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

SC01-10 : ZIMBABWE MINING DEVELOPMENT CORPORATION and MINERALS MARKETING CORPORATION OF ZIMBABWE vs AFRICAN CONSOLIDATED RESOURCES PLC and OTHERS
Ruled By: CHIDYAUSIKU CJ

This is a Chamber application in which the applicants seek to set aside an order by HUNGWE J. The order sought to be set aside provides that the learned Judge's judgment will not be suspended by the noting of an appeal. The order of the court a quo provides as follows:

“I therefore issue the following order:

1. The African Consolidated Resources P/L claims issued to the third, fourth, fifth and sixth applicants within the area previously covered by Extension Prospecting Order 1523 held by Kimberlitic Searches P/L are valid and have remained valid since the date they were originally pegged.

2. The right granted to the third respondent by virtue of the Special Grant shall not apply in respect of the African Consolidated Resources P/L claims area as indicated on annexure 'B' to the papers. In that regard, it is hereby ordered that the third respondent cease its prospecting and diamond mining activities in the said area.

IT IS FURTHER ORDERED AS FOLLOWS:

3. That the second respondent return to the applicants possession of the 129,400 carats of diamonds seized from the applicants' offices in Harare on 15 January 2007.

4. The second respondent return to the applicants all diamond(s) acquired by the second respondent from the African Consolidated Resources (P/L) claims area using the register kept by the second respondent in compliance with the Kimberley Process Certification Scheme.

5. That the fourth respondent be and is hereby ordered to direct (the) police to cease interfering with the applicants' prospecting and mining activities.

6. That the first, second and third respondents (pay) the applicants' cost(s) on a legal practitioner and client scale, the one paying the other to be absolved.

7. Any appeal noted against this order shall not suspend the operation of the order.”

Paragraph 7 of the above order authorises the respondents to execute the judgment despite the noting of an appeal against that judgment.

The applicants are dissatisfied with the order, and, having noted an appeal against the judgment, have filed this Chamber application.

The applicants contend that HUNGWE J misdirected himself in ordering execution of his judgment despite the noting of an appeal. They submitted that the grant of such an order, prior to the noting of an appeal, was irregular and should be set aside.

The applicants' case is set out in paragraphs 13-15 of the founding affidavit, which provide as follows:

“13. During argument, the respondents, who were the applicants in that matter, indicated to the court a quo that they would be amending their draft order to include a seventh paragraph to the effect that any appeal noted against that order would not suspend its operation.

14. Although no submissions were made by the first to the sixth respondents to justify the proposed amendment it was submitted, on the applicants' behalf, that such order was incompetent at this stage. It was also submitted that an applicant's recourse would be to apply for leave to execute pending appeal. It was further submitted that it is only after judgment has been delivered that any proper assessment can be made whether there has been any misdirection or not and that sometimes the aggrieved party may even easily show, to the satisfaction of the court, that indeed there has been such (misdirection).

15. The court a quo, in its judgment handed down later that day (the 24th of September 2009), granted the order as amended such that the appeal that the applicants subsequently filed, under Case No. SC230/09, did not suspend the operation of that order. A copy of the operative part of the judgment is attached hereto and marked 'A' and the yet to be typed full judgment as ANNEXURE 'B'.”

The respondents did not file any opposing affidavits.

Counsel for the first to the sixth respondents (hereinafter referred to as “the respondents”), during the course of his submissions, made averments to the effect that the application for execution of judgment despite the noting of an appeal was made during the course of the main hearing before judgment was given.

He, however, did not give details of the application. I will assume no detailed basis for the application was submitted to the court a quo.

The law on the effect of the noting of an appeal against a judgment is well settled.

At common law, the noting of an appeal against a judgment suspends the operation of that judgment. It is also trite that, at common law, the court granting the judgment enjoys inherent jurisdiction to order the execution of that judgment despite the noting of an appeal.

In the leading case of South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) CORBETT JA…, had this to say:

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

To obtain such leave, the party in whose favour the judgment was given must make special application. See, generally, Olifants Tin 'B' Syndicate v De Jager 1912 AD 377 at p481; Reid and Anor v Godart and Anor 1938 AD 511 at p513; Gentiruco A.G. v Firestone SA (Pty) Ltd 1972 (1) SA 589 (AD) at p667; Standard Bank of SA (Pty) Ltd v Stama (Pty) Ltd 1975 (1) SA 730 (AD) at p746.

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 p513).

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 p127). 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 p19).

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 on appeal (the 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 (the 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, eg. to gain time or harass the other party; and

(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.

See in this connection Ruby's case supra at pp127-8; also Rood v Wallach 1904 TS 257 at p259; Weber v Spira 1912 TPD 331 at pp333-4; Rand Daily Mails Ltd v Johnston 1928 WLD 85; Frankel v Pirie 1936 EDL 106 at pp114-6; Leask v French and Ors 1949 (4) SA 887 (C) at pp892-4; Ismail v Keshavjee 1957 (1) SA 684 (T) at pp688-9; Du Plessis v Van der Merwe 1960 (2) SA 319 (O).

Although most of the cases just cited dealt with the exercise of the Court's discretion under a statutory provision or Rule of Court, the statute or Rule concerned did not prescribe the nature of the discretion except in broad general terms (e.g. secs 36 and 39 of Proc. 14 of 1902 (T) empower the Court to give directions as 'may in each case appear to be most consistent with real and substantial justice') and the same general approach would be appropriate to the exercise of a discretion under the aforementioned rule of practice.”

South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) is clear authority for the proposition that before a court can exercise the discretion to order execution despite the noting of an appeal, the successful party has to make a special application for such relief.

For the court to be able to exercise this discretion properly, the special application must set out, in some detail, the basis for seeking such relief.

The respondent is entitled to an opportunity to respond to the application.

It is common cause that none of the respondents (then the applicants) in this case made a special application for leave to execute. They simply applied to amend the draft order to include paragraph 7 at some stage in the course of proceedings before judgment.

This, in my view, is totally inadequate because the court was not provided with details necessary for the proper exercise of its discretion.

South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) sets out, in some detail, the factors that a court takes into account in determining whether to grant or refuse the relief of execution despite the noting of an appeal.

There is no indication on the record, in particular in the reasons for judgment, that the learned Judge in the court a quo gave consideration to these or any other factors. The reasons for judgment do not indicate what the learned Judge took into account and what he did not take into account in arriving at the conclusion that there should be execution despite the noting of an appeal. Without reasons, it is impossible to understand the learned Judge's reasoning.

Failure to give reasons in an application to execute despite the noting of an appeal is a serious misdirection justifying the setting aside of such a determination.

On this ground alone, I would set aside the court a quo's order that there should be execution despite the noting of an appeal.

I have serious reservations on the propriety of a Judge, including in his main judgment, an order authorising execution despite the noting of an appeal against that judgment.

It is only in exceptional circumstances that such an order should be made part of the main judgment. For instance, if in a dispute over the custody of a minor child it is clear that the noting of an appeal will be used to facilitate the removal of the minor child from the jurisdiction of the court, such a course might be justified. In the absence of exceptional circumstances, due process must be observed before issuing such an order.

I hold this view because the litigant's right to appeal should not be abrogated lightly and without due process. The right of appeal is fundamental and critical to our justice system. Where the law confers the right of appeal on a litigant it should not be rendered nugatory or abrogated without due process.

Due process requires that a case proceeds to finality, namely, the giving of a judgment.

Once a judgment is given, the losing party, who has a right to appeal, is entitled, if he so wishes, to note an appeal. 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.

No doubt, in the making of that determination, the court will be guided by the factors set out in South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) and other factors relevant to the application.

This was not done in this case.

The applicants' right to be heard by the highest court in the land was rendered nugatory without any semblance of due process. No reasons were given. The failure to give reasons in this case smacks of arbitrariness and the ruling cannot be allowed to stand....,.

I made it very clear to the parties, at the conclusion of their submissions, that I intended to set aside the order to execute judgment despite the noting of an appeal made by HUNGWE J...,.

SC54-06 : VIGOUR FUYANA vs NTOMBAZA MOYO
Ruled By: CHIDYAUSIKU CJ

This is a Chamber application for the condonation of the late noting of an appeal. Although the applicant does not specifically aver this, I shall assume that the application is made in terms of Rule 31 of the Supreme Court Rules (“the Rules”).On 25 July 2005, SANDURA JA, sitting with ...

Appealed
SC89-20 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: HLATSHWAYO JA, BHUNU JA and UCHENA JA

This is an appeal against part of the judgment of the High Court upholding the respondent's claim of a 50% share of an immovable property registered in the appellant's name pursuant to the distribution of property upon divorce.THE FACTSThe appellant and respondent were married in 1970 in terms of an ...

THE FACTS

The appellant and respondent were married in 1970 in terms of an unregistered customary law union. In 1971, they solemnised their marriage in terms of the African Marriages Act [Chapter 105]. On 27 May 2005 they upgraded their marriage by solemnising it in terms of the Marriage Act [Chapter 5:11]. The union was blessed with four children who are now adults.

Sometime in 2010, the respondent issued summons for divorce in the High Court seeking the following order:

“(a) A decree of divorce.

(b) Maintenance for the plaintiff.

(c) Distribution of property as listed in paragraphs 10 and 11 of the papers.

(d) That each party bears his/her own costs."

The respondent claimed that the marriage had irretrievably broken down and there were no prospects of the restoration of a normal marriage relationship. She alleged that the appellant was involved in adulterous affairs with other women and bore children out of wedlock whom he brought to the matrimonial home to be taken care of by her among other factors.

The appellant conceded that the marriage had indeed irretrievably broken down. He argued that it was the respondent who was in fact involved in adulterous affairs with other men and denied ever committing adultery....,.

In spite of the parties' not having contested the granting of a decree of divorce, the court a quo inadvertently omitted to grant such order. Its order reads as follows:-

“Accordingly, it is ordered as follows:-

1. The plaintiff be and is hereby awarded a 50% share of the immovable property, namely, 114 Lomagundi Road, Harare held under Deed of Transfer 5772/83 in the name of Govati Mhora.

2. The defendant is awarded a 50% share in the said immovable property. The immovable property shall be valued by an independent valuator appointed by the Registrar of the High Court from the list of valuators within 30 days of the date of this order.

3. The parties shall meet the costs of valuation in equal proportions.

4. Each party is hereby granted the option to buy out the other's share in the immovable property within three months from the date of receipt of the valuation report.

5. In the event that the plaintiff fails to buy out the defendant or the defendant fails to buy out the plaintiff within the three months, or such longer time as the parties may agree on in writing, the property shall be sold to best advantage by an estate agent mutually agreed to by the parties, and, in the event that they fail to agree, by one appointed by the Registrar of the High Court.

6. The net proceeds, after deducting the Real Estate Agents fees and other attendant costs, shall be deposited into the Trust Account of Jessie Majome and Company Legal Practitioners or their successors in title, and, thereafter, shared between the parties in the ratio set out above.

7. The movable property is awarded as per the joint pre-trial conference minute date-stamped 13 October 2017.

8. Each party shall bear their own costs."

Contrary to the provisions of section 7(1) of the Matrimonial Causes Act [Chapter 5:13] the order omitted to grant a decree of divorce before distributing the parties matrimonial property.

Section 7(1) of the Matrimonial Causes Act provides as follows:-

“7(1) Subject to this section, in granting a decree of divorce, judicial separation, or nullity of marriage, or at any time thereafter, an appropriate court may make an order with regard to -

(a) The division, apportionment or distribution of the assets of the spouses, including an order that any asset be transferred from one spouse to the other;"

The omission, though not the basis of the appeal, affected the validity of the order granted by the court a quo. The order deals with the distribution of the parties' property without a decree of divorce. Distribution of property is a consequence of divorce. A court cannot therefore distribute the divorcing spouses' property without first granting them a decree of divorce.

The issue of the omission not having been canvassed at the hearing of the appeal, the court agreed that the parties be given an opportunity to make submissions on it. Counsel for both parties, in the presence of their clients were, on 14 February 2020, given an opportunity to make submissions on the court a quo's failure to grant a decree of divorce before distributing matrimonial property.

They agreed that the court a quo's failure to grant a decree of divorce was a serious omission which has to be attended to, or that the court a quo's order be set aside and the matter be remitted to the court a quo for it to decide on whether or not to correct the omission and grant a decree of divorce and attendant relief.

I agree that the order granted by the court a quo has to be attended to, but do not agree that it has to be set aside and the matter be remitted to the court a quo. Setting aside the order and remitting the matter to the court a quo will have the effect of removing this appeal from this Court as an appeal cannot be based on an order which has been set aside. It means another appeal will have to be noted if the court a quo corrects its order by granting a decree of divorce.

The setting aside of the court a quo's order and remittal is not consistent with the provisions of section 22(1)(a) and (b)(ix) of the Supreme Court Act [Chapter 7:13] which provides as follows:

“22(1) Subject to any other enactment, on the hearing of a civil appeal, the Supreme Court -

(a) Shall have power to confirm, vary, amend or set aside the judgment appealed against or give such judgment as the case may require;

(b) May, if it thinks it necessary or expedient in the interests of justice -

(i)…,.;

(ii)…,.;

(iii)…,.;

(iv)…,.;

(v)…,.;

(vi)…,.;

(vii)…,.;

(viii)…,.;

(ix) Take any other course which may lead to the just, speedy and inexpensive settlement of the case;"…,.

Section 22(1)(a) of the Supreme Court Act empowers this Court to, on the hearing of an appeal, vary or amend, the judgment appealed against or give such judgment as the case may require. Section 22(1)(b)(ix) empowers this Court to take any other course which may lead to the just, speedy, and inexpensive settlement of the case.

Section 22(1)(b)(ix) of the Supreme Court Act gives this court a wide discretion to take any other course to justly, speedily, and inexpensively resolve issues which the court has to deal with on appeal. Section 22(1)(b)(ix) of the Supreme Court Act was commented on and relied on by this court in the cases of Eastern Highlands Electrical (Pvt) Ltd v Gibson Investments (Pvt) Ltd 02-SC-026, SC26-02…,; Kambuzuma and Others v Athol Evans Hospital Home Complex 04-SC-118, SC118-04…,; and Hwange Colliery Company Ltd v Tendai Mukute & Another 16-SC-046, SC46-16…,.

See also the case of H Jordan v The Bloemfontein Transitional Local Authority & Another Supreme Court of Appeal of South Africa Case No 248/2002…, where the South African Supreme Court commented on the meaning of the words "take any other course which may lead to the just, speedy, and, as much as may be, inexpensive settlement of the case.”

In this case, the respondent instituted proceedings for divorce. The appellant conceded that the marriage had irretrievabley broken down. The court, by proceeding to distribute the parties' matrimonial property, can be assumed to have believed that it had granted a decree of divorce.

Setting aside the court a quo's order, and remitting the matter to the court a quo, is not in the interest of justice as it will delay the finalisation of the dispute between the parties and increase the expenses they have to incur in the hearing before the court a quo on remittal and the noting of and hearing of a fresh appeal, if the court a quo, on remittal, grants a decree of divorce and the order it had previously granted.

In my view, a correction of the court a quo's order, by adding a decree of divorce to it, will result in a just, speedy, and inexpensive resolution of the court a quo's inadvertent omission to grant a decree of divorce.

Accordingly, the court a quo's order is corrected by prefixing it with the words:

“A decree of divorce be and is hereby granted.”

SC19-12 : JAMESON RUSHWAYA and ANNIE RUSHWAYA and XELOD INVESTMENTS PL vs SWIMMING POOL & UNDERWATER REPAIRS PL and PATTERSON TIMBA and AEPROMM RESOURCES PL and TOLROSE INVESTMENTS PL
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA AJA

This is an appeal against a judgment of the High Court.

The second respondent (“Timba”) and the first and second appellants (“the Rushwayas”) are the majority and minority shareholders respectively in Aepromm Resources (Pvt) Ltd. On 3 May 2011, following a series of lawsuits, the Rushwayas entered into an agreement (“the Sale Agreement”) with Timba in which they sold, to the latter, their rights and interest in Tolrose Investments (Pvt) Ltd (“Tolrose”) and Aepromm (Pvt) Ltd (“Aepromm”) in contemplation of a 'clean break' between the parties.

It was a specific clause of the agreement that the assets, which included gold mine claims currently registered in the name of Xelod Investments (Pvt) Ltd, 'shall be immediately re-transferred to Tolrose and Aepromm, at any rate before the payment of the deposit.'

That agreement was meant to end all lawsuits between the parties.

However, on the 27 June 2011 the parties were again before the courts. This came about as follows:

Following the signature by the parties of the Sale Agreement, Timba appointed, as Accredited Agent for all mining rights registered in the name of Tolrose (Pvt) Ltd, one Stephenson Timba, who, in turn, appointed one Ernest Mudimu as Mining Manager of Tolrose. This caused Jameson Rushwaya to write, on or about 16 June 2011, to the Mining Engineer querying the appointment and complaining that, as the claim holder, he was not consulted on this appointment. The Mining Engineer, by letter dated 20 June 2011, and addressed to the Operator, Glencairn Mine, cancelling the appointment of Ernest Mudimu as Mine manager of Telrose, and suspending all operations at the mine pending 'proper Manager's appointment'.

The respondents brought an urgent application in the High Court seeking the following relief:

“TERMS OF THE FINAL ORDER SOUGHT

The decision by the first respondent, of 20 June 2011, be and is hereby set aside, and, accordingly, the suspension of mining operations at Glencairn Mine is uplifted immediately and that the parties resort (sic) to the status quo ante that prevailed prior to the aforesaid decision.

INTERIM RELIEF GRANTED

1. The operation of the decision by the first Respondent, on 20 June 2011, be and is hereby suspended pending the return date.

2. Second, Third and Fourth respondents be and are hereby interdicted from commencing any mining operations and interfering with any administrative operations whatsoever at Glencairn Mine.”

The respondents in the High Court were the Mining Engineer as the first respondent, Xelod Investments (Pvt) Ltd as the second respondent, and the Rushwayas as the third and fourth respondents.

The court a quo found in favour of the respondents and granted the order sought. It found that the decision to close mining operations was made without hearing the respondents in violation of the principles of natural justice.

It found, also, that the decision by the Mining Engineer amounted to a determination of the parties' contractual rights and that there was no basis on which the Mining Engineer could have entertained the determination of a contractual dispute between the parties.

It is against this order that the appellants now appeal.

They purport to appeal against the whole judgment of the court a quo. The Notice of Appeal contained no less than nine grounds of appeal.

It was contended, by counsel for the respondents, in his heads of argument, that there was no appeal before this Court as the Notice of Appeal was invalid for the following reasons:-

(i) There were four respondents in the court a quo of whom the Mining Engineer was the first and the main respondent in the matter. The substantive relief granted was against the Mining Engineer who did not appeal against the decision. Hence, the appellants brought an appeal against an order not made against them.

(ii)...,.

(iii)...,.

(iv)...,.

(v) The grounds of appeal were directed at the reasons for the judgment and not the decision of the court a quo. In any event, even if they did relate to the decision, the appeal would be met with the same fate because the party against whom the decision was given has not appealed against it....,.

Dealing with the first submission by counsel for the respondents, the Mining Engineer, against whom the order was given, did not appeal against it.

A litigant cannot appeal against an order not given against him.

The order suspending the operation of the Mining Engineer's letter was made against the Mining Engineer who was the first respondent in the court below and who has not appealed against the order. There is nothing on the record to suggest that the Mining Engineer was dissatisfied with the order of the court a quo.

The appellants had no locus standi to appeal against that part of the Order which was given against the Mining Engineer.

HH776-15 : LADRAX INVESTMENTS (PVT) LTD vs IGNATIOUS CHIRENJE and RUTENDO WILLA CHIRENJE
Ruled By: MATANDA-MOYO J

This is an application for leave to execute pending appeal.

This court, on 5 May 2015, granted judgment in favour of the applicant in the following;

(1) That the respondents, having been barred for failure to file heads of argument, the notice of opposition is accordingly struck off.

(2) Respondents' application for upliftment of bar is dismissed.

(3) The respondents, and all those who claim through them, be and are hereby ordered to vacate a certain subdivision A of Lot 16 Block B of Avondale also known as No.50 Broadlands Road, Emerald Hill, Harare within 48 hours of being served with writ of execution.

(3) In the event of the respondents failing to abide with paragraph 1, the Sheriff be and is hereby ordered to evict the respondents and all those who claim title through them.

(4) Respondents are ordered to pay costs of suit on a higher scale, jointly and severally, the one paying the other to be absolved.

The respondents noted an appeal against the above order, and, such appeal having the effect of suspending the order that brought this application.

The respondent opposed the application on the following grounds;

(a) That the court a quo is still to give its reasons for the order granted and this application cannot proceed without such reasons having been availed;

(b) That the court a quo adopted the wrong procedure in arriving at its decision. The court proceeded in terms of Rule 238(2b) of the High Court Rules and dealt with matter on the merits. The court was enjoined to consider the respondents case. By being barred for failure to file heads, the respondents only lost the right to make oral presentations. The court erred in striking off the notice of opposition and proceeding to deal with matter on the merits;

(c) That the appeal would be rendered academic should leave be granted; and

(d) That the balance of convenience favours the relief sought on the basis that the respondents are currently using the premises as their residence. Any harm suffered by the applicant could be cured by an order for damages.

The background to this matter has been well set out in the judgment of this court of 5 May 2015 and I shall not repeat same.

The applicant is the registered owner of the property in question, namely, Subdivision A of Lot 16 Block B of Avondale.

The applicant bought the property through a Sheriff's sale.

On 19 March 2013, the second respondent failed in his bid to have the sale set aside. The sale was confirmed and the property was duly transferred in January 2014.

After the respondents refused to vacate the premises, the applicant applied for their ejectment. The application was granted in default, after the court struck off the respondents' opposition for failure to file heads of argument. This resulted in the respondents noting an appeal to the Supreme Court on the above grounds.

Pending the determination of such appeal, the applicant sought leave to execute.

In assessing an application for leave to execute pending appeal, the court looks at various factors, amongst them the following;

(1) Whether irreparable harm or prejudice would be suffered by the appellant should leave be granted.

(2) Whether irreparable harm or prejudice would be suffered by the respondent should leave be refused.

(3) The prospects of success on appeal.

(4) The balance of convenience favours the granting of the relief sought.

The applicant submitted that should leave to execute not be granted, it will suffer irreparable harm. The applicant submitted that it is the registered owner of the property. As the owner, it is entitled to enjoy the benefits of such property. As the owner, the applicant is entitled to recover full possession of the property unless the person in possession has an enforceable right against the applicant.

The applicant submitted that the respondents have failed to establish any such right. The respondents have no means to settle the debt, as shown by the sale of the property in execution. There is a likelihood that the respondents would not be able to pay holding over damages being incurred with each extra day they are in occupation of the property. The applicant submitted that it would suffer irreparable financial prejudice should execution not be granted.

The respondents, on the other hand, submitted that they are currently using the property as their residence and would suffer irreparable harm should execution be granted. It is the respondents' submission that the applicant, being a corporate entity, could only incur financial harm which can be compensated by an award of damages.

Faced with the two competing interests of the applicant and the respondents, I must decide on the balance of convenience. Does the balance of convenience favour the granting of the relief sought or not?

It is my considered view that the harm which may occur or the respondents only relate to finding alternative accommodation to settle. On the other hand, the respondents' property was sold due to failure to settle a debt owed to Genesis Bank. There is no evidence before me that the respondents are able to settle the debt in question. Allowing the respondents to continue to incur further costs, by way of holding over damages, may result in the respondents continuing to incur charges they would not be able to pay.

On the other hand, the applicant is the registered owner of the property and the continued occupation of the property, by the respondents, prejudices the applicant more. As the owner, the applicant is entitled to the enjoyment of the property. The respondents, on the other hand, have not proferred any right entitling them to the property which could not be cured by an order of damages in the unlikely event that the respondents win the case.

This brings me to the question of prospects of success on appeal.

The major concern by the respondents, in the appeal, is that the reasons for granting the order in favour of the applicant were not available. At the date of hearing of the application, the parties conceded such reasons were available, thus discounting that ground.

The respondents challenged the procedure adopted by the court a quo in arriving at the decision.

Whilst that aspect is arguable – a reading of the judgment shows that the court a quo considered the issues and came to a determination.

In any case, if the respondents' complaint is that a default judgement was granted, then, its recourse is to apply for rescission of judgement. By noting an appeal, the respondents have realised that the judgement was on the merits.

I do not share the respondents' views that should execution proceed the appeal would be rendered academic.

