The proceedings before the Managing Director having been a nullity, the appropriate course would have been for the court a quo to remit the matter to the Managing Director for a hearing that accords with the rules of natural justice.

In the circumstances, the decision of the Managing Director ought to be set aside.

It would, however, be undesirable to have the matter remitted to him for a rehearing. This is so because the fact that the Managing Director was prepared to and did determine the matter without hearing the respondent might justifiably create an impression of partiality on his part.

Justice must be seen to be done.

For these reasons, in the interests of justice, instead of having the court a quo remitting the matter to the Managing Director, this court will order that the Labour Court re-hear the appeal instead and ensure that the rules of natural justice are complied with.

Section 89(2)(a)(i) of the Labour Act empowers and enables the Labour Court to conduct such a hearing.

Labour matters ought not be dealt with and finalized on technicalities.

The rehearing of the matter by the Labour Court will ensure that this does not happen. This is so because if such a re-hearing is not ordered, especially after the nullification of the proceedings before the Managing Director, then, the merits of the matter would remain eternally undetermined, to the prejudice of one party or the other.

Section 89(2) of the Labour Act reads:

“(2)(a) In the exercise of its functions, the Labour Court may: in the case of an appeal –

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

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

(iii)…,. (repealed); or

…,. (repealed).”

In Dalny Mine v Banda 1999 (1) ZLR 220 (S) McNALLY JA stated at 221B-C:

“As a general rule, it seems to me undesirable that labour relations matters should be decided on the basis of procedural irregularities. By this, I do not mean that such irregularities should be ignored. I mean that the procedural irregularities should be put right. This can be done in one of two ways:

(i) By remitting the matter for hearing de novo and in a procedurally correct manner;

(ii) By the tribunal hearing the evidence de novo.”

He continued at 222B:

“The point I am making is that when the Tribunal decides, as it did in this case, to exercise its powers under section 97(4)(a) of the Act, and to 'proceed with the appeal by way of a hearing' then it is starting afresh, as it were, on a clean page. The errors of the past are no longer relevant.”

He continued further at 222D:

“It does not seem to me, with respect, to be a compliance with section 4(1) if the Tribunal, for technical reasons, compels an employer to reinstate (or pay damages to) a person who has been clearly shown to have committed a dismissible offence.”

The applicable statute in Dalny Mine v Banda 1999 (1) ZLR 220 (S) was the Labour Relations Act. Section 97(4)(a) of that Act is similar to section 89(2)(a) of the Labour Act which is the applicable statute in casu.

Section 97(4)(a) of the Labour Relations Act [Chapter 28:01] (Act No.16 of 1985 as amended by Act No.20 of 1994) reads:

“Upon receiving notice of an appeal, the Tribunal may –

(a) Proceed with the appeal by way of a hearing; or

(b) Decide the appeal on the record; or

(c) Remit the matter to the senior labour relations officer concerned for further investigation, and, upon the conclusion of such investigation, proceed with the appeal by way of a hearing or decide the appeal on the record.”

The similarity in the wording of the relevant portions of the two sections (89(2) and 97(4)(a)) of the current and repealed statutes respectively) justifies the applicability of the reasoning as cited above from Dalny Mine v Banda 1999 (1) ZLR 220 (S) to the instant case.

In the result, the appeal succeeds for reasons different to those raised in the grounds of appeal, and, consequently, with a result different to that in the appellant's prayer.

Accordingly, the following order is made:

1. The appeal is allowed.

2. The judgment of the Labour Court be and is hereby set aside.

3. The matter is remitted to the Labour Court for a rehearing of the appeal before a different judge of that court.

4. Each party shall bear its own costs.

The appellant is a clergyman of the Prophetic Healing and Deliverance Ministries, commonly known as the PHD Ministries.

The respondent is the Zimbabwe Gender Commission (“the Commission”), an independent commission provided for in accordance with section 245 of the Constitution and established as a body corporate in terms of section 2 of the Zimbabwe Gender Commission Act [Chapter 10:31] (the “Act”).

Its functions are set out in section 246 of the Constitution as being:

“(a) To monitor issues concerning gender equality to ensure gender equality as provided in this Constitution;

(b) To investigate possible violations of rights relating to gender;

(c) To receive and consider complaints from the public and to take such action in regard to the complaints as it considers appropriate;

(d) To conduct research into issues relating to gender and social justice, and to recommend changes to laws and practices which lead to discrimination based on gender;

(e) To advise public and private institutions on steps to be taken to ensure gender equality;

(f) To recommend affirmative action programmes to achieve gender equality;

(g) To recommend prosecution for criminal violations of rights relating to gender;

(h) To secure appropriate redress where rights relating to gender have been violated; and

(i) To do everything necessary to promote gender equality.”

On 23 August 2019, the Zimbabwe Gender Commission (Commission) issued General Notice 1444 of 2019 which it published in the Government Gazette. The General Notice authorized the respondent to conduct an investigation into complaints of sexual abuse, generally, made against the appellant.

In response, on 3 September 2019, the appellant filed an application with the High Court for a review of the decision by the respondent to launch the investigation pursuant to the General Notice.

He followed this up with an urgent chamber application in which he sought, by way of interim relief, an interdict against the conduct of the investigation by the respondent.

On 22 October 2019, the High Court dismissed the urgent chamber application with costs. This appeal is against that judgment.

In seeking relief before the High Court, the appellant attached a draft order in which he sought the following:

“TERMS OF THE FINAL ORDER SOUGHT

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

1. General Notice No.1444 of 2019 published in the Gazette of 23 August 2019 be hereby declared null and void and of no force and effect.

2. That the intended investigations of the applicant, for sexual abuse by the Respondent, in terms of General Notice No.1444 of 2019, published in the Gazette of 23 August 2019, be and are hereby permanently stayed.

3. Costs will be costs in the cause.

1. Pending the determination of this matter on the return day, the intended investigations of the Applicant, for sexual abuse by the Respondent, in terms of General Notice No. 1444 of 2019, published in the Gazette of 23 August 2019, be and are hereby stayed.”

In his application for an interdict, the appellant averred that he had sought the review of the decision to cause an investigation against him on allegations of sexual abuse arising from complaints laid against him.

He contended, that, in the review, he sought to challenge the jurisdiction of the Zimbabwe Gender Commission (Commission) in respect of the General Notice as well as the intended investigation into the alleged complaints of sexual abuse.

He averred, that, the contemplated investigations were imminent, and that, by his reckoning, were due to commence, at the earliest, by 12 September 2019, by which date his application for review would not have been determined, and, that, the mere pendency of the application would not stop the Zimbabwe Gender Commission (Commission) from proceeding with the investigation of the alleged complaints of sexual abuse.

He contended, that, he had good prospects of succeeding on the review and that his rights from the review process would be rendered nugatory if the investigations were not halted pending the review.

His stance was that neither the Constitution nor the Zimbabwe Gender Commission Act [Chapter 10:31] afforded the Zimbabwe Gender Commission (Commission) the authority to conduct the contemplated investigation. To that extent, any investigation by the Commission constituted an illegality.

He contended further, that, what the Commission intended from the published notice was outside its statutory mandate, and, as a result, the appellant was entitled to the protection of the law which he was seeking from the court. Thus, it was only right that the court issue an interdict against the Zimbabwe Gender Commission (Commission).

Over and above the averments referred to in the aforegoing, the appellant contended, that, even if the Zimbabwe Gender Commission (Commission) had the authority to conduct an investigation, the methodology it had employed violated his constitutional rights and legal principles and rules governing evidence such as that which the Commission wished to gather. The methods adopted would lead to a compromised result which would cause him to suffer irreversible harm.

He averred that the balance of convenience was in his favour, and that, if he was not granted the relief sought, he would suffer unconscionable irreparable harm in that he would 'be put out of pocket and suffer permanent impairment of his personal dignity which no other process could remedy.' He did not have any other remedy that he could employ to stop the process which he considered illegal.

He opined, that, the Zimbabwe Gender Commission (Commission), on the other hand, would not suffer any prejudice if its intended investigation were halted.

The Zimbabwe Gender Commission (Commission) opposed the application.

It maintained, that, it had investigative functions in terms of the Constitution and its enabling Act. It contended, that, under the provisions of section 5 of the Zimbabwe Gender Commission Act [Chapter 10:31], an investigation is preceded by the promulgation of a notice in the Government Gazette and the publishing of such notice in one or more national newspapers informing the public of its intention to investigate a systemic barrier as provided in the Zimbabwe Gender Commission Act.

The Zimbabwe Gender Commission (Commission) contended, that, the notice it issued was lawful and provided for by law.

It averred, that, it had received numerous complaints of alleged sexual abuse from numerous quarters against the appellant which necessitated the issuance of the notice to facilitate the conduct of investigations into the said complaints.

It denied suggestions by the appellant that it had neither the mandate nor the authority to proceed as intended.

In so far as the prospects of success were concerned, the Zimbabwe Gender Commission argued that there were none.

It pointed to the averment by the appellant, that, there were numerous complaints against him, some of which were the subject of police investigations. The Commission averred, that, an investigation under section 5 of the Zimbabwe Gender Commission Act can only be possible where complainants and witnesses have come forward with allegations pointing to the possibility of the existence of alleged violations.

The court a quo decided the application on the sole issue of whether or not the applicant's rights were likely to be violated. It said the following:

“I do not see how the applicant's rights may be violated by the investigation. He has a right to legal representation. The investigation itself is not of a criminal nature, in the sense that the respondent is not endowed with any power to impose any sanction consequent to an investigation.”

The court a quo concluded, that, the Zimbabwe Gender Commission (Commission), had, under section 7 of the Zimbabwe Gender Commission Act, the power to conduct an investigation, and, where the investigation reveals systemic barriers prejudicial to gender equality, etc, after informing the Minister, make a report to Parliament on its findings.

The court a quo found, that, there was no immediate impact on the appellant from the investigation as contemplated by the Zimbabwe Gender Commission.

The grounds of appeal are framed as follows:

“1. The court a quo misdirected itself in totally misconstruing the application before it as one for the setting aside of investigations and so erred when consideration is given to the fact that the application was actually meant to interdict the holding of unlawful investigations.

2. The court further erred in concluding, that, protection against harm to fama cannot, at law, be sought through urgent interdictory relief and so erred in arriving at a finding which is contrary to established and well-regarded authority.

3. Having found that respondent had instituted an investigation in terms of section 5 of the Gender Commission Act [Chapter 10:31] and having concluded that the issues it sought to investigate were outside the remit of the powers contained in that provision, the court a quo erred in not concluding that appellant had prospects of success in the review application and was consequently due the remedy of an interdict.

4. A fortiori, the court a quo erred in failing to appreciate that the principle of legality requires that when challenged, the exercise of public power must be justified on the basis upon which it has been specifically exercised, and that, for that reason, the notice impugned not having been properly given in terms of section 5 of the Act could not be held valid on the basis of constitutional provisions.

5. Having come to the conclusion that the process which had been instituted by the respondent was pointless and abortive, the court a quo erred in not concluding that appellant's rights were imperilled by having to be required to go through a sham and that he was consequently entitled to protection since the balance of convenience was in his favour.”

Counsel for the appellant commenced his argument by challenging the jurisdiction of the Zimbabwe Gender Commission (Commission) to conduct the investigation as set out in the General Notice.

He submitted that the General Notice had not been issued in terms of the Zimbabwe Gender Commission Act [Chapter 10:31].

He added, that, the court a quo had itself queried the necessity by the Commission to publish the General Notice, which it said was inconsistent with the Zimbabwe Gender Commission Act, and suggested that the court a quo had implied that section 5 of the Zimbabwe Gender Commission Act was inappropriately relied upon by the Commission.

Counsel for the appellant argued, that, before the court a quo, the appellant was called upon to establish a prima facie case.

He stated that the Zimbabwe Gender Commission (Commission) did not have jurisdiction to issue the General Notice.

He highlighted to this court, that, once the judge a quo made a finding that the investigation sought to be conducted by the respondent was not a section 5 process, it automatically followed that the court ought to have granted the relief sought by the appellant.

The court engaged counsel for the appellant to shed light on what he understood a General Notice to be.

To his credit, counsel accepted that a General Notice is in the nature of a statutory instrument and has the force of law.

The court also enquired from counsel whether it was possible, at law, for a court to grant an interdict the effect of which was to suspend the operation of a law that has legal force and effect.

In addition, the court directed counsel for the appellant, premised on the relief sought in the court a quo wherein the final order sought was the permanent stay of the investigations, and enquired of him whether the application for review was not a superfluous process given that the final order sought by the appellant was a permanent stay of the investigations.

Once granted by the court, in terms of the final order prayed for, the order would render the review application inconsequential.

Counsel for the appellant contended otherwise.

Per contra, counsel for the respondent submitted, that, owing to the exchange between counsel for the appellant and the court, the issue which arose for determination was whether or not a law can be set aside through an application for an interdict.

Counsel for the respondent contended, that, in view of the promulgation of the General Notice as a law, anything done pursuant thereto must be presumed to be valid.

She argued further, that, a court cannot interdict lawful conduct.

For this contention, she sought reliance on ZIMRA v Packers International SC28-16 and Mayor Logistics v ZIMRA CC07-14, which, according to her submissions, both underscored the principle that a challenge to law cannot be made in terms of an interdict.

She proceeded to argue that the Zimbabwe Gender Commission (Commission) had acted within the ambit of its powers as prescribed in terms of section 5 of the Zimbabwe Gender Commission Act in that systemic barrier to gender equality can emanate from the conduct of one person. In this regard, she argued, the appellant, being an influential leader of a great movement, it is that stature and influence that he seeks to protect.

Counsel went on to argue, that, the Constitution, in section 246, gave the Commission the mandate to carry out such investigations. She conceded, that, the functions stated in section 246 of the Constitution are not restated in the Zimbabwe Gender Commission Act but that this did not take away the Commission's authority to act in the manner that it did because the purpose of the Zimbabwe Gender Commission Act is not to restate what is in the Constitution but to augment the contents thereof.

Counsel for the respondent submitted, that, section 246 paragraphs (b) and (c) of the Constitution set out the investigative functions of the Zimbabwe Gender Commission (Commission). She also referred the court to section 2 of the Zimbabwe Gender Commission Act which defines “systemic barriers” and added that a reading of section 2 showed that the definition therein was not exhaustive, and, for that reason, the Commission took the view that organised worship is a sphere of activity as contemplated in the Zimbabwe Gender Commission Act.

In any event, counsel for the respondent argued, the Commission had decided not to proceed with the investigations and decided to await the outcome of the review application.

In response, counsel for the appellant indicated to the court, that, the authorities cited by counsel for the Commission were irrelevant and distinguishable to the present matter.

He argued, that, the General Notice was inconsistent with the Zimbabwe Gender Commission Act and this should have automatically translated to a prima facie case for the appellant enabling him to obtain relief from the court a quo.

He submitted, that, section 5 of the Zimbabwe Gender Commission Act does not allow the Commission to exercise the powers it purported to have exercised in terms of the General Notice.

He argued, that, there was no systemic barrier involved in casu that prejudiced gender equality or gender equity.

Also, the Commission was said to have failed to indicate the section of society that was to be investigated as envisaged by section 2(1) of the Zimbabwe Gender Commission Act.

In closing his submissions, counsel for the appellant stated, that, the methodology employed by the Commission was inappropriate and not in conformity with relevant provisions of the Zimbabwe Gender Commission Act.

Having said that, he prayed that the appeal be allowed and the decision of the court a quo be set aside.

The facts of the matter are not in dispute and the appeal falls for determination on the basis of the ratio decidendi of the court a quo.

Although the appellant raised numerous grounds of appeal, there is only one issue that arises for determination and is capable of disposing of this whole appeal.

The only issue is whether or not the court a quo was wrong in refusing the application for an interdict.

The Zimbabwe Gender Commission (Commission) is imbued with an investigative mandate, both in terms of the Constitution and the enabling Act. It issued a General Notice, and the appellant seeks to challenge the decision to publish the Notice through the review that he has filed.

What is a General Notice?

A General Notice is a public notice published in the Government Gazette. A General Notice is in the same category as a statutory instrument. It is subsidiary legislation. It, therefore, has the force and effect of law.

It can also be viewed as a document that has legislative character, and, like any other law, it has legal force and effect.

It is an essential element of due process, and, therefore, once it is issued it must be complied with unless set aside. As a consequence, until and unless it has been set aside, anything done under or pursuant to such General Notice is lawful.

It is not necessary in this appeal to determine whether or not the Zimbabwe Gender Commission (Commission) exceeded its powers in issuing the General Notice. Whether or not the Notice is in accordance with the powers bestowed on the Commission is for the court hearing the application for review to decide.

It is WALLIS JA, with HARMS AJ, VAN HEERDEN JA, MALAN JA and PETSE AJA all concurring who waxed lyrical in Executive Officer of the Financial Services Board v Dynamic Wealth Ltd & Ors 2012 (1) SA 543 when he said:

“Ever since the bursting of the South Sea Bubble in 1720, governments have recognised the need, in the interests of the investing public, for regulation of the financial services industry.”

The plaintiff, a public company registered in Zimbabwe sued the defendant for payment of US$1,007,541=30 together with interest at the prescribed rate and costs of suit, being the plaintiff's money allegedly appropriated by the defendant from the plaintiff's bank in pursuance of a Monetary Policy Statement issued in terms of section 46 of the Reserve Bank Act [Chapter 22:15] (“the Act”) and a directive issued to banks in terms of section 35(1) of the Exchange Control Regulations, Statutory Instrument 109/96, SI109/1996.

The defendant is established in terms of section 4 of the Reserve Bank Act [Chapter 22:15] and is charged with, inter alia, the regulation of Zimbabwe's monetary system, the supervision of banking institutions, and the smooth operation of the payment system as well as acting as banker and financial advisor to, and fiscal agent of, the State.

It is salutary that the defendant performs these functions in order to regulate banking and protect the banking public.

In the discharge of its duties aforesaid, the defendant issued a Monetary Policy statement, on 1 October 2007, centralising all foreign currency accounts and directing the lodgement, at its doorsteps, of all corporate foreign currency balances held by authorised dealers.

One such authorised dealer is Banc ABC where the plaintiff maintained a foreign currency account.

In compliance with the monetary policy, and a subsequent directive issued by the defendant, Banc ABC lodged the plaintiff's foreign currency balance with the defendant.

That is the last time the plaintiff saw the money, as the defendant did not return it to Banc ABC as a result of which the plaintiff was unable to access that money.

The plaintiff then sued the defendant aforesaid seeking to recover the money but the defendant contested the action averring, in its plea, that, there was no causal nexus between the parties given that the plaintiff and the defendant did not enjoy any banking relationship and that the plaintiff should have proceeded against its Bank, that is Banc ABC, and not against the defendant.

At the pre-trial conference, the parties agreed on the issues for trial as:

“1.1. Whether or not the plaintiff has a cause of action against the defendant.

1.2. Whether or not the defendant is obliged to pay the amount claimed or any amount at all.”

When the matter initially came before me for trial, the parties were of the view that the facts were generally common cause. They then requested the deferment of the hearing to enable them, firstly, to agree on the facts, prepare and file a Statement of Agreed Facts as well as heads of argument.

In due course this was done, and the Statement of Agreed Facts signed and filed by the parties reads:

“1. The plaintiff is Trojan Nickel Mine Limited, a public company registered in accordance with the laws of Zimbabwe.

2. The defendant is the Reserve Bank of Zimbabwe. It is established in terms of the Reserve Bank of Zimbabwe Act [Cap 22:45] (“the Act”) with the power, amongst other things, to regulate the banking sector.

3. The plaintiff, at all material times, maintained a foreign currency account number ZWTROJ001CALUS0019 domiciled at Banc ABC, formerly the African Banking Corporation.

4. On 1 October 2007, the Governor of the defendant, Dr G. Gono, issued a Monetary Policy Statement in terms of section 46 of the Act. The Monetary Policy Statement provided, in pertinent part, as follows..,.:

'6.2. In order to achieve the twin objectives of boosting exporter viability and improving the economy's accountability for total export and other foreign currency receipts, as well as ensuring judicious allocation of the scarce foreign currency resources, it has become necessary that the Reserve Bank introduces a new frame-work where we pool our resources together without disadvantaging the generators of that foreign currency.

6.3. Within this spirit, of preserving and promoting the welfare of our generators of foreign currency, who are the geese that lay the golden eggs, it has become necessary that the Central Bank centralises the management of FCAs, along with the creation of an interest earning investment window that boosts exporter viability.

6.4. What this means is that, with immediate effect, all corporate FCA balances at Authorised Dealers are to be lodged at the Reserve Bank, such that each bank maintains mirror accounts for transactions tracing purposes.'

5. On 2 October 2007, the defendant's Division Chief, Exchange Control, one M.B. Mpofu, directed a minute to the Head, Exchange Control Department of all Authorised Dealers, which read(s) in pertinent part as follows:

'Dear Sir/Madam

1. INTRODUCTION

1.1. Reference is made to the Mid-Year Monetary Policy Statement announced by the Governor on 1 October 2007. In order to operationalize the measures highlighted therein, Authorised Dealers are accordingly directed as follows…,.:

2….,.

3. CENTRALISED FCA MANAGEMENT

3.1. Authorised Dealers are advised, that, with immediate effect, all Corporate and Non-Governmental Organisations (NGOs) FCA balances, as at 1 October 2007, shall be lodged with the Reserve Bank.

3.2. Authorised Dealers shall transfer all their Corporate FCA (including EPZ Companies) and NGOs balances to the Reserve Bank by close of business on 2 October 2007, as directed by International Banking and Portfolio Management Division, and submit to Exchange Control, individual exporter balances on those transfers made.

3.3. Authorised Dealers are required to maintain mirror accounts for their exporting clients indicating individual entitlements for transaction tracking purposes.

3.4. Authorised Dealers shall submit to the Exchange Control Inspectorate monthly foreign currency account statements for their clients for which global balances should be consistent with holdings at the Reserve Bank's Internal Banking and Portfolio Management Division.

3.5. All special FCAs (transitory accounts) and FCAs for International Organisations, Embassies, and Individuals shall remain with Authorised Dealers.

3.6. In order to ensure that exporters preserve the real value of the foreign exchange deposits under the pooled framework, all such deposits shall earn an all inclusive (interest) rate of 12% per annum in foreign currency for USD, Pound, Euro, Pula and Rand.'

6. The Ban ABC was, and remains, an Authorised Dealer.

7. The plaintiff alleges, that, it had a foreign currency balance of USD1,007,541=30 as at 1 October 2007 in its FCA aforesaid.

8. Banc ABC, pursuant to the directive in para 4 above, remitted the sum of USD1,492,516=06 to the defendant.

9. The plaintiff alleges, that, it has been unable to access its funds from Banc ABC despite demand.

10. The plaintiff has sued the defendant for:

'Payment of an amount of USD1,007,541=30 which amount is due and payable to the plaintiff by the defendant: which amount represents the entire balance of the money which was held by the plaintiff in a foreign currency account in African Banking Corporation Limited: which amount was appropriated by the defendant some time in 2008: and which amount, despite demand, the defendant fails or refuses to pay.'

11. The defendant has pleaded to the summons as follows:

'The defendant pleads that there is no causal nexus between the plaintiff and the defendant, more particularly that:

(a) The plaintiff and defendant have no banking relationship and the defendant did not manage or keep a banking account of the plaintiff and owed the plaintiff no duties normally associated with a banker and its depositor.

(b) The plaintiff's claim should be against its banker and not the defendant. It is improper and there is no legal basis alleged which would entitle the plaintiff to bring a claim against the defendant.

WHEREFORE, the defendant prays for the dismissal of the plaintiff's claim with costs.'

12. The parties have joined issue and agreed on the following issues for disposition:

12.1 Whether or not the plaintiff has a cause of action against the defendant.

12.2. Whether or not the defendant is obliged to pay the amount claimed or any amount at all.

13. The parties respectfully pray that this honourable court may dispose of the agreed issues on the basis of the facts agreed herein and Heads of Argument to be filed by both parties.

DATED AT HARARE this 22nd day of May 2013.”

The Statement of Agreed Facts is duly signed by counsel for the parties.

Counsel for the plaintiff submitted, that, the plaintiff does have a cause of action against the defendant because it is the defendant which wrongfully procured a breach of the contract that exists between the plaintiff and Banc ABC. He maintained, that, an action exists in our law for the intentional and wrongful interference with contractual rights.

In addition, the plaintiff is entitled to recover from the defendant the procured money on the basis of unjust enrichment, it having been enriched at the expense of the plaintiff.

Counsel for the plaintiff strongly argued, that, the directives issued to Authorised Dealers, by the defendant, had the effect:

(i) Firstly, of inducing Banc ABC to commit a breach of its contract with the plaintiff; and

(ii) Secondly, the directives intentionally and wrongfully interfered with contractual rights.

Counsel for the defendant did not address himself to that argument. As far as he was concerned, there was no banker and client relationship between the parties, and, for that reason, the defendant does not owe the plaintiff any duty.

Counsel for the defendant insisted, that, it is the plaintiff's Bank which received the money from the plaintiff, and, for that reason, it is the one with the obligation to pay the money to the plaintiff.

Counsel for the defendant further argued, that, the plaintiff's pleadings do not allege a legal basis entitling it to bring a claim against the defendant especially as the summons does not specify that the suit is based on either contract or delict.

Relying on the judgment of BERE J in China Shougang International v Standard Chartered Bank Zimbabwe Limited HH310-11 where the learned judge stated, obiter dictum…, that there was no privity of contract between the Central Bank and a depositor at a Bank.

I do not think the decision in China Shougang International v Standard Chartered Bank Zimbabwe Limited HH310-11 needs to detain us at all because it is clearly distinguishable from the present case.

In that case, the depositor had sued its own Bank and the defendant (in casu) was not cited as a party to the proceedings. More importantly, apart from the fact that the claim was based on a banker and depositor relationship, and not on the procurement of the deposit by the present defendant, there was also no admission by the Reserve Bank of Zimbabwe (RBZ) that it had indeed appropriated the depositor's money.

I agree with counsel for the plaintiff, that, the question of wrongful procurement was not placed before the court in that matter. Therefore, the case is distinguishable.

In our law, it is generally accepted, and I did not hear counsel for the defendant argue to the contrary, that, an action exists for intentional inducement of a breach of contract.

In PQR BOBERG, The Law of Delict, Vol 1, Juta & Co. Ltd…, the point made that:

“It is well established that the intentional inducement of a breach of contract is an actionable wrong: see Atlas Organic Fertilisers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 (2) SA 173 (T) at 202G, and the cases there-cited.”

In Dantex Investments Holdings (Pty) Ltd v Brenner & Ors NNO 1989 (1) SA 390 (AD)…, GROSSKOPF JA also made that point in stating:

“It is clear that an interference with contractual rights can, in certain circumstances, constitute a delict. What is less clear is what precisely the requirements for liability are.”

See also Roux v Hattingh 2012 (6) SA 428 and R.H. CHRISTIE, The Law of Contract, 3rd ed, Butterworths…,.

In casu, the defendant acted in terms of section 46 of the Reserve Bank Act [Chapter 22:15]. That section provides:

“In June and December of each year, the Governor shall submit to the Minister a policy statement containing –

(a) A description of the monetary policy to be followed by the Bank during the next succeeding six months, and a statement of reasons for those policies; and

(b) A statement of the principles that the Bank proposes to follow in the implementation of the monetary policy; and

(c) An evaluation of the monetary policy and its implementation for the last preceding six months.”

In order to implement the policy statement given in terms of section 46 of the Reserve Bank Act, to the effect that foreign currency balances were to be lodged with the defendant, a directive was also issued to Banks, in terms of section 35(1) of the Exchange Control Regulations, SI109 of 1996 instructing them to immediately lodge the foreign currency balances with the defendant.

Section 35(1) of the Exchange Control Regulations, SI109/96 is of peremptory application. It reads:

“Authorised dealers shall comply with such directions as may be given to them by an exchange control authority relating to -

(a) The exercise of any functions conferred on them by or under these regulations;

(b) The terms on which they are to exchange foreign currency for Zimbabwean currency;

(c) The offer of foreign currency in their possession for sale to the Reserve Bank.”

It was stated in China Shougang International v Standard Chartered Bank Zimbabwe Limited HH310-11, that, the directive given by the Governor of the defendant was invalid for want of a Ministerial approval.

I do not think it is necessary to discuss that issue in this case because it is accepted that the directive was given.

To that extent, the plaintiff's Bank was obliged to comply with the directive in terms of the law. Doing otherwise would have resulted in dire consequence to it, if not the loss of its Banking licence.

It is common cause, that, after appropriating the plaintiff's money, the defendant did not return that money and has not even begun to give any indication as when, if at all, it will repay the money.

It has contented itself with hedging behind the non-existence of a contractual relationship between it and the plaintiff. The proverbial hiding behind a finger.

Quite how and why the defendant could come to the conclusion that it can just acquire the money and refuse to repay it to the owner is one of the greatest unfathomable mysteries of this world.

There can be no doubt, that, the right to private property is one of the sacrosanct rights protected by law.

There is little doubt, that, the plaintiff should be protected against the arbitrary deprivation of its equity deposited at Banc ABC, which institution was powerless against the defendant's directive and is now unable to perform its contractual obligations, namely, paying the money to the plaintiff on demand.

To my mind, the defendant intentionally induced Banc ABC to breach its contract with the plaintiff.

I have already stated, that, an intentional inducement of a breach of contract is actionable in our law.

As a corollary to that is the submission made on behalf of the plaintiff, that, the directive which led to the appropriation of the plaintiff's foreign currency balance at Banc ABC constitutes a wrongful interference with contractual rights.

I agree.

While it is true, that, the defendant is the monetary authority charged with the management of the Banking sector and the formulation of Banking rules, I have not been directed to any authorities entitling the defendant to proscribe the release of deposits to depositors or indeed to interfere with Bankers obligations to pay balances to their clients on demand.

As a matter of policy, the security of Bank deposits should forever be protected by our courts.

Indeed, it would be an affront to the rights of depositors if ownership of their property, stored with Banks, and the culture of banking money instead of keeping it under a pillow, were to be rendered a serious economic hazard and a ruinous activity.

Our law, which protects ownership of property, is founded on a rock of wisdom. For that reason, the courts should be clear, consistent, and firm in enforcing principles protecting deposits.

Needless to say, that, the expropriation of export proceeds prior to dollarization, which have not been compensated, is one of the major factors inducing weak balance sheets of businesses resulting in poor economic performance.

I am persuaded, that, the plaintiff does have a cause of action against the defendant based on the twin concepts of the intentional inducement of a breach of contract and the wrongful interference with contractual rights: for wrongful it is if the monetary regulatory authority gives a directive for the appropriation of an individual's equity in a Bank and then failing to make good that equity.

Even if I am wrong in that conclusion, the defendant cannot escape liability on the basis of unjust enrichment.

It is now accepted, that, the general enrichment action is recognised in our law: see Industrial Equity v Walker 1996 (1) ZLR 269 (H) where BARTLETT J stated…,.:

“I am of the respectful view, that, the principal requisites for a general action on enrichment can be regarded as aptly summarised by Wouter de Vos in Verry King saanspreeklikheid in die Suid Africkaanse Reg (1958) as stated by Scholtens in the 1996 Annual Survey of South African Law, 150 at 152 as:

'(a) The defendant must be enriched;

(b) The enrichment must be at the expense of another (i.e. the plaintiff must be impoverished and there must be a causal connection between enrichment and impoverishment);

(c) The enrichment must be unjustified;

(d) The case should not come under the scope of one of the classical enrichment actions;

(e) There should be no positive rule of law which refuses the action to the impoverished person.

Obviously, these requirements can only be fulfilled if, in any given case, the action is based on a defined set of circumstances.'”

I am satisfied that all the requirements of unjust enrichment are met in the present case.

It is also not a case that would open floodgates, because, rarely do we have a situation where a depositor's foreign currency balance is appropriated the way it was in this case.

Counsel for the defendant submitted, that, the plaintiff did not plead any case based on delict, and that, for that reason, the claim should fail.

I am of the view, that, the manner in which the plaintiff pleaded its case, predicating it mainly on the fact that the amount claimed “was appropriated by the defendant” was wide enough to encompass the claim as it has been argued by counsel.

I however agree, that, it would be inappropriate, bearing in mind the banking relationship between the parties, the defendant being “a banker of banks” to direct that the money be paid directly to the plaintiff. The correct approach would be for the defendant to return the money to Banc ABC, the plaintiff's banker.

Accordingly it is ordered, that:

1. Judgment is hereby entered in favour of the plaintiff as against the defendant in the sum of USD1,007,541=30 together with interest a tempoe morae at the prescribed rate from the date of summons to date of payment.

2. The defendant is directed to deposit the said sum of USD1,007,541=30 into the plaintiff's Banc ABC account number ZWTROJ001CALUSD0019 or any other account held by the plaintiff at that Bank.

3. The defendant shall bear the costs of suit.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The first respondent was successful in this respect.

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

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

CHIKOWERO J dismissed the application.

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

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

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

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

The resolution reads in part:

“IT WAS RESOLVED:

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

SIGNED AT BULAWAYO this 15th February 2019.

Signed
……………………………………
(SECRETARY).”

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

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

“IT IS ORDERED THAT:

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

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

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

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

Wherefore she prayed for an order in the following terms:

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

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

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

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

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

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

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

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

2. It is thus prayed.”

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

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

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

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

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

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

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

There is need to interrogate that proposal on the merits.

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

That much is not in dispute.

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

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

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

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

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

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

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

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

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

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

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

This they did not do.

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

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

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

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

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

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

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

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

The court a quo, however, fell into error in making a final order before the parties competing rights have been conclusively determined on appeal.

The mere fact that there were numerous conflicting decisions on the same matter emanating from the same court on various aspects of the matter meant that there was uncertainty on the appellants prospects of success on appeal.

Despite that knowledge, they chose not to obey judicial and administrative processes that removed them from office and ultimately from being signatories to the first respondent's Bank account.

It is always wrong for a person to insist on being a signatory to another's Bank account without that person's consent. Even assuming for one moment that the appellants had been wrongfully removed from office, they had no right to fasten onto being signatories to the Union's bank account without its consent.

This is an application for an order compelling the respondent to assess capital gains tax payable in respect of the sale of Stand 965 Mabelreign Township, Harare and to receive such tax from the Deputy Sheriff for Harare on the pain of costs of the application.

The said property is currently registered in the name of a company known as Ellseck Investments (Private) Ltd.

The genesis of the matter is that the applicant concluded a sale agreement with Ellseck Investments (Pvt) Ltd for the purchase of Stand 965 Mabelreign Township for US$48,000 on 14 January 2010. She says she paid the full purchase price to the seller through mortgage finance from ZB Building Society.

Conveyancers, Danziger & Partners, were instructed to attend to the transfer of the property into the applicant's name.

The applicant states, that, before purchasing the property aforesaid, she had diligently conducted a Deeds Office search and satisfied herself that indeed the property was registered in the name of the seller and was not encumbered in any way.

It turns out that the seller did not co-operate in the process of transfer of the property to the applicant resulting in the applicant approaching this court, in case No. HC6737/10, for an order compelling the seller to perform its obligations in terms of the agreement of the parties and the law.

On 8 December 2010, this court, per MAVANGIRA J, issued an order against Ellseck Investments (Pvt) Ltd in favour of the applicant which reads as follows:

“IT IS HEREBY ORDERED THAT:

1. The Respondent shall, within ten (10) days of service of this court order upon it, provide Messrs Danziger & Partners Legal Practitioners with all the information and documents necessary for the registration of transfer of Stand 965 Mabelreign Township, Harare into the name of the applicant.

2. The Respondent shall, also within ten (10) days of service of this court order upon it, appoint a representative and execute all the necessary legal documents authorizing such representative to do everything necessary for the purpose of effecting transfer of Stand 965 Mabelreign Township, Harare into the name of the applicant including complying with all the administrative requirements of the registration of the transfer.

3. In the event of the Respondent failing to comply with paragraphs 1 and 2 above, the Deputy Sheriff for Harare shall be authorized to carry out all the acts required of the respondent to enable transfer of Stand 965 Mabelreign Township, Harare to be registered into the name of the applicant.

4. The Respondent shall bear the costs of this application on the legal practitioner and client scale.”

One of the acts required to enable transfer of the property to the applicant is payment of capital gains tax, assessed by the respondent in this case in terms of the Capital Gains Tax Act [Chapter 23:01].

It would appear that Ellseck Investments (Pvt) Ltd did not comply with the court order issued by MAVANGIRA J. forcing the applicant to fall back on the alternative term of the order, that of the Deputy Sheriff performing the acts necessary to give transfer to the applicant.

When the Deputy Sheriff approached the respondent's office for assessment and payment of Capital Gains Tax, he did not get any joy. The respondent refused to perform his statutory duties according to the Deputy Sheriff's return of 20 April 2011;

“Attempted to obtain assessment of capital gains tax in the presents (sic) of instructing attorney; Mrs Dzangare, advised that they could not comply with the requirements since there were outstanding payments.”

In a letter written to the conveyancer, on 21 March 2011, on behalf of the respondent, his position on the matter was set out thus:

“We wish to draw your attention to the fact that the initial transfer of the above mentioned Stand, from Clyde Chitsinde to Ellseck Investments Private Limited, was done fraudulently as no capital gains tax was paid as is required by the law.

The Zimbabwe Revenue Authority is therefore not in a position to accept payment of capital gains tax from Ellseck Investments Private Limited or to issue a capital gains clearance certificate in respect of the transfer from Chivhu Property Limited to your client as the initial transfer was tainted with illegability.

Thus, the original seller of the property, that is, Clyde Chitsinde, should first come and pay capital gains tax in respect of the sale of the property to Ellseck Investments Private Limited before capital gains tax in respect of the sale in question.”

It was not explained why the sins of the previous seller should be visited upon the doorsteps of the current seller, or, indeed, the applicant, who, for all intents and purposes, is the only interested party to the whole exercise.

Neither was it explained what prejudice would be suffered by the collector of taxes if capital gains tax was assessed and paid by or on behalf of Ellseck (Pvt) Ltd, which tax is now due, the property having been sold to the applicant.

In his opposing affidavit, the respondent also made reference to the fact, that, his investigations have revealed that the applicant purchased the same property from Clyde Chitsinde and he wondered why she had to buy the same property again from Ellseck (Pvt) Ltd.

In support of that claim, he attached handwritten office notes of interviews whose author is not disclosed.

He did not explain why an affidavit could not be obtained from the author to buttress his case, especially as those notes have no evidentiary value whatsoever.

I therefore reject those notes.

Counsel for both parties are agreed, that, the only issue to be determined is whether the respondent is empowered, by the legislation that he administers, to refuse to assess and receive capital gains tax on the basis that it has come to his attention that the previous owner of the property sold did not pay capital gains tax when he sold the property himself.

Counsel for the applicant argued, that, neither the Revenue Authority Act [Chapter 23:11] or the Capital Gains Tax Act [Chapter 23:04] empower the respondent to refuse to assess and collect capital gains tax.

He further submitted, that, the respondent has both criminal and civil remedies to deal with tax defaulters without resorting to the unorthodox actions he has employed in this matter.

He is aware of the particulars and whereabouts of the defaulter, Clyde Chitsinde, and should pursue those remedies against him.

On the other hand, counsel for the respondent strongly argued, that, the respondent is not obliged to issue a tax clearance certificate to the applicant because she is not a person entitled to it in terms of section 34(c) of the Revenue Authority Act and is not covered by section 6 of the Capital Gains Tax Act, which is the charging section.

He took the view, that, only the seller, Ellseck (Pvt) Ltd was entitled to be issued with the clearance certificate. In terms of the court order referred to above, it is the Deputy Sheriff who is entitled to the clearance certificate.

When his attention was drawn to the Deputy Sheriff's return of service, to the effect that the respondent still refused to issue the clearance certificate to him, counsel for the respondent could not explain that.

In my view, there is a court order clothing the Deputy Sheriff with authority to enter the shoes of Ellseck Investments and pay Capital Gains Tax on its behalf in order to facilitate transfer of the property to the applicant.

That court order is still binding and must be complied with.

The respondent has refused to let the Deputy Sheriff satisfy the terms of that order. For him to then argue, that, the applicant is not entitled to a clearance certificate is a red herring.

The Zimbabwe Revenue Authority, which the respondent heads, is established in terms of section 3 of the Revenue Authority Act [Chapter 23:11] and its functions and authority are set out in section 4 as read with the 2nd Schedule thereof.

Its main function is to act as an agent of the State in assessing, collecting, and enforcing the payment of all revenues.

In respect of capital gains tax, section 6, as read with section 22B of the Capital Gains Tax [Chapter 23:01] provides for the charging, levying, and collection of it against any person receiving a capital gain.

As a creature of statute, the Zimbabwe Revenue Authority (ZIMRA) is required to act in terms of the enabling statute.

The relevant statutes enjoin it to assess and collect the tax that is due. On the face of it, it cannot set conditions for the performance of its statutory obligations.

Regarding proof of title to immovable property, section 14(a) of the Deeds Registries Act [Chapter 20:05] provides;

“Subject to this act, or any other law, the ownership of land may be conveyed from one person to another only by means of a deed of transfer executed or attested by the registrar.”

Section 8(1) of the Deeds Registries Act [Chapter 20:05] provides:

“Save as is otherwise provided in this Act, or in any other enactment, no registered deed of grant, deed of transfer, certificate of title or other deed confirming or conveying title to land, or any real right in land other than a mortgage bond, and no cession of any registered bond not made as security shall be cancelled by a registrar except upon an order of court.”

It is common cause, that, Ellseck Investments holds title to Stand 965 Mabelreign Township which is registered at the Deeds Office.

The Registrar is the custodian and keeper of such titles.

It must therefore be accepted, that, the title deed held by Ellseck Investments is prima facie proof of ownership and an announcement to the whole world to deal with the title holder in accordance with the Deed of Transfer.

The Registrar of Deeds had not questioned the validity of that Deed, which, in any event, cannot be cancelled without a court order in terms of section 8(1) of the Deeds Registries Act.

What we have here is a case in which the applicant has relied on the records at the Deeds Office to purchase the property. She has gone ahead to obtain an order authorizing the Deputy Sheriff to pay capital gains tax.

The respondent has refused to assess the tax thereby frustrating the execution of a court order.

His reasons for doing so are that the applicant may have colluded with a previous owner to avoid tax.

I have already said that the respondents claim is not only unsubstantiated but premised on the inadmissible evidence, the notes of an unnamed officer, and have rejected that claim.

Therefore, all that remains is evidence of a bona fide purchaser who is entitled to take transfer upon assessment and payment of tax.

I do not agree with counsel for the respondent, that, the respondent is entitled to refuse to assess and receive tax in the circumstances of this matter.

I agree with counsel for the applicant, that, if the respondent has proof that a previous owner avoided paying capital gains tax, he has the latitude, that, in terms of the Capital Gains Tax Act, to pursue the defaulter and recover that tax as he has both Criminal and Civil remedies in that regard.

