E https://old.zimlii.org/taxonomy/term/10364/all en Mutsahuni And Anor v Minister of Lands, Agriculture, Fisheries, Water and Rural Resettlement And Anor (Judgment No. HH 407-21, HC 3834/21) [2021] ZWHHC 407 (05 August 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/407 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HH 407-21</p> <p>HC 3834/21</p> <p><strong>SIMBARASHE MUTSAHUNI</strong></p> <p><strong>and</strong></p> <p><strong>BONA MUTSAHUNI</strong> </p> <p><strong>versus</strong></p> <p><strong>THE MINISTER OF LANDS AGRICULTURE, FISHERIES</strong></p> <p><strong>WATER AND RURAL RESETTLEMENT </strong></p> <p><strong>and                                                                     </strong></p> <p><strong>WASHINGTON MATSAIRA</strong> </p> <p> </p> <p>THE HIGH COURT OF ZIMBABWE</p> <p>MUZOFA J, HARARE  23,26 July &amp; 5 August 2021</p> <p> </p> <p><em>S. Mukwekwezeke</em>, for the applicant</p> <p><em>M. A Chimombe</em>, for the 1st respondent</p> <p><em>K Kachambwa</em>, for the 2nd respondent.</p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p>  MUZOFA J: The facts of this case are largely common cause. The applicants are beneficiaries of the land reform programme. They were issued with an offer letter on 22 June 2017 by the 1st respondent  over a farm known as subdivision consolidation of RE of Sigaro Farm and Gwebi Wood of Sigaro Farm in the District of Mazowe in Mashonaland Province measuring 1 804 hectares ‘the farm’. In due course they were served with a notice of intention to withdraw the offer letter. Despite objections raised, the 1st respondent withdrew the offer letter. The applicants were issued with another offer letter over subdivision 1 on RE of Sigaro in Mazowe District Mashonaland Central Province measuring approximately 488 hectares in extent.</p> <p>Dissatisfied by the decision to withdraw the offer letter the applicants filed an application for review under HC 2370/21 for the setting aside of the decision to withdraw the offer letter on the 19th of May 2021.The following day the 20th of May 2021 the applicants filed an urgent chamber application to interdict the 1st respondent from enforcing the withdrawal letter and the suspension of any offer letters issued over the farm under HC2438/21. The application was dismissed. According to the applicants, which facts are disputed the 1st respondent has commenced subdividing the farm and is likely to issue offer letters to other farmers who may disrupt their farming activities. In addition the 2nd respondent unlawfully evicted their workers from the farm. On those facts the applicants seek to interdict the 1st respondent from enforcing the withdrawal letter pending the determination of the application for review and an application under HC 3019/21 and spoliatory relief against the 2nd respondent.</p> <p>Both respondents raised preliminary points in their opposing affidavits. On the day of hearing of the matter, the 1st respondent abandoned the preliminary points. The 2nd respondent raised the point that the matter is not urgent and that the court is functus officio.</p> <p>Whether the court is <em>functus officio</em></p> <p>I must address the issue whether the court is <em>functus officio</em> first before delving into the question of urgency because if the court cannot be seized with the matter it is barred from considering any issues in respect of the matter.</p> <p>It was submitted that after the applicants’ offer letter was withdrawn they approached the court on an urgent basis seeking to interdict the 1st respondent from enforcing the withdrawal. The court dismissed the application after hearing argument. A final order was granted on the merits. The court cannot hear argument on the same issue, it is <em>functus officio</em>. I was referred to the case of <em>ZESA V Utah</em><a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a>  as authority for that proposition. It was argued that issue estoppel applies in this case on the authority of <em>Galante v Galante</em> <a href="#_ftn2" name="_ftnref2" title="" id="_ftnref2">[2]</a> . For the applicant it was submitted that the court is not <em>functus officio</em>. Although <em>Mr Mukwekwezeke</em> conceded that the relief sought is similar he argued that the issues for determination are different. Subsequent developments took place after the dismissal of the first matter. The 1st respondent has commenced subdividing the farm which had not taken place then. He did not dispute that the matter was heard on the merits but insisted that the application was dismissed because it had been filed prematurely.  </p> <p>In determining whether the court is <em>functus officio</em>, the court must invariably consider whether the matter is <em>res judicata</em>. The requirements for this plea are settled. For one to succeed he must show that the action is between the same parties, the actions must concern the same subject matter and the actions must be founded upon the same cause of action. See the case of <em>Flowerdale Investments (Private) Limited &amp; Ano</em>r v <em>Bernard Construction (Private) Limited  &amp; 2 Others<a href="#_ftn3" name="_ftnref3" title="" id="_ftnref3"><strong>[3]</strong></a></em>.  Herbstein &amp; Van Winsen<a href="#_ftn4" name="_ftnref4" title="" id="_ftnref4">[4]</a>  set out the requirements as follows:</p> <p>"The requisites of a plea of lis pendens are the same with regard to the person, cause of action and subject matter as those of a plea of res judicata, which, in turn, are that the two actions must have been between the same parties or their successors in title, concerning the same subject matter and founded upon the same cause of complaint."</p> <p>It is common cause that in respect of the interdict, the applications relate to the same parties. The relief also relate to the same subject matter, that is the suspension of the withdrawal letter in respect of the farm.</p> <p>The only issue as submitted for the applicant is that the cause of complaint is different. I was not favoured with sufficient details of the differences. Under HC 2438/21 the applicants approached the court on an urgent basis seeking a provisional order to interdict the 1st respondent from enforcing the withdrawal letter and the suspension of any offer letters issued by the 1st respondent on the farm pending the determination of the application for review filed under HC779/21.The 1st applicant swore to the founding affidavit that the 2nd applicant associated with. The facts relied on for the relief sought were that the applicants were issued with an offer letter in June 2017. They invested a considerable amount in the farm and they call it home. The 1st respondent advised them of his intention to withdraw the offer letter, they objected but nonetheless the offer letter was withdrawn. They were not happy with the conduct of some officials of the 1st respondent, they complained but nothing happened. They filed an application for the review of the 1st respondent’s decision and filed the urgent chamber application. The applicant’s apprehension then was that, in the event the withdrawal by the 1st respondent is enforced and offer letters issued to other farmers, the farmers would disrupt the applicants’ farming activities. Further to that the application for review would be rendered academic.</p> <p>The substance of the provisional order the applicants seek in this matter is to interdict the 1st respondent from enforcing the withdrawal of their offer letter pending the determination of two applications under HC 2370/21 and HC3019/21, to be barred from issuing offer letters over the farm and to interdict anyone holding any offer letter from occupying the farm. The applicants aver that the 1st respondent has commenced pegging the farm with intent to issue offer letters to the potential farmers. They fear that once the new owners access the farm they will disrupt their farming activities. The applicants then set out how they have invested in the farm and how the withdrawal will affect the contracts they entered with partners in their farming enterprise.</p> <p>The application before me is based on different circumstances. The applicants aver that the 1st respondent has commenced subdividing the farm. The presence of the 2nd respondent at the farm is also evidence of the enforcement of the withdrawal letter. In the initial application the cause of action was based on assumptions that the 1st respondent will parcel out land on the farm. Before me the 1st respondent has actually allocated part of the farm to the 2nd respondent. I am satisfied that the cause of action is different from the first application. The matter is therefore not <em>res judicata</em> and the court is not <em>functus officio</em>.</p> <p>Urgency</p> <p>What constitutes urgency is now trite. The matter must be such that any delay in dealing with the matter will result in irreparable harm. Any future intervention may not protect the applicants’ interests as irreparable harm would have occurred. The applicant must treat the matter as urgent by taking action immediately when the harm is threatened or at the time the harm materialises<a href="#_ftn5" name="_ftnref5" title="" id="_ftnref5">[5]</a>.Two issues stand out for consideration as submitted for the 2nd respondent time and harm. The applicant must demonstrate he is likely to suffer irreparable harm and that he acted timeously to avert the harm. Where there is a delay in acting timeously, there must be a reasonable explanation for the delay. What defines timeous action depends on the circumstances of the matter no one size fit all definition can be made.