Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Approach and the Right of Appeal

SC18-12 : RONI MASEKESA vs KINGDOM FINANCIAL HOLDINGS
Ruled By: ZIYAMBI JA

This application should, strictly speaking, be one for an extension of time within which to note an appeal in terms of section 6 of the Supreme Court (Miscellaneous Appeals and References) Rules 1975 because, in my view, any purported appeal filed out of time is no appeal at all. Hence, one cannot condone what does ...

HH13-09 : BORDER TIMBERS LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: MAKARAU JP

The plaintiff filed a delictual claim against the defendant, seeking damages in the sum of US$709,948.

It was specifically alleged in the plaintiff's declaration that the defendant wrongfully and unlawfully sought to levy import duty on certain resin imported by the plaintiff for its manufacturing processes using an incorrect tariff, causing the plaintiff to litigate on the matter. By the time the litigation was resolved, in favour of the plaintiff, the imported resin, which remained uncleared for customs purposes, had become moribund and useless to the importer, thereby causing the total loss that was claimed in the summons under various heads…,.

The claim was defended primarily on the basis, that, in seeking to levy duty on a higher tariff than previously levied, the defendant was not acting with malice and that its actions were not wrongful and unlawful to ground an action in delict. Further, it was denied that the containers of the imported resin were presented to the defendant for the purposes of customs clearance.

The facts giving rise to the suit between the parties are largely common cause.

The plaintiff is an established public company, specializing in the production and manufacture of timber and timber products. It is listed on the local bourse. As part of its manufacturing processes, it uses a certain resin (hereinafter referred to as “the chemical”), that is imported into the country and import duty paid.

Over a period of about ten years, the plaintiff imported this resin at a steady 5% duty payable to the defendant.

In or about February 2005, the plaintiff received four containers of the imported chemical. When it presented the chemicals to the defendant for clearance, duty was levied not on the usual and expected 5% but at 25%.

The plaintiff approached this court for adjudication on the correct level of duty payable and its contentions were upheld. The defendant immediately noted an appeal against the decision of this court. In the meanwhile, the parties reached an agreement that the four containers be released upon the plaintiff paying a deposit against the required duty.

Again, in the meanwhile, in May 2005, the plaintiff imported into the country ten other containers of the chemical while the legal wrangle was still on. There is a dispute as to whether these ten containers were presented for customs clearance or not….,.

On 7 April 2006, the Supreme Court handed down its judgment, upholding the High Court judgment and vindicating the plaintiff's stance.

In June 2006, the ten containers of the chemical were cleared by the defendant at 5% duty. It was then discovered that the chemical had become moribund and valueless to the importer.

On 27 September 2006, the plaintiff issued summons against the defendant as detailed above.

In the summons, the plaintiff claimed the sum of US$285,123=76 as the replacement value of the chemical that went moribund; US$20,016=44 as the value of orders that were lost as a result of the plaintiff's failure to use the moribund chemical; and the sum of US$404,807=80 as damages for lost business.

At the trial of the matter, three issues had to be resolved by evidence. These were;

(i) Firstly, whether the order issued by this court also covered the ten containers, the subject of this dispute; and

(ii) Secondly, whether the ten containers were presented to the defendant for duty purposes;

(iii) Thirdly, in issue was the quantum of damages that the plaintiff would be entitled to in the event that the defendant was found liable.

In support of its case, the plaintiff led evidence, firstly, from one Joseph Chikwana. He was the plaintiff's Purchasing Manager at the time the dispute arose.

His testimony was largely to reiterate the facts that are common cause in this dispute concerning the first four containers of the chemical. Regarding the ten containers forming the subject of this suit, he testified as follows:

These were imported about six months after the first four and in respect of which the parties were before this court, locked in litigation over the correct tariff to be used for calculating duty. The ten containers came through Beira, and, when they arrived in Mutare, the plaintiff sought to have them cleared. The plaintiff did not submit any documents to the defendant as there was a pending case between the parties. The containers were placed in a bonded warehouse.

When the customs clearance agent came back with the news of the stalemate between the parties, the witness personally visited the defendant's office and was attended to by a Mr Chamboko and a lady officer who was assisting Mr Chamboko. The discussions referred to the pending case and the parties felt that they could not move from that position due to the pending litigation. The defendant demanded duty at the higher rate which the plaintiff was not in a position to pay at the time.

The witness was involved in the formulation of the claims that the plaintiff finally brought against the defendant.

He explained that the claim for $22 billion was the fees that the plaintiff paid to the agent to have the containers released.

During the period of the dispute, the plaintiff had pending orders from its overseas customers. Because of the time it took to resolve the issue, the plaintiff was unable to meet the orders, resulting in the orders being cancelled. The value of the lost orders was captured in a spread sheet that the plaintiff's Finance Department generated. The spread sheet was adduced into evidence. The value of the lost orders was in the sum of US$74,134=97.

Using a profit margin of 27%, the plaintiff claimed damages in the sum of US$20,016=44 under this head.

The chemicals expired whilst they were in the containers and awaiting clearance. The value of replacing the chemical was in the sum of US$285,123=76.

During the time that the parties were locked in the dispute, the plaintiff could not produce most of its products and thus lost business due to the unavailability of its products. It calculated this loss at US$404,807=80. Another spread sheet was adduced into evidence, through the witness, showing the plaintiff's calculation of the lost business.

The plaintiff tried to mitigate its damages by borrowing glue from other timber processing companies.

When the judgment of the High Court became available, in November 2005, the witness took the judgment to the defendant, seeking release of the ten containers. He was informed that the defendant would appeal against the judgment - which they did.

Pending determination of the appeal, the plaintiff again approached the defendant for the release of the containers. The approach was not successful leading the plaintiff to approach this court on a certificate of urgency. No judgment was handed down in the matter which was heard on 8 December 2005.

In my view, the witness is an articulate and confident man who fared well under cross examination. He was forthright in his answers to questions put to him under cross-examination and readily admitted to some of the shortcomings in the assumptions that had been used in calculating the damages claimed by the plaintiff. While I found the witness unnecessarily verbose in his responses, I have no reason to disbelieve his evidence.

The second witness to testify on the plaintiff's behalf was one Prince Nyemba. At the time, he was the plaintiff's Finance Director. He joined the plaintiff's employment in August 2006 and was not yet with the plaintiff in May 2005 when the events forming the subject of this trial were unfolding. The plaintiff naturally keeps records of its transactions and the witness had access to these.

The witness then testified as to what the plaintiff's records revealed its loss to be as a result of the delay in having the glue released to it by the defendant.

Under cross-examination, the witness admitted that the claims by the plaintiff had been calculated without taking into account certain exigencies and variables such as changing exchange rates and fluctuating costs of production.

Due to the fact that the witness was not an employee of the plaintiff at the relevant time, and also due to the concessions that he made under cross examination, that the plaintiff's claim was aggressively if not inaccurately calculated, I shall place marginal probative value on his testimony and will only rely on it where it is corroborated by other reliable evidence.

After the testimony of this witness, the plaintiff closed its case.

The defendant opened its case by calling one Clements Kwenda. He is employed by the defendant as a team Leader at Forbes Border Post, having joined the then Department of Customs and Excise in 1990.

The witness detailed the procedures that an importer of goods into the country has to observe before his or her goods can be cleared. Regarding the claim before the court, he testified as follows:

The plaintiff imported two separate lots of chemicals. Firstly, it imported four containers of the chemicals. An entry for the four was submitted to the defendant. A dispute arose as the defendant called for duty at a rate higher than the plaintiff was offering. The matter was then referred to the courts. At a later stage, and while the matter was pending before the court, the plaintiff paid a deposit for the release of the four containers.

As at 25 February 2005, the plaintiff was aware that it could have the ten containers released upon payment of a deposit.

In respect of the ten containers, Bills of Entry for the ten were submitted to the defendant on 29 June 2006. The containers were all cleared on the same date. Prior to this, he was unaware of any letter that the plaintiff had written to the defendant seeking the release of the ten containers. He was aware that a letter had been addressed to the defendant's Harare office though he had not seen it.

Under cross-examination, the witness could not dispute, that, for the previous eleven years the plaintiff had imported the chemical at 5% duty. In his opinion, the officer who inspected the goods and asked for duty at a higher rate was simply doing his work and did not err. He did not agree that the departure from the classification that had been used for the past eleven years had been done with an improper motive.

The witness gave his evidence well. I find that most of his testimony was on facts that are common cause. He was clear as to what transpired between the parties although his attempt to draw a distinction between the Harare and the Mutare offices of the defendant was without basis. On the main, I will rely on the testimony of this witness.

The defendant called the testimony of one Clifford Mubaiwa Chamboko next. He is the man in charge of the defendant's offices in Mutare.

On 17 February 2005, a meeting was held in his office pertaining to the clearance of the four containers. The plaintiff's first witness and the clearing agent were in attendance. The tariff dispute between the parties was discussed.

At no stage did the defendant refuse to accept the entry relating to the ten containers. There was no meeting between the parties regarding the ten containers.

Under cross-examination, the witness maintained that the defendant was justified in re-classifying the imported chemicals. He pointed out that the classification of imports is a complex matter and that for that matter, errors would occur.

The witness gave his evidence in a very measured way; so measured was he, that, at times, he appeared slow. Despite this, I have no reason to disbelieve his evidence as, in my view, there are few material disputes of facts in this matter.

After the testimony of this witness, the defendant closed its case.

At the pre–trial conference of the matter, eight issues were identified for trial as follows:

1. Whether the declarator issued by the Honourable Justice Hungwe, under case no HC838/05, covered the four containers or the ten containers, which are the subject matter of this dispute;

2. Whether the containers were declared for duty purposes;

3. What is the procedure to be followed by an importer of goods in circumstances where there is a dispute in relation to a consignment that has been declared for duty purposes;

4. Whether, in the absence of compliance with such procedure, any liability attaches to the defendant;

5. Whether the defendant is liable to the plaintiff in respect of contents (that) became moribund as well as the customs clearance, storage charges and demurrage charges associated with the containers;

6. Whether the defendant is liable to the plaintiff for special damages in respect of cancelled orders and lost business;

7. In respect of all damages, the quantum of damages that may be awarded to the plaintiff, if any; and

8. What order is to be made as regards costs.

In my view, the issue that falls for determination in this trial, in the main, is whether or not the defendant's conduct was culpable under the lex Aquilia. If so, what damages did the plaintiff suffer?

I narrow down the issues in this manner as, in my view, resolution of issues one to four, as settled at the pre-trial conference, will not resolve the dispute between the parties.

Having listened to the evidence of the parties, it appears clear to me that while the declarator by HUNGWE J specifically dealt with the four containers in respect of which a dispute had been formally declared, his ruling, and that of the Supreme Court on the matter would bind the parties in the importation of similar chemicals and would thus have a direct bearing on the importation of the ten containers.

I also note that while the ten containers may not have been formally presented to the defendant for clearance, the parties were locked in a dispute over the four containers in respect of the duty payable, and, on a practical note, the defendant was most unlikely to accept duty at the lower tariff pending determination of the litigation that was then unfolding between the parties....,.

In his written submissions, the plaintiff's counsel makes a sweeping statement to the effect that the conduct by the defendant was in breach of a clear statutory provision and that such breach was without just cause. Counsel proceeds to submit, that, at the very least, this constituted gross negligence.

With respect, I find myself unable to agree.

Firstly, I am not convinced that setting the tariff using an incorrect classification was breach of the duty imposed upon the defendant by statute. Secondly, I am not persuaded that making an error in calculating duty is per se gross negligence....,.

I am also reluctant to hold liable a defendant for pursuing a constitutional right in unsuccessfully noting an appeal to the Supreme Court as to do so might be to stifle, and, in some cases, completely negate such right.

SC28-09 : NYASHA CHIKAFU vs DODHILL (PRIVATE) LIMITED AND SIMON DONALD KEEVIL AND ANOTHER
Ruled By: CHIDYAUSIKU CJ

Where there is a divergence of authorities on the issue that falls for determination by the court a quo, and given the divergence of decided cases, whichever party loses has prospects of success on appeal.

HH30-12 : VARAIDZO MATEKO vs ZENUS BANDA
Ruled By: MAVANGIRA J

In Wood ND v Edwards Anor 1966 RLR 336 (G); 196 (3) SA 443 (R) LEWIS J..., made it clear that the general rule, as stated above, also applies in Zimbabwe and he referred, with approval to Reid v Godart 1938 AD 511 when it was also stated that "the ...

HH01-08 : SIMON FRANCIS MANN vs THE REPUBLIC OF EQUATORIAL GUINEA
Ruled By: MAKARAU JP and PATEL J

NATURE OF APPEALThe point was raised and argued in limine that an appeal under section 18 of the Extradition Act is an appeal in the wide sense and this court does not first have to find a misdirection on the part of the court a quo to substitute its own ...

NATURE OF APPEAL

The point was raised and argued in limine that an appeal under section 18 of the Extradition Act is an appeal in the wide sense and this court does not first have to find a misdirection on the part of the court a quo to substitute its own decision in the matter. It was further argued that the appeal connotes a re-hearing of the request and the making of an order that the lower court should have made in the circumstances of the matter.

Section 18 of the Extradition Act [Chapter 9.08] reads:

“(1) Any person, including the Government of the designated country concerned, who is aggrieved by an order made in terms of section seventeen may, within seven days thereafter, appeal against the order to the High Court which, may, upon such appeal, make such order in the matter as it thinks the magistrate ought to have made.

(2) In addition to the jurisdiction conferred upon it in terms of subsection (1), in any appeal in terms of that subsection, the High Court may direct the discharge of the person whose extradition has been ordered if the High Court is of the opinion that, having regard to all the circumstances of the case, it would be unjust or oppressive to extradite such a person -

(a) By reason of the trivial nature of the offence concerned; or

(b) By reason of the lapse of time since the commission of the offence concerned or since the person concerned became unlawfully at large, as the case may be; or

(c) Because the accusation against the person concerned is not made in good faith in the interests of justice; or

(d) By reason of the state of health or other personal circumstances of the person concerned.”

The distinction between 'wide' appeals and appeals in the narrow sense, as raised in this appeal, is not a novel argument in this jurisdiction. It is a distinction that is argued in this court regarding the determination of appeals from the refusal to grant bail by lower courts and in the Supreme Court regarding appeals from labour relations adjudicating bodies set up in terms of the Labour Act.

The position was, in my view, succinctly clarified by McNALLY JA in Agricultural Labour Bureau & Anor v Zimbabwe Agro-Industry Workers Union 1998 (2) ZLR 196 (SC), in the following words:

“Perhaps one can clarify the position by looking at the widely accepted classification of appeals as formulated by TROLLIP J in Tickly & Ors v Johannes NO & Ors 1963 (2) SA 588 (T), and approved by the Appellate Division in South Africa in S v Mohamed 1977 (2) SA 531 (A) at 538 and again in what is now KwaZulu-Natal in a case similar on the facts to the present one, Metal and Allied Workers Union v Min of Manpower 1983 (3) SA 238 (N) at 242B-D.

The three classes of appeals, re-stated in the last of these cases, are:

1. An appeal in the wide sense, ie a complete rehearing of and fresh determination on the merits of the matter with or without additional evidence or information;

2. An appeal in the ordinary strict sense, ie a re-hearing on the merits but limited to the evidence or information on which the decision under appeal was given, and in which the only determination is whether that decision was right or wrong;

3. A review, in which the question is not whether the decision was correct or not, but whether those who made it had exercised their powers honestly and properly.”

On the basis of the above, I am of the view that an appeal brought in terms of section 18 of the Extradition Act is an appeal in the wide sense.

This is due to the language used in the section that gives the Appeal Court wide discretion to substitute its own decision on the same facts that were before the lower court in addition to granting power to the court to take into account other factors of a humanitarian nature. Thus, in my further view, in determining an appeal such as the one before us, the Appeal Court need not first establish any misdirection on the part of the lower court and re-hears the request as argued before, together with any additional considerations of a humanitarian nature that may be placed before it during the appeal hearing. The correctness or otherwise of the approach adopted by the lower court in coming to the conclusion that it did are therefore not issues before this court.

The above is the approach we take in determining this appeal.

HH130-09 : INVICTUS (PRIVATE) LIMITED vs SCHALK LESSING
Ruled By: GOWORA J

The applicant, as part of the order sought, prays that the order not be suspended in the event that the respondent appeals against this judgment….,. In Whata v Whata 1994 (2) ZLR 277 (S) GUBBAY CJ stated that the principle to be applied by the court considering an application for leave to execute pending appeal is what is just and equitable ...

HH19-10 : FORRESTER ESTATE (PRIVATE) LIMITED vs M.C.R. VENGESAYI and THE MINISTER OF LANDS IN THE OFFICE OF THE PRESIDENT AND CABINET
Ruled By: PATEL J

On the 9th of September 2009, the applicant obtained a spoliation order against the first respondent, in case no. HC3989/09 evicting him from the property in question (Frogmore Farm). On the same day, the first respondent appealed against this order in case no, SC216/09. Relying on his offer letter from the second respondent, and the notice ...

HH36-10 : BRANSON MARKETING (PRIVATE) LIMITED vs NATIONAL BLANKETS LIMITED
Ruled By: KUDYA J

This is an application for execution pending appeal arising from my judgment of 7 November 2007 in which I ordered National Blankets Limited to pay Branson Marketing (Pvt) Limited the sum of ZAR720,607=07 and interest a tempore morae at the rate applicable in South Africa from the date of the service of summons to the ...

SC06-13 : UNIVERSITY OF ZIMBABWE vs KWANELE MURIEL JIRIRA and LOUIS MASUKO and THE DEPUTY SHERIFF, HARARE N.O.
Ruled By: ZIYAMBI JA

The applicant sought an order interdicting the respondents from levying execution on its property pending an appeal against an order of the High Court refusing it a stay of execution.

The matter was brought before me as an urgent application.

The respondents, who are former employees of the applicant, were dismissed by the latter for misconduct. The arbitrator to whom the dispute was referred found that the respondents had been unlawfully dismissed and ordered their reinstatement. Following a failure by the applicant to reinstate them, the respondents sought quantification of the award by the arbitrator who granted them sums totalling approximately US$308,000.

The respondents caused the order to be registered in the High Court and commenced the process of execution. The applicant's property was attached and scheduled for removal and sale.

Both the arbitral award and the quantification thereof were, at that time, the subject of appeals before the Labour Court.

The High Court found;

(i) Firstly, that it had no jurisdiction to grant the order sought since the matter was on appeal before the Labour Court to which the applicant should have made an application to suspend execution of the order.

(ii) Secondly, that the applicants ought to have exhausted their domestic remedies before approaching it.

It was submitted, on behalf of the applicants, that the learned Judge erred in declining jurisdiction and refusing to consider the merits of the application for a stay of execution since the arbitral award became an order of the High Court upon registration in that court and was suspended pending the appeals which were before the Labour Court. In the circumstances, only the High Court could entertain an application for stay of execution of the award: see Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S).

The respondents, however, argued that an appeal against an arbitrator's award is an appeal in terms of the Labour Act [Chapter 28:01] (“the Act”) and is not suspended pending appeal. They referred me to Zimphosphate v Matora & Ors SC44-05.

The decision in NetOne Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S), they argued, was given prior to the introduction of section 92E of the Labour Act, and, in Zimbabwe Open University v Gideon Magaramombe & Deputy Sheriff Harare N.O. SC20-12 it was decided that it was within the Labour Court's powers to suspend the execution of an arbitral award. Accordingly, the applicant ought to have proceeded in terms of section 92E(3) of the Labour Act, to apply to the Labour Court for a stay of execution pending appeal - which it failed to do.

It was submitted that the High Court was correct in holding that it lacked jurisdiction to grant the order on the basis that the matter was now before the Labour Court in terms of section 92E of the Labour Act....,.

As counsel for the applicant submitted, there appears to be a divergence of legal authority on the question as to whether or not, on a proper consideration of section 92E and section 98(10) of the Labour Act, it can be concluded that appeals on points of law from an arbitrator's decision in terms of section 98(10) would operate to suspend the execution of the judgment appealed against: see, for example, Nyasha v Dodhill SC28-09; Net One Cellular (Pvt) Ltd v NetOne Employees & Anor 2005 (1) ZLR 275 (S); Tel One (Pvt) Ltd v Communication & Allied Services Workers' Union of Zimbabwe 2007 (2) ZLR 262 (H).

Divergent positions, he submitted, create uncertainty....,.

I granted the application at the end of the hearing because I was of the view that, the award having become an order of the High Court upon registration by that court, the court a quo misdirected itself in holding that it did not possess the jurisdiction to grant the order sought.

It may be that a Bench of three Judges of the Supreme Court may come to a different conclusion, but, the very fact of a divergence of positions on this issue of law is what causes me to conclude that the applicant has established a prima facie right entitling it to the order sought.

SC10-13 : BISHOP ELSON JAKAZI and THE BOARD OF TRUSTEES ANGLICAN DIOCESE OF MANICALAND vs ANGLICAN CHURCH CENTRAL AFRICA and REVEREND JOSEPH CHIPUDHLA and RIGHT REVEREND RALPH PETER HATENDI
Ruled By: ZIYAMBI JA

In chambers in terms of Rule 5 as read with Rule 31 of the Supreme Court Rules. This is an application for condonation of the late noting of an appeal and an extension of time within which to appeal against a judgment of the High Court (BHUNU J). The judgment was delivered on 19 May 2010. The ...

In chambers in terms of Rule 5 as read with Rule 31 of the Supreme Court Rules.

This is an application for condonation of the late noting of an appeal and an extension of time within which to appeal against a judgment of the High Court (BHUNU J).

The judgment was delivered on 19 May 2010. The applicants filed an invalid notice of appeal on 21 May 2010. The invalidity of the Notice of Appeal was pointed out to the applicants' legal practitioners in heads of argument filed by the respondents on 3 August 2010. On 22 October 2012, the matter came before the Supreme Court for hearing and the issue of the invalidity of the Notice of Appeal, not having been addressed by the applicants, the matter was struck off the roll. The present application was filed on 1 November 2012. Bearing in mind the date of the judgment sought to be appealed against, it is clear that the delay in making this application is inordinate.

It is now trite that:

“The broad principles an appellate court would have regard to in determining whether to condone the late noting of an appeal are: the extent of the delay; the reasonableness of the explanation proffered for the delay; and the prospects of success of the appeal. See de Kuszaba-Dabrowski et Uxor v Steel NO 1996 RLR 60 (A) at 62 and 64; 1966 (2) SA 277 (RA); HB Farming Estate (Pty) Ltd & Anor v Legal and General Assurance Society Ltd 1981 (3) SA 129 (T) at 134 A-B; Kombayi v Berkhout 1988 (1) ZLR 53 (S) 57G-58A. And as BEADLE CJ observed in R v Humanikwa 1968 (2) RLR 42 (A) at 44B:

'The longer the delay in applying for condonation in the late noting of an appeal the more certain the court must be that there is a real chance of the appeal succeeding.'”

See Jensen v Acavalos 1993 (1) ZLR 216 (S)…,.

The explanation given by the applicants for the delay is that the matter was being handled by the late George Chikumbirike, who filed the defective Notice of Appeal, and who was ill at the time that the respondents' heads of argument for the appeal hearing were served on his firm. Mr Chikumbirike died on 4 May 2011 - some 9 months after the filing of the said heads of argument. Mr Kanengoni, an associate in the firm Chikumbirike & Associates, who assumed the conduct of the applicants' case after the demise of Mr Chikumbirike, said that he only looked at the record in this matter three days before the appeal hearing on 22 October 2012. Although fully aware of the defects in the Notice of Appeal, he nevertheless made no attempt at any time before the hearing to rectify the invalidity.

Legal practitioners are expected to know and comply with the Rules of the Court. It is bad enough to overlook a provision of the Rules but to deliberately refrain from compliance therewith when the oversight or non-compliance has been pointed out by a colleague is to exhibit a disdain for the Rules which will not, except in special circumstances, be readily condoned.

The explanation proffered for the delay is, in my view, unacceptable.

HH05-11 : U-TOW TRAILERS (PVT) LTD vs CITY OF HARARE and SUPERLUX TRAILERS (PVT) LTD
Ruled By: CHATUKUTA J

This is an application for leave to execute the judgment granted in case no. HH103-09 pending an appeal noted by the second respondent against the judgment. The background to the application is that in December 1994, the applicant and the first respondent entered into a lease agreement in respect of certain premises situate at Number ...

This is an application for leave to execute the judgment granted in case no. HH103-09 pending an appeal noted by the second respondent against the judgment.

The background to the application is that in December 1994, the applicant and the first respondent entered into a lease agreement in respect of certain premises situate at Number 9 Market Street, Eastlea, Harare. The lease agreement was renewable from time to time and was due to expire on 30 March 2010 by effluxion of time. In April 2008, the applicant and the second respondent entered into a joint venture to build trailers and panel beat motor vehicles. The second respondent moved onto the premises pursuant to this arrangement. The joint venture however failed. Despite the failure of the joint venture, the second respondent remained on the premises. In January 2009, the first respondent summarily terminated the lease agreement on the basis that the applicant had sub-leased the premises to the second respondent in breach of the lease agreement. It proceeded to lease the premises to the second respondent. The applicant successfully instituted proceedings in case no. HH103-09 for an order nullifying the termination of the lease agreement and the ejectment of the second respondent from the premises. The court ruled that the second respondent had not established a defence to the applicant's claim for ejectment.

On 29 October 2009, the second respondent appealed against the decision hence the present application for leave to execute pending the appeal.

In determining an application for leave to execute pending appeal, the court must consider:

(a) The prejudice to be suffered by either of the parties in the event of the success or failure of the application;

(b) The prospects of success of the second respondent on appeal; and

(See South Cape Corporation v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) and Net One Cellular (Pvt) Ltd v Net One Employee & Anor 2005 (1) ZLR 275…,.).

The applicant contended that it is likely to suffer irreparable harm if leave is not granted in that it had been operating from the premises since 1994 and would lose its customers and that its business would be adversely affected by the continued stay of the second respondent on the premises. It still has its property on the premises and had been denied access to the same by the second respondent. The second respondent had not offered a valid defence to the claim of ejectment nor had it filed a counter-application asserting its rights under a purported lease agreement between the two. It further contended that the appeal by the second respondent is frivolous and vexatious having been noted without a bona fide intent to seek and reverse the judgment but with the intention to gain time and harass the applicant.

On the other hand, the second respondent contended that it was likely to suffer irreparable harm if the order for leave to execute pending appeal was granted in that it had been in occupation since 2008. It had also established a successful business on the premises. Its business would be equally prejudiced if it is ejected from the premises. The applicant was unlikely to suffer any harm as it had not been in occupation of the premises during that period. It further contended that the main ground of appeal against the judgment in HH103-09 was that it had proffered a defence to the applicant's claim for ejectment - which defence was improperly discounted by the court. It claimed that upon the failure of the joint venture the parties entered into a lease agreement. The lease agreement had not been properly terminated and therefore it was entitled to remain in occupation pursuant to that lease agreement. It contended that if it were ejected it would not be able to be restored to the status qou ante and therefore the balance of convenience weighed in its favour. Its appeal did not lack bona fides in that the court should not have discounted its defence.

It appears to me that it is not in issue that the applicant is likely to suffer prejudice if leave to execute is not granted. The applicant has been operating from the premises from 1994 and has established a name for itself. The second respondent is also likely to suffer prejudice if leave to execute is granted. It had also started establishing a name for itself, though over a shorter period having been in occupation since 2008. It, however, appears to me that the applicant will suffer greater harm given that it has been in occupation for a longer period than the second respondent.

Considering that both parties are likely to suffer harm, it appears that the determining factor is whether or not the second respondent has any prospects of success on appeal. The second respondent does not appear to have any prospects of success. The second respondent was relying on the lease agreement with the first respondent as a basis for its present occupation of the premises. Following the setting aside of the termination of the agreement between the applicant and the first respondent by the court, the second respondent can no longer rely on the lease agreement for its continued occupation of the premises.

It appears it cannot also rely on the purported sublease with the applicant. The sub-lease is clearly in breach of the agreement between the applicant and the first respondent. The lease agreement does not allow the applicant to sublease the property without the first respondent's authority. Such authority does not appear to have been sought or granted. The second respondent did not dispute, in its pleadings in case no. HH103-09 that the sublease was invalid. In fact, it argued that its lease agreement with the first respondent was valid because the second respondent had subleased the premises to it in breach of the lease agreement with the first respondent. The applicant's contention that it is entitled to remain in occupation on the basis of an invalid lease is therefore not sustainable. The court, in case no. HH103-09, ruled that the second respondent did not have a legal entitlement to remain on the premises and it appears on the basis that the lease agreement with the applicant was invalid. It is therefore not correct for the second respondent to contend that the court did not consider its defence to the applicant's claim for ejectment. The court considered the defence and discounted it before proceeding to determine whether or not the termination of the agreement between the applicant and the first respondent was valid.

In view of the observations that I have made above, it seems to me that the balance of convenience weighs in favour of the applicant. The applicant has been in occupation for a period of seventeen years. It will certainly lose the goodwill attached to its operations on the premises if the second respondent continues to remain in occupation. The second respondent will, in fact, be building its own goodwill if it remains in occupation to the detriment of the applicant. The second respondent does not have any prospects of success on appeal because it does not have any legal entitlement to remain in occupation of the premises. It appears that the appeal was therefore noted merely to delay the inevitable. Any further delays in the execution of the judgment would, in my view, prejudice the applicant. It is therefore equitable in the circumstances that the applicant must succeed.

In the result, it is ordered that:

1. The applicant be and is hereby granted leave to execute the judgment of this court granted on 21 October 2009 in case HH103-09 pending the appeal noted by the second respondent against the judgment.

2. The second respondent be and is hereby ordered to pay the costs of this application.

HH16-11 : WILLARD MAZHAWIDZA and DORNICA MAZHAWIDZA vs ISAYA MASHAYAKARARA
Ruled By: CHATUKUTA J

This is an application for execution pending appeal. On 7 October 2009, this court granted judgment in case no. HC677/09 in favour of the applicants. The court ordered the ejectment of the respondent from a property known as Stand Number 628 Marlborough Township also known as No. 33 Taormina Avenue, New Marlborough, Harare. Dissatisfied with ...

This is an application for execution pending appeal.

On 7 October 2009, this court granted judgment in case no. HC677/09 in favour of the applicants. The court ordered the ejectment of the respondent from a property known as Stand Number 628 Marlborough Township also known as No. 33 Taormina Avenue, New Marlborough, Harare. Dissatisfied with the judgment, the respondent appealed against the decision.

The applicant contended that the appeal is frivolous and vexatious and has been noted solely to delay finality.

The appeal was noted on 27 October 2009 and only served 30 days later on 27 November 2009. The respondent had, before filing the notice of appeal, issued summons in case no. HC4922/09, on 14 October 2009, seeking a declarator that the Agreement of Sale was valid and that he is the owner of the property. He claimed, in the alternative, a refund of the market value of the property.

The factors that this court needs to take into account in determining whether or not to grant leave to execute are set in South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A). CORBETT JA observed…., that -

“In exercising this discretion (to grant leave to execute pending appeal), the court should, in my view, determine what is just and equitable in all the circumstances, and, in doing so, would normally have regard, inter alia, to the following factors:

(1) The potentiality of irreparable harm or prejudice being sustained by the appellant on appeal (respondent in the application) if leave to execute were to be granted;

(2) The potentiality of irreparable harm or prejudice being sustained by the respondent on appeal (applicant in the application) if leave to execute was refused;

(3) The prospects of success on appeal, including, more particularly, the question of whether the appeal is frivolous or vexatious or has been noted not with the bona fide intention of seeking to reverse the judgment but for some indirect purpose, eg to gain time or harass the other party; and

(4) Where there is the potentiality of irreparable harm or prejudice to both appellant and respondent, the balance of hardship or convenience, as the case may be.”

(See Arches (Pvt) Ltd v Guthrie Holdings Pvt) Ltd 1989 (1) ZLR 152 (HC); ANZ (Pvt) Ltd v Minister for Information & Anor SC111-04).

The applicants submitted that they are already suffering irreparable harm in that they are behind schedule with the development of their property and the delay is causing them financial loss.

The respondent contended that he will suffer irreparable harm because he has been in occupation of the property since the conclusion of the Agreement of Sale of the property and has commenced development of the property.

One suffers irreparable harm where there is no other practical remedy available. It appears to me that neither the applicant nor the respondent is likely to suffer irreparable harm. Both parties do have recourse, under the law, for compensation for any harm that they may suffer. As rightly submitted by the applicants, the respondent has already instituted proceedings to have the Agreement declared valid, or, in the alternative, be awarded damages. The applicants can equally claim damages for the financial loss that they are suffering by not developing their property.

It appears, therefore, that the determination of this matter rests on whether or not the respondent has any prospects of success on appeal and the balance of convenience.

I perceive that the respondent raised two main grounds of appeal in the notice of appeal. He contended that the court had misdirected itself in finding that the applicants had established the requirements for rei vindicatio, and, on that basis alone, were entitled to the order for ejectment. The court should also have considered that he had proved that he was justified to remain in occupation because he had lawfully purchased the property. The second ground was that there were material disputes of fact apparent in the matter which could only be resolved after the hearing of viva voce evidence. The court had therefore erred by adopting a robust approach and determining the disputes of fact on the papers.

HB26-11 : LESLIE KHUMALO vs VISION SITHOLE
Ruled By: MATHONSI J

The applicant is the beneficiary of an eviction order of this court issued on 1 June 2009 in terms of which the respondent is to be evicted from a garage known as G6 Montrose Mansions in Bulawayo. It would appear that immediately after that eviction order was issued, the respondent submitted an application for rescission ...

The applicant is the beneficiary of an eviction order of this court issued on 1 June 2009 in terms of which the respondent is to be evicted from a garage known as G6 Montrose Mansions in Bulawayo.

It would appear that immediately after that eviction order was issued, the respondent submitted an application for rescission of the order which, for some unclear reasons, has not been prosecuted - 1 year 7 months later. Instead, the respondent has occupied himself with filing a number of other extraneous applications which have not taken the matter anywhere. One such application was made under case no.872/09 in which he sought an order interdicting the applicant from evicting him from the garage in question. It was heard by my brother KAMOCHA J as an opposed matter, and on 8 July 2010 he handed down judgment dismissing the application with costs on an attorney and client scale.

The respondent immediately noted an appeal against the judgement of KAMOCHA J in the Supreme Court on 13 July 2010 under case no. SC168/2010. The grounds upon which the respondent relies in that matter are as follows:

''GROUNDS OF APPEAL

1. The court a quo erred in dismissing the application in that id (sic) did not consider the magnitude of the consequences of the order in Case No. HC293/2009 to give me a chance to be heard. I have always insisted that this matter should be put to trial considering that all applications before the court are chamber applications. To add injury to the wound the Respondents matter was improperly before the court in his matter HC2509/2008 considering that I had issued summons HC1264/2008.

2. The judge did not give due weight to the fact that this matter has never been put to trial of which it should, because there are serious allegations of fraud and forgery on the documents put before the court.

3. The judge failed to appreciate that I am in possession of an affidavit deposed by the person who bought the particular garage from 1^st Respondent and later sold it to me regardless of the fact that the Notarial Deed had not been changed.

4. The judge did not take into consideration that the purchaser of the garage from the 1^st Respondent is prepared to come to court and be my witness at trial of which I believe in the interest of justice that should be allowed to happen. On that reason alone this matter should be put to trial.

5. The judge failed to taken (sic) cognisance of the fact that this matter has never been considered on its merits but technicalities which I am not privy to, but what I am certain of is that I have been robbed of my garage, and my rights to justice simply because I happened to be a self actor but self actors are provided for by the law. This matter was concluded before a trial, consequently there is every reason to put this matter for trial.''

It is not difficult to follow how the learned judge arrived at the conclusion that he did.

The dispute between the parties involves ownership of a garage situated at Stand 13921, Bulawayo Township, also known as Montrose Mansions. Each of the parties owns a Flat at the place which they hold by sectional title with the applicant owning Share Number 14 and the respondent owning Share Number 17. The respective Shares of the parties at the block of Flats are defined in the Notorial Deed No.213/89 registered at the Deeds Office in Bulawayo. That of the applicant, being Share Number 14 is described in the Notorial Deed as:

''14. Two bedroomed flat with private balcony on the first floor designated as Flat 14 and a garage designated as G6 on the plan annexed and known as Flat 8 Montrose Mansions 6.17%.''

That of the respondent is defined as:

''17. One bedroomed flat situate above a section of the garages designated as Flat 17 on the plan annexed and known as Flat 7 Napier House 4,23%.''

Clearly, therefore, the ownership documents, as registered at the Deeds Office, reflect that the applicant is the rightful owner of the garage known as G6 Montrose Mansions.

Realizing that he could not rely on the documentation to claim the garage, the respondent turned round to allege that the said garage had been sold by the applicant to someone else, one Nkosana Ncube, who, in turn, sold it to the respondent. Unfortunately, the Sale Agreement between himself and the said Nkosana Ncube, which he relies upon, says nothing about the sale of the garage….,.

Faced with this kind of evidence, KAMOCHA J had no difficulty concluding that the garage belonged to the applicant and dismissed the respondent's application, prompting the respondent to note the appeal aforesaid.

The applicant has now approached the court seeking an order authorising execution pending appeal on the basis that the appeal is devoid of merit and has been undertaken for purposes of delaying the inevitable….,.

In an application for leave to execute pending appeal, the law is set out in Van t'Hoff v Van t'Hoff (2) 1988 (1) ZLR 335…., where ADAM J stated:

''The law is clear from the authorities cited to me, more particularly South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at p545 where CORBETT JA observed:

'The court to which application for leave to execute is made has a wide general discretion to grant or refuse leave. This discretion is part and parcel of the inherent jurisdiction which the court has to control its own judgments. In exercising this discretion, the court should, in my view, determine what is best and equitable in all the circumstances and in doing so would normally have regard, inter alia, to the following factors;

1. The potential of irreparable harm or prejudice sustained by the appellant on appeal (the respondent in the application), if leave to execute were to be granted;

2. The potential of irreparable harm or prejudice being sustained by the respondent (applicant in the application) if leave to execute were to be refused.

3. The prospects of success on appeal, including, more particularly, the question as to whether the appeal is frivolous or vexatious or has been noted not with the bona fide intention of seeking to reverse the judgment but for some indirect purpose to gain time or to harass the other party;

4. Where there is the potentiality of irreparable harm or prejudice to both the appellant and the respondent, the balance of hardship or convenience, as the case may be.'''

I have considered the judgment of my brother KAMOCHA J, which the respondent has appealed against, and I am impressed by the clarity of reasoning and the analysis of the evidence before him. He weighed both sides of the dispute with careful precision and rejected the respondent's case in favour of that of the applicant. His conclusion is beyond reproach. I have also considered the respondent's grounds of appeal. I have no hesitation, whatsoever, in concluding that the appeal is lamentably without merit and indeed borders on the frivolous and vexatious. It simply has no prospects of success.

I am also mindful of the conduct of the respondent who has stopped at nothing to frustrate the hearing of this matter. In my view, the appeal has been noted to buy time and also to harass the applicant. This cannot be allowed, and I intend to exercise my discretion in favour of the applicant as he has discharged the onus placed upon him to show a proper case for the grant of leave to execute pending appeal….,.

In the result, I make the following order; that

1. The applicant be and is hereby granted leave to execute the judgment in case no. HC872/09 by the eviction of the respondent and all those claiming through him from garage number G6 Montrose Mansions, Bulawayo situate on Stand 13921, Bulawayo Township, Bulawayo, pending appeal made by the respondent.

2. This order shall not be suspended by any further appeal or application as may be made by any party hereto.

HH222-10 : FORRESTER ESTATE (PRIVATE) LIMITED vs LOVEMORE MAKUNUN'UNU and THE MINISTER OF LANDS, LAND REFORM AND RESETTLEMENT N.O.
Ruled By: MAKONI J

This is an application for leave to execute pending appeal. The background to the matter is that the applicant carries on farming operations at Frogmore Farm in Mazoe...,. The first respondent took occupation of part of the farm on 13 May 2007 on the basis of an offer letter issued to him by the second ...

HH232-10 : ANDREW RICHARD BRUFORD vs THE ATTORNEY GENERAL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MAGISTRATE JARABINI and OTHERS
Ruled By: CHIWESHE JP

The first respondent filed an application with the third respondent for leave to execute the eviction order pending appeal on the grounds that the appeal had no prospects of success and that it had been filed for purposes of delay. Notwithstanding opposition by the applicant, the third respondent granted the application for leave to execute ...

HH232-10 : ANDREW RICHARD BRUFORD vs THE ATTORNEY GENERAL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MAGISTRATE JARABINI and OTHERS
Ruled By: CHIWESHE JP

Citing the case of Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S) the applicant argued that “there was a presumption against alteration in the common law by statute law, unless the words of the statute are plain and unambiguous and an intention to alter the common law is evident from the ...

HB131-11 : POTENTIAL INVESTMENTS (PVT) LTD and RALEMA INVESTMENTS (PVT) LTD vs JOSEPH TAYALI (in his personal capacity) and TAYALI AND SONS and NERGER PROPERTIES (PVT) LTD
Ruled By: NDOU J

This is a court application for execution of judgment pending appeal. On 4 November 2010, the applicants obtained a judgment in their favour in this court under HB136-10. The judgment was in respect of two matters, namely, HC1583/07 and HC2747/07, which had been consolidated. The effect of this judgment was to confirm the provisional order granted ...

This is a court application for execution of judgment pending appeal.

On 4 November 2010, the applicants obtained a judgment in their favour in this court under HB136-10. The judgment was in respect of two matters, namely, HC1583/07 and HC2747/07, which had been consolidated. The effect of this judgment was to confirm the provisional order granted to the applicants under HC1583/07 (for, inter alia, the eviction of the respondents and all those claiming through them from Number 70 Jason Moyo Street, Bulawayo and to dismiss the application by the respondents under HC2747/07).

On 24 November 2010, the respondents noted an appeal against this judgment to the Supreme Court and the said appeal is pending under SC284/10. The respondents have remained in occupation of the property on the basis of the appeal.

This application is opposed.

It is trite that this court has a discretion to grant an application for leave to execute pending appeal. In exercising its discretion, the court takes into account what is just and equitable in the circumstances and particularly the following considerations:

(a) The potentiality of irreparable harm and prejudice to the appellant if leave to execute is granted.

(b) The potentiality of irreparable harm and prejudice to the respondents on appeal if leave to execute is refused.

(c) The prospects of success on appeal, including the question as to whether the appeal is frivolous and vexatious or appeal has been noted not with the bona fide intention of seeking to reverse the judgment but for some other purpose such as to gain time or to harass the other party.

(d) If the competing interests are equal, then the balance of hardship to the other party.

South Cape Corporation v Engineering Management Services 1977 (3) SA 534 (A); Ardes (Pvt) Ltd v Guthrie Holdings (Pvt) Ltd 1989 (1) ZLR 152 (H); Zaduck v Zaduck (2) 1965 RLR 635 (G), 1966 (1) SA 550 (SR); Masulame v Mbona & Anor 2003 (1) ZLR 412 (H); Dabengwa & Anor v Minister of Home Affairs & Ors 1982 (1) ZLR 223 (H); Van T' Hoff v Van T' Hoff & Ors 1988 (1) ZLR 335 (H) and Zimbabwe Distance Correspondence Education College (Pvt) Ltd v Commercial Careers College (1980) (Pvt ) Ltd 1991 (2) ZLR 61 (H).

I propose to consider these issues in turn….,.

Prejudice to the applicants

The applicants have never had access to the premises. The respondents simply refuse to move out. This is notwithstanding the fact that the Supreme Court made a final determination on the matter on 13 November 2006. The Supreme Court's judgment confirmed the provisional order which had been granted three years earlier, on 18 August 2003, and confirmed on 24 April 2005. As the respondents continue to occupy the premises, the occupational considerations that they owe to the applicants continue to accumulate. Such costs will be substantial considering the fact that they have accumulated over a long period of time. The prospects of recovering the true value of their damages are virtually non-existent.

The harm to them is therefore irreparable.

Prejudice to the respondents

The respondents, on the other hand, stand to suffer no prejudice or harm if leave to execute is granted. The judgment is not one sounding in money and the respondents are, therefore, not being called upon to pay any sums of money which they are not likely to recover if paid over to the applicants.

The balance of hardships best favour the applicants. A case has been made by the applicants for the granting of the application in accordance with the demands of the preponderance of equities.

Accordingly, it is hereby ordered that:

1. The applicants be and are hereby granted leave to execute the judgment of this court under HB136-10 pending the appeal by the respondents to the Supreme Court.

2. The respondents pay the costs of this application, jointly and severally, the one paying the other to be absolved, on an attorney and client scale.

HB106-10 : THWASILE NGWENYA vs MHLUPHEKI HLABANGANA and MESSENGER OF COURT
Ruled By: MATHONSI J

A fatally defective appeal cannot be amended. See Gosha v Gosha SC123-96…,.

HB106-10 : THWASILE NGWENYA vs MHLUPHEKI HLABANGANA and MESSENGER OF COURT
Ruled By: MATHONSI J

I am persuaded that the appeal has diminished prospects of success, and for that reason, the first respondent should not be prejudiced in the enjoyment of her right over the house. In any event, the house was sold to her by a person with ostensible authority to do so. She is therefore an innocent ...

HB136-10 : POTENTIAL INVESTMENTS and RALEMA INVESTMENTS and NERGER PROPERTIES vs JOSEPH TAYALI and TAYALI AND SONS and NERGER PROPERTIES and POTENTIAL INVESTMENTS and RALEMA INVESTMENTS
Ruled By: NDOU J

The applicants have applied for this order to be carried into execution and have placed reliance on Rule 240 of the High Court Rules 1971. It is in exceptional cases that the court will order execution notwithstanding the filing of any notice of appeal - Masukume v Mboma HB46-03 and Jere v Chitsunge HB10-03. There are ...

HH31-14 : RIOZIM LIMITED vs AFRICAN EXPORT-IMPORT BANK
Ruled By: CHIGUMBA J

The applicant filed a chamber application for leave to appeal on 7 November 2013. On 23 October 2013, I had granted an order for provisional sentence in favor of African Export-Import Bank, under case number HC8117/13, in the sum of USD8,000,000= (eight million United States Dollars), together with interest at the prescribed rate of ...

The applicant filed a chamber application for leave to appeal on 7 November 2013.

On 23 October 2013, I had granted an order for provisional sentence in favor of African Export-Import Bank, under case number HC8117/13, in the sum of USD8,000,000= (eight million United States Dollars), together with interest at the prescribed rate of 5% per annum calculated from 29 December 2012 being due date of the Promissory Note to the date of payment in full, and costs of suit….,.

The application for leave to appeal is premised on the averment that the applicant raised sufficient grounds to establish that the respondent's claim for provisional sentence under HC8117/13 is not valid. It is premised on the further averment that the applicant has a bona fide and valid defense to the claim. In its founding affidavit, the applicant averred that, in granting provisional sentence in favor of the respondent, the court erred when it found that the facts set out in the applicant's opposing affidavit failed to establish a prima facie and valid defense to the applicant's claim. The pplicant submitted that it has good prospects of success on appeal, in that, The Promissory Note in question was not payable on demand, it was not presented for payment on its due date which was the 29^th of December 2010, being presented for payment on 8 August 2013, thereby, in accordance with the England Bills of Exchange Act 1882, the discharging applicant from its obligation to pay. The applicant submitted further, that the amount currently outstanding was now substantially less than the sum claimed by the respondent, and that the court did not have jurisdiction to entertain the claim because the parties agreed that any dispute would be governed by the laws of England, which would have exclusive jurisdiction…..,.

The respondent, in its opposition to the application for leave to appeal, filed of record, on 13 November 2013, filed written submissions in terms of Order 34 Rule 264 of the Rules of this Court. The following points were taken in limine that the chamber application was fatally defective for lack of compliance with the provisions of Order 34 Rule 262 of the Rules of this Court which require two essentials to be set out in such an application:

(a) The special circumstances that necessitated the filing of the chamber application for leave to appeal.

(b) The reason why the application for leave to appeal was not made orally immediately after provisional sentence was granted on 23 October 2013….,.

Rule 262 of the High Court Rules 1971 provides as follows;

“ORDER 34

APPLICATIONS FOR LEAVE TO APPEAL TO THE SUPREME COURT

262. Criminal trial: oral application after sentence passed

Subject to the provisions of Rule 263, in a criminal trial in which leave to appeal is necessary, application for leave to appeal shall be made orally immediately after sentence has been passed. The applicant's grounds for the application shall be stated and recorded as part of the record. The judge who presided at the trial shall grant or refuse the application as he thinks fit.

263. Criminal trial: application in writing filed with registrar

Where application has not been made in terms of rule 262, an application in writing may, in special

circumstances, be filed with the registrar within twelve days of the date of the sentence. The application shall state the reason why application was not made in terms of rule 262, the proposed grounds of appeal and the grounds upon which it is contended that leave to appeal should be granted.

264…,.

265…,.

266. Application for condonation of failure to apply timeously

Where an application has not been made within the said period of twelve days, an application for condonation may be filed with the registrar and served forthwith on the Attorney-General, together with an application for leave to appeal. The Attorney-General may, within three days of the date of the said service, file with the registrar submissions on both applications. The provisions of rule 265 shall apply to both such applications and submissions, if any.

267…,.”

The applicant did not dispute that the application for leave to appeal was defective. Order 34 Rule 262 provides that an application for leave to appeal be made orally at the hearing immediately after sentence has been passed. It is common cause that this did not happen on 23 October 2013 when provisional sentence was passed. By implication, the applicant's written application for leave to appeal was brought in terms of Order 34 Rule 263, whose requirements include:

(i) Tthat it be made within twelve days of the date when sentence was passed;

(ii) That it be filed with the Registrar in special circumstances;

(iii) That it state the reasons why no oral application was made in terms of Rule 262; and

(iv) That it state the proposed grounds of appeal and the reasons why leave to appeal ought to be granted.

The application for leave to appeal, in its founding affidavit, did not state the reasons why no oral application was made on 23 October 2013. That is the defect that is sought to be cured by the application to admit the supplementary affidavit of Mr. Succeed Takundwa in which he pleads unfortunate lack of knowledge of the requirements of Order 34 on the day provisional sentence was pronounced….,.

In Silver's Trucks (Pvt) Ltd & Anor v Director of Customs & Excise 1999 (1) ZLR HH98-99, in answer to the question of whether an additional affidavit could be introduced by the respondent after the applicant had already filed an answering affidavit, it was held that:

“…, it is only in exceptional circumstances that the court will allow the filing of an additional affidavit. There must be an application for leave to file such affidavit. The party applying for leave must provide a satisfactory explanation for the failure to put the information or facts before a court at an earlier stage and for the late filing of the affidavit. The explanation must be one that negatives bad faith or culpable failure to act timeously. The court must also be satisfied that no prejudice will be caused to the opposing party which cannot be remedied by an appropriate order as to costs.”

Order 34 Rule 265 provides that after an application for leave to appeal is made in writing, and written submissions are filed in response, the matter may be set down before a judge for determination. Written submissions are not placed before the court by way of affidavit. There is no requirement for answering affidavits to be filed. Clearly, there is a distinction between the Order 32 and the Order 34 procedure. However, in light of the fact that Order 34 stipulates that the matter be set down for determination after written submissions, the filing of an additional affidavit by the applicant, not being expressly provided for, may only be done after leave to do so has been applied for and obtained. See Silver's Trucks (Pvt) Ltd & Anor v Director of Customs & Excise 1999 (1) ZLR HH98-99…,.. Further, a court seized with such an application must be guided by the considerations set out such as the reason why such information was omitted from the original affidavit. The court must consider any indications of possible prejudice to the other party.

It is my view that the interests of justice would not be served by allowing the affidavit of Mr. Succeed Takundwa to form part of the application for leave to appeal. No written application for leave to file such an affidavit was filed prior to the filing of the affidavit. The applicant pre-empted the exercise of the court's discretion by filing the affidavit first and applying for leave to file it after the fact, and orally from the bar. Clearly, there is no provision for proceeding in such a cavalier manner in the Rules of this Court.

In any event, even if the affidavit of Mr. Takundwa is admitted, the application for leave to appeal would still remain defective for not addressing the requirement that it be made only in special circumstances. The aspect of special circumstances is not canvassed in the founding affidavit, nor is it alluded to in the supplementary affidavit that is proposed to be admitted. It is my view that the applicant has exhibited an unfortunate lack of apprehension of, not only the provisional sentence procedure and its attendant remedies but also the leave to appeal procedure.

HH303-14 : BRIGHTON NZARA vs CALISTO TSANYAU & OTHERS
Ruled By: MATHONSI J

The applicant is the Chairperson of a co-operative comprising of four (4) members, namely, himself, Calisto Tsanyau, Simpson Mangwanda and Tafirenyika Dzvarai which was engaged in the business of fattening cattle for sale. He was sued by the other members of the co-operative for delivery of 5 head of cattle or their value of $5,375= in the Magistrates Court of Mvuma. He contested the claim and says that during the trial the magistrate denied him an opportunity to call a witness because “she had too many cases to handle” after which the matter was decided against him.

The applicant noted an appeal to this court against the decision of the Magistrates Court, but, not to be outdone, the first respondent made an application for leave to executive pending appeal. The magistrate granted leave on 8 May 2014. Unhappy with that outcome, especially cognisant of the procedural improprieties which occurred during the trial and what he deemed to be the bias of the magistrate against him, the applicant brought an application for review in this court.

Unperturbed and determined to reach the land of milk and honey, the first respondent has issued a writ of execution against the applicant's property and instructed the Messenger of Court to proceed against the applicant's property. Sensing danger, and impoverishment, the applicant has now approached this court for a stay of execution…,.

It is not clear what the trial magistrate considered when she granted leave to executive pending appeal. What the court has regards to in determining such an application was summarised by MAKARAU JP…, in Old Mutual Life Assurance Company (Pvt) Ltd v Makgatho HH39-07…, as:

“The position, as stated in the decided cases, then appears to me to be as follows:

1. An appellant has an absolute right to appeal and to test the correctness of the decision of the lower court before he or she is called upon to satisfy the judgment appealed against.

2. Execution of the judgment of the lower court before the determination of the appeal will negate the absolute right that the appellant has and is generally not permissible.

3. Where, however, the appellant brings the appeal with no bona fide intention of testing the correctness of the decision of the lower court, but is motivated by a desire to either buy time or harass the successful party, the court, in its discretion, may allow the successful party to execute the judgment notwithstanding the absolute right to appeal vesting in the appellant.

4. In exercising its discretion, the court has regard to the considerations suggested by CORBETT JA in South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at 545.

5. Where the judgment sounds in money and the successful party offers security de restituendo and the appellant has no prospects of success on appeal, the court may exercise its discretion against the appellant's absolute right to appeal.

6. An application for leave to execute pending appeal cannot be determined solely on the basis that the appellant has no prospect of success on appeal especially where the whole object of the appeal is defeated if execution were to proceed. (See Wood N.O. v Edwards & Anor 1966 RLR 335).”

See also Dabengwa & Anor v Minister of Home Affairs 1982 (1) ZLR 223 (H)…,; Arches (Pvt) Ltd v Guthrie Holdings (Pvt) Ltd 1989 (1) ZLR 152 (H)…,; Marume v Gwarada & Ors HH92-13.

The applicant has raised very pertinent issues concerning the conduct of the trial which require interrogation. He has also questioned how he could be ordered to pay to the first respondent the whole amount, when he was also a member of the co-operative entitled to a share of the proceeds from the sale of the cattle. In my view, it cannot be said that his appeal is frivolous or vexatious. Nor that he has launched the appeal to harass the first respondent.

Now that an application challenging the propriety of the decision granting leave to appeal has been made, it cannot be said that such application does not deserve consideration, especially against the background of an appeal that appears to deserve its day in court. The applicant has an absolute right of appeal and I am not satisfied that the trial magistrate properly exercised her discretion in effectively denying him the right of appeal by authorising execution….,.

SC17-14 : ANTHONY HICKEY vs DMC HOLDINGS PL and CHRISTMAS GIFT PL and ROGERIO B.A. DE SA and NATIONAL SOCIAL SECURITY AUTHORITY
Ruled By: ZIYAMBI JA, GARWE JA and PATEL JA

The question of the misjoinder of the fourth respondent was not an issue before the court a quo nor was it a ground of appeal, but has been raised in the heads of argument and in submissions before us. In view of the order sought by the appellant in the court a quo, which, ...

HB37-14 : STANBIC BANK ZIMBABWE LIMITED vs NEIL WILLIAM RIX and FRANCOIS VAN DER ZEE and ALCO FOREST INDUSTRIES (PVT) LTD
Ruled By: KAMOCHA J

The applicant in this matter is seeking an order in the following terms: “IT IS HEREBY ORDERED THAT:- (1) Leave be and is hereby granted to the applicant to execute on judgment number HB24-13 and notwithstanding the respondents' appeal to the Supreme Court. (2) The respondents, jointly and severally, the one paying the others to be absolved, shall pay ...

HB108-14 : ELIPHAS KAWA vs VICTOR MUZENDA and THE ASSISTANT MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS and VICTOR MUZENDA N.O. and ZEXCOM (PVT) LTD
Ruled By: TAKUVA J

This is an urgent chamber application for leave to execute pending appeal. The case has a long, tortuous history dating back to 2009 resulting in numerous court orders being issued.

HB108-14 : ELIPHAS KAWA vs VICTOR MUZENDA and THE ASSISTANT MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS and VICTOR MUZENDA N.O. and ZEXCOM (PVT) LTD
Ruled By: TAKUVA J

As regards the contention that the applicant does not want the first respondent to exercise his right to appeal to the highest court, I am of the view that the authority cited by the first respondent, namely, Zimbabwe Mining Development Corporation Anor v African Consolidated Resources PLC Ors 2010 (1) ...

As regards the contention that the applicant does not want the first respondent to exercise his right to appeal to the highest court, I am of the view that the authority cited by the first respondent, namely, Zimbabwe Mining Development Corporation & Anor v African Consolidated Resources PLC & Ors 2010 (1) ZLR 34 does not support his case.

In that case, CHIDYAUSIKU CJ did not say that an application for leave pending appeal renders nugatory or abrogates a litigant's right to appeal. Far from it, the learned Chief Justice…., expressed himself with utmost clarity as follows:

“Once a judgment is given, the losing party who has a right to appeal is entitled, if he so wishes, to note an appeal. The noting of an appeal has the effect of suspending the judgment. It is only then that the successful party can make a special application for leave to execute the judgment despite the noting of an appeal. The losing litigant is entitled to respond to that application. It is only after hearing both parties to the special application for leave to execute that a court can properly exercise its discretion on the matter…,.

In the absence of exceptional circumstances, due process must be observed before issuing such an order. The litigant's right to appeal should not be abrogated lightly and without due process.”…,.

In casu, due process has been observed and there is no question of lightly abrogating the first respondent's right to appeal.

Consequently, this ground is dismissed…,.

The last two grounds relate to the same thing, namely, the requirements for an application for leave to execute pending appeal….,.

The factors to take into account in determining whether to grant leave to execute pending appeal were set out in South Cape Corporation v Engineering Management Services 1977 (3) SA 534 (A)…, where it was held that:

“The court to which application for leave to execute is made has a wide general discretion to grant or refuse leave and if leave be granted, to determine the conditions upon which the right to execute, shall be exercised…,. In exercising this discretion, the court should, in my view, determine what is just and equitable in all the circumstances, and, in doing so, would normally have regard, inter alia, to the following factors:

(1) The potentiality of irreparable harm or prejudice being sustained by the appellant (respondent in the application) if leave to execute were to be granted;

(2) The potentiality of irreparable harm or prejudice being sustained by the respondent on appeal (applicant in the application) if leave to execute were to be refused;

(3) The prospects of success on appeal, including, more particularly, the question as to whether the appeal is frivolous or vexatious or has been noted with the bona fide intention of seeking to reverse the judgment but for some indirect purpose, e.g. to gain time to harass the other party; and

(4) Where there is the potentiality of irreparable harm, or prejudice, to both appellant and respondent, the balance of hardship or convenience, as the case maybe.”

In Econet (Pvt) Ltd v Telecel Zimbabwe (Pvt) Ltd 1998 (1) ZLR 149 (HC)…, it was held that:

“In determining an application for leave to execute pending an appeal, the court must have regard to the “preponderance of equities,” the prospects of success on the part of the appellant and whether the appeal has been noted without “the bona fide intention of seeking to reverse the judgment but for some indirect purpose e.g. to gain time or to harass the other party.”

Similarly in ZDECO (Pvt) Ltd v Commercial Careers College (1980) (Pvt) Ltd 1991 (2) ZLR 61 (HC) it was held that in an application for leave to execute on a judgment pending appeal against that judgment, the court, whilst retaining a wide discretion, will only order execution in such circumstances where the order would cause irreparable harm to the respondent, if it feels that an appeal has been noted with no bona fide intention of seeking to reverse the judgment, but merely to buy time, or where the appeal stands no prospects of success whatsoever.

In this case, it is difficult to imagine how the respondent's removal would cause irreparable harm to him. I say so because the whole purpose of the judgment he is appealing against is to have him removed from the position of provisional liquidator. If he succeeds in his appeal, the status quo will be restored. Therefore, there is nothing irreparable about it. Put differently, Victor Muzenda NO and Victor Muzenda, in his personal capacity, will not suffer any irreparable harm if leave to execute is granted in that the position of provisional liquidator connotes fiduciary duties to be carried for and on behalf of a company.

As regards prejudice to the fifth respondent i.e. ZEXCOM (Pvt) Ltd, my view is that from the reasons given for respondent's removal, it is crystal clear that the company will not suffer any prejudice whatsoever. In fact, the removal is potentially beneficial to ZEXCOM (Pvt) Ltd.

In respect of the potentiality of irreparable harm or prejudice being sustained by the applicant if leave to execute were to be refused, I am of the view that such harm or prejudice is massive in that the applicant, as a shareholder, is expected to reap the fruits of his investments in ZEXCOM (Pvt) LTD. The first respondent has been mismanaging the affairs of this company for many years. The respondent also has failed to shake off allegations of financial mismanagement or embezzlement during his tenure as provisional liquidator. It is common cause that the first respondent has not rendered an account of ZEXCOM (Pvt) Ltd assets since his appointment as provisional liquidator on 17 February 2010, in flagrant violation of the provisions of the Companies Act [Chapter 24:03].

MAKONESE J, in judgment number HB10-14, succinctly in my view, exposed the irreparable harm that the applicant and the fifth respondent are likely to suffer if the first respondent is not removed from the post of provisional liquidator. He stated thus:

“It is clear that 1^st respondent has not taken the opportunity to refute the allegations of impropriety, which allegations are of a serious nature. 1^st respondent has chosen to studiously stonewall the allegations in the papers filed of record. It is trite that one of the most important functions of a liquidator is to keep creditors and all interested parties, including shareholders, informed of the proceedings in relation to the liquidation process so that creditors can monitor the payments and receipts to ensure that everything is properly done. The 1^st respondent has not called a single meeting with the creditors and has even defied a directive of the Assistant Master to hold such a meeting. The creditors have not had a chance to examine 1^st respondent's accounts or to know how he is utilizing the funds that have been received for and on behalf of 2^nd respondent.”…,.

The first respondent was found to be not a fit and proper person to continue as provisional liquidator for, inter alia, the following reasons:

(a) Failure to convene creditors' meetings from 2009 to date;

(b) Failure to render a proper account of 5^th respondent's assets;

(d) Failure to satisfy a lawful demand by the Assistant Master to convene a creditors' meetings;

(e) Disposing of 5^th respondent's assets without the consent of the Assistant Master of the High Court.

Such conduct, harmful as it is, has caused untold prejudice to the applicant for more than four years. If leave to execute is not granted, the first respondent will most certainly continue to inflict more harm on the applicant and other stakeholders. What is more frightening is the first respondent's contention that as long as he occupied the position of liquidator, he is not required to account to anybody. This is a dangerous misconception that must not be allowed to flourish. The first respondent has not denied the allegations that he has failed to account for payments he received from the sale of properties belonging to the fifth respondent.

The final requirement relates to the prospects of success on appeal, and, more particularly, the question as to whether the appeal is frivolous or vexatious or has been noted with the bona fide intention of seeking to reverse the judgment but for some indirect purpose e.g. to gain time to harass the other party.

I will deal with the question of prospects of success first.

Here, it is instructive to closely examine the grounds of appeal. The first ground raises the issue of the first respondent's authority to sell the fifth respondent's property. The first respondent has attached, as annexure A to his notice of opposition, an order granted by KAMOCHA J on 21^st day of July 2010 as proof that he had authority to dispose of the fifth respondent's assets. In his notice of appeal, he refers to an order issued on 18^th October 2011.

Be that as it may, the order he has attached relates to specific property and has a cut-off date being the 18^th September 2010. The applicant does not explain why, in 2014, he was still selling property mentioned in an order issued four years ago. Further, and more importantly, the first respondent has not quantified the proceeds realized therefrom, how much has since been paid to those applicants mentioned in the order and how much is outstanding. The crux of the matter, in my view, is that, that order did not appoint the first respondent as a liquidator, he remained a provisional liquidator without authority, in terms of the provisions of the Companies Act, to dispose of the immovable assets of a company. This is why paragraph 6 of the order he relied on states:

“6. Should the respondents fail to pay out the applicants herein and the 17 applicants under HC412/10 or those mentioned in 5 above and the other costs or charges mentioned above, the 1^st respondent's properties shall be sold by private treaty to the best advantage, and from the proceeds thereof, the applicants and other shareholders, and costs/charges be paid out and the balance, if any, be tendered to the 1^st respondent or its lawful agency.”…,.

It should be noted that this paragraph does not state that the property shall be sold by the first respondent. Neither does it authorize the seller to dispense with mandatory procedures prescribed in the Companies Act. The first respondent was not a party to the proceedings that gave rise to the order he is clinging onto. Ultimately, therefore, the first respondent has no authority to dispose of the fifth respondent's property.

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

It was submitted by counsel for the appellant that if the appeal found favour with this Court then it should grant the provisional order sought as a remittal would cause hardship to both parties. As stated…, we are not persuaded to interfere with the trial court's finding on urgency and the issue of locus standi ...

SC72-14 : STREAMSLEAGH INVESTMENTS (PRIVATE) LIMITED vs AUTOBAND INVESTMENTS (PRIVATE) LIMITED
Ruled By: GARWE JA

The position is now settled that the court to which application for leave to execute is made has a wide discretion to grant or refuse leave. This discretion is part and parcel of the inherent jurisdiction which the court has to control its own judgments. Further, in the exercise of such discretion, the court should determine what is just and equitable in all the circumstances, and, in doing so, would normally have regard to the following factors:

1. The potentiality of irreparable harm or prejudice being sustained by the appellant on appeal if leave to execute were to be granted;

2. The potentiality of irreparable harm or prejudice being sustained by the respondent on appeal if leave to execute were to be refused;

4. Where there is the potentiality of irreparable harm or prejudice to both appellant and respondent, the balance of hardship or convenience, as the case may be.

The authority for the above proposition, if any is required, is South Cape Corp v Engineering Management Services 1977 (3) S.A. 534, 544 H-545 A…,.

It seems to me appropriate, for reasons that will become apparent shortly, that the prospects of success of the respondent on appeal before the Constitutional Court be determined first. In order to do so, it is necessary to consider the findings made by this Court in arriving at the decision now the subject of the Constitutional appeal.

The events that took place and gave rise to the present proceedings were predicated on an order made by the Magistrates Court. It was on the basis of that order that the applicant was evicted from the premises. After considering the various submissions made by counsel and documents produced in the court a quo, this Court formed the view that the critical issue that required resolution was whether or not it was AMI Plc or Streamsleagh (Pvt) Ltd (the current applicant) which was in occupation at the time eviction was ordered by the Magistrates Court, and, secondly, whether spoliation had been proved. At page 9 of the judgment, this Court remarked:

“Where an act of spoliation has been alleged, it is trite that the act of spoliation has to be proved. The respondent did not state when such act occurred or by whom it was perpetrated. In his founding affidavit, Dr. Solanki refers, in general terms, to “robbery, theft, corruption and fraud” as constituting the act of spoliation. It cannot be gainsaid that robbery, theft, corruption and fraud are different and distinct species of criminal offences…,. The respondent does not, in the affidavit of Solanki, give details on each of the alleged offences nor does he state how each of these acts which are alleged to constitute spoliation were effected, when they occurred or by whom they were perpetrated. In short, the affidavit is devoid of any specifics on the act of spoliation in terms of which the order was premised. It is lacking in detail and substance as to how the respondent was illegally dispossessed of occupation.”

At page 11 of the cyclostyled judgment, the court continued:-

“It was necessary, in my view, for the respondent to have shown that it was in occupation of the premises in question, and, further to that, it was, in fact, the appellant, as opposed to AMI Plc that caused its unlawful dispossession from the premises. It did not establish that it was in peaceful and undisturbed possession and that it was despoiled by the appellant. Consequently, there is no substance to the allegation by the respondent that it had been unlawfully dispossessed of occupation of the hospital premises by the AMI Plc against which it took no action.

I therefore conclude that the learned Judge misdirected himself in accepting the finding by the magistrate that the respondent had been unlawfully removed from the premises by AMI Plc.”

At page 13, this Court continued:

“Apart from the bald allegation that it was in possession, the respondent did not, before the magistrate or the High Court, establish proof of its occupation of the disputed premises. The affidavit from Solanki suggests that he occupied No.15 Lanark Road in his personal capacity, which, given the documents in the record, is an obvious lie. He was not in occupation, but was on the premises pursuant to the Management Agreement that got terminated, which termination he accepted.”

This Court also accepted that although aware that the applicant was in occupation of the hospital, the respondent had deliberately not cited the applicant but instead cited AMI Plc - a separate legal entity.

This is what this Court said at page 12 of the judgment:

“Apart from the urgent chamber application referred to above, the parties also filed documents under Case No. HC619/11. Again, this application is at a standstill. The application in the Magistrates Court was filed on 28 September 2011. It is obvious that by the time the respondent filed the application in the Magistrates Court, it had become aware, from the documents filed in the two High Court applications mentioned above, that the appellant was in occupation of the hospital, yet it chose deliberately not to cite the appellant in the application for an order of spoliation.”

The court also found that no attempt had been made by the respondent to produce documentation to substantiate its claim that it was in occupation of the premises whose registered owner, it was common cause, was Streamsleagh (Pvt) Ltd, the applicant in this case. The Court further found that an order for the eviction of AMI Plc had no effect on the applicant as these were two distinct entities and it was not suggested that the applicant had itself committed an act of spoliation or held the premises through AMI Plc.

My reading of the appeal by the respondent to the Constitutional Court does not suggest that the finding made by this Court that the order of eviction, directed as it was against AMI Plc but executed against the applicant, a separate legal entity, was irregular and therefore null and void, is impugned. On the basis of the papers presented before the Supreme Court, the position must be accepted that the order of spoliation granted in the Magistrates Court was most irregular. Consequently, both the order of eviction itself as well as the order allowing execution notwithstanding the noting of an appeal were therefore a nullity.

In short, one must proceed on the basis that there never was a valid order of eviction in the first instance.

As a corollary therefore, the complaint that there was a violation of the right to the protection of the law is not sustainable, and, consequently, the conclusion is inescapable that the respondent does not have any reasonable prospects of success against the judgment of the Supreme Court, whatever its submissions may be on the other issues raised in the application before the Constitutional Court.

Nor can the decision to re-instate the respondent be said to be irregular or to raise any constitutional issue. The reinstatement was a consequence of the finding that the eviction itself was null and void. The reinstatement was a restoration of the status quo, which this Court, in the exercise of its powers both under section 22 and section 25 of the Supreme Court Act [Chapter 7:13] is clearly empowered to order…..,.

The order of spoliation issued by the Magistrates court was clearly irregular and moreso when regard is had to the fact that it was executed against a party not cited in the order itself.

On the potentiality of irreparable harm, if leave to execute is not granted, clearly the balance of convenience favours the applicant. On the known facts, the applicant was evicted on the basis of an order which cited AMI Plc as the party despoiling, and in circumstances where such spoliation had not been proved. The applicant was evicted in 2011 and clearly the potentiality of irreparable harm must be obvious….,.

In all the circumstances, it appears to me that the opposition to this application was intended merely to delay execution of the judgment of this Court….,.

Out of an abundance of caution, I have brought the contents of this judgment to the attention of MALABA DCJ and GOWORA JA, with whom I sat to hear the appeal that is now the subject of the Constitutional application. Our decision at the conclusion of the appeal was unanimous. Both have authorized me to indicate that they are in full agreement with the conclusion arrived at in this judgment.

Accordingly, it is ordered as follows:

1. The application to execute the judgment of the Supreme Court in SC43-14, notwithstanding the filing of an appeal to the Constitutional Court, be and is hereby granted.

Appealed
SC74-14 : SUPERBAKE BAKERIES (PRIVATE) LIMITED vs RUMTOWERS SECURITY (PRIVATE) LIMITED
Ruled By: GWAUNZA JA, GARWE JA and GUVAVA JA

At the hearing of the appeal, the appellant was in default although it had filed heads of arguments and had been served with a notice of set down at the last known address following the renunciation of agency by its erstwhile legal practitioners. The matter was dealt with on the merits, reliance being placed on ...

SC54-13 : MIDKWE MINERALS (PRIVATE) LIMITED vs KWEKWE CONSOLIDATED GOLD MINES PL and CARSLONE ENTERPRISES PL and DEPUTY SHERIFF, KWEKWE
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JA and MUTEMA AJA

Before concluding this judgment, I wish to express the disapproval of this Court of the manner in which this appeal was conducted by the appellant. At the onset of the hearing, counsel for the appellant made an application to have the matter struck off the roll. The reason tendered for this application was that Advocate ...

SC52-14 : RAINBOW TOURISM GROUP vs FARAI KABASA and SHERIFF HARARE N.O.
Ruled By: CHIDYAUSIKU CJ

Where the law is uncertain and a decision is pending in the Supreme Court, a Judge of the lower court cannot hold that such an appeal has no prospects of success on appeal.

Appealed
SC29-16 : EL ELION INVESTMENTS (PRIVATE) LIMITED vs AUCTION CITY (PRIVATE) LIMITED
Ruled By: MALABA DCJ, GUVAVA JA and UCHENA JA

It is accepted that a point of law can be raised at any stage of the process - even on appeal. The law on the raising of points law for the first time on appeal is clear and has been articulated in a plethora of cases. In Muchakata v Netherburn Mine 1996 (1) ...

SC34-16 : ROGERIO BARBOSA DE SA vs HERLANDER BARBOSA DE SA
Ruled By: GARWE JA, HLATSHWAYO JA and GUVAVA JA

The first preliminary point raised by counsel for the respondent was that the appellant had filed his heads of argument out of time. In terms of Rule 43(1) of the Supreme Court Rules, 1964 the Registrar is required to call upon the appellant to file heads of argument once he has received the record ...

SC37-16 : MARANGE RESOURCES (PVY) LTD vs CORE MINING & MINERALS PL (IN LIQUIDATION), MOSES CHINHENGO (RETIRED JUDGE) N.O., PRESIDENT, LAW SOCIETY OF ZIMBABWE N.O., ATTORNEY GENERAL OF ZIMBABWE N.O.
Ruled By: MALABA DCJ, HLATSWAYO JA and GUVAVA JA

The relief sought by the appellant is crafted as follows: “Appellant seeks the following relief: 1. That the instant appeal succeeds with costs. 2. That the judgment of the court a quo be overturned to read as follows: “Pending the final determination of Case No. HC8410/10 and criminal trial under Case No. CRB/10, 1st, 2nd, 3rd and 4th Respondents be ...

SC42-16 : SOUTHEND CARGO AIRLINES (PRIVATE) LIMITED and STEPHEN CHITUKU and PATIENCE CHITUKU vs INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE
Ruled By: BHUNU JA

Turning to the objection of failure to comply with Rule 34, the Rule requires an appellant to pay for the preparation of the record or make an acceptable written undertaking to pay to the Registrar unless he is suing in forma pauperis. It reads: “(1) The appellant, unless he has been granted leave to appeal ...

“(1) The appellant, unless he has been granted leave to appeal in forma pauperis shall, at the time of the noting of an appeal in terms of Rule 29 or within such period therefrom, not exceeding five days, as the Registrar of the High Court may allow, deposit with the said Registrar the estimated cost of the preparation of the record in the case concerned:

Provided that the Registrar of the High Court may, in lieu of such deposit, accept a written undertaking by the appellant or his legal representative for the payment of such cost immediately after it has been determined.”

Counsel for the applicant stated, from the bar, that the Rule had been complied with.

The applicant's founding affidavit does not, however, deal with the issue and no proof of payment or written undertaking to pay was furnished. The applicant was therefore unable to discharge the onus of proving compliance with Rule 34.

The Rule is couched in peremptory terms.

Once the issue of non-compliance had been raised it was incumbent upon the applicant to furnish proof of compliance with the Rule.

This the applicant did not do.

Rule 34 provides a penalty for non-compliance under sub-rule (5) which provides that:

“(5) If the appellant fails to comply with the provisions of subrule (1), or any written undertaking made in terms of the proviso to that subrule, the appeal shall be deemed to have lapsed unless a judge grants relief on cause shown.”

The applicant, apart from his mere say so, has not furnished any proof of compliance with the mandatory provisions of Rule 34.

The applicants' failure to provide proof of compliance leads to the inexorable conclusion that they did not comply with the mandatory provisions of Rule 34. No explanation has been furnished for their failure to furnish proof of compliance. In the absence of any plausible explanation, I cannot grant them relief for the flagrant disdain of the mandatory Rule of Court. The conclusion that there is no valid appeal pending before this court is inescapable in light of the applicant's own admission to that effect.

That finding has fatal consequences to the applicants' application.

CC08-17 : THE COLD CHAIN (PRIVATE) LIMITED T/A SEA HARVEST vs ROBSON MAKONI
Ruled By: MALABA DCJ

This is a chamber application for leave to appeal to the Constitutional Court, from a decision of the Supreme Court in terms of Rule 32(2) of the Constitutional Court Rules SI61 of 2016.The Rule provides that “a litigant who is aggrieved by the decision of a subordinate court, on a ...

SC111-04 : ASSOCIATED NEWSPAPERS OF ZIMBABWE (PRIVATE) LIMITED vs THE MINISTER OF STATE FOR INFORMATION AND PUBLICITY and MEDIA AND INFORMATION COMMISSION and THE ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, CHEDA JA, ZIYAMBI JA, MALABA JA and GWAUNZA JA

JURISDICTION OF THE ADMINISTRATIVE COURT TO ORDER THE EXECUTION OF ITS OWN JUDGMENT DESPITE THE NOTING OF AN APPEALI turn now to the issue of whether or not the Administrative Court had jurisdiction to order the execution of its judgment despite the noting of an appeal.The President of the Administrative Court concluded that ...

JURISDICTION OF THE ADMINISTRATIVE COURT TO ORDER THE EXECUTION OF ITS OWN JUDGMENT DESPITE THE NOTING OF AN APPEAL

I turn now to the issue of whether or not the Administrative Court had jurisdiction to order the execution of its judgment despite the noting of an appeal.

The President of the Administrative Court concluded that he had jurisdiction to determine the issue of whether the Administrative Court has jurisdiction to order execution of its own judgments despite the noting of an appeal. He concluded that section 19(2)(b) of the Administrative Court Act conferred on him such jurisdiction.

He clearly erred in this regard.

The Administrative Court does not have jurisdiction to order the execution of its judgment when an appeal is noted.

At common law, the noting of an appeal suspends the operation of a judgment. This point is well settled.

However, a court of inherent jurisdiction has jurisdiction to order the execution of its own judgments despite the noting of an appeal. In other words, a court of inherent jurisdiction can alter the common law position.

In the case of Copthall Stores Ltd v Willoughby's Consolidated Co. Ltd 1913 AD 305, BUCHANAN J had this to say…,:

“I am of opinion that the Appellate Division has an inherent right to control its own judgments, and, in the light of the circumstances of each case, to say whether or not execution should be suspended pending such an application to (the) Privy Council.”…,.

The Copthall Stores Ltd v Willoughby's Consolidated Co. Ltd 1913 AD 305 case was cited with approval by DE VILLIERS ACJ in Fismer v Thornton 1929 AD 17…, where the learned ACTING CHIEF JUSTICE had this to say:

“Now, although there is no right of appeal to the Privy Council and no provision in our rules for staying execution, this Court, in Copthall's Stores Ltd v Willoughby's Consolidated Company Ltd (1913 AD 305), laid it down that it has an inherent right to control its own judgments, and, in the light of the circumstances of each case, to say whether or not execution should be suspended pending an application to (the) Privy Council for special leave to appeal. Since then, the Court has, on several occasions, granted a temporary stay, but this has been done only on an order for specific performance or for a declaration of rights.”…,.

The same view was echoed by CORBETT JA…, in the case of South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (AD) …, where the learned JUDGE OF APPEAL concluded:

“Whatever the true position may have been in the Dutch Court, and more particularly the Court of Holland (as to which see Ruby's Cash Store (Pty) Ltd v Estate Marks and Anor 1961 (2) SA 118 (T) at pp 120-3), it is today the accepted common law rule of practice in our Courts that generally the execution of a judgment is automatically suspended upon the noting of an appeal, with the result that, pending the appeal, the judgment cannot be carried out and no effect can be given thereto, except with the leave of the Court which granted the judgment. To obtain such leave the party in whose favour the judgment was given must make special application. (See generally Olifants Tin 'B' Syndicate v De Jager 1912 AD 377 at p 481; Reid and Anor v Godart and Anor 1938 AD 511 at p 513; Gentiruco A.G. v Firestone SA (Pty) Ltd 1972 (1) SA 589 (AD) at p 667; Standard Bank of SA Ltd v Stama (Pty) Ltd 1975 (1) SA 730 (AD) at p 746). The purpose of this rule, as to the suspension of a judgment on the noting of an appeal, is to prevent irreparable damage from being done to the intending appellant, either by levy under a writ of execution or by execution of the judgment in any other manner appropriate to the nature of the judgment appealed from (Reid's case supra at p 513). The Court to which application for leave to execute is made has a wide general discretion to grant or refuse leave, and, if leave be granted, to determine the conditions upon which the right to execute shall be exercised (see Voet 49.7.3; Ruby's Cash Store (Pty) Ltd v Estate Marks and Anor supra at p 127). This discretion is part and parcel of the inherent jurisdiction which the Court has to control its own judgments (cf Fismer v Thornton 1929 AD 17 at p 19). In exercising this discretion, the Court should, in my view, determine what is just and equitable in all the circumstances, and, in doing so, would normally have regard, inter alia, to the following factors -…,.”…,.

It is quite clear from the above authorities that the power of a court to order execution of its own judgments despite the noting of an appeal is founded in the common law doctrine of inherent jurisdiction. It is trite that only superior courts enjoy inherent jurisdiction. In this country these are the High Court and the Supreme Court. Courts created by statute do not have inherent jurisdiction and consequently do not have power to order execution of their judgments unless such jurisdiction is conferred on them by the statute.

The jurisdiction of the Administrative Court is to be found within the four corners of the Administrative Court Act and any other enactment that confers upon it jurisdiction. It does not have inherent jurisdiction. Accordingly, it has no power to order execution of its own judgments despite the noting of an appeal.

As I have said earlier, the learned President of the Administrative Court concluded that section 19(2)(b) of the Administrative Court Act conferred on him such jurisdiction. He reasoned thus:

“In the case of South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 at p 549 CORBETT JA had this to say:

'In a wide and general sense the term 'interlocutory' refers to all orders pronounced by the court, upon matters incidental to the main dispute, preparatory to, or during the process of the litigation.'…,.

I accept counsel for the applicant's submissions that litigation is still in progress until the appeal court has pronounced (on) that appeal.

In the same case of South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (AD) CORBETT JA had this to say (at) p 551A:

'It remains to apply these principles to the case of an application for leave to execute a judgment pending an appeal. It seems clear that the litigation which resulted in the judgment being given against the applicant on 1 October 1976 (i.e. for the sum of R111,700=50, interest and costs) is still in progress. The appeal noted in this court is a step in that litigation and the case will not be concluded until this court has pronounced finally upon that appeal.'

The law, therefore, is clear as to when an interlocutory order can be applied for. The present application was made within the legal timeframe.

Having addressed myself to the provisions of section 19(2)(b) of the Administrative Court Act, and the law, I am quite satisfied that this court has the jurisdiction to hear this urgent chamber application before it.

In the result –

The point relating to the jurisdiction of this court, raised in limine, in this very court, is dismissed.”

Section 19 of the Administrative Court Act, in terms of which the President of the Administrative Court purported to assume jurisdiction, provides as follows:

“19 Appeal from decision of Court

(1) Subject to subsection (2) and except as otherwise provided in any other enactment, any person who is dissatisfied with any decision of the court may lodge an appeal with the Supreme Court within the period of twenty-one days immediately following the announcement by the court of such decision.

(2) Except as otherwise provided in any other enactment, no appeal shall lie from -

(a) Any order of the court or the President of the court made with the consent of the parties;

(b) An order as to costs only, or an interlocutory order or an interlocutory judgment, without the leave of the court or the President of the court, or, if such leave has been refused, without the leave of a judge of the Supreme Court.

(3)…,.”

The learned President of the Administrative Court clearly erred in interpreting the above section as conferring on him the jurisdiction to order execution of a judgment despite the noting of an appeal. A proper interpretation of section 19 of the Administrative Court Act reveals that it creates a right of appeal to the Supreme Court, to be exercised within twenty-one days of the handing down of a judgment. The right of appeal conferred on the litigant by section 19 is automatic - if exercised within the prescribed period. Subsection (1) of section 19 is explicit in this regard. Subsection (2) of section 19 is a derogation of the right conferred in subsection (1). It is a derogation in that –

(a) There is no appeal against an order by consent of the Administrative Court; and

(b) An appeal against an order as to costs or against an interlocutory order or an interlocutory judgment can only be exercised with the leave of the court or the President of the court or, if such leave has been refused, with the leave of a judge of the Supreme Court.

Section 19 does not, expressly or by implication, confer on the Administrative Court either the power or the jurisdiction to order execution of its own judgments despite the noting of an appeal. Section 19 merely defines the litigant's right of appeal from the Administrative Court to the Supreme Court.

If the Administrative Court had the jurisdiction to order execution of its judgment pending appeal, derived from the Administrative Court Act, then any litigant who wishes to appeal against such a judgment or order would fall within the ambit of section 19(2)(b) and would need the leave of the Administrative Court to appeal, as it would be an interlocutory order or judgment.

That, in my view, is the effect of the case of South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (AD) which the learned President sought to rely on….,.

The South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (AD) case is no authority for the proposition that a statutory court, like the Administrative Court, has inherent jurisdiction which confers on it jurisdiction to order the execution of its own judgment despite the noting of an appeal.

Having concluded that the Administrative Court has no jurisdiction to order the execution of its own judgment despite the noting of an appeal, the issue of whether this was a proper case for the issuance of such an order falls away.

It is on this basis that the appeal against the order of the Administrative Court ordering the execution of its judgment succeeds….,.

1….,.

2….,.

3. The appeal against the decision of the Administrative Court is allowed and the orders of the Administrative Court are hereby set aside.

SC17-17 : JOHN CHIKURA N.O. and DEPOSIT PROTECTION CORPORATION vs AL SHAM'S GLOBAL BVI LIMITED
Ruled By: ZIYAMBI JA, GOWORA JA and HLATSHWAYO JA

Procedure in terms of Rule 41 With regard to the procedure to be adopted, Rule 41 provides: “41. Preliminary objections A party to an appeal who intends to rely on a preliminary objection to any proceeding or to the use of any document shall give notice in writing of the objection to the Registrar and to the opposite ...

SC21-17 : THE PRESIDENT OF ZIMBABWE, ROBERT GABRIEL MUGABE (in his official capacity) and OTHERS vs MORGAN TSVANGIRAI (in his official capacity as Prime Minister of Zimbabwe and in his personal capacity)
Ruled By: CHIDYAUSIKU CJ

This is a Chamber application for leave to appeal in terms of Rule 30(c) of the Supreme Court Rules as read with section 43(2)(d) of the High Court Act [Chapter 7:06] (hereinafter referred to as "the Act"). At the conclusion of submissions by counsel, counsel for the respondent conceded that the applicants ...

SC30-17 : ALLIANCE INSURANCE vs IMPERIAL PLASTICS (PRIVATE) LIMITED and THE HONOURABLE JUDGE L.G. SMITH (RTD) N.O.
Ruled By: MALABA DCJ, MAVANGIRA JA and UCHENA JA

Before addressing the question for determination, it is prudent to highlight why the Court was of the view that the first ground of appeal was improperly before it. The ground of appeal…, states that Article 34 of the Arbitration Act [Chapter 7:15] is unconstitutional, as it fails to uphold the right to equal protection and ...

Before addressing the question for determination, it is prudent to highlight why the Court was of the view that the first ground of appeal was improperly before it.

The ground of appeal…, states that Article 34 of the Arbitration Act [Chapter 7:15] is unconstitutional, as it fails to uphold the right to equal protection and benefit of the law guaranteed in accordance with section 56(1) of the Constitution of Zimbabwe Amendment (No.20) Act, 2013.

The ground of appeal raises a Constitutional question which was never before the court a quo.

Counsel for the appellant persisted with this ground of appeal and urged the Court to find that Article 34 of the Arbitration Act [Chapter 7:15] is a violation of the appellant's rights.

This submission is erroneous.

A Constitutional question cannot be raised as a ground of appeal as it should arise in the context of proceedings. The Supreme Court is a court of record and deals with issues that were before the court of first instance. A Constitutional question does not just arise on appeal because it is merely contemplated in the mind of a litigant. It should be properly raised in the court a quo for the Court to determine it.

The Court will also state that this is a classic display of mala fides by the appellant as it is clear that, having seen that its application in terms of the provision failed, it now seeks an order declaring the same provision unconstitutional.

It is trite that where there are two courses of action open to a litigant, as the appellant had, to either challenge the constitutionality of Article 34 of the Arbitration Act [Chapter 7:15] or apply for the setting aside of the arbitral award in terms of that provision, and it unequivocally elected to take one of them, it cannot turn round afterwards and take the other course of action. The point was made in S v Marutsi 1990 (2) ZLR 370…, that:

“It is trite that a litigant cannot be allowed to approbate and reprobate a step taken in the proceedings. He can only do one or the other, not both.”

The appellant cannot succeed in adopting a position contrary to the one it elected on appeal simply because its application failed in the court a quo.

The ground of appeal was therefore improperly raised as it was not an issue before the court a quo.

SC49-17 : PHILLIP ELLSE vs MICHAEL JOHNSON
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

It is trite that a point of law can be raised at any stage, even on appeal, if it will cause no prejudice to the other party. See the cases of Austerlands (Pvt) Ltd v Trade Investment Bank Others 2006 (1) ZLR 372 (S)…,.; Gazi v NRZ SC60-15; ...

SC59-17 : RAYMOND KASEKE vs A A MUSUNGA and PATRICIA DHLAKAMA and THE REGISTRAR OF DEEDS
Ruled By: GWAUNZA JA, GUVAVA JA and BHUNU JA

I am satisfied, when all is told, that this appeal is without merit, and, in effect, comes very close to being an abuse of the right of appeal. This is particularly so, given the inordinate delay, of some 16 years, in bringing this matter to finality.

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

In the case of Zimbabwe Mining Development Corporation Anor v African Consolidated Resources PLOC SC01-10, CHIDYAUSIKU CJ stated the following: “The right of appeal is fundamental and critical to our justice system. Where the law confers the right of appeal on a litigant it should not be rendered nugatory or abrogated without due ...

HH20-15 : MUSIMWA & ASSOCIATES LEGAL PRACTITIONERS and KELVIN MUSIMWA vs PHOEBE ZILINDA and ANGELA MADYAMBUDZI
Ruled By: UCHENA J and MWAYERA J

Respondents' Letters of Administration The appellants submitted that the respondents who were representing a deceased estate should have furnished the court with properly issued out Letters of Administration. The issue of locus standi should be raised as a special plea or a preliminary issue which can be determined separately before the hearing or at the hearing of ...

HH20-15 : MUSIMWA & ASSOCIATES LEGAL PRACTITIONERS and KELVIN MUSIMWA vs PHOEBE ZILINDA and ANGELA MADYAMBUDZI
Ruled By: UCHENA J and MWAYERA J

It is now trite that a point of law can be raised at any stage - even on appeal. See the cases of Trustees, Leonard Cheshire Homes Zimbabwe Central Trust v Chite Ors 2010 (1) ZLR 631; Muchakata v Nertherburn Mine 1996 (1) ZLR 153 (S)…,.; Nissan Zimbabwe (Pvt) Ltd v ...

HH22-15 : MILTON MADYAUTA vs MAZVIONA MADZIVA
Ruled By: UCHENA J and MWAYERA J

It is trite that a point of law can be raised at any stage - even on appeal. See the cases of Trustees, Leonard Cheshire Homes Zimbabwe Central Trust v Chite Ors 2010 (1) ZLR 631; Muchakata v Nertherburn Mine 1996 (1) ZLR 153 (S)…,.; Nissan Zimbabwe (Pvt) Ltd v Hopitt (Pvt) ...

HH59-15 : REUBEN MARUMAHOKO and EDWARD CHIMEDZA and NEVER CHIROWAPASI vs PROVINCIAL MINING DIRECTOR, MASHONALAND WEST (N.O) and OFFICER IN CHARGE, ZIMBABWE REPUBLIC POLICE (N.O.)
Ruled By: MUREMBA J

At law, a person can only appeal against a determination not a recommendation.

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

This is an urgent chamber application for leave to appeal against a judgment of this court in Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 handed down on 11 February 2015. The application was filed on 26 February 2015….,. The parties have been engaged in protracted litigation dating back from 2002 over allegations by the applicant of sexual ...

HB110-16 : FELIX SANGU vs COMMISSIONER GENERAL OF POLICE and THE BOARD OF SUITABILITY and CHIEF SUPERINTENDENT MBENGWA
Ruled By: MATHONSI J

Section 171(1)(b) of the Constitution provides that the High Court may only exercise appellate jurisdiction conferred to it by an Act of Parliament. See also section 30(1) of the High Court Act [Chapter 7:06].

HHB125-16 : THE PROSECUTOR GENERAL OF ZIMBABWE vs TENDAI CHINEMBIRI
Ruled By: MAKONESE J

It is trite that there is no set time limit for the filing of an application for leave to appeal. Such an application, in my view, should be brought within a reasonable time. See Attorney General v Lafleur Another 1998 (1) ZLR 520 (H) and Prosecutor General v Beatrice Mtetwa Anor HH82-16. The overriding principle ...

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Law Portal Zimbabwe

Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Approach and the Right of Appeal

SC18-12 : RONI MASEKESA vs KINGDOM FINANCIAL HOLDINGS Ruled By: ZIYAMBI JA

HH13-09 : BORDER TIMBERS LIMITED vs ZIMBABWE REVENUE AUTHORITY Ruled By: MAKARAU JP

SC28-09 : NYASHA CHIKAFU vs DODHILL (PRIVATE) LIMITED AND SIMON DONALD KEEVIL AND ANOTHER Ruled By: CHIDYAUSIKU CJ

HH30-12 : VARAIDZO MATEKO vs ZENUS BANDA Ruled By: MAVANGIRA J

HH01-08 : SIMON FRANCIS MANN vs THE REPUBLIC OF EQUATORIAL GUINEA Ruled By: MAKARAU JP and PATEL J

HH130-09 : INVICTUS (PRIVATE) LIMITED vs SCHALK LESSING Ruled By: GOWORA J

HH19-10 : FORRESTER ESTATE (PRIVATE) LIMITED vs M.C.R. VENGESAYI and THE MINISTER OF LANDS IN THE OFFICE OF THE PRESIDENT AND CABINET Ruled By: PATEL J

HH36-10 : BRANSON MARKETING (PRIVATE) LIMITED vs NATIONAL BLANKETS LIMITED Ruled By: KUDYA J

SC06-13 : UNIVERSITY OF ZIMBABWE vs KWANELE MURIEL JIRIRA and LOUIS MASUKO and THE DEPUTY SHERIFF, HARARE N.O. Ruled By: ZIYAMBI JA

SC10-13 : BISHOP ELSON JAKAZI and THE BOARD OF TRUSTEES ANGLICAN DIOCESE OF MANICALAND vs ANGLICAN CHURCH CENTRAL AFRICA and REVEREND JOSEPH CHIPUDHLA and RIGHT REVEREND RALPH PETER HATENDI Ruled By: ZIYAMBI JA

HH05-11 : U-TOW TRAILERS (PVT) LTD vs CITY OF HARARE and SUPERLUX TRAILERS (PVT) LTD Ruled By: CHATUKUTA J

HH16-11 : WILLARD MAZHAWIDZA and DORNICA MAZHAWIDZA vs ISAYA MASHAYAKARARA Ruled By: CHATUKUTA J

HB26-11 : LESLIE KHUMALO vs VISION SITHOLE Ruled By: MATHONSI J

HH222-10 : FORRESTER ESTATE (PRIVATE) LIMITED vs LOVEMORE MAKUNUN'UNU and THE MINISTER OF LANDS, LAND REFORM AND RESETTLEMENT N.O. Ruled By: MAKONI J

HH232-10 : ANDREW RICHARD BRUFORD vs THE ATTORNEY GENERAL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MAGISTRATE JARABINI and OTHERS Ruled By: CHIWESHE JP

HH232-10 : ANDREW RICHARD BRUFORD vs THE ATTORNEY GENERAL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MAGISTRATE JARABINI and OTHERS Ruled By: CHIWESHE JP

HB131-11 : POTENTIAL INVESTMENTS (PVT) LTD and RALEMA INVESTMENTS (PVT) LTD vs JOSEPH TAYALI (in his personal capacity) and TAYALI AND SONS and NERGER PROPERTIES (PVT) LTD Ruled By: NDOU J

HB106-10 : THWASILE NGWENYA vs MHLUPHEKI HLABANGANA and MESSENGER OF COURT Ruled By: MATHONSI J

HB106-10 : THWASILE NGWENYA vs MHLUPHEKI HLABANGANA and MESSENGER OF COURT Ruled By: MATHONSI J

HB136-10 : POTENTIAL INVESTMENTS and RALEMA INVESTMENTS and NERGER PROPERTIES vs JOSEPH TAYALI and TAYALI AND SONS and NERGER PROPERTIES and POTENTIAL INVESTMENTS and RALEMA INVESTMENTS Ruled By: NDOU J

HH31-14 : RIOZIM LIMITED vs AFRICAN EXPORT-IMPORT BANK Ruled By: CHIGUMBA J

HH303-14 : BRIGHTON NZARA vs CALISTO TSANYAU & OTHERS Ruled By: MATHONSI J

SC17-14 : ANTHONY HICKEY vs DMC HOLDINGS PL and CHRISTMAS GIFT PL and ROGERIO B.A. DE SA and NATIONAL SOCIAL SECURITY AUTHORITY Ruled By: ZIYAMBI JA, GARWE JA and PATEL JA

HB37-14 : STANBIC BANK ZIMBABWE LIMITED vs NEIL WILLIAM RIX and FRANCOIS VAN DER ZEE and ALCO FOREST INDUSTRIES (PVT) LTD Ruled By: KAMOCHA J

HB108-14 : ELIPHAS KAWA vs VICTOR MUZENDA and THE ASSISTANT MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS and VICTOR MUZENDA N.O. and ZEXCOM (PVT) LTD Ruled By: TAKUVA J

HB108-14 : ELIPHAS KAWA vs VICTOR MUZENDA and THE ASSISTANT MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS and VICTOR MUZENDA N.O. and ZEXCOM (PVT) LTD Ruled By: TAKUVA J

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

SC72-14 : STREAMSLEAGH INVESTMENTS (PRIVATE) LIMITED vs AUTOBAND INVESTMENTS (PRIVATE) LIMITED Ruled By: GARWE JA

Appealed SC74-14 : SUPERBAKE BAKERIES (PRIVATE) LIMITED vs RUMTOWERS SECURITY (PRIVATE) LIMITED Ruled By: GWAUNZA JA, GARWE JA and GUVAVA JA

SC54-13 : MIDKWE MINERALS (PRIVATE) LIMITED vs KWEKWE CONSOLIDATED GOLD MINES PL and CARSLONE ENTERPRISES PL and DEPUTY SHERIFF, KWEKWE Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JA and MUTEMA AJA

SC52-14 : RAINBOW TOURISM GROUP vs FARAI KABASA and SHERIFF HARARE N.O. Ruled By: CHIDYAUSIKU CJ

Appealed SC29-16 : EL ELION INVESTMENTS (PRIVATE) LIMITED vs AUCTION CITY (PRIVATE) LIMITED Ruled By: MALABA DCJ, GUVAVA JA and UCHENA JA

SC34-16 : ROGERIO BARBOSA DE SA vs HERLANDER BARBOSA DE SA Ruled By: GARWE JA, HLATSHWAYO JA and GUVAVA JA

SC37-16 : MARANGE RESOURCES (PVY) LTD vs CORE MINING & MINERALS PL (IN LIQUIDATION), MOSES CHINHENGO (RETIRED JUDGE) N.O., PRESIDENT, LAW SOCIETY OF ZIMBABWE N.O., ATTORNEY GENERAL OF ZIMBABWE N.O. Ruled By: MALABA DCJ, HLATSWAYO JA and GUVAVA JA

SC42-16 : SOUTHEND CARGO AIRLINES (PRIVATE) LIMITED and STEPHEN CHITUKU and PATIENCE CHITUKU vs INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE Ruled By: BHUNU JA

CC08-17 : THE COLD CHAIN (PRIVATE) LIMITED T/A SEA HARVEST vs ROBSON MAKONI Ruled By: MALABA DCJ

SC111-04 : ASSOCIATED NEWSPAPERS OF ZIMBABWE (PRIVATE) LIMITED vs THE MINISTER OF STATE FOR INFORMATION AND PUBLICITY and MEDIA AND INFORMATION COMMISSION and THE ATTORNEY-GENERAL OF ZIMBABWE Ruled By: CHIDYAUSIKU CJ, CHEDA JA, ZIYAMBI JA, MALABA JA and GWAUNZA JA

SC17-17 : JOHN CHIKURA N.O. and DEPOSIT PROTECTION CORPORATION vs AL SHAM'S GLOBAL BVI LIMITED Ruled By: ZIYAMBI JA, GOWORA JA and HLATSHWAYO JA

SC21-17 : THE PRESIDENT OF ZIMBABWE, ROBERT GABRIEL MUGABE (in his official capacity) and OTHERS vs MORGAN TSVANGIRAI (in his official capacity as Prime Minister of Zimbabwe and in his personal capacity) Ruled By: CHIDYAUSIKU CJ

SC30-17 : ALLIANCE INSURANCE vs IMPERIAL PLASTICS (PRIVATE) LIMITED and THE HONOURABLE JUDGE L.G. SMITH (RTD) N.O. Ruled By: MALABA DCJ, MAVANGIRA JA and UCHENA JA

SC49-17 : PHILLIP ELLSE vs MICHAEL JOHNSON Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

SC59-17 : RAYMOND KASEKE vs A A MUSUNGA and PATRICIA DHLAKAMA and THE REGISTRAR OF DEEDS Ruled By: GWAUNZA JA, GUVAVA JA and BHUNU JA

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

HH20-15 : MUSIMWA & ASSOCIATES LEGAL PRACTITIONERS and KELVIN MUSIMWA vs PHOEBE ZILINDA and ANGELA MADYAMBUDZI Ruled By: UCHENA J and MWAYERA J

HH20-15 : MUSIMWA & ASSOCIATES LEGAL PRACTITIONERS and KELVIN MUSIMWA vs PHOEBE ZILINDA and ANGELA MADYAMBUDZI Ruled By: UCHENA J and MWAYERA J

HH22-15 : MILTON MADYAUTA vs MAZVIONA MADZIVA Ruled By: UCHENA J and MWAYERA J

HH59-15 : REUBEN MARUMAHOKO and EDWARD CHIMEDZA and NEVER CHIROWAPASI vs PROVINCIAL MINING DIRECTOR, MASHONALAND WEST (N.O) and OFFICER IN CHARGE, ZIMBABWE REPUBLIC POLICE (N.O.) Ruled By: MUREMBA J

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

HB110-16 : FELIX SANGU vs COMMISSIONER GENERAL OF POLICE and THE BOARD OF SUITABILITY and CHIEF SUPERINTENDENT MBENGWA Ruled By: MATHONSI J

HHB125-16 : THE PROSECUTOR GENERAL OF ZIMBABWE vs TENDAI CHINEMBIRI Ruled By: MAKONESE J

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Law Portal
Zimbabwe

SC18-12 : RONI MASEKESA vs KINGDOM FINANCIAL HOLDINGS
Ruled By: ZIYAMBI JA

HH13-09 : BORDER TIMBERS LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: MAKARAU JP

SC28-09 : NYASHA CHIKAFU vs DODHILL (PRIVATE) LIMITED AND SIMON DONALD KEEVIL AND ANOTHER
Ruled By: CHIDYAUSIKU CJ

HH30-12 : VARAIDZO MATEKO vs ZENUS BANDA
Ruled By: MAVANGIRA J

HH01-08 : SIMON FRANCIS MANN vs THE REPUBLIC OF EQUATORIAL GUINEA
Ruled By: MAKARAU JP and PATEL J

HH130-09 : INVICTUS (PRIVATE) LIMITED vs SCHALK LESSING
Ruled By: GOWORA J

HH19-10 : FORRESTER ESTATE (PRIVATE) LIMITED vs M.C.R. VENGESAYI and THE MINISTER OF LANDS IN THE OFFICE OF THE PRESIDENT AND CABINET
Ruled By: PATEL J

HH36-10 : BRANSON MARKETING (PRIVATE) LIMITED vs NATIONAL BLANKETS LIMITED
Ruled By: KUDYA J

SC06-13 : UNIVERSITY OF ZIMBABWE vs KWANELE MURIEL JIRIRA and LOUIS MASUKO and THE DEPUTY SHERIFF, HARARE N.O.
Ruled By: ZIYAMBI JA

SC10-13 : BISHOP ELSON JAKAZI and THE BOARD OF TRUSTEES ANGLICAN DIOCESE OF MANICALAND vs ANGLICAN CHURCH CENTRAL AFRICA and REVEREND JOSEPH CHIPUDHLA and RIGHT REVEREND RALPH PETER HATENDI
Ruled By: ZIYAMBI JA

HH05-11 : U-TOW TRAILERS (PVT) LTD vs CITY OF HARARE and SUPERLUX TRAILERS (PVT) LTD
Ruled By: CHATUKUTA J

HH16-11 : WILLARD MAZHAWIDZA and DORNICA MAZHAWIDZA vs ISAYA MASHAYAKARARA
Ruled By: CHATUKUTA J

HB26-11 : LESLIE KHUMALO vs VISION SITHOLE
Ruled By: MATHONSI J

HH222-10 : FORRESTER ESTATE (PRIVATE) LIMITED vs LOVEMORE MAKUNUN'UNU and THE MINISTER OF LANDS, LAND REFORM AND RESETTLEMENT N.O.
Ruled By: MAKONI J

HH232-10 : ANDREW RICHARD BRUFORD vs THE ATTORNEY GENERAL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MAGISTRATE JARABINI and OTHERS
Ruled By: CHIWESHE JP

HH232-10 : ANDREW RICHARD BRUFORD vs THE ATTORNEY GENERAL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MAGISTRATE JARABINI and OTHERS
Ruled By: CHIWESHE JP

HB131-11 : POTENTIAL INVESTMENTS (PVT) LTD and RALEMA INVESTMENTS (PVT) LTD vs JOSEPH TAYALI (in his personal capacity) and TAYALI AND SONS and NERGER PROPERTIES (PVT) LTD
Ruled By: NDOU J

HB106-10 : THWASILE NGWENYA vs MHLUPHEKI HLABANGANA and MESSENGER OF COURT
Ruled By: MATHONSI J

HB106-10 : THWASILE NGWENYA vs MHLUPHEKI HLABANGANA and MESSENGER OF COURT
Ruled By: MATHONSI J

HB136-10 : POTENTIAL INVESTMENTS and RALEMA INVESTMENTS and NERGER PROPERTIES vs JOSEPH TAYALI and TAYALI AND SONS and NERGER PROPERTIES and POTENTIAL INVESTMENTS and RALEMA INVESTMENTS
Ruled By: NDOU J

HH31-14 : RIOZIM LIMITED vs AFRICAN EXPORT-IMPORT BANK
Ruled By: CHIGUMBA J

HH303-14 : BRIGHTON NZARA vs CALISTO TSANYAU & OTHERS
Ruled By: MATHONSI J

SC17-14 : ANTHONY HICKEY vs DMC HOLDINGS PL and CHRISTMAS GIFT PL and ROGERIO B.A. DE SA and NATIONAL SOCIAL SECURITY AUTHORITY
Ruled By: ZIYAMBI JA, GARWE JA and PATEL JA

HB37-14 : STANBIC BANK ZIMBABWE LIMITED vs NEIL WILLIAM RIX and FRANCOIS VAN DER ZEE and ALCO FOREST INDUSTRIES (PVT) LTD
Ruled By: KAMOCHA J

HB108-14 : ELIPHAS KAWA vs VICTOR MUZENDA and THE ASSISTANT MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS and VICTOR MUZENDA N.O. and ZEXCOM (PVT) LTD
Ruled By: TAKUVA J

HB108-14 : ELIPHAS KAWA vs VICTOR MUZENDA and THE ASSISTANT MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS and VICTOR MUZENDA N.O. and ZEXCOM (PVT) LTD
Ruled By: TAKUVA J

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

SC72-14 : STREAMSLEAGH INVESTMENTS (PRIVATE) LIMITED vs AUTOBAND INVESTMENTS (PRIVATE) LIMITED
Ruled By: GARWE JA

Appealed
SC74-14 : SUPERBAKE BAKERIES (PRIVATE) LIMITED vs RUMTOWERS SECURITY (PRIVATE) LIMITED
Ruled By: GWAUNZA JA, GARWE JA and GUVAVA JA

SC54-13 : MIDKWE MINERALS (PRIVATE) LIMITED vs KWEKWE CONSOLIDATED GOLD MINES PL and CARSLONE ENTERPRISES PL and DEPUTY SHERIFF, KWEKWE
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JA and MUTEMA AJA

SC52-14 : RAINBOW TOURISM GROUP vs FARAI KABASA and SHERIFF HARARE N.O.
Ruled By: CHIDYAUSIKU CJ

Appealed
SC29-16 : EL ELION INVESTMENTS (PRIVATE) LIMITED vs AUCTION CITY (PRIVATE) LIMITED
Ruled By: MALABA DCJ, GUVAVA JA and UCHENA JA

SC34-16 : ROGERIO BARBOSA DE SA vs HERLANDER BARBOSA DE SA
Ruled By: GARWE JA, HLATSHWAYO JA and GUVAVA JA

SC37-16 : MARANGE RESOURCES (PVY) LTD vs CORE MINING & MINERALS PL (IN LIQUIDATION), MOSES CHINHENGO (RETIRED JUDGE) N.O., PRESIDENT, LAW SOCIETY OF ZIMBABWE N.O., ATTORNEY GENERAL OF ZIMBABWE N.O.
Ruled By: MALABA DCJ, HLATSWAYO JA and GUVAVA JA

SC42-16 : SOUTHEND CARGO AIRLINES (PRIVATE) LIMITED and STEPHEN CHITUKU and PATIENCE CHITUKU vs INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE
Ruled By: BHUNU JA

CC08-17 : THE COLD CHAIN (PRIVATE) LIMITED T/A SEA HARVEST vs ROBSON MAKONI
Ruled By: MALABA DCJ

SC111-04 : ASSOCIATED NEWSPAPERS OF ZIMBABWE (PRIVATE) LIMITED vs THE MINISTER OF STATE FOR INFORMATION AND PUBLICITY and MEDIA AND INFORMATION COMMISSION and THE ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, CHEDA JA, ZIYAMBI JA, MALABA JA and GWAUNZA JA

SC17-17 : JOHN CHIKURA N.O. and DEPOSIT PROTECTION CORPORATION vs AL SHAM'S GLOBAL BVI LIMITED
Ruled By: ZIYAMBI JA, GOWORA JA and HLATSHWAYO JA

SC21-17 : THE PRESIDENT OF ZIMBABWE, ROBERT GABRIEL MUGABE (in his official capacity) and OTHERS vs MORGAN TSVANGIRAI (in his official capacity as Prime Minister of Zimbabwe and in his personal capacity)
Ruled By: CHIDYAUSIKU CJ

SC30-17 : ALLIANCE INSURANCE vs IMPERIAL PLASTICS (PRIVATE) LIMITED and THE HONOURABLE JUDGE L.G. SMITH (RTD) N.O.
Ruled By: MALABA DCJ, MAVANGIRA JA and UCHENA JA

SC49-17 : PHILLIP ELLSE vs MICHAEL JOHNSON
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

SC59-17 : RAYMOND KASEKE vs A A MUSUNGA and PATRICIA DHLAKAMA and THE REGISTRAR OF DEEDS
Ruled By: GWAUNZA JA, GUVAVA JA and BHUNU JA

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

HH20-15 : MUSIMWA & ASSOCIATES LEGAL PRACTITIONERS and KELVIN MUSIMWA vs PHOEBE ZILINDA and ANGELA MADYAMBUDZI
Ruled By: UCHENA J and MWAYERA J

HH20-15 : MUSIMWA & ASSOCIATES LEGAL PRACTITIONERS and KELVIN MUSIMWA vs PHOEBE ZILINDA and ANGELA MADYAMBUDZI
Ruled By: UCHENA J and MWAYERA J

HH22-15 : MILTON MADYAUTA vs MAZVIONA MADZIVA
Ruled By: UCHENA J and MWAYERA J

HH59-15 : REUBEN MARUMAHOKO and EDWARD CHIMEDZA and NEVER CHIROWAPASI vs PROVINCIAL MINING DIRECTOR, MASHONALAND WEST (N.O) and OFFICER IN CHARGE, ZIMBABWE REPUBLIC POLICE (N.O.)
Ruled By: MUREMBA J

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

HB110-16 : FELIX SANGU vs COMMISSIONER GENERAL OF POLICE and THE BOARD OF SUITABILITY and CHIEF SUPERINTENDENT MBENGWA
Ruled By: MATHONSI J

HHB125-16 : THE PROSECUTOR GENERAL OF ZIMBABWE vs TENDAI CHINEMBIRI
Ruled By: MAKONESE J