The respondent should, in the meantime, collect capital gains tax from the current seller.

The issues arising out of this dispute are such that it would not have been obvious that the respondent could not contest the application. I am of the view, that, he was entitled to bring his argument before the court for adjudication and cannot be said to have acted unreasonably. For that reason, this is a case in which each party should bear its own costs.

In the result, I make the following order; that:

1. The respondent shall, within ten days of service of this order upon him, assess the capital gains tax payable in respect of the sale of Stand 965 Mabelreign Township, Harare by Ellseck Investments (Pvt) Ltd to the applicant.

2. The respondent should receive payment of the capital gains tax payable by Ellseck Investment (Pvt) Ltd from the Deputy Sheriff for Harare and issue a Capital Gains Tax Withholding Tax Certificate to the Deputy Sheriff upon receipt of the payment.

3. Each party shall bear its own costs.

This is an application lodged in terms of Rule 32 of the Constitutional Court Rules 2016, for leave to appeal against the whole judgment of the Supreme Court (the court a quo) handed down on 14 January 2022 as Judgment SC01-22.

The decision of the court a quo had dismissed the applicant's appeal against the judgment of the High Court in Case No. HC2302/20.

The applicant is a former judge of the Supreme Court. He has cited seven respondents in all. The first respondent is the Judicial Service Commission. The second, third, and fourth respondents (Simbi Veke Mubako, Rekayi Maposa and Takawira Nzombe) were the members of a Tribunal that was established to inquire into the question of the applicant's removal from judicial office. The fifth respondent (Virginia Mabhiza) was the Secretary of that Tribunal. The sixth respondent is the President of Zimbabwe, while the seventh respondent is the Minister of Justice, Legal and Parliamentary Affairs.

Both the sixth and seventh respondents are cited in their official capacities.

On 3 March 2020, the applicant was suspended from judicial office following the appointment of the aforementioned Tribunal by the sixth respondent (hereinafter “the President”). The Tribunal was established to consider the applicant's suitability to hold the office of a judge. The suspension was pursuant to a resolution by the first respondent (hereinafter “the JSC”) made on 13 December 2019 to refer the question of his removal from office to the President.

The applicant was dissatisfied with the manner in which his case had been referred to the President.

Consequently, on 13 May 2020, he filed an application in terms of section 4 of the Administrative Justice Act [Chapter 10:28] alleging, that, the Judicial Service Commission (JSC) had failed to comply with section 3(1)(a) of the Administrative Justice Act by failing to act lawfully, reasonably, and in a fair manner when it gave advice to the President, in terms of section 187(3) of the Constitution.

The High Court dismissed the application before it with costs in favour of the Judicial Service Commission (JSC). The court found that the question of the applicant's alleged gross misconduct was a matter for the Tribunal to determine.

On appeal to the Supreme Court, the applicant raised five grounds of appeal, which are largely replicated in the intended grounds of appeal to this Court in the event that the instant application for leave to appeal is granted.

The Supreme Court upheld the finding of the High Court, that, the deponent to the Judicial Service Commission's opposing affidavit was lawfully authorised to do so. The court a quo also upheld the finding of the High Court, that, the applicant had failed to prove that the JSC was inquorate and functus officio at its meeting held on 13 December 2019. Lastly, the court held, that, the applicant's right to be heard had not been violated.

In the event, the court dismissed the applicant's appeal with no order as to costs.

The intended appeal before this Court is predicated on the assertion, that, the court a quo erred by avoiding an in-depth determination of various constitutional issues before it, despite having been alive to those issues.

The applicant accordingly asserts, that, the question of whether or not there was a constitutional matter before the court a quo must be answered in the affirmative. He further avers that the intended appeal to this Court does enjoy prospects of success.

As paraphrased, the intended five grounds of appeal asseverate that the court a quo erred and thereby misdirected itself in the following respects:

(i) In determining that the appeal was moot when the challenge to the referral by the Judicial Service Commission (JSC), under section 187(3) of the Constitution, was that it was unconstitutional.

(ii) In not finding, that, any person who was not a member of the Judicial Service Commission (JSC) was prohibited from representing it in any application pursuant to section 187(3), and, consequently, in not finding that the JSC was not properly before the High Court.

(iii) In not finding that section 344 of the Constitution places the onus to prove that it had a quorum on the Judicial Service Commission (JSC) and not on the appellant.

(iv) In not finding that section 187(3) of the Constitution requires the Judicial Service Commission (JSC) to grant a judge the full scope of the audi alteram partem rule before sending its advice to the President.

(v) In not finding that the Judicial Service Commission (JSC) is required to determine the existence or otherwise of the jurisdictional facts under section 187(3) before sending its advice to the President.

The applicant avers that the foregoing grounds of appeal enjoy prospects of success for a number of reasons:

(i) As regards the first ground, he contends, that, mootness does not arise when a thing is void for being unconstitutional.

(ii) On the second ground, he states, that, the Constitution does not permit the Judicial Service Commission (JSC) to delegate to its Secretary the critically important duty of defending in court its advice to the President under section 187(3) of the Constitution.

(iii) With respect to the third ground, he argues, that, section 344 of the Constitution would be undermined if a constitutional body is not obliged to prove that it had a quorum and that the independence of the judiciary would be threatened by the possibility of an inquorate Judicial Service Commission (JSC) proceeding in terms of section 187(3) of the Constitution.

In relation to the fourth and fifth grounds, he avers, that, a rigorous process preceding the tendering of advice in terms of section 187(3) of the Constitution requires the full scope of the audi alteram partem rule and a finding by the Judicial Service Commission (JSC) on the existence of the jurisdictional facts contemplated in section 187(1) of the Constitution.

(iv) Lastly, the applicant asserts, that, the intended appeal is of public importance because it is central to the independence of the judiciary. He contends, that, the position of this Court on the issues raised will clarify the law and protect the Constitution.

In the premises, he prays for an order for leave to appeal to be granted.

The Judicial Service Commission (JSC), through an affidavit deposed to by its Secretary, firmly opposes the instant application.

It denies that there are any constitutional issues or matters to be decided as contemplated by Rule 32(2) of the Rules. It also asserts, that, the issues that were before the court a quo were resolved on non-constitutional bases. It further disputes the argument, that, it is in the public interest to grant leave to appeal. It is contended that the application does not satisfy the requirements for leave to appeal under Rule 32 of the Constitutional Court Rules.

The sixth and seventh respondents (President of Zimbabwe and the Minister of Justice, Legal and Parliamentary Affairs) also oppose the application through an affidavit deposed to by the seventh respondent.

In essence, it is averred, that, the court a quo did not decide any constitutional matter. Consequently, it is argued that the applicant has failed to show that his application has any prospects of success.

Both respondents pray that the application be dismissed with costs.

Applications for leave to appeal to this Court are governed by Rule 32 of the Constitutional Court Rules. The requirements to be satisfied by an applicant seeking leave to appeal are now firmly established in the jurisprudence of the Court. They are as follows:

(i) The constitutional matter raised in the decision to be appealed against, and any other connected issues, must be clearly and concisely set out.

(ii) The applicant must intend to apply for leave to appeal against the decision of the subordinate court on a constitutional matter.

(iii) The applicant must demonstrate prospects of success on appeal.

(iv) The intended appeal must be in the interests of justice which are a paramount consideration.

See Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC)…,.; Muza M v Saruchera N.O. & Ors CC05-19; Bonnyview Estate (Pvt) Ltd v Zimbabwe Platinum Mine (Pvt) Ltd & Anor CC06-19; Ismail v St. Johns College & Ors CC19-19; TBIC Investments (Pvt) Ltd v Mangenje & Ors CC15-20; Rita Mbatha v National Foods CC06-21; Gift Konjana v Dexter Nduna CC09-21.

I shall address each of the above requirements ad seriatim in their application to the facts and circumstances of the present matter.

The application in casu, at its outset, relates to the requirements of Rule 32(3)(c) of the Constitutional Court Rules and proceeds to set out “the constitutional matters raised in the decision sought to be appealed against.”

These matters tally with the five grounds of appeal delineated in the draft notice of appeal. They are further elaborated in the applicant's founding affidavit.

There can be no doubt, and this appears to be common cause, that the applicant has satisfied and complied with the requirements of Rule 32(3)(c) of the Constitutional Court Rules.

The more difficult question that arises herein is whether or not the decisions of the High Court and the Supreme Court, being the decisions impugned in casu, bear upon any constitutional issue or matter.

Counsel for the applicant answers that question in the affirmative.

He submits, that, the relevant constitutional matters were raised, both in the High Court and before the Supreme Court. In support of his position, he refers to several passages in the applicant's founding affidavit before the High Court and in his heads of argument before both of the subordinate courts.

Counsel for the applicant further submits, that, the fact that the Supreme Court wrote its judgment without reference to these points is irrelevant.

He nevertheless accepts, that, the mere reference to a constitutional point, whether in the pleadings or in the judgment to be appealed against, is not sufficient to satisfy the requisite test.

He is absolutely correct in that respect: see Moyo v Sgt. Chacha & Ors CC19-17; Chani v Mwayera J & Ors CC02-20.

He also contends, much less persuasively so in my view, that a constitutional matter does not cease to be so simply because there is no reference to the Constitution itself.

It is necessary to pinpoint the relevant references adverted to by counsel.

In the founding affidavit in Case No. HC2302-20 at paragraph 12, the applicant avers, that, the President can only act under section 187(3) of the Constitution, if the advice given to him is lawful in compliance with section 3(1)(a) of the Administrative Justice Act. At paragraphs 55 and 56, the applicant asserts that no jurisdictional circumstances exist that would have entitled the Judicial Service Commission (JSC) to refer the matter to the President.

In particular, he avers that the JSC does not appear to have addressed its mind at all to the grounds for removal from judicial office prescribed by section 187(1) of the Constitution. He then argues, that, if the decision to refer the matter to the President was premised on facts incapable of sustaining any of the three grounds for the removal of a judge “such a decision was grossly unreasonable and irrational.”

At paragraph 57, the applicant attacks the decision of the Judicial Service Commission (JSC) to revisit his case on the basis of new allegations without having been availed an opportunity to consider and respond to those allegations. This was in violation of the audi alteram partem rule and “the dictates of natural justice.”

At paragraphs 63, 65 and 66, the applicant avers that the JSC was both inquorate and improperly constituted when it took the decision to refer his matter to the President and the subsequent decision to suspend him.

These decisions were made outside its constitutive instruments, in particular section 189 of the Constitution, and, therefore “liable to be set aside as being unlawful and grossly irregular.”

At paragraph 68, the applicant assails the failure of the Judicial Service Commission (JSC) to place before the High Court a record of its minutes and deliberations, in keeping with its mandate under section 191 of the Constitution to conduct its business in “a just, fair, and transparent manner.”

At paragraph 70, the applicant observes that the office of a judge is sacrosanct; and, at paragraph 77, he affirms the need for the JSC to protect its judges from unmeritorious attacks on their dignity and standing.

He then concludes that the JSC's advice to the President “was contrary to section 3(1)(a) of [the Administrative Justice Act] and thus null and void”. Accordingly “the subsequent acts of [the President are a nullity and must be set aside.”

Turning to the applicant's heads of argument in the High Court, paragraphs 2 to 4 address the point, that, the Judicial Service Commission (JSC) cannot delegate its constitutional duties, in particular, the defence of its conduct under section 187(3) of the Constitution, to its Secretary or Acting Secretary. The same point is addressed at paragraphs 2 to 7 of the applicant's heads of argument before the Supreme Court.

The applicant reiterates the argument that the JSC was not properly before the High Court, as the deponent to its opposing affidavit was prohibited by the Constitution from representing it in an application brought by a judge pursuant to section 187(3) of the Constitution.

At paragraphs 11 to 17, the applicant sets out his attack on the quorum of the Judicial Service Commission (JSC) at the meeting whereat it decided to refer his matter to the President under section 187(3) of the Constitution. Reliance is placed upon section 341(1) and (2) of the Constitution pertaining to the quorum of any constitutional body.

It is argued, that, the decision of the JSC “was unconstitutional, unlawful and null and void” and that, consequently, the onus to prove that it was quorate at the meeting in question shifted to and lay upon the JSC rather than the applicant.

At paragraphs 36 to 43, the applicant canvasses the alleged failure of the High Court to determine the existence or otherwise of the jurisdictional facts under section 187(1) of the Constitution warranting the referral of the applicant's case to the President in terms of section 187(3). It is argued, that, the actions of the JSC, under section 187(3) of the Constitution, are “clearly subject to review” and that “what was before the court a quo was a challenge to the prior administrative action of advising [the President] under section 187(3) of the Constitution.”

It is further argued that the failure of the Judicial Service Commission (JSC) to “indicate the ground under section 187(1) that is being “relied on” rendered “the action under section 187(3) unconstitutional, unlawful and null and void.”

Lastly, it is submitted that “section 187(1) requires [the JSC] to first reach the conclusion that there is a prima facie case…, before acting under section 187(3)” and that “to reach the prima facie verdict, [the JSC] must carry out an adjudicative process and set out reasons for its conclusions…, before invoking section 187(3).”

Counsel for the first respondent submits, that, the application before the High Court was clearly premised on the provisions of the Administrative Justice Act. The court was not seized with any specific constitutional challenge. In essence, so it is argued, the applicant did not file any constitutional matter before the High Court or the Supreme Court.

Consequently, the doctrines of subsidiarity and avoidance come into play. Additionally, leave to appeal is a very limited right, and, in the present case, there is no basis for appealing to this Court.

Counsel for the sixth and seventh respondents adopts the same stance.

He submits, that, the applicant did not directly impugn the conduct of the Judicial Service Commission (JSC) on any constitutional ground. He filed what was essentially an Administrative Law matter and he cannot deviate from that position. Furthermore, the applicant attacks the Supreme Court for not making various findings. This shows that there was no proper basis for that court to adjudge any constitutional matter.

It is further argued, that, references to the Constitution before the High Court and the Supreme Court were purely incidental and not directly relied upon. Such references were only ancillary and in support of section 3 of the Administrative Justice Act. Accordingly, both subordinate courts were correct in not dealing with the case as involving any constitutional matter.

In reply, counsel for the applicant argues, that, where a constitutional issue arises in any litigation, the court may deal with it, and, if it does address that issue, then a constitutional appeal must lie against its decision.

Moreover, a point raising a constitutional issue may be taken at any time.

Co-counsel for the applicant submits, that, when one relates to the Administrative Justice Act then one is seeking to enforce the Constitution itself.

As regards referrals to the President under section 187(3) of the Constitution, the Judicial Service Commission (JSC) must apply its mind to that process and choose to apply the procedures available under the Judicial Code of Ethics as opposed to a referral to the President in terms of section 187(3) of the Constitution.

The application before the High Court, in its heading, declares, categorically and unequivocally, that, it is a court application in terms of section 4 of the Administrative Justice Act.

Again, in paragraphs 5 and 6 of the application, it is asserted that the Judicial Service Commission (JSC), being an administrative authority, failed to act in accordance with section 3(1)(a) of the Administrative Justice Act and that its decision, to refer the matter to the President, was “unlawful, grossly irregular and therefore invalid.”

In similar vein, the founding affidavit in the High Court sets out the nature of the application in paragraph 11 as being made in terms of section 4 of the Administrative Justice Act and on the premise that the JSC did not comply with section 3(1)(a) of the Administrative Justice Act in that it failed “to act lawfully, reasonably, and in a fair manner.”

On the other hand, paragraph 7(5) of the application, relating to the alternative prayer sought, is framed on the basis that Proclamation No.1 of 2020 does not set out the jurisdictional circumstances necessary to found a prima facie case for the dismissal of a judge as envisaged by section 187(3) of the Constitution. This is also mirrored in paragraph 5 of the draft order sought in the High Court.

Additionally, the founding affidavit, in paragraph 56 refers to the failure of the JSC to apply its mind to the grounds for the removal of a judge in terms of section 187(1) of the Constitution.

However, very notably, the conclusion drawn in that regard is that the decision of the Judicial Service Commission (JSC), to refer the matter to the President, was “grossly unreasonable and irrational.”

Turning to the record of proceedings before the High Court, counsel for the applicant, in addressing the propriety of the JSC's opposing affidavit, its allegedly inquorate status, and the absence of jurisdictional circumstances warranting referral of the matter to the President, certainly appears to have relied upon various provisions of the Constitution in order to buttress his arguments.

Nevertheless, it is abundantly clear, that, the judgment of the High Court, and its reasoning in arriving at its conclusions, are not in any way grounded upon any constitutional principle or requirement. On the contrary, the judgment and the reasons therefor are firmly anchored in the relevant provisions of the Administrative Justice Act.

Having regard to the pleadings and proceedings in the High Court, it appears to me, that, the applicant did not raise any specific constitutional issue for determination by that court.

To the extent that he did allude to certain provisions of the Constitution, he did so purely incidentally in order to demonstrate the alleged failure of the Judicial Service Commission (JSC) “to act lawfully, reasonably and in a fair manner” in compliance with section 3(1)(a) of the Administrative Justice Act.

The applicant's cause of action, as expounded throughout the application and his founding affidavit, was essentially predicated on the perceived unlawful, unreasonable, and unprocedural conduct of the JSC, in alleged violation of its duties and obligations as an administrative authority, albeit as a creature of the Constitution.

In section 332 of the Constitution, a constitutional matter is defined as “a matter in which there is an issue involving the interpretation, protection, or enforcement of the Constitution.”

Accordingly, a constitutional matter arises where there is an issue in dispute raising questions of law, the resolution of which requires the interpretation, protection, or enforcement of the Constitution.

In South Africa, it is settled law that a constitutional matter cannot arise for the first time on appeal when it was not available or in existence in the subordinate court. This rule was stated as follows in Prince v President, Cape Law Society & Ors 2001 (2) SA 388 (CC)…,:

“Parties who challenge the constitutionality of a provision in a statute must raise the constitutionality of the provisions sought to be challenged at the time they institute proceedings. In addition, a party must place before the court information relevant to the determination of the constitutionality of the impugned provisions….,.

I would emphasise that all this information must be placed before the court of first instance….,.

It is not sufficient for a party to raise the constitutionality of a statute only in the heads of argument, without laying a proper foundation for such challenge in the papers or in the pleadings.

The other party must be left in no doubt as to the nature of the case it has to meet and the relief that is sought. Nor can parties hope to supplement and make their case on appeal.”…,.

Similarly, the established practice of this Court is that in order to determine whether or not there was a constitutional matter before the court a quo, the dispute must be traced back to the court of origin, in this case, the High Court: see Ismail v St. Johns College & Ors CC19-19…,.

I shall proceed to consider the relevant issues that arose for determination in the High Court.

The first issue relates to the representation of the Judicial Service Commission (JSC) by its Secretary. The court considered this to be justified on the basis of section 10(2) of the Judicial Service Act [Chapter 7:18], which bestows the Secretary with the competence to represent the JSC.

It is trite that a constitutional matter cannot arise where the impugned conduct is predicated on an unchallenged and valid statute: see Magurure & Ors v Cargo Carriers International Hauliers (Pvt) Ltd CC15-16…,.

In casu, the question of the legality of the JSC's representation by its Secretary was determined on the basis of extant statutory provisions, which provisions must be presumed to be constitutional: see Mujuru v President of Zimbabwe & Ors CC08-18.

Thus, no constitutional matter could arise in respect of conduct based on the Judicial Service Act and the High Court Rules, unless the provisions in question were themselves impugned for being unconstitutional.

Accordingly, in respect of the first issue, there was no constitutional issue involved.

The second issue concerns the quorum of the Judicial Service Commission (JSC) at its meeting of 13 December 2019.

Both the High Court and the Supreme Court dismissed the claim that the JSC was inquorate on the basis of the absence of pertinent evidence.

The questions as to the proof that was required to show that the JSC did not have the requisite quorum and the party upon whom the onus to prove the same rested are undoubtedly questions of evidence.

In casu, there was no allegation by the applicant, based on any provision of the Constitution, to the effect that he was not required to prove that the Judicial Service Commission (JSC) was inquorate at the relevant time.

In the absence of any such averment, no constitutional matter could have arisen regarding the party upon whom the onus rested to prove that the JSC was quorate or inquorate.

The third issue revolves around the applicant's contention that section 187(3) of the Constitution enjoined the Judicial Service Commission (JSC) to accord to him “the full scope of the audi alteram partem rule” before transmitting its advice to the President.

Critically, the applicant's founding affidavit does not state that he based his entitlement to the full scope of the rule on section 187(3) or any other provision of the Constitution.

Once again, in the absence of any such statement, the constitutional basis of the audi alteram partem rule could not have arisen as an issue for determination before the High Court. Rather, the issue seems to have been raised by way of inference from the Administrative Justice Act and the common law.

Thus, it cannot be said that there was a constitutional issue in this regard.

The fourth issue pertains to the question whether or not the Judicial Service Commission (JSC) was required to determine the existence or otherwise of jurisdictional grounds under section 187(1) of the Constitution before forwarding its advice to the President.

Here, too, although the applicant averred that any one of the three jurisdictional facts in section 187(1) of the Constitution had to be established before the question of his removal was referred to the President, he did not base such requirement on the Constitution.

Instead, he took the position, that, the advice given by the Judicial Service Commission (JSC) “should have been reasonable and grounded in logic.”

He added that the JSC never informed him of the accusation against him that warranted a referral of his matter to the President. He therefore concluded that the decision of the JSC “was grossly unreasonable and irrational.”

It is evident that the applicant did not specifically regard the source of the requirement to establish the jurisdictional facts as being section 187(1) or section 187(3) or any other provision of the Constitution.

In as much as his application was premised on the Administrative Justice Act, it is plausible to assume that he considered that Act to be the legal basis of the supposed requirement to establish jurisdictional facts.

Accordingly, no constitutional matter could have arisen in the absence of a properly pleaded basis that the requirement to establish the requisite jurisdictional facts arose from the Constitution.

Having regard to all of the foregoing, I am constrained to conclude that there was no clearly defined constitutional matter before the High Court, and, consequently, on appeal from that court to the Supreme Court. This is so because the applicant's pleadings in the High Court are entirely unsupportive of the constitutional matters that he alleges to have been before the court.

To put it differently, no constitutional matter could have arisen in that court in the absence of pleadings grounding the determination of the alleged constitutional issues.

It therefore follows that the jurisdiction of this Court cannot be activated as section 167(1)(b) of the Constitution stipulates that the Constitutional Court only decides constitutional matters.

As was held in Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC)…,:

“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 a matter it was never called upon to decide for the purposes of resolution of the dispute between the parties.”…,.

This Court has recently reinforced the position that the right of appeal to the Court is a limited right, strictly confined to an appeal against the decision of a subordinate court on a constitutional matter only: see Rita Mbatha v National Foods CC06-21 …,.

Turning to the proceedings in the Supreme Court, the grounds of appeal before that court are tendentiously framed in a manner importing the supposed application of section 187 of the Constitution.

The oblique references to that provision appear to have been inserted to cloak and circumvent the absence of any constitutional determination in the judgment of the High Court.

Be that as it may, the Supreme Court dismissed all the grounds of appeal in their entirety without venturing into the constitutional domain. The court a quo predicated its findings and decision exclusively on the relevant statutory provisions and the applicable principles of the common law. It did not traverse or determine any constitutional question.

In my view, the Supreme Court quite correctly proceeded on that basis given that the impugned decision of the High Court was devoid of any constitutional issue or determination. In short, neither of the subordinate courts can be impeached for any alleged constitutional aberration in its reasoning or judgment....,.

The applicant has not sought costs in this matter. However, the Judicial Service Commission (JSC), in its heads of argument, has motivated the Court to grant costs on a legal practitioner and client scale.

Similarly, the sixth and seventh respondents, through their heads of argument and submissions in court, have also sought costs, albeit on the ordinary scale.

The respondents claims for costs are premised on the argument that the application is devoid of merit.

The respondents appear to have disregarded Rule 55 of the Constitutional Court Rules which, in keeping with the established practice of this Court, provides that, generally, no costs are awarded in constitutional matters. This practice was recently re-affirmed in Mbatha v Confederation of Zimbabwe Industries & Anor CC05-21…,.

In my view, there is no basis or justification in this case to depart from the norm of not awarding costs in a constitutional matter.

I have concluded, that, no constitutional matter was properly raised before the High Court or the Supreme Court and that neither court determined any constitutional question. It follows, that, the application for leave to appeal in casu is not one for leave to appeal against any decision of a subordinate court on a constitutional matter.

That being the case, inasmuch as there is no constitutional issue to be determined in the intended appeal, it becomes unnecessary to consider the applicant's prospects of success on appeal....,.

In the result, it is ordered that the application be and is hereby dismissed with no order as to costs.

This is a chamber application brought on a certificate of urgency. The provisional order the applicant seeks was couched as follows:

“FINAL ORDER

1. That, the conduct of the 1st, 2nd and 3rd respondents consisting of ordering X, a minor enrolled as an Upper Six student at the 1st Respondent, to shave his beard as a pre-condition to the continuation of his studies at the 1st Respondent, be and is hereby declared null and void and of no force or effect as an infringement of his right to freedom of religion protected by section 60 of the constitution of Zimbabwe.

2. That, the conduct of the 1st, 2nd and 3rd respondents consisting of ordering X, a minor enrolled as an Upper Six student at the 1st respondent, to shave his beard as a pre-condition to the continuation of his studies at the 1st respondent, be and is hereby declared null and void and of no force or effect as an infringement of his right not to be discriminated against on account of religion, such right being protected by section 56 of the Constitution of Zimbabwe.

3. That, the minor, X, be and is hereby allowed to remain a student of the 1st respondent while at the same time keeping his beard in accordance with the Islamic religion.

4. The respondents who oppose this order shall pay the costs of this application on a legal practitioner and client scale.

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

It is ordered that:

1. That, the 1st, 2nd, and 3rd respondents be and are hereby interdicted from barring X from entering the premises of the 1st respondent for purposes of continuing with his Upper Sixth Form studies notwithstanding the fact that the aforesaid Yusuf Ismail is not shaving his beard.

2. That, the 1st, 2nd and 3rd respondents be and are hereby interdicted from insisting, directly or indirectly, that X shaves his beard as a pre-condition to him continuing with his Upper Sixth Form studies at the 1st respondent.

3. That, the respondents who oppose this order shall pay the costs of this application on a legal practitioner and client scale.”

The basic facts leading to this application were that:

The applicant enrolled his son, X (hereinafter referred to as the minor), at St Johns College in 2013. At the time of enrolment, the applicant signed a contractual document 'Acceptance of Entry' in which were stated the conditions for the acceptance of the minor at St. Johns College. Amongst the terms and conditions that the applicant unequivocally accepted were clauses 2 and 3 which stated that:

“2. That, the student will be bound by all rules and requirements as laid down by the college from time to time in both academic and extra-curricular activities.

3. That, in particular, the student will be bound by the St. Johns College Code of Conduct as amended from time to time.”

The Code of Conduct stipulated the conduct that was expected from all the students without discrimination.

The particular aspect that led to this case pertains to the requirement that all students be cleanly shaven.

At the time of enrolling at the college, the minor had not yet developed a beard. However, towards the end of 2018, he developed a beard.

It is common cause, as between the parties, that, in terms of the Code of Conduct, the minor was expected to shave the beard.

In recognition of this regulation, and as the minor had already been advised to be cleanly shaven in terms of the regulation if he was to continue at the school, on the 1st of October 2018 the applicant wrote a letter to first respondent requesting that the minor be allowed to grow his beard. That letter stated, inter alia, that:

“This letter serves as a humble request to allow my son, X (L6S), to keep his beard. It is imperative that he does not shave his beard for religious purposes. X leads congregational prayers at the mosque, and, it is not permissible for those who lead the prayer to remove their beards.”

After acknowledging the valuable role played by the Regulations, in moulding boys into responsible men, the applicant proceeded to say:

“Allowing Yusuf to keep his beard will permit him to practice his faith without it interrupting his education.”

On the 3rd of October, the first respondent responded to the request with a clear NO in, inter alia, these words:

“Please note, that, we no longer grant exemptions to these requests under any circumstances, and, hence, your appeal for X to keep facial hair on religious grounds is denied. He has to shave and follow our regulations to the letter as outlined in the code of conduct.”

Despite what should have been a clear response, on the 28th of December 2018, the applicant, through his legal practitioner, wrote to the first respondent inquiring if the first respondent would carry out what he termed its threat to bar the minor from attending school if he did not shave his beard.

That letter did not yield a positive response as the first respondent indicated it was yet to refer the applicant's letter to its legal practitioners for a response as the college had been closed as from 14 December and had just opened and so was yet to consult its legal practitioners.

As the 2019 first school term drew closer, the applicant paid school fees for the minor but the school would not allow the minor to attend school without complying with the requirement to be cleanly shaven.

As a consequence, the applicant launched this application.

It is pertinent to note, that, the fact that the applicant and the minor are Muslims is common cause. In this application, the applicant emphasised the fact, that, there is a family tradition in their family to be an Imam. In this regard, the minor is studying to be an Imam hence he is now leading a congregation in prayers. It is in that respect that he said the minor has to strictly adhere to the Islamic requirement for male persons not to shave the beard. The applicant alleged, that, by refusing to allow the minor to attend school without shaving, the school is effectively asking the minor to abandon his religion.

He also alluded to the infringement of the minor's freedom to religion, protected by section 60 of the Constitution, by ordering him to shave his beard before he can be allowed into the school premises.

Other sections he said were infringed include sections 56 and 75 of the Constitution.

The first to third respondents opposed the application....,.

As regards the merits of the application, the respondents contended, that, they were not infringing on the minor's rights. Whilst it was common case that the applicant and the minor are Muslims, it was the applicant who accepted that the minor will comply with the school regulations as stipulated in the Code of Conduct.

As far as the respondents are concerned, they were simply enforcing what the parties had agreed to.

The respondents denied that the minor has been discriminated against on religious ground or at all. All the respondents wanted is for the minor to adhere to school regulations which the applicant had agreed to.

For easy of reference, the sections relied upon in this application state as follows:

“56 Equality and Non-discrimination

(1) All persons are equal before the law and have the right to equal protection and benefit of the law.

(2)…,.

(3) Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their nationality, race, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability or economic or social status, or whether they were born in or out of wedlock.

(4) A person is treated in a discriminatory manner for the purpose of subsection (3) if —

(a) They are subjected, directly or indirectly, to a condition, restriction or disability to which other people are not subjected; or

(b) Other people are accorded, directly or indirectly, a privilege or advantage which they are not accorded.

(5) Discrimination on any of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair, reasonable, and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom.

(6)…,.”

“60 Freedom of Conscience

(1) Every person has the right to freedom of conscience, which includes —

(a) Freedom of thought, opinion, religion or belief; and

(b) Freedom to practise and propagate and give expression to their thought, opinion, religion or belief, whether in public or in private and whether alone or together with others.

(2) No person may be compelled to take an oath that is contrary to their religion or belief or to take an oath in a manner that is contrary to their religion or belief.

(3) Parents and guardians of minor children have the right to determine, in accordance with their beliefs, the moral and religious upbringing of their children, provided they do not prejudice the rights to which their children are entitled under this Constitution, including their rights to education, health, safety and welfare.

(4) Any religious community may establish institutions where religious instruction may be given, even if the institution receives a subsidy or other financial assistance from the State.”

“75 Right to Education

(1) Every citizen and permanent resident of Zimbabwe has a right to —

(a) A basic State-funded education, including adult basic education; and

(b) Further education, which the State, through reasonable legislative and other measures, must make progressively available and accessible.

(2) Every person has the right to establish and maintain, at their own expense, independent educational institutions of reasonable standards, provided they do not discriminate on any ground prohibited by this Constitution.

(3) A law may provide for the registration of educational institutions referred to in subsection (2) and for the closing of any such institutions that do not meet reasonable standards prescribed for registration.

(4) The State must take reasonable legislative and other measures, within the limits of the resources available to it, to achieve the progressive realisation of the right set out in subsection (1).”

Another section of importance in this regard is section 86 of the Constitution which permits the limitation of fundamental rights in these terms:

“(1) The fundamental rights and freedoms set out in this Chapter must be exercised reasonably and with due regard for the rights and freedoms of other persons.

(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including —

(a) The nature of the right or freedom concerned;

(b) The purpose of the limitation, in particular, whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;

(c) The nature and extent of the limitation;

(d) The need to ensure that the enjoyment of rights and freedoms by any person does not prejudice the rights and freedoms of others;

(e) The relationship between the limitation and its purpose, in particular, whether it imposes greater restrictions on the right or freedom concerned than are necessary to achieve its purpose; and

(f) Whether there are any less restrictive means of achieving the purpose of the limitation.

(3) No law may limit the following rights enshrined in this Chapter, and no person may violate them —

(a) The right to life, except to the extent specified in section 48;

(b) The right to human dignity;

(c) The right not to be tortured or subjected to cruel, inhuman or degrading treatment or punishment;

(d) The right not to be placed in slavery or servitude;

(e) The right to a fair trial;

(f) The right to obtain an order of habeas corpus as provided in section 50(7)(a).”…,.

It is apparent that none of the rights that the applicant alleged would be infringed by the conduct of the respondents falls into the category of inviolable rights enumerated in subsection (3) of section 86 of the Constitution.

Accordingly, in the event that the applicant establishes that the conduct would violate any of the rights, it will be necessary to measure such prima facie violation as against the rights and freedoms of others, in terms of subsection (1), and within the context of the permissible derogations contemplated in subsection (2).

Counsel for both parties referred to the case of Makani & Others v Arundel School & Others 2016 (2) ZLR 157 (S) wherein the above rights were extensively discussed.

In that case, the applicants sought several declarations and consequential relief in respect of alleged violations of their children's constitutional rights.

The applicants had enrolled their children at Arundel School. In enrolling them they agreed that the children will abide by the school's Regulations. The school, being an Anglican school, had its requirements for inculcating value systems in the children. The Regulations were amended making it compulsory for all students to attend chapel prayers in order to reinforce collegiality.

The applicants and their children were practicing Jehovah's Witnesses. Their beliefs are not similar with other Christian denominations.

Upon application to the school for the admission of their children, each of the applicants completed a standard application form in which they indicated that they were Jehovah's Witnesses.

When compulsory chapel attendance was introduced and the children were being compelled to attend against their beliefs, the applicants wrote several letters to the school expressing their complaints. When the school insisted on the children attending Chapel, the applicants approached this court seeking an order for the children to continue attending school without being compelled to attend Chapel pending the determination of their application at the Constitutional Court.

The court considered issues that are also relevant in this matter.

In dealing with the right to education, as enunciated in section 75 of the Constitution, the court alluded to the fact that subsections (1) and (4) thereof pertain to right to education funded and availed by the State. As regards private schools, at page 165H-166B, the court aptly stated that:

“Subsections (2) and (3) of section 75 deal separately with private or independent educational institutions. They permit the establishment of such institutions, subject to such State supervision and control as may be necessary to ensure that they meet prescribed reasonable standards.

The right to establish and maintain an independent institution, guaranteed by subsection (2), must be construed not only in the physical and structural sense but to include as well the establishment and maintenance of educational and ethical standards.

Conversely, the provision does not envisage any right to flout the rules and regulations designed by the institution to safeguard its educational and ethical standards. The only qualification to the rights of an independent institution is that it must not discriminate on any ground prohibited by the Constitution….,.”

What this entails is that a private school is entitled to lay down rules and regulations for the admission of pupils espousing its objectives and ethos as long as those Regulations do not discriminate on any of the grounds prohibited in the Constitution.

In casu, the first respondent is a private/independent educational institution.

In opening its doors to learners, it set its objectives and ethos as stated in its Regulations, including the Code of Conduct. Thus, any learner seeking admission was made aware of the institution's Regulations and had to agree to abide by those Regulations as a pre-condition for admission.

The Code of Conduct was designed to espouse the institution's objectives and ethos thus giving it a unique identity. The Code of Conduct applied to all the learners alike and did not discriminate on any ground. The school, in effect, expected every pupil to maintain the 'St. Johns College' educational and ethical standards as espoused in the Code of Conduct.

Ex- facie, the Code of Conduct does not contravene section 56 of the Constitution as it requires all pupils to abide by the same Regulations in equal measure.

In dealing with a similar provision that required all pupils to attend chapel, PATEL JCC, in Makani & Others v Arundel School & Others 2016 (2) ZLR 157 (S)…, stated that:

“Given that this contractually agreed stipulation is intended to apply to all pupils without distinction, I do not think that it is necessarily discriminatory on the grounds of religion. Every parent who agrees to this condition does so willingly and actively chooses to abide by it implications. Thus, as I have stated earlier, in relation to the right to education, it cannot be said that this mutually agreed condition per se amounts to discriminatory treatment at the point of admission to the school.”

As noted in section 56(4) of the Constitution, what constitutes discrimination would be differentiation in treatment of the pupils.

In casu, the requirement to be cleanly shaven applied to all the pupils and the respondents enforcement of this Regulation was the same in respect of all the pupils.

In their opposition to this application, the respondents have insisted that the applicant's child be treated the same as other pupils. Any differentiation in treatment would bring disharmony within the body of students and would in fact amount to discrimination.

There was thus no discrimination in the way the respondents applied the Code of Conduct or as proscribed by the Constitution.

The other ground argued by the applicant's counsel was that the requirement for the minor to shave infringes on the minor's religious beliefs which is contrary to section 60 of the Constitution on freedom of conscience.

Whilst indeed the insistence on shaving is not in keeping with the minor's religious belief, such a condition was known to the applicant as he signed the contract for the minor's admission to the school.

It is the applicant who, in signing that contract without any reservations, compromised that minor's religious beliefs in order to gain from the educational and ethical standard enjoyed at the first respondent.

The minor can still exercise his freedom of conscience without hindrance as long as he abides by the contractual obligations the applicant accepted in enrolling him at the first respondent.

It is for the applicant and the minor to conform to their contractual obligations and not for the first respondent to be forced to conform to the applicant's beliefs now that the minor is studying to be an Imam.

The applicant must respect the first respondent's rights and interests as an independent institution.

Further, as was held in Makani & Others v Arundel School & Others 2016 (2) ZLR 157 (S)…,:

“The freedom of religion is not inviolable and may be limited in order to respect the rights and freedoms of other persons within the contemplation of section 86(1) of the Constitution of Zimbabwe 2013…,.”

The limitation may be where a person has voluntarily renounced their religious beliefs or if it is reasonable and justifiable in a democratic society.

Freedom of religion must also be exercised reasonably and with regard to the rights of others. As aptly noted by PATEL JCC in Makani & Others v Arundel School & Others 2016 (2) ZLR 157 (S)…,:

“The provision that I deem most apposite to the resolution of this matter, and which I now turn to consider, is section 86(1) of the Constitution. It declares that 'fundamental rights and freedoms…, must be exercised reasonably and with due regard for the rights and freedoms of other persons.'

The analysis of conflicting rights postulated by section 86(1) calls for an essentially unitary approach.

The question whether a given right is being exercised reasonably is inextricably intertwined with the question whether it is being exercised with due regard for the rights and freedoms of others. What is required is the balancing of actually or potentially antagonistic rights, having regard to the nature of those rights, the manner in and the extent to which they impinge upon one another, and the circumstances in which they have been or are to be exercised.”

In casu, on admission of the minor, the applicant agreed to abide by the Regulations of the school - including the Code of Conduct.

The first respondent, as party to that contract, expected the applicant to comply.

The school, as a private educational institution, has a right to the observance of its institutional objectives and ethos. As long as those objectives and ethos do not discriminate on any ground stated in the Constitution, the first respondent is justified in insisting on the observance of its Regulations.

The principle of mutual respect and tolerance requires that the applicant accommodate the institutional rights and interests of the school in pursuing its perceived objectives, so long as those objectives are not pursued unreasonably, and, equally importantly, so long as they do not radically undermine the religious beliefs and convictions of any of its pupils.

To expect the school to forego its objectives and ethos to accommodate those of its pupils would lead to some form of loss of identity as espoused from the institutions objectives and ethos.

One can imagine a situation where pupils with varying antagonistic or conflicting religious beliefs each wanting to practice their beliefs at the expense of the institutional objectives and ethos. This would make a mockery of the contract the parents of the pupils would have entered to abide by the school Regulations in order to maintain the private school's objectives and ethos.

I am of the view, that, as long as those Regulations do not contravene Constitutional provisions, parties must respect the sanctity of their contract.

Whilst being cognisant of the importance of education and the fact that the minor in question is supposed to enrol for his sixth form, it is my view, that, the predicament he finds himself in could have been avoided by seeking a school whose Regulations permitted or had no issue with the growing of facial hair.

In light of the above, the issue of the nature of relief sought would not make any difference.

Even if the application had been for a declaration against the provisions in the Code of Conduct, that would not have succeeded as I am of the view, that, it is for the pupil to conform to school Regulations and not school Regulations to conform to individual pupils beliefs and standards no matter how dearly one holds to such beliefs.

The respondent asked for costs on the higher scale.

The issue for determination involved the rights of a minor. It is the minor who has been excluded from school because he has grown a beard which he wishes to grow as he is studying towards being an Imam.

I do not perceive any mala fide to warrant costs on a higher scale.

The school had, on past occasions, granted some pupils exemption, so, the applicant may have thought it reasonable to insist on such as well. In any case, as the case involved a minor child's rights even an award of costs may not be justified.

The need to pronounce on the minor's rights in this regard was necessary and this should act as a guide to parents and guardians alike to enrol children at institutions that accord with their religious beliefs. Where this is not feasible, then, obtain written exemption from certain rules or regulations at the time of enrolment as part of the contract.

Accordingly, the application be and is hereby dismissed with no order as to costs.

This is an application for review of the Judicial Service Commission's decision to advise the President that the question of removing the applicant from the office of a judge ought to be investigated.

The applicant is a judge of the Supreme Court and the Constitutional Court of the Republic of Zimbabwe.

The first respondent, the Judicial Service Commission (JSC) is a corporate body established in terms of section 189 of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

The second, third and fourth respondents are the members of the tribunal appointed by the President to enquire into the question of the removal of the Judge from office.

The fifth respondent is the Permanent Secretary of the Ministry of Justice Legal and Parliamentary Affairs, the Co-ordinator of the Special Anti-Corruption Unit in the Office of the President as well as the Secretary of the Tribunal.

The sixth, seventh and eighth respondents are the President of the Republic of Zimbabwe (the President), the Minister of Justice, Legal and Parliamentary Affairs (the Minister) and the Attorney General of Zimbabwe (the AG) respectively.

As an administrative authority, the Judicial Service Commission (JSC) has a responsibility to take administrative action which may affect the rights, interests or legitimate expectations of any person. In so doing, section 3(1)(a) of the Administrative Justice Act [Chapter 10:23] (AJA) enjoins the JSC to act lawfully, reasonably, and in a fair manner.

On 13 December 2019, the Judicial Service Commission (JSC) held an extraordinary meeting. It resolved at that meeting to advise the President that the question of removing the applicant from the office of a judge ought to be investigated. The JSC addressed a letter to the President tendering the advice.

