Constitutionality of Statutory Provisions re: Common Law Legal Principles

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CC06-17 : GLENS REMOVAL AND STORAGE ZIMBABWE (PRIVATE) LIMITED vs PATRICIA MANDALA
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

This matter was initially set down on the Supreme Court roll as an appeal matter. At the hearing of the appeal, the respondent submitted that the matter raised a constitutional issue of whether the law of parate executie violates the access to the courts provision, section 69(3) of the current Constitution of Zimbabwe (“the Constitution”). ...

Counsel for the respondent applied for a referral to the Constitutional Court for the determination of that issue. The application was granted and the court issued the following order:

“IT IS ORDERED BY CONSENT THAT -

1. The matter be and is hereby postponed sine die with no order as to costs, the reason being that the matter raises a constitutional issue as to whether the law of parate executie violates section 69(3) of the Constitution of Zimbabwe.

2. The matter to be heard by the full Bench of the Constitutional Court.”

The facts of this matter are fairly simple and straightforward. They are virtually common cause. They are as follows.

The respondent (the plaintiff in the court a quo and hereinafter referred to as “the plaintiff” for convenience) entered into a contract of storage with the applicant (the defendant in the court a quo and hereinafter referred to as “the defendant” for convenience), in terms of which she lodged her goods with the defendant. The agreement provided that the goods were to attract a monthly storage charge and that payment was to be made in advance. The agreement included as a material term of the contract that if the storage charges:

“…, remain unpaid for three consecutive months Glens (the applicant) reserved the right to sell part or all of the goods by Public Auction without notice to defray the accrued charges.”

The plaintiff breached the above clause of the agreement. The defendant sold the goods by public auction. It used part of the proceeds to defray costs and kept the balance for collection by the plaintiff at her convenience.

The plaintiff, aggrieved by this, approached the High Court for redress.

The plaintiff claimed damages for the loss of her goods and damages for pain and suffering as a result of the defendant's actions. The High Court found for the plaintiff and the defendant was ordered to pay damages in the sum of US$20,000=, being the value of the plaintiff's property, which the defendant had, according to the court a quo, “wrongfully and unlawfully” sold. The defendant was also ordered to pay damages for pain and suffering in the sum of US$1,500=.

The defendant was dissatisfied with the judgment of the court a quo and appealed to the Supreme Court. As I have already stated, at the commencement of the hearing of the appeal the constitutionality of the parate executie clause was raised and the matter was referred to this Court for determination….,.

Counsel for the plaintiff…, rested his case on the illegality of parate executie. He submitted that this is a point of law which can be raised for the first time on appeal. In support of his case, counsel for the plaintiff made the following submissions in paragraph 6 of his heads of argument:

“6. These heads of argument address the issue of parate execution in three stages.

Firstly, it is argued that parate execution is not of general application. It is limited to a specific type of contract – a pledge. In this type of contract there is no dispute on the principal obligation between the creditor and (the) debtor.

Secondly, and in the event that the court does not find favour with the above argument, it is argued that, on the facts, the respondent suffered prejudice and that parate execution was inappropriate.

Thirdly, and lastly, it is argued that the concept of parate execution is outmoded and has no place in modern jurisprudence and does not pass the test of constitutionality in our law.”

Counsel for the defendant submitted that the essence of the plaintiff's contention is that parate executie is unconstitutional on the basis that it offends the “access to the courts” provision of the Constitution and that the plaintiff, in her heads of argument, made reference to both the former and the current Constitutions of Zimbabwe. She further submitted that the reference to the Constitution in the instant case is inapposite because at the time that the parate executie clause was carried into effect by the defendant, and at the time it was adjudicated upon, the Constitution had not come into effect.

The issues that arise from these contrary positions and which fall for determination are –

(1) Whether or not parate executie offended the “access to the courts” provision in the former Constitution of Zimbabwe (“the former Constitution), namely, section 18(9), as read with section 16(7), of the former Constitution;

(2) Whether or not parate executie offends the “access to the courts” provision in the Constitution, namely, section 69(3) of the Constitution; and

(3) If parate executie is compliant with the provisions of both the former Constitution and the Constitution, what is its extent, and whether this Court, using its powers, in terms of section 176 of the Constitution, should outlaw parate executie on the grounds that it has no place in modern jurisprudence, on the ground that it is against public policy.

HH546-15 : ANNIE MADZARA vs STANBIC BANK ZIMBABWE LTD and CLEVER MADZARA and THE SHERIFF OF ZIMBABWE and THE REGISTRAR OF DEEDS and THE ATTORNEY GENERAL OF ZIMBABWE
Ruled By: TSANGA J

At the hearing, the applicant sought to amend the first paragraph so that it addresses the Constitutional issue at the nub of the matter. The quest in the first paragraph was therefore altered to read as follows: “1. The common law position that recognises real rights in the matrimonial property as superior to personal rights held by ...

“1. The common law position that recognises real rights in the matrimonial property as superior to personal rights held by the other spouse in the same property is in breach of section 80(3) and section 56 of the Constitution.”…,.

Counsel for the applicant's argument is that the manner in which the law on real rights has gendered effects in practice must be recognised and addressed by this court. In other words, to put his argument in context that feminists have articulated the problem, this is a “gender neutral law that encounters a gender specific reality.” That being the case, the argument put forward by counsel for the applicant is that the court must, of necessity, recognise the inappropriateness of this aspect of the law of property on real rights when applied to a matrimonial context and hold the resultant gendered reality that emerges unconstitutional.

That, in practice, the effect of a husband having real rights in his name may have deep-seated gendered implications that play out differently for women is true but by no means a peculiarity to this aspect of the law. With the standard in law having been for a long time essentially male, almost every aspect of the law, when scrutinised with gender lenses, will fall foul of gendered-ness in its effects. Genderness also does not lead automatically to an inference of unconstitutionality unless this can be illustrated. It may be more illustrative of the ways in which existing laws need to be gender-sensitised for their efficacy. Thus, gender neutral laws encountering such gender specific realities has, in fact, been at the root of the use of law reform as one of the central strategies in addressing problematic areas of the law that hamper substantive equality between men and women.

The applicant, in her founding affidavit, states that, in reality, she is the one who acquired the property and offers the motivation for the sole registration in her husband's name as having been 'mortgage'-related. A mortgage was required to acquire the property. It was the husband who was in a position to acquire a mortgage. They had no marriage certificate so the mortgage was acquired solely in his name although she says in reality she serviced it.

The details of how this was done are, however, not provided.

The bottom line is that it had nothing to do with the law. This is moreso given that the registration of the property in a party's name, who is not the actual owner, for reasons that can be explained, is legally something that can be reversed. Although the applicant rests her argument on the new Constitution, this issue has been a thorn in the flesh for the court in a number of instances that have been handled by this court. Admittedly, the new Constitution has run the extra mile, compared to its predecessor, in articulating fundamental rights that impact on the private sphere of people's lives in very specific detail. Yet, it is also a reality that the core Constitutional arguments that are at the heart of this case in interpreting the common law on real rights vis a vis matrimonial property were just as easily made with the previous Constitution.

See Deputy Sheriff v Jurai Jesina Kingsley and Cold Chain Zambia Limited HH507-14.

In that case, BERE J, in 2011, declined to refer a matter that was before him to the Supreme Court on the constitutionality of the effects of the common law on real rights in a matrimonial setting on the basis that there was no discrimination or violation of any Constitutional rights. His reasoning, in the case that was before him, was that the applicant could have taken steps to have the property registered in her name. He relied on relevant authorities such as Lafontant v Kennedy 2000 (2) ZLR 280 (S); Nyamweda v Georgia 1988 (2) ZLR 42 (S); Menezer v McGaili 1971 (2) SA 12…,.; Young v Van Ransburg 1991 (2) ZLR 149 (SC).

SC16-19 : AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY vs FRANCIS BAURENI and 18 OTHERS
Ruled By: GARWE JA, PATEL JA and MAKONI JA

The first ground of appeal challenges the constitutionality of the provision introduced by the Labour Amendment Act No.5 of 2015 stipulating the retrospective payment of minimum retrenchment packages to employees who were dismissed on notice. At the hearing of the appeal, counsel for the appellant conceded that this ground could not be persisted with in light of ...

CC02-18 : GREATERMANS STORES (1979) PL t/a THOMAS MEIKLES STORES and MEIKLES HOSPITALITY PL vs THE MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE ATTORNEY-GENERAL
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and UCHENA JCC

This case raises for determination questions of the constitutionality of civil legislation's retrospective effect. The applicants are companies duly incorporated in terms of the laws of Zimbabwe. They made an application to the Court in terms of section 85(1)(a) of the Constitution of Zimbabwe Amendment (No.20) Act (“the Constitution”). They alleged that section 18 of the Labour Amendment ...

This case raises for determination questions of the constitutionality of civil legislation's retrospective effect.

The applicants are companies duly incorporated in terms of the laws of Zimbabwe. They made an application to the Court in terms of section 85(1)(a) of the Constitution of Zimbabwe Amendment (No.20) Act (“the Constitution”). They alleged that section 18 of the Labour Amendment Act (No.5) 2015 (“the transitional provision”), as read with section 12 of the Labour Act [Chapter 28:01] (“the Act”), is unconstitutional.

The main allegation was that the transitional provision is unconstitutional because it gives retrospective effect to a new obligation imposed on an employer who terminates a contract of employment on notice to pay the employee whose contract was terminated “the minimum retrenchment package” of not less than one month's salary or wages for every two years of service as an employee. The obligation was retrospectively imposed on all employers who terminated employees' contracts on notice on or after 17 July 2015. The applicants alleged, in the alternative, that the transitional provision violated the following of their fundamental rights: the right to equality (section 56(1)), the right to fair labour practices (section 65(1)), and the right not to be compulsorily deprived of property (section 71(3)).

The Court holds, on the main ground on which the constitutionality of the transitional provision is challenged, that there is no constitutional provision which prohibits the use by the Legislature of the method of retrospectivity to implement civil legislation. On the alternative ground of the challenge to the constitutionality of the transitional provision, the Court holds that the applicants failed to prove the alleged infringement of any of the fundamental rights they relied upon. The retrospective imposition of new financial obligations on the applicants to pay compensation to the employees whose employment they terminated on notice for loss of employment respects their rights enshrined in sections 56(1), 65(1) and 71(3) of the Constitution.

The reasons for the decision now follow.

Appealed
SC188-20 : GERALD CHIGWADA vs PENELOPE CHIGWADA and SHEPHERD KUSADA N.O. and MASTER OF THE HIGH COURT
Ruled By: MALABA CJ, GARWE JA, MAKARAU JA, GOWORA JA and BERE JA

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

The question for determination is whether the law governing the property rights of married persons, or the law of testamentary disposition of estates, binds a testator to bequeath his or her right in an estate to the husband or wife.

The Court holds as follows;

The law governing the property rights of married persons in Zimbabwe is the Married Persons Property Act [Chapter 5:12] which provides that, since 1929, marriages in Zimbabwe are out of community of property. Parties to a marriage out of community of property are legally entitled to own and dispose of property in their individual capacities.

The law of testamentary disposition in Zimbabwe recognises the doctrine of freedom of testation and does not oblige a testator to bequeath his or her property to the surviving spouse.

The law of testamentary disposition, which is based on the universal principle of equality of men and women, gives a right to a person married out of community of property to dispose of his or her estate, by will, to whomsoever he or she chooses.

Decisions of the High Court, to the effect that a testator is, in the circumstances, bound to leave his or her property to the husband or wife and declaring testamentary disposition to the contrary to be void are inconsistent with the law. They should no longer be followed.

The reasons for the decision of the Court now follow.

FACTUAL BACKGROUND

The facts are common cause. The first respondent was married to the late Aaron Chigwada (“the deceased”) in 1971 in terms of customary law. In 1975, the parties had the union solemnised in terms of the Marriage Act [Chapter 5:11]. Before marrying the first respondent, the deceased had been married to the appellant's mother. They had divorced.

The deceased had six children with his first wife, the appellant being the fifth child and the youngest son.

During the subsistence of their marriage, the first respondent and the deceased acquired a house, Stand No.28181 Harare Township of Salisbury Township Lands, also known as No.85 Vito Street (“the immovable property”). The immovable property, which became the matrimonial house, was registered in the joint names of the husband and wife. Each spouse owned half of the beneficial interest in the house.

On 20 September 2007, the deceased made a will, in terms of which he bequeathed his half share of the beneficial interest in the immovable property to his son, the appellant. He appointed the second respondent as the executor to give effect to the testamentary disposition. The deceased died on 19 July 2011.

The will surfaced after the deceased's death.

The first respondent, who is the surviving spouse, approached the High Court (the court a quo) challenging the right of the appellant to succeed to the half share of the beneficial interest in the immovable property left to him by the deceased in terms of the will.

The first respondent believed, from teachings at her church, that the surviving spouse had a right to inherit the estate of the deceased husband or wife regardless of the existence of a will disposing of the property to a person other than the surviving spouse. Motivated by the belief she held, she thought that had it been the testator's intention to bequeath the property to his child, he ought to have bequeathed it to all the children that survived him.

During the proceedings in the court a quo, the only issue that remained for determination was whether the will was valid under the Wills Act [Chapter 6:06].

The other grounds for disputing the will were abandoned.

Initially, the first respondent sought an order declaring the will void on the allegation that the deceased lacked mental capacity to execute the will. She had also alleged fraud and undue influence. The first respondent eventually settled on the allegation that the will was invalid because the disposition did not leave the testator's estate to her as the surviving spouse.

The contention addressed the question of the essential validity of the will by making the allegation that the law of testamentary disposition binds a spouse to leave his or her entire estate to the husband or wife.

THE QUESTION FOR DETERMINATION IN THE COURT A QUO

The question for determination was whether there was a law which binds a spouse desirous of disposing of his or her estate, by will, to leave the property to the surviving spouse. If the correct finding by the court a quo was that there was such a law, the disposition by the deceased of his estate by will, to the appellant, would be void on account of failure to comply with an essential requirement of validity.

The question for determination by the court a quo was not one of construction of any of the provisions of the Wills Act. The learned Judge identified what she believed to be the law binding a spouse intending to make a disposition of his or her property by will to leave the estate to the surviving spouse as section 3A of the Deceased Estates Succession Act [Chapter 6:02].

The law in question addressed matters of succession to an intestate estate and had nothing to do with the question of the right of a testator to dispose of his or her property to whomsoever he or she chooses.

The learned Judge, nonetheless, found that section 3A of the Deceased Estates Succession Act [Chapter 6:02] was the law referred to in section 5(3)(a) of the Wills Act as the “law governing the property rights of married persons”, to which the validity of the disposition of property by will is made to be subject.

In what can only be described as an unusual process of reasoning, the learned Judge concluded that section 3A of the Deceased Estates Succession Act binds a married person to dispose of his or her estate, by a will, to his wife or her husband. She held that the deceased's will was void for contravening section 3A of the Deceased Estates Succession Act because it gave effect to a disposition of his estate to a person other than the surviving spouse.

The court a quo set aside the deceased's will, leaving the estate to be disposable in terms of the law of intestate succession.

The appellant was aggrieved by the court a quo's decision, against which he appealed to the Court.

The interpretation and application of section 5(3)(a) of the Wills Act has given rise to conflicting judgments in the High Court. The conflicting decisions of the High Court, on the question whether a person married out of community of property in Zimbabwe enjoys freedom of testation or is bound to dispose of his or her estate, by will, to the surviving spouse have caused confusion and created uncertainty in the minds of members of the public as to the correct legal position.

A five-member Bench of the Court had to be constituted to answer the divisive question once and for all.

CONFLICTING DECISIONS OF THE HIGH COURT

It is prudent to set out the cases which support the two different schools of thought in order to appreciate the nature and source of the conflicting decisions rendered by different Judges of the High Court on the matter.

In Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H)…, (“the Wakapila decision”) KUDYA J had this to say:

“The argument advanced by Mr Matimba, that the surviving spouse is vested with rights in a deceased estate, in which a testamentary disposition has been made at the time of death, is fallacious for three reasons;

(i) The first is that the divested property, subject to acceptance by the beneficiary, no longer belongs to the testator.

(ii) The second being that giving such a meaning to the provision in issue would result in so radical an alteration of the common law power of a spouse to dispose of his or her property to whomsoever he or she wishes.

If the lawmaker intended such a radical departure from the common law it would have said so in clear language.

It would be absurd to allow the spouse to dispose of his or her property during his or her lifetime but take away that power from him or her to dispose of it by will.

(iii) The third, being that a wife married under customary law can only inherit from her husband's estate if he dies intestate. Where he has disposed of his estate by a will, she does not inherit and thus has no rights in any property belonging to his estate.”

In Roche v Middleton HH198-16 CHITAKUNYE J held that the Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H) decision was based on the correct interpretation and application of section 5(3)(a) of the Wills Act. The court intimated that it would be absurd to hold that a person who could dispose of his or her property without the other spouse's consent would lose the right to dispose of it by will to whomsoever he or she chooses. The court further held that if the Legislature intended such a radical departure from the common law it would have enacted express provisions to that effect.

The reasoning championed by Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H) was to be rejected in later decisions of the High Court where the position adopted was that a will which does not bequeath the matrimonial house to the surviving spouse is void.

The departure from Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H) was registered in Chimbari NO v Madzima and Ors HH325-13, where the court held that section 5(3)(a) of the Wills Act prohibits a testator from disinheriting a surviving spouse. The court, in that case, held that the provisions of section 5(3)(a) were put in place to safeguard the rights that accrue to a surviving spouse at the death of the testator.

In Chiminya v Estate Late Chiminya and Ors 2015 (1) ZLR 450 (H) (“the Chiminya decision”) the court expressed the view that the purpose of section 5(3)(a) of the Wills Act was to cure the mischief by testators who wanted to disinherit their surviving spouses. The reasoning of the court was based on the assumption that the surviving spouse has a “right of inheritance” which is protected by section 5(3)(a) of the Wills Act. The court relied on section 3A of the Deceased Estates Succession Act which it said prescribed inheritance principles regarding surviving spouses.

The court adopted the reasoning, notwithstanding the fact that section 3A of the Deceased Estates Succession Act applies where the deceased died intestate whilst section 5(3)(a) of the Wills Act addresses requirements for the validity of disposition of estates of married persons by will.

The reason given by the court, for relying on section 3A of the Deceased Estates Succession Act, was that the provision was in conformity with section 56 of the Constitution which prohibits discrimination based on marital status and promotes equality before the law.

The reasoning, with respect, is not logical, as there was an admission of the fact that section 3A of the Deceased Estates Succession Act was irrelevant to the matter under discussion. The attempt to draw similarities between the purpose of section 5(3)(a) of the Wills Act and that of section 3A of the Deceased Estates Succession Act was unnecessary.

The court had this to say at 453E-G:

“I am alive to the fact that the Deceased Estates Succession Act [Chapter 6:02] deals with intestate succession. Suffice to mention, at this stage, that I have alluded to it in so far as it is in conformity with the Constitution and insofar as it recognises the surviving spouse's right to inheritance. In the same manner, the Wills Act [Chapter 6:06] recognises the surviving spouse's rights by having provisions such as section 5(3)(a) which recognise rights of a surviving spouse and seek to protect inheritance right of a surviving spouse even where the other spouse dies testate.”

The approach adopted in Chiminya v Estate Late Chiminya and Ors 2015 (1) ZLR 450 (H) was followed in Majuru v Majuru HH404-16 where the court held that a will that disinherited a surviving spouse was in contravention of section 26 of the Constitution which recognises equality of spouses during marriage and at dissolution either through death or divorce. The court held that disinheriting a spouse was contrary to public policy and prejudiced the surviving spouse's right to inherit the deceased's estate.

This is also a judgment based on the wrong premise that section 5(1) of the Wills Act, which gives every person, possessed of the capacity to do so, a right to dispose of his or her estate by will to whomsoever he or she pleases, is not based on the principle of equality of men and women.

The reasoning in Chiminya v Estate Late Chiminya and Ors 2015 (1) ZLR 450 (H) was also adopted in Nyamnshanya and Ors v Nyamnshanya and Ors HH693-17.

The court held that a will which disinherited a surviving spouse was void for the reason that it contravened section 5(3)(a) of the Wills Act and section 3A of the Deceased Estates Succession Act. The court further held that the surviving spouse's right to inherit the deceased spouse's estate was guaranteed by the statutory provisions and that the will ran foul of the law by bequeathing the matrimonial house to a person other than the surviving spouse.

Needless to say, the decision was also based on the erroneous proposition that there is a correlation between the provisions of section 5(3(a) of the Wills Act and those of section 3A of the Deceased Estates Succession Act.

The departure from Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H) to Chiminya v Estate Late Chiminya and Ors 2015 (1) ZLR 450 (H) is predicated on the presumed applicability of section 3A of the Deceased Estates Succession Act in the interpretation of section 5(3)(a) of the Wills Act.

Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H) is to the effect that the rights of the surviving spouse, protected by section 5(3)(a) of the Wills Act, are those that the surviving spouse holds at the time that the will is executed. In other words, the rights must flow from a law which governed the rights of the deceased spouse and the surviving spouse while they were both alive. On the other hand, Chiminya v Estate Late Chiminya and Ors 2015 (1) ZLR 450 (H) holds that section 5(3)(a) of the Wills Act protects the rights that a surviving spouse holds under section 3A of the Deceased Estates Succession Act.

Chiminya v Estate Late Chiminya and Ors 2015 (1) ZLR 450 (H) suggests that the rights which flow from section 3A of the Deceased Estates Succession Act entitle a surviving spouse to inherit the matrimonial house. This is a departure from Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H).

REASONING OF THE COURT A QUO

The court a quo adopted the reasoning in Chiminya v Estate Late Chiminya and Ors 2015 (1) ZLR 450 (H). It held that the testator's will, which bequeathed his half share of the beneficial interest in the matrimonial house to the son, was invalid because it had prejudiced the surviving spouse's right to inherit the whole beneficial interest.

The court a quo stated that section 3A of the Deceased Estates Succession Act is the law governing the property rights of married persons. It held that if the deceased had died intestate, the surviving spouse would have been entitled to inherit the matrimonial house in terms of section 3A of the Deceased Estates Succession Act. The view of the court a quo was that she could not be prejudiced merely because the deceased had executed a will. The court a quo further held that the fact that section 3A of the Deceased Estates Succession Act applied to spouses who died wholly or partly intestate was indicative of the intention of the Legislature to protect surviving spouses even in situations where there was a will. The effect of the judgment was that the overriding factor was that the person affected was a surviving spouse.

The learned judge had this to say at p3 of the cyclostyled judgment:

“The fact that section 3A above includes situations where part of the estate is covered by a will as evidenced by the use of the phrase 'dies wholly or partly intestate' is an indication that the intention of the Legislature was to protect such spouses even in situations where there is a will.

Section 3A of the Deceased Estates Succession Act [Chapter 6:02] is part of the law referred to in section 5(3) of the Wills Act which would have made the plaintiff obtain 50% of the house from the testator's estate if the bequest to the first defendant had not been made by the testator in his will.

This means that the bequest of 50% of the matrimonial home to the first defendant in the will by the late Aaron Chigwada is the obstacle which is now prejudicing the plaintiff from the enjoyment of the only home she has ever known since she got married.

In my view, this is the mischief which the legislature intended to cure when it enacted section 5(3) of the Wills Act [Chapter 6:06]. The intention was to intervene in situations where surviving spouses would be rendered homeless by the wills of their deceased partners in situations where the will bequeathed the spouses' home, or part of it, to a third party as in the present situation.”…,.

The view of the court a quo cannot be the correct interpretation of the provisions of section 5(3)(a) of the Wills Act.

The effect of the approach adopted by the court a quo, in interpreting section 5(3)(a) of the Wills Act, is one which abrogates the right of testation given under section 5(1(a) of the Wills Act. The words “wholly or partly intestate” do not refer to property disposed of by a will. They refer to property not covered by a testamentary disposition.

At law, property is disposed of by a will or it is not.

RELEVANT STATUTORY PROVISIONS GOVERNING THE DISPOSITION OF DECEASED ESTATES

It is necessary to set out the statutory provisions at the centre of the divergent opinions of the High Court.

Section 5 of the Wills Act

“5 Power to make dispositions by will

(1) Subject to this Act, and any other enactment, any person who has capacity in terms of section four to make a will may, in his will -

(2) Subject to this Act, and any other enactment, a will shall not be invalid solely because the testator has disinherited or omitted to mention any parent, child, descendant or other relative or because he has not assigned any reason for such dis-inheritance or omission.

(3) No provision, disposition, or direction made by a testator in his will shall operate so as to vary or prejudice the rights of —

(a) Any person to whom the deceased was married to a share in the deceased's estate or in the spouses' joint estate in terms of any law governing the property rights of married persons.”…,.

Section 3A of the Deceased Estates Succession Act

“3A The surviving spouse of every person who, on or after the first of November 1997, dies wholly or partly intestate shall be entitled to receive from the free residue of the estate:

(a) The house or other domestic premises in which the spouses or surviving spouse, as the case may be, lived immediately before the person's death; and

(b) The household goods and effects which immediately before the person's death were used in relation to the house or domestic premises referred to in paragraph (a); where such house, premises, goods and effects form part of the deceased's estate.”

SUBMISSIONS ON APPEAL

The appellant's submissions

The submissions by counsel for the appellant were largely based on Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H) and the reasoning therein. He argued that the first respondent had not been prejudiced in relation to any of her rights in the property. His argument was that the deceased owned a half share of the beneficial interest in the house and the first respondent owned the other half. The deceased did not bequeath any part of the first respondent's half share. Realizing that he owned half of the beneficial interest in the immovable property, the deceased bequeathed the estate that belonged to him. As a result, the first respondent's property rights were not varied or prejudiced as she remained the sole owner of her half share of the beneficial interest in the matrimonial house.

Counsel for the appellant submitted that the property rights referred to in section 5(3)(a) of the Wills Act are rights which exist at the time that the will is executed. The appellant's argument was that had the deceased bequeathed the first respondent's half share of the beneficial interest in the matrimonial house the bequest would have been void on account of the operation of section 5(3)(a) unless she would have consented to the variation of her rights.

He further submitted that to give to section 5(3)(a) of the Wills Act the meaning given by the court a quo would result in a radical alteration of the common law. The argument was that if Parliament intended to make such a radical departure from the common law principle of freedom of testation it would have done so through express provisions.

The first respondent's submissions

Counsel for the first respondent submitted that the first respondent was entitled to receive the deceased's half share of the beneficial interest in the matrimonial house because she is the surviving spouse. She contended that the will that had been executed by the deceased prejudiced the surviving spouse's right to inherit his estate. She argued that the right to inherit the deceased's estate was based on section 3A of the Deceased Estates Succession Act. Her argument was predicated on two legal assumptions;

(a) The first assumption was that a surviving spouse has a right to inherit the deceased's estate.

(b) The second assumption was that the law governing property rights of married persons, referred to in section 5(3)(a) of the Wills Act, is section 3A of the Deceased Estates Succession Act.

Counsel went further and submitted that the fact that most of the challengers of wills in cases of this nature are women betrays the reality of gender issues in Zimbabwe. She argued that a decision that allowed a testator to dis-inherit the surviving spouse of the matrimonial house, whilst gender neutral on the face of it, has adverse effects on women. She further contended that due to gender inequality men are the property holders. According to counsel, the decision in favour of the appellant would lead to the perception of discrimination against women on the ground of gender.

Counsel for the first respondent submitted that the Court should take cognisance of the fact that Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H) was made in 2008 before the current Constitution came into effect.

The contention was that Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H) is inconsistent with the provisions of the Constitution which place emphasis on respect for gender equality, protection of vulnerable members of society, and promotion of family values.

Counsel further submitted that the rules of Constitutional interpretation include a presumption that Zimbabwe does not intend to abrogate its obligations under international law. The point made was that Zimbabwe is party to several international conventions that prohibit discrimination against women. To buttress the point, counsel made reference to the Convention on the Elimination of all forms of Discrimination Against Women (1979) (“CEDAW”) and General Recommendation 29, which speak of property rights of spouses. Reference was also made to Article 21 of the Protocol To The African Charter On Human and Peoples Rights On The Rights Of Women In Africa (“the Maputo Protocol”). She further submitted that, in terms of section 326 of the Constitution, the Court should adopt an interpretation that honours Zimbabwe's obligations under international law.

The first amicus curiae' s submissions

Ms Mahere argued that the court a quo erred in awarding the property in question to the first respondent contrary to the express intention of the testator. For this proposition she made reference to section 5(1)(a) of the Wills Act, which underscores the doctrine of freedom of testation. She said that the testator was at large to dispose of his property, by will, to whomsoever he chose. She quoted from De WAAL and MALAN "Law of Succession" (4ed, Juta & Co Ltd, Cape Town 2008) in which the learned authors state…, that, although strict formalities attach to the execution of a will, its contents are left to the discretion of the testator.

Ms Mahere also made reference to an article by EDRICK ROUX titled ''Freedom of Testation - Can a person disinherit a spouse?" DR, November 2013:48 [2013] DEREBUS 225. The writer states that freedom of testation goes beyond the testator distributing his or her assets to his or her surviving family members. He emphasizes that the assets can be distributed to whomsoever the testator chooses.

Ms Mahere further argued that the doctrine of freedom of testation is entrenched by section 71(2) of the Constitution, which provides that:

“(2) Subject to section 72, every person has the right, in any part of Zimbabwe, to acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of all forms of property, either individually or in association with others."…,.

She submitted that the right to private property, guaranteed under the Constitution, includes the right to decide how one's property is disposed of during one's lifetime and after death.

De WAAL and MALAN "Law of Succession" (4ed, Juta & Co Ltd, Cape Town 2008), the learned authors, postulate that the Constitutional protection of the right to freely determine how one's estate is to be distributed after death protects the principle of freedom of testation that supports it. Ms Mahere argued that the right to property enshrined in section 71(2) of the Constitution, and, by extension, the right of testation, is a fundamental right.

She further quoted from De WAAL and MALAN "Law of Succession" (4ed, Juta & Co Ltd, Cape Town 2008) where…, the learned authors say:

“Nobody has a right to inherit. Leaving someone out of a will as a beneficiary therefore does not amount to an encroachment upon or taking away of an existing right. A potential beneficiary has, at most, a so-called spes or hope.”

The contention by Ms Mahere was that a court's prerogative is not to write a will for the deceased but to give effect to the testator's intention. She submitted that section 5(3)(a) of the Wills Act places a limitation on the exercise of the right of testation. The limitation is that the testator must not vary or prejudice the property rights of the person to whom he or she is married. She submitted that the first respondent had to illustrate that a right that she held in the property had been prejudiced by the testator's disposition of his own half share of the beneficial interest in the matrimonial house.

Ms Mahere emphasised the point that the property rights that are protected from possible prejudice, flowing from a disposition by the deceased, are the rights which the surviving spouse holds at the time the will is executed and not future or contingent rights.

She argued that the marriage to the deceased did not endow the first respondent with any proprietary rights in the deceased's half share of the beneficial interest in the immovable property. The contention was that the proprietary rights the first respondent had in the immovable property accrued to her as a result of the registration of her own half share in the beneficial interest as a joint owner of the matrimonial house. The deceased continued to exercise dominion over his share of the matrimonial house. Consequently, the contention that the first respondent's rights were prejudiced by the disposition by the deceased of his own property rights, by will, was not supported by the facts.

Ms Mahere further argued that the court a quo was wrong to rely on section 3A of the Deceased Estates Succession Act. It conflated instances where one died testate with instances where one died intestate.

The contention was that what determined the applicable law was the answer to the question whether the deceased died intestate or testate. The determinant factor was not the marital status of the deceased.

Her argument was that the court a quo failed to take into account the fact that marriages in Zimbabwe are out of community of property. As a result, there has to be a clear law prohibiting testamentary disposition of a matrimonial house before a court can hold that the surviving spouse's rights or interests have been prejudiced or interfered with by a disposition by the deceased of his or her estate in the matrimonial house, by will, to a person other than the surviving spouse.

On the argument by counsel for the first respondent that women ought to be protected as vulnerable members of society, Ms Mahere made the observation that the first respondent was a property holder who owned a half share in the property in question. She owned the property in her personal capacity in terms of the law governing the property rights of married persons. Consequently, the first respondent could not be deemed to be economically disadvantaged.

The second amicus curiae's submissions

The submissions made by Mr Uriri were in support of Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H). Mr Uriri submitted that section 5(3)(a) of the Wills Act does not create proprietary rights. It relates to existing rights. These rights must be provided for in terms of a law governing the property rights of married persons. He submitted that the law governing the property rights of married persons in Zimbabwe is the Married Persons Property Act [Chapter 5:12], which provides that all marriages in Zimbabwe are out of community of property. The contention was that the import of the provision of the Married Persons Property Act is that spouses are equal partners, each with the capacity and freedom to hold and dispose of property independent of the other.

Mr Uriri argued that section 5(1)(a) of the Wills Act embodies the principle of freedom of testation. He argued that the wording of section 5(3)(a) of the Wills Act is clear and requires no interpretation. He said that, in its literal sense, section 5(3)(a) of the Wills Act proscribes prejudice to the surviving spouse's rights held in terms of the law governing the property rights of married persons.

Mr Uriri contended that the purpose of section 5(3)(a) of the Wills Act is to safeguard the respective spouses' rights acquired under the Married Persons Property Act; the object of which was to abolish the matrimonial power of the husband under the community of property legal regime.

Having chosen to be married under a specific matrimonial regime, neither party requires protection from the known legal consequences of their own choice. The known consequence of marriage out of community of property is the existence of separate and divisible estates between the spouses. The contention was that property acquired by a spouse in his or her own right belongs to that spouse. The parties jointly own property by agreement.

ANALYSIS OF THE ISSUES

The first respondent based her case on the premise that the disposition by the deceased of his half share of the beneficial interest in the matrimonial house ran foul of section 5(3)(a) of the Wills Act, in that it allegedly contravened section 3A of the Deceased Estates Succession Act which entitles the surviving spouse to inherit the matrimonial house and goods in it.

A reading of section 3A of the Deceased Estates Succession Act reveals that it is not any spouse who is entitled to inherit the matrimonial house and the chattels in it. It is the spouse of a person who died wholly or partly intestate.

The first respondent is a surviving spouse of a person who died testate. She is not eligible to the benefits of entitlements that flow from section 3A of the Deceased Estates Succession Act because there was a valid will executed by the deceased.

It should follow that where there is a valid will, section 5(3)(a) of the Wills Act cannot be said to have been contravened by the disposal of a matrimonial house and the chattels therein.

The purpose of section 5(3)(a) of the Wills Act is to provide protection for the property or estate belonging to the other spouse from being disposed of by the testator, by will, as if it is part of his or her own estate. The effect of section 5(3)(a) of the Wills Act is that, if the property belongs to the other spouse, in terms of the law governing the property rights of married persons, the execution of the will disposing of that property is a nullity.

For the first respondent to benefit from the provisions of section 5(3)(a) of the Wills Act, she had to allege, and prove, that the deceased made a will by which he sought to dispose of her property.

She, however, accepted that the half share of the beneficial interest in the immovable property the deceased disposed of, by the will, belonged to him.

She claimed a right to the immovable property on the sole ground that she was the surviving spouse.

Section 5(3)(a) of the Wills Act could not be invoked to assist her cause. Subject to the condition that a disposition of an estate by will must not have the effect of varying or prejudicing the property rights of a spouse under a law governing property rights of married persons, section 5(3)(a) of the Wills Act does not subtract from the right of testation provided for in section 5(1).

Section 5(2) is important in that it provides that a will shall not be invalid solely because the testator has disinherited or omitted to mention any relative or because he or she has not assigned any reason for such disinheritance or omission.

The subject matter of section 5 of the Wills Act, as a whole, is the provision, disposition, or direction made by a testator in his or her will. The testamentary power given to a testator under section 5(1) of the Wills Act relates to these subject matters.

The effect of section 5(3)(a) of the Wills Act is that the testator must not include in the disposition by will property belonging to the other spouse except with his or her consent. He or she must include in the disposition by will assets consisting of his or her own estate. Including in the disposition of the estate by will assets belonging to the other person to whom the testator is married, without his or her consent, would render the will void. Such a disposition by will would inevitably have the effect of varying or prejudicing the property rights of the other spouse, contrary to section 5(3)(a) of the Wills Act.

Section 5(3)(a) of the Wills Act cannot be understood to mean that a testator has no right to dispose of his or her estate to whomsoever he or she chooses. Such a view of section 5(3)(a) the Wills Act would ignore the provisions of subsection (1) of section 5, which is the root to the provisions of the other subsections. The only qualification to the right of testation, provided for in sub-section (1) by section 5(3)(a), is that the testator must ensure that the assets he or she intends to have disposed of by will to whomsoever he or she chooses belong to him or her. Section 5(3)(a) of the Wills Act is not concerned with the status of the person to whom the testator intends to have his or her estate disposed upon his or her death.

The issue is not that the person to whom the testator was married is dis-inherited. A surviving spouse can be a subject of disinheritance by a will complying with the formalities of a valid will as well as with the requirements for essential validity such as are prescribed under section 5(3)(a) of the Wills Act.

Once a will complies with all the requirements of validity, its terms and conditions determine the question of succession to the deceased's estate. Section 5(3)(a) of the Wills Act should not be read to mean that a husband or wife cannot disinherit the surviving spouse by a will. The requirements for the essential validity of the will are not to the effect that the testator must leave his or her estate to the surviving spouse.

The reference to section 3A of the Deceased Estates Succession Act in the interpretation of section 5(3)(a) of the Wills Act was an attempt at finding justification for a decision to set aside an otherwise valid will. The purpose was to imbue a surviving spouse in a testate succession with the same benefits that accrue to a surviving spouse under intestate succession. There is no legal basis for the adoption of such an approach.

The question that arises is whether section 3A of the Deceased Estates Succession Act is a law that governs the property rights of married persons referred to in section 5(3)(a) of the Wills Act.

The Deceased Estates Succession Act gives rights to surviving spouses, which accrue upon dissolution of a marriage through the death of the intestate husband or wife. The rights do not accrue during the subsistence of the marriage but after one of the spouses has died intestate. Consequently, the Deceased Estates Succession Act cannot be a law governing the property rights of married persons. It is a law that governs property rights of a surviving spouse once the other spouse has died without leaving a valid will.

Succession to an intestate estate is determined by the operation of the provisions of section 3A of the Deceased Estates Succession Act.

In that event, there would be no question of the deceased having had any influence on the manner of the disposition of his or her estate before his or her death. The deceased is taken to have had no influence on such matters as to who should succeed him or her in the estate upon dissolution of the marriage through his or her death. These matters are settled by the operation of the law at the time the need for succession to the intestate estate arises. The question of the application of section 3A of the Deceased Estates Succession Act would not arise in the circumstances at any time before the dissolution of the marriage through the death.

The law of testamentary disposition proceeds on the principle that because of freedom of testation the matter relating to succession to the deceased's estate shall be as determined by the testator in his or her will.

The only factor common to the law of intestate succession and the law of testamentary succession is that both laws apply to a situation arising from dissolution of a marriage through the death of the spouse whose estate is to be distributed.

The provisions of section 3A of the Deceased Estates Succession Act underscore the importance of having property disposed of by a will. Wills silence family disputes relating to the inheritance of the deceased spouse's estate. They embody the actual wishes of the deceased concerning the disposition of his or her property. They should not be lightly interfered with.

The law that governs the property rights of married persons referred to in section 5(3)(a) of the Wills Act is the Married Persons Property Act, which states that since 1929 marriages in Zimbabwe are out of community of property.

Spouses in a marriage out of community of property are legally entitled to own and dispose of property in their individual capacities. The import of having marriages out of community of property is that a spouse is allowed to own, in his or her personal capacity, movable and immovable property and any other rights or interests of value. If a spouse has immovable property registered in his or her name, be it the house used as the matrimonial home, he or she has the right to dispose of it, by will, to whomsoever he or she chooses. The right of a property owner to dispose of his or her estate, by will, to whomsoever he or she chooses is one of the rights constituting ownership of property.

In Marckx v Belgium 13 June 1979 Series A No.31, the European Court of Human Rights observed that “the right to dispose of one's property constitutes a traditional and fundamental aspect of the right of property.”

Such are the factual and legal implications of marriages out of community of property.

It is not correct to assert that a spouse, by virtue of a marriage, is entitled to own property that is owned, and registered, in the name of the other spouse. Marriage does not afford such rights. The case would be different if marriages in Zimbabwe were in community of property, as property would be owned as common property by virtue of the type of marriage entered into by the parties.

In Chiminya v Estate Late Chiminya and Ors 2015 (1) ZLR 450 (H) the court interpreted section 5(3)(a) of the Wills Act to mean that a surviving spouse is entitled to a share in the deceased's estate. This approach is contrary to the proper construction of the relevant provisions. Subsections (1) and (2) of section 5 of the Wills Act provide for freedom of testation and give full authority to a testator to transfer, dispose of, or bequeath his or her assets freely to whomsoever he or she chooses. Section 5(3)(a) of the Wills Act sets the parameters that a testator must follow in the exercise of his or her right of testation.

A will, as a legal document, derives its validity from compliance with the provisions of the statute prescribing the requirements of a valid will. A will which complies with all the requirements of validity cannot be set aside on the basis of extraneous matters, such as that its execution has the effect of disinheriting the surviving spouse. The law of wills imposes an obligation on all who deal with the deceased's property, including the surviving spouse, to give effect to the intention of the deceased regarding the disposition of his or her property as expressed in a valid will.

A court is bound to act in terms of the law.

It cannot set aside a valid will because it thinks that the testator ought to have bequeathed his or her property to the surviving spouse. Section 5(3)(a) of the Wills Act does not require a husband or wife to bequeath his or her property to the surviving spouse.

Different statutory provisions are enacted to deal with different, although sometimes related, subject-matters. Provisions of different statutes are never interpreted to contradict each other. It was improper, on the part of the court a quo, to use the provisions of section 3A of the Deceased Estates Succession Act regulating intestate succession to invalidate a will expressly spelling out in terms of the relevant statute how the deceased's property was to be disposed of after his death.

It is difficult to understand how the court a quo found section 3A of the Deceased Estates Succession Act to be relevant in the interpretation and application of section 5(3)(a) of the Wills Act.

The disposition of property of a spouse who dies without having written a will is not regulated by a “law governing the property rights of married persons.” Section 3A of the Deceased Estates Succession Act governs the disposition of property after dissolution of marriage of spouses through death.

The court a quo made two erroneous assumptions;

(a) The first was that there is a right of inheritance guaranteed to a spouse, married out of community of property, to inherit the other spouse's estate.

(b) The second assumption was that the surviving spouse is protected against the deceased spouse.

These assumptions appear to have influenced the decisions that follow the reasoning in Chiminya v Estate Late Chiminya and Ors 2015 (1) ZLR 450 (H).

The court a quo, and the first respondent, were unable to point at a specific provision that confers a right upon a spouse, married out of community of property, to inherit the other spouse's property. Section 5(3)(a) of the Wills Act does not confer such a right. It only refers to rights that are found elsewhere.

On the question whether one spouse is entitled to succeed to the other partner's estate after his or her death, it must be recognised that two autonomous individuals are involved in a marriage. This basic realm of freedom of both partners encompasses the right to decide what to do with one's own estate.

Counsel for the first respondent argued that, in interpreting section 5(3)(a) of the Wills Act, a court must be alive to the provisions of section 326 of the Constitution.

The section provides that customary international law is part of the law of Zimbabwe unless it is inconsistent with the Constitution or an act of Parliament and that every court must always have regard to customary international law in interpreting the law.

To this end, she argued that the court ought to adopt an interpretation of section 5(3)(a) of the Wills Act which is consistent with the principle of gender equality.

The right of every person to freely dispose of his or her property binds all Governmental institutions, including the courts, because it is a fundamental right enshrined in section 71(2) of the Constitution. The Constitution guarantees this fundamental right to every person in Zimbabwe, regardless of gender. A woman or a man, as the case may be, is guaranteed the right to equal protection of the law to dispose of his or her property in the manner he or she chooses.

The fundamental principle of equality of men and women, which forms the basis of the guarantee of property rights under section 71(2) of the Constitution, is given effect to by the provisions of section 5(1) of the Wills Act. Section 71(2) of the Constitution gives effect to similarly worded provisions of international human rights instruments.

Article 17(1) of the Universal Declaration of Human Rights (1948) (“UDHR”) declares that everyone has the right to own property alone as well as in association with others. On the basis of the universal principle of equality of men and women, a spouse has equal rights, regardless of gender or marital status, to acquire, own and dispose of his or her property.

Article 2(a) of the CEDAW requires States Parties to embody the principle of equality of men and women in their national constitutions or other appropriate legislation. States Parties are required to ensure both formal and substantive gender equality by putting in place legislative measures aimed at the elimination of gender norms and gender roles that feed cultural and traditional gender stereotypes that deny women access to property rights.

Article 16(1)(h) of the CEDAW provides that on the basis of equality of men and women States Parties must ensure "the same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment, and disposition of property, whether free of charge or for a valuable consideration.”

The right to own, manage, enjoy and freely dispose of property is central to a woman's right to enjoy financial independence.

The right is gender neutral.

Article 6 of the Maputo Protocol imposes an obligation on States Parties to ensure that women and men enjoy equal rights and are regarded as equal partners in marriage. States Parties are required, under Article 6(j), to enact appropriate national legislative measures to guarantee that “during her marriage, a woman shall have the right to acquire her own property and to administer and manage it freely.”

Zimbabwe is a party to the applicable international human rights instruments.

Ensuring, in accordance with the provisions of section 71(2) of the Constitution and section 5(1) of the Wills Act, that a person married out of community of property has, on the basis of equality of men and women, the right to dispose of the property he or she owns, by will, to whomsoever he or she chooses is consistent with the obligations imposed on the State by the relevant international human rights instruments.

The first respondent also sought to rely on section 26 of the Constitution which provides as follows:

“26 Marriage

The State must take appropriate measures to ensure that —

(a)-(b)…,.;

(c) There is equality of rights and obligations of spouses during marriage and at its dissolution; and

(d) In the event of dissolution of a marriage, whether through death or divorce, provision is made for the necessary protection of any children and spouses.”

In Majuru v Majuru HH404-16 MWAYERA J said the following:

“Further, the Constitution makes it clear that in the spirit of protection of marriages, and it is common cause, the applicant is the surviving spouse of the late Caroline Majuru. It is also not in dispute that as a surviving spouse the applicant qualifies as a beneficiary to the late Caroline Majuru's estate. Further, from evidence, it is apparent property distributed by way of will included that to which the applicant has rights. The dispossession of the applicant in the circumstances is contrary to public policy and unlawful rendering the will invalid.”

If, as found in Majuru v Majuru HH404-16, the applicant had established, as a fact, that property belonging to him had been included in the assets disposed of by will by the deceased as her estate, the disposition would have been void in light of the provisions of section 5(3) of the Wills Act. In that case, the learned Judge reached a correct conclusion on wrong reasons.

In terms of section 5(1) of the Wills Act, one can only dispose of what one has acquired and owns as his or her property.

The decisions of the High Court that followed a different line of reasoning from Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H) have had the effect of denying persons married out of community of property the enjoyment of the right to dispose of their property by will as long as they do not dispose of the property to the surviving spouse. The erroneous view of the law of testamentary succession, as applied to a surviving spouse in the event of dissolution of a marriage through death, is founded on the belief that section 26(d) of the Constitution prohibits dis-inheritance of a spouse by the deceased.

A reading of section 26(d) of the Constitution, in its proper context, reveals that it is not a legislative provision for direct enforcement by the courts. It does not confer rights on individuals. It is found in Chapter 2 of the Constitution in which national objectives are set out. In that context, section 26(d) of the Constitution contains an important objective intended to guide the State in the formulation and implementation of laws relating to the specific area of dissolution of marriage through death.

The Constitution identifies the protection of a surviving spouse, in the event of dissolution of a marriage through death, as a legitimate objective which the State must secure by appropriate measures it must take. By those appropriate measures the State must ensure that provision is made for the necessary protection of surviving spouses regardless of gender. Section 26(d) of the Constitution imposes a constitutional duty on the State to take appropriate measures for the provision of the necessary protection of surviving spouses in the event of dissolution of a marriage through death.

The State must take the appropriate measures to provide for the necessary protection of a surviving spouse in the event of dissolution of a marriage through death by the exercise of the constitutional power created for the purpose. This is a power, the proper exercise of which would ensure that the measures adopted are appropriate in the sense of being reasonable in the circumstances of dissolution of a marriage through death and are proportional to the objective of providing necessary protection to a surviving spouse.

The appropriate measures adopted by the State, to provide the necessary protection of the surviving spouse in the event of dissolution of a marriage through death, must constitute objective standards applicable to surviving spouses in similar circumstances.

Appropriate measures for the provision of the necessary protection of a surviving spouse must, for example, take into account the fact of dissolution of a marriage through death of an intestate spouse or a testator. Measures taken by the State for providing the necessary protection of a surviving spouse in the event of dissolution of a marriage through death of an intestate spouse would be different from those for the necessary protection of a surviving spouse in the event of dissolution of a marriage through the death of a testator.

The rights and obligations arising from the law of succession in the event of dissolution of a marriage through death of a testator would be taken into account by the State in the formulation of appropriate measures for the provision of the necessary protection of a surviving spouse in the circumstances of testamentary succession.

The purpose of the appropriate measures taken by the State in the circumstances, in terms of section 26(d) of the Constitution, would not be the reversal of the exercise by the deceased of the right to dispose of his or her estate by will to whomsoever he or she chooses. The intended purpose and effect of the measures taken by the State would be the provision of the necessary protection of the surviving spouse from the negative effects on his or her interests of the testamentary disposition without undermining its validity.

The use of the words “appropriate measures” and “necessary protection” in section 26(d) of the Constitution prescribes a standard that the organ of the State, under the constitutional obligation to take the necessary measures, has to meet. In the absence of appropriate measures taken by the organ of the State with the power to do so under the Constitution, a court may not apply the provisions of section 26(d) of the Constitution as if it contained the appropriate measures for the provision of the necessary protection of a surviving spouse in the event of dissolution of a marriage through death.

The question for determination by the court a quo was not what the obligations of the State were and whether the State had fulfilled them. The determination of the question would have necessitated the interpretation and application of section 26(d) of the Constitution. The question for determination was whether the deceased had made a valid will. The provisions of section 26(d) of the Constitution do not prohibit a spouse from disposing of his or her property by will to a person other than the surviving spouse.

The provisions of section 26(d) of the Constitution had no bearing on the determination of the question before the court a quo. There was no need to have regard to the provisions of section 26(d) of the Constitution in interpreting the provisions of section 5(3)(a) of the Wills Act.

The legal position is that a spouse in a marriage out of community of property has no right to inherit the other spouse's property until he or she has, by will, disposed of the property to him or her.

Where a spouse dies without leaving a will, the right to inherit the free residue of the estate devolves to the surviving spouse in terms of legislation.

Section 3A of the Deceased Estates Succession Act provides for the succession of the surviving spouse to the free residue of the estate of the spouse married out of community of property who died intestate. Section 26(d) of the Constitution was given effect to by the State in enacting the provisions of section 3A of the Deceased Estates Succession Act. The Deceased Estates Family Maintenance Act [Chapter 6:03] is another example of a statute enacted by the State in the performance of the duty imposed on it under section 26(d) of the Constitution.

Article 21 of the Maputo Protocol, on the right to inheritance, imposes on Zimbabwe an obligation, the performance of which would manifest in the fulfilment by the State of the Constitutional duty imposed under section 26(d) of the Constitution. The Article provides:

“Right to Inheritance

1. A widow shall have the right to an equitable share in the inheritance of the property of her husband. A widow shall have the right to continue to live in the matrimonial house. In case of remarriage, she shall retain this right if the house belongs to her or she has inherited it.”

Article 21(1) of the Maputo Protocol is, of course, concerned with the rights of the widow in the event of dissolution of a marriage through death of the husband. It does not concern itself with the right to inheritance of the widower.

What is important for the purposes of the fulfilment of the Constitutional duties by the State, which is based on the principle of gender equality, is that the first part of Article 21(1) of the Maputo Protocol has been partly implemented by Zimbabwe through the enactment of section 3A of the Deceased Estates Succession Act.

The second part of Article 21(1) of the Maputo Protocol is based on the principle that the appropriate measures taken by the State, for the provision of the necessary protection of a surviving spouse in the event of dissolution of a marriage through death, must respect and protect the rights and obligations arising from the testamentary disposition of the deceased's estate.

The provision for the widow remaining in occupation of the matrimonial house in which she lived with her husband immediately before his death, until she remarries, must take into account the fact that the widow may not be the owner of the matrimonial house. It must also take into account the fact that the deceased may, of right, have left a will by which he disposed of his estate, including the matrimonial house, to a person other than the widow.

It is clear that Article 21(1) of the Maputo Protocol recognises the fact that the State may have to respect the principle of freedom of testation with its consequential negative effects on the interests of the widow which they may ameliorate through the provision to her of the right to occupy the matrimonial house until she remarries notwithstanding the testamentary disposition disinheriting her of the house. The right to succeed to the deceased's estate remains vested in the legatee or heir who then takes dominion when the widow dies or remarries.

The only difference between the measures Article 21(1) of the Maputo Protocol requires States Parties to take and those required to be taken by the State under section 26(d) of the Constitution is that the latter measures would apply to both widows and widowers.

Of importance, for the purposes of the determination of the questions raised by the appeal, is the application of the fundamental principle that the exercise by the deceased of the right to dispose of his or her estate, by will, to whomsoever he or she pleases must be respected.

The argument by the first respondent's counsel was that women, as a vulnerable group, must be protected and that inheriting property that belongs to their husbands is one way through which such protection can be given.

The first respondent is a property owner who holds real rights in immovable property and may not be deemed to be in the class of economically vulnerable people. In any event, a case can be made to the effect that the best way to protect members of economically vulnerable groups in society is to endow them with the power to dispose of their hard-earned assets in the way they please regardless of gender or marital status.

DISPOSITION

To deny a person married out of community of property the right to dispose of his or her property, by will, to whomsoever he or she chooses is to erode the foundation on which the doctrine of freedom of testation lies.

The decisions of the High Court, based on the proposition that a person married out of community of property may not dispose of his or her estate by will to whomsoever he or she chooses, being allegedly bound to leave the property to the surviving spouse, are inconsistent with the fundamental right in section 71(2) of the Constitution and section 5(1) of the Wills Act [Chapter 6:06].

In the result, it is ordered that -

“1. The appeal succeeds with costs.

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

'(i) The plaintiff's claim be and is hereby dismissed with costs.'”

SSC113-00 : IN RE: PATRICK ANTHONY CHINAMASA vs X
Ruled By: GUBBAY CJ, McNALLY JA, EBRAHIM JA, MUCHECHETERE JA and SANDURA JA

I. INTRODUCTIONIn August 1999, three nationals of the United States of America, Gary George Blanchard, Joseph Wendell Pettijohn, and John Lamonte Dixon, were jointly indicted with the commission of two offences:(i) The first was a contravention of section 7(1)(a) of the Aircraft (Offences) Act [Chapter 9:01], as read with section ...

I. INTRODUCTION

In August 1999, three nationals of the United States of America, Gary George Blanchard, Joseph Wendell Pettijohn, and John Lamonte Dixon, were jointly indicted with the commission of two offences:

(i) The first was a contravention of section 7(1)(a) of the Aircraft (Offences) Act [Chapter 9:01], as read with section 360(1) of the Criminal Procedure and Evidence Act [Chapter 9:07], in that on 7 March 1999 they had attempted to place aboard an aircraft dangerous goods, namely, various revolvers, pistols, rifles, knives, and ammunition.

(ii) The second was a contravention of section 37(2) of the Law and Order (Maintenance) Act [Chapter 11:07], in that on the same day they were in unlawful possession of arms of war and offensive materials, consisting of a variety of pistols, revolvers, rifles, firearms, ammunition, knives, teargas, and electric shock devices.

The trial, which was protracted, was presided over by ADAM J and assessors, in the High Court, at Harare. Judgment was delivered on 10 September 1999. The three accused were convicted on both Counts. On 13 September 1999, the learned judge sentenced them to six months' imprisonment with labour on the first Count; and, on the second, to twenty-one months' imprisonment with labour, of which period nine months were conditionally suspended for five years, and six months were to run concurrently with the sentence imposed on Count One.

The effective punishment of six months' imprisonment with labour was then back-dated to 7 March 1999, being the day when the incarceration of the accused as remand prisoners began.

The judgment, on both conviction and sentence, is now reported, sub. nom. S v Blanchard & Ors, in 1999 (2) ZLR 168 (H).

On 15 September 1999, a statement, made by the applicant, then the Attorney-General for Zimbabwe, and presently the Minister of Justice, Legal and Parliamentary Affairs, was published in The Herald newspaper under the headings: “US gunmen's sentence causes outrage, Attorney-General's office expresses shock at court's trivialisation of offence.”

The article that followed reported that:

“The Attorney-General's Office is shocked and outraged by the effective six month jail term imposed on the three Americans convicted for illegal possession of weapons and attempting to take them on board an aircraft. It intends to appeal to the Supreme Court against the sentence which it said had trivialised the seriousness of the crime. In a statement yesterday, the Attorney-General, Mr Patrick Chinamasa, said the sentence handed down by High Court Judge, Justice Adam, 'induces a sense of shock and outrage in the minds of all right-thinking people.'

He said Gary George Blanchard, Joseph Wendell Pettijohn, and John Lamonte Dixon were convicted of offences which were treated as serious by all civilised countries worldwide, including America, which was in the forefront of fighting terrorism and gun-running.

'By imposing sentences which do not match the seriousness of the offences, Justice Adam has in effect trivialised crimes of unlawful possession of arms and has seriously erred in doing so.

The Attorney-General's Office is left bemused by the meaninglessness of it all.

The nation should know and be told that the leniency of the sentences constitutes a betrayal of all civilised and acceptable notions of justice and of Zimbabwe's sovereign interests.

Mere unlawful transiting of firearms through the territory of Zimbabwe is in itself a serious and gross violation of the sovereign and security interests of Zimbabwe.'

Mr Chinamasa said the attitude taken by the court, in meting out sentences which did not match the severity of the crimes committed, came against the backdrop of repeated complaints made to him by his Law Officers of hostility and verbal abuse directed at them and their submissions by the Bench during proceedings. All these developments erode the office's confidence in the administration of criminal justice.”

Reaction to the article led to the issuance of a citation for contempt of court. It was served on the applicant on 28 September 1999. In its amended form the citation reads:

“TAKE NOTICE THAT on the 28th day of September 1999 The Honourable Mr Justice Adam caused a citation to be issued against you whereby YOU ARE TO APPEAR in person before the High Court of Zimbabwe in Harare on the 1st day of October 1999 at 10:00am or soon thereafter to show cause why an Order of Contempt should not be made for the wilful and intentional contemptuous statement issued by you, which statement you caused to be published or alternatively was published in the issue of the 15th September 1999 of THE HERALD, as appears more fully from the attached copy entitled 'US gunmen's sentences causes outrage'.”

II. THE PROCEDURE ADOPTED BY THE HIGH COURT

The hearing of the proceedings initiated by the citation was assigned to BLACKIE J. He immediately appointed a legal practitioner in private practice to appear as amicus curiae to present the complaint against the applicant.

On 1 October 1999, the learned judge held a pre-hearing conference at which the parties agreed to a time-frame for the filing of a Defence Outline by the applicant and written heads of argument by both him and the amicus curiae. The matter was then postponed for a week.

At the commencement of the proceedings, on 8 October 1999, the amicus curiae particularised the passages in the reported words of the applicant which were considered to contain the contempt alleged against him. These were:

(a) The statement that the sentence handed down “induces a sense of shock and outrage in the minds of all right-thinking people.”

(b) The statement that: “By imposing sentences which do not match the seriousness of the offences, Justice Adam has, in effect, trivialised crimes of unlawful possession of arms and has seriously erred in doing so. The Attorney-General's Office is left bemused by the meaninglessness of it all. The nation should know and be told that the leniency of the sentences constitutes a betrayal of all civilised and acceptable notions of justice and of Zimbabwe's sovereign interests.'”;

(c) The statement that: “All these developments erode the office's confidence in the administration of criminal justice.”

Thereafter, counsel for the applicant, acting in terms of section 24(2) of the Constitution of Zimbabwe, requested the court to refer to the Supreme Court for determination a number of questions in respect of which it was contended that the proceedings were in contravention of the Declaration of Rights.

The questions, subsequently re-drafted and re-presented to the Court, were these:

“1. Whether the High Court and/or counsel appearing amicus curiae, can, before the High Court, present allegations of contempt of court in the light of the provisions of section 76 and section 18(2) of the Constitution.

2. Whether the choice and assignment to deal with this matter, by the Judge who passed the sentence which was commented upon in the alleged contemptuous statement of the presiding judge, and the selection of counsel to appear amicus curiae by the assigned judge, violates the Attorney-General's right to appear before an independent and impartial court established by law as provided in section 18 of the Constitution.

3. Whether the order issued by the High Court, on 1 October 1999, which order was issued in the presence of the Attorney-General, and, in respect of which the Attorney-General, when invited, elected to make no submissions:

(a) Violates the Attorney-General's right not to be compelled to give evidence as provided for in section 18(8) of the Constitution, given that he was ordered to file a Defence Outline;

(b) Violates the Attorney-General's right to be given adequate time to prepare his defence as provided for in section 18(3) of the Constitution, in circumstances where the Attorney-General, at no stage, applied for or requested an extension of time, nor did he, at any time, object to the time limits set out in the said order, and, in circumstances where the Attorney-General requested a postponement to 6 October 1999 and then 8 October 1999, to enable him to travel to Zambia on Government business, both requests being granted;

(c) Violates the Attorney-General's rights to examine witnesses as provided for in section 18(3)(e) of the Constitution, in circumstances where he was ordered to file argument relating to the facts and the law before the hearing.

4. Whether the procedure in terms of which the Registrar can issue a court application, which is not supported by any affidavit as to facts, as is provided in Order 43 Rule 389, violates the Attorney-General's right to a fair trial as is provided for in section 18 of the Constitution.

5. Whether the citation issued on 28 September 1999, which calls upon the Attorney-General to show cause why an order of contempt should not be made, violates the presumption of innocence of the Attorney General and unfairly places the onus to prove innocence on the Attorney-General in contravention of section 18 of the Constitution.

6. Whether the contempt proceedings, as particularised, violate the Attorney-General's freedom of expression, that is to say, his right to hold opinions and to express such opinions without interference as is provided for in section 20 of the Constitution.”

After reserving his decision on the questions raised, BLACKIE J ruled that it had not been shown to his satisfaction that question 1 concerned a breach of the Declaration of Rights; and that questions 3 and 4 were frivolous and vexatious within the meaning attributed to the phrase in Martin v Attorney-General & Anor 1993 (1) ZLR 153 (S)…,.

He therefore declined to refer these three questions. His Lordship's detailed reasons for so concluding are to be found at 297B-298A and 299E-300D of the judgment, which is reported in 1999 (2) ZLR 291 (H).

However, the request to refer questions 2 and 6 (as modified in the judgment), as well as question 5, was acceded to.

Added thereto was the further question of whether a person charged with contempt of court falls under the protections provided to a person charged with a criminal offence under section 18 of the Constitution.

The learned judge recast the questions in the following manner:

“1. Whether a charge of contempt of court is a charge of a criminal offence entitling the person charged to the protections afforded by the provisions of section 18 of the Constitution.

2. If the answer to question 1 is in the affirmative:

(a) Whether the procedure whereby a person charged with contempt of court is tried by the court which complains about the contempt violates the right of a person, in terms of section 18 of the Constitution, to be tried by an independent and impartial tribunal.

(b) Whether the citation issued on 28 September 1999, which called upon the accused person to show cause why an order of contempt should not be made against him, violates the presumption of innocence on the part of an accused person in contravention of section 18 of the Constitution.

3. Whether the law of contempt of court, as contained in the common law of Zimbabwe, is such as cannot be shown 'to be reasonably justifiable in a democratic society', and, therefore, is incompatible with the provisions of section 20 of the Constitution.”...,.

IV. WHETHER THE LAW OF CONTEMPT OF COURT, UNDER THE COMMON LAW OF ZIMBABWE, IS SUCH AS CANNOT BE SHOWN “TO BE REASONABLY JUSTIFIABLE IN A DEMOCRATIC SOCIETY” AND, THEREFORE, IS INCOMPATIBLE WITH THE PROVISIONS OF SECTION 20 OF THE CONSTITUTION

It is convenient, at the outset, to consider what I regard as the main question. In doing so, a preliminary matter must be made clear.

In the context of the applicant's statements, the reference in the question to the law of contempt must be taken to mean that species of the common law of contempt which has been given the colourful nomenclature of “scandalising the court”; and not any of the other different ways in which the offence may be committed.

A consideration of the following issues is, I believe, essential to the resolution of the question posed:

(1) Does the form of contempt known as scandalizing the court continue to exist as an offence under the common law of Zimbabwe?

There are two modes of conduct which fall within the scope of criminal contempt:

(i) First, there is contempt in facie curiae, which encompasses any word spoken or act done within the precinct of the court that obstructs or interferes with the due administration of justice, or is calculated to do so.

(ii) Secondly, the offence may be committed ex facie curiae by words spoken or published or acts done which are intended to interfere with, or are likely to interfere with, the fair administration of justice.

An example of this type of contempt is that described as “scandalising the court”. It is committed by the publication, either in writing or verbally, of words calculated to bring a court, a judge of a court, or the administration of justice through the courts generally, into contempt. It need not be an attack directed at any specific case, either past or pending, or at any specific judge. It is sufficient if it is a scurrilous attack on the judiciary as a whole, calculated to undermine the authority of the courts and endanger public confidence, thereby obstructing and interfering with the administration of justice: see Chokolingo v Attorney General of Trinidad and Tobago [1981] 1 All ER 244 (PC)…, LORD DIPLOCK.

See also, BORRIE & LOWE's Law of Contempt 2ed…,; SNYMAN, Criminal Law 3ed…,; MILTON, South African Criminal Law and Procedure 3ed, Vol II…,.

At one stage, in England, the continued existence of this branch of contempt law was called into doubt by LORD MORRIS in McLeod v St. Aubyn 1899 AC 549. After pointing out that committals for contempt are ordinarily in cases where:

(i) Some contempt has been committed in the face of the court; and (ii) comments have been made on cases pending in the courts, LORD MORRIS dealt with a third form of contempt. Of this, he said…,:

“Committals for contempt of Court, by scandalising the Court itself, have become obsolete in this country. Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them.”

The observation proved to be premature.

Nine months later, an application was made, in R v Gray [1900] 2 QB 36, to the Queens Bench Division to commit the editor of a Birmingham newspaper for writing and publishing a scurrilous personal attack on MR JUSTICE DARLING. It described him as an “impudent little man in horse-hair - a microcosm of conceit and empty-headedness”, adding: “No newspaper can exist except upon its merits, a condition from which the Bench, happily for MR JUSTICE DARLING, is exempt…,. MR JUSTICE DARLING would do well to master the duties of his own profession before undertaking the regulation of another.”

The article did not deal with pending litigation; it was about the conduct of a judge in a case in which a conviction had been recorded and sentence passed.

After defining the offence, LORD RUSSELL OF KILLOWEN CJ went on to say…,:

“That description of that class of contempt is to be taken subject to one and an important qualification. Judges and Courts are alike open to criticism, and, if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no Court could or would treat that as contempt of Court. The law ought not to be astute in such cases to criticise adversely what under such circumstances and with such an object is published; but, it is to be remembered that in this matter the liberty of the press is no greater and no less than the liberty of every subject of the Queen.

Now, as I have said, no one has suggested that this is not a contempt of Court, and nobody has suggested, or could suggest, that it falls within the right of public criticism in the sense I have described.

It is not criticism, I repeat that, it is personal scurrilous abuse of a judge as a judge.”

Although LORD RUSSELL did not mention McLeod v St. Aubyn 1899 AC 549, it was referred to by the reporter of R v Gray [1900] 2 QB 36 in a footnote at the end of the judgment. In the course of his note, the reporter accurately summed up the effect of R v Gray [1900] 2 QB 36 as follows:

“The present case is reported as showing that in this country the Court will still, where the circumstances demand its action, exercise its jurisdiction to punish, on summary process, the contempt of 'scandalising the Court', although no contempt has been committed ex facie of the Court, or in respect of a case pending.”

At the present time, prosecutions in England, for scandalising the court, have once again become a rarity. However, there can be little doubt as to the continued application of this branch of the law of contempt.

LORD HAILSHAM OF ST. MARYLEBONE made this clear in Badry v Director of Public Prosecutions of Mauritius [1982] 3 All ER 973 (PC)…, in stating:

“(Whilst) nothing really encourages courts or Attorneys-General to prosecute cases of this kind in all but the most serious examples, or courts to take notice of any but the most intolerable instances, nothing has happened in the intervening eighty years to invalidate the analysis by the first LORD RUSSELL OF KILLOWEN CJ in R v Gray.”

Yet, in Secretary of State for Defence & Anor v Guardian Newspapers Ltd [1984] 3 All ER 601 (HL)…, LORD DIPLOCK ventured the opinion that contempt for publishing material that scandalises the court was “virtually obsolescent.”

It is well established that this form of contempt continues to exist in other jurisdictions:

The principle enunciated in R v Gray [1900] 2 QB 36 was adopted by the Supreme Court of Canada in In re: Duncan (1958) 11 DLR (2d) 616 (SC)…,; see also R v Kopyto (1988) 47 DLR (4th) 213 (Ont. CA)…,.

In New Zealand, reservations expressed by some judges were dispelled by the Court of Appeal in Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 (CA)…,.

In Australia, a number of prosecutions illustrate that this species of contempt continues to be recognised: see R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 (HC); though the scope for its use seems more limited following Attorney General for New South Wales v Mundey [1972] 2 NSWLR 887.

Under Hong Kong law, scandalising contempt is accepted as an offence: see Wong Yeung Ng v Secretary for Justice [1999] 2 HKLRD 293 (CA)…,.

This is not the law in the United States of America.

In Bridges v State of California 314 US 252 (1941) all the members of the Supreme Court were agreed that there is no such offence in the United States…,. JUSTICE FRANKFURTER referred to the scandalizing of the court as an offence as “English foolishness.” He considered criticism of the courts, no matter how un-restrained, made after a decision has been rendered, to be an exercise of the right of free discussion and free speech.

Nearer to home, in South Africa, the authority to punish scandalisation contempt, summarily or otherwise, was given in 1874 by the Cape Supreme Court in In re: Neethling (1874) 5 Buch 133. Three years later, KOTZE CJ in In re: Phelan (1877) Kotze 5…, explained the nature of this form of contempt thus:

“No principle of law is better established than this: that any publications or words which tend, or are calculated, to bring the administration of justice into contempt, amount to contempt of court. Now, nothing can have a greater tendency to bring the administration of justice into contempt than to say, or suggest, in a public newspaper, that the Judge of the High Court of this territory, instead of being guided by principle and his conscience, has been guilty of personal favouritism, and allowed himself to be influenced by personal and corrupt motives, in judicially deciding a matter in open court.”

Anything spoken or written imputing corrupt or dishonest motives or conduct to a judicial officer, in the discharge of official duties, or reflecting in an improper or scandalous manner on the administration of justice, has been held to fall within the ambit of this species of contempt: see R v Torch Printing & Publishing Co. (Pty) Ltd & Ors 1956 (1) SA 815 (C)…,; S v Oliver 1964 (3) SA 660 (N)…,; S v Tobias 1966 (1) SA 656 (N)…,.

In S v Van Niekerk 1972 (3) SA 711 (A) it was held that this type of contempt is even committed by exhorting the judiciary to embark on a course of action which is in clear conflict with its duties, for example, by asking that it refuse to give credit to a certain class of evidence irrespective of its intrinsic merit…,.

The issue of whether scandalising the court is an offence in Zimbabwe has not been addressed directly by the courts.

Nonetheless, the general case law on the law of contempt in this country, the weight of the authorities referred to, and the principles they enunciate, satisfy me that a refusal to recognise scandalizing as a species of the offence of contempt of court is not warranted.

Indeed, counsel for the applicant did not seek to argue the contrary.

Consequently, it is unnecessary that the conduct complained of does not relate to pending legal proceedings.

Having said that, it is plain that the line between scandalising comment and fair and legitimate criticism is not always easy to draw. As a general rule, as alluded to by OGILVIE THOMPSON CJ in S v Van Niekerk 1972 (3) SA 711 (A)…,:

“Genuine criticism, even though it be somewhat emphatically or unhappily expressed, should, in my opinion…, preferably be regarded as an exercise of the right of free speech rather than as 'scandalous comment' falling within the ambit of the crime of contempt of court.”

Much the same thought, though in slightly stronger language, was expressed earlier by LORD DENNING MR in R v Metropolitan Police Commissioner, Ex parte Blackburn (No.2) [1968] 2 All ER 319 (CA)…,:

“Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not.

All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms.”

In the same case, SALMON LJ stated the position even more succinctly at 321A-B:

“…, no criticism of a judgment, however vigorous, can amount to contempt of court, provided it keeps within the limits of reasonable courtesy and good faith.”

It should not be overlooked that some legal writers, and a few judges, have been vehement in their criticism of the recognition of scandalising the court as an offence. They argue that the basic assumption embodied in the offence of scandalizing the court, namely, that public confidence in the administration of justice would be undermined by comments that tend to lower the authority of the court, is highly speculative. They contend that an intelligent and sophisticated public should evaluate the merits of the comments rather than the judiciary which, in effect, acts as both prosecutor and judge. They take the position that the courts, like other public institutions, should be open to lively and constructive criticism and do not need, and should not have, specific rules for their protection: see, for instance, BORRIE & LOWE's Law of Contempt 2ed…,; WALKER, Scandalising in the Eighties (1985) 101 LQR 359…,.

In the Australian case of Attorney General for New South Wales v Mundey [1972] 2 NSWLR 887.., HOPE JA said:

“There is no more reason why the acts of courts should not be trenchantly criticised than the acts of public institutions, including Parliaments. The truth is, of course, that public institutions, in a free society, must stand upon their own merits: they cannot be propped up if their conduct does not command respect and confidence of a community; if their conduct justifies the respect and confidence of a community they do not need the protection of special rules to shield them from criticism.”

Despite the strong objection levelled at scandalising contempt, I reiterate that it remains an offence according to the common law of Zimbabwe.

Whether the statements of the applicant fall within or outside the limits of reasonable courtesy; whether they represented the expression of a genuinely held belief; and whether, emanating as they did from the country's Chief Law Officer, being a person of high standing in the community, they were intended or likely to bring MR JUSTICE ADAM into disrepute, as reflecting upon his capacity as a judge, and to shake public confidence in the manner in which justice had been administered by the High Court in the case in question, are issues of fact, the resolution of which is of no relevance to these proceedings.

The advent of the Constitution makes it necessary for this Court to review the offence of scandalising the court in order to ensure that it meets the requisite Constitutional standards.

The statements of the applicant touched on a matter of public interest – the high profile and much publicised trial of the three Americans and the punishment meted out to them.

They concerned the functioning and operations of a public institution.

It is necessary, therefore, to consider whether they attract the protection of section 20(1) of the Constitution.

(2) Are the words of the applicant protected by the freedom of expression provision set out in section 20(1) of the constitution?

Section 20(1) of the Constitution protects the freedom of expression in the following terms:

“Except with his own consent, or by way of parental discipline, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence.”

This Court has held that the provision is to be given a benevolent and purposive interpretation.

It has repeatedly declared the vital and fundamental importance of freedom of expression to the Zimbabwean democracy - one of the most recent judgments being that in United Parties v Minister of Justice, Legal and Parliamentary Affairs & Ors 1997 (2) ZLR 254 (S)…,: 1998 (2) BCLR 224 (ZS)…,.

What has been emphasised is that freedom of expression has four broad special objectives to serve. The most significant, in the present context, is the second, namely, “it assists in the discovery of the truth.”

The search for truth rationale has been articulated in terms of the famous “marketplace of ideas” concept. This holds that truth will emerge out of the competition of ideas.

In his classic dissent in Abrams v United States 250 US 616 (1919) at 630, the redoubtable JUSTICE HOLMES said that:

“…, when men have realised that time has upset many fighting faiths, they may come to believe, even more than they believe the very foundations of their own conduct, that the ultimate good desired is better reached by free trade in ideas; that the best test of truth is the power of the thought to get itself accepted in the competition of the market; and that truth is the only ground upon which their wishes safely can be carried out.”

It is indeed difficult to imagine a more crucial protection to a democratic society than that of freedom of expression.

Without the freedom to express, interchange, and communicate new ideas and advance critical opinions about public affairs or the functioning of public institutions, a democracy cannot survive.

The use of colourful, forceful, and even disrespectful language may be necessary to capture the attention, interest, and concerns of the public to the need to rectify the situation protested against or prevent its recurrence. People should not have to worry about the manner in which they impart their ideas and information. They must not be stifled in making such exchanges.

The point is well made in the majority judgment of the European Court of Human Rights in Handyside v UK (1979-80) 1 EHRR 737 at 754…, that freedom of expression is applicable: “…, not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock, or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance, and broad-mindedness without which there is no democratic society.”

See also Garrison v State of Louisana 379 US 64 (1964)…, per JUSTICE BRENNAN.

A similar observation was made recently in Chavanduka & Anor v Minister of Home Affairs & Anor (2000) 8 BHRC 390 (ZS), where, after citing a dictum of MR JUSTICE HOLMES in US v Schwimmer 279 US 644 (1929)…, this Court said…,:

“Mere content, no matter how offensive (save where the expression is communicated in a physically violent form), cannot be determinative of whether a statement qualifies for the constitutional protection afforded to freedom of expression.”

With particular regard to criticisms levelled at the courts, I can find no more eloquent and pertinent expose than that of CORY JA in R v Kopyto (1988) 47 DLR (4th) 213 (Ont. CA)…,:

“The courts play an important role in any democratic society. They are the forum not only for the resolution of disputes between citizens but also for the resolution of disputes between the citizen and the State in all its manifestations.

The more complex society becomes the greater is the resultant frustration imposed on citizens by that complexity and the more important becomes the function of the courts.

As a result of their importance, the courts are bound to be the subject of comment and criticism. Not all will be sweetly reasoned. An unsuccessful litigant may well make comments, after the decision is rendered, that are not felicitously worded. Some criticism may be well founded, some suggestions for change worth adopting. But, the courts are not fragile flowers that will wither in the hot heat of controversy. Rules of evidence, methods of procedure, and means of review and appeal exist that go far to establishing a fair and equitable rule of law.

The courts have functioned well and effectively in difficult times. They are well-regarded in the community because they merit respect. They need not fear criticism nor need they seek to sustain unnecessary barriers to complaints about their operations or decisions.”

I am thus firmly of the view that statements made on a matter of public interest, even if intemperately or offensively worded, or in fact false, so long as they are not obscene or criminally defamatory, come within the protection of section 20(1) of the Constitution.

Undoubtedly, the comments of the applicant come within the parameters of that protection.

It remains to be determined whether the common law offence of contempt by scandalising the court is a constitutionally permissible restriction on the protection afforded the applicant's statements.

(3) Is the limitation which the common law offence of scandalising the court imposes on the right of freedom of expression saved by section 20(2)(b)(iii) of the Constitution?

Section 20(2)(b)(iii) of the Constitution, in relevant part, reads:

“Nothing contained in…, any law shall be held to be in contravention of subsection (1) to the extent that the law in question makes provision –

…,.

(b) For the purpose of –

…,.

(iii) Maintaining the authority and independence of the courts…, except so far as that provision…, is shown not to be reasonably justifiable in a democratic society.”

The underlined portions of the subsection give rise to three specific questions:

(a) Is the limitation upon freedom of expression contained in any law?

The term “law” is defined in section 113(1) of the Constitution to include “any unwritten law in force in Zimbabwe, including African customary law.”

The common law in force in Zimbabwe falls within the definition.

And, as I have endeavoured to show, the common law of scandalizing the court does limit the freedom of expression.

(b) Is the limitation upon freedom of expression employed for the purpose of maintaining the authority and independence of the courts?

Unquestionably, the offence of scandalising the court exists, in principle, to protect the administration of justice. It is thus a permissible derogation from the freedom of expression.

(c) Has the offence of scandalising the court been shown to be reasonably justifiable in a democratic society?

This is the crucial inquiry.

From a procedural aspect, the burden of proof is on the challenger to establish that the impugned law goes further than is reasonably justifiable in a democratic society; and not, as is common with the Constitutions of other countries, upon the State to show that it does not: see Zimbabwe Township Developers (Pvt) Ltd v Lou's Shoes (Pvt) Ltd 1983 (2) ZLR 376 (S)…, 1984 (2) SA 778 (ZS)…,.

In Nyambirai v National Social Security Authority & Anor 1995 (2) ZLR 1 (S)…, 1995 (9) BCLR 1221 (ZS)…, and Retrofit (Pvt) Ltd v Posts and Telecommunications Corporation & Anor 1995 (2) ZLR 199 (S)…, 1995 (9) BCLR 1262 (ZS)…, this Court, following Canadian jurisprudence, set out the three criteria to be looked to in determining whether or not the limitation is permissible in the sense of not being shown to be arbitrary or excessive.

To be answered are whether –

(i) The objective which the limitation in the law is designed to promote is sufficiently important to warrant overriding a fundamental right;

(ii) The measures designed to meet the objective are rationally connected with it and are not arbitrary, unfair, or based on irrational considerations;

(iii) The means used to impair the right or freedom are no more than is necessary to accomplish the objective.

In Ahnee & Ors v Director of Public Prosecutions [1999] 2 WLR 1305 (PC), an appeal from the Supreme Court of Mauritius, the question arose as to whether the offence of scandalising the court had been shown, by the appellants, not to be reasonably justifiable in a democratic society (section 12(2) of the Constitution of Mauritius).

Holding that it had not, LORD STEYN, in delivering the opinion of their Lordships, offered two main reasons for that view. He said…,:

“In England, such proceedings are rare and none has been successfully brought for more than sixty years. But, it is permissible to take into account that on a small island, such as Mauritius, the administration of justice is more vulnerable than in the United Kingdom. The need for the offence of scandalising the court on a small island is greater: see FELDMAN, Civil Liberties and Human Rights in England and Wales (1993) pp746-747; BARENDT, Freedom of Speech (1985) pp218-219.

Moreover, it must be borne in mind that the offence is narrowly defined. It does not extend to comment on the conduct of a judge unrelated to his performance on the Bench. It exists solely to protect the administration of justice rather than the feelings of judges. There must be a real risk of undermining public confidence in the administration of justice.

The field of application of the offence is also narrowed by the need, in a democratic society, for public scrutiny of the conduct of judges, and for the right of citizens to comment on matters of public concern.

There is available to a defendant a defence based on the 'right of criticising, in good faith, in private or public, the public act done in the seat of justice'…,.

The classic illustration of such an offence is the imputation of improper motives to a judge…,.

Given the narrow scope of the offence of scandalising the court, their Lordships are satisfied that the constitutional criterion that it must be necessary in a democratic society is, in principle, made out. The contrary argument is rejected.”

With regard to the first reason, I must respectfully disagree with the sweeping observation that in small islands the need to retain the offence of scandalising the court is greater than in the United Kingdom because the administration of justice is more vulnerable. By alluding to “small islands”, I assume that the learned LORD OF APPEAL, in ordinary, was including comparatively small jurisdictions.

In supporting the proposition by reference to academic writings it may well be that the Board wished to be spared the embarrassment of citing LORD MORRIS's racist comment in McLeod v St. Aubyn 1899 AC 549…, that:

“In small colonies, consisting principally of coloured populations, the enforcement, in proper courts, of committal for contempt of Court for attacks on the Court may be absolutely necessary to preserve, in such a community, the dignity of and respect for the Court;”

Yet, like LORD ATKIN, in Ambard v Attorney-General for Trinidad and Tobago…, believed it necessary to pronounce, somewhat condescendingly, a modern non-racist justification of McLeod to small countries.

Whether the administration of justice in Mauritius was correctly perceived to be more vulnerable than in the United Kingdom appears to me to be a contentious proposition. But, one thing is certain; the same epithet does not fit the situation in Zimbabwe.

I am confident that our courts are strong enough to withstand criticism after a case has been decided no matter how scurrilous that criticism may be.

Communication with a fair proportion of the population is easily achieved. Court proceedings are widely publicised in the media. Most, if not all, judges are known by name. Trust in the legal system and the authority of the courts are matters of importance to the ordinary citizen. The courts are looked upon as the ultimate refuge from injustice.

The second reason, that the narrow scope of the offence of scandalising the court makes its retention “necessary” in a democratic society, is much more persuasive.

Criticism which imputes improper or corrupt motives or conduct to those taking part in the administration of justice, which “excites misgivings as to the integrity, propriety, and impartiality brought to the exercise of the judicial office”, does create a real or substantial risk of impairing public confidence in the administration of justice.

Unlike other public figures, judges have no other proper forum in which to reply to criticisms. They cannot debate the issue in public without jeopardizing their impartiality. This is why protection should be given to judges when it is not given to other important members of society such as politicians, administrators, and public servants.

The other case to which reference must be made is that of R v Kopyto (1988) 47 DLR (4th) 213 (Ont. CA) where, save for unanimity in the setting aside of the conviction, the Ontario Court of Appeal was split three ways. CORY JA and GOODMAN JA were of the view that in order to accord with the fundamental freedoms in the Canadian Charter of Rights and Freedoms, the contempt must be shown to involve a real, substantial, and present or immediate danger to the administration of justice. Their view that such a contempt could not be committed unless it interferes with the fair trial of present or pending proceedings, was influenced by American jurisprudence and its test of “clear and present danger” to the administration of justice.

HOULDEN JA went even further. He was of the opinion that no offence of scandalising the court, however framed, would be consistent with the Charter; therefore, there could be no such contempt.

DUBIN JA (with whom BROOKE JA concurred), on the other hand, considered the offence to be a necessary exemption, provided that the statement complained of is calculated to bring the administration of justice into disrepute; and it is shown that there is a “serious risk that the administration of justice would be interfered with.” Rejecting the approach of the majority, he said…,:

“In other words, as I understand it, if the words complained of are stated in court, while the judge is still sitting in court, my colleagues would hold the offence to be constitutional, but, if the words were stated after the judge had delivered his judgment and withdrawn from the courtroom, and the statement was made to the press or to the public, in his absence, the offence becomes unconstitutional.

The result of the majority ruling is that in this jurisdiction there is, at present, no limit on what is permissible with respect to comments made which are intended to interfere seriously with the administration of justice and the rule of law unless the comment is made in the face of the court, or would interfere with the fair trial of pending proceedings.

With respect, I see no basis for such a distinction.”

The learned JUDGE OF APPEAL then pointed out that the distinction had been rejected by RICHMOND P in Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 (CA)…, where LORD DIPLOCK's analysis in Attorney-General v Times Newspaper Ltd [1973] 3 All ER 54 (HL)…, was cited with approval.

In dismissing the relevance of the American jurisprudence, DUBIN JA…, approved of another passage of the judgment in Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 (CA)…, namely:

“The American courts appear to have directed their attention to the existence of a clear and present danger of a court being influenced, intimidated, impeded, embarrassed, or obstructed in the administration of justice.

English Law, on the other hand, has also attached great importance to the need to preserve public confidence in the administration of justice generally. This court should not depart from that attitude subject, of course, in the type of contempt now under consideration, to the public right of fair comment and criticism, and to the possible defence of justification earlier referred to in this judgment.”

Turning to the merits of the appeal, DUBIN JA was satisfied that the conviction could not stand as the requisite elements of the offence had not been made out.

In my respectful view, the minority judgment is impressive.

The serious risk test, preferred to the one adopted in American case law in which the administration of justice must be imperiled immediately, conforms with that applied in this country: see S v Hartmann & Anor 1983 (2) ZLR 186 (S)…, 1984 (1) SA 305 (ZS)…,; Banana v Attorney-General 1998 (1) ZLR 309 (S)…, 1999 (1) BCLR 27 (ZS)…,.

Furthermore, the danger in adopting the American approach is that it is predicated upon the conception that scandalising contempt is to “preserve the dignity of the Bench.”

This is wrong.

The recognition given to this form of contempt is not to protect the tender and hurt feelings of the judge or to grant him any additional protection against defamation other than that available to any person by way of a civil action for damages. Rather, it is to protect public confidence in the administration of justice, without which the standard of conduct of all those who may have business before the courts is likely to be weakened, if not destroyed.

I pass now to the application of the three criteria, but would repeat that the onus is upon the applicant of showing that the law of contempt by scandalising the court is not a limitation that is reasonably justifiable in a democratic society.

(i) First, the primary objective of the impugned law of scandalising the court must relate to concerns which are pressing and substantial and of sufficient importance to override the constitutionally protected freedom: see Chavanduka & Anor v Minister of Home Affairs & Anor (2000) 8 BHRC 390 (ZS)…,.

The objective of the law of contempt is well captured in the following passage in BORRIE & LOWE's Law of Contempt 2ed…,:

“The necessity for this branch of contempt lies in the idea that, without well regulated laws, a civilised community cannot survive. It is therefore thought important to maintain the respect and dignity of the court and its officers, whose task it is to uphold and enforce the law, because without such respect, public faith in the administration of justice would be undermined and the law itself would fall into disrepute.”

The same sentiment was neatly put by RICHMOND P in Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 (CA)…, in these words:

“The justification for this branch of the law of contempt is that it is contrary to the public interest that public confidence in the administration of justice should be undermined.”

I do not therefore consider that this objective, which the limitation in the law is designed to promote, can be said not to be of sufficient importance to warrant overriding the fundamental right of freedom of expression.

(ii) It was conceded by counsel for the applicant, and correctly so in my opinion, that the second criterion is satisfied, in that the measures designed to meet the objective are rationally connected to it.

(iii) With regard to the third criterion which the applicant must meet, two points must be made:

(a) First, as emphasised in Ahnee & Ors v Director of Public Prosecutions [1999] 2 WLR 1305 (PC), the offence of scandalizing the court does not extend to hostile criticism on the behaviour of a judicial officer unrelated to his performance on the Bench. Any personal attack upon him, unconnected with the office he holds, must be dealt with under the laws of defamation: see McLeod v St. Aubyn 1899 AC 549 …,; R v Fuleza 1951 (1) SA 519 (A)…,; R v Robberts 1959 (4) SA 554 (A)…,. The offence is narrowly defined.

(b) Secondly, prompt action to preserve the authority of the court and the due carrying out of its function, which are subject to being undermined by scandalising contempt, is required.

The institution of criminal proceedings, at the instance of the Attorney-General, with all the attendant delays, would be too dilatory and too inconvenient to offer a satisfactory remedy. Once a matter has been referred to the Attorney-General, it is removed from the court's control, and the Attorney General might well be reluctant to prosecute. Moreover, criminal defamation is concerned with personal reputations. And, in any event, it would not be applicable to an attack upon an unspecified group of judges or upon the court system in general.

In sum, the applicant has failed to meet the criteria laid down. He has not shown that the limitation placed on the right to freedom of expression for the purpose of maintaining the authority and independence of the courts is not one that is reasonably justifiable in a democratic society.

HH477-16 : RICHARD SEAGER vs ALESTER ZIYANGA
Ruled By: DUBE J

The applicant applies for an anti-dissipation order to restrain the respondent from removing and disposing of joint venture farm equipment owned by a partnership pending his claim.

The circumstances surrounding this application are as follows:

The applicant was the owner of UNA Farm, Wedza. The farm was subsequently offered to the respondent under the Land Reform Programme and the allocation is subject of disagreement between the parties.

The parties entered into a joint venture agreement in terms of which they would engage in farming activities.

The applicant was, in terms of the agreement, to supply farming equipment - including the farm. The respondent was responsible for the financial aspects of the joint venture as well as supervision of the growing of crops. The parties were to share profits and losses.

The applicant avers that the respondent has failed and refused to pay him his share of profits. The applicant also avers that the joint venture has bought a number of farming equipment which he lays a claim to.

On 23 June 2016, the applicant caused a summons to be issued under HC6415/16 claiming his share of the partnership profits. The applicant's protest is based on the averment that the respondent has started to remove agricultural equipment and other assets purchased from proceeds of the joint venture from the farm. The applicant has the apprehension that the respondent intends to defeat the object of his claim by removing assets from the farm so that there will be no evidence of the assets when he finally obtains judgment.

The applicant seeks an order barring the respondent from removing the joint venture equipment from the farm pending the finalisation of the summons action. The applicant avers that he has no other remedy to stop the respondent from removing and disposing of the agricultural equipment.

The respondent is opposed to the application.

He challenges the urgency of the matter as well as the propriety of this application.

The applicant's pleadings disclose what is called an anti-dissipation interdict. This type of interdict has its origins under English Law where it is known as the Mareva injunction. The interdict is named after the famous case of Mareva Compania Naviera SA v International Bulkcarriers SA (1980) 1 All ER 213 (CA). The case involved an application to restrain removal and disposal of monies owed out of the court's jurisdiction. The court held that where a creditor is owed a debt, and has led evidence to show that there is a danger that a debtor may dispose or conceal assets so as to escape execution, the court may grant an interdict to prevent disposal of the assets.

In the Civil Practice of the High Courts of SA, 5th ed, HERBSTEIN and Van WINSEN define this type of interdict as follows:

“A special type of interdict which may be ground where a respondent is believed to be deliberately arranging his affairs in such a way as to ensure that by the time the applicant is in a position to exercise judgment he will be without assets or sufficient assets on which the applicant expects to execute.”

The authors state that the purpose of the interdict is to preserve assets from dissipation pending final execution against the defendant and hence serves to ensure that an applicant will not be left with a hollow judgment. The authors also state that the requirements of this interdict are the same as for any other interdict.

This form of interdict was debated in Knox D Aray Ltd and Ors v Jamieson 1995 (2) SA 579 (W) 1996 (4) SA 348 (A).

The court accepted that the injunction is of a sui generis type. There was extensive debate regarding the nature and requirements of the interdict. What is important about the discussion is the acceptance that this type of interdict is not the usual interdict where a party seeks to preserve an asset which is subject of the issue between the parties. The Appeal Court accepted that this sort of interdict could be sought where a litigant sought to preserve assets which were not in issue between the parties. The court was unable to find a name appropriate for this interdict under the Roman Dutch Law. The court seemed to want to come up with a name for the interdict different from that used under English Law but was unable to find agree on an appropriate term to be used under Roman Dutch Law. STEGMANN J called it an anti-dissipation interdict. He also proposed the term interdict securitatem debiti, a term by which the interdict is widely known in South Africa.

In Odar Housing Development Consortium v Sensene Investments (Pvt) Ltd & Ors HH709-15 and Mine Minerals Trading (Pvt) Ltd v NRZ Resources Ltd SC40-14 our courts discussed this interdict.

What the authorities reveal is that an anti-dissipation interdict is granted in circumstances where a respondent has been shown to be disposing or concealing property so that by the time that judgment is obtained against him, he has no assets on which the other party may be able to execute, thereby defeating the applicant's claim.

It restrains an owner, or holder, of property from disposing of the property in a particular fashion.

It is in the nature of a prohibitory interdict and has the same requirements as those of an ordinary interdict.

A party seeking to bar another from dissipating property does not have to show that the property is connected with the subject of the applicant's claim for loss suffered. All a litigant has to show is that the applicant has instituted a claim against the respondent. Further, that the respondent is in the process of disposing or concealing all or some of the property concerned. It must be apparent from the pleadings that the applicant has a real apprehension, that, by the time he is in a position to exercise his judgment, he will be without assets or sufficient assets on which he expects to execute.

The application of anti-dissipation interdicts has been criticised.

In Investec Employee Benefits Ltd and Anor v Electrical Industry Kwazulu–Natal Pension Fund and Ors 2010 (1) SA 446 (W), the court expressed reservations over this type of interdict. The court was concerned about the approach that a person may be able to stop disposal of property simply because he has a judgment he wishes to be satisfied in the future.

There is no doubt that the interdict restricts the manner in which a person may want to deal with his property simply because someone has a claim laid against him.

The effect is a violation of one's constitutional right to property. The interdict remains part of our law.

HH37-16 : GEORGINA NJODZI vs LORRAINE MATIONE
Ruled By: MWAYERA J

This matter concerns the status of adultery damages in Zimbabwe in the 21st century. The main issue is whether or not the common law delictual claim for adultery damages is constitutional or unconstitutional.

The plaintiff is married to Lawrence Muzvondiwa in terms of the Marriages Act [Chapter 5:11].

From about 2012, it is alleged, that, the defendant engaged in adulterous relations with the plaintiff's husband. The adulterous relationship culminated in siring a child for the adulterous couple. The plaintiff, irked by this adulterous relationship, issued summons claiming adultery damages for a total of $25,000 broken down as follows;

(a) Contumelia: $15,000.

(b) Loss of consortium: $10,000.

The parties referred the matter for trial on the contentious issues. At the hearing of the trial, the defendant made an application on the constitutionality, or otherwise, of the plaintiff's claim.

It is this constitutional application that I am now seized with and seek to dispose of.

The thrust of the defendant's argument, as presented in heads of argument and orally, can be briefly summed up as follows:

(i) The applicant (defendant) argued, that, it is improper to sue the defendant to the exclusion of the plaintiff's spouse yet he is the main architect of the relationship. This is viewed by the applicant as discriminatory and therefore contrary to the constitutional provisions of equality before the law.

(ii) Secondly, the applicant argued that the claim amounted to infringement into privacy of the applicant's sexual life thus violating not only the right to privacy, but, also, the right to freedom of association.

The applicant argued, that, the claim by the plaintiff has no legal standing as it is archaic and unconstitutional.

The respondent (plaintiff), on the other hand, presented argument, in Heads of Arguments and orally, to the effect, that, the claim was well founded in terms of common law and was also supported by the Constitution. The Constitution, being the supreme law of the country, recognises the marriage institution. Thus, adultery, as argued by the respondent, is a threat to the very existence of the marriage institution which the Constitution of Zimbabwe seeks to protect. As such, the claim for adultery damages by the plaintiff was properly before the court.

I must mention at the outset, that, the applicant placed heavy reliance on foreign judgements to persuade the court to align to the notion that adultery damages are not only archaic but unconstitutional.

I will, in due course, revert to some of the cases referred to as persuasive authority.

At this juncture, it is important to look at the delictual claim of adultery and the mischief that the law seeks to protect by the remedies available.

It is settled, that, adultery is an injury occasioned to the innocent spouse because of the adulterous relationship. The spouse can recover damages for loss of a spouse's consortium as well as any patrimonial loss suffered and also personal injury or contumelia suffered by the innocent spouse, inclusive of loss of comfort, society, and services.

In the case of Timothy Chinyadza v Melton Phiri HH76-09, KUDYA J…, defined contumelia as follows:

“Contumelia is equated to the injury, hurt, insult, and indignity inflicted upon a plaintiff by adultery committed by a defendant with his or her spouse.”

One does not require a magnifying glass to scrutinize and come up with a conclusion that contumelia, that is injury, hurt, insult, and indignity occurs, to an innocent spouse where the other commits adultery. The injury is so obvious that there would be no justification in not seeking legal redress for the wrongful hurt occasioned.

The Supreme Court of South Africa decision in the case of RH and DE (C594/2013) (2014) ZA SCA 133 confirmed that the award for contumelia was rightly made even though there was a finding that the adultery was committed at a time when the marriage had already irretrievably broken down.

What is worth noting is that once there is evidence of injury, hurt, insult, and indignity having been occasioned on an innocent party because of the adulterous relationship, then, the innocent spouse is entitled to damages for contumelia.

Once contumelia is established, then, the next issue would be whether or not there is loss of consortium, that is, loss of comfort and society.

The basis of such a claim being the defilement and corruption of the innocent spouse's matrimonial bed.

It is my considered view, that, adultery damages, whether classified as falling under contumelia, or, on the other hand, consortium, are delictual damages arising from a delictual wrong occasioned to an innocent married party. To this extent, the distinction is fallacious.

It is important to understand the basis of such a delictual claim in the context of a marriage institution.

A marriage is defined as a sui generis contract entered into by two willing parties (see NCUBE, Family Law in Zimbabwe 1987). The sanctity of this anomalous contract is what an adultery damages claim seeks to protect.

The claim should not be viewed in isolation, but, from the view point of its purpose, being to protect the sanctity of marriage.

If it is for this purpose, then, the argument that it is improper to sue one party to the adulterous relationship does not hold water. This is because given the nature of a marriage, it would amount to suing oneself.

Whereas, in suing the third party, the claimant will be seeking a personal remedy for hurt, injury, iniquity of company and comfort occasioned by the third party's association with the married party.

The historic background to adultery claims should not be ignored upon considering whether or not the delict no longer has space in our legal system.

I am alive to the position taken by the Supreme Court of South Africa in the case of RH and DE (C594/2013) (2014) ZA SCA 133, wherein, in relation to the award for consortium, it held that the award was not justified, and further concluded that its continued existence was no longer justified.

The court, in RH and DE (C594/2013) (2014) ZA SCA 133, considered the question for determination to be: what are the consequences of adultery, and, thus, only sought to highlight the quantum of damages.

The court considered the South African constitutional values and also sought to rely on other foreign judgements. It then held, that, the award for contumelia had been rightly made but that the award for consortium was not justified. It held, further, that, the delict's continued existence in the South African context was no longer justified.

The circumstances of that case are that adultery was committed after irretrievable breakdown had occurred. Also, the court relied on decisions from other jurisdictions like Rose v Valentine (1999) SCSC 8; 1999 SLR 99 the Supreme Court of Seychelles, quoting Cosgrow v Cosgrow SCA 12/1992 (New Zealand) that;

“The evolution of law within commonwealth jurisdiction over the last decade or so demonstrates that there is no longer any turpitude attached to adultery.”

The South African Supreme Court was persuaded by that position and also sought to evaluate the socio-economic and legal framework for the South African jurisdiction. As correctly observed in HV Fetal Assessment Centre (2014) ZACC 34; 2015 (2) SA 193 CC;

“In considering the position in other jurisdictions, sight should not be lost of whether similar legal questions would have arisen, and the context in which they would have arisen, so as to come up with an informed decision of the applicability or otherwise of the decision.”

The central question is: in the Zimbabwean context, are these foreign decisions applicable?

In other words, one has to consider whether the reasoning adopted in South Africa, Seychelles, Canada, and New Zealand is possible and applicable in light of the Zimbabwean Constitution's normative framework and our social context.

From case law, it is settled in our jurisdiction, that, in coming up with adultery damages the following factors have to be considered;

1. The social and economic status of the plaintiff and the defendant.

2. The character of the spouse involved.

3. Whether or not the defendant has shown contrition.

4. The need for deterring measures against the adulterer.

5. The level of award in similar cases.

See Khumalo v Mandishona 1996 (1) ZLR 434; Nyakudya v Washaya 2000 (1) ZLR 65 C; Chenesai Rateiwa v Tsistsi Venge HH152-11.

Of course, the circumstances of each case come under scrutiny as the court makes the decision.

The reason behind adultery damages being the protection of the sanctity of the marriage institution.

In Katsimbe v Buyanga 1999 (1) ZLR 256 H…, ROBINSON J affirmed the purpose of adultery damages as the protection of the marriage institution when he remarked as follows:

“Before addressing myself to the quantum of damages to be awarded to the plaintiff, I wish to say, that, in my view, where a third party is shown to have intruded, sexually, upon a marriage and to have contributed to the breach of duty of marital fidelity which each spouse owes the other, by committing adultery with one spouse, the courts, in the absence of mitigating circumstances, should be seen, in their award of damages, to come down hard on the adulterer or adulteress as opposed to treating him or her with kid gloves for a variety of expedient reasons.”

Precedents in the Zimbabwean jurisdiction reveals that adultery damages are underpinned on the preservation of the sanctity of marriage.

The Matrimonial Causes Act [Chapter 5:13] provide sanction issues of divorce and distribution or apportionment of property. Divorce is granted in circumstances where it would have been shown that the marriage has irretrievably broken down.

Adultery is still a recognised ground of divorce, and, as such, it is still part of our law.

Section 5(1) and 2(b) of the Matrimonial Causes Act reads as follows:

“(1) An appropriate court may grant a decree of divorce on the grounds of irretrievable break down of the marriage if it is satisfied that the marriage relationship between the parties has broken down to such an extent that there is no reasonable prospect of restoration of a normal marriage relationship between them.

(2) Subject to subsection (i) and without prejudice to any other facts or circumstances which may show the irretrievable break-down of a marriage, an appropriate court may have regard to the fact that -

(a)…,.

(b) The defendant has committed adultery…,. which the plaintiff regards as incompatible with the continuation of a normal marriage relationship.”

Since adultery is considered as a ground for divorce, then, it would be a contradiction to consider the delictual claim for adultery damages as irrelevant.

The Maintenance Act [Chapter 5:09] also seeks to taint adultery. Section 10 of the Maintenance Act, on adultery, reads:

“Where a spouse is proved to have committed adultery before or after making an order and such adultery has not been condoned, the Maintenance Court may refuse to make an order for maintenance in favour of such spouse or may discharge an order for maintenance made in favour of such spouse.”

Thus, clearly, for all intents and purposes, the legislature, as it currently stands, condemns adultery.

As will later be shown when we look closely at the relevant constitutional provisions adultery damages are still relevant in our societal and legal context.

Worth noting is the fact that superior courts, inclusive of the High Court, have inherent jurisdiction to protect and regulate their own process and develop common law in so far as the interests of justice are maintained: see section 176 of the Constitution.

In the case of Zimnat Insurance Company Limited v Chawanda 1990 (2) ZLR 143 GUBBAY ACJ…, stated that;

“…, law in a developing country cannot afford to remain static…, it must adapt itself to fluid economic and social norms as and values and to altering views of justice.”

In making that pronouncement, he did not seek to usurp the legislature's function of making the law. Rather, he buttressed the need to develop the common law taking into account the societal interests which are the interests of justice.

This observation I make is made clear when one considers the facts of Zimnat Insurance Company Limited v Chawanda 1990 (2) ZLR 143.

The court in that case had to answer the question whether a wife married under an unregistered customary union has a right of support and thus a right to compensation for loss of support.

The court had to do away with discrimination between a customary law marriage and a civil marriage. The court had to protect the interests of widows who are married under customary law by developing customary law to allow widows of customary law marriages to have a claim against third parties for the wrongful death of their spouse.

My understanding of the reasoning in Zimnat Insurance Company Limited v Chawanda 1990 (2) ZLR 143 is that the court, in the interests of justice, can develop common law, but, that this does not amount to usurping the legislature's function of making law.

The same sentiments were echoed by KENTRIDGE AJ…, in Du Plessis and Others v De Klerk and Another (1966) ZACC 10 1996 (3) SA 850 quoting R v Salituro (1992) 8 CRR 2nd 173 when he remarked that:

“Judges can, and should, adapt the common law to reflect the changing, social, moral, and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundation has long since disappeared. Nonetheless, there are significant constraints on the power of the judiciary to change the law…,. In a constitutional democracy such as ours, it is the legislature, and not the courts, which has the major responsibility for law reform…,. The judiciary should confine itself to these incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society.”…,.

Clearly, courts have a duty to develop the common law whenever it is warranted and in conformity with the interests of justice.

Having made the observation that adultery is still part of our law, from precedents, and legislative provisions, it is important to turn to the Constitutional provisions which show that adultery claims are very much in sync with the present day social and legal reality in Zimbabwe.

Public policy is now infused with Constitutional values and norms.

It is apparent public policy often represents the legal convictions of the community. It reflects those values that are held dearly by a society.

To that extent, therefore, in deciding whether a delictual claim of adultery damages is constitutional or otherwise, while appreciating and respecting foreign jurisdictions' decisions, the decision should be contextualised to reflect the legal convictions and societal values.

Section 2(1) of the Constitution of Zimbabwe is relevant and speaks volumes in respect of societal values. It reads:

“This Constitution is the supreme law of Zimbabwe and any law, practice, custom or contract inconsistent with it is invalid to the extent of the inconsistency. The obligation imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative, and judicial institutions, and agencies of Government at every level, and must be fulfilled by them.”

Section 3 of the same Constitution, which is the supreme law of the country, outlines the values and principles on which the Constitution is founded.

A reading of the whole section clearly reveals that the Constitution recognizes and accepts that the Zimbabwean moral fabric is engraved in the country's culture, religion, and traditional values.

Any development of the common law, therefore, ought to be underpinned on the interests of justice, and, of course, in conformity with the Constitution.

The institution of marriage is entrenched deeply in the country's culture, tradition, and religion and its protection has been, in un-ambiguous language, propagated by the courts: see Katsumbe v Buyanga 1991 (2) ZLR 256 and Mapuranga v Mungate 1997 (1) ZLR 64.

In both cases, the courts frowned on the wrongfulness of adultery in so far as it is a threat to the marriage institution.

MALABA J…, in Mapuranga v Mungate 1997 (1) ZLR 64 held:

“Adultery is still prohibited by public opinion as an act of sexual incontinence.”

Given the people-driven Constitution process which took place in Zimbabwe, that observation by MALABA J…, still holds true as confirmed by protection of the marriage institution in the Constitution of Zimbabwe Amendment (No 20) Act 2013.

Section 78 thereof recognizes the marriage institution.

This gives a public complexion to the marriage institution. The nation of Zimbabwe has a duty to protect the marriage institution, and, obviously, third parties encroaching into a marriage are also part of the nation.

This takes me to the purpose of adultery damages, being protection of the marriage institution.

My reading of RH and DE (C594/2013) (2014) ZA SCA 133 reveals, to a great extent, the court proceeded on the premise that the import of the delict is to restore a marriage or to prop it up.

In my view, and with all due respect, this is not the consideration.

This marks a point of departure.

The point which must be made is that the import of the delict, in the interest of protection of the marriage institution, is also of Constitutional interest or national interest given the values under which our Constitution is underpinned.

Adultery damages are to compensate the innocent party to a marriage for their loss of consortium and contumelia. When an award for damages for adultery is made, the innocent party is not precluded from suing for divorce or condoning the wrong by the other spouse and forging ahead with the marriage.

It is accepted marriage and family are social institutions of vital importance. They have more than personal significance, as shown by the constitutional protection of the morally underpinned relationship. The Constitution would not seek to protect the marriage institution if the duty for the sustenance of the institution was wholly for the parties, at least in the Zimbabwean context, given the importance placed by society on the marriage institution.

The argument, that, the delict brings about indignity on the third party and that it infringes on the rights of the third party cannot be sustained when from the perspective of its invasion of the marriage institution.

The marriage institution is protected by the society and the nation in the Constitution.

In circumstances where a third party is prepared to violate the marriage institution, they cannot be seen to complain of their dignity being impaired when they would have violated the very institution they vowed to protect through the constitutional values.

The invasion of a marriage by a third party, in the Zimbabwean context, is an attack on the dignity of the innocent party. The dignity of the adulterer ought not to be more important than that of an innocent party to a marriage.

The dignity and right to privacy of all citizens is not absolute as the Constitution, in section 86, is instructive on limitation of fundamental human rights and freedom. Section 86(1) and (2) is instructive. It reads:

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

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

(a) The nature of right or freedom concerned;

(b) The purpose of the limitation, in particular, whether it is necessary in the interest of…, public morality…,or the general public interest.”

It is made abundantly clear that rights, as given by the Constitution, have to be responsibly enjoyed. Everyone has the duty to respect the fundamental human rights and freedoms as entrenched in the Constitution.

In casu, the defendant has rights to dignity, privacy, and equality before the law, which are the same rights the plaintiff has. What remains is the balancing act on whether there is an intrusion on the other's rights which would require the delictual sanction.

To argue, that, dealing with an adultery damages claim trial, would infringe on privacy of the defendant as issues of intimacy would be delved into, amounts to barring prosecution of all matters of a sexual nature.

One needs not go further by giving examples of cases of rape which necessarily involve divulging of intimate details of how the sexual violation would have occurred. Even divorce matters, parties seek to prove irretrievable breakdown by divulging lack of sexual intimacy for specified periods.

Adultery entails intrusion into an innocent spouse's intimate relationship without the innocent's spouse's consent. Certainly, that does not mean the intruding party's rights supersede the rights of the innocent spouse.

The investigation into the alleged adultery is to assess if indeed the intrusion is genuine, and, if so, to assess the quantum of damages so as to compensate the wronged innocent spouse.

There is nothing unconstitutional, in my view, in carrying out the investigative part, moreso when one considers the purpose of adultery damages.

The potential infringement of dignity and privacy should not be viewed in isolation of the rights of the innocent spouse in a marriage.

Section 56 of the Constitution is to the effect, that, all persons are equal before the law and have equal protection and benefit of the law.

My reading of that section does not reveal that wrongful conduct is sanctioned by the law.

The Constitution clearly affords protection to all regardless of their social status.

It is not only a fallacy, but also unrealistic, to impute that a claim for adultery damages by an innocent spouse discriminates on the basis of marital status. This is for the obvious reason that adultery damages claims are not only targeted against unmarried persons. The claim is against a third party, married or not married, who is alleged to have intruded into the marriage institution at the expense of the innocent spouse.

The action for adultery damages is, as a matter of fact, not limited to unmarried third parties only.

From the above discussions, it is apparent that the defendant has not managed to prove that the claim for adultery damages offends against the Zimbabwean Constitution.

What is clear is that other jurisdictions have, in part or fully, done away with the delict or tort of adultery.

Whereas, it is important to take note and appreciate what is going on in other jurisdictions, it is of paramount importance to apply the principle in the context of our nation as a constitutional democracy.

Public policy, as reflected in our Constitution, depicts our values as a nation.

The protection of the family and marriage institutions is encapsulated in the Constitution.

It is my considered view, that, society, which was involved in the Constitution-making process, still views adultery negatively. The divorce law in Zimbabwe is based on the irretrievable breakdown principle. Adultery is one of the considerations under section 6 of the Matrimonial Causes Act.

Whereas the innocent party cannot sue their spouse for adultery for the obvious reason they (underlying the marriage relationship) also have an option to divorce or condone and move on: the fundamental question is - what should happen to the third party who would have intruded?

It is the law which ought to retain a legal outlet to the aggrieved spouse. The Zimbabwean Constitution, and subservient law, still permit redress by claims for adultery damages. The damages are meant to compensate for the occasioned contumelia and loss of consortium.

Adultery is still a consideration in our law for divorce, and, as such, given our Constitutional provisions on the rights, freedoms, protection of the marriage and family institution, one cannot just, in the abstract, from foreign jurisdictions with different societal values, declare an otherwise legitimate claim illegitimate.

The remarks and sentiments by Hon. ROBINSON J in Katsumbe v Buyanga 1991 (2) ZLR 256 still hold true today. I subscribe to the same sentiments where he remarked;

“Hopefully, we have not reached the stage where we have to be told adultery is not something to be eschewed and condemned. Accordingly, unless they are prepared to take a strong and principled stand in this regard in support of the vital institution of marriage, the court will only be party to society's further slide down the slippery slope to the unlicensed promiscuity which scoffs at the spiritual prohibitions against premarital and extra marital sex and which has landed the world in the sexual moral over which monsters, AIDS, now presides in all its frightening aspects.”

See also the case of Elizabeth Tanyanyiwa v Lindiwe Huchu HH668-14.

I wish to add my voice, that, it must be remembered that marriage and family remains the basic structure of our society, the preservation of which squarely lies on the couple and the nation as per our Constitution.

The third party, who, with knowledge, intrudes into the marriage institution, ought to compensate the innocent spouse for the injury occasioned.

It goes without saying, adultery is almost always debilitating for the victimised spouse who suffers indignity and hurt because of the adultery. The importance of the marriage and family social institutions cannot be underplayed, moreso given that the relationship is not only significant to the individuals concerned but also for the public at large.

In my view, marriage is a human institution which is regulated by law and protected by the Constitution, which, in turn, creates genuine legal duties.

See also the case of Dawood and Another v Minister of Home Affairs and Others, Shalabi and Another v Minister of Home Affairs and Others, Thomas and Another v Minister of Home Affairs and Others (2000) ZACC 8; 2000 (3) SA 936 (OC); 2000 (8) BCLR 837 (CC).

The court therein alluded to the importance of marriage and family institution, and O'REGAN J had this to say;

“Marriage and family are social institutions of vital importance. Entering into and sustaining a marriage is a matter of intense private significance to the parties…,. Such relationships are of profound significance to the individuals concerned. But, such relationships have more than personal significance, at least in part, because, human beings are social beings whose humanity is expressed through their relationships with others. Entering into marriage therefore is to enter into a relationship that has public significance as well…,.”…,.

It can clearly be deduced, therefore, that a marriage institution has both the private and public complexion, hence the need for its protection.

Any deliberate intrusion into the marriage institution is an attack on the dignity of an innocent spouse which ought to be sanctioned by the law.

In my considered view, the bonis mores or legal convictions of our society have not changed so much that adultery could objectively be regarded as reasonable and thus it remains unlawful. The legal and public policy in Zimbabwe are still reflective of adultery as wrongful. This is moreso given our legislative and Constitutional provisions which are inclined towards protection of the marriage and family institution.

The marriage institution is founded upon morals, and the Constitution, which is the supreme law of the country, protects that very morally underpinned relationship. Intrusion in the marriage institution by adultery therefore remains wrongful and there is nothing unconstitutional about an adultery damages claim.

Accordingly, it is ordered that:

1. The application to have adultery damages claim declared unconstitutional is dismissed with costs.

2. The plaintiff's claim for adultery damages is properly before the court.

SC131-21 : CHANTELLE MUTESWA vs FRANK BUYANGA SADIQI
Ruled By: UCHENA JA, CHITAKUNYE JA and KUDYA JA

This is an appeal against the judgment of the High Court dated 18 March 2020 in which it granted to the respondent joint custody and joint guardianship of the minor child.In the same order, the court a quo, thereafter, ordered that an investigation be conducted by the Department of Social ...

HH40-09 : DODHILL (PVT) LTD and SIMON KEEVIL vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and NYASHA CHIKAFU
Ruled By: BERE J

The first applicant is Dodhill (Pvt) Ltd, a company with limited liability duly registered in accordance with the laws of Zimbabwe. The second applicant is the director and shareholder of the first applicant.The first respondent is the Minister of Lands and Rural Resettlement, cited in his capacity as the acquiring ...

The first respondent is the Minister of Lands and Rural Resettlement, cited in his capacity as the acquiring authority and is responsible for the administration and implementation of the Land Acquisition Act [Chapter 20:10] and other allied pieces of legislation currently in force.

The second respondent is Nyasha Chikafu who is, in terms of the Land Acquisition Act [Chapter 20:10], the beneficiary of subdivision 1 of Dodhill in Chegutu District, Mashonaland West Province; which, incidentally, the applicants claim to have legitimate right over.

For purposes of this judgment, I will refer to the property in question as Dodhill Farm.

THE BACKGROUND

From the papers filed of record, coupled with the submissions made by the two legal practitioners representing the applicants and the second respondent, there are conflicting perceptions as regards the current status of Dodhill Farm.

The applicants feel very strongly that annexure '2' confirms their legitimate possession of the property.

Annexure '2' is a court order which was consented to at a time when the other portions of the property were voluntarily conceded to the State for purposes of agricultural resettlement following the formal gazetting of the applicants farm in January of 2005.

The second respondent's position is that following the promulgation of the constitutional amendment number 17/05, Dodhill Farm was properly allocated to her by the first respondent.

I accept the position adopted by the second respondent, that, annexure '2' was overridden by the subsequent promulgation of constitutional amendment number 17/05 which culminated in the introduction of, inter alia, section 16B(2)(a)(i) of the Constitution which conferred the ownership of the farm in question firmly in the hands of the first respondent.

I will therefore proceed on the basis that Dodhill Farm was indeed allocated to the second respondent.

APPLICANTS CASE

The applicants case is predicated upon the mandament van spolie.

Their argument is, that, on the evening of Thursday 5th day of February 2009, the second respondent, without the applicants prior knowledge and consent, summarily entered Dodhill Farm and set up a camp near the main security gate housing the applicants residence, barns, and other buildings. A tent was put up as well as a makeshift shelter. The allegations went further to say, that, the second respondent introduced or brought with her some youth who camped in the premises.

On 20 February 2009, the second respondent summarily, and without the consent of the applicants, commenced ploughing in the applicants fields where tobacco had just been harvested and on which the applicants had intended to plough an onion crop, in conformity, with the applicants programme of rotational cultivation.

The applicants outlined other incidents which amounted to the second respondent's summary occupation of Dodhill Farm.

The applicants sought the services of the police to have the status quo ante restored - but to no avail.

According to the applicants, when the second respondent was confronted, she said she had a right to occupy Dodhill Farm on the strength of her offer letter, a copy of which is marked annexure '3' in the papers filed of record.

THE SECOND RESPONDENT'S CASE

The second respondent's response to the allegations of unlawful dispossession were basically three-pronged, viz;

(i) Lack of urgency in this matter;

(ii) Lack of locus standi on the party of the applicants in bringing this application; and

(iii) In the alternative, a complete denial of the allegations levelled against her by the applicants.

In order for one to effectively deal with the second respondent's two main defences, one must consider whether the allegations by the applicants are true or not. If they are not, the two main defences would fall away.

If the allegations are found to be true, the court must then proceed to deal with those allegations in so far as they impact on the defences of lack of urgency and locus standi on the applicants.

THE ALLEGATIONS BY THE APPLICANTS

In her notice of opposition, the second respondent has emphasized the point that the ownership of Dodhill Farm now vests in the first respondent and the fact that her offer letter authorizes her to stay on the farm in question to carry out agricultural activities.

I wish to re-affirm the accepted legal position, that, in applications for a spoliation order, the question of ownership of the property in issue does not arise. As I will demonstrate later in this judgment, lawfulness to possession of the farm is equally irrelevant.

There are numerous aspects which can be gleaned from the second respondent's notice of opposition which confirm the allegations levelled against her, not only on a balance of probabilities but beyond reasonable doubt.

(i) Firstly, despite her attempt to paint the picture that the applicants consented to her occupation of the farm, the second respondent gives a completely different picture when she states:

“…,. Applicants seem to be complaining, that, I should have sought their permission first before ploughing and that they wanted to plant onions on the land which I ploughed. I am advised, which advise I accept, that, I have the lawful authority to carry out agricultural activities at the farm in the form of an offer letter. Since applicants do not own the farm, there is no reason at all for me to seek their permission to do that which is lawful.

In any event, the applicants have no right whatsoever to continue carrying out agricultural activities at the farm since doing so amounts to a criminal offence. I intend to allow applicants to finish harvesting their crops before I commence to prepare the land…,.”…,.

In my view, the above averments confirm the point made by the applicants, that, the second respondent simply moved onto Dodhill Farm without their consent, because, in her view (of course as advised by her counsel), the applicants have no right to be on the farm.

It is inconceivable, that, given her perception of the law, as advised by her counsel, the second respondent would have sought the consent of the applicants before occupying the disputed property.

Further, in her affidavit, the second respondent confirms, that, there were fights between her own employees and those of the applicants which culminated is some employees being arrested by the police from Chegutu.

If the second respondent had occupied the farm in question by consent there would have been no cause to have such running battles on the farm between the two groups of employees.

All in all, I am satisfied, that, a cursory perusal of the second's respondent's affidavit lends credence to the allegations raised by the applicants. I have absolutely no doubt in my mind, that, the second respondent acted in the manner complained of by the applicants....,.

LOCUS STANDI

The issue of locus standi on the part of the applicants cannot be looked at in a vacuum. It must be looked at in the light of the legal position governing the principle of the mandament van spolie.

THE LEGAL POSITION

There can be no doubt, that, spoliation, as a remedy, has its core value or objective, protection to possession of property against unlawful dispossession.

This is a remedy that has been recognized in our jurisdiction and beyond for over decades.

In dealing with the principles of spoliation, I find the views of HERBSTEIN J quite apposite when the learned judge stated:

“…,. Two allegations must be made and proved, namely;

(a) That applicant was in peaceful and undisturbed possession of the property; and
(b) That the respondent deprived him of the possession forcibly or wrongfully against his consent.”

See Bennet Pringle (Pty) Ltd v Adelaide Municipality 1977 (1) SA 230E…,.

In Amler's Precedents of Pleadings, 3rd Edition LTC HARM and JH HUGO, Butterworths…, it is stated:

“Unlawfulness in this context means, a dispossession without plaintiff's consent or due legal process.”

This time honoured principle of our law has been enunciated in a plethora of cases in our jurisdiction and beyond: see, for example; Nino Bonino v De Lange 1906 TS 120…,.; Silo v Naude 1929 AD 21; Mutsotso and Others v Commissioner of Police and Anor 1993 (2) ZLR 329 (H); Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 248 (H).

In the classic and leading case of Nino Bonino v De Lange 1906 TS 120 INNES CJ…, had this to say:

“It is a fundamental principle, that, no man is allowed to take the law into his own hands; no one is permitted to dispossess another forcibly or wrongfully and against his consent of the possession of property, whether movable or immovable. If he does so, the court will summarily restore the status quo ante, and will do that as a preliminary to any enquiry or investigation into the merits of the dispute.”

In Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 248 (H) REYNOLDS J remarked as follows:

“Lawfulness of possession does not enter into it. The purpose of the mandament van spolie is to preserve law and order and to discourage persons from taking the law into their own hands. To give effect to these objectives, it is necessary for the status quo ante to be restored until such time as a competent court of law assesses the relative merits of the claims of each party….,. The lawfulness or otherwise of the applicants possession of the property does not fall for considerations at all. In fact, the classic generalization is sometime made, that, in respect of spoliation actions…, even a robber or thief is entitled to be restored possession of the stolen property.”…,.

Counsel for the second respondent passionately argued, that, the applicants had no locus standi to bring an application for spoliation.

The main thrust of his argument was, that, because the applicants had exceeded the 45 and 90 day statuary maximum periods which allows them to remain on the farm and the homestead respectively (section 3 of Gazetted Land (Consequential Provisions) Act [Chapter 20:28]), therefore, the applicants must not be protected by this court.

In counsel's view, which borrowed heavily from the position adopted by my learned brother UCHENA J in the case of Andrew Roy Ferrera and Katambora Estates (Pvt) Ltd v Bessie Nhandara HC3995/08, if this court accepted locus standi on the part of the applicants, then, the court would be sanctioning an illegal stay on Dodhill Farm by the applicants since the applicants are occupying that farm in complete violation of the law.

There was also an attempt by the second respondent's counsel to seek to rely on the decision by their Lordships in one of the much celebrated land cases in this country, viz Airfield Investments (Private) Limited v (1) The Minister of Lands, Agricultural and Rural Resettlement; (2) The Minister of Justice, Legal and Parliamentary Affairs; (3) The Member in Charge, Chegutu Police Station; (4) The Attorney General of Zimbabwe; and (5) R Sango SC36-04.

Simplified, the argument, as put forward by the second respondent's counsel, was that because the applicants hands are tainted with their illegal occupation of Dodhill Farm, the court could not entertain them let alone grant them an order that would perpetuate their continued stay on the farm.

The applicants counsel held a different view.

She argued, that, once the applicants possession is established and there is proof of dispossession without reference to due process, the applicants locus standi, is thereby established.

I agree with this position.

The position adopted by the second's respondent's counsel is fraught with so many challenges.

Firstly, his approach would be an attempt to re-define the very basic requirements of a mandament van spolie which is not concerned with the legality or otherwise of the possession itself: see the remarks of REYNOLDS J in Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 248 (H).

I am fully cognisant of other decisions from South Africa which have attempted to shift from the orthodox approach in dealing with spoliation matters.

One such matter is the case of Parker v Mobil Oil Southern Africa (Pvt) Ltd 1979 (4) SA 250…, where VAN DEN HEEVER J stated as follows:

“Moreover, the rule that goods dispossessed against the will of the possessor must be restored forthwith, is not an absolute one.

The reason for the rule is, according to the authorities, certainly not because the fact of possession is elevated to a right stronger than plenum dominimum, but, to discourage breaches of the peace by self help in the case of disputes.

Despite generalizations that even the thief or robbers entitled to be restored to possession, I know of no instance where our courts, which disapprove of metaphorical grubby hands, have come to the assistance of an applicant who admits that he has no right vis-a-vis the respondent to the possession he seeks to have restored to him.”…,.

Commenting on Parker v Mobil Oil Southern Africa (Pvt) Ltd 1979 (4) SA 250 and another similarly decided case of Coetzee v Coetzee 1982 (1) SA 933, the learned judge, MAKARAU J, in the recent case of Shiriyekutanga Bus Service v Total Zimbabwe remarked as follows:

“With respect, the weight of authority appears to be against the learned judge. It has not been established as part of our law in any other decided case that an application for spoliation order has to show some reasonable or plausible claim to the property despoiled.

The learned judge seems to suggest, that, the court determining an application for a spoliation order will look into but possession of the applicant: see Coetzee v Coetzee (supra).

I hold a different opinion, and do so with the greatest of respect and due deference to the learned judge.

The decided cases referred to by GUBBAY CJ in Botha and Another v Bennet (supra) are quite clear that the court does not at all look into the juridical nature of the possession claimed.

The doctrine of stare decisis binds me to follow the decision in Botha and Another v Bennet (supra) and Coetzee v Coetzee (supra) HH64-08.”...,.

I entirely associate myself with the position adopted by the learned judge MAKARAU J, that, in an application for spoliation order, an applicant does not have to prove some reasonable or plausible claim to the property, let alone the legality or otherwise of his possession of the property in question.

With extreme due deference to the learned judge UCHENA J, I do not agree with the approach he seems to have adopted in Andrew Roy Ferreira and Katambora Estates (Pvt) Ltd v Bessie Nhandara HC3995/08 when he made a finding, that, because the applicant in that case had defiantly continued to be on the farm in question, therefore, he could not be granted spoliation.

In my view, the learned judge prematurely dealt with the rights of the parties to the farm when, in fact, this was not the issue at stake.

It does seem to me, that, all the learned judge was supposed to consider was whether or not the applicant had been in peaceful and undisturbed possession of the farming land prior to the alleged dispossession and not to consider who was legally supposed to have been in possession of the farming land at the time of the alleged dispossession by the offeree.

In any event, such an approach, in my view, went against the weight of decades of precedent in spoliation matters.

The second challenge which is apparent from the position adopted by the second respondent's counsel is the failure to appreciate, that, by denying the applicants locus standi, the court will be sanctioning and encouraging self-help exercise by those in the position of the second respondent.

In my view, such a position would be tantamount to perpetuating an infraction of the law to the dispossession by the second respondent without following due process of law.

I hold a very strong view, that, it was certainly not the intention of the legislature to give those armed with offer letters, like the second respondent, powers of evicting defiant former farm owners like the applicants.

Such a scenario would create chaos in our farms.

Our courts must be careful not to encourage lawlessness in our farms by subtley condoning, by implication or inference, the conduct of land beneficiaries who believe they have a legitimate right to occupy land which hitherto belonged to those farm owners who choose to stubbornly or defiantly remain on the farm at a time they should have vacated.

It is not a question of weighing who, between the former owner and a beneficiary, has a preferred or a more appealing right. It is simply a question of encouraging due process of law.

This is not achieved by giving court orders which give the impression offerees can themselves carry out eviction processes.

The legislature was quite conscious, that, there would be defiant former farm owners who would endeavour to continue with farming operations after the lapse of the 90-day statutory period.

In its wisdom, the legislature created a specific procedure to deal with such errant or defiant farmers. This procedure is well spelt out in the Gazetted Lands (Consequential Provisions) Act: see sections 3-5 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28].

My brother judge, HUNGWE J, correctly summed up the procedure when he stated:

“There is a specific procedure for eviction in respect of land acquired in terms of the Gazetted Lands (Consequential Provisions) Act [Cap 20:28]. The right to claim eviction is only exercisable by the acquiring authority. That process is not initiated by a beneficiary under the land reform programme or by an officer of the acquiring authority.”

See Pondoro (Pvt) Ltd and Another v Nemakonde and Anor HH18-08.

Consistent views were also echoed by my brother judge, BHUNU J, when he stated:

“Although the applicant is entitled to occupy the land, he is not entitled to evict the former owner…, because he does not own the land and has not, at any stage, acquired possession.

It is now settled law, that, a lessee who has not acquired vacant possession cannot evict anyone from the property. It is the prerogative of the acquiring authority to evict the first respondent.”

See Zakeyo Mereki v Bell In (Pvt) Ltd and Deputy Sheriff Harare (N.O.).

I note with extreme discomfort, that, the second respondent's counsel has referred to Airfield Investments (Private) Limited v (1) The Minister of Lands, Agricultural and Rural Resettlement; (2) The Minister of Justice, Legal and Parliamentary Affairs; (3) The Member in Charge, Chegutu Police Station; (4) The Attorney General of Zimbabwe; and (5) R Sango SC36-04 as authority for the proposition that the applicants have no locus standi in this case.

With respect, that case has been quoted out of context.

That case is quite distinguishable from the instant case. In that case, the focus was on considering the requirements of an interim interdict as opposed to the instant case which is primarily focused on considering the requirements of a mandament van spolie.

These two principles are quire distinct and cannot be mistaken for each other.

Counsel for the second respondent also argued, that, according to his understanding, section 16B of the Constitution of Zimbabwe, as well as section 3 of the Gazetted Lands (Consequential Provisions) Act have taken away the remedy of spoliation from our common law.

I have painstakingly perused the cited sections. I do not agree with such sentiments.

In the final analysis, I am more than satisfied, that, the applicants have locus standi to bring this action, and, having accepted their allegations against the second respondent, I am inclined to grant the provisional order sought in terms of the papers filed.

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CC06-17 : GLENS REMOVAL AND STORAGE ZIMBABWE (PRIVATE) LIMITED vs PATRICIA MANDALA
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

HH546-15 : ANNIE MADZARA vs STANBIC BANK ZIMBABWE LTD and CLEVER MADZARA and THE SHERIFF OF ZIMBABWE and THE REGISTRAR OF DEEDS and THE ATTORNEY GENERAL OF ZIMBABWE
Ruled By: TSANGA J

SC16-19 : AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY vs FRANCIS BAURENI and 18 OTHERS
Ruled By: GARWE JA, PATEL JA and MAKONI JA

Appealed
SC188-20 : GERALD CHIGWADA vs PENELOPE CHIGWADA and SHEPHERD KUSADA N.O. and MASTER OF THE HIGH COURT
Ruled By: MALABA CJ, GARWE JA, MAKARAU JA, GOWORA JA and BERE JA

SSC113-00 : IN RE: PATRICK ANTHONY CHINAMASA vs X
Ruled By: GUBBAY CJ, McNALLY JA, EBRAHIM JA, MUCHECHETERE JA and SANDURA JA

HH477-16 : RICHARD SEAGER vs ALESTER ZIYANGA
Ruled By: DUBE J

HH37-16 : GEORGINA NJODZI vs LORRAINE MATIONE
Ruled By: MWAYERA J

SC131-21 : CHANTELLE MUTESWA vs FRANK BUYANGA SADIQI
Ruled By: UCHENA JA, CHITAKUNYE JA and KUDYA JA

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Ruled By: BERE J

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Constitutionality of Statutory Provisions re: Common Law Legal Principles

View Appeal CC06-17 : GLENS REMOVAL AND STORAGE ZIMBABWE (PRIVATE) LIMITED vs PATRICIA MANDALA Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

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SC16-19 : AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY vs FRANCIS BAURENI and 18 OTHERS Ruled By: GARWE JA, PATEL JA and MAKONI JA

Appealed SC188-20 : GERALD CHIGWADA vs PENELOPE CHIGWADA and SHEPHERD KUSADA N.O. and MASTER OF THE HIGH COURT Ruled By: MALABA CJ, GARWE JA, MAKARAU JA, GOWORA JA and BERE JA

SSC113-00 : IN RE: PATRICK ANTHONY CHINAMASA vs X Ruled By: GUBBAY CJ, McNALLY JA, EBRAHIM JA, MUCHECHETERE JA and SANDURA JA

HH477-16 : RICHARD SEAGER vs ALESTER ZIYANGA Ruled By: DUBE J

HH37-16 : GEORGINA NJODZI vs LORRAINE MATIONE Ruled By: MWAYERA J

SC131-21 : CHANTELLE MUTESWA vs FRANK BUYANGA SADIQI Ruled By: UCHENA JA, CHITAKUNYE JA and KUDYA JA

HH40-09 : DODHILL (PVT) LTD and SIMON KEEVIL vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and NYASHA CHIKAFU Ruled By: BERE J

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CC06-17 : GLENS REMOVAL AND STORAGE ZIMBABWE (PRIVATE) LIMITED vs PATRICIA MANDALA
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HH546-15 : ANNIE MADZARA vs STANBIC BANK ZIMBABWE LTD and CLEVER MADZARA and THE SHERIFF OF ZIMBABWE and THE REGISTRAR OF DEEDS and THE ATTORNEY GENERAL OF ZIMBABWE
Ruled By: TSANGA J

SC16-19 : AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY vs FRANCIS BAURENI and 18 OTHERS
Ruled By: GARWE JA, PATEL JA and MAKONI JA

Appealed
SC188-20 : GERALD CHIGWADA vs PENELOPE CHIGWADA and SHEPHERD KUSADA N.O. and MASTER OF THE HIGH COURT
Ruled By: MALABA CJ, GARWE JA, MAKARAU JA, GOWORA JA and BERE JA

SSC113-00 : IN RE: PATRICK ANTHONY CHINAMASA vs X
Ruled By: GUBBAY CJ, McNALLY JA, EBRAHIM JA, MUCHECHETERE JA and SANDURA JA

HH477-16 : RICHARD SEAGER vs ALESTER ZIYANGA
Ruled By: DUBE J

HH37-16 : GEORGINA NJODZI vs LORRAINE MATIONE
Ruled By: MWAYERA J

SC131-21 : CHANTELLE MUTESWA vs FRANK BUYANGA SADIQI
Ruled By: UCHENA JA, CHITAKUNYE JA and KUDYA JA

HH40-09 : DODHILL (PVT) LTD and SIMON KEEVIL vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and NYASHA CHIKAFU
Ruled By: BERE J