The property is already in the applicant's name. All the papers reflect the applicant as the rightful owner of property and execution would not affect that. Should the respondents win the matter, ownership would have to be reversed and the respondents could still get the property back.

I am of the opinion that the appeal has been noted for purposes of delaying the day of reckoning.

In Econet v Telecel Zimbabwe (Pvt) Ltd 1998 (1) ZLR 156B…, SMITH J said:

“In determining an application for leave to execute pending 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 eg. to gain time or to harass the other party': see Fox and Carney (Pvt) Ltd v Carthew-Gabriel (2) 1997 (4) SA 970 (R) and ZDECO (Pvt) Ltd v Commercial Careers College (1980) (Pvt) Ltd 1991 (2) ZLR 61 H.”

Generally, the courts are reluctant to interfere with judicial sales in execution, where such sale has been confirmed and where transfer has already taken place: see Kanoyangwa v Messenger of Court and Others SC68-06.

For the above reasons, it is my view that the applicant has discharged the onus on it justifying the granting of the order sought.

Accordingly, I order as follows;

1. That the application for execution of judgment HH435-15 pending appeal be and is hereby granted.

2. The respondents shall pay costs of this application.

SC08-11 : ERIC FILON vs PUBLIC SERVICE COMMISSION and THE SECRETARY FOR WATER RESOURCES
Ruled By: CHIDYAUSIKU CJ

In Chambers: The legal point raised in this application is:Who should grant or refuse leave to appeal in terms of section 92F of the Labour Act [Chapter 28:01] in circumstances where the presiding President is unavailable?The relevant section provides:"92F Appeals against decisions of Labour Court(1) An appeal on a question ...

SC46-16 : HWANGE COLLIERY COMPANY LTD vs TENDAI MAKUTE and DEPUTY SHERIFF, HWANGE
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and HLATSHWAYO JA

After perusing papers filed of record and hearing counsel in this matter we allowed the appeal with costs. We indicated therein that our reasons would follow in due course. These are they.

The respondent was formerly employed by the appellant. Sometime in September 2012, the appellant obtained approval from the Ministry of Labour to send a number of employees on retrenchment.

The respondent was one of those affected by the exercise.

On 23 August 2012, the parties agreed a retrenchment package to be paid to the employees. The appellant, for reasons not germane to these proceedings, did not pay out.

On 19 March 2014, the respondent, under Case No. HC627/14, filed a chamber application to have the retrenchment package thus agreed registered by the High Court in Bulawayo. On 3 April 2014, the High Court issued an order against the appellant as follows:-

1. The Registrar of the High Court is directed to register the Retrenchment Award made in favour of the applicant as an order of this court.

2. The respondent shall pay to the applicant the sum of US$34,318=52 due to him in terms of such award.

3. The respondent shall pay the costs of this application.

The respondent then caused a writ of execution to be issued by the High Court. The Deputy Sheriff executed the writ and attached properties belonging to the appellant in satisfaction of the debt.

Upon service of the writ, the appellant attempted negotiations with the respondent to stay execution of the writ - to no avail. On 9 May 2014, seven days after being served with the writ, the appellant filed an urgent application to have the writ of execution stayed.

The application was dismissed by the High Court on the grounds that it was not urgent.

This appeal lies against that dismissal.

In sum, the appellant attacks the judgment on the grounds that the Court erred in the following respects:

(a) In holding, that, the appellant was aware of the registration of an award when in fact there was no such award;

(b) In failing to appreciate, that, the writ was premised on an order obtained ex parte without notice to the appellant;

(c) In failing to appreciate, that, the appellant only became aware of the order on 2 May 2014 upon service of the writ, and, that, consequently, the appellant had acted speedily in filing the application for stay of execution;

(d) In holding, as it did, that the application was prompted by, firstly, the imminent removal of its goods, and, secondly, the appellant's inability to pay its obligations in terms of the award when there was no award;

(e) In holding, as it did, that, the fact that the appellant might have owed the respondent was the only decisive factor and that the procedure by which the payment was sought was inconsequential.

The court a quo concluded, that, the application for a stay of execution of the writ was not urgent on two bases:

(i) The first was the appellant was aware, not only of the existence of “the award” but also of its registration and yet took no action in relation thereto.

(ii) The second basis was that the appellant had, as far back as September 2012, been aware of its financial obligations viz a vis the retrenchment packages and had made no effort whatsoever to pay the retrenchees.

The court therefore reasoned, that, due to the above circumstances, the only motive for the application was the appellant's inability to pay and its desire to postpone the imminent removal of its property in execution of the writ.

I intend to dispose, first, of the question of the registration of the award.

The order in relation to the said award was issued by the High Court on 3 April 2014. The order was premised on a chamber application filed on 19 March 2014.

It is common cause, that, the application itself was never served on the appellant.

The contention is made, that, the learned judge who granted the application had raised a query on the failure to serve the application on the appellant. It is further common cause, that, in answer to the query the respondent's legal practitioner informed the judge that the application was procedural and therefore there was no need to serve the application.

As is evident from the record, this was inaccurate.

The order granted dealt with substantive issues, including an order for the payment of a specified sum of money to the respondent. Thus, the application could not, in any circumstance, be termed procedural.

Although an application for the rescission of the order in question has been filed and is still pending, the court a quo made certain findings relating to the order in disposing of the application for a stay which make it necessary to comment briefly on the order.

The first relates to the conclusion that the appellant was aware of the retrenchment award.

There was in fact no award.

What was in place was an agreed retrenchment package which was subsequently approved by the Retrenchment Board in the Ministry of Public Service Labour and Social Planning. It was this package that was placed before the High Court for registration as an award.

It is this registration that the appellant contends was irregular.

Indeed, from the record, it is not clear upon what premise the High Court was requested to register the said award, and, in addition, how it was empowered to do so.

In basing the perceived lack of urgency on the said award, the High Court misdirected itself.

I turn next to the finding by the court a quo that there was no urgency in the application due to the awareness by the appellant, as far back as September 2012, of its financial obligations, and, that, as a result, there was no urgency.

The retrenchment package in question does not reflect the name of the respondent.

It was an agreement between the representatives of the appellant, as employer, and the representatives of non-managerial employees of the appellant. The agreement sets out the modalities of calculating the packages. It does not set out specific amounts for payment as retrenchment dues. Nor does it spell out any individual packages for payment by the appellant.

The monetary value for payment to the respondent appears to have been compiled by ZIMRA.

No explanation for its origin is evident on the application.

It therefore begs the question how the appellant could have been aware of a specific obligation to the respondent personally, or any of its employees, under these circumstances.

Lastly, the issue that falls for resolution is whether or not the appellant delayed in instituting the application to have the writ stayed.

The order in terms of which the award “was registered” was granted on 3 April 2014, but, in view of the lack of notice, the appellant only became aware of it on 2 May 2014 when the Deputy Sheriff served it with a writ. On 9 May 2014, the chamber application to stay execution was filed and served on the respondent.

The matter was set down for hearing on 15 May 2014 but could not proceed on that date because the parties' legal practitioners advised the judge that they were exploring an out of court settlement, which, unfortunately, came to naught.

The matter was heard on 6 June 2014, on which date the learned judge dismissed the application.

He reasoned, that, the matter could not be urgent merely because the applicant said it was urgent.

He indicated, that, the application had been filed solely to delay and frustrate the writ of execution sought to be enforced by the Deputy Sheriff.

I am convinced, that, the learned judge erred and misdirected himself.

All the facts point to the order having been obtained in an irregular manner. There was no award made in favour of the respondent which was capable of being registered.

The High Court is a superior court with inherent jurisdiction but does not have the power to register a retrenchment award in the circumstances under which this order was made.

The order itself was obtained without notice to the appellant.

The Rules of the High Court 1971 provide, in Rule 226, for the nature of an application and the circumstances when such application is permissible.

Rule 226 reads:

“226. Nature of applications

(1) Subject to this rule, all applications made, for whatever purpose, in terms of these rules or any other law, other than applications made orally during the course of a hearing, shall be made -

(a) As a court application, that is to say, in writing to the court on notice to all interested parties; or

(b) As a chamber application, that is to say, in writing to a judge.

(2) An application shall not be made as a chamber application unless -

(a) The matter is urgent and cannot wait to be resolved through a court application; or

(b) These rules or any other enactment so provide; or

(c) The relief sought is procedural or for a provisional order where no interim relief is sought only; or

(d) The relief sought is for a default judgment or a final order where -

(i) The defendant or respondent, as the case may be, has previously had due notice that the order will be sought, and is in default; or

(ii) There is no other interested party to the application; or

(iii) Every interested party is a party to the application; or

(e) There are special circumstances which are set out in the application justifying the application.”

The chamber application filed by the respondent, for the registration of the retrenchment award, was not permitted under the Rules.

The matter was not filed under a certificate of urgency, and could not, therefore, be said to be urgent.

The relief sought was not a default judgment.

The appellant had not previously had notice that the respondent would be seeking the order in question. Nor could the appellant be said to have been in default after due notice to itself.

The appellant was an interested party.

There were no special circumstances cited justifying the application.

It cannot be over-emphasised, that, in proceeding as he did, the respondent was in clear breach of the Rules.

The failure to bring a court application instead of a chamber application could have been forgiven had the respondent given notice of the application to the appellant by ensuring that it was served upon the latter.

The respondent's legal practitioner, in clear breach of the Rules, then proceeded to have the matter referred to a judge in chambers without service of the same on the appellant.

The learned judge before whom the application was placed was alive to the need for service of the chamber application upon the appellant.

In my view, the learned judge ought not to have so easily accepted the explanation from the respondent's legal practitioner, that, the matter was of a procedural nature, and that, consequently, service of the application was not required.

The Rules provide that a chamber application shall be served upon all interested parties.

The Rules then set out the circumstances under which service may be dispensed with.

Rule 242 is pertinent and reads in relevant part:

“242. Service of chamber applications

(1) A chamber application shall be served on all interested parties unless the defendant or respondent, as the case may be, has previously had due notice of the order sought and is in default or unless the applicant reasonably believes one or more of the following -

(a) That the matter is uncontentious in that no person other than the applicant can reasonably be expected to be affected by the order sought or object to it;

(b) That the order sought is -

(i) A request for directions; or

(ii) To enforce any other provision of these Rules in circumstances where no other person is likely to object; or [Paragraph substituted by S.I.25 of 1993]

(b) That there is a risk of perverse conduct in that any person who would otherwise be entitled to notice of the application is likely to act so as to defeat, wholly or partly, the purpose of the application prior to an order being granted or served;

(d) That the matter is so urgent and the risk of irreparable damage to the applicant is so great that there is insufficient time to give due notice to those otherwise entitled to it;

(e) That there is any other reason, acceptable to the judge, why such notice should not be given.

(3) Where an applicant has not served a chamber application on another party because he reasonably believes one or more of the matters referred to in paragraphs (a) to (e) of subrule (1) -

(a) He shall set out the grounds for his belief, fully, in his affidavit; and

(b) Unless the applicant is not legally represented, the application shall be accompanied by a certificate from a legal practitioner setting out, with reasons, his belief that the matter is uncontentious, likely to attract perverse conduct, or urgent for one or more of the reasons set out in paragraphs (a), (b), (c), (d) or (e) of subrule (1).”

In casu, the nature of the relief sought and obtained was not “uncontentious.”

The order granted by the court affected the rights of the appellant as it made provision for the payment of a sum of money. The appellant would reasonably be expected to object to it. It was not an order for directions nor was its purpose to enforce a provision of the Rules. Finally, there was no allegation that service of the application upon the appellant would result in perverse conduct on the part of the appellant.

In sum, therefore, there was no explanation on the papers for the decision not to serve the application upon the appellant.

This, again, constituted a serious and grievous breach of the Rules of the High Court.

In addition to being a breach of the Rules, the failure to serve the application was also a fundamental breach of the audi alteram partem rule, which requires that every person must be afforded an opportunity to be heard in his own cause.

This Court, like the High Court, has powers of review which are exercisable when it comes to the notice of the court, or a judge, that, an irregularity has occurred during proceedings before a lower court or tribunal or in the making of a decision by such lower court or tribunal.

The court's powers of review are spelt out in section 25 of the Supreme Court Act [Chapter 7:13] which reads:-

“25 Review powers

(1) Subject to this section, the Supreme Court, and every judge of the Supreme Court, shall have the same power, jurisdiction, and authority as are vested in the High Court, and judges of the High Court, respectively, to review the proceedings and decisions of inferior courts of justice, tribunals and administrative authorities.

(2) The power, jurisdiction, and authority conferred by subsection (1) may be exercised whenever it comes to the notice of the Supreme Court, or a judge of the Supreme Court, that, an irregularity has occurred in any proceedings or in the making of any decision notwithstanding that such proceedings are, or such decision is not the subject of an appeal or application to the Supreme Court.

(3) Nothing in this section shall be construed as conferring upon any person any right to institute any review, in the first instance, before the Supreme Court or a judge of the Supreme Court, and provision may be made in rules of court, and a judge of the Supreme Court may give directions, specifying that any class of review or any particular review shall be instituted before or shall be referred or remitted to the High Court for determination.”

The application for the registration of the retrenchment award was fraught with irregularities.

It was filed as a chamber application when the respondent should more properly have filed a court application. It was not served upon the appellant who was the party with a clear interest in grant of the order. Lastly, the nature of the award itself is such that it was not capable of registration.

It is not evident, from the High Court, what nature of jurisdiction it was exercising in registering the award.

The registration of the award was not only irregular, the manner in which the registration was sought was also irregular.

It is trite, that, this court is not a court of first instance, and, therefore, its review powers can only be exercised within the context of section 25 of the Supreme Court Act above.

As the powers in question were exercised in the determination of an appeal it is only appropriate that the remedy be provided in terms of section 22 of the Supreme Court Act [Chapter 7:13].

Section 22 of the Supreme Court Act reads:

“22 Powers of Supreme Court in appeals in civil cases

(1) Subject to any other enactment, on the hearing of a civil appeal, the Supreme Court -

(a) Shall have power to confirm, vary, amend, or set aside the judgment appealed against or give such judgment as the case may require;

(b) May, if it thinks it necessary or expedient in the interests of justice -

(i) n/a;

(ii) n/a;

(iv) n/a;

(v) n/a;

(vi) n/a;

(vii) n/a;

(viii) n/a;

(ix) Take any other course which may lead to the just, speedy, and inexpensive settlement of the case;”

In terms of section 22(1)(ix) of the Supreme Court Act, this Court is empowered to take a course which is aimed at achieving a just, speedy, and inexpensive settlement of the case.

It was evident to both parties to the dispute, and the Court, that, the irregularities were such that to subject the appellant to further litigation to have the registration of the retrenchment package set aside would be unjust.

In the exercise of the powers of the Supreme Court, in terms of section 25 and section 22 of the Supreme Court Act [Chapter 7:13], it is only just and proper, that, the order for registration be set aside. The writ is also set aside as having been premised on an irregular order.

What was before the High Court was an application for the grant of a provisional order. The applicant thereto merely had to establish a prima facie case.

However, it is evident, that, in considering the chamber application, the High Court went beyond an examination of the dispute on a prima facie basis. It went to the root of the dispute and made findings of fact and conclusions of law. In the event, it would have served no purpose to issue a provisional order under these circumstances. The merits of the entire application having been considered, it was only proper, that, in allowing the appeal, an order setting aside the writ be granted.

It was for these reasons that we allowed the appeal with costs and granted an order in favour of the appellant.

The appellant filed its application a mere seven days after becoming aware of the default judgment. In my view, there were more than ample grounds for the grant of an order staying execution of the writ on an urgent basis.

In the premises, the following order will issue:

“IT IS ORDERED THAT:

1. The appeal be and is hereby allowed with costs.

2. The judgment of the court a quo be and is hereby set aside and is substituted with the following:

(i) The registration of the retrenchment award with the High Court, under case No HC627/14, is hereby set aside as being irregular.

(ii) The warrant of execution against the appellant's property, issued under case No HC627/14, is hereby set aside as it is based on an order granted in an irregular manner.

HH76-11 : SIBANGALIZWE DHLODHLO vs DEPUTY SHERIFF FOR MARONDERA and SHERIFF FOR ZIMBABWE and KANTOR & IMMERMAN and WATERSHED COLLEGE
Ruled By: GOWORA J

It is trite that a litigant who is dissatisfied with a judgment or decision may appeal against that judgment or decision.

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

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

I give here below the reasons for my ruling.

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

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

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

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

3. The respondents shall pay costs of this application.

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

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

“Matter dismissed as not urgent.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“(2) No appeal shall lie -

(a)…,.

(b)…,.

(c)…,.

(i)…,.

(ii)…,.

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

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

(ii) Where an interdict is granted or refused;

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

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

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

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

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

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

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

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

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

I agree.

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

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

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

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

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

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

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

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

That cannot be and is not permissible.

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

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

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

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

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

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

HH458-19 : KNOWE RESIDENTS AND RATEPAYERS ASSOCIATION vs EDDIES PFUGARI (PVT) LTD and EDWARD NYANYIWA and NORTON TOWN COUNCIL and REGISTRAR OF THE HIGH COURT
Ruled By: FOROMA J

The defendants determined that they did not agree with the judgment of GUVAVA J hence their appeal against the said judgment. This they were entitled to do.

SSC04-21 : MARRY MUBAIWA-CHIWENGA vs THE STATE and NATIONAL PROSECUTING AUTHORITY and CRIMINAL CLERK OF COURT, ROTTEN ROW MAGISTRATES COURT
Ruled By: MAVANGIRA JA

JOHN REID ROWLAND, in Criminal Procedure in Zimbabwe (Legal Resources Foundation, 1997), states as follows:“'appeal', in its ordinary sense, denotes an approach to a higher authority to alter the decision of an inferior; but, in legal practice, 'appeal' denotes a particular form of approach, which is distinguishable from other forms ...

SSC07-21 : CAINOS CHINGOMBE vs THE STATE
Ruled By: MAKONI JA

In Nyamande Anor v Zuva Petroleum CC08-15, the Court stated, that, where there is no right of appeal, the appeal filed is a nullity.

SC07-22 : POLICE SERVICE COMMISSION and THE COMMISSIONER GENERAL OF POLICE vs DHERERAI MANYONI
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

The law relating to reviews in terms of the High Court Act [Chapter 7:06] and the Rules of that court is settled. The application for review must be made within eight (8) weeks of the decision and on such grounds as are set out in section 27 of the High Court Act.

Section 28 of the High Court Act provides for the powers that the court is imbued. It reads:

“On a review of any proceedings or decision, other than criminal proceedings, the High Court may, subject to any other law, set aside or correct the proceedings or decision.”...,.

It is trite, and this appears clearly from the above cited provisions, that, in an application for review, the court must confine itself to establishing whether or not the proceedings were afflicted with irregularities....,.

As set out above, section 28 of the High Court Act provides that the High Court can only set aside or correct the proceedings or decision complained of.

The High Court has no power to order the reinstatement of a person if a matter is brought on review.

This was clearly stated in Standard Chartered Bank of Zimbabwe Ltd v J. Chikomwe and 211 Ors s77–2000.

“This is because reinstating the respondents in the circumstances implies a finding that the respondents were innocent of the charges of misconduct against them by the hearing officer. It should be borne in mind that the respondent, in their appeal to the Appeals Board, were mainly challenging the procedural irregularities in the hearings before the disciplinary Committee. The merits of the case were not really challenged…,.”

See also Air Zimbabwe Ltd v Mensah SC89-04.

So too, in this case, the respondent was not happy with the manner in which his matter was handled. It was his case that there was no Suitability Board which was convened neither was he called to answer to any charges.

The court a quo agreed with him but then ordered his reinstatement. Clearly, this was ultra vires the powers of the court where it finds an irregularity. Its powers are limited to setting aside, or correcting, the decision of the Tribunal.

As the matter is not an appeal on the merits, the court a quo would not have had the power to set aside the decision of the Police Service Commission and substitute it with its own decision.

HHB226-16 : ALPHONSUS ACHINULO vs W. MAPHIOS MOYO N.O. and THE STATE
Ruled By: MATHONSI J

In Masedza and Others v Magistrate, Rusape and Another 1998 (1) ZLR 36 (H) DEVITTIE J stated:“In determining the power of a superior court to intervene in unterminated criminal proceedings, a distinction must be drawn between an appeal and a review.HERBSTEIN Van WINSEN, Civil Practice of the Supreme ...

HHB100-17 : ELIZABETH SHAVA vs PRIMROSE MAGOMORE N.O. and NATIONAL PROSECUTING AUTHORITY
Ruled By: MATHONSI J

There can be no doubt that while it is a necessary feature of every adversarial system of justice that there should be a higher court in the hierarchy of the courts to correct judicial errors - that procedure should not be abused: see Mukwemu v Magistrate Sanyatwe N.O. and Another ...

HHB345-16 : NQOBILE KHUMALO vs THE PRESIDING MAGISTRATE N.O. (MR MZINGAYE MOYO) and THE PROSECUTOR GENERAL N.O.
Ruled By: MATHONSI J

In Masedza and Others v Magistrate, Rusape and Another 1998 (1) ZLR 36 (H)..., DEVITTIE J made the following remarks…, which I fully associate myself with:“In determining the power of a superior court to intervene in unterminated criminal proceedings a distinction must be drawn between an appeal and a review. ...

HHH765-15 : JOSPHAT MUKWEMU vs MAGISTRATE SANYATWE N.O. and THE PROSECUTOR GENERAL
Ruled By: MATHONSI J

Indisputably, it is a necessary feature of every system of adversarial administration of justice that there should be a higher court in the hierarchy to correct judicial errors and to curb the excesses of judicial officers...,. Such errors should be capable of being corrected, reversed or varied at a higher ...

SSC23-21 : SAMUEL UNDENGE vs THE STATE
Ruled By: UCHENA JA

This is an application for extension of time within which to apply for leave to appeal. After hearing submissions from both parties I reserved judgment.FACTUAL BACKGROUNDThe applicant is the former Minister of Energy and Power Development. He, amongst other things, supervised Zimbabwe Power Company (ZPC). On 14 January 2016, the ...

This is an application for extension of time within which to apply for leave to appeal. After hearing submissions from both parties I reserved judgment.

FACTUAL BACKGROUND

The applicant is the former Minister of Energy and Power Development. He, amongst other things, supervised Zimbabwe Power Company (ZPC). On 14 January 2016, the applicant authored a letter in terms of which he directed ZPC to work with an entity known as Fruitful Communications (fronted by Oscar Pambuka and Psychology Mazivisa) until 2018. The engagement was for publicity work relating to the Zimbabwe Agenda for Sustainable Socio-Economic Transformation (Zimasset) programmes.

It is common cause that the letter did not state whether or not there was any payment to be made in respect of services rendered. However, Fruitful Communications approached Zimbabwe Power Company (ZPC) with that letter claiming to have been chosen to do the publicity campaign and then invoiced ZPC for the work it alleged to have done.

Subsequently, the applicant was charged with criminal abuse of duty by a public officer in terms of section 174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Act”). His directive was deemed unlawful and contrary to his duties as a public officer as it favoured Fruitful Communications, enabling it to bypass the mandatory internal tender procedures to be followed by any procuring entity.

The applicant pleaded not guilty to the charge. He denied directing Zimbabwe Power Company (ZPC) to improperly engage Fruitful Communications without following tender procedures.

The applicant stated that the letter did not bar Zimbabwe Power Company (ZPC) from engaging with other media companies.

He indicated that the work to be done by Fruitful Communications was for free as it did not involve the expenditure of public funds, thus, it did not require tender approval. He submitted that Oscar Pambuka and Psychology Mazivisa had done free work for the Ministry before and it is in that context that the letter was drawn.

The applicant further submitted that if the issue for payment arose, Zimbabwe Power Company's accounting officer ought to have followed the required procedures.

He contended that Fruitful Communications and its counterparts were the ones who intended to defraud Zimbabwe Power Company (ZPC).

As such, he stated that the charges against him were influenced by a political agenda targeted at perceived political opponents. He also stated that he did not benefit from the letter.

After trial proceedings before a Regional Magistrate, the applicant was found guilty as charged.

The court opined that the determinant factor was that the applicant accepted to have authored the letter. It further held that the letter, taken in its context, was an order meant to govern the operations of Zimbabwe Power Company (ZPC).

In the result, the court sentenced the applicant to four years imprisonment, of which eighteen months were suspended on condition the applicant does not within that period commit any offence involving corruption.

Aggrieved by that decision, the applicant noted an appeal to the High Court against his conviction and sentence.