As his obligation, in terms of section 187(3) of the Constitution, the President appointed a 3 member Tribunal to enquire into the matter. As already indicated, the members are the second to fourth respondents, with the fifth respondent as its Secretary.

In the Zimbabwean Government Gazette Extraordinary dated 17 March 2020, the President made Proclamation 1 of 2020 which was published as Statutory Instrument 70 of 2020, SI70 of 2020 wherein, among other things, he established the Tribunal, appointed its members, Secretary, and set out the Tribunal's terms of reference.

The applicant is aggrieved by the Judicial Service Commission's decision to advise the President that the question of removing the former from the office of a judge ought to be investigated.

Acting in terms of section 4(1) of the Administrative Justice Act, the applicant has applied to this court, on review, to set aside the Judicial Service Commission's decision on the basis that it failed to act lawfully, reasonably, and fairly in coming up with the decision to advise the President. In other words, the applicant takes issue with the procedure adopted by the Judicial Service Commission (JSC) in coming up with that decision.

He also seeks certain consequential relief.

I pause to set out the Tribunal's terms of reference. They are:

“(i) To investigate into the matter of the removal from office of Honourable Justice Francis Bere JA;

(ii) To investigate into the matter of Honourable Justice Bere's conduct, whether it can be deemed to have been tantamount to gross misconduct;

(iii) To investigate whether the Honourable Judge conducted himself or presided over matters where there was conflict of interest;

(iv) To investigate any other matter which the Tribunal may deem appropriate and relevant to the enquiry;

(v) To consider all information submitted by the Judicial Service Commission and any other relevant information in order to arrive at an appropriate recommendation to the President;

(vi) To recommend to the President whether or not the Honourable Judge should be removed from office in terms of section 187 of the Constitution; and

(vii) To report to the President, in writing, the result of the inquiry within a period of five (5) months from the date of swearing in of the members.”

The grounds on which the application for review is based are:

“1. The absence of any of the three jurisdictional grounds for the removal of Judge prescribed under section 187(1) of the Constitution and the incontrovertible facts and circumstances upon which this would be founded;

2. The absence of specificity and lack of particularity of the exact nature of the conduct, the identity of a complainant, and the prejudice or quid pro quo to confirm the nature and gravity of the case;

3. An objection to the appointment of the Permanent Secretary, as secretary of the Tribunal, on the grounds and basis that she was an actor in the process leading to the applicant's suspension and the establishment of the Tribunal, something which gives credence to the applicant's contention that the decision to refer his matter to the President was completely unreasonable;

4. There is no prima facie material that has been alluded to in the Proclamation that would form the basis for a referral of a matter involving a senior Judge;

5. Gross irregularity in that the JSC, having procedurally decided to take a second bite at the cherry, failed to afford applicant the right to be heard in relation to the subsequent reply from Mr Ndudzo, at or before its purported meeting of 13 December 2019 in violation of the audi alteram partem rule;

6. The JSC, having reached a decision on the subject matter from the same basis and circumstances on 21 November 2019, and having communicated this to the applicant, could not revisit the matter subsequently as it had become functus officio;

7. The JSC lacked a quorum to sit on 13 December 2019 and to reverse its earlier decision;

8. To the extent that the allegations are understood and based on the documents attached to the founding affidavit, the allegations made are petty and do not meet the elevated criteria of gross misconduct or gross incompetency.”

For the purposes of this application, the issue of the investigation on the question of the removal of the applicant from the office of a Judge arose from a phone call made to Mr Ndudzo, who is a legal practitioner, as well as a complaint raised against him by Mr Moxon. The latter related to the applicant presiding over a matter between Meikles Limited and Widefree Investments (Pty) Ltd trading as Core Solutions.

Since I am required to determine this application on procedural grounds, it is not necessary for me to delve into the substance and details of the phone call and Mr Moxon's complaint.

All the respondents opposed the application....,.

It was at this meeting of the Judicial Service Commission (JSC) that the decision was taken to advise the President that the question of the removal of the applicant from the office of a judge ought to be investigated.

The parties are agreed that the membership of the Judicial Service Commission (JSC) is 13, but, there was a single vacancy at the material time. The parties are agreed that the Constitution allows the JSC to function all the same provided it has a quorum. Its quorum is 7, being half of the membership of the JSC.

The applicant made a bare allegation that only 6 members were present at the 13 December 2019 meeting.

He does not mention the names of the members who were present and of those who were not in attendance. He does not attach any supporting affidavits from either those present or those whom he alleges were absent. He does not attach a copy of the minutes of the meeting of 13 December 2019.

It is trite that an application stands or falls on the averments made in the founding affidavit: see Muchini v Elizabeth Mary Adams & Others 2013 (1) ZLR 67 (S).

It also is trite that he who alleges must prove: see ZUPCO v Parkhorse Services (Pvt) Ltd SC13-17; Circle Tracking v Mahachi SC04-17.

Counsel for the applicant conceded, that, all that the applicant has done is to allege that there was no quorum.

He argues, that, on the basis of the importance of the matter that bare allegation must shift the onus to the Judicial Service Commission (JSC) to prove that there was a quorum.

It is clear that the applicant relies on rumours for his allegation that there was no quorum.

Matters are decided on the law, facts, and the evidence - and not rumours.

The Judicial Service Commission (JSC) says there was a quorum. It is not the applicant. It suffices that it challenges the applicant to prove its allegation. The JSC has no obligation to assist the applicant to prove the latter's allegation.

I find that the applicant has failed to substantiate its allegation that there was no quorum at the meeting of 13 December 2019.

The applicant claims that the Judicial Service Commission (JSC) held an ordinary meeting on 21 November 2019 where all the Commissioners concluded that there was nothing untoward about his conduct.

He alleges that he received a phone call from the Deputy Acting Secretary of the Judicial Service Commission (JSC), Mr Stembinkosi Msipa, breaking the good news.

This is denied by the Judicial Service Commission (JSC) which avers that no such meeting was held and therefore that the decision alleged was never made.

The applicant neither produced the minutes of the alleged meeting of 21 November 2019 nor filed a supporting affidavit by the Deputy Acting Secretary.

I find that this allegation, too, was not substantiated. There was therefore nothing for the Judicial Service Commission (JSC) to reverse on 13 December 2019.

The applicant accepts that he received, through the Judicial Service Commission (JSC), correspondence from Mr Moxon, Mr Ndudzo, and the Permanent Secretary. He admits that he responded to these letters.

I agree that his responses are detailed. His last response, of 20 August 2019, relating to Mr Ndudzo's letter, runs into 5 pages.

Thereafter, the Judicial Service Commission (JSC) asked Mr Ndudzo to comment on the applicant's reply.

The alleged non-observance of the right to be heard relates to his not being given yet another opportunity to comment on Mr Ndudzo's comment before the Judicial Service Commission (JSC) met on 13 December 2019.

My view is that Mr Ndudzo's comment, post 20 August 2019, was not another stage in the preliminary investigation by the Judicial Service Commission (JSC) but a step within that stage. It seems to me, that, the exchange of correspondence, through the JSC, could not continue ad infinitum. It had to end somewhere to pave way for the JSC to make a decision.

Despite complaining that the contents of Mr Ndudzo's last letter were so material that he ought to have been given an opportunity to respond thereto, the applicant says, in the same breath, that, whatever was referred to the President, based on the Ndudzo matter, was petty.

I therefore find that there was no breach of the audi alteram partem rule because the applicant is effectively saying Mr Ndudzo's last letter to the Judicial Service Commission (JSC) changed nothing.

With reference to the Moxon complaint, the applicant accepted that the matter had not been concluded by the advice to the Chief Justice from the Judicial Ethics Advisory Committee and the Chief Justice's correspondence to Mr Moxon and the applicant communicating that advice.

I say so because the applicant wrote to the Chief Justice stating, that, the former could not stand in Mr Moxon's way should Mr Moxon want to pursue the matter further. Indeed, Mr Moxon did so and the matter ended up before the Judicial Service Commission (JSC) at its meeting of 13 December 2019 where a decision was taken to advise the President.

An exhaustive analysis of this ground is tantamount to this court substituting its views for the prima facie views of the Judicial Service Commission (JSC) already acted upon on 13 December 2019.

I do not think that it is proper for this court to do so.

I observe only, that, on the face of it, the correspondence put before me reveals that the Judicial Service Commission (JSC) must have concluded that the applicant's conduct needed to be investigated by a tribunal. I am not sitting as an Appeal Court to determine the correctness of the JSC's decision but on review to decide whether any of the jurisdictional grounds for removal of a Judge from office is disclosed on the papers put before me and on which the decision to advise the President was made.

Section 187(1)(c) of the Constitution provides that gross misconduct is one such jurisdictional ground.

Whether there was gross misconduct is not for me to determine. The Tribunal's terms of reference cover that aspect.

By the same token, this court cannot make pronouncements on the merits or otherwise of an investigation which the tribunal is constitutionally empowered to do. The court is not the Tribunal.

I do not think it necessary for the applicant to effectively be a judge in his own cause by submitting, before this court, that the basis upon which the Judicial Service Commission (JSC) advised the President was petty.

That goes to the substance of that which the tribunal is to investigate, make findings, and recommend on.

I have already found that it would be remiss of me to rule on the correctness of the Judicial Service Commission's decision to advise the President.

Given the importance of this matter, I may have hesitated to award costs against the applicant had he not instituted this application, but, instead, prosecuted the urgent chamber application which was removed from the roll, as a court application. The applicant has caused the first respondent to incur unnecessary costs by duplicating proceedings.

In the circumstances, I have no reason to depart from the general rule that success carries costs.

In the result, the following order shall issue:

1. The application be and is dismissed.

2. The applicant shall pay the first respondent's costs.

This is an appeal against the whole judgment of the High Court (court a quo). The suspension from office of the appellant led to a flurry of court applications in the court a quo. This is just one of them in which the court a quo dismissed the appellant's application.

The application was made in terms of section 4 of the Administrative Justice Act [Chapter 10:28] ('the Act') on the basis that the respondents had failed to comply with the provisions of section 3(1)(a) of the Administration Justice Act.

The appellant is a former judge of the Supreme Court of Zimbabwe having been dismissed from office by the sixth respondent (the President of Zimbabwe).

The first respondent (Judicial Service Commission) is a body corporate established in terms of section 189 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 ('the Constitution').

The second respondent (Simbi Mubako) (being the Chairperson), third and fourth respondents (Rekayi Maphosa and Takawira Nzombe) (being members), constituted a Tribunal appointed by the President of the Republic of Zimbabwe in terms of section 187(3) of the Constitution. The Tribunal was set up to inquire into the removal of the appellant from the office of a judge.

The fifth respondent (Virginia Mabhiza) was the Secretary of the Tribunal and is the Permanent Secretary of the Ministry of Justice, Legal and Parliamentary Affairs. She is also the coordinator of the Special Anti-Corruption Unit in the Office of the President.

The sixth respondent is the President of Zimbabwe (the President) and the seventh respondent is the Minister of Justice, Legal and Parliamentary Affairs.

The Tribunal has since completed its mandate and is no longer in existence.

On 17 March 2020, the President, acting in terms of section 187(4) of the Constitution of Zimbabwe 2013 issued, in a Zimbabwean Government Gazette Extraordinary Proclamation 1 of 2020 Statutory Instrument 70 of 2020, in which, amongst other things, he established a Tribunal to investigate the question of removing the appellant from the office of a judge. The Tribunal's terms of reference were set out as follows:

“(i) To investigate into the matter of the removal from office of Honourable Justice Francis Bere JA;

(ii) To investigate into the matter of Honourable Justice Bere's conduct, whether it can be deemed to have been tantamount to gross misconduct;

(iii) To investigate whether the Honourable Judge conducted himself or presided over matters where there was conflict of interest;

(iv) To investigate any other matter which the Tribunal may deem appropriate and relevant to the enquiry;

(v) To consider all information submitted by the Judicial Service Commission and any other relevant information in order to arrive at an appropriate recommendation to the President;

(vi) To recommend to the President whether or not the Honourable Judge should be removed from office in terms of section 187 of the Constitution; and

(vii) To report to the President, in writing, the result of the inquiry within a period of five (5) months from the date of swearing in of the members.”

On 13 May 2020, following the publication of Proclamation 1 of 2020, SI70 of 2020 the appellant made an application in terms of section 4 of the Administrative Justice Act (the Act) before the court a quo.

The application was made on the allegation, that, the first respondent failed to comply with section 3(1)(a) of the Administrative Justice Act in that it failed to “act lawfully, reasonably, and in a fair manner” in advising the President to set up a Tribunal to investigate the appellant.

In making the application, it was the appellant's complaint, that, by letter dated 3 March 2020, he was suspended from the office of a judge pending the determination of the question of his removal from office by a three member Tribunal appointed by the President.

The appellant further averred, that, the suspension was preceded by a letter addressed to him by the Acting Secretary of the first respondent dated 28 February 2020. In the letter, the appellant was informed, that, at a meeting held on 13 December 2019, the first respondent had resolved to advise the President to consider the appointment of a tribunal to conduct and further investigate him for alleged misconduct.

The appellant raised five grounds, asserting that the first respondent failed to comply with section 3(1)(a) of the Administrative Justice Act:

(i) Firstly, it was his averment that the first respondent had no jurisdictional grounds for referring the matter to the President.

(ii) Secondly, the appellant averred that there was gross irregularity in the referral by the first respondent as it failed to accord him the right to be heard.

(iii) Thirdly, he asserted, that, at the time the first respondent made its decision to refer the matter to the President it had become functus officio as it had previously made a determination on the matter exonerating him of any wrongdoing.

(iv) Fourthly, that the first respondent, in making its decision, was not properly constituted as it lacked a proper quorum.

(v) Finally, that the fifth respondent was biased as she was the person who referred the complaint which was made by Mr Moxon (Moxon) to the first respondent. It was thus argued, that, as a secretary to the Tribunal, she was a judge in her own cause.

The second, third, fourth and seventh respondents (Simbi Mubako, Rekayi Maphosa, Takawira Nzombe and Minister of Justice, Legal and Parliamentary Affairs) submitted that they had no interest in the outcome of the application and would abide by the court's decision.

The President maintained that he was simply fulfilling his constitutional obligation when he appointed the Tribunal upon the recommendation of the first respondent.

The fifth respondent (Virginia Mabhiza) submitted that she was acting in her official capacity as a Permanent Secretary, Co-ordinator of the Special Anti-Corruption Unit in the office of the President and as Secretary of the Tribunal set up by the President. She stated that she received correspondence from Moxon wherein he complained about the manner in which the appellant had handled his case which was before him. She thereafter referred the complaint against the appellant to the first respondent.

She further stated, that, before receiving the complaint from Moxon, she had been made aware of allegations of improper conduct against the appellant by Mr Ndudzo, a legal practitioner from Mutamangira and Associates, and she duly included the two incidents in her referral letter to the first respondent and the Chief Justice of Zimbabwe.

In denying that she was conflicted, the fifth respondent maintained that she had no personal interest in the matter and was only carrying out her duties.

At the commencement of the proceedings, the first respondent (Judicial Service Commission) raised two preliminary points:

(i) It was submitted on behalf of the first respondent that the court a quo had no jurisdiction to review the constitutional powers vested in the President if he decides to appoint a Tribunal in terms of section 187 of the Constitution.

(ii) Secondly, that the matter was lis alibi pendens as a similar application under HC2162/20 had already been made by the appellant.

On the merits of the matter, the first respondent averred that it acted lawfully, reasonably, and in a fair manner in respect of the advice it gave to the sixth respondent (the President) in terms of section 187(3) of the Constitution.

The first respondent maintained, that, the appellant was availed an opportunity to respond to the allegations made against him and he duly did so in writing.

Further, that the decision to refer the appellant's matter to the President was made by a properly constituted Board of its Commissioners. The first respondent also averred that the onus to prove the purported allegation of an improperly constituted quorum lay with the appellant.

The appellant, in turn, raised a preliminary point to the effect, that, the deponent of the first respondent's opposing affidavit, Mr Chikwana (the first respondent's Acting Secretary), lacked authority to act on behalf of the first respondent.

The appellant averred, that, on the authority of the case of Francis Bere v Judicial Service Commission and Ors HH269-20 the court had already found, that, since it is the first respondent which has the constitutional duty to advise the President on the question of removal of a judge from office it could not delegate the function of defending that decision in a court of law to its Acting Secretary.

The court a quo, in a well-reasoned judgment, dismissed the appellant's preliminary point. The court found, that, in light of the first respondent's Board resolution authorizing Mr Chikwana to do so, he could properly act on its behalf.

The court also dismissed the preliminary point taken by the first respondent that the matter before it was lis alibi pendens. The court reasoned, that, lis alibi pendens was not an absolute bar to a determination of the matter. The court thus dismissed the point as it did not dispose of the matter.

The court also declined to deal with the part that the court had no powers to review the Constitutional powers vested in the President as it reasoned that the issue was on the merits and was not a preliminary part.

On the merits of the matter, the court a quo held, that, on the point that there was no quorum at the first respondent's meeting of 13 December 2019, the appellant had made bare allegations without supporting affidavits of those present at the meeting and without attaching minutes of the meeting to show that there was no quorum. The court a quo further held, that, the first respondent had no obligation to assist the appellant in proving his allegation.

With regards to the issue of whether the first respondent was functus officio and could not reverse its decision of 21 November 2019, wherein it had purportedly found the appellant not guilty of misconduct, the court a quo found, that, the appellant failed to substantiate his allegations. It found that he did not support his averment that he had received a phone call from the first respondent's Deputy Acting Secretary informing him that a decision had been taken to exonerate him. The court noted that the appellant ought to have either produced minutes of the alleged meeting of 21 November 2019 or filed a supporting affidavit from the Deputy Acting Secretary.

The court a quo also found, on the issue of the alleged violation of the appellant's audi alteram partem rule that the appellant was given an opportunity to respond to the allegations made against him. The court noted that the exchange of correspondences between the first respondent and the appellant was sufficient. Thus, the court found that the appellant's right to be heard had not been violated.

Concerning the absence of jurisdictional facts to ground the first respondent's decision to advise the President, the court noted, that, it was not sitting as an Appeal Court to determine the correctness of the first respondent's decision to refer the appellant's matter to the President.

Rather, it was being called upon to decide whether any of the jurisdictional grounds for removal of a judge were disclosed in the first respondent's papers.

The court noted, that, section 187(1)(c) of the Constitution provides for gross misconduct as one of the jurisdictional grounds for the removal of a judge from office and that is what was averred in the papers to the President.

The court, however, concluded that whether or not there was gross misconduct on the part of the appellant was not an issue to be determined by it as the terms of the Tribunal, set up by the President, covered that aspect. It was therefore left for that Tribunal to determine the guilt or otherwise of the appellant.

In accordance with the above findings, the court a quo dismissed the application with an order that the appellant pays the first respondent's costs.

Aggrieved by the decision of the court a quo, the appellant noted an appeal on the following grounds:

“1. The court a quo erred in law in not upholding the appellant's point in limine, namely, that, that (sic) the 1st Respondent was not properly before the court as the deponent to its opposing affidavit was prohibited by the Constitution of Zimbabwe from representing the 1st Respondent in an application brought by a judge pursuant to section 187(3) of the aforesaid Constitution.

2. The court a quo erred in law in not finding that the 1st Respondent had no quorum at its meeting of 13th December 2019, and, consequently, erred in not finding that the 1st Respondent's advice to the 6th Respondent, pursuant to section 187(3) of the Constitution, was a nullity.

3. The court a quo erred in law in not finding, that, at the meeting of 13th December 2019, the 1st Respondent was already functus officio in respect of the complaints raised against the appellant and consequently erred in not finding that the 1st Respondent's advice to the 6th Respondent, pursuant to section 187(3) of the Constitution, was a nullity.

4. The court a quo erred in law in not finding that there had been a breach of the audi alteram partem rule in respect of the 1st Respondent's handling of complaints against the appellant at its meeting on 13th December 2019 and consequently erred in not finding that the 1st Respondent's advice to the 6th Respondent, pursuant to section 187(3) of the Constitution, was a nullity.

5. The court a quo erred in law in finding that the court had no jurisdiction to determine the existence or otherwise of the jurisdictional facts under section 187(1) of the Constitution and grounding the 1st Respondent's advice to the 6th Respondent in respect of complaints against the appellant pursuant to section 187(3) of the Constitution.”

At the hearing, the first respondent raised a point in limine to the effect that the matter before the court had become moot.

The point was taken on the basis that the appellant had already been removed from the office of a judge following the findings of gross misconduct by the Tribunal appointed by the President.

Counsel for the first respondent…, submitted that the appeal had become moot arising from the fact that the appellant's appeal was predicated on his suspension from office. He argued that this position had since been overtaken by events.

He further submitted, that, the relief sought by the appellant, intending to set aside the decision by the first respondent to refer the complaint against the appellant to the President, under section 187(3) of the Constitution, would result in a brutum fulmen.

Counsel further argued, that, in light of the Proclamation removing the appellant from the office of a judge, the work of the Tribunal had been completed, the dismissal of the appellant was final, and, as such, the appeal was devoid of merit.

In opposition, counsel for the appellant…, argued that the matter was not moot as there was a live controversy which required the Court's determination.

Counsel submitted that the live issue related to whether or not the decision of the first respondent to advise the President, in terms of section 187(3) of the Constitution, was valid.

It was counsel's submission that this was a live issue which had to be determined by the court as it affected whether or not the appellant was lawfully removed from office.

Counsel further argued, that, in any event, even if the matter is moot, this Court has a discretion to hear the matter.

Counsel thus prayed for the dismissal of the preliminary point.

On the merits of the matter, counsel for the appellant submitted, that, the Acting Secretary for the first respondent had no authority to depose to the opposing affidavit. Counsel argued, that, the court in HH269-20 had already determined that the Acting Secretary could not so act. The court a quo could not make a contrary finding that Mr Chikwana had authority to act on behalf of the first respondent.

Counsel also submitted, that, the quorum recommending that the complaint against the appellant be referred to the President was not properly constituted.

Counsel further submitted, that, the appellant was not afforded the right to be heard in terms of the audi alteram partem rule as he was not given an opportunity to respond to the letter written by Mr Ndudzo.

Counsel argued, that, the first respondent lacked the jurisdiction to refer the matter to the President without first conducting an internal hearing of its own.

Lastly, it was counsel's argument that each party should bear its own costs owing to the reason that the issues raised in the appeal were fundamentally important.

Per contra, counsel for the first respondent argued, that, the court a quo did not err in finding that the first respondent's Acting Secretary could depose to the opposing affidavit as he acted merely as an agent of the first respondent and he could swear positively to the facts as he sat in its meetings.

Counsel further argued, that, the appellant had been afforded his right to be heard as he had been given an opportunity to reply, in writing, to the complaints levelled against him as well as an opportunity to be heard by the tribunal which right he opted not to exercise by walking out of the hearing.

Counsel submitted, that, in terms of section 187(3) of the Constitution, the first respondent was within its rights and had an obligation to refer the matter to the President.

He further argued, that, the onus rested squarely on the appellant to prove his assertion that the first respondent's quorum was not properly constituted.

Counsel was not opposed to the prayer that each party bears its own costs.

Counsel for the second to seventh respondents…, submitted that none of the appellant's grounds of appeal impugned the actions of the second to seventh respondents.

Counsel submitted, that, the President was within his constitutional mandate in appointing a Tribunal to investigate the appellant's alleged acts of misconduct. Counsel thus submitted, that, the Tribunal correctly investigated the matter and made recommendations to the President. It was his argument that the President correctly acted upon those recommendations in terms of his constitutional powers....,.

The appellant's grounds of appeal raise four broad issues for determination which are as follows:

(i) Whether or not the court a quo erred in finding that the first respondent's Acting Secretary could depose to its opposing affidavit and act on its behalf.

(ii) Whether or not the appellant failed to prove that there was no quorum at the first respondent's meeting of 13 December 2019.

(iii) Whether the first respondent was functus officio as it is alleged to have reversed its decision of 21 November 2019.

(iv) Whether or not the appellant's right to be heard was violated.

I will deal with each of these issues in turn....,.

The facts of these two issues are interlinked so it is expedient to deal with them together.

The appellant's application for review was dismissed on the basis that he failed to prove that the first respondent did not have a proper quorum at the first respondent's meeting of 13 December 2019 and that at that meeting the first respondent had become functus officio as it had already made a decision on 21 November 2019 exonerating the appellant.

It was the appellant's argument a quo, and before this Court, that, at the meeting of 13 December 2019, where the decision to refer the appellant's matter to the President was reached, there was no quorum and thus an invalid resolution was passed.

The appellant made the allegation in his founding affidavit before the court a quo but did not produce any evidence to substantiate the allegation.

The court a quo found, that, the appellant could not make bare allegations without producing either the minutes of the meeting or a supporting affidavit from a Commissioner of the first respondent who was present or absent on that day.

A reading of the appellant's founding affidavit shows that he made the allegations based on what he termed “reliably informed” information without producing an iota of evidence to substantiate the claim.

The appellant further alleged, that, at a meeting on 21 November 2019, he was exonerated from all allegations against him and that he was informed, through a telephone call, of the news by the first respondent's Acting Deputy Secretary, Mr Msipa.

It was on this basis that the appellant argued that the first respondent was functus officio at the time it made the decision to refer his matter to the President on 13 December 2019.

It is common cause that Mr Msipa has not left the employ of the first respondent. The appellant could, and should, have approached him for a supporting affidavit in this regard.

In the event that he felt constrained to do so, he could have subpoenaed the records of the phone call that he allegedly held with Mr Msipa.

The court a quo found that the arguments by the appellant were bare, unsubstantiated allegations as there was no supporting evidence.

In any event, it seems highly unusual that the Judicial Service Commission would have relayed this information to a judge through a phone call.

The allegations against the appellant were serious.

No letter was produced by the appellant to show that the first respondent had written to him indicating that it was no longer pursuing the case against him.

In our view, it would be only after such formal notification that the appellant would be in a position to allege that the first respondent had made a prior decision and was now functus.

This Court finds no fault with the court a quo's conclusions in this respect.

It is apparent that the appellant made unsubstantiated allegations.

It is an accepted principle of our law that it is the duty of a person who makes an allegation to prove the allegation: see Mavrick Trading (Private) Limited v Double Services HH54-17; Macro Plumbers (Pvt) Ltd v Sheriff of Zimbabwe N.O. and Another HH57-15; ZUPCO Ltd v Pakhorse Services (Pvt) Ltd SC13-17.

In view of the well-grounded principles set out above, we find that the appellant's second and third grounds of appeal are devoid of merit.

In his founding affidavit a quo, the appellant averred that his right to be heard was violated by the first respondent in that he was denied the opportunity to respond to the letter by Mr Ndudzo which he wrote prior to the meeting of 13 December 2019.

It was the appellant's argument, that, he was not given an opportunity to have sight of and respond to Mr Ndudzo's letter because it was submitted after he had made his own response to the allegations against him on 20 August 2019.

The appellant believes, that, by not being given the opportunity to respond to the letter, the decision of 13 December 2019 was unlawfully and unfairly made.

The record shows, that, from the moment the allegations against the appellant were made, to the day when he was suspended, there was correspondence between him and the first respondent.

The appellant was given various platforms and opportunities to respond to the two allegations made against him. Where decisions were made by the first respondent, in respect of his matter, the appellant was informed in writing.

While it is accepted, that, the appellant was not given Mr Ndudzo's letter, which was written after the appellant had made his response, it is our view that the issues had already been canvassed in previous correspondence.

It should be borne in mind, that, the audi alteram partem rule is not a rule of fixed content but varies with the circumstances of each case. What is important is that the principles of fairness have been invoked before a decision is reached.

As was stated by GUBBAY JA…, in Metsala v Chairman, Public Service Commission & Anor 1989 (3) ZLR 147 (SC)…,.:

“The audi maxim is not a rule of fixed content, but varies with the circumstances. In its fullest extent, it may include the right to be apprised of the information and reasons underlying the impending decision; to disclosure of material documents; to a public hearing, and, at that hearing, to appear with legal representation and to examine and cross-examine witnesses: see, generally, Baxter Administrative Law at pp545-547.

The criterion, as I have noted, is one of fundamental fairness, and, for that reason, the principles of natural justice are always flexible.

Thus, the 'right to be heard' in appropriate circumstances may be confined to the submission of written representations. It is not the equivalent of a 'hearing' as that term is ordinarily understood.”

Thus, when the first respondent decided to refer the matter to the President, the appellant was advised of this decision and the basis thereof. It was not necessary for the appellant to again respond to the letter.

The decision to refer the matter to the President cannot, in these circumstances, be said to be a nullity.

In any event, after the tribunal established by the President was mandated to investigate all the allegations against the appellant, and, in carrying out the investigations, the appellant was again afforded the opportunity for a fair hearing.

It is an open secret that the appellant elected to walk out from the hearing of an independent tribunal.

In Forestry Commission v Moyo 1997 (1) ZLR 254 (S)…, the court discussed the effect of walking out of a disciplinary hearing and remarked as follows:

“The second and alternative ground, as I understand it, was that the respondent ought to have been afforded the opportunity to be heard even though he had walked out of the inquiry. I am unable to agree…,. His exit indicated that he had no intention of participating in the inquiry. He took a calculated risk that it would proceed without him. There was, in my opinion, no obligation upon the investigation panel to postpone the hearing and call upon the respondent to appear at another date. The audi alteram partem rule was not violated.”…,.

See also Dombodzvuku & Anor v CMED (Pvt) Ltd SC14-11.

The appellant ought to have been cognisant of the fact, that, the tribunal was set up to investigate his matter on all issues which related to his alleged acts of misconduct.

If the appellant had an issue with the letter from Mr Ndudzo, and such complaint arose after the decision made on 13 December 2019, to refer his matter to the President had already been made, the appellant should have challenged that letter before the tribunal.

It was not disputed that the appellant was given an opportunity to represent himself and prove his defence before the tribunal, but, rather, it was conceded that he walked out of the tribunal hearing.

From the above cited authorities, the appellant's actions, of walking out of the hearing, amounted to a waiver of his right to the audi alteram partem rule.

The first respondent gave the appellant adequate opportunities to make his case, and, likewise, the tribunal gave the appellant every opportunity to make his case, but, the appellant decided to waive the right for reasons best known to himself. The appellant's right to be heard cannot be said to have been violated in the circumstances of this case.

The appellant's fourth ground of appeal thus lacks merit.

The preliminary objection raised by the first respondent has merit as the matter is now moot. However, in the exercise of our discretion, we decided to determine the merits of the matter.

We are of the firm view that the appeal is devoid of any merit. The decision of the court a quo cannot be impugned. The appeal must therefore be dismissed.

The parties were agreed that each party will bear its own costs in the matter. As such, no order will be made in respect of costs.

In the result, it is accordingly ordered as follows:

The appeal be and is hereby dismissed with no order as to costs.

This is an ordinary opposed application which the applicant turned into an urgent one. He did so through a letter which he addressed to the Registrar of this court. The letter is dated 20 February 2018. It reads, in part, as follows:

“2. As you will be aware, the application, among other things, seeks to challenge the constitutionality of the Presidential Powers (Temporary Measures) Act [Chapter 10:20] amended to Electoral Act Regulations 2016 published in Statutory Instrument 117/2017.

3. As you are aware of, the regulations we (sic) enacted on 15 September 2017 and therefore they will naturally expire by 15 March 2017.

4. In order to avoid a situation where arguments will be academic on aspects of the regulations, and given the fact that both parties have filed heads of argument in this matter, we seek that the matter be determined urgently.”…,.

It is evident, from the foregoing, that, the applicant was rushing against time.

However, the application was, in my view, not urgent. It was more of self-created urgency than it was urgent in the sense which the rules of court contemplate.

The Regulations were published on 15 September 2017. The applicant did not apply, as he should have done, shortly after the publication of the Regulations. He only filed his application some thirty-five (35) days after the event. He filed it on 20 October 2017. He did not explain the cause of the delay.

The form which he employed showed, that, the application should not have been enrolled on applications which fall under Rule 244 of the High Court Rules 1971. It did not have a certificate from a legal practitioner. It did not give reasons for its urgency. It was filed under Form 29 instead of under Form 29B of the rules of this court.

Urgency was, therefore, created by the applicant himself.

He suddenly became aware of the date of the expiration of the Regulations. He, accordingly, requested the Registrar to draw the court's attention to his predicament, and, in the process, he moved the court to hear the application before the period of the expiration of the Regulations.

The applicant used the Regulations as his point of entry into the substance of the application.

The application has less business with the Regulations. It, in fact, has more business with the constitutionality or otherwise of the Presidential Powers (Temporary Measures) Act [Chapter 10.20].

Paragraph 2 of the applicant's letter of 20 February 2018 is relevant in the mentioned regard.

He states, in the same, that, the application seeks to challenge the constitutionality of the Presidential Powers (Temporary Measures) Act [Chapter 10:20]. This, in my view, is the thrust of the application.

The applicant describes himself as a Zimbabwean scholar, businessman, and human rights activist. He says he has a direct interest in issues which relate to the rule of law, constitutionalism, democracy, and Zimbabwe's electoral process.

I mention in passing, that, human rights activism and constitutionalism took root in Zimbabwe in the late 1980s and early 1990s. Many non-governmental organisations sprouted through the length and breadth of the country. Activists who fell into, and continue to remain in, this very important field of work brought the Government of the day to account for its conduct in such areas as the due observance of the rule of law, people's fundamental rights, democracy, and elections.

Persons of the mind of the applicant remain a thorn in the eyes of Government.

They made, and continue to make, it to remain on course. They criticized, and continue to criticize, the conduct of Ministers of Government and their Ministries. They, in short, remain a constant cause of concern to the three pillars of the State: namely, the executive, the judiciary, and the legislature. They worried, and continue to worry, the politicians especially those whose functions fall under the executive organ of the State.

Human rights activists are, therefore, a sine qua non aspect of any democratic order.

They make every effort to point out, as well as speak against, such deviant behaviour as corruption, inertia, unconstitutionalism and/or the absence of democratic principles. Their continued existence in a society is a most welcome development which governments the world over are encouraged to embrace and not ignore.

When such activists, as the applicant, request members of the executive to jump, the ideal situation is that the latter should not question why they are being asked to jump. The only question which they can, and should, ask is how high they should jump.

It is, therefore, in the context of the above stated matters, that this application would be considered as well as determined.

The applicant, it has already been stated, falls into the category of the above described group of persons. He lays stiff criticism on the continued existence of the Presidential Powers (Temporary Measures) Act.

He insists that the Presidential Powers (Temporary Measures) Act serves no meaningful purpose in an independent and democratic Zimbabwe. He advocates the strengthening, as well as the observance, of constitutional provisions which, he says, protect and advance the people's fundamental rights and freedoms. He lays emphasis on matters which relate to the rule of law, democracy, constitutionalism, and/or the doctrine of separation of powers amongst the three pillars of the State.

The thrust of the applicant's argument is that the Presidential Powers (Temporary Measures) Act is ultra vires the Constitution of Zimbabwe.

He submits that the President has abused the Presidential Powers (Temporary Measures) Act as and when he pleased.

The Presidential Powers (Temporary Measures) Act, he argues, allows the President to make law by decree as opposed to having the same made by Parliament which, in terms of the Constitution, is the law–making authority in Zimbabwe.

He insists that the Presidential Powers (Temporary Measures) Act must be struck off the country's statute books because its provisions are not consistent with those of the Constitution of Zimbabwe.

The application which is before me is unique.

It is unique in the sense, that, it is the first of its kind to test the constitutionality or otherwise of the Presidential Powers (Temporary Measures) Act after the coming into existence of the Constitution of Zimbabwe Amendment [No.20] Act of 2013.

The Presidential Powers (Temporary Measures) Act was promulgated in 1986. It survived all applications, and they were many, of the present nature. It did so largely because of some provision of the 1979 Constitution which provision ensured its continued existence in the country's statute books. That provision, it was argued, does not exist in the new Constitution which replaced the old one.

It follows, from the foregoing, that, case authorities which dealt with the continued existence or otherwise of the Presidential Powers (Temporary Measures) Act will not be of much assistance towards the determination of this application. The decisions were, no doubt, anchored upon the provision which ensured the retention of the Presidential Powers (Temporary Measures) Act.

The current application will, in the result, be decided on what, in my view, is the correct interpretation of the new Constitutional provisions.

It will be decided on the basis of provisions which define the role and functions of such State actors as the President, Parliament, and the Judiciary of an independent and democratic society such as the one in which we live.

I have already stated, in some part of this judgment, that, the applicant used the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, S.I.117 of 2017, as his point of entry into the application.

He criticizes the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117 of 2017 which the President published on 15 September 2017. He says these are null, void, and of no force or effect.

He submits, that, only Parliament can make law in Zimbabwe. He insists that the President cannot do so.

He criticizes section 2(2) of the Presidential Powers (Temporary Measures) Act which he says purports to give to the President power to change, or over-ride, an Act of Parliament.

He states, that, the President's conduct, of publicizing the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117 of 2017 is ultra vires the Act. He, therefore, moved the court to declare:

(a) The Presidential Powers (Temporary Measures) Act to be ultra vires the Constitution of Zimbabwe; or alternatively

(b) Section 2(2) of the Presidential Powers (Temporary Measures) Act a nullity; and

(c) The President's actions, of publishing the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, S.I.117 of 2017 to be ultra vires the Act.

He, in short, moved the court to make the declarations and set aside the Presidential Powers (Temporary Measures) Act as well as the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117/2017 which flow from the same.

The respondent is the President of the Republic of Zimbabwe. He opposes the application.

He states, that, the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117/2017, which he published, were necessitated by the biometric voter registration exercise which the country adopted in preparation for the July/August 2018 election. He says everyone who was on the old voters roll was expected to register through the newly adopted voter registration system.

He avers that he did not act outside the law.

Section 2(2) of the Presidential Powers (Temporary Measures) Act, he says, confers authority upon him to publish the Regulations as he did.

He submits that he did not go beyond the powers which the Constitution of Zimbabwe confers upon him. He drew my attention to his executive functions which are contained in section 110(1) of the Constitution.

He denies that his conduct, in publishing the Regulations, violated the Presidential Powers (Temporary Measures) Act or the Constitution.

He submits that, under the common law, he has always enjoyed prerogative powers which allowed him to make temporary legislation in urgent situations. He states that the current Constitution did not abolish his prerogative powers.

He insists that the Presidential Powers (Temporary Measures) Act conferred power on him to make law in the general public interest. He avers that the Act recognizes Parliament's law-making function. He denies that the Act confers sweeping powers upon him.

He moved the court to dismiss the application with costs.

The application was well-researched, well-argued, as well as presented.

It drew my attention to a number of important case authorities which, in a large measure, addressed the concerns of the applicant.

It cited six cases of the South African Constitutional Court, four case authorities from the courts of the United States of America, four cases which the Privy Council decided, and two case authorities which the Supreme Court of India decided, among others.

The cited cases brought to the fore such pertinent matters as the supremacy of a country's Constitution, the doctrine of separation of powers, rule of law, and issues which pertain to procedural and/or substantive legality by such State actors as the respondent in casu.

The cases were, no doubt, rich, informative, thoroughly persuasive, as well as educative.

That having have been said, sight must not, however, be lost of the fact that each case to which the applicant drew my attention was decided in context. The decision was not plucked from thin air and placed on paper. It was based on the country's Constitution and other pieces of legislation which were relevant to the case. The court was, in each case, interpreting the law as it existed in its jurisdiction as measured against the facts of the matter which was then before it.

I mention, at this stage, that, the facts of the cases to which the applicant drew my attention remain unknown to me. I also state that the Constitutions and other pieces of legislation which influenced the decision of the court in each cited case were not availed to me. My attention was only drawn to the important dicta which the courts pronounced in each case.

The above stated matters make it hard, if not impossible, for me to go along with the decided case authorities. That is so notwithstanding their persuasive value. I cannot, in other words, conclude that what the court in America, or India, or South Africa pronounced should apply to the case which is before me.

Judicial work does not work in a vacuum. It operates upon a set of rules, chief among which is a country's Constitution and any legislation which is relevant to a case which is being decided. It interprets the law as it exists in a country's Constitution and other law. It interprets those against a certain set of stated matters.

The current application will, therefore, be decided in the context of the Constitution of Zimbabwe Amendment (No.20) Act of 2013 as read with the Presidential Powers (Temporary Measures) Act [Chapter 10:20] [“the Act”] and matters which relate to the two pieces of legislation.

Amongst such matters is the birth of a new voters roll which the President made mention of in his opposition to the application.

The President made law when he published the 2017 Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117/2017. He rested his law-making conduct on section 2 of the Presidential Powers (Temporary Measures) Act.

The section allows him to make law, albeit of a temporary nature, in certain circumstances of urgency.

The section reads, in the relevant portion, as follows:

“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 interests 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 this Constitution and this Act, the President may make such regulations as he considers will deal with the situation.”

It is evident, from the above-cited portion of the section, that, the President's discretion to make Regulations is only exercisable by him in the interests of the people of Zimbabwe as a whole. He does not exercise the discretion in the interests of a section of the population of the country. The use of the word 'public' which appears in the various facets for which the discretion is exercised says it all.

The President did not publish the Regulations for the fun of it.

He did not, as the applicant alleges, make an effort to abuse the law making function which the Presidential Powers (Temporary Measures) Act confers upon him. He states, and correctly so, that the advent of the biometric voter registration exercise which Zimbabwe contemplated to put into place made it necessary for him to act as he did.

His contention, with which l agree, was that the advent of a 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 times-lines of the forthcoming 2018 harmonised election. It was, according to him, out of necessity and urgency that he published the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, S.I.117 of 2017.

He insists, and l agree, that the preparation of the new voters roll, as measured against the July/ August 2018 election, was not an event but process.

The background of the matter which relates to the publication of the Regulations is relevant.

I take judicial notice of the fact, that, for a considerable length of time in the past, the people of Zimbabwe urged Government to:

(i) Do away with the old voters roll which they said contained a lot of inconsistencies as well as unnecessary features;

(ii) Replace it with a new voters roll which was more credible than the old one. A voters roll which was credible in terms of voter population, its density in a particular area, and detail;

(iii) Remove the voters roll from the office of the Registrar-General and place it within the domain of the Zimbabwe Electoral Commission.

It is my view that the applicant, and others of a like mind, were at the forefront of the stated matter.

He made a statement to an equal effect in his founding affidavit. He and other human rights activists urged and encouraged Government to address their abovementioned concerns. They insisted that its attention to the same would render the forthcoming July/August 2018 election more credible than otherwise.

The President, as Head of State and Government, heeded the call of the people of Zimbabwe.

He remained alive to the fact, that, whatever was to be achieved in response to the people's concerns was to be supported by some law. He, therefore, published the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117 of 2017 which, in his view, would take the place of the law which Parliament was constrained to make within the time which preceded the election.

That the President complied with the procedural legality of the Presidential Powers (Temporary Measures) Act requires little, if any, debate.

He, as the applicant stated, published the Regulations. He published them on 15 September 2017. He did so after he had notified the people of Zimbabwe of his intention to publish the same. He, in the mentioned regard, made substantial compliance with section 3 of the Presidential Powers (Temporary Measures) Act.

It cannot, in view of the above stated matter, be suggested that the President's conduct, in publishing the Regulations, was ultra vires the Presidential Powers (Temporary Measures) Act. He published them in terms of an existing law. The law conferred upon him the power to act as he did. He followed the procedural aspects of that law to the letter and spirit.

His conduct was above reproach. It was, and it remains, valid.

I have already stated, in the foregoing portions of this judgment, that, the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, S.I.117 of 2017 are not the subject of this application.

The subject, from the perspective of the applicant, is the Presidential Powers (Temporary Measures) Act itself.

If the Regulations were the issue, the applicant would have invoked section 3(1)(b) of the Presidential Powers (Temporary Measures) Act as read with subsection (2) of the same. He would, in other words, have objected to the publication of the Regulations when the President made his intention known to him, and others, through the Government Gazette Extraordinary, Volume XCV No.61.

The fact that the applicant did not object to the publication of the Regulations, at the time that the President's intention appeared in the Gazette, shows his real intention.

The intention is that he wanted to use the Regulations, after they had been published, as his entry point into criticizing the substance of the Presidential Powers (Temporary Measures) Act.

The observed matter, therefore, takes the discourse to the substantive legality or otherwise of the Presidential Powers (Temporary Measures) Act.

Whether or not the Presidential Powers (Temporary Measures) Act is substantively legal depends on the provisions, if any, of the Constitution which relate to it. This, in a nutshell, refers to the constitutionality or otherwise of the Presidential Powers (Temporary Measures) Act.

The question which we should ask and answer centres on whether or not the law-making function of the President, as conferred upon him by the Presidential Powers (Temporary Measures) Act violates the Constitution of Zimbabwe.

The same question, put differently, would read: did Parliament act within or without the Constitution when it conferred some of its law-making function in the Presidential Powers (Temporary Measures) Act to the President?

Succinctly and boldly stated, the same question reads: Is the Presidential Powers (Temporary Measures) Act in compliance with the Constitution of Zimbabwe (No.20) Act of 2013 (“the Constitution”)?

The legislative authority of Zimbabwe is reposed in the Legislature. This comprises Parliament and the President acting in accordance with this Chapter.

Sections 116, 117 and subsections (2), (3), 5(a), 6(a) and (b), 7(a), 8(a) and (b), (9) and (10) of section 131 of the Constitution of Zimbabwe spell out the complimentary roles which Parliament and the President play in Zimbabwe's law-making process. They check and balance each other's work. The one cannot make law without the input of the other and vice-versa.

The fact that the President can, in terms of section 131(8)(b) of the Constitution as read with subsection (9) of the section, refer a Bill to the Constitutional Court for advice on its constitutionality shows that the judiciary is, to some extent, involved in the law-making process. It ensures that all Bills which Parliament and the President pass into law must comply with the Constitution of Zimbabwe.

The checks and balances which exist in section 131 of the Constitution also exist in section 4 of the Presidential Powers (Temporary Measures) Act.

The President does not, therefore, have sweeping powers as the applicant alleges.

The Regulations which he makes are, as of necessity, subject to Parliamentary review and/or scrutiny. It is within the domain of Parliament to resolve that any Regulations which have been laid before it be either amended or even repealed. Once such a resolution has been made, the President has no option but to comply with the resolution of Parliament.

It follows from the foregoing, therefore, that, complete separation of powers of the three organs of the State, i.e the Executive, the Legislature and the Judiciary, is a myth. It is not achievable in the context of the Constitution of Zimbabwe.

I, in the mentioned regard, associate myself fully with the views which the Constitutional Court of South Africa was pleased to express in Ex parte Chairperson of the Constitutional Assembly: In Re: Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744. It stated…, as follows:

“There is, however, no universal model of separation of powers, and, in democratic systems of government in which checks and balances result in the imposition of restraints by one branch of government upon another, there is no separation that is absolute….,.

The principle of separation of powers, on the one hand, recognizes the functional independence of branches of government. On the other hand, the principle of checks and balances focuses on the desirability of ensuring that the constitutional order, as a totality, prevents the branches of government from usurping power from one another. In this sense, it anticipates the necessary and unavoidable intrusion of one branch into the terrain of another. No constitutional scheme can reflect a complete separation of powers: The scheme is always one of partial separation.”…,.

The President's necessary and unavoidable intrusion into the function of Parliament is evident from a reading of section 86 of the Constitution. The section deals with the limitation of the people of Zimbabwe's fundamental rights and freedoms. It reads, in part, as follows:

“86 Limitation of Rights and Freedoms

(1) The fundamental rights and freedoms set out in this chapter must be exercised reasonably and with due regard for the rights and freedoms of other persons.

(2) The fundamental rights and freedoms set out in this chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including -

(a)…,.;

(b) The purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town, planning or the general public interest….,.”…,.

The question which begs the answer is: who/which authority has the power to limit the people of Zimbabwe's fundamental rights and freedoms when any of the matters which are stated in section 86(2)(b) of the Constitution has arisen or is about to occur?

The applicant does not mention the person or authority who/which, in terms of a law of general application, can limit the people's rights and freedoms.

The limitation, no doubt, has far-reaching consequences. It relates to matters which, if left unattended, adversely affect a considerable portion of Zimbabwe's population - if not the people of Zimbabwe as a whole.

The President says the Presidential Powers (Temporary Measures) Act and the Constitution confers upon him that power to deal with any of the matters which are stated in section 86(2)(b) of the Constitution when such have arisen or are about to occur.

He states, in casu, that, it was in the interest of the general public of Zimbabwe that he made the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117 of 2017.

That the general public interest was real as opposed to having been fanciful requires no debate. That was so, given the people's outcry for a new voters roll which had to replace the old one with which they were not satisfied.

Parliament could not make law within the time which remained to deal with the situation which was then at hand. Whatever process which pertained to the introduction into the country of a new voters roll required some law to be in place before it could be embarked upon.

The President, therefore, made that law in line with his law-making function as was provided for in the Presidential Powers (Temporary Measures) Act and the Constitution.

The verbatim repetition of section 86(2)(b) of the Constitution in section 2(1)(a) of the Presidential Powers (Temporary Measures) Act confirms the Constitution's recognition of the Presidential Powers (Temporary Measures) Act.

The stated matter confirms further, that, it is only the President who has the power to limit, through the Presidential Powers (Temporary Measures) Act, the people of Zimbabwe's fundamental rights and freedoms which are contained in the Constitution. Those can be limited when certain undesirable occurrences have arisen or are about to arise.

The President limits them in the interests of Zimbabwe's public good.

The drafters of the Constitution were, in my view, alive to the existence of the Presidential Powers (Temporary Measures) Act.

They crafted section 134 of the Constitution to confer power on Ministers of Government and such statutory bodies as the Zimbabwe Electoral Commission to make subsidiary legislation. They state, in the section, that, the legislation which these make should not go outside the enabling Act which establishes their law-making function.

Because the President's law-making power exists in the Presidential Powers (Temporary Measures) Act, the drafters of the Constitution did not include it in section 134 of the Constitution.

Because his powers, as stated in section 86(2)(b) of the Constitution, relate to 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.

Paragraphs (b), (c) and (d) of the section would have disenabled him from effectively dealing with situations of disastrous consequences which he has to address in his capacity of Head of State and Government when such arise.

It was for the mentioned reasons, if for no other, that the Presidential Powers (Temporary Measures) Act conferred upon him power to deal with any situation which, in his view, would work against Zimbabwe's public interest in an adverse manner.

Section 5 of the Presidential Powers (Temporary Measures) Act accords to him the leeway to deal with the situation which would have arisen or is about to occur in a very effective as well as conclusive manner.

It allows him to override an Act of Parliament where such is necessary in the interests of the public good of Zimbabwe.

It makes little, if any, sense for the applicant to suggest that Ministers, whom the President appoints into cabinet, can make subsidiary legislations under section 134 of the Constitution and the appointing authority himself cannot.

The applicant's reading of section 134 of the Constitution is misplaced.

He overlooks the fact, that, its application relates to the making of law by Ministers of Government and statutory bodies. He remains oblivious to the fact, that, the President's law-making function is not covered under the section but under the Presidential Powers (Temporary Measures) Act and the Constitution.

The President states, and I agree, that, section 110(1) of the Constitution confers upon him the power to make law. It reads:

“(1) The President has the powers conferred by this Constitution and by any Act of Parliament or other law including those necessary to exercise the functions of Head of State.”…,.

It is his status, as Head of State and Government, which allows him to limit the people of Zimbabwe's fundamental rights and freedoms when a need to do so arises or is about to occur.

He will be complying with his duties as the President of Zimbabwe in the mentioned regard.

He will be, as is stated in section 90(2)(a) of the Constitution, promoting unity and peace for the benefit and well-being of the people of Zimbabwe.

It is evident, from the foregoing, that:

(a) The conduct of the President was not ultra vires the Presidential Powers (Temporary Measures) Act;

(b) The Regulations which he published were procedurally and substantively compliant with the law under which they were made; and

(c) The Presidential Powers (Temporary Measures) Act is not ultra-vires the Constitution of Zimbabwe.

The applicant, in my view, confused the President's ordinary law-making function, as it is stated in Chapter 6 of the Constitution, with his law making function as it exists in the Presidential Powers (Temporary Measures) Act as read with sections 86 and 110 of the Constitution.

He sought to do away with the President's law-making power as it is contained in the Presidential Powers (Temporary Measures) Act.

The Presidential Powers (Temporary Measures) Act, it has already been observed, is in complete harmony with the Constitution.

The application constituted an interesting exercise of the mind. It was more academic than it was real. It was devoid of merit. It cannot, therefore, stand.

The applicant did not prove his case on a balance of probabilities. The application is, accordingly, dismissed with costs.

This preliminary point is but secondary to the other points in limine raised by the first respondent.

It is this court's view, that, the applicant's relief or recourse lies with the second respondent, the Minister of Local Government, Public Works and National Housing (the Ministry has since changed its name but for convenience, I will cite the party as cited on the papers).

The second respondent unearthed the irregularities that triggered a reaction from the applicant, and, if the applicant intends to pursue the matter it ought to engage the second respondent who had powers to regulate and administer the first respondent.

Section 311 of the Urban Councils Act can be resorted to by the applicant and achieve the very relief it wants this court to grant to it. Section 311 of the Urban Councils Act should be read in tandem with the section 315 of the same Act which can direct the first respondent to comply with certain actions to be done by the first respondent to iron out any creases in how the finances of the City Council are being handled.

The second respondent has both administrative and regulatory powers to uphold good governance of the first respondent in the interests of the residents and ratepayers.

Negotiations of all the stakeholders should be for the interests of all of them.

I further agree with the first respondent, that, it is generally accepted, that, if the administration machinery is working well, and effective internal remedies are provided for, the administration is in the best position to rectify its own mistakes and should be given a chance to do so.

To permit ill-timed access to the courts before the administration has been given the space to rectify the perceived mistakes will undermine the functioning of the administration: see Guide to Administrative Law by Professor G FELTOE; Olivine Industries (Pvt) Ltd v Gwekwerere 2005 (2) ZLR 421 (H); and Djordjevic v Chairman, Practice Control Committee, Medical & Dental Practitioner Council of Zimbabwe 2009 (2) ZLR 221 (H).

The applicant does not state, on its founding papers, that internal remedies had failed nor does it show that efforts were made by it but bore no fruits to justify its logic of approaching the court.

The decision to go to the courts was hurried and not justified.

The applicant is urged to liaise with the second respondent and resolve the impasse with minimum friction and costs.

All the three points in limine raised by the first respondent have merit and the court has found sense in all three of them, and, regard being made to the aforegoing, the following order is made:

1. The three points in limine raised by the first respondent are upheld.

2. The point in limine by the applicant is dismissed.

3. The application is dismissed with costs on attorney-client scale.

This is an application in terms of section 34 of the Model Law as set out in the Second Schedule to the Arbitration Act [Chapter 7:15] for the setting aside of an arbitral award dated 23 February 2012, granted by the third respondent.

The second respondent was the applicant's estate agent.

At the hearing of the matter, I dismissed the application with costs on a legal practitioner client scale, being of the view that the application was entirely devoid of merit. I have now been asked to provide detailed reasons for judgment for purposes of appeal.

These are they.

The arbitral award that is sought to be impugned reads as follows:

“IT IS AND IS ORDERED THAT:

1. The termination of the agreement of lease in respect of Number 7 Westcott Road, Mount Pleasant, Harare signed by the parties on the 6th of September 2011 is confirmed.

2. The respondent (applicant in the matter now under consideration) refunds and pays to the claimant the sum of US$16,800 plus interest thereon from the 1st of November 2011 to the date of receipt of payment.

3. The costs of the Arbitrator, amounting to US$2,000, and covered by a deposit paid by the claimant, be refunded to the claimant by the respondent.”

The background giving rise to the dispute between the applicant and the first respondent involved the termination of a lease agreement entered into by the parties on 6 September 2011.

The parties had agreed that the first respondent would occupy the leased premises on 1 November 2011. The premises were under renovation, and the applicant gave an assurance that the renovations would be complete by the date of occupation.

The first respondent paid a sum of US$16,800, being a deposit and six months rent in advance, to the applicant.

Both parties submitted voluminous written statements to the arbitrator, the applicant, as the respondent, on 31 December 2011. The second respondent, the letting agent, also submitted a written statement to the arbitrator, on 9 February 2012.

The arbitrator found, that, the rental amount had been assessed based on the size of the kitchen, which the applicant had promised to extend and make bigger according to the first respondent's specifications.

This is the reason why the first respondent had agreed to pay six months rent in advance.

The applicant was unable to complete the renovations by the agreed date of occupation.

The parties entered into further negotiations which broke down after the applicant demanded more money which the first respondent refused to advance.

On 1 November 2011, the date of occupation, the premises were still under renovation.

The first respondent terminated the lease agreement and claimed a refund of the US$16,800 that had been advanced.

The arbitrator found, that, the applicant's inability to renovate the kitchen by the agreed date went to the root of the lease agreement, and confirmed that the lease agreement had been correctly terminated, and ordered that the applicant refund the monies advanced to him by the first respondent.

The basis of the application to set aside the arbitral award is that the applicant was not given an opportunity to be heard by the arbitrator.

He averred, that, he never agreed that the arbitrator could determine the mater on the papers filed by the parties. He averred, further, that, the third respondent only remitted US$12,800 to him, and that the first respondent had already been reimbursed US$3,840 by the second respondent.

The applicant averred, that, the arbitral award should be set aside on the basis that it had been awarded contrary to public policy in Zimbabwe, and in breach of the rules of natural justice.

The first respondent opposed the application on the basis, that, the applicant had given a mandate to the respondents to file a written report before the arbitrator in an electronic mail dated 7 January 2012.

The first respondent averred further, that, the arbitrator, had, in an electronic mail communication to all the parties, dated 5 January 2012, asked the parties how they wished to proceed and the parties agreed to make written submissions to the arbitrator.

The first respondent pointed out, that, the applicant, in the email dated 7 January 2012, to the arbitrator, stated that:

“…, written submissions only are fine, more focused and cheaper financially and time wise by me.”

The first respondent admitted, that, the amount outstanding was US$12,800 and averred, that, when the arbitral award is registered, it will be registered in that sum.

The first respondent reiterated, that, it was not fatal to an arbitral award if parties agreed to forgo an oral hearing and mandated the arbitrator to make a determination on the basis of written submissions.

The second respondent opposed the application and averred that it had no interest in the outcome of the matter, but merely wished to protect itself against an adverse order as to costs.

The second respondent averred, that, it was given a mandate to manage the applicant's property, Number 7 Westcott Road, Mt Pleasant, Harare, in August 2011.

Pursuant to that mandate, it secured the first respondent as a tenant for those premises. It averred that a dispute arose between the parties which resulted in the first respondent terminating the lease agreement and to demand a refund of rentals and deposit paid in advance.

The second respondent confirmed that both the applicant and the first respondent requested that it submit a written report to the arbitrator....,.

In regards to the merits of the matter, the second respondent averred that it failed to find any justification in the applicant's complaints against its report - which the applicant had specifically requested that it be submitted to the arbitrator.

Copies of e-mails between the parties were attached to confirm the second respondent's version of events.

The second respondent reiterated that the applicant's contention, that it was not given an opportunity to be heard, were entirely devoid of merit....,.

The question that the court must determine is whether the arbitral award handed down by the third respondent is contrary to public policy in Zimbabwe as envisaged by Article 34 of the Model Law, Arbitration Act [Chapter 7:15].

In other words, did the third respondent grant the arbitral award without proper consideration of the terms of the lease agreement between the parties; without affording the applicant an opportunity to be heard; or with fraud and corruption?

Article 34 of the Model Law provides that:

“Article 34 Application for setting aside as exclusive recourse against arbitral award

(1) Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paragraphs (2) and (3) of this article.

(2) An arbitral award may be set aside by the High Court only if —

(a) The party making the application furnishes proof that —

(i)…,.

(ii) The party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(iii)…,.

(iv)…,.

(b) The High Court finds, that —

(i)…,.

(ii) The award is in conflict with the public policy of Zimbabwe.”

“Article 19 Determination of Rules of Procedure

(1) Subject to the provisions of this Model Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.

(2) Failing such agreement, the arbitral tribunal may, subject to the provisions of this Model Law, conduct the arbitration in such manner as it considers appropriate. The power conferred upon the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.”

Article 24 of the Model Law provides that:

“Article 24 Hearings and Written Proceedings

(1) Subject to any contrary agreement by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials.”

The test applies to an arbitral award, in order to set it aside on the basis that it is contrary to public policy is that:

“An arbitral decision can only be held to be contrary to public policy if some fundamental principle of law or morality or justice is violated or if it is so defiant of logic or accepted moral standards that the concept of justice in Zimbabwe would be intolerably hurt.”

See Chanakira v Mapfumo & Anor HH155-10; and Husaihwevanhu & Ors v USF Collaborative Research Programme HH237-10, where the court stated that:

“The courts in this country have construed the defense of public policy very restrictively so that the objective of finality to arbitration is achieved.

It follows, that, the grounds upon which an award may be set aside…, are very narrow. The import of Article 34 and Article 36 of the First Schedule to the Act is not to endow the court before which the award is set aside with powers of appeal to determine the correctness of the decision of the arbitrator;…, an award by the Arbitrator is not contrary to public policy merely because it wrong in law or in fact in reaching the conclusion arrived at…, award…, goes beyond mere faultiness or incorrectness and constitutes a palpable iniquity that is so far reaching…,.”

See Pioneer Transport (Private) Limited v Delta Corporation Ltd & Anor HH18-12.

Based on the provisions of Article 19 of the Model Law, I find that it was entirely proper and permissible for the arbitrator and the applicant and the first respondent to agree on the procedure to be followed.

The arbitrator was even at liberty to conduct the arbitration in such manner as it considered appropriate if the parties failed to agree on which procedure could be used (Article 19(2) of the Model Law).

The power conferred on the tribunal included the power to: “determine the admissibility, relevance, materiality and weight of any evidence.”

There is nothing in the papers filed of record which suggests that the arbitrator did not have these powers.

The evidence placed before this court, via copies of electronic mail communication between the parties, clearly shows that the applicant consented to the matter being determined on the basis of written submissions placed before the arbitrator. The applicant is on record as celebrating the advantages of this course of action as being cheaper and less time consuming.

To turn around now and ask this court to find that the arbitral award was made without affording the applicant an opportunity to be heard is downright dishonest and dishonorable.

Article 24 of the Model Law gives the arbitrator the power to override any agreement between the parties themselves in regards to how the matter should proceed, and stipulates that the arbitral tribunal SHALL decide whether to hold an oral hearing or whether the proceedings shall be conducted on the basis of documents or other materials.

In essence, the conduct of the hearing is entirely at the tribunal's discretion.

There is no onus on the tribunal to hear oral submissions. The onus on the tribunal relates to notification of the hearing; and, an arbitrator has exclusive jurisdiction, contrary to the parties wishes, to decide how to collate evidence. There is no provision to compel the arbitrator to hear oral evidence.

What is required is for all the parties to be notified of the hearing, to be given an opportunity to present their case as stipulated by the arbitrator, and to have sight of the submissions made by the other parties, if in writing.

The second respondent was clearly implored by all the parties to submit a written report to the arbitrator.

A careful reading of the party's emails will confirm this.

There is therefore no basis on which the applicant can aver, that, despite advising the arbitrator that he preferred being heard verbally, his request was denied or ignored.

In fact, the evidence before the court is that the applicant submitted the most voluminous written submissions before the arbitrator.

On 23 January 2015, after hearing counsel and having gone through papers filed of record, and the parties having failed to settle the matter on the basis of recent precedent, I gave an order dismissing the appeal with costs and indicated that reasons thereof will follow in due course.

I now proceed to set them down below.

The facts of this matter are common cause:

By correspondence dated 13 March 2007, the respondent made a ruling, that, the appellant was obliged to withhold and remit non–resident tax on fees paid to an entity known as Centachrome, an agent based in Switzerland.

Centachrome was appointed “sub-agent” in an agreement entered into by and between the appellant (“producer”), the Minerals Marketing Corporation of Zimbabwe (MMCZ) (“marketing agent”) and Centachrome.

Centachrome was supposed to facilitate the selling of ferrochrome produced by the appellant, but sold through the Minerals Marketing Corporation of Zimbabwe (MMCZ) in terms of the Minerals Marketing Corporation of Zimbabwe Act [Chapter 21:04] which requires that all minerals mined in Zimbabwe are marketed by and through the MMCZ.

On 11 May 2007, the appellant wrote to the respondent objecting to the ruling. By letter dated 15 November 2007, the respondent disallowed the objection but reduced the penalty to 60% from the initial 100% it had stipulated.

Aggrieved by the decision of the respondent, the appellant noted an appeal to this Court challenging the decision of the respondent on grounds that may be summarised as follows:

(a) The appointment of Centachrome had the effect of making it an agent of the Minerals Marketing Corporation of Zimbabwe (MMCZ) and not an agent of the appellant.

(b) The appellant was not obliged to pay withholding non–resident tax since the money paid to Centachrome was commission and commission is not fees as defined in terms of the 17th Schedule of the Income Tax Act [Chapter 23:06].

(c) The money paid to Centachrome was not derived from a source within Zimbabwe as stipulated by the 17th Schedule of the Income Tax Act [Chapter 23:06]....,.

In so far as penalties are concerned, the appellant submitted, that, it acted in good faith and on the basis of legal advice, without the intention of evading any liability to tax, and that, accordingly, the respondent ought to have waived the penalties altogether and not merely reduced them by 40%.

However, the respondent maintained it had taken into account those mitigating factors in arriving at the partial reduction of the penalty, and that its decision was in line with previous cases of a similar nature.

Unfortunately, I was not referred to any authorities to justify interference with a discretion exercised by the respondent.

The facts, which are fairly straightforward and common cause in this matter, can safely be summarised as follows:

The applicant is a company duly registered and incorporated in terms of the laws of Zimbabwe. The respondent is a registered commercial bank with a number of branches in Zimbabwe.

The applicant runs two distinct corporate bank accounts with the respondent's Kwekwe branch. As of October 2007, the applicant's two accounts had an aggregate credit balance of forty-seven thousand seven hundred and thirty nine dollars and eighty six cents (US$47,739=86).

The applicant's accepted position is that it is a foreign investor company which is legally in Zimbabwe carrying out a specific purpose, viz, the refurbishment of the blast furnaces of a Zimbabwean Company called Zisco Steel.

The applicant maintained it was not involved in any “foreign exchange” activities.

In October 2007, the applicant's two corporate accounts were debited with an aggregate amount of forty seven thousand seven hundred and thirty nine dollars and eighty six cents (US$47,739=86) without its consent and approval.

The applicant engaged the respondent with a view to recovering its money, to no avail, hence the instant application.

The respondent has offered a two-pronged defence to the application filed by the applicant for the recovery of its money:

(i) Firstly, the respondent has contended, as a point in limine, that, it is improper for the applicant to file a Court Application to recover a debt that is due to it. The correct position is that the applicant ought to have instituted proceedings by way of summons, so the argument went.

(ii) The second point raised in limine is that the applicant has targeted the wrong respondent. It was contended, on behalf of the respondent, that, since the funds in issue are held by the Reserve Bank of Zimbabwe, it is against the Reserve Bank of Zimbabwe that this application should have been directed.

Intricably linked to the second point in limine is the argument, that, by debiting the applicant's corporate foreign currency account, the respondent was merely complying with a directive issued by the Reserve Bank of Zimbabwe to so act.

In elaboration, the respondent's position is that in October 2007, the respondent, together with all other Commercial Banks in Zimbabwe, were directed, by the Reserve Bank of Zimbabwe, to lodge all foreign currency accounts balances in respect of corporate and non-governmental organization accounts with the Reserve Bank of Zimbabwe and to maintain mirror accounts in its own books for purposes of keeping track with these accounts....,.

The agreed facts are fairly simple and straightforward in this matter:

The respondent, as a commercial banker, undertook to keep the applicant's money and pay it out to the applicant upon demand. The respondent failed to do so when called upon to do so by the applicant. The respondent claimed it had transferred the money into another third party's account....,.

I was not persuaded, at all, by the points in limine and it was for the above reasons that I had no hesitation, at the hearing, in ordering that the matter be heard on the merits.

The main thrust of the respondent's position is that it debited the applicant's account pursuant to a directive given by the Reserve Bank of Zimbabwe, and, reference was made to the Exchange Control Regulations of 1996 as the authority behind this directive and section 35 up to section 40 contained in SI109 of 1996 were relied upon as the specific sections which the Reserve Bank of Zimbabwe relied upon in literally ordering the expropriation of the applicant's deposits.

It will be noted, that, the legislature, in its wisdom, qualified the operations of the Exchange Control Regulations, S.I.109 of 1996 by making a specific provision of section 40(3) thereof which read as follows:

“40(3) Orders made under subsection 1 shall not have effect until they have been approved by the Minister and published in the Gazette.”

It appears to me such checks and balances were meant to guard against improper use of the Exchange Control Regulations, and, it follows, that, non-compliance with this mandatory requirement would render any directive unlawful.

It has not been demonstrated to me, by the respondent's counsel, that, the directive by the Reserve Bank of Zimbabwe was lawful or above board.

It occurs to me, that, given the special relationship that existed between the respondent and the applicant, the decision by the former, to interfere with the applicant's deposits, was not one that could have been taken lightly.

In my view, the onus was on the respondent to ascertain the lawfulness of the Reserve Bank of Zimbabwe's directive instead of blindly, or religiously, following the same. The respondent could have satisfied itself by simply relying on its Compliance Division within its institution or by simply seeking counsel's views before taking such a drastic action with the applicant's deposits.

Counsel for the respondent put up a spirited and persuasive argument in support of what she referred to as the predicament faced by the respondent pursuant to a directive given to it by the Reserve Bank of Zimbabwe which required all authorised dealers (respondent inclusive) to transfer to the Reserve Bank of Zimbabwe all corporate foreign currency account balances and to maintain a mirror account for tracking purposes.

In support of her position, counsel relied on the views of MW JONES and HC SCHOEMAN, An Introduction to South African Banking and Credit Law, who described the relationship between a banker and a customer in the following terms:

“…, the banker customer relationship is not based solely on contract, but, imposes many additional duties on banks and customers alike. These duties are established by banking practice and custom, legislation, and court decisions. The relationship between a bank and its customer can thus be described as a contract sui generis or a unique type of contract.”

Building on the views of the two authors, the respondent's counsel argued, that, the directive given by the Reserve Bank was decisive at the material time as the respondent could not have risked losing its banking licence by refusing to comply with the directive in question.

With respect, I am unable to agree with the simplistic interpretation of the relationship between the Bank (the respondent) and the customer (the applicant in the instant matter) by counsel. That interpretation is too narrow and dangerous. It is dangerous and risky in the banking business because it turns to depart from the legitimate expectations of the two contractual parties when they entered into a contract, a unique type of contract.

I take a very strong view, that, the respondent had a natural obligation thrust upon it to protect the applicant's deposits.

As already highlighted elsewhere in this judgment, that duty entailed, inter alia, verifying the legality or otherwise of the directive given by the Reserve Bank of Zimbabwe because the Reserve Bank of Zimbabwe was not privy to the contractual relationship between the applicant and the respondent.

I am extremely impressed by the view taken by their Lordships in the case of Attorney-General for Canada and Attorney-General for the Province of Quebec (and Connected Appeal); Attorney-General for Saskat-Chewan, Alberta and ManiToba 1946 AC p33 at 44 (Privy Council) 1946 AC 33 at 44 when they described the relationship between the bankers and customer in the following terms:

“Their Lordships cannot but think, that, the receipt of deposits and the repayment of the sums deposited to the depositors or their successors, as defined, is an essential part of the business of banking. The relationship between bankers and customer who pays money into the bank is stated in Foley v Hill (1) as 'the ordinary relation of debtor and creditor, with a super added obligation arising out of the custom of bankers to 'honour the customer's drafts'. No question of possession of or property in the deposit arises. The obligation is mutuum not commodatum. Once a deposit is made, there remains only a debt due from the banker to the customer.”

It is clear to me, and it must be the most logical conclusion, that, once money is placed in the custody of a banker, that banker must be held accountable to the depositor of that money. The banker must be able to repay the depositor upon demand.

It is as simple as it comes. It requires no complicated interpretation.

It therefore naturally follows, that, the respondent must account to the applicant of the deposits made to it by the applicant. To hold otherwise would be to create chaos in the banking sector. It would be to allow banks, like the respondent, to ride roughshod on innocent and unsuspecting customers, like the applicant, and would, in addition, severely undermine the assumed integrity of the banking sector.

The penalty which the respondent feared would have visited it, if it had not blindly followed the directive, was specifically provided for.

In terms of section 37 the Exchange Control Regulations, SI109 of 1996, the respondent, as an authorised dealer, was to be given an adequate opportunity to make representations if it felt it had an obligation to protect the deposits made by the applicant. Not only that, but, the Exchange Control Regulations further provided for the process of appeal by the respondent against any decision by the Reserve Bank of Zimbabwe.

It occurs to me, that, what the respondent did in this case was to blindly expropriate the applicant's deposits without due regard to the law and this was obviously ultra vires even the Constitution of this country.

In conclusion, I find that it is inevitably befitting that the respondent should be ordered to reimburse the monies due to the applicant without putting the applicant into further unnecessary cost of insisting that it joins the Reserve Bank of Zimbabwe in these proceedings for the simple reason, that, there was never any privy of contract between the applicant and the Reserve Bank of Zimbabwe.

It is up to the respondent to take appropriate action against the Reserve Bank of Zimbabwe if it so desires.

It was ironic, that, despite what appears to be reckless execution of its mandate by the respondent, in transferring the applicant's deposits to a third party's account without the consent and/or approval of the applicant, the respondent had the audacity to ask for costs on attorney-client scale against the applicant as its counsel argued for the dismissal of the claim.

I am convinced, that, the inverse must in fact be true.

The respondent has been stubborn in refusing to accede to the applicant's claim. The respondent took an extremely dangerous or casual approach in paying out the applicant's deposits to a third party without the approval and/or consent of the latter let alone before attempting to verify the lawfulness or otherwise of the Reserve Bank of Zimbabwe directive.

I believe the conduct exhibited by the respondent is deplorable and must be punished by an appropriate order for costs.

Accordingly, I grant the following order:

1. That, the respondent pays to the applicant US$38,843=88 and US$8,895=98 being monies unlawfully debited from the applicant's accounts, namely, Account number 8740064001800 and 8740064001801, respectively, totalling to US$47,739=86 (forty seven thousand seven hundred and thirty nine dollars and eighty six cents) within seven (7) days of this order.

2. The respondent be and is hereby ordered to pay interest at the prescribed rate from the date of this application to date of full payment.

3. The respondent be and is hereby ordered to pay costs of suit at a higher scale.

The Commissioner...,. raises assessments against which a dissatisfied taxpayer objects and appeals.

Such an objection and appeal challenges the assessment raised by the Commissioner and thus falls squarely into the provisions of section 63 of the Income Tax Act....,.

I maintain, that, the onus remains on the taxpayer to establish that the..., opinions of the Commissioner were wrong.

In paragraph 51 of his written submissions, counsel for the appellant conceded, that, the Commissioner was authorised, by section 64(2) as read with paragraph (m) to the Eleventh Schedule of the Income Tax Act to increase the level of penalties imposed during an assessment in his determination of an objection.

In the present matter, the penalties were increased from 90% to 100%.

In terms of section 46(6) of the Income Tax Act, the Commissioner has discretion to remit or waive additional penalty where the taxpayer did not intend to evade the payment of the tax due.

Where the intention to evade, in any one of the three alternatives propounded in ITC 1577, 56 SATC 236 of direct intent, awareness of certainty, and awareness of possibility is evinced, neither the Commissioner, in the first instance, nor this court, as a court of revision, can, on an appeal in the wider sense, remit or waive the additional tax to anything other than 100%: see the remarks of SQUIRES J in ITC No.1334 (1981) 43 SATC 98 (Z)…, and of SMITH J in ITC 1631 (1997) 60 SATC 63 (Z)…,.

Counsel for the appellant urged me to apply the principles that I set out in PL Mines v Zimbabwe Revenue Authority HH466-15.

In imposing the penalty, the Commissioner and the Appeal Court are obliged to consider the triad of the offender, the offence, and the interests of society.

Before dealing with each specific transaction for which penalty was imposed, I do take cognisant of the specific factors pertaining to the appellant.

It co-operated with the respondent in some and all instances. It was a good corporate citizen, which, until the investigation under consideration took place, had complied with its tax obligations. It was an employer which held the interests of its workforce at heart. It served the country by bringing some modicum of foreign currency into the country when the local economic environment was bleak.

The offence of tax avoidance was described by MACDONALD JP in Commissioner of Taxes v F 1976 (1) RLR 106 (A), in rather strong language, as an evil.

Of course, taxpayers are allowed to employ legitimate means to lessen their tax burden and these do not invite public opprobrium. Tax avoidance certainly places the burden of taxation on other taxpayers to the exclusion of the offender.

Courts emphasize both personal and general deterrence in imposing suitable penalties.

As will appear in my assessment of each offending transaction, the appellant, and its tax advisers, deliberately implemented an opaque system of tax avoidance and reduction with the intention of evading the payment of the correct tax due. This course of action obviously raises the moral turpitude of the appellant and results in the imposition of the maximum penalty permitted by law.

The interests of society require that taxpayers abide by the law and pay their fair share of taxes. Those who deliberately break the law must feel the pinch.

I have these factors in mind as I consider each offending transaction and assess the suitable penalty.

Penalties were imposed in respect of the following transactions:

In each of the four financial statements in question, the appellant made provision for accrued leave pay due to its staff, and, in 2010 and 2011 a provision for security.

Each provision was claimed as an expense incurred under the general deduction formula, section 15(2)(a) of the Income Tax Act in the year in which it was made, but, was not reversed in the following tax year.

The appellant conceded the failure to reverse these provisions in each of the four years of assessment.

The sole witness for the appellant averred, that, this was due to a bookkeeping oversight for which it did not evince any intention to mislead the respondent or seek to obtain a tax advantage.

The appellant ended up erroneously claiming excess deductions under this head of US$10,520 in 2009; US$28,982 in 2010; US$17,416 in 2011; and US$312 in 2012, which were added back to income, by consent, during the investigations and included in the amended assessments….,.

The respondent treated the non-reversal as a deliberate attempt to evade the payment of the correct tax and imposed the penalty of 100%. The appellant failed to show how such an error could have taken place consecutively in each year.

It seems to me, that, the respondent was justified in treating these failures as deliberate attempts motivated by the desire to reduce the appellant's tax liability.

The imposition of a penalty of 100% in these circumstances was justified.

This was in respect of rentals in the sum of US$18,783 owed by a tenant for the appellant's property in Mutare for the 2011 calendar year. The claim in the summons and declaration, issued on 22 May 2012, was in respect of arrear rentals in the sum of US$2,000 per month for the period 1 June 2010 to 31 December 2011, eviction, and holding over damages from 1 January 2012 and other consequential relief…,.

However, an e-mail from the appellant, of 10 October 2013, indicated that the tenant paid all the rentals at the rate of US$2,300 per month during 2010 but defaulted in 2011.

The appellant included the unpaid rentals in its 2011 income but reversed it all at the end of that calendar year. The tenant commenced payment of reduced rentals of US$1,500 after the issue of summons.

In BT (Pvt) Ltd v Zimbabwe Revenue Authority HH617-14…, I set out the three requirements that a taxpayer is required to prove, on a balance of probabilities, in respect of a bad debt. An application of these requisite elements show that the amount claimed by the appellant was due and payable.

The financial statements for 2011 were prepared on 14 March 2012, the date on which the debt was declared to be bad.

It is clear to me, that, by that date, the amount was unlikely to have been recovered at the end of the 2011 financial year. The Commissioner must also have been satisfied that it was a bad debt. The amount had been included in the taxable income of the taxpayer in that year of assessment.

In my view, the amount should have been deducted from the appellant's income.

For undisclosed reasons, the appellant conceded that it wrongly deducted the amount and counsel for the appellant correctly found himself bound by that concession that the appellant knowingly and voluntarily made.

Clearly, the imposition of a penalty of any nature, let alone of 100%, was not justified.

In the exercise of my discretion, I will direct that the penalty imposed in respect of the bad debt be discharged in full.

This was attributed to a bookkeeping error. It was deducted in the 2011 tax computation as an expense.

Again, like in the issue in respect of leave pay and security provisions, the appellant failed to indicate how such “an error” could occur in the face of the accounting skills that were at its disposal.

The respondent was justified in treating the purported error as evincing a deliberate intention to reduce the appellant's taxable income for which he had no choice but to impose a 100% penalty.

The appellant paid all the statutory salaries and wages and allowances of some of its drivers who drove the related party's vehicles that did not form party of the leased equipment without any form of reimbursement from the related party.

The appellant always claimed these drivers wages as expenses against income. The appellant admitted that it had been doing this for years. This was only discovered during the investigation.

On the advice of its South African based accountants, the appellant agreed that 50.28% of the total wage bill be disallowed….,. The agreed amounts that were added back to income in respect of each tax year…, were US$90,908=17 for 2009; US$158,374=08 for 2010; US$170,616=13 for 2011; and US$190,669=93 for 2012.

It was apparent that the appellant did not incur the expense in relation to these drivers.

In terms of the agreements, the appellant leased only its equipment, and not the drivers, to the related party. All the 110 drivers were not rendering any service to or on behalf of the appellant but were doing so to the related party.

In my view, there was no legal justification for the appellant to deduct the wage bill of all the drivers who were driving both the appellant's rented equipment and the related party's equipment.

The appellant's case, throughout these proceedings, has always been that it was not in the business of cross-border transportation. It ill behoves the appellant to now claim that all the drivers involved in the cross border haulage business of the related party were actually engaged for the purpose of its own trade or in the production of its income.

The pleadings and evidence showed that its income, in respect of this equipment, was derived from the rental agreements. The salaries of these drivers were the responsibility of the related party.

I fail to discern how any self-respecting internal and external accountants of the appellant would allow such a practice to prevail for as long as it did without batting an eyelid. The only reason it prevailed was because the appellant and its erstwhile accountants and tax advisors deliberately intended to evade the payment of the appropriate tax due to the Zimbabwean fiscus.

The penalty imposed, of 100%, was most appropriate.

The appellant conceded, that, some level of additional tax, less than the 100% penalty imposed, was appropriate.

The appellant was uncooperative.

I have already found, that, the transactions infringed the provisions of section 98 of the Income Tax Act. The appellant deliberately intended to evade the payment of tax due to the respondent.

A penalty of 100% was and remains most appropriate.

During the investigation, the appellant failed to reconcile bank deposits of US$100=25 for 2009; US$0=31 for 2010; and US$87=47 for 2012.

These amounts were omitted from the taxable income of the appellant and were added back, by consent, in the amended assessments.

The appellant failed to account for the anomaly.

The issue is not how insignificant they are, but the principle involved. This is because the logical conclusion such a contention would be that payment of a 100% penalty on these insignificant amounts would not place any undue burden on the appellant.

The failure to explain the discrepancy does demonstrate a pattern of tax avoidance or reduction on the part of the appellant that was motivated by the intention to evade the payment of the correct amount of tax due.

The imposition of a penalty of 100% on these insignificant amounts was and remains most appropriate.

This was an urgent chamber application. At the end of the hearing, I dismissed it with costs on a legal practitioner-and-client scale. I deprecated the conduct of the applicant's legal practitioners.

The purported urgent chamber application was not only bad in many respects, it was incurably bad.

What I was particularly concerned with were the patent falsehoods in the applicant's papers.

Furthermore, there was an apparent disconnection between the order sought, the facts laid out in support thereof, and the allegations in the certificate of urgency.

Here are the details....,.

The applicant's draft order was couched thus:

“TERMS OF FINAL ORDER SOUGHT

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

1. That, the 1st and 2nd Respondents be and are hereby interdicted from interfering with Applicant's operations on the Remainder of the Farm Ordar situate in the district of Salisbury pending determination of an application seeking the setting aside of title transfer under Deed No.2807/2015;

2. That, the 1st Respondent and 2nd Respondents (sic) shall bear the costs of this application on a legal practitioner and client scale.

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

1. That, the 1st Respondent be and is hereby interdicted from harassing Applicant's members and/or beneficiaries in any way whatsoever in respect of the Remainder of the Farm Odar immediately upon service of this order.”

The background to this case, in summary, and in my own words, as I understood it, and avoiding much of the contentious stuff, was that the applicant was a consortium or joint venture of some 56 members, comprising, among many others, companies, and State enterprises.

The first respondent was a private company fronted by one Phillip Chiyangwa (“Chiyangwa”).

The second respondent represented the Government.

It was said, in 2006, the Government, in terms of two written agreements, allocated to the applicant some 605,8092 hectares of a property known as Ordar Farm (“the property”).

The allocation was so that the consortium could develop, at its own cost, housing units for its members.

One important feature of the joint venture agreement was that the consortium would, through the Government, pay compensation to the former owner of the land at levels pegged by Government.

This former owner was identified in the agreements as the Zimbabwe Tobacco Association (“ZTA”).

Another feature of the agreements was that the parties to the joint venture would establish a partnership whose members contributions to the capital costs and whose entitlement to the individual land units would be in the proportions as set out.

The day to day management of the partnership would be entrusted to a committee of twelve persons appointed by the partners.

In due course, the Government would pass title to the owners of the individual units of land.

The applicant's case before me, again in my own words, and largely staying clear of the hotly contested facts, was that it had kept its side of the agreement.

Among other things, the relevant developmental permits had been put in place. The property had substantially been developed.

Yet, the Government had blatantly reneged on virtually every other undertaking that it had made to the applicant.

Among other things, the Government had surreptitiously surrendered the property to Phillip Chiyangwa, through his company, the first respondent herein.

A week before the application, the Government had, nicodemously, executed a Deed of Grant over the property in favour of Phillip Chiyangwa's company.

The applicant's members were now at Phillip Chiyangwa's mercy.

They were facing constant harassment from him as he relentlessly pursued compensation from them in return for individual title to the individual units occupied by them in terms of the agreements with the Government.

He was busy flighting malicious adverts in the media and making malicious reports to the police against the applicant's Management Committee.

The applicant did not recognise Phillip Chiyangwa or his alleged rights or title to the property.

In separate proceedings before this court, the applicant said it was challenging Government's actions. In particular, the applicant wanted the title to Phillip Chiyangwa's company reversed.

So. the applicant's case before me was that pending determination of the main case, it wanted a temporary interdict.

It was the nature of that temporary interdict that was the bone of contention.

Prima facie, the applicant had made out a case of double-dealing by the Government.

The Government's conduct was put into serious question.

It had acquired the property; it had allocated it to the applicant; the applicant had expended vast sums of money in line with the agreements; the applicant's members anticipated getting title to the individual units of land over which they had taken occupation, or were in the process of doing so; the level of compensation was, or had to be assessed by the Government.

Then, Phillip Chiyangwa zooms from nowhere, brandishing a title deed issued by the same Government - over the same property.

And the same Government was now tossing the applicant's members to Phillip Chiyangwa to whom payment of the compensation had to be made.

Thus, the Government was in the dock. It owed an explanation.

It was its secret execution of the title deed in favour of Phillip Chiyangwa's company that had prompted the applicant to approach the court on an urgent basis.

That, basically, was the applicant's case.

Unfortunately, it was not the one before me.

It was the case pending before this court for determination at another time and by another judge.

The case before me, as summarised in the interim relief sought, was that I should interdict Phillip Chiyangwa's company from “…, harassing Applicant's members and/or beneficiaries in any way whatsoever….,.”

The applicant made an application seeking the following order:

“IT IS HEREBY ORDERED THAT:

1. The cancellation of the Memorandum of Agreement of Sale of Stand No.11234 Darlington Extension, Mutare Township, measuring approximately 1,1759 hectares, entered into by the City of Mutare and Washington Jekanyika, jointly together with Cheneso Muvandi, is a nullity, of no force and effect.

2. The Memorandum of Agreement of Sale of Stand No.11234 Darlington Extension, Mutare Township, measuring approximately 1,1759 hectares, entered into by the City of Mutare and Washington Jekanyika, jointly together with Cheneso Muvandi, is declared valid.

3. The 1st respondent shall pay costs of suit on a higher scale of attorney and client.”

The application is opposed by the first respondent, the City of Mutare.

On 20 July 2016, Clayhill Trading (Private) Limited entered into an agreement of sale of a piece of land, namely, Stand No.11234 Darlington Extension, Mutare Township, measuring 1,1759 hectares, with the applicant and her late husband, Washington Jekanyika.

The purchase price was US$62,000.

Clause 3 of the agreement of sale stipulated the payment plan: US$20,000 was payable against the signing of the agreement; US$20,000 was payable three (3) weeks after the signing of cession papers; the balance of US$22,000 was going to be liquidated through monthly instalments of US$4,000 commencing 30 September 2016.

The preamble to the memorandum of agreement of sale between the seller and buyer provided, that, the buyers had to demand transfer from the Municipality of Mutare of such immovable property so purchased by the buyer; however, the seller was responsible for the payment of all cession costs, including the City Council's cession fees and capital gain tax, if any (clause 8 of the agreement of sale).

During the same year, 2016, the first respondent, City of Mutare, entered into an agreement of sale with the applicant and her husband.

Under clause 2 of this agreement, the purchase price “was the intrinsic value paid by Clayhill (Pvt) Ltd.”

Clause 14 thereto stipulates, that, the purchasers shall demand transfer of the Stand from the seller upon completion on the main building.

The agreement of sale does not state any conditions for breach or grounds for cancellation of the agreement of sale.

On 24 September 2019, the City of Mutare wrote a letter to the applicant's legal practitioners indicating that the agreement of sale between itself, the applicant, and her husband had been cancelled.

The first respondent alleged in the letter the applicant's late husband, Mr W. Jekanyika had misrepresented to the City Council that he had fully paid the purchase price of the property to the developer, Clayhill and that Clayhill had since cancelled the first agreement of sale.

As a result of the “fraud” committed by the purchasers, the first respondent was cancelling the agreement of sale.

A lot of correspondences were exchanged between the City Council's legal practitioners and the purchasers lawyers but nothing came out of the correspondences until the applicant approached this court.

Clayhill (Pvt) Ltd had since issued summons against the purchasers claiming an amount of US$28,000 for arrear payments.

It is important to note, that, there is no allegation nor prayer by Clayhill for the cancellation of the agreement of sale or a misrepresentation on the part of the applicant and her late husband.

The first respondent, in its opposing papers, contends, that, the applicant's application should fail for failing to join Clayhill Trading (Private) Limited as a party to the proceedings.

As already addressed in the foregoing above, the first respondent went on to state, that, the applicant and her husband breached the terms of their agreement with Clayhill by failing to pay the full purchase price and that led to the cancellation of the agreement of sale by letter of 21 November 2016 written by Clayhill Property Development: hence, the agreement of sale between City of Mutare and the applicant and her husband was a nullity, because, at the time it was drafted, the City Council did not hold any rights, interest or title in the Stand; instead, such rights were vested with Clayhill; and, as such, the cancellation of the agreement was above board; and, before the cancellation of that agreement, the applicant's legal practitioners were fully appraised of the whole scenario of the events.

To the respondent, the relief being sought by the applicant has no basis.

The second respondent is an estate of the late Washington Jekanyika. The executor had notified the Registrar of the court that he will abide by the decision of this court.

Both the applicant and first respondent had raised preliminary points in their respective papers; and, I directed the legal practitioners to holistically address the court by commencing with points in limine and then the main issues....,.

On the merits of the application, the following issues are uncontroverted, in my respectful view:

(1) The applicant and her husband, the late Washington Jekanyika, purchased Stand No.11234 Darlington Extension, Mutare for $62,000; paid cash of $20,000 upon signing of the agreement of sale; and, from the calculation between the cost price and balance being claimed on the summons alluded to above, it is clear that the applicant paid another instalment of $14,000, to make a total of US$34,000.

(2) At the agreement of sale between Clayhill Trading (Private) Limited and the applicant, another agreement of sale was concluded between City of Mutare, the applicant, and the late W. Jekanyika.

(3) The applicant took occupation of the purchased Stand and started to develop it.

(4) The selling company is suing the applicant for an amount of $28,000 as balance outstanding. The company (Clayhill Trading (Private) Limited) is not praying for the cancellation of the agreement of sale on grounds of fraudulent misrepresentation nor for the cancellation of sale between the City of Mutare and the purchaser.

(5) In terms of the agreement of sale concluded between the applicant and City of Mutare (first respondent) there is virtually no clause pertaining to which conditions would justify cancellation of the contract concluded between the parties. Though not addressed by the parties, it appears the first respondent was paid by the developer before the developer (Clayhill Trading (Private) Limited) was allowed to offer such Stands for sale to the public.

(6) City of Mutare remained the title holder, both for purposes of cession or transfer; that is why the second agreement of sale, between the applicant and the first respondent, had to be drafted.

Transfer of ownership between City of Mutare and the applicant would only be processed after the property had been fully developed.

All these aspects are common cause and this court asked the first respondent its basis for opposing the application.

If Clayhill Trading (Private) Limited is fully paid the balance, it means the matter between it and the applicant would have been resolved; and, by necessary implication, the subject Stand has to remain with the applicant and the estate of her husband.

After going through the opposing papers filed on behalf of the first respondent, it is apparent, that, the first respondent, mero motu, proceeded to cancel the agreement of sale it had entered into with the purchaser without having heard from them.

That was not proper: see See U-Tow Trailers (Pvt) Ltd v City of Harare and Another 2009 (2) ZLR 259 (H) per MAKARAU JP…,.

As long as the administrative authority is involved in making such decisions, it is required to comply with the dictates of administrative justice; that requirement applies even when the first respondent was acting in terms of a contract: see U-Tow Trailers (Pvt) Ltd v City of Harare and Another 2009 (2) ZLR 259 (H)…,.

The first respondent was duty bound to hear the applicant and her husband first and even ask them to reduce their response in writing.

No such evidence was produced by the first respondent.

Hence, cancellation of the agreement was arbitrary and cannot be allowed to stand.

This is an application for the review of the second respondent's ruling dismissing the applicants exception to criminal charges preferred against them in the court of the Provincial Magistrate at Harare under case number CRB P9114-5/2018. The ruling was handed down on the 19th of November 2018.

The first applicant is Intratrek Zimbabwe (Pvt) Ltd represented by the second applicant, Wicknel Munodaani Chivayo, as its Managing Director.

The applicants were arraigned before the Magistrates Court sitting at Harare for contravening section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] - Fraud (2 counts); contravening section 5(1)(a)(ii) of the Exchange Control Act [Chapter 22:05] as read with section 4.1.18 of the Foreign Exchange Guidelines to authorised dealers, ECDI of 2009; and contravening section 5(1)(a)(ii) of the Exchange Control Act [Chapter 22:05] as read with Exchange Control Authority GR1776 of 26 April 2016.

The allegations, as appearing on the outline of the State case, were that -

“…,.

4. On the 23rd of October 2015, Zimbabwe Power Company (ZPC) signed an Engineering, Procurement and Construction Contract (EPC) with accused (1) being represented by accused (2) for the construction of 100-Megawatt Solar Power Generation Plant in Gwanda. The performance/scope of the work was guided by schedule 11 of the contract.

5. Clause 2(a) and (b) of the terms and conditions of the contract under schedule 11 stated, that, the employer's advance for feasibility study and pre-commencement activities was to be considered part of the contract advance payment. A Bank guarantee was to be provided against all payments made by ZPC towards the project implementation.

6. Subsequently, between 4 December 2015 and 22 January 2016, the accused submitted two separate invoices amounting to US$803,765=82 and US$1,631,888=81 dated 9 November 2015 and 11 January 2016, respectively, on the pretext of feasibility study implementation.

ZPC'S Finance Director, Hubert Chiwara, acted upon the misrepresentation and released the full payment of US$2,435,654 in 9 different instalments, without the requisite bank guarantee, between 4 December 2015 and 22 January 2016 on the understanding that Shanghai Electric Power Design Institute Co. Ltd was going to carry out the feasibility study.

The payments were made from ZPC'S Stanbic Bank account numbers…, and Stanbic Bank…, into accused (1)'s CBZ bank account number…,.

7. However, ZPC Technical Director, Robson Chikuri, ZPC Projects Manager, Cleopas Fambi, and the suspended ZPC Managing Director, Noah Gwariro, indicated, that, they never met sub-contractor, Shanghai Electric Power Design Institute Co. Ltd during the alleged study period. There also no record of sub-contractor's representative entering Zimbabwe during the period in question.

8. Again, between 15 February 2016 and 25 April 2016, the accused submitted 3 invoices of US$1,219,476=80 each supported by payment release certificates; being advance payment claims, purportedly for the implementation of the following works -

(i) Site establishment (basic ablutions, communication network, temporary housing, preliminary foundation for 20-megawatt power plant and water citing and borehole drilling and storage).

(ii) Access roads.

(iii) Ground clearing.

9. Similarly, Hubert Chiwara acted upon the misrepresentation and released a total advance payment of US$3,188,476=80 on 12 different instalments, without bank guarantee, into the same bank account highlighted above.

10. On 26 April 2016, Hubert Chiwara requested the accused to provide a schedule of commitment in respect of funds released by ZPC towards the implementation of the project. The accused, again, through his Company Secretary, K. Makoni, misrepresented to the Finance Director, that, a total of US$1,960,125=40 had been paid to subcontractors. The sub-contractors distanced themselves from the invoices submitted by accused.

11. The paper trail indicated, that, accused used the funds meant for feasibility study and pre-commencement works for his own person benefit by diverting them into various individual and companies who were not involved in the intended activities for which the pre-funding was intended for. Investigations established, that, the funds were used to purchase vehicles; air tickets for the girls stranded in Kuwait; school fees; settlement of civil suits.

12. Further, the accused loaded a total of US$684,150 into five different VISA cards, purportedly for the importation of earthmoving equipment from Pietznack Plant and Earth Moving Service, a company resident in Dallas in the United States of America.

13. The accused person entered into a recurring fees agreement with Pietznacle Plant & Earth moving services company based in Dallas, United States of America for the importation of earth moving equipment without seeking prior approval from Exchange Control Authority, contrary to the provisions of the said Act.

14. In violation of the Exchange Control Act, the Accused persons did not clear, with Exchange Authority, through CDI forms, within 90 days as required by the said Act.

15. The offence came to light after the ZPC Board, through its Chairperson, Engineer Stanley Kazhanje, who discovered that the payments were made without bank guarantee and he reported the matter to the police, through his letter dated 18 December 2017, for investigations.

16. ZPC suffered a total prejudice of US$5,624,130=80 and nothing was recovered.”

Upon arraignment, the applicants pleaded and excepted to the charges in terms of section 171(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] on the basis, that, the facts do not disclose an offence.

The exception was contested by the State.

On the 19th of November 2018, the court a quo dismissed the application for exception.

Dissatisfied with the court a quo's ruling dismissing the application for exception, the applicants approached this Honourable Court with the present application.

The applicants also filed an urgent chamber application for stay of criminal proceedings pending the determination of the present review application.

The urgent chamber application was filed under case number HC11205/18.

The urgent chamber application was partially dismissed on the merits, on 31 December 2018, under case number HH849-18, by MUSAKWA J, who ordered that the criminal trial had been suspended only in respect of the third Count.

Consequently, the applicants are currently undergoing trial in the Magistrates Court in respect of the other counts.

The application for review is opposed by the State.

The applicants have approached this Honourable Court in terms of section 26 as read with section 27 of the High Court Act [Chapter 7:06]. Part V of the High Court Act [Chapter 7:06] provides for powers of the High Court on review. Section 26 provides for the High Court's power to review proceedings and decisions of inferior courts. There are three grounds on which an application for review of criminal proceedings can be brought to the High Court in terms of section 27(1) of the High Court Act [Chapter 7:06]. These are -

(a) Absence of jurisdiction on the part of the court or authority concerned;

(b) Interest in the cause, bias, or malice on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case may be; and

(c) Gross irregularity in the proceedings or decision.

In casu, the applicants raise one major ground of review. It is captured on record p1 as -

“The second respondent's decision is grossly unreasonable and patently contrary to law such that no reasonable judicial officer who had applied his mind to the facts would have reached the same decision.”

The parties agree on the law applicable in an application of this nature.

The remedy that the applicants seek is that -

“1. The second respondent's ruling, of 19 November 2018, in case number CRB P9114-5/18 be and is hereby set aside.

2. The following is substituted in its place:

'In the result, the exception succeeds. The charges be and are hereby quashed. Consequent to the accused's plea, both accused be and are hereby acquitted.'”...,.

In reviewing the decision of the court a quo, and having found that the court a quo did not deal with the actual basis of the exception, the court is now at large to decide whether the facts disclose or support the criminal offences/charges the applicants are facing or not.

The starting points are paragraphs 4 and 5 of the Outline of the State Case which contain the full facts pertaining to the charges the applicants are facing. They read as follows -

“4. On 23 October 2015, ZPC signed an Engineering, Procurement and Construction Contract (EPC) with accused (1) being represented by accused (2) for the construction of 100-Megawatt Solar Power Generation Plant in Gwanda. The performance/scope of the work was guided by schedule 11 of the contract.

5. Clause 2(a) and (b) of the terms and conditions of the contract, under schedule 11, stated that the employer's advance for feasibility study and pre-commencement activities was to be considered part of the contract advance payment. A bank guarantee was to be provided against all payments made by ZPC towards the project implementation.”

I shall now turn to the nature of the exception to the charges and facts preferred against the applicants in the court a quo.

The exceptions were taken on the basis, that, even if the facts which are alleged in the charges and the outline of the State's case are proven, no criminal offence would have been established.

I say so because, the reading of the whole Outline of the State Case shows, that, this is purely a civil rather than a criminal matter. It therefore amounts to a futile enterprise if the trial were to proceed as I will demonstrate below....,.

I now turn to address the prospects of success of the exception filed on behalf of the accused persons on the merits. I shall not repeat the terms of each of the charges and facts for brevity.

The first two charges constitute of allegations that the accused persons committed fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The said section provides:

“Any person who makes a misrepresentation –

(a) Intending to deceive another person or realising that there is a real risk or possibility of deceiving another person; and

(b) Intending to cause another person to act upon the misrepresentation to his or her prejudice, or realizing that there is a real risk or possibility that another person may act upon the misrepresentation to his or her prejudice;
shall be guilty of fraud if the misrepresentation causes actual prejudice to another person or is potentially prejudicial to another person…,."

The essential elements for the charge of fraud are therefore -

(a) The existence of a misrepresentation;

(b) The existence of an intention to deceive or realisation of the risk or possibility of deception;

(c) The intention to cause another person to rely upon the misrepresentation to their prejudice or the realisation that the possibility of reliance on the misrepresentation exists; and

(d) Causation of prejudice or potential prejudice.

These requirements are confirmed in the judgment relied upon by the State, to a large extent, the judgment in S v Chikukwa HH813-16.

The intention to deceive must exist at the time that the misrepresentation is made.

In this case, such intention must be alleged to have existed on each of the dates on which invoices were presented to the Zimbabwe Power Company (ZPC) for payment. The non-existence of such intention immediately becomes apparent if one considers, that, the relationship between the parties was regulated by an Engineering Procurement and Construction Contract (EPC) which authorised payment before works had been done.

All payments made by the Zimbabwe Power Company (ZPC) were advance payments. They were authorised by the contractual document. The intention by both parties, as expressed in the contract, was that work would be done after the payments.

That negates the intention on the part of the accused persons to cause any prejudice to the Zimbabwe Power Company (ZPC).

Any prejudice which may be alleged to have fallen upon the Zimbabwe Power Company (ZPC) or may potentially fall upon it was contemplated by the parties at the time of entering the contract and mitigatory measures were taken to guard against such prejudice.

In each case, therefore, a performance bond was required to have been supplied before payments were made.

The fact that it is alleged, that, no performance bonds had been supplied at the time of the making of some of the payments does not mean that there was any fraud.

The parties contemplated the possibility of breach of the contract by non-performance of the first accused person and took appropriate mitigatory measures. The non-implementation of the mitigatory measures can only be a breach of the contract if established.

In fact, the loss, in that event, would have been caused not by the malperformance of the contract but by the negligence of the Zimbabwe Power Company (ZPC) in paying where the contract provided that payments should have been made only when the performance bond or an advance payment guarantee was in place.

Such loss is not the loss or prejudice contemplated in terms of section 136 of the Criminal Law (Codification and Reform) Act.

The State also contends, that, the Public Procurement and Disposal of Public Assets Act [Chapter 22:23] does not apply to the facts because it was not in existence when the contract between the parties was concluded.

The Public Procurement and Disposal of Public Assets Act came into effect on 1 January 2018.

The facts in the present matter took place from about the year 2015 when the contract was entered into.

Section 103 of the Public Procurement and Disposal of Public Assets Act provides, that, a procurement entity may apply to the Procurement Regulatory Authority of Zimbabwe, established in terms of the Act, to proceed with procurement under the new Act, or, alternatively, the Authority may direct a procurement entity to proceed under the new Act.

All procurement proceedings which were pending at the time the new Act came into force must therefore be concluded under the old Act.

The reliance by the accused persons on the new Act, and its specific clauses for dispute resolution, will therefore not likely succeed.

However, even in terms of the old Procurement Act, there was no criminalisation of non-performance on procurement contracts.

In addition, and even more telling, is the fact, that, the present matter is contractual.

It is one based on an Engineering Procurement and Construction Contract (EPC) Contract.

It is therefore supposed to be resolved contractually.

The law is that whenever a matter is contractual, and where the contract thereto is capable of providing effective redress, the parties wishes concerning dispute resolution, as captured in the contract, must be resorted to.

No room for extension of liability under a different remedial regime, like criminal law, must be allowed.

Put differently, the rule is that where the matter is entirely contractual, and where the contractual remedies provide sufficient redress, public policy dictates, that, contractants pursue their remedies contractually.

The complainant is a private company owned by the State. Like the accused persons, it must have the same rights and liabilities.

The law is that whenever the State or its affiliate enters into a contract, it must be treated equally as the other party to the contract. It must find its remedies and/or incur its liabilities in terms of the contract. The contract must be the beginning and the end in resolving whatever dispute that might arise between the parties - Minister of Natural Resources & Tourism v F C Hume (Pvt) Ltd 1989 (3) ZLR 55 (SC).

Intrinsically related to the above, the State stands in the same position as any other private commercial player, subject to the statutory regulation of its commercial activity; see GCO QUINOT, State Commercial Activity, Juta & Co 2009…,.

The ordinary principles of contract should therefore ordinarily apply.

In addition, the common law and statutory principles of administrative justice bind the State, which is required to adhere to fairness, transparency, integrity, and, amongst other things in the administration of public power; see PHOEBE BOLTON, The Law of Government Procurement in South Africa, Lexis Nexis, 2017 reprint…,.

This is because of the source of the power exercised despite the description of the complainant as a private limited company (GCO QUINOT, State Commercial Activity, Juta & Co 2009…,. quoting the leading case of Mustapha v Receiver, Litchenburg on the classification approach; PHOEBE BOLTON, The Law of Government Procurement in South Africa, Lexis Nexis, 2017 reprint…,.

The case of State v Lovemore Kurotwi & Anor HH270-16 is instructive.

It establishes, that, as a matter of law, where Government, as a contracting party, freely enters into a written contract, any subsequent negation of the terms thereof by the State depicts lack of candour on its part.

In verbatim, BHUNU J…, had this to say in the cyclostyled judgement:

“Both Government and ZMDC cannot be heard to complain that they were duped into signing the contractual document under the mistaken belief that BSGR was standing as guarantor for Core Mining when the contractual document makes no mention of BSGR at all.

It is also inconceivable that both Government and ZMDC could have believed that BSGR was the guarantor for Core Mining when Subithry Naidoo and Licht Yehuda signed the contractual document in their personal capacities as guarantors without any reference to BSGR. Considering that the contractual document was subjected to scrutiny by Government lawyers before execution it is highly unlikely and not in the least probable that they too could have been mistaken that BSGR were the guarantors for Core Mining when the written contract stipulated in clear and unambiguous terms that Subithry Naidoo and Licht Yehuda were the guarantors.

It is wholly unbelievable that Government, ZMDC, and Marange Resources could have genuinely believed that BSGR was standing as guarantor for Core Mining with the full knowledge that they had not accepted its counter offer. It therefore boggles the mind how all these three eminent entities, backed up by proficient lawyers, could have entertained the idea of contracting with BSGR without the contractual basics of offer and acceptance.”

From the foregoing, it is clear that Government entities are taken to have carried out all due diligence on the competencies of the contractor before entering into a contract with them. By equal measure, the complainant is considered to have been satisfied by the technical and financial capacity of the accused persons together with their partners.

It is improbable, that, the State would consider itself a victim of fraud when it was a willing participant in entering into the Engineering Procurement and Construction Contract (EPC) with the accused persons.

Even in cases involving private entities alone, Criminal Law has never been recognised as a competent remedy to compel a party to a contract to perform in terms thereof.

In the case of Brian Tarisai Kambasha & Anor v The State HH36-17, the court took occasion to remind the parties, that, their relationship was contractual, and, in instances where money was exchanged in the anticipation of performance of certain agreed contractual obligations, the relationship becomes civil, in the form of a debtor and a creditor.

In the above case, the accused persons were convicted of theft of trust property in terms of section 113(2)(d) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to 5 years in prison at the Harare Magistrates Court.

The charges arose from a contractual undertaking, in terms of which the accused persons undertook to erect a 100KVA solar plant at the complainant's farm. The complainant's discontent arose when he became frustrated with the accused's failure to complete the installation of the solar plant within the time limits agreed by the parties in a written and signed memorandum of agreement. In pursuance of the first phase of the agreement, the complainant advanced the sum of US$50,125 to the accused and they cleared the ground and erected metal poles, but failed to put into place the solar panels to complete the project.

According to the accused, the work which they did constitutes 80% of the project. The complainant estimated the value of the work done to have been US$3,000 of work. After the poles had been erected, the accused persons stopped work. They said it was because the US$50,125 had been used up due to a failure to get a 60% discount promised to the complainant upon entering into the agreement. On the other hand, the complainant's concerns, when he reported the accused to the police, were that they had downed tools because they had converted the funds to their own use.

This case is almost at all fours with the matter in question.

In determining this case, on appeal, MUSHORE J sitting with HUNGWE J were correct in the reasoning that:

“The State failed to establish a prima facie case at the closure of the State case and the [Accuseds'] application for absolution from the instance should have been granted. It is our considered view, that, the essential elements for the offence of theft of trust property, as cited and appearing in section 113(2)(d), were not met. The complainant should have proceeded with a civil claim for breach of contract and sued for either specific performance or for cancellation and damages. The facts of this case fall within the exceptions which are expressly provided for in section 112 of the Criminal (Codification and Reform) Act [Chapter 9:23].”…,.

This case clearly sets out similar procedure which the complainant in the current case, the Zimbabwe Power Company (ZPC), ought to have followed.

By reason and standard of this case, it is correct to propound, that, the criminal proceedings against the accused persons are unfounded, misled, and misdirected.

Criminal Law is not a procedure for the enforcement or the remedy of alleged breach of contract.

There are specific measures provided for this under both the contract itself and the regulatory statutory regime.

It has been held, that, the State does not need the help of the Criminal Law to relate to the enforcement and remedy of public contracts: see State v Lovemore Kurotwi & Anor HH270-16.

The complainant is a procuring entity regulated by the procurement regime and wholly owned by the State in its commercial activity. To that end, its commercial activities cannot be assisted by the criminal arm of the State in enforcing obligations which arise from private commercial transactions governed by a contract.

It is clear, that, the allegations against the accused persons were an arbitrary ploy by the State to get an unfair advantage in a contractual issue for which the State is indirectly a party. The State, being party to a contract, must enforce its rights, civilly, without flexing its muscles needlessly in order to intimidate a private party.

This is an application for an interdict in which the applicants seek a mandatory interdict against the respondents (Minister of Justice, Legal and Parliamentary Affairs, Minister of Finance and Economic Development, Attorney General of Zimbabwe and Gift Marunda, former COPAC National Co-odinator) compelling them to pay the applicants their end of project benefits as per their promise.

The applicants are all former employees of the Constitution Parliament Select Committee (COPAC) mandated to draft the Constitution of Zimbabwe.

The Constitution Parliament Select Committee (COPAC) winded up their activities in 2013 by drafting a draft Constitution and submitting a report to the Parliament of Zimbabwe. COPAC, through the fourth respondent (Gift Marunda), submitted a list, with names of the beneficiaries who were to be paid, to the first respondent and they were paid.

The list did not include the names of the applicants, resulting in them not receiving any payment.

The applicants approached this court seeking a mandatory interdict compelling the respondents to pay them their end of project benefits....,.

Counsel for the applicants submitted, that, the application meets the requirements of a mandatory interdict in that the applicants have a clear right to be paid their end of year project just like their colleagues who were paid.

He further submitted, that, a clear right arises from the fact that the respondents never disputed that the applicants are entitled to their end of project benefits.

He further submitted, that, injury on the applicants exists on the basis, that, the applicants were unfairly differentiated from their colleagues and this infringed upon their right to equality.

He further submitted, that, there is no other available remedy available to the applicants other than an interdict compelling the respondents to pay the applicants their end of project benefits.

Counsel for the first and third respondents further submitted, that, the applicants anticipate a right to payment because payments were made to other members, but, they have not established that they have a clear right.

She further argued, that, what the applicants have is a financial interest which alone does not suffice to satisfy the requirements of a mandatory interdict.

The issue in this matter is whether a mandatory interdict can be granted in favour of the applicants.

In determining whether a mandatory interdict can be granted to the applicants, there are certain requirements that must be met. In Setlogelo v Setlogelo 1914 AD 221…, INNES JA accepted that:

“The requisites for the right to claim an interdict are well known; a clear right, injury actually committed or reasonably apprehended, and the absence of similar protection by any other ordinary remedy.”

The requirements of a mandamus or mandatory interdict were enunciated by GUBBAY J in Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 (2) ZLR 52 (S)…, wherein it was held that:

“An application for a mandamus or 'mandatory interdict' as it is often termed, can only be granted if all the requirements of a prohibitory interdict are established. These are:

1. A clear or definite right – is a matter of substantive law.

2. An injury actually committed or reasonably apprehended – an infringement of the right established and resultant prejudice.

3. The absence of a similar protection by any other ordinary remedy. The alternative remedy must -

(a) Be adequate in the circumstances;

(b) Be ordinary and reasonable;

(c) Be a legal remedy; and

(d) Grant similar protection.”

The above explanation highlights, that, the requirements for a mandamus, or mandatory interdict, are the same as those for a prohibitory interdict.

In Oil Blending Enterprises (Pvt) Ltd v Min of Labour 2001 (2) ZLR 446 (H) CHINHENGO J described a mandatory interdict in the following terms:

“A mandamus or mandatory interdict is a judicial remedy recognized under our law: see Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 (2) ZLR 52 (S). It is applied against public authorities. It is an order which requires a public authority to comply with a statutory duty imposed upon it or one which requires a public authority to perform some act which remedies a state of affairs brought by its own unlawful administrative action (L BAXTER on Administrative Law at p687).

It is, therefore, a judicial remedy available to enforce the performance of a specific statutory duty or to remedy the effects of an unlawful action already taken.

In this application, I am concerned with the former – to order or not to order the respondent to perform a specific statutory duty placed upon him. The remedy will be granted where the public authority is under a clear duty to perform the act ordered.”

CB PREST in The Law & Practice of Interdicts, Juta 1993…, provides that:

“The word 'clear' relates to the degree of proof required to establish the right and should not be used to qualify the 'right' at all. The existence of a right is a matter of substantive law. Whether that right is clearly established is a matter of evidence. In order to establish a clear right, the applicant has to prove, on a balance of probability, the right which he seeks to protect.”

In my view, in order for an application for an interdict to succeed, the applicant must establish the following criteria which has been established in terms of case law, that is;

1. A clear right which must be established on a balance of probabilities;

2. Irreparable injury committed or reasonably apprehended; and

3. The absence of a similar protection by any other remedy.

Counsel for the applicants contended, that, the applicants have a clear right to be paid their end of project benefits just like their colleagues.

Counsel for the first and third respondents submits, that, the applicants anticipate a right to payment on the basis that their colleagues, who were members of the Constitution Parliament Select Committee (COPAC) were paid.

They claim a financial interest.

The learned authors, HERBSTEIN and Van WINSEN, Civil Practice of the High Courts of South Africa, 5th Edition, Volume 1 at p1458 stated the following about a financial interest:

“The right which the applicant must prove is also a right which can be protected. This is a right which exists only in law, be it at common law or statutory law. The right that forms the subject matter of a claim for an interdict must thus be a legal right. A financial or commercial interest alone will not suffice. The right must be the one that is enforceable in law.”

Further down on the same page, they state:

“In order to decide whether a right has been established, one must look to the branch of substantive law concerned. When the right is one that arises automatically in law, it is not necessary for the applicant to allege any facts in order to establish the right.”

From the above, it is clear that all that the applicants have established is a financial interest and that will not suffice to satisfy the requirements of a mandatory interdict.

It was incumbent upon the applicants to establish that they have a legal right.

Their right had to be either founded in statutory law, whereby they would be required to cite the relevant statute or in common law whereby they would cite the relevant principle of law.

As HERBSTEIN and Van WINSEN, Civil Practice of the High Courts of South Africa, 5th Edition, Volume 1…, stated, one must look at the branch of substantive law concerned; in other words, identify the branch of substantive law such as contract or delict where their right is predicated on.

From the above, it is clear, that, the applicants have failed to establish a clear right at law entitling them to seek a mandatory interdict.

To merely allege that some of their colleagues were paid is not sufficient.

They could have been wrongly paid, and, that does not entitle the applicants to payment.

Having been satisfied that the applicants failed to meet the first requirement of a mandatory interdict, which is a clear right, it will not be necessary for me to deal with the other requirements.

The court is satisfied, that, the applicants have not successfully managed to satisfy the requirements for a mandamus or mandatory interdict to be granted in their favour. In the result, I will make the following order:

(1) The application is dismissed.

(2) The applicants to pay the first and third respondents costs.

After hearing arguments from counsel on 7 May 2015, I granted the provisional order and said the reasons would follow. These are they.

This matter has got a chequered history indeed.

The applicant is an incorporation which provides national cellular telecommunications service in Zimbabwe, among other services, by virtue of a licence issued in terms of the Postal and Telecommunications Act [Chapter 12:05] (the Act) by the first respondent (the Postal and Telecommunications Regulatory Authority), which is the statutory authority established in terms of the Postal and Telecommunications Act to superintend the licencing and regulation of telecommunication service in this country under the watchful eye of the second respondent (the Minister of Information, Technology, Postal and Courier Services), the Minister charged with the administration of the Postal and Telecommunications Act.

The applicant was initially issued with a national cellular telecommunications licence in May 1998. It was issued with a revised licence on 26 June 2002, a licence which, in terms of its clause 4 was, valid for 15 years from the date of its signing. That licence contains the terms and conditions under which the applicant is required to provide the service.

I have said that the relationship between the parties has had its fair share of problems.

At some point, because of the squabbles relating to the applicant's shareholding, which the regulatory authority insisted did not comply with the country's indigenisation laws, and, more importantly, with the terms of the licence, the authority cancelled the licence on 9 August 2007.

The applicant appealed that cancellation to the responsible Minister, in terms of section 96 of the Postal and Telecommunications Act, on 10 August 2007, and approached this court by urgent application in HC4301/07 for interim relief. This court, per MUSAKWA J, issued a consent order on 15 August 2007 to wit:

“It is hereby ordered that:

1. Pending the determination of the appeal by the second respondent, the order cancelling the licence and directing the applicant to switch off its telecommunications issued by the first respondent be and is hereby suspended.

2. There is no order as to costs.”

Just as well the applicant had the presence of mind to seek the suspension of the cancellation order, because it was not until 29 April 2010 that the Minister finalised the appeal - almost three (3) years later.

The Minister's decision, communicated by the Secretary for Transport, Communications and Infrastructural Development, on that date, is helpful:

“RE: TELECEL ZIMBABWE LICENCE

Your minute AM/mn/342/10 dated 28 April 2010 refers. The Ministry holds the view, that, cancelling Telecel Zimbabwe's licence is not tenable vis-a-vis the thousands of subscribers the mobile operator now has and the many negative messages such action would convey to potential investors, both in the sector and across the whole economy.

Thus, at a meeting between Honourable Minister N T Goche (MP) and Telecel's chief, Mr Kia Uebech, on 1 April 2010, Government's requirement that Telecel Zimbabwe reverts back to its original 60:40 position in respect of its local: foreign shareholding was stated/indicated.

Telecel undertook to address this challenge.

Clearly, it will be difficult for the Government to support the renewal of the licence come 2013 should Telecel fail to comply with Government's pre-condition. In our view, the ball is now in Telecel Zimbabwe's court.”

That way, the licence was reinstated on the understanding, that, the shareholding would be regularised to meet Government requirements.

Since 2010, the parties have been engaged in dialogue over the shareholding which went on and on with no end in sight. A lot has happened, including an agreement signed by the parties on 6 August 2013.

However, not happy with what the applicant had done, the first respondent, again, cancelled the applicant's licence, on 28 April 2015, on the basis that the applicant had failed to comply with the Postal and Telecommunications Act.

It then set about issuing a raft of provisions in its final regulatory order which reads:

“11. REGULATORY ORDER

HAVING REGARD to the provisions of the Act, Telecel licence conditions, persistent compliance default, all relevant evidence, and the submissions made by Telecel Zimbabwe Limited, POTRAZ hereby makes the following order in the exercise of its power under the Act.

11.1 Telecel's licence to provide National Cellular Telecommunications Service is hereby cancelled with effect from the date of this order.

11.2 Telecel immediately notifies its subscribers and relevant stakeholders of the termination of its licence upon receipt of this order.

11.3 Telecel ceases to operate its cellular telecommunications network and ceases to offer any communication service upon receipt of this order.

The effect of the cancellation is as follows:

(a) Radio frequency spectrum allocated to Telecel for the provision of cellular telecommunication services are hereby withdrawn with effect from the date of receipt of this order (see Annex 01 for the detailed spectrum information).

(b) Radio frequency spectrum allocated to Telecel for the establishment of Microwave Fixed Links in 7, 8, 13, 18, 22 and 23 GHz bands are hereby withdrawn with effect from the date of receipt of this order.

(c) Radio frequency spectrum allocated to Telecel for the establishment of a C-band VSAT Earth Station are hereby withdrawn with effect from the date of receipt of this order.

(d) The number resources used by Telecel Zimbabwe Limited to offer telecommunication services are hereby withdrawn with effect from the date of this order.

NOTWITHSTANDING the provisions of subparagraphs 11.2 and 11.3 above, however, and being mindful of the disruptive effect of an immediate cessation of operations upon the subscribers and other stakeholders of Telecel, POTRAZ hereby grants a special dispensation to Telecel for it to continue with its operations for a period of thirty (30) days from the date of receipt of this order. The purpose of the dispensation will be to afford Telecel an opportunity, among other things, to:

12.1 Facilitate the migration of subscribers from Telecel to other licenced telecommunications operators.

12.2 Notify its employees and agents of the cancellation of its operating licence.

12.3 Notify its stakeholders in the mobile financial services sector of the cancellation of its licence.

12.4 Notify the general public of the cancellation of its licence.

12.5 Begin the process of decommissioning its telecommunications equipment, which process has to be completed within ninety (90) days calculated from the date of receipt of this order.”

Hence, on the stroke of the pen, and by Regulatory decree, scores of employees had lost employment and a number of subscribers had lost a service, never mind other stakeholders and never mind the labour laws of this country dealing with notice of termination of employment.

The applicant has now come to court, on an urgent basis, seeking the following relief:

“TERMS OF FINAL ORDER SOUGHT

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

1. That, pending determination of the finalisation of the appeal by the applicant pursuant to the provisions of section 96 of the Posts and Telecommunications Act [Chapter 12:05] that Regulatory Order No.1 of 2015 and special licence and concomitant dispensations imposed by the Postal and Telecommunications Regulatory Authority of Zimbabwe (POTRAZ) be and are hereby suspended.

2. That, pending finality to the appeal process, as provided by the Posts and Telecommunications Act [Chapter 12:05] applicant shall not dispose of any movable assets or infrastructure without notice to the 1st, second, and third respondents.

3. That, there be no order as to costs.

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

(a) That, first to third respondents be and are hereby interdicted from in any way of (sic) interfering with the normal business activities of the applicant pursuant to the provision of its telecommunication services and related business activities to the public and its subscribers in Zimbabwe.

(b) The dispensation time periods mentioned in Regulatory Order No.1 of 2015 and the cancellation of applicant's licence be and are hereby suspended until such time as there has been a final determination of (sic) a final order sought in terms of this application.”

In its founding affidavit, deposed to by Angeline Vere, its General Manager, the applicant states, that, after all its attempts to reduce its foreign shareholding to a level acceptable to the first respondent were rejected by the latter, which retains the exclusive right of approval in terms of clause 12 of the licence, the first respondent resorted to the drastic action of cancelling the licence on terms set out in the Regulatory Order aforesaid.

Clause 12 of the licence provides:

“12.1 Ownership

1. The holder of this licence must be incorporated in Zimbabwe. The licencee shall ensure that the foreign ownership shall be limited to forty-nine percent (49%).

2. Changes in the shareholding structure, at any stage, must be approved by the Authority before it is effected.

3. In the event that the licencee's initial shareholding structure does not conform to the provisions of clause 12.1.1.1 the licencee shall, within five (5) years from date of signing of the licence, ensures (sic) that the foreign ownership is reduced to forty nine percent (49%.).”…,.

Over the years, the applicant has tried to comply by introducing a new partner to assume ownership of the 11 per cent balance of the 60 per cent shareholding held by the foreign partner, Telecel International Limited (TIL), but, the first respondent either rejected the proposed partner or insisted it had to be approved by the Minister.

At one stage, the applicant was told the 11 per cent shareholding could only be sold to the fourth respondent (Empowerment Corporation (Pvt) Ltd) which holds the other 40 percent stake.

The applicant introduced an Employees Share Ownership Scheme (ESOP) in terms of which its employees would own the 11 per cent shares currently in the hands of Telecel International Limited (TIL) in order to move the shareholding to indigenous people.

This was rejected.

It proposed listing on the Zimbabwe Stock Exchange as another option which was also rebuffed.

Instead, the first respondent cancelled the licence.

The reason given for the cancellation appears in paragraph 1 of the first respondent's “judgment” of 28 April 2015 which reads:

“1. INTRODUCTION

This case concerns Telecel Zimbabwe Limited (hereinafter referred to as 'Telecel') non-compliance with licence conditions, provisions of the Postal Telecommunications Act [Chapter 12:05] (hereinafter referred to as 'the Act') as read with Indigenisation and Economic Empowerment laws. The Postal Telecommunications Regulatory Authority of Zimbabwe (hereinafter referred to as 'POTRAZ') has to determine whether the licence issued to Telecel to provide National Cellular Telecommunication Services should be cancelled or not and issue an appropriate order.”

The applicant stated, that, following the cancellation and the “appropriate order” it has appealed to the second respondent (the Minister of Information, Technology, Postal and Courier Services), the responsible Minister, but, meanwhile, the Regulatory Order remains extant as the appeal does not have the effect of suspending the order appealed against.

Whichever way, it is unlikely that the Minister will dispose of the appeal before the expiration of the period of 30 days it has been given to close shop; a period which is unreasonable in the circumstances given that it employs more than 700 direct employees (at the hearing, counsel for the employees corrected that figure, there are 820 direct employees) whose employment contracts would have to be terminated.

In addition, in terms of the Postal and Telecommunications Act, they are entitled to 28 days during which to lodge an appeal.

The applicant therefore craves the interim relief aforesaid.

While the other respondents did not oppose the application; in fact, counsel for the fourth respondent (Empowerment Corporation (Pvt) Ltd) supported it, and counsel for the second and third respondents (Minister of Information, Technology, Postal and Courier Services N.O. and Chief Secretary in the Office of the President and Cabinet N.O.) had no submissions to make except that the Minister would await the appeal, the first respondent surprisingly opposed the application, vehemently, as if everything depended on the cancellation of the licence and the closure of the applicant....,.

What the applicant seeks is a temporary, interim, or interlocutory interdict.

HOLMES JA set out the requirements for the grant of such an interdict in Ericksen Motors (Welkon) Ltd v Proten Motors, Warrenton and Anor 1973 (3) SA …, (quoted with approval by SANDURA JA in Charuma Blasting and Earthmoving Services (Pvt) Ltd v Njainjai and Ors 2000 (1) ZLR 85 (S)…,.) as:

“The granting of an interim interdict pending an action is an extraordinary remedy within the discretion of the court. Where the right it is sought to protect is not clear, the matter of an interim interdict was lucidly laid down by INNES JA in Setlogelo v Setlogelo 1914 AD 221 at p227. In general, the requisites are:

(a) A right which 'though prima facie established, is open to some doubt'.

(b) A well-grounded apprehension of irreparable injury.

(c) The absence of ordinary remedy.

In exercising its discretion, the court weighs, inter alia, the prejudice to the applicant if the interdict is withheld against the prejudice to the respondent if it is granted. This is sometimes called the balance of convenience.

The foregoing considerations are not individually decisive, but, are interrelated; for example, the stronger the applicant's prospects of success the less the need to rely on prejudice to himself. Conversely, the more the element of 'some doubt' the greater the need for the other factors to favour him….,. Viewed in that light, the reference to a right which 'though prima facie established is open to some doubt' is apt, flexible, and practical, and needs no further elaboration.”

See also Bozimo Trade and Development Co. (Pvt) Ltd v First Merchant Bank of Zimbabwe Ltd & Ors 2000 (1) ZLR 1 (H)…,.

In respect of the establishment of a prima facie right, counsel for the applicant alluded to section 96 of the Postal and Telecommunications Act which gives the applicant a right to appeal the decision of the first respondent to the Minister and to section 71 of the Constitution of Zimbabwe relating to the right to protection of property.

On the other hand, counsel for the first respondent submitted, that, the applicant would not possibly have any right, prima facie or otherwise, when it has been operating outside the law, that is, without compliance with the indigenization laws of this country; which counsel for the applicant countered by submitting, that, the Indigenisation and Economic Empowerment Act [Chapter 14:33] only came into effect in April 2008 - long after the licence had been issued on 26 June 2002.

Counsel for the fourth respondent (Empowerment Corporation (Pvt) Ltd) brought a new dimension to the issue.

He submitted, that, to the extent that the cancellation is premised on indigenization laws, as stated in the first respondent's “judgment” the cancellation is invalid because the first respondent is not the enforcement authority of the Indigenization and Economic Empowerment Act; the Minister of Youth, Empowerment & Indigenisation is, in terms of section 5 thereof. It is him who initiates the process of cancellation for want of compliance with the Indigenisation and Economic Empowerment Act.

It is not necessary for me to determine all those issues because that is the province of the second respondent when dealing with the appeal. I am sitting only be decide whether a case had been made for an interim interdict.

I think it has been.

Section 96(1) of the Postal and Telecommunications Act [Chapter 12:05] provides:

“Subject to this section, any person who is aggrieved by -

(a) A decision of the Authority not to issue a licence or certificate; or

(b) Any term or condition of a licence issued to him, or a refusal by the Authority to specify a term or condition in a licence; or

(c) A refusal by the Authority to review a licence or certificate; or

(d) Any amendment of a licence or a refusal by the Authority to amend a licence; or

(e) The suspension or cancellation of a licence; or

(f) The grant or refusal to grant any approval or authority in terms of this Act; or

(g) The outcome of any mediation by the Authority of a dispute between licensees; or

(h) Such decision of the Authority as may be prescribed;
may, within twenty eight days after being notified of the decision or action of the Authority concerned, appeal, in writing, to the Minister, submitting with his appeal such fee as may be prescribed;

Provided that such appeal shall not suspend the operation of any licence or certificate issued by the Authority.”

After cancelling the applicant's licence, the first respondent issued a special licence, effective from 28 April 2015 to 26 May 2015, to facilitate only the winding up of the applicant's operations - presumably including the termination of the employment contracts of 820 employees.

Such termination would ordinarily require three (3) months notice, where there are good grounds, in terms of the Labour laws of this country.

The applicant cannot lawfully employ those employees after 26 May 2015.

All that against the backdrop of the applicant's right of appeal to the Minister, which right subsists until the expiration of 28 days, on 28 May 2015, if one includes weekends and public holidays.

By the time the applicant's right of appeal expires, the applicant would have closed down in terms of the Regulatory Order.

What that means, therefore, is that the Regulatory Order effectively obliterates the applicant's right of appeal reposed to it by section 96 of the Postal and Telecommunications Act.

Clearly, therefore, that Regulatory Order is not only unreasonable in the extreme in its effect, it also infringes upon the right of appeal given to the applicant by the Postal and Telecommunications Act. That right has been taken away.

More importantly, there is the possibility that the Minister may take a while to determine the appeal. There is no time limit given by the Postal and Telecommunications Act for him to determine an appeal.

Subsection (3) of section 96 of the Postal and Telecommunications Act only requires him to make an order on appeal “after due and expeditious inquiry.”

A precedent has already been set in that regard.

When the applicant appealed another cancellation by the first respondent, in August 2007, the Minister took almost three (3) years to determine the appeal.

In terms of section 68 of the Constitution, the applicant has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial, and both substantively and procedurally fair.

In terms of section 69 of the Constitution, it has a right to a fair hearing in the determination of its civil rights.

Those rights cannot be derogated from at the whim of an impatient and overzealous regulatory authority.

The concept of administrative justice is now embedded in our Constitution. It provides the skeletal infrastructure within which official power of all sorts, affecting individuals, must be exercised. The elements are:

1. Lawfulness, in that official decisions must be authorised by statute, prerogative, or the Constitution.

2. Rationality, in that official decisions must comply with the logical framework created by the grant of power under which they are made.

3. Consistency, in that official decisions must apply legal rules consistently to all those to whom the rules apply.

4. Fairness, in that official decisions should be arrived at fairly; that is, impartially in fact and appearance, giving the affected persons an opportunity to be heard.

5. Good faith in the making of decisions, in that the official must make the decision honestly and with conscientious attention to the task at hand having regard to how the decision affects those involved.

Where an administrative authority makes a decision which renders nugatory the right of the affected party to appeal, that decision cannot be said to accord with the dictates of administrative justice which I have set out above. It cannot be rational neither can it be fair, and, in fact, borders on unlawfulness.

I therefore entertain no doubt, that, the requirements of an interdict have been met.

The applicant does have a prima facie right to appeal which has been curtailed, if not negated. There has been an infringement of that right, which, if allowed to perpetuate, would adversely prejudice the applicant and its employees. It would have to close before it has exhausted remedies available to it.

In weighing the balance of convenience, as I am required to do, I can conceive of no prejudice that may be sustained by the first respondent, except for a wounded ego, which perhaps is the only reason why it chose to oppose the application.

It is a truism, that, the first respondent has acted in an overzealous and precipitate manner without regard to the rights of stakeholders in this matter. It has in fact proceeded roughshod over the rights of those that it is sworn to superintend, and, in so doing, it has created a train smash of gigantic proportions.

It is for these reasons that I granted the provisional order, as amended, the interim relief of which is in the following:

“INTERIM RELIEF GRANTED

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

(a) That, first to third respondents be and are hereby interdicted from in any way interfering with the normal business activities of the applicant pursuant to the provision of its telecommunication services and related business activities to the public and its subscribers in Zimbabwe.

(b) The dispensation time periods mentioned in Regulatory Order No.1 of 2015 and the cancellation of applicant's licence be and are hereby suspended until such time as there has been a final determination or a final order sought in terms of this application.”

The four applicants are the fathers and guardians of their respective minor daughters, all four of whom are pupils at Arundel School, a private girls school situated in Harare.

The first and second respondents are the Trustees and Headmistress of the School.

The third respondent is the Minister of Primary and Secondary Education, cited in his official capacity, and the fourth respondent is the Attorney-General, also cited in his official capacity.

The applicants seek various declarators and consequential relief in respect of the alleged violation of their daughters constitutional rights. They also seek an order for costs against the first and second respondents on a legal practitioner and client scale.

The first and second respondents are opposed to the application and aver that it be dismissed with costs.

The third and fourth respondents have indicated that they will abide by the Court's decision.

Before 2015, the long-established practice at the School was to commence the day with prayers in the School chapel. Pupils were free to attend if they so wished and a separate room was set aside for those of other faiths who did not attend chapel on religious grounds. This inter-denominational position was confirmed by the School's website on the internet.

The applicants and their daughters are all practising Jehovah's Witnesses. Their beliefs are not similar to those of other Christian denominations.

Upon application to the School for the admission of their daughters, each of the applicants completed a standard application form in which they indicated that they were Jehovah's Witnesses. Their daughters were duly accepted for admission.

At the beginning of 2015, a new Headmistress was appointed to run the School.

She sought to introduce compulsory chapel attendance for all pupils at the School in order to reinforce its collegiality. The applicants wrote several letters to the Headmistress as well as the School's lawyers to register their complaints. On 17 March 2015, after taking legal advice, the Headmistress wrote to the applicants insisting that their daughters were required to attend chapel and that, if they failed to comply, they would be deemed to have been voluntarily withdrawn and removed from the School.

On 19 March 2015, after the girls refused to attend chapel and surrendered their books, they were told to go home.

The applicants then filed an urgent application to the High Court, in Case No.2717/15. Following a consent order granted on 27 March 2015, the girls were allowed to continue to attend the School, without being compelled to attend chapel, pending the determination of the present application.

The applicants aver, that, freedom of conscience includes the right to practice and propagate one's religion as well as the right not to be compelled to subscribe to any religion.

In this respect, the actions of the Headmistress violate their daughters freedom of conscience and their right to protection against discrimination on the ground of religion.

Moreover, although any person is entitled to establish and maintain an independent educational institution, he or she cannot discriminate in the manner in which the institution is administered. Thus, the conduct of the Headmistress also violates their daughters right to education.

The applicants, accordingly, seek declarators that the respondents actions are in violation of their daughters freedom of conscience and religion, right to protection against discrimination, and right to education.

They also seek an order precluding the respondents from refusing the admission of their daughters to Arundel School on the basis of their religious beliefs and failure to attend chapel.

On behalf of the School, the Headmistress relies upon the standard enrolment form signed by the applicants upon the admission of their daughters into the School.

She avers, that, this agreement, which constitutes a binding contract, expressly provides, that, any latitude from chapel attendance is at her sole discretion and that her decision in that regard is final and binding.

The agreement also provides, that, any changes to the School rules must be observed and followed by the signatory parents and their daughters.

One of her functions is to articulate the values of the School, and, morning chapel is the only time when pupils come together in an environment most conducive for the values and ethos of the School to be properly impacted upon them.

It is not compulsory for any pupil to participate in any activity, such as singing or praying, or to abandon her beliefs during chapel. What is compulsory is that all pupils attend and evince respectful behaviour in chapel.

The applicants were not forced to enrol their daughters at the School.

They should respect the rights of the School's founding members who established an educational institution that conforms with and pursues their own values and beliefs. The School authority is constitutionally entitled to establish and maintain the School and impose reasonable rules to be followed at the School. It should not be precluded from pursuing its religious beliefs and insisting on anyone who joins the School to respect its views.

Such policy is reasonable and those who agree to join the School, despite their religious views, must be taken to have necessarily waived their own constitutional rights.

For the sake of completeness, it is necessary to set out the relevant provisions of the standard application form of admission to the School.

Upon signature, each of the applicants acknowledged and understood that his daughter had been accepted for entry as a day student at the School on the following express terms and conditions:

“4. That, the School's rules and regulations, as amended from time to time, shall bind and be observed by my daughter, and, insofar as they concern me, also by me. I further accept, that, by signing this enrolment contract I will be bound by the Arundel Parents Association constitution, which is available to me on request.

5. That, the School is founded on Christian principles, and all pupils are expected to comply with the rules and routines thus implied. No exemption from any part of the curriculum will be considered on religious grounds. Any latitude concerning Chapel attendance, holy days, special meal requirements, dress codes etc. will be at the sole discretion of the Head, whose decision will be accepted as final and binding on my daughter.”

Section 2 of the Constitution re-affirms the supremacy of the Constitution in terms that are significantly wider and more inclusive than those embodied in its precursor in the former Constitution, as follows:

“(1) This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.

(2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative, and judicial institutions and agencies of government at every level, and must be fulfilled by them.”

Also relevant for present purposes is section 47 of the Constitution which recognises the existence of rights other than those contained in the Declaration of Rights:

“This Chapter does not preclude the existence of other rights and freedoms that may be recognised or conferred by law, to the extent that they are consistent with this Constitution.”

As I have already indicated, the specific relief sought by the applicants relates to the alleged violation of their daughters freedom of conscience and religion, right to protection against discrimination, and right to education, as enshrined in sections 60, 56 and 75 of the Constitution. These sections, in their relevant portions, provide as follows:

“56 Equality and Non-discrimination

(1) All persons are equal before the law and have the right to equal protection and benefit of the law.

(2)….,.

(3) Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their nationality, race, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability or economic or social status, or whether they were born in or out of wedlock.

(4) A person is treated in a discriminatory manner, for the purpose of subsection (3), if —

(a) They are subjected, directly or indirectly, to a condition, restriction or disability to which other people are not subjected; or

(b) Other people are accorded, directly or indirectly, a privilege or advantage which they are not accorded.

(5) Discrimination on any of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair, reasonable and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom.

(6)…,.”

“60 Freedom of Conscience

(1) Every person has the right to freedom of conscience, which includes —

(a) Freedom of thought, opinion, religion or belief; and

(b) Freedom to practice and propagate and give expression to their thought, opinion, religion or belief, whether in public or in private and whether alone or together with others.

(2) No person may be compelled to take an oath that is contrary to their religion or belief or to take an oath in a manner that is contrary to their religion or belief.

(3) Parents and guardians of minor children have the right to determine, in accordance with their beliefs, the moral and religious upbringing of their children, provided they do not prejudice the rights to which their children are entitled under this Constitution, including their rights to education, health, safety, and welfare.

(4) Any religious community may establish institutions where religious instruction may be given, even if the institution receives a subsidy or other financial assistance from the State.”

“75 Right to Education

(1) Every citizen and permanent resident of Zimbabwe has a right to —

(a) A basic State-funded education, including adult basic education; and

(b) Further education, which the State, through reasonable legislative and other measures, must make progressively available and accessible.

(2) Every person has the right to establish and maintain, at their own expense, independent educational institutions of reasonable standards, provided they do not discriminate on any ground prohibited by this Constitution.

(3) A law may provide for the registration of educational institutions referred to in subsection (2) and for the closing of any such institutions that do not meet reasonable standards prescribed for registration.

(4) The State must take reasonable legislative and other measures, within the limits of the resources available to it, to achieve the progressive realisation of the right set out in subsection (1).”

In support of their contention, that, their daughters right to education has been violated by the School, the applicants also rely upon section 4 of the Education Act [Chapter 25:04] which provides as follows:

“(1) Notwithstanding anything to the contrary contained in any other enactment, but subject to this Act, every child in Zimbabwe shall have the right to school education.

(2) Subject to subsection (5), no child in Zimbabwe shall —

(a) Be refused admission to any school; or

(b) Be discriminated against by the imposition of onerous terms and conditions in regard to his admission to any school;
on the grounds of his race, tribe, place of origin, national or ethnic origin, political opinions, colour, creed or gender.

(3)…,.

(4) Any person who contravenes subsection (2) shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

(5) It shall be a defence in any criminal proceedings for an offence under subsection (2) for the accused person to show, that, though he committed the act alleged against him —

(a) He committed the act on the grounds of the creed of the child against whom the act was committed, but he did so because the school concerned is controlled by a bona fide religious organization and members of that religious organization or adherents of a particular religious belief are accorded preference in admission to that school; or

(b) He committed the act on the grounds of the gender of the child against whom the act was committed, but...,.”

Lastly, but very importantly, there is section 86 of the Constitution which permits the limitation of fundamental rights in the following circumstances:

“(1) The fundamental rights and freedoms set out in this Chapter must be exercised reasonably and with due regard for the rights and freedoms of other persons.

(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including —

(a) The nature of the right or freedom concerned;

(b) The purpose of the limitation, in particular, whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;

(c) The nature and extent of the limitation;

(d) The need to ensure that the enjoyment of rights and freedoms by any person does not prejudice the rights and freedoms of others;

(e) The relationship between the limitation and its purpose, in particular, whether it imposes greater restrictions on the right or freedom concerned than are necessary to achieve its purpose; and

(f) Whether there are any less restrictive means of achieving the purpose of the limitation.

(3) No law may limit the following rights enshrined in this Chapter, and no person may violate them —

(a) The right to life, except to the extent specified in section 48;

(b) The right to human dignity;

(c) The right not to be tortured or subjected to cruel, inhuman or degrading treatment or punishment;

(d) The right not to be placed in slavery or servitude;

(e) The right to a fair trial;

(f) The right to obtain an order of habeas corpus as provided in section 50(7)(a).”

As appears from sub-section (3) of section 86 of the Constitution, none of the rights allegedly violated in casu falls into the category of inviolable rights enumerated in that subsection.

Accordingly, in the event that the applicants are able to establish any violation of their rights, it will be necessary to measure such prima facie violation as against the rights and freedoms of others, in terms of subsection (1), and within the context of the permissible derogations contemplated in sub section (2)....,.

For the purpose of addressing the merits of this aspect of the matter, it is necessary to consider three separate but inter-related issues, to wit:

(i) The nature and scope of the applicants freedom of religion as guaranteed by section 60 of the Constitution.

(ii) Whether and the extent to which that freedom has been infringed by the School.

(iii) If so, whether any such infringement constitutes a permissible limitation by virtue of subsections (1), (2) or (3) of section 86 of the Constitution.

Subsection (1) of section 60 of the Constitution defines the right to freedom of conscience as including, inter alia, freedom of religion or belief and freedom to practise and propagate and give expression to one's religion or belief, whether in public or in private and whether alone or together with others.

Subsection (3) affirms the right of parents and guardians to determine, in accordance with their beliefs, the moral and religious upbringing of their minor children, provided they do not prejudice the constitutional rights of their children, including their rights to education, health, safety, and welfare.

The essence of the applicants religious credo, as appears from their founding papers, is that there is no hell of fire and torment; that places of worship should not contain any religious symbols; that religions and faiths should not be mixed; and that there can only be one truth from God - which truth they hold.

With specific reference to religious symbols at the School, they object to the three crucifixes atop, outside and inside the chapel, as well as the foundation stone at the entrance of the chapel. These symbols, so they believe, contravene the first Commandment against idolatry.

The fundamental doctrinal beliefs and practices of Jehovah's Witnesses may also be gleaned from the following article by JOHN GORDON MELTON in the online Encyclopaedia Britannica:

“Witnesses hold a number of traditional Christian views but also many that are unique to them. They affirm that God, Jehovah, is the most high. Jesus Christ is God's agent, through whom sinful humans can be reconciled to God. The Holy Spirit is the name of God's active force in the world. Witnesses believe that they are living in the last days, and they look forward to the imminent establishment of God's kingdom on earth, which will be headed by Christ and jointly administered by 144,000 human co-rulers (Revelation 7:4). Those who acknowledge Jehovah in this life will become members of the millennial kingdom; those who reject him will not go to hell but will face total extinction….,.

The Witnesses teachings stress strict separation from secular government.

Although they are generally law-abiding, believing that governments are established by God to maintain peace and order, they refuse, on biblical grounds, to observe certain laws. They do not salute the flag of any nation, believing it an act of false worship; they refuse to perform military service; and they do not participate in public elections….,.

The Witnesses distrust of contemporary institutions extends to other religious denominations, from which they remain separate. They disavow terms such as minister and church….,.

Witnesses also oppose certain medical practices that they believe violate Scripture. In particular, they oppose blood transfusions because of the scriptural admonition against the consumption of blood (Leviticus 3:17)….,.

In the early years of the movement, members met in rented halls, but, under Rutherford, the Witnesses began to purchase facilities that they designated Kingdom Halls….,. Each Kingdom Hall has an assigned territory and each Witness a particular neighbourhood to canvass….,.”

The following excerpt from Wikipedia, as at 19 December 2015, elaborates Jehovah's Witnesses aversion to the mixing of religions and their self-imposed injunction to remain separate from the world at large:

“Jehovah's Witnesses believe that the Bible condemns the mixing of religions, on the basis that there can only be one truth from God, and, therefore, reject interfaith and ecumenical movements. They believe, that. only their religion represents true Christianity, and that other religions fail to meet all the requirements set by God and will soon be destroyed. Jehovah's Witnesses are taught, that, it is vital to remain 'separate from the world'. The Witnesses literature defines the 'world' as 'the mass of mankind apart from Jehovah's approved servants and teach that it is morally contaminated and ruled by Satan. Witnesses are taught, that, association with 'worldly' people presents a 'danger' to their faith, and are instructed to minimize social contact with non-members to better maintain their own standards of morality.”

Counsel for the applicants places great reliance upon the case of Dzvova v Minister of Education, Sports & Culture and Others 2007 (2) ZLR 196 (S) for the broad submission, that, fundamental rights must invariably be respected.

In that case, the Supreme Court affirmed the general proposition, that, the rules of the school in question could not be applied to derogate from the constitutional rights of its pupils, including their freedom of religion.

However, the ratio decidendi of the Court was not predicated on any constitutional point, but, rather, on the principle that the power to make rules on school discipline and to regulate the admission, punishment, and expulsion of pupils was reposed in the Minister of Education and was therefore outside the remit of the school Head.

Consequently, Dzvova v Minister of Education, Sports & Culture and Others 2007 (2) ZLR 196 (S) does not, in my view, take the matter any further in resolving the issues at hand.

Moreover, it is also distinguishable from the factual situation in casu in that the applicant in that case had not subscribed to any contract of admission entitling the school to interfere with the enjoyment of his child's freedom of conscience and religion.

Another more recent case involving facts similar to those in Dzvova v Minister of Education, Sports & Culture and Others 2007 (2) ZLR 196 (S) is that of Kapasula & Others v The Headmistress Hermann Gmeiner High School N.O. & Others Case No. SC153-10.

The applicants daughters in that matter were allegedly excluded from enrolment to the first respondent's school because their heads had not been shaven or trimmed for religious reasons. This was in apparent contravention of the school's rules and regulations stipulating that all pupils must always be smart with short and neatly combed hair.

The first respondent's opposition, in the High Court, did not addresss the merits of the matter, but merely relied on the preliminary objections that the application was not urgent, and that, in any case, the laws prohibiting discrimination did not apply to the school since it was a private non-governmental institution.

On referral to the Supreme Court, under section 24(2) of the former Constitution, the Court was called upon to determine three issues:

(i) Whether the refusal to admit the children into the school on the basis of their failure to shave or trim their hair was discriminatory on the ground of creed in contravention of section 19(1) of the former Constitution;

(ii) Whether the decision of the school, to refuse admission into the school, was done under the authority of a law as envisaged in section 19(5) of the Constitution; and

(iii) If so, whether such law was reasonably justifiable in a democratic society.

The applicants argued, that, the first respondent's actions were clearly discriminatory and in contravention of section 19 of the Constitution. Furthermore, the school's rules and regulations did not constitute a law and were not made under the authority of any law, i.e. the Education Act or its subsidiary regulations.

The application before the Supreme Court was not opposed by any of the respondents.

In the event, the Court granted an order simply prohibiting the school from refusing the children's admission into the school on the basis of the length of their hair.

There appear to have been no written reasons for the judgment.

As with Dzvova v Minister of Education, Sports & Culture and Others 2007 (2) ZLR 196 (S), Kapasula & Others v The Headmistress Hermann Gmeiner High School N.O. & Others SC153-10 is clearly distinguishable from the situation in casu.

The school's rules and regulations were not authorised under any law within the contemplation of section 19 of the Constitution and were therefore patently ultra vires.

More significantly, the applicants in both cases had not subscribed to any binding contractual undertaking or commitment expressly and unequivocally relinquishing their rights and the rights of their children to abide by or enforce their religious beliefs and convictions without qualification.

Counsel for the respondents, submits, in reliance on a dictum drawn from Wittmann v Deutscher Schulverein Pretoria & Others 1998 (4) SA 423 (T)..., that “freedom of religion does not mean freedom from religion.”

In the instant case, so he argues, the applicants daughters are not being persuaded to change their religion or subscribe to other religious beliefs, but, are simply being required to attend an activity that forms part of the School's curriculum. Thus, the School cannot be said to have infringed any aspect of the right to freedom of religion as enunciated by the Canadian Supreme Court in R v Big M Drug Mart Ltd [1985] 1 SCR 295..., where it was stated that:

“The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses; the right to declare religious beliefs openly and without fear of hindrance or reprisal; and the right to manifest religious belief by worship and practice or by teaching and dissemination.”

In Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC)..., freedom of conscience and religion was regarded as being integral to the dignity, growth, and self-worth of the individual:

“The right to believe or not to believe, and to act or not to act, according to his or her beliefs or non-beliefs, is one of the key ingredients of any person's dignity.

Yet, freedom of religion goes beyond protecting the inviolability of the individual conscience.

For many believers, their relationship with God or creation is central to all their activities. It concerns their capacity to relate in an intensely meaningful fashion to their sense of themselves, their community and their universe. For millions in all walks of life, religion provides support and nurture and a framework for individual and social stability and growth. Religious belief has the capacity to awaken concepts of self worth and human dignity which form the cornerstone of human rights. It affects the believer's view of society and founds the distinction between right and wrong. It expresses itself in the affirmation and continuity of powerful traditions that frequently have an ancient character transcending historical epochs and national boundaries.”

The importance of religious diversity in the educational sphere was highlighted by LANGA CJ in MEC for Education: Kwazulu-Natal & Others v Pillay 2008 (1) SA 474 (CC)..., as follows:

“As a general rule, the more learners feel free to express their religions and cultures in school, the closer we will come to the society envisaged in the Constitution. The display of religion and culture in public is not a 'parade of horribles' but a pageant of diversity which will enrich our schools, and, in turn, our country.”

Counsel for the applicants correctly notes, that, an essential component of the right to freedom of religion is the absence of coercion or restraint and that the freedom may be unjustly impaired by measures that compel anyone to act or refrain from acting in a manner contrary to one's religious beliefs.

This absence of compulsion is emphasised even in Wittmann v Deutscher Schulverein Pretoria & Others 1998 (4) SA 423 (T)...,.:

“Of course, the right of freedom of religion (in the case of religious minorities) and the right to freedom of thought, belief, and opinion (in the case of atheists and agnostics) entails that attendance may not be enforced. It must be voluntary. The right of non-attendance is expressly recognised in sections 14(2) of the interim Constitution and 15(2) of the Constitution. Attendance must be 'free and voluntary'. There may be no coercion, neither by rules nor by action, on the part of the authorities.”

Similarly, in MEC for Education: Kwazulu-Natal & Others v Pillay 2008 (1) SA 474 (CC)..., the underlying values of human dignity, equality, and freedom are underscored in the pursuit of religious practices:

“A necessary element of freedom and of dignity of any individual is an 'entitlement to respect for the unique set of ends that the individual pursues'. One of those ends is the voluntary religious and cultural practices in which we participate. That we choose, voluntarily, rather than through a feeling of obligation, only enhances the significance of a practice to our autonomy, our identity, and our dignity.”

These sentiments, against coercive conduct, are also sagaciously captured in R v Big M Drug Mart Ltd [1985] 1 SCR 295...,.:

“Freedom, in a broad sense, embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means, that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.

What may appear good and true to a majoritarian religious group, or to the State, acting at their behest, may not, for religious reasons, be imposed upon citizens who take a contrary view. The Charter safeguards religious minorities from the threat of 'the tyranny of the majority.'”

To conclude on this aspect, there can be no doubt that the applicant's children are entitled to hold and practise their religious beliefs, whether within or without their homes, and within the precincts of the School.

It also cannot be doubted that the applicants are entitled, in accordance with their own beliefs, to shape the moral and religious upbringing of their children.

The applicants aver, that, to compel their daughters to attend chapel is contrary to their religious convictions because it entails the mixing of religious practices and attending church services in a building strewn with religious symbols. Therefore, their daughters do not wish to be present in the chapel.

Having regard to the authorities cited above, I take the view, that, the School's policy, of compelling the applicants daughters to attend chapel services, constitutes a prima facie infringement of their religious beliefs.

The practice and observance of their faith demands, that, they exclude themselves from any place of worship that contains any religious symbol, including the crucifix. It also demands that they abstain from any rite or ritual that involves the admixture of any religion other than their own.

By being compelled to enter the School chapel and attend the predominantly Anglican services conducted therein, they are being called upon to renounce, albeit temporarily, certain fundamental tenets of their faith that are designed to enhance their peculiar sense of religious and cultural identity as well as their dignity as self-professed Jehovah's Witnesses.

They can only be required to renounce those tenets if they choose to do so freely and voluntarily, or, in circumstances that are reasonable and justifiable having regard to the public interest or the rights and freedoms of others.

The critical question for determination in casu is whether or not the compulsion to attend chapel imposed upon the applicants daughters is constitutionally permissible in the circumstances under consideration.

In terms of section 86(2) of the Constitution, fundamental rights and freedoms may be limited “only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary, and justifiable in a democratic society.”

In this respect, counsel for the respondents argues, that, the contract of admission signed by the applicants is the law envisaged in section 86(2) of the Constitution and that the School is entitled to enforce that contract accordingly.

Counsel for the applicants appears to implicitly accept this proposition by his lengthy written submissions interrogating the contract and the School's conduct under the criteria set out in section 86(2) of the Constitution.

The proposition, and its implicit acceptance, are clearly misplaced.

The term “law” is defined in section 332 of the Constitution to mean any provision of the Constitution, an Act of Parliament, or a statutory instrument, or any unwritten law in force in Zimbabwe, including customary law.

A private contractual stipulation is patently not a law as defined, or as generally understood; let alone a law of general application within the meaning of section 86(2) of the Constitution.

Accordingly, I take the view, that, section 86(2) of the Constitution has no direct bearing on the constitutionality or enforceability of the contract of admission and does not take the matter any further in upholding or impeaching the School's policy of compulsory chapel attendance.

As regards the extent to which the freedom of religion may be limited, counsel for the applicants contends, that, although it may be permissible to limit the right to manifest religious or other non-religious beliefs, the right to hold such beliefs is to be considered as being inviolable.

I am unable to discern any justification for this perceived distinction either in section 60 or in section 86 of the Constitution.

In terms of section 60(1) of the Constitution, the freedom of thought, opinion, religion or belief is accorded the same prominence and protection as the freedom to practice, propagate and give expression to one's thought, opinion, religion or belief.

Both are guaranteed in the same breath and without any express or implied differentiation as to the extent of their entitlement to protection.

Equally significantly, section 86(3) of the Constitution specifically enumerates those fundamental rights which “no law may limit” and which “no person may violate”.

These include the rights to life, human dignity, not to be tortured, not to be placed in slavery or servitude, to a fair trial, and to obtain an order of habeas corpus.

The right to freedom of conscience and religion is conspicuously absent from this list of absolutely sacrosanct and inviolable rights. The necessary implication is that freedom of religion is not inviolate or non-derogable.

The provision that I deem most apposite to the resolution of this matter, and which I now turn to consider, is section 86(1) of the Constitution. It declares that “fundamental rights and freedoms..., must be exercised reasonably and with due regard for the rights and freedoms of other persons.”

The analysis of conflicting rights postulated by section 86(1) of the Constitution calls for an essentially unitary approach. The question whether a given right is being exercised reasonably is inextricably intertwined with the question whether it is being exercised with due regard for the rights and freedoms of others.

What is required is the balancing of actually or potentially antagonistic rights, having regard to the nature of those rights, the manner in and the extent to which they impinge upon one another, and the circumstances in which they have been or are to be exercised.

It is trite, that, a contract concluded in contravention of the written or unwritten law, or one that is contrary to public policy, is susceptible to being struck down and rendered of no force or effect.

The doctrine of sanctity of contracts is obviously subject to constitutional limits.

As was observed in Bredenkamp and Others v Standard Bank of South Africa Ltd 2010 (4) SA 468 (SCA)..., every contract or institutional rule must pass constitutional muster.

Again, in Barkhuizen v Napier 2007 (5) SA 323 (CC)..., it was emphasised that:

“All law, including the common law of contract, is now subject to constitutional control. The validity of all laws depends on their consistency with the provisions of the Constitution and the values that underlie our Constitution. The application of the principle pacta sunt servanda is, therefore, subject to constitutional control.”

Counsel for the applicants submits, that, the School's contract of admission contains unlawful and onerous terms and conditions targeted against members of different faiths. They are contrary to public policy, and, therefore, cannot qualify as rules capable of enforcement.

Counsel for the respondents retorts, that, although the School's assemblies in chapel carry religious overtones, no pupil is obliged to participate in any religious activity. All the pupils are simply required to attend and be respectful. No one is victimised for not singing or praying. To this extent, the School is entitled to expect conformity and the applicants are equally entitled to remove their daughters to a school that does not offend their religious principles. This accords with the rights of establishment and maintenance explicitly preserved and conferred upon independent educational institutions by section 75(2) of the Constitution.

It is common cause, that, the religious status of the applicants children was known from the outset and that the previous policy of the School was one of religious tolerance and accommodation.

In this respect, I am unable to accept the submission by counsel for the respondents, that, the applicants acted fraudulently in signing the contract of admission simply to gain the admission of their daughters into the School. This is because the previous policy was highlighted in the School's website which, although out-dated, appears to have been relied upon by the applicants.

In this context, therefore, it cannot be said that their daughters refusal to attend chapel is unreasonable.

In any event, there is nothing in the opposing papers to show, that, the objective of collegiality that the Headmistress wishes to inculcate in the pupils was not previously attained. There is no evidence that the exemption from chapel attendance, that was previously granted, has negatively impacted on the collegiality or discipline of the applicants daughters or the other pupils. Nor is there anything to indicate that compulsory collective chapel attendance is the most appropriate vehicle to entrench collegiality.

This objective might be better achieved through regular attendance at social or sporting events or when all the pupils are gathered together in the dining hall, as happens at the School during the daily lunch break.

As counsel for the applicants correctly submits, coercion, as opposed to persuasion, does not necessarily build collegiality.

On the contrary, to forcibly conjoin persons of different faiths might serve to undermine the dignity of all concerned, the minority as well as the majority. As I have already noted, freedom of conscience and human dignity are inseparably linked and the denial of the former entails the denial of the latter.

As against the foregoing, it is not in dispute, that, the applicants were fully aware, from the time that they signed the admission forms, that their daughters had been accepted as pupils on the following terms and conditions:

(i) That, the School's rules and regulations, as amended from time to time, would be binding and had to be observed;

(ii) That, the School's founding Christian principles would entail adherence to its rules on chapel attendance;

(iii) That, no exemption from the curriculum would be considered on religious grounds; and

(iv) That, any latitude concerning chapel attendance was at the sole discretion of the School Head, whose decision was final and binding.

Thus, the applicants were cognisant of the fact, that, any previous latitude or exemption granted in relation to chapel attendance was subject to being reversed and that they, and their daughters, would be obliged to comply with any such change in policy.

In short, there can be no doubt, that, they willingly consented to the implementation and enforcement of the School's rules and regulations - even if they were altered after the admission of their daughters into the School.

In Wittmann v Deutscher Schulverein Pretoria & Others 1998 (4) SA 423 (T), the facts of which involved the enforcement of an enrolment contract in circumstances which are are very similar to those herein, Van DIJKHORST J..., opined as follows in relation to parochial community schools:

“In respect of these educational institutions, the fundamental freedom of religion of 'outsiders' is limited to the freedom of non-joinder. Outsiders cannot join on their own terms, and, once they have joined, cannot impose their own terms.

This indicates, that, the waiver of the freedom of religion (for the limited duration of one's membership and within the limits of the institution's constitution) is not contrary to the provisions of the Constitution in the case of private educational institutions. Waiver per se of that freedom is therefore not unconstitutional.”

I note that this decision was premised on specific provisions of the South African Constitution which are not identical to the corresponding provisions in our Constitution, and that, as far as I am aware, it has not been followed or applied by the Constitutional Court of South Africa.

I also note, with the utmost respect, that, the sentiments expressed by the learned judge might be criticised as being somewhat exclusivist, having been pronounced in the peculiar post-apartheid milieu of that country.

Nevertheless, I take them to be fairly instructive in the broader context of delineating the outer contours of religious freedom.

Another case of persuasive value is the decision of the European Court of Human Rights, apropos the European Convention on Human Rights, in Valsamis v Greece [1996] 24 EHRR 294, arising from facts which are not dissimilar to those in casu.

The applicants, in that case, were Jehovah's Witnesses. Pacifism was a fundamental tenet of their religion which forbade any conduct or practice associated with war or violence - even indirectly.

Following a written request, their daughter was exempted from attendance at religious education lessons and Orthodox Mass. However, in common with other pupils at her school, she was asked to take part in the celebration of the National Day, a day when the outbreak of war between Greece and Fascist Italy was commemorated with school and military parades. She requested the headmaster that she be excused from the celebration on religious grounds, in particular, on the basis of her pacifist convictions.

Her request was refused, but, she nevertheless did not participate in the school parade.

She was punished for her failure to attend with one day's suspension from school; a decision taken by the headmaster in accordance with a circular issued by the Ministry of Education and Religious Affairs.

She, and her parents, argued, that, they were the victims of a breach of the right to education under Article 2 of Protocol No.1, which requires the State to respect the right of parents to ensure that the education and teaching received by their children is “in conformity with their own religious and philosophical convictions.” They also complained that their “right to freedom of thought, conscience and religion” guaranteed by Article 9 of the Convention had been breached.

Their complaints, in relation to these two provisions, were dismissed by a majority decision of seven votes to two.

The dissenting judges took a robust view of the rights allegedly infringed. In their opinion, Mr and Mrs Valsamis's perception of the symbolism of the school parade and its religious and philosophical connotations had to be accepted because it was not obviously unfounded and unreasonable. Similarly, Miss Valsamis's statement, that, the parade she did not participate in had a character and symbolism that were clearly contrary to her religious beliefs also had to be accepted, and, there was no basis for seeing her participation in this parade as necessary in a democratic society.

The minority accordingly found, that, both Article 2 of Protocol No.1 and Article 9 of the Convention had been violated.

As regards the right to education and its corollary of parental convictions, the majority judges were of the opinion…, that:

“Such commemorations of national events, serve, in their way, both pacifist objectives and the national interest. The presence of military representatives at some of the parades which take place in Greece, on the day in question, does not in itself alter the nature of the parades.

Furthermore, the obligation on the pupil does not deprive her parents of their right 'to enlighten and advise their children, to exercise with regard to their children natural parental functions as educators, or to guide their children on a path in line with the parents own religious or philosophical convictions'….,.

It is not for the Court to rule on the expediency of other educational methods which, in the applicants view, would be better suited to the aim of perpetuating historical memory among the younger generation.….

In conclusion, there has not been a breach of Article 2 of Protocol No.1 (P1-2).”

On the freedom of thought, conscience, and religion, the majority adopted the earlier decision of the Commission and opined…,:

“The Commission considered that Article 9 (art. 9) did not confer a right to exemption from disciplinary rules which applied generally and in a neutral manner, and that, in the instant case, there had been no interference with the applicant's right to freedom to manifest her religion or belief.

The Court notes, at the outset, that, Miss Valsamis was exempted from religious education and the Orthodox Mass, as she had requested, on the grounds of her own religious beliefs. It has already held, in paragraphs 31-33 above, that, the obligation to take part in the school parade was not such as to offend her parents religious convictions. The impugned measure therefore did not amount to an interference with her right to freedom of religion either….,.

There has consequently not been a breach of Article 9 of the Convention (art. 9).”

Before balancing the respective rights and freedoms of the parties, it is necessary to consider the waiver of constitutionally entrenched rights.

Counsel for the applicants argues, that, it is possible to waive certain rights, depending upon the right in question; for example, the right to trade which can be subjected to restraint by agreement. However, the right to entertain and manifest religious beliefs cannot be waived because it is characterised by the absence of compulsion or coercion, including indirect control. Accordingly, clauses 4 and 5 of the School's admission form must be regarded as being contra bonos mores and therefore unlawful.

Counsel for the respondents accepts, that, public policy enables the scrutiny of private contracts in order to ensure their constitutionality. Nevertheless, it is possible to contractually waive one's religious precepts in order to achieve a specific social or material purpose - as the applicants have done by signing the contentious form of admission.

I am inclined to agree.

As I have indicated earlier, I do not perceive the right to freedom of religion as being absolute or non-derogable. On that basis, I can think of no objection to its being voluntarily waived in circumstances where such waiver does not entail the fundamental eradication of one's religious or conscientious beliefs.

The applicants cannot assert that their faith condemns the mixing of religious beliefs and practices, and, at the same time, enrol their daughters at a school with an Anglican ethos and practices.

The contract of admission that they signed categorically states, that, any latitude in chapel attendance granted to the pupils would not invariably exempt their attendance in future and that the decision of the Head in that regard would be final.

In effect, the applicants chose to bend the tenets of their faith to a limit determined by themselves so as to gain admission to the School for their daughters. Once that limit has been exceeded, they now invoke the right to religious freedom in order to demand that the School should conform to their religious dictates.

In other words, the applicants and their daughters, are prepared to remain “separate from a contaminated world” only to the extent that they deem it expedient to do so. To use a well-worn adage, they cannot approbate and simultaneously reprobate the School and its avowed ethos.

As I have already observed, freedom of religion is not an absolute right enforceable erga omnes, at all times and in every circumstance. It cannot override and must conform with the law of the land to the extent that such law is reasonably justifiable in a democratic society. Moreover, its exercise cannot justify interference with the rights of others or countenance any harm to public interests.

Thus, in the instant case, it is necessary to balance the religious freedom of the applicants, and their daughters, within their chosen educational environment, as against the rights and interests of the School and its institutional values as propounded by its founders.

The ethical foundation of freedom of conscience, as guaranteed by section 19 of the former Constitution, was lucidly expounded by GUBBAY CJ in In re Chikweche 1995 (1) ZLR 235 (SC)…,:

“…,. I am of the view, that, the reference in section 19(1), to freedom of conscience, is intended to encompass and protect systems of belief which are not centred on a deity or religiously motivated, but are founded on personal morality.”

Having regard to this ethical dimension, it seems to me, that, every religion, be it Judaeo, Christian, Muslim, Buddhist or Hindu, is essentially rooted in the precepts of morality. The forms of moral expression and observance adopted by each religion may vary according to time, place, culture, and tradition. But, the transcendent values that animate every religion are universal. They are embedded in the quintessential humanity of its protagonists.

Apart from each individual's personal relationship with his or her own deity, there is the collective bond of human commonality that informs and guides his or her relationship with others. In a libertarian society, what this bond demands is mutual respect and tolerance between individuals, social groups, and communities, with the ultimate objective of attaining a truly pluralistic polity.

Reverting to the question at hand, what is envisaged by section 86(1) of the Constitution is precisely, that, mutuality of rights and freedoms, to be enjoyed and exercised in a manner that is reasonably justifiable in a democratic society.

In the specific context of freedom of religion, what this entails is that the scope and extent of one's spiritual rights must be measured within the temporal environment in which they operate.

The position of the applicants and their daughters, in casu, is no different.

They have willingly chosen to join and participate in the communal ethos of the School, and, furthermore, to abide by whatever its broader curriculum implies. The principle of mutual respect and tolerance requires that they accommodate the institutional rights and interests of the School in pursuing its perceived objectives, so long as those objectives are not pursued unreasonably, and equally importantly, so long as they do not radically undermine the religious beliefs and convictions of any of its pupils.

In other words, the School's policy should not transmute into some tyranny of the majority, imposed without due regard for the rights and sensibilities of the minority.

From a purely neutral and secular standpoint, I do not think that attendance in chapel, for short stints, three times a week, would necessarily negate or deracinate the fundamental beliefs of the applicants daughters.

They are not being called upon to engage in prayer or participate in the Anglican rituals conducted in chapel. They are simply required to attend chapel and remain dispassionately respectful during its proceedings; not unlike the participants at an athletic event or diplomatic function, where everyone present is expected to stand in silence whenever the national anthem of any given country is played.

Indeed, it is perfectly possible, if they are prepared to open their hearts and minds in the true spirit of religious tolerance, that they might even derive some benefit from quietly observing the rites and rituals of another religion, without having to surrender their own convictions and succumb to the specific beliefs of that religion.

In the event, after considerable vacillation, and, not without some reservation, I have come to the conclusion, on the particular facts of this case, that, the applicants are not entitled to the declaratory and consequential relief that they crave.

What this means is that the School is entitled to enforce its policy of compulsory chapel attendance in respect of the applicants daughters.

However, in the event that they refuse to abide by this policy, they should not be removed from or required to leave the School:

(i) Firstly, unless the School takes the fully considered view that it is entirely necessary to do so; and

(ii) Secondly, until they are afforded a reasonable period of time to select and relocate to another school, having regard to their individual educational needs and circumstances....,.

In the result, it is ordered as follows:

1. The application be and is hereby dismissed with no order as to costs.

2. In the event that the first and second respondents take the decision to expel the applicants daughters from the School, they shall be afforded a reasonable period of time to select and relocate to another school.

This was an appeal against the whole of the judgment of the Administrative Court of Zimbabwe handed down on 7 September 2020 as case number ACC87/19, judgment number AC09-20.

The appeal was heard on 20 October 2021.

The court proceeded to give an ex tempore judgment. It dismissed the appeal with costs on a legal practitioner and client scale.

Written reasons have been requested by the appellant. These are they.

The facts of the matter are common cause. The appellant owns a piece of land known as Stand Number 18692 Boundary Road, Harare Township in the District of Harare, which lies within the second respondent's area of jurisdiction.

The first respondent is a Trust that advocates for the protection and preservation of wetlands for sustainable water provisioning within Harare.

The second respondent is the official of the third respondent which is the local planning authority for Harare.

The appellant intended to develop the site to build a church, a school, and a conference centre. It relied on a development permit issued by the third respondent.

The first respondent was opposed to the developments, hence, it noted an appeal in the court a quo.

The first respondent submitted in the court a quo, that, the development permit was unprocedurally issued in violation of its justice rights. It argued that the development permit was unlawful for the following reasons:

(i) That, the second respondent was a local authority and had no power to issue the permit in terms of the tenets of the Regional, Town and Country Planning Act [Chapter 29:12].

(ii) That, the request for the permit was not made in accordance with the application procedure prescribed by the same Act.

(iii) That, the application for the same had expired after three months and could not be relied upon for the current permit.

(iv) That, there was no public notice of the development permit application and consultation of the relevant stakeholders.

(v) That, the permit was vague because it did not clarify the description of the development making it impossible to ascertain the nature of the development proposed.

(vi) That, the development violated the beneficiaries Constitutionally protected environmental rights; and

(vii) That, it violated the Environmental Impact Assessment Certificate issued by the Environmental Management Agency which restricted the development to 0.8169 hectares of the wetland area.

In opposition of the appeal, the appellant argued, that, all the requisite consultations and processes for obtaining the development permit were complied with. It contended, that, the development permit was therefore procured in terms of the law.

It further argued, that, the site for the intended construction is not ecologically sensitive and is therefore suitable for construction.

The court a quo made the following findings:

The conditions spelt out in the development permit had nothing to do with the location of the proposed conference centre and they lacked specificity and precision. The appellant did not submit an application for a development permit as prescribed by the Regional, Town and Country Planning Act. The appellant, instead, applied for permission to change the use of Stand 18692.

The appellant did not give public notice of the application for a development permit or serve any such notice on every owner of the property adjacent to Stand 18692 as is required in the Regional, Town and Country Planning Act.

The development permit issued to the appellant contradicted the environmental impact assessment certificate which preceded and authorised the issuance of the purported development permit.

The development permit authorised erection of the buildings on 4.633 hectares whereas the environmental impact assessment certificate permitted development on only 0.8169 hectares of the property.

The court a quo consequently upheld the first respondent's appeal.

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

“GROUNDS OF APPEAL

1. The learned judge in the court a quo erred in finding that there was no application for a development permit.

2. The learned judge in the court a quo erred in not taking into account, that, the development permit would necessarily have to be read with the plans and drawings and would be subject to conditions imposed for the purposes of development.

3. The learned judge in the court a quo erred in law in finding, that, section 26(3) of the Regional, Town and Country Planning Act [Chapter 29:12] was applicable and erred in finding that it was a requirement to give public notice of an application for a development permit.

4. The learned judge in the court a quo erred in finding, that, the development permit contradicted the environmental impact assessment certificate and failed to place any emphasis or sufficient emphasis on the fact that the plans and drawings had been submitted.

5. The learned judge in the court a quo erred in finding, that, the fact that there was no acknowledgement of the application was fatal to the grant of the permit.”

Grounds 1, 2, 3 and 5 raised by the appellant challenge the court a quo's finding that there was no application for a development permit.

Ground 4 challenges the court a quo's finding, that, the development permit contradicted the environmental assessment certificate.

Ground 6 raises the issue of the first respondent's locus standi to participate in the matter before the court a quo, and, by extension, in this appeal.

Counsel for the appellant submitted, that, an application was made to the third respondent in compliance with section 26 of the Regional, Town and Country Planning Act. He further submitted, that, in the event that the court finds that section 26 of the Regional, Town and Country Planning Act was not strictly complied with there was substantial compliance, and, section 5 of the Interpretation Act [Chapter 1:01] would save the application.

Regarding the alleged contradiction between the environmental impact assessment certificate and the development permit, counsel submitted, that, the conditions specified in the certificate were, by implication, incorporated in the development permit.

The appellant's submissions on ground number 6 were that the first respondent, not having participated in the antecedent proceedings, had no locus standi to appeal against the grant of the permit.

Furthermore, that the first respondent's Deed of Trust does not empower it to act on behalf of the persons that it sought to represent.

Per contra, counsel for the first respondent submitted as follows:

The issue of the locus standi of the first respondent was not raised in the court a quo by the appellant. The court a quo, therefore, cannot be faulted for not determining an issue that was not before it.

Furthermore, the High Court. per CHINAMORA J, in Harare Wetland Trust & Anor v New Life Covenant Church & Others HH819-19 determined, that, the first respondent had locus standi to challenge the developments that the appellant was undertaking without a development permit.

The application relied on by the appellant did not comply with the peremptory requirements of the Regional, Town and Country Planning Development Regulations RGN 927/1976 as regards giving the public notice of the development and serving such notice on the property owners adjacent to the site.

Furthermore, and, in any event, the application, not having been determined within the stipulated three (3) months period, had been deemed refused by operation of law in terms of section 26(7) of the Regional, Town and Country Planning Act.

There were contradictions between the Environmental Impact Assessment Certificate (the EIAC) and the development permit as to the area of the property on which construction would be undertaken. Further, the conditions set out in the Environmental Impact Assessment Certificate (EIAC) were not included in the development permit, thereby creating the impression that there were no such restrictions imposed.

On the, merits, we are persuaded by counsel for the first respondent's submissions, that, the appellant did not possess a development permit.

The record shows, that, no competent application for a development permit was made.

The document the appellant sought to rely on as a permit was an incomplete, unstamped form dated 5 January 2018.

The form was signed by one “Jabula”. There is no indication on the form who Jabula is and that he was signing the form on behalf of the appellant.

A stamp for the third respondent appears on the form and bearing the date 5 December 2019 as reflecting the date of approval of the application.

The record also shows, that, an application for the approval of building plans was submitted to the third respondent sometime in November 2017. The application preceded the alleged date of approval of the application for the development permit.

It would not be conceivable that the appellant would seek approval of development plans before it had been issued with a development permit.

It is therefore apparent that the appellant did not have a development permit.

Assuming that a permit was granted, the purported application for a development permit did not comply with the peremptory provisions of the Regional, Town and Country Planning Act.

The appellant did not give public notice of its intended developments, neither did it notify the interested persons as is required in terms of section 26(3) of the Regional, Town and Country Planning Act. The appellant did not produce, before the court a quo, proof of such public notice. The public notice produced before the court a quo related to the change of reservation application and not the development permit application.

We furthermore agree with the first respondent's submissions, that, assuming that there was a proper application for a permit before the third respondent, it was in any event deemed refused in terms of section 26(7) of the Regional, Town and Country Planning Act.

Section 26(7) of the Regional, Town and Country Planning Act reads:

“If the local planning authority has not determined, in terms of subsection (6), an application in terms of subsection (1), within three months of the date of acknowledgement in terms of subsection (2) of the receipt of the application or any extension of that period granted by the applicant in writing, the application shall be deemed to have been refused by the local planning authority.”

The application for a permit being relied on by the appellant was purportedly made on 5 January 2018. The purported grant of the permit was on 5 December 2019 - this was clearly in excess, by almost two years, of the three (3) months period within which the application ought to have been considered.

The application had therefore been deemed refused by operation of law.

Under the circumstances, the court a quo cannot be faulted for holding, that, the appellant did not have a development permit and neither was the purported application for the permit valid.

Having found that there was no application before the third respondent, and that if there was one, it had been deemed refused by operation of law, it is in our view not necessary to determine the issue of the contradiction between the certificate and the permit.

It was on this basis, that, it was the finding of the court that the appeal had no merit.

Regarding the issue of costs, it is our view that costs on a higher scale are warranted.

The appellant belatedly raised the issue of locus standi which had already been determined in a judgment that it has, to date, not appealed against. In addition, that issue was not raised before the court a quo. The first respondent was unnecessarily put out of pocket and thus unnecessarily prejudiced.

It was for the above reasons that the appeal was dismissed with costs on a legal practitioner and client scale.

This is an appeal and cross-appeal against parts of the judgment of the Special Court (for Income Tax Appeals) dated 11 October 2019 dismissing some of the appellant's objections against the respondent's amended assessments, and setting aside some of the respondent's amended assessments.

In this judgment, I will refer to the appellant as the main appellant and the respondent as the cross appellant.

The detailed facts of the case can be summarised as follows:

The main appellant is a company registered in terms of the laws of Zimbabwe and a subsidiary of Delta Corporation (the Holding Company). The two companies are separate and distinct from each other but share the same acronym. The holding company carries on business in the beverages and agro-industrial sectors of the Zimbabwean economy.

The cross-appellant is, in terms of the Income Tax Act [Chapter 23:06], the authority responsible for the collection of taxes in Zimbabwe.

In 1958, the predecessor to the holding company entered into an exclusive franchise agreement with a Canadian Company which owned the LL beverage trademark.

In 1970, two further trademarks, CB and CBL were included in the franchise agreement.

The last trademark, EL, was added to the franchise agreement in 2004.

The franchisee is the owner of four local beverage trademarks CL, BL, ZL and GPL. The parties interchangeably referred to trademarks as brands in their franchise agreements.

In terms of the 1970 agreement, the holding company had the right, subject to the terms and conditions of each agreement, to transfer, assign and sub-licence its subsidiaries to manufacture and sell the trademarked beverages. The holding company was obliged to pay to the franchisor royalty fees for the trademarks computed against prescribed sales and technical fees for the technical assistance provided and calculated on a cost-recovery basis.

Before the court a quo, evidence was led to the effect, that, in 2002, the Canadian Company was taken over by the Dutch company, International Management BV, which, in turn, executed an undated and unsigned Technical Support and Assistance (“TSA”) agreement with the holding company retrospectively to 1 January 2002.

The Dutch company was a subsidiary of SAB Miller International BV, an English public company.

The Dutch company undertook to provide, in person or by proxy, to the local holding company, its accumulated international expertise and know-how in the manufacture, management and distribution of beverages.

The Group of the holding company was defined as the holding company and “any existing and future subsidiaries.”

Know-how was elaborately defined to include all aspects of purchasing raw materials, product manufacture and brand development, plant and waste management, packaging and distribution, consumer research, and performance management systems.

The term subsidiary carried five different meanings which ranged from majority shareholder control, to majority votes garnered by agreement with other shareholders in financial policy, management, and supervision of the holding company by the Dutch company.

The term turnover encompassed Group gross sales revenue from all beverages and malt inclusive of taxes and excise duties.

Clause 3 contemplated the provision of know-how to the Group and “the relevant company in the Group” under the direction of the Board of the holding company.

The holding company undertook to do all such things and pass all such resolutions necessary to effect the terms of the agreement. It also agreed to ensure that its subsidiaries adopt, ratify, or confirm any lawful support rendered by the Dutch company to such subsidiaries.

In terms of clause 5, the holding company was responsible for the payment of an annual fee equal to 1.5 percent of the total Group turnover payable quarterly, on a pro rata basis, within 30 days after the end of each quarter.

The payment was to be in United States dollars, at the best available market rate in Zimbabwe, but, subject to the necessary exchange control and other Governmental approvals.

In the absence of foreign currency, the holding company would apply the fee to purchase its ordinary shares on behalf of the Dutch company in the name of an affiliate.

A new agreement was concluded on 1 September 2006 and renewed on 1 August 2011.

The Dutch company continued to provide know-how in the production, distribution, and management of beverages in the Group and the relevant company in the Group.

In the interim, on 30 April 2007, the holding company executed a royalty agreement with the Dutch company, International BV, which replaced the royalty agreement of 14 December 2001.

On 1 February 2008, the main appellant's Board of Directors resolved to execute an administrative and contractual services agreement with the holding company authorising the holding company to enter into administrative, technical, and contractual services arrangements with third parties on its behalf.

It resolved to be bound by such agreements and to bear the costs and benefits arising therefrom.

The contemplated Administrative, Technical and Contractual Service Agreement was concluded on 8 February 2008.

The main appellant bound itself to assume all royalty and exploitation of user rights and brands and trademarks agreements, services agreements, lease agreements, bonds, supplier contracts, employment contracts, and any other routine matters authorised for execution by the Board or its management executed by the holding company as its own.

On 19 August 2011, the exchange control authority granted authority to the holding company to pay royalties of up to 5 percent to the Dutch company less withholding tax.

Again, on 18 March 2013, the exchange control authority granted the main appellant authority to renew the Technical Services Assistance agreement and make payment of fees of up to 1.5 percent of the Group's annual turnover excluding sales of CBL, LL and EL less withholding tax and an additional 1 percent of the holding company's turnover less withholding tax on another product, CL, in recognition of the invention, design and know-how of the franchisor.

The turnover and fees were to be certified by a reputable firm of auditors.

On 14 April 2016, the cross appellant issued six (6) amended manual Notices of Assessment for Income Tax to the main appellant. The amended assessments related to the tax years ending on 31 December 2009, 2010, 2011, 2012, 2013 and 2014. The cross-appellant levied a payment by the main appellant of over US$42 million, including penalty and interest.

By letter dated 20 April 2016, the main appellant objected to the assessments.

In response, the cross appellant issued revised assessments and sent these to the main appellant without an explanation.

In its revised assessments, the cross-appellant conceded several issues raised by the main appellant in its objection and reduced the total amount claimed to around US$30 million.

By letter dated 9 May 2016, the main appellant revised and re-lodged further objections.

The cross appellant disallowed all grounds of the main appellant's further objections.

Aggrieved by that decision, the main appellant appealed to the Special Court for Income Tax Appeals.

The issues placed before the court a quo for determination, as per the joint pre-trial conference minute, are as follows:

“1. Whether or not the respondent was correct in disallowing royalties pertaining to the brands/trademarks?

2. Does the fact that a written technical services agreement exists between Delta Corporation and SAB Miller Management BV prevent the appellant from deducting such fee payments as expenses?

3. Did the appellant incur technical fees, which it sought to deduct as expenses?

4. Was the respondent correct in disallowing technical fees, which are expressed as a percentage of turnover?

5. Had Delta's tax affairs, relating to the tax year ending 31 December 2009, prescribed as at the date of the assessment?

6. If not, whether the respondent correctly disallowed the expenditure apportioned by the holding company as management charges?

7. Whether or not the respondent was correct in disallowing consumable stocks claimed by the appellant.

8. Whether or not the respondent was correct in disallowing prepaid expenses claimed by the appellant?

9. Is appellant entitled to deduct the inventory revaluation in question?

10. Whether or not the respondent was correct in disallowing expenses described as computer software cost in the tax computation?

11. Is respondent's imposition of penalties of 50% justified?

12. Whether or not interest should be payable by the appellant.”

After hearing the parties and perusing documents filed of record, the court a quo ordered that:

“1. The revised manual assessments numbers 0006754, 0006755, 0006756, 0006757, 0006758 and 0006759 issued by the Commissioner on 5 May 2016 for the tax years ended 31 December 2009, 2010, 2011, 2013 and 2014 respectively be and are hereby set aside.

2. The Commissioner is directed to issue further revised assessments that incorporate the contents of this judgment. He shall specifically:

(a) Allow in full the deductions claimed by the appellant for royalties and technical fees in respect of the 2009, 2010, 2011, 2012, 2013 and 2014 tax years.

(b) Reopen the 2009 assessment and add back the sum of US$150,722 in respect of head office expenses, to the appellant's taxable income.

(c) Add back all the deductions, if any, made by the appellant in respect of head office expenses to the appellant's taxable income for the years 2010 to 2014.

(d) Add back the deductions for consumable stock, in their respective amounts, to the appellant's taxable income in respect of each tax year in issue.

(e) Add back the prepayments, in their respective amounts, in each tax year in issue.

(f) Allow the deduction in the sum of US$603,792 in respect of the stock revaluation adjustment in the 2010 tax year.

(g) Add back the computer software deductions of US$2,059,238 in their respective amounts, in the 2013 and 2014 tax years.

(h) Charge a penalty of 10% on the additional tax payable in each respective tax year.

(i) Waive in full any interest from the additional tax.”

Aggrieved by the decision of the court a quo, the main appellant noted an appeal against part of the judgment to this Court. The cross appellant cross-appealed against part of the same decision.

The appeals were noted on the following grounds:

“1. The court a quo erred in law by holding, that, the legislative intent behind the Income Tax Act [Chapter 23:06] was clearly to match the expense incurred to the income produced in the same tax year.

2. The court a quo erred in law by holding, that, when determining the deductibility of the expense of unused consumables the relevant question was whether 'the appellant had an unconditional legal obligation to purchase' them.

3. The court a quo erred in law by finding, that, the appellant decided to 'purchase consumables in excess of its annual requirements' in circumstances where there was no evidence warranting such a finding before the court.

4. The court a quo erred by disallowing all deductions for consumable stocks in circumstances where it has found that deductions for consumables are allowed in the year when they were consumed.

Relating to issue 5: 'Prepaid expenditure'

5. The court a quo erred in law by apparently expecting opinion evidence, on a question of law relating to the requirement of paying excise duty, from a witness of fact.

6. The court a quo erred in law by appearing to hold, without expressly stating its finding, that, the appellant's obligation to pay excise duty on clear beer removed from the excise bonded warehouse constituted a 'premature discharge of a contingent liability.'

7. The court a quo erred in law by appearing to hold, without expressly stating its finding, that, the appellant's obligation to pay for an annual insurance premium that straddled two tax years constituted a 'premature discharge of a contingent liability.'”

“1. The Special Court for Income Tax Appeals erred in allowing as a deduction, in terms of section 15(2(a) of the Income Tax Act [Chapter 23:06], expenses relating to royalties in respect of each tax year in issue when the cross-respondent was not a party to the agreement in terms of which such royalties were payable.

2. The court a quo further erred in finding that payments made in respect of trademarks or brands were expenditure incurred for the purposes of the cross-respondent producing income.

3. The court a quo further erred in finding, that, the cross-respondent was entitled to pay fees in terms of the Technical Services Agreement which was concluded between Delta Corporation Limited and SAB Miller Management BV to which the cross-respondent was not a party.

4. The court a quo erred in finding, that, the cross-respondent was entitled to pay fees in terms of the Technical Services Agreement at the rate of 1.5% of turnover when it was clear that SAB Miller itself was charged fees on a cost-plus mark-up basis by its South African sub-contractors and when the Group policy was that the cost plus mark-up basis was the method of charging such fees.

5. The court a quo further erred in finding, that, the cross-respondent was entitled to pay and deduct the amount of US$603,792 in respect of inventory revaluation, as an expense incurred against its income in terms of section 15(2)(a) of the Income Tax Act when the value of the stock adjusted had already been factored into the computation of the gross profit which was subject to the income tax.

6. The court a quo further grossly erred in finding, that, the cross-appellant was not correct in imposing a penalty of 50% of the taxes due upon the assessments on the cross-respondent.

7. The court a quo further grossly erred in setting aside the interest imposed upon the cross-respondent when it was not shown that the Commissioner of the cross-appellant had been grossly unreasonable in imposing such interest at 10%.”

Counsel for the main appellant, in the main appeal, submitted, that, the appellant bought consumables which did not run out in the first year and were carried into the second year. He further submitted, that, deductions could only be made in the first year and that the matching principle did not apply.

Counsel for the appellant submitted, that, the matching principle cannot be used as it apportions costs over two tax years as there were un-utilised consumables carried over from the year of purchase.

He contended, that, the cause of action arose when the consumables were bought and the expense was incurred in year one. To that end, he argued that the appellant has to deduct the expenses of the purchases in year one and that there should be no splitting of the expenses into both years.

Counsel for the main appellant asserted, that, the statutory prepaid expenditure on record, establishes that the expenditure was incurred in terms of statute and cannot therefore be a prepayment as alleged by the respondent. He submitted, that, the court a quo was correct in allowing the deductions but it was not clear how it went on to make a finding in favour of the respondent.

Counsel for the main appellant submitted, that, the court a quo erred by disallowing all deductions for consumable stocks in circumstances where it had found that deductions for consumables are allowed in the year when they were consumed.

Concerning the fifth ground of appeal, relating to stock and trading stock, counsel for the main appellant argued, that, deductions were meant for stock in general to avoid double deductions.

On the imposition of penalties, counsel for the main appellant averred, that, the matter would have to be remitted to the court a quo for it to determine whether or not section 98 of the Income Tax Act applies.

In relating to the cross appellant's grounds of appeal number six and seven, on penalty and interest, counsel for the main appellant argued, that, the proceedings were neither an appeal in the strict sense nor a review, as the court a quo can consider evidence placed before it and come up with a decision on penalty and interest based on its own discretion.

On whether or not brands and trademarks contribute towards the making of income, counsel for the main appellant submitted, that, they significantly contribute in the making of income.

In respect of inventory revaluation, he submitted that they were correctly allowed in terms of paragraph 4 of the Second Schedule of the Income Tax Act.

In respect of the technical services, he argued that the court a quo correctly found that they were deductible.

Counsel for the cross appellant submitted, that, the consumables the main appellant sought to deduct were not utilized in the year of purchase, therefore, in terms of section 15(2)(a) of the Income Tax Act, one cannot interpret the section without taking into consideration the purpose for which the expense was incurred.

He argued, that, the matching principle applied as the purchase of consumables should be for the purpose of making an income in the tax year in which the purchases were made.

Counsel for the cross-appellant contended, that, the consumables were bought in excess and could not all be deducted in the same tax year. He submitted, that, the excess consumables were not consumed and did not generate income.

He further submitted, that, it is by the reasonable interpretation of the law that the matching principle must be applied.

He argued, that, the deduction for payments of royalties should not be allowed as there is no nexus between the main appellant and the holder of the royalties.

Concerning ground of appeal number two, he submitted, that, trademarks, brands, and the know-how generate little money unless advertised.

He further submitted, that, the advertising costs are deductible and that it is the advertising that generates income and that if the products are not advertised they remain as stock.

Counsel for the cross appellant asserted, that, there was no evidence proving that brands and trademarks contribute towards the making of income.

In relation to the main appellant's third and fourth grounds of appeal, he submitted, that, the court a quo found that the main appellant's witness was not a credible witness.

He contended, that, it was the SAB Miller policy to pay on a cost-plus mark-up basis, but, the court a quo found that the appellant was obliged to pay the holding company on a turnover basis of 1.5 percent.

Concerning prepayment of excise duty insurance premiums, counsel for the cross-appellant averred that the court a quo did not hear evidence on this issue as none was placed before it.

On technical fees, counsel for the cross-appellant submitted, that, the court a quo should have determined whether or not the agreement between the Dutch company and Delta Corporation (Private) Limited and that between the main appellant and Delta Corporation was not aimed at tax avoidance.

In respect of inventory revaluation, he submitted that the deduction should not have been allowed as that would amount to a double deduction.

Counsel for the main appellant submitted, that, the question of whether or not the main appellant was a party to the agreement was a factual finding on which the cross appellant had made a concession to the effect, that, the agreement was genuine.

He averred that the cross appellant's case was whether or not a deduction could be allowed, and, on the other hand, its case was that deductions were justified if there was an obligation to pay.

He therefore argued, that, the cross-appellant was approbating and reprobating.

In respect of the use of trademarks to make an income, counsel for the main appellant submitted, that, one can make an income from brands or trademarks, which is a sign of the quality of the product. He argued that section 8(1) of the Income Tax Act defines gross income and income in a way which establish that income can be generated by a brand or a trademark.

Counsel for the main appellant averred, that, the Exchange Control Act allowed the charging of these fees and sets an upper limit of 3 percent.

The appeals raise the following issues for determination:

1. Whether or not the court a quo correctly found, that, the legislative intent behind the Income Tax Act was to match the expenses incurred to the income produced in the same tax year and to allow the deduction of statutory prepayments which cover a period beyond the year of taxation in the tax year of payment.

2. Whether or not the court a quo erred in ordering the Commissioner to add back to the main appellant's taxable income deductions for consumables used to make an income in the year of taxation.

1. Whether or not the court a quo erred in allowing the deduction of royalties by the main appellant when it was not a party to the agreement between the Dutch company and its holding company for the use of the Dutch company's brands and trademarks.

2. Whether the court a quo erred when it allowed the main appellant's deduction of payments of technical services without resolving whether or not such deductions contravened section 98 of the Income Tax Act.

3. Whether the court a quo erred when it allowed the main appellant's deduction of US$603,792 for inventory revaluation.

4. Whether or not the court a quo was correct in reducing to 10 percent the 50 percent penalty imposed and waiving in full the interest charged.

It must be stressed, that, the Special Court for Income Tax Appeals is not a court of appeal in the strict sense because when it hears these appeals, it is a re-hearing of the matter and it exercises its own discretion. It can even hear and rely on evidence and submissions which were not placed before the Commissioner.

This position was stated in Sommer Ranching (Pvt) Ltd v Commissioner of Taxes 1999 (1) ZLR 438 (SC)…, where GUBBAY CJ emphasized that:

“Presently, it is well settled that in an appeal against a decision where the Commissioner exercised a discretion, the Special Court is called upon to exercise its own original discretion. Nor is it restricted to the evidence which the Commissioner had before him. The appeal to the Special Court is not only a rehearing, but, can involve the leading of evidence and the submission of facts and arguments of which the Commissioner was unaware: see also Commissioner for Inland Revenue v da Costa 47 SATC 87 (A) at 95; 1985 (3) SA 768 (A) at 775B-G; K v Commissioner of Taxes 1993 (1) ZLR 142 (S) at 147B-F; 55 SATC 276 (ZS) at 281.”

The appeal before the court a quo was therefore not merely a review of the correctness of the Commissioner's determination, but, the court was required to exercise its own independent discretion unaffected by that of the Commissioner....,.

It was submitted for the cross appellant, that, the court a quo erred in finding that it had not correctly exercised its discretion in determining the appropriate penalties on assessing the taxes due from the appellant.

It was further submitted, that, the court a quo erred in setting aside the interest imposed against the appellant when it had not been established that the Commissioner had been grossly unreasonable in imposing such interest at 10 percent.

In determining this issue, the court a quo reasoned as follows:

“A reading of Mr Magwaliba's written heads of argument show that the Commissioner penalized this large conglomerate for the perceived defective tax advice rendered to it by a bevy of internal accountants, reputable external tax consultants, and legal practitioners. Additionally, the appellant was punished for failing to consult the liaison officer attached to it by the Commissioner.

Apparently, the Commissioner also considered the very substantial outstanding amount in unpaid taxes. It seems to me, that, a legitimate difference of opinion between the appellant, its employees, and advisers on the one hand and the Commissioner, on the other, can never be regarded as aggravatory.

The Income Tax Act contemplates such differences.

I do not think that a taxpayer should be precluded from expressing its strong and reasoned opinion for fear that if proved wrong it might be disproportionately penalized.

Fortunately for the taxpayer, the Appeal Court exercises its own unrestricted discretion in determining the appropriate penalties.”

It is trite that the Special Court for Income Tax Appeals exercises its own unrestricted discretion in determining the appropriate penalties.

The principles to be taken into consideration in determining the appropriate penalty are set out in PL Mines (Pvt) Ltd v Zimra 2015 (1) ZLR 708…, where the court held that:

“The principles governing the imposition of a penalty are well developed in our criminal law. In S v Zinn 1969 (2) SA 537 (A) at 540G (approved by the Constitutional Court of South Africa in S v M (Centre for Child Law as Amicus Curie) 2008 (3) SA 232 (CC) para [10] at page [109] the triad of the crime, the offender, and the interests of society were enunciated and envisaged to holistically embrace all considerations necessary in the imposition of any penalty.

The principle has been applied in Zimbabwe in such cases as S v Gondo 1990 (2) ZLR 171 (S) at 173A and S v Mudzamiri & Anor 1993 (2) ZLR 43 (S) at 48A.

Since this appeal constitutes a re-hearing, I am not restricted by the considerations of the Commissioner. I will take into account all factors raised by both counsel in their respective oral and written submissions.”…,.

As pointed out earlier, the court a quo justified why the penalty of 50 percent was not warranted in the circumstances of this case, largely relying on the circumstances leading to the main appellant's objection and the fact, that, the figure initially claimed by the cross appellant had dropped significantly pursuant to the objections the main appellant had made to the cross-appellant.

In its judgment, which I find to be correct, the court a quo set aside the Commissioner's revised assessments of 5 May 2016 and directed him to issue further revised assessments allowing the main appellant's deductions specified in its order. This has the effect of further reducing the main appellant's liability for tax from the cross appellant's initial re-assessment of USD42 million, which it, on objections being filed, reduced to USD30 million.

The amount owed, and the reasons for the delay in paying tax, has a bearing on the penalty and interest to be charged.

However, when tax is not paid because the taxpayer has legitimate reasons for raising objections and the objections are upheld, the Special Court for Income Tax Appeals can use such circumstances to reduce the penalty and interest imposed by the Commissioner.

The court a quo's findings on the main appellant's culpability and level of success on appeal before it should also be considered in determining the penalty and interest it has to pay.

Evasion of tax also plays a role in determining the interest and penalty to be charged.

Counsel for the main appellant, assuming that the Commissioner's position had been influenced by a perceived tax evasion, submitted that the matter should be remitted to the court a quo for it to determine whether or not section 98 of the Income Tax Act applies.

Counsel for the cross appellant argued, that, the main appellant's argument in this regard was based on a simulated argument which was not pleaded, and that, if it was simulated, the Commissioner did not state anything to that effect. The court a quo cannot therefore be faulted in that regard as there was no section 98 case before it. The provision relates to the powers of a Commissioner when it is established that a taxpayer is evading tax.

In casu, no allegations were made entitling the invocation of section 98 of the Income Tax Act, therefore, the Commissioner could not make adverse decisions in terms of that section. It is in fact common cause that the Commissioner did not act in terms of section 98.

I am satisfied, that, the court a quo correctly determined the issue of penalty and interest.

The appellant is Homelink (Private) Limited, a registered money-lender in terms of the law. The respondent is a Zimbabwean national living in the diaspora.

On 17 August 2018, the parties entered into a loan agreement which came into effect on 30 October 2018. In terms of the agreement, the respondent was granted a loan in the sum of US$450,000 to purchase an immovable property, being a certain piece of land situate in the district of Salisbury called the remainder of Stand 251 Helensvale Township measuring 8,242 square metres in extent also known as 2 Denys Close, Helensvale, Harare.

The same Stand was also to be used as security for the loan. A mortgage bond was accordingly registered in favour of the appellant in the sum of US$450,000.

The parties also agreed that the interest applicable to the loan “shall be at a variable rate currently pegged at 10 percent per annum or at such rate as shall be determined by the Lender from time to time.”

Furthermore, that the interest “shall be calculated on the outstanding balance (at all times expressed in United States Dollars) at the prevailing interest rate.”

It was also agreed that repayments would commence on 30 October 2018 and that “the principal balance, interest, and charges accruing thereon shall have been paid in full by 30 September 2033.”

The parties also agreed, in clause 10, as follows:

“10 CHANGES IN CIRCUMSTANCES

10.1 If by reason of:

10.1.1 The introduction of any change in any applicable law or regulation, or any change in the interpretation or application thereof; or

10.1.2 Compliance by the Lender with any directive, request or requirement (whether or not having the force of law) of any Central Bank, Government, fiscal, or other authority;

10.1.3 It becomes unlawful or it is prohibited or it is contrary to such directive, request or requirement for the Lender to maintain the Loan or to give effect to any of its obligations, as contemplated by this Agreement, then, the Lender may notify the Borrower and the Borrower shall promptly prepay the Loan, together with all interest costs and expenses accrued thereon.”

At the time that the loan agreement was concluded, the United States dollar was the dominant legal tender along with other multi currencies.

Although the loan was expressed in United States dollars, it was disbursed in two parts or tranches.

US$5,685=85 was disbursed on 13 September 2018. The greater part of the loan, in the amount of US$444,341=15 was disbursed on 16 November 2018 - after the separation of the RTGS dollars and nostro foreign currency bank accounts and it was disbursed in RTGS dollars or local currency at the rate of one-to-one to the United States dollar.

The reason for disbursement of the greater part of the loan in RTGS dollars is unexplained in the papers.

In its opposing affidavit a quo, the respondent merely states as follows:

“The correct position is that S.I.33 of 2019 came into force on 22 February 2019. The sum of US$444,341=15…, was disbursed on 16 November 2018 as stated above.”

In his application in the court a quo, the respondent stated the crisp issue before the court as follows:

“The legal issue is whether or not the loan agreement, or the liability arising therefrom, falls within the ambit of section 4(1)(d) of S.I.33/2019 now incorporated in terms of section 22(1)(d) the Finance (No.2) Act 2019 and is therefore deemed to be in RTGS dollars at a rate of one-to-one to the United States dollar.”

As stated at the commencement of this judgment, the court a quo found in the respondent's favour. The court stated, at p8 of its judgment:

“The difficulty of the dispute of the parties is exacerbated by the fact that neither the Principal Act nor the Finance (No.2) Act of 2019 appears to have defined the phrase foreign loan and/or obligation.

However, insights into the same can be gleaned from what the Cambridge Dictionary states on that issue: dictionary.cambridge.org defines a foreign loan as a loan to, or from, a Government or an organisation in another country. The Longman Business Dictionary defines foreign loan as a loan to a country or organisation made by a foreign Government or financial institution.

It is evident, from the definitions which have been examined, that, the loan which the respondent advanced to the applicant does not fall under the definition of a foreign loan. Nor can the obligation which arises from the contract of the parties be classified/defined as a foreign obligation to the applicant. The loan has all the characteristics of a domestic loan which falls under the ambit of the provisions of the Act.”

The court found, at p9:

“The loan cannot, by any stretch of imagination, be defined as a foreign loan. It is, to all intents and purposes, a local loan which is classified as such because of the characteristics which are apparent on its face. It is, accordingly, properly covered under the provisions of the Act.”

The appellant was aggrieved by the court a quo's decision granting the declaratur sought by the respondent and it filed this appeal on the following grounds:

“1. The court a quo erred and misdirected itself in not giving effect to the parties agreement, namely, that, all repayments would be made in United States Dollars. Consequently, the court a quo made a contract on the parties behalf;

2. The court a quo erred and misdirected itself in not finding that the parties loan agreement was a foreign obligation within the contemplation of section 21(2)(b) of the Finance (No.2) Act 2019 and therefore continued to be payable in foreign currency.”

The appellant prayed for the success of his appeal and for the setting aside of the decision of the court a quo and the substitution thereof with an order dismissing the application with costs.

Counsel for the appellant submitted, that, the issue arising from the appellant's second ground of appeal is dispositive of this matter; the narrow issue being whether the court a quo was correct in finding that the loan agreement was not a foreign loan, within the contemplation of section 21(2)(b) of the Finance (No.2) Act of 2019, that continued to be payable in foreign currency.

It was his submission, that, the first ground of appeal will either be upheld or fall away depending on the finding thus made regarding the nature of the loan agreement. If it is a foreign loan, the first ground of appeal must succeed, but if not, then the first ground falls away, so he contended.

Counsel sought to buttress the appellant's stance, that the loan is a foreign obligation, by submitting that the loan in casu was issued on the strength of exchange control approval given by the Reserve Bank of Zimbabwe. He referred the court to a document at p65 of the record.

It is a letter dated 2 August 2019 authored by the Deputy Director, Foreign Investment, at the Reserve Bank of Zimbabwe and addressed to the Managing Director of the appellant. The body of the letter reads:

“Thank you for your letter dated 09 July 2019 regarding the request to continue issuing diaspora mortgages in foreign currency. We wish to advise that Homelink (Pvt) Ltd can continue to issue mortgages denominated in foreign currency to diaspora clients as authorised under Exchange Control authority GR4268 dated 26 October 2016.”…,.

To his credit, counsel readily conceded that the appellant's failure to attach to its papers the authority referred to as GR4268 placed the court a quo, and, by extension, this Court, in an invidious position as its contents are and remain unknown.

Counsel argued, that, the court a quo ought to have accepted and adopted a wider and more generous definition of a foreign loan or foreign obligation and that if it had done so, it would have found that the loan agreement in casu was a foreign obligation on the part of the respondent and that it therefore continued to be payable in United States dollars.

It was also counsel's submission, that, the disbursement of the loan in local currency was immaterial to the determination of the dispute as that was in accordance with the dictates of the agreement which clearly stipulated that repayments were to be made in United States dollars.

He placed reliance for this submission on the case of Magodora & Ors v Care International Zimbabwe 2014 (1) ZLR 397…, SC24-14 where this Court held that:

“In principle, it is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be onerous or oppressive. This is so as a matter of policy.”

Counsel for the respondent, on the other hand, submitted that the appellant's second ground of appeal relates to findings of fact and the conclusion made by the court a quo that the loan was a domestic loan. That being so, the principle relating to appellate courts not lightly upsetting findings of fact by lower courts applies.

Counsel submitted, that, the factual findings made by the court a quo were based on and supported by the evidence that was placed before the court.

He further submitted, that, on an application of the definitions that the court a quo had regard to and applied to the facts, one of the parties to the contract had to be a foreigner, and, in casu, neither of the parties was a foreigner.

Although the respondent was working in Ethiopia, the mere fact of him coming home to enter into the contract showed that it was a domestic loan. Furthermore, the respondent's domicilium citandi et executandi did not change his Zimbabwean domicile.

He further submitted, that, the agreement having been signed in Harare, Zimbabwe, by a Zimbabwean national and a Zimbabwean moneylender, for the sole purpose of the purchase of an immovable property in Zimbabwe, the loan was undoubtedly not a foreign loan.

Counsel argued, that, the disbursement of the greater part of the loan in RTGS dollars was another telling factor, further justifying and fortifying the court a quo's findings.

He submitted, that, there was thus nothing to warrant a finding by this Court that the court a quo's findings were irrational and therefore called for interference.

Regarding the appellant's first ground of appeal relating to sanctity of contract, counsel submitted, that, by enacting section 22(1)(d) of the Finance (No.2) Act, Parliament abrogated the said common law principle.

For convenience, the provision is reproduced hereunder:

“That, for accounting and other purposes (including the discharge of financial or contractual obligations), all assets and liabilities that were, immediately before the first effective date, valued and expressed in United States dollars (other than assets and liabilities referred to in section 44C(2) of the principal Act), shall, on the first effective date, be deemed to be values in RTGS dollars at a rate of one-to-one to the United States dollar.”

The issue for determination by this Court is whether or not the loan agreement entered into by and between the parties is a foreign loan which gave rise to a foreign obligation payable in foreign currency by the respondent.

This stated issue is dispositive of the appeal. This is so because, as rightly pointed out by the court a quo at pp10-11 of its judgment:

“Where the law speaks in clear and unambiguous terms about the substance of any matter, the intention of the Legislature should be respected as well as given respect to. That intention takes precedence over the parties intention as expressed in their contract.”

Section 4 of S.I. 33/2019 provides in relevant part:

“4(1) For the purposes of section 44C of the principal Act, as inserted by these regulations, the Minister shall be deemed to have prescribed the following with effect from the date of promulgation of these regulations (“the effective date”) –

(a)…,.

(b) That, Real Time Gross Settlement system balances expressed in the United States dollar (other than those referred to in section 44C of the principal Act) immediately before the effective date, shall, from the effective date, be deemed to be opening balances in RTGS dollar at par with the United States dollar; and

(c)…,.

(d) That, for accounting and other purposes, all assets and liabilities that were, immediately before the effective date, valued and expressed in United States dollars (other than assets and liabilities referred to in section 44C(2) of the principal Act), shall, on and after the effective date, be deemed to be values in RTGS dollars at a rate of one-to-one to the United States dollar.”

The provisions in section 4(1)(d) of SI 33/2019 (supra) were incorporated in the Finance (No.2) Act 2019, section 22(1)(d) of which provides:

“(1) Subject to section 5, for the purposes of section 44C of the principal Act, the Minister shall be deemed to have prescribed the following with effect from the first effective date -

…,.

(d) That, for accounting and other purposes (including the discharge of financial or contractual obligations), all assets and liabilities that were, immediately before the first effective date, valued and expressed in United states dollars (other than assets and liabilities referred to in section 44C(2) of the principal Act) shall, on the first effective date, be deemed to be values in RTGS dollars at a rate of one-to-one to the United States dollar.”…,.

The Finance (No.2) Act 2019 further provides, in section 22(4)(a), that:

“(4) For the purposes of this section -

(a) It is declared for the avoidance of doubt, that, financial or contractual obligations concluded or incurred before the first effective date, that were valued and expressed in United states dollars (other than assets and liabilities referred to in section 44C(2) of the principal Act), shall, on the first effective date, be deemed to be values in RTGS dollars at a rate of one to one to the United States dollar.”…,.

The appellant contends, that, by virtue of the provisions of section 44C(2)(b) of the principal Act, the respective assets and liabilities of the parties in casu are excluded from the effects of section 4(1)(d) of SI 33 of 2019.

Section 44C(2) of the principal Act (the Reserve Bank of Zimbabwe Act [Chapter 22:15] provides as follows:

“(2) For the avoidance of doubt, it is declared that the issuance of any electronic currency shall not affect or apply in respect of -

(a) Funds held in Nostro foreign currency accounts, which shall continue to be designated in such foreign currencies; and

(b) Foreign loans and foreign obligations in any foreign currency, which shall continue to be payable in such foreign currency.”

In Zambezi Gas Zimbabwe (Pvt) Ltd v N.R. Barber (Pvt) Ltd & Anor SC03-20 (Zambezi Gas), at p9, this Court concluded:

“In interpreting section 4(1)(d), regard should be had to assets and liabilities which existed immediately before the effective date of the promulgation of S.I.33/19. The value of the assets and liabilities should have been expressed in United States dollars immediately before 22 February 2019 for the provisions of section 4(1)(d) of SI33/19 to apply to them.

Section 4(1)(d) of S.I. 33/19 would not apply to assets and liabilities, the values of which were expressed in any foreign currency other than the United States dollar immediately before the effective date….,.

It is the assessment and expression of the value of assets and liabilities in United States dollars that matters.

Section 4(1)(d) of SI 33/19 is specific as to the type of assets and liabilities that are excluded from the reach of its provisions. The origin of the liabilities is not a criterion for exclusion….,.

What brings the asset or liability within the provisions of the statute is the fact that its value was expressed in United States dollars immediately before the effective date and did not fall within the class of assets and liabilities referred to in section 44C(2) of the Reserve Bank of Zimbabwe Act [Chapter 22:15] (“the principal Act)….,.”

It is without doubt, that, Zambezi Gas Zimbabwe (Pvt) Ltd v N R Barber (Pvt) Ltd & Anor SC03-20, having interpreted and clarified the law, the appellant can only succeed in this appeal if it can show, that, the loan agreement in casu is a foreign loan and that the court a quo therefore erred and misdirected itself in coming to a contrary conclusion.

The inescapable facts that the court a quo properly paid regard to are that the lender and the borrower in the loan agreement were both Zimbabweans, albeit an institution and an individual; the loan agreement was executed in Zimbabwe; the sole purpose of the loan was the purchase of an immovable property situated in Zimbabwe; the loan was largely disbursed in local currency, except for a small portion that was disbursed earlier in United States dollars at a time when the United States dollar was one of the legal tender currencies.

Sight is not lost to the fact, that, the above are factual findings made by the court a quo.

No irrationality was alleged or shown in the making of such findings. No specifics were provided as to the nature and source of the “generous” or 'wider' definition of “foreign loan” or 'foreign obligation' that the court a quo is criticised for not having had regard to.

The contention, that, the exchange control approval that was given by the Reserve Bank of Zimbabwe (RBZ) was proof that this was a foreign loan was not supported by documentary evidence.

No explanation was proffered as to why the alleged document, which does not form part of the papers, was not relied on and availed by the appellant.

This is a chamber application made in terms of Rule 13(1) of the Supreme Court Rules 2018 (“the Rules”).

The applicant seeks the review of a decision of the first respondent, the Registrar of this Court, that deemed an application for condonation for the late filing of an appeal abandoned and dismissed it.

After hearing the parties, I issued the following order:

“IT IS ORDERED THAT:

1. The decision of the first respondent, of the 21st of October 2021, to regard as abandoned and to dismiss a chamber application for condonation for late noting of an appeal and for extension of time within which to appeal, filed in SC362/21, be and is hereby declared to have been in error and is hereby set aside.

2. The applicant's application for condonation of non-compliance with Rule 37(1) and Rule 38(1) of the Supreme Court Rules lodged in case number SC362/21 be and is hereby reinstated.

3. Each party shall bear its own costs.”

I indicated that the full reasons for my decision would follow. What follows hereunder are those reasons.

On 5 October 2021, the applicant filed an application for condonation of the late noting of an appeal under case number SC362/21. The application was served on the second and third respondents on that date, and on the fourth respondent on 7 October 2021.

It is common cause that the certificates of service were only filed on 12 October 2021.

Despite the filing of the proof of service on 12 October 2021, by a letter date-stamped 21 October 2021, the Registrar notified the applicant that in terms of Rule 39(2) of the Rules, the application under SC362/21 had been regarded as abandoned and dismissed.

Due to its importance in the resolution of the present application, I reproduce the letter hereunder:

“RE: JOHN BASERA VS SAMUEL TENDAI MUVUTI AND 2 OTHERS SC362/21

Reference is made to a Chamber Application you filed on the 5th of October 2021. It is noted that you did not serve your application to the respondents in terms of Rule 39(2) of the Supreme Court Rules (2018).

In terms of the aforementioned rule, the application is regarded as abandoned and is hereby dismissed.”

In response, the applicant's legal practitioners wrote a letter to the Registrar contending that her decision had been made erroneously and requesting her to rectify it because the application had been served on the respondents.

Indeed, the Registrar appeared to acknowledge the error in her letter dated 5 November 2021.

The Registrar, however, advised the applicant that she could not review her own decision, and, thus, invited the applicant to proceed in terms of Rule 13 of the Supreme Court Rules, which he has done.

In his founding affidavit, the applicant asserted that the chamber application under case number SC362/21 was filed and served within three days. He stated that Rule 43 of the Supreme Court Rules does not make the filing of certificates of service peremptory.

He further averred that the Registrar erred by dismissing his application in terms of Rule 39 of the Supreme Court Rules rather than in terms of Rule 43 of the Supreme Court Rules.

Significantly, in her report, prepared in terms of Rule 13(3) of the Supreme Court Rules, in respect of the present application, the Registrar rendered two conflicting reasons for dismissing the application:

(i) First, she stated that she dismissed the application on the basis that the applicant had not served the application on the respondents within three days of filing or furnished proof of such service.

(ii) Second, she stated that “the applicant filed proof of service of the application on the 12th of October 2021. The delay is the basis of the Registrar's decision.”

Counsel for the applicant motivated the application on three grounds:

(i) Firstly, he submitted that the application was, as a matter of fact, filed and served on the respondents within three days. He referred to the certificates of service that were filed of record as proof of this fact.

(ii) Secondly, he submitted that there is no requirement in Rule 39(2) of the Supreme Court Rules for proof of service to be filed within the three days of the filing of the application. This would not only be impossible, so it was argued, but also impractical.

(iii) Thirdly, he argued that the decision of the Registrar was erroneous because Rule 39(2) of the Supreme Court Rules was inapplicable in the circumstances of this case; the application having been filed in terms of Rule 43(4) of the Supreme Court Rules, it could only be regarded as abandoned and deemed to have been dismissed under that sub-rule.

Counsel for the fourth respondent indicated, that, the fourth respondent was not opposed to the application: as such, she did not make any submissions.

A review application under Rule 13 of the Supreme Court Rules is equivalent to what INNES CJ termed “review by motion” in the case of Johannesburg Consolidated Investment Co. v Johannesburg Town Council 1903 TS 111…,.

Under this form of review, and as INNES CJ stated, a Court or a Judge reviews the proceedings or decisions complained of and sets them aside or corrects them, if:

(a) A public official disregards important provisions of a statute that imposes obligations on him or her;

(b) A public official is guilty of gross irregularity.

It is settled law that a decision will be irregular and irrational where the decision-making body has arrived at a decision “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”

See Secretary for Transport & Anor v Makwavarara 1991 (1) ZLR 18 (S)…,.

A decision would also be irrational if it is irreconcilable with the facts that were before the decision-maker.

(c) There is clear illegality in the performance of a duty.

Illegality arises where the decision-making authority has been guilty of an error in law: see Secretary for Transport & Anor v Makwavarara 1991 (1) ZLR 18 (S).

See also Affretair (Pvt) Ltd & Anor v MK Airlines (Pvt) Ltd 1996 (2) ZLR 15 (S).

Although the above list is not exhaustive, where any of the above grounds are established, a Judge is bestowed with discretion regarding the appropriate order to make. He or she may amend, confirm or set aside the decision of the public official, in this case the Registrar, or give any other order as he or she thinks fit.

See Rule 13(4) of the Supreme Court Rules and section 169(4) of the Constitution of Zimbabwe 2013.

This application turns on the simple question whether or not the applicant failed to comply with Rule 43(4) of the Supreme Court Rules as to attract the consequence of the application being regarded as abandoned and therefore dismissed.

Rule 43(4) of the Supreme Court Rules provides that:

“(4) An application in terms of this rule and accompanying documents shall be filed with a registrar and thereafter served on the respondent within three days, failing which the application shall be regarded as abandoned and deemed to have been dismissed.”

The resolution of the matter involves a purely interpretative exercise.

On a literal interpretation “if the words of a statute are clear then one must follow them - even if they lead to a manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity.”

See R v Judge of the City of London Court [1892] 1 QB 273…,.; and Chegutu Municipality v Manyora 1996 (1) ZLR 262 (S)…,.

By applying a literal interpretation to the provision in question, the following requirements emerge:

(a) An application under Rule 43 of the Supreme Court Rules must be filed with the Registrar of the Supreme Court;

(b) The application must be served on the respondent within three days of filing; and

(c) If the application is not served on the respondent within three days of filing, it is regarded as abandoned and deemed to be dismissed.

Evidently, the literal interpretation of the Rule does not make it peremptory for an applicant to file proof of service within three days of filing the application.

It however makes it abundantly clear that if an application is not served on the respondent, within three days of filing, it is regarded as abandoned and deemed to be dismissed.

That ought to be the end of the matter.

There is nothing in the Rule, in terms of which the Registrar acted, which empowers the Registrar to dismiss an application because of the delay in filing proof of service.

Indeed, the reason given by the Registrar, in her notice to the parties dated 20 October 2021, was that the application was being regarded as abandoned, and, therefore, dismissed because the application had not been served within three days.

The dismissal, as communicated to the parties, was not for failure to file proof of service.

It was factually incorrect, because, to the full knowledge of the Registrar, the application had been served within time. To that extent, the aspect of a delayed filing of a certificate of service pales to insignificance.

It was not open to the Registrar to revise her reasons for deeming the application as abandoned in her report filed in response to this application.

Not that it would have made a difference because nowhere in the rules is it provided that an application can be deemed abandoned and dismissed for failure to file a certificate of service within three days of its filing.

It is only a failure to serve the application that forms the basis for a dismissal.

While Rule 11(2) of the Supreme Court Rules requires proof of service to be filed, it does not fix a time frame for such filing.

Even if one were to interpret the rules as requiring proof of service to be filed, surely, such a generous interpretation cannot extend to requiring proof of service to be filed within three days as well.

In that regard, I agree with counsel for the applicant, that, it would not be practical to comply with such a requirement.

A certificate of service is usually prepared and signed by both the legal practitioner and his or her messenger or clerk, after service has been effected. The legal practitioner signs it after satisfying himself or herself, from inquiry with the messenger or clerk, that service has been effected at the given address, on a given date and time.

It may, however, be alluring to believe that the literal and grammatical interpretation of the subrule does not adequately amplify the meaning of the Rule.

But, even by applying the mischief rule or by taking a purposive approach, there still would not be an imperative, in terms of Rule 43(4) of the Supreme Court Rules, to file proof of service within three days.

In the case of Zimbabwe Electoral Commission & Anor v Commissioner-General, Zimbabwe Republic Police & Others 2014 (1) ZLR 405 (S)…, this Court remarked:

“Another rule of construction, the mischief rule, can be called in aid at this juncture. In order to assist the court in deciding on the true intention of the legislature, the court may have regard to 'the mischief' that the Act was designed to remedy. Thus, the court may look not only at the language of the statute, but also at the surrounding circumstances, and may consider its objects, its mischiefs, and its consequences.”

In the case of S v Meredith 1981 ZLR 123 (AD)…, BARON JA accepted that the existing state of the law and other statutes in pari materia may be relied on to discern what a provision was intended to remedy.

In Chihava & Anor v The Provincial Magistrate & Anor 2015 (2) ZLR 31 (CC)…, the state of the law in place before the enactment which is the subject of interpretation was regarded as a useful aid in ascertaining the legislative purpose and intention.

A comparison of Rule 31(4) of the Supreme Court Rules 1964 and Rule 43(4) of the Supreme Court Rules 2018 reveals, that, the first part of Rule 43(4) of the Supreme Court Rules 2018 and the entire Rule 31(4) of the Supreme Court Rules 1964, are, in essence, the same.

Rule 31(4) of the Supreme Court Rules 1964 was couched as follows:

“(4) A notice of motion in terms of this rule and accompanying documents shall be served on a registrar and copies thereof shall be served on the respondent.”

The only significant difference arises in that Rule 43(4) of the Supreme Court Rules 2018 has the following additional prescription:

“…, within three days, failing which the application shall be regarded as abandoned and deemed to have been dismissed.”

Under the repealed Rules, the failure to serve on a respondent an application for condonation and extension of time within which to appeal would not cause the application to be regarded as abandoned and deemed to have been dismissed.

There was no time limit for serving the application.

Rule 43(4) of the Supreme Court Rules 2018 does, however, cause an application that has not been served on the respondent, within three days, to be regarded as abandoned and deemed to have been dismissed.

In my view, the addition of a deeming provision is indicative of the draughtsman's intention to render non-compliance with the Rule fatal.

Resultantly, it is only the failure to serve an application made in terms of Rule 43 of the Supreme Court Rules 2018 on the respondent that is fatal to the application and not the filing of proof of service.

In Harare Wetlands Trust v Minister of Environment Tourism & Ors SC141–20, this Court made the point that the use of the word “within” in a provision relative to time signifies that the provision is peremptory.

Therefore, the mischief behind the inclusion of a time limit in Rule 43(4) of the Supreme Court Rules 2018 is to curtail unnecessary delays in serving applications for condonation which affects speedy finalisation of litigation.

Applications for condonation should be prosecuted expeditiously.

I reiterate, that, the provision of proof of service, which, for all intents and purposes, is clerical does not affect the speedy movement of cases.

I come to the conclusion, that, the decision taken by the Registrar was erroneously made and should be vacated.

Having said that, I must sound a word of caution to legal practitioners and litigants in general, that, this should not be regarded as carte blanche allowing them to sit on certificates of service.

The Rules require service of applications within three days. They also require the filing of a certificate of service.

Clearly, time is of the essence in this procedure: as such, the prompt filing of a certificate of service is required.

Considering that Rule 11 of the Supreme Court Rules 2018 is silent on the time frame for the filing of a certificate of service, it must be interpreted to mean that compliance should be made within a reasonable time.

In appropriate cases, where there has been an unreasonable delay in complying, the Registrar may be entitled to regard the application abandoned and dismiss it.

This is an application for condonation of late noting of an appeal and extension of time within which to note the appeal. The application is brought in terms of Rule 43 of the Supreme Court Rules 2018.

The first applicant is the erstwhile Mining Commissioner for Masvingo, a post which he says has since been abolished. No issue arises from the said abolition of the post.

The second applicant is a quasi-judicial Board established in terms of section 6 of the Mines and Minerals Act [Chapter 21:05] whereas the third applicant is the Minister responsible for the administration of the Act.

On the other hand, the respondent is a mining concern holding various mining blocks within the first applicant's area of jurisdiction.

Following a dispute over failure to pay inspection fees, the applicants forfeited the respondent's mining claims and offered them to another company called Mining Promotions Corporation.

The company accepted the offer and has since taken over the disputed mining claims through a special grant issued by the Secretary of the Ministry of Mines.

Aggrieved by the alienation of its mining claims, the respondent approached the High Court (the court a quo) alleging fatal procedural irregularity in the process of executing the forfeiture of its mining claims.

The matter went before the late Honourable Justice Phiri, may his soul rest in eternal peace.

After reading documents filed of record and hearing counsel, the learned judge issued the following order on 15 January 2020;

“IT IS ORDERED THAT:

1. The application succeeds.

2. The first respondent's decision to forfeit applicants bear (sic) the following registration numbers, 12379BM, 12380BM, 12381BM, 12382BM, 12383BM, 10913, 10914, 10915, 10916; 10917, 10918, 10919, 10921, 10922, 12666BM, 12667, 126668, 1269, 12670, 12671, 12672, 12673, 12674, 12675 and 12578 is hereby set aside in terms of section 4(2)(a) and (e) of The Administrative Justice Act [Chapter 10:28].

3. The first and second respondents are hereby ordered, within (7) days of this order, to reinstate the applicant's name on the claim's card for the mining claims bearing registration numbers listed in clause 2 of this order and all such other official mining documents for such claims in their custody.

4. The first and second respondents be and are hereby ordered to allow applicant to opportunity (sic) to settle all outstanding inspection fees in respect of the claims listed (in) terms of the law up to the date of this order.”

The above order was issued in the absence of Mining Promotions Corporation which was then the de facto owner of the disputed mining claims.

This is an appeal against the whole judgment of the High Court wherein the court a quo dismissed the appellant's appeal with costs.

The background to this matter is that sometime in 2006, the first respondent purchased five commercial stands in Nyazura from the second respondent and paid for them in full.

Upon commencement of development on the allocated Stands, one Mr Mukada indicated to the first respondent that he had been allocated a portion of the same Stands, thereby essentially constituting a double sale.

Upon enquiry, the second respondent admitted that it had erroneously made a double sale.

In a bid to cure the error, the second respondent allocated new Stands to the first respondent in 2014.

Just as the first respondent was about to commence development, the second respondent persuaded him to allow Total Zimbabwe to take over the Stands with the promise that he would be allocated replacement Stands next to Total Zimbabwe.

As a result, the first respondent averred that he was allocated five commercial Stands (numbers 1497, 1498, 1499, 1500 and 1501 of Nyazura Township) (hereinafter called “the Stands”) by the second respondent sometime in 2014 which are the subject matter of this appeal.

The allocation was done through a letter written to him by the second respondent advising him that he had been allocated the five Stands as replacement for the 2006 allocation.

Once the first respondent made plans to develop the Stands, he contacted the employees of the second respondent who assured him that he was the sole owner of the Stands.

However, on 9 January 2020, the second respondent's legal practitioners wrote to the first respondent demanding proof of confirmation of ownership.

Having been instructed about the letter, the first respondent's legal practitioners contacted the second respondent's legal practitioners for a round table conference. At the round table conference, it was highlighted to the first respondent that the second respondent had done a double allocation of the Stands.

On 21 January 2020, the first respondent became aware of a third party (the appellant) who had already initiated developments on the Stands.

Upon enquiry at the second respondent's offices, it was indicated that the second respondent had leased the Stands to the appellant for a truck hire business until 2024.

It is against this background that the first respondent filed an application for an interdict in the Magistrates Court.

The first respondent first filed an ex parte application in which the appellant was interdicted from occupying or effecting any development or construction on the Stands. The application was made on the grounds that the appellant was infringing on the first respondent's right to occupation of the Stands. He also sought that the appellant, and all those claiming occupation through it, be ordered to vacate the aforementioned Stands.

In seeking confirmation of the provisional order, the first respondent contended that there were no material disputes. He submitted that the real dispute of fact was whether a holder of rights to unsurveyed land cannot protect such rights through an interdict. He also contended, that, since he was allocated the Stands ahead of the appellant, he was entitled to an interdict.

In opposing the confirmation of the provisional order, the appellant averred that it had a valid lease agreement with the second respondent. The appellant further contended, that, it had already commenced developing the Stands and that the developments could not be interfered with since they were bona fide in terms of the lease.

The appellant also argued, that, the first respondent was not entitled to an interdict since he had not tendered adequate proof of ownership.

It further stated, that, the first respondent, by not approaching the second respondent for redress, had not exhausted all domestic remedies available to him.

The Magistrates Court held, that, the second respondent received the purchase price from the first respondent. It further held that after receiving the purchase price, the second respondent proceeded to allocate the Stands in question to the appellant on a lease basis. It found that notwithstanding the absence of title deeds there was proof that the first respondent paid the purchase price thus establishing a clear right over the land. It further found that the first respondent could not have sought redress from the second respondent as the second respondent had interfered with the first respondent's right over the land in favour of the appellant.

In the result, the Magistrates Court was of the view that the requirements for an interdict had been satisfied and thus the application was granted.

The effect of the order was to prohibit the appellant, its agents, employees, contractors, and all those claiming through it from occupying or making any developments on the Stands. It also ordered the appellant to remove its equipment and materials and to restore vacant possession to the first respondent.

Dissatisfied by the decision of the Magistrates Court, the appellant noted an appeal with the court a quo. The grounds of appeal were as follows:

1. The Magistrates Court erred in holding that there were no material disputes of fact.

2. The Magistrates Court erred in holding that the requirements for an interdict had been met despite the evidence.

3. The Magistrates Court erred in holding that the first respondent had proved his rights to the property despite evidence to the contrary.

4. The Magistrates Court erred in holding that there was a double sale despite the fact that the Stands constituted State land.

Before the court a quo, the appellant contended that there was a material dispute of fact regarding which Stands were in contention. Hence, there was need to lead viva voce evidence. Thus, the first respondent could not claim to have a clear right in respect of land he did not own.

The first respondent contended, that, there were no material disputes of fact warranting the leading of viva voce evidence. Thus, the first respondent argued that he had produced evidence proving that he had been allocated the Stands. He further argued that the second respondent had not produced any evidence pointing to the existence of different Stands from those it had allocated to the first respondent. Thus, he argued that the requirements for the granting of an interdict had been met.

The court a quo found no basis for interfering with the findings of the Magistrates Court.

It noted that what is required when a final interdict is sought is that the right must be established clearly on a balance of probabilities. The court a quo held, that, the first respondent had established the requirements for an interdict as he had a clear right.

In the result, the appeal was dismissed with costs.

Aggrieved by the decision of the court a quo, the appellant noted the present appeal on the following grounds:

1. The court a quo erred in law and misdirected itself in finding that the appellant's first ground of appeal, on material disputes of fact, was meaningless and invalid.

2. The court a quo erred in law and misdirected itself in finding, that, there was no misdirection in the magistrates court's ruling that the first respondent was the owner of the land in question and had thus established a clear right entitling him to the final interdict granted in his favour.

3. The court a quo erred in law and misdirected itself in finding that there was no misdirection in the magistrates court's ruling that the first respondent had established the second requirement for a final interdict, namely 'the absence of an alternative remedy'.

4. The court a quo erred in law and misdirected itself in not finding that the magistrates court had wrongly granted a final interdict in favour of the first respondent without an analysis of, an application of its mind to, the third requirement for a final interdict, namely 'irreparable harm actually committed or reasonably apprehended'.

5. The court a quo erred in law and misdirected itself in not finding that the final interdict granted by the magistrates court in favour of the first respondent was an eviction order against the appellant in circumstances where no eviction proceedings had been properly instituted in that court.

In oral submissions, counsel for the appellant focused on the second ground of appeal.

In urging the Court to find for the appellant, counsel argued that the court a quo erred in upholding the Magistrates Court's ruling when the first respondent had not established a clear right to the land.

He submitted, that, with regards to land rights, only a party with a real right is entitled to an interdict against a third party.

Counsel further argued, that, the court a quo had misdirected itself in holding that the respondent had established the requirements for an interdict, particularly a clear right, and that being the case such a finding could not stand.

Per contra, counsel for the first respondent argued that the first respondent had established a clear right, on a balance of probabilities, which entitled him to an interdict.

The fact that the appellant had paid the purchase price and was allocated the Stands was not disputed before the court a quo.

In addition to that, the second respondent did not deny that the Stands had been sold to the first respondent.

The acceptance of the purchase price by the second respondent meant that its rights to the land were now limited. Thus, the second respondent could not lease the Stands to the appellant.

The issue arising for determination in this appeal, in the Court's view, is the following:

The purpose of an interdict is to prohibit unlawful conduct, to compel the doing of a particular act or to remedy the effects of unlawful conduct: in this respect, see HERBSTEIN and Van WINSEN in The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa 5th Ed…,.

The requirements for a final interdict are settled in this jurisdiction. These are:

(a) A clear right;

(b) Irreparable harm actually committed or reasonably apprehended; and

(c) The absence of an alternative remedy.

See Econet Wireless Holdings and Others v Minister of Finance and Others 2001 (1) ZLR 373 (S); Setlogelo v Setlogelo 1914 AD 221…,.

As regards a clear right, again, the authors HERBSTEIN and Van WINSEN in The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa 5th Ed…, define the meaning of clear right as it relates to interdicts as:

“…, the word 'clear' relates to the degree of proof required to establish the right and should strictly not be used to qualify 'right' at all…,. A clear right must be established on a balance of probabilities.”

From the authorities, it is clear that where a final interdict is sought, a clear right as opposed to a prima facie right must be established. Thus, the word “clear” in the context of right in an interdict does not qualify such right but rather expresses the extent to which the right must be established by evidence on a balance of probabilities.

HERBSTEIN and Van WINSEN in The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa 5th Ed also state, that, a right that is sought to be protected by an interdict arises from substantive law. The right can derive from any branch of substantive law to which one must have recourse in order to resolve the dispute involved.

It was the appellant's case, that, for the first respondent to be entitled to a final interdict, he ought to have proved ownership of the Stands in question, failure of which the application for the interdict ought to have been dismissed.

I was not persuaded by counsel for the appellant's argument, that the first respondent was required, in terms of the law, to have real rights to the Stands in order to establish a clear right for purposes of an interdict.

This is because the real dispute between the parties is not related to ownership rights.

In this respect, account must be taken of the purpose of an interdict; which, among other things, is to prohibit unlawful conduct.

It is noted, that, the first respondent sought to prohibit the appellant from occupying and developing the Stands because he had purchased them. The first respondent produced proof of the purchase and allocation of the Stands to him - and neither the appellant nor the second respondent were able to rebut that assertion.

For purposes of protecting his interest in the Stands, the first respondent did not need to prove ownership of real rights as argued by counsel for the appellant.

I am inclined to agree with the first respondent's counsel.

From the evidence placed before the Magistrates Court, and the court a quo, it is evident that the right of the first respondent is clear.

The second respondent issued a letter to the first respondent allocating to him the Stands in question. In addition, the first respondent offered the second respondent a purchase price which it accepted as was proven by the receipt produced before the Magistrates Court.

Therefore, on these facts, the first respondent managed to establish the existence of a clear right in respect of the Stands.

On this basis, I find no reason to attack the findings of the court a quo.

The second hurdle a party has to overcome in order to prove that their particular case favours the granting of an interdict is that they stand to suffer irreparable harm actually committed or reasonably apprehended.

In this case, the appellant had occupied the Stands and had commenced to develop them. This means that the displacement of the first respondent was complete. The harm complained of was to endure until 2024, which was the duration of the lease agreement between the appellant and the second respondent.

Finally, the party seeking an interdict has to prove the absence of an alternative remedy.

The assertion that the first respondent stood to suffer irreparable harm and that there was no other remedy available to him was not challenged before this Court, the court a quo, and the Magistrates Court.

Thus, an inference is drawn to the effect that the first respondent managed to prove that he stood to suffer irreparable harm had the interdict not been granted and that he had no other remedy available to pursue.

In the circumstances, the court a quo cannot be faulted for finding against the appellant as it did.

The appeal has no merit. There is no reason to depart from the general principle that costs follow the cause.

It is accordingly ordered as follows:

The appeal is dismissed with costs.

This is an appeal against the whole judgment of the Administrative Court handed down by MANDEYA J on 13 May 2022.

After hearing submissions from counsel for the parties, the court dismissed the appeal with costs indicating that reasons for the order would be given in due course.

These are the reasons.

The second respondent is the owner of a certain property known as No.1 Petersham Road, Malborough, Harare (the “property”). The appellants are residents of the neighbourhood within which the property is located. The first respondent is a Municipality, Local Planning Authority and an administrative body tasked with the mandate of rendering services to the residents of Harare.

The second respondent, on 9 December 2021, made an application to the first respondent for change of use of its property from residential to use as a church.

The application was opposed by the appellants who feared that the use of the property, as a church, would cause noise pollution thereby disturbing the peace and tranquillity of the neighbourhood. They accordingly filed their objections with the first respondent.

After considering the objections from the appellants, the first respondent granted the application subject to certain conditions. These conditions included, inter alia, a prohibition of the use of certain musical instruments in a way that would disturb the peace of other neighbours. The permit stipulated that the second respondent would construct a sound proof auditorium which was to be inspected by the first respondent's Department of Works.

Dissatisfied by the decision of the first respondent, the appellants lodged an appeal in the Administrative Court (“the court a quo”).

They were challenging the decision of the first respondent on the basis, that, the provisions of the Regional Town and Country Planning Act [Chapter 29:12] (“the Act”) were not complied with before the application was granted. They averred, that, the second respondent neglected to provide all the relevant information required in applications of that nature, in particular, they alleged that it neglected to provide information relating to the external area to be covered by the building, the number of floors of the building, the extent and location of parking facilities for motor vehicles.

Furthermore, they queried the citation of the name of the second respondent in the application. They submitted, that, the Regional, Town and Country Planning Act requires that the owner of the property makes the application or it be done with the consent of the owner.

Their argument was that the owner of the property in question is Spirit Life Church International yet the application before the first respondent was launched by Spirit Life Church. It was their case that Spirit Life Church is a non-existent entity.

The appellants further argued, that, all the interested parties were not notified of the application for the change of use of the property. It was their case that the large number of people who would attend church service would result in noise pollution despite the stipulated precaution.

They contended, that, the permit did not make provision for the costs associated with connection of a sewer system for the church. They also argued, that, the application was granted after the time frame within which to consider it had lapsed.

In response to the appeal, the respondents argued, that, due process of the law was followed before the application was granted.

They disputed the allegation that the notice was not given to all the interested parties and that the application was considered out of time.

With regards to the citation of the second respondent, it submitted that the omission of the word 'International' did not render the second respondent non-existent. They argued that there was no confusion as to the identity of the second respondent.

Further, it was argued that the application form contained all the relevant information to enable the first respondent to consider the application.

The court a quo dismissed the appeal.

It found, that, the argument that the application was considered outside the time frame provided for by the law was unmeritorious as the timeframe was extended by a letter written by the second respondent to the first respondent dated 30 November 2021.

It also dismissed the argument that the respondent did not provide all relevant information. The court held that the application form was to be filled to the extent appropriate.

It found that all the interested parties were notified.

The court a quo dismissed the argument that the first respondent would incur additional costs associated with constructing a sewer line for the church on the basis that the appellants had not motivated that argument.

Aggrieved by the decision of the court a quo, the appellants appealed to this Court on the following grounds:

1. The court a quo misdirected itself when it determined the matter on the mistaken basis that the party that had applied for the permit had granted an extension of the period during which the first respondent herein was obliged to determine that application.

2. The court a quo erred when it failed to determine that the second respondent's failure to provide the information that was required under sections 10, 11 and 12 of the application form invalidated the application on the basis that it violated the peremptory provisions of section 26(1) of the Regional Town and Country Planning Act.

3. The court a quo erred when it failed to determine that the application for the development permit was invalid for the reason that the purported applicant therein, Spirit Life Church, does not exist.

4. The court a quo erred when it failed to determine that the permit that was purportedly granted to the second respondent was invalid for failing to make a provision for the cost of connecting the proposed development to the sewer line.

5. The court a quo erred when it failed to nullify the permit on the basis that the same had been granted on the basis of falsehoods which were contained in the application.

The appellants pray that the appeal be allowed with costs and the decision of the court a quo be set aside and substituted with a decision setting aside the decision of the first respondent to grant the permit, and, that the first respondent dismisses the application for the permit. They also prayed for costs of suit.

(1) Whether or not the court a quo erred in failing to find that due process was not followed before the first respondent granted the permit to the second respondent.

(2) Whether or not the incorrect citation of the name of the second respondent, in the application before the first respondent, was fatal.

In motivating the appeal, counsel for the appellants argued, that, section 26(1) of the Regional, Town and Country Planning Act was not complied with in that the second respondent omitted to fill in Part 2 and 3 of the application form. His argument was that the permit was granted in the absence of all the relevant information required.

He further argued, that, the application was made by a non-existent entity.

His argument was that the Regional Town and Country Planning Act makes it clear that the application ought to be made by the registered owner of the property or with the consent of the owner.

He based his argument on the authority of John v Delta Beverages Ltd SC40-17 wherein it was held, that, the omission of the word “Pvt” was fatal as there was no party called Delta Beverages Ltd.

Further, he submitted that the permit was a nullity as it did not make provision for the costs associated with construction of a sewer system.

In response, counsel for the first respondent argued, that, section 26(1) of the Regional Town and Country Planning Act does not prescribe the information that ought to be contained in the application form. He submitted, that, the form was filled to the satisfaction of the first respondent, hence, the argument that section 26 of the Regional, Town and Country Planning Act was not complied with lacks merit.

It was his argument, that, the application form was complemented by the justification report which contained the full information required, hence, it cannot be said that insufficient information was supplied when the application for the permit was made.

Counsel for the first respondent further argued, that, the decision by the first respondent involves an exercise of discretion. He submitted that this Court should be slow to interfere with an exercise of discretion. His case was that the appellants do not allege that the discretion was exercised injudiciously warranting interference by this Court.

With regards the citation of the second respondent, he argued that the omission of the word 'International' was not fatal. His case was that unlike the omission of the words '(Pvt) Ltd' the omission of the word International does not have legal connotations. He argued that John v Delta Beverages Ltd SC40-17 was distinguishable from this case.

In addition, he submitted that there was already a sewer line in place which the church could connect to.

The appellants first ground of appeal attacks the decision of the court a quo on the basis that it failed to find that the permit was granted after the time limit within which it ought to have been granted had lapsed.

Section 26(7) of the Regional, Town and Country Planning Act provides that:

“If the local planning authority has not determined, in terms of subsection (6), an application in terms of subsection (1) within three months of the date of acknowledgement in terms of subsection (2) of the receipt of the application or any extension of that period granted by the applicant in writing, the application shall be deemed to have been refused by the local planning authority.”..,.

The above section makes it clear, that, if the application is not determined within three months of the date of the receipt of the application, or any extension of the period granted by the applicant, it will lapse.

In casu, the extension was granted by the second respondent, by making the requisite application for extension, on the basis of the pervasive impact of the Covid 19 pandemic. The extension was granted on 30 November 2021 and the permit was granted on 21 December 2021, within a month from the date of extension.

Consequently, it cannot be said that the permit was granted outside the prescribed time-frame. The court a quo was therefore correct to find that the permit was granted within the prescribed timeframe.

The second ground alleges, that, an alleged failure to provide certain information in sections 10, 11 and 12 of the application form amounts to a violation of section 26(1) of the Regional Town and Country Planning Act.

Firstly, section 26 of the Regional, Town and Country Planning Act does not contain any mandatory provision to provide any specific information in an application form.

As correctly argued by counsel for the second respondent, the same form is used when one is making an application for conversion of use or when one is making an application for regularization of buildings which would have been erected without the approval of the first respondent.

It follows, therefore, that all sections need not be filled unless they are relevant.

Section 27 of the Regional Town and Country Planning Act provides that:

“Regularization of buildings, uses or operations

Where any development has been carried out in contravention of section twenty-four, an application may be made in terms of section twenty-six in respect of that development and the local planning authority shall deal with that application in terms of that section, but, any permit granted thereunder shall take effect from the date on which the buildings were constructed, the operations were carried, out or the use was instituted, as the case may be.”

From the above, it is clear that the argument that all the portions of the form must be filled has no legal basis. Moreso, the, Regional Town and Country Planning Act gives the first respondent authority to reject the application in circumstances where it is of the view that the information supplied is insufficient.

Section 26(2) of the Regional, Town and Country Planning Act provides that:

“(2) On receipt of an application in terms of subsection (1), the local planning authority shall examine it and shall:

(a) Within two weeks, acknowledge receipt of the application, unless the application is incomplete, in which case it shall acknowledge receipt thereof as soon as the application is satisfactory; and…,.”

The acceptance of the application by the first respondent creates a presumption that the information supplied was sufficient, within its discretion, to enable it to consider the application.

The appellants failed to successfully rebut the presumption.

Suffice to note is the point that the application form provides that it shall be completed to the extent appropriate. This is clearly stated on the face of the application form. In addition, the application form was accompanied by a detailed justification report which contained all the relevant information that might be required by the first respondent.

In any event, the appellants do not allege any prejudice suffered by them as a result of the alleged missing information.

The ground of appeal has no merit.

The court was inclined to agree with the argument advanced by the second respondent. The case relied upon by counsel for the appellants is distinguishable from the present case.

In John v Delta Beverages Ltd SC40-17, the omission of the word “Pvt” was fatal because the word has legal connotations unlike the omission of the word International.

In any event, there is no confusion as to the identity of the second respondent.

The appellants, in their letter of objection, in the appeal before the court a quo, and the present appeal, cites the second respondent as Spirit Life Church without including the word International.

They cannot, therefore, turn around and claim that Spirit Life Church is a non-existent entity.

To add on, the appellants never raised the objection when the matter was still before the first respondent.

At that stage, the second respondent would have been able to amend its documents.

In Marange Resources (Pvt) Ltd v Core Mining & Minerals (Pvt) Ltd & Ors SC37-16…, this Court commented as follows:

“As for the legal consequences of wrong citations; understandably. very few situations of 'wrong defendants/respondents' or 'wrong plaintiffs/applicants' have had to be decided in our jurisdiction, as such errors, I believe, are routinely rectified in consultation between the parties: see also, for comparison, Paterson TJM, Eckard's Principles of Civil Procedure, Juta and Company Ltd, 2005, 5th ed (2012) p184 where it is stated:

'In the event of these pleas (non-joinder and mis-joinder) being successful, the court will order a stay in the proceedings so that the pleadings can be amended so as to bring the proper parties before the court.'”

In any event, the application for a change of use of a permit before the first respondent did not constitute proceedings in litigation where the strict rules relating to citation of parties apply.

Further, the appellants contend that the court a quo failed to take into account the fact that the permit was granted without making provision for the costs associated with connecting a sewer line for the church.

The court a quo found that the argument relating to the costs of the sewer line was not motivated hence it ought to be treated as abandoned.

The consequence of not motivating all the grounds of appeal was enumerated in the case of Equity Properties (Pvt) Ltd v Alsham Global BVI Limited SC101-21, in which this Court held that:

“It is trite that a failure to motivate a ground of appeal is treated as an abandonment of that ground. The second preliminary point raised is upheld and ground number 4 is accordingly struck out from the notice of appeal.”

In light of the above authority, it can be concluded that the court a quo was correct in treating the ground as having been abandoned. The ground of appeal number 4 is therefore not properly before the court.

The appellants grief before this Court should have been that they argued the issue before the court a quo and it erred by finding that they abandoned the ground.

Whilst still on this point, I must observe that ground of appeal number 5 was not motivated before this Court.

On the authority of Equity Properties (Pvt) Ltd v Alsham Global BVI Limited SC101-21, I take it that it was abandoned and should be dismissed.

Our law yields to a salutary principle that the discretion of a court a quo can only be tampered with in limited circumstances.

This Court has underscored this point in Makintosh v The Chairman, Environmental Management Committee of the City of Harare & Anor SC12-14..., where it held that a decision by the Administrative Court, made in terms of section 38(1) of the Administrative Justice Act, involves a wide discretion which cannot be easily tampered with.

In casu, the appellants have merely regurgitated the case that was before the court a quo, bereft of any meaningful challenge to that court's discretion. The Appellants do not even allege any of the factors required before a discretion can be interfered with.

In the absence of such allegations, the appeal cannot succeed: see also Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S)…,.

It was the second respondent's prayer that costs be awarded on a punitive scale 'for the reason that the Supreme Court ought to remind appellants that it is not a forum for litigious window-shopping by mulcting appellants with a punitive order of costs.'

In my view, no basis was established to mulct the appellants with costs on a punitive scale as they had an arguable case.

On the basis of the foregoing reasons, the court is satisfied that the appellants have failed to establish that the court a quo misdirected itself in upholding the decision of the first respondent wherein it granted the second respondent the permit to convert its property from residential use to use as a church.

The appeal has no merit and should fail.

It is for these reasons that we found that the appeal had no merit and dismissed it with costs.

This is an appeal against the whole judgment of the High Court (the court a quo) in which it dismissed the appellant's urgent chamber application wherein she sought an interdict to prevent the first respondent (the President) from establishing a Tribunal in terms of section 187(3) of the Constitution of Zimbabwe 2013 ('the Constitution').

The appellant is a former judge of the High Court of Zimbabwe having been removed from office by the President on the recommendations of a Tribunal he set up.

What led to the intended establishment of the Tribunal were complaints relating to the appellant's performance as a judge.

In particular, the complaints related to her work output, which was deemed unsatisfactory and below the expected standard. One of the complaints was that the appellant issued a review judgment in respect of criminal proceedings without having properly perused the record of proceedings. As a consequence, she ordered the release, from prison, of a person who had previous convictions which militated against his release.

The position of the fourth respondent, Judicial Service Commission (JSC), was that the appellant's conduct, inter alia, amounted to gross misconduct and/or gross incompetence warranting the referral of the matter to the President in terms of section 187(3) of the Constitution.

It is common cause, that, by letter dated 15 September 2020, the appellant was advised by the Judicial Service Commission (JSC) that she was under investigation for impeachable acts of misconduct.

In response, the appellant's erstwhile legal practitioners, in a letter dated 30 September 2020, wrote back to the Judicial Service Commission (JSC) indicating that the appellant was not obliged to respond to that matter. Their view was that the JSC had no legal authority to deal with the complaints raised against the appellant and that the second respondent (Chief Justice) had no authority to direct the JSC to attend to any complaints against a sitting judge of the High Court.

Further, the letter highlighted, that, in any event, it was premature for the Judicial Service Commission (JSC) to invoke section 187(3) of the Constitution before compliance with the provisions of the Judicial Service (Code of Ethics) Regulations SI107 of 2012 (Code of Ethics).

Consequently, the Judicial Service Commission (JSC) resolved that the question of the appellant's removal from office ought to be investigated by a Tribunal appointed to inquire into the matter in terms of section 187(3) of the Constitution.

It advised the appellant of this resolution by letter dated 12 October 2020.

A day after receipt of the letter, the appellant, through her erstwhile legal practitioners, filed an urgent chamber application under case number HC6128/20 which she subsequently withdrew.

On 26 October 2020, the appellant, through her current legal practitioners, filed yet another application through the chamber book, seeking the Provisional Order which is the subject matter of this appeal. The Provisional Order sought reads as follows: