801-15 : ENNOCENT T. MAPOSA vs CHRISTOPHER MATABUKA Ruled By: CHITAKUNYE J and MWAYERA J

SC31-09 : LLOYD GUWA and HAZEL CLARIS KUMIRE vs WILLOUGHBYS INVESTMENTS (PVT) LTD Ruled By: GARWE JA

HHH724-15 : PETER CHIKUMBA vs THE STATE Ruled By: MAFUSIRE J

HHH231-17 : PETER CHIKUMBA and GRACE NYARADZAYI PFUMBIDZAI vs THE STATE Ruled By: HUNGWE J and MUSHORE J

HHH60-12 : CHRISTOPHER NYAMUKAPA vs THE STATE Ruled By: ZIMBA-DUBE J and BHUNU J

View Appeal CC06-19 : BONNYVIEW ESTATE (PRIVATE) LIMITED vs ZIMBABWE PLATINUM MINE (PRIVATE) LIMITED and MINISTRY OF LANDS AND RURAL RESETTLEMENT Ruled By: MALABA CJ and MAVANGIRA JCC and BHUNU JCC

View Appeal CC22-17 : MOVEN KUFA and VOICE FOR DEMOCRACY TRUST vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE and THE PRIME MINISTER OF THE REPUBLIC OF ZIMBABWE and OTHERS Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JA, GARWE JA, GOWORA JA and OMERJEE AJA

Appealed SC14-19 : JUDITH ISHEMUNYORO (NEE MANDIDEWA) vs ANTHONY ISHEMUNYORO and TYNSERVE DISTRIBUTORS (PVT) LTD and THE REGISTRAR OF DEEDS and THE SHERIFF FOR ZIMBABWE Ruled By: GWAUNZA JA, HLATSHWAYO JA and ZIYAMBI AJA

SC20-19 : GRACE SHURO vs MOLLY CHIURAISE and CITY OF MASVINGO Ruled By: GARWE JA, HLATSHWAYO JA and BHUNU JA

SC26-19 : MWAMI MULIZI SIAMSIPA N.O. vs KUNGANDA FARM (PRIVATE) LIMITED Ruled By: PATEL JA, BHUNU JA and BERE JA

SC37-17 : TM SUPERMARKETS (PVT) LTD vs AVONDALE HOLDINGS (PVT) LTD and SHERIFF OF ZIMBABWE Ruled By: CHIDYAUSIKU CJ

View Appeal HH261-17 : NJZ RESOURCES (HK) LIMITED vs ANDREW ZINYEMBA AND 18 OTHERS Ruled By: MWAYERA J and MUNANGATI-MANONGWA J

SC31-13 : LAWSIGN NYARUMBU vs SANDVIK MINING AND CONSTRUCTION ZIMBABWE (PVT) LTD Ruled By: ZIYAMBI JA, GARWE JA and PATEL AJA

SC38-19 : PIA NGWARU vs FIRST MUTUAL HEALTH COMPANY (PRIVATE) LIMITED Ruled By: GARWE JA, GUVAVA JA and MAVANGIRA JA

HH487-15 : MR AND MRS CHIMUZA vs OSWALD DZEPASI Ruled By: MWAYERA J and TAGU J

HHH303-15 : LYSON ZIYADHUMA vs THE STATE Ruled By: HUNGWE J and BERE J

SC57-19 : THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST vs ROBSON MAKONI Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

View Appeal SC29-13 : BETTY KANYUCHI vs DRAWING SERVICES (PVT) LTD Ruled By: MALABA DCJ, GARWE JA and GOWORA JA

HH212-18 : HOSEA OZIAH NCUBE vs SIMBARASHE MUPINGA Ruled By: CHAREWA J

SC85-14 : REMO INVESTMENT BROKERS (PRIVATE) LIMITED and MAHOMED IQBAL MAHMED and REZANA EBRAHIM and JOHN MOTSI vs SECURITIES COMMISSION OF ZIMBABWE Ruled By: GARWE JA, GOWORA JA and PATEL JA

SC10-20 : ZIMBABWE SCHOOL EXAMINATIONS COUNCIL vs VICTOR MUKOMEKA (on behalf of a minor Charmaine Mukomeka) and CHINGASIYENI GOVHATI (on behalf of a minor Anesu Govhati) Ruled By: PATEL JA, BHUNU JA and BERE JA

SC37-20 : ROSEMARY BASTIN vs KUFA MADZIMA (IN HIS CAPACITY AS THE EXECUTOR OF THE ESTATE LATE MARIMO MADZIMA) Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

Appealed SC45-20 : MUCHANETA CHATAMBUDZA vs KUDAKWASHE MURAPE and MARBEL MURAPE Ruled By: GWAUNZA DCJ, GARWE JA and MAKONI JA

View Appeal SC47-20 : ROBSON MAKONI vs CBZ LIMITED Ruled By: GWAUNZA DCJ, GUVAVA JA and MAKONI JA

SC48-20 : EMMA KUNDISHORA vs ZIMBABWE RED CROSS SOCIETY Ruled By: HLATSHAWO JA, MAKONI JA and BERE JA

Appealed SC50-20 : ALASTAIR SMITH vs ABIGAIL SMITH Ruled By: GARWE JA, BHUNU JA and MAKONI JA

Appealed SC56-20 : MOVEMENT FOR DEMOCRATIC CHANGE and NELSON CHAMISA and MORGAN KOMICHI vs ELIAS MASHAVIRA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA Ruled By: GARWE JA, PATEL JA and GUVAVA JA

SC62-20 : THANDO NCUBE vs FIDELITY PRINTERS AND REFINERIES (PRIVATE) LIMITED Ruled By: MAKARAU JA

HH440-19 : INTRATREK ZIMBABWE (PVT) LTD vs ZIMBABWE POWER COMPANY (PVT) LTD Ruled By: CHITAPI J

SC72-20 : TAYENGWA MUSKWE vs LAW SOCIETY OF ZIMBABWE Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

SSC59-19 : PROSECUTOR-GENERAL OF ZIMBABWE vs INTRATREK ZIMBABWE PL and WICKNELL CHIVAYO and L. NCUBE N.O. Ruled By: PATEL JA

SC84-20 : TIZAI CHISWANDA (in his capacity as father and guardian of CHIDOCHASHE CHISWANDA) vs OK ZIMBABWE LIMITED Ruled By: GARWE JA, GOWORA JA and BERE JA

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

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

Appealed SC87-20 : CECK ENTERPRISES PL vs MARIA SITHOLE and MATHIAS SITHOLE (represented by TAKURA MUKWESHA as Executrix Dative) and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT Ruled By: GWAUNZA DCJ, HLATSHWAYO JA and BHUNU JA

SC91-20 : CONSTANTINE CHIMAKURE and ALPHA MEDIA HOLDINGS PL vs AMBASSADOR AGRIPPA MUTAMBARA and ESTER MUTAMBARA Ruled By: GOWORA JA, MAKONI JA and BERE JA

SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

HH141-12 : JG CONSTRUCTION vs GRAEME CHADWICK AND DEPUTY SHERIFF Ruled By: BERE J

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Appealed SC28-18 : NYAKUTOMBWA MUGABE LEGAL COUNSEL vs GETRUDE MUTASA and DIDYMUS MUTASA and SHERIFF OF ZIMBABWE Ruled By: GARWE JA, MAKARAU JA and GUVAVA JA

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SC73-17 : TENDAYI TAMANIKWA and FRANK TINARWO vs ZIMBABWE MANPOWER DEVELOPMENT FUND and EMMERSON PAMIRE Ruled By: GWAUNZA JA, BHUNU JA and UCHENA JA

HH173-17 : F. MUTATA and OTHERS vs THE MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND URBAN DEVELOPMENT Ruled By: CHITAKUNYE J and NDEWERE J

CC08-20 : FEATHERS MUKONDO vs THE STATE Ruled By: MALABA CJ

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

SC54-06 : VIGOUR FUYANA vs NTOMBAZA MOYO Ruled By: CHIDYAUSIKU CJ

Appealed SC89-20 : GOVATI MHORA vs EMMACULATA MHORA Ruled By: HLATSHWAYO JA, BHUNU JA and UCHENA JA

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View Appeal
SC18-18 : SHORAI NZARA and AAROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN vs CECILIA KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

HH801-15 : ENNOCENT T. MAPOSA vs CHRISTOPHER MATABUKA
Ruled By: CHITAKUNYE J and MWAYERA J

SC31-09 : LLOYD GUWA and HAZEL CLARIS KUMIRE vs WILLOUGHBYS INVESTMENTS (PVT) LTD
Ruled By: GARWE JA

HHH724-15 : PETER CHIKUMBA vs THE STATE
Ruled By: MAFUSIRE J

HHH231-17 : PETER CHIKUMBA and GRACE NYARADZAYI PFUMBIDZAI vs THE STATE
Ruled By: HUNGWE J and MUSHORE J

HHH60-12 : CHRISTOPHER NYAMUKAPA vs THE STATE
Ruled By: ZIMBA-DUBE J and BHUNU J

View Appeal
CC06-19 : BONNYVIEW ESTATE (PRIVATE) LIMITED vs ZIMBABWE PLATINUM MINE (PRIVATE) LIMITED and MINISTRY OF LANDS AND RURAL RESETTLEMENT
Ruled By: MALABA CJ and MAVANGIRA JCC and BHUNU JCC

View Appeal
CC22-17 : MOVEN KUFA and VOICE FOR DEMOCRACY TRUST vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE and THE PRIME MINISTER OF THE REPUBLIC OF ZIMBABWE and OTHERS
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JA, GARWE JA, GOWORA JA and OMERJEE AJA

Appealed
SC14-19 : JUDITH ISHEMUNYORO (NEE MANDIDEWA) vs ANTHONY ISHEMUNYORO and TYNSERVE DISTRIBUTORS (PVT) LTD and THE REGISTRAR OF DEEDS and THE SHERIFF FOR ZIMBABWE
Ruled By: GWAUNZA JA, HLATSHWAYO JA and ZIYAMBI AJA

SC20-19 : GRACE SHURO vs MOLLY CHIURAISE and CITY OF MASVINGO
Ruled By: GARWE JA, HLATSHWAYO JA and BHUNU JA

SC26-19 : MWAMI MULIZI SIAMSIPA N.O. vs KUNGANDA FARM (PRIVATE) LIMITED
Ruled By: PATEL JA, BHUNU JA and BERE JA

SC37-17 : TM SUPERMARKETS (PVT) LTD vs AVONDALE HOLDINGS (PVT) LTD and SHERIFF OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ

View Appeal
HH261-17 : NJZ RESOURCES (HK) LIMITED vs ANDREW ZINYEMBA AND 18 OTHERS
Ruled By: MWAYERA J and MUNANGATI-MANONGWA J

SC31-13 : LAWSIGN NYARUMBU vs SANDVIK MINING AND CONSTRUCTION ZIMBABWE (PVT) LTD
Ruled By: ZIYAMBI JA, GARWE JA and PATEL AJA

SC38-19 : PIA NGWARU vs FIRST MUTUAL HEALTH COMPANY (PRIVATE) LIMITED
Ruled By: GARWE JA, GUVAVA JA and MAVANGIRA JA

HH487-15 : MR AND MRS CHIMUZA vs OSWALD DZEPASI
Ruled By: MWAYERA J and TAGU J

HHH303-15 : LYSON ZIYADHUMA vs THE STATE
Ruled By: HUNGWE J and BERE J

SC57-19 : THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST vs ROBSON MAKONI
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

View Appeal
SC29-13 : BETTY KANYUCHI vs DRAWING SERVICES (PVT) LTD
Ruled By: MALABA DCJ, GARWE JA and GOWORA JA

HH212-18 : HOSEA OZIAH NCUBE vs SIMBARASHE MUPINGA
Ruled By: CHAREWA J

SC85-14 : REMO INVESTMENT BROKERS (PRIVATE) LIMITED and MAHOMED IQBAL MAHMED and REZANA EBRAHIM and JOHN MOTSI vs SECURITIES COMMISSION OF ZIMBABWE
Ruled By: GARWE JA, GOWORA JA and PATEL JA

SC10-20 : ZIMBABWE SCHOOL EXAMINATIONS COUNCIL vs VICTOR MUKOMEKA (on behalf of a minor Charmaine Mukomeka) and CHINGASIYENI GOVHATI (on behalf of a minor Anesu Govhati)
Ruled By: PATEL JA, BHUNU JA and BERE JA

SC37-20 : ROSEMARY BASTIN vs KUFA MADZIMA (IN HIS CAPACITY AS THE EXECUTOR OF THE ESTATE LATE MARIMO MADZIMA)
Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

Appealed
SC45-20 : MUCHANETA CHATAMBUDZA vs KUDAKWASHE MURAPE and MARBEL MURAPE
Ruled By: GWAUNZA DCJ, GARWE JA and MAKONI JA

View Appeal
SC47-20 : ROBSON MAKONI vs CBZ LIMITED
Ruled By: GWAUNZA DCJ, GUVAVA JA and MAKONI JA

SC48-20 : EMMA KUNDISHORA vs ZIMBABWE RED CROSS SOCIETY
Ruled By: HLATSHAWO JA, MAKONI JA and BERE JA

Appealed
SC50-20 : ALASTAIR SMITH vs ABIGAIL SMITH
Ruled By: GARWE JA, BHUNU JA and MAKONI JA

Appealed
SC56-20 : MOVEMENT FOR DEMOCRATIC CHANGE and NELSON CHAMISA and MORGAN KOMICHI vs ELIAS MASHAVIRA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA
Ruled By: GARWE JA, PATEL JA and GUVAVA JA

SC62-20 : THANDO NCUBE vs FIDELITY PRINTERS AND REFINERIES (PRIVATE) LIMITED
Ruled By: MAKARAU JA

HH440-19 : INTRATREK ZIMBABWE (PVT) LTD vs ZIMBABWE POWER COMPANY (PVT) LTD
Ruled By: CHITAPI J

SC72-20 : TAYENGWA MUSKWE vs LAW SOCIETY OF ZIMBABWE
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

SSC59-19 : PROSECUTOR-GENERAL OF ZIMBABWE vs INTRATREK ZIMBABWE PL and WICKNELL CHIVAYO and L. NCUBE N.O.
Ruled By: PATEL JA

SC84-20 : TIZAI CHISWANDA (in his capacity as father and guardian of CHIDOCHASHE CHISWANDA) vs OK ZIMBABWE LIMITED
Ruled By: GARWE JA, GOWORA JA and BERE JA

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

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

Appealed
SC87-20 : CECK ENTERPRISES PL vs MARIA SITHOLE and MATHIAS SITHOLE (represented by TAKURA MUKWESHA as Executrix Dative) and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT
Ruled By: GWAUNZA DCJ, HLATSHWAYO JA and BHUNU JA

SC91-20 : CONSTANTINE CHIMAKURE and ALPHA MEDIA HOLDINGS PL vs AMBASSADOR AGRIPPA MUTAMBARA and ESTER MUTAMBARA
Ruled By: GOWORA JA, MAKONI JA and BERE JA

SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS
Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS
Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

HH141-12 : JG CONSTRUCTION vs GRAEME CHADWICK AND DEPUTY SHERIFF
Ruled By: BERE J

SC103-20 : VERITAS and FIRINNE TRUST ALSO KNOWN AS VERITAS vs ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: GOWORA JA, GUVAVA JA and BHUNU JA

SC107-20 : COLCOM FOODS LIMITED vs TARUVA TARUVA
Ruled By: GWAUNZA DCJ, GUVAVA JA and MATHONSI JA

Appealed
SC28-18 : NYAKUTOMBWA MUGABE LEGAL COUNSEL vs GETRUDE MUTASA and DIDYMUS MUTASA and SHERIFF OF ZIMBABWE
Ruled By: GARWE JA, MAKARAU JA and GUVAVA JA

SC73-17 : TENDAYI TAMANIKWA and FRANK TINARWO vs ZIMBABWE MANPOWER DEVELOPMENT FUND and EMMERSON PAMIRE
Ruled By: GWAUNZA JA, BHUNU JA and UCHENA JA

SC73-17 : TENDAYI TAMANIKWA and FRANK TINARWO vs ZIMBABWE MANPOWER DEVELOPMENT FUND and EMMERSON PAMIRE
Ruled By: GWAUNZA JA, BHUNU JA and UCHENA JA

HH173-17 : F. MUTATA and OTHERS vs THE MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND URBAN DEVELOPMENT
Ruled By: CHITAKUNYE J and NDEWERE J

CC08-20 : FEATHERS MUKONDO vs THE STATE
Ruled By: MALABA CJ

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

SC54-06 : VIGOUR FUYANA vs NTOMBAZA MOYO
Ruled By: CHIDYAUSIKU CJ

Appealed
SC89-20 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: HLATSHWAYO JA, BHUNU JA and UCHENA JA