The appeal was dismissed in its entirety. The court a quo held that the trial court properly found that the applicant was not a victim of political machinations as the conduct giving rise to the charge occurred in 2016, before the change of Government.

Whilst acknowledging that there was no Code of Conduct in place envisaged by section 106(3) of the Constitution governing the conduct of Ministers, the court held that that fact did not absolve the applicant from wrongdoing.

The court a quo referred to section 9 of the Constitution and reasoned that the applicant, as a State agent, had the obligation to foster good governance and to take measures to expose, combat, and eradicate all forms of corruption and abuse of power.

It opined that the applicant's directive curtailed Zimbabwe Power Company's power to enlist the services of other service providers or invite formal bids as is required by law.

The court also found the custodial sentence imposed by the trial court to be appropriate as the crime committed is serious because it undermines public administration and subverts corporate governance.

Aggrieved by the decision of the court a quo, the applicant filed a composite application for leave to appeal and bail pending appeal in the court a quo.

In dismissing the application, the court held, that, the appeal against conviction and sentence had no prospects of success. It held that the letter, which the applicant wrote, directed Zimbabwe Power Company (ZPC) to engage Fruitful Communications for a specific period. It reasoned that had the work been for free, the letter ought to have spelt out that the engagement would be for free as alleged by the applicant.

Dissatisfied by the court a quo's refusal to grant it leave to appeal, the applicant sought leave to appeal to this Court against his conviction and sentence.

The application was struck off the roll because it was premised on the High Court Act instead of the Rules of this Court. The applicant states that, that was an oversight by his legal practitioners.

He then mounted the present application for extension of time within which to apply for leave to appeal to this Court.

He argues that he has high prospects of success as his conviction was wrong and that the sentence imposed by the trial court was unprecedented.

The applicant further contends that the letter of 14 January 2016 was taken out of context in that things he did not say were read into it. He further argues that he was convicted on dereliction of duties which were not spelt out.

The respondent opposed the application and averred that the court a quo's findings in respect of the applicant's conviction cannot be assailed.

The respondent states that the applicant's conduct, of giving directives to his subordinates to work with Fruitful Communications till 2018, without following tender procedures, constituted criminal abuse of office. It avers that the applicant's act, of signing the letter, is evidence that he agreed and associated himself with the contents thereof, and, thus, showed favour to Fruitful Communications.

The respondent also contends that the court a quo properly exercised its sentencing discretion in that the sentence imposed does not induce a sense of shock or outrage.

This application raises two issues for determination:

1. Whether or not the delay was inordinate.

2. Whether or not the applicant has prospects of success on appeal.

THE LAW

The timelines governing the present application are provided for by Rule 20 of the Rules which provides as follows:

“Applications for leave to appeal

20(1) A person who has been refused leave to appeal by a judge of the High Court may, within ten days of the date when leave to appeal was refused, or within fifteen days of conviction, whichever is the later date, apply to a judge for leave to appeal.”

In Chikurunhe and Ors v Zimbabwe Financial Holdings SC10-08…, the court held that for leave to appeal to be granted, one must show that he or she has prospects of success on appeal.

That is the overriding consideration.

SUBMISSIONS MADE BY THE PARTIES

Counsel for the applicant submitted that the applicant was convicted and sentenced on 20 July 2018. Aggrieved by both conviction and sentence, he appealed to the court a quo which dismissed his appeal in its entirety on 8 June 2020.

He further submitted, that, on 11 June 2020, the applicant made an application to the court a quo for leave to appeal to the Supreme Court which was dismissed.

He averred that the applicant subsequently applied for leave to appeal at the Supreme Court on 28 July 2020 and the application was struck off the roll for being fatally defective as it was made in terms of the High Court Act instead of the Supreme Court Rules, 2018.

Counsel for the applicant submitted, that, on 9 October 2020, the applicant applied for an extension of time within which to apply for leave to appeal to this Court. He avers that the delay was not inordinate as it was predicated on his oversight which he immediately rectified by mounting the present application based on the correct Rule.

Counsel for the applicant submitted that the sentence imposed by the trial court, and upheld by the court a quo, is shocking and insensitive considering that the applicant only signed the administrative letter which was abused by others to swindle Zimbabwe Power Company (ZPC).

He also avers that the applicant did not benefit in any way from the transaction.

As such, he states that the circumstances warranted the imposition of a fine or other lesser punishments other than a custodial sentence.

Counsel for the respondent conceded, during the hearing of the application, that the delay in applying for extension of time within which to apply for leave to appeal was not inordinate.

He further conceded that the question of sentence needs guidance from this Court as this Court last pronounced itself on sentences for corruption in the case of S v Chogugudza 1996 (1) ZLR 28 (S) - more than 20 years ago.

APPLICATION OF THE LAW TO THE FACTS

1. Whether or not the delay was inordinate

Taking into consideration the parties' agreement, that the delay was not inordinate, the overriding consideration in an application of this nature is whether or not the applicant has prospects of success on appeal.

The concession by counsel for the respondent is, therefore, noted and I find that the delay was not inordinate.

2. Whether or not the applicant has prospects of success on appeal

The prospects of success in this application are based on the propriety of the applicant's conviction and sentence.

Counsel for the applicant averred that the applicant has prospects of success on appeal against conviction and sentence. The gist of the applicant's submissions is that his conviction is improper as the court a quo failed to spell out his duties or to show how he had acted contrary to them.

He further stated that the court a quo read duties into section 174(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which were non-existent.

PROFESSOR G FELTOE, in his book, A Guide to the Zimbabwean Criminal Law, 3rd Ed, Legal Resources Foundation, 2004, sets out the elements of criminal abuse of duty by a public officer as follows:

“Ingredients [section 174(1)]

A public officer, in the exercise of his or her functions as such, intentionally -

does anything that is contrary to or inconsistent with his or her duty as a public officer; or omits to do anything which it is his or her duty as a public officer to do for the purpose of showing favour or disfavour to any person.”...,.

From these elements, it can be noted that the crime is centred on a public officer's exercise of duties.

If a public officer acts contrary to his duties in order to show favour or disfavour to any person, he would have abused his office for purposes of section 174(1) of the Criminal Law (Codification and Reform) Act (the Code).

The only exception is where favour or disfavour is made in furtherance of a Government policy aimed at the advancement of persons historically disadvantaged by discriminatory laws or practices: see section 174(3) of the Criminal Law (Codification and Reform) Act (the Code).

The word “intentionally” means that the conduct constituting abuse must be deliberate, calculated, or purposeful, and 'abuse' connotes misuse, exploitation, taking advantage, and recklessness in that conduct: see The State v Taranhike & Ors HH222-18.

In casu, the charge put to the applicant was based on the fact that the letter he wrote to Zimbabwe Power Company (ZPC), which favoured Fruitful Communications, was contrary to his duties as it bypassed the tender procedures laid down by the law.

In convicting the applicant, the trial court gave credence to the fact that the applicant accepted authorship of that letter.

In upholding the trial court's ruling, the court a quo, whilst acknowledging that there was no Code of Conduct stipulating the Minister's duties, opined that the appellant, as a State agent had to foster good governance in terms of section 9 of the Constitution. It also held that the oath of affirmation into office was reflective of that public duty.

It is my view that the reasoning of the court a quo cannot be faulted.

The applicant, as a public official in charge of a whole Ministry, could not rubber-stamp or endorse everything that came before him as he alleges to have been done in respect of the letter that he alleged was written for him to only sign.

Such an office comes with a high level of responsibility and demands the exercise of due diligence.

To that end, the court a quo justifiably held that the letter was not taken out of context. The applicant signed a letter which caused the breach of tender procedures and cannot hide behind flimsy excuses. He is a sophisticated person who understood the content and consequences of the letter he signed.

The findings of the court a quo cannot be faulted in this regard as they are reasonable and in sync with the evidence on record.

It has not been established that the court of appeal will have any basis for interfering with the court a quo's decision on conviction: see Barros & Anor v Chimponda 1991 (1) ZLR 58 (S).

It cannot, therefore, be said that the applicant has prospects of success on appeal against conviction.

In respect of the appropriateness of the sentence imposed, the respondent's counsel conceded that there is need for the Supreme Court to give guidance on sentences for corruption as the last case was considered more than 20 years ago.

He, therefore, agreed that there is need for this case to be considered by the Supreme Court on the appropriateness of the sentence imposed by the trial court and upheld by the court a quo.

The concession by the respondent's counsel justifies giving the appellant a chance to apply for leave to appeal against sentence.

In view of the respondent's concessions, each party shall bear its own costs.

In the result, it is ordered as follows:

1. The applicant's application for extension of time within which to apply for leave to appeal against sentence is granted.

2. The applicant shall file his application for leave to appeal against sentence within five (5) days of the date of this order.

3. Each party shall bear its own costs.

View Appeal
SC61-22 : BDO ZIMBABWE CHARTERED ACCOUNTANTS vs ROBIN VELA and THE AUDITOR GENERAL OF ZIMBABWE
Ruled By: BHUNU JA, MATHONSI JA and CHIWESHE JA

INTRODUCTIONThis judgment involves two consolidated appeals from the High Court (the court a quo) being case numbers SC258/20 and SC285/20. The court issued a consolidation order dated 29 March 2021 by consent of the parties. Both appeals are based on the same record of proceedings and issues in the court ...

INTRODUCTION

This judgment involves two consolidated appeals from the High Court (the court a quo) being case numbers SC258/20 and SC285/20. The court issued a consolidation order dated 29 March 2021 by consent of the parties. Both appeals are based on the same record of proceedings and issues in the court a quo under Case No. HC6503/19.

It was therefore convenient to consolidate the two appeals because the matter was determined by the same judge a quo on the same facts and issues.

The two appeals arise from the same judgement. Each appellant lodged its own appeal against the same judgment in which they were contesting parties.

Both appeals bring into question the judgment of the court a quo which determined that the forensic audit conducted by the appellant, at the behest of the second respondent, was an administrative action subject to review by the court a quo.

In consequence thereof, the court a quo reviewed and set aside the forensic audit for irregularity coupled with costs at the higher scale....,.

POINTS IN LIMINE

At the commencement of the hearing, counsel for the first respondent raised two preliminary points for determination. After hearing arguments from counsel, the court ruled that the two preliminary points be determined in tandem with the main appeal:

(i)...,.

(ii) The second is that BDO ZIMBABWE CHARTERED ACCOUNTANTS (BDO), the appellant in case number SC258/20, has no right of appeal because it is not the party against whom judgment was issued....,.

I now turn to consider the second part of the objection in limine: Whether BDO Zimbabwe Chartered Accountants (BDO) has no locus standi because it is not the party against whom judgment was issued.

It is common cause that it is the first respondent who sued BDO Zimbabwe Chartered Accountants (BDO) to kick start the proceedings in this matter. In his founding affidavit, which appears at p3 of the record of proceedings, he cited the appellant as follows:

“BDO ZIMBABWE CHARTERED ACCOUNTANTS (A firm of Accountants whose partners are Ngoni Kudenga, Gladman Sabarauta, Martin Makaya, Gilbert Gwatiringa and Jonas Jonga.”

In developing his argument, counsel for BDO Zimbabwe Chartered Accountants (BDO) submitted that Rule 8 of the High Court Rules 1971 provides for the citation in legal proceedings of associations which are not body corporates.

Rule 8C allows a person to be sued in his/her trade name.

BDO Zimbabwe Chartered Accountants (BDO), being the trade name of the appellant, it may sue or be sued in that name.

The Rule provides as follows:

“8C. Proceedings by or against persons under their trade name

Subject to this Order, a person carrying on business in a name or style other than his own name may sue or be sued in that name or style as if it were the name of an association, and Rules 8A and 8B shall apply, mutatis mutandis, to any such proceedings.”

BDO Zimbabwe Chartered Accountants (BDO), the appellant, responded to the first respondent's suit in that name.

The first respondent went on to obtain judgment against both the appellant and the second respondent with costs at the punitive scale. He has not abandoned the order he obtained against the appellant although he is now claiming that he obtained the judgment against a non-existent party with no locus standi.

Having regard to the clear provisions of the law, there can be no denying that BDO Zimbabwe Chartered Accountants (BDO), being the appellant's trade name, may sue or be sued in that name in terms of Rule 8C.

I therefore hold, that, the first respondent, Robin Vela, having sued and obtained judgment, with costs at the punitive scale, against the second respondent and the appellant, BDO Zimbabwe Chartered Accountants (BDO), has the locus standi to be heard on appeal to challenge the judgment against it, independent of the Auditor General.

It would, in my view, be manifestly unjust for the Court to sanction a situation where the first respondent sues and obtains judgment against the (appellant), with costs at the punitive scale, and then bar it from appealing the judgment on flimsy legal technicalities.

I therefore find no merit in the respondent's second point in limine. Doing otherwise will offend against the dictates of reason and fundamental justice.

The second point in limine is accordingly dismissed.

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

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

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

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

FACTUAL BACKGROUND

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

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

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

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

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

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

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

“Terms of final order sought

It is ordered that:

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

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

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

Terms of Interim Order Sought

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

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

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

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

On 28 February 2019, the court a quo found that the application was not urgent in as far as it related to the relief sought to compel the Law Society of Zimbabwe to place the first respondent's law firm under curatorship, and, also, his suspension from practice as a legal practitioner.

On 1 March 2019, the court a quo proceeded to hear the rest of the application on the merits.

The court a quo found that the interim relief sought by the appellant, in respect of the cancellation of Deed of Transfer No.708/19, would in fact be a final order. The court brought this issue to the attention of the parties. It was submitted, on behalf of the second respondent, that he was ready to accept an interim interdict to stop any transfer of the property pending determination on the return date. However, the appellant did not move for any relief in the alternative and chose to stand or fall on the final relief being sought.

Consequently, the court a quo held that it was improper to seek final relief on the basis of submissions supporting the grant of an interim order. The court noted, correctly, that such a circumstance would leave nothing for the court to confirm or discharge on the return date.

It also expressed the view that the appellant's interests could have been secured by a temporary interdict prohibiting any transfer of property by the second respondent pending the return date. However, the court took the view that it could not grant such an order as it had not been prayed for, and accordingly, dismissed the application.

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

1. The court a quo grossly erred, holding that there was no urgency in the application in so far as it related to the suspension of Puwayi Chiutsi, the first respondent, from practicing as a legal practitioner.

2. The court a quo grossly erred in not understanding and holding that the court, as well as the appellant, had the duty to ensure the protection of the public and indeed the legal protection against errant lawyer (sic) whose damage to the public and to the legal profession was immense.

3. The court a quo grossly erred, in failing to grant the provisional order sought in terms of the chamber application filed by the appellant.

4. Further, as a question of law, the court a quo erred in not finding, that, in the circumstances of this case, the appellant had shown the legal basis for the granting of the order that was sought whether or not it could be classified as final.

In addition to an order that the appeal be allowed with costs, the appellant seeks an order that the judgment of the High Court be set aside and substituted with an order granting the relief that he originally sought a quo.

This is notwithstanding the fact that he had amended his draft order to leave out the parts of the relief that the court had ruled not to be urgent.

ISSUE FOR DETERMINATION

Notwithstanding the fact that the appellant has four grounds of appeal, as outlined, the only issue that arises for determination in this matter is contained in the appellant's third and fourth grounds of appeal; that is, whether or not the court a quo erred in dismissing the application for what was in fact a final order disguised as provisional order.

The court finds the other two grounds of appeal to be both misplaced and without merit.

As already indicated, the court a quo ruled not to be urgent, two aspects of the appellant's application.

These pertained to the order seeking to compel the Law Society of Zimbabwe to place the law firm of Puwayi Chiutsi under curatorship, and the order seeking the suspension of Puwayi Chiutsi from practising as a legal practitioner (the propriety or otherwise of the splitting of the draft reliefs sought by the appellant a quo was not raised by any of the parties, and has therefore not been considered. Suffice to say that the appellant, according to the learned judge a quo, accepted it and proceeded to amend his draft order accordingly. The matter however becomes academic when regard is had to the fact that the two issues adjudged not urgent have been overtaken by events. This is because by the time this appeal was heard both the first respondent and his legal practice had been de-registered by the Law Society of Zimbabwe).

The court then proceeded to hear the rest of the application on the merits, as outlined thus in its judgment:

“I proceeded to hear the merits of the application on 1 March 2019. The first respondent was in default. Before commencement of submissions, I drew Mr Biti's attention to the fact that the interim relief sought was in fact a final order i.e. the prayer for cancellation of Deed of Transfer No.708/19 issued in the name of the second respondent.

Mr Biti said he was aware of that and was going to seek the order in that form.

He applied for the amendment of the Provisional Order by removal of that part of the prayer for which the court had ruled could (sic) not proceed on urgency. He also sought the removal of all such similar relief from the final order sought and that the final order sought should only contain the issue of costs. This was so, I believe, because the interim relief sought a final order.”...,.

The import of these remarks is that the appellant abandoned, for purposes of the proceedings a quo, paragraphs 1 and 3 of the final relief sought, leaving only paragraph 2, which pertained to the prayer for costs against the first and fourth respondents. Further, that, in so far as the 'Interim Relief' sought was concerned, the appellant abandoned the last two paragraphs. That left only the first paragraph, pertaining to the cancellation of the Deed of Transfer No. 708/19, issued in the name of Tendai Mashamhanda, the second respondent.

Thus, the appellant's amended draft order a quo would have read something like this:

Terms of the Final Order Sought

It is ordered that:

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

Terms of Interim Order Sought

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

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

Since the urgency referred to in the appellant's first ground of appeal relates to relief that the appellant abandoned, that ground is left with no leg to stand on, as it were.

Ground number two suffers the same fate, since it relates to a part of the application that the court declined to hear for lack of urgency.

The second respondent submits that once the court a quo found that part of the relief sought could not be granted on an urgent basis, the appellant, if dissatisfied, should have requested the reasons for the order, sought leave, and then appealed against it.

Not having done so, the appellant cannot now seek to smuggle the issues that the court a quo did not deal with into his grounds of appeal for consideration by this Court.

It is trite that an Appeal Court, by nature, sits to consider and assess the correctness or otherwise of the decision of a lower court on a particular issue: see Dynamos Football Club (Pvt) Ltd & Another v Zifa & Others 2006 (1) ZLR 346 (S)...,.

Grounds of appeal 1 and 2 are accordingly dismissed.

View Appeal
HHH03-21 : ROBERT GUMBURA vs THE STATE
Ruled By: CHITAPI J

It is...,, a requirement, in terms of section 44(4) of the High Court Act, that a person convicted by an inferior court to the High Court and has appealed to the High Court against conviction or sentence or both, and is dissatisfied with the decision of the High Court, and ...

SC26-21 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

The undesirability of having an Appellate Court sitting as a court of first instance was put across in Dormehl v Minister of Justice and Others [2000] ZACC 4; 2000 (2) SA 825, where the court dealing with issues of direct access to the Constitutional Court of South Africa stated:“(b) It ...

Appealed
SSC62-21 : KIZITO MUTSURE vs THE STATE
Ruled By: MAVANGIRA JA, UCHENA JA and MAKONI JA

It is trite that an appeal to this Court is based on the record.

Appealed
SC63-21 : GATEWAY PRIMARY SCHOOL and KM RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION vs MARINDA FENESEY and THE SHERIFF OF ZIMBABWE
Ruled By: HLATSHWAYO JA, GUVAVA JA and BHUNU JA

The appellants are appealing against the entire judgment of the High Court delivered on 24 May 2017 under judgment number HH329-17. That judgment granted the respondent a provisional spoliation order in the following terms:“TERMS OF THE FINAL ORDER SOUGHTThat you show cause to this Honourable Court why a final order ...

“TERMS OF THE FINAL ORDER SOUGHT

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

1. The first, second, and third respondents be and are hereby interdicted from interfering in any manner with the applicant's business operations at the tuck shop situated at Gateway Primary School. Including, but not limited to barring her potential customers from buying from the tuck shop.

2. The first, second, and third respondents be and are hereby ordered not to unlawfully evict the applicant from the tuckshop at Gateway Primary School.

3. The first, second, and third respondents to pay costs at an attorney and client scale, the one paying and the others to be absolved.

INTERIM RELIEF GRANTED

Pending confirmation or discharge of the provisional order, the applicant is granted the following relief:

1. The first, second, and third respondents be and are hereby ordered to remove their additional locks at the tuck shop at Gateway Primary School upon service of this order and take all necessary steps to ensure that the applicant's peaceful and undisturbed occupation of the tuck-shop is restored failing which the fourth respondent be and is hereby authorised to remove the locks abovesaid.

2. The second applicant (sic) be and is hereby ordered to publicly, and, at an assembly, reverse the order he imposed on school pupils and teachers not to buy at the applicant's tuckshop at Gateway Primary School.

3. The applicant's legal practitioners are hereby given leave to serve the order on the respondents.”

The appeal is strenuously opposed by the respondent.

The facts giving rise to the appeal are, to a large extent, common cause. It is however convenient to give a brief resume of the material facts of this case at this juncture.

The undisputed facts are that the first appellant is a primary school whereas the second appellant is its headmaster and overall administrator. The third appellant is the school's Parents Association capable of suing and being sued in its own name. It assists in the smooth running of the school. Among other functions, it generally manages the tuckshop.

The third appellant leased out the school tuck shop to the first respondent as its statutory tenant sometime in 2011. The lease agreement was subsequently renewed from September 2016 to September 2017.

On 5 February 2017, the Chairman of the Parents Association Committee wrote to the first respondent giving her two months notice of its intention to terminate the lease agreement with effect from 6 April 2017. The letter reads:

“Dear Marinda

Notice of Termination of lease contract

We refer to the tuck shop lease agreement which was renewed in September 2016 expiring on 8 September 2017.

We regret to advise that after much deliberation and thought, the Parents Association Committee hereby gives you notice of their intention to terminate the lease agreement (without renewal) with yourself with effect from the end of the first term. Our notice period is therefore effective from 6 February until 6 April 2017.

We thank you for your tenancy over the many years with the Gateway Community as well as the rent payments that have always been on time.

We trust that this is sufficient notice for you to make the necessary arrangements. If you have any further queries, please do not hesitate to contact the undersigned.”

Aggrieved by the intended termination of her tenancy of the tuckshop, the first respondent consulted her lawyers who took the view that the notice was a legal nullity.

They, accordingly, wrote to the third appellant, on 5 April 2017, challenging the lease termination on the grounds that the notice period was inadequate and that it did not provide good and sufficient reasons for the termination.

Unperturbed by the threatened legal challenge to its notice to terminate the lease agreement, the third appellant proceeded to execute its cancellation of the lease agreement in terms of its written notice of 5 February 2017.

The validity of the termination of the first respondent's lease, and tenancy of the disputed property, is hotly contested.

It is however common cause that schools closed on 6 April 2017 and the parties proceeded on end of term school holidays, during which period the tuckshop was closed.

The point of departure is the circumstances surrounding the closure of the tuck shop and its reopening at the end of the school holidays in May 2017.

The first respondent's version, in her founding affidavit, is that, at the end of term she locked her tuckshop and went away without any event. During the holidays, she fully restocked her tuck shop in anticipation of the reopening of the school. Upon her return, on 9 May, at the end of the school holidays, she unlocked the tuckshop only to discover that the second respondent had issued orders banning her customers, mainly teachers and students, from buying anything from the tuck shop. Guards were posted at the tuckshop to enforce the ban.

On 10 May 2017, she found herself locked out of the tuckshop.

Additional locks had been placed on the entrance door by the appellants acting in concert and common purpose.

It was her case, that, by locking her out, the respondents were unlawfully violating her peaceful and undisturbed possession of the tuck shop hence her urgent application for a provisional spoliation order for relief.

On the other hand, the respondents, in their opposing affidavit, deposed to by the third appellant's Chairman, one Justice Marwisa, denied ever locking the first respondent out of the tuckshop as alleged or at all.

He deposed that when given notice of termination of the lease agreement, the first respondent agreed and voluntarily cleared the tuckshop and left without any problem on 6 April 2017.

Accordingly, he denied that the first respondent was in peaceful and undisturbed possession of the tuckshop when the true owners of the tuck shop, Gateway Trust, recovered possession of the tuck-shop.

In short, the appellants case is that the first respondent voluntarily surrendered possession of the tuckshop to the lessor.

The learned judge in the court a quo believed the first respondent and disbelieved the appellants.

He found in her favour that she was in peaceful and undisturbed possession of the tuck shop prior to the unlawful dispossession, much to the chagrin of the appellants - hence this appeal.

The appellants raised the following grounds of appeal:

1. The learned judge in the court a quo erred at law and in fact in failing to find that the first respondent was not in peaceful and undisturbed possession of the tuckshop at the time of the alleged closure of the tuck shop. This requirement of spoliation was not established.

2. The learned judge in the court a quo erred at law in finding that the deprivation of the tuckshop amounted to unlawful deprivation since the first appellant was given notice of termination of the lease.

3. In the alternative, the learned judge in the court a quo grossly misdirected himself at law in failing to exercise his discretion not to grant the order sought given the circumstances of the matter that the continued operation of the tuckshop was not in the best interest of the children.

Although the appellants raised three (3) grounds of appeal, there is, in reality, one cardinal issue for determination.

The primary issue advanced for determination is whether or not the respondent was in peaceful and undisturbed possession of the tuckshop prior to the alleged unlawful dispossession.

The last two grounds of appeal are mere make-weights which add no value or cogency to the appeal.

Although there are apparent material disputes of fact, no one has complained that they were incapable of resolution on the basis of the papers filed of record.

The learned judge in the court a quo was therefore correct in disposing of the matter before him on the basis of the papers filed of record.

While preparing this judgment, it however occurred to me that a vital legal issue upon which the resolution of this appeal revolves was omitted. The crisp issue omitted for consideration is:

Whether an interdict having the effect of a final order can be sought through a provisional order?

Both counsel for the appellants and the first respondent have since filed useful supplementary heads of argument at the court's special instance and request.

They are agreed, that, a spoliation order, being a form of a final interdict, cannot be granted as a provisional order. It can only be granted as a final order.

Undoubtedly, both counsels are correct in their appreciation of the law in this respect.

The leading case on this settled point of law is Blue Rangers Estates (Pvt) Ltd v Muduvuri & Anor 2009 (1) ZLR 368.

That case is authority for the proposition that a spoliation order, being a final and definitive order, cannot be granted as a provisional order.

That being the case, it follows, that, the respondent erred and strayed into the realm of illegality when it sought a spoliation order in the form of a provisional order.

Consequently, the court a quo also erred, and fell into grave error, when it granted the first respondent a provisional spoliation order contrary to the dictates of the law.

While admitting that the provisional order granted by the court a quo is fatally defective, the first respondent has implored this Court to come to its rescue by resort to the court's powers under section 22(1) of the Supreme Court Act [Chapter 7:13] in the interests of justice.

The relevant parts of the section relied upon provide as follows:

“22 Powers of Supreme Court in appeals in civil cases

(1) Subject to any other enactment, on the hearing of a civil appeal, the Supreme Court —

(a) Shall have power to confirm, vary, amend, or set aside the judgment appealed against or give such judgment as the case may require;

(b) May, if it thinks it necessary or expedient in the interests of justice —

(i)…,.

(ix) Take any other course which may lead to the just, speedy, and inexpensive settlement of the case;”

On a proper reading of section 22 of the Supreme Court Act, it is clear that it confers no power of substitution on the court. It can only confirm, vary, amend, or set aside the judgment appealed against or give such judgment as the case may require.

The power “to give such judgment as the case may require” is in my view, not an open cheque for the court to go on a frolic of its own giving any judgment it desires.

That power is confined to what it is authorised to do under section 22 of the Supreme Court Act.

As the power of substitution is not given under section 22 of the Supreme Court Act, the court cannot exercise such power. If it does, it acts without jurisdiction.

That being the case, this court cannot substitute a final order for a provisional order.

By the same token, both the court a quo and this Court cannot give the respondent a relief that she did not ask for in the court a quo.

It is now settled law, that, a court has no jurisdiction to determine issues not placed before it because it is bound by the pleadings. It cannot go on a frolic of its own: see Nzara & Ors v Kashumba NO & Ors SC18-18…,.

Section 22(1)(b)(ix) of the Supreme Court Act is a procedural section which does not give any substantive relief.

Reliance on it for the granting of a final order, in place of the provisional spoliation order granted by the court a quo, is therefore misplaced and untenable at law.

In the final analysis, the urgent chamber application, being fatally defective, the appeal can only succeed.

It is accordingly ordered that:

1. The appeal succeeds with costs.

2. The whole judgment of the court a quo be and is hereby set aside, and, in its place, the following be substituted:

“The urgent application for a provisional spoliation order be and is hereby dismissed with costs.”

SC83-21 : DOMBO CHIBANDA and PINGO KANDORORO and JOHN KANDWE vs CITY OF HARARE
Ruled By: HLATSHWAYO JA

Rule 38(1)(a) of the Supreme Court Rules states that:“(1) An appellant shall institute an appeal within the following times -(a) By filing and serving a notice of appeal in compliance with subrule (2) of Rule 37 within 15 days of the date of the judgment appealed against.”

SSC86-21 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE and THE PROSECUTOR GENERAL
Ruled By: MAKONI JA

This is an opposed application for leave to appeal made in terms of section 44 of the High Court Act [Chapter 7:06] as read with Rule 20(1) of the Supreme Court Rules, 2018.

The applicant was convicted of rape and sentenced to an effective 10 years imprisonment by the Harare Regional Court on 11 July 2016.

His appeal against conviction and sentence was dismissed by the High Court on 29 May 2019.

He sought leave to appeal to this Court, against the dismissal of his appeal, before the High Court; which leave was declined on 10 December 2020 hence the present application.

FACTUAL BACKGROUND

The applicant was arraigned before the Magistrates Court charged with one count of indecent assault and one count of rape.

The offences were allegedly perpetrated on two minor children who were his nieces. He was acquitted in respect of the first count of indecent assault.

The second count of rape is alleged to have occurred on 22 August 2010, at 11 Tavey Road, Vainona.

The complainant and her sister (the complainant in count one) had visited their aunt, Patience Muswapadare (Patience), who is a wife to the applicant. The complainant's evidence was that on the day in question, at around 3am, Patience woke her up and asked her to tend to her (Patience's) baby. This was because Patience wanted to prepare some food for the applicant.

After she lulled the baby to sleep, she sat on a couch in the bedroom.

The applicant, whom she had met in the lounge, came up to her on the couch. He fondled her breasts and vagina, produced his pistol, and raped her. He only stopped after hearing some footsteps.

The complainant managed to break free and went to her bedroom.

She did not feel comfortable to report to Patience Muswapadare. She reported the ordeal to her sister the following day, on 23 August 2010.

The sister had spent the night at an all-night prayer. She forbade her from telling anyone because she was not comfortable sharing the experience with other people.

Eventually, on 30 October 2010, the complainant voluntarily confided in her maternal uncle's wife, Sally Ndanatsei Maramwidze, about the rape. Thereafter, other relatives were informed.

On the same day, the matter was reported to the police at Highlands Police Station.

The complainant was medically examined at Parirenyatwa Hospital on 1 November 2010. The report indicated that the hymen was broken.

Apart from the complainants, the State led evidence from Sally Ndanatsei Maramwidze (to whom the report of the rape was made), Francis Maxwell Maramwidze (maternal grandfather and legal guardian of the complainants to whom the allegations were later reported and who approached the police), Edwin Tafadzwa Chanakira (the doctor who examined the complainant and found that her hymen had been broken which was indicative of sexual penetration), Mirirai Chiremba (the Director of Financial Intelligence at the Reserve Bank of Zimbabwe to whom the applicant gave his pistol, magazine, and cleaning kit on 22 August 2010 to return to RBZ Security Department and requested that an earlier date of return be entered), Grasham Muradzikwa (the Director of Security at the Reserve Bank of Zimbabwe who refused to take the applicant's firearm from Mirirai Chiremba or backdate it to a particular date) and Monica Kativhu (the police officer at Borrowdale Police Station who recorded statements from the complainants).

The defence's case was led by the applicant who raised the defence of an alibi.

He said that he was at his Mandara house with his brother, Cletos Kereke, at the time the alleged offence was committed.

He had witnesses to support his testimony.

He also denied influencing the backdating of the return of his firearm. He claimed that he had surrendered it on 14 June 2010 - way before the allegations against him were levelled.

The applicant claimed, that, the complainant's grandparents were trying to extort him for his refusal to pay the complainants school fees. Gideon Gono and his counterparts wanted to silence him against revealing their fraudulent activities, and also, that, there were political machinations against him by Webster Shamu and others.

The second defence witness, Patience Muswapadare Taruvinga, wife to the applicant, testified that the complainant's testimony was untruthful.

The third witness, Alphios Njodzi Chinhano, pointed to friction between the applicant and Francis Mwaramwidze because of political ambition.

Next to testify was Cletos Kereke, who corroborated the applicant's testimony, that, at the alleged time of the offence, he and the applicant were in Mandara.

Taurai Bwanalisa and Norest Ndoro testified that they were security guards on duty at the Mandara house. They recorded the applicant's visit on 20 August 2010 but disputed the authenticity of the extract produced from the occurrence book in court.

Anna Muswapadare, mother in law to the applicant, and a stepmother to the complainant's father, attested that she shared the bedroom with the complainant during the material time and that she could not have been raped.

Dr Chiratidzo Lorraine Jeyacheya, a medical doctor and Head of the Casualty and Emergency Department was called at the court's instance and confirmed that Dr Chanakira was on duty at the time of the examination.

The applicant had disputed that Dr Chanakira was on duty on the date the complainant was examined.

After an analysis of the evidence before it, the trial court convicted the applicant of rape.

The court found that it had been proven, beyond reasonable doubt, that the applicant raped the complainant.

The court reasoned that the complainant's report was voluntary; she gave a reasonable explanation as to why she did not report the case in time; and that she was able to give a clear account of the circumstances of the alleged rape.

It further found, that, her testimony was corroborated by Sally Ndanatsei Mwaramwidze and Francis Mwaramwidze.

The court found insignificant the discrepancy in her narration in the applicant's use of a gun.

It found that Dr Edwin Tafadzwa Chanakira, who examined the complainant, was indeed on duty on 1 November 2010.

It also found, that, the applicant still had the gun in his possession on 22 August 2010.

The court concluded that the allegations were not as a result of fabrications by the Mwaramwidze family or political machinations. It found that the applicant had lied concerning his possession of the gun, backdating its return, coaching of the witnesses, and an unconvincing explanation that he was with Cletos Kereke in Mandara.

In sentencing the applicant, the court took into account the mitigating and aggravating circumstances and sentenced him to an effective 10 years imprisonment.

The applicant noted an appeal to the court a quo against his conviction and sentence which was dismissed in its entirety.

The court found, that, the trial court properly assessed the evidence and correctly found that the applicant's guilt had been proven beyond reasonable doubt.

It found, that, the trial court properly assessed the complainant's evidence and found that her detailed account of the rape, and her voluntary report, which was corroborated by Dr Chanakira's medical report, met the threshold of proof beyond reasonable doubt.

It also discarded the applicant's defence of impossibility of the actus reus whereby he contended that raping the complainant on a couch was impossible, as invalid.

The court a quo also found that the trial court properly disregarded the applicant's testimony regarding the return of his pistol as his version was only corroborated by a document which he had authored and forced Mirirai Chiremba to co-sign.

Further, that there was an anomaly in the defence witnesses evidence, as their statements, in affidavit form, were commissioned by one legal practitioner and were given on the same date.

The possibility of coaching, in these circumstances, could not be ruled out.

As regards sentence, the court found, that, the trial court properly exercised its discretion in weighing aggravating and mitigating circumstances and that the sentence imposed was within the range imposed in similar cases.

The court held, that, the decision of the Magistrates Court could not be faulted.

It was the court's view, that, the applicant, as an adult, and relative of the minor child, was expected to protect her and not abuse her.

Aggrieved by the High Court's dismissal of his appeal, the applicant sought leave to appeal to this Court from the High Court.

The court a quo found, that, the appeal did not have reasonable prospects of success.

The factual disputes were thoroughly determined. It found that the trial court properly dismissed the applicant's defence of alibi after rejecting the defence witnesses testimonies on the basis that they had been coached.

The court reasoned, that, there was a remarkable coincidence in that their affidavits, in which they exonerated the applicant, were commissioned before the same legal practitioner, under circumstances where they claimed to have gone to the legal practitioner separately, and all were recorded on the same day.

The court also held, that, the applicant's alibi was choreographed as the guards at his Mandara house could not corroborate the applicant's testimony as they disowned certified extracts of an occurrence book produced in court. Further, that the applicant would visit his Mandara house where none of his family were staying. He visited with his brother who then becomes a defence witness attesting to his alibi.

It also found, that, the surrender of the pistol, a few hours after the rape, was not mere coincidence.

As regards the sentence, the court found, that, the sentence imposed was amply justified and the trial court properly exercised its discretion.

It is against this background that the present application has been made.

SUBMISSIONS BY THE APPLICANT

Counsel for the applicant submitted, that, the applicant has reasonable prospects of success on appeal as the court a quo, in dismissing his appeal, erred in failing to consider and place in their proper context material misdirections that saddle the decision of the trial magistrate. He raised four main areas of concern, viz;

(i) The impossibility of the actus reus;

(ii) The inconsistencies in the complainant's evidence;

(iii) The rejection of his defence of an alibi; and

(iv) The finding that defence witnesses were coached on what to say in court.

On the issue of the impossibility of the actus reus, counsel for the applicant submitted, that, it was physically impracticable that the applicant could have raped the complainant in the manner alleged.

The panty, which the complainant claimed could stretch, was not produced.

Her reaction is not one objectively expected under such circumstances.

She claims to have been raped at 3am, after having been woken up by Patience Muswapadare Taruvinga to tend to her baby.

Patience Muswapadare Taruvinga testified, that, on the night in question, she was not at home as she was at the Avenues Clinic where her baby was admitted.

No proper reasons were given for rejecting her evidence.

There was also the evidence of Anna Muswapadare, who shared a bedroom with her, to the effect that the complainant was in bed and asleep at the material time.

The failure by the court a quo to consider, in its proper context, the impossibility of the facts presented by the prosecution is material.

Instead, the court characterised the applicant's arguments on impossibility as exhibiting male chauvinism and patriarchy.

Counsel for the applicant further argued, that, evidence led by the prosecution lacked consistency in material respects to warrant reasonable doubt.

There was no consistency on the issue of the gun, the time the offence was committed, and the reason why the complainant did not report the issue to the trusted adults at the first available opportunity.

The court a quo erred and misdirected itself in failing to, in totality, find that the inconsistencies in the prosecution's version of events as well as the improbability of the same cast significant doubt on the truthfulness of the complainant's allegations.

Further, counsel contended, that, the court failed to fully consider the applicant's defence of an alibi.

The onus remained on the prosecution to establish, that, the explanation was not only improbable but that, beyond any reasonable doubt, it was false.

The applicant asserted that he was not at his Vainona home at the time of the alleged rape.

He called witnesses, and the consistent thread in all their testimonies was that the applicant could not have committed the offence as he was not at the scene of the offence.

Two of the witnesses were security guards who were no longer in the employ of the applicant at the time of the trial and had no motive to lie.

Counsel for the applicant further submitted, that, the trial court proceeded from the premise that the alibi witnesses who testified in respect to the applicants alibi were coached.

It made such findings without direct evidence as to when, where, and by whom they were coached.

It relied on inferences without applying the test to justify drawing such an inference.

There was no evidence at all suggesting that the witnesses were coached. Coaching is a positive act and the prosecution did not lead evidence on the form, manner, and timing of such coaching.

Counsel for the applicant attacked the court a quo for making a finding that the security guards had a motive to lie in order to protect their boss.

The finding was made in 2016 when both guards were no longer employed by the applicant.

Counsel for the applicant further submitted, that, the court a quo erred in accepting Mirirai Chiremba's evidence that he was made to sign a memo, backdating the return of the gun, under duress by the applicant, when there was no documentation confirming the return of the gun by the applicant on the date so alleged.

He (Mirirai Chiremba) failed to explain why he kept the gun in his office from August 2010 until the trial of the accused in 2016 in circumstance where the applicant had ceased to be his supervisor.

No submissions were made in respect of leave to appeal against sentence.

I will take it that the applicant has abandoned the issue.

SUBMISSIONS BY THE FIRST RESPONDENT

Counsel for the first respondent submitted, that, the intended appeal does not have reasonable prospects of success on appeal.

Regarding the impossibility of the act of rape, counsel for the first respondent submitted, that, the complainant gave a cogent explanation of how the rape was committed. Her evidence was not successfully challenged under cross examination. There was also medical evidence to prove penetration. Thus, the averments relating to the absence of actus reus are misplaced.

He further argued, that, the trial court satisfactorily related to the alleged inconsistencies in the prosecution's case. He also submitted, that, the trial court properly dealt with the issue of credibility of witnesses and the threshold of proof beyond reasonable doubt in a balanced manner.

Counsel for the first respondent further submitted, that, the court dealt with the issue of the applicant's alibi and rejected it as the defence witnesses credibility failed during cross-examination.

The record is replete with proof beyond a reasonable doubt that the applicant's alibi was not true.

There was the evidence of the security guards who disowned the entry in the Occurrence Book. It recorded only the applicant's movements.

There was the evidence of Mirirai Chiremba who met with the applicant at Chisipite Shopping Centre on the morning of the rape.

The applicant failed to explain why he handed over the gun on a Sunday.

THE LAW

The factors which must be considered in an application of this nature were discussed in the case of Chikurunhe v Zimbabwe Financial Holdings SC10-08…, where the Court held that:

“The party seeking leave must show, inter alia, that, he has prospects of success on appeal. In other words, leave is not granted simply because a party has sought such leave.”

Therefore, it is important to assess whether or not the appeal has good prospects of success.

APPLICATION OF THE LAW TO THE FACTS

The applicant's grounds of appeal are an attack on the factual findings of the trial court and its assessment of the credibility of witnesses.

In confirming the applicant's conviction, the court a quo found these findings to be rational.

The questions of whether or not the applicant was at the Mandara residence at the time of the offence, or whether the defence witnesses were coached, and whether the applicant used the gun in the commission of the offence, are enquiries of fact.

It is trite that an Appellate Court is slow to interfere with the factual findings of a lower tribunal.

The circumstances under which this Court will interfere with the findings a quo was clearly enunciated by this Court in RBZ v Granger & Anor SC47-09 as follows:

“There must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who had applied his mind to the facts would have arrived at such a decision. A misdirection of fact is either a failure to appreciate a fact at all, or a finding of fact that is contrary to the evidence actually presented.”

See also Zvokusekwa v Bikita Rural District Council SC44-15.

In Zimre Property Investments Ltd v Saintcor (Pvt) Ltd t/a vTrack & Anor SC59-16…, it was held that:

“The position is now settled, that, an Appellate Court will not interfere with the findings of fact made by a trial court unless the court comes to the conclusion that the findings are so irrational that no reasonable tribunal, faced with the same facts, would have arrived at such a conclusion. Where there has been no such misdirection, the Appeal Court will not interfere. This position was aptly captured by this court in Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S). At 670, KORSAH JA remarked:

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

It is also an established principle that an Appellate Court is slow to interfere with the findings of credibility of the witnesses by a lower tribunal. This principle was well captured in the case of Gumbura v The State SC78-14…, where the Court remarked as follows:

“As regards the credibility of witnesses, the general rule is that an Appellate Court should ordinarily be loathe to disturb findings which depend on credibility. However, as was observed in Santam BPK v Biddulph (2004) 2 All SA 23 (SCA), a court of appeal will interfere where such findings are plainly wrong. Thus, the advantages which a trial court enjoys should not be over-emphasised. Moreover, findings of credibility must be considered in the light of proven facts and probabilities.”

I want to zero in on how the trial court dealt with the evidence of the defence witnesses.

The applicant raised the defence of an alibi.

He led evidence from witnesses in support of his defence that he was not at his Vainona home on the date and time when the alleged rape was committed.

The trial court, in dealing with the evidence of defence witnesses, stated, that, the credibility of the witnesses in question was attacked by the prosecution mainly on the ground that they had been coached by the applicant on what to say.

The other ground of attack, on the credibility of Cletos Kereke, Anna Muswapadare and Patience Muswapadare was that their statements were all commissioned by the same legal practitioner on the same day.

It is common cause, that, the statements of Cletos Kereke, Patience Muswapadare, Anna Muswapadare, Vincent Muswapadare, were all sworn to on 10 August 2010 and were commissioned by a legal practitioner by the name Takudzwa L. Takawira.

These four witnesses stated, that, they were called to a police station in Borrowdale on 10 August 2010 and the police interviewed them on this matter. As they were giving their answers, the police were typing out, and, after that, the police then gave them the statements to go and have them commissioned by a commissioner of oaths of their choice.

They said that they did not meet each other at Borrowdale Police Station neither did they meet at Takudzwa L. Takawira Chambers.

Each of them independently went into town to have his or her statement commissioned, and, by coincidence, they all found themselves at Takudzwa L. Takawira's office at different times.

The trial magistrate found this amiss.

There was no satisfactory explanation as to why the police would record their statements in affidavit form and refer them for commissioning elsewhere when they could have commissioned them as they did with the applicant's affidavit.

He further found, that, it could not be coincidence that all the witnesses independently got into town and ended up at the offices of the same legal practitioners for commissioning of their affidavits.

He concluded by stating:

“The above proves to me, beyond any reasonable doubt, that these witnesses were lying as regards how their statements were recorded and commissioned. There is no other reason for lying on these aspects other than that their statements were pre-recorded before these witnesses went to the police. Even accused's affidavit statement was pre-recorded; this is clear from the declaration by the officer in charge who recorded the statement, and, I quote:

'I certify that the above statement was made freely and voluntarily by MUNYARADZI KEREKE who was in his sound and sober senses and tendered his prepared affidavit statement through his legal practitioner Tawanda Herbert Chitapi.'

The question is: why these witnesses would pre-record their statements before they went to police, and, why they would lie about this fact to the court?

There is only one reasonable conclusion: that someone influenced them on what to write in the statements and they did not want the court to know about the fact - the only reasonable conclusion is that the accused is the one who influenced them.

I draw the above inference because that is the only reasonable inference which can be drawn from the proved facts which I have stated above: see S v Marange and Others 1991 (1) ZLR 244 SC; R v Vhera 2003 (1) ZLR 668.

See also SCHWIKKARD at p530; also S v Vhera 2003 (1) ZLR 668.

I therefore agree with the prosecution's submission, that, the witnesses mentioned above were influenced on what to say.

The court should therefore never put any reliance on influenced witnesses.

It is clear the accused influenced them.

This will also tend to support complainant's case that she is telling the truth; see S v Chigwada SC206-88; S v Katerere SC55-91.”

The court a quo found, that, the trial court's finding, that the applicant was not at the Mandara residence on the day in question, was unassailable. It found that the trial court, after a careful and detailed analysis of the defence witnesses evidence, properly rejected the defence of the alibi as false. The defence witnesses testimony was properly rejected on the basis of the anomaly that the statements were commissioned by one lawyer on the same date. That was proof of coaching.

The the applicant's complaint is that the trial court rejected the alibi witnesses evidence on the basis that they were coached when there was no direct evidence of that. It relied on inferences without applying the laid down test.

That their evidence, being in affidavit form, and having been commissioned by the same legal practitioner, is evidence of coaching is so shocking that no other court would arrive at the same decision, so it was contended.

The test for the proper use of circumstantial evidence was laid down in R v Blom 1939 AD 188…, (quoted with approval in Moyo v The State SC65-13) where it was stated:

“In reasoning by inference, there are two cardinal rules of logic which cannot be ignored:

(1) The inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn.

(2) The proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then, there must be a doubt whether the inference sought to be drawn is correct.”

A court intending to rely on such evidence must ask itself a few questions:

The first one is what the proved facts are.

In casu, if the trial court had asked itself the above question, it might have arrived at a different conclusion.

The prosecution did not lead evidence to controvert the position stated by the defence witnesses regarding the recording of their statements. The issue arose during the cross-examination of the defence witnesses. The prosecution had not laid a basis for putting in issue what the defence witnesses said happened.

As was correctly submitted by counsel for the applicant, coaching is a positive act.

Evidence has to be led as to the form, manner, and timing of such coaching.

In casu, no such evidence was led.

It appears the finding that the witnesses were coached was not based on demeanour but on probabilities.

The Supreme Court, in such a situation, will be in the same position as the trial court regarding the drawing of the pertinent inferences.

The point was made in Minister of Safety and Security and Others v Craig & Others NO 2011 (1) SACR 469 (SCA)…, where the following was stated:

“Although courts of appeal are slow to disturb findings of credibility, they generally have greater liberty to do so where a finding of fact does not essentially depend on the personal impression made by a witness demeanour, but predominantly upon inferences and other facts, and upon probabilities. In such a case, a court of appeal, with the benefit of the full record, may often be in a better position to draw inferences.”

In my view, this is the situation that pertains in casu.

The trial court rejected the evidence of the defence witnesses mainly on the basis of inferences and probabilities and not on the basis of their demeanour.

The Supreme Court, with the benefit of the full record, may well be in a better position to draw the suitable inferences.

The test to be used in considering the plausibility of the defence of alibi was stated in R v Hlongwane 1959 (3) SA 337 (AD); in that case, HOLMES AJA had this to say at 340H:

“The legal position with regard to an alibi is that there is no onus on an accused to establish it; and, if it might reasonably be true, he must be acquitted: R v Biya 1952 (4) SA 514 (AD). But, it is important to point out, that, in applying this test, the alibi does not have to be considered in isolation.”…,.

Further on, at 341A-B, the court held:

“The correct approach is to consider the alibi in the light of the totality of the evidence in the case, and the Court's impressions of the witnesses. In Biya's case supra GREENBERG JA said at p521:

'…, if, on all the evidence, there is a reasonable possibility that this alibi evidence is true, it means that there is the same possibility that he has not committed the crime.'”

Applying that test to the facts of the present case, the question is whether there is a reasonable possibility that the alibi evidence is true.

This is an aspect where the applicant might have prospects of success.

However, whether or not the success of his argument on this specific aspect will have the effect of upsetting his conviction is a matter that I am inclined to leave for determination by the Supreme Court.

I am loathe to pronounce on it as a single judge in chambers.

For that reason alone I am inclined to grant the applicant the relief that he seeks so that the Supreme Court determines the impact, if any, of this particular aspect of his argument, on the propriety of his conviction.

Accordingly, I make the following order:

1. The applicant is granted leave to appeal against the decision of the High Court, under judgment HH374-19, to the Supreme Court.

2. No order is made as to costs.

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

This is a Court Application for leave to execute pending appeal where the applicant is praying for the following relief:

“IT IS ORDERED THAT:

1. The application for execution of the order under HC40/20, dated 23 July 2020, pending the determination of SC333/20 is hereby granted.

2. The fourth respondent is granted leave to give effect to the Writ of Delivery of Movables lodged on 27 July 2020 under case HC40/20.

3. During the pendency of SC333/20, the applicant is temporarily interdicted from disposing of Cat Caterpillar Dump Truck 769C.

4. The first and second respondents shall bear the costs of this application if opposed.”

The application is opposed by the first and second respondents.

BACKGROUND

On 23 July 2020, after hearing the parties under case No. HC40/20, I granted the following order:

“1. The application for a declaration order succeeds.

2. The applicant is hereby declared the rightful owner of a Cat Catepillar Dump Truck 769C sold in execution on 18 October 2019 at Devuli Farm, Devuli Ranch, Bikita.

Consequently:

1. The first respondent is hereby ordered, within 24 hours of this order, to transport, at his own cost, the Cat Caterpillar Dump Truck 769C, from No.52B Plymouth Road, Southerton, Harare to Lot 2 Gweru Small Holding, Gweru.

2. The first and second respondents bear the costs of this application on legal practitioner and client scale.”

On 30 July 2020, the first and second respondents noted and filed an appeal against the entire and final judgment under HMT40-20, which appeal is pending.

The applicant has now applied for leave to execute the judgment albeit the appeal pending.

SUBMISSIONS BY COUNSEL

Counsel for the applicant submitted, that, a notice of appeal has the effect of staying a writ of execution but it ought not to come into effect in circumstances where such stay has the effect of perpetuating the commission of an offence or criminal conduct.

He submitted that the first and second respondents contravened section 22(2)(b) of the High Court Act [Chapter 7:06] by taking away the Dump Truck which has been attached and sold to the applicant at a public auction.

The applicant's counsel further submitted, that, the court has a discretion to grant or dismiss an application for stay of execution pending appeal.

He went on to contend, that, the court is enjoined to have regard to the preponderance of equities, the prospects of success on the part of the first and second respondents, and also whether the appeal had been noted so as to gain time or harass the applicant.

The court has to determine what is just and equitable in all the circumstances.

Counsel for the applicant urged the court to grant the application to enable the applicant to enjoy the use of the Dump Truck since he had judicially purchased it; furthermore, where the applicant is, by all means, an innocent purchaser.

The courts have to protect the purchaser even where an article is sold by mistake as belonging to a judgment debtor, it was contended by the applicant's counsel.

On the first and second respondent's prospects of success on appeal, the applicant submitted, that, judicial sales in execution, and the effects of a sale in execution, are immediate and profound and such sales are not lightly set aside, and the Supreme Court, equally so, is unlikely to interfere with such a sale.

The applicant went on to add, that, the reliance of the first and second respondent on Rule 340 of the High Court Rules 1971 amounts to a fresh argument which was never raised in the main application under HMT40-20.

In any case, it was submitted by the applicant, a sale in execution will only be set aside or negated under Rule 359 and not Rule 340.

The fourth respondent indicated that he did not receive the information timeously about the “full settlement” by the judgment debtor before the property was sold.

In view of the applicant, the appeal is hopeless and designed to frustrate the applicant by delaying the inevitable.

The first and second respondents counsel, on the other hand, submitted, that, the overall onus is on the party seeking execution pending appeal to satisfy the court that he is entitled to the relief sought and the court has the discretion.

The first and second respondents further contended that the grounds of appeal listed in the Notice of Appeal have bright prospects of success on appeal.

To the first and second respondents, they have an arguable case on appeal. To them, the appeal is free from predictable failure.

It was contended, that, the court erred in declaring the applicant owner of the Dump Truck when the sale in execution violated Rule 340 of the High Court Rules. Moreso when the first and second respondents satisfied the judgment well before the auction took place.

The first and second respondents further submitted, that, there is no prejudice or irreparable harm to talk about on the part of the applicant. The respondents are the ones who stand to be prejudiced, for the two will lose their valuable Dump Truck.

It was also argued, on behalf of the first and second respondents, that, the applicant has established no basis on the affidavits which upsets the common law position that allows staying of execution pending appeal.

Since the first and second respondents have tendered security, the applicant's fear of irreparable harm have been allayed.

Finally, the first and second respondents submitted, that, the equities favour them and they pray for the dismissal of the application with costs on a higher scale of attorney-client scale.

THE LAW

When dealing with an application for leave to execute pending an appeal, the Court is enjoined to exercise its discretion in coming to a decision regarding whether the application ought to succeed or not.

The following mundane and often-cited guidelines are relevant:

(a) The potentiality of irreparable harm or prejudice being sustained by the appellant if leave is granted;

(b) Conversely, the potentiality of irreparable harm or prejudice sustained by the respondent, on appeal, if leave to execute is not granted;

(c) The prospects of success on appeal, including the question whether the appeal is frivolous or vexatious or noted, not with the bona fide intention of reversing the judgment appealed against, but for some motive e.g. to gain time.

(d) Where there is the possibility of irreparable harm to both parties, the balance of hardship or convenience:

See Arches (Private) Limited v Guthie Holdings (Private) Limited 1989 (1) ZLR 152 (H); ZDCO (Pvt) Ltd v Commercial Careers College (Pvt) Ltd 1991 (2) ZLR 61 (H).

The Notice of Appeal has the general effect, at common law, of staying the writ of execution, but it is not intended to operate or come into effect in circumstances where such stay had the adverse effect of perpetuating a commission of an offence or to perpetrate criminal conduct: see Chase Mineral (Pvt) Ltd v Madzikita 2002 (1) ZLR 488 (H) 490.

Further, the automatic stay of execution, upon noting of appeal, as a rule of practice, is not a firm rule of law, but a long established practice regarded as generally binding - subject to the court's discretion: see Vengesai & Ors v Zimbabwe Glass Industries 1998 (2) ZLR 593 (H) 598.

At the core or pith of enquiry relating to an application of this genre is the duty of the court to determine what is just and equitable: see South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A)…,.

The principle to be applied by the court considering the grant of an application for leave to execute on a judgment under appeal is what is just and equitable in all circumstances: see Whata v Whata 1994 (2) ZLR 277 (S)…,.

In assessing whether an appeal pending determination in the upper court has got prospects of success, has to do with whether the appellant has got an arguable case or whether it is manifestly a predictable failure: see Pfumbidzayi v State HH726-15; Chikumba v State HH724-15.

APPLICATION OF LAW TO THE FACTS

Central to the principle or guidelines applicable to an application for leave to execute pending appeal is, in my view, the prospects of success on appeal.

Put differently, whether the appeal is frivolous or vexatious or was noted, not with the bona fide intention of reversing the judgment appealed against, but for some motive, for instance, to gain time.

Akin to this foregoing, whether the appellant has an arguable case in the matter pending in the Supreme Court.

The quintessence or gravamen of the appeal, in my view, focuses on the order that declared the applicant herein the legitimate owner of the Dump Truck by virtue of being a purchaser at a well-publicised auction.

The first and second respondents contend that I erred to order as such because they had fully met their indebtedness to the judgment creditor in the matter where the Dump Truck was subject of attachment.

In my judgment, under HMT40-20, I dwelt at a great length on this subject and concluded, that, the first and second respondents did not timeously offset the judgment debt.

The balance of $30,405=98, paid by the Sheriff, was deducted from the proceeds of the selling of the Dump Truck; that is, from the money paid by the applicant herein.

As such, Rule 340 of the High Court Rules 1971 does not come in.

Had that money been paid by the first and second respondents, the situation would be totally different.

Where an innocent purchaser of an asset, sold at a public auction, is involved, these courts readily protects such and a sale, once conducted and vests rights in the purchaser, such rights are not easily reversed even where an error is detected: see SILBERBERG and SCHOEMAN's The Law of Property, 5th ed…,.; Naran v Midlands Chemical Industries SC220-91; Kanoyangwa v Messenger of Court & Ors 2007 (1) ZLR 124 (S).

In my own view, I conclude, that, the first and second respondents do not have an arguable case before the Supreme Court; they had filed the notice of appeal to buy time.

The applicant before me genuinely and honestly parted with his money and bought the Dump Truck obviously for use at his workplace. He is not using the Dump Truck, his money is not earning any interest nor is it productively utilised; in a hyper-inflationary operational environment like in Zimbabwe, the time value of money theory is adversely affecting the applicant.

He complied with all the requirements of the Sheriff's auction and all his actions were above board.

I discern no reasonable basis to punish such an innocent purchaser by forestalling the legal process of ensuring that the applicant enjoys the fruits of his purchase.

In any case, the nature of the order being sought by the applicant caters for the non-disposal of the Dump Truck until the appeal to the Supreme Court is finalised. It is just and equitable that leave to execute pending appeal is granted.

The first and second respondents illegally snatched the Dump Truck from the control of the fourth respondent. They are still benefitting from its use, possibly earning money from its use, and drawing down its market value through wear and tear. The applicant virtually facilitated this retention of the Dump Truck by the first and second respondents by paying the debt, not for the applicant's benefit but to the advantage of the first and second respondents. The applicant will eventually get the Dump Truck in a condition that is entirely different from what it was at the time he bought it.

That situation obviously would result in an irreparable harm to the applicant.

The balance of convenience favours the granting of the order for leave to execute pending appeal.

As regards costs, I see no basis for denying the applicant costs as prayed for by the applicant.

The conduct of the first and second respondents in the matter shows a deliberate disregard of the law by snatching property on attachment and then opposes an application for leave to execute pending appeal, where it is clear that the applicant enjoys the benefits of the Dump Truck he acquired through a judicial sale.

The application succeeds and it is ordered as follows:

1. The application for Execution of the Order under HMT40/20, dated 23 July 2020, pending the determination of SC333/20 be and is hereby granted.

2. The fourth respondent is granted leave to give effect to the Writ of Delivery of Movable lodged on 27 July 2020 under Case No. HMT40-20.

3. During the pendency of SC333/20, the applicant is temporarily interdicted from disposing of Cat Caterpillar Dump Truck 769C.

4. The first and second respondents shall bear the costs of this application at an ordinary scale.

SC93-21 : RINOS TERERA vs GEORGE LOCK and CK HOLLAND t/a HOLLAND ESTATE AGENT and ZIMBABWE HOUSING COMPANY (PVT) LTD and THE REGISTRAR OF DEEDS
Ruled By: CHITAKUNYE AJA

In terms of Rule 38(1)(a), the applicant ought to have noted his appeal within 15 days from the date of judgment.He was unable to do so hence this application for condonation of non-compliance with the Rule and extension of time within which to appeal.

HH02-21 : ERNEST MHAMBARE vs ALFRED MWAZHA and OTHERS
Ruled By: MUREMBA J

Following a leadership dispute in the African Apostolic Church (VaApostora VeAfrica) which is the tenth respondent in this matter, the applicant approached this court, by way of a court application in case number HC2402/20 for a relief.

He petitioned the court, in his capacity as an interested party, reverend and church member, for a declaratur to set aside the purported appointment of the first respondent, Alfred Kushamisa Mwazha as the successor to the founder and Archbishop of the church, Paul Ernest Mamvuru Mwazha (Paul Mwazha) now a centurion at 102 years.

The first respondent (Alfred Mwazha) together with the second, third and fourth respondents (Ngoni Mwazha, Masimba Mwazha and James Mwazha) are sons of Paul Mwazha.

Whilst the first (Alfred Mwazha) and fourth (James Mwazha) respondents are bishops in the church, the second respondent (Ngoni Mwazha) is a former member and bishop of the church.

The third respondent (Masimba Mwazha) is a Seventh Day Adventist.

The rest of the respondents, from the fifth to the ninth respondents (Richard Juru, Elson Tafa, Charles Tekeshe, Lovemore Mharadze and Norman Siyamuzhombwe), hold high ranking positions in the church, the tenth respondent (African Apostolic Church (VaApostora VeAfrica)).

I must particularly mention that the fifth respondent (Richard Juru) is the General Secretary of the church....,.

In HC2402/20, it was the applicant's contention, that, the first respondent (Alfred Mwazha) usurped power by seeking to ascend to the position of Archbishop and leader of the tenth respondent (African Apostolic Church (VaApostora VeAfrica)) unconstitutionally, contrary to the provisions of the tenth respondent's Constitution.

He contended, that, the first respondent acted in connivance with the second to ninth respondents (Ngoni Mwazha, Masimba Mwazha, James Mwazha, Richard Juru, Elson Tafa, Charles Tekeshe, Lovemore Mharadze and Norman Siyamuzhombwe) in usurping power.

The applicant contended, that, the first respondent was purporting to have been appointed by the Archbishop as his successor.

Although the respondents opposed the application, CHITAPI J made a finding, that, the note the respondents were relying upon did not support their claim that the Archbishop nominated or appointed the first respondent as successor. He granted the following order on 3 December 2020:

“1 The purported nomination and/or appointment of the first respondent, as the Archbishop or successor to the Archbishop of the tenth respondent, presently Ernest Paul Mamvura Mwazha, is unconstitutional vis–a-vis the 10th respondent's Constitution, and, resultantly, is null and void.

2. Any appointments and re-assignments of personnel made by the 1st respondent, and other actions which changed the administration of the church made by the 1st respondent, in the purported position of Archbishop, are null and void.

3. The respondents are each and all of them ordered to comply with the provisions of clause 9.2.2 of the 10th respondent's Constitution in regard to the succession dispute bedeviling the 10th respondent. The respondents must comply with this order within seven (7) days of the date of this order.

4. The 1st to 9th respondents, jointly and severally, the one paying the other to be absolved, shall pay costs of this application on a party and party scale.”

Dissatisfied or aggrieved by the judgment of this court, the respondents noted an appeal, under SC552/2020, on 11 December 2020.

In turn, the applicant, on 17 December 2020, filed the present urgent chamber application for leave to execute pending appeal.

It is the applicant's contention, that, since noting the appeal, the first to ninth respondents (Alfred Mwazha, Ngoni Mwazha, Masimba Mwazha, James Mwazha, Richard Juru, Elson Tafa, Charles Tekeshe, Lovemore Mharadze and Norman Siyamuzhombwe) have been harassing him and other members of the church. They have been violently disrupting church services together with their followers. They have taken over the church structures and have been influencing their followers to disrupt church gatherings and places of worship.

He then referred to some specific incidents which I will refer to later on in the judgment.

The applicant averred, that, he wants peace and tranquillity.

In response to the application, the respondents raised two (2) points in limine....,.

I now revert to the points in limine raised by the respondents. As I have already stated elsewhere above, the respondents raised two (2) points in limine:

(i) Firstly, that the matter is not urgent.

(ii) Secondly, that the relief sought is not the remedy for the injury alleged. In addition to that, the interim relief and the final relief that are being sought are identical.

Urgency

The respondents averred that the matter should not be treated as urgent because the applicant is seeking leave to execute an order that was granted in an ordinary application on an urgent basis.

They averred, that, although the face of the judgment speaks of an urgent application, the matter was brought as an ordinary court application which shows that the applicant himself accepted that the matter was not urgent at the time that he filed it.

The applicant did not dispute that the matter was brought as an ordinary application and not as an urgent application.

The respondents averred, that, the certificate of urgency does not demonstrate the urgency of the matter save to make bald allegations of urgency. They averred, that, the applicant did not, in the founding affidavit, demonstrate how and when the urgency arose. The respondents averred, that, more importantly, no evidence was placed before the court to show that there was violence and what the form of violence was. They contended that it seems that the applicant is bent on having an application for leave to execute on an urgent basis when there is no such urgency.

In the certificate of urgency, it is stated, that, the respondents filed the appeal with the aim of abusing, victimising, and harassing members of the church.

The applicant, and over a hundred thousand members of the church, have been suffering the brunt of the respondents continuous violence and illegal actions and there is nowhere to run.

It was further averred, that, the applicant acted with urgency.

The notice of appeal was filed on 11 December 2020 and the said infractions had happened during the course of the previous week. There is imminent danger to the applicant's rights, most importantly the right to gather, freedom of assembly, and freedom of conscience. If the respondents are allowed to persist with their unlawful conduct it will lead to further violence, injury, and destruction of property.

In the founding affidavit, the applicant averred, that, the first to ninth respondents have been waging a war against church members.

They have been using groups of supporters to ferment violent habits, disrupt church services, and alienate church property. The places of worship have been turned into places of conflict. Vulnerable members, such as orphans, widows, the aged, and children are now unable to attend church services because of the violence. Their rights to freedom of assembly, association, and conscience as enshrined in sections 58 and 60 of the Constitution of Zimbabwe Act 2013 need to be protected and preserved pending appeal.

The applicant contended, that, there is danger of irreparable prejudice to him and hundreds of thousands of other church members in several countries and the ill Archbishop.

The applicant averred that he acted at the earliest opportunity in bringing this application.

Counsel for the applicant submitted, that, the applicant did not waste time in protecting his rights because the disruption of churches happened from 4 December 2020 up to 10 December 2020. The notice of appeal was filed on 11 December 2020 and the violence continued up to 14 December 2020. The application was then filed on 17 December 2020.

She further submitted, that, by noting the appeal, the respondents wanted to disobey the court order as it is frivolous and vexatious.

I find merit in the objection by the respondents.

The certificate of urgency, and the founding affidavit, do not inform why the application for leave to execute has to be heard on an urgent basis given that the main matter giving rise to this application was brought and heard as an ordinary application.

The judgment thereof by CHITAPI J shows that the hearing started on 31 July 2020 and the judgment was handed down on 3 December 2020. In between the two dates, the matter was heard on 5 August and 14 August 2020.

The question that comes to mind is how then can execution thereof become urgent all of a sudden?

A matter is urgent, if, at the time the need to act arises, the matter cannot wait: see Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H).

In other words, time being of the essence in urgent matters, the applicant should act when the need to act arises.

The certificate of urgency, and the founding affidavit, must therefore exhibit urgency in the manner that the applicant reacted to the events or situation complained of.

If the situation complained of has been existing for a significant time before the application is made, the matter is not urgent: see Gwarada v Johnson & Ors 2009 (2) ZLR 159 (H).

In casu, the anarchy in the church is what necessitated the filing of the present application.

The applicant is basically complaining about physical violence in the church, disruption of church services, and alienation of church property.

Despite his founding affidavit being 16 pages long, he only referred to three (3) specific incidents.

The rest are generalised averments about people fighting in the church over public address systems and other property of the church.

There are also averments about people having resorted to leaving children, wives, and the sick at home fearing violence at church.

It is not stated where and when this happened. The specific perpetrators thereof are not mentioned.

The following are the specific incidents that the applicant referred to:

On 5 December 2020, there was violence at Hopely Circuit, Zone 6, Harare. One Chikono came with a group of people to disrupt church service. They claimed to be acting for and on behalf of the first respondent. A case of assault was opened under RRB4620501 by the victim.

In Mutare, the weekend after the judgment was delivered, all church services were disrupted. People appointed into leadership positions by the first respondent tried to forcefully take control of church proceedings, resulting in resistance from the congregation. This led to violence erupting. Police had to be called to maintain peace and order during services.

The applicant also referred to an assault incident that allegedly happened on 27 October 2020 at Caledonia Farm African Apostolic Church, Eastview Circuit. One Onias Sibanda assaulted one Hatidani Maphosa and a police report was made at Mabvuku Police station under RRB4539885.

These incidents show, that, the anarchy in the church has been ongoing since October 2020 - well before the judgment was delivered on 3 December 2020. It continued even after the judgment had been passed and before the appeal was noted on 11 December 2020.

The incident of 5 December 2020 is pertinent.

Even after the appeal was noted, the anarchy is said to have continued. This has been a continuing state of affairs, with the bulk of the incidents complained of having happened before the appeal was noted on 11 December 2020.

The matter cannot therefore be urgent.

The applicant did not act when the need to act arose, as far back as October 2020, right up to the time the appeal was noted on 11 December 2020.

His application does not exhibit urgency in the manner that he reacted to the events or situation complained of.

The events or situations complained of were in existence for a significant time before the application was made. The matter cannot therefore suddenly become urgent because the respondents have filed an appeal.

To make matters worse, other than generalised averments, the applicant refers to no specific incident that happened after the 11th of December 2020 - after the appeal was filed.

Therefore, the applicant has not laid any foundation for his contention, that, since noting the appeal, the first to ninth respondents, together with their followers, have been harassing him and other members of the church by violently disrupting church services and taking over the church structures.

The matter cannot therefore be urgent.

Repetitive and unsubstantiated generalized averments, that the applicant's and other church members constitutional rights have been violated, do not help the applicant's case.

The relief sought is not the remedy for the injury alleged: what is alleged is wrongful conduct of violence, disruption of church services, and alienation of church properties.

On this basis, the applicant is seeking leave to execute pending appeal.

It is the respondents contention, that, the relief being sought by the applicant is not the remedy for the injury or wrongful conduct alleged. Their argument is that the injury complained of does not arise from the inability to execute the judgment that was granted by CHITAPI J on 3 December 2020.

Counsel for the respondents submission was, that, if these allegations are proven, they would entitle the applicant to some other remedy, like an interdict, but, certainly not leave to execute pending appeal.

His argument was that the judgment that the applicant is seeking to execute pending appeal is centred on a succession dispute between the parties which emanated from the interpretation of a note the respondents are relying upon as the basis of the first respondent's appointment. He further submitted, that, the judgment had nothing to do with the anarchy that the applicant is now complaining of in the present application. He argued that the two disputes are different. As such, the applicant cannot seek to execute a judgment that was granted on a different cause of action on the basis of a different cause of action.

I am in agreement.

A judgment granted on a different cause cannot be executed on the basis of a different dispute.

In my discussion of the first point in limine, on urgency, I have already demonstrated, that, the wrongful conducts that necessitated the filing of the present application started as way back as October 2020 and continued after the judgment was delivered, before the appeal was noted.

The delivery of the judgment did not stop the anarchy.

The applicant did not, in his founding affidavit, explain how its execution pending appeal will stop the anarchy.

The judgment simply declared unconstitutional the purported appointment of the first respondent as the successor to the Archbishop. It nullified his appointment. It also nullified all appointments of personnel that he made in his purported position as Archbishop. The judgment further ordered the respondents to comply with the provisions of clause 9.2.2 of the tenth respondent's Constitution, for the Priesthood Council (a council of Bishops) to preside as the head of the church on behalf of the Archbishop.

If the judgment is executed, it will change the leadership of the church into a further dimension which is totally different from what is prevailing now and what was prevailing before the purported appointment of the first respondent. It is going to remove the first respondent from the position of Archbishop. At the same time, it is not going to restore Paul Mwazha as the Archbishop.

The question is: how is all of this going to resolve or stop the anarchy that has been ongoing since October 2020 - well before the judgment was delivered?

The applicant did not explain the link between the execution of the judgment pending appeal and the wrongful conduct complained of.

I am in agreement with the respondents that the two are divorced from each other. I will thus uphold the point in limine.

Disposition

The two points in limine are interwoven as the second point in limine also determines whether or not the matter is urgent.

The applicant is seeking leave to execute judgment pending appeal, on an urgent basis, on the basis of a dispute that is different from the dispute that gave rise to the judgment. Clearly, the relief that he is seeking is not the remedy for the injury alleged.

In the circumstances, the matter cannot be urgent, even if it was timeously filed a few days after the appeal was noted. The relief sought is also an important consideration in determining whether or not the matter is urgent. If there is no link, whatsoever, between the injury complained of and the relief sought, as is the situation in casu, the matter cannot be urgent.

In the result, I make the determination, that, the matter is not urgent. It be and is hereby struck off the roll with costs.

SC21-18 : EASTER MZITE (as Executrix Dative Estate Late Chemayi Joseph Mtize) vs DAMAFALLS INVESTMENTS (PVT) LTD and MASTER OF THE HIGH COURT
Ruled By: BHUNU JA

This is an application for condonation and extension of time within which to note an appeal in terms of Rule 31(3) of the Supreme Court Rules 1964.

The applicant is the widow of the late Chemayi Joseph Mtize. She is the duly appointed executrix dative of his deceased estate.

The first respondent, Damafalls (Pvt) Ltd, is a duly registered company in terms of the laws of Zimbabwe, whereas the second respondent, the Master of the High Court, is cited in his official capacity. He is responsible for the administration of deceased estates.

The first respondent sued the applicant in the High Court alleging that during his life time the deceased sold Stand Number 2699, Gwelo Township to it. In consequence whereof, it sought the following relief against his deceased estate:

1. An order for the setting aside by the second defendant of the distribution of Stand 2699 Gwelo Township to the beneficiaries of the estate late Chemayi Joseph Mtize.

2. An order for the transfer of Stand 2699 Gwelo Township from the estate of the Late Chemayi Joseph Mtize to the plaintiff, failing which the Deputy Sheriff Gweru be authorised to sign the transfer documents.

3. An order for the eviction of the first defendant from Stand 2699 Gwelo Township.

4. An order for payment of US$2,800 together with a sum of US$400 per month from 1 December 2014 to date of eviction of first defendant and all those claiming occupation in her name; or, alternatively, an order for payment to the plaintiff by the first defendant of the value of the said property currently US$60,000.

5. An order for payment of legal costs on an attorney client scale.

The applicant unsuccessfully defended the respondent's suit in the court a quo with judgment being given against her on 23 December 2015.

If she intended to appeal against that judgment she had 15 days from the date of judgment to note her appeal in terms of Rule 30 of the Supreme Court Rules 1964.

She however only approached this court on 26 February 2016 with this application for condonation of late noting of appeal and extension of time to file the appeal. By then, she was 26 days out of time excluding weekends and public holidays....,.

Rule 30 of the Supreme Court Rules 1964 requires, that, where leave to appeal is not necessary the aggrieved party must appeal to this court within 15 days of the date of judgment.

HH170-22 : DIVVYLAND INVESTMENTS (PVT) LTD vs DAVID CHIWEZA and THE SHERIFF OF ZIMBABWE
Ruled By: FOROMA J

The applicant filed this application as an Urgent Chamber Application seeking the following order:

(1) That the execution of the eviction ordered under SC138/21 and allowed to continue under HH83-22 be allowed pending finalization of the appeal under CV SC63/22.

(2) That the first respondent pays the applicant's costs of suit on the higher scale of legal practitioner and client.

The application is opposed by the first respondent who objected in limine that the matter is not urgent....,.

I proceed to consider the point in limine raised by the first respondent, namely, that, the applicant's application is not urgent.

The applicant's application is for leave to execute the High Court judgement in HC214/22, Annexure D…, which judgement has been appealed against by the first respondent.

The applicant considers that the appeal noted has no prospects of success and has been noted for purposes of frustrating the applicant's efforts to recover its property from the first respondent as ordered by the Supreme Court per judgment no. SC138-21.

I do not propose to comment on the merits of the application as that is not necessary for purposes of determining the preliminary objection taken by the first respondent. In any event, it would be undesirable to do so before the issue of urgency (the preliminary point raised) is determined.

The authority often cited when arguing determination of the issue of urgency in matters filed as urgent applications, and which many regard as the locus classicus, is the case of Kuvarega v The Registrar General & Anor 1998 (1) ZLR 188 (H). Both counsels referred me to it and its ratio cannot be gainsaid.

The Rules of the court do not define the term urgent or urgency.

The High Court Rules 2021, in Rule 60(3)(d), provides for situations where an applicant is excused from serving a chamber application on all interested parties.

In that Rule, urgency is addressed as follows:

“(3) A chamber application shall be served on all interested parties…, or unless that applicant reasonably believes one or more of the following:

(a)…,.

(b)…,.

(c)…,.

(d) The matter is so urgent and the risk of irreparable damage to the applicant is so great that there is insufficient time to give due notice to those otherwise entitled to it.”

This type of urgency is not necessarily the type of urgency which distinguishes ordinary chamber applications and ordinary court applications from urgent chamber applications. It is one of the types of situations which justify the non-service of the chamber application on interested parties. It however would qualify a matter to be instituted as an urgent chamber application.

The requirements for an urgent chamber application are governed by Rule 60(6) of the High Court Rules which provides as follows:

“(6) Where a chamber application is accompanied by a certificate from a legal practitioner in subs r(4)(b) to the effect that the matter is urgent, giving reasons for its urgency, the registrar shall immediately submit it to the duty judge handling urgent applications who shall consider the papers forthwith.”

As indicated herein above, the High Court Rules 2021 do not define the term urgent or urgency, and, in my view, advisedly so.

The court and the legal practitioners per force must be guided by precedent in determining the purview of this term which tends to elude many who believe that it must subjectively be assessed yet it can only be objectively tested and established.

On the authority of Kuvarega v The Registrar-General & Anor 1998 (1) ZLR 188 (H) a matter is urgent, if, its determination cannot wait when the need to act has arisen, lest, by waiting, irreparable damage/loss will be occasioned to a party craving the court's intervention on an urgent basis.

In casu, the applicant seeks leave to execute a judgement appealed against pending the determination of the appeal noted against the said judgment. The judgment appealed against is that of the High Court which judgement dismissed an application for a stay of execution of the Supreme Court judgment granting the applicant the right to eject the respondent from premises known as Number 12 Le Roux Drive, Hillside, Harare.

The applicant argued, that, the matter is urgent as the appeal noted by the first respondent, not being meritorious and having no prospects of success, will cause irreparable loss to the applicant who:

(i) Must endure deprivation of the enjoyment of the right of use of its property;

(ii) Risks vandalizing of the property or/and including diminishing of the property's value by the day on account the day an amount of mounting judgements against him to vacate.

In the certificate of urgency filed in support of the urgent chamber application (paragraph 9) the legal practitioner claims:

“Applicant herein thus seeks an urgent order for execution pending appeal that was filed by the first respondent in the Supreme Court.”

Quite clearly, once a party has successfully obtained an order from a court, the speed with which its execution is achieved is not dependant on any further orders by the court as court orders are executed in the Sheriff's office.

Generally, an application for leave to execute pending appeal is pursued as a court application for good reason.

This is understandable as such applications are sometimes not dealt with by the judge whose judgement is subject of appeal (even though that would be preferable), and, for that reason, the court will require a complete record which may take time to prepare.

This is also in recognition of the fact, that, the judge whose judgement is on appeal, being functus, does not concern himself/herself with the speed with which his judgment is executed.

The desirability of saving a party from the risk of a nulla bona or brutum fulmen on execution is never the test of urgency. Rather, the test is the risk of irreparable damage/loss.

The applicant has not placed before me tangible bases for the argument that this matter is urgent to justify its being pursued as an Urgent Chamber Application.

The matter could have been pursued as an urgent court application in terms of Rule 60(12) of the High Court Rules 2021: see also Andrew John Pascoe v Ministry of Lands and Rural Resettlement & W Bungu & The Attorney General NO HH391-17.

Most of the arguments advanced address the merits of the relief sought as opposed to the aspect of urgency.

In terms of Rule 60(18) I find that the application is not urgent within the meaning of this Rule and I accordingly strike it from the roll of Urgent Chamber Applications.

The applicant is at liberty to proceed in terms of Rule 60(19) of the High Court Rules 2021.

HH801-22 : EQUITY PROPERTIES (PVT) LTD vs AL SHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS N.O.
Ruled By: MANGOTA J

I set HC6264/21 down for hearing. The hearing was scheduled for 20 June 2022. At the hearing, the applicant, which was the respondent in the case, raised a preliminary point. It did so through counsel.

Its in limine matter was that the first respondent (“the respondent”) which was the applicant in the court a quo did not file its Heads within the dies which TSANGA J issued to the parties on 4 February 2022. It insisted that the respondent was barred and could not, therefore, be heard until it unbarred itself.

The respondent opposed the preliminary point which the applicant raised.

It admitted that it did not file its Heads within the dies. It claimed that it had agreed with the applicant, that, both parties would file their respective Heads outside the order which the court issued to them.

It unsuccessfully applied to uplift the bar.

Following the submissions of the parties, I remained of the view, that, both of them flouted the order of TSANGA J.

I decided that they were both barred and were, therefore, improperly before me. I, accordingly, struck HC6264/21 off the roll and ordered that each party meets its own costs.

The decision which I made constitutes the applicant's cause of action. It filed this application for leave to appeal the same.

It attached to the application its draft notice and grounds of appeal. It remains of the view, that, I should not have made a finding which was/is to the effect that it was barred. It insists, that, it could not file its Heads without the respondent having filed its Heads first. It claims, that, once the respondent was barred, it no longer had any obligation to file Heads or any further pleading other than to apply that default judgment be entered against the respondent.

It, accordingly, moves me to grant leave to it to appeal.

The respondent opposes the application for leave to appeal. It insists, that, the appeal has no merit, and, therefore, has no reasonable prospects of success.

It alleges, that, both the applicant and it were improperly before the court. Both parties, it asserts, were in contempt of court by virtue of not obeying the court order which directed them to file their respective Heads within certain time-frames.

It argued, through counsel, that, Part XVI of the High Court Rules 2021 deals with such applications as the one which the applicant placed before me. It placed reliance on Rule 94(8) as read with sub-rules (1) and (2) of the same Rule of court which subrules it claims are peremptory.

It asserts, that, the application for leave, which, according to it, does not comply with the mandatory rules of court, is fatally defective and must therefore be dismissed with costs.

An application for leave to appeal places the judge before whom it is placed in an invidious position.

The applicant, it would appear, will be inviting the judge to review his own decision.

The judge who takes the position of reviewing his own work falls into an unfortunate situation where, at the hearing, he is tempted to make common cause with the respondent.

He should make every effort not to be tempted to agree with the respondent at the detriment of the applicant. He should, at all times, endeavor to be as objective as he humanly can.

His guiding rod in the determination of such an application as the present one is whether or not the applicant has reasonable prospects of success on appeal: Pichanic N.O. v Paterson 1993 (2) ZLR 163 (H); Afrikaanse Pers Beperk v Oliver 1949 (2) SA 890.

Whether or not the application is defective on the alleged ground, which is to the effect that the applicant did not comply with Rule 94 of the rules of court, will unfold itself upon an analysis of the said Rule as well as on a proper interpretation of the same.

Sub-rule (8) of Rule 94 of the rules of court is relevant.

Its import is, that, where leave to appeal is necessary in respect of a judgment given in a civil court, sub-rules 1–7 of the Rule shall apply to an application for leave to appeal…, as if the words 'Prosecutor-General' there were substituted the word 'respondent'.

Sub-rule (1) of Rule 94 of the High Court Rule stipulates, that, where leave to appeal is sought, the applicant:

(a) May apply, orally, immediately after judgment has been entered against it: and

(b) Should state his grounds for the application.

Sub-rule (2) of Rule 94 is to the effect, that, where the applicant has not made an oral application in terms of sub-rule (1), he may file with the Registrar a written application within twelve days of the date of the judgment. The written application must, according to the proviso which is in the sub-rule, state the reasons why the application was not made in terms of sub-rule (1) of Rule 94 of the rules of court.

It is on the strength of the abovementioned sub-rules of Rule 94 of the High Court Rules 2021 that the respondent argued that the application was/is defective.

It submitted, that, the applicant violated sub-rules (1) and (2) as well as the proviso to sub-rule (2) of Rule 94. It insists, that, both sub-rules are peremptory and should, therefore, have been complied with to the letter and spirit.

The respondent's contention, it has been observed, is that the application for leave is defective.

I disagree.

Whilst it is agreed that Rule 94 of the High Court Rules relates to applications for leave to appeal, the Rule is not peremptory as the respondent would have me believe. It is optional or discretionary. Its use of the word 'may' in each subrule says it all.

It only becomes peremptory in paragraph (b) of sub-rule (1).

It becomes mandatory in the sense, that, once the applicant has taken the option to apply orally for leave to appeal, he is enjoined by the Rule to state, as well as record, his grounds of the application as part of the record. The net effect of paragraph (a) of sub rule (1) of Rule 94 of the High Court Rules is that he is at liberty to apply or not to apply orally for leave to appeal.

Equally of importance to the applicant is the discretion which sub-rule (2) of Rule 94 confers upon him.

He may, or may not, file a written application with the Registrar where he has not exercised his right to apply for leave to appeal under sub-rule (1) of Rule 94 of the rules of court. However, where he chooses to exercise his right in terms of Rule 94(2), the proviso to the Rule imposes upon him certain conditions which he must comply with. He must, for instance, state the reason why he refrained from exercising his option in terms of sub-rule (1) of Rule 94. He must also state the proposed grounds upon which he contends that leave to appeal should be granted to him.

What is evident, from a reading of sub-rules (1) and (2) of Rule 94 of the rules of court is that the applicant has a choice to pursue his options under either of the subrules - but not both. What is also clear is that, the moment he takes the one or the other sub-rule, his performance under his chosen sub-rule becomes peremptory leaving him with no choice but to act in accordance with the route which he has taken.

The Rule remains silent where he does not pursue his rights in terms of either sub-rule (1) or sub-rule (2).

It follows, in my view, that, he can choose not to follow the one or the other of the two sub-rules, as the applicant did in casu, and still be able to apply for leave to appeal under the common law.

The question which begs the answer is: can the application which he filed outside Rule 94 of the rules of court be suggested to be defective?

I think cannot.

The application remains as valid as the one which an applicant files under Rule 94 of the High Court Rules 2021. This application cannot, therefore, be said to be defective. It is within the law, so to speak.

For the applicant to succeed in its application for leave to appeal, it must demonstrate that it has reasonable prospects of success on appeal.

In laying down the test of reasonable prospects of success, the authorities were only stating the obvious. The obvious is, that, it would be a waste of the time of the court, and that of the respondent, if the applicant were to appeal just for the fun of it. An appeal which is filed without the applicant's serious intention to test the correctness or otherwise of the decision of the court a quo is frivolous and vexatious. No court will sanction an application which relates to such an appeal.

The context of this application is relevant.

The context is that, on 4 February 2022, TSANGA J, before whom the parties appeared, set specific time-lines within which they were to file their respective papers in preparation for the hearing of the matter. This was scheduled to take place at 10am of 28 March 2022. The learned judge directed, among other directions, that:

(a)…,.

(b)…,.

(c) The applicant a quo shall file its Heads on 16 February 2022; and

(d) The respondent a quo (applicant in casu) shall file its Heads on 2 March 2022.

That both parties filed their respective Heads outside the above-mentioned timelines requires little, if any, debate.

In deciding as I did, I remained alive to the fact, that, the directions of TSANGA J are, no doubt, an order of court which the parties had no choice but to obey.

I was further persuaded by case authority which discussed the issue which the parties had placed before me.

It is, for instance, trite, that, when a court order provides a time limit within which to do something…, such time limits ought to be followed. Failure to comply with such time limits leads to lapsing of the rights conferred therein: The Sheriff of the High Court of Zimbabwe v Madziro & Ors HH670-15.

It is a plain and unqualified obligation of every person against, or in respect of whom the order is made by the court of competent jurisdiction to obey it, unless and until that order is discharged; and, as is known, two consequences flow from that obligation:

(i) The first one is that anyone who disobeys an order of court is in contempt and may be punished by committal or attachment or otherwise.

(ii) The second is that no application to court by such person will be entertained unless he has purged himself of his contempt: Artiknson v Artkinson (1952) 2 All ER 567 (CA).

By not complying with the order of TSANGA J, both the applicant and the respondent were, no doubt, in contempt of the court order.

None of them could therefore be heard unless it purged itself of the contempt.

I found the applicant's finger-pointing at the respondent to have been made without any serious intention on its part. This was a fortiori the case given that it did not, on its part, make any effort to live within the four corners of the court order which the learned judge issued to the respondent and it.

The applicant premised the preliminary point which it raised on the order of TSANGA J. It did not rest it on the rules of court as it seems to suggest in its Heads. It submitted, that, the respondent did not comply with the order of TSANGA J.

Its reliance on Rule 59(21) of the rules of court is, therefore, misplaced.

Because it referred me to the order of the learned judge, the decision which I made was not premised on the rules of court. It rested on the order of the court.

The specific time-lines which the learned judge dished out to the parties aimed, in my view, at preparing them for the hearing which had been scheduled for 28 March 2022 at 10am. Their belated filing of Heads had an adverse effect on the hearing of the application. It was only fortuitous that it was not heard on the date to which it had been set down.

I found the conduct of the parties, both of whom were/are ably legally represented, to be wanting in the extreme sense of the word.

The applicant's reference to Rule 59(21) of the rules of court imports a new dimension into the equation of the decision which I made in June 2022.

The dimension centers on what parties to a case should comply with between an order which the court, properly constituted, issues to them, and the law as stipulated in the rules of court. Which of the two laws, in other words, must give way to the other.

The dimension raises jurisprudential issues which only the superior court can clarify for the benefit, not only of the court, but also of litigants.

It is on the mentioned score that I remained persuaded to grant leave to the applicant to prosecute its appeal. The prosecution of the same will, no doubt, enhance the development of the law and the court's appreciation of the same.

The application is, in the premise, granted as prayed.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CC06-21 : RITA MBATHA vs NATIONAL FOODS (PRIVATE) LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

Section 167(5(b) of the Constitution provides, that, the Constitutional Court Rules must allow a person, when it is in the interests of justice, and, with or without leave of the court, to appeal directly to the Court from any other court.Rule 32(2) of the Constitutional Court Rules is the pertinent ...

Section 167(5(b) of the Constitution provides, that, the Constitutional Court Rules must allow a person, when it is in the interests of justice, and, with or without leave of the court, to appeal directly to the Court from any other court.

Rule 32(2) of the Constitutional Court Rules is the pertinent rule in that regard and it gives effect to section 167(5(b) of the Constitution. It reads:

“(2) A litigant who is aggrieved by the decision of a court of subordinate court on a constitutional matter only, and wishes to appeal against it to the Court, shall, within fifteen days of the decision, file with the Registrar an application for leave to appeal and shall serve a copy of the application on the other parties to the case in question, citing them as respondents.”…,.

In The Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC) the Constitutional Court eloquently set out the requirements which ought to be satisfied in an application of this nature…, as follows:

“The requirements for leave to appeal to the Court from a subordinate court are these:

(a) Firstly, there must be a constitutional matter for determination by the Constitutional Court on appeal. The reason is that in terms of section 167(1) of the Constitution, the Constitutional Court is the highest court in all constitutional matters and decides only constitutional matters and issues connected with decisions on constitutional matters.

Rule 32(2) of the Constitutional Court Rules makes it clear, that, only a litigant who is aggrieved by the decision of a subordinate court on a constitutional matter only has a right to apply for leave to appeal to the Constitutional Court….,.

Rule 32(3)(c) of the Constitutional Court Rules requires that the application for leave to appeal should contain or have attached to it 'a statement setting out clearly and concisely the constitutional matter raised in the decision.'

In other words, there must have been a constitutional matter raised in the subordinate court by the determination of which the dispute between the parties was resolved by that court.

If the subordinate court had no constitutional matter before it to hear and determine, no grounds of appeal can lie to the Constitutional Court, as a litigant cannot allege that the subordinate court misdirected itself in respect of matter it was never called upon to decide for the purposes of the resolution of the dispute between the parties: see Nyamande & Anor v Zuva Petroleum CC08-15.

Under section 332 of the Constitution, a constitutional matter is one in which there is an issue involving the interpretation, protection, or enforcement of the Constitution. Absence of an issue raised in the proceedings in the subordinate court requiring the interpretation, protection, or enforcement of a provision of the Constitution in its hearing and determination would invariably be sufficient evidence of the fact that no constitutional matter arose in the subordinate court.

(b) Secondly, the applicant must show the existence of prospects of success for leave to be granted. In Nehawu v University of Cape Town 2003 (2) BCLR 154 (CC), the Constitutional Court of South Africa held that the applicant must show that there are reasonable prospects that the Constitutional Court 'will reverse or materially alter the judgment if permission to bring the appeal is given.'”

These requirements were aptly summarised in Bonnyview Estate (Pvt) Ltd v Zimbabwe Platinum Mine (Pvt) Ltd & Anor CC06-19…, as follows:

“1. The applicant must intend to apply for leave to appeal against a decision of a subordinate court on a constitutional matter.

2. The constitutional question must be clearly and concisely set out.

3. The applicant must demonstrate prospects of success on appeal.”

The requirement that an applicant must intend to appeal against a decision of a lower court on a constitutional matter only must be rationalized in juxtaposition with section 167(1) of the Constitution which outlines the narrow jurisdiction of the court.

Section 167(1) of the Constitution states the following:

“167 Jurisdiction of Constitutional Court

(1) The Constitutional Court —

(a) Is the highest court in all constitutional matters, and its decisions on those matters bind all other courts;

(b) Decides only constitutional matters and issues connected with decisions on constitutional matters, in particular references and applications under section 131(8)(b) and para 9(2) of the Fifth Schedule.” …,.

In the same respect, the Constitutional Court, in Sadziwani v Natpak (Pvt) Ltd & Ors CC15-19, emphasized its special jurisdiction in the following terms…,:

“The Constitutional Court is a specialised court endowed with the purposefully narrow jurisdiction to determine constitutional matters only. The language of section 167(1)(b) of the Constitution is clear enough in this respect. The Court is established in terms of section 166 of the Constitution and section 167 provides for the jurisdiction of the Court.

In the Lytton Investments case supra, at p9 of the cyclostyled judgment, the Court emphasised the special jurisdiction of the Court in the following terms:

'The Court is a specialised institution, specifically constituted as a Constitutional Court with the narrow jurisdiction of hearing and determining constitutional matters only. It is the supreme guardian of the Constitution and uses the text of the Constitution as its yardstick to assure its true narrative force. It uses constitutional review predominantly, albeit not exclusively, in the exercise of its jurisdiction.'

Where no constitutional issues are pertinent, the jurisdiction of the Court, under section 167 of the Constitution, is not triggered.

In Brink v Kitshoff NO 1996 (4) SA 197 (CC), the South African Constitutional Court had the following to say…,:

'[28] The jurisdiction of this Court is limited to the interpretation, protection, and enforcement of the provisions of the Constitution (in terms of section 98(2) of the Constitution) and any other matter over which it is expressly given jurisdiction. Neither the question of when an estate becomes entitled to the proceeds of a life insurance policy, in terms of section 44, nor the question of when a concursus creditorum will be initiated, are constitutional questions. This Court accordingly does not have jurisdiction over such matters.'

The Court is a specialist court and not a court of general jurisdiction.

The principle of constitutional supremacy ensures, that, the jurisdiction of the Court, as defined in section 167 of the Constitution, is narrowly defined and given constitutional protection. In addition, the very definition of a constitutional matter itself, in terms of section 332 of the Constitution, presupposes, that, not every matter is a constitutional matter. If the resolution of a matter does not require the protection, interpretation or enforcement of the Constitution, it is not a constitutional matter and the Court cannot assume jurisdiction over it.”

Rule 32 of the Constitutional Court Rules makes it clear, that, a party must intend to apply for leave to appeal against a decision of a subordinate court on a constitutional matter only. Further to that, the applicant must clearly and concisely set out the constitutional question that was raised before and determined by the lower court, and, lastly, the applicant must demonstrate prospects of success on appeal.

To succeed, therefore, the applicant must first demonstrate that the court a quo made a decision on a constitutional matter which decision is appealable to the Constitutional Court in terms of Rule 32 of the Constitutional Court Rules.

In considering this issue, the remarks in The Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC) are pertinent.

In that case, the court discussed the test to be applied in determining whether or not the court a quo determined a constitutional matter. It held as follows…,:

“The principles to be applied in the determination of the question whether the Supreme Court determined a constitutional matter are clear. It is not one of those principles that the court against whose judgment leave to appeal is sought should have referred to a provision of the Constitution.

There ought to have been a need for the subordinate court to interpret, protect or enforce the Constitution in the resolution of the issue or issues raised by the parties. The constitutional question must have been properly raised in the court below. Thus, the issue must be presented before the court of first instance and raised again at or at least be passed upon by the Supreme Court, if one was taken.”…,.

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

It is settled that the law allows an attack against a judgment of the Supreme Court where certain requisites have been met on the premise of the attack.In Denhere v Denhere CC09-19, the Constitutional Court set out the principle for an attack on a Supreme Court judgement in the following ...

CC09-21 : GIFT KONJANA vs DEXTER NDUNA
Ruled By: GARWE AJCC, GOWORA AJCCand HLATSHWAYO AJCC

In terms of section 167(5)(b) of the Constitution, the Constitutional Court Rules must allow a person, when it is in the interests of justice, and with or without leave of the Constitutional Court, to appeal directly to the Constitutional Court from any other court. Rule 32 of the Constitutional Court ...

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

The Rules of this Court provide fifteen days from the date of judgment to apply for leave to note an appeal against the judgment.

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

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

Rule 32(2) of the Constitutional Court Rules provides the following on the right of appeal to this Court:

“(2) A litigant who is aggrieved by the decision of a subordinate court on a constitutional matter only, and wishes to appeal against it to the Court, shall, within fifteen days of the decision, file with the Registrar an application for leave to appeal and shall serve a copy of the application on the other parties to the case in question, citing them as respondents.”…,.

Therefore, it is axiomatic, that, where the subordinate court has not determined a constitutional issue, a litigant has no right of appeal to this Court.

Access to the jurisdiction of this Court unavoidably hinges upon the existence of this juridical fact.

It is unarguably the sine qua non of any approach to the specialised forum of the Constitutional Court....,.

This Court, in The Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC), clarified the parameters of a constitutional matter as follows:

“The mere reference to the Constitution did not make what was said a constitutional matter. Reference by the Supreme Court to section 176 of the Constitution was an obiter dictum. The Constitution was referred to after the ratio decidendi had been arrived at and declared by the court. The effect of what the Court said in relation to section 176 of the Constitution was that its reasoning was not inconsistent with the provisions of that section. That is different from saying the decision on the issues before the court were based on the interpretation and application of section 176 of the Constitution.

It follows, that, where a subordinate court did not take a view of the case that required it to interpret and apply a constitutional provision to determine the issue raised, the matter does not pass for a constitutional matter.

Application for leave to appeal will be dismissed as the subordinate court will have rested its decision on an independent non-constitutional ground.”…,.

The above position was reiterated in Madyavanhu v Saruchera & Ors 2019 (1) ZLR 434 (CC)…, wherein the following was observed regarding the right of appeal to this Court:

“A person has a right to appeal against a decision of a subordinate court on a constitutional matter only. A decision of a subordinate court on a non-constitutional issue is unappealable because the Court has no jurisdiction to review such a decision. The purpose of the procedure of an application for leave to appeal, provided for in Rule 32(2) of the Rules, is to show that the Court has jurisdiction, as provided for in the Constitution, to hear and determine the appeal. In other words, the purpose of the procedure is to ensure that the applicant has a right of appeal to the Court against the decision of the subordinate court.”

From the above-cited authorities, it is evident that an application for leave to note an appeal against the determination of a lower court in the Constitutional Court hinges upon the existence of a constitutional matter.

Appealed
SC179-20 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: GARWE JA, MAKARAU JA and MAKONI JA

This is an appeal against the judgment of the High Court handed down on 4 May 2018.

The appellant had, before that court, sought a declarator that the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations 2016 published as Statutory Instrument 117/2017 were null and void and of no force or effect.

The appellant had also sought an order declaring the enabling Act, the Presidential Powers (Temporary Measures) Act [Chapter 10:20] to be inconsistent with the Constitution of Zimbabwe, and, as a consequence, the striking down of that Act.

In the alternative, the appellant sought a declaratur that section 2(2) of the Presidential Powers (Temporary Measures) Act [Chapter 10:20] is inconsistent with the Constitution and that the same be struck down.

After hearing argument from both parties, the High Court dismissed the application with costs. It is against that order that the appellant has now appealed to this Court.

BACKGROUND FACTS

The Presidential Powers (Temporary Measures) Act [Chapter 10:20] (“the Act”) provides as follows in section 2 thereof:

“2. Making of Urgent Regulations

(1) When it appears to the President that:

(a) A situation has arisen, or is likely to arise, which needs to be dealt with urgently in the interest of defence, public safety, public order, public morality, public health, the economic interests of Zimbabwe or the general public interest; and

(b) The situation cannot adequately be dealt with in terms of any other law; and

(c) Because of the urgency, it is inexpedient to await the passage through Parliament of an Act dealing with the situation; then, subject to the Constitution and this Act, the President may make such regulations as he considers will deal with the situation.

(2) Regulations made in terms of subsection (1) may provide for any matter or thing for which Parliament can make provision in an Act:

Provided that…,. (not relevant).”…,.

Section 5 of the Presidential Powers (Temporary Measures) Act provides:

“Regulations made in terms of section two shall, to the extent of any inconsistency, prevail over any other law to the contrary, apart from regulations that have been made and are in force in terms of the Emergency Powers Act [Chapter 11:04].”

Acting in accordance with the above provisions of the Presidential Powers (Temporary Measures) Act, the President of the Republic of Zimbabwe, who is the respondent in this matter, published, on 15 September 2017, in the Government Gazette Extraordinary, the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, SI117 of 2017 (“the Regulations”). The Regulations sought to amend certain sections of, and the Schedule to, the Electoral Act [Chapter 2:13].

On 20 October 2017, the applicant filed a court application seeking the declarators referred to and an order setting aside both the Presidential Powers (Temporary Measures) Act [Chapter 10:20] and the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, S.I.117 of 2017.

THE APPELLANT'S CASE A QUO

In his founding affidavit in the court a quo, the appellant, as applicant, stated as follows:

The Presidential Powers (Temporary Measures) Act is unconstitutional because it gives the President of the Republic of Zimbabwe the power to enact Regulations which override existing Acts of Parliament. Nowhere in the Constitution is the President given the power to make law as provided for in the Presidential Powers (Temporary Measures) Act.

Although section 116 of the Constitution states that the Legislature of Zimbabwe consists of Parliament and the President, it is clear that the President is involved only to the extent stipulated in Chapter 6 as read with the Fifth Schedule to the Constitution.

Section 134 of the Constitution makes it clear that Parliament may, in an Act of Parliament, delegate the power to make statutory instruments within the scope of and for purposes laid out in the Presidential Powers (Temporary Measures) Act but in no uncertain terms prohibits the delegation of Parliament's primary law making function.

It was never the intention that delegated legislation could have the effect of altering an existing Act of Parliament.

In terms of section 5 of the Presidential Powers (Temporary Measures) Act, the President has sweeping powers to make laws that transcend existing Acts of Parliament.

For that reason, the applicant sought an order striking down both the Presidential Powers (Temporary Measures) Act [Chapter 10:20] and the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, SI117/2017.

THE RESPONDENT'S CASE A QUO

In his opposing affidavit, the respondent stated as follows:

The provisions of the Electoral Act amended by the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, S.I.117/2017 had not envisaged the use of the biometric voter registration system which requires voters to have fingerprints and photographs taken in addition to filling in forms.

The President accepted, that, in terms of section 2 of the Presidential Powers (Temporary Measures) Act, he can enact laws, but, submitted that any Regulations he makes are subject to scrutiny by Parliament which can resolve either to have them amended or repealed.

Further, and in any event, section 110 of the Constitution gives him the power conferred by the Constitution, an Act of Parliament, or other law, to enable him to exercise his functions as Head of State.

The reference to “other law” includes provisions of the common law, customary law, and international law in force in Zimbabwe.

Under the common law, the President has always enjoyed prerogative powers which entitle him to promulgate temporary legislation in urgent situations. Those prerogative powers have not been abolished under the Constitution and consequently remain at his disposal.

DETERMINATION OF THE COURT A QUO

In its determination, the court a quo found, that, in invoking his powers under the Presidential Powers (Temporary Measures) Act, the respondent was not abusing the law-making function conferred upon him by the Act.

The new voters roll could not properly be covered by a law which Parliament would have introduced, debated, and passed into law without interfering with the requisite time lines of the 2018 harmonised elections.

The court a quo accepted, that, the question whether or not the Presidential Powers (Temporary Measures) Act is legal depends on the interpretation of the Constitution.

It found, that, the President's “necessary and unavoidable intrusion into the function of Parliament” is evident from a reading of section 86 of the Constitution.

It further found that “it is only the President who has the power to limit, through the Act, the people of Zimbabwe's fundamental rights and freedoms which are contained in the Constitution”.

The court also found that “because the President's law making power exists in the Act, the drafters of the Constitution did not include it in section 134 of the Constitution” and that “because his powers, as stated in section 86(2)(b) of the Constitution, relate to the limitation of the people of Zimbabwe's fundamental rights and freedoms in certain unforeseen circumstances, he could not effectively exercise the same under section 134 of the Constitution.”

The court consequently dismissed the application with costs.

PROCEEDINGS BEFORE THIS COURT

Unhappy with the dismissal of his application by the court a quo, the appellant noted an appeal to this Court. His grounds of appeal are that:

“1.1 The court a quo erred as a question of law, in upholding the validity of the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations 2016 published in Statutory Instrument 117/2017.

1.2 A fortiori, the court a quo erred in holding that the President could make law.

1.3 In addition, the court a quo erred in failing to hold that the Presidential Powers (Temporary Measures) Act [Chapter 10:20] was an unlawful delegation of legislative power and was therefore ultra vires the Constitution of Zimbabwe.

1.4 In the alternative, the court a quo failed to uphold that section 2(2) of the Presidential Powers (Temporary Measures) Act [Chapter 10:20] was null and void and of no force and effect to the fact that it permitted the making of laws overlooking Parliament.”…,.

In his prayer, he seeks an order setting aside the order of the court a quo, and, in its place, an order granting the relief he had sought before the court a quo.

APPELLANT'S SUBMISSIONS BEFORE THIS COURT

In his submissions, the appellant states as follows:

Section 86 of the Constitution is just a limitation clause and does not allow the President to limit rights or to be the person who curtails the rights of persons. Section 86 of the Constitution only relates to a law of general application made and passed by Parliament and not by an individual.

The Presidential Powers (Temporary Measures) Act [Chapter 10:20], that is the subject of this appeal, amounts to Parliament outsourcing its original law-making powers.

The function of the President, under section 110 of the Constitution, is not to make law, but, merely to assent to a Bill, and, if he does not agree, to refer the Bill to the Constitutional Court for an opinion on its constitutionality.

He further argues, that, there is a difference between delegating authority to make subordinate legislation within the framework of a statute under which the delegation is made, and assigning primary law making power to another body.

In this case “the President is even higher than Parliament because he can amend what Parliament has done.”

On the remedy, the appellant submits, that, an order should be issued nullifying the Presidential Powers (Temporary Measures) Act [Chapter 10:20].

However, since the retrospective declaration of invalidity might produce significant disruption in the voter registration exercise, the court should make an order that limits the retrospective effect of any such declaration.

He makes it clear, that, he has no difficulty with the substance of the amendments and that the gravamen of his displeasure is the manner in which they were effected.

RESPONDENT'S SUBMISSIONS BEFORE THIS COURT

In his heads of argument, the President states, that, whilst he does not entirely agree with the reasoning of the court a quo, he agrees with the order made.

He submits, as he did before the court a quo, that, the Presidential prerogative is a power that attaches to the President by virtue of his office, and that, under the common law, he has always enjoyed prerogative powers which entitle him to promulgate temporary legislation in urgent situations. Those prerogative powers were never abolished but are now codified under the Presidential Powers (Temporary Measures) Act.

The reference to “other law” in section 110(1) of the Constitution includes, by necessity, the provisions of the common law in force in this country.

Lastly, he maintains, that, as the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, S.I.117/2017 have to be laid before Parliament for approval, this shows that Parliament, essentially, still retains its primary lawmaking power.

In the course of considering the possible disposition of this matter, a question of law arose, namely, whether the appellant could properly appeal to this Court against a determination of constitutional validity by the court a quo.

Being an important issue that could be dispositive of this matter, and in light of the fact that neither party had hitherto addressed the court on it, this Court asked both parties to file supplementary submissions within a given time frame.

This the parties proceeded to do.

APPELLANT'S SUPPLEMENTARY SUBMISSIONS

In his supplementary heads of argument, the appellant has submitted, that, where the High Court, as in this case, issues an order of constitutional validity, that determination is subject to an ordinary appeal to this Court. Where, however, the same court issues an order of constitutional invalidity, then, that order must be referred to the Constitutional Court in terms of section 175 of the Constitution.

In other words, in the former case, there is no obligation that the order of constitutional validity be referred to the Constitutional Court for confirmation.

The appellant further submitted, that, in terms of section 43 of the High Court Act [Chapter 7:06], the Supreme Court has an obligation to hear and determine all appeals from the High Court of Zimbabwe, whether in the exercise of its original or appellate jurisdiction.

Further, in terms of section 21 of the Supreme Court Act, the Supreme Court has jurisdiction to hear and determine an appeal in any civil case from the judgment of any court or tribunal from which, in terms of any other enactment, an appeal lies to the Supreme Court.

In terms of section 22 of the Supreme Court Act, the Supreme Court shall have the power to confirm, vary, amend or set aside the judgment appealed against or give such judgment as the case may require.

There is, therefore, nothing in the High Court Act or Supreme Court Act, so the appellant argues, that takes away the power of the Supreme Court to entertain an appeal from the High Court. The only limitation is in respect of an order of Constitutional invalidity which must be confirmed by the Constitutional Court before it has any effect.

The appellant has further submitted, that, in light of the wording of section 175(3) of the Constitution, any interested person has a right to appeal or apply directly to the Constitutional Court to confirm or vary the order of constitutional validity.

Subsection (3) of section 175 of the Constitution refers to a court order made in terms of subsection (1) of that section, which subsection provides for an order of constitutional invalidity. The reference, in subsection (3), to an order concerning constitutional validity in terms of subsection (1) restricts the meaning of subsection (3) to orders of constitutional invalidity only.

In other words, the right to appeal to the Constitutional Court is restricted by the fact that such a right only applies to an order of constitutional invalidity provided for in subsection (1).

Further, Rule 31 of the Constitutional Court Rules refers to an order of constitutional invalidity and not an order of constitutional validity. The express mention of orders of constitutional invalidity excludes orders of constitutional validity.

In the event that the Supreme Court declares a law to be invalid, then, that order has to be confirmed by the Constitutional Court.

RESPONDENT'S SUPPLEMENTARY SUBMISSIONS

The respondent does not accept the appellant's submissions in this regard and submits that the Supreme Court has no jurisdiction to hear and determine such an appeal, because, in terms of section 175(1) of the Constitution only the Constitutional Court is empowered to confirm or vary an order concerning constitutional validity by any court.

Subsection (3) of section 175 of the Constitution refers to an order concerning constitutional validity by a court in terms of subsection (1). If subsection (1) and (3) of section 175 are read together, it becomes apparent that section 175 of the Constitution refers not only to orders of constitutional invalidity but also orders of constitutional validity.

Only the Constitutional Court is empowered to confirm or vary an order of Constitutional invalidity.

The Supreme Court would be unable to sufficiently deal with the issue of constitutional validity or invalidity of any law and is not in a position to vary or confirm any order concerning constitutional validity of any law. Although the Supreme Court is the final court in non-constitutional matters, it cannot usurp the powers of the Constitutional Court in this regard.

ISSUE(S) ARISING FOR DETERMINATION

From the foregoing, it seems to me that two broad issues arise for determination before this Court:

(i) The first is whether an order of constitutional validity by the High Court can be appealed against to the Supreme Court rather than directly to the Constitutional Court.

(ii) The second is whether the Presidential Powers (Temporary Measures) Act is consistent with the Constitution of Zimbabwe.

I proceed to deal with these two issues in turn.

The question whether an order of constitutional validity is appealable to the Supreme Court is one of interpretation. To determine the question there is need to look at the provisions of the Constitution that have a bearing on this issue.

One must, I think, start with section 167(3) of the Constitution which states as follows:

“(3) The Constitutional Court makes the final decision whether an Act of Parliament or conduct of the President or Parliament is constitutional and must confirm any order of constitutional invalidity made by another court before that order has any force.”

Section 169(1) of the Constitution, in turn, provides:

“169 JURISDICTION OF SUPREME COURT

(1) The Supreme Court is the final court of appeal for Zimbabwe, except in matters over which the Constitutional Court has jurisdiction.”

This is then followed by section 175 of the Constitution which provides, in relevant part, as follows:

“175 POWERS OF COURTS IN CONSTITUTIONAL MATTERS

(1) Where a court makes an order concerning the constitutional invalidity of any law or any conduct of the President or Parliament, the order has no force unless it is confirmed by the Constitutional Court.

(2)…,. (Not relevant)

(3) Any person with a sufficient interest may appeal or apply, directly to the Constitutional Court to confirm or vary an order concerning constitutional validity by a court in terms of subsection (1).

(4)…,. (Not relevant)

(5) An Act of Parliament or rules of court must provide for the reference to the Constitutional Court of an order concerning constitutional invalidity made in terms of subsection (1) by a court other than the Constitutional Court.”

CONSTITUTIONAL INTERPRETATION

In Mawarire v Mugabe & Ors 2013 (1) ZLR 469, the Constitutional Court of Zimbabwe remarked as follows…,:

“In general, the principles governing the interpretation of a Constitution are basically the same as those governing the interpretation of statutes.

One must look to the words actually used and deduce what they mean within the context in which they appear: see Hewlett v Minister of Finance 1981 ZLR 571 (S) at 580.

If the words used are precise and unambiguous, then, no more is necessary than to expound them in their natural and ordinary sense: see The Sussex Peerage (1843-1845) 65 RR 11 at 55.

In essence, it is necessary to have regard to the words used and not to depart from their literal and grammatical meaning unless this leads to such an absurdity that the Legislature could not have contemplated it.”

Constitutional interpretation, however, often requires more than simply according words their literal or ordinary grammatical meaning. Various decided cases have also stressed the need for a generous and purposive interpretation to give expression to the underlying values of the Constitution.

In S v Makwanyane 1995 6 BCLR 665 (CC) the Constitutional Court of South Africa also stated, that, the provisions of the Constitution should not be construed in isolation but in their context.

It is permissible to have regard to the purpose and background of the legislation.

The court cited with approval remarks in Jaga v Donges N.O. and Another 1950 (4) SA 653 A…, that:

“Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context.

But, it may be useful to stress two points in relation to the application of this principle.

The first is that 'the context' as here used is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted. Often of more importance is the matter of the statute, its apparent scope and purpose, and, within limits, its background.”

A further consideration in the interpretation of a statute is that the legislature is presumed not to intend an absurdity, ambiguity, or repugnancy to arise out of the grammatical and ordinary meaning of the words it uses in an enactment.

Therefore, in order to ascertain the true purpose and intent of the legislature, regard is to be had, not only to the literal meaning of the words, but, also to their practical effect.

In this respect, the words in question must be capable of an interpretation that is consistent with the rest of the instrument in which the words appear.

In interpreting the provisions of the Constitution, it is, as stated, necessary to adopt a broad and generous approach and also to ensure that all the relevant provisions on the subject are considered.

As stated in Attorney-General v Dow (1992) BLR 119 (CA)…,:

“…, the very nature of a Constitution requires that a broad and generous approach be adopted in the interpretation of its provisions; that all the relevant provisions bearing on the subject for interpretation be considered together as a whole in order to effect the objective of the Constitution.”

Indeed, section 46 of our Constitution, which deals with the interpretation of Chapter 4, makes it clear, that, such interpretation must pay due regard to all the provisions of the Constitution, and, in particular, the principles and objectives set out in Chapter 2.

Section 331 of the Constitution, in turn, provides that section 46 of the Constitution applies, with any necessary changes, to the interpretation of the rest of the Constitution.

APPEAL AGAINST AN ORDER OF CONSTITUTIONAL VALIDITY – TO WHICH COURT DOES IT LIE

The Constitutional Court Rules 2016, in Rule 21, make provision for the matters that do not require the leave of the court. These include “appeals in terms of section 175(3) of the Constitution, against an order concerning the constitutional validity or invalidity of any law.”

It is apparent that the framers of the Rules considered that even an order of constitutional validity could be the subject of an appeal directly to the Constitutional Court and that leave to appeal was not necessary in such a case.

One must, I think, accept that the ordinary literal and grammatical interpretation of section 175(1) of the Constitution is that an order concerning the Constitutional invalidity of any law has no force or effect unless confirmed by the Constitutional Court. In my view, such an interpretation is in accord with section 169(3) of the Constitution which makes it clear that the Constitutional Court must confirm any order of constitutional invalidity made by another court before that order has any force.

The real question, as already noted, is: which court should hear and determine an appeal against an order of constitutional validity?

The Constitution has not, itself, stated to which court such an appeal shall lie.

It should also be accepted, that, in general, appeals from the High Court lie with the Supreme Court.

Section 169(3) of the Constitution, however, makes it abundantly clear, that, the Constitutional Court makes the final decision whether an Act of Parliament is constitutional.

It does not state that the Constitutional Court only makes the final decision on whether an Act of Parliament is invalid.

The clear intention that comes out from a careful reading of that section is that it is the Constitutional Court that makes the final decision on whether an Act of Parliament is constitutional or not. That means the Constitutional Court makes the final decision whether an Act of Parliament is valid or not.

In the event that an order of constitutional invalidity is made by a lower court, such an order has no effect until the Constitutional Court has confirmed such invalidity.

Section 175(3) of the Constitution provides, that, an interested person may appeal or apply directly to the Constitutional Court to confirm or vary an order concerning constitutional validity by a court in terms of subsection (1).

Whilst the subsection refers to subsection (1), it also refers to “an order concerning constitutional validity” – and not only constitutional invalidity.

An order concerning constitutional validity is exactly that. It is not limited to orders concerning constitutional invalidity only.

Taken together, therefore, sections 169(3) and 175(3) of the Constitution simply mean that an order of constitutional validity or invalidity may be appealed against directly to the Constitutional Court.

Bearing in mind that only the Constitutional Court makes the final decision on the validity of an Act of Parliament, it could not have been the intention of the legislature that an order concerning constitutional validity be the subject of an appeal to the Supreme Court in the normal way for the reason that the Supreme Court does not make the final decision on whether or not an Act of Parliament is valid.

Only the Constitutional Court has that jurisdiction.

In any event, the submission that an appeal against an order of constitutional validity should lie to the Supreme Court and not the Constitutional Court would result in a patent absurdity.

The Supreme Court is an Appellate Court and does not, itself, deal with matters at first instance. It does not itself declare, at first instance, an Act of Parliament to be valid or invalid.

Its powers, in terms of section 22 of the Supreme Court Act, are to confirm, vary, amend, or substitute the order appealed against. If it amends the order of the lower court, that amended order becomes the order of the lower court. Similarly, where it substitutes an order, that order becomes the order of the lower court.

In this case, the High court made an order that the impugned Act, the Presidential Powers (Temporary Measures) Act, was valid and constitutional.

The appellant wants this order set aside and replaced with an order declaring the Presidential Powers (Temporary Measures) Act unconstitutional.

Assuming, arguendo, that the Supreme Court were to agree with the appellant and grant the order substituting the order of the court a quo with one of constitutional invalidity, the Supreme Court would not itself have the power to refer the order to the Constitutional Court for confirmation. The order substituting the judgment of the High Court with one of invalidity would become a judgment of the High Court itself, to be actioned by that court.

The record would have to be returned to the High Court.

The High Court would, thereafter, refer the order of constitutional invalidity to the Constitutional Court for confirmation.

Such a process would be convoluted and unnecessary. An appeal from an order of constitutional validity directly to the Constitutional Court would resolve the issue of validity or invalidity once and for all.

Subsection (3) of section 175 of the Constitution could have been more elegantly worded to obviate possible confusion as to its interpretation.

It is garbled. Its gibberish.

Taking into account their ordinary signification, the words used in the subsection create uncertainty as to the real intention of the Legislature as regards appeals against orders concerning constitutional validity, which, no doubt, would include both orders of constitutional validity and invalidity.

One can understand a situation where a person with sufficient interest applies directly to the Constitutional Court to confirm an order of constitutional invalidity so that the order has force. It is, however, difficult to imagine an interested person appealing directly to the Constitutional Court to confirm an order, presumably made in its favour.

An interested person would, surely, appeal directly to the Constitutional Court to have an order either of constitutional validity or invalidity set aside and substituted with one to the contrary.

In the final analysis, however, it seems to me that the intention of the legislature was that appeals against both constitutional validity and invalidity be determined by the Constitutional Court, which has the jurisdiction to make the final decision in this regard.

Consequently, the appeal noted to this Court is invalid, and, for that reason, the matter ought to be struck off the roll.

For the sake of clarity, it must be stressed, that, it is the order of constitutional validity or invalidity which may be appealed directly to the Constitutional Court for that court “to confirm or vary” the order.

The right to appeal directly to the Constitutional Court does not apply to orders made in respect of other constitutional matters in which the Constitutional Court exercises concurrent jurisdiction with the other courts established under the Constitution.

In view of the above conclusion, it becomes unnecessary to consider the issue whether or not the Presidential Powers (Temporary Measures) Act is constitutional or not.

COSTS

The question whether an appeal lies to the Supreme Court from an order of constitutional validity is one that has hitherto not come before this Court. It is a question that was, at worst, moot.

In the circumstances, an order that each party bears its own costs would appear to me to be the most appropriate.

DISPOSITION

The order of constitutional validity should have been the subject of an appeal directly to the Constitutional Court and not to this Court. The appeal filed with this Court is, therefore, irregular and a nullity. The matter ought therefore to be struck off the roll.

In the result, the following order is made:

The matter is struck off the roll with each party paying its own costs.

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA

In chambers in terms of Rule 5 of the Rules of the Supreme Court 1964.

The applicants are appearing before a judge of this Court for the third time, their earlier applications having been dismissed on procedural grounds.

Essentially, in this, and the previous two applications, the applicants are requesting this Court to give to them leave, which they perceive to have been denied by the Labour Court, to file a belated appeal against their dismissal from employment with the respondent.

In this quest, the two have made tracks back and forth between the Labour Court and this Court, with the result that the matter is now hopelessly entangled in procedural niceties.

It became evident to me that this 'tangle' had to be unravelled first before a way forward could be ascertained. This is particularly so given that the legally unrepresented, but determined, applicants are pressing to have their day in court, albeit, they complicated matters further by filing lengthy and repetitive submissions with each application they brought before both the courts.

Accordingly, after hearing the parties, and, in order to enable me to properly determine the matter, I directed them to re-construct the record and arrange all the applications, and other papers, in the order they had been filed. I indicated I would then peruse the record and give any directions that may be necessary to unlock the process and have the matter move forward.

This would, at the same time, point the applicants to any options that may be open to them in terms of the way forward.

Chronicled below, in conveniently numbered paragraphs, are the relevant facts of the matter, as well as the sequence of events, in so far as I have been able to make them out. I have interspersed the narration/analysis with relevant observations or findings of my own;

1. The applicants are former employees of the respondent; they were dismissed on misconduct charges of theft and fraud in 2009.

2. Having unsuccessfully pursued all internal remedies for redress, they appealed to the Labour Court, on the 30th of October 2009 against their dismissal. In a detailed judgment, the Labour Court dismissed the appeal having found that the two had been properly charged, convicted, and dismissed.

3. The two resolved to appeal to this court but failed to apply to the Labour Court for leave to appeal within the 30-day period which is stipulated in that court's rules.

This, in my view, is where their problems started.3. The two resolved to appeal to this court but failed to apply to the Labour Court for leave to appeal within the 30-day period which is stipulated in that court's rules.

This, in my view, is where their problems started.

4. On the 16th of March 2010, some sixty-six days beyond the stipulated time limits, the applicants filed an application in the Labour Court titled “APPLICATION FOR LEAVE TO APPEAL TO THE SUPREME COURT.”

The relief sought, according to their draft order, mirrored the same title.

A look at the founding affidavit shows that the applicants appreciated the fact that their application would be filed out of time, and that, therefore, they would need to secure condonation of the late filing of the application.

This is evidenced by paragraph (viii) of the founding affidavit, which reads as follows;

“I humbly urge this Honourable Court to condone the delay in this application for leave to appeal to the Supreme Court on the basis that:

(i) I travelled to my rural home ending up in too much delay of noting an appeal (sic).

(ii) As a self-actor, I took too long to find the Labour Court Rules that I can prepare my application.” (sic)

The request for condonation, apart from not being reflected in the title of the application, was, in addition, not incorporated into the draft order.

As indicated later in this judgment, the Judge a quo took the view, that, no application for condonation was before the court.

5. Nevertheless, the Judge issued the following order on the 23rd of June 2010;

“The application for leave to appeal to the Supreme Court be and is hereby denied on the basis that it was out of time and the reason for the delay was not a reasonable one.”…,.

I find this order to be incomprehensible in a number of respects;

(a) Having taken the view that there was no proper application for condonation of the late application for leave to appeal to the Supreme Court, it is not clear why or how the court could have proceeded to 'dismiss' the application for leave to appeal to the Supreme Court.

(b) The reasons given for the 'dismissal' of the application for leave to appeal to the Supreme Court are reasons properly associated with an application for condonation of failure to comply with the rules of the court;

(c) While the reasons might have suggested that the Labour Court had in fact entertained an application for condonation of the late filing of the application for leave to appeal, the court dispelled this notion by specifically stating in its order, that, it had dismissed the application for leave to appeal to the Supreme Court; and

(d) Even were it to be taken that the court entertained the application for condonation, the absence of an order specifically granting such condonation establishes otherwise.

6. What is evident, though, is that the Labour Court did not consider the merits of the application for leave to appeal to the Supreme Court. Indeed, it could not have properly done so without first condoning the late filing of such an application. The applicants were barred, and, at that point in time, out of court.

The applicants should have filed a composite application;

(a) For condonation of the late filing of the application for leave to appeal; and

(b) For leave to appeal to the Supreme Court.

Because they did not do so, the application for leave to appeal to the Supreme Court was not properly before the Labour Court.

7. I am of the firm view, that, instead of dismissing the application for leave to appeal to the Supreme Court for the reasons it gave, the Labour Court should have properly struck the application off the roll.

It is also my opinion, that, since a court cannot dismiss what is not before it, the Labour Court's order of 23 June 2010, was incompetent.

8. Had the Labour Court struck the matter of the roll, the applicants would most likely have been alerted to the need to file a proper application with the same court, for condonation, together with one for leave to appeal to the Supreme Court.

9. As this did not happen, the applicants, who felt aggrieved by the decision 'dismissing' their application for leave to appeal, and had no reason to believe the order to be incompetent, mistakenly, but understandably (being legally unrepresented), filed a chamber application before this court on the 19th of July 2010, under case number SC175/10.

They sought the leave of a Judge to appeal to it (purportedly) in terms of section 92F(3) of the Labour Court Act (“the Act”).

10. The application was dismissed in chambers by GARWE JA on the 14th of December 2010, without considering the merits thereof. This was on the basis, that, this Court could not consider the application for leave to appeal to it before:

(i) Condonation for the late filing of that application in the Labour Court had been obtained; and

(ii) The leave of the Labour Court had been properly sought and denied.

11. After the dismissal of their application by a Judge of this Court, significantly, not on the merits, as indicated in paragraph 9, the applicants approached the Labour Court on the 21st of December 2010 and filed a composite application for -

(i) Condonation of the late filing of the application for leave to appeal to the Supreme Court against the Labour Court's order of 30 October 2009; and

(ii) Leave to appeal to the Supreme Court.

12. On the 21st of February 2011, the Labour Court made a ruling that it could not 'plough the same road' as it had already made a decision on that particular issue. It made the following order;

“1. The Court has dealt with the application for leave to appeal and dismissed it on 23 June 2010;

2. The court is thus functus officio and must dismiss the present application;

3. The application is accordingly dismissed.”…,.

13. It is my considered view, based on the foregoing analysis, that the Labour Court was misguided in its view that it had already heard and determined the application for leave to appeal to this Court. As stated above, and despite the wording of its order of 23 June 2010, the court had NOT properly heard nor determined the application for leave to appeal against its decision of 30 October 2009.

14. In stating this, I am fully cognisant of the fact, that, I am not sitting as an Appeal Court to consider this matter.

Accordingly, as a single judge in chambers, I cannot make, and indeed, should not be taken to be making, a final pronunciation on the matter.

Such a task would properly be within the preview of an appeal bench of this Court.

With this in mind, I nevertheless hazard to express the view, that, contrary to its finding, the Labour Court was, in effect, not functus officio and should properly have entertained the application filed by the applicants on 21 December 2010.

It seems to me, that, the Labour Court judge failed to appreciate the fact, that, the applicant's seemingly repeated filing of the same application was traceable, in part, to the court's failure from the onset (i.e. 16 March, 2010) to indicate to the applicants (by striking the matter off the roll) that they could not apply to it for leave to appeal to the Supreme Court without first seeking its condonation of the late filing of such application.

That the court fully appreciated that this was the correct sequence of events to be followed, is evident from the following observations contained in the judge's reasons for the decision in the question;

“The reason (for dismissing the application of 21 December 2010, for condonation and for leave to appeal) are that on 23 June 2010 an application for leave to appeal was dismissed because it was filed out of time. At that time, no application for condonation was made….,.

The two applications that were filed sought to resuscitate a matter that had been dealt with to finality - at least before this Court. Should I condone the application for leave that has already been denied? I could not consider the second application for leave to appeal because I had already denied it. It was water under the bridge. I could not deal with the application because it was ill timed. It ought to have preceded the first application for leave which I had already dismissed.”

15. A couple of pertinent observations can be made from this rather unclear reasoning.

(i) Firstly, the judge a quo properly realised that the first application by the appellants needed to be preceded by an application for condonation of its late filing. The learned judge, however, then fell into the error of not fully appreciating the implication of this default vis a vis the application for leave to appeal to the Supreme Court.

This was that, absent an application for condonation of late filing of the application for leave to appeal, there was nothing before the court to dismiss.

The later application could not stand on its own, being premised on nothing.

(ii) Secondly, since the dismissal in question was, in my view, incompetent, there would have been nothing to prevent the court from hearing the two applications.

Thus, nothing was dealt with 'to finality'.

16. Be that as it may, the applicants did not, as they may have done, take the requisite steps to appeal to this Court against the Labour Court's finding that;

(i) It was functus officio; and

(ii) That, it had already dealt with the application for leave to appeal to the Supreme Court.

17. The applicants, instead, came back to this court seeking an order for leave to appeal against the court a quo's decision on the main dispute.

18. Needless to say, this application was repetitive and therefore improper.

The ground upon which the first application had been dismissed, that is, absence of condonation by the Labour Court, was still in point.

19. The application was heard and dismissed by GARWE JA on 17 November 2011. As a mark of its displeasure, this Court ordered that the applicants pay costs on the higher scale.

20. To the extent that this court had earlier dismissed the same application, albeit, and also without considering the merits, it could have been argued that the matter was res judicata and that this court was functus officio.

The judge, however, did not make a pronouncement nor issue an order to this effect.

21. The appellants apparently felt they could still pursue the dispute, and, in a manner suggestive of their now being totally confused and entangled in a true web of procedural technicalities, the relentless applicants went back to the Labour Court on 7 December 2011 and filed an application with this somewhat confusing title;

“CHAMBER APPLICATION FOR CONDONATION FOR LATE FILING OF AN APPLICATION FOR LEAVE TO APPEAL AGAINST THE DENIAL OF CONDONATION AND APPLICATION FOR LEAVE TO APPEAL AGAINST THE DENIAL OF CONDONATION FOR LEAVE TO APPEAL TO THE SUPREME COURT”

What immediately becomes evident from this title is the fact, that, the application in question was premised on the view, that, an application for condonation of the late filing of an application for leave to appeal to the Supreme Court had been heard and refused by the Labour Court.

The opposite was in fact the case.

The learned judge, in the excerpt from her judgment that is cited in paragraph 14 above, made it very clear why she was not going to entertain such an application. Nor did she, in the end, do so.

The application was therefore misguided.

22. Having, again, found no satisfaction from the Labour Court, the applicants have now, yet again, approached this Court with this application, which is no less misguided than the last one they made before the Labour Court (see above).

The application brings nothing new to this Court unless it is to demonstrate the applicants sheer determination to pursue the matter to what they perceive to be its logical conclusion - whatever pitfalls may stand in their way.

As this Court has entertained the same matter several times, it is my view, that, the court is now functus officio.

The dispute has gone round in circles for a period of over five years and there must be finality to litigation.

The application now before me is, in any case, not sustainable in its current form.

Accordingly, the application is dismissed with costs.

prev 1 2 3 next

Back Main menu

Law Portal Zimbabwe

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

SC01-10 : ZIMBABWE MINING DEVELOPMENT CORPORATION and MINERALS MARKETING CORPORATION OF ZIMBABWE vs AFRICAN CONSOLIDATED RESOURCES PLC and OTHERS Ruled By: CHIDYAUSIKU CJ

SC54-06 : VIGOUR FUYANA vs NTOMBAZA MOYO Ruled By: CHIDYAUSIKU CJ

Appealed SC89-20 : GOVATI MHORA vs EMMACULATA MHORA Ruled By: HLATSHWAYO JA, BHUNU JA and UCHENA JA

SC19-12 : JAMESON RUSHWAYA and ANNIE RUSHWAYA and XELOD INVESTMENTS PL vs SWIMMING POOL & UNDERWATER REPAIRS PL and PATTERSON TIMBA and AEPROMM RESOURCES PL and TOLROSE INVESTMENTS PL Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA AJA

HH776-15 : LADRAX INVESTMENTS (PVT) LTD vs IGNATIOUS CHIRENJE and RUTENDO WILLA CHIRENJE Ruled By: MATANDA-MOYO J

SC08-11 : ERIC FILON vs PUBLIC SERVICE COMMISSION and THE SECRETARY FOR WATER RESOURCES Ruled By: CHIDYAUSIKU CJ

SC46-16 : HWANGE COLLIERY COMPANY LTD vs TENDAI MAKUTE and DEPUTY SHERIFF, HWANGE Ruled By: CHIDYAUSIKU CJ, GOWORA JA and HLATSHWAYO JA

HH76-11 : SIBANGALIZWE DHLODHLO vs DEPUTY SHERIFF FOR MARONDERA and SHERIFF FOR ZIMBABWE and KANTOR & IMMERMAN and WATERSHED COLLEGE Ruled By: GOWORA J

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

HH458-19 : KNOWE RESIDENTS AND RATEPAYERS ASSOCIATION vs EDDIES PFUGARI (PVT) LTD and EDWARD NYANYIWA and NORTON TOWN COUNCIL and REGISTRAR OF THE HIGH COURT Ruled By: FOROMA J

SSC04-21 : MARRY MUBAIWA-CHIWENGA vs THE STATE and NATIONAL PROSECUTING AUTHORITY and CRIMINAL CLERK OF COURT, ROTTEN ROW MAGISTRATES COURT Ruled By: MAVANGIRA JA

SSC07-21 : CAINOS CHINGOMBE vs THE STATE Ruled By: MAKONI JA

SC07-22 : POLICE SERVICE COMMISSION and THE COMMISSIONER GENERAL OF POLICE vs DHERERAI MANYONI Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

HHB226-16 : ALPHONSUS ACHINULO vs W. MAPHIOS MOYO N.O. and THE STATE Ruled By: MATHONSI J

HHB100-17 : ELIZABETH SHAVA vs PRIMROSE MAGOMORE N.O. and NATIONAL PROSECUTING AUTHORITY Ruled By: MATHONSI J

HHB345-16 : NQOBILE KHUMALO vs THE PRESIDING MAGISTRATE N.O. (MR MZINGAYE MOYO) and THE PROSECUTOR GENERAL N.O. Ruled By: MATHONSI J

HHH765-15 : JOSPHAT MUKWEMU vs MAGISTRATE SANYATWE N.O. and THE PROSECUTOR GENERAL Ruled By: MATHONSI J

SSC23-21 : SAMUEL UNDENGE vs THE STATE Ruled By: UCHENA JA

View Appeal SC61-22 : BDO ZIMBABWE CHARTERED ACCOUNTANTS vs ROBIN VELA and THE AUDITOR GENERAL OF ZIMBABWE Ruled By: BHUNU JA, MATHONSI JA and CHIWESHE JA

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

View Appeal HHH03-21 : ROBERT GUMBURA vs THE STATE Ruled By: CHITAPI J

SC26-21 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

Appealed SSC62-21 : KIZITO MUTSURE vs THE STATE Ruled By: MAVANGIRA JA, UCHENA JA and MAKONI JA

Appealed SC63-21 : GATEWAY PRIMARY SCHOOL and KM RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION vs MARINDA FENESEY and THE SHERIFF OF ZIMBABWE Ruled By: HLATSHWAYO JA, GUVAVA JA and BHUNU JA

SC83-21 : DOMBO CHIBANDA and PINGO KANDORORO and JOHN KANDWE vs CITY OF HARARE Ruled By: HLATSHWAYO JA

SSC86-21 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE and THE PROSECUTOR GENERAL Ruled By: MAKONI JA

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

SC93-21 : RINOS TERERA vs GEORGE LOCK and CK HOLLAND t/a HOLLAND ESTATE AGENT and ZIMBABWE HOUSING COMPANY (PVT) LTD and THE REGISTRAR OF DEEDS Ruled By: CHITAKUNYE AJA

HH02-21 : ERNEST MHAMBARE vs ALFRED MWAZHA and OTHERS Ruled By: MUREMBA J

SC21-18 : EASTER MZITE (as Executrix Dative Estate Late Chemayi Joseph Mtize) vs DAMAFALLS INVESTMENTS (PVT) LTD and MASTER OF THE HIGH COURT Ruled By: BHUNU JA

HH170-22 : DIVVYLAND INVESTMENTS (PVT) LTD vs DAVID CHIWEZA and THE SHERIFF OF ZIMBABWE Ruled By: FOROMA J

HH801-22 : EQUITY PROPERTIES (PVT) LTD vs AL SHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS N.O. Ruled By: MANGOTA J

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

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

CC06-21 : RITA MBATHA vs NATIONAL FOODS (PRIVATE) LIMITED Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

CC09-21 : GIFT KONJANA vs DEXTER NDUNA Ruled By: GARWE AJCC, GOWORA AJCCand HLATSHWAYO AJCC

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

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

Appealed SC179-20 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE Ruled By: GARWE JA, MAKARAU JA and MAKONI JA

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE Ruled By: GWAUNZA JA

Categories

Your Donation.

Law Portal
Zimbabwe

SC01-10 : ZIMBABWE MINING DEVELOPMENT CORPORATION and MINERALS MARKETING CORPORATION OF ZIMBABWE vs AFRICAN CONSOLIDATED RESOURCES PLC and OTHERS
Ruled By: CHIDYAUSIKU CJ

SC54-06 : VIGOUR FUYANA vs NTOMBAZA MOYO
Ruled By: CHIDYAUSIKU CJ

Appealed
SC89-20 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: HLATSHWAYO JA, BHUNU JA and UCHENA JA

SC19-12 : JAMESON RUSHWAYA and ANNIE RUSHWAYA and XELOD INVESTMENTS PL vs SWIMMING POOL & UNDERWATER REPAIRS PL and PATTERSON TIMBA and AEPROMM RESOURCES PL and TOLROSE INVESTMENTS PL
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA AJA

HH776-15 : LADRAX INVESTMENTS (PVT) LTD vs IGNATIOUS CHIRENJE and RUTENDO WILLA CHIRENJE
Ruled By: MATANDA-MOYO J

SC08-11 : ERIC FILON vs PUBLIC SERVICE COMMISSION and THE SECRETARY FOR WATER RESOURCES
Ruled By: CHIDYAUSIKU CJ

SC46-16 : HWANGE COLLIERY COMPANY LTD vs TENDAI MAKUTE and DEPUTY SHERIFF, HWANGE
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and HLATSHWAYO JA

HH76-11 : SIBANGALIZWE DHLODHLO vs DEPUTY SHERIFF FOR MARONDERA and SHERIFF FOR ZIMBABWE and KANTOR & IMMERMAN and WATERSHED COLLEGE
Ruled By: GOWORA J

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

HH458-19 : KNOWE RESIDENTS AND RATEPAYERS ASSOCIATION vs EDDIES PFUGARI (PVT) LTD and EDWARD NYANYIWA and NORTON TOWN COUNCIL and REGISTRAR OF THE HIGH COURT
Ruled By: FOROMA J

SSC04-21 : MARRY MUBAIWA-CHIWENGA vs THE STATE and NATIONAL PROSECUTING AUTHORITY and CRIMINAL CLERK OF COURT, ROTTEN ROW MAGISTRATES COURT
Ruled By: MAVANGIRA JA

SSC07-21 : CAINOS CHINGOMBE vs THE STATE
Ruled By: MAKONI JA

SC07-22 : POLICE SERVICE COMMISSION and THE COMMISSIONER GENERAL OF POLICE vs DHERERAI MANYONI
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

HHB226-16 : ALPHONSUS ACHINULO vs W. MAPHIOS MOYO N.O. and THE STATE
Ruled By: MATHONSI J

HHB100-17 : ELIZABETH SHAVA vs PRIMROSE MAGOMORE N.O. and NATIONAL PROSECUTING AUTHORITY
Ruled By: MATHONSI J

HHB345-16 : NQOBILE KHUMALO vs THE PRESIDING MAGISTRATE N.O. (MR MZINGAYE MOYO) and THE PROSECUTOR GENERAL N.O.
Ruled By: MATHONSI J

HHH765-15 : JOSPHAT MUKWEMU vs MAGISTRATE SANYATWE N.O. and THE PROSECUTOR GENERAL
Ruled By: MATHONSI J

SSC23-21 : SAMUEL UNDENGE vs THE STATE
Ruled By: UCHENA JA

View Appeal
SC61-22 : BDO ZIMBABWE CHARTERED ACCOUNTANTS vs ROBIN VELA and THE AUDITOR GENERAL OF ZIMBABWE
Ruled By: BHUNU JA, MATHONSI JA and CHIWESHE JA

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

View Appeal
HHH03-21 : ROBERT GUMBURA vs THE STATE
Ruled By: CHITAPI J

SC26-21 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

Appealed
SSC62-21 : KIZITO MUTSURE vs THE STATE
Ruled By: MAVANGIRA JA, UCHENA JA and MAKONI JA

Appealed
SC63-21 : GATEWAY PRIMARY SCHOOL and KM RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION vs MARINDA FENESEY and THE SHERIFF OF ZIMBABWE
Ruled By: HLATSHWAYO JA, GUVAVA JA and BHUNU JA

SC83-21 : DOMBO CHIBANDA and PINGO KANDORORO and JOHN KANDWE vs CITY OF HARARE
Ruled By: HLATSHWAYO JA

SSC86-21 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE and THE PROSECUTOR GENERAL
Ruled By: MAKONI JA

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

SC93-21 : RINOS TERERA vs GEORGE LOCK and CK HOLLAND t/a HOLLAND ESTATE AGENT and ZIMBABWE HOUSING COMPANY (PVT) LTD and THE REGISTRAR OF DEEDS
Ruled By: CHITAKUNYE AJA

HH02-21 : ERNEST MHAMBARE vs ALFRED MWAZHA and OTHERS
Ruled By: MUREMBA J

SC21-18 : EASTER MZITE (as Executrix Dative Estate Late Chemayi Joseph Mtize) vs DAMAFALLS INVESTMENTS (PVT) LTD and MASTER OF THE HIGH COURT
Ruled By: BHUNU JA

HH170-22 : DIVVYLAND INVESTMENTS (PVT) LTD vs DAVID CHIWEZA and THE SHERIFF OF ZIMBABWE
Ruled By: FOROMA J

HH801-22 : EQUITY PROPERTIES (PVT) LTD vs AL SHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS N.O.
Ruled By: MANGOTA J

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

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

CC06-21 : RITA MBATHA vs NATIONAL FOODS (PRIVATE) LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

CC09-21 : GIFT KONJANA vs DEXTER NDUNA
Ruled By: GARWE AJCC, GOWORA AJCCand HLATSHWAYO AJCC

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

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

Appealed
SC179-20 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: GARWE JA, MAKARAU JA and MAKONI JA

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA