This is an application for rescission of a judgment of this court entered in default in favour of the first respondent on 26 June 2008 in terms of which the eviction of the applicant and those claiming occupation through him from premises known as 1495 Chiwaridzo Township Bindura was ordered together with costs of suit.

On 4 February 2008, the first respondent issued summons out of this court in case number HC642/08 alleging that the house in question had been leased to the applicant by written lease agreement signed by the parties on 20 December 2003, which lease could be terminated by the first respondent in the event that the applicant left employment with the first respondent.

The first respondent further averred, that, the applicant's employment having been terminated on 31 March 2007, a point which is now hotly disputed by the applicant who claims having retired from the first respondent's employ in October 2005, the lease had been terminated.

The first respondent then sought an order for eviction as a consequence of the applicant's failure to vacate the house following such termination.

According to the Deputy Sheriff's (second respondent herein) return of service filed of record in that matter, the summons was “served on defendant Enock Govha” on 29 February 2008.

On 12 May 2008, the first respondent submitted an application for default judgement which was granted on 26 June 2008 aforesaid. In due course, a writ of ejectment was issued and the applicant's eviction was sought.

It is that default judgment which the applicant seeks to have rescinded arguing that he was not in wilful default as he was never served with the summons.

The applicant has cited the Deputy Sheriff in this application as second respondent and attacked his return of service as being “false and misleading” given that on the day the second respondent alleges he served the summons personally upon him, he (the applicant), was enjoying the fruits of his retirement in his communal home, he having relocated there in January 2006 following his retirement either in October or December 2005.

It is not clear when, as he mentions two (2) different months in 2005 as his retirement date.

It is not clear whether this application was served upon the second respondent as no proof of such service was filed.

What is clear though is that the second respondent has not challenged the serious allegations made against him regarding service of the summons. His failure to do so may be due to the fact that he did not have notice of the application.

The applicant states, in his founding affidavit, that, he only became aware of the existence of the default judgment when the second respondent sought to evict his daughter from the house on 1 November 2008.

He goes on to say, that, he should be allowed to contest the eviction because he bought the house from the first respondent and he paid the full purchase price.

In support of that claim, he has filed documents showing that the first respondent, as employer, offered houses to its employees, including the applicant. Those documents also show that the housing units were valued, their values determined and what each employee was expected to pay as the purchase price assessed and agreed.

The applicant also submitted his payslip showing that deductions were made by the first respondent from his salary under the caption “rent to buy”. The same payslip also reflects the balance after each deduction of the said 'rent to buy' showing that the amount charged was being progressively reduced. In addition, he filed receipts issued by the first respondent for further lump sum payments marked “payment of House 1495.”

For that reason, the applicant is of the firm view, that, having paid the full purchase price for the house, he cannot be evicted from it and has prospects of success on the merits.

The first respondent strongly opposes the application on the basis that the applicant has not shown good and sufficient reasons for the rescission of the judgment entered in default.

It has been argued on behalf of the first respondent, that, as the owner of the house, with title, it is entitled to vindicate against the applicant and that there was never an agreement of sale between the parties involving the house in question.

Counsel for the first respondent insisted that the relationship between the parties was governed by the written lease agreement signed in December 2003, which document the applicant says only recorded the financial arrangement between the parties for the conveyance, to the first respondent, of the purchase price. He vehemently argued, that, in terms of that lease agreement, the applicant would only be eligible for consideration to purchase the house at the expiration of 60 months from the date of the signing of that lease agreement.

Regrettably, counsel for the first respondent did not explain what governed the relationship between the parties before the lease agreement of 29 December 2003 was signed.

He took the view, that, as the applicant retired in March 2007, before the 60 month period had expired, he was not eligible to purchase the house and the first respondent was entitled to reclaim it.

There is a dispute as to when the applicant retired and two (2) different letters purporting to inform him of his resignation have been produced.

The first respondent produced a letter dated 14 November 2007 recording the applicant as having resigned on 31 March 2007.

Counsel for the applicant insists that letter is a recent fabrication by the first respondent, and has produced a letter written by the applicant's Human Resources Manager, M. Nyamadzawo, on 22 June 2005, giving the applicant notice of his retirement on 31 December 2005.

The first respondent has not explained the circumstances under which that letter was written if the applicant had not resigned.

Being an adviser to the first respondent, the second respondent appears to have misled his principal by concealing and deliberately not disclosing to him the Investigating Committee's report.

That kind of conduct cannot be tolerated by these courts.

By consciously ignoring sound advice, thereby deliberately straying into the wilderness of costly illegality, the second respondent cannot cry foul when he is personally visited with adverse costs.

Granted, the second respondent was acting in the course of duty as a civil servant, but, while going about his duties, he was not entitled to act unlawfully thereby trampling on other people's rights.

A civil servant, or any other employee for that matter, who acts unlawfully in the course of duty attracts personal liability for the simple reason that he is not employed to discharge his duties contrary to law. People must not cause harm to others under the guise of executing official duties. 

There is therefore no merit in the second respondent's objection to being sued in his personal capacity.

On 7 January 2009, the applicant filed this application seeking an order compelling the first respondent to change its name within six weeks of the granting of the order.

In its founding affidavit, the applicant averred that it was duly registered by the third respondent on 26 October 2006. On 12 November 2008, it came to its attention that the third respondent had registered the first respondent, whose name is identical to its own.

The applicant further averred, that, on 14 November 2008, it wrote to the third respondent objecting to the registration of the first respondent on the basis that their two names were identical and pointing out that the first respondent's main line of business was also real estate.

No response was elicited by this letter, although, in consequence to a follow up on the letter, the third respondent wrote to the first respondent bringing to its attention the objection and the basis of the objection and gave a copy of this letter to the applicant.

In opposing the application, the second respondent deposed to an affidavit on behalf of the first respondent and also on his own behalf.

In the affidavit, the first respondent indicated, by way of giving a historical background to the dispute, that, as far back as 2001, the promoters of the first respondent had registered a company by the name Southbay Investments (Private) Limited. The promoter was therefore the first to use the prefix “Southbay”.

In 2006, the applicant changed its name from Vineyard Real Estate to its current name with the full knowledge of the existence of Southbay Investments (Private) Limited. Objections were raised to the proposed change of name to no avail.

Regarding the merits of the application, the first and second respondents argued that the applicant did not have goodwill in the name “Southbay”; denied that the first respondent had misrepresented to the public or caused any confusion in the public as to the distinction between the two companies as the first respondent was not trading as a real estate agency and had made no moves to be registered as such with the Estate Agents Council; finally, the respondent argued that there is a big difference between the two companies such that the public will not be confused by the two registrations.

In the main, the second respondent argued that since it was incorporated as a subsidiary to Southbay Investments (Private) Limited, it was not meant to carry out real estate business but to manage the property portfolio of the parent company.

The third respondent did not oppose the application....,.

I now turn to the merits of the application.

Section 24(2) of the Companies Act [Chapter 24:03] provides:

“No name shall be reserved and no company shall be registered by a name which is identical with that for which a reservation is current or with that of a registered company or a registered foreign company or a private business corporation registered under the Private Business Corporations Act [Chapter 24:11] or which so nearly resembles any such name as to be likely to deceive unless the registered company or registered foreign company or private business corporation, as the case may be, is in liquidation and signifies its consent to the registration in such manner as the Registrar may require.”

The applicant argues, firstly, that the registration of the first respondent was unlawful as it was done in contravention of this section. In other words, the applicant is arguing that the third respondent erred at law in registering the first respondent in contravention of the specific language used in the section.

In my view, once the Registrar makes a decision to register a name in terms of the Companies Act, such an exercise, being a juristic act, cannot be impugned by this court save by way of an appeal in terms of section 24(11) of the Companies Act or by way of review at common law.

It is trite, in my view, that the registration of names in terms of the Companies Act is a function in the exclusive discretion of the third respondent: such discretion to be exercised not only in terms of the guidelines set out in the Companies Act, but also judiciously. It is thus a quasi judicial exercise that confers not only corporate status on the company so registered but also creates a new legal persona.

Thus, the decision by the third respondent is not one that can be set aside by this court exercising its own discretion in the matter outside the appeal process set out in the Companies Act and/or outside the inherent powers of this court to review and set aside, in appropriate cases, decisions of inferior tribunals and quasi-judicial authorities.

The application before me is neither an appeal in terms of section 24(11) of the Companies Act nor a review at common law. I therefore cannot set aside the decision of the Registrar on any ground outside the above two processes.

It has not been argued before me that a registration in contravention of the section is void ab initio such that any person can approach this court for the registration to be set aside: see Musara v Zinatha 1992 (1) ZLR 9 (H).

It does not appear to me that it was the intention of the legislature to deem void a registration in violation of the section 24(2) of the Companies Act [Chapter 24:03]:

(i) Firstly, there is no clear language to this effect in the law.

(ii) Secondly, the law provides processes and remedies for redressing grievances arising out of registrations done in contravention of the section.

On the basis of the above, I decline to determine this issue in the present application.

Secondly, the applicant argues, that, in seeking an order from this court to compel the first respondent to change its name, it has approached this court not under the common law of passing off but under the provisions of section 24(13) of the Companies Act which provides that:

“(13) The court may, at any time, on application by any person, order a company to change its name within such period as may be specified by the court on the grounds that the name of the company —

(a) Is likely to mislead the public or gives so misleading an indication of the nature of its activities as to be likely to cause harm to the public; or

(b) Is likely to cause damage to any other person.”

The principles of the law of passing off are well settled in my view. They seek to protect business from unfair competition where one business entity seeks to feather its nest from the goodwill and reputation built up by the plaintiff business enterprise through confusing the public.

The requirements of the delict were well researched upon and discussed by GILLESPIE J in FW Woolworth & Co (Zimbabwe) (Pvt) Ltd v The W Store and Another 1998 (1) ZLR 93 (HC) where…, he describes the delict in the following terms:

“The wrong known as passing-off consists in a representation by one person that his business (or merchandise, as the case may be) is that of another, or that it is associated with that of another, and, in order to determine whether a representation amounts to a passing off, one enquires whether there is a reasonable likelihood that members of the public may be confused into believing that the business of one is, or is concerned with, that of another: per RABIE JA in Capital Estate & General Agencies (Pty) Ltd & Ors v Holiday Innes Inc & Anor 1977 (2) SA 916 (A) at 929.

The 'representation' referred to may be any act by one trader that is calculated to deceive or cause confusion between his goods or business and those of a rival. The act might include the adoption of a trademark, a get-up, or any distinguishing sign or slogan. Where a trader does use a mark so closely resembling that of another as is calculated to cause confusion, 'a trader may be held to have impliedly represented that his goods are those of his rival or that they are connected in some way with his rival. If such conduct causes or is calculated to cause his rival damage, either in the form of diversion of custom or damage to or misappropriation of his goodwill, then the delict of passing-off is committed…,.:' per CORBETT CJ in Royal Beech-Nut (Pty) Ltd v United Tobacco Co Ltd 1992 (4) SA 118 (A) at 122D.”

See also Kellogg Co v Cairns Foods Ltd 1997 (2) ZLR 230 (SC).

In my view, the statutory remedy of compelling a competitor company to change its name under section 24 of the Companies Act is akin to but not the same with the delict of passing off.

The right to protect a name under the delict of passing-off arises only when the name has acquired a reputation. Thus, it is a requirement, under the delict, for the applicant to establish a reputation or goodwill in the name.

It appears to me that, under the statute, all that the applicant needs to prove is that the respondent's name is likely to mislead the public or gives so misleading an indication of the nature of its activities as to be likely to cause harm to the public or is likely to cause damage to any other person.

My reading of the section is that such an applicant need not prove that it has a reputation or goodwill or a clientele that will be confused by the similarities in names. The emphasis of the section appears to me to be the protection of the public from being misled rather than the protection of the applicant company's good name and business against competition.

I am fortified in my belief by the wording of section 24(13) of the Companies Act [Chapter 24:03] which gives the right to any person to approach the court to compel a change of name on the grounds listed in the section.

In my view, in terms of the section, a member of the public could approach the court under the section.

Now, it would be absurd to require such an applicant to satisfy the requirements of a passing off action by showing that they have a reputation or goodwill to protect.

It is on the basis of the above that I do not agree with counsel for the respondents submission that the applicant cannot succeed because it did not show that it had goodwill in the name sought to be protected.

In casu, the plaintiff has argued that the similarities in names between the applicant and the first respondent are such that the public will be misled into believing that one is the other.

I tend to agree.

The two names have the same root name “Southbay.” This is not a common name in this country as it does not denote a place, a location, or anything familiar with the populace. It is an alien name which can only be recognized in connection with the business connected to it. Both companies are in the real estate business and the public are likely to confuse one for the other. The situation may have been different had the two companies been in very disparate businesses such that one would stand alone distinctly from the other.

In defence of the registration of the first respondent, counsel for the respondents has also submitted that the registration is unlikely to mislead as the first respondent is not registered to deal with the public but to manage the property portfolio of it parent company. In this regard, he relied on the fact that the first respondent has not sought to register with the Estate Agents Council and has not traded with the public.

In a passing off action, it is yet another requirement of the delict that the public be misled to such an extent that they mistake one business venture for the other and take away the business of the reputation-holder to the imposter.

I do not read such a requirement in section 24(13) of the Companies Act. I do not even think that such a requirement is necessary.

As I have pointed out above, it appears to me that the section is primarily enacted for the protection of the public. Thus, if it is proved that the public is likely to be misled, the application to compel the respondent should succeed even if the respondent has no intention of engaging the public.

In casu, I hold that the public is likely to be misled because the respondent has actually placed a notice with its name in the street, outside its offices in the city centre. This can only be for the information of the public for its holding company requires no such notice of its existence.

On the basis of the foregoing, I am of the view that the registration of the first respondent is likely to mislead the public and must be changed.

In the result, I make the following order:

1. The first respondent be and is hereby ordered to change its name within six (6) weeks of the date of this order.

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

It was clear to the plaintiffs', prior to the hearing of the matter, that the Law Society had issued a practicing certificate to Advocate de Bourbon for the year 2009.

The plaintiffs' were challenging the validity of that certificate, alleging that it had been issued, at best erroneously, and, at worst, fraudulently. Despite such knowledge, no formal application was filed to have the practicing certificate struck down.

The correct manner to approach the court to set aside the decision of the Law Society to issue Advocate de Bourbon with a practicing certificate was clearly by way of review.

In 1999, the applicant herein entered into an agreement of sale in terms of which he purchased an immovable property from the estate of the late Johanna Maria Fransisca Logan as represented by the executrix testamentary of the estate.

The immovable property, described as Stand 382 Good Hope Township of Subdivision B of Good Hope, was transferred to the applicant in April 2007 by Deed of Transfer number 1597/2007.

On or about 1 October 2006, one Tsungirai Musenha and the first respondent herein filed an application, as co-applicants, in the Magistrates Court in Case No.12060/06. They cited Robert Adrian Campbell-Logan (the second respondent herein), estate late Maria Johanna Campbell-Logan, and the Registrar of Deeds (the fourth respondent herein) as the first, second, and third respondents respectively.

They contended therein that the second respondent herein had sold to them and they had purchased Stands Numbers 412 and 382.

They further contended, that, the second respondent herein was avoiding them then for the purpose of passing transfer to them of the said properties.

On or about 5 October 2006, a rule nisi was granted by the Magistrates Court in the following terms:

“A Rule Nisi be and is hereby issued returnable to this honourable court on the…, day of…,. 2006 calling upon the first and second respondents to show cause, if any, why? (sic)

1. First, second, and third respondents, and all those acting through them, should not be barred from transferring to anyone other than first and second applicants Stand Numbers 412 and 382 respectively, being subdivisions of the remainder of subdivision B of Good Hope held under Deed Number 6180/95. (sic)

2. First, second, and third respondents should not be ordered to effect transfer of Stand 412 and 382 to first and second applicants Stand Numbers 412 and 382, respectively, being sub-divisions of the remainder of subdivision B of Good Hope held under Deed Number 6180/95. (sic)

3. First, second, and third respondents, and all those acting through them, should not be barred from disposing first and second applicants in any way of their occupation of Stand numbers 412 and 382 respectively. (sic)

4. First respondent should not be ordered to pay costs of this application. (sic)

INTERIM RELIEF:

1. Pending the return date, all respondents and all those acting through them be and are hereby interdicted from disposing or transferring to anyone Stand Numbers 412 and 382 respectively, being subdivisions of the remainder of sub-division B of Good Hope held under Deed Number 6180/95.”

On 8 November 2006, the magistrate granted default judgment in the same matter for an “interdict and compelling order” in favour of the applicants therein.

On 29 November 2006, the sixth respondent issued Letters of Administration appointing the third respondent as executor dative to administer the estate of the late Maria Johanna Fransisca Campbell-Logan, for the sole purpose of effecting transfer of “a certain piece of land situated in the District of Salisbury being a remainder of subdivision B of Good Hope, being Stand Number 382 measuring 2200 square metres into the name of Cosma Chiangwa.”

On 4 July 2007, the immovable property was transferred into the name of Cosma Chiangwa, the first respondent herein by Deed of Transfer 4079/2007.

The applicant now applies for an order in the following terms:

“1. That the sale to the first respondent, by the second respondent, of Stand 382 Good Hope is null and void. (sic)

2. That the registration of Stand 382 of Good Hope Township of Subdivision B of Good Hope into the name of first respondent is null and void. (sic)

3. That the appointment of the third respondent, as Executor Dative of the estate of the late Maria Johanna Fransisca Campbell-Logan, is null and void.

4. That the applicant is the sole lawful registered owner of Stand 382 Good Hope Township of Subdivision B of Good Hope.

5. That the fourth respondent shall, within 3 days of service of this Order upon him, delete the name of the first respondent from the name of the applicant as the registered owner of Stand 382 Good Hope Township of subdivision B of Good Hope. (sic)

6. That the first, second, third, and fifth respondents shall pay costs of these proceedings jointly and severally, the one paying the others to be absolved.”

In the main, the applicant contends, that, the appointment by the sixth respondent of the third respondent as the executor dative of the estate, during the lifetime of the executrix testamentary and during a period of time when the executrix testamentary was still holding office and was not incapacitated, is not valid in law.

He further contends, that, when the second respondent sold Stand 382 to the first respondent, he (the second respondent had no title to pass and that the sale by the second respondent was done in the second respondent's personal capacity and was also done without authority.

He also contends that when the second respondent sold the property (to the first respondent) he knew that it had already been sold to the applicant as he had co-signed the agreement of sale between the applicant and the executrix testamentary.

It is also contended by the applicant that the fourth respondent registered the property into the name of the first respondent without checking his register.

Furthermore, the fifth respondent, who was the conveyancer of the property into the first respondent's name, did not conduct any checks as to title to the property before drafting and lodging conveyancing papers with the Deeds Registry. If he had exercised care he would have discovered that the immovable property belonged to the applicant as it had already been registered into the applicant's name more than two months earlier.

The applicant further contends, that, the position stated by the executrix testamentary, in the letter of 1 September 2007, is the correct position at law.

The letter raised with the sixth respondent the invalidity of the appointment of the executor dative as it was done when the executrix testamentary had not been removed from the office by a competent court or judge.

The contention then was that the sixth respondent acted without authority when he appointed the third respondent as executor dative and consequently all acts done by the executor dative in relation to the transfer of the property is of no force or effect.

The property was thus illegally transferred into the name of the first respondent.

He also contends, that, the third respondent ought to have known that the sale by the second respondent to Tsungirai Musenha and the first respondent was defective.

It is the applicant's contention that there is sufficient justification for this court to grant him the relief that he seeks....,.

The fourth reason the respondents contend that the application ought not to succeed is that the applicant has no real rights over Stand 382 Good Hope Township of sub-division B of Good Hope and that the Registrar of Deeds has confirmed, by letter, that the property belongs to the first respondent....,.

The first respondent has sought to rely, inter alia, on the letter written on 3 April 2008 by the Assistant Registrar of Deeds addressed to the third respondent and which reads, in part:

“Ref: Deed Number 1597/2007 and 4079/2007

Reference is made to your letter dated 28 March 2008 where you wanted this office to clarify the position of Deed of Transfer 1597/2007 and 4079/2007. (sic)

Our investigation has shown that both deeds refer to Stand 382 Good Hope Township of Subdivision B of Good Hope. There are two records in our database. One in the name of David Katerere, under transfer p11…, 1597/2007, dated 2 April 2007, and the other in names of Cosma Chianwa, under transfer 4079/2007, dated 4/7/2007. (sic)

On further investigation, we noted that Deed of Transfer 4079/2007 was deducted first at the surveyor General's office and 1597/2007 was rejected because the Stand was already registered.

It is not clear why deed 4079/2007 was deducted first at the Surveyor General. But, this is not unusual since work is allocated to various examiners whose performances differ. What it now means is that Deed 4079/2007 has completed all the processes while transfer 1597/2007 has not, making it invalid. (sic)

However, ownership of the property and cancellation of invalid deed has to be done by the courts in line with section 8 of the Deeds Registries Act [Cap 20:05].”...,.

Counsel for the applicant submitted that the letter written by the Registrar of Deeds, indicating that the applicant's Deed is invalid, ought not to be admitted as evidence as the Registrar is one of the respondents and cannot be viewed as being entirely objective.

Furthermore, that, in any event, declaring a Deed invalid is the prerogative of the court and the Registrar was thus usurping the court's power when he wrote the letter....,.

Section 14 of the Deeds Registries Act provides:

“Subject to this Act or any other law -

(a) The ownership of land may be conveyed from one person to another only by means of a deed of transfer executed or attested by a registrar.”

Section 8 of the Deeds Registries Act, which is referred to in the above quoted letter, provides as follows:

“(1) Save as is otherwise provided in this Act, or in any other enactment, no registered deed of grant, deed of transfer, 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.”

The letter by the Assistant Registrar of Deeds does not constitute cancellation of the Deed of Transfer in favour of the applicant.

In my view, it expresses the author's opinion on the matter....,.

It does not, in my view, support the first respondent's contention that there is no double registration of the property. The fact is that there is double registration of the property in issue; the one registration being in favour of the applicant and effected on 2 April 2007 whilst the other registration is in favour of the first respondent and was effected on 4 July 2007 - some three months later.

Section 10 of the Deeds of Registries Act provides -

“(1) Deeds executed or attested by a registrar shall be deemed to be registered upon the affixing of the registrar's signature thereto…,.”

Thereafter, section 11 provides -

“(1) Save as otherwise provided in this Act or as directed by the court -

(a) Transfers of land and cessions of real rights therein shall follow the sequence of the successive transactions in pursuance of which they are made…,.”

The fourth respondent is of the opinion that the Deed of Transfer in favour of the applicant is invalid for the reasons stated in the letter from his office; which letter has already been quoted above....,.

The following are the facts which emerge from the papers and upon which this matter will be determined:

(i) Firstly, the applicant purchased the property in issue from the estate, as represented by the executrix testamentary. The first respondent, on the other hand, purchased the same property, purportedly from the same estate, but, in his case, the estate was represented by the executor dative.

It is an undisputed fact that the executor dative was appointed to the office while the executrix testamentary was still alive, holding office, not incapacitated, and still sane. Neither had the executrix testamentary been removed from office.

(ii) Secondly, the applicant's agreement of sale preceded that of the first respondent.

(iii) Thirdly, it is also clear from the papers that the property was registered into the applicant's name on 2 April 2007 by Deed of Transfer 1597/2007 while the transfer to the first respondent was done 3 (three) months later, on 4 July 2007, by Deed of Transfer 4079/2007.

The relevant law applicable to the instant matter, with particular regard to the registration of real rights as provided in the following sections of the Deeds Registries Act, is:

“10 When registration takes place

(1) Deeds executed or attested by a registrar shall be deemed to be registered upon the affixing of the registrar's signature thereto:

Provided that no such deed, which is one of a batch of interdependent deeds intended for registration together, shall be deemed to be registered until all the deeds of the batch have been signed by the registrar.

(2) If, by inadvertence, the registrar's signature has not been affixed to a deed at the time at which the signature should have been affixed in the ordinary course, the registrar may affix his signature thereto when the omission is discovered, and the deed shall thereupon be deemed to have been registered at the time at which the signature should have been affixed.

(3) All endorsements or entries made on title deeds or in registers in connexion with the registration of any deed executed or attested by a registrar shall be deemed to have been effected simultaneously with the registration of such deed, although in fact they may have been made subsequent thereto.”…,.

Section 11 then provides:

“11 Deeds to follow sequence of their relative causes

(1) Save as otherwise provided in this Act or as directed by the court —

(a) Transfers of land and cessions of real rights therein shall follow the sequence of the successive transactions in pursuance of which they are made, and if made in pursuance of testamentary disposition or intestate succession they shall follow the sequence in which the right to ownership or other real right in the land accrued to the persons successively becoming vested with such right;

(b) It shall not be lawful to depart from any such sequence in recording in any deeds registry any change in the ownership in such land or of such real right unless the registrar is satisfied that the circumstances are exceptional and has consented to such departure:

Provided that —…,.”…,.

Section 14 provides:

“14 How real rights shall be transferred

Subject to this Act or any other law —

(a) The ownership of land may be conveyed from one person to another only by means of a deed of transfer executed or attested by a registrar;

(b) Other real rights in land may be conveyed from one person to another only by means of a deed of cession attested by a notary public and registered by a registrar:

Provided that attestation by a notary public shall not be necessary in respect of the conveyance of real rights acquired under a mortgage bond.”…,.

On a perusal of section 10 of the Deeds Registries Act, it follows, therefore, that, when the Registrar affixed his signature to the Deed of Transfer in favour of the applicant, on 2 April 2007, the Deed was, with effect from that date, deemed to be registered.

Furthermore, and on a perusal of section 14 of the Deeds Registries Act, ownership was conveyed from the estate of the late Maria Johanna Francisca Campbell-Logan to the applicant. Thus, the applicant became or was henceforth deemed to be the owner, and the property no longer formed part of the deceased estate.

It therefore follows, that, when, in Deed of Transfer 4079/2007, on 4 July 2007, it was purported to convey ownership of the property from the estate to the first respondent, the estate, at that stage, was no longer the owner thereof and it thus had no rights to transfer to the first respondent.

The agreement of sale, purportedly in favour of the first respondent, cannot therefore be valid....,.

Although the Deed of Transfer in favour of the applicant was registered first, the fourth respondent's opinion is that the Deed is invalid for the reasons stated in the letter from his office already quoted above.

It would appear to me that this can only be viewed as the Registrar's opinion and not a statement or declaration of the legal position.

I am fortified in this assessment by the provisions of section 8(1) of the Deeds Registries Act already quoted above, in terms of which any Deed of Transfer shall not be cancelled by a Registrar except upon an order of court.

There has been no order of court which has cancelled or authorized the cancellation of the applicant's Deed of Transfer.

There is a presumption of validity of a Government document regular on its face until it is lawfully invalidated.

Both respondents have indicated that they intend to challenge the authenticity of the offer letter.

The mere fact that the applicants intend to challenge the offer letter, for whatever reason, cannot, however, authenticate their unlawful occupation of State land.

The other real issue is whether what happened before the Marriage Officer in Zimbabwe constitutes a valid marriage in view of authenticated documents from the Philippines - which clearly states that the plaintiff is still married to Apolonio Ramos Dacany. There is, therefore, evidence that the plaintiff is in two monogamous marriages. The plaintiff has to prove that what these documents allege is not true and that her marriage to the late Baker Eddy Morten is valid. It cannot be valid as long as the Philippino records, indicates, that she is still married to Apolonio Ramos Dacany. The Phillipino marriage, which was registered on 1 June 1984, invalidates the later marriage entered into by the plaintiff and the late Baker Eddy Morten on 16 February 2000.

In my view, the official records from the Administrator and Civil Registrar General presents a serious challenge to the validity of the plaintiff's marriage to the first defendant's father. It is a certification of the existence of the marriage between the plaintiff and Apolonio Ramos Dacany issued by the appropriate authority after a search of the Philippines' National records of marriages solemnised between 1945 and 2013. According to exhibit 3, the search was to establish the existing and subsisting marriage between the plaintiff and Apolonio Ramos Dacany. The search established that the plaintiff is still married to Apolonio Ramos Dacany. The plaintiff, who should have better knowledge of the alleged divorce, should give evidence - if she has such evidence. She should not be afraid of testifying on the validity of her marriage to the first defendant's late father. She is the one who obtained the Divorce Order. She should know from which court she obtained it. She should be able to tell the court how such an order would be registered in the Philippines to bring to an end her marriage to Apolonio Ramos Dacany.

I would, therefore, lean in favour of proceeding with the trial.  See the case of Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (HC)…., where SMITH J said -

“In doing so, I was very conscious of BEADLE CJ's comments in the Supreme Service Station case, supra, that in case of doubt, a judicial officer should always lean on the side of allowing the case to proceed. In this case I had no doubt in the matter.”

The applicant also, belatedly, almost as an afterthought, sought to attack the search warrant on the basis of irregularity complaining that the magistrate made no record of the proceedings leading to the issuing of the search warrant.

That complaint amounts to an attack on the validity of the proceedings before the magistrate.

It is correct to say that in terms of section 5 of the Magistrates Court Act [Chapter 7:10] the Magistrates Court is a court of record. The magistrate is, therefore, duty bound to maintain an accurate written record of all proceedings before him. See S v Ndebele 1988 (2) ZLR 249. No record of proceedings has, however, been placed before me to ascertain what transpired at the Magistrates Court. I was simply told, from the bar, that the magistrate did not record the proceedings. Apart from counsel's mere say so from the bar no effort was made to contact either the magistrate or the Clerk of Court for an explanation. In the absence of an explanation from the Magistrates' Court, I am not prepared to condemn the magistrate and hold that he did not do his job properly. There is a presumption in favour of validity of all official documents issued by Government officials in the course of duty.

The search warrant is therefore considered valid until proven otherwise.

In HC1310/10, the applicant made a climb down on the order that he sought in this court by amending the draft order, remaining only with a prayer for a declaratory order that he is the registered owner of a mining claim known as Thunderbird 21 in which the disputed mining shaft falls and that his claim has priority over the claims of the first respondent which were subsequently registered after his.

This is the same dispute that was placed before the second respondent.

In order to adjudicate on the dispute, the second respondent commissioned a survey by the Regional Mining Engineer, one C. C. Goremusandu. In pursuance thereof, the erstwhile Regional Mining Engineer compiled a report, dated 15 February 2010, which reads, in part, as follows:

“RE: PEGGING DISPUTE BETWEEN S. MAZUWA VS C. SIMBI

INTRODUCTION

The survey of this dispute was requested by the Mining Commissioner. See dated letter 09 February 2010 (i.e. pegging dispute 15/2010).

The actual surveying using the G.P.S was done by the Regional Mine Surveyor, Mr Goremusandu, in the presence of the two miners, Mr C Simbi for Thunderbird 42, Mr Mazuwa and Gambe for Thunderbird 45 and 21. The CID Minerals, Shurugwi were unable to be present because of other work. The results were plotted by the (RMS) Mr Goremusandu. The plan so produced is divided into three sections as figure 1 in the survey report sheet, figure 2 as the claims report sheet and 3a and 3b are the registration sketches.

SURVEY REPORT SHEET (Fig 1)

The plan was prepared using the GPS co-ordinates taken by the RMS on the 15 February 2010. The plan was drawn to 1:1000, the plotted two mines are shown as Thunderbird 21 and 45 (Mr S. Mazuwa) in bold lines and Thunderbird 42 (Mr C. Simbi) in broken lines.

CLAIMS REPORT SHEET (Fig 2)

This is a redirection of a survey report sheet (fig 2). It is drawn to a scale of 1:2 5000m. The purpose of this plan is to be able to compare these plottings with the registration sketch (fig 3a and 3b). From this, we determined the position and distance from the reference point as described on the registration certificate. In this case, the reference point in homestead P2340 on Ballock Farm hence Thunderbird 45 is approximately 1,7km south west, Thunderbird 42 is 1km south west and Thunderbird 21 is 0,95km south west of homestead.

COMMENT

1. For Thunderbird 21 and 45 (S. Mazuwa) the positions on ground are approximately the same on the registration notice to the GPS coordinates taken by the RMS. Also, in Thunderbird 21, the reef have been mined towards Thunderbird 42 also note that the disputed shaft is on the common boundary.

2. The calculated area on the registration sketch equals to 21 hectares and the area calculated by the RMS equals 21,35 hectares. The difference in area is equal to the common unpegged area that is, the area between Thunderbird 21 and Thunderbird 42 see fig 3b.

3. For Thunderbird 42, C. Simbi, the position differs from Approved Prospector Mr Gambe registration sketch (Mining Commissioner's plan) and Mr Gambe GPS co-ordinates submitted. Thus, it is likely S. Mazuwa shifted Thunderbird 21 boundaries to include the unpegged area.

4. On figure 1, the position marked X is the disputed shaft which is in Thunderbird 42 (Mr Simbi).

C C Goremusandu

For: REGIONAL MINING ENGINEER”…,.

That the second respondent acted on the strength of this survey report in arriving at a decision can be found in his letter dated 15 March 2010 addressed to the Secretary for Mines and Mining Development which reads, in part, as follows:

“The writer would like to point out that the survey was carried out by the Regional Mine Surveyor – Gweru, who produced a report and a map plan of the disputed area for this office to make a determination of dispute. The decision was made by this office based on that report and survey.”

The second respondent determined that “the disputed shaft falls within Thunderbird 42” thereby liberating the first respondent to continue mining operations at the shaft. In doing so, it is not clear whether he considered the argument made by the applicant that the first respondent's Thunderbird 42 was registered much later than his Thunderbird 21 in 2005 when his was registered in 2001. The applicant's argument is that the first respondent's claim over-pegged extant claims belonging to himself.

Whichever way, these are the issues that have to be determined.

Unfortunately, the second respondent relied upon a survey report which was later disowned by its author. In an affidavit deposed to much later, on 12 May 2010, Christopher Goremusandu, the Regional Mining Surveyor for Gweru Mining District, recanted the survey report relied upon by the second respondent.  He said:

“I submit that indeed I made an error, particularly on page 3 of my report paragraph 3. The correct position and what comment number 3 should is as (sic);

'For Thunderbird 42, C Simbi, the position differs from the Approved Prospector Mr Gambe – registration sketch (Mining Commissioner's plan) and Mr Gambe GPS coordinates submitted. Thus, it is likely Mr C Simbi shifted Thunderbird 42 boundaries to include the unpegged area.'

The Regional Mining Surveyor therefore contradicts himself sharply and yet the decision of the second respondent was premised upon his findings.

Counsel for the first respondent submitted that the affidavit was elicited after the second respondent had made a decision and therefore it must be ignored.

Regrettably, I am unable to do that.

The affidavit has come to my attention and it shows that the Surveyor is one person that cannot be relied upon. The second respondent determined the matter on the basis of a survey report which is demonstrably unreliable.

It is a principle of our law that an interested party should be allowed to approach the court at any time to seek a declaratory order that an act done on the strength of unreliable advice is a nullity. The courts should be very slow to turn away a party seeking a declaration of its rights or status.

In BMG Mining (Pvt) Ltd v Mining Commissioner, Byo Mining District & Ors HB05-11…, I cited with approval the pronouncement made by ROBINSON J in Musara v Zinatha 1992 (1) ZLR 9 (H)…, where the learned judge said:

“I consider that the same approach should be adopted by the court in a civil case where, on the papers before it – the more so where those papers seek a declaratory order – an act of glaring invalidity is, as in this matter, starring the court straight in the face. For the court to refuse, save in exceptional circumstances justifying such refusal, to declare the act in question null and void ab initio on some technical ground would, I agree, be to ignore the court's fundamental duty to see that justice is done, which, after all, is the duty which the layman expects the courts to discharge.”

That there is a boundary dispute between the parties in respect of their adjoining mining claims is beyond doubt. That the said dispute has not been addressed satisfactorily is pretty obvious from the prevarications of the Surveyor whose findings were relied upon by the second respondent.

I cannot ignore such a glaring injustice.

There is a need to remit the matter for a proper survey to be carried out by an untainted person to enable the second respondent to resolve the dispute between the parties….,.

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

1. ….,.

2. …,.

3. The decision of the second respondent, contained in his letter of 4 March 2010, to the effect that the disputed mining shaft falls within Thunderbird 42 is hereby set aside.

The property at the centre of the dispute is Stand No.396A Dzivarasekwa Township. 

A Mr Mazuru, who is now late, entered into an agreement of lease with the respondent with an option to purchase the property. He later sold his rights, title and interest in the property to a Mr Mukadiro. In April 2008, Mr Mukadiro sold his rights title and interest in the property to the applicant. He had not yet taken title to the property. The applicant paid the purchase price in full to Mr Mukadiro. The applicant and Mr Mukadiro were advised to pay certain amounts to the respondent before cession could be effected. They both paid the demanded amounts to the respondent. On 6 May 2008, they both attended the respondent's offices at Rememberance Drive and they signed the Memorandum of Agreement of Assignment.

The respondent, through its Director of Housing, signed the Memorandum of Agreement of Assignment. On 2 July 2008, the Director wrote to the applicant confirming the assignment in her favour and attaching the signed Memorandum of Agreement of Assignment and directing the applicant to take the said document to the Housing Office in Budiriro for purposes of change of ownership into her name. On 14 November 2008, the applicant received a letter from the Director advising her that the cession was cancelled and that the transaction was deemed to be null and void. The basis for the cancellation was that the agreement of lease between the respondent and the late Mr Maziva had been cancelled. 

The applicant then approached this court seeking to have the Memorandum of Agreement of Assignment declared valid and binding upon the respondent, that the decision by the respondent to cancel the cession be declared of no force or effect and that the applicant shall remain vested with all rights which flow from the cession until such time as the cession is cancelled in terms of the law.

The applicant brings the application in terms of section 4 of the Administrative Justice Act [Chapter 10:28].

The applicant's basis is that the respondent was functus officio when it wrote the letter of withdrawal. When an authority decides that, to withdraw its decision, the decision cannot thereby affect or abolish the rights which its previous act has already created. She further avers that she was not afforded the right to be heard….,.

The respondent challenges the application on the basis that the cession is tainted with illegalities on the basis that at the time of the death of Mr Maziva, he had not passed any rights to Mr Mukadiro. Mr Mukadiro therefore did not have rights to pass to the applicant. Secondly, the cession papers before the court are between Mr Maziva and the applicant and yet there was no obligatory transfer between the applicant and Mr Maziva. It further avers that the court should exercise its discretion to declare the cession a nullity as it is bad in law.

The respondent also further avers that the respondent was justified and had reasonable cause to not abide by the provision of section 3(2) of the Administrative Justice Act [Chapter 10:28].

Functus Officio

When an administrative official has made a decision which bears directly on an individual's interests, it is said the decision-maker has discharged his office or is functus officio. See L. BAXTER, Administrative Law (1984)…,.  The author states that if a public authority has made a decision which it afterwards discovered to be based upon an error, of fact or law, it will be nevertheless still be functus officio whether the error was within or beyond its discretionary powers. See also Chirambasukwa v Ministry of Justice 1998 (2) ZLR 567 (S)…, where he stated:

“The issue to be determined is the stage which the decision maker becomes functus officio. In my view, he or she becomes functus officio when his or her decision has been officially communicated to the person affected. In my view, until the decision has been officially communicated to the person affected, the decision maker can vary, revoke or suspend it. However, when it is officially communicated to the person affected, the point of no return is reached.”

In casu, the decision by the respondent to cede the property to the applicant having been communicated to her by the respondent's Director of Housing in the letter dated 2 July 2008, a point of no return was reached. The time to vary, revoke or suspend the decision had lapsed. The applicant had acquired rights. The respondent could not therefore unilateraly cancel the cession.

Right to be heard

It is common cause that the respondent is an administrative body and that its actions, in respect of this matter, were administrative acts.

The applicant seeks redress in terms of section 3(1) of the Administrative Justice Act [Chapter 10:28]. Section 3(1) of the Administrative Justice Act [Chapter 10:28] provides:

“(1) An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person shall – 

(a) Act lawfully, reasonably, and in a fair manner; and 

(b) Act within the relevant period specified by law or, if there is no such specified period, within a reasonable period after being requested to take the action by the person concerned; and 

(c) Where it has taken the action, supply written reasons therefor within the relevant period specified by law, or, if there is no such period, within a reasonable period after being requested to supply reasons by the person concerned.”

It is the applicant's contention that she was never afforded an opportunity to make representations. The applicant had a legitimate expectation to be heard before a decision adversely affecting her vested rights was made. She relied on the authorities of Kanonhuwa v Cotton Company of Zimbabwe 1998 (1) ZLR 68 (H) and Taylor v Ministry of Education & Anor 1996 (2) ZLR 772 (S). 

In Taylor v Ministry of Education & Anor 1996 (2) ZLR 772 (S) it was stated that the audi principle applies both where a person's existing rights are adversely affected and where he has legitimate expectation that he will be heard before a decision is taken that affects some substantive benefit, advantage of privilege that he expects to acquire or retain and which it would be unfair to deprive him without first consulting with him.

The respondent's contention is that it was justified and had reasonable cause of not abiding by section 3(2) of the Administrative Justice Act [Chapter 10:28].

Section 3(3) of the Administrative Justice Act [Chapter 10:28] provides exceptions where an administrative authority did not have to comply with the provisions of section 3(1) of the Administrative Justice Act [Chapter 10:28]. Section 3(3)(b) of the Administrative Justice Act [Chapter 10:28] provides the grounds under which an administrative authority can depart from the provisions of section 3(1) of the Administrative Justice Act [Chapter 10:28]. 

Three reasons were advanced by the respondent to justify its departure from the provisions of section 3(2) of the Administrative Justice Act [Chapter 10:28].

The first one was that the transaction, that is the cession, was a legal nullity as the applicant and Mr Mukandiro had no authority to represent the estate of Mr Mazuva. Secondly, Mr Mukandiro did not have any rights at the time of the cession. No Agreement of Sale was provided. Thirdly, there is no proof that the merx was paid by the applicant to the respondent. The respondent's offer was therefore induced by a fraudlent misrepresentation. It is a nullity and the court cannot perpetuate a fraudlent transaction.

Section 3(3)(b) of the Administrative Justice Act [Chapter 10:28] provides:

“An administrative authority may depart from any of the requirements referred to in subsection (1) or

(2) If ….,. -

(a)…,.

(b) The departure is, under the circumstances, reasonable and justifiable, in which case the administrative authority shall take into account all relevant matters including:- 

(i) The objects of the applicable enactment or rule of common law;

(ii) The likely effect of its action;

(iii) The urgency of the matter or the urgency of acting thereon;

(iv) The need to promote efficient administration and good governance;

(v) The need to promote the public interest.”

The position adopted by the respondent appears to show that it is not disputing that it did not comply with the provision of section 3(1) of the Administrative Justice Act [Chapter 10:28]. It is its position that the departure was reasonable and justifiable in the circumstances as outlined above….,.

The position is that the respondent's letter, wherein they advised the applicant to take ownership, refers to a three-pronged cession. The reference to the letter reads:

“Stand No.396/1 Dzvivarasekwa Township Estate late D. Maziva to C.T. Mukadiro to C.Z. Mandewo.”

It is clear from the above that the respondent was aware of the sequence of the cession. From the papers, the respondent has not been able to establish that there was any misrepresentation of facts from the applicant. The applicant was accompanied by Mr Mukandiro. This is confirmed by Mr Mukadiro in the supporting affidavit that he deposed to.

As regards the issue of payment, Mr Mukadiro also confirmed that he paid the purchase price to the respondent. The applicant was also made to make some payments in order for the cession to be effected - which she did. She misplaced the receipt.

My view is that even if the applicant had not paid the purchase price, it does not constitute circumstances warranting a departure from the provisions of section 3(1) of the Administrative Justice Act [Chapter 10:28].

Once a court makes a finding that an administrative authority failed to comply with the provisions of section 3(1) of the Administrative Justice Act [Chapter 10:28] it will grant relief in terms of section 4 of the Administrative Justice Act [Chapter 10:28]. Section 4(2) of the Administrative Justice Act [Chapter 10:28] provides, inter alia, for the confirmation or setting aside of the decision concerned. My view is that the decision be set aside in view of the fact that by the time the decision was made, the respondent was functus officio and that the respondent, as an administrative authority, was supposed to comply with the provisions of section 3(1) of the Administrative Justice Act [Chapter 10:28].

In view of the above, I will make the following order:

1. The Memorandum of Agreement of Assignment which was issued by the respondent in favour of the applicant on the 7^th July 2008 be and is hereby declared to be valid and binding on the respondent.

2. The decision by the respondent to cancel the cession of Stand 396A Dzivarasekwa Township to the applicant be and is hereby declared to be of no force or effect.

3. The applicant shall remain vested with all the rights which flow from the cession until such a time as the cession is cancelled in terms of the law.

The plaintiff also sought to rely on the confirmation of ownership tendered as exhibit…,..

This confirmation, however, was on 10 May 2012 and certainly subsequent to the confirmation letter issued to Rhoda Kativhu on 12 January 2012.

In the absence of documents and evidence stating that such confirmation was revoked or cancelled, then, in the spirit of maintaining sanctity of contract, the defendant was the first to enter the contract, and should, unless there are compelling reasons, not be prejudiced by a subsequent acquirer. The case Southern Africa v Des den Properties 1964 RLR (7) 4 1963 2 SA, although it refers to double sale, is relevant. It was held that the sanctity of contracts will best be served in the ordinary run of cases by giving effect to the first contract and leaving the second purchaser to pursue a claim for damages.

Having disposed of legal issues above it remains for the outstanding issues to be disposed of regard being paid to the totality of the evidence presented before the court.

It was apparent from the plaintiff, Nomsa Chikwezvero that after her husband, the late Edgar Chikwezvero, joined the housing scheme in 1995 and that after his demise in 2003 the Ministry made a decision that she be allocated the same Stand. The plaintiff was subsequently issued with a letter confirming the status as the legal allocatee or beneficiary, and this letter was annexed to the bundle of the plaintiff and tendered as exhibit. The plaintiff's status as the legal lessee was confirmed by Mr Tshuma, the Legal Officer of the Ministry.

Mr Tshuma confirmed that the plaintiff entered into a lease agreement with the Ministry in 2005. He also pointed out that in 1998 the defendant was unlawfully allocated the same Stand through some fraudulent scheme which the Ministry discovered was perpetuated by some rouge officers of the Ministry acting together with some members of the public. He pointed out that some of the Ministry officials were prosecuted and/or fired. In a bid to rectify the anomaly, the Ministry publicised in the local press the list of the rightful owners and invited them to attend the Ministry offices for verification. It was then that the plaintiff's status was confirmed by issuance of a confirmation letter. The witnesses highlighted that the Ministry did not expressly or impliedly rectify the illegal allocations and that the defendant was not issued with a confirmation letter of the Stand.

The first issue for consideration is whether there exist material disputes of facts which could not be resolved without viva voce evidence being led.

The respondent applied to the High Court for the ejectment of the appellant from the house on the basis of a claim of ownership. It produced a copy of the Title Deed Number 6/2011 to prove ownership of the house. The appellant did not contest the respondent's title to the property. The Court had to take judicial notice of the uncontested evidence of the Title Deed.

The applicant sought to rely on the argument that the land in question is alienated State land yet the land was not only surveyed and marked on General Plan DC3843 but also that there is correspondence from the Ministry of Local Government, Public Works and Urban Development confirming allocation of Stands, including that of the plaintiff, to cooperatives.

The plaintiff, having been allocated a Stand by the Joseph Msika Cooperative, which she is a member, and, further, that the plaintiff possessed the Stand and constructed a four-bedroomed house to slab or foundation level, proves her rights….,.

The last issue, that the order is difficult to comply with since the Stand number 11355 cited does not exist at law, is absurd to say the least.

The Stand is outlined in General Plan number DC 3843 and it is registered at the City of Harare.

In his Heads of Arguments, the fourth respondent states that it is common cause that the applicant and the first to third respondents all have a right to occupy land that was issued by the fourth respondent. However, the bone of contention is on the boundaries of the said pieces of land.

The fourth respondent is confirming the position adopted by the first to third respondents.

Land has been allocated to them through their offer letters. The fourth respondent cannot abolish such rights without the due process of the law or the consent of the respondent. Granting the applicant the relief that he seeks is tantamount to alienating the rights conferred on the first to third respondents by lawful authority without the due process of the law being followed by the fourth respondent.

Counsel for the applicant, in his reply to the submissions by counsel for the first to third respondents conceded that due process of the law should be followed if the fourth respondent intends to appropriate parts of the first to third respondents' right to their pieces of land.

In my view, the concession was properly made.

The first to third respondents right to occupy their pieces of land, as per their offer letters, has not been lawfully terminated and still subsists. They cannot be evicted from the land that the fourth respondent appropriated to the applicant through the new map without due process of the law being followed.

This was an urgent chamber application for an interdict against the respondents. The applicants wanted the respondents barred from interfering with their mining activities.

The history of this case is as follows;

The applicants collectively formed a mining syndicate by the name Crevixs Mining Syndicate. The syndicate was issued with a prospecting licence by the Ministry of Mines on 25 October 2014.

On 4 November 2014, after having completed all the necessary procedures, the syndicate applied to the first respondent for a certificate of registration to mine a base block measuring 25 hectares situated at Pitlochry Estates in Hurungwe Rural District in Mashonaland West Province. Two other syndicates, namely, Value James Mining Syndicate and Chando Kupisa Mining Syndicate also submitted competing applications for mining rights in respect of the same base block.

Of the three applications, it is the applicants' application which was successful.

The first respondent passed a verdict that Crevixs Mining Syndicate be awarded the certificate of registration as it was the only one that had followed all the necessary procedures and had all the necessary documentation. In that verdict, the first respondent made a pronouncement that the two other applications had been rejected. This verdict was communicated to all the three competing applicants by way of a letter dated 3 December 2014. The same letter was copied to the Permanent Secretary, Legal Advisor, ZRP Karoi (second respondent) and CID Minerals Chinhoyi/Karoi.

Having been disgruntled with the verdict of the first respondent, Chando Kupisa Mining Syndicate proceeded to lodge an appeal with the Minister of Mines and Mining Development on 4 December 2014. The appeal is in the form of a letter which is addressed to the Minister. Following the letter of appeal, the first respondent, on 5 December 2014, wrote a letter to the second respondent instructing him to enforce a suspension of mining activities in the area of contest until a determination had been made by the Minister.

It is the suspension order which prompted the present application by the applicants.

In their application, the applicants indicated that it is this verdict by the first respondent which fully entitled them to proceed with mining at the said claim. It is the applicants' averment that in terms of the law no appeal lies with the Minister. The Mines and Minerals Act does not provide for such a procedure, and, as such, the purported appeal is a nullity.

The applicants submitted that following the verdict of the first respondent they made significant capital and technical investment on the mining block and had employed a number of people who were now entitled to their remuneration in terms of the labour laws. It was submitted that the decision by the first respondent to suspend all operations has an effect of causing serious irreparable harm to the respondents.

The first respondent filed a notice of opposition before the hearing, but the second respondent did not. At the hearing, the second respondent submitted that, as the police, they would abide by whatever decision would be made by the judge.

In the opposing affidavit, the first respondent stated that after having considered the three applications he made a recommendation that the registration for the mining block should be in favour of Crevixs Mining Syndicate. He said that although this was communicated to the contestants, by way of the letter dated 3 December 2014, this did not grant the applicants title to mine. The applicants would need a certificate of registration to commence any mining activity. The first respondent further stated that by proceeding to invest in a project to which title had not yet been granted the applicants took a personal risk which they cannot hold the Ministry of Mines to ransom. However, he made a concession that there is no provision in the Mines and Minerals Act [Chapter 21:05] which provides for an appeal to the Minister. A further concession was that there is no provision that provides for suspension of operations pending appeal. He stated that this appeal procedure to the Minister is just a standard practice that has been adopted by the Ministry over the years for purposes of expediency and convenience. It had been discovered that the courts would find the matters too technical and refer them back to the Ministry for conclusion. He also stated that it had become the Ministry's policy to stop all mining operations pending appeal in view of the fact that minerals are finite and deplete in quantity by each extraction. Since appeal processes take long, it is only fair and just to stop extraction until the appeal is determined in order to avoid prejudicing the appellant in the event that the appellant wins on appeal.

Let me hasten to point out that although the first respondent said his was only a recommendation that Crevixs Mining Syndicate be issued with a certificate of registration he did not say, in the opposing affidavit, to whom he had made that recommendation. He also did not say who had the authority to issue the certificate of registration.

At the hearing, counsel for the applicants took issue with the so-called recommendation and argued that the first respondent was hiding behind a finger because his letter of 3 December 2014 was categorical that it was a verdict as he used that word. After the word 'verdict', the first respondent wrote;

“By copy of this letter, it is my ruling that Crevixs be awarded their Certificate of Registration and all the others competing on this particular place are hereby rejected.”

It was argued, on behalf of the first respondent, that despite the wording in the letter, the first respondent was not the issuing authority, but the Permanent Secretary of the Ministry. It was also submitted that all the first respondent could do, by virtue of his position as the Provincial Mining Director, was to recommend. The Permanent Secretary would exercise his discretion on whether or not to grant the certificate of registration as recommended by the first respondent.

Looking at section 45(1) of the Mines and Minerals Act [Chapter 21:05], it is apparent that the person who is vested with the powers to receive applications for registration of mining blocks and issuing the certificates of registration is the Mining Commissioner. So, he is the authority who grants mining rights. In terms of section 346, the Mining Commissioner, again, has the duty to preside over disputes and issue orders. However, in terms of section 341(2), the Permanent Secretary can assume the powers of the Mining Commissioner both administratively and judicially. This, therefore, means that it is either the Mining Commissioner or the Permanent Secretary who can grant mining rights.

Now, turning to what transpired in the present case, what is apparent is that it is the first respondent who considered the applications for registration - even though he is neither a Mining Commissioner nor a Permanent Secretary. Coming to the analysis of the letter dated 3 December 2014, which he wrote after he had considered all the three (3) applications, I come to the conclusion that he gave a verdict not a recommendation - even though he was not the Mining Commissioner. If it was a recommendation, the first respondent would have simply indicated so instead of saying it was a verdict. Even the wording of the letter is very clear that this was a ruling which was final. He said;

“By copy of this letter, it is my ruling that Crevixs be awarded their Certificate of Registration and all the others competing on this particular place are hereby rejected.”

I believe that if it was a recommendation the wording would have been different. This letter did not sound like there was yet another authority other than the first respondent himself who had the authority to issue the certificate of registration.

What further confirms my finding is the fact that in his opposing affidavit the first respondent failed to mention the authority to whom he had made this recommendation. That the issuing authority was the Permanent Secretary was only mentioned during the hearing after I had asked who this authority was. During the hearing, I asked if the so-called recommendation had been forwarded to the Permanent Secretary for him to consider whether or not to issue the certificate of registration to Crevixs Mining Syndicate. The first respondent's counsel submitted that that had been done but failed to produce proof of such correspondence. So, it is just the first respondent's word without any tangible proof. This seems to confirm the applicants' counsel's argument that no other authority other than the first respondent was going to issue the certificate of registration.

When Chando Kupisa lodged an appeal, defective as it might be, the first respondent immediately wrote to the police, in particular, the second respondent, saying;

“RE: DISPUTE

(i) Chando Kupisa Mining Syndicate Special Grant Application.

(ii) Crevixs Mining Syndicate Base Block Application.

(iii) Value Gems Mining Syndicate Special Grant Application.

Kachichi-Piltochry Estate (Karoi)

Following a determination on above arrived at by this office on 3^rd December 2014, Chando Kupisa Mining Syndicate has lodged an appeal with the Minister of Mines and Mining Development on 4^th December 2014.

The effect of this is that any previous communication(s) is nullified pending determination by Minister's Office.

All operations on the area of contest are therefore suspended pending resolution by Minister's office.

All parties to the dispute are to observe this instruction.

Request is made to ZRP Karoi to ensure enforcement.”

This letter says it all.

The first respondent had made a determination not a recommendation and he was aware that, by virtue of his determination, the applicants had commenced operation. He was directing the police to ensure that all operation was suspended pending determination of the appeal by the Minister. This was despite the fact that the applicants had not yet received the certificate of registration which gave them title to carry out mining activities.

At law, a person can only appeal against a determination not a recommendation. If no determination had been made by the first respondent there is no way he would have ordered suspension of operations pending appeal. In the first place, there would not have been any appeal to talk about.

An analysis of the whole matter brings me to the conclusion that the first respondent made a determination that a certificate of registration should be issued in favour of the applicants' syndicate. The applicants were notified of this determination by way of the letter dated 3 December 2014. Although no certificate of registration had been issued, by virtue of that letter, the applicants' syndicate commenced mining activity. It would also appear that the first respondent was aware that the applicants would commence, or had already commenced, mining activities on the strength of the letter he had written on 3 December 2014, otherwise he would not have written to the second respondent to enforce a suspension of mining activities in the area of contest.

Although the first respondent made a determination, as the Provincial Mining Director, that the certificate of registration should be awarded to the applicants, the Mines and Minerals Act makes no mention of the post of a Mining Director. According to the submissions made at the hearing by counsel for the first respondent this is a post which was created recently within the Ministry after the post of the Mining Commissioner had been abolished.

Suffice to say, no amendments have been made in the Act to this effect.

It was submitted that as a result, the person who is presently vested with the powers of issuing certificates of registration is the Permanent Secretary. The first respondent only issues certificates of registration if he is delegated authority to do so by the Permanent Secretary. It was said that in the present case he was not given any authority to issue the certificate of registration hence none was issued….,.

The applicants' prayer is that pending the return date the respondents be interdicted from interfering with or suspending their mining activities at Pitlochry Estates.

However, as already explained above, other than the prospecting licence, the applicants have no certificate of registration which confers them with mining rights. Section 27(2) of the Mines and Minerals Act [Chapter 21:05] makes it clear that a prospecting licence does not confer mining rights.

There is no way the applicants can seek to rely on the letter that was written by the first respondent on 3 December 2014 because an ordinary letter cannot confer mining rights and replace a certificate of registration. That letter never said the applicants now had mining rights. However, it mentioned that the applicants be issued with a certificate of registration.

So, the applicants should have insisted on the issuance of that certificate before they commenced mining.

These are people who had obtained a prospecting licence before and had now applied for a certificate of registration. So they knew that it was a requirement of the law to have a certificate of registration before they could start mining activities. That they went on to commence preparatory work in anticipation of the issuance of the certificate of registration is a personal risk they took and cannot blame anyone other than themselves. It is not for me to say who was supposed to issue the certificate of registration under the circumstances, but, even if it was the first respondent who had that duty since he is the one who had considered the applications and had made a determination, the fact remains that he had not yet issued them with one. So they did not have any mining rights as yet. The least the applicants should have done was to insist on being issued with a certificate of registration before they commenced any mining work.

For an interim interdict to be granted, the applicants need to show that;

(a) They have a prima facie right;

(b) There is a well-grounded apprehension of irreparable harm if the relief is not granted;

(c) The balance of convenience favours the granting of an interim interdict; and

(d) They have no other satisfactory remedy.

See Universal Merchant Bank of Zimbabwe v The Zimbabwe Independent and Another 2000 (1) ZLR 234 (HC).

In the absence of a certificate of registration, the applicants have not shown that they have locus standi to make this application for an interdict. They have no prima facie right to carry out mining activities or even to start mining preparations. So, they cannot be entitled to the relief they are seeking.

The application is therefore dismissed with costs.

It is remarkable that the plaintiff insists that the land was not only surveyed and clearly marked on a General Plan, DG 3843, and, as such, it is no longer unalianated but also that there is correspondence from the Ministry of Local Government, Public Works and Urban Development confirming the allocation of Stands, including that of the plaintiff, to co-operatives.

I agree with counsel for the plaintiff that, as a member of a co-operative allocated the Stands, the plaintiff would have locus standi to vindicate.

The first appellant only raised the issue of change of land use more than two years later in an affidavit deposed to by the same company director, Killian Kapaso, who had deposed to the original opposing affidavit two years earlier.

In that affidavit, the first appellant was responding to the Chief Registrar of Deeds' affidavit confirming that the land in dispute was registered in the name of the President of Zimbabwe and had become State land in terms of section 16B of the Constitution.

That registration still subsists. It has not been nullified by any court of competent jurisdiction.

The issue of State ownership of the acquired land is really an issue between Cecil Michel Reimer and the acquiring authority. Cecil Michael Reimer has, however, chosen not to be a party to this matter electing merely to furnish an affidavit confirming that he sold the disputed land to the first appellant….,.

It is an established fact that the land in question is registered as agricultural land in the name of the acquiring authority. In the absence of any evidence as to how it ceased to be agricultural land the registration in the Deeds Office prevails.

In the case of Lilifort Toro v Vodge Investments (Pvt) Ltd SC15-17, there was clear evidence as to how the land had ceased to be agricultural land to become urban land by virtue of Proclamation 3 of 2012, S.I.115 of 2012. This was followed up by an official handover of the land through a letter dated 10 June 2013.

In this case, nothing of the sort happened.

The acquiring authority continues to claim ownership of the land registered in his name. It is trite that registration in the Deeds Registry constitutes proof of ownership of land.

All the parties to this case looked up to him for relief without any reference to the Minister of Local Government Rural and Urban Development. This amounts to recognition of his ownership and authority over the disputed land. That is ample proof that the Minister of Local Government had no authority to convert agricultural land to urban land without the consent of his colleague, the acquiring authority. Any purported change of ownership of the land without the consent of the acquiring authority was therefore a legal nullity and of no force or effect.

Counsel for the applicant submitted that State officials have visited the land and encouraged the applicant to continue with its operations. As a result, the applicant has made substantial investments including a finance scheme with Dairiboard Zimbabwe (Limited).

On the issue of visits by State officials, counsel for the applicant submitted that such visits were made by the Deputy Minister of Agriculture. Thus, this overt encouragement dilutes the element of unlawfulness. There is the element of legitimate expectation….,.

In light of the…, case authorities and relevant legislation, the applicant has no legal right to the land in question.

It matters not that the applicant has received covert encouragement from Government officials. It was duplicitous of those Government officials to have given the applicant such false hope without ensuring it is issued with a legal permit to remain on the land.

WHETHER ESTOPPEL APPLIES

Both in its founding and answering affidavits in the court a quo, the appellant averred that between January and February 2014, two Deputy Ministers of Agriculture had visited the farm to see first-hand the operations of the appellant and how its officials were working with the local community and resettled farmers. They expressed encouragement and support for the appellant's operations in the dairy industry and pedigree breeding project.

This gave the appellant confidence that it was indeed permitted to continue its farming enterprise on the land.

As Government is composed of various Ministries, the appellant was led to believe that it had the tacit consent and permission of the Government to continue with its farming activities. The appellant therefore believed it had a valid reason, in terms of the law, for its continued occupation of the farm.

I do not believe that this submission need detain this Court.

The visit by the two Deputy Ministers of Agriculture was intended to ascertain the operations of the appellant. There is no suggestion that they knew the legal status of the land that the appellant was occupying. Indeed, it is common cause that title to the land now vested in the Government, and, as senior Government officials in charge of the Agriculture Ministry, the two Deputy Ministers would have been aware that they had no jurisdiction to take over the functions of the Ministry responsible for land allocation and clothe the appellant with the necessary authority to continue farming.

This Court has made it clear that in terms of the law, only persons with lawful authority can continue to possess or work agricultural land. What constitutes lawful authority is now settled in this jurisdiction - Commercial Farmers' Union and Others v The Minister of Lands and Rural Resettlement and Others 2010 (2) ZLR 576 (S)…,.

In the circumstances, there can be no question of the State being estopped from denying that the appellant had the lawful authority to occupy the land. The visits by the Deputy Ministers of Agriculture had nothing to do with the legal status of the appellant's operations. They would not, in any event, have had the jurisdiction, in terms of the law, to authorise the appellant to continue operations in the face of the fact that title now vested in the State.

The certificates of occupation relied upon by the applicants were issued by the State, through Mazoe Rural District Council…,. The certificate itself is self-explanatory in its content…., it reads, in relevant part, as follows:

“CERTIFICATE OF OCCUPATION

A1 RESETTLEMENT SCHEME

This is to certify that Mr/Mrs/Miss Chirau Beauty, National Identity Number 75-282469X75, is the legal holder of Plot number Forty (40) which consists of six (6) hectares of land. The plot is at Selby resettlement area in Mazoe Rural District Council.

Issued on this 12(th) day of January 2010.”

The certificate is signed by all the relevant officials, namely, the C.E.O/Council Chairman, District Administrator, District Lands Officer and DCC.

It is, indeed, a document issued by the State with all the hallmarks of a permit conferring upon the holder the right to occupy the land…,.

The second issue was whether or not the respondent was bound by a decision made by the Department of Taxes in 1999 regarding the treatment of the cost of acquitting computer software when computing taxable income

It was common cause that the 1999 decision was not a general binding ruling and had no binding effect in 2009 or at all. It does not meet the criteria set out in Schedule 4 of the Revenue Authority Act [Chapter 23:11]. The decision does not bind the respondent.

The tax consultant testified on the purported existence of a tax practice since 18 May 1999. He further indicated that the claim for deduction in the 2009 tax return was submitted on the basis of the purported practice. He stated that the appellant became aware of the change in the purported practice on receipt of the first set of amended tax returns disallowing the claim. In the notice of objection, notice of appeal, appellant's case and reply to the Commissioner's case, the appellant raised the doctrine of legitimate expectation arising from the communication of 18 May 1999 between a firm of chartered accountants that acted as the tax consultant to the appellant and the respondent (annexure I of respondent's case and pages 17-19 of bundle 2). In that letter, the respondent treated computer software as a consumable item and classified expenditure either by purchase or development as revenue expenditure deductible in terms of section 15(2)(a) of the Income Tax Act.

It was common cause that the general letter of enquiry and the response did not constitute a general binding ruling contemplated in general by the 4^th Schedule, and, in particular by paragraph 5(3) thereof of the Revenue Authority Act.

Counsel for the appellant submitted that proviso (i) of section 47(1) of the Income Tax Act precludes the respondent from issuing an amended assessment on a tax return submitted in terms of the purported departmental practice reflected in the letter from the respondent of 18 May 1999.

The proviso reads:

“47 Additional assessments

(1) If the Commissioner, having made any assessment on any the tax payer, later considers that…, -

(a) An amount of taxable income which should have been charged to tax has not been charged to tax; or

(b) In the determination of an assessed loss -

(c) Any sum granted by way of credit should not have been granted;

Provided that…,;

(i) No such adjustments or call upon the taxpayer shall be made if the assessment was made in accordance with the practice generally prevailing at the time the assessment was made;

(ii) Subject to proviso (i), no such adjustment or call upon the taxpayer shall be made after 6 years from the end of the relevant year of assessment unless the Commissioner is satisfied that the adjustment or is necessary as a result of fraud, misrepresentation or wilful non-disclosure of facts, in which case the adjustment or call may be made at any time thereafter;

(iii) The powers conferred by this subsection shall not be construed so as to permit the Commissioner to vary any decision made by him in terms of subsection (4) of section sixty-two.”

I was able to find four cases from this jurisdiction that dealt with the precursor proviso (i) to section 47(1). These are: X v Commissioner of Taxes 1978 (1) SA 605 (R)…., where the taxpayer was obliged to establish, on a balance of probabilities, the existence of the alleged practice by cogent and not vague evidence; LW v Commissioner of Taxes 1967 (3) SA 70 (R)….,; NCGF Ltd v Commissioner of Taxes 1960 (4) SA 919 (SR)…, and Commissioner of Taxes v New Consolidated Goldfield Ltd 1962 (1) SA 886 (FC)…,.

It does not appear to me that the tax consultant established a practice generally prevailing at the time the assessment was made. The tenor of his evidence was a carry-on of the averments in the objection of the existence of a tax ruling issued in 1999. It was clear to me that the letter in question was not a tax ruling. It did not satisfy the requirements of paragraph 2 and 5 of the 4^th Schedule of the Revenue Authority Act [Chapter 23:11]. The erroneous cancellation of the purported tax ruling by the respondent's Chief Investigator in the present case, in his letter of 7 August, did not confirm the existence of the practice. Section 3(4) that he sought to rely on for the cancellation was repealed in its entirety without substitution by the Finance Act No.8 of 2011 with effect from 16 September 2011. The existence of such practice was disputed by the respondent in its case and was put in issue during the cross examination of the tax consultant.

In my view, an opinion wrong at law, cannot establish a practice.

The respondent was, therefore, not precluded by proviso (i) to section 47(1) of the Income Tax Act [Chapter 23:06] from issuing an amended assessment.

If the Deed of Sale (DOS) was never cancelled, what then was the effect?

This leads me to the next issue, namely, the conduct of the Late Dzingayi Kashumba in unilaterally, and, in his own name, seeking an extension of the subdivision permit and thereafter taking transfer on the basis of the order of 9 May 2001.

Whether the extension of the subdivision permit and the subsequent registration of transfer in the name of the Late Dzingayi were lawful

I have already indicated that the letter by the land surveyors to the City of Harare, seeking an extension of the subdivision permit, was misleading. Furthermore, it carefully avoided mentioning whose agent they had been when they made that application.

The issue whether or not, apart from the seller or owner of a piece of land, any other interested party, such as a purchaser, can legitimately apply for a subdivision permit, or an extension thereof, in respect of the land that he might be interested in, was not properly argued before me.

The applicants accused the Late Dzingayi Kashumba of fraud, and the City of Harare of collusion.

I understand that it was largely on account of these accusations that the matter had initially been referred to trial. However, before me, the parties were agreed that this issue was really immaterial.

I agree.

Therefore I express no view. It was water under the bridge. The subdivision had become a fait accompli. At any rate, the main aspect relating to the extension of the subdivision permit was whether or not the Deed of Sale (DOS) had become illegal in terms of the Regional, Town and Country Planning Act if that permit had expired. That aspect was expressly withdrawn before BARTLETT J in December 2001.

That leaves the question of the legality of the transfers of the original property to the Late Dzingayi Kashumba on 3 May 2006.

I have no doubt that they were fraught with illegality.

Firstly, the order of this court, on 9 May 2001, did not grant the Late Dzingayi, carte blanche, the right to transfer. The right had been conditional upon him paying the balance of the purchase price. Not only that, but that payment had to be made within 30 days of the date of that order. Even though he might have made some payment within the 30 day period, as it later turned out, that payment had been inadequate. So when Kantor & Immerman made the representation before the Registrar of Deeds they knew very well that the Late Dzingayi Kashumba had not paid the balance of the purchase price within the 30- day period. Among other things, they were still seeking condonation for their client to pay outside the 30 days.

That is the one aspect.

The second aspect is that Kantor & Immerman, in the face of uncompleted litigation, could not just abandon that, retrieve from their drawers the old order of 9 May 2001, and, five years later, present it before the Registrar of Deeds as the authority for their client to take transfer of the property without warning the applicants. To their knowledge, that order referred to the first applicant. To their knowledge, she no longer had title. At the very least, and in my view, they would have had to seek rectification of that order.

But they could not.

They did not want to let the applicants know. They then ended up filing an affidavit with the Registrar of Deeds that was misleading for its lack of candour. In the end, transfer of the original property was taken from persons other than the first applicant to whom the order of 9 May 2001 related.

The third aspect was not canvassed. It is that by the time the Late Dzingayi Kashumba purported to take transfer, the original property had become res litigiosa. An object that is res litigiosa may not be disposed of after litis contestatio: see Ex parte Deputy Sheriff, Salisbury: In re Doyle v Salgo 1957 [3] SA 740 [SR]; Zimbabwe Banking Corporation Ltd & Anor v Shiku Distributors [Pvt] Ltd & Ors 2000 [2] ZLR 11 [H]…, and Chenga v Chikadaya & Ors SC07-13.

Quite apart from the fact that transfer was taken, purportedly from the first applicant who by that time had already lost dominion by reason of her own donation transfer to applicants 2 to 4, the mere fact that the property had become res litigiosa, even if such donation transfer had not occurred, would have militated against the transfer to the Late Dzingayi Kashumba because the first applicant's rights in the property had become diminished or qualified: see Ex parte Deputy Sheriff, Salisbury: In re Doyle v Salgo 1957 [3] SA 740 [SR]…,.

The Registrar of Deeds should not have passed transfer, especially where he had been cited as a party in all the cases that had been brought to court or were still pending….,.

Whether the transfer to fourth respondent was valid

The fourth respondent took transfer of Stand 553 on 17 February 2011. That transfer was invalid for the same reasons that the transfer to the Late Dzingayi Kashumba, on 3 May 2006, was invalid. In addition, the transfer to the fourth respondent was invalid on the ground that Ceciliah, even in her capacity as the executrix to the estate Late Dzingayi Kashumba, had no title to pass. Furthermore, Stand 553 was res litigiosa. This case had already been instituted and was now pending determination.

It is also common cause that prior to the eviction, the pegs demarcating the plots had been affirmed by the Ministry of Lands. In a letter to the officer in charge of Saurstown Police Station on 2 September 2014 the District Lands Officer had stated:

“REF: ILLEGAL OCCUPATION OF PLOT NO. 12 HELENVALE M

Sir, please be informed that our office received a complaint from Mr Petros Moyo I.D No 08-244845 B 39 over the illegal occupation of his plot, Plot 12 Helenvale M. Plot No.12 Helenvale M was offered to Mr Petros Moyo by the Ministry of Lands and Rural Resettlement in the year 2002. Pegging of Plot 12 was done successfully by the Ministry on the 13^th and 14^th of August 2014. The pegging confirmed that the two plot holders, Mrs Thalitha Mhlanga and Mr Robert Ncube, who are Mr Moyo's neighbours, are within the boundaries of Plot 12. Mr Moyo is also in possession of a court order issued sometime in 2013 of which the two illegal settlers were supposed to vacate his plot by the 31^st of August 2013. May you please assist him in whatever way possible.

Thank you.

P Ndlovu

District Lands Officer”

The defendant informed the court that, when the divorce proceedings were in progress, she called at the offices of the Ministry of Lands, Land Reform and Resettlement (the Ministry) where she inquired about her status on the farm.

She stated that she saw and talked to one Dr. Murerwa who referred her to the Ministry's legal department. She said she later talked to a Mrs Tsvakwi as a result of which a letter which clarified her position on the farm was written....,.

She said the Ministry told her that she was co-lessee on the farm with the plaintiff. She insisted that she should, therefore, be treated as such....,.

The court..., accepts the statement which the Ministry of Lands, Land Reform and Resettlement (the Ministry) conveyed to the defendant when the latter called at its offices to ascertain her status on the farm as having reflected the correct position of the matter then.

On his return to Zimbabwe, on 3 September 2011, the applicant was interviewed and an endorsement to that effect made accepting him as a returning resident.

The applicant contends that the respondents cannot, after granting him the returning resident status, turn around and claim that he was illegally staying elsewhere so he does not qualify for the rebate.

During cross examination, Councillor Silas Machetu, who resides in Highfield Township and who was allocated a Stand in Waterfalls, claimed that Waterfalls was adjacent to his ward, being ward 25, Highfield Harare. He said that if the Stand was outside the adjacent ward that was not his concern because council officials had told him that it was adjacent….,.

In terms of the Council Resolution of 2003, a councillor can be allocated a property in his ward or in an adjacent ward, and, where this happens, he or she is obliged to pay for the property at a subsidized price of 40% of the market value of the property at the time of allocation.

Where the councillor does not accept a property in his ward, or in an adjacent ward, but chooses to go to another ward, he forfeits the privilege of paying a discounted price, which means that he was obliged to pay the full market purchase price as at the date of allocation.

Although the Chamber Secretary told the committee, under cross examination, that the resolution was silent as to what would happen in the event that a house could not be available in the councillor's ward or an adjacent ward, this did not give carte blanche to council officials to allow councillors the privilege of paying a discounted price in situations where it was not permitted to do so.

The effect of the testimony of the Chamber Secretary was that the Director of Housing ought to have sought and obtained an amendment of the special resolution which governed allocation of property to councillors before proceeding with a sale. The evidence shows that he failed to do so. It is clear that the Director of Housing acted outside the scope of the Special Resolution….,.

Councillor Gorekore stated that he relied on the assurances given to him by the Director of Housing that he was imbued with discretion and that any action he took could be ratified by council in retrospect. This demonstrates awareness on the part of the councillor that the allocation of the Stand was irregular….,.

Justin Chivavaya, the Director of Housing and Community Services of the City of Harare, testified before the Disciplinary Committee and outlined the procedure that councillors should follow in order to be allocated a house or a Stand. Although he denied being directly involved in the allocation of properties to the four respondents, he accepted that he is the head of the department of housing whose officials did the actual allocation to the four respondents….,.

The Disciplinary Committee found that the Director of Housing did not approach council for amendment of the special resolution for authority to allocate the stands to the four councillors. It was found that the councillors were not at liberty to claim that just because the Director of Housing failed to carry out his duties properly, they had no choice but to accept the stands. As councillors, they were the authors and custodians of the council resolutions. They knew the spirit and letter of the resolutions and that it was wrong to go beyond the boundaries prescribed by the resolutions. They knew, or ought to have known, that they could not be allocated stands outside the adjacent ward in Harare at the subsidised price.

Where the Stands allocated to them were not in their wards or adjacent wards, they had to forfeit the privileges of being given priority over others on the waiting list, and of being given a discount on the purchase price.

The issue before the Labour Court was whether the court was seized with an application for review or an appeal.

The Labour Court concluded that the application before it was a review and not an appeal and that it had no jurisdiction to review the arbitrator's decision. The appellant has not challenged the court a quo's view that it had no jurisdiction to review the arbitrator's decision. Rather, the appellant has suggested, with scant authority, that a court called upon to review a matter has the discretion to treat the review as an appeal. On the record it is clear that what was brought before the court was a review application.

However, what complicates this matter is that the appellant, a self-actor and layman, claims that he had intended to bring an appeal to the Labour Court but was misled into filing a wrong application by an officer of the Labour Court, an Assistant Registrar called Mr Muna - who was allegedly acting in connivance with the respondent.

In the court a quo, the appellant expressed his bafflement thus:

“I was advised by Mr Muna that I should lodge a review, for if you lodge an appeal, it may spend two years before the matter is heard in court. As a lay person, I requested Mr Muna to help me, to assist me for the matter to be heard quickly. He said money is requested in the amount of US$50=. As a person who wanted to be assisted I sought for money. I managed to get US$40= and he received it and he prepared the papers…,. So where I am right now I am a confused person, that I am given advice by members of this court which then leads to the matter being of no use in the same court.”

Commendably, upon hearing of this, the judge a quo immediately called the police to investigate. They apprehended Mr Muna and incarcerated him pending trial. The court a quo reflected and concluded as follows on the matter:

“Appellant then said that his intention was to appeal against the arbitrator's decision but when he came to the labour offices, he was advised by the court's Mr Muna to make an application for a review. He took up the advice and ended up paying $40=. He had his application for review prepared by Mr Muna. Looking agitated, he said that he could not appreciate how he could be penalized when he got the advice from the court. Unfortunately, this was wrong advice.

As a result of this complaint against Mr Muna, investigations had to be instituted by the Registrar concerning the alleged advice. However, the appellant never made a request to the court to have Mr Muna called as a witness.

What is in the record is a well prepared application for review. Applicant approached this court with that application. It was served on the respondent. This is what the court had before it, and was called upon to review.

Mr Maguchu, having submitted that this court had no jurisdiction in terms of the law to entertain a review against the decision of the arbitrator, Applicant was not heard to dispute this nor was he heard to say he was making an application for an appeal against the decision of the arbitrator. He was neither heard to say he was making an application for his review application to be altered to that of an appeal after he had raised a complaint against Mr Muna. In the end result, I find that I must deal with a review against the decision of the arbitrator. Having addressed myself on the law…, I find that this court has no jurisdiction to entertain the application for a review against the decision of the arbitrator. The application is dismissed.”

The attitude displayed by the court a quo above, in my view, betrays a failure to act fairly and assist an unrepresented litigant. Once the court had initiated the process which led to the investigation of Mr Muna's conduct, the matter was now squarely in the court's hands so that it could not abdicate its responsibility and merely leave it up to the appellant to call Mr Muna as a witness. Worse still, the same court could not further hold it against the appellant for failure to have the witness called. The court was seized with the fact that Mr Muna's alleged irregular advice was the subject of the Registrar's investigation, yet it appears to have shown no interest in the outcome of that inquiry.

The Supreme Court of Kenya in Raila Odinga and Five Ors v Independent Electoral and Boundaries Commission and Three Ors (Petition 5,3 and 4 of 2013) [2013] eKLR explained as follows…,:

“[195] There is, apparently, a common thread in the foregoing comparative jurisprudence on burden of proof in election cases. Its essence is that an electoral cause is established much in the same way as a civil cause: the legal burden rests on the petitioner, but, depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting. Ultimately, of course, it falls to the Court to determine whether a firm and unanswered case has been made.

[196] We find merit in such a judicial approach, as is well exemplified in the several cases from Nigeria. Where a party alleges non-conformity with the electoral law, the petitioner must not only prove that there has been non-compliance with the law, but that such failure of compliance did affect the validity of the elections. It is on that basis that the respondent bears the burden of proving the contrary. This emerges from a long-standing common law approach in respect of alleged irregularity in the acts of public bodies. Omnia praesumuntur rite et solemniter esse acta: all acts are presumed to have been done rightly and regularly. So, the petitioner must set out by raising firm and credible evidence of the public authority's departures from the prescriptions of the law.”

The first respondent insisted that she would continue to mine because she got assurance from the Ministry of Mines that the claims will be registered in her name in due course….,.

The applicant is a holder of real rights over the mine. This is in terms of the substantive law. Surely, a real right cannot be superceded by a mere promise.

A claim for a deduction was..., made in respect of a tax “ruling” dated 18 May 1999 by the Commissioner of Taxes in the Department of Taxes. It was made in response to a letter from Ernst and Young dated 24 November 2008 requesting, essentially, to be informed of the Department's practice in the treatment of computer expenditure in relation to section 15(2)(a) of the Income Tax Act [Chapter 23:06].

The “ruling” was to the effect that computer software constituted a consumable item whether or not the taxpayer owned it, and, as such, was deductible in term of section 15(2)(a) of the Income Tax Act. It also dealt with whether such costs could be capitalised as had been asked by Ernst and Young.

The court a quo found that such letter was not a generally binding ruling and was not binding at all in 2009.

On 12 October 2011, the association to which the appellants belonged wrote to the respondent seeking written guidance on the correct tax treatment of the school fees benefit accruing to these employees. The guidance from the Commissioner General was based on section 8(1)(f) of the Income Tax Act. He advised that the use of any educational and boarding facilities of any of the association affiliated schools by the children of these employees constituted a section 8(1)(f) benefit equivalent to the waived amount.

The submission was made by counsel for the appellant that the respondents appear to be disowning the letters that emanated from their offices and have been referred to earlier in this judgment, by stating that they were not advance tax rulings nor tariff rulings. This, as well as counsel for the appellant's further submission that the letters have never been said to have been issued in error nor have the respondents stated what other purpose the letters sought to achieve, remained unchallenged.

That the classifications done from October 1998 to 24 February 2010 were done by the second respondent's predecessor under the letter of 5 October 1998 and the second respondent under his letter dated 24 February 2010, respectively, also stands unchallenged. It is clear that in terms of section 87 of the Customs and Excise Act [Chapter 23:02], these decisions by the second respondent and his officers lawfully stand as such and do not need to be related to or compared with an advance tax ruling.

Another submission by counsel for the appellant that also remained unchallenged was that in order to discharge his duties of classification as required by section 87 of the Customs and Excise Act, the second respondent did not need the powers under section 34D of the Revenue Act [Chapter 23:11] that relate to the making of an advance tax ruling. A classification done under section 87 has no connection to an advance tax ruling under section 34D and must therefore not be confused with the same.

It follows that the letters under discussion were therefore competent as they were written by agents of the second respondent. The case of Gwafa v Small Enterprises Development Corporation & Anor 1999 (2) ZLR 261 (SC)..., that was referred to by the appellant's counsel sheds some light on this aspect.

The reasoning in Gwafa v Small Enterprises Development Corporation & Anor 1999 (2) ZLR 261 (SC) being that:

“The principles on which a seller can be bound by the ostensible authority of his agent have been set out in a number of cases which have come before this Court. In Stewart Zagreb Properties (Pvt) Ltd 1971 1 RLR 180 (RA) at 184C-F; 1971 (2) SA 346 (RA) at 349 F-H, BEADLE CJ said:

'The principles on which a seller or a principal can be bound by the ostensible authority of an agent have been set out recently by this Court in the case of Reed NO v Sager's Motors (Pvt) Ltd 1970 (1) SA 521 (RA). The headnote to that case, which accurately sets out the judgment, is as follows:

'If a principal employs a servant or agent in a certain capacity, and it is generally recognized that servants or agents employed in this capacity have authority to do certain acts, then any of those acts performed by such servant or agent will bind the principal because they are within the scope of his 'apparent' authority. The principal is bound even though he never expressly or impliedly authorized the servant or agent to do these acts, nor had he by any special act (other than the act of appointing him in his capacity) held the servant out as having this authority. The agent's authority flows from the fact that persons employed in the particular capacity in which he is employed normally have authority to do what he did. Whether an act is or is not within the scope of the apparent authority of an agent is essentially a question of fact.'”

On the reasoning in Gwafa v Small Enterprises Development Corporation & Anor 1999 (2) ZLR 261 (SC), the authors of the letters related to had the ostensible authority to write them on behalf of the second respondent....,.

For the appellant to succeed in proving estoppel, it has to prove, and the authority for this proposition is the case of Andrew Phillips (Pvt) Ltd v GDR Pneumatics (Pvt) Ltd 1986 (2) ZLR 65 (SC) 67, that the respondents or their officers made a representation in word or deed which might have reasonably misled the appellant; that the appellant was misled; and that the representation induced the appellant to act as it did.

In casu, the two letters, the conduct of the second respondent and his officers, in classifying the base station components as 'base stations' and the passage of time before the respondents sought to set aside the classification, all tend to buttress the appellant's case. The appellant cannot, in the circumstances, be faulted for believing that the base station components that it imported were correctly classified as base stations and were therefore duty-free. This was an administrative decision by the respondents which decision is neither ultra-vires nor unlawful. The submission that, in these circumstances, there is no barrier to the application of the doctrine of estoppel thus finds favour with this Court.

The fact that the respondents had been making the same classification in the same way for fifteen years and now sought to reverse the classification at this stage was not satisfactorily explained away by the respondents.

The applicant refers to annexures 'F' and 'G' in relation to what constitutes a base station. Annexure 'F' is a letter written on behalf of the Director of Customs and Excise on 5 October 1998 and addressed to the applicant's Manager, General Services. The enumerated goods are classified for duty free purposes under tariff 8525.2020. Annexure 'G' is another letter written on behalf of the second respondent and addressed to the applicant's Chief Logistics Manager on 24 February 2010….,.

For an importer to rely on a tariff ruling on imports, the ruling must be issued according to law in order to constitute a Revenue Advance Tax Ruling (which includes a Tariff Ruling). The ruling must be issued by the second respondent and not an administrative head or manager at station level…,.

Counsel for the applicant submitted that the acts of functionaries are deemed to be those of the principal. This acts to protect the rights of others who rely on the acts of administrative authorities as in the present case….,.

The defence of estoppel was explained by McNALLY JA in Mashave v Standard Bank of S.A. Ltd 1998 (1) ZLR 436 (SC)…, as follows:

“The Roman-Dutch law protects the right of an owner to vindicate his property, and, as a matter of policy, favours him as against an innocent purchaser. See for instance Chetty v Naidoo 1974 (3) SA 13 (A) at 20A-C.

The innocent purchaser's only defence is estoppel.

Estoppel depends upon an allegation that a representation was made by the owner/claimant. In Aris Enterprises (Finance) (Pty) Ltd v Protea Assurance Co Ltd 1981 (3) SA 274 (A), Corbett JA (as he then was) said at 291:

'The essence of the doctrine of estoppel by representation is that a person is precluded, i.e estopped, from denying the truth of a representation previously made by him to another person if the latter, believing in the truth of the representation, acted thereon to his prejudice (see Joubert, The Law of South Africa, vol 9 para 367 and the authorities there-cited). The representation may be made in words, i.e expressly, or it may be made by conduct, including silence or inaction, i.e tacitly (Ibid para 371); and, in general, it must relate to an existing fact (Ibid para 372).'”

See also Grosvenor Motors (Potchefstroom) Ltd v Douglas 1956 (3) SA 420 (A)…,.; Johaadien v Stanley Porter (Paarl) (Pty) Ltd 1970 (1) SA 394 (A); Oakland F Nominees (Pty) Ltd v Gelria Mining & Invstm Co Ltd 1976 (1) SA 441 (A); Jones & Ors v Trust Bank of Africa Ltd & Ors 1993 (4) SA 415 (C)…,.; Basson t/a Repcomm Community Repeater Svcs v Postmaster General 1994 (3) SA 224 (SE)…,.; RABIE, The Law of Estoppel in South Africa…,.; MILLER, The Acquisition and Protection of Ownership…,.; VISSER and G POTGIETER, Estoppel: Cases and Materials….,.; SILBERBERG & SCHOEMAN's The Law of Property 3ed…,.; GIBSON's SA Mercantile & Company Law 6ed…,.

It is also contended that the classifications made in the letters dated 5 October 1998 and 24 February 2010 were made by agents of the Commissioner General and not officers in terms of section 87 of the Customs and Excise Act [Chapter 23:02]. In that context, it is tantamount to a classification made by the Commissioner-General himself. Consequently, the Commissioner General would be precluded from reclassifying goods that were classified by his agents.

As previously noted, of the letters in contention, the one dated 5 October 1998 was signed by T. Chimunhu on behalf of the Director of Customs and Excise. That of 24 February 2010 was signed by M. Madongorere on behalf of the Commissioner General….,.

Just as the argument on estoppel, I find merit in the argument advanced by the respondents. The people who signed the letters referred to are officers of the first respondent as defined in the Customs and Excise Act. It is those officers who made the classifications of the imports in terms of section 87(1) of the Customs and Excise Act. It is clear that the classification was not made by the second respondent. In that event the applicant's recourse was either to appeal to the second respondent (if the classification was made by an officer) or to appeal to the Fiscal Appeal Court (if the classification was made or varied by the second respondent). See section 87(3) of the Customs and Excise Act [Chapter 23:02].

Among the applicant's exhibits was a letter from the Registrar of Deeds dated 23 January 2014 which the respondents did not put in issue. It explained the concept of vesting of ownership of land by means of consents endorsed on the title deed where there is no change of beneficial interest. The material portion of the letter read as follows:

“The remainder of Lot A Chikurubi is registered in the name of Netone Cellular (Private) Limited under Deed of Grant 13832. The property was originally owned by the Government of Zimbabwe who later transferred it, by endorsement of PTC, who also later transferred it to Netone Cellular (Private) Limited by the same method. It is a method we use where there is no change of beneficial interest. The words 'The within Land” on the endorsement simply refer to the land in the deed, the remainder of Lot A Chikurubi. The endorsement has the same effect like a transfer stamp. The piece of land held under Certificate of Registered Title 4089/75, that is, Stand 2 Cleveland Township, is owned by the Government of Zimbabwe.”

Counsel for the second respondent argued that the applicant had not produced the directive by the Minister to the Registrar of Deeds authorising the endorsement and that therefore the endorsements on the title deeds remained just endorsements and not proof of ownership!…,.

The Deeds Office is a public office. There was nothing stopping the second respondent from examining the documents therein. Unless it had proof to the contrary there was nothing to upset endorsements that seemed regular on the face of it.

Section 3(1)(c) of the Toll Roads Act [Chapter 13:13] provides that the Minister of Transport may fix the amount of any toll after consulting the minister responsible for finance. The applicant says the Minister did not consult the Minister of Finance. The respondents say he did. Not only that, but also that he brought the whole matter to Cabinet for approval.

The court is none the wiser. The law says he who alleges must prove.

Furthermore, the presumption of validity operates. An act regular on the face of it is valid until the contrary is proved.

The applicant just makes a bald allegation in paragraph 23.1 of the founding affidavit that there is no evidence that the Minister of Transport followed the procedures set out in section 3(1)(c) of the Toll Roads Act and that his failure to consult the Minister of Finance is fatal to the validity of S.I.106 of 2014.

But where is the evidence of non-compliance in the first place?

The court cannot upset a law on mere conjecture.

This is an application for rescission of a judgment of this court entered in default in favour of the first respondent on 26 June 2008 in terms of which the eviction of the applicant and those claiming occupation through him from premises known as 1495 Chiwaridzo Township Bindura was ordered together with costs of suit.

On 4 February 2008, the first respondent issued summons out of this court in case number HC642/08 alleging that the house in question had been leased to the applicant by written lease agreement signed by the parties on 20 December 2003, which lease could be terminated by the first respondent in the event that the applicant left employment with the first respondent.

The first respondent further averred, that, the applicant's employment having been terminated on 31 March 2007, a point which is now hotly disputed by the applicant who claims having retired from the first respondent's employ in October 2005, the lease had been terminated.

The first respondent then sought an order for eviction as a consequence of the applicant's failure to vacate the house following such termination.

According to the Deputy Sheriff's (second respondent herein) return of service filed of record in that matter, the summons was “served on defendant Enock Govha” on 29 February 2008.

On 12 May 2008, the first respondent submitted an application for default judgement which was granted on 26 June 2008 aforesaid. In due course, a writ of ejectment was issued and the applicant's eviction was sought.

It is that default judgment which the applicant seeks to have rescinded arguing that he was not in wilful default as he was never served with the summons.

The applicant has cited the Deputy Sheriff in this application as second respondent and attacked his return of service as being “false and misleading” given that on the day the second respondent alleges he served the summons personally upon him, he (the applicant), was enjoying the fruits of his retirement in his communal home, he having relocated there in January 2006 following his retirement either in October or December 2005.

It is not clear when, as he mentions two (2) different months in 2005 as his retirement date.

It is not clear whether this application was served upon the second respondent as no proof of such service was filed.

What is clear though is that the second respondent has not challenged the serious allegations made against him regarding service of the summons. His failure to do so may be due to the fact that he did not have notice of the application.

The applicant states, in his founding affidavit, that, he only became aware of the existence of the default judgment when the second respondent sought to evict his daughter from the house on 1 November 2008....,.

Rule 63 of the High Court of Zimbabwe Rules 1971 provides:

“(1) A party against whom judgment has been given in default, whether under these rules or under any other law, may make a court application not later than one month after he has had knowledge of the judgment, for the judgment to be set aside.

(2) If the court is satisfied, on an application in terms of subrule (1), that there is good and sufficient cause to do so, the court may set aside the judgment concerned and give leave to the defendant to defend or to the plaintiff to prosecute his action, on such terms as to costs and otherwise as the court considers just.”

Subrule (2) of Rule 63 was interpreted succinctly in the seminal case of Stockill v Griffiths 1992 (1) ZLR 172 (S)…, as follows:

“The factors which a court will take into account in determining whether an applicant for rescission has discharged the onus of proving 'good and sufficient cause' as required to be shown by Rule 63 of the High Court of Zimbabwe Rules 1971 are well established. They have been discussed and applied in many decided cases in this country: see, for instance, Barclays Bank of Zimbabwe Ltd v CC International (Pvt) Ltd SC16-86 (not yet reported); Roland and Anor v Donnell 1986 (2) ZLR 216 (S) at 226E-H. Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) at 211C-F. They are:

(i) The reasonableness of the applicant's explanation for the default.

(ii) The bona fides of the application to rescind the judgment; and

(iii) The bona fides of the defence on the merits of the case which carries some prospects of success.

These factors must be considered not only individually but in conjunction with one another and with the application as a whole.”…,.

The explanation given by the applicant, for failure to respond to the summons, is not
convincing, especially as it does not appear that the second respondent, who claims to have served the summons personally on the applicant, has been served for him to responded to the accusations levelled against him.

I agree with counsel for the first respondent, who relies on the authority of Gundani v Kanyemba 1988 (1) ZLR 226 (S), that, the second respondent's return of service is prima facie proof of service and can only be rebutted by concrete evidence being placed before the court.

However, that is not the only factor to be considered in deciding whether the applicant for rescission of judgement has discharge the onus of showing “good and sufficient cause” for the rescission.

In the celebrated case of Ais Enterprises (Finance) (Pty) Ltd v Protea Assurance Co Ltd 1981 (3) SA 274 (A)…, the court had this to say:

“The essence of the doctrine of estoppels by representation is that a person is precluded, i.e. stopped, from denying the truth of a representation previously made by him to another person if the latter, believing in the truth of the representation, acted thereon to his prejudice (see Joubert, The Law of South Africa, Vol 9 para 367 and the authorities there cited). The representation may be made in words, ie. expressly, or it may be made by conduct, including silence or inaction, i.e. tacitly (ibid para 371); and in general it must relate to an existing fact (ibid para 372).”

It is the law relating to the proof of documents that are not public documents that their authenticity must be proven. The authors HOFFMAN & ZEFFERTH observe that evidence is normally required to satisfy the court as to the authenticity of any tendered document.

In H & Dwitkoppen Agencies & Fourways Est v De Sousa 1971 (3) SA 941 TPD it was held…, that:

“The law in relation to the proof of private documents is that they must be identified by a witness who is either;

(i) The writer or signatory thereof; or

(ii) The attesting witness, or

(iii) The person who found it in possession of the opposite party; or

(iv) A handwriting expert, unless the document is one which proves itself,….”

An owner of property may recover it from whoever possess it without his consent; Badela Ndlovu v Spiwe Posi HH475-15.

The actio rei vindicatio is an action brought by an owner of the property to recover it from any person who retains possession of it without his consent; Tendai Savanhu v Hwange Colliery Company SC08-15. The principle that an owner cannot be deprived of his property against his will means that he is entitled to recover it from any person who retains possession of it without his consent; SILBERBERG and SCHOEMAN, Law of Property, 3ed…,.

A common thread runs through the above cited dicta. It is that no person is allowed, at law, to retain the property of another against the latter's will. Put differently, the law allows the owner to recover his property from whoever is holding the same against the owner's will. The only exception which the law recognizes is where the possessor has some enforceable right against the owner.

The generally accepted position which is enunciated in the first paragraph of this judgment constitutes the applicant's cause of action. Its contention is that gold claim number 45464, Makaha [“Makaha”] belongs to it. Makaha is in Mudzi which is under Mutoko District. It states that:

(a) Makaha was granted to it in 2012 by the fourteenth respondent (Minister of Mines and Mining Development); and

(b) In an ownership dispute of Makaha which ensued between the fourth respondent and it in October 2016, the Acting Provincial Mining Director for Mashonaland East Province, who works under the purview of the fourteenth respondent (Minister of Mines and Mining Development), decided the dispute in its favour.

It alleges that the first to thirteenth respondents' continued occupation of, and mining at, Makaha adversely affects its interests as well as its mining rights. It, therefore, moves the court to evict the respondents from Makaha.

All the respondents oppose the application.

The second to the thirteenth respondents are a syndicate which is known as Tabatana Mining Syndicate, the first respondent in casu. The fourteenth respondent is the Minister of Mines and Mining Development.

(i) They own Makaha through the fifth respondent; and

(ii) They appealed the decision of the Acting Provincial Mining Director to the fourteenth respondent who is yet to decide the appeal.

They allege that the application for their eviction was prematurely filed. They contend that the parties should await the decision of the fourteenth respondent.

They state that there is a dispute of ownership of Makaha in terms of which the applicant and them are both in possession of certificates of registration. They aver that there is a material dispute of fact which cannot be resolved on the papers. The matter, they insist, should be properly ventilated and determined by way of an action. They aver that it requires viva voce evidence for its resolution.

They challenge the applicant's certificate of registration. They say it is not authentic but a fraud.

They deny that there was ever any forfeiture of Makaha which was made against them or against the fifth respondent. The forfeiture, they state, was improperly done and is, therefore, invalid. They insist that their mining activities at Makaha are within the law. They state that their appeal suspends the decision of the Acting Provincial Mining Director. They aver that all the processes are suspended pending the determination of the appeal. They deny having ever despoiled the applicant of Makaha. They move the court to dismiss the application with costs on a higher scale.

The fourteenth respondent's affidavit (Minister of Mines and Mining Development) aims at clarifying issues, he says. He acknowledges that the respondents' appeal is before him for his consideration. He states that he set up what he terms the Disputes Committee which he mandated to hear, deliberate and make recommendations on the parties' dispute to him. He confirms that the Disputes Committee is seized with the parties' case.

As proof of its ownership of Makaha, the applicant attached to its application Annexure C. The annexure is a certificate of registration which the fourteenth respondent issued to it on 9 September 2014. It shows that it is the registered owner of Makaha.

The applicant's statement, which is to the effect that it acquired mining rights of Makaha in 2012, cannot possibly be correct. The date of registration which appears on the certificate does not support that allegation. Mineral rights are not acquired through any form other than by way of the annexure which bears 9 September 2014 as the date that the fourteenth respondent granted mining rights of Makaha to the applicant.

It is common cause that the respondents, less the fourteenth respondent (Minister of Mines and Mining Development), showed some activity at Makaha in 2016. Their activity created the dispute between the applicant and them. The same was referred to the Acting Provincial Mining Director (“the Director”) for Mashonaland East Province for resolution. The Director works under the supervision of the fourteenth respondent. The dispute which, in earnest, was between the applicant and the fourth respondent was decided in the applicant's favour.

The Director's ruling, which is dated 25 October 2016, reads, in part, as follows:

“Please be advised that Earthrow Investments (Pvt) Ltd has no legal right over mining claims registered in favour of Prosper Machekera even though he might be a Director in the company. Earthrow Investments and Prosper Machekera should sign an official tribute agreement and/or transfer title from Machekera P.

Basing on the above observations it is concluded that Earthrow Investments (Pvt) Ltd does not have a claim in the areas under dispute….,. Milmath Securities should be allowed to work…,.”…,.

It is the statement of the applicant that the decision of the Director constitutes its second reason for claiming title in Makaha. It submits that it should be allowed to continue its mining operations at Makaha without any interference from the respondents. It avers that these despoiled it of Makaha. It therefore moves the court for their eviction from the same.

The decision of the Director should, in my view, be read in its proper context.

An effortless reading of the same shows that the Director acknowledged the fifth respondent's title in Makaha. What he is disagreeing with is the allegation that the fourth respondent has title in the same. He, in all probability, must have examined the records which are in his office. Those must have revealed to him that the fifth (Proper Machekera), and not the fourth (Earthrow Investments) respondent has title in Makaha.

It is for the mentioned reason, if for no other, that he stated that the fourth respondent (Earthrow Investments) has no legal right over mining claims which are registered in favour of the fifth respondent (Proper Machekera).

He acknowledged, as late as October 2016, that Makaha was registered in the name of the fifth respondent. He acknowledges, further, that the fifth respondent may be a director of the fourth respondent. He states the correct position of the law which is that the only occasion when the fourth respondent can have title of Makaha occurs when the registered owner of Makaha (i.e. the fifth respondent) signs an official tribute agreement with, and/or transfers title in Makaha to, the fourth respondent.

According to the Director's records, therefore, two persons have title in Makaha. These are the applicant and the fifth respondent (Proper Machekera). The fourth respondent (Earthrow Investments) does not.

It was by way of comparative analysis that he remained of the view that when the fourth respondent's case is compared with that of the applicant, the latter entity, which has title in Makaha, was better placed than the fourth respondent to continue its mining operations at Makaha. That is the context in which the Director's decision should be understood....,.

The applicant has real rights in Makaha. The fifth respondent does also have real rights in the same. The remaining respondents who teamed up with the fifth respondent whose rights the Director recognized in his ruling do, through him, have some rights in Makaha.

Whether or not the respondents, the fifth respondent in particular, suffer(s) forfeiture of Makaha remains a matter for another day. The issue of the alleged forfeiture can only be resolved through viva voce evidence. That is so because the respondents contest the same in a very emphatic manner. They describe the alleged forfeiture as having been of no force or effect. Their reason is that it was irregularly implemented. They challenge the applicant's certificate of registration for Makaha. They state that the certificate is a fraud on the part of the person or official who issued it in the name of the applicant.

There are, in my view, material disputes of fact in the parties' case. The fourteenth respondent states as much. He is seized with the parties' dispute which he will determine after he has received the recommendations of the Disputes Committee which he set up to investigate the parties' competing claims of Makaha.

It goes without saying that neither party has a better claim to Makaha than the other. Their claims are equal in competition one against the other. The court cannot, in the circumstances, grant the application.

The applicant failed to establish its case on a balance of probabilities. Its application is without merit. It is, accordingly, dismissed with costs.