Appeal re: Dismissal of Appeal Without Hearing, Striking Out or Lapsing of Appeal and Reinstatement of Lapsed Appeal

SC32-15 : BINDURA MUNICIPALITY vs PAISON CHIKEYA MUGOGO
Ruled By: GUVAVA JA

This chamber application was placed before me in terms of Rule 5 of the Supreme Court Rules, 1964. Although it was unopposed it raised an issue concerning the interpretation of Practice Directive 3/13. BACKGROUND The appeal relating to this matter was set down before the Supreme Court on 5 September 2014. It was struck ...

BACKGROUND

The appeal relating to this matter was set down before the Supreme Court on 5 September 2014. It was struck off the roll because it did not comply with Rule 4(2) and Rule 7(b) of the Supreme Court (Miscellaneous Appeals and References) Rules, 1975. Firstly, the notice of appeal reflected the wrong date on which judgment was delivered by the Labour Court. It was quite clear, ex facie the judgment, that it had been hand down on 29 June 2012. However, the notice of appeal stated that it was handed down on 29 May 2012.

Secondly, a copy of the notice of appeal was served on the Registrar of the Labour Court contrary to the order by GOWORA JA. The order granted by GOWORA JA stated as follows:

“1. Leave be and is hereby granted to the applicant to note an appeal against the judgment of the Labour Court No LC/H/196/2012 handed down on 29 June 2012.

2. The Notice of Appeal shall be noted within fourteen (14) days of the date of this order.

3. There be no order as to costs.”

It was thus incumbent upon the applicant to serve the notice of appeal with the Registrar of the Labour Court within fourteen days of the grant of the order. The order was granted on 28 January, 2014. It was only filed with the Registrar of the Labour Court on 28 February, 2014 - a month later.

WHETHER THE APPLICATION IS PROPER

Following the decision to strike off the appeal, the applicant filed this chamber application seeking to reinstate the appeal. The applicant stated, in his founding affidavit, that the application was being made in terms of The Supreme Court (Miscellaneous Appeals and References) Rules 1975 as read with Practice Directive 3/13.

In support of the application, counsel for the applicant conceded that there was an error on the notice of appeal since the date the judgment had been delivered was 29 June 2012 and not 29 May 2012. He however sought to explain the error by stating that it was a genuine mistake on the part of the legal practitioner dealing with the matter.

He further explained that the failure to serve the Registrar of the Labour Court with the notice of appeal within the time specified in the order was due to the fact that the Labour Court Registrar had refused to issue out any court process in the absence of the record of proceedings. The notice of appeal was only accepted on 28 February 2014 after the record had been located. He therefore submitted that the delay in the service of the notice of appeal to the Labour Court was occasioned by circumstances beyond the control of the applicant.

It was his submission that since no prejudice had been occasioned to the respondent by his failure to comply with the rules of the court the application should be granted.

It however seems to me that the applicant has filed a wrong application.

Where a matter has been struck off the roll because it has failed to comply with the Rules of Court, one cannot simply apply for reinstatement of the appeal as such an appeal is a nullity. This position has been stated in a number of decisions of this Court. The leading case in this regard is the case of Jensen v Acavalos 1993 (1) ZLR 216 (S)…, where KORSAH JA stated as follows:

“…, a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say it is a nullity. It is not only bad but incurably bad, and, unless the court is prepared to grant an application for condonation of the defect and to allow a proper notice of appeal to be filed, it must be struck off the roll…,.”

SC02-15 : REMO INVESTMENT BROKERS (PRIVATE) LIMITED vs INTERFIN SECURITIES (PRIVATE) LIMITED
Ruled By: MAVANGIRA AJA

This is an application for dismissal of appeal brought in terms of Rule 36(1) as read with Rule 46(5) of the Rules of the Supreme Court, 1964. On 12 February 2014, the applicant obtained a judgment in its favour in case number HC3624/12 for the return of specified shares and share certificates. On 18 February ...

This is an application for dismissal of appeal brought in terms of Rule 36(1) as read with Rule 46(5) of the Rules of the Supreme Court, 1964.

On 12 February 2014, the applicant obtained a judgment in its favour in case number HC3624/12 for the return of specified shares and share certificates. On 18 February 2014, the respondent filed a Notice of Appeal against the said judgment with this court. On 4 April 2014, the applicant filed this application seeking an order in the following terms:

“It is hereby ordered that:

1. The Notice of Appeal and Grounds of Appeal under case number SC68/14 is hereby dismissed.

2. The Respondent pays costs on an attorney and client scale.”

The uncontested facts of the matter are that after the respondent's legal practitioners filed a Notice of Appeal on 18 February 2014, the applicant's legal practitioners wrote to them on 27 February 2014 demanding security for costs. As the appeal was noted on 18 February 2014 it accordingly followed that in terms of Rule 46(5), security for costs ought to have been furnished by 18 March 2014. In their letter dated 27 February 2014, to the respondent's legal practitioners, the applicant's legal practitioners made reference to the provision for security for costs in Rule 46(5) and demanded the provision of security for such costs in the sum of USD$55,000=. By letter dated 5 March 2014, the respondent's legal practitioner indicated that they appreciated the import of Rule 46(5) and were taking instructions from their client. On 6 March, the applicant's legal practitioners again wrote to the respondent's legal practitioners indicating, among, other things, that the applicant was inclined to exercise the option to have the appeal dismissed on the basis that the respondent had failed to comply with the cited Rules of this Court.

There was no reply to this letter.

The applicant's legal practitioners, yet again, wrote, on 26 March 2014, referred to the previous correspondence referred to earlier herein and made demand for payment of security for costs in the sum of US$55,000= by 1 April 2014 failing which they had instructions to file an urgent chamber application for dismissal of the appeal. The demand was not met. For this reason, and guided by the Rules, this application was then filed on 4 April 2014.

No opposing papers were filed by or on behalf of the respondent.

Counsel for the respondent, submitted that he had not filed opposing papers and that he had no meaningful submissions to make. He further advised the court that the respondent was no longer trading. Counsel for the respondent submitted, further, that he had advised the respondent that even though it was not trading, potentially, the application for dismissal of appeal would be granted. The respondent had then placed at the disposal of his law firm an amount of US$5,000=. Thereafter, he then, by letter dated 2 May 2014, advised the Registrar that they were in a position to tender US$5,000=. He accepted that the respondent was obliged to pay security for costs but that there was a dispute which the court had to determine as to what constituted a sufficient amount for security for costs.

Rule 46 provides as follows:

“46. Security

(1) If the judgment appealed from is carried into execution by direction of the court appealed from, security for the costs of appeal shall be as determined by that court and shall not be required under this rule.

(2) Where the execution of a judgment is suspended pending an appeal and the respondent has not waived his right to security, the appellant shall, before lodging with a Registrar copies of the record, enter into good and sufficient security for the respondent's cost of appeal:

Provided that where the parties are unable to agree on the amounts or nature of the security to be provided, the matter shall be determined by the Registrar.

(3) A judge may, on application, at the cost of the appellant and for good cause shown, exempt the appellant wholly or in part from the giving of security under subrule (2).

[Subrule amended by RGN 421 of 1975]

(4) No security need be furnished by the Government of Southern Rhodesia or by a municipal or city council or by a town management board.

(5) Where an appellant is required by this rule to furnish security for the respondent's costs of appeal, such security shall be furnished within one month of the date of filing of the notice of his appeal in terms of Rule 29.”…,.

Rule 36 provides:

“36. Dismissal of appeal without hearing

(1) If an appellant who is required to furnish security for the respondent's costs of appeal fails to furnish such security within the period prescribed in subrule (5) of Rule 46, the respondent may forthwith give notice to the appellant that, on the date specified in the notice, being not less than five days after service of the notice, he will apply to a judge for dismissal of the appeal by reason of such failure, and for such other order specified in the notice as he may require.

[Subrule amended by S.I.14 of 1992]

(2) The date specified in the notice given in terms of subrule (1) shall be a date which a Registrar has previously signified to the respondent as being a suitable date.

(3) The judge, on an application for dismissal by the respondent brought in terms of subrule (1), may dismiss the appeal and, additionally or alternatively, may make such other order as he thinks fit, including any order as to costs, whether or not one or other or both the parties to the appeal appear at the hearing.

(4) Where, at the time of the hearing of an appeal, there is no appearance for the appellant, and no written arguments have been filed by him, the court may dismiss the appeal and make such order as to costs as it may think fit:

Provided that an appeal dismissed in terms of this subrule may thereafter, on application by the appellant, be reinstated.

(5) A Registrar shall notify the Registrar of the court whose judgment is appealed against of the dismissal of any appeal under this Rule.”

It is common cause between the parties that security for costs is required in this matter in terms of the Rules. Counsel for the respondent made that concession in his submissions.

The Rules provide for the furnishing of such security within one month of the date of the filing of a notice of appeal. In this regard, Rule 46(5) is couched in peremptory terms. The respondent filed a notice of appeal on 18 February 2014. It was only by letter dated 2 May 2014 that an indication was made to the Registrar of an intention to meet the requirement for the furnishing of security for costs - albeit not in the amount specified by the applicant. A period in excess of two months had elapsed by the time this indication was made to the Registrar. Rule 46(5) was therefore flouted. Rule 36(1) provides that where there has been such failure to comply with Rule 46(5), the respondent may give notice to the appellant that he will apply to a judge for dismissal of the appeal by reason of such failure.

On the facts of this matter, the respondent was given more than the stipulated five (5) days' notice of the applicant's intention to file this application. Despite being made aware of the provisions of the law and the consequences of non-compliance, the respondent did not take appropriate action. Neither did it explain why it did not do so. On these facts, I found no justification for not exercising the discretion granted in Rule 36(3) to a judge, to dismiss the appeal as prayed for by the applicant. This, in effect, can properly be viewed as an unopposed application.

The submission by counsel for the respondent that there was a dispute as to what constitutes a sufficient amount for security for costs was not substantiated. He made no submission as to how and/or when the dispute allegedly arose. It appears to be a half-hearted submission made without any seriousness, particularly when viewed against counsel for the respondent's other submissions captured earlier herein. Nevertheless, he has, in these circumstances, now requested written reasons for my decision.

No real or substantial opposition was made to the prayer for costs on an attorney and client scale.

In the result, on 14 November 2014, I granted an order in the terms prayed for by the applicant in the draft attached to the application.

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

This is a rather convoluted chamber application with no clear cut basis or rule of law upon which it is founded. The application was filed as a chamber application for reinstatement of the lapsed appeal under case number SC209/04 but ended up as an application for condonation of late noting of appeal.There being no ...

There being no clear cut basis for the procedure adopted by the applicants, counsel for the applicants resorted to inviting the court to depart from the Rules and adopt uncharted procedures in terms of Rule 4 of the Supreme Court Rules to advance their own purpose. The Rule authorises a judge, in appropriate cases, to depart from the Rules in order to do justice between the parties. It provides that:

“Subject to the provisions of subsection (3) of section 19 of the Act, a judge or the court may direct a departure from these Rules in any way where this is required in the interests of justice, and, additionally or alternately, may give such directions in matter of practice or procedure as may appear to him or it to be just and expedient.”

In his main written submissions, counsel for the applicants sought to explain and justify their admitted tardiness and flagrant disdain of the Rules in the following vein:

“A CONDONATION

The court is asked for indulgence in terms of Rule 4 of the SC Rules whereon the court can use its inherent powers to depart from the Rules in the interest of justice and to control its own proceedings to achieve justice. The court is asked to condone the tardiness inherent in the following papers filed of record:-

(i) This matter has taken too long to conclude and justice demands that it be put to rest in (one) way or the other which does not include a dismissal of this application on account of non-compliance with the Rules.

(ii) Considering that this application is made for the reinstatement of the appeal supposedly pending in this court it is submitted that:

1. THIS APPLICATION WAS MADE WITH THE INITIAL IMPRESION THAT:

(a) There was an appeal pending before this court that has been struck off the roll.

(b) After which efforts were made to find the Supreme Court record which was only retrieved from the Archives.

(c) In an effort to comply with the High Court (Civil Appeal) Rules but erroneously so, a letter dated September 30, 2015 was written to the High Court Registrar (tendered hereto), causing the preparation of the High Court record.

(d) Applicants' files were also still sitting at various law firms and the proper and adequate briefing was difficult from applicants who are lay people.

(e) Be that as it may, it came to the attention of counsel that the appeal had in fact lapsed and it required revival.

(f) However, in terms of the Appeal Rules and the law, prior to making this application, there must have been the need to apply to this court or a judge for condonation before such an appeal can be reinstated because technically there is no appeal pending. See case of:-

Bobby Maparanyanga versus Dean Pernell Van Schakwyk SC64-02

(g) As a result of this history and lapse of time over the years and the failure by applicant to access legal counsel, it is necessary that an application is made to regularise applicant's papers.

(h) The court is asked to condone the applicants for their conduct that led the Appeal to lapse.

Accordingly, the court is asked to condone the applicants by exercising its inherent powers to achieve the interests of justice and finality of this matter by allowing applicants to lodge the appeal out of time and to effectively grant an order to the effect that:

(i) Failure to file the appeal in terms of the Rules is condoned.

(ii) Applicants are ordered to file the appeal with the Registrar of the SC within 7 days from the date of this order.

(iii) Applicants must comply with the Appeal Rules of this court to the extent of causing the preparation of the court record as a matter of priority within 21 days from the date of this order.”

From the applicants' own summation of their irregular and improper prosecution of the intended appeal I discern a deliberate disdain of the Rules.

I observe, in passing, that the tardiness with which this matter is being handled betrays a woeful lack of diligence and serious resolve to bring the matter to finality. Despite the inordinate delay spanning more than eleven (11) years both counsel appeared without filing written heads of argument. They however promised to file written heads of argument later that day, particularly to address the novel objection raised by counsel for the respondent that an application for reinstatement of a lapsed appeal ought to be brought by way of a court application and not by chamber application.

Counsel for the respondent promptly filed his heads of argument on the same day - 12 November 2015. To date, more than 8 months later, counsl for the applicants has not filed his heads of argument.

Counsel for the respondent has since written to the Registrar requesting judgment.

I therefore proceed to determine this matter without the benefit of counsel for the applicants' written heads of argument.

The application is against the judgment of MAKARAU J…, In that judgment, the learned judge dismissed the applicants' application to set aside a consent judgment.

The judgment was delivered on 16 June 2004 - more than 11 years ago.

The brief facts are that on 26 November 2002, the court a quo entered a consent judgment against the applicants in the sums of US$590,470=68 and US$54,917=68 together with interest. Having consented to judgment, the applicants, who were legally represented, later on had a change of heart and approached the court a quo seeking an order setting aside the consent order in terms of Rule 56 of the High Court Rules 1971. The application found no favour with the learned presiding judge who dismissed the application with costs on 16 June 2004.

Aggrieved by the determination, the applicants noted an appeal to this court on 1 July 2004, under case number SC209/04. The applicants however did not prosecute their appeal as expected. They sat back and did nothing until the appeal lapsed or was deemed to have been abandoned in terms of Rule 25(1)(c).

About 11 years later, and on 12 October 2015, the applicants filed this chamber application seeking condonation and reinstatement of the long forgotten appeal. The record of proceedings had to be retrieved from the archives where it was now gathering dust.

The appeal having lapsed, or deemed to have been abandoned, it follows that there is no appeal pending in this court. This prompted the applicant to apply for condonation of late filing of the notice of appeal together with the application to reinstate the lapsed or abandoned appeal.

The application for reinstatement of the appeal was however initially brought without the necessary application for condonation of late filing of appeal. The application was only belatedly made at the hearing as an afterthought. It was not accompanied by the necessary request to amend the draft order to incorporate the envisaged amendment.

The respondent has raised two (2) points in limine.

1. That the matter is not properly before me as the applicant ought to have proceeded by court application and not by chamber application.

2. That the applicants' failure to comply with Rule 34 of the Supreme Court Rules renders the application a nullity.

The objection in paragraph 1 above brings into question the propriety of bringing an application for reinstatement of a lapsed appeal by way of a chamber application rather than a court application.

I now proceed to ventilate that issue.

Whether an Application for Reinstatement of Appeal Can be Brought By Way of a Chamber Application

In its objection in limine, the respondent sought to rely on Rule 26(1) of the Supreme Court Rules, 1964 which provides that:

“26. Applications

(1) All applications, other than an application for leave to appeal, for extension of time in which to perform any act or for legal aid, shall be made by court application.”

The Rule clearly stipulates that all applications, except those specifically mentioned in Rule 26 shall be brought by way of court application. There are only three (3) exceptions specifically mentioned in the Rule; that is to say:

(i) Application for leave to appeal.

(ii) Application for an extension of time in which to perform any act.

(iii) Application for Legal Aid.

The application for reinstatement of an appeal, not being one of the above three (3) exceptions mentioned in Rule 26(1), it would appear on the face of it that the law requires that such an application be brought by way of a court application and not as a chamber application.

A closer analysis of the Rules, however, shows that Rule 26 falls under Part IV which exclusively deals with criminal appeals from the High Court as will more fully appear from the heading which reads:

“PART IV

CRIMINAL APPEALS FROM THE HIGH COURT”

Rule 26 therefore, has no application in civil appeals in this court. This being a civil appeal from the High Court it follows that the Rule has no application in this case.

There is no corresponding Rule under Part V which deals with civil appeals from the High Court. Consequently, the objection is misplaced and unsustainable as it is premised on an inapplicable Rule of Court.

The objection is accordingly overruled.

SC24-17 : MARVELLOUS TARUWONA vs COBRA SECURITY (PRIVATE) LIMITED and MISHECK ZVARIVADZA and TAPSON MADZIVIRE
Ruled By: GOWORA JA

On 27 September 2001, the High Court in Harare issued an order in terms of which it dismissed an application filed by the applicant herein against the three respondents. No reasons were provided by the learned judge in the court a quo. Despite this, the applicant noted an appeal against the judgment on ...

On 27 September 2001, the High Court in Harare issued an order in terms of which it dismissed an application filed by the applicant herein against the three respondents.

No reasons were provided by the learned judge in the court a quo. Despite this, the applicant noted an appeal against the judgment on 11 October 2001.

Written reasons for the judgment were availed on 7 May 2007. A record of proceedings having been prepared, on 19 March 2009 the Registrar of this Court requested the applicant to file his heads of argument in support of the appeal in accordance with the Rules. On 17 August 2009, the Registrar dispatched a second letter to the applicant's legal practitioners of record informing them that the appeal was deemed to have abandoned in view of the failure to file heads of argument. The records in the matter were returned to the court a quo to allow execution in terms of the judgment. No further action was taken by the applicant.

On 12 June 2012, the applicant's legal practitioners filed a notice of renunciation of agency.

On 22 June 2012, the applicant filed this application. The applicant was unrepresented.

In the founding affidavit in support of the order for reinstatement of the appeal, the applicant stated that after the reasons were availed he made all the requisite ground work to expedite the hearing of the appeal. He claimed that he had been abandoned by his legal practitioners, and, as a result, he had not been in a position to prosecute his appeal. His erstwhile legal practitioners filed a supporting affidavit in which they indicated that they had renounced agency on 1 April 2009. In the affidavit they further averred that on receipt of the letter dated 17 August 2009 the legal practitioners responded by letter dated 19 August 2009 and informed the Registrar that they had renounced agency on 1 April 2009. It appeared that the notice of renunciation was not on record, and, consequently, on 12 June 2012, upon instruction from the applicant, another notice was issued and filed with the Registrar.

On these facts, the applicant contends that he was not in willful default of filing heads of argument as required by the Rules of this Court. He contends, further, that in view of the fact that he was no longer represented he was not obliged, in terms of the Rules, to file heads of argument. He referred to the draft of notice of appeal and contended that the appeal had merit, warranting the grant of the relief sought.

In opposing the application, the second respondent stated that during the period extending from October 2001 and 17 August 2009, the applicant had filed no less than ten applications with the High Court. He had also filed not less than four appeals with the Supreme Court. Copies of the documents filed in relation to those matters were attached. The documents show that the applicant was legally represented in all the matters. In some of the cases, he was represented by senior counsel. It was contended by the respondents that a judgment delivered by KUDYA J, on 20 February 2012, appeared to be the reason that spurred the applicant to act and pursue the appeal which is the subject of this application.

As far as prospects of success were concerned, it was contended by the respondents that the applicant had not set out the basis upon which he considered that there were prospects of success in relation to his appeal. The respondents contended that the applicant has not explained the inordinate delay from the time that the Registrar deemed the appeal to have been abandoned and the time that it took the applicant to file his application for reinstatement of the appeal.

In the matter heard by KUDYA J, the applicant was the plaintiff and he was legally represented. In his judgment, the learned judge sets out in detail the prolixity of the litigation that the applicant and his opponents had been engaged in. The applicant was criticized for the dilatory manner in which he dealt with the matter which was the subject of that judgment. What is clear is that it is the statement by the learned judge in the judgment to the effect that the only claim that was still alive was the one for shares which was still pending in the Supreme Court. The judgment is dated 21 February 2012. This application was filed on 22 June 2012. The statement by the respondents appears to have merit. The applicant must have been encouraged by the learned judge's remarks.

According to the affidavit from the applicant's erstwhile legal practitioners, they renounced agency on 1 April 2009. The letter calling upon the applicant to file heads of argument was dated 19 March 2009. There is no dispute that it was received. It has not been attached to the application, as a result there is no indication as to when it was received. That notwithstanding, the applicant cannot run away from the fact that when the letter of 19 March 2009 was written, he was legally represented. As such, in terms of the Rules, he was obliged to file heads of argument.

The Registrar was, as a consequence, well within his rights, in terms of the Rules, to write the letter of 17 August 2009 in terms of which the appeal was deemed to have been abandoned due to the failure on the part of the applicant to file heads of argument when called upon to do so.

Turning to the merits of the application, the applicant was under an obligation to explain the delay in filing the application.

It is obvious that by 19 August 2009, his erstwhile legal practitioners had become alive to the fact that the appeal had been dismissed due to the failure on their part to attend to the heads of argument as requested by the Registrar. They had filed a notice of renunciation of agency on 1 April 2009. He was aware of this as he makes a statement to the effect in his founding affidavit.

There is no explanation from the legal practitioner concerned as to what action he took when he received notification that the heads of argument were required. The legal practitioner does not explain whether or not the applicant was advised of the notice of renunciation. It is fair to say that the supporting affidavit from the erstwhile legal practitioners is short on detail and does not assist the applicant's case whatsoever.

A litigant who has not complied with the Rules is entitled to seek condonation from the court from such non-compliance.

A court may, on good cause, grant condonation for failure to comply with Rules of Court but such condonation is not to be had merely for the asking. An applicant seeking condonation has an onus to establish good cause. That is to say that such applicant must provide a full, detailed, and accurate account of the reasons for the delay and the failure to do that which the Rules require to be done.

In this instance, the applicant has given conflicting and patently false versions as to why there was non-compliance with the request by the Registrar to file heads of argument. In his founding affidavit he pleads poverty as a reason for the failure to comply with the demand for heads of argument. The record confirms that the applicant has been litigating in the High Court as late as February 2012. He also fails to explain the failure by his legal practitioners to file the heads of argument. The notice of renunciation was filed more than ten days after the Registrar had written to the applicant's legal practitioners on the subject matter of the heads of argument. The supporting affidavit should have explained that failure, as that was the reason for the dismissal of the appeal. There is no explanation from the legal practitioners as to why the heads of argument were not filed.

In fact, the letter by the Registrar did not appear to have received attention apart from the renunciation of agency.

In Machaya v Muyambi SC04-05, ZIYAMBI JA had occasion to deal with passiveness on the part of a legal practitioner called upon by the Registrar to file heads of argument in an appeal. The learned judge stated:

“The time has come for sterner measures to be taken of applications of this nature where negligence, tardiness and disdain for the Rules of Court is exhibited by legal practitioners. The often quoted passage from the judgment of STEYN CJ in Saloojee & Anor, NNO v Minister of Community Development 1965 (2) SA 135 (A) at 141 C-E bears repeating here, namely, that:

'There is a limit beyond which a litigant cannot escape the results of his attorney's lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the Rules of this Court. Considerations ad misericordiam should not be allowed to become an invitation to laxity. In fact, this court has lately been burdened with an undue and increasing number of applications for condonation in which the failure to act was due to neglect on the part of the attorney. The attorney, after all, is the representative whom the litigant has chosen for himself and there is little reason why, in regard to condonation of a failure to comply with a Rule of Court, the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are.'”

And at F-H:

“A litigant, moreover, who knows, as the applicants did, that the prescribed period has elapsed and that an application for condonation is necessary, is not entitled to hand over the matter to his attorney and then wash his hands of it. If, as here, the stage is reached where it must become obvious also to a layman that there is a protracted delay, he cannot sit passively by, without so much as directing any reminder or enquiry to his attorney (cf. Regal v African Superslate (Pty) Ltd (supra) at 23 i.f) and expect to be exonerated of all blame; and if, as here, the explanation offered to this Court is patently insufficient, he cannot be heard to claim that he has left the matter entirely in the hands of his attorney. If he relies upon the ineptitude or remissness of his own attorney, he should at least explain that none of it is to be imputed to himself. That has not been done in this case. In these circumstances, I would find it difficult to justify condonation unless there are strong prospects of success.”

The applicant, in my view, is suffering from a misapprehension of the law.

He cannot claim that he was not required to file heads of argument because he was unrepresented. What is of paramount import is what his status was at the time that he was called upon to file the written submissions. He was legally represented at the time and the Registrar was within his rights to deem the appeal abandoned when the applicant failed to comply with the demand.

The letter from the Registrar, dismissing the appeal, was received by the applicant's legal practitioners. They responded to the same. However, they do not proffer an explanation as to what action they took upon its receipt apart from informing the Registrar that they had renounced agency on behalf of the applicant.

The applicant himself does not deal with this aspect of the matter.

He fails to see the significance of the letter from the Registrar. The letter determined the fate of his appeal and the delay in applying for its reinstatement needs a full and detailed account to explain why no action was taken from 17 August 2009 to 22 June 2012. The delay is clearly inordinate and in the absence of an explanation for the same the only inference is that the applicant chose not to take action until the judgment by the Honourable KUDYA J.

As for prospects of success, clearly the applicant has not pointed this court to any. In the judgment sought to be impugned, the learned judge stated:

“The application was ill-conceived in two mutually inclusive aspects.

Firstly, there is a dispute of fact which cannot be resolved on the papers. The applicant avers that he is entitled to access the first respondent's statements of account during the period 1995-2001 by virtue of his being a shareholder of the same. The second and third respondents oppose the application on the grounds that the applicant is not a shareholder of the first respondent and on that basis is not entitled to the order that he seeks. The applicant is unable to furnish acceptable evidence, documentary or otherwise, proving his shareholding in the first respondent during the period in question.

The applicant states that such evidence is in the files of the first respondent, access to which has been denied him by the second and third respondents.

That brings me to the second hurdle in the applicant's case.

The applicant has put the cart before the horse by bringing this application at this stage. He should first have sought an order compelling the respondents to give him access to such records as he may need to prove his shareholding. Only then, in the event he had succeeded would it have been prudent to contemplate the present application.”

The notice of appeal filed on 11 October 2001 attacks the judgment on two bases. The first is that the court erred in dismissing the application on the basis that the applicant had not produced a Share Certificate. The applicant did not, before the court a quo, produce a Share Certificate. His second ground confirms this. The second ground attacks the judgment on the basis that the court erred by not having regard to correspondence between the respective legal practitioners of the parties which confirmed that the applicant was a shareholder. Again, this ground is clearly misplaced when regard is had to the applicant's acceptance before the court a quo that the evidence by which he could prove his claim to the shareholding was contained in files kept by the respondents and that he had not been given access to the files. The correspondence between the legal practitioners, in light of his concession as to the lack of proof of ownership, could not be a substitute. Such correspondence could not, on its own, be held to be the evidence that he was required to adduce.

In my view, I can find no better way of describing the prospects of success, or lack thereof, of the contemplated appeal than was stated by the court a quo. Clearly, there was no proof presented before the court a quo which would have warranted an order declaring the applicant a shareholder of the first respondent.

In the premises, the application lacks merit and is hereby dismissed with costs.

SC31-17 : FBC BANK LIMITED vs ROBERT CHIWANZA
Ruled By: GWAUNZA JA

In Chambers in terms of Rule 5 of the rules of the Supreme Court, 1964.This is an application for the reinstatement of an appeal.Factual BackgroundThe respondent was employed by the applicant as a Bank Teller. On 15 June 2014, the respondent was presented with a US$20= bill for the payment of US$12=. The respondent ...

SC34-17 : ZIMSLATE QUARTZITE (PRIVATE) LIMITED and ARMINCO INVESTMENTS (PRIVATE) LIMITED and TINASHE CHIMANIKIRE and MOHMED MAHMED vs CENTRAL AFRICAN BUILDING SOCIETY
Ruled By: ZIYAMBI AJA

Application for reinstatement of appeal. On 29 January 2016, the applicants noted an appeal against a judgment of the High Court dated 20 January 2016 in which the applicants were ordered, jointly and severally, the one paying the others to be absolved, to pay to the respondent the sum of US$324,815=49 plus ...

Application for reinstatement of appeal.

On 29 January 2016, the applicants noted an appeal against a judgment of the High Court dated 20 January 2016 in which the applicants were ordered, jointly and severally, the one paying the others to be absolved, to pay to the respondent the sum of US$324,815=49 plus interest thereon at the rate of 20 per cent per annum from 24 October 2013, such interest to be calculated monthly in advance on the said sum and capitalized, to the date of payment in full.

It was further ordered that the immovable property, being certain piece of land situate in the district of Marandellas called Stand 130 Marandellas Township, measuring 3,1474 hectares, held by the second applicant under Deed of Transfer Number 4905/2002, be declared executable in recovery of the said sum and that the applicants pay costs of suit on the scale of legal practitioner and client.

In the notice of appeal, the address for service was given as that of the applicants' legal practitioners, namely, 10 Mold Crescent Avondale, Harare, for the first second and third applicants, and 2^nd Floor Tanganyika House, Cnr 3^rd Street & K. Nkrumah Ave, Harare, for the fourth applicant.

Also in the notice of appeal was a statement to the effect that the applicants undertook to pay security for the costs of the appeal as soon as they were determined by the Registrar.

Rule 34(1) of the Rules of this Court (“the Rules”) requires such costs to be paid at the time of filing the notice of appeal or within a period of not more than five days unless an undertaking is made, to the Registrar of the High Court, to pay the costs as soon as they are determined.

Rule 34(1) provides;

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

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

It is not clear whether any undertaking was made to the Registrar of the High Court. I entertain grave doubt as to whether the statement in the notice of appeal amounts to an undertaking as required by the Rule which stipulates that the undertaking must be made in writing 'to the Registrar of the High Court.'

However, be that as it may, on 26 May 2016, the Registrar of the High Court wrote to the applicants instructing them to deposit $3,200= with the Registrar, as costs for preparation of the appeal record, within five days of service of the letter upon them. A copy of the letter, annexed to the application, was delivered at the first to third applicants' address for service on 5 June 2016. The applicants' legal practitioners were not found at that address.

They had relocated. No forwarding address was left.

In terms of Rule 10 of the Rules, the applicants were to advise the Registrar of any change of address.

They did not do so.

On 6 July 2016, the Registrar of this Court wrote to the applicants' legal practitioners advising them that the appeal was deemed to have lapsed in terms of Rule 34(5) of the Rules. The letter, a copy of which is annexed to the applicants' founding affidavit, is directed to all the applicants at their respective addresses for service. The applicants did not respond despite the acknowledgement by Mr Musarira, who filed the supporting affidavit on behalf of the applicants, that:

“First to third Applicants' new address for service is 5 Lomagundi Road, Harare, upon which the letter of lapse was served.”…,.

On 14 July 2016, the respondent's legal practitioners wrote to the applicants' legal practitioners noting that their appeal had been dismissed and demanding payment in terms of the judgment by close of business on 19 July 2016 failing which they would proceed to execute the judgment without further notice. The letter addressed to the fourth applicant's legal practitioners was signed by the latter in acknowledgement of receipt. The letter to the first to third applicants was not acknowledged. The respondents aver that upon enquiry with the Law Society of Zimbabwe as to the whereabouts of the applicants' legal practitioners, they were furnished with the address from which the legal practitioners had moved.

On 22 July 2016, the applicants filed an application 'for REINSTATEMENT OF APPEAL AND EXTENSION OF TIME WITHIN WHICH THE APPEAL SHOULD BE HEARD IN TERMS OF RULE 31 OF THE SUPREME COURT RULES AS READ WITH PARAGRAPH 5 OF PRACTICE DIRECTIVE 3/13.'

That application was struck off the roll with costs on 14 February 2017 by GUVAVA JA who heard it.

The applicants aver that it was struck off because neither Rule 31 nor Practice Directive 3 of 2013 provides for such an application. In that application, the applicants blamed the Registrar for making no effort to ascertain the new address of the applicants' legal practitioners.

The present application was filed on 17 February 2017.

It is, in essence, the same application filed before GUVAVA JA save that the citation of the Rule, in terms of which the application is brought, has been omitted. It is entitled: APPLICATION FOR REINSTATEMENT OF APPEAL AND EXTENSION OF TIME WITHIN WHICH TO APPEAL.

In the draft order, the applicants seek the following order:

“1. The appeal under S-33-16 be and is hereby reinstated.

2. The Registrar shall determined (sic) the costs of the record and ensure same is served on all the Applicants' address for service.

3. Respondent shall pay costs of suit.”

At the hearing, the point was taken, in limine, by the respondent, that the application is a contradiction in terms in that a prayer for reinstatement suggests that an appeal was previously noted while an application for extension of time suggests that no (or no valid) appeal has previously been noted.

The applicants' case was that the appeal had lapsed for non-payment of the costs of the record by reason of the provisions of Rule 34(5) which read as follows:

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

The confusion may have stemmed from the use, in the Rule itself, of the words “lapsed unless.”

While the term 'lapse' would suggest the appeal was “terminated, voided, (or) expired” upon failure to comply with Rule 34(1) with the result that there is no appeal filed, the two words, read together, suggest that lapsing is prevented by the relief granted by the judge. If the correct interpretation is that the appeal shall lapse upon failure to comply with the requirements of Rule 34(1) but a judge may reinstate it, the application for reinstatement would, on the face of it, be procedurally proper in the circumstances but the question remains as to the effect of the lapsing. If the effect is to void or terminate or bring an end to the appeal, then the relief to be sought should be an application for an extension of time within which to appeal. This is because an appeal which has been voided or terminated or which has expired cannot be reinstated since there is no appeal pending and one can only reinstate something which exists. On the other hand, if the lapsing is interpreted to mean that the appeal merely fell into abeyance then it may be reactivated by an order of reinstatement. It is to be noted that the Rule does not speak of reinstatement. It speaks of relief.

Another difficulty presented by the wording of the Rule is this. When does the lapsing take place?

The words 'lapsed unless' appear to convey the meaning that it is the refusal by the Judge to grant relief which gives effect to the lapse and that for as long as there is scope for an application for relief the lapse will not take effect. If that is the correct interpretation, then again an application for reinstatement would be appropriate.

In view of the above, I am not inclined to hold that the application is a contradiction in terms. Accordingly, the point in limine fails.

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

At law, there cannot be a determination of an appeal without a hearing.

HH36-15 : LEE WAVERLY JOHN vs PRINCIPAL IMMIGRATION OFFICER and CO-MINISTERS OF HOME AFFAIRS
Ruled By: MUSAKWA J

This is an application to strike out the appeal noted by the respondents in case number 'CIV 'A'503/10 for being void. The first respondent previously declared the applicant a prohibited person in terms of section 21 as read with section 22(1) of the Immigration Act [Chapter 4:02]. The applicant lodged an appeal with the Magistrates ...

This is an application to strike out the appeal noted by the respondents in case number 'CIV 'A'503/10 for being void.

The first respondent previously declared the applicant a prohibited person in terms of section 21 as read with section 22(1) of the Immigration Act [Chapter 4:02]. The applicant lodged an appeal with the Magistrates Court. The appeal was upheld on 23 June 2010. It is against the decision of the Magistrates Court that the first respondent noted an appeal with this court.

The grounds of appeal in the Notice in contention are as follows:-

“1. The learned Magistrate erred in law in finding that the Respondent's status as a prohibited person be set aside and that his deportation be declared null and void.

2. The learned Magistrate erred in law in finding that Respondent had acquired domicile and was therefore protected from being declared a prohibited person in terms of section 14(1) of the Immigration Act [Chapter 4:02].”

In seeking to have the above-cited Notice of Appeal struck off, the applicant contends that there is no provision to appeal against the decision of the Magistrates Court when one has regard to section 21(3) of the Immigration Act [Chapter 4:02]. It is also contended that the respondents should have sought a referral of the issue relating to domicile to the Supreme Court….,.

In an opposing affidavit deposed to by Prosper Kambarami, it is contended that the High Court has jurisdiction to hear the appeal. It is further contended that the Magistrates Court may, on its own accord, refer a question of law for determination by the Supreme Court….,.

In support of this application, counsel for the applicant submitted that they sought the striking off of the Notice of Appeal because the appeal process is taking too long. This has created uncertainty on the part of the applicant as he has to plan his life. Counsel for the applicant also submitted that the appeal is defective as no security for costs was furnished.

On the other hand, counsel for the respondents did not make submissions. She chose to abide by the heads of argument filed of record.

Section 21(1), (2) and (3) of the Immigration Act [Chapter 4:02] reads as follows:-

“(1) Subject to subsection (2), subsection (2) of section eighteen and section twenty-two, any person who receives notice in writing in terms of paragraph (a) of subsection (4) of section eight that leave to enter Zimbabwe has been refused or that he is a prohibited person, may appeal to the nearest Magistrates Court against the refusal of leave to enter Zimbabwe or the allegation that he is a prohibited person, as the case may be.

(2) An appeal in terms of subsection (1) shall be noted –

(a) Where the person is in Zimbabwe when he receives the notice referred to in that subsection, not later than three days, Saturdays, Sundays and public holidays excluded, after receiving such notice;

(b) Where the person is outside Zimbabwe when he receives the notice referred to in that subsection, not later than ten days, Saturdays, Sundays and public holidays excluded, after receiving such notice.

(3) A Magistrates Court –

(a) May, of its own motion, and shall, at the request of the appellant or of an immigration officer, reserve for the decision of the Supreme Court any question of law which arises upon an appeal heard before such Magistrates Court; and

(b) Shall state such question in the form of a special case for the opinion of the Supreme Court and transmit such special case to the Registrar thereof; and for the purpose of paragraph (a) a question of domicile shall be treated as a question of law.”

The contention by the applicant is that there is no right of appeal against the decision of the Magistrates Court following a determination made in terms of section 21 of the Immigration Act [Chapter 4:02]. As can be noted from subsection(s) (3), the appellant or an Immigration Officer may state a case arising from such appeal for determination by the Supreme Court.

In support of the contention that no appeal lies against the decision of the Magistrates Court, counsel for the appellant cited the Supreme Court decision in Bheka v Disablement Benefits Board 1994 (1) ZLR 353 (S). In that case, the Supreme Court had to decide on the import of a provision in the State Services (Disability Benefits) Act [Cap 16:05] which is almost similar to that in section 21(3) of the Immigration Act [Chapter 4:02]. In that regard, section 13(4) thereof states that:-

“Where, in the opinion of the Appeal Board, any matter to be determined by it rests wholly or partly on a point of law, the Appeal Board may, on application by the appellant or the Board, state a case for the determination of such question of law by the Supreme Court.”

In interpreting the provision in the State Services (Disability Benefits) Act [Chapter 16:05], GUBBAY CJ had this to say…,:-

“This provision envisages that where a matter brought before the Appeal Board concerns a point of law, the Supreme Court becomes involved in an advisory capacity if a case is stated to it. The application to state a case must be made to the Appeal Board by either the appellant or the Board. Once made, the Appeal Board is vested with a discretion whether to grant or refuse the application. Obviously it will not state a case if of the opinion that the point of law is of a trivial nature or one directly covered by judicial authority. Nor will it state a case mero motu. What is plain is that the application to the Appeal Board must be made during the hearing of the matter and precede its determination of the appeal. It cannot be moved once the appeal has been upheld or dismissed. Upon referral, the Supreme Court sits as a court of first instance and does not exercise appellate jurisdiction. See McTaggart v Disabled Benefits Board 1975 (1) RLR 53 (A). After the stated question of law has been answered, the hearing before the Appeal Board is resumed. It is that body which must then render its decision on the appeal before it.

No such application was made to the Appeal Board, either on behalf of the appellant or the Board.

Consequently access to this court under s 13(4) was lost.

Mr Mutsonziwa, who appeared for the so-called appellant, correctly conceded that the decision of the Appeal Board was final and that the present appeal had been improperly enrolled. He sought to argue, however, that in the exercise of this court's inherent jurisdiction it should set aside the decision of the Appeal Board and remit the appeal to it, thereby enabling the appellant to present the requisite application under s13(4).”

Applying the reasoning in Bheka v Disablement Benefits Board 1994 (1) ZLR 353 (S), it follows that, if the respondents had a point of law that required determination, they ought to have stated their case through the Immigration Officer. This, they should have done at the time of hearing of the appeal before the Magistrates Court. They cannot seek to do so by way of appeal which they have noted.Their failure to exercise such an option means they forfeited that right and cannot do so by way of appeal.

It therefore means that the appeal noted is a nullity and should be struck out….,.

In the result, it is ordered as follows:

1. The Notice of Appeal filed by the respondents in Civ 'A'503/10 be and is hereby struck out.

2. The respondents shall pay the applicant's costs.

HB88-16 : SOLOMON MHENYU vs RUTH MLAUDZI
Ruled By: MATHONSI J

The applicant was ordered by the Magistrates Court sitting at Beitbridge to pay the respondent a sum of $9,800= by a judgment delivered on 28 January 2013. He lodged an appeal to this court on 1 February 2013. By letter dated 13 November 2015, which he says was received by his legal practitioners “sometime ...

SC61-18 : ILASHA MINING (PRIVATE) LIMITED vs YATAKALA TRADING (PRIVATE) LIMITED t/a VIKING HARDWARE DISTRIBUTORS
Ruled By: BHUNU JA

This is an application for re-instatement of the appellant's appeal deemed dismissed in terms of Rule 44(1) of the Supreme Court Rules, 1964 for failure to file heads of argument on time. The applicant was originally represented by Messrs Z Ncube Legal Practitioners in the main appeal but is now represented by Messrs Job Sibanda and Associates. The changeover ...

This is an application for re-instatement of the appellant's appeal deemed dismissed in terms of Rule 44(1) of the Supreme Court Rules, 1964 for failure to file heads of argument on time.

The applicant was originally represented by Messrs Z Ncube Legal Practitioners in the main appeal but is now represented by Messrs Job Sibanda and Associates. The changeover of legal practitioners was done with scant regard to the Rules of Court. There was neither a Notice of Renunciation of Agency by the erstwhile legal practitioners nor a Notice of Assumption of Agency by the current legal practitioners, Job Sibanda and Associates. The only reference to the change of legal practitioners is to be found in the applicant's founding affidavit.

Both the Supreme Court Rules, 1964 and the current Supreme Court Rules, S.I. 84 of 2018 provide for renunciations of agency in Rules 12A and 14 respectively using identical language. The giving of notice of renunciation of agency is a vital legal requirement meant to regulate the representation of parties in an orderly manner such that the court, and everyone concerned, know which legal practitioner they are dealing with at every stage of the case.

Although the Rules refer to an appeal and is silent on applications, it is however pertinent to note that in such applications, they remain a component part of the original appeal, hence the need to adhere to the Rules. This enables the court, and the other party, to know exactly which legal practitioner they are dealing with at every stage of the case to avoid process and communication straying to the erstwhile legal practitioner with no interest in the application.

The procedure of giving notice for renunciation and assumption of agency is also vital in that it avoids legal practitioners scrambling over a client. While a litigant is entitled to a choice of a legal practitioner at any stage of the proceedings - that choice must be known to avoid confusion. The importance of transparency in this regard was articulated by GWAUNZA JA…., in Masiwa v Masiwa SC46-06 when she said:

“The court, going by its own Rules, normally accepts the notices of renunciation and assumption of agency as indications of a litigant's choice of legal practitioner where a change happens in the process of prosecuting his/her case. This is for convenience of the court and allows for order and efficiency in the prosecution of legal proceedings.”

Already, it appears that there is now conflict between the applicant and its then legal practitioners who refused to cooperate when asked to file a supporting affidavit in this application. The refusal of the applicant's erstwhile legal practitioners to shed light on why the heads of argument were not filed on time has seriously handicapped the applicant's application. The applicant, at paragraph 41 of the founding affidavit, deposed to by its Director, Delma Luppepe, had this to say:

“Unfortunately, Mr Ncube has flatly told the applicant's legal practitioners that he is not prepared to depose to an affidavit, and has, instead, referred the applicant's legal practitioners to Mr Uriri.”

Despite the applicant's legal practitioners being referred to Mr Uriri for an explanation they have taken the gamble of approaching this Court without his explanation for delay. The net result is that the applicant is unable to proffer a reasonable explanation for the inordinate delay and disdain of the Rules. The best it could do, in the circumstances, was to blame its erstwhile legal practitioners without affording them a chance to be heard. No reason has been proffered as to why they shied away from approaching Mr Uriri for an explanation.

Apart from the above irregularity, the application is a parody of more serious fatal procedural irregularities, chief among them being failure to provide a copy of the impugned judgment. It is an exercise in futility for a litigant to attack a judgment of a lower court in a higher court without availing the court a quo's judgment for scrutiny by the higher court to assess the veracity of the applicant's criticism of the judgment. The applicant's failure to avail the impugned judgment before me renders its criticism of the judgment hollow and nugatory.

That finding of fact and law renders the applicant's submissions on its prospects of success valueless and not worth the paper upon which they are written as no weight can be placed on the submissions in the absence of the impugned judgment. ZIYAMBI JA echoed the same sentiments in MM Pretorious (Pvt) Ltd & Anor v Chamunorwa Charles Mutyambizi SC39-12 when she said:

“As to the prospects of success on appeal, the applicants make no mention thereof in their affidavits and no determination can be made on this issue particularly as the judgment appealed against does not form part of the record. It follows that the applicants have not established that there are any prospects of success.”

Failure to attach the impugned judgment was therefore a fatal grave error.

The applicant, at paragraph 41 of its founding affidavit, avows that the notice and grounds of appeal filed by its erstwhile legal practitioners are fatally defective. The irony is that it now wants to reinstate the fatally defective notice and grounds of appeal. At paragraph 42-43 of its founding affidavit its deponent, Delma Luppepe, says:

“42. Applicant's current legal practitioners, on studying the file, also confirmed their view that the notice and grounds of appeal filed in SC99/18 are fatally defective.

43. For this reason, Applicant is applying for the reinstatement of the appeal in SC99/18 so that that appeal can properly be withdrawn and an Application for Condonation and Extension of time for Noting a fresh appeal be filed.”

It is trite and a matter of elementary law that a fatally defective application is a nullity. It is dead and non-existent; it cannot be resuscitated or resurrected as it is beyond redemption. In other words, there is no cure or remedy for a fatally defective application which is a nullity in the eyes of the law. In the words of LORD DENNING, in the famous case of Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169 (PC)…,:

“If an act is void, then it is, in law, a nullity. It is not only bad but incurably bad. There is no need for an order of the court, to be set aside. It is automatically null and void without more ado, although it is sometimes convenient to have a court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

What this means is that since this application is founded on an application which is fatally defective, it undoubtedly follows that an application founded on it is also incurably bad and a nullity at law. A valid application cannot be founded on a void application which is a nullity at law. If the fatally defective original application be the mother of the current application, it follows that its offspring is equally defective and a nullity at law.

While the applicant's current legal practitioners are bent on apportioning blame to their colleagues they do not appear to have done better themselves. The applicant's application remains in a mess and beyond redemption.

There being no valid application before me, the application cannot succeed. It is accordingly ordered that:

1. The application be and is hereby struck off the roll with costs.

SC63-18 : SERGEANT MHANDE 04737T and CONSTABLE MHAKA 081215B vs CHAIRMAN OF THE POLICE SERVICE COMMISSION and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS
Ruled By: BERE JA

This is a chamber application for re-instatement of appeal where the application seeks an order couched in the following terms:- “It is ordered that - 1. The application for reinstatement of appeal be and is hereby granted. 2. The applicants' appeal in SC753/17 be and is hereby reinstated. 3. The applicants' heads of argument in SC752/17, attached to this application, shall ...

This is a chamber application for re-instatement of appeal where the application seeks an order couched in the following terms:-

“It is ordered that -

1. The application for reinstatement of appeal be and is hereby granted.

2. The applicants' appeal in SC753/17 be and is hereby reinstated.

3. The applicants' heads of argument in SC752/17, attached to this application, shall be deemed to have been filed as at the date of this order.

4. The costs shall be in the cause.”

The facts giving rise to this application, which can be gleaned from the filed papers, are as follows:-

Under case number SC753/17, the applicants made a similar application for reinstatement of their appeal before my brother BHUNU JA, who, after considering the documents filed and hearing counsel, granted the order by consent with a caveat that the applicants were supposed to file their heads of argument within ten (10) days from the date of the order.

For some reason, the order by BHUNU JA was not complied with. I suppose this is what has now necessitated the filing of this current application.

In their application for re-instatement of the appeal, the applicants, through their counsel, allege that the letter calling on them to file heads never got to the attention of the lawyer due to misfiling in the lawyer's offices. This was attributed to the negligence of their secretary.

In support of the confusion in their offices, the deponent attached an affidavit from the secretary concerned which details the alleged mix up. The secretary alleged that she received the letter, calling on the applicants to file their heads of argument on 20 June 2018, and inadvertently filed the letter in a wrong file. She further alleged that she only discovered the mix up, or the mis-filing of the letter, on 24 August 2018, necessitating the filing of this chamber application on 10 September 2018, exactly 17 calendar days after the alleged anomaly.

The respondents have opposed this application.

The respondents expressed reservations on the bona fides of the explanation given by the applicants for their failure to comply with BHUNU JA's order which had been granted by consent. More importantly, the respondents argued that the applicants had not sought condonation for their non-compliance with the court order and that, therefore, the application for reinstatement was improperly before the court.

Finally, the respondents argued that the applicants desired appeal had no prospects of success.

CONDONATION AND EXTENSION OF TIME

It is the accepted position of the law that an applicant who has failed to comply with a given court order or infringed the Rules of the Court must seek to be condoned, or pardoned, for non-compliance, first, before applying for re-instatement of their case.

In the case of Zimslate Quartize (Pvt) Ltd & Others v Central African Building Society SC34-17, ZIYAMBI JA, when dealing deal with an almost similar matter, remarked as follows:-

“An applicant who has infringed the rules of the court before which he appears must apply for condonation, and, in that application, explain the reasons for the infraction. He must take the court into his confidence and give an honest account of his default in order to enable the court to arrive at a decision as to whether to grant the indulgence sought. An applicant who takes the attitude that indulgence, including that of condonation, are there for the asking does himself a disservice as he takes the risk of having his application dismissed.”

It is clear that in this application, the applicants have not made any attempt to seek condonation. This does not appear in the founding affidavit or in the draft order filed. There is no indication at all why the application is being brought back to court almost four months after they failed to comply with an earlier order for re-instatement of the appeal. The situation is further compounded by the failure by the applicants to explain the cause of the delay seeking an appropriate remedy - 17 days after they discovered the anomaly.

As noted by MAKARAU JA in Bonnyview Estates (Pvt) Ltd v Zimbabwe Platinum Mines (Pvt) Ltd & The Minister of Lands & Rural Resettlement, Judgment No. SC58-18;

“Condonation is an indulgence granted when the court is satisfied that there is good and sufficient cause for condoning the non-compliance with the Rules.”

I might add that it is not for the court to infer or speculate about the existence of condonation when no request has been made for it. It must be applied for before reinstatement can be sought. It is, in my view, jumping the gun to seek re-instatement of an appeal before first seeking condonation and extension of time in situations where one has clearly infringed the court rules or an order of court as in this case.

MATERIAL NON-DISCLOSURE

There is one other aspect of this case which has caught my attention. There is no attempt by the applicants to advert to BHUNU JA's earlier order in this application. There is no appetite by the applicants, through their founding affidavit, to openly disclose that this application is a second similar application which is being brought to court. That deliberate attempt to withhold information does not project the applicants in good light. Our courts are not keen to grant favorable orders to litigants who withhold vital information to it. NDOU J made this important observation in the case of Anabus Services (Pvt) Ltd v Minister of Health and Others HB88-03 when he remarked as follows:-

“The courts should, in my view, always frown on an order whether ex parte or not sought on incomplete information. It should discourage non-disclosure, mala fides, or dishonesty.”

The order by BHUNU JA, and its relevance to these proceedings, only came to the attention of the court through the notice of opposition filed by the respondents. That non-disclosure did not enhance the applicants' application.

DISPOSITION

Under normal circumstances, if this application had been properly before the court, I would have been inclined to consider prospects of success.

However, given my position that the absence of an application for condonation and extension of time to seek reinstatement must be precedent to an application for re-instatement of this appeal, I consider the application as fatally defective.

I accordingly order that the matter be struck off. It is thus ordered:-

“That the matter be and is hereby struck off the roll with costs.”

SC72-18 : MEIKLES LIMITED vs WIDEFREE INVESTMENTS (PRIVATE) LIMITED T/A CORE SOLUTIONS
Ruled By: BERE JA

After perusing the papers and hearing counsel, on 27 July 2018, I granted the following order; It is ordered that: “The application for condonation and reinstatement of the appeal, in terms of Rule 70(2) of the Supreme Court Rules, 2018 be and is hereby dismissed with costs.” I have been requested to provide the reasons for my order. Here are they. The applicant ...

After perusing the papers and hearing counsel, on 27 July 2018, I granted the following order;

It is ordered that:

“The application for condonation and reinstatement of the appeal, in terms of Rule 70(2) of the Supreme Court Rules, 2018 be and is hereby dismissed with costs.”

I have been requested to provide the reasons for my order. Here are they.

The applicant seeks the following order in this case:

“It is ordered that:

1. The application for condonation for non-compliance with Rule12(3) of the Rules of the Supreme Court, 2018 be and is hereby granted;

2. The application for reinstatement of the notice of appeal filed under case number SC433/18 be and is hereby granted;

3. The notice of appeal shall be deemed to have been reinstated on the date of this order;

4. Costs of suit.”

THE BACKGROUND

The applicant and the respondent entered into a contract wherein the respondent provided debt collection services on behalf of the applicant. A dispute over payment arose after the respondent had provided the services. To resolve the impasse between the applicant and the respondent, and, as per their contract, their dispute was placed before an arbitrator. The arbitration proceedings were protracted owing to numerous applications by the applicant to the High Court, the majority of which were never prosecuted to finality. However, despite all the challenges faced, the arbitrator eventually made a determination in favour of the respondent which proceeded to successfully apply to the High Court for the registration of the award.

The applicant responded by filing an appeal against the judgment of the High Court on 6 June 2018. The applicant failed to comply with Rule 12(3) of the Supreme Court Rules, 2018, in that it failed to furnish the Registrar with a receipt confirming payment for the Sheriff's security for costs of service of all notices of set down. The non-compliance with Rule 12(3) led to the applicant's appeal being deemed to have been abandoned leading to the applicant's filing this application for the condonation and re-instatement of the appeal.

THE APPLICANT'S CASE

In its founding affidavit, the applicant attributed its failure to comply with Rule 12(3) of the Supreme Court Rules, 2018 to mis-communication between the legal practitioner handling the appeal and his clerk. The applicant alleged that the result of the confusion led to the non-filing of the receipt for the Sheriff's costs which issue was subsequently rectified.

The applicant further reiterated, in its application, that it had prospects of success in that the court a quo had improperly registered the arbitral ward in that the court had proceeded to register same despite an application for review having been filed to challenge it.

The applicant also criticized the court a quo for failing to provide reasons for the registration of the award.

THE RESPONDENT'S CASE

In its notice of opposition, the respondent opposed the applicant's application on the following:

It criticized the applicant for its lackadaisical approach in failing to comply with Rule 12(3) of the Supreme Court Rules, 2018 and opined that the applicant had not given a reasonable explanation to support its position. The respondent further attacked the applicant for having employed all the tricks in the book in an effort to obstruct the smooth conclusion of the arbitration proceedings and argued that the application for condonation was actually a furtherance of the same delaying strategy. Finally, the respondent argued that the attack on the court a quo's alleged failure to provide reasons for its decision to register the arbitral award was most unfair and baseless since the court had in fact given such reasons.

All in all, the respondent expressed a very firm position that the filed appeal had no prospects of success and that it was solely filed to buy time.

THE LEGAL POSITION

The law relating to an application for reinstatement of appeal was underscored by this Court in the case of Champion Constructors v Mkandla & Anor SC18-07, where the court outlined the requirements to be considered as follows:

“(i) The extent of the delay;

(ii) The reasonableness of the explanation proffers for the delay; and

(iii) The prospects of success on appeal.”

See also Susan Chipo Vera v Mitsuli and Company Limited SC32-04.

I now propose to deal with these requirements in detail taking into account the circumstances of this case.

THE EXTENT OF THE DELAY

I accept that the applicant ought to have filed the receipt with the Registrar for security for costs by 15 June 2018 and that the applicant's attention was drawn to this on 25 June 2018. As soon as the applicant was notified of the abandonment of the appeal, the applicant immediately filed this application.

I consider the delay not to be inordinate.

THE REASONABLENESS OF THE EXPLANATION FOR THE DELAY

The reason given for non-compliance with Rule 12(3) of the Supreme Court Rules, 2018 was the alleged mis-communication between the legal practitioner and his clerk.

While the explanation might be genuine, it tends to lean on hearsay evidence given the absence of the clerk's supporting affidavit confirming what is now being attributed to her. This position was re-stated in the case of Mafo v Ncube & Anor HB04-16 where the court held that in such situations an affidavit from the person on whom blame is placed must be filed to give credence to the story told in respect of that person. In the absence of such an affidavit, the explanation remains highly improbable for it is easier for one to mess up and then look for a fictitious scapegoat.

PROSPECTS OF SUCCESS ON APPEAL

I consider this to be the greatest hurdle the applicant has to deal with in an application of this nature. To earn the sympathy or indulgence of the court the applicant must demonstrate that the desired appeal has prospects of success.

See Songore v Olivine Industries (Pvt) Ltd1988 (2) ZLR 210 (S).

The applicant alleged a litany of omissions on the part of the court a quo in its decision to register the arbitral award in the High Court in order to pave way for execution.

It was stated that the court a quo did not furnish reasons for its decision to register the award.

In my view, this averment by the applicant is simply not true and was raised in a desperate effort to cast aspersions on the court a quo. The court a quo gave a fairly detailed and reasoned judgement explaining why it registered the arbitral award in favour of the respondent. The court considered the issues now being raised by the applicant and made specific findings of fact against the applicant. In its judgment, the court a quo dealt, at length, with the numerous attempts made by the applicant in its stout effort to delay the smooth conclusion of the arbitral proceedings by mounting one application after the other - a large number of which were never prosecuted to finality. On page 14 of the judgment, the court concluded as follows:

“In conclusion, refusing to recognize the award in the present case will be allowing the respondent to take advantage of the situation it deliberately engineered. It deliberately chose not to proceed with the matter despite being given an opportunity to present its case. There was no breach of the rules of natural justice, and, as such, the award is not contrary to public policy. The award is binding on the parties.”…,.

What is most significant in the judgment of the court a quo is the undeniable fact that it made findings of fact which this court can only interfere with if it is demonstrated that such findings are coloured by irrationality or unreasonableness. This position of our law has stood the test of time. KORSAH JA put the test as follows, in the case of Hama v National Railways of Zimbabwe1996 (1) ZLR 664…,;

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

See also the case of ZB Bank v Maria Masunda SC48-16…, per ZIYAMBI JA, and Barnos & Anor v Chimphonda 1999 (1) ZLR 58 (S)…, per GUBBAY CJ.

A proper reading of the respondent's notice of opposition, and, in particular, paragraph 5 thereof, demonstrates the applicant's well-calculated attempt to tirelessly work towards the obstruction of the smooth conclusion of the arbitral proceedings. The court a quo properly dealt with these manoeuvres in its judgment and it is not possible for this Court to interfere with such findings of fact.

In my well-considered view, deriving from a global perception of this case, it would be a serious miscarriage of justice if the applicant were to be granted condonation for the re-instatement of its appeal which is clearly grounded in hopelessness.

It was for these reasons that I gave the order of 27 July 2018 in chambers.

SC70-20 : CITY OF HARARE vs AMOS CHIKWANDA
Ruled By: BHUNU JA

This is an application for reinstatement of an appeal in terms of Rule 34(5) of the Supreme Court Rules, 1964.

The brief facts giving rise to the application are that the applicant employed the respondent as its clerical officer.

Sometime in October 2011, the respondent received and receipted a total amount of US$34,247 in the course of duty. The money went missing and the respondent was charged with failure to remit the receipted money for banking. The prime suspect for the missing money was the respondent's supervisor who also went missing soon after the money disappeared.

Consequently, the Disciplinary Committee charged and dismissed the respondent from employment in connection with the missing money. The Committee found that the respondent was at fault in that there was no evidence that he handed over the missing money to his supervisor, Mr Manyere, because the supervisor had not signed acknowledging receipt of the money.

As the respondent was dissatisfied with his dismissal from employment, the matter was subsequently referred to the arbitrator. The arbitrator ruled in favour of the appellant and confirmed the dismissal.

Aggrieved by the arbitrator's award, the respondent successfully appealed to the Labour Court. In an order dated 25 October 2013 it determined that the respondent's dismissal was unlawful and proceeded to make the following order:

“1. The appeal be and is hereby upheld.

2. The respondent is ordered to reinstate the appellant without any loss of salary or benefits from the date of unlawful dismissal.

If re-instatement is no longer an option, the parties may agree on the quantum of damages in lieu of reinstatement. In the event that parties fail to agree on the amount of damages, either party can approach this Court for quantification of damages.

There is no order as to costs.”

Dissatisfied by the above order, the applicant sought, and was granted, leave to appeal to this Court on 9 July 2014.

By the time the applicant obtained leave to appeal the time within which it was obliged to file its appeal had already expired, thereby necessitating an application for condonation of late noting of appeal. The application for condonation was granted by this Court on 18 June 2015. The order reads:

“IT IS ORDERED THAT:

1. The condonation of late noting of appeal and extension of time within which to appeal be and is hereby granted.

2. The notice of appeal dated 12 December 2014 shall be deemed to have been filed on the date of this order.

3. There shall be no order as to costs.”

Following the granting of the above order, on 10 August 2017, the Registrar of the Labour Court issued a notice for the applicant to pay US$120 within five (5) days of receipt of the notification letter in terms of Rule 34(1); being costs for the preparation of the record of proceedings. The notice was served on the applicant on 16 August 2017.

The applicant defaulted in making the required payment within the prescribed five (5) days' period; whereupon, the Registrar wrote to the applicant's legal practitioners, on 23 November, advising that the appeal was deemed to have lapsed. The letter reads:

“RE: CITY OF HARARE V CHIKANDA

Reference is made to the notice of appeal you filed on 27 March 2017.

It is noted that you did not make any arrangements for the preparation of the record within the time specified in sub rule (1) of Rule 34 of the Supreme Court Rules, 1964.

In terms of sub-rule (5) of Rule 34 of the aforementioned rule, the appeal is deemed to have lapsed.”

In terms of Rule 34(5), the applicant can only be granted relief by a judge of this Court upon proof of good cause for non-compliance.

The sole issue for determination on the merits is whether or not the applicant has shown good cause for the admitted disdain of the Rules....,.

Turning to the merits of the application, the applicant has, in effect, proffered one reason for its non-compliance with Rule 34(5). Its reason for failure to pay for the preparation of the record of proceedings is that, being a large organisation, it is overwhelmed with cases of litigation such that omissions and errors of this kind are bound to happen.

In his founding affidavit, Hosia Chisango, the applicant's Acting Town Clerk, deposed, at paragraph 18, that the notification for payment was received on time and forwarded to the Finance department. Payment was however not done, in error, owing to overwhelming litigation workload. At paragraph 19 this is what he had to say:

“19. I have discovered, after enquiring from the relevant official, that because of the numerous similar payments that were being made around the same time this payment was mistakenly omitted. It was only after the notice dismissing the appeal was served that verifications with the records were done and it became apparent that this payment, and a few others, had been omitted.

20. I must hasten to state that, because of the size of the applicant organisation, it is currently struggling to cope with litigation costs. The applicant, by virtue of its size, is naturally involved in a lot of litigation. This means that, on a daily basis, either we are paying costs for the serving of notices of set down or we are paying costs to issue court process, or we are paying costs of preparation of records or we are paying Sheriff's costs of serving process. In the end, some payments are omitted.

21. Quite, unfortunately, the time frames that are required for us to be paying these litigation costs are too short and very often we are struggling to meet them.”…,.

The long and short of it all is that the applicant is saying, owing to its huge size and enormous amount of litigation it is unable to comply with the Rules of Court. Paragraphs 19 to 21 of its founding affidavit however tell a totally different story. They disclose a woeful lack of diligence and disgraceful dereliction of duty on the part of the respondent, its officials, and legal practitioners.

It is clear, from the founding affidavit, that after lodging the claim for payment with the finance department no one made a follow up to check whether payment had been effected within the prescribed period. No follow up was made despite knowledge that the payment could be omitted in error. Blaming the volume of work is just a red herring meant to cast wool over the judge's eyes.

Both the applicant's officials, and its lawyers, were reckless in their handling of the appeal. They cannot be allowed to hide behind the volume of work as if they are the only big organisation involved in enormous amounts of litigation.

What immediately comes to mind is the Attorney General's office that has to handle litigation for the entire Government and other City Councils that operate more or less in the same manner as the applicant.

The averment made by the Acting Town Clerk, to the effect that the appellant was hampered in its endeavour to effect payment timeously by an overwhelming amount of litigation, is uncorroborated hearsay not supported by the officers and the legal practitioner concerned.

No weight can therefore be given to the Acting Town Clerk's averments in this respect in the absence of any supporting affidavits from the officers concerned.

For that reason, the applicant's claim, that the failure to pay was not deliberate, sounds hollow and unconvincing because recklessness is tantamount to intention. See Rosenthal v Marks 1944 TPD 172…, where the court said:

“Gross negligence (culpa lata crussa) connotes recklessness, an entire failure to give consideration to the consequences of his action, a total disregard of duty.”

The appellant, and its legal practitioners' maltreatment of the appeal fits the respondent's averment that “the applicant has not taken diligent and determined steps to prosecute the appeal.”

This matter dates back to 2011. Since then, the proceedings have been a charade of deleteriousness and applications for indulgency from the court by the applicant. A perusal of the record of proceedings shows that:

1. On 5 March 2014, the applicant was granted a consent order condoning late filing of an application for leave to appeal to the Supreme Court.

2. Having been granted leave to appeal, the applicant again defaulted in lodging the appeal with this Court timeously.

3. The applicant then filed a defective application for condonation of late noting of appeal and extension of time to appeal. The matter was struck off the roll.

4. The applicant then lodged another application for condonation and extension of time which was granted on January 2015.

5. There is another order of this Court showing that on 18 June 2015 this Court again granted the appellant another order for condonation of late noting of appeal and extension of time within which to appeal.

The appellant's deplorable prosecution of this appeal gives the court the impression that the appeal has been lodged for the sole purpose of buying time. This notion is compounded by the fact that the court a quo made an unassailable factual finding that the applicant was not to blame for the theft of the money. At p6 of the cyclostyled judgment, this is what the learned judge had to say:

“I believe the probabilities of this case are that the appellant (Amos Chikwanha) did his part; money was handed over to Manyere. Whether it was deposited in the safe or not is another issue. Appellant did his part. There was no way he could have forced his superior to sign.”

That finding of fact is incontrovertible as it is consistent with undisputed evidence that after being handed over the cash by the respondent, Manyere disappeared together with the money. After his disappearance with the money, the respondent was allowed to work for seven months without charge. Considering the well-known dictum in Hama v National Railways of Zimbabwe 1996 (1) ZLR 664, the appellant's prospects of success on appeal are virtually non-existent, considering that there is nothing irrational about the court a quo's findings of fact.

For the foregoing reasons, the application cannot succeed. Costs follow the result.

It is accordingly ordered that the application for reinstatement of appeal be and is hereby dismissed with costs.

SC27-18 : GETRUDE MUTASA and DIDYMUS MUTASA vs THE REGISTRAR OF SUPREME COURT and NYAKUTOMBWA MUGABE LEGAL COUNSEL and SHERIFF OF ZIMBABWE
Ruled By: GUVAVA JA

This is a chamber application made in terms of Rule 12 of the Supreme Court Rules, 1964.

The brief background to this application may be summarised as follows:

The applicants are husband and wife. They approached the court a quo, by way of urgent chamber application, seeking a stay of execution and return of goods which had been removed pursuant to a writ of execution following a default judgment which was granted in favour of the second respondent.

The default judgment related to a claim, by the second respondent, who was the legal practitioner for the second applicant, claiming unpaid legal fees for services rendered to the second applicant and his political colleagues.

On 2 March 2017, the High Court granted a provisional order for the return of all the goods that had been attached and removed in execution. The court also ordered the first and second applicants to refrain from selling the goods until the dispute between the parties had been resolved.

On 3 March 2017 the second respondent filed an appeal against the judgment of the court a quo.

The applicants contend that the legal practitioners should not have successfully filed the appeal without the leave of the court. It was their contention, that, as the order related to an interim order, the second respondent should have sought leave from the court a quo in compliance with section 43 of the High Court Act [Chapter 7:06].

They thus sought an order setting aside the decision of the Registrar accepting the Notice of Appeal and an order declaring the appeal that was before the Supreme Court a nullity.

The Registrar filed a report in terms of Rule 12 of the Supreme Court Rules, 1964 stating that they had accepted the Notice of Appeal as the order which had been granted was in the form of a mandatory interdict and thus did not require the leave of the court a quo.

The second respondent denied that they required leave to appeal from the court a quo.

He also argued that the matter was not properly before the court as the order sought could not be granted by a single judge in chambers. The second respondent also raised the point that the applicants were in fact seeking a declaratur and this could not be granted.

It is trite that when the Supreme Court is seized with an appeal, such an appeal cannot be struck off the roll by one Judge in chambers.

In the case of Blue Rangers Estates (Pvt) Ltd v Muduviri 2009 (1) ZLR 376 (SC), an applicant approached a single Supreme Court judge, in Chambers, seeking the relief that the matter be struck off the roll. The applicant therein alleged that the matter for which notice had been filed was interlocutory in nature and required leave to appeal in terms of section 43 of the High Court Act. It was counsel's contention that, without leave to appeal, nothing was pending before the court.

MALABA DCJ…, stated the following:

“I agree with Mr Mlotshwa that a single Judge of the Supreme Court sitting in chambers has no power derived from any provision of the relevant statutes, to make an order striking an appeal pending in the Supreme Court off the roll. The answer to the question whether a single Judge sitting in chambers has power to hear and determine an application for an order striking an appeal off the roll lies in the relevant provisions of the statute in terms of which the Supreme Court was created and the Rules regulating its proceedings. It is also necessary to take into account provisions of the enactments by which the right of access to the Supreme Court on appeal is given.”…,.

Counsel for the applicants submitted that the above cited case could be distinguished from the present matter as they were seeking an order that the Notice of Appeal be declared a nullity on the basis that the Registrar should not have accepted it in the first place. He sought to make the distinction that this was not an application for the striking off of an appeal which was on the Supreme Court roll, but for the setting aside of a decision of the Registrar who had improperly accept such Notice of Appeal.

In my view, this point brings to the fore the question of the role of the Registrar when accepting process.

The Registrar's office is established by section 169(4) of the Constitution. The provision provides:

“An Act of Parliament may provide for the conferring, by way of rules of court, upon a registrar of the Supreme Court, duly appointed thereto, of the jurisdiction and powers of the Supreme Court in civil cases in respect of —

(a) The making of orders in uncontested cases, other than orders affecting status or the custody or guardianship of children;

(b) Deciding preliminary or interlocutory matters, including applications for directions but not including matters affecting the liberty of the subject.”

Section 33 of the Supreme Court Act establishes the officers of the Registrar in compliance with the Constitution. It provides:

“(1) There shall be a registrar of the Supreme Court and such deputy registrars, assistant registrars and other officers of the Supreme Court as may be required, whose offices shall be public offices and shall form part of the Judicial Service.”

The role of the Registrar is set out by the authors HERBSTEIN and Van WINSEN, The Civil Practice of Superior Courts of South Africa, 3rd ed, Juta and Co Ltd, Cape Town..., as follows:

“The Registrar is an official of the court, responsible for the smooth functioning of the court and is charged with multifarious duties, which duties are administrative in nature.

For the purposes of clarity, these duties include but are not limited to the issue of process, recording, preserving and directing the flow of all documents filed by the litigants. The Registrar is also responsible for the setting down of cases and issuance of court orders. It is common cause that the Supreme Court is a court of record and the Registrar is the custodian of all court records. Case management, which includes maintaining records and scheduling hearings, is also the Registrar's prerogative.”

From the above, it is clear that the Registrar provides a full range of administrative and support services to the Judges by managing cases coming to court. However, he or she can also perform quasi-judicial functions - but only in limited circumstances that are prescribed by statute.

An examination of the Supreme Court Act and Rules clearly illustrates that it is not one of the functions of the Registrar to decline a Notice of Appeal which has been filed in time. Where a Notice of Appeal is defective, for whatever reason, it is for the court seized with the matter to make such a determination.

The Registrar cannot refuse to receive a Notice of Appeal on the basis that it is defective, in the sense that it does not comply with Rule 29 of the Supreme Court Rules. The Registrar may suggest to a party that their document is defective in order for them to make the necessary amendments and bring the document back for filing. However, because of the administrative nature of the Registrar's duties, if a party insists on filing its document as it is, after such direction has been offered, the Registrar is obliged to accept the document.

The rationale is that a Registrar does not have the power to prevent a litigant from filing their court process, if it is filed within the times prescribed in the Rules, as this falls outside the ambit of the Registrar's mandate.

This is not a situation that is peculiar to this jurisdiction only but is found in a number of jurisdictions. I have examined the practice in various jurisdictions and found that it is the same.

The Registrar of the Supreme Court of Canada exercises the following functions:

(i) Processing, recording, preserving and directing the flow of all documents filed by parties and recording all proceedings which take place during the life of a case.

(ii) Providing information to litigants, the media, and the public on the court's processes and activities and scheduling of cases.

(iii) Maintaining the court library and providing a full range of library and information services to judges, staff of the court, and legal researchers.

(iv) Publishing the Supreme Court reports.

(v) Providing administrative and operational support to the judges and court staff.

(vi) Providing protocol services to the judges.

In Nigeria, the duties of the Registrars are also administrative in nature. Through these functions they aide in quick dispensation of justice, and this includes but is not limited to the following:

(i) As the head of the registry, he ensures proper day to day administration of the court registry.

(ii) He co-ordinates the handling of all court processes e.g. issuance of hearing notices, warrant of arrest, summons.

(iii) He undertakes supervision of work of all staff deployed on litigation duties.

(iv) He makes arrangement for court sitting and give necessary assistance to the judge in the open court.

(v) He helps in the administration of Oath and Affirmation on witnesses appearing in court.

(vi) He maintains record books in accordance with the rules of court and preparation of the court proceedings eg. rulings and judgments for interested litigants and lawyers in addition to when such matter is going on appeal.

(vii) He must ensure proper maintenance and disposal of attached property and exhibits in his custody.

(viii) He must ensure the preparation of quarterly returns of cases filed and disposed.

(ix) He must see to the execution of court judgments and orders.

It should be noted that once a Notice of Appeal has been filed with the Registrar of this court, the appeal is, from that point, pending before the Supreme Court.

In my view, once the second respondent filed the Notice of Appeal, within the prescribed time, it ceased to be an issue upon which the Registrar's decision could be questioned or one where a single judge of the Supreme Court could declare a nullity.

I was thus not convinced by the argument that there was a distinction between this case and Blue Rangers Estates (Pvt) Ltd v Muduviri 2009 (1) ZLR 376 (SC) as the net effect of such an order would be the same.

If the matter were to be struck off the roll, it would no longer be before the court. Similarly, if the Registrar's decision, accepting the Notice of Appeal were to be set aside on the basis that it did not comply with section 43 of the High Court Act, the matter would no longer be before the court.

In any event, as I have stated above, it should be stressed that once a matter has been filed with the Registrar only that court can remove it from the roll on the basis that it does not comply either with the rules of the court or a statute.

In instances where the Registrar has been granted quasi-judicial functions these are specifically spelt out either in the relevant legislation or the rules of this court.

For instance, where a party is called upon to inspect a record and he fails to do so within the prescribed time, Rule 15(8a) of the Supreme Court Rules specifically authorizes the Registrar to deem the appeal abandoned. The Rule also specifies the remedy that the party has against the decision of the Registrar.

In relation to the point raised on whether or not the Supreme Court has the jurisdiction to issue a declaratur in the first instance, the point has already been determined.

In Guwa v Willoughby's Investments (Pvt) Ltd 2009 (1) LR 368 (S) a litigant approached a single Judge of the Supreme Court, in chambers, seeking a Notice of Appeal to be set aside as a nullity. It was not disputed by the respondent that the Notice of Appeal was fatally defective, and the court stated that there was, in effect, nothing pending before the Supreme Court. However, in spite of this being apparent to both parties, the single judge approached in Chambers made the point that the Supreme Court does not have the jurisdiction to make a declaration in the first instance.

The Supreme Court is a creature of statute, and, as such, is governed by the statute that established it – the Supreme Court Act. Such courts are distinct from courts of original jurisdiction, such as the High Court. A statutory body can only act within the confines of its enabling Act, and nowhere in the Supreme Court Act, is the Supreme Court given the jurisdiction to entertain, in the first instance, an application for a declaratur.

In this case, the court stated that the Supreme Court, as an Appellate Court, cannot act in the first instance and issue such a declaratur, in spite of the parties accepting the Notice of Appeal to be invalid. On that basis, the court declined to grant the relief sought as it highlighted that the court is not clothed with that authority and stated as follows:

“In other words, whilst the Supreme Court may do nothing that the law does not permit, the High Court may do anything that the law does not forbid.”

Clearly, the Supreme Court cannot grant a declaratur in the first instance, even where the parties may be in agreement and approach the court, by consent, seeking an order beyond the court's jurisdiction; such consent does not, and cannot, compel a judge to issue an order beyond his or her jurisdictional authority.

This application cannot therefore succeed.

Blue Rangers Estates (Pvt) Ltd v Muduviri 2009 (1) ZLR 376 (SC) presented the option for a respondent in an appeal to raise its opposition to a Notice of Appeal by way of a point in limine before the court.

This application therefore was ill-founded and premature. The parties should have waited for their day in court to raise their objections to the Notice of Appeal.

Counsel for the second respondent applied to be awarded costs on a legal practitioner scale, on the basis that the case was ill-conceived as the issues had already been determined by this court.

Counsel for the applicants submitted that the applicants should not be visited with costs on a punitive scale as it was not clear from the Rules that they could not approach a judge in chambers to impugn the Registrar's decision.

I was inclined to agree with him that there was no decision dealing with the role of the Registrar.

However, in respect to the other points, I was of the view that after the case authorities were highlighted to him he should not have persisted. Thus, whilst I am not inclined to award costs on a punitive scale, I take the view that the second respondent has been successful in defending the application. He should be awarded costs on the ordinary scale.

For the reasons given above, the application is dismissed with costs.

SC29-09 : BLUE RANGERS ESTATES (PVT) LTD vs JAMAYA MUDUVIRI and THE MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: MALABA DCJ

On 9 March 2009 the High Court made a spoliation order for the restoration of peaceful and undisturbed possession of Twyford Estate in Chegutu to the applicant at the same time directing the first respondent and all those claiming possession of the property through him to vacate the farm forthwith failing which the Deputy Sheriff be authorized to remove them.

The spoliation order was issued in the form of a provisional order. It provided as follows:

“TERMS OF THE ORDER MADE

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

1. The applicant's right to quiet, undisturbed possession of Twyford Estate, Chegutu district, as further particularized in the High Court orders annexed to this application as Annexures '2' and '3' and all movables thereon including livestock (hereinafter called “the property”) be and is hereby confirmed. That it is further declared that such right shall continue to subsist until such time as the applicants…, should it become necessary or expedient…, are lawfully evicted from the property through a competent order of court having final effect.

2. It be and is hereby declared that the conduct of the 2nd respondent and all other persons acting in common purpose or association with him on or about the property from the 6th February 2009 until their removal, resulting in dispossession of applicants from their property, is unlawful for want of compliance with due process to obtain vacant possession of the property, and, accordingly, constitutes an unlawful spoliation of applicants' property.

3. Respondents pay the costs of this application, jointly and severally, the one paying the other to be absolved.

INTERIM RELIEF

That, pending determination of this matter, the applicants are granted the following relief:-

(a) It be and is hereby ordered that the status quo ante to applicants' possession control and occupation of Twyford Estate in the district of Chegutu prior to 2nd respondent and all other persons acting through him summarily occupying the property on the 6th February 2009 be and is hereby restored.

(b) 2nd respondent and all other persons claiming occupation and possession of the property and/or all other persons not being representatives, employees or invitees of applicants are directed to forthwith vacate the property removing all movable property that may have been introduced by them onto the property.

(c) To the extent that it becomes necessary or expedient, the Deputy Sheriff is hereby authorized and empowered to attend to the removal of the 2nd respondent and all other persons acting through him from the property so that the provisions of this order are executed and implemented in full.”

It is common cause that the order made by the learned Judge, in the form of interim relief, is a spoliation order.

On 11 March 2009, the first respondent, who was the second respondent to the application, appealed to the Supreme Court against the order. The Notice of Appeal contained all the matters required under Rule 29 of the Rules of the Supreme Court, 1964 (“the Rules”) for a valid Notice of Appeal. It stated that the order from which relief was being sought was a final and definitive order.

On 22 April, the applicant made an application, to a single Judge of the Supreme Court sitting in chambers, for an order striking the appeal off the roll on the ground that in terms of section 43(2)(d) of the High Court Act [Chapter 7:06] (“the High Court Act”), the order made by the learned Judge was an interlocutory order in respect to which no appeal lay to the Supreme Court without the leave of the Judge who made the order, or, if that was refused, without the leave of a Judge of the Supreme Court. Leave of the learned Judge had not been sought before the appeal was noted. The contention was that no appeal was pending before the Supreme Court.

The first respondent opposed the application on two grounds;

(i) The first point taken in limine was that a single Judge of the Supreme Court, sitting in chambers, has no power to grant the relief sought by the applicant.

The contention was that an appeal, the noting of which complied with the requirements of the Rules, is pending hearing by the Supreme Court until “the Court”, in the exercise of its jurisdiction, decides that in terms of the enactment creating the right of appeal no appeal lies against the order from which relief is sought.

The first respondent said that if the applicant intended to have the appeal struck off the roll it should have applied to the Supreme Court for the relief on a court application as required under Rule 39. It could also have raised the matter by way of a preliminary objection to the exercise by the Court of its jurisdiction to hear the appeal in terms of Rule 41 of the Rules.

Rule 39 provides that:

“Subject to the provisions of Rules 31, 36, 37 and 38 applications shall be by court application signed by the applicant or his legal representative and accompanied by an affidavit setting out any facts which are relied upon.”

Rules 31, 36, 37 and 38 relate to matters in respect to which it is specifically provided that relief can be sought by application to a Judge of the Supreme Court sitting in chambers or open court.

Striking an appeal off the roll is not one of the matters provided for under any of these Rules.

Rule 41 provides that:

“A party to an appeal who intends to rely on a preliminary objection to any proceedings or to the use of any document shall give notice in writing of the objection to the Registrar and to the opposite party. If the objection is to be taken at the hearing of an appeal three copies of the notice shall be given to the Registrar.”...,.

In reply to the point in limine, the applicant contended that a Judge of the Supreme Court, sitting in chambers, constituted “the Court” with power to grant the relief sought.

On the allegation that there was non-compliance with Rule 39 or Rule 41 the applicant said that Rule 4 of the Rules gives the Judge discretion to condone non-compliance with any rule of court if it is in the interest of justice to do so.

The argument was that I should exercise the discretion under Rule 4 to condone the applicant's failure to make an application to Court in terms of Rule 39 for the relief it sought on the application to a Judge in chambers. The argument was that it was in the interest of justice that I hear and determine the application.

A copy of an unspeaking order made by the late MUCHECHETERE JA, in chambers, on 26 January 1999, in Croc Ostrich Breeders of Zimbabwe v Best of Zimbabwe Lodgers (Pvt) Ltd SC13-99 was produced to support the proposition that a single Judge of the Supreme Court, sitting in chambers, has power to grant an order striking an appeal off the roll.

The order declared that the Notice of Appeal filed by the respondent, on 20 November 1998, in the Supreme Court, was invalid for want of the appellant thereto having applied for and been granted leave to appeal against the judgment of the High Court in Case No. HC7118/98 as provided in section 43(2)(d) of the High Court Act [Chapter 7:06]....,.

On the first point, I agree with counsel for the first respondent, that, a single Judge of the Supreme Court, sitting in chambers, has no power derived from any provision of the relevant statutes, to make an order striking an appeal pending in the Supreme Court off the roll.

The answer to the question whether a single Judge sitting in chambers has power to hear and determine an application for an order striking an appeal off the roll lies in the relevant provisions of the statute in terms of which the Supreme Court was created and the Rules regulating its proceedings.

It is also necessary to take into account provisions of the enactments by which the right of access to the Supreme Court, on appeal, is given.

Section 43(1) of the High Court Act provides that subject to the exceptions specified thereunder an appeal in any civil case shall lie to the Supreme Court from any judgment (includes order) of the High Court.

The right of appeal lies to the Supreme Court which is the body endowed with the power to hear and determine the appeal.

The Supreme Court was created by section 80(1) of the Constitution as a final Court of Appeal for Zimbabwe without original jurisdiction except when constituted as a Constitutional Court to hear and determine applications under section 24(1) of the Constitution alleging violation of the declaration of rights.

The Supreme Court consists of the Chief Justice, the Deputy Chief Justice, such other Judges of the Supreme Court, being not less than two, as the President may deem necessary and such other Judges as have been appointed acting Judges of the Supreme Court.

As a Court of Appeal, the jurisdiction of the Supreme Court exercised by the Judges of whom it consists is to hear and determine appeals, which, in terms of the enactments granting the rights of appeal, lie to it. Jurisdiction is conferred on the Supreme Court in any civil case by section 21 of the Supreme Court Act [Chapter 7:13] (“the Act”) which provides that:

“(1) The Supreme Court shall have jurisdiction to hear and determine an appeal in any civil case from the judgment of any court or tribunal from which, in terms of any other enactment, an appeal lies to the Supreme Court.”

There is a minimum number of Judges required to duly constitute the Supreme Court when exercising its power to hear and determine an appeal.

It shall be properly constituted for the purpose of exercising its jurisdiction before not less than three Judges sitting at the fixed time and place with the assistance of its appropriate officers such as legal practitioners. That is clear from the provisions of section 3 of the Supreme Court Act which state that:

“For the purpose of exercising its jurisdiction in any matter, the Supreme Court shall be duly constituted if it consists of not less than three Judges.”

A court of law will not entertain proceedings, such as an appeal, unless it is satisfied that it is competent to do so and that the proceedings have been instituted in the proper form.

In providing that for the purpose of exercising its jurisdiction over any matter, the Supreme Court shall be duly constituted if it consists of no less than three Judges, section 3 of the Supreme Court Act effectively precludes a single Judge, sitting in chambers or open Court, from exercising the power conferred on the Court under section 21 of the Supreme Court Act.

The words “any matter” in section 3 of the Supreme Court Act include the question whether the terms of the enactment giving the right of appeal from a particular court limit the power of the Supreme Court to hear the appeal in respect of the order from which relief is sought by the aggrieved party.

It is for the Supreme Court, duly constituted, to make a finding that no appeal lies to it against the order and strike the appeal from the roll.

As a single Judge of the Supreme Court cannot determine the matter he or she cannot make the order striking an appeal off the roll.

If the appellant intended to have a decision made as to whether the order from which relief was sought by the first respondent was appealable without the leave of the Judge, it should have approached the Supreme Court by way of a court application as required by Rule 39. It could also have raised the matter by way of a preliminary objection to the exercise of jurisdiction by the Court.

In Pretoria Racing Club v Van Pietersen 1907 TS 687 the respondent's legal practitioners took the point that no appeal lay to the Transvaal Provincial Division in the case because the spoliation order made by the Judge was, in terms of section 22 of Proclamation 14 of 1902, an interlocutory order not appealable without the leave of the Judge who made it.

The full court, consisting of INNES CJ, SMITH J and CURLEWIS J accepted that it was for the court in which the appeal was noted to decide on the facts of each case what the nature of a particular order is in order to determine whether it fell within the category of final or interlocutory orders. At p493 SMITH J, writing for the full court, said:

“The point, in my opinion, would have been more properly raised as preliminary to the hearing of this appeal when a decision upon it would have been necessary.”

It is clear that as the question would have turned on the construction of the terms of the enactment creating the right of appeal, which, in this case, is section 43(1) read with section 43(2)(d) of the High Court Act, it would have been a matter within the competence of the Supreme Court to decide in terms of section 21 of the Supreme Court Act.

The order striking the appeal off the roll could only be made following a finding on the nature of the order from which relief was being sought on appeal.

The order made by the late MUCHECHETERE JA in Croc Ostrich Breeders of Zimbabwe v Best of Zimbabwe Lodgers (Pvt) Ltd SC13-99 is of no assistance in the determination of the question raised by this application.

It is an unspeaking order which does not disclose the facts on which it was based.

It states, on the face of it, that it was made in a chamber application in terms of Rule 39 of the Supreme Court Rules.

Rule 39 would not permit of an application for that relief to be made to a single Judge sitting in chambers.

The order simply declared that the Notice of Appeal filed by the respondent, on 20 November 1998, in the Supreme Court, was invalid for want of the appellant thereto having applied for and granted leave to appeal against the judgment of the High Court as provided in section 43(2)(d) of the High Court Act [Chapter 7:06]. It did not strike the appeal off the roll.

One gets the impression that it may have been common cause that the order from which relief had been sought, on appeal, was an interlocutory order.

Counsel for the first respondent argued that a Judge cannot use the discretion conferred on him or her under Rule 4 of the Rules to direct a departure from a Rule in order to assume jurisdiction which he or she does not have over a matter.

I agree.

Rules of court are made under section 34 of the Supreme Court Act for the purpose of regulating proceedings of the Supreme Court and facilitate the proper dispatch by the Court of its business. The Rules cannot be used to usurp the court's jurisdiction under section 21 of the Supreme Court Act.

Rule 4 of the Rules is not applicable to the facts of this case.

I would, accordingly, dismiss the application on the point in limine alone.

SC78-21 : ZIMBABWE HOMELESS PEOPLES FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

After hearing argument from the parties, the High Court of Zimbabwe made an order dismissing the application filed by the appellants in terms of section 85(1) of the Constitution of Zimbabwe. The court also ordered the appellants to pay the costs of the application.

This followed a finding by the court that the appellants could not properly seek to enforce their right to shelter in terms of section 85 of the Constitution of Zimbabwe as such a right was not a fundamental right enshrined in Chapter 4 of the Constitution which contains the declaration of rights. The court further found, that, the right to shelter was one of the national objectives under Chapter 2 of the Constitution and therefore not justiciable.

This appeal is against that determination.

FACTUAL BACKGROUND

The first appellant, the Zimbabwe Homeless Peoples Federation, is a universitas at law with an active membership said to be ten thousand homeless people who contribute and pool their resources together for the purpose of achieving and attaining the goal for housing for poor homeless people. The second appellant, Tawonga Savings Scheme, is a saving scheme established in terms of its Constitution with the power to sue and be sued.

The third appellant, Ngwaru Masanza, is a resident of Newpark informal settlement situated at Haydon Farm along the Old Mazoe Road.

Although counsel for appellants attempted, unsuccessfully, to urge the court a quo, and this Court, to accept that the application brought by the first and second appellants in the court was not in terms of section 85(1) of the Constitution of Zimbabwe, it is clear, when all is said and done, that all three appellants approached the court a quo in terms of section 85(1) of the Constitution.

This is an aspect I will revert to in the course of this judgment as it has an important bearing on whether or not the appellants were properly non-suited by the court a quo on the basis that they could not seek relief in terms of section 85 of the Constitution.

The first respondent is the Minister of Local Government and National Housing whose Ministry is responsible for national housing and the administration of local authorities in Zimbabwe. He is hereinafter referred to as “the Minister” of Local Government.

The second respondent is Zvimba Rural District Council, a local authority that operates under the aegis of the first respondent. It will be referred to in this judgment simply as “the Council”. It is the local authority for Haydon Farm which is at the centre of the dispute between the parties herein.

The third respondent is Leengate (Pvt) Ltd (“Leengate”), a private company involved in housing development. It was this company which was given the right to develop a portion of the farm in question.

The fourth respondent is the Minister of Lands, Land Reform and Rural Resettlement, the acquiring authority of the farm. He is hereinafter referred to as “the Minister of Lands”. It was the Minister of Lands who handed over the farm to the Minister of Local Government for housing development who, in turn, allocated it to the Council and Leengate.

Members of the Tawonga Savings Scheme, including the third appellant herein (Ngwaru Masanza), took occupation of Haydon Farm sometime in 2000, during the height of the land reform programme. They proceeded to construct fixtures, some permanent, but these were demolished in 2005 during a Government operation that came to be referred to as Operation Murambatsvina.

It was shortly thereafter that the land in question was acquired by the State pursuant to Constitutional Amendment No.17 after which it became State land.

The informal settlement at the farm was not regularised.

In due course, the third respondent, Leengate (Pvt) Ltd, was offered a hundred hectares of the land for residential development.

It is common cause that some of the appellants occupy part of the land that was offered to Leengate (Pvt) Ltd for development.

It is not in dispute that Leengate (Pvt) Ltd proceeded to have the land surveyed after which roads and storm drains were constructed thereon. Leengate proceeded to develop a hundred and fifty Stands which it then sold to the public.

About forty per cent of this land is still occupied by the second appellant's members.

PROCEEDINGS BEFORE THE HIGH COURT

In their founding papers before the High Court, the appellants averred that Council and Leengate (Pvt) Ltd then began to threaten them and proceeded to evict some of them from the farm. They gave notice to the remaining occupants to vacate the farm by a given date.

The appellants contended, that, the evictions were a breach of their rights enshrined under sections 28, 44, 48, 51, 56(1) and 77 of the Constitution.

They argued, that, whilst there was no specific right to shelter or housing in the Declaration of Rights, other than for children, the right to dignity (section 48) necessarily incorporates the right to shelter as the latter right would be meaningless without the concomitant right to food and shelter.

The appellants therefore sought an order interdicting the Council and Leengate (Pvt) Ltd from evicting them.

They also sought orders compelling the Minister of Local Government and the Council to allocate serviced Stands to them as well as construct basic houses for them. Alternatively, they sought an order compelling the Minister of Local Government and the Minister of Lands to provide them with alternative land and serviced Stands thereon.

An application to further amend the prayer was abandoned at the hearing of this matter.

All the respondents, including the City of Harare against which the application was subsequently withdrawn, opposed the application to interdict what the appellants termed forced evictions.

The Minister of Local Government and the Minister of Lands took the common position that the land in question was State land and that the appellants had no lawful authority to occupy, use, or hold it. They contended that the right to shelter was not part of the Bill of Rights and therefore the appellants could not seek relief against them in terms of section 85 of the Constitution.

Leengate (Pvt) Ltd, on the other hand, averred, that, the appellants occupation of the farm was illegal and that, as a corollary, they had no right of audience before the court. Leengate also submitted that there had been no illegal evictions undertaken by itself or at its instance. Instead, what it had done was follow due process and to institute eviction proceedings against the appellants in the Magistrates Court. Leengate further submitted, that, as the right to shelter was not entrenched in the Constitution, the appellants therefore had no cause of action against it pursuant to section 85 of the Constitution.

In its determination, the court a quo found that all the applicants had approached the court in terms of section 85(1)(d), 85(1)(e) and 85(1)(a) respectively.

The court held, that, section 85(1) was available to litigants who sought to enforce rights enshrined under the Declaration of Rights in Chapter 4. It found that since the right to shelter was not part of the Declaration of Rights, the appellants could not have properly approached the court in terms of section 85(1) alleging a breach of a fundamental right.

The court found it unnecessary to determine the merits of the matter, and, consequently, dismissed the application with costs.

PROCEEDINGS BEFORE THIS COURT

Aggrieved by the above determination, the appellants noted an appeal to this Court. They alleged that the court a quo had erred in three respects:

(i) Firstly, in failing to recognise the right of shelter on the basis that it is not included in Chapter 4 of the Constitution whereas section 47 of the Constitution, which is part of the Bill of Rights, provides that Chapter 4 does not preclude the existence of other rights and freedoms that may be recognised or conferred by law, to the extent that they are consistent with the Constitution.

(ii) Secondly, in finding that the appellants could not approach the court in terms of section 85 of the Constitution when there was in existence section 47 of the same Constitution which recognised the existence of other rights and freedoms conferred by the law.

(iii) In not making a determination on the merits through the selective application of Chapter 4, when the very same Chapter contains the non-exclusionary clause under section 47 of the same Constitution.

Both in his heads of argument and oral submissions, counsel for the third respondent (Leengate (Pvt) Ltd) raised the preliminary point, that, the appellants heads of argument were not compliant with Rule 52(2) of the Supreme Court Rules, 2018.

Although the parties had agreed, before the hearing, not to pursue the preliminary points taken by the respondents in their respective heads of argument, all addressed the court on whether there were proper heads of argument filed by the appellants before the court.

The court directed the parties to address it on all the issues that required determination by this Court.

On the merits, counsel for the appellants submitted, that, the right to shelter ought to be declared a fundamental right pursuant to section 47 of the Constitution.

She further argued, that, the right to life, dignity, and equal protection of the law do not exist independently of the right to shelter. Human rights are indivisible and interdependent. Indeed, one cannot be said to have the right to life or dignity if one does not have the right to shelter or a home.

Counsel urged the court to adopt a wide and purposive interpretation in order to determine whether the legislature intended to make shelter a fundamental right within the Constitution.

Counsel further argued, that, the findings of the court a quo had not taken into account all the provisions of the Constitution.

The Constitution has provided for adequate shelter as a national objective under section 28.

It has provided for freedom from arbitrary evictions under section 74 of the same Constitution. It has also made provision for the right of children to education, health services, nutrition, and shelter under section 81(f). It also provides for security of tenure to every person lawfully owning or occupying agricultural land.

The court should therefore have adopted a purposive interpretation and paid due regard to all these provisions that have a bearing on the right to shelter.

Taken as a whole, the Constitution provides for the fundamental right to housing.

The appellants have further contended, that, the decision of the court a quo has far reaching implications as it effectively leaves the appellants members homeless with nowhere to go.

Before sanctifying the drastic measure of eviction, the court a quo should have gone beyond the facts.

The court did not take into account the circumstances and length of time the appellants members had been in occupation, the rights and needs of vulnerable sections of that group, such as children, and the failure by the relevant organs of the State to make suitable alternative accommodation available.

SUBMISSIONS BY THE MINISTER OF LOCAL GOVERNMENT AND THE MINISTER OF LANDS

Counsel for the two Ministers submitted, that, for the reasons given by Leengate (Pvt) Ltd, with which they agree, the appellants heads of argument do not comply with the Rules of Court. He urged this Court to find that there are no proper heads before it.

On the merits, he argued, that, the right to shelter is not included in Chapter 4 of the Constitution but is envisaged as a national objective under section 28.

He further submitted, that, the reliance by the appellants on section 47 of the Constitution was inappropriate as they had failed to point to any law that provides the right to shelter. In any event, any rights recognised by section 47 of the Constitution are not fundamental rights. The provision simply means the Constitution does not exclude the existence of other rights confirmed in terms of other laws recognised as such by the Constitution.

SUBMISSIONS BY LEENGATE

Counsel for Leengate (Pvt) Ltd submitted, that, there were no proper heads of argument before the court. The appellants heads span fifty-eight pages and are clearly not in compliance with Rule 52(2) of the Supreme Court Rules 2018.

On the merits, counsel also submitted, that, the right to shelter is just but an aspiration.

Section 47 of the Constitution refers to rights conferred by law. The appellants have not pointed to any provision of law that creates the right to shelter.

The matter brought before the court is therefore not a constitutional matter, and, consequently, the principle of subsidiarity applies.

ISSUES ARISING FOR DETERMINATION

From the above synopsis, four issues arise for determination. These are:

(i) First, whether the appellants heads of argument are compliant with Rule 52(2) of the Supreme Court Rules 2018.

(ii) Second, whether the right to housing is a fundamental right cognizable in our law.

(iii) Third, whether the court correctly found that the appellants could not properly approach the court in terms of section 85 of the Constitution and whether the doctrine of avoidance is applicable in this case.

(iv) Last, whether the court a quo erred by not making a determination on the merits....,.

WHETHER THE APPELLANTS HEADS OF ARGUMENT COMPLY WITH THE RULES OF COURT

Rule 52(2) of the Supreme Court Rules, 2018 provides as follows:

“(2) Within fifteen days after being called upon to file heads of argument in terms of subrule (1), or within such longer period as a judge may for good cause allow, the appellant's legal practitioner shall file with the registrar a document setting out the heads of his or her argument together with a list of authorities to be cited in support thereof, and immediately thereafter shall deliver a copy to the respondent.”

Rule 50 has, however, made provision for written arguments and not heads of argument to be filed. That Rule provides as follows:

“50. A party to a civil appeal may, not less than five days before the date on which the appeal has been set down for hearing, file with the registrar a declaration in writing that he or she does not intend to be present in person or to be represented by counsel at the hearing of the appeal, together with four copies of such argument as he or she wishes to submit to the court. Such argument shall be in numbered paragraphs under distinct heads….,.”

It will be apparent, from the foregoing, that, our Rules of Court have deliberately made a distinction between, on the one hand, heads of argument, and, written arguments, on the other.

Written arguments are filed, in terms of Rule 50 of the Supreme Court Rules 2018, by either an appellant or a respondent who does not intend to be present in person or to be represented by a legal practitioner at the hearing of the appeal.

Written arguments are intended to be a lot more comprehensive for the reason that the party will not be present before the court to motivate his or her appeal.

An appellant who is called upon by the Registrar to file heads of argument in terms of Rule 52(2) of the Supreme Court Rules, 2018 may not file written arguments. The filing of written arguments in that circumstance would not be compliant with the Rules.

The option of filing written arguments is one that is by no means common in this jurisdiction.

Invariably, an appellant, or applicant, files heads of argument in compliance with a directive from the Registrar; and failure to do so will result in the matter being deemed abandoned and dismissed – see Rule 39(5).

Equally, a respondent upon whom the appellant's heads are served is required to file his or her own heads within ten days of receipt of the appellant's heads.

In my experience on the Supreme Court bench, the option available, to file written arguments in terms of Rule 50, is one that has not, to date, been utilised by litigants.

That there is a significant difference between heads of argument and written arguments there can be no doubt.

Heads of argument are intended to set out, without elaboration, a relatively concise statement of the main points intended to be argued on appeal by, or on behalf of the respective parties and represent the starting point of the debate which follows. They also constitute the background against which the actual debate during argument of the appeal coalesces but the parties may, and often do, depart from such heads and the debate can range beyond the bare submissions contained in the heads which, in the hearing process, are supplemented or amplified, as the debate continues.

Written argument, on the other hand, is presented in lieu of heads of argument, and is intended to be so comprehensive and complete so as not to require any supplementing. It also pre-supposes that such argument adequately addresses all possible points which may arise in the course of considering the appeal.

As noted in the South African decision in Mandlakhe Khehla Shinga v The Society of Advocates (Pietermaritzburg Bar) (Intervening as Amicus Curiae) & Anor Appeal No. AR969/2004:

“…,. There is a clear distinction between 'heads of argument' and 'written argument' - The rules do not permit the latter. The operative words are 'main', 'heads' and 'argument':

(i) 'main' refers to the most important part of the argument;

(ii) 'heads' means points, not a dissertation; and

(iii) 'argument' involves a process that must be set out in the heads.

In addition, and to emphasize the point, the rule requires the heads of argument to be clear, succinct, and without unnecessary elaboration.”

I agree entirely with the above remarks which, in my view, correctly reflect the law in this country.

There can be no argument that both in the court a quo and in this Court, the appellants were, and are guilty of presenting written arguments.

Before the court a quo, the appellants heads of argument spanned a total of seventy (70) pages. In addition to those seventy pages, the appellants counsel then addressed the court at length, regurgitating the same points made in the written submissions. His oral submissions span a further thirty-two pages. In the heads of argument filed before this Court, the appellants legal practitioner has filed “heads of argument” spanning forty-five (45) pages.

There can also be little doubt that there has been a failure to comply with the Rules.

The appellants were requested to file heads of argument. Instead, what was filed is more of a dissertation. It is prolix, rambling, and, in some cases, repetitious. No consideration has been given to the need to be concise.

I note that the High Court of Zimbabwe has had similar experience.

In Milton Gardens Association & Anor v Mvembe & Ors HH94-16, the court, obviously exasperated, had this to say at p5 of the judgment:

“I must make observations concerning the heads of argument filed on behalf of the applicants in this matter. These stretch up to 127 pages.

Heads of argument are meant to be simply that.

The purpose of heads of argument is to set out fully one's arguments. Heads of argument are required to be drawn up in a clear and concise manner. It is inappropriate to file voluminous papers and expect the other party, as well as the court, to plough through such a voluminous pile of papers and still be able to make sense out of them. What these heads contain is basically every fact and argument concerning this matter.

This is most inappropriate. In fact, this is an abuse of court process.

This style of drafting heads of argument and conduct ought to be discouraged. The eventual consequence of such conduct results in delays in delivery of the judgment concerned. Litigants who bombard the court with voluminous papers and information deserve to be penalised even if they are eventually successful in the litigation. This sort of conduct deserves censure by this Court…,.”

The appellants were asked to file heads of argument. Instead, they filed what appear to be written arguments.

In filing written arguments, they thought they were complying with the direction to file heads of argument.

In this regard, they erred.

Ordinarily, the failure to file heads of argument would have consequences. However, considering that this Court has heard the appellants on the basis of those lengthy and rambling submissions, the court, in the exercise of its discretion, will condone this anomaly, regard being had to the fact that this is perhaps the first time that this Court has taken the pains to emphasise the distinction between heads of argument and written arguments.

Parties, and their legal practitioners, are admonished to pay heed to this distinction in the Rules.

In future, heads of argument that do not comply with Rule 52(2) of the Supreme Court Rules 2018 may well be struck out, the result being that the party guilty of such non-compliance may well be regarded as being barred with the concomitant results that would normally flow from such a determination.

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

This is a chamber application for condonation for failing to note an appeal within the prescribed time limits and extension of time within which to note an appeal in terms of Rule 43 of the Supreme Court Rules, 2018 (the Rules). The applicants seek an order in the following terms:

1. The application for condonation for non-compliance with Rule 38 of the Supreme Court Rules 2018 be and is hereby granted.

2. The application for extension of time within which to file and serve a Notice of Appeal in terms of the Rules be and is hereby granted.

3. The Notice of Appeal shall be deemed to have been filed on the date of this order.

4. The costs shall be in the cause.

BACKGROUND

The applicants in this matter were employed by the respondent. In 2014, they received letters notifying them that they were being retired as they had reached the age of sixty years.

At the time, the first applicant was sixty-two years, the second applicant sixty-four years, and the third applicant sixty-two years.

The first applicant had been in the employ of the respondent for forty years, the second applicant for thirty-five years, and the third applicant for twenty-one years.

The letters advised them that they would receive their terminal benefits, including three months notice and a continued use of their designated company vehicles.

The applicants challenged this retirement by making an application for a declaratur in the High Court (the court a quo).

They argued that section 11(1) of the Local Authorities Employees Principal Pension Scheme, in terms of which they had been retired, did not apply to them as they had passed sixty years.

They argued that since they had been in employment past the age of sixty they could only be retired at the age of sixty-five and that they now had a valid legitimate expectation to be retired at sixty-five since they had gone past the age of sixty without being retired.

They further argued, that, the pension regulations provided for retirement at the ages of fifty-five, sixty, and sixty-five and not in between those ages.

Furthermore, according to the applicants, their retirement was discriminatory since other employees who were in similar positions had been retrenched and not retired.

In the circumstances, the applicants prayed for a declaration to the effect that the purported retirement was a legal nullity and that the respondent was to be ordered to reinstate or retrench them.

DETERMINATION OF THE COURT A QUO

The court a quo noted, that, the major question for determination was whether or not the respondent's pension scheme applied to the applicants.

The court found, that, the applicants argument, that the pension scheme did not apply to them, was without merit. This was because the respondent's pension scheme was regular and the applicants, by joining the respondent, had accepted to be bound by its pension scheme, and, according to this scheme, the normal retirement age was sixty years.

The court further found, that, the applicants argument, that the respondent was precluded from retiring them in between the segments of fifty-five years to sixty years and sixty to sixty-five years, lacked merit because nothing in section 11 of the Local Authorities Employees Principal Pension Scheme suggested that.

According to the court a quo, the applicants legitimate expectation, that they would not be retired before attaining the age of sixty-five years, had no foundation because the pension scheme did not suggest that in any way.

The court held, that, in terms of the respondent's pension scheme, it was purely at the discretion of the employer for an employee to continue serving after his attainment of sixty years of age, and, as such, there was nothing precluding the respondent from retiring the applicants.

The applicants, having gone past the normal age of retirement, the court a quo found that they were serving at the pleasure of the respondent, and, as such, the respondent was entitled to dispense with their services at any time.

The court a quo thus dismissed the application with an order of costs.

Aggrieved by that decision, the applicants noted an appeal with this Court on 6 October 2015 under case number SC549/15.

The applicants failed to pay costs for the preparation of the record and the appeal was deemed abandoned on 6 January 2016....,.

The applicants submitted, that, the reason for delay was due to the fact that they could not pay the requested costs for preparation of the record the first time they filed the appeal, and, as a result, the appeal was deemed lapsed....,.

On 19 March 2019 the applicants filed a chamber application for condonation of late filing of an application for reinstatement of the appeal and extension of time within which to pay costs for the preparation of the record.

SC100-21 : PARKHAM ENTERPRISES (PVT) LTD and NYASHA MOTSI vs ADHESIVE PRODUCTS MANUFACTURES (PVT) LTD and THE MASTER OF THE HIGH COURT N.O.
Ruled By: CHITAKUNYE JA

This is an opposed chamber application for reinstatement of an appeal in terms of Rule 70(2) of the Supreme Court Rules 2018.The intended appeal is against the whole judgment of the High Court sitting at Bulawayo, handed down on 17 December 2020 in case number HC1314/20 judgment number HB12-21.THE FACTSOn ...

This is an opposed chamber application for reinstatement of an appeal in terms of Rule 70(2) of the Supreme Court Rules 2018.

The intended appeal is against the whole judgment of the High Court sitting at Bulawayo, handed down on 17 December 2020 in case number HC1314/20 judgment number HB12-21.

THE FACTS

On 1 March 2016, the first applicant was placed under Provisional Judicial Management. The second applicant was appointed as the Judicial Manager.

On 20 August 2020, the first respondent filed an application for the discharge of the provisional judicial management order.

The application was anchored on the argument, that, four (4) years after the provisional management order was granted, no meaningful progress was made and the first respondent sought the discharge of the order, as it believed the order was a sham designed to shield the first applicant from paying its debts.

The applicants did not file any papers in opposition to the first respondent's application, as a consequence thereof, the applicants were automatically barred and the matter was placed on the unopposed roll.

On the date of hearing of the application, counsel for the applicants appeared in court as counsel for the then respondent. He was informed that the first applicant (as respondent) was barred for failing to file opposing papers.

Instead of applying for the upliftment of the bar, counsel contended that he could still be heard.

The judgment of the court a quo shows, that, despite advice on the existence of the bar, counsel persisted in addressing the court on other issues not related to the bar.

The court a quo proceeded to grant a default judgment.

Aggrieved by the decision, the applicants noted an appeal to the Supreme Court.

Some problems arose, administratively, leading to their appeal being deemed abandoned for failure to pay costs of preparation of the record. When they indicated that they had in fact paid the costs, they were advised to apply for reinstatement of the appeal in terms of the Rules hence this application.

The application is opposed.

In its opposition, the first respondent raised some points in limine. These included;

(i) Firstly, that the intended appeal is incompetent as one cannot appeal against a default judgment.

(ii) Secondly, that the deponent to the first applicant's founding affidavit had no requisite authority, as, at the time he was appointed director of the first applicant, the first applicant was under judicial management, and, so, his appointment was a nullity or tainted with illegality. The same fate befell the person who signed the letter of authority as he was also appointed director when the first applicant was under judicial management.

Counsel for the applicants contended, that, the judgment was not a default judgment but was premised on the fact that he appeared in court and argued his client's case.

ISSUES FOR DETERMINATION

1. Whether or not the judgment of the court a quo was a default judgment or was a judgment on the merits.

2. Whether the deponent to the founding affidavit, Richard Nyatsoka, had authority to represent the first applicant.

APPLICATION OF THE LAW TO THE FACTS

1. Whether or not the judgment of the court a quo was a default judgement or was a judgment on the merits

It is unfortunate, that, despite the fact that the submissions by the applicants counsel were not supported by the judgment which he demanded from the court a quo in order to decide on the way forward, he persisted with them.

In their letter, to the Deputy Registrar of the High Court, dated 18 December 2020, the applicants legal practitioners sought clarity on the nature of the order by the court a quo. In it they stated, inter alia, that;

“However, in his granting the Application, the Honourable Judge did not indicate whether he was granting on the basis that the 1st respondent was barred or on the basis of the substantive verbal submissions made by both Counsel as to whether the Application should be granted.

The distinction is important as the 1st respondent would like to know the correct step to take hereafter, as, in the case of the former, an Application for Rescission would have to be filed whilst in the case of the latter, then an Appeal must be filed.

May you therefore, as a matter of urgency, clarify with his Lordship which of the two is the position. If it's the latter position, we would be pleased if his Lordship were to provide his written reasons.”…,.

It was clear that the applicants legal practitioners were aware of the options available.

Surprisingly, when the judgment was served on them confirming that the judgment was granted as a default judgment, they persisted with seeking to appeal against a default judgment instead of filing an application for rescission as intimated in their letter of 18 December 2020.

Counsel for the applicants conceded, that, before the court a quo, he was advised that the first applicant was barred for not filing opposing papers. He, in effect, said that despite the extant bar he was, nevertheless, allowed to make submissions on the merits hence his contention that it was not a default judgment.

Counsel's submissions in this regard were without merit.

The judgment of the court a quo, at p1, shows that he was clearly advised of the bar.

Instead of applying for the upliftment of the bar, he took an argumentative stance.

In this regard, the judgment states, that, upon being so advised, counsel was undeterred; he attacked the validity of the service of the application and attacked the competence of the application itself.

It is his persistence, in the face of the bar, that counsel contends made his submissions on the merits acceptable.

A bar is not uplifted by a litigant's persistence in arguing on the merits but by a proper application for the upliftment of the bar in terms of the applicable Rules.

In casu, the applicants counsel chose to ignore the bar to his own peril.

In the latter part of the judgment, the court a quo in fact expressed counsel's conduct as unacceptable - especially after being advised of the bar.

The judge a quo indicated, in no uncertain terms, that the judgment was a default judgment. He said:

“Mr Mazibuko was not applying for the removal of the bar. He was attacking the application. In fact, I found his conduct somehow unacceptable; that, after I had pointed out to him that first respondent was barred and that the application was therefore not opposed, he persisted in argument. After considering a number of factors, I refrained from calling him to order. I take the view that such conduct is a deviation from the normal practice; it is inappropriate and unnecessarily belligerent towards the court, and it serves no useful purpose in litigation.

In the result, in deciding this application for default judgment, I did not factor into the equation Mr Mazibuko's submissions. I concluded that the respondent, having been duly barred in terms of the rules of court, and not having made an application for the upliftment of the bar, the application was unopposed.”

I am of the view that the above makes it clear to all and sundry that the judgment sought to be appealed against is a default judgment.

It is trite, that, one cannot appeal against a default judgment. The procedure to contest a default judgement is to seek its rescission before the appropriate court.

It does not matter that one has issues with the judgment. The fact that a party forced their way into making submissions despite its default or whilst barred does not turn a default judgment into a judgment on the merits.

In Christopher Zvinavashe v Nobuhle Ndlovu SC40-06…, GWAUNZA JA…, aptly stated that:

“Counsel for the respondent contends, correctly, that a default judgment can only be set aside by a successful application for rescission of the judgment under the rules of the relevant court. The application must be made by the defaulting party himself, as indicated by the expression 'purging his default'. It follows that, in casu, the appellants default remained unpurged even as the learned judge a quo considered the merits of the matter and gave reasons for his judgment.”

See Ranvali Trust's Trustees v UDC Limited 1998 (1) ZLR 110; Sibanda & Others v Nkayi RDC 1991 (1) ZLR 32 (SC); Quoxing Gong v Mayor Logistics (Pvt) Limited & Another SC02-17; and Read v Gardner & Another SC70-19.

Counsel for the applicants conceded, that, indeed, the law is clear that one cannot appeal against a default judgment.

The first point in limine is upheld with the finding that the judgment is a default judgment. The purported appeal is therefore a nullity.

This disposes of the matter, and I am of the view, that, it is unnecessary to consider the other point in limine.

COSTS

It is clear from the papers filed of record, and submissions made, that the applicants were alerted of the futility of appealing against a default judgement but for some reason had persisted.

The attitude adopted by their counsel, in the court a quo and in this Court, of seeking to deny the clear and indisputable aspect of default is regrettable. Had counsel accepted wise counsel, in the form of letters from his colleagues, he would have by now adopted the correct procedure to have the default judgment set aside in a proper application.

The first respondent has been put to great expense purely because of the unyielding attitude of the applicants even in the face of clear evidence that this was a default judgment.

It is only proper that costs be awarded on the higher scale as requested by the first respondent.

DISPOSITION

As the purported appeal is a nullity, it follows that there is nothing to reinstate. Consequently, this purported application for reinstatement is improper as one cannot seek to reinstate a nullity.

Accordingly, the matter is hereby struck off the roll with costs on the legal practitioner and client scale.

SC132-21 : FRANK BUYANGA SADIQI vs CHANTELLE MUTESWA and OTHERS
Ruled By: UCHENA JA

On 16 June 2021, I partly heard the applicant's chamber application for condonation and reinstatement of an appeal in terms of Rule 70(2) of the Supreme Court Rules 2018.

On 11 May 2020, the applicant filed a notice of appeal, but failed to inspect the record within the time prescribed by the Rules. By letter dated 13 April 2021, the Registrar advised the applicant's legal practitioners that the appeal had been deemed abandoned.

It is that appeal the applicant wants to be reinstated.

At the hearing of the application, counsel for the first respondent raised a point in limine.

He submitted, that, the applicant should not be granted audience by the court because he is in contempt of court orders.

He submitted, that, the applicant snatched the minor child from the first respondent at a shopping centre in Waterfalls, Harare and took him out of Zimbabwe through an un-designated exit point. He further submitted, that, the first respondent has not seen the child since that incident.

Counsel for the applicant submitted, that, the applicant should be heard as it is his constitutional right to have access to the courts.

He initially could not say where the child was, but, eventually, conceded that he had been taken out of the court's jurisdiction and was staying in South Africa with the applicant.

Counsel for the third to sixth respondents (Commissioner General of Police, Registrar General, Chief Immigration Officer and Minister of Justice, Legal & Parliamentary Affairs) though having indicated that her clients will abide by the decision of the court, as an officer of the court, advised the court that the applicant is on the wanted list of Interpol and is a fugitive from justice.

On the welfare and best interest of the minor child, counsel for the applicant submitted, that, the child was in good health and could be shown to the court virtually.

Counsel for the first respondent submitted, that, it was not in the best interest of the child for him to be snatched away from his mother and be kept away from her for 15 months. He submitted, that, the child should be brought back to the court's jurisdiction. He submitted that it was the duty of the courts to protect minor children.

After hearing the parties, I gave an ex-tempore ruling, partly upholding the first respondent's point in limine and postponed the hearing of the application until the applicant brings back the minor child to the court's jurisdiction and present him to the court.

This morning, the Registrar brought to my attention the Constitutional Court's order to the effect that she should have ensured that my judgment was made available to the parties by 22 September 2021. She failed to bring the order to me before 22 September 2021.

My reasons for partly upholding the first respondent's preliminary point are as follows:

The rights of children should not be trampled upon by their parents. The rights of parents to exercise guardianship and access to their children must be exercised without adversely affecting the rights of the children.

In this case, it was clear to me, that, while the applicant was entitled to have guardianship and access to his son he had to do so lawfully, and, if hindered, by resorting to the courts to enforce his rights.

Snatching the child and fleeing the jurisdiction of the court with him through undesignated exit points, is, in my view, not in the best interest of the child.

I appreciate that the High Court had granted the parties joint custody and guardianship.

Those rights should be exercised in terms of the law and in a manner which ensures that the child is not exposed to illegalities.

The child should also be accessed by both parents to enable it to bond with both parents.

The snatching away of the child, and keeping him away from his mother for 15 months, is not in the best interest of the child, and is not consistent with the exercise of joint custody and guardianship.

I did not think it prudent to completely deny the applicant audience because it is in the best interest of the child that his parents issues over him be resolved by the courts.

It is for that reason that I thought it prudent that the child be brought back to the court's jurisdiction for him to be protected by the courts, according to the law, while his parents issues are being dealt with by the courts.

These are the reasons why I partly upheld the first respondent's point in limine.

View Appeal
HH661-16 : M COMPANY (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

This is an income tax appeal filed in the High Court in terms of section 65 of the Income Tax Act [Chapter 23:06].

The two questions for determination are:

(i) Whether the appeal is valid; and

(ii) Whether the commission paid to two foreign agents for facilitating the sale of tobacco constituted fees for services of a technical, managerial, administrative or consultative nature as contemplated by section 30 of the of the Income Tax Act and the Seventeenth Schedule to the Income Tax Act.

THE BACKGROUND

The appellant, an exporter and seller of processed tobacco from Zimbabwe, is a locally registered company. It entered into two successive sales and marketing agreements with two foreign companies on 1 April 2004 (annexure 1 of respondent's case and p1-2 of appellant's bundle) and 1 April 2011 (annexure 2 of respondent's case and p3-4 of appellant's bundle) respectively, for the sale of export tobacco in foreign markets.

The sales were on commission of 7.5% of the aggregate net export sales and FCA Zimbabwe sales value of each export, respectively.

In 2007, the respondent audited the affairs of the appellant. It decided that the commission paid for the period to 2005 constituted fees for services of a technical and administrative nature performed by the overseas agent on behalf of the appellant for which the appellant was liable for withholding non-resident tax in terms of the Seventeenth Schedule to the Income Tax Act.

On 5 April 2007, the respondent submitted schedules showing the appellant's withholding tax liability on the tobacco sales commissions payable to the overseas agent.

The tax adviser of the appellant objected to the schedules and imposition of withholding tax on the sales commissions.

On 10 August 2007, the respondent disallowed the objection.

A notice of appeal was filed on 24 August 2007.

The appellant's case was not filed within 60 days of the service of the notice of appeal or at all. In accordance with the provisions of section 65(3) of the Income Tax Act, the appeal lapsed.

The appellant continued to remit non-residents withholding tax to the respondent until the advent of the multi-currency era.

On 24 October 2013, officials of the respondent conducted a routine audit visit at the premises of the appellant during which the Finance Director of the appellant indicated that further remittals had stopped in consequence of the unresolved 2007 appeal.

In a further meeting of 5 December 2013, the appellant requested and was provided with a schedule of the non-residents tax on fees payable from January 2009 to October 2013.

The schedules consisted of 11 columns showing the period covered, the amount of commission paid, the withholding tax rate, the witholding tax due, the penalty charged at 100%, the period covered in respect of interest computation, the period of delay in paying, the interest rate, and the amount of tax due.

The principal amount of the non-residents tax on fees due was in the sum of US$4,252,647=57. An equivalent amount was imposed as penalty and a further US$795,988=62 was imposed as interest.

The penalties were later reduced by half leaving the revised total liability of US$5,974,959=97.

The appellant responded to the schedule by way of the objection letter dated 10 December 2013, which was served on the respondent on the same day.

It disputed that the commissions constituted the fees contemplated in section 30 and the Seventeenth Schedule of the Income Tax Act. It undertook to pay the outstanding principal amount in four instalments between 13 December and 20 January 2014. In consequence of the undertaking, the respondent further waived the reduced penalty and interest by e-mail of 19 December 2013.

The appellant, however, paid the principal amount by 20 December 2013.

A meeting was held between the appellant's tax advisers and the respondent on 13 December 2013. The parties appeared to have agreed, in that meeting, that, the objection had been improperly made.

However, the appellant filed a notice of appeal on 25 March 2014 and served it on the respondent on the following day. The appeal was based on the deemed decision arising from the failure to respond to the letter of objection within three months as contemplated by section 62(4) of the Income Tax Act. The parties filed their respective cases on 28 May 2014 and 13 August 2014.

THE PRELIMINARY OBJECTION

The respondent took the point, that, as it did not issue any assessment on the appellant on 5 December 2013 or any other date, the objection of 10 December 2013, and the subsequent notice of appeal of 25 March 2014, was invalid and of no force or effect.

The appellant contended, inter alia, that the appeal was validated by paragraph (y) of the Eleventh Schedule to the Income Tax Act.

Both counsel correctly submitted, that, the 2007 appeal was abandoned by the appellant.

The effect was that the appellant accepted liability for the non-residents tax on fees, which it failed to withhold and remit to the respondent. In addition, it also accepted that the commissions paid during the period prior to August 2007 constituted fees for services of a technical, administrative, managerial or consultative nature.

It was common cause that the 2007 matter was not pending and could not preclude the appellant from objecting, as it did, to liability for failing to remit non-residents tax on fees for the period from January 2009 to October 2013.

The suggestion, in the respondent's pleadings and minutes of meetings, that the present matter could not be objected to on the basis of the 2007 appeal was clearly devoid of any merit.

HH699-16 : IGNATIUS MASAMBA vs ZETDC
Ruled By: MAKONI J

The applicant approached this court seeking rescission of default judgment entered against him in Case No. HC9544/15 on 8 March 2016.

The background to the matter is that the applicant, as plaintiff, sued the respondent, then the defendant, in the Magistrates Court. The particulars of claim were not clear and concise but they referred to some breach of contract by the respondent; a delictual claim based on the mental suffering that the applicant suffered as a result of the breach of contract.

The magistrate granted absolution from the instance at the close of the applicant, then the plaintiff's case.

The applicant appealed against the decision, in CIV “A” 457/14.

On the day of the hearing, the appeal was dismissed because the applicant defaulted by not appearing.

The applicant, in Case No. HC9542/15, applied for rescission of the default judgment.

Again, at the hearing of Case No. HC9542/15 the applicant was in default and the case was dismissed.

The applicant now seeks rescission of the judgment in terms of Rule 63 of the High Court Rules 1971 (Rules).

In terms of Rule 63, the court may set aside a judgment if there is good and sufficient cause to do so.

Good and sufficient cause has been defined, in a number of jurisdictions, as:

(i) A reasonable explanation for the default;

(ii) Where there is a bona fide defence to the main claim; and

(iii) Where the application for rescission is itself bona fide.

See Chivhayi Enterprises (Pvt) Ltd v Attish Investments (Pvt) Ltd 2007 (2) 89 (S).

The applicant avers, that, the matter was set down in Court “M”. On the day of hearing, the matters were moved to Court “O”. By the time he realized that the matters had been moved, and by the time he managed to get to Court “O” his matter had been dismissed.

The explanation given by the applicant has not been controverted. It sounds probable. I will take that that is what transpired. The detail that he gives regarding the notice that was affixed at the courtroom door has some ring of truth.

The next issue is whether the applicant has a bona fide claim in HC9542/15.

He is seeking rescission of the judgment through which his appeal was dismissed.

The proper procedure would have been for the applicant to apply for reinstatement of the appeal. The applicant has adopted the wrong procedure.

His application, thus, has no prospects of success and it is likely to be dismissed.

In the result, the applicant has not satisfied the requirement that he show good and sufficient cause to have the default judgment rescinded....,.

1. The application is dismissed.

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Appeal re: Dismissal of Appeal Without Hearing, Striking Out or Lapsing of Appeal and Reinstatement of Lapsed Appeal

SC32-15 : BINDURA MUNICIPALITY vs PAISON CHIKEYA MUGOGO
Ruled By: GUVAVA JA

SC02-15 : REMO INVESTMENT BROKERS (PRIVATE) LIMITED vs INTERFIN SECURITIES (PRIVATE) LIMITED
Ruled By: MAVANGIRA AJA

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

SC24-17 : MARVELLOUS TARUWONA vs COBRA SECURITY (PRIVATE) LIMITED and MISHECK ZVARIVADZA and TAPSON MADZIVIRE
Ruled By: GOWORA JA

SC31-17 : FBC BANK LIMITED vs ROBERT CHIWANZA
Ruled By: GWAUNZA JA

SC34-17 : ZIMSLATE QUARTZITE (PRIVATE) LIMITED and ARMINCO INVESTMENTS (PRIVATE) LIMITED and TINASHE CHIMANIKIRE and MOHMED MAHMED vs CENTRAL AFRICAN BUILDING SOCIETY
Ruled By: ZIYAMBI AJA

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

HH36-15 : LEE WAVERLY JOHN vs PRINCIPAL IMMIGRATION OFFICER and CO-MINISTERS OF HOME AFFAIRS
Ruled By: MUSAKWA J

HB88-16 : SOLOMON MHENYU vs RUTH MLAUDZI
Ruled By: MATHONSI J

SC61-18 : ILASHA MINING (PRIVATE) LIMITED vs YATAKALA TRADING (PRIVATE) LIMITED t/a VIKING HARDWARE DISTRIBUTORS
Ruled By: BHUNU JA

SC63-18 : SERGEANT MHANDE 04737T and CONSTABLE MHAKA 081215B vs CHAIRMAN OF THE POLICE SERVICE COMMISSION and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS
Ruled By: BERE JA

SC72-18 : MEIKLES LIMITED vs WIDEFREE INVESTMENTS (PRIVATE) LIMITED T/A CORE SOLUTIONS
Ruled By: BERE JA

SC70-20 : CITY OF HARARE vs AMOS CHIKWANDA
Ruled By: BHUNU JA

SC27-18 : GETRUDE MUTASA and DIDYMUS MUTASA vs THE REGISTRAR OF SUPREME COURT and NYAKUTOMBWA MUGABE LEGAL COUNSEL and SHERIFF OF ZIMBABWE
Ruled By: GUVAVA JA

SC29-09 : BLUE RANGERS ESTATES (PVT) LTD vs JAMAYA MUDUVIRI and THE MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: MALABA DCJ

SC78-21 : ZIMBABWE HOMELESS PEOPLES FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

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

SC100-21 : PARKHAM ENTERPRISES (PVT) LTD and NYASHA MOTSI vs ADHESIVE PRODUCTS MANUFACTURES (PVT) LTD and THE MASTER OF THE HIGH COURT N.O.
Ruled By: CHITAKUNYE JA

SC132-21 : FRANK BUYANGA SADIQI vs CHANTELLE MUTESWA and OTHERS
Ruled By: UCHENA JA

View Appeal
HH661-16 : M COMPANY (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

HH699-16 : IGNATIUS MASAMBA vs ZETDC
Ruled By: MAKONI J

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Law Portal Zimbabwe

Appeal re: Dismissal of Appeal Without Hearing, Striking Out or Lapsing of Appeal and Reinstatement of Lapsed Appeal

SC32-15 : BINDURA MUNICIPALITY vs PAISON CHIKEYA MUGOGO Ruled By: GUVAVA JA

SC02-15 : REMO INVESTMENT BROKERS (PRIVATE) LIMITED vs INTERFIN SECURITIES (PRIVATE) LIMITED Ruled By: MAVANGIRA AJA

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

SC24-17 : MARVELLOUS TARUWONA vs COBRA SECURITY (PRIVATE) LIMITED and MISHECK ZVARIVADZA and TAPSON MADZIVIRE Ruled By: GOWORA JA

SC31-17 : FBC BANK LIMITED vs ROBERT CHIWANZA Ruled By: GWAUNZA JA

SC34-17 : ZIMSLATE QUARTZITE (PRIVATE) LIMITED and ARMINCO INVESTMENTS (PRIVATE) LIMITED and TINASHE CHIMANIKIRE and MOHMED MAHMED vs CENTRAL AFRICAN BUILDING SOCIETY Ruled By: ZIYAMBI AJA

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

HH36-15 : LEE WAVERLY JOHN vs PRINCIPAL IMMIGRATION OFFICER and CO-MINISTERS OF HOME AFFAIRS Ruled By: MUSAKWA J

HB88-16 : SOLOMON MHENYU vs RUTH MLAUDZI Ruled By: MATHONSI J

SC61-18 : ILASHA MINING (PRIVATE) LIMITED vs YATAKALA TRADING (PRIVATE) LIMITED t/a VIKING HARDWARE DISTRIBUTORS Ruled By: BHUNU JA

SC63-18 : SERGEANT MHANDE 04737T and CONSTABLE MHAKA 081215B vs CHAIRMAN OF THE POLICE SERVICE COMMISSION and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS Ruled By: BERE JA

SC72-18 : MEIKLES LIMITED vs WIDEFREE INVESTMENTS (PRIVATE) LIMITED T/A CORE SOLUTIONS Ruled By: BERE JA

SC70-20 : CITY OF HARARE vs AMOS CHIKWANDA Ruled By: BHUNU JA

SC27-18 : GETRUDE MUTASA and DIDYMUS MUTASA vs THE REGISTRAR OF SUPREME COURT and NYAKUTOMBWA MUGABE LEGAL COUNSEL and SHERIFF OF ZIMBABWE Ruled By: GUVAVA JA

SC29-09 : BLUE RANGERS ESTATES (PVT) LTD vs JAMAYA MUDUVIRI and THE MINISTER OF LANDS AND RURAL RESETTLEMENT Ruled By: MALABA DCJ

SC78-21 : ZIMBABWE HOMELESS PEOPLES FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and OTHERS Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

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

SC100-21 : PARKHAM ENTERPRISES (PVT) LTD and NYASHA MOTSI vs ADHESIVE PRODUCTS MANUFACTURES (PVT) LTD and THE MASTER OF THE HIGH COURT N.O. Ruled By: CHITAKUNYE JA

SC132-21 : FRANK BUYANGA SADIQI vs CHANTELLE MUTESWA and OTHERS Ruled By: UCHENA JA

View Appeal HH661-16 : M COMPANY (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY Ruled By: KUDYA J

HH699-16 : IGNATIUS MASAMBA vs ZETDC Ruled By: MAKONI J

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Law Portal
Zimbabwe

SC32-15 : BINDURA MUNICIPALITY vs PAISON CHIKEYA MUGOGO
Ruled By: GUVAVA JA

SC02-15 : REMO INVESTMENT BROKERS (PRIVATE) LIMITED vs INTERFIN SECURITIES (PRIVATE) LIMITED
Ruled By: MAVANGIRA AJA

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

SC24-17 : MARVELLOUS TARUWONA vs COBRA SECURITY (PRIVATE) LIMITED and MISHECK ZVARIVADZA and TAPSON MADZIVIRE
Ruled By: GOWORA JA

SC31-17 : FBC BANK LIMITED vs ROBERT CHIWANZA
Ruled By: GWAUNZA JA

SC34-17 : ZIMSLATE QUARTZITE (PRIVATE) LIMITED and ARMINCO INVESTMENTS (PRIVATE) LIMITED and TINASHE CHIMANIKIRE and MOHMED MAHMED vs CENTRAL AFRICAN BUILDING SOCIETY
Ruled By: ZIYAMBI AJA

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

HH36-15 : LEE WAVERLY JOHN vs PRINCIPAL IMMIGRATION OFFICER and CO-MINISTERS OF HOME AFFAIRS
Ruled By: MUSAKWA J

HB88-16 : SOLOMON MHENYU vs RUTH MLAUDZI
Ruled By: MATHONSI J

SC61-18 : ILASHA MINING (PRIVATE) LIMITED vs YATAKALA TRADING (PRIVATE) LIMITED t/a VIKING HARDWARE DISTRIBUTORS
Ruled By: BHUNU JA

SC63-18 : SERGEANT MHANDE 04737T and CONSTABLE MHAKA 081215B vs CHAIRMAN OF THE POLICE SERVICE COMMISSION and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS
Ruled By: BERE JA

SC72-18 : MEIKLES LIMITED vs WIDEFREE INVESTMENTS (PRIVATE) LIMITED T/A CORE SOLUTIONS
Ruled By: BERE JA

SC70-20 : CITY OF HARARE vs AMOS CHIKWANDA
Ruled By: BHUNU JA

SC27-18 : GETRUDE MUTASA and DIDYMUS MUTASA vs THE REGISTRAR OF SUPREME COURT and NYAKUTOMBWA MUGABE LEGAL COUNSEL and SHERIFF OF ZIMBABWE
Ruled By: GUVAVA JA

SC29-09 : BLUE RANGERS ESTATES (PVT) LTD vs JAMAYA MUDUVIRI and THE MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: MALABA DCJ

SC78-21 : ZIMBABWE HOMELESS PEOPLES FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

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

SC100-21 : PARKHAM ENTERPRISES (PVT) LTD and NYASHA MOTSI vs ADHESIVE PRODUCTS MANUFACTURES (PVT) LTD and THE MASTER OF THE HIGH COURT N.O.
Ruled By: CHITAKUNYE JA

SC132-21 : FRANK BUYANGA SADIQI vs CHANTELLE MUTESWA and OTHERS
Ruled By: UCHENA JA

View Appeal
HH661-16 : M COMPANY (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

HH699-16 : IGNATIUS MASAMBA vs ZETDC
Ruled By: MAKONI J