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

SC28-14 : SITWELL GUMBO vs PORTICULLIS (PVT) LTD T/A FINANCIAL CLEARING BUREAU
Ruled By: GWAUNZA JA

In chambers in terms of Rule 5 of the Supreme Court Rules.

This is an application filed in terms of Rule 31(2) of the Supreme Court Rules.

On 9 of December 2013, and upon reading documents filed of record, I dismissed the application with no order as to costs. No opposing papers were filed by the respondent.

The applicant has requested that I furnish him with reasons for the judgment, and these are provided herein.

The applicant filed an application in the High Court, on a certificate of urgency. The court a quo, on 26 June 2013, issued the following decision:

“There is no urgency in this matter warranting this matter to be allowed to jump the queue. The applicant has had all the time in the world to take the initiative to clear his name. I decline to treat this matter as urgent.”

Upon a request from the applicant, the court a quo provided written reasons for the decision not to hear the matter on an urgent basis.

The court a quo, in this respect, relied on the case of Kuvarega v Registrar-General and Anor 1998 (1) ZLR 188 (H)…, in which the following principle was set out:

“What constitutes urgency is not only the imminent arrival of the day of reckoning: a matter is urgent, if, at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules.”

The learned Judge's assessment of the evidence before him indicated, that, the genesis of the applicant's problems with the respondent dated back to 2003, spilled over to 2007, and then to 2009 and thereafter.

The Judge found, that, the applicant had been fully aware of the conduct of the respondent towards him and that he had always had the opportunity to take the initiative to clear his name. He had chosen not to do so and had only rushed to court, on an urgent basis, on 24 June 2013.

The court concluded, that, the applicant's conduct, in this respect, was not what the whole concept of urgent applications contemplated.

The applicant, on 16 September 2013, then sought the leave of the court a quo to appeal to this court against the decision declining to hear his matter on an urgent basis.

The court a quo having dismissed that application, the applicant then filed the present application before me.

It is essentially an application where the applicant is seeking my leave to appeal to this court, against the decision of the judge a quo that his matter before that court was not urgent.

To properly determine this matter, I consider it pertinent to consider two main issues. These are:

(i) Firstly, the reasoning of the court a quo which led to the decision that it reached: and

(ii) Secondly, the question of whether or not the intended appeal has any prospects of success.

It is my view, that, the requirement for the applicant to file a copy of his Notice and Grounds of Appeal together with an application of this nature, is to enable this court to make a proper assessment of the applicant's prospects of success on appeal.

Having considered the papers before me, which included the reasoned judgment of the court a quo as well as the applicant's affidavits, I find myself in full agreement with the judge's reasoning and determination.

I find, more to the point, that, the applicant did not place before the court a quo, nor before me, any evidence to show that there was, in his application, the type of urgency that would have merited a hearing on an urgent basis.

In other words, he failed to show, that, at the time the need to act arose, the matter could not wait.

I would therefore have dismissed the application to hear the matter on an urgent basis, in the same manner that the court a quo did, and for the same reasons.

As already indicated, I proceeded to do the same in casu.

The applicant properly filed a copy of his notice and grounds of appeal. A synopsis of his grounds of appeal shows that he intends to premise his appeal on two main grounds, both essentially factual:

(i) Firstly, the applicant seems to argue that the court a quo improperly interposed and considered together, two cases that had different HC numbers and were therefore unrelated.

This was in reference to the fact, that, the urgent chamber application was given the number HC4997/13 while the chamber application for leave to appeal was given the number 5794/13.

A perusal of the latter shows that both numbers are, properly, in my view, endorsed on the right hand corner of the document entitled “Chamber Application for Leave to Appeal” clearly showing that the two cases were related.

Apart from this ground of appeal, indicating what seems to me to be a mis-appreciation, by the applicant, of the HC numbering system and its implications in related cases, it is evident that the issue has no bearing on the merits of whether or not the case merited an urgent hearing a quo.

I find, therefore, that, there is little, if any, prospect of success on appeal based on this ground.

The applicant alleges, in his other main ground of appeal, that, there was evidence on record to show, that, contrary to the finding by the court a quo, he had in fact timeously made the effort to clear his name over the period stretching from 2003.

I have already associated myself with the reasoning of the judge a quo and his assessment of the evidence that led to the decision that he reached on this point and will therefore not repeat my reasons for doing so.

This ground of appeal, in my view, lacks merit and carries with it no prospects of success on appeal.

It was for these reasons that I dismissed the application, on the papers, and with no order as to costs.

It should be noted, however, that, the dispute between the applicant and the respondent is still pending before the High Court. It will take its place in the “queue” of ordinary court applications and be set down for hearing when its turn comes.

It occurs to me, that, by pursuing the course of action that he has in casu, the applicant might possibly have delayed, or may delay progress in the finalization of the matter.

CC05-22 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: PATEL JCC

Rule 32(2) of the Constitutional Court Rules provides the following on the right of appeal to this Court:“(2) A litigant who is aggrieved by the decision of a subordinate court on a constitutional matter only, and wishes to appeal against it to the Court, shall, within fifteen days of the ...

CC09-22 : MINISTER OF MINES & MINING DEVELOPMENT and THE PROVINCIAL MINING DIRECTOR FOR MIDLANDS PROVINCE vs FIDELITY PRINTERS & REFINERS (PVT) LTD and JONAH NHEVERA
Ruled By: GOWORA JCC

This is an application for condonation for the late filing of an application for leave to appeal conjoined with the application for leave to appeal.

The applicants have filed this application in terms of Rule 5 as read with Rule 32 of the Constitutional Court Rules 2016 (the Rules). It is a composite chamber application for condonation and for leave to note an appeal against the decision of the Supreme Court in case number SC107-21.

FACTUAL BACKGROUND

The first applicant in this matter is the Minister of Mines and Mining Development, with the second applicant being the Provincial Mining Director for Midlands Province.

In the case before the Supreme Court, they were the first and second respondents respectively.

The first respondent in this application is Fidelity Printers & Refineries (Pvt) Ltd, a company duly incorporated following the laws of Zimbabwe. The first respondent was the appellant in the Supreme Court.

The second respondent is a male Zimbabwean citizen who was cited as the third respondent a quo.

The subject of the dispute is a mine, namely, Mirage 3 (hereinafter referred to as the mine). It is situated in Kwekwe in the Midlands Province.

The first and second respondents were deadlocked in a dispute regarding the ownership of the mine as they both claimed the right to occupy the mine and to exploit gold sand ore contained therein. Both parties claimed ownership rights from their respective certificates of registration in the mine with the Ministry of Mines and Mining Development.

The mine was initially registered in favour of the first respondent under certificate of registration No.8132. In June 2020, the applicant revoked the certificate of registration in favour of the first respondent and declared the mine forfeit. In July 2020, a new certificate was issued and registered in the name of the second respondent under Special Grant No.8202.

Subsequent to these developments, the first respondent wrote to the first and second applicants and requested information about any arrears relating to statutory payments over the claim. In response, the second applicant informed the first respondent, that, he could not issue an inspection invoice for a forfeited mine. The second applicant indicated, that, the mine had been forfeited on 5 June 2020 in terms of section 260 as read with section 272 of the Mines and Minerals Act [Chapter 21:05] (the Act).

The first respondent reacted to the notification and filed an urgent chamber application in the High Court under case number HC85/21. It submitted, that, the forfeiture of its claims, in June 2020, was invalid, palpably arbitrary, and violated every known procedure in the Administrative Justice Act [Chapter 10:28] (the Administrative Justice Act) which ensured fairness.

In the application, the first respondent challenged the forfeiture and relocation as unlawful on the premise that the procedure adopted by the applicants failed to comply with the dictates of the law as prescribed in section 220 of the Mines and Minerals Act.

The first respondent sought the following as interim relief:

(i) Suspension of the operation of the forfeiture order by the Provincial Mining Director;

(ii) The suspension of the operation of the special grant to the second respondent;

(iii) An interdict against the second respondent from entering the mine; and

(iv) The setting aside of the forfeiture of the mine.

The interim relief sought was granted on 17 February 2021.

After the grant of the interdict in HC85/21, the second respondent filed his urgent chamber application in Bulawayo under case number HC55/21.

In his founding affidavit, he averred, that, Fidelity Printers and Refiners (Pvt) Ltd had failed to pay inspection fees and the mine was forfeited to the State in June 2020. In addition, the second respondent averred, that, the first respondent had gone on a looting spree of the gold ore sands and that it was carrying out illegal mining activities by transporting the gold ore sands from the mine to another mine, namely, GMI Red Baron Mine.

The second respondent sought the following orders as interim relief:

(i) An interdict restraining the first respondent from removing the gold ore sands from the mine; and

(ii) That he, the second respondent, be granted the right to put in place security both at the mine and at GMI Red Barons premises to prevent the removal and processing of the gold ore sands.

The protracted dispute between the parties resulted in the consolidation of the matters by the High Court.

The judgment from that consolidation was the subject of appeal in the Supreme Court.

At the hearing of the consolidated application before the High Court, the first respondent argued, that, in terms of section 260 of the Mines and Minerals Act, the mining authorities should have afforded it an opportunity to make representations before a decision to forfeit its mining claim was made.

It further argued, that, the first and second applicants were obliged by law to have sent a notice of forfeiture to the miner before deeming the mine forfeited.

Finally, it argued, that, it did not suffice for the second applicant to place forfeiture notices on a board and that his or her approach violated the right to be heard in terms of section 3 of the Administrative Justice Act.

On the contrary, the applicants and the second respondent submitted, that, the first respondent wished to read unspecified provisions into the Mines and Minerals Act.

They argued, that, no notice of forfeiture was required to be issued in terms of the Mines and Minerals Act and that, although the first respondent was a wholly owned Government entity, its status did not absolve it from paying inspection fees as required by statute.

In its determination, the High Court held, that, the miner had an obligation to motivate the annual inspection of his or her mining location, after which the miner would pay a renewal fee. After that, an inspection certificate would be granted.

It further determined, that, sections 260 and 270 of the Mines and Minerals Act, which formed the crux of the first respondent's argument, were not the beginning and the end of the forfeiture process, but had to be read in conjunction with section 197 to section 199 of the Mines and Minerals Act which provide for the preservation of mineral rights and the processes to be followed by both the miner and the authorities regarding inspection certificates and the forfeiture of mines.

The court further held, that, section 260 of the Mines and Minerals Act was worded in peremptory terms and that a failure to obtain an inspection certificate made the mine liable to forfeiture.

Lastly, it ruled that the right to be heard was embedded in section 271 of the Mines and Minerals Act and that the provision in contention did not grant an individual the right to be given notice, a warning, or a letter of forfeiture. There was, in addition, no provision for the demand of payment of outstanding fees in respect of a mining location.

It was against this decision that the first respondent launched its appeal to the Supreme Court.

The grounds of appeal, and the subsequent relief sought, did not relate to any constitutional issues.

The grounds of appeal were the following:

“1. The court a quo erred in its interpretation and implementation of section 260 of the Mines and Minerals Act [Chapter 21:05]. Such provision does not permit the first and second respondent to act arbitrarily and without due notice to an affected party such as the appellant.

2. Concomitantly, the court a quo also misdirected itself in finding, that, the second respondent had acted lawfully when such respondent had not given proper prior notice before forfeiting the appellant's mining rights in Mirage 3 Kwekwe.

3. Furthermore, the Court a quo also erred in determining the provisions of the Mines and Minerals Act [Chapter 21:05] and excused the first and second respondent from giving credence to the appellant's rights as espoused in the Administrative Justice Act [Chapter 10:28].

4. Additionally, the court a quo grossly misdirected itself in finding, that, in the circumstances, the third respondent had lawfully been issued a Special Grant, which Grant only came into existence because of the unlawful forfeiture of the appellant's mining rights in respect of Mirage 3 Kwekwe.”

In the premises, the first respondent sought the following as relief on appeal:

“1. THAT, the instant appeal succeeds with costs.

2. THAT, the order of the court a quo be set aside and substituted with the following:

2.1 The Provisional Order issued by this Court in HC85/21 on 17 February 2021 is hereby confirmed.

2.2. The forfeiture of the appellant's claim, Mirage 3, Registered under Certificate Number 18132, purportedly done on 5 June 2020, is hereby set aside.

3. For the avoidance of doubt, further to para 2 hereof, any act done by the first and second respondents further to the forfeiture aforesaid, whose effect is to alienate the area under Mirage 3, Registered under Certificate Number 18132, is declared invalid and consequently null and void.

4. The Respondents shall pay the costs of suit.”

From the grounds of appeal, and relief sought a quo, it is apparent that the appeal did not raise constitutional issues for determination by the court a quo.

Thereafter, on 21 October 2021, the court a quo handed down judgment ex tempore in favour of the first respondent.

Consequent to the court's decision, the applicants have filed the present application.

THIS APPLICATION

This application is for condoning the late noting of an application for leave to appeal by the applicants and an application for leave to appeal. Accordingly, the applicants seek the following relief:

“1. The application for condonation for late filing of the application for leave to appeal be and is hereby granted.

2. The application for leave to appeal against the judgment of the Supreme Court in SC107-21 be and is hereby granted.

3. The applicants shall file their notice of appeal within ten (10) days of the date of this order.

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

The applicants aver, that, they make this application in terms of Rule 5 as read with Rule 32 of this Court's rules.

The applicants seek leave to appeal against the decision of the court a quo.

It is common cause that they failed to note the requisite application for leave to appeal to this Court within the fifteen days stipulated by Rule 32 of this Court's rules.

The first respondent opposed the application.

The second respondent did not oppose the grant of the relief sought and chose to abide by the decision of the Court. Accordingly, he did not attend the virtual hearing.

The first respondent has raised a preliminary point, to the effect that this application is improperly before this Court on the premise that it is filed in defiance of Rule 32(3)(b) of the Constitutional Court Rules in that the decision against which the appeal is brought has not been attached to the application.

The first respondent contends, that, the reasons for the court's judgment are not attached to the application, thus rendering the application fatally defective.

On this issue, counsel for the applicants and counsel for the first respondent made the following submissions:

Counsel for the applicants submitted, that, the applicants case was founded on Rule 5 of the Constitutional Court Rules. He further submitted, that, the Rule justified their course of action of filing a hybrid application for condonation and an application for leave to note an appeal.

The court queried the validity of the application in the absence of the impugned Supreme Court decision from the record of proceedings.

The court asked counsel for the applicants to address whether the application for condonation was not invalid, considering that the applicants had not attached written reasons of the judgment to the application as required by both Rule 35 and Rule 32 of the Constitutional Court Rules.

Counsel for the applicants posited, that, there was a gap in the current rules of the Court as they failed to consider circumstances wherein an applicant would have taken all the reasonable steps to obtain a judgment from the lower court.

In casu, he reasoned that the applicant had sought to obtain a judgment from the Supreme Court to no avail.

Counsel for the applicants intimated, that, the applicants were compelled to launch the application due to the judgment's far-reaching effects. He submitted, that, after the order was issued by the court a quo, the owners of previously forfeited mines were now putting pressure on the mining authorities to set aside the forfeitures in respect of the mines. The mines were now the subjects of disputes as the dispossessed owners sought to retrieve ownership based on the judgment.

The applicants criticized the ex-tempore ruling for imposing an undue burden on them with respect to the forfeiture of mining claims.

Counsel for the applicants was adamant that the application before the Court was valid.

He contended that the applicants had complied with all the requirements necessary despite the lack of assistance from the Supreme Court.

To this end, he submitted that the primary consideration of the interests of justice ought to guide the Court's approach in disposing of the matter regardless of the absence of the written judgment.

Accordingly, he argued that the Court should postpone the matter to enable the applicants to obtain the decision from the Supreme Court.

Per contra, counsel for the first respondent submitted, that, the tenor of Rules 32 and 35 of the Constitutional Court Rules compelled the applicant to furnish the Court with reasons for the order. To buttress his point, he cited the authority of Rushesha v Dera CC24-17.

He insisted that there was no valid application on record and that the Court could not postpone a nullity as was apparent in the present case.

Counsel for the first respondent stated, that, the dicta in Tamanikwa v Zimdef SC73-17 were authority for the principle, that, a court of superior record could not amend nullities. He reasoned that what was not suitable for the Supreme Court to countenance in Tamanikwa v Zimdef SC73-17 could similarly not survive scrutiny in the Constitutional Court.

In addition, counsel for the first respondent submitted, that, Practice Direction 3/2013 militated against the Court's ability to grant the postponement order sought by the applicants. He posited, that, according to paragraph 10 of the Practice Direction, a matter that has been postponed sine die would be deemed abandoned if not set down within three months from the aforesaid date.

Therefore, counsel for the respondent contended, that, a postponement did not aid the applicants case as there was no guarantee that they would obtain the reasons for judgment within three months.

He, therefore, urged the Court to strike the matter off the roll.

On the question of costs, the first respondent sought imposition of costs against the applicants due to their alleged perverse conduct in petitioning the court with full knowledge that their suit did not satisfy the essential elements for condonation or leave to appeal.

In response, counsel for the applicants vehemently opposed the disposal of the matter in the manner prayed for.

He contended that he did not have instructions to make any concessions. However, he conceded that there was no request to condone the absence of the judgment in the applicant's founding affidavit.

Counsel for the applicants concluded his submissions by maintaining that there was a valid application. As such, it could not be regarded as a nullity by the Court. He submitted, that, postponing the matter with directions proffered to the Supreme Court would aid the interests of justice....,.

Rule 35 of the Constitutional Court Rules is the applicable law for this application, it is only proper that I set out the pertinent provisions thereof. It reads as follows in relevant parts:

“35. Application for condonation and extension of time within which to appeal

(1) An application for condonation for the late noting of an appeal or for an extension of time within which to appeal shall be by chamber application and shall be signed by the applicant or his or her legal practitioner and shall be accompanied by a copy of the judgment against which it is sought to appeal.

(2) An application for condonation shall have attached to it —

(a) A draft notice of appeal in accordance with rule 33;

(b) An affidavit setting out the facts upon which the applicant intends to rely.

(3) An application for an extension of time within which to appeal shall —

(a) Have attached to it a notice of appeal in accordance with rule 33(1) and (2); and

(b) An affidavit setting out the reasons why the appeal was not entered in time or leave to appeal was not applied for in time and any relevant facts; and

(c) Where it relates to a matter in which leave to appeal is necessary, comply with the requirements of subrule (2).

(4) (not relevant)

(5) (not relevant)

(6) (not relevant)

(7) A Judge may make such order on the application as he or she thinks fit and shall, if an extension of time is granted, also deal with any question of leave to appeal which may be involved.”

The above Rule sets out the steps an applicant seeking condonation must undertake.

It further informs the applicant of the need to file an affidavit that explains the delay in applying. It makes provision for the necessary documents to be annexed to the application.

A draft notice of appeal and the decision appealed against are required to be part of the record....,.

View Appeal
CC03-19 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS ZIMBABWE and CAIRNS FOODS LTD
Ruled By: MALABA CJ, GARWE JCC and MAKARAU JCC

Rule 32(2) of the Constitutional Court Rules provides as follows:“(2) A litigant who is aggrieved by the decision of a subordinate court on a constitutional matter only, and wishes to appeal against it to the Court, shall, within fifteen days of the decision, file with the Registrar an application for ...

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

On 21 July 2016, the High Court dismissed the appellant's chamber application for the reinstatement of his claim on the third respondent's creditors list. Aggrieved, the appellant filed this appeal, which we dismissed with costs on 6 July 2017.

The appellant wrote to the Registrar requesting the reasons for the order. These are they.

The facts of this case are as follows:

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

However, before the third respondent could make any payment, it was placed under judicial management.

The first respondent, who works for the second respondent, was appointed the Judicial Manager. The appellant then filed, with the Master of the High Court, a claim for his debt to be placed on the list of the third respondent's other creditors.

The claim was provisionally accepted but later revoked at the instance of the first respondent.

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

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

The appellant then approached the court a quo seeking to be reinstated on the list of creditors. The specific order that he sought read as follows:

It is ordered that:

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

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

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

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

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

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

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

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

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

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

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

“It is prayed that;

1. The High Court judgment be set aside.

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

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

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

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

(i)...,.

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

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

The Court found there was merit in the respondents points in limine...,.

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

As correctly observed, the appellant approached the court a quo seeking to reinstate his claim on the third respondent's list of creditors in the office of the Master of the High Court.

The application a quo having failed, the appellant, on appeal, now sought an order granting him leave to register his claim for payment of USD3,057,199= by the third respondent, for purposes of enforcement.

This request pre-supposes, quite erroneously, that the High Court made an order reinstating his claim on the creditors list. This not having happened, the relief now sought is not one that is open to this Court to grant.

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

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

MALABA JA…, in that case, held, that, generally a party cannot seek, on appeal, relief that they did not seek in the lower court: see also Goto v Goto 2001 (2) ZLR 519 (S) where the court held that it was not open to the appellant in that case, in the absence of an amendment to her declaration, to claim on appeal something which she did not claim in the court a quo.

The exception to this rule was outlined in Dynamos Football Club (Pvt) Ltd & Anor v ZIFA & Ors 2006 (1) ZLR 346 (S) 355 where it was held as follows;

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

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

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

It was not enough for the appellant to attempt a conversion on his own, using a rate that was not known and coming up with a figure which no court had endorsed. Consequently, the appellant (a quo) failed to establish a proper basis for the inclusion of the US dollar amount that he sought, on the third respondent's list of creditors.

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

HHMT06-20 : BOTHWELL NYAMANDE vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

On 14 August 2019, the appellant appeared before the Senior Magistrate sitting at Mutare facing a charge of Robbery as defined in section 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The State alleged, that, on 13 August 2019, and at Kale Church Federation, Dangamvura, Mutare, the appellant unlawfully and intentionally used violence and attempted to strike Tinashe Munyanyi on his hands with an axe and stole a GTel X5 cell phone.

The appellant, who was not legally represented, pleaded guilty; he was convicted and sentenced to 5 years imprisonment of which 1 year imprisonment was suspended for 5 years on the usual conditions of future good behaviour.

On 22 August 2019, the appellant noted an appeal against conviction and advanced two grounds of appeal which were spelt out as follows:

“Grounds of Appeal

1. The learned trial magistrate erred and misdirected himself at law when he failed to fully and exhaustively canvass the essential elements of the offence with the appellant who was not legally represented and the conviction is not proper and in accordance with real and substantial justice.

2. The learned trial magistrate erred and misdirected himself at law by failing to explain the gravity of the offence to the unrepresented appellant and to adequately inform him of his constitutional rights relating to legal representation.”

On the date of hearing the appeal, counsel who appeared on behalf of the appellant abandoned ground of appeal number two and chose to pursue the first ground.

The State did not have problems with that and the withdrawal of that ground of appeal was allowed.

Counsel for the appellant proceeded to attack the proceedings of the court a quo arguing that the trial court did not comprehensively and exhaustively put across to the appellant the essential elements of the offence of Robbery, moreso where the appellant was not legally represented.

He went on to argue that the essential elements of robbery consists of theft of property by unlawful and intentional using of violence or threats of violence to induce submission to the taking of it from the person of another or in his/her presence. The threat of violence or the violence itself should sustain a charge of robbery or be intended by the perpetrator to induce or cause the owner of the property to relinquish his or her property.

Counsel for the appellant further submitted, that, the reading of the record of proceedings does not show that the essential elements of robbery were established.

He added, that, the trial magistrate did not ask the pertinent question as to what the appellant intended to attain by threatening the complainant with an axe.

The essential elements of the charge of robbery, he goes on in his submissions, were not properly canvassed by form of questions put to the appellant by the court a quo.

When the court showed counsel for the appellant the manuscript of the record of proceedings, he admitted that the had not read the long hand noted by the court, he also admitted that when the Notice of Appeal was prepared, the legal firm's Professional Assistant might have not read the record of proceedings; he further admitted before the court, that, after reading the manuscript of the record of proceedings, the attack by the appellant, contained in the residual ground of appeal had no merit.

The trial court comprehensively covered all the essential elements of robbery and the appeal had no merit at all.

It is very disturbing to note, that, an appeal is prepared by a legal practitioner without first of all going through the whole record of proceedings, including the notes captured by a judicial officer, moreso where the fulcrum of the appeal is centred on the allegations of failure by a court to put essential elements of a charge to the appellant.

The whole idea of certifying the transcript by all stakeholders is to confirm that what is contained in the transcribed record is a true and accurate reflection of the manuscript.

Whether the Notice of Appeal was prepared by another legal practitioner, the legal practitioner arguing the appeal must acquaint oneself with both the manuscript as well as the transcript.

All this is done to avoid misleading the Appeal Court.

The appellant's legal practitioners found themselves in a very difficult position to attack the conduct of the trial magistrate as it clearly appeared in the record of proceedings that all the essential elements of robbery were competently and clearly put to the appellant and the appellant admitted to them without hesitation and was properly convicted on his own plea of guilty.

As earlier indicated herein, the appellant's legal practitioners conceded that the appeal had no merit and it was accordingly ordered as follows:

The appeal be and is hereby dismissed.

HMT08-19 : STELLA MASUNGA vs FORWARD KAPIYA
Ruled By: MWAYERA J and MUZENDA J

On 23 July 2018, Mr Forward Kapiya (the respondent) of Stand 254 Headlands Location issued summons at Rusape Magistrate's Court against the appellant, Stella Masunga, where he was seeking eviction of the appellant from a commercial Stand No.193, Headlands known as Kapiya General Dealer.

In the summons, he averred that the appellant was his ex-wife and he had since separated with her, and, since she was then co-habiting with other men, she ought to move out of the property.

The defendant filed her appearance to defend, and, on 3 August 2018 she filed her plea. In her plea she contended that the respondent herein was not the owner of the property. She is the one who bought Stand 193 in 2004 and started constructing it alone before customarily marrying the respondent in 2006.

When she married the respondent, in 2006, the shop was about to be roofed.

In 2010, she admitted changing the name from her name to that of the respondent since the respondent was going to marry her. When the appellant changed the names, she did not know that the respondent wanted to grab her shop.

On 12 September 2018, the matter proceeded to trial and both parties led evidence to prove their cases and called witnesses.

After hearing, the court granted eviction against the appellant and ordered her to vacate the premises by 31 December 2018. The order was granted on 19 November 2018.

On 30 November 2018, the appellant noted an appeal against the whole judgment of the magistrate and outlined the grounds of appeal as follows:

“1. The learned Magistrate erred in ordering the eviction of the appellant by 31 December 2018 on Stand No.193 Headlands, despite the following:

(a) The Stand in question belongs to the appellant.

(b) That responsible authority, which is in Makoni Rural District Council, through its representative, Fungai Misi, having been given subpoena, confirmed that appellant is the one who had purchased the said Stand.

2. The learned Magistrate misdirected herself by failing to appreciate the evidence of the responsible authority to the effect that the Stand is registered in appellant's name.

3. The learned magistrate erred and misdirected herself by failing to consider the evidence of the responsible authority to the effect that indeed there was an attempt to do a cession but that was not done because there were issues which needed to be ironed out first.

4. The court failed to appreciate that indeed appellant has a clear right over the Stand hence could not be evicted.

5. The court failed to appreciate that respondent was lying and sought to rely on his evidence.

6. The court erred and misdirected itself in relying with the evidence of a brick moulder.

7. The judgment imposed by the trial magistrate is shocking and should be set aside.

WHEREFORE appellant prays that an order for eviction imposed by the trial magistrate be set aside with costs that she be allowed to carry out her business as the owner of Stand 193 Headlands.”

I have cited the prayer of the appellant to show that it is defective. However, we condoned that defect in the interests of justice and allowed the appellant to argue its appeal.

For the record, the prayer in an appeal should be framed as follows:

“(a) The appeal is upheld with costs.

(b) The judgment of the court a quo is set aside and substituted by the following:

The claim for eviction of the defendant from Stand 193 Headlands is dismissed with costs.”

The appellant's legal practitioner, on the date of hearing, sought the leave of the court to consolidate grounds of appeal 1, 2 and 3 to be represented by ground 1. Effectively, the appellant chose to abandon ground 2 and 3.

The appellant also abandoned ground of appeal 7, though, in counsel's submission, he smuggled it back whilst seeking an order allowing the court to take into account the proprietary right of the appellant over Stand 193 Headlands.

We allowed the consolidation and refinement of the grounds of appeal for there was no prejudice on the respondent.

The grounds of appeal to be dealt with by this court were then 1, 4, 5 and 6.

HMT58-19 : EVANS MULAUZI vs RUSAPE TOWN COUNCIL and SOLOMON GABAZA and TARISAI MANZONZO
Ruled By: MWAYERA J and MUZENDA J

All in the love of a pet! Many linguistic authors have described a pet to include “favourite, preference, darling, idol, jewel, apple of one's eye, matinee, or, in French, enfante gâte.”

Having been frustrated or failed by human friends, whether male or female, humans all over the world from time immemorial had experimented with the animal world to find a real mate or friend. These animal friends stretch from domestic to wild animals, felines, bovines, canines, serpents, birds, fish and others, the list is endless. Some of the pests are fiery and dangerous to accommodate in a residential environment, but all has been done in the name of pet love.

These pets, to some of the humans, evolved into both great and false friends, and, as the saying goes “false friends are like migratory birds, they fly away in the cold weather.”

But, to the appellant in this case, he had managed to show a true character of a friend.

It may seem superfluous to say anything more since good friends are among life's greatest blessings and the lack or loss of them the saddest of deprivations, anything which reminds them of the value of a good friend does not come amiss.

The appellant bought a canine pet when it was young and cared for it for a considerable period which ran into years. During that period, a great alliance developed. As usual, friendship is a hard, strong, slow growing beautiful thing. The soul in which friendship grows is the social set up in which one lives.

Friends are made through the heart not the eye.

The appellant was not the only one who won the heart of the dog, but, his sons and the whole family became a total symbiosis to the dog - that is, from the photographs which were produced in the court a quo, filed of record.

The photographic images depict a real charming togetherness.

The Hebrew Scriptures accurately captures that “A faithful friend is a sure shelter. Whoever finds one has found a rare treasure. A faithful friend is something beyond price, there is no measuring his worth.”

If the dog could have been asked, during its life time, it could have equally vividly described how glorious its life was in the company of the appellant's family.

Friendship begins with a long standing invitation. It says to the other you get on well with; let us tear down the barriers between us, let us pledge ourselves not to fight one another, but rather to comfort, challenge and support.

One has to use a mirror to see one's face. You use a friend to see your soul. Thus, friendship is a union of one mind with another.

Men become like those they associate with.

Experience globally shows, that, pet lovers from the western world go to the extent of sharing their beds and relaxing rooms with their pets, and the majority in the orient dismiss their dogs to the outside when they retire, and, in most instances, the pet or dog has to find a warm place for the night; and, for the merry makers, they “patrol” the environment exposing themselves to the local authority shenanigans, who, in the spirit of controlling infested dogs, end up shooting residents pest - as what happened in this case.

On 15 March 2018, the appellant issued summons against the local authority, and its employees, claiming:

“(a) Payment of the sum of $2,800 being special damages;

(b) Payment of the sum of $200 being general damages;

(c) Interest a tempore morae from the date of judgment to date of payment; and

(d) Costs of suit.”

According to the synopsis of the appellant's particulars of claim filed in the Magistrate's Court, the first respondent is the local authority, the second respondent is the Town Secretary, and the third respondent is the Chief Security Officer.

On 16 July 2017, and at 21:25 hours, the respondent's employees wrongfully and unlawfully shot and killed the appellant's dog at the appellant's House No.1187 Mabvazuva Suburb, Rusape.

As a result of the respondent's wrongful and unlawful conduct, the appellant suffered damages, detailed as follows:

(a) Special damages for money spent on the dog: purchase money as a puppy, its upkeep, castration, dipping chemicals and treatments the dog received for the continuous 9 years the appellant had the dog all totalling to $2,500; the dog's market value of $300. Total $2,800.

(b) General damages for trauma, pain and suffering which includes: sentimental value, loss of companionship, love and affection: $1,000.

Emotional distress, that is to say, seeing the dog die, the time it is going to heal the wound left in the appellant's heart and mind caused by the sight of a loved pet dying after being heartlessly butchered, which dog the appellant had not anticipated would die in that manner. As he was in the process of getting ready to feed it with a meal, it died, having never tasted: $1,000.

In the respondents plea filed on their behalf, they contended, that, they were working with the Zimbabwe Republic Police and other interested persons.

On the day in question, Sunday was a working day, stray and feral dogs spread diseases and attack people - even on Sundays. The dogs, in general, including the appellant's, were shot after all necessary legal steps have been taken, and were shot by a police detail.

Hence, the respondents conduct was lawful and guarded by the police.

The appellant did not suffer any damages at all, or, even if the appellant suffered any damages, he did not suffer damages shown on the pleadings.

The respondents denied that any of the dogs shot belonged to the appellant. The appellant was put to strict proof.

The matter proceeded to trial, and, after the court a quo heard all the parties, proceeded to dismiss the appellant's claim.

The appellant noted an appeal against the learned magistrate's judgment on 9 January 2019.

The grounds of appeal cover 10 paragraphs. They are not specific, and they cover both fact and law stretching from statutes and by-laws.

I will try to decipher from this thicket what the appellant sought to frame as grounds of appeal.

(1) The learned magistrate was biased against the appellant who was a self-actor, and, in so doing, she erred.

(2) The learned magistrate erred by making a finding based on a document which was not produced.

(3) The learned magistrate erred in refusing to go for an inspection in loco.

(4) The learned magistrate erred in justifying the killing of the dog; the respondents should have been found liable of the wrongful shooting of the dog.

(5) The learned magistrate erred in dismissing the appellant's claim for damages.

These five grounds, I conclude, may form the pith of the appellant's appeal.

In future, litigants are encouraged to seek the advice of legal advisory centres, like the Legal Aid Clinic, to prepare grounds of appeal so as to crisply outline issues for determination by the court.

HH709-15 : ODAR HOUSING DEVELOPMENT CONSORTIUM vs SENSENE INVESTMENTS (PVT) LTD and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and ATTORNEY–GENERAL
Ruled By: MAFUSIRE J

As the Supreme Court said, in Jensen v Acavalos 1993 (1) ZLR 216 (S), albeit in relation to a defective notice appeal, per KORSAH JA…,:“The reason is that a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is ...

HH411-15 : TENDAI MASAMBA vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (PVT) LTD
Ruled By: CHIWESHE JP and CHITAKUNYE J

On 26 March 2015, we dismissed the appellant's appeal with costs on the attorney-client scale. We indicated that full reasons will follow. These are the reasons for the dismissal.

The appellant owns an immovable property, namely, Flat No.4 Resdale, 56 Selous Avenue, Harare. The appellant is resident in New Zealand and she was represented in these proceedings by her brother, Ignatius Masamba, by virtue of a General Power of Attorney she granted to him in the year 2011.

In 2011, the appellant, through Ignatius Masamba, sued the defendant for the sum of $1,960 broken down as follows:

“Their statements are a Nuisance $150;
Professional negligence $1,500;
Mental distress/physical inconvenience/time $300;
Transport/stationery/photocopying $10.”

The summons commencing action was not clear on the cause of action or the legal basis for the various claims.

The particulars of claim are, to say the least, confusing and incoherent. The particulars of claim do not disclose the legal basis for the claims.

It is trite, that, particulars of claim must clearly disclose the cause of action being relied upon.

If it is based on contract, the nature and extent of the contractual obligations and their breach must be clear. If it is a suit for damages, the summons and particulars of claim must clearly spell out whether such damages are being claimed in contract or under an Aquilian action.

In casu, the summons and particulars of claim did not disclose whether the damages being claimed were for breach of contract or for a delict.

If the damages are in delict, the summons did not properly establish the cause of action. No wrongful or unlawful conduct on the part of the respondent is alleged, let alone established from the summons and particulars of claim: see Nyaguse v Skinners Autobody Specialists & Another 2007 (1) ZLR 296 (H) and Border Timbers Limited v ZIMRA 2009 (1) ZLR 131 (H).

Based on the above, there was virtually no case to try.

A trial was, nevertheless, held after which the trial magistrate, after considering each of the claims, dismissed the appellant's claim with each party to pay their own costs.

The appellant, being dissatisfied with the magistrate's decision, appealed to this court.

The respondent opposed the appeal and raised points in limine on points of law.

Though some of the points of law may not have been clearly raised in the court below, we were of the view, that, the points pertain to issues that are clear from the pleadings. The consideration of the points will not cause any unfairness as clearly part of the aspects were raised and the appellant was aware of them: see Ngani v Mbanje & Another; Mbanje & Another v Ngani 1987 (2) ZLR 111 (SC).

HH411-15 : TENDAI MASAMBA vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (PVT) LTD
Ruled By: CHIWESHE JP and CHITAKUNYE J

The next aspect to consider is that of the Notice of Appeal.

Order 31 Rule 2(4) of the Magistrates Court (Civil) Rules 1980 states that:

“A notice of appeal or cross-appeal shall state -

(a) Whether the whole or part only of the judgment or order is appealed against, and, if part only, then what part; and

(b) The grounds of appeal, specifying the findings of fact or rulings of law appealed against.”

The grounds of appeal must be set out concisely and in separate numbered paragraphs.

In Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (SC) the court held, that, in order to be valid, a Notice of Appeal must be directed against the whole or part of the substantive order of the court below and not to its reasons for making the order.

In casu, the grounds of appeal contain evidence and do not allege, in concise terms, the alleged misdirection on the part of the trial magistrate. The grounds of appeal are in fact the appellant's arguments.

Not only are the grounds long and winded, but, they are argumentative and not pointing to where the appellant believed the trial magistrate erred.

It is more of restating his case.

On the 30 January 2015, Ignatius Masamba filed a notice of amendment in which he purported to be amending the Notice of Appeal and the heads of argument.

The amendment of the Notice of Appeal was the deletion of the entire Notice of of Appeal and the insertion of a new Notice of Appeal.

Unfortunately, this was to no avail as even the purported amendment is as defective as the first.

The first Notice of Appeal having been a nullity, the amendment was of no effect as one cannot amend a Notice of Appeal that is a nullity. There is nothing to amend.

HMT23-20 : IDAH TAGARIROFA vs NHEDZIWA HIGH SCHOOL DEVELOPMENT COMMITTEE
Ruled By: MUZENDA J

This is an application for a declaratur where that applicant is seeking the following relief as per her draft order:“IT IS ORDERED THAT:1. The application be and is hereby granted.2. The disciplinary proceedings conducted by the respondent against the applicant, in terms of SI15 of 2006, be and is hereby ...

This is an application for a declaratur where that applicant is seeking the following relief as per her draft order:

“IT IS ORDERED THAT:

1. The application be and is hereby granted.

2. The disciplinary proceedings conducted by the respondent against the applicant, in terms of SI15 of 2006, be and is hereby declared a nullity.

3. The respondent be and is hereby ordered to reinstate the applicant without loss of salary and benefits with effect from the date of termination of contract of employment.

4. The respondent be and hereby ordered to pay costs of suit on an attorney-client scale up to the application is opposed.”

The application is opposed. The respondent raised three points in limine:

1. This matter has already been determined by the Labour Court sitting at Harare under case No. LC/H/LRA/216/17. This identical application already has a judgement.

2. In as far as this Honourable Court has jurisdiction over labour matters, it is not permissible for parties to approach the High Court and the Labour Court with the same issue as was done herein. In other words, the matter is res judicata.

3. The dispute has already been dealt with by the Labour Court....,.

Before dealing with the points in limine, the court needs to register its concern with the condition of the record of proceedings.

The index was randomly prepared and the documents are not arranged in tandem with their positions spelt out on the index. The papers are repeatedly annexed and it is clear that the applicant's legal practitioners did not check if the record was in order before the matter was set down for hearing.

It is the sole duty of the applicant's legal practitioners to ensure, that, the record is properly arranged, well paginated, in sequence of the pleadings, and, more particularly, that, the court's copy corresponds with the copies retained by the parties; this will make it easy for quick reference by the court during proceedings.

In future, the parties were informed, during the hearing, the matter can be struck off the roll and the applicant ordered to pay the wasted costs of the other party de bonis propriis.

The lack of order of the record was condoned and the application was allowed to be heard...,.

HMT37-20 : ZIMBABWE REVENUE AUTHORITY and REGIONAL MANAGER (ZIMRA FORBES ENVIRONS REGIONS) and THE COMMISSIONER GENERAL (ZIMRA) vs EZEKIEL MASAMVU and ENOCK CHIBATI
Ruled By: MWAYERA J and MUZENDA J

This is an appeal filed by the appellants against the judgment of the magistrate sitting at Mutasa on 30 April 2019, and, the appellants outlined the grounds of appeal as follows:“GROUNDS OF APPEAL1. The Learned Magistrate grossly erred and misdirected himself on facts and law in concluding, that, the appellants ...

This is an appeal filed by the appellants against the judgment of the magistrate sitting at Mutasa on 30 April 2019, and, the appellants outlined the grounds of appeal as follows:

“GROUNDS OF APPEAL

1. The Learned Magistrate grossly erred and misdirected himself on facts and law in concluding, that, the appellants had been properly cited and that the Notice of Intention to sue was properly served in this matter, and in purporting to condone the improper citation and the purported service mero motu.

2. The Learned Magistrate grossly erred and misdirected himself on facts and law in concluding that the respondents had exhausted domestic remedies prior to approaching the Magistrates Court for relief.

3. The Learned Magistrate grossly erred and misdirected himself on facts and law in concluding that there were no material disputes of facts in the matter.

4. The Learned Magistrate grossly erred and misdirected himself on facts and the law in concluding that respondents did not smuggle the goods/sugar when there was overwhelming evidence which proved that the goods/sugar were smuggled.

5. The Learned Magistrate grossly erred and misdirected himself on facts and the law in ordering the release of the seized sugar in circumstances where the notice of seizure was never challenged in terms of the requisite tax legislation and the respondents failed to discharge the onus upon them by the law to the satisfaction of the appellants.

6. The Learned Magistrate grossly erred and misdirected himself on the law in failing to appreciate that he is, at law, not empowered to determine the validity or review of the Notice of Seizure.”

BACKGROUND FACTS

The first respondent, Ezekiel Masamvu, had his sugar packaged in Portuguese inscribed satchels seized by the first appellant's officers.

Both respondents appeared at Mutasa Magistrates Court for criminal charges of being found with goods not duly accounted for; the State had abandoned the original charge of smuggling in respect of the first respondent; the State also charged the first respondent herein with section 4(1)(b)(ii) as read with section 5 of the Food and Food Standards Act [Chapter 15:04], for false description of goods.

The respondents were acquitted on the charge in terms of the Act; however, the first respondent pleaded guilty to the charge involving false description of goods.

The criminal court at Mutasa ordered the State to immediately release the sugar to the respondents, on condition that the sugar would not be sold in the offensive Portuguese packaging.

The appellants refused to release the sugar.

Having been acquitted of violating the Act, the respondents approached the court a quo for the release of the sugar in terms of section 193(9) of the Customs and Excise Act.

The Magistrates Court made a finding that the appellants release the sugar to the respondents.

It is that order which the appellants seek to be set aside on appeal. The appeal is opposed.

Counsel for the respondents raised points in limine relating to the defective grounds of appeal and submitted, that, if these points are upheld by us the unavoidable consequence will be to strike off the appeal from the roll.

The first ground of appeal requires quoting verbatim:

“The Learned Magistrate grossly erred and misdirected himself on facts and law in concluding, that, the appellants had been properly cited and that the Notice of Intention to sue was properly served in this matter and in purporting to condone the improper citation and the purported service mero motu.”

The respondents submitted, that, this is not a valid ground of appeal as it is not precise nor concise but comes across as a rumbling statement of several complaints bundled into one statement purporting to be a ground of appeal. The ground of appeal is so crude that it raises several arguments or points of arguments in one sentence.

The respondents further contended, that, the so-called ground alleges that the magistrate erred and misdirected himself “on facts and law” without stating any single finding of fact by the magistrate nor does it indicate why each finding of fact, or ruling of law, that is to be criticised as wrong is said to be wrong.

The ground attacks the magistrate's conclusions and his exercise of discretion, without showing why such deserve to be attacked or impugned.

The statement of complaints does not comply with the Rules, it was submitted.

The respondents condemn same as not being a ground of appeal and moved that it be abandoned or struck off.

The second ground of appeal reads:

“The Learned Magistrate grossly erred and misdirected himself on facts and law in concluding, that, the respondents had exhausted domestic remedies prior to approaching the Magistrates Court for relief.”

The respondents counsel submitted, that, the second ground of appeal is bereft of specificity just as the first one.

It is not concise nor is it clear.

It also attacks the Honourable Magistrate's decision without stating why that conclusion is wrong. The ground of appeal does not disclose whether there were any available domestic remedies that were not exhausted. It also does not originate from the judgment that is being appealed against but from a distinct judgement.

The respondents further submitted, that, the court a quo ruled that the proviso to section 193 of the Customs and Excise Act gave it jurisdiction to entertain the application, and that the respondents had a constitutional right to approach the Magistrates Court if aggrieved.

The court a quo never decided that the respondents had exhausted local remedies or that there were local remedies to be exhausted.

In any case, the respondents added, that, the second ground of appeal was frivolous; the course of action open to the respondents was to institute civil proceedings against the appellants once the goods were not released: see Qingsham Investments (Private) Limited v Zimbabwe Revenue Authority HH207-17.

The third ground of appeal reads:

“The learned magistrate grossly erred and misdirected himself on facts and law in concluding, that, there were no material disputes of facts in the matter.”

The respondents contend, that, this ground of appeal is equally fatally defective for the reasons advanced already whilst addressing grounds one and two above.

The alleged material disputes of facts were not itemised - even up to the time the appellants prepared their heads.

The fourth ground of appeal was crafted by the appellants as follows:

“The learned magistrate grossly erred and misdirected himself on facts and the law in concluding, that, respondents did not smuggle the goods/sugar when there was overwhelming evidence which proved that the goods/sugar were smuggled.”

It is the contention of the respondents, that, the fourth ground of appeal is not valid. It is equally not succinct, concise, or clear. It does not specify why the appellant says there was overwhelming evidence which the court below did not see. Such evidence is not identified within the body of the ground of appeal: see Dzinoreva v The State HH780-15.

The fifth ground of appeal was presented by the appellants as follows:

“The learned magistrate grossly erred and misdirected himself on facts and the law in ordering the release of the seized sugar in circumstances where the notice of seizure was never challenged in terms of the requisite tax legislation and the respondents failed to discharge the onus upon them by the law to the satisfaction of the appellants.”

The respondents submitted, that, the fifth ground is similarly imprecise and unclear as the first to fourth grounds of appeal. The fifth ground lacked particularity that could enable the magistrate to meaningfully respond.

The last ground of appeal by the appellants reads:

“The learned magistrate grossly erred and misdirected himself on the law in failing to appreciate that he is, at law, not empowered to determine the validity or review of the Notice of Seizure.”

The respondents argue, that, this is not a valid ground of appeal. An alleged failure to appreciate the law cannot be a ground of appeal as it does not amount to an attack of the court's judgment.

The respondents added, that, it will be infeasible for one to fail to appreciate an aspect of law and not still deliver a legally sound judgment on the matter before that court.

In any case, the respondents submitted the validity of the Notice of Seizure was never an issue before the court a quo; no court application for review was ever brought before the court a quo.

Finally, the respondents submitted, that, the whole set of grounds of appeal filed by the appellants is a complete nullity and must be struck off the roll with costs on legal practitioner–client scale.

The preliminary points relating to the grounds of appeal were raised in the respondent's heads of argument; the appellants did not apply to this court to file supplementary heads addressing the quality or appropriateness of the grounds of appeal.

Having closely examined and analysed the six grounds of appeal filed on behalf of the appellants, the preliminary points raised by the respondents have a basis.

In terms of Order 31(i)(4)(b) of the Magistrates Court (Civil) Rules 2019, a valid ground of appeal shall state:

“(b) In the grounds of appeal concisely and clearly the findings of fact or ruling of law appealed against.”

For a ground of appeal to be acceptably valid, it must be specific, and, hence, if it is impresive, that ground is not a valid one at law: see Kodzwa v Yambuka & Ors HH389-16.

In the matter of Kodzwa v Yambuka & Ors HH389-16, the court remarked, dealing with the Old Magistrates Court Rules:

“At the hearing of the matter, I asked the appellant's legal practitioner whether the notice of appeal complied with Order 31 Rule 2(4). Mr Muchineripi vigorously defended the notice of appeal. He states that the grounds of appeal are clearly set out in the Notice of Appeal. Rule 2(4) provides:

'(4) A notice of appeal or cross-appeal shall state -

(a)…,.

(b) The grounds of appeal specifying the findings of fact or rulings of law appealed against.

The word 'specify' was defined in the Oxford English Dictionary as “to state explicitly”.

In other words, the appellant is expected to clearly define and outline his or her grounds of appeal.

The above issue was dealt in S v McNab 1986 (2) 280 (SC) at 282B-E.

The above decision was followed in S v Jack 1990 (2) ZLR 166 (SC) where it was held, that, Rule 22, contained in SI504 of 1979, requires a notice 'setting out clearly and specifically the grounds of appeal.'

Although this was a criminal matter, the same can be said of a notice of appeal in civil matters: S v Sibanda 2001 (2) ZLR 514 (H).

In casu, the appellant's grounds of appeal are far from being concise and specific.

The notice of appeal is four typed pages in a simple matter of rescission of judgement. They are long, winding, and rumbling. From a mere reading of the grounds of appeal, it is difficult to decipher what the appellant is attacking in the judgement of the court a quo. The court is left in a situation where it has to attempt to make out the grounds of appeal.

This, the court cannot do, as it amounts to drafting grounds of appeal on behalf of the appellant.”

See also the matter of Jonga v Minister of Lands HH243-17.

In the case of Kunonga v The Church of the Province of Central Africa SC25-17 the Supreme Court, dealing with the issue relating to the fact that “grounds must be clear and concise” stated:

“[21] In S v McNab 1986 (2) 280 (SC) the only ground of appeal before this court was that: 'The learned Trial Magistrate erred in fact and law in holding that the State has proved the appellant was so drunk as to be incapable of having proper control of his motor vehicle'. This court held, that, the above ground did not comply with the rules of court, and, more specifically, that the notice of appeal did not set out clearly and specifically the grounds of appeal. The court remarked at page 282F-G:

'…, there must be stated in the Notice of Appeal a precise statement of the points on which the applicant relies.

A statement that 'the magistrate erred in fact and in law in holding that the State had proved appellant was so drunk to be incapable of having proper control of his motor vehicle' is not precise enough…,.

It does not tell the respondent, or the magistrate, what is it that is being attacked.

The respondent is required to prepare his answer to the allegations made in the Notice of Appeal….,.'

In Songono v Minister of Law and Order it was held:

“It has been held, that, grounds of appeal are bad if they are so widely expressed that it leaves the appellant free to canvass every finding of fact and every ruling of the law by the court a quo; or if they specify the findings of facts or ruling of law appealed against so vaguely as to be of no value either to the court or to the respondents; or, if they, in general, fail to specify clearly and in unambiguous terms exactly what case the respondent must be prepared to meet….,.

The lengthy and rambling notice of appeal filed in this case falls woefully short of what was required.

Mr Bursey suggested, that, grounds of appeal could be gleaned from the notice; but, that is not for the court to have to analyse a lengthy document in an attempt to establish what grounds the applicant intended to rely upon but did not clearly set out….,.”

It is not adequate for the appellant to prepare documents and inscribe on it that it is a Notice of Appeal and then write a list of complaints against a judicial officer's ruling, or decision, or conclusion, and take it to a court of appeal for that court to randomly rummage what it can discern to be the complaint of the appellant against the lower court.

Dealing with the similar provision of the Magistrates Court Rules of South Africa, STEGMANN J, in Van de Walt v Abreu 1994 (4) SA 85 (W), spelt out distinct requirements, both of which have to be satisfied for a proper Notice of Appeal for it to qualify as a valid one:

(i) The notice must specify details of what is appealed against (i.e. the particular findings of facts and ruling of law that are to be criticised on appeal as being wrong or misdirection); and

(ii) Secondly, the grounds of appeal (that is; it must indicate why each finding of fact or ruling of law that is to be criticised as wrong is said to be wrong).

For example, that the finding of fact appealed against is inconsistent with some documentary evidence that shows to the contrary, or because it is inconsistent with the oral evidence of one or more witnesses, or because it was against the probabilities peculiar to the matter under consideration.

Such comparative analysis would then be ratified in detail in the heads of argument by referring to particular pages of the record of proceedings and evidence adduced by the parties during the hearing.

The trial officer and the respondent will be availed with enough and clear grounds for them to respond meaningfully.

Such grounds of appeal, however, have to be concise and brief; but, albeit, comprehensive in expression.

See Chikura N.O. & Another v AL Sham Global BVI Ltd SC17-17.

In Dzinoreva v The State HH780-15 the court defined the nullity of the defectiveness of grounds of appeal:

“The third ground of appeal attacks conviction on the vague averments that the State failed to prove its case beyond a reasonable doubt.

It is trite, that, such a ground is too vague a ground to constitute a ground of appeal. It is the same as saying the appellant is not guilty because he is not guilty. The magistrate who is seized with such a notice and grounds of appeal is entitled not to respond to it at all. He cannot possibly know what it is which is being attacked in his judgement.

A notice of appeal without meaningful grounds is not a notice of appeal. As such, it is a nullity which cannot be amended.”

In the matter of Kunonga v The Church of the Province of Central Africa SC25-17, the Supreme Court summarised almost all the previously decided cases relating to the grounds of appeal, such as that;

(i) “The judgement was against the weight of evidence”;

(ii) That a court's finding is wrong because of “the fact that the charge was not substantiated”; or

(iii) That “the learned magistrate erred in accepting the complainant's evidence”;

(iv) “The conviction is against the weight of the evidence”;

(v) “The evidence does not support the conviction”;

(vi) “The conviction is wrong in law”; or

(vii) That “the learned magistrate erred in convicting the accused person in the absence of any concrete evidence showing beyond a reasonable doubt…, that he committed the offence”; were held to be all incurably bad.

They do not tell anyone what is it that is being attacked. Such grounds were held to be “meaningless”.

In casu, the appellants grounds of appeal aver that “the learned magistrate grossly erred and misdirected himself on facts and law 'in concluding' or 'in ordering' or 'in putting to appropriate';

The use of all the words attacks the judgement of court or order granted as a result of a judgement or a ruling.

All the grounds spelt by the appellants do not disclose what is it the appellants are complaining about.

No wonder why the trial magistrate, in his response to the grounds of appeal, properly in our view, wrote that he stood by the reasons for his judgement filed of record because he failed to appreciate what it was that he had failed or erred in his judgement.

The points in limine filed by the respondents are upheld.

There is need for this court to express its displeasure towards this business as usual by legal practitioners in the drafting of the grounds of appeal; before a legal practitioner embarks to draft his or her client's Notice of Appeal in order at least to comply with the rules of the court.

Failure to do so would lead to an order of costs de bonis propriis on attorney client scale.

The appellants, having received the respondents heads, did not take any steps at least to apply for the amendment of the Notice of Appeal, nor did the appellants engage the respondents and withdraw the defective Notice from the court.

The appellants nonchalantly proceeded to indicate and agree with the respondents to have the matter be decided on paper. That was not the proper attitude by the appellants.

Accordingly, it is ordered as follows:

The appeal is struck off the roll with costs on attorney and client scale.

SC11-22 : ZIMBABWE ANTI-CORRUPTION COMMISSION vs GIBSON MANGWIRO and CHRISTOPHER CHISANGO
Ruled By: KUDYA AJA

This composite application for condonation and extension of time for leave to appeal, and leave to appeal raises an interesting question.

It is whether an applicant who seeks and is denied condonation for the late filing of an application for leave to appeal in a lower court and therefore fails to make the actual application for such leave in that court, can procedurally seek leave to appeal from a judge of this Court in chambers.

The applicant filed the present application on 25 March 2021.

It seeks condonation and extension of time for leave to appeal and leave to appeal against the original judgment handed down by the Labour Court on 24 February 2017.

The application is opposed by both respondents.

The Facts

The applicant is a constitutional body established in terms of section 254 of the Constitution of Zimbabwe 2013. It is charged with the responsibility of combating corruption in all its manifestations in Zimbabwe.

The two respondents are former employees of the applicant. The first respondent was a General Manager Finance, Administration and Human Resources and the second respondent was a Chief Accountant.

The two were charged with misconduct, found guilty and discharged from employment on 14 July 2016.

They filed an application for review against the composition and findings of the Disciplinary Committee. The review application was based on 10 grounds. They sought, firstly, the nullification of their suspension, verdict and sentence, and, secondly, their reinstatement to their previous positions on full benefits.

The applicant refuted each and every ground of review.

Findings of the Court a quo

On 24 February 2017, the court a quo dismissed the first three grounds of review that impugned the procedural propriety of amending the statute under which they were charged from the Anti-Corruption Act [Chapter 9:22] to the Labour (National Employment Code of Conduct) Regulations, 2006, SI15 of 2006 model law.

It found, on the authority of Standard Chartered Bank v Matsika 1996 (1) ZLR 12 (S), that, the amendment of the statute under which they were charged, from the Anti-Corruption Act to the National Employment Code Model, was proper.

The amendment did not alter the charges of domiciling Treasury funds in their own company instead of in the account of the applicant nor was it prejudicial to the two as they were afforded adequate time, of at least a month, within which to respond to the charges and prepare their defences.

The Labour Court, however, upheld grounds 4 and 5, which it found to be dispositive of the review application without considering the remaining grounds of review.

It found that the Disciplinary Committee was improperly constituted, and held, on the authority of Madoda v Tanganda Tea Co. 1999 (1) ZLR 374, that, it was voidable at the instance of the prejudiced respondents. It set aside the proceedings and remitted the matter to a properly constituted Disciplinary Committee.

The remittal was based on the sentiments of MUCHECHETERE JA in Standard Chartered Bank of Zimbabwe Ltd v Chikomwe & Ors SC77/2000, SC77-00 that:

“…, reinstating the respondent in the circumstances implies a finding that respondents were innocent of the charges of misconduct against them by the hearing officers…,. A setting aside of the proceedings of the disciplinary committees should therefore lead the parties to the same position before the hearing in the disciplinary committees - appeals before a properly constituted disciplinary committee.”

The two respondents therefore remained on suspension but on full salary and benefits.

In terms of Rule 36 of the Labour Court Rules SI59/06, the applicant had 30 days from the date of the judgment within which to apply for leave to appeal to the Supreme Court against the judgment of 24 February 2017.

It failed to do so.

On 5 October 2017, it applied for the upliftment of the bar and condonation for late filing of an application for leave to appeal.

It did not co-join this application with an application for leave to appeal.

On 23 February 2018, the Labour Court dismissed the application for upliftment and condonation.

The requirements for such an application were the extent of the delay, the reasonableness of the delay and prospects of success, and the absence of prejudice to the other parties.

The Labour Court found the delay inordinate and the explanation for the delay unreasonable. It was unable to assess whether or not there were prospects of success in the absence of a draft notice of appeal. It reasoned, that, without the draft notice of appeal, it was unable to ascertain whether the grounds of appeal were based on points of law as mandated by section 92F(1) of the Labour Act [Chapter 28:01].

This was despite the fact, that, the applicant had raised substantive points of law impugning the review judgment.

The Labour Court clearly abdicated its responsibility to determine whether, on the averments and arguments submitted in the application for condonation, there were prospects of success.

However, having found the application to be defective for lack of a draft Notice of Appeal, the proper course of action that the Labour Court should have taken was to strike off the application from the roll and not to dismiss it.

Faced with this legal conundrum, on 16 March 2018, the applicant sought leave to appeal against the upliftment and condonation judgment before the Labour Court.

The application was heard on 25 June 2018 and dismissed on 17 August 2018. The basis for the dismissal was that the applicant failed to demonstrate that the intended appeal raised a question of law and that there were prospects of success on appeal.

On 28 August 2018, the applicant timeously sought leave to appeal against the upliftment and condonation judgment.

It did not seek leave to appeal against the review judgment.

On 19 October 2018, the application was struck off the roll by HLATSHWAYO JA…, for lack of the record of proceedings pertaining to the upliftment and condonation proceedings.

That record was availed by the Labour Court on 7 March 2019.

The applicant then filed an application for condonation for the late filing of leave to appeal in SC203/2019.

The matter was set down before MAVANGIRA JA on 25 August 2019.

She wrote a detailed 8 paged judgment, SC91-19, in which the application was struck off the roll with costs for the reason that it was lodged under the wrong Rule.

In the body of the judgment, MAVANGIRA JA lamented the fact that the applicant was assailing the upliftment and condonation judgment instead of the review judgment.

She found it absurd, that, she was being requested to grant leave to appeal the upliftment and condonation judgment, which, once granted, would then enjoin the Supreme Court to determine whether or not to direct the Labour Court to grant condonation and hear the actual application for leave.

She intimated that the applicant was enjoined by section 92F(3) of the Labour Act to seek leave from a judge of the Supreme Court, in chambers, once the Labour Court declined to grant it condonation for the late filing of an application for leave to appeal.

On 5 December 2019, the applicant sought condonation and extension of time to appeal under Rule 43(3) in SC685/19.

The application was struck off the roll by HLATSHWAYO JA, on 24 January 2020, on the ground that it should have been brought as a composite application.

On 29 May 2020, under SC201/20, the applicant filed yet another application.

On 16 July 2020, GUVAVA JA removed it from the roll with costs and ordered that the matter could only be reinstated upon the payment of the respondents taxed costs in SC685/19.

The taxed costs were duly paid.

The re-enrolled application was heard by MAKONI JA on 23 September 2020. Apparently, the draft Notice of Appeal did not identify the judgment sought to be appealed. The applicant, therefore, withdrew the application and tendered the respondents costs on the scale of legal practitioner and client.

The preceding five applications were lodged against the upliftment of the bar and condonation judgement.

The present application is the first one that seeks condonation and extension of time to file an application for leave to appeal and the application for leave to appeal against the review judgement.

It will be recalled that the review judgment was handed down by the Labour Court on 24 February 2017.

It is common cause that the applicant never did seek leave to appeal from the Labour Court after its stand-alone application for condonation and extension of time to file leave to appeal was dismissed.

Counsel for the respondents took two points in limine on that very point:

(i) The first was that the applicant could only make a chamber application for leave to appeal to a judge of this Court after such leave had been denied by the Labour Court. He therefore submitted that the application was improperly before me.

(ii) The second was that the sole ground of appeal sought to be raised was so vague as to not specify clearly and in un-ambiguous terms exactly what case the respondent must be prepared to meet. He argued that the ground of appeal, being fatally defective, rendered the application a nullity.

Per contra, counsel for the applicant contended, that, the ground of appeal was clear and concise and not vague.

Regarding the second preliminary point, he contended that the application was properly before me. He premised his argument on the lamentation of MAVANGIRA JA in SC91/94.

I turn to consider the diametrically opposed arguments....,.

The second preliminary point attacks the propriety of the sole ground of appeal, which reads as follows:

“The court a quo erred and misdirected itself in finding, that, the disciplinary committee was improperly constituted.”

The relief sought is the success of the appeal with costs, the setting aside of the judgment a quo, and its substitution with the dismissal of the application for review.

I agree with counsel for the respondents, that, the ground of appeal does not particularize the basis for the complaint. It is unclear whether the ground attacks a factual finding or a legal finding.

In my view, the ground of appeal is incomplete and therefore vague.

It falls squarely into the category of defective grounds of appeal that are bad at law; which, in the words of LEACH J in Sonyongo v Minister of Law and Order 1996 (4) SA 384…,:

“Specify the findings of fact or rulings of law appealed against so vaguely as to be of no value either to the Court or to the respondent, or, if they, in general, fail to specify clearly and in un-ambiguous terms exactly what case the respondent must be prepared to meet.”

Indeed, as pertinently observed by MAKONI JA in Mahommed v Kashiri SC85-19…,:

“The applicant's first ground of appeal simply complains that the court below was wrong in making a particular finding and should have, instead, made a different finding. The basis of the attack is not stated….,. Further, the ground of appeal does not indicate why the finding of fact or ruling is to be criticized as wrong, is said to be wrong.”

And, as it was so eloquently pitched by GARWE JA in Zimbabwe Open University v Ndekwere SC52-19…,.:

“The gross aberration on the facts was not articulated. It remained a bald allegation impugning findings of fact. It did not state how and in what way the arbitrator grossly erred in reaching the conclusion that was sought to be impugned. In these circumstances, it remained an attack against a simple finding of fact, and, clearly, does not raise any issue of law.”

All the above sentiments apply to the sole ground of appeal to be raised by the applicant on appeal.

The defective ground of appeal renders the application before me a nullity.

It is trite that a nullity cannot be condoned or amended: see Yunus Ahmed v Docking Station Safaris (Pvt) Ltd t/a CC Sales SC70-18...,.; Robert Dombodzvuku v CMED (Pvt) Ltd SC31-12...,.; and S v Jack 1990 (2) ZLR 166 (S)...,.

The composite application that seeks condonation and leave to appeal would have been properly before me but for the defective and irredeemable ground of appeal embodied in the draft Notice of Appeal.

Resultantly, the fatally defective Notice of Appeal renders the present application a nullity.

In the circumstances, I cannot delve into the merits of the composite application. The application ought, therefore, to be struck off the roll....,.

Disposition

Accordingly, it is ordered that:

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

2. The applicant shall pay the respondents costs on the ordinary scale.

SC12-22 : SIMON CHINGANGA vs MUNASHE SHAVA and TAPSON MADZIVIRE and ADAM BEDE MANUFACTURING (PVT) LTD
Ruled By: KUDYA AJA

This is an application for reinstatement of an appeal, which was not deemed to have been dismissed, but was, by consent, struck off at the hearing on 24 November 2020 in SC99-20, for the reason (per paragraph 18 of the applicant's founding affidavit) that the applicant “had failed to file heads of argument as required by the rules of this Honourable Court.”

The applicant deliberately did not identify the Rule under which he lodged the application.

However, in oral argument, counsel for the applicant contended, that, it was filed in terms of paragraph 5 of Practice Direction No.3 of 2013 and not Rule 70(2) of the Supreme Court Rules 2018.

THE BACKGROUND FACTS

The main protagonists in this dispute are the applicant and the first respondent. The dispute turns on the scope and extent of the first respondent's shareholding in Adam Bede Manufacturing (Pvt) Ltd (the third respondent).

The second respondent is the majority shareholder in the third respondent.

The first and second respondents, with the assistance of a promoter of companies (Hove), concluded a Shareholders Agreement in which they became equal shareholders in Extreme Security Group (Pvt) Ltd (the Special Purpose Vehicle or SPV).

They further agreed to purchase the entire equity of Hunting Furniture (Pvt) Ltd t/a Adam Bede (Hunting) through the special purpose vehicle (SPV).

The two prospective shareholders soon realized that the participation of the first respondent would, at that time, be in conflict with his employment contract.

They sought to make Hove the first respondent's nominee shareholder, but, for professional reasons, he declined to undertake that role.

On the recommendation of the second respondent, and, again, with the help of Hove, the applicant became the first respondent's nominal shareholder in the special purpose vehicle (SPV).

The special purpose vehicle (SPV) purchased Hunting Furniture (Pvt) Ltd t/a Adam Bede and re-registered it as Adam Bede Manufacturing (Pvt) Ltd (the third respondent) on 4 May 2017.

The applicant and the second respondent were registered as the sole shareholders and directors in the third respondent. They each held one share apiece. The two directors became the sole joint signatories of the third respondent's bank account.

The conflict of interest situation that had previously bedeviled the first respondent ceased.

He sought to assume his role as the true shareholder and director in the third respondent.

His efforts were vigorously resisted by the applicant, who claimed to be a 50% shareholder in the third respondent in his own right.

The first and second respondents negotiated a settlement of the dispute with the applicant.

They concluded an oral agreement in which they restructured the shareholding of the third respondent by allotting 40 shares to the second respondent, 30 shares to the first respondent, 20 shares to the applicant and reserved 10 shares to a future technical partner.

The parties then reduced the oral agreement to writing but the applicant refused to sign it.

The applicant requisitioned an Extraordinary General Meeting on 3 November 2018 for the dismissal of the first respondent as a director of the third respondent.

He defaulted the meeting.

At the meeting, the first and second respondents removed the applicant as a director and company secretary of the third respondent.

He, however, was restored to both positions, unopposed, by the High Court in HC10298/18.

Thereafter, the applicant insisted that he was a 50% shareholder in the third respondent and sought to resile from the restructured shareholding agreement.

His assertions caused the first respondent to lodge a court application in the High Court for a declaration of his rights as a shareholder and director in the third respondent.

The application was opposed by the applicant.

At the hearing, a quo, the applicant raised three preliminary points:

(i) The first was that there were material disputes of fact that could not be resolved on the papers.

(ii) The second was that several paragraphs in the founding affidavit ought to be struck out in terms of Rule 141 of the High Court Rules 1971 for being argumentative, irrelevant, inconsistent, and contradictory.

(iii) The last was that the supporting affidavit of Hove ought to be expunged from the record for the reason that he was conflicted as he had rendered professional registration services to the third respondent.

On the basis of the common cause documents filed of record, such as the draft shareholders agreement, the judgment in HC10298/18 and Form CR2 and CR14, the court a quo held that the material disputes of fact were more illusory than real and could, therefore, be resolved on the papers.

Regarding the second preliminary point, it held that the court's power to strike out the impugned pleadings, under Rule 141 of the Rules of Court, could only be exercised in action proceedings and not in application proceedings.

Lastly, that, as the deponent to the supporting affidavit was not a legal practitioner, he could not, therefore, be a conflicted witness and his affidavit could not properly be expunged from the record.

All the preliminary points were, accordingly, dismissed.

On the merits, the court a quo found, that, the first respondent had established all the essential requirements for the grant of a declaratory order.

He had a direct and substantial interest in the application. He held existing rights that were under threat from the applicant's conduct.

The applicant sought to impugn, without evidence, and appropriate to himself the primary and pivotal role played by the first respondent and the second respondent in purchasing the entire equity in Hunting Furniture (Pvt) Ltd t/a Adam Bede through the special purpose vehicle (SPV).

The court a quo further found, that, the first and second respondents had contributed US$160,000 and US$180,000, respectively, into the special purpose vehicle (SPV) for the purchase price of, and as working capital in Hunting Furniture (Pvt) Ltd t/a Adam Bede while the applicant had not made any monetary or material contributions thereto.

The court a quo, therefore, declared the first respondent to be the holder of 30 ordinary shares, against the 20 shares of the applicant and 40 shares of the second respondent, in the third respondent.

It also declared him to be a duly appointed director of the third respondent; and, as consequential relief, ordered the restoration of his name as a director on the company's letterheads.

The applicant was also interdicted from misrepresenting to “clients and associates of third respondent” the extent of his equity holding, and the status of the first respondent, in the third respondent.

Lastly, he was ordered to pay the costs of suit.

Aggrieved by the decision a quo, the applicant appealed against the whole judgment of the court a quo to this Court in SC99-20, within the prescribed period.

On 30 September 2020, a day before they were due, the applicant's legal practitioners filed heads of argument, which, ex facie, bore the correct SC case number and designations of the parties.

It was common cause that these heads were a truncated version of the heads that had been filed a quo and even embodied the parties respective designations a quo. They, also, did not relate to the grounds of appeal.

The applicant raised the following four grounds of appeal:

“1. The court a quo erred in finding for the first respondent in para 2, 3 and 4 of the order notwithstanding that such determinations were not supported by any reasons for the decision.

2. A fortiori, the court a quo erred in making an order without considering the adverse factual position presented by the now appellant which contradicted the first respondent's version and not providing reasons for accepting the first respondent's story and rejecting the appellant's rendering its decision arbitrary and capricious.

3. The court erred and grossly misdirected itself in finding that the evidence of a professional who has previously acted for a company can be accepted to support a litigant against a shareholder of the same company without being conflicted.

4. The court a quo erred in making an order declaring first respondent owner and holder of 30 ordinary shares outside legally acceptable principles and norms of property acquisition. In particular, the order of the court does not relate with the cause of action proffered.”

The relief sought by the applicant was for the appeal to be allowed and the judgment a quo set aside and substituted with the dismissal of the application with costs.

The impropriety of the heads was brought to the attention of the applicant in the first respondent's heads filed on 16 October 2020 and served on 20 October 2020.

The applicant, however, sought to remedy the defect by filing “appellant's supplementary heads of argument (enrolled for hearing on 24 November 2020)” on 19 November 2020.

At the appeal hearing, on 24 November 2020, an order was issued, by consent, striking the matter off the roll with costs.

THE PROPRIETY OF THE PRESENT APPLICATION

In his opposing affidavit, the first respondent raised five preliminary points against the application:

(i) The first was that the applicant had merely headlined the application as a “Chamber Application for the Reinstatement of an Appeal” and deliberately avoided identifying the Rule under which the application was being made;

(ii) Secondly, the application did not address the prospects of success in any meaningful detail;

(iii) Thirdly, the application did not embody the order granted in SC99-20;

(iv) Fourthly, the application was filed outside the 15-day time line prescribed in Rule 70(2) of the Rules of the Supreme Court 2018; and

(v) Lastly, the founding affidavit was deposed to by the applicant's legal practitioner of record, who did not indicate that he was authorised to depose to the affidavit.

The applicant did not file an answering affidavit: nor did the parties file any heads of argument prior to the hearing of this application.

Counsel for the first respondent abided by the contentions made in the first respondent's opposing affidavit. He sought the striking off of the matter with costs on the higher scale.

Counsel for the applicant, however, argued for the dismissal of all the preliminary points at the hearing.

He argued that the application was based on paragraph 5 of Practice Direction No.3 of 2013, and not Rule 70(2) of the Supreme Court Rules 2018.

The Practice Direction provides a dies induciae of 30 days for filing a reinstatement in which a matter has been struck off for failure to abide by the Rules of the Court. On the other hand, Rule 70(2) prescribes a dies induciae of 15 days within which to file a re-instatement of an appeal that has either been deemed to have lapsed, or regarded as abandoned, or deemed to have been dismissed in terms of any provision of the Supreme Court Rules 2018.

He accordingly prayed for the dismissal of the first and fourth preliminary points.

Regarding, the third preliminary point, he contended, that, the application raised prospects of success, notwithstanding that the first respondent may be dissatisfied with the manner in which they were addressed.

These were raised in paragraphs 23 to 26 of the founding affidavit.

The thrust of these paragraphs being that the decision of the court a quo is most likely to be overturned on appeal for being contrary to the stipulations enshrined in the Articles and Memorandum of Association of the third respondent regarding the acquisition and allotment of shares in the company after registration.

Further, that the judgment was based on a draft shareholding agreement that had not been executed.

And, lastly, that the endemic material disputes of facts presented by the parties were incapable of resolution on the papers without the hearing of oral evidence.

On the failure to attach the order of this Court in SC99-20, he argued that the order, and the circumstances under which it was issued, had been adequately adverted to in paragraphs 17 and 18 of the founding affidavit.

In any event, being a document emanating from this Court, the judge, in chambers, could always call for and refer to the order.

Lastly, on the authorization of the applicant's legal practitioner of record to depose the founding affidavit on his behalf, he argued that it was trite that a legal practitioner who had personal knowledge of the procedural facts is not precluded from filing a founding affidavit for and on behalf of his client.

He also took the point that the grounds of appeal were not prolix.

This point had been raised by the first respondent in the heads of argument filed in the appeal that was struck off the roll.

Counsel for the applicant sought to rely on Afritrade International Ltd v Zimbabwe Revenue Authority SC03-21 for the further submission, that, the question of prolixity could best be raised and dealt with at the reinstated appeal and not in these proceedings.

I turn to deal with the first preliminary point, which, in my view, is dispositive of this application.

The first respondent contended, that, the failure to identify the Rule under which the application was lodged embarrassed him and prevented him from adequately responding to the application.

He did not know whether the application was properly brought as a chamber application for reinstatement of an appeal or is a disguised application for condonation and extension of time within which to file an appeal.

It was only at the hearing that counsel for the applicant pontificated that the application was premised upon paragraph 5 of the Practice Direction 3/13.

That submission immediately raises the question of the propriety of bringing the present application under this Practice Direction.

The reinstatement of an appeal is dealt with under Rule 70 of the Supreme Court Rules 2018. The Rule states that:

“70. Reinstatement of appeals generally

(1) Where an appeal is —

(a) Deemed to have lapsed; or

(b) Regarded as abandoned; or

(c) Deemed to have been dismissed in terms of any provision of these rules; the registrar shall notify the parties accordingly.

(2) The appellant may, within 15 days of receiving any notification by the registrar in terms of subrule (1), apply for the reinstatement of the appeal on good cause shown.”

Reinstatement, for a matter that has been struck off for failing to comply with a provision of the Rules of Court, is also dealt with in terms of paragraphs 3 to 5 of Practice Direction 3/13. It reads:

“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.”

The meaning of paragraph 5 was rendered by GUVAVA JA in Bindura Municipality v Mugogo 2015 (2) ZLR 237 (S)…,.

That application for reinstatement of an appeal concerned a fatally defective notice of appeal that reflected the wrong date of judgment and which had been served on the registrar of the Labour Court outside the period granted in an order for leave to appeal.

At 238G, GUVAVA JA held that:

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

And, at pp239E-240A, relied on Hattingh v Pienaar 1977 (2) SA 182 (O) to construe paragraph 5 of the Practice Direction:

“It seems to me that a proper interpretation of para 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.

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….,. 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 Superior Court Practice Direction.”

Counsel for the applicant argued, that, the failure to file heads in SC99-20 did not render the appeal fatally defective because it was, but for this anomaly, a complete appeal that was ripe and ready for hearing.

His argument in this respect is totally misconceived.

Were he correct, then, this Court would not have struck the matter off the roll but would have, in the exercise of its inherent power to regulate its own proceedings, have regarded it as abandoned and deemed it dismissed as prescribed by Rule 70(1)(c) of the Supreme Court Rules.

The power of this Court to act in this manner does not only arise from its inherent power to control its own rules but is clearly codified in Rule 53(3) of the Supreme Court Rules, which reads:

“53. Dismissal of appeal in the absence of heads of argument or appearance

(3) Where, at the time of the hearing of an appeal, there is no appearance for the appellant or no heads of argument have been filed by him, the court may, at its discretion, determine or dismiss the appeal and make such order as to costs as it may think fit.”…,.

Rule 53(3) of the Supreme Court Rules confers a discretion on this Court by the use of the word “may” as well as the repeated use of its synonym “discretion” to determine or dismiss the appeal.

In my interpretation of the underlined words, the power conferred on this Court is not limited to determining or dismissing. It is trite that “may” is directory.

In its proper interpretation, the subrule merely means that this Court may or may not, in its discretion, determine or dismiss the appeal.

In striking off the appeal, this Court elected to not determine or dismiss the appeal. This Court did, by consent, strike off the matter from the appeals roll for the obvious reason that the appeal was fatally defective and could neither be determined nor dismissed.

Otherwise, were there room to salvage the matter, it would simply have, by consent, removed the matter from the roll thereby making it eligible for enrolment upon request: see Maparanyanga v Van Schalkwyk SC64-02.

That the application was fatally defective is apparent from a closer scrutiny of the grounds of appeal sought to be reinstated.

All the grounds of appeal are fatally defective in two main respects: they are all vague and embarrassing.

In the words of LEACH J in Sonyongo v Minister of Law and Order 1996 (4) SA 384…,.:

“It has been held that grounds of appeal are bad if they are so widely expressed that it leaves the appellant free to canvass every finding of fact and every ruling of the law made by the court a quo, or if they specify the findings of fact or rulings of law appealed against so vaguely as to be of no value either to the Court or to the respondent, or if they, in general, fail to specify clearly and in unambiguous terms exactly what case the respondent must be prepared to meet.”

The above cited words afflict the first ground of appeal.

It is so vague as to be of no value to either this Court or the first respondent. In addition, it is also simply inconceivable, and, in fact, incorrect to raise such a ground against a well-reasoned seven paged judgment.

The second ground of appeal is so widely cast that it leaves the applicant free to attack every finding of fact and ruling of law made a quo.

The manner in which the second ground of appeal is crafted has consistently been deplored in this jurisdiction since 1957 when the case of R v Emerson 1957 R&N 743 (SR)…, was decided. See also S v Ncube 1990 (2) ZLR 303 (S)…,.; Chikura NO & Anor v Al Shams Global BVI Ltd 2017 (1) ZLR 181 (S); Econet Wireless (Pvt) Ltd v Trustco Mobile (Pty) Ltd SC43-13.

This Court has consistently reminded legal practitioners to desist from drafting such vague and unacceptable grounds of appeal.

The ground falls into the same general genre with those that litter our law reports, some of which read as follows:

“The learned magistrate erred in accepting the complainant's evidence” or “the conviction is against the weight of evidence” or “the evidence does not support the conviction” or “the conviction is wrong in law”.

The latest case that lamented this failure to draft cogent grounds of appeal was Afritrade International Ltd v Zimbabwe Revenue Authority SC03-21…,.

In that case, the unacceptable ground of appeal impugned the judgment a quo for “rejecting the evidence given on behalf of the appellant as being unreliable.”

It was struck out on appeal for being too widely cast to such an extent that it failed to identify the specific evidence that was unreliable and to which the respondent and the court could relate.

The third and fourth grounds are also afflicted by the same malady as the first. They, too, are generalized, vague, and embarrassing. They fail to specify clearly and in un-ambiguous terms exactly what case the respondent must be prepared to meet.

The law to which ground number 3 is premised on is not specified nor are the “legally acceptable principles of property acquisition” identified. These are meaningless phrases that do not impugn the specific findings of fact or law that were made by the court a quo.

To suggest, as counsel for the applicant did, that these fatally defective grounds should be foisted upon an Appeal Court for it to deal with them, is simply preposterous.

To do so, would not only constitute an abdication of my responsibility as a gate keeper beholden to permit only deserving appeals to pass through, but would also result in a complete waste of valuable judicial time for the panel that would be seized with the defective appeal.

In any event, the first ground of appeal appears to be contradicted by the second, third, and fourth grounds which, in a misogynistic way, provide the reasons for the impugned orders.

They are that the court a quo accepted the version of the first respondent because it was supported by Hove's affidavit.

In his affidavit, Hove confirmed the existence of the Share Subscription Agreement between the first and second respondents prior to the involvement of the applicant in the affairs of the third respondent.

In addition, the court a quo based its determination on the common cause fact, that, the applicant and the first and second respondents negotiated a new shareholding structure and concluded an agreement in respect of the third respondent, which was critically captured in the draft written agreement and official CR2 and CR14 documents that the applicant failed to successfully impeach.

The court a quo also found that the probabilities supported the existence of the first shareholders document and the second unsigned restructuring and share allotment agreement. These were that:

(i) Firstly, Hove would not have been approached to be the first respondent's nominee shareholder had the Hunting Furniture (Pvt) Ltd t/a Adam Bede deal been consummated by the applicant and the second respondent.

(ii) Secondly, the applicant only came into the picture after Hove had declined the nomination.

(iii) Thirdly, the applicant had failed to impeach the existence of the second agreement. His refusal to sign the agreement was inadequate to dislodge the corroborated version of the first respondent.

The recasting of the onus to the applicant to impeach the agreement was restated by PATEL JA…, in Afritrade International Ltd v Zimbabwe Revenue Authority SC03-21 …,. He stated that:

“In principle, an unsigned agreement cannot ordinarily be relied upon as creating a valid and binding contract. However, the surrounding circumstances, including prior dealings between the parties concerned, may give rise to the prima facie presumption that the terms and conditions embodied in an unsigned agreement represent the true intention of the parties. The burden then shifts to the party disputing the authenticity of the agreement to show that it was not intended to be binding. This position was affirmed by this Court in Associated Printing and Packaging (Pvt) Ltd & Ors v Lavin & Anor 1996 (1) ZLR 82 (S) at 87.”

The point I make by these references is simply, that, all the four grounds of appeal were, on 24 November 2020, fatally defective. That is why the purported appeal was “by consent” struck off the roll.

Such a defective appeal cannot be reinstated: see Bindura Municipality v Mugogo 2015 (2) ZLR 237 (S).

The applicant misconceived the application of Practice Direction 3/13. It does not apply to a fatally defective appeal that is struck off the roll.

The first preliminary point is resolutive of the whole application. It is, therefore, not necessary for me to deal with the other preliminary points or to delve into the merits of the application.

COSTS

I agree with the first respondent's counsel, that, the import of striking off, especially in the light of the interpretation rendered to Paragraph 5 of the Practice Direction 3/13, should have been apparent to the applicant.

He has, through his erstwhile legal practitioners, been making elementary bleeps and blunders that have unnecessarily put the first respondent out of pocket.

This is an appropriate case to mulct him with an adverse costs order at the scale of legal practitioner and client.

DISPOSITION

In the circumstances, it is ordered that:

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

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

SC44-15 : JAINOS ZVOKUSEKWA vs BIKITA RURAL DISTRICT COUNCIL
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

In a judgment delivered on 16 April 2013, the Labour Court set aside an award made by an arbitrator reinstating the appellant to his former position without loss of salary or benefits. In its place, the Labour Court substituted a finding that the appellant was guilty of gross negligence and withholding information. In consequence of that finding, the Labour Court imposed the penalty of dismissal and ordered that each party pays its own costs.

This appeal is against that order.

FACTUAL BACKGROUND

The respondent is a Rural District Council set up in terms of the Rural District Councils Act [Chapter 29:13]. Like all other local authorities, it is constituted by elected councillors and salaried employees, the latter falling under the aegis of a Chief Executive Officer.

The appellant was employed by the respondent as its Executive Officer, Finance. In this position, he was the financial advisor to the respondent on all financial issues. He was also responsible for the purchase of all Council assets and controlled all Council income and expenditure.

In a routine audit of Council books, auditors found that statements were not being produced timeously. They recommended that the respondent purchase more computers. Following a meeting of the respondent's Finance Committee, it was resolved to buy four (4) computers for the Finance Department and one for the Audit Department. The four computers for the Finance Department were to enhance Council operations in the income, debtors, and creditors sections whilst the main server was to consolidate and record daily transactions of all sections. As Finance Officer, the appellant was tasked with the responsibility to ascertain the computer specifications necessary for this task and to make recommendations on the suppliers.

The appellant prepared a document for consideration by the Finance Committee. The document, which was presented to the Finance Committee on 4 February 2005, made two recommendations on the hardware specifications. On the server minimum specifications, the appellant recommended a “Compaq Pentium 4-IBM, Dell”. On the workstation minimum specification, he recommended “Compaq Dell/Clone/IBM Microsoft Windows 2000 Professional TM/Windows XP.”

In his presentation to the Finance Committee, the appellant reported that he had received nine quotations, that he had investigated the companies concerned and that, after due diligence, he recommended that the tender be awarded to a company called Powertec Distribution (Pvt) Ltd (“Powertec”).

In its tender, Powertec had quoted the price for five IBM Clone Pentium IV computers. That Powertec had tendered to supply clone computers was not disclosed by the appellant during the presentation before the Finance Committee.

Although a member of the Finance Committee – a councillor - expressed some disquiet on whether the recommendation by the appellant had been prepared after due diligence, the Finance Committee, following assurances by the appellant that he had carried out due diligence, and that the company was reputable, resolved to award the tender to Powertec.

The computers were delivered by Powertec, the delivery note reflecting that what had been delivered were clone computers. The appellant authorized their payments without reference to the Chief Executive Officer. Payment was made on the same day that the computers were received.

It further appears from the papers that the respondent was not entirely happy with the performance of the computers. Consequently, the respondent engaged the services of an information technology expert who advised Council that the computers procured were clones and that clones were not original computers but were assembled using parts from different computers. Attempts to locate Powertec were in vain. The box number reflected on the quotation was found to belong to the Anglican Church. The respondent concluded that Powertec was a briefcase company and that its physical location could not be traced.

Following this development, on 12 May 2005, the respondent charged the appellant with the following:-

(a) Negligence, in that the appellant had failed to take reasonable care to inspect the computers received to ensure they complied with technical specifications, that he had proceeded to pay Z$25 million on a voucher which described the computers as clone, that he had failed to submit the payment voucher to the Chief Executive Officer for his endorsement, and, lastly, notwithstanding that he had not signed the payment voucher, released payment.

(b) Withholding information in that he had inserted a password in the computer system which he refused to disclose on request; that he had collected the tender documents and minutes of the Tender Board meeting from Council offices and had refused to return them; that he had refused, when requested, to disclose the password for the networked computers, by the Chief Executive Officer.

(c) Fraud, in that he misrepresented that he had thoroughly investigated the background of the company, Powertec, and had recommended that it be awarded the tender when, in fact, the company was not operational but was a shelf company.

The disciplinary hearing took place before the Council disciplinary committee on 6 July 2005. The Committee found the appellant guilty of all three charges and, consequently, determined that he be relieved of his duties in terms of the Code of Conduct for the Council.

PROCEEDINGS BEFORE THE ARBITRATOR

The appellant appealed to an arbitrator against the dismissal. Whether or not this was the correct procedure is not an issue before me.

In essence, the arbitrator found that the computers received were in accordance with the quotation. He further found that, since the appellant had not previously received a warning, he was not guilty of negligence. On the charge of withholding information, he found that the computers in question were still functional, and, if not, could have been returned to the supplier. On the allegation of fraud, he found that no evidence of such fraud had been proffered and that, to the contrary, Council operations had been enhanced following the procurement of these computers.

In consequence, he found that the verdict of guilty of misconduct was unlawful and accordingly set the verdict aside and ordered his reinstatement without loss of salary and benefits from the date of his dismissal.

RESPONDENT'S GROUNDS OF APPEAL BEFORE THE LABOUR COURT

Dissatisfied, the respondent appealed to the Labour Court.

In view of the grounds of appeal raised in this appeal, it is necessary to restate those grounds. The respondent's grounds of appeal may be summarized as follows:-

(a) That the arbitrator erred in concluding that, since the appellant was supervised by the Finance Committee and the Chief Executive Officer, he was not responsible for the events that subsequently unfolded following the award of the tender.

(b) That the arbitrator erred in finding that, in terms of the quotation, Council wanted clone computers and not new IBM computers.

(c) That the arbitrator erred in concluding that the computers purchased had been approved by the Finance Committee in circumstances where such Committee had acted on the appellant's advice.

(d) That the arbitrator erred in concluding that, since the appellant had not previously been given a warning, the charge of negligence was not sustainable and the appellant was therefore not guilty.

(e) That the arbitrator erred in concluding that the clone computers were still functional in the absence of evidence. The computers were utilised for less than six months and it became necessary for Council to buy new IBM computers.

(f) That the arbitrator erred in concluding that if the clone computers had been defective, they should have been returned to the supplier, when it was the respondent's case that the supplier was a briefcase company that had given a non-existent address.

FINDINGS BY THE LABOUR COURT

In a judgment delivered on 16 April 2013, the Labour Court set aside the arbitrator's award and in its place substituted a finding of guilty of gross negligence and withholding information. The Labour Court found the appellant not guilty of fraud. It however imposed a penalty of dismissal.

In arriving at the above conclusions, the Labour Court made a number of conclusions:

(i) First, that although the grounds of appeal by the respondent largely raised issues of fact, the “bottom line” was that the respondent was alleging that the arbitrator had misdirected himself on the facts and had, consequently, come to the wrong conclusion.

(ii) That the appellant passed the documents for payment without the authority of the Chief Executive Officer and paid for them immediately without such authority.

(iii) That the computers failed to meet Council standards. As the suppliers could not be traced, Council was forced to purchase more computers.

(iv) That the arbitrator had misdirected himself in concluding that, because the appellant had never previously been warned, he was therefore not guilty of negligence.

(v) That the appellant had admitted that he had released payment without signing the payment voucher.

(vi) That the arbitrator made a finding on the functioning of the computers without evidence on that aspect.

(vii) That on the evidence, negligence had been proved. So was the charge of withholding information. The charge of fraud was not supported by the evidence.

(viii) That the negligence was gross and accordingly that finding was substituted.

(ix) That a penalty of dismissal was, in the circumstances, justified.

APPELLANT'S GROUNDS OF APPEAL IN THIS COURT

Dissatisfied, the appellant noted an appeal to this Court against the decision of the Labour Court. He has attacked the decision on various grounds:

(i) That the appeal before the court a quo was based on issues of fact and not law and therefore incompetent. Relying on the judgment of this Court in Reserve Bank of Zimbabwe v Granger & Anor SC34-01, he submitted that no allegation had been made that there was a misdirection on the facts which was so unreasonable that no sensible person applying his mind to the facts would have arrived at such a conclusion.

(ii) That there was no basis upon which the Labour Court could interfere with the finding by the arbitrator that the appellant was not guilty of withholding information as no competent ground had been raised in respect of it. In any event, the conclusion was drawn in the absence of a finding that there was an error in the exercise of discretion by the arbitrator.

(iii) That the finding by the court a quo on the issue of negligence, premised as it was on a ground which was meaningless, was incompetent.

(iv) That the penalty of dismissal was ill-founded as the requirements of gross negligence were not met.

RESPONDENT'S SUBMISSIONS ON APPEAL

The respondent does not agree that the court a quo misdirected itself. It has submitted as follows:-

(i) On the charge of negligence, the finding by the court a quo that the arbitrator had misdirected himself could not be faulted as there was no need for previous warnings to be taken into consideration in determining whether or not the appellant was guilty of misconduct.

(ii) On the charge of withholding information, the court a quo was correct in finding that the insertion of a password in the networked computers, the refusal to disclose such password, the collection of tender documents, and refusal to surrender them, constituted withholding information.

APPEAL TO THIS COURT MUST BE ON A POINT OF LAW

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.

It is also correct that in RBZ v Granger & Anor SC34-01, 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 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 my view, the remarks made in RBZ v Granger & Anor SC34-01 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.

WHETHER APPEAL BEFORE THE COURT A QUO WAS PROPER

The issue that arises is whether the court a quo was correct in concluding that, although inelegantly cast, the grounds of appeal raised an issue of law.

I am inclined to agree with the court a quo that indeed the complaint raised in the appeal was that the arbitrator had misdirected himself on the facts and had consequently arrived at a wrong conclusion. Amongst other things, the reference by the arbitrator to the absence of past warnings resulted in him finding the respondent not guilty of negligence on that basis alone – a finding based on a clear misunderstanding of the facts. The finding that the computers were functioning normally and that Council operations were enhanced was made on no evidence at all.

Clearly, therefore, whilst greater care should have been taken in drafting the grounds of appeal, some of the grounds certainly raised issues of law based on the allegation that the decision was either irrational or not supported by the evidence. I am therefore satisfied that the matter was properly before the court a quo.

However, I also agree that not all of the grounds raised issues of law.

SC29-22 : TECHNOIMPEX JSC vs RAJENDRAKUMAR JOG and TECHNOIMPEX JC (PVT) LTD and SARAH HWINGWIRI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

This is an appeal against the whole judgment of the High Court dated 13 August 2020, striking off the roll the appellant's application for rescission in HC6771/19 of a default judgment granted in favour of the respondents in HC12074/16 and granting a consent order which dismissed an interdict granted against the respondents in HC6784/19.

At the hearing of the appeal, counsel for the first respondent (Rajendrakumar Jog) and counsel for the second and third respondents (Technoimpex JC (Pvt) Ltd and Sarah Hwingwiri) raised points in limine on the validity of the appellant's Notice of Appeal.

They submitted, that, there is no valid appeal before the court because the appeal was noted without leave of the court against an interlocutory order and was also noted against a consent order.

This judgment is restricted to the determination of these preliminary points.

FACTUAL BACKGROUND

The facts of the case can be summarised as follows:

The appellant (Technoimpex JSC) is a company duly incorporated in terms of the laws of Bulgaria. It is the registered owner of an immovable property in Harare, Zimbabwe known as Lot 12 of Lot 15 Block C of Avondale, commonly referred to as Bath Mansions Flats at number 32 Bath Road, Avondale, Harare held under Deed of Transfer number 1657/89.

In case number HC6784/19 it applied for an interdict against the first to the third respondents (Rajendrakumar Jog, Technoimpex JC (Pvt) Ltd and Sarah Hwingwiri) who it alleged wanted to steal its property.

The High Court granted the application. In arriving at the decision to grant the provisional order, it said:

“From the history of the matter that I outlined above, the applicant has always been the lawful owner of Bath Mansions Flats. The judgment I referred to (sic) showed he was successful in warding off the efforts of the first and second respondents to steal the property. For that reason, the applicant has a real right in the property. Once the property has been transferred to a third party, the applicant is likely to suffer irreparable harm. In this case, the second respondent has applied for a rates clearance certificate to enable her to transfer title of the property to third respondent. Such harm is apprehended. In my view, the balance of convenience favours the granting of the relief sought until a lasting solution to the saga is found. There is therefore no other effective alternative remedy other than granting the relief sought. The application will succeed and I grant the following order.

IT IS ORDERED THAT:

TERMS OF FINAL ORDER SOUGHT

INTERIM RELIEF:

“1. The 1st Respondent be and is hereby interdicted from transferring Lot 12 of Lot 15 Block C of Avondale commonly known as Bath Mansions Flats, 32 Bath Road Avondale, Harare previously held in favour of Technoimpex JSC under Deed of Transfer No.1657/89 and currently held in favour of 1st Respondent under Deed of Transfer No.1080/2019 and certificate of registered title no.1081/2019 to 3rd Respondent or any other persons.

2. 1st, 3rd, 4th, and 5th Respondents be and are hereby interdicted from transacting on and/or facilitating any process for the transfer of Lot 12 of Lot 15 Block C of Avondale commonly known as Bath Mansions Flats, 32 Bath Road, Avondale, Harare previously held in favour of Technoimpex JSC under Deed of Transfer no. 1657/89 and currently held held in favour of 1st Respondent under Deed of Transfer no. 1080/2019 and certificate of registered title no. 1081/2019 unless with specific leave of the court hearing this matter.

3….,.

4. The Registrar of Deeds and all the Respondents cited herein be and are hereby interdicted from facilitating or passing further transfer of Lot 12 of Lot 15 Block C of Avondale, Harare previously held under Deed of Transfer Number 1657/89 and currently held in favour of 1st Respondent under Deed of Transfer no. 1080/2019 and certificate of registered title no. 1081/2019, commonly known as Bath Mansions Flats, 32 Bath Road, Avondale, Harare.

5. The 1st, 2nd, and 3rd Respondents be and are hereby interdicted from advertising, selling, pledging, ceding, mortgaging, donating or in any way encumbering or alienating Lot 12 of Lot 15 Block C Avondale, Harare.

6. Pending the determination of this matter and High Court Case no. 2012/2018, whichever is the later, the Sheriff of the High Court be and is hereby directed to serve notices, court process, pleadings, orders issued by any person or litigant (sic) be served on Applicant's legal practitioners mentioned in para 3 above.

7. Pending the determination in High Court Case no. HC12074/16 or the application for rescission of default judgment granted in High Court matters HC2972/17 and HC11246/17 whichever will be the later, the Sheriff of Zimbabwe be and is hereby ordered not to carry out any eviction at 32 Bath Road Avondale, Harare in terms of any litigation commenced after 13 September 2016 by any person without the leave of the Court hearing the present matter.”

It is apparent from the provisional order that it had various interdicts protecting the appellant from possible harmful conduct by the first, second, and third respondents.

In subsequent proceedings before MUSITHU J for the confirmation of the provisional order in HC6784/19, the parties agreed that the provisional order's fate shall depend on the court's decision on the merits in the application for rescission in HC6771/2019. The court a quo commented on that agreement as follows:

“Mr Magwaliba advised that case Number HC6784/19 was set down before Musithu J for the confirmation or discharge of the Provisional Order and that the parties agreed that the Provisional Order be extended until a determination is made in this matter. In the event that this Court finds for the applicant, the parties agreed that the Provisional Order be confirmed, and that if the court finds against the applicant, the Provisional Order will be discharged.

Ms Sanhanga, for the first respondent, and Mr Uriri, for the second and third respondents, confirmed the above terms of the agreement. I have had sight of the order issued by Musithu J in HC6784/19. It indeed extends the Provisional Order in HC6784/19 until the determination of the present matter.”

In HC6771/19 the court a quo, in determining the application before it, said:

“I have reached the conclusion, that, the applicant has not shown the deponent's authority by furnishing a resolution. The effect of this is that there is no founding affidavit before the court. A court application must be supported by a founding affidavit. Without a founding affidavit there is no application.

All things being equal, that finding is such that I did not have to dispose of the question of locus standi which I determined only because its factual basis was related to the question of lack of authority. The primary basis of my judgment is that the application is not authorised. It is thus a nullity. There is therefore, nothing before me to dismiss. The only appropriate order is an order striking the matter off the roll.”…,.

It, in the result, ordered as follows:

“1. That, the application is struck off the roll with costs.

2. The Provisional Order granted in case number HC6784/19, on 9 October 2019, is, by consent of the parties, discharged with costs.”

Aggrieved by this decision, the appellant noted the present appeal.

Before the appeal could be heard on the merits, counsels for the respondents raised preliminary issues on the validity of the appellant's Notice of Appeal. They submitted, that, the notice of appeal is invalid because it appeals against a consent order and an interlocutory order.

SUBMISSIONS MADE BY THE PARTIES ON THE PRELIMINARY ISSUES

Counsel for the first respondent argued, firstly, that the notice of appeal was defective as the appellant sought to appeal against an order made by consent in HC6874/19.

Secondly, she submitted that the appeal was also defective in that it related to an interlocutory order of which leave to appeal was neither granted nor sought.

Lastly, she submitted that the matter should be struck off the roll as there is no valid appeal before the court.

Counsel for the second and third respondents agreed with the first respondent's counsel.

He submitted, that, the appellant's representative's reliance on a power of attorney instead of a resolution by the Board of the appellant's Directors rendered the appellant's application in HC6711/19 fatally defective.

He submitted that the court a quo therefore correctly struck the application off the roll.

He further argued, with reference to the discharge of the provisional order as a result of the striking off the roll of HC6771/19, that, a decision is not only a decision on the merits but can also be a decision on the basis of technical objections.

Counsel for the second and third respondents submitted, that, the court a quo made a determination on fatal procedural defects, which is a decision of the court against the appellant, which triggered the coming into operation of the parties agreement by consent before MUSITHU J.

Counsel for the second and third respondents also agreed with the first respondent's counsel, that, there was a consent order which could not be appealed against, and, once that is accepted, the notice of appeal becomes invalid.

He therefore submitted that his clients are entitled to costs as they have been forced to defend themselves against an invalid appeal.

In response, counsel for the appellant argued, that, the order of the court a quo was not by consent as the appellant agreed to a course of action and not to the result of the court a quo.

He also submitted, that, consent to a course of action does not amount to a concession to the correctness of the judgment.

He thus submitted, that, since the judgment of the court a quo was not a consent order, it could be appealed against.

In respect of the interlocutory order, he argued that it had a final effect and could thus be appealed against without leave of the court.

THE ISSUES

Two issues arise for the determination of the preliminary points raised. The issues for determination are:

1. Whether or not the appellant consented to the order granted in paragraph 2 of the court a quo's order and could therefore not appeal against it.

2. Whether or not the appellant can appeal against the order issued in HC6771/19 without the leave of court.

THE LAW

The law applicable to the facts of this case is as follows:...,.

It is also trite, that, a party to proceedings in which the court grants an interlocutory order cannot appeal against such an order without the leave of the court.

Section 43(1) of the High Court Act provides as follows:

“43 Right of appeal from High Court in civil cases

(1) Subject to this section, an appeal in any civil case shall lie to the Supreme Court from any judgment of the High Court, whether in the exercise of its original or its appellate jurisdiction.

(2) No appeal shall lie -

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

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

(ii) Where an interdict is granted or refused;

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

There are exceptions to the requirement for leave to appeal against an interlocutory order. The three exceptions are:

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

(ii) Where an interdict is granted or refused;

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

A party can therefore only appeal against an interlocutory order, without leave of the court, if the decision appealed against falls under one of the three exceptions....,.

2. WHETHER OR NOT THE APPELLANT CAN APPEAL AGAINST AN INTERLOCUTORY ORDER ISSUED IN HC6771/19 WITHOUT THE LEAVE OF COURT

In arriving at the decision to strike the matter off the roll, the court a quo said:

“I have reached the conclusion that the applicant has not shown the deponent's authority by furnishing a resolution. The effect of this is that there is no founding affidavit before the court. A court application must be supported by a founding affidavit. Without a founding affidavit there is no application.

All things being equal, that finding is such that I did not have to dispose of the question of locus standi which I determined only because its factual basis was related to the question of lack of authority. The primary basis of my judgment is that the application is not authorised. It is thus a nullity. There is therefore nothing before me to dismiss. The only appropriate order is an order striking the matter off the roll.”…,.

The application before the court a quo was a nullity because the deponent to the founding affidavit had no authority to represent the company.

The appellant's failure, to present before the court a quo a resolution by the appellant's Board of Directors, authorising him to represent the appellant, was fatal to the application.

There was nothing before the court a quo to dismiss, and, the only appropriate order was to strike the matter off the roll.

In the light of the above considerations, and the law as provided by section 43(2)(d) of the High Court Act, I am of the view that the appellant had no right to appeal against the court a quo's interlocutory order without the leave of the court.

Section 43(2)(d) of the High Court Act provides as follows:

“(2) No appeal shall lie -

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

(ii) Where an interdict is granted or refused;

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

The exceptions under (i) to (iii) do not apply to the striking off of the application in HC6771/19 from the roll.

The appeal against paragraph 1 of the court a quo's order is therefore a nullity.

If there was no matter before the court a quo, there is therefore also nothing before this Court.

In Jensen v Acavalos 1993 (1) ZLR 216 (S), KORSAH JA…, said that the reason why a fatally defective notice of appeal could not be amended was that:

“…, it is not only bad, but incurably bad.”

In casu, there was no proper resolution, thus, there was no proper application for rescission before the court a quo.

The appeal before us, in respect of the interlocutory order, is fatally defective and cannot even be amended.

In ZOU v Ndekwere SC52-19…, GARWE JA…, commenting on defective processes said:

“Once the court had determined that all the grounds of appeal before it were attacking factual findings and not issues of law, it should have found that there was, therefore, no proper appeal before it.

And, if there was no proper appeal before it, there was, in fact, nothing before it. And, if there was nothing before the court, there was therefore nothing to dismiss. The only appropriate course of action, in these circumstances, would have been to strike the matter off the roll.”…,.

It is clear, that, the notice of appeal against the striking of the application in HC6771/19 off the roll, in this case, does not comply with section 43(1) and (2)(c)(i) of the High Court Act. It is fatally defective.

The matter must therefore be struck off the roll.

Appealed
SC31-22 : NMB BANK LIMITED vs FORMSCAFF (PVT) LTD and PENNIWILL (PVT) LTD and RODNEY CALLAGHAN and MILLICENT CALLAGHAN and CHARLES CANNINGS and CLIFFORD JOHNSON and LESLEY BENNET
Ruled By: GARWE JA, PATEL JA and GUVAVA JA

This is an appeal against the whole judgment of the High Court (court a quo) dated 18 October 2018. The court a quo granted an application for absolution from the instance made jointly by the respondents, granted claims in reconvention, and ordered the appellant to pay costs of the counterclaims on a legal practitioner and client scale.

The court a quo erred in this regard and the appellant was correctly aggrieved by the judgment of the court a quo.

There is no evidence in the record that the first, third, fourth, fifth, sixth, and seventh respondents (Formscaff (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) had filed counterclaims and the court a quo erred in granting counter claims that were not before the court.

Although the second respondent was properly before the court a quo, the requirements for the grant of absolution from the instance were not met.

Accordingly, the judgment must be vacated. I set out hereunder the reasons for this finding.

BACKGROUND FACTS

The appellant is a registered commercial bank operating in Zimbabwe. The first respondent is a private company registered in accordance with the laws of Zimbabwe. The third to seventh respondents (Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) are private individuals who bound themselves as sureties and co-principal debtors in respect of a loan granted to the first respondent. The second respondent is a private limited company duly incorporated in Zimbabwe.

The appellant issued summons against the respondents on 13 March 2017 for the payment of US$368,706=62 being capital and US$20,654=10 being interest on the sum of US$368,706=62 at the rate of 18% per annum, which rate was subject to change from time to time, with effect from 26 November 2016 to date of payment in full and costs of suit on a legal practitioner and client scale.

At the commencement of trial, by consent of the parties, the claim was amended to read as follows:

“(i) By deletion of the capital amount of US$368,706=62 and the substitution thereof with the amount of US$361,034=23.

(ii) By deletion of the interest amount of US$20,654=10 and the substitution thereof with the amount US$28,246=49.”

The total amount claimed by the appellant amounted to US$389,362=72.

In its particulars of claim, the appellant averred that in or around November 2015, the appellant and the first respondent entered into an agreement in terms of which the appellant extended to the first respondent a loan for the sum of US$373,000.

The loan was accessed through the first respondent's operating account and was for the purpose of assisting the first respondent in financing its working capital requirements.

Interest was to accrue on the facility at the rate of 12% per annum subject to change from time to time and 18% per annum in the event of default by the first respondent in making due and punctual payment of any instalment.

The loan advanced was repayable to the appellant as follows:

“(a) US$2,000 on the 30th November 2015;

(b) US$1,500 on the 30th December 2015;

(c) US$2,000 on the 30th January 2016; and thereafter

US$15,200 per month with effect from the 28th of February 2016 until full payment.”

It was a term of the agreement, that, in the event of the first respondent defaulting in making due and punctual payment of any instalment, the total outstanding amount would immediately become due and payable.

The second, third, fourth, fifth, sixth and seventh respondents (Penniwill (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) bound themselves jointly and severally as sureties and co-principal debtors with the first respondent for payment of any and all monies due to the appellant.

The respondents defaulted in making due payment of the loan under the agreement giving rise to the total outstanding amount claimed by the appellant of US$389,362=72.

All the respondents jointly entered an appearance to defend, and, in their plea, denied that the amount claimed by the appellant arose from the agreement dated 2 November 2015.

The first respondent denied owing the appellant any money as it argued that the loan advanced through the loan agreement was repaid in full on the 30th of December 2015. The first respondent further denied owing the appellant any interest under the loan facility and maintained that the appellant actually recovered more interest from it than was lawfully due.

The second to the seventh respondents (Penniwill (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) averred that all the suretyship deeds held by the appellant were void for vagueness as they covered an unlimited liability. They contended, that, a suretyship deed must contain a limit in monetary terms so as to be valid.

The second respondent (Penniwill (Pvt) Ltd) averred that the deed of suretyship between it and the appellant was void as it was not authorised by its Board of Directors.

The first respondent (Formscaff (Pvt) Ltd) further stated, that, the acknowledgment of debt executed by it in favour of the appellant was unenforceable as it was not signed by its representatives.

The second respondent (Penniwill (Pvt) Ltd) also averred, that, it never authorised the registration of a mortgage bond in favour of the appellant over its property known as Subdivision A of Subdivision H of N'Thaba of Glen Lorne situate in the District of Salisbury held under Deed of Transfer number 1998/95 ('the property').

Together with its plea, the second respondent (Penniwill (Pvt) Ltd) filed a claim in reconvention against the appellant and averred, that, the appellant fraudulently procured a suretyship and mortgage bond in its favour over the second respondent's property. The second respondent prayed that the suretyship deed and mortgage bond be cancelled.

The appellant entered a plea against the claim in reconvention and denied all the averments made by the respondents.

On 30 May 2017, the third to seventh respondents (Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) indicated their intention to apply to amend their pleas and file a claim in reconvention at the pre-trial conference.

The amendments sought alleged that all the respondents purported suretyships had expired by effluxion of time, having been signed more than three years before the loan was granted. It was also averred, that, the suretyships were in contravention of section 12 of the Moneylending and Rates of Interest Act [Chapter 14:14] ('the Moneylending Act') and, as such, were invalid and unenforceable.

In the proposed claim in reconvention, the third to seventh respondents sought an order that their respective suretyships be declared null and void.

The second, third and fourth respondents (Penniwill (Pvt) Ltd, Rodney Callaghan and Millicent Callaghan) prayed that the mortgage bonds in their names be cancelled.

There is, however, no evidence in the record that the amendment was ever granted at the pre-trial conference or at the trial.

On 27 July 2017, the parties signed a Joint Pre-Trial Conference Minute and the issues for determination by the court a quo were stated as follows:

“1. Whether 2nd, 3rd, 4th, 5th, 6th, and 7th Defendants Deeds of Suretyship are valid and enforceable.

2. Whether 2nd Defendant's 1st and 2nd Mortgage Bonds (numbers 1557/13 and 1656/13) in favour of Plaintiff are valid and enforceable or whether they should be cancelled.

3.Whether 1st Defendant is indebted to Plaintiff under the Loan Agreement dated 2 November 2015 in the sums of US$368,706=62 as capital and US$20,654=10 as interest, and, was there novation or termination of the loan agreement.

4. Whether 1st, 2nd, 3rd, 4th, 5th, 6th and 7th Defendants, jointly and severally, one paying the others to be absolved, are indebted to Plaintiff as alleged or at all.”

At the trial, the appellant led evidence through two witnesses, namely, Mr. C. Gunundu (Gunundu) the appellant's Account Relationship Manager and Mr. V.S. Nyangulu (Nyangulu) a registered legal practitioner and conveyancer.

Mr. C. Gunundu testified, that, the appellant and the first respondent had a long business history spanning many years. They agreed that the Bank would advance a loan to the first respondent which loan would, in turn, re-finance the existing loan already held by the first respondent.

He further testified, that, the first respondent and its sureties had failed on numerous occasions to fulfil the loan obligations which it owed to the appellant. The new arrangement was meant to assist the respondents.

Gunundu maintained, that, the surety deeds and mortgage bonds made by the second to seventh respondents (Penniwill (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) in the appellant's favour were all valid and properly constituted. He further maintained, that, the sureties were open and unlimited, and, as such, covered all the money obtained through loans by the first respondent from the appellant.

The second witness, Mr. V.S. Nyangulu, testified that the mortgage bonds he registered on behalf of the second respondent (Penniwill (Pvt) Ltd) in favour of the appellant were valid and were registered after due process and Board resolutions had been passed.

At the close of the appellant's case, the first to seventh respondents (Formscaff (Pvt) Ltd, Penniwill (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) made an application for absolution from the instance.

In making the application, the first and third to seventh respondents (Formscaff (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) averred that the appellant sued the respondents on a cause of action which had already been discharged on 31 December 2015.

They also alleged that their sureties were not valid.

In making its application, the second respondent (Penniwill (Pvt) Ltd) averred that the appellant failed to prove a valid cause of action that the mortgage bonds against its property, registered in favour of the appellant, were valid.

In response to the applications for absolution from the instance, the appellant argued that the applications were frivolous.

It vehemently denied receiving any payment from the first respondent in repayment of the loan. It also maintained that all the documents in respect of the security for the loan were valid and that the obligation of the sureties had not been extinguished by prescription or on any other basis.

The court a quo, in dealing with the matter, found that the appellant's first witness Mr. C. Gunundu (Gunundu) was not a credible witness and that he contradicted himself on material issues.

The court further found, that, the appellant failed to prove a prima facie case against the respondents.

The court went on to find, that, the first respondent repaid the loan of US$350,000 on 31 December 2015 as evidenced by the appellant's own books of account and statements.

The court a quo also found, that, the suretyships made in favour of the appellant by the second to seventh respondents were invalid and unenforceable as they were not in compliance with section 12 of the Moneylending and Rates of Interest Act. Further, that, the sureties did not relate to the 2 November 2015 loan facility, and, as such, could not be relied upon by the appellant in making a cause of action for the repayment of a loan under that facility.

The court a quo further held, that, the mortgage bonds executed in the second respondent's name were invalid as they were not made in compliance with the law and that the sureties and mortgage bonds could not be held to have an unlimited clause to their operation as such a clause was contrary to public policy.

The court concluded, that, as the appellant had failed to prove a prima facie case against the respondents, the respondents claims in reconvention had merit and that there was no need to put the respondents to their defence.

In the result, the court made the following order:

“1. The application for absolution from the instance, made by the defendants, succeeds with costs.

2. The surety ships (sic) in favour of the plaintiff entered into by 2nd, 3rd, 4th, 5th, 6th and 7th defendant and plaintiff be and are hereby cancelled.

3. The mortgage bonds passed by 2nd, 3rd and 4th defendants in favour of plaintiff, namely, Numbers 2416/2011, 4889/2011, 1557/2013 and 1656/2013 be and are hereby cancelled.

4. The plaintiff to pay costs of counterclaim to the defendants on attorney-client scale.”

Dissatisfied with the decision of the court a quo, the appellant noted the present appeal on the following grounds of appeal:

“1. The court a quo erred in holding that any amounts which were due to Appellant under the agreement dated 2 November 2015 were repaid in full and that Plaintiff sued on a cause of action that was discharged in full on the 30th of December 2015, in so doing, the court a quo failed to appreciate that the agreement (dated 2 November 2015) was entered into to enable the 1st respondent to settle previously existing debts.

1.1 The court a quo erred in strictly evaluating and rejecting the appellant's evidence and effectively demanding of it more than a prima facie (sic) as if it had (sic) evidence from defendants.

1.2 The court a quo erred in granting respondents 1, 3 to 7 counter-claims which were not before it.

1.3 The court a quo erred in granting the counterclaims by respondents 1, 3 to 7 when those respondents had not moved it to grant same as at that stage.

1.4 The court a quo erred in itself cancelling the parties agreements when it was not a party thereto and in violation of the sanctity thereof.

2. The court a quo erred in holding that:

(a) The Suretyship agreements executed by 2nd, 3rd, 4th, 5th, 6th and 7th Respondents did not relate to the agreement dated 2 November 2015, and that neither did they cover any amounts due thereunder.

(b) The Suretyship agreements had prescribed. In so holding, the court a quo grossly failed to appreciate that, at law, a Surety's obligations only arise upon demand.

(c) The 2nd, 3rd, 4th, 5th, 6th and 7th Respondents were released from their Suretyship due to material variation of the principal obligation, when this was not pleaded and no evidence proving actual prejudice was placed.

(d) That 2nd, 3rd, 4th, 5th, 6th and 7th Respondents suretyship agreements were void for being contrary to public policy.

3. In agreeing with 2nd, 3rd, 4th, 5th, 6th and 7th Respondents entire submissions on the application for absolution from the instance, the court a quo grossly erred in holding 2nd to 7th Respondents averment that the suretyship agreements are invalid for violation of Section 12 of the Money Lending (sic) and Rates of Interest Act [Chapter 14:14].

4. The court a quo erred in holding that the Mortgage Bond passed by 2nd Respondent, and 3rd and 4th Respondents are invalid and grossly failed to appreciate, that, at law, the Mortgage Bonds are valid as an instrument of both debt and hypothecation.

5. Consequent to the gross misdirection referred to in Paragraph 1, 2, 3 and 4 above, the court a quo erred in granting 1st to 7th Respondents application for absolution from the instance and entering Judgment in favour of Respondents as per their claim in reconvention for cancellation of the suretyship agreements and Mortgage Bonds.

6. The court a quo erred in awarding costs against Appellant in respect of the Respondents claim in reconvention on a higher scale, when there was no legal basis for so doing.”

PROCEEDINGS BEFORE THIS COURT

Counsel for the second respondent (Penniwill (Pvt) Ltd) raised a preliminary point to the effect, that, the Notice of Appeal was fatally defective and incapable of amendment.

On the other hand, counsel for the appellant made an application to amend the appellant's grounds of appeal and relief sought. In making the application, counsel argued that he was raising legal issues which would not prejudice the respondents.

Counsel for the first, third to seventh respondents (Formscaff (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) agreed with counsel for the second respondent (Penniwill (Pvt) Ltd) who opposed the application for the amendment and argued that the notice of appeal was not in compliance with Rule 37(1)(d) as read with Rule 44 of the Supreme Court Rules 2018 ('the Supreme Court Rules') in that the grounds of appeal were not clear and concise.

Counsel argued, that, the second ground of appeal was invalid as it was vague.

He also submitted that the grounds of appeal attacked all the findings of the court a quo which rendered the notice of appeal fatally defective.

As indicated above, counsel for the second respondent raised a preliminary point to the effect, that, the appellant's grounds of appeal were not clear and concise and sought a striking off of the appeal.

He further submitted, that, the relief sought by the appellant was defective as it did not pray for a remittal of the matter for continuation of the trial on the merits of the matter in the event that the appeal succeeds.

Counsel submitted that this rendered the appeal fatally defective.

The amendment sought by the appellant was made by way of notice and in terms of the Rule 41 of the Supreme Court Rules. Rule 41 provides as follows:

“Power to allow amendment

41. The court may, upon application by notice, or upon oral application by counsel during the course of any hearing, allow, upon such terms as it may think fit to impose amendment of the grounds of appeal or of any pleadings or other document and may similarly permit a party to appear or be represented notwithstanding any declaration in terms of Rule 50 to the effect that the party does not intend to appear or be represented.”

With regard to the issue of whether or not the appellant's grounds of appeal were fatally defective on the basis that they were not clear and concise as required by the rules of this Court, we found that the grounds of appeal could have been more elegantly crafted, however, they were not fatally defective.

This Court has pronounced itself on the test to be applied in determining whether or not grounds of appeal are valid.

In Zvokusekwa v Bikita Rural District Council SC44-15 the Court noted that:

“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.”

Also, in Dr Kunonga v Church of the Province of Central Africa SC25-17…, the Court stated that:

“…, where the court is faced by some of the grounds of appeal that are not clear and concise and by others that are, the courts should proceed to determine the appeal on the basis of the valid grounds.”

The Court must be guided by the substance and not the form of the grounds of appeal. At the end of the day the determining factors of whether or not grounds of appeal are valid and compliant with the rules of the court can be set out as follows:

(a) The grounds of appeal must relate to the judgment appealed against;

(b) Must clearly and concisely show how the decision of the court a quo is erroneous; and

(c) Must show the basis upon which the decision should be vacated.

In this regard, a proper reading of the appellant's grounds of appeal clearly reveal the basis upon which the judgment of the court a quo is being challenged.

The only ground of appeal which is unclear and meaningless and cannot be allowed to stand is ground 1.4.

Indeed, it was accepted that the grounds could have been crafted in a more elegant manner. However, at the end of the day, it was our view that they met the threshold as set out in the rules and in the case authorities, except for ground 1.4 which we struck out.

The additional grounds of appeal in the notice of amendment were predicated on the same facts which were before the court a quo.

The appellant, in its heads of arguments, had already made submissions on the basis of the amended grounds. The respondents had responded to the heads of argument.

In the circumstances of this case, however, it did not appear that the respondent would suffer any prejudice if the application was granted.

As the amendment was not prejudicial to the respondents, and, any prejudice could adequately be compensated with an appropriate order of costs, we saw no reason to refuse the application.

On the basis of the above reasons, we accordingly made the following order:

“The preliminary point raised by counsel for the respondents is dismissed. The application to amend the grounds of appeal and prayer is granted, save for ground 1.4 in the notice of amendment. The appellant is ordered to pay the respondents wasted costs.”

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

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

THE FACTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

He did not.

PROCEEDINGS IN THE COURT A QUO

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

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

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

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

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

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

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

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

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

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

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

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

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

“6. Ad para 8-9

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

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

“8. Ad para 11-14

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

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

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

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

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

It granted the application for dismissal for want of prosecution.

PROCEEDINGS BEFORE THIS COURT

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

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

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

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

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

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

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

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

SC39-23 : LINDA KOPECKY and MARK KOPECKY and TSHOLOFELO TRUST and DIANE THORNTON and SLIPPER SHELL INVESTMENTS (PVT) LTD vs CITY OF HARARE and SPIRIT LIFE CHURCH
Ruled By: BHUNU JA, MAKONI JA and MWAYERA JA

This is an appeal against the whole judgment of the Administrative Court handed down by MANDEYA J on 13 May 2022.After hearing submissions from counsel for the parties, the court dismissed the appeal with costs indicating that reasons for the order would be given in due course.These are the reasons.THE ...

This is an appeal against the whole judgment of the Administrative Court handed down by MANDEYA J on 13 May 2022.

After hearing submissions from counsel for the parties, the court dismissed the appeal with costs indicating that reasons for the order would be given in due course.

These are the reasons.

THE FACTS

The second respondent is the owner of a certain property known as No.1 Petersham Road, Malborough, Harare (the “property”). The appellants are residents of the neighbourhood within which the property is located. The first respondent is a Municipality, Local Planning Authority and an administrative body tasked with the mandate of rendering services to the residents of Harare.

The second respondent, on 9 December 2021, made an application to the first respondent for change of use of its property from residential to use as a church.

The application was opposed by the appellants who feared that the use of the property, as a church, would cause noise pollution thereby disturbing the peace and tranquillity of the neighbourhood. They accordingly filed their objections with the first respondent.

After considering the objections from the appellants, the first respondent granted the application subject to certain conditions. These conditions included, inter alia, a prohibition of the use of certain musical instruments in a way that would disturb the peace of other neighbours. The permit stipulated that the second respondent would construct a sound proof auditorium which was to be inspected by the first respondent's Department of Works.

PROCEEDINGS IN THE COURT A QUO

Dissatisfied by the decision of the first respondent, the appellants lodged an appeal in the Administrative Court (“the court a quo”).

They were challenging the decision of the first respondent on the basis, that, the provisions of the Regional Town and Country Planning Act [Chapter 29:12] (“the Act”) were not complied with before the application was granted. They averred, that, the second respondent neglected to provide all the relevant information required in applications of that nature, in particular, they alleged that it neglected to provide information relating to the external area to be covered by the building, the number of floors of the building, the extent and location of parking facilities for motor vehicles.

Furthermore, they queried the citation of the name of the second respondent in the application. They submitted, that, the Regional, Town and Country Planning Act requires that the owner of the property makes the application or it be done with the consent of the owner.

Their argument was that the owner of the property in question is Spirit Life Church International yet the application before the first respondent was launched by Spirit Life Church. It was their case that Spirit Life Church is a non-existent entity.

The appellants further argued, that, all the interested parties were not notified of the application for the change of use of the property. It was their case that the large number of people who would attend church service would result in noise pollution despite the stipulated precaution.

They contended, that, the permit did not make provision for the costs associated with connection of a sewer system for the church. They also argued, that, the application was granted after the time frame within which to consider it had lapsed.

In response to the appeal, the respondents argued, that, due process of the law was followed before the application was granted.

They disputed the allegation that the notice was not given to all the interested parties and that the application was considered out of time.

With regards to the citation of the second respondent, it submitted that the omission of the word 'International' did not render the second respondent non-existent. They argued that there was no confusion as to the identity of the second respondent.

Further, it was argued that the application form contained all the relevant information to enable the first respondent to consider the application.

The court a quo dismissed the appeal.

It found, that, the argument that the application was considered outside the time frame provided for by the law was unmeritorious as the timeframe was extended by a letter written by the second respondent to the first respondent dated 30 November 2021.

It also dismissed the argument that the respondent did not provide all relevant information. The court held that the application form was to be filled to the extent appropriate.

It found that all the interested parties were notified.

The court a quo dismissed the argument that the first respondent would incur additional costs associated with constructing a sewer line for the church on the basis that the appellants had not motivated that argument.

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

GROUNDS OF APPEAL

1. The court a quo misdirected itself when it determined the matter on the mistaken basis that the party that had applied for the permit had granted an extension of the period during which the first respondent herein was obliged to determine that application.

2. The court a quo erred when it failed to determine that the second respondent's failure to provide the information that was required under sections 10, 11 and 12 of the application form invalidated the application on the basis that it violated the peremptory provisions of section 26(1) of the Regional Town and Country Planning Act.

3. The court a quo erred when it failed to determine that the application for the development permit was invalid for the reason that the purported applicant therein, Spirit Life Church, does not exist.

4. The court a quo erred when it failed to determine that the permit that was purportedly granted to the second respondent was invalid for failing to make a provision for the cost of connecting the proposed development to the sewer line.

5. The court a quo erred when it failed to nullify the permit on the basis that the same had been granted on the basis of falsehoods which were contained in the application.

RELIEF SOUGHT

The appellants pray that the appeal be allowed with costs and the decision of the court a quo be set aside and substituted with a decision setting aside the decision of the first respondent to grant the permit, and, that the first respondent dismisses the application for the permit. They also prayed for costs of suit.

ISSUES FOR DETERMINATION

(1) Whether or not the court a quo erred in failing to find that due process was not followed before the first respondent granted the permit to the second respondent.

(2) Whether or not the incorrect citation of the name of the second respondent, in the application before the first respondent, was fatal.

PROCEEDINGS BEFORE THIS COURT

APPLICATION OF THE LAW TO THE FACTS

(1) Whether or not the court a quo erred in failing to find that due process was not followed before the first respondent granted the permit to the second respondent

In motivating the appeal, counsel for the appellants argued, that, section 26(1) of the Regional, Town and Country Planning Act was not complied with in that the second respondent omitted to fill in Part 2 and 3 of the application form. His argument was that the permit was granted in the absence of all the relevant information required.

He further argued, that, the application was made by a non-existent entity.

His argument was that the Regional Town and Country Planning Act makes it clear that the application ought to be made by the registered owner of the property or with the consent of the owner.

He based his argument on the authority of John v Delta Beverages Ltd SC40-17 wherein it was held, that, the omission of the word “Pvt” was fatal as there was no party called Delta Beverages Ltd.

Further, he submitted that the permit was a nullity as it did not make provision for the costs associated with construction of a sewer system.

In response, counsel for the first respondent argued, that, section 26(1) of the Regional Town and Country Planning Act does not prescribe the information that ought to be contained in the application form. He submitted, that, the form was filled to the satisfaction of the first respondent, hence, the argument that section 26 of the Regional, Town and Country Planning Act was not complied with lacks merit.

It was his argument, that, the application form was complemented by the justification report which contained the full information required, hence, it cannot be said that insufficient information was supplied when the application for the permit was made.

Counsel for the first respondent further argued, that, the decision by the first respondent involves an exercise of discretion. He submitted that this Court should be slow to interfere with an exercise of discretion. His case was that the appellants do not allege that the discretion was exercised injudiciously warranting interference by this Court.

With regards the citation of the second respondent, he argued that the omission of the word 'International' was not fatal. His case was that unlike the omission of the words '(Pvt) Ltd' the omission of the word International does not have legal connotations. He argued that John v Delta Beverages Ltd SC40-17 was distinguishable from this case.

In addition, he submitted that there was already a sewer line in place which the church could connect to....,.

COSTS ASSOCIATED WITH SEWER LINE

Further, the appellants contend that the court a quo failed to take into account the fact that the permit was granted without making provision for the costs associated with connecting a sewer line for the church.

The court a quo found that the argument relating to the costs of the sewer line was not motivated hence it ought to be treated as abandoned.

The consequence of not motivating all the grounds of appeal was enumerated in the case of Equity Properties (Pvt) Ltd v Alsham Global BVI Limited SC101-21, in which this Court held that:

“It is trite that a failure to motivate a ground of appeal is treated as an abandonment of that ground. The second preliminary point raised is upheld and ground number 4 is accordingly struck out from the notice of appeal.”

In light of the above authority, it can be concluded that the court a quo was correct in treating the ground as having been abandoned. The ground of appeal number 4 is therefore not properly before the court.

The appellants grief before this Court should have been that they argued the issue before the court a quo and it erred by finding that they abandoned the ground.

Whilst still on this point, I must observe that ground of appeal number 5 was not motivated before this Court.

On the authority of Equity Properties (Pvt) Ltd v Alsham Global BVI Limited SC101-21, I take it that it was abandoned and should be dismissed.

SC57-22 : ERICA NDEWERE vs PRESIDENT OF ZIMBABWE N.O. and CHIEF JUSTICE N.O. and JUDGE PRESIDENT OF THE HIGH COURT N.O. and JUDICIAL SERVICE COMMISSION and MINISTER OF JUSTICE N.O.
Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

This is an appeal against the whole judgment of the High Court (the court a quo) in which it dismissed the appellant's urgent chamber application wherein she sought an interdict to prevent the first respondent (the President) from establishing a Tribunal in terms of section 187(3) of the Constitution of ...

FACTUAL BACKGROUND

The appellant is a former judge of the High Court of Zimbabwe having been removed from office by the President on the recommendations of a Tribunal he set up.

What led to the intended establishment of the Tribunal were complaints relating to the appellant's performance as a judge.

In particular, the complaints related to her work output, which was deemed unsatisfactory and below the expected standard. One of the complaints was that the appellant issued a review judgment in respect of criminal proceedings without having properly perused the record of proceedings. As a consequence, she ordered the release, from prison, of a person who had previous convictions which militated against his release.

The position of the fourth respondent, Judicial Service Commission (JSC), was that the appellant's conduct, inter alia, amounted to gross misconduct and/or gross incompetence warranting the referral of the matter to the President in terms of section 187(3) of the Constitution.

It is common cause, that, by letter dated 15 September 2020, the appellant was advised by the Judicial Service Commission (JSC) that she was under investigation for impeachable acts of misconduct.

In response, the appellant's erstwhile legal practitioners, in a letter dated 30 September 2020, wrote back to the Judicial Service Commission (JSC) indicating that the appellant was not obliged to respond to that matter. Their view was that the JSC had no legal authority to deal with the complaints raised against the appellant and that the second respondent (Chief Justice) had no authority to direct the JSC to attend to any complaints against a sitting judge of the High Court.

Further, the letter highlighted, that, in any event, it was premature for the Judicial Service Commission (JSC) to invoke section 187(3) of the Constitution before compliance with the provisions of the Judicial Service (Code of Ethics) Regulations SI107 of 2012 (Code of Ethics).

Consequently, the Judicial Service Commission (JSC) resolved that the question of the appellant's removal from office ought to be investigated by a Tribunal appointed to inquire into the matter in terms of section 187(3) of the Constitution.

It advised the appellant of this resolution by letter dated 12 October 2020.

A day after receipt of the letter, the appellant, through her erstwhile legal practitioners, filed an urgent chamber application under case number HC6128/20 which she subsequently withdrew.

On 26 October 2020, the appellant, through her current legal practitioners, filed yet another application through the chamber book, seeking the Provisional Order which is the subject matter of this appeal. The Provisional Order sought reads as follows:

“INTERIM RELIEF GRANTED

IT IS ORDERED THAT:

1. Pending the final determination of the legality of the fourth respondent's decision to advise the first respondent to establish a Tribunal in the absence of due process, the first respondent be is hereby interdicted from setting up a Tribunal to investigate the question of removing the applicant from office in terms of section 187(3) of the Constitution.

2. In the event that a Tribunal referred to here above is already set up by the first respondent to investigate the applicant's conduct, then, the Tribunal's proceedings be stayed until the determination of the legality of the fourth respondent's decision to advise the first respondent to establish a Tribunal.

TERMS OF THE FINAL ORDER SOUGHT

That the first, second, third, fourth, and fifth respondents show cause to this Honourable Court why a final order should not be granted in the following terms:

1. The fourth respondent's decision advise to the first respondent to set up a Tribunal to inquire into the question of whether the applicant should be removed as a judge be and is hereby declared unlawful and set aside (sic).

2. It is hereby declared that any disciplinary action against the applicant must be done in compliance with Statutory Instrument 107 of 2012 being the Judicial Services (Code of Ethics) Regulations, 2012 as read with the Constitution of Zimbabwe.”

PROCEEDINGS IN THE COURT A QUO

At the commencement of the proceedings, the fourth respondent (Judicial Service Commission) raised five points in limine which the second and third respondents (Chief Justice and Judge President of the High Court) associated themselves with.

The appellant also raised a point in limine....,.

The court a quo, in a well-reasoned judgment, dismissed all the preliminary points raised by the Judicial Service Commission (JSC) and the appellant.

None of the parties appealed against the court a quo's dismissal of the points in limine.

It will therefore, not be necessary, for the determination of this matter, to relate to the findings of the court a quo on the preliminary points.

SC59-22 : DELTA BEVERAGES (PRIVATE) LIMITED vs BLAKEY INVESTMENTS (PRIVATE) LIMITED
Ruled By: BHUNU JA, MAKONI JA and CHITAKUNYE AJA

COSTSIn the grounds of appeal, the appellant had alleged that the court a quo erred and misdirected itself in awarding costs on a punitive scale when such was not warranted.This ground of appeal was, however, not pursued in the heads of argument and in motivating the appeal before this court.Where ...

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Zimbabwe

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

SC28-14 : SITWELL GUMBO vs PORTICULLIS (PVT) LTD T/A FINANCIAL CLEARING BUREAU
Ruled By: GWAUNZA JA

CC05-22 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: PATEL JCC

CC09-22 : MINISTER OF MINES & MINING DEVELOPMENT and THE PROVINCIAL MINING DIRECTOR FOR MIDLANDS PROVINCE vs FIDELITY PRINTERS & REFINERS (PVT) LTD and JONAH NHEVERA
Ruled By: GOWORA JCC

View Appeal
CC03-19 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS ZIMBABWE and CAIRNS FOODS LTD
Ruled By: MALABA CJ, GARWE JCC and MAKARAU JCC

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

HHMT06-20 : BOTHWELL NYAMANDE vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

HMT08-19 : STELLA MASUNGA vs FORWARD KAPIYA
Ruled By: MWAYERA J and MUZENDA J

HMT58-19 : EVANS MULAUZI vs RUSAPE TOWN COUNCIL and SOLOMON GABAZA and TARISAI MANZONZO
Ruled By: MWAYERA J and MUZENDA J

HH709-15 : ODAR HOUSING DEVELOPMENT CONSORTIUM vs SENSENE INVESTMENTS (PVT) LTD and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and ATTORNEY–GENERAL
Ruled By: MAFUSIRE J

HH411-15 : TENDAI MASAMBA vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (PVT) LTD
Ruled By: CHIWESHE JP and CHITAKUNYE J

HH411-15 : TENDAI MASAMBA vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (PVT) LTD
Ruled By: CHIWESHE JP and CHITAKUNYE J

HMT23-20 : IDAH TAGARIROFA vs NHEDZIWA HIGH SCHOOL DEVELOPMENT COMMITTEE
Ruled By: MUZENDA J

HMT37-20 : ZIMBABWE REVENUE AUTHORITY and REGIONAL MANAGER (ZIMRA FORBES ENVIRONS REGIONS) and THE COMMISSIONER GENERAL (ZIMRA) vs EZEKIEL MASAMVU and ENOCK CHIBATI
Ruled By: MWAYERA J and MUZENDA J

SC11-22 : ZIMBABWE ANTI-CORRUPTION COMMISSION vs GIBSON MANGWIRO and CHRISTOPHER CHISANGO
Ruled By: KUDYA AJA

SC12-22 : SIMON CHINGANGA vs MUNASHE SHAVA and TAPSON MADZIVIRE and ADAM BEDE MANUFACTURING (PVT) LTD
Ruled By: KUDYA AJA

SC44-15 : JAINOS ZVOKUSEKWA vs BIKITA RURAL DISTRICT COUNCIL
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

SC29-22 : TECHNOIMPEX JSC vs RAJENDRAKUMAR JOG and TECHNOIMPEX JC (PVT) LTD and SARAH HWINGWIRI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

Appealed
SC31-22 : NMB BANK LIMITED vs FORMSCAFF (PVT) LTD and PENNIWILL (PVT) LTD and RODNEY CALLAGHAN and MILLICENT CALLAGHAN and CHARLES CANNINGS and CLIFFORD JOHNSON and LESLEY BENNET
Ruled By: GARWE JA, PATEL JA and GUVAVA JA

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

SC39-23 : LINDA KOPECKY and MARK KOPECKY and TSHOLOFELO TRUST and DIANE THORNTON and SLIPPER SHELL INVESTMENTS (PVT) LTD vs CITY OF HARARE and SPIRIT LIFE CHURCH
Ruled By: BHUNU JA, MAKONI JA and MWAYERA JA

SC57-22 : ERICA NDEWERE vs PRESIDENT OF ZIMBABWE N.O. and CHIEF JUSTICE N.O. and JUDGE PRESIDENT OF THE HIGH COURT N.O. and JUDICIAL SERVICE COMMISSION and MINISTER OF JUSTICE N.O.
Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

SC59-22 : DELTA BEVERAGES (PRIVATE) LIMITED vs BLAKEY INVESTMENTS (PRIVATE) LIMITED
Ruled By: BHUNU JA, MAKONI JA and CHITAKUNYE AJA

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Law Portal Zimbabwe

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

SC28-14 : SITWELL GUMBO vs PORTICULLIS (PVT) LTD T/A FINANCIAL CLEARING BUREAU Ruled By: GWAUNZA JA

CC05-22 : GOVATI MHORA vs EMMACULATA MHORA Ruled By: PATEL JCC

CC09-22 : MINISTER OF MINES & MINING DEVELOPMENT and THE PROVINCIAL MINING DIRECTOR FOR MIDLANDS PROVINCE vs FIDELITY PRINTERS & REFINERS (PVT) LTD and JONAH NHEVERA Ruled By: GOWORA JCC

View Appeal CC03-19 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS ZIMBABWE and CAIRNS FOODS LTD Ruled By: MALABA CJ, GARWE JCC and MAKARAU JCC

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

HHMT06-20 : BOTHWELL NYAMANDE vs THE STATE Ruled By: MWAYERA J and MUZENDA J

HMT08-19 : STELLA MASUNGA vs FORWARD KAPIYA Ruled By: MWAYERA J and MUZENDA J

HMT58-19 : EVANS MULAUZI vs RUSAPE TOWN COUNCIL and SOLOMON GABAZA and TARISAI MANZONZO Ruled By: MWAYERA J and MUZENDA J

HH709-15 : ODAR HOUSING DEVELOPMENT CONSORTIUM vs SENSENE INVESTMENTS (PVT) LTD and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and ATTORNEY–GENERAL Ruled By: MAFUSIRE J

HH411-15 : TENDAI MASAMBA vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (PVT) LTD Ruled By: CHIWESHE JP and CHITAKUNYE J

HH411-15 : TENDAI MASAMBA vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (PVT) LTD Ruled By: CHIWESHE JP and CHITAKUNYE J

HMT23-20 : IDAH TAGARIROFA vs NHEDZIWA HIGH SCHOOL DEVELOPMENT COMMITTEE Ruled By: MUZENDA J

HMT37-20 : ZIMBABWE REVENUE AUTHORITY and REGIONAL MANAGER (ZIMRA FORBES ENVIRONS REGIONS) and THE COMMISSIONER GENERAL (ZIMRA) vs EZEKIEL MASAMVU and ENOCK CHIBATI Ruled By: MWAYERA J and MUZENDA J

SC11-22 : ZIMBABWE ANTI-CORRUPTION COMMISSION vs GIBSON MANGWIRO and CHRISTOPHER CHISANGO Ruled By: KUDYA AJA

SC12-22 : SIMON CHINGANGA vs MUNASHE SHAVA and TAPSON MADZIVIRE and ADAM BEDE MANUFACTURING (PVT) LTD Ruled By: KUDYA AJA

SC44-15 : JAINOS ZVOKUSEKWA vs BIKITA RURAL DISTRICT COUNCIL Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

SC29-22 : TECHNOIMPEX JSC vs RAJENDRAKUMAR JOG and TECHNOIMPEX JC (PVT) LTD and SARAH HWINGWIRI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

Appealed SC31-22 : NMB BANK LIMITED vs FORMSCAFF (PVT) LTD and PENNIWILL (PVT) LTD and RODNEY CALLAGHAN and MILLICENT CALLAGHAN and CHARLES CANNINGS and CLIFFORD JOHNSON and LESLEY BENNET Ruled By: GARWE JA, PATEL JA and GUVAVA JA

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

SC39-23 : LINDA KOPECKY and MARK KOPECKY and TSHOLOFELO TRUST and DIANE THORNTON and SLIPPER SHELL INVESTMENTS (PVT) LTD vs CITY OF HARARE and SPIRIT LIFE CHURCH Ruled By: BHUNU JA, MAKONI JA and MWAYERA JA

SC57-22 : ERICA NDEWERE vs PRESIDENT OF ZIMBABWE N.O. and CHIEF JUSTICE N.O. and JUDGE PRESIDENT OF THE HIGH COURT N.O. and JUDICIAL SERVICE COMMISSION and MINISTER OF JUSTICE N.O. Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

SC59-22 : DELTA BEVERAGES (PRIVATE) LIMITED vs BLAKEY INVESTMENTS (PRIVATE) LIMITED Ruled By: BHUNU JA, MAKONI JA and CHITAKUNYE AJA

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Law Portal
Zimbabwe

SC28-14 : SITWELL GUMBO vs PORTICULLIS (PVT) LTD T/A FINANCIAL CLEARING BUREAU
Ruled By: GWAUNZA JA

CC05-22 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: PATEL JCC

CC09-22 : MINISTER OF MINES & MINING DEVELOPMENT and THE PROVINCIAL MINING DIRECTOR FOR MIDLANDS PROVINCE vs FIDELITY PRINTERS & REFINERS (PVT) LTD and JONAH NHEVERA
Ruled By: GOWORA JCC

View Appeal
CC03-19 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS ZIMBABWE and CAIRNS FOODS LTD
Ruled By: MALABA CJ, GARWE JCC and MAKARAU JCC

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

HHMT06-20 : BOTHWELL NYAMANDE vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

HMT08-19 : STELLA MASUNGA vs FORWARD KAPIYA
Ruled By: MWAYERA J and MUZENDA J

HMT58-19 : EVANS MULAUZI vs RUSAPE TOWN COUNCIL and SOLOMON GABAZA and TARISAI MANZONZO
Ruled By: MWAYERA J and MUZENDA J

HH709-15 : ODAR HOUSING DEVELOPMENT CONSORTIUM vs SENSENE INVESTMENTS (PVT) LTD and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and ATTORNEY–GENERAL
Ruled By: MAFUSIRE J

HH411-15 : TENDAI MASAMBA vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (PVT) LTD
Ruled By: CHIWESHE JP and CHITAKUNYE J

HH411-15 : TENDAI MASAMBA vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (PVT) LTD
Ruled By: CHIWESHE JP and CHITAKUNYE J

HMT23-20 : IDAH TAGARIROFA vs NHEDZIWA HIGH SCHOOL DEVELOPMENT COMMITTEE
Ruled By: MUZENDA J

HMT37-20 : ZIMBABWE REVENUE AUTHORITY and REGIONAL MANAGER (ZIMRA FORBES ENVIRONS REGIONS) and THE COMMISSIONER GENERAL (ZIMRA) vs EZEKIEL MASAMVU and ENOCK CHIBATI
Ruled By: MWAYERA J and MUZENDA J

SC11-22 : ZIMBABWE ANTI-CORRUPTION COMMISSION vs GIBSON MANGWIRO and CHRISTOPHER CHISANGO
Ruled By: KUDYA AJA

SC12-22 : SIMON CHINGANGA vs MUNASHE SHAVA and TAPSON MADZIVIRE and ADAM BEDE MANUFACTURING (PVT) LTD
Ruled By: KUDYA AJA

SC44-15 : JAINOS ZVOKUSEKWA vs BIKITA RURAL DISTRICT COUNCIL
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

SC29-22 : TECHNOIMPEX JSC vs RAJENDRAKUMAR JOG and TECHNOIMPEX JC (PVT) LTD and SARAH HWINGWIRI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

Appealed
SC31-22 : NMB BANK LIMITED vs FORMSCAFF (PVT) LTD and PENNIWILL (PVT) LTD and RODNEY CALLAGHAN and MILLICENT CALLAGHAN and CHARLES CANNINGS and CLIFFORD JOHNSON and LESLEY BENNET
Ruled By: GARWE JA, PATEL JA and GUVAVA JA

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

SC39-23 : LINDA KOPECKY and MARK KOPECKY and TSHOLOFELO TRUST and DIANE THORNTON and SLIPPER SHELL INVESTMENTS (PVT) LTD vs CITY OF HARARE and SPIRIT LIFE CHURCH
Ruled By: BHUNU JA, MAKONI JA and MWAYERA JA

SC57-22 : ERICA NDEWERE vs PRESIDENT OF ZIMBABWE N.O. and CHIEF JUSTICE N.O. and JUDGE PRESIDENT OF THE HIGH COURT N.O. and JUDICIAL SERVICE COMMISSION and MINISTER OF JUSTICE N.O.
Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

SC59-22 : DELTA BEVERAGES (PRIVATE) LIMITED vs BLAKEY INVESTMENTS (PRIVATE) LIMITED
Ruled By: BHUNU JA, MAKONI JA and CHITAKUNYE AJA