</p> <p>I am satisfied on urgency. Parties agree that the need to act arose on 30 June 2021. The applicants did not sit on their case, they engaged the 1st respondent by letter with a view to suspend the enforcement of the withdrawal. The applicants indicated that while they waited for the response from the 1st respondent they were despoiled. I was not persuaded by the submission for the 2nd respondent that the letter was not reasonable action because the 1st respondent had already made a decision. It was therefore pointless to engage the office. It may be so, but what is demonstrated by the conduct is that the applicant did not sit back they did something to protect their interests. It is only when they were despoiled that they realised the futility of the intended engagement and approached the court. The applicants cannot be penalised for the 14 days delay. There is a reasonable explanation for the delay.</p> <p>Interdict</p> <p>In order to succeed in an application for an interim interdict the applicant must demonstrate a clear right, or a <em>prima facie </em>right though open to some doubt. Where a clear right is established the applicant does not need to establish a well-grounded apprehension of irreparable harm. However where  only a <em>prima facie </em>right is established, the second requirement must be established, namely, that there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and the balance of convenience favours the granting of interim relief; and the applicant has no other satisfactory remedy. See <em>Watson </em>v<em> Gilson Enterprises (Pvt) Ltd </em>1997 (2) ZLR 318(H).</p> <p>It is trite that an application stands or falls on the founding affidavit. The 1st applicant set out the <em>prima facie</em> right in paragraphs 32 to 35 of the founding affidavit. In summary the right is premised on their occupation of the farm from 2017. That they have invested  thousands of dollars in the farm, they have crops to be harvested and livestock to be protected, that they have entered into a farming contract and that the farm is now home for the family.</p> <p>It is difficult to appreciate how the applicants rely on their stay on the farm as a right. I am sure the right may be premised on the 2017 offer letter. The fact is that the offer letter that gave rise to their stay was withdrawn. The applicants do not have a valid offer letter in respect of the farm. Their right is now limited to the land set out in the valid offer letter. I find the expression of the applicants conduct synonymous with the appellant in the  <em>Airfield Investments (Private) Limited v  The Minister of Lands, Agriculture and Rural Resettlement &amp; Others</em><a href="#_ftn6" name="_ftnref6" title="" id="_ftnref6">[6]</a> case .Although the appeal court was addressing provisions of the Land Acquisition Act the sentiments are apposite in this case , the court  had this to say;</p> <p>‘The appellant was not in a position to show the existence of <em>prima facie</em> rights of ownership in the land which the first respondent was about to infringe because at the time it applied for the interim relief all the rights of ownership it had in the land had been taken by means of the order of acquisition and vested in the acquiring authority. When the appellant lodged the application for the interim relief before the court <em>a quo</em> the acquisition of the land by the State was a <em>fait accompli,</em> all rights of ownership having been extinguished on its part. The acquiring authority having done everything it was obliged by the law to do to acquire the land for resettlement purposes, there was no outstanding act against the performance of which the acquiring authority could be temporarily interdicted.</p> <p>An interim interdict is not a remedy for prohibiting lawful conduct. At the time the first respondent made the order by which the appellant was deprived of ownership of the land, he acted lawfully in the exercise of the power conferred upon him. Subsection (1) of s 8 of the Act gave him the power to make the order and its effect reflected the legal consequences of that lawful act.</p> <p>To suspend the effects of the order of acquisition lawfully made and intended by the legislature would amount to striking down the Act of Parliament or rendering it completely ineffective, thereby creating a vacuum pending determination of the constitutionality of the impugned sections of the Act. That would be improper for the court to do…’</p> <p>The case is authority for the following. Firstly that the applicant cannot claim a right that has been withdrawn by a lawful authority. The 1st respondent is the administrative body reposed with power to offer letters on state land and the concurrent power to withdraw such offer letters. Secondly, a court cannot interdict a lawful process. The 1st respondent’s withdrawal of the 2017 offer letter to the applicants was done in terms of the law. It is assumed to be lawful until set aside. Thirdly, pendency of litigation does not give rights to the applicant. The 1st respondent cannot be barred from conducting its duties based on pending litigation. In the final clearly the applicants failed to establish a prima<em> facie</em> right in the farm. As already stated their right is now based on the second offer letter and limited to the 488 hectares.</p> <p>I inquired from <em>Mr Mukwekwezeke</em> if the pending litigation gave rise to some rights to the applicants. His response was that indeed it did and undertook to file case law in support of the submission. He filed two cases <em>Setlogelo v Setlogelo<a href="#_ftn7" name="_ftnref7" title="" id="_ftnref7"><strong>[7]</strong></a> </em>  the leading case on the requirements of an interdict. The second case relied on was <em>Chunguno v Minister of Lands, Agriculture and Rural Resettlement<a href="#_ftn8" name="_ftnref8" title="" id="_ftnref8"><strong>[8]</strong></a>.</em> In the <em>Chunguno</em> case the applicant’s offer letter had not been withdrawn, the two beneficiaries to the land were offered different portions of land. Thus the facts are distinguishable and the <em>ratio decidendi</em> in that case is not applicable in the circumstances of this case.</p> <p>In respect of irreparable harm, the applicants submitted that the investment in the farm is likely to be damaged by the new offerees. There is no provision for compensation. Although the 1st respondent submitted that a written undertaking was made to compensate the applicants I do not think at this point there is irreparable harm that the applicants are likely to suffer. The 2nd respondent who is claiming title to the other part of the farm indicated that the applicants did not make improvements on the Gwebi Wood farm. The infrastructure on the farm is what he left and is actually in a dilapidated state. The applicants did not deny the assertions even though they had opportunity to do so. They also did not deny that, that part of the farm is not under use. It therefore means the assumed irreparable harm can only relate to the part that has not been offered to anyone. The applicants do not know when the allocation will take place.  </p> <p>Spoliation</p> <p>Spoliation is a common law remedy meant to discourage members of the public from taking the law into their hands but to follow due process. It has been described as a wrongful deprivation of possession.  The essential requirements for spoliation are set out in <em>Botha &amp; Anor v Barret<a href="#_ftn9" name="_ftnref9" title="" id="_ftnref9"><strong>[9]</strong></a></em>  where the court stated that:</p> <p>“It is clear that in order to obtain spoliation order, two allegations must be made and proved.  These are:</p> <p>1.that the applicant was in peaceful and undisturbed possession of the farm; and</p> <p>2.that the respondent deprived him of the possession forcibly or wrongfully <strong>against his consent</strong>.”</p> <p>(also see  <em>Chisveto v Minister of Local Government and Town Planning</em>1984 (1) ZLR 248 (H),   <em>Matimbura v Matimbura </em>SC 173/98, <em>Magadzire v Magadzire </em>SC 196/98, and <em>Karori (Pvt) Ltd &amp; Anor v Brigadier Mujaji</em> HH 23-07.).The applicants have to establish their case on a balance of probabilities since the order sought is final in nature.</p> <p>                        According to the applicants they were in peaceful and undisturbed possession of the farm until the 12th of July when the 2nd respondent removed their guards and brought in farming equipment to occupy the farm. Two affidavits were attached from security guards who confirmed the events that the 2nd respondent’s son actually went to the farm and threatened the guards. Maxwell Muranganwa the head security guard indicated that the 2nd respondent’s son brought in tractors and other farming equipment in the farm compound and indicated that they were taking over the farm. The facts were not denied by the 2nd respondent. However in his opposing affidavit the 2nd respondent justified his occupation on his title deed. His claim was that he is the lawful owner of the Gwebi Wood Farm which was acquired from him. It was consolidated with the RE of Sigaro and offered to the applicants. His title deed was subsequently restored. He also indicated that he confined his occupation to the unutilised portion of the land. Photographs were attached showing a dilapidated farm house, unused chicken run and fallow land.<em> Mr Kachambwa</em> in his oral submissions weighed in that the applicants were not in possession of that part of the farm because they were not using it. Therefore there was no spoliation to talk of.</p> <p>In <em>Superintendent Remembrancer Legal Affairs vs Anil Kumar<a href="#_ftn10" name="_ftnref10" title="" id="_ftnref10"><strong>[10]</strong></a></em> the court noted that a one size fits all definition of possession is difficult but it is agreed that possession has two essential elements actual power over the object possessed. i.e. <em>corpus possessionis</em> and intention of the possessor to exclude any interference from others. i.e. <em>animus possidendi.</em> Possession is factual as well as legal concept.</p> <p>Although the applicants did not file an answering affidavit disputing the facts set out that the land occupied was unused, l do not take that as a ground to despoil them. In my view it is not in dispute that the applicants held an offer letter in respect of the farm. It is not in dispute that they exercised rights over the farm. The fact of the possession is confirmed by the presence of the security guards on the farm. The fact that the main house, the chicken run and the land on that part of the farm lay fallow does not mean there was no possession. Despite the withdrawal of the offer letter, the 2nd respondent is required to take occupation in terms of the law. Even if it can be said the applicants are now unlawfully occupying the land they must be protected from unlawful conduct. At this stage the court does not have to inquire into ownership, it is about possession only. See <em>Etheredge   v Minister of State for National Security Responsible for Lands, Land Reform and Resettlement and Another</em><a href="#_ftn11" name="_ftnref11" title="" id="_ftnref11">[11]</a><em>.</em></p> <p>In the final the applicants have failed in their quest for an interim interdict. The application partially succeeds in respect of the spoliation order sought.</p> <p>Since the application partially succeeded each party must bear its costs.</p> <p>Accordingly the following order is made</p> <ol> <li>The provisional order for an interim interdict be and is hereby dismissed.</li> <li>The application for spoliation is granted.</li> <li>The 2nd respondent or anyone acting through him or under his instruction be and are hereby cease immediately all evictions of the applicants and removal of his property or farm workers.</li> <li>The 2nd respondent is ordered to return any and all portions of the farm called Model A2, Phase II in respect of subdivision Consolidation measuring 1 804,9719 HA of RE of Sigaro &amp; Gwebi Wood of Sigaro farm in the District of Mazowe Mashonaland Central Province.</li> <li>No order as to costs.</li> </ol> <p> </p> <p><em>Chimwamurombe Legal Practice Zenas Chambers,</em> applicant’s legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office</em>, respondent’s legal practitioners</p> <p><em>Madzima,Chidyausiku &amp; Museta</em> ,2nd respondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> SC 32/18</p> <p><a href="#_ftnref2" name="_ftn2" title="" id="_ftn2">[2]</a> HH 31/02</p> <p><a href="#_ftnref3" name="_ftn3" title="" id="_ftn3">[3]</a> SC 5/09</p> <p><a href="#_ftnref4" name="_ftn4" title="" id="_ftn4">[4]</a> The Civil Practice of the Supreme Court of South Africa 4th  ed by Van Winsen, Cilliers and Loots at p 249</p> <p><a href="#_ftnref5" name="_ftn5" title="" id="_ftn5">[5]</a> Zimbabwe Anti-Corruption Commission v Siney Uhse HH534/15 ; Tonbridge Assets Limited And Ors v Livera Trading (Private) Limited And Ors HH574/16</p> <p><a href="#_ftnref6" name="_ftn6" title="" id="_ftn6">[6]</a> SC36/04</p> <p><a href="#_ftnref7" name="_ftn7" title="" id="_ftn7">[7]</a> 1914 AD 221</p> <p><a href="#_ftnref8" name="_ftn8" title="" id="_ftn8">[8]</a>  HMT 9/18</p> <p><a href="#_ftnref9" name="_ftn9" title="" id="_ftn9">[9]</a> 1996 (2) ZLR 73  @79D-E</p> <p><a href="#_ftnref10" name="_ftn10" title="" id="_ftn10">[10]</a> AIR 1980 SC 52</p> <p><a href="#_ftnref11" name="_ftn11" title="" id="_ftn11">[11]</a> HH16/09</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/407/2021-zwhhc-407.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=33595">2021-zwhhc-407.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/407/2021-zwhhc-407.pdf" type="application/pdf; length=480404">2021-zwhhc-407.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/estoppel">ESTOPPEL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interdict">INTERDICT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-interdict">Application (INTERDICT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/requirements-interdict">Requirements for interdict</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/l">L</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/land-0">LAND</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/acquisition-land">Acquisition of land</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/holder-offer-letter-respect-land">holder of offer letter in respect of land</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/offer-letters-acquisition-land">offer letters (Acquisition of land)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/res-judicata">Res judicata</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/essentials-res-judicata">essentials of res judicata</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/issue-estoppel-res-judicata">issue estoppel (Res judicata)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/previous-litigation-between-same-parties-res-judicata">previous litigation between same parties (Res judicata)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/principles-res-judicata">principles (Res judicata)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/requirements-res-judicata">requirements for (Res judicata)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/s">S</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/spoliation">SPOLIATION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/order-spoliation">Order (SPOLIATION)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/possession-protected-spoliatory-remedies">Possession protected by spoliatory remedies</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/what-spoliation">What is (SPOLIATION)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2004/36">Airfield Investments (Pvt) Ltd. v Minister of Lands Agriculture and Rural Resettlement and Others (64/03) ((Pvt)) [2004] ZWSC 36 (02 June 2004);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2015/534">Zimbabwe Anti-Corruption Commission v Ushe (HC 4349/15 ) [2015] ZWHHC 534 (14 June 2015);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2017/122">Tonbridge Assets Ltd. &amp; Another v Livera Trading (Pvt) Ltd. &amp; Another (HH 122-17 HC 803/17) [2017] ZWHHC 122 (24 February 2017);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2007/23">Karori (Private) Limited and Another v Mujaji (HC 824/07) [2007] ZWHHC 23 (22 February 2007);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2009/16">Etheredge Minister of State for National Security Responsible for Lands, Land Reform And Resettlement and Another (HC 3295/08) [2009] ZWHHC 16 (03 February 2009);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1992/3">LAND ACQUISITION ACT</a></div></div></div> Wed, 18 Aug 2021 10:07:33 +0000 Sandra 10100 at https://old.zimlii.org Zimbabwe Leaf Tobacco v Cooke (Judgment No. HH 412-21) [2021] ZWHHC 412 (06 August 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/412 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HH 412-21</p> <p>HC 2035/20</p> <p>ZIMBABWE LEAF TOBACCO                                                          </p> <p>versus</p> <p>KEVIN GRAHAM COOKE</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>DUBE J</p> <p>HARARE, 31 March 2021 &amp; 6 August 2021</p> <p><strong>Opposed Application</strong></p> <p><em>B.S. Ziwa, </em>for the plaintiff</p> <p><em>R Stewart, </em>for the respondent</p> <p> DUBE JP:</p> <ol> <li>The plaintiff issued summons for civil imprisonment against the defendant for failure to pay a debt in terms of an order granted against him.</li> <li>On 29 November 2017, the plaintiff obtained judgment against the defendant for payment of US$$360 000 together with interest at the rate of 12 % per annum plus US$8 625 together with VAT thereon. Upon execution, the Sheriff returned a <em>nulla bona</em> return prompting the plaintiff to file for civil imprisonment. The plaintiff’s case is that the tobacco growing loan giving rise to this debt was financed using offshore funding and is payable in United States dollars in terms of applicable legal instruments. The plaintiff insists that the defendant ought to pay the outstanding debt in United States dollars and refutes that the defendant has paid back the loan in full.</li> <li>The defendant has refused to pay the debt in United States dollars and insists that the loan ought to be paid in RTGS dollars. The defendant resists civil imprisonment on the basis that he paid the debt in full. According to the defendant, he has paid a sum of $426 325.69 and an additional $50 0000. He submitted that the plaintiff has sought to apply a rate of exchange to repayments made on 18 September 2019 and 18 June 2020 respectively in violation of the law which is that all debts that existed prior to 22 February 2019 are payable at the rate of 1:1 to the RTGS dollar and this includes judgment debts. He contended that the claim for civil imprisonment is misguided as the plaintiff has no cause of action against him and urged the court ought to dismiss the summons for civil imprisonment.</li> </ol> <p> <em>The nature of civil imprisonment </em></p> <ol> <li>A summons for civil imprisonment calls upon a debtor to show cause why he should not be imprisoned for failure to pay a debt. The new High Court Rules 2021, published under Statutory Instrument 202 of 2021, make provision for imprisonment for a debt in r73. In terms of r73 (4), before a court makes an order for civil imprisonment, it should satisfy itself that the judgment debt has not been paid. In most civil imprisonment proceedings, liability is not an issue in which case the court’s enquiry is limited to the debtor’s ability to service the debt and the appropriateness of civil imprisonment. Where a debtor challenges civil imprisonment proceedings on the basis that he does not owe a contractual obligation or has cleared it, it is incumbent upon the court to resolve the dispute regarding liability first before delving into of appropriateness of civil imprisonment.</li> <li>In these proceedings, the issue is whether the balance due and outstanding by the defendant as at 22 February 2019 was due in RTGS dollars at the rate of 1:1 and whether the respondent has discharged his liability for the debt. The court must resolve first the question of the applicable currency and decide whether the defendant has cleared the debt. If this question is answered in the affirmative, that is the end of the matter. If the court finds that the defendant owes in terms of the court order granted against him and has neglected and failed to pay in terms of the order, the court will be required to enquire into the respondent’s ability and willingness to pay the debt in compliance with s 49(2) of the Constitution of Zimbabwe.</li> <li>The new rules make specific reference to s49 (2) in r73 (1) unlike r 370, its predecessor thereby giving guidance on the subject. Section 49(2) of the Constitution stipulates as follows:</li> </ol> <p>“(2) No person may be imprisoned merely on the grounds of inability to fulfil a contractual obligation.”</p> <p> </p> <p>The Constitution bars imprisonment of a person simply on the basis of a failure to fulfil a contractual obligation. Section 49(2) protects the right to personal liberty and enjoins a court dealing with a summons for civil imprisonment where it is satisfied that the debtor has not paid the amount due, to enquire into the question of the judgment debtor’s failure to pay the amount due.</p> <p> </p> <ol> <li>What this entails is that an indigent person will not be imprisoned for a debt simply because she owes. In terms of r 73, it must be shown that the debtor has the means to pay, earn the amount due and that his failure or refusal to pay the amount due is wilful. The fact that a debtor owes a contractual obligation does not necessarily call for his civil imprisonment. Civil imprisonment is a drastic measure which should be resorted to only as a last resort and only in instances where a debtor is able to service the debt but has shown an unwillingness to discharge the obligation. It is for this reason that the court is enjoined to carry out an enquiry to establish the financial position of the debtor and attitude to payment of the debt. The manner in which the debt will be cleared is considered in a case where the debtor is able to service the debt and shows a willingness to settle it.</li> </ol> <p><em>The Legal framework </em></p> <ol> <li>The plaintiff is in the business of financing tobacco growing projects. Sometime in May 2013 and July 2014, the defendant was advanced money and crop inputs in terms of a tobacco grower contract agreement. It obtained exchange control approval for the 2013-2014 and 2014-2015 tobacco growing seasons and was able to source foreign currency and purchase inputs to advance to tobacco growers, see Annexure C1and C2.  The defendant failed to pay back the grower debt. The loan advanced to the respondent was offshore funds advanced in United States dollars and is a foreign obligation denominated in foreign currency.</li> <li>There are a number of instruments that permit tobacco merchants to recover tobacco growing loans advanced in United States dollars. Financing and repayment of tobacco production is regulated by s 4(1)(a) of the Exchange Control (Tobacco Finance) Order, 2004, S.I 61 of 2004 which states that all auction and contract tobacco shall be paid for in United States Dollars. Section 5(3) provides that where a contractor has financed a tobacco grower by accessing offshore funds for that purpose, the amount used to finance the grower may be set off against the price of tobacco sold to the contractor by the grower. The purpose of the Exchange Control Order is to ensure that where offshore funds are used to finance tobacco production, the contractor is able to recover the money from growers in foreign currency to enable the contractor to repay the foreign loan.  A repayment in United States dollars or set off against the price of tobacco sold to the contractor enables the tobacco merchant to recoup his United States dollar investment.</li> </ol> <p> </p> <ol> <li> The Zimbabwean dollar was reintroduced on 24 June 2019 in terms of S.I 142 of 2019.  On 29 July 2019 the Reserve Bank issued the Clarification to the Tobacco Industry, Circular no 7 of 2019, states in s 2 as follows:</li> </ol> <p>“2. Treatment of US$ Denominated Inputs Advanced to Growers:</p> <p>2.1 Tobacco merchants have the option to use foreign currency sourced from local</p> <p>      banks (through global facilities) or offshore financing to procure inputs for</p> <p>      distribution to tobacco growers under contract arrangements.</p> <p>2.2 Where tobacco growers receive US $ input loans, repayment to the tobacco merchant</p> <p>shall be in foreign currency in order to protect the tobacco merchant’s investment.”</p> <p> </p> <ol> <li> Circular number 7 was issued in terms of s 35(1) of the Exchange Control Regulations</li> </ol> <p>S.I 106 of 1996.Section 2 of Circular no 7 states that a tobacco grower who obtains USD denominated input loans from a tobacco merchant is obligated to pay back in foreign currency. The purpose of the section is to provide clarification on payment to tobacco merchants by growers where a tobacco merchant has accessed offshore funding to finance the tobacco growing. The rationale of section 2 is to protect a tobacco merchant’s investment. It would be absurd to expect that the merchant recovers the loan in RTGS when he obtained a USD denominated input loan himself to finance the tobacco growing. The legal framework available entitles a tobacco merchant who has advanced United States dollars denominated input loans to a tobacco grower to recover the loan in foreign currency.  </p> <ol> <li>Section 4(1)(d) of the Statutory Instrument 33 of 2019 deems all assets and liabilities, including judgment debts denominated in United States dollars immediately before             22 February 2019 to be valued in RTGS dollars at a rate of 1:1, see <em>Zambezi Gas Zimbabwe (Pvt) Ltd. v N. R Barber (Pvt) Ltd</em> SC3/ 20. There was agreement over the import of this section. The parties disagreed over the applicability of this section to this case. The defendant ‘s contention that upon the introduction of the RTGS dollar on 22 February 2019, all assets and liabilities that were expressed in Zimbabwean dollars were converted to RTGS at the rate of 1:1 and therefore that this particular loan is payable in RTGS lacks merit. The defendant lost sight of the fact that there are instances when this section does not apply.</li> <li>Finance Act No 2 amended the Reserve Bank of Zimbabwe Act [<em>Chapter 22:15</em>] and introduced S 21(1) as s 44 C. Section 21(1) of Finance Act, No 2 of 2019 makes it clear that the conversion at the rate of 1:1 does not does not apply in the case of foreign loans and foreign obligations denominated in any foreign currency and stipulates as follows: <ol> <li>“Foreign loans and foreign obligations denominated in any foreign currency, which shall continue to be payable in such currency.”</li> </ol> </li> </ol> <p>            All these instruments ought to be read in harmony with the Finance Act.</p> <p> </p> <ol> <li>The defendant submitted that Exchange Control (Tobacco Finance) Order, S.I 61 of 2004 being subsidiary legislation, has the undesirable effect of overriding the provisions of Finance Act No 2 of 2019, being the enabling legislation. It is a fundamental rule of law that the purpose of subsidiary legislation is to supplement primary legislation. Subsidiary legislation must not be <em>ultra vires</em> the enabling Act.  Subsidiary legislation must not conflict with, run counter to or replace enabling legislation.</li> <li>Whilst debts pre-existing 22 February 2019 are payable at the rate of 1; 1 in RTGS, foreign obligations are ring fenced under s21 of Finance Act No2.  Foreign loans and obligations are an exception.  The Exchange Control (Tobacco Finance) Order makes provision for foreign loans and foreign obligations denominated in any foreign currency and provides that these shall continue to be payable in the currency involved. This setup is contemplated under the Finance Act. Consequently, the Exchange Control (Tobacco Finance) Order, S.I 61 supplements Finance Act No 2 of 2019 and has no effect of breaching its provisions or replacing it. The two pieces of legislation are not in conflict with each other and ought to be read in harmony.</li> <li>In <em>Zimbabwe Leaf Tobacco (Pvt) Ltd v Valentine T. Mushakarara</em> HH 220/20 the court dealt with a matter with similar facts to this case. The court considered the implications of S4 (1) (d) of S.I 33 of 2019, Finance Act no 2 of 2019, the Exchange Control (Tobacco Finance) Order of 2004, and Exchange Control Circular no 7 of 2019 and held that where a tobacco contractor has utilised offshore funds to finance tobacco growers, he is entitled to recover the loan in United States dollars. The decision of the court was upheld on appeal. </li> <li><em>In casu,</em> the plaintiff does not dispute that the plaintiff sourced offshore funds in United States dollars and advanced United States dollar denominated inputs to the defendant. The respondent did not refute that the money advanced to the defendant was part of a foreign loan obtained by the plaintiff in accordance with the 2013-2014 and 2014-2015 tobacco farming season with exchange control approvals.</li> <li> In <em>Breastplate Service (Pvt) Ltd v Cabria Africa PLC</em> SC 66 /20, the court zeroed in on issues regarding the intention of the parties in a contract and held that where the parties have agreed and expressed their intention that payment must be made in foreign currency, a court must give effect to that intention. The defendant entered into an agreement well aware of the nature of the agreement he was binding himself to. The contract defines  “grower debt as the value of the crop finance’’. It expressly states that payment to the plaintiff would equate to the crop finance. The defendant signed an acknowledgment of debt in June 2015 acknowledging owing sums in United States dollars. The issue of value and recovery has always been within the parties’ minds.    </li> <li>The nature of the debt entitles the plaintiff to recover the loan in United States dollars.  There is a correlating foreign obligation to repay a foreign loan in United States dollars.  The loan advanced being a foreign obligation the defendant is expected to pay the money back in United States dollars. This obligation is payable in United States dollars and is an exception to s 4(1) (d) of S.I 33 of 2019 which is not applicable to the circumstances of this case.</li> <li>I must conclude that based on the <em>Mushakarara case</em>, the defendant was required to pay back the loan in United States dollars because the tobacco growing contract was financed from offshore funds. The defendant has an obligation to pay the debt in foreign currency. The plaintiff has an entitlement to insist on payment in United States dollars.</li> <li>The plaintiff denied that the defendant has discharged the judgment debt in full and submitted that what appears on p13 of the record is a repayment plan and that the debt has not been discharged. This assertion was not disputed.  The summons for civil imprisonment is for USD$360 000. The plaintiff’s explanation for claiming the entire debt despite that the defendant has been servicing the debt is that the repayment plan is silent on the issue of interest, which has not been paid and hence claims the entire sum granted in terms of the order.</li> <li>The repayment plan produced shows instalments due, payments made and the balance outstanding. It shows that the plaintiff continued to receive payments after the order was granted.  As at 23 July 2018 the balance outstanding was US$193 844.31. The defendant claims that he had paid a total of UD$161 355 as at this date. The defendant submitted that entries of Z$50 000 instalments of 31 December 2018 and 31 December 2019 were made in error. The defendant needed to show that the payments made after this cleared the debt.   On 18 September 2019 the defendant paid Z$25 000 which was converted to US$ 1804.34. On 18 June 2020, Z$190 000 (9600) was paid.  On 25 June 2020 the defendant paid Z$50 000 and it is not known how much this amount translated to in United States dollars as at that date. This amount does not, even if one takes into account the Z$50 000 paid later on and the Z$100. 000 purportedly paid in error, clear the debt. The amounts paid, albeit in RTGS dollars reduce the balance but are not sufficient to discharge the debt in full. The appearance is that the defendant still owes the plaintiff part of the debt which he has failed to pay. According to the plaintiff there is a balance of USD$182 414. The defendant has failed to show that he settled the debt in full. The court has considered that in addition to the capital debt, it has not been shown that the interest, VAT and additional sum of US$8625 has been paid.</li> <li>The defendant contended that because the plaintiff accepted payment in RTGS, it is estopped from claiming in United States dollars. No authority was advanced for the proposition that because the plaintiff accepted payment in RTGS dollars, it is estopped from claiming payment in United States dollars. The fact remains that the debt is a foreign obligation liable to be paid in foreign currency. The law permits settlement of debts in RTGS dollars for obligations sounding in United States dollars at the interbank rate. In any event, the applicant is amenable to receiving payment in RTGS dollars at the interbank rate.  </li> <li> The parties are to set down the matter for an enquiry to be carried out in terms of the rules.   It is at this hearing that the court will determine how much has been paid so far, consider how much the interest component of the debt is and determine the exact figure owed.</li> </ol> <p> </p> <p>Accordingly, it is ordered as follows.  </p> <ol> <li>The parties are to set the matter down for an enquiry to be conducted in terms of r 370 of the High Court Rules, 1971.</li> <li>Costs shall be in the cause.</li> </ol> <p> </p> <p><em>Gill, Godloton &amp; Gerrans,</em> applicant’s legal practitioner</p> <p><em>Messers Matizanadzo &amp; Warhurst</em>, respondent’s legal practitioners</p> <p> </p> </div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/contract">CONTRACT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/loan">Loan</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/exchange-control">EXCHANGE CONTROL</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/exchange-rate">Exchange rate</a></li></ul></span> Wed, 18 Aug 2021 06:58:21 +0000 Sandra 10098 at https://old.zimlii.org Barclays Bank of Zimbabwe v Mapfanya And Anor (Judgment No. SC 90/21, Civil Appeal No. SC 103/19) [2021] ZWSC 90 (02 November 2019); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2019/90 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Judgment No. SC 90/21</p> <p>Civil Appeal No. SC 103/19</p> <p><strong>REPORTABLE </strong><strong>                   (87) </strong></p> <p> </p> <p><strong>BARCLAYS     BANK     OF     ZIMBABWE     LIMITED </strong></p> <p><strong>v </strong></p> <ol> <li><strong>    NORMA     MAPFANYA     (2)     SILINGANISO     MOYO     N.O.</strong></li> </ol> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GOWORA JA, GUVAVA JA &amp; BERE. JA</strong></p> <p><strong>BULAWAYO: 20 NOVEMBER 2019</strong>    </p> <p>E.T. Moyo for the appellant</p> <p>A. Sibanda for the first respondent</p> <p><em>No appearance </em>for the second respondent</p> <p><strong>GOWORA JA:                      </strong></p> <p> </p> <p><strong>[1]        </strong>This is an appeal against a judgment of the Labour Court dismissing an application for the review of an arbitral award in favour of the first respondent. The second respondent is the arbitrator whose award is the genesis of the application for review. The arbitrator did not file papers in the court <em>a quo</em> and did not appear before this Court. As a consequence, there is only one respondent. After hearing the parties in this matter we allowed the appeal with costs. The substantive order will be set out in detail after the discussion of our reasons for judgment which are set out hereunder.</p> <p> </p> <p><strong>THE FACTS</strong></p> <p>[2]        The respondent was employed by the appellant in 1980. Her initial post upon employment is not described in the papers but she rose through the ranks until she became the Senior Retail Manager for the Bulawayo branch in 2001. During 2006 the appellant and the respondent were engaged in a protracted labour dispute. This appeal is the culmination of that dispute. The respondent’s main contention was that the appellant was guilty of unfair labour practices which constituted constructive dismissal.</p> <p> </p> <p>[3]        She alleged that she had, over a period of time, been shuffled from a number of departments and, further to that, that she would be given posts that were later found to be fictitious. She also alleged that she had been demoted to lesser posts from 2001 to 2007 when she finally lodged a complaint. The matter was referred to arbitration.</p> <p> </p> <p>[4]        In dealing with the matter, the arbitrator found that the respondent’s contract of employment had been unilaterally varied and ordered her reinstatement. Subsequent to the reinstatement. The respondent that the appellant had not ceased the unfair labour practices and that the intolerable conditions in the workplace had in fact worsened. The respondent also alleged that she was sent on forced leave under the guise that the appellant wished to have an office prepared for her occupation as head of the debt collection department. She claimed that there were no debts to be collected.</p> <p> </p> <p>[5]        These events forced the respondent to apply to the Labour Court. According to the judgment, the respondent had filed an <strong><em>“application for constructive dismissal. The applicant is asking the court to make a determination that the conduct of the employer made employment so intolerable for her to the extent that she has to be compensated for the losses she suffered contractually”. </em>(my emphasis)</strong></p> <p> </p> <p>[6]        There is no suggestion anywhere in the record that she resigned her position as a result of these practices by the appellant. She however claimed that she had incurred losses in salaries, bonuses, and benefits. These were not quantified before the Labour Court.</p> <p> </p> <p>[7]        On 9 July 2014, under judgment number LC/JDT/MT/101/14, the Labour Court rendered a judgment in the following terms:</p> <p>“In the result, I allow the application and find that the respondent should compensate the applicant for all the losses she suffered in salaries, salary increments, and bonuses. The matter is remitted to the arbitrator Miss S Mutare to hear the parties on the quantification of “such losses”. She is directed to deal with the matter within a month of receipt of this order.</p> <p> </p> <p>The respondents are ordered to pay the costs of this application on a higher scale for the abuse of the court process”.</p> <p>           </p> <p>[8]        As ordered by the Labour Court, the parties appeared before the arbitrator for the quantification of the “losses suffered” by the respondent. In her statement of claim, she claimed amounts representing salaries/bonuses/profit shares. She also claimed a car allowance and salary adjustments. In prosecuting the claim, the respondent requested that the appellant be directed to furnish to her documents that could prove that she had suffered the alleged losses in salaries, increments, bonuses, and benefits.</p> <p> </p> <p>[9]        The arbitrator accepted the contention by the respondent that she was entitled to be furnished with the documents. On 5 February 2018 the arbitrator issued an order for the appellant to produce the documents set out hereunder:</p> <ol> <li>Actual payroll i.e payslips and payroll journal for B5 and B6 managers for the same for selected months from February 2009 to date.</li> <li>List of all managers in B5 and B6 promoted from 2000 to date.</li> <li>A clear salary progression for applicant from 2009 to January 2018 (to include increments and bonuses etc).</li> <li>Payroll for February 2009 to December 2009 and where there are no pay-slips provide excel pay-slip extract.</li> <li>From 2010 to December 2017 provide pay-slips for January, February, March, and April for each year and their payroll journals.</li> <li>Applicant to be served with excel spreadsheets without names.</li> <li>Provide explanatory notes where necessary.</li> </ol> <p> </p> <p>[10]      The appellant sought a review of the order by the arbitrator. The appellant alleged that there was a gross irregularity in the decision by the arbitrator to order the production of a wide range of payroll documents and, that the manner in which the decision was made created a reasonable apprehension of bias against the appellant.</p> <p> </p> <p>[11]      On the first point, that of gross irregularity, the appellant contended that the documents requested and ordered to be produced served to reverse the principle on the burden of proof in civil litigation. It was further contended that the arbitrator failed to have regard to the confidential nature of some of the documents requested and that it was apparent that this fact had not exercised the mind of the arbitrator before proceeding to issue the order. It was also contended that some of the documents were irrelevant for the determination of the matter before the arbitrator. Some of the documents were inaccessible and could no longer be located due to the length of time that had elapsed.</p> <p> </p> <p>[12]      As regards the issue of bias, it was contended that the arbitrator had proceeded to give an order for production of the documents primarily based on what the respondent demanded and that no regard was placed on the appellant’s cogent objections to the same.</p> <p> </p> <p>[13]      The court <em>a quo</em> was disinclined to grant the application for review. The court found no evidence of bias on the record. It also found that the process by which the arbitrator dealt with the application did not show any irregularity. The court dismissed the application with costs.          </p> <p> </p> <p>[14]      The appellant was aggrieved and noted this appeal on the following grounds:</p> <p>“ 1.      The learned judge of the Labour Court erred at law in holding that the order to produce documents was purely administrative which decision the court would be loath to interfere with on review.</p> <p>2.         The learned judge of the Labour Court grossly misdirected herself on the facts and erred at law in finding that:</p> <p>2.1       Both parties had agreed before the arbitrator on the documents to be produced and the appellant dictated those documents as directed by the second respondent.</p> <p>2.2       That it was uncontroverted that the appellant dictated the terms which became the directive of the second respondent on the documents to be produced.</p> <p>3.      The learned judge of the Labour Court misdirected herself and erred at law in failing to appreciate that the directive by the second respondent on the production of documents was unduly wide, oppressive, invasive, and trawling in nature as to be irrational and consequently reviewable on grounds of gross irregularity.”       </p> <p> </p> <p><strong>ARGUMENTS ON APPEAL</strong></p> <p>[15]      The appellant argued as follows. The decision of the court <em>a quo</em> that the decision was purely administrative and could not be interfered with was improper. He argued that s 89(1)(dl) of the Labour Act empowers the Labour Court to review the decisions of arbitrators.</p> <p> </p> <p>[16]      Besides, it was contended that the Labour Court had made an erroneous finding on the minutes before the court which did not support the conclusion reached by the court. The appellant argued that the court’s failure to consider whether or not the documents were necessary to advance the respondent’s case amounted to an irregularity warranting interference.</p> <p> </p> <p>[17]      Per contra, the respondent argued that the application before the Labour Court was improper on the premise that the appellant had not complied with Articles 12 and 13 of the Arbitration Act [<em>Chapter 7:15</em>]. Further to this, the respondent contended that the application for review fell foul of r 20 of the Labour Court Rules, S.I. 150/17 in that the application had been brought prematurely before the conclusion of proceedings before the arbitrator. The respondent further contended that the appellant had not substantiated the alleged bias or irregularity and, as a consequence, the court <em>a quo</em> could not be criticized for dismissing the application for review.</p> <p> </p> <p><strong>ISSUES FOR DETERMINATION   </strong></p> <p>[18]      It is not necessary, in my view, to delve into the grounds piecemeal. The only ground is whether or not the directive by the arbitrator was an irregularity as contended by the appellant. Aligned to this issue is the regularity of the order issued by the Labour Court remitting the matter to the arbitrator. It seems to me, however, that the respondent approached the Labour Court directly through an application seeking relief arising out of an alleged constructive dismissal. The critical issue for determination as the first port of call is whether or not the Labour Court had the requisite jurisdiction to entertain such an application and if so, whether such jurisdiction was properly exercised under the circumstances. </p> <p> </p> <p><strong>THE JURISDICTION OF THE LABOUR COURT</strong></p> <p> </p> <p>[19]      In the process of preparing reasons for the judgment, it occurred to the court that they might have been questions about the jurisdiction of the Labour Court sitting as a court of first instance in the claim for relief premised on an alleged constructive dismissal. Counsel for both parties were requested to address the court on this issue by filing written argument. Only counsel for the appellant complied with the request and we are indebted to him for availing the submissions in question.</p> <p> </p> <p>[20]      The respondent approached the Labour Court claiming constructive dismissal. Unfair dismissal, of which constructive dismissal is also one of the forms of unfair dismissal is proscribed in s 12B of the Act. This section provides, in relevant part:</p> <p> </p> <p><strong>12B Dismissal</strong></p> <p>(1) Every employee has the right not to be unfairly dismissed.</p> <p> </p> <p>(2) n/a</p> <p> </p> <p>(3) An employee is deemed to have been unfairly dismissed—</p> <p>(<em>a</em>) if the employee terminated the contract of employment with or without notice because the</p> <p>           employer deliberately made continued employment intolerable for the employee;</p> <p> </p> <p> </p> <p>(4) In any proceedings before a labour officer, designated agent, or the Labour Court where the fairness of the dismissal of an employee is in issue, the adjudicating authority shall, in addition to considering the nature or gravity of any misconduct on the part of the dismissed employee, consider whether any mitigation of the misconduct avails to an extent that would have justified action other than dismissal, including the length of the employee’s service, the employee’s previous disciplinary record, the nature of the employment and any special personal circumstances of the employee.</p> <p> </p> <p> </p> <p>[21]      On a proper construction of s 12B, it becomes evident that proceedings for the adjudication of the fairness of a dismissal lie before a labour officer, a designated agent, or the Labour Court in terms of s 12B (4). <em>In casu</em>, the respondent made a direct approach to the Labour Court for relief. According to the judgment, the respondent filed an application for appropriate relief alleging that the employer had by its conduct, constructively dismissed her from employment.  The judgment is silent as to which section of the Act the application was premised upon. It becomes necessary to then determine whether or not the matter was properly placed before the Labour Court.</p> <p> </p> <p>[22]      The Labour Court is a creature of Statute and it is to the Act that one must turn to determine its jurisdictional ambit. Section 89 is pertinent in this regard. It reads as follows:  </p> <p><strong>89 Functions, powers and jurisdiction of Labour Court</strong></p> <p>(1) The Labour Court shall exercise the following functions—</p> <p>(<em>a</em>) hearing and determining applications and appeals in terms of this Act or any other</p> <p>          enactment; and</p> <p>(<em>b</em>) hearing and determining matters referred to it by the Minister in terms of this Act; and</p> <p>(<em>c</em>) referring a dispute to a labour officer, designated agent, or a person appointed by the     Labour Court to conciliate the dispute if the Labour Court considers it expedient to do so;</p> <p>(<em>d</em>) appointing an arbitrator from the panel of arbitrators referred to in subs (6) of section <em>ninety-eight </em>to hear and determine an application;</p> <p>(<em>d</em>1) exercise the same powers of review as would be exercisable by the High Court in respect of labour matters;</p> <p>[Paragraph inserted by s 29 of Act 7 of 2005]</p> <p>(<em>e</em>) doing such other things as may be assigned to it in terms of this Act or any other enactment.</p> <p> </p> <p>[23]      Amongst its functions as bestowed upon it by the Act, the Labour Court is empowered to hear applications. Constructive dismissal as alleged by the respondent would fall under Part XII of the Act which provides for the resolution of disputes and unfair labour practices. An unfair labour practice is a dispute of right. According to the definition in the Act, a dispute of right is:</p> <p>“dispute of right” means any dispute involving legal rights and obligations, including any dispute occasioned by an actual or alleged unfair labour practice, a breach or alleged breach of this Act or of any regulations made under this Act, or a breach or alleged breach of any of the terms of a collective bargaining agreement or contract of employment.”</p> <p> </p> <p> </p> <p>[24]      An employee who claims relief against constructive dismissal alleges a breach of the Act and more particularly s 12B which provides that an employee has the right not to be unfairly dismissed. An employee seeking redress based on the allegation of the violation of a right must have recourse to s 93 of the Act under which such disputes are provided for.   The respondent filed her application sometime in 2010. I consider the appeal in the light of the relevant legislation as it was during the period in question before amendments made to the Act subsequently. The specific section providing for such is s 93. It read as follows:</p> <p><strong>93 Powers of labour officers</strong></p> <p>(1)  A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation or, if agreed by the parties, by reference to arbitration.</p> <p> </p> <p>(2)  If the dispute or unfair labour practice is settled by conciliation, the labour officer shall record the settlement in writing.</p> <p> </p> <p>(3)  If the dispute or unfair labour practice is not settled within thirty days after the labour officer began to attempt to settle it under subs (1), the labour officer shall issue a certificate of no settlement to the parties to the dispute or unfair labour practice.</p> <p> </p> <p>(4)  The parties to a dispute or unfair labour practice may agree to extend the period for conciliation of the dispute or unfair labour practice referred to in subs (3).</p> <p> </p> <p>(5)  After a labour officer has issued a certificate of no settlement, the labour officer, upon consulting any labour officer who is senior to him and to whom he is responsible in the area in which he attempted to settle the dispute or unfair labour practice —</p> <p>(<em>a</em>)  shall refer the dispute to compulsory arbitration if the dispute is a dispute of interest and the parties are engaged in an essential service; or</p> <p>(<em>b</em>)  may, with the agreement of the parties, refer the dispute or unfair labour practice to compulsory arbitration; or</p> <p>(<em>c</em>)  may refer the dispute or unfair labour practice to compulsory arbitration if the dispute or unfair labour practice is a dispute of right, and the provisions of section <em>ninety-eight </em>shall apply to such reference to compulsory arbitration.</p> <p> </p> <p>(6) …..</p> <p> </p> <p>(7)   If, in relation to any dispute or unfair labour practice —</p> <p>(<em>a</em>)  after a labour officer has issued a certificate of no settlement in relation to the dispute or unfair labour practice, it is not possible for any reason to refer the dispute or unfair labour practice to compulsory arbitration as provided in subs (5); or</p> <p>(<em>b</em>)  a labour officer refuses, for any reason, to issue a certificate of no settlement in relation to any dispute or unfair labour practice after the expiry of the period allowed for conciliation under subs (3) or any extension of that period under subs (4); any party to the dispute may, in the time and manner prescribed, apply to the Labour Court—</p> <p>(i) for the dispute or unfair labour practice to be disposed of in accordance with para (<em>b</em>) of subs (2) of section <em>eighty-nine</em>, in the case of a dispute of interest; or</p> <p> </p> <p>(ii) for an order in terms of para (<em>c</em>) of subs (2) of section <em>eighty-nine</em>, in the case of a dispute of right.</p> <p> </p> <p>[25]      I have set out the provisions of s 93 <em>in extenso</em> in an effort to crystalize the jurisdictional ambit of the bodies under the Act that are empowered to determine specific disputes or matters. A reading of s 93 shows that a complaint of unfair labour practice is made to the labour officer. This is the office empowered under the Act to receive such complaints. The labour officer is required to conciliate the dispute before embarking on other processes provided for under the Act. There is no provision in the section, nor any other section in the Act, for the reference of a complaint of unfair labour practice directly to the Labour Court. The Labour Court in its judgment did not refer to the section under which it assumed jurisdiction nor have I found one.</p> <p> </p> <p>[26]      I am constrained to conclude as I do, that the Labour Court lacked the jurisdiction to entertain, as a court of first instance, a complaint of unfair dismissal arising out of a dispute of right provided for under s 12B. The matter was not properly before the court and it should have declined jurisdiction to hear the application. It ought to have struck the matter off its roll. It did not do so. The proceedings, therefore, constitute a gross irregularity and cannot stand. They must be set aside on the basis of that irregularity.</p> <p> </p> <p>[27]      Ordinarily the above finding should be dispositive of this case. For the sake of completeness and the assistance of the Labour Court, it is necessary that I comment on the procedure adopted by the learned judge in the court <em>a quo</em>.  These comments have assumed importance not only because of the absence of a cause of action based on an alleged constructive dismissal but also arising from the relief that the court <em>a quo</em> availed to the respondent, which relief was disconnected to a finding of constructive dismissal and, was in fact, not the relief claimable pursuant to a finding of constructive dismissal.</p> <p>I commence with the issue of the allegation of constructive dismissal as that allegation is directly tied to the proceedings before the arbitrator.</p> <p> </p> <p> </p> <p><strong>WHAT IS CONSTRUCTIVE DISMISSAL</strong></p> <p> </p> <p> [28]     Constructive dismissal is defined in s 12B (3) of the Act as discussed above. It is important that an employee terminates his or her employment as a result of deliberate conduct on the part of the employer which renders continued employment intolerable for the employee.</p> <p> </p> <p> </p> <p>A definition of what constitutes constructive dismissal is found in <em>Workplace Law</em>, by the learned author John Grogan<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a>, wherein he states:</p> <p>“The further form of statutory dismissal is the termination of the contract of employment by the employee with or without notice because the employer made continued employment intolerable for the employee’-in other words, where employees resign or otherwise terminate their contracts because they are left with no option but to do so by the employer’s conduct.</p> <p> </p> <p>The first requirement of constructive dismissal is that an employment relationship must exist at the time the employee leaves the employer’s service. Where an employee refused to sign a new contract of employment and ‘resigned’ after the employer stopped his salary, the court held that the employee could not have been constructively dismissed because the employment relationship ended.</p> <p>The second requirement is that the employee must have brought the relationship to an end.”</p> <p> </p> <p>[29]      The definition by Grogan omits the deliberate conduct on the part of the employer to render continued employment intolerable for the employee which is part of our labour law. In all other respects, the definition tallies with the definition in the Act.</p> <p> </p> <p>[30]      In this case, the respondent approached the Labour Court seeking that the court decides that the conduct of the employer made employment so intolerable for her to the extent that she has to be compensated for the losses she suffered contractually. Nowhere in the judgment does the learned judge state that the respondent resigned or left employment due to the actions of the employer. It is a common cause between the parties that, although she may have been subjected to the alleged intolerable conditions, she did not leave employment. The findings by the court <em>a quo</em> make this clear. In the learned judge’s reasoning is found the following passage:</p> <p>“After the court order that compelled the employer to withdraw the forced leave, all the other workers in the debt collectors department were deployed except for her. She remained there for a long time and would be reading newspapers. The treatment given to the applicant by the employer led to her ill health, her heart developed problems, she became gravely ill and as a result, she takes pills for life.</p> <p> </p> <p>She has thus been pushed to the periphery of banking for no plausible reason and suffered losses in the process.</p> <p> </p> <p>The employer denies all that but the denial is bare as the applicant has provided undisputed evidence. The employer argues that by asking the court to intervene, it is tantamount to asking the court to interfere with the employer’s prerogative to make changes in the place of work. They argue that the court cannot interfere with such managerial prerogative.”</p> <p> </p> <p>[31]      An employee cannot premise a claim for constructive dismissal unless the employment contract has been terminated. This position is set out clearly in the Labour Act.</p> <p> </p> <p>[32]      Section 12B (3) has received attention in various judgments within the jurisdiction. In <em>Astra Holdings (Pvt) Ltd v Kahwa </em>SC 97/04, MALABA JA (as he then was), stated:<a href="#_ftn2" name="_ftnref2" title="" id="_ftnref2">[2]</a></p> <p> </p> <p>“Constructive dismissal is claimable where an employer has committed conduct which as a breach goes to the root of the contract of employment so as to constitute repudiation and by reason of that conduct the employee leaves employment.   In <em>Western Excavating </em>v <em>Sharp </em>[1978]1 ALL ER 713 LORD DENNING MR  at 717 d–f said;</p> <p> </p> <p>“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance.   If he does so, then he terminates the contract by reason of the employer’s conduct.   He is constructively dismissed.   The employee is entitled in those circumstances to leave at the instant without giving any notice at all or alternatively, he may give notice and say he is leaving at the end of the notice.   But the conduct must, in either case, be sufficiently serious to entitle him to leave at once.   Moreover, he must make up his mind soon after the conduct of which he complains, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged.   He will be regarded as having elected to affirm the contract.”</p> <p> </p> <p>The respondent did not claim constructive dismissal.   The conduct she complained of was that Astra Holding had not paid her salary and benefits from 1 April 2000 to the date of the order applied for in the court <em>a quo</em>.   At no time did she say that because of the conduct of Astra Holding, she had treated herself as having been discharged from employment and left. She affirmed the contract of employment when she rejected the offer by Astra Holding to terminate it by mutual agreement.”</p> <p> </p> <p>[33]      Section 12B (3) also received attention in <em>Mbatha v National Foods (Pvt</em>) Ltd SC 149/20. Therein the court stated that the employer must have intentionally done something which causes the employee to terminate the contract of employment intending to cause the termination of such employment.  </p> <p> </p> <p>[34]      In <em>casu</em>, there was no finding by the court that the respondent terminated her contract of employment due to the intolerable conditions at the workplace. Although she claimed constructive dismissal, she did not terminate the employment relationship. She continued in the relationship.</p> <p> </p> <p>[35]      In the absence of proof that the employee terminated the employment relationship arising out of intolerable conditions at the workplace, an employee cannot mount litigation for relief premised on constructive dismissal. The first premise for such a claim is an assertion that the employee left work due to intolerable conditions created by the employer. In this case, the employee was still in employment when the application for relief was launched. The order by the Labour Court to issue an order for losses in the circumstances was most irregular. There was no proper claim for constructive dismissal before that court. The consequential order issued after that finding was therefore irregular. The order was not premised on a proper claim.</p> <p> </p> <p>[36]      The court <em>a quo</em> also ordered that the arbitrator quantify the losses incurred by the respondent. She had not claimed any losses before the Labour Court. A loss must be pleaded in specific terms. The learned Judge in the Labour Court made an order which assumed, in the absence of a specific claim and evidence in proof thereof, that the respondent had suffered losses. This is a gross irregularity. The order of remittal and the finding upon which the remittal was  premised were also irregular.</p> <p> </p> <p>DISPOSITION</p> <p>[37]      It follows therefore that the proceedings before the Labour Court, being a gross irregularity due to the absence of jurisdiction on the part of the court <em>a quo,</em> must be set aside by this court in the exercise of its review powers under s 25 of the Supreme Court Act [<em>Chapter 7:13</em>], which provides as follows: </p> <p> </p> <p>“<strong>25 Review powers</strong></p> <p>(1) Subject to this section, the Supreme Court and every judge of the Supreme Court shall have the same power, jurisdiction, and authority as are vested in the High Court and judges of the High Court, respectively, to review the proceedings and decisions of inferior courts of justice, tribunals, and administrative authorities.</p> <p> </p> <p>(2) The power, jurisdiction, and authority conferred by subs (1) may be exercised whenever it comes to the notice of the Supreme Court or a judge of the Supreme Court that an irregularity has occurred in any proceedings or in the making of any decision notwithstanding that such proceedings are, or such decision is, not the subject of an appeal or application to the Supreme Court.</p> <p> </p> <p>(3)  Nothing in this section shall be construed as conferring upon any person any right to institute any review the first instance before the Supreme Court or a judge of the Supreme Court, and provision may be made in rules of court, and a judge of the Supreme Court may give directions, specifying that any class of review or any particular review shall be instituted before or shall be referred or remitted to the High Court for determination.”                </p> <p> </p> <p>[38]      In the exercise of the review power vested in the Supreme Court in terms of the above-mentioned provision, the proceedings before the Labour Court, under case number LC/MT/42/10, and the judgment of the Labour Court under case number LC/JDT/101/14 are accordingly set aside. The proceedings before the arbitrator, which were premised on the judgment of the Labour Court above are also set aside on the grounds that they constitute an irregularity.  </p> <p> </p> <p>[39]      It was for the above reasons that we issued the following order:</p> <p> </p> <p> </p> <ol> <li>The appeal is allowed with costs</li> <li>In the exercise of the powers of review of this Court in terms of s 25(2) of the Supreme Court Act [<em>Chapter 7:13</em>], the judgment of the Labour Court, namely judgment number LC/JDT/MT101/14 dated 9 July 2014 be and is hereby set aside on the grounds that it is an irregularity.</li> <li>The directive by the Honourable Arbitrator S Moyo, dated 5 February 2018, and the proceedings connected therewith be and are hereby set aside on the grounds that they constitute a gross irregularity.   </li> </ol> <p> </p> <p> </p> <p><strong>GUVAVA JA                             </strong>:           I agree</p> <p>                                                                      </p> <p><strong>BERE JA                                                </strong>:           (no longer in office)                                                                 </p> <p> </p> <p><em>Scanlen &amp; Holderness</em> <em>legal practitioners</em>, for the appellant</p> <p><em>Joel, Pincus, Konson &amp; Wolhuter</em> <em>legal practitioners</em>, for the first respondent</p> <p> </p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> 11 ed, p174</p> <p><a href="#_ftnref2" name="_ftn2" title="" id="_ftn2">[2]</a> At pp3-4 of the cyclostyled judgment</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2019/90/2021-zwsc-90.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=43812">2021-zwsc-90.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2019/90/2021-zwsc-90.pdf" type="application/pdf; length=462960">2021-zwsc-90.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/arbitration-0">Arbitration</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/dismissal-0">Dismissal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/employee-0">Employee</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/labour-court-see-also-employment-labour-relations-tribunal">Labour Court See also EMPLOYMENT (Labour Relations Tribunal).</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2004/97">Astra Holdings (Pvt) Ltd. v Kahwa (65/01) ((Pvt)) [2004] ZWSC 97 (17 May 2004);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1996/6">Arbitration Act [Chapter 7:15]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div><div class="field-item even"><a href="/zw/legislation/act/1981/28">Supreme Court Act [Chapter 7:13]</a></div></div></div> Fri, 13 Aug 2021 10:25:01 +0000 Sandra 10095 at https://old.zimlii.org Mbatha v Confederation of Zimbabwe Industries And Another (CCZ 5/21, Court Application No. CCZ 13/20) [2021] ZWCC (13 July 2021); https://old.zimlii.org/zw/judgment/constitutional-court-zimbabwe/2021/5 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Judgment No. CCZ 05/21</p> <p>Court Application No. CCZ 13/20</p> <p><strong>DISTRIBUATABLE:</strong><strong>          (5)</strong></p> <p><strong>RITA     MARQUE     MBATHA</strong></p> <p><strong>v</strong></p> <p><strong>(1)     CONFEDERATION     OF     ZIMBABWE     INDUSTRIES     (2)     THE     SHERIFF     OF     ZIMBABWE</strong></p> <p> </p> <p><strong>CONSTITUTIONAL COURT OF ZIMBABWE</strong></p> <p><strong>GARWE AJCC, GOWORA AJCC &amp; PATEL AJCC</strong></p> <p><strong>HARARE: 23 NOVEMBER 2020 &amp; 13 JULY 2021</strong></p> <p> </p> <p>Applicant in person</p> <p><em>T. Zhuwarara</em>, for the first respondent</p> <p><em>No appearance for </em>the second respondent</p> <p> </p> <p><strong>GOWORA AJCC</strong>: This is an application for leave for direct access to the court made in terms of s 167(5) of the Constitution (“the Constitution”), as read with r 21(2) and (3) of the Constitutional Court Rules, 2016 (“the Rules”). The application is opposed.</p> <p> </p> <p>FACTUAL BACKGROUND</p> <p>The applicant and the respondent were involved in a labour dispute which ultimately found its way before the Supreme Court. The Supreme Court found in favour of the applicant and ordered the respondent to pay the applicant an amount of USD41 161.30 as damages for unlawful dismissal.</p> <p> </p> <p>Pursuant to the order, the applicant caused a writ of execution to be issued out for the attachment of the movable property of the respondent in satisfaction of the judgment. She instructed the second respondent to execute the writ. Upon service of the writ, on 15 January 2020, the first respondent paid through RTGS the sum of 43 495.37. Notwithstanding such payment, the applicant caused the seizure of the respondent’s movable property which prompted the latter to seek a provisional order to stay the execution of the writ.</p> <p> </p> <p>The applicant was undeterred. On 7 July 2020, she caused the issuance of an additional writ, this time against the movable and immovable property of the respondent. On 28 July 2020, an immovable property of the first respondent was attached in execution pursuant to the second writ. The second respondent was instructed to sell the property. The sale was scheduled to take place on 2 October 2002.</p> <p> </p> <p>The first respondent reacted. It filed an urgent court application seeking the setting aside of the second writ of execution and the consequential attachment of the immovable property. The applicant was given five days to respond to the application.</p> <p> </p> <p>Due to an error, the matter was treated as an urgent chamber application instead of a court application and referred to a judge in chambers. The applicant had not, at that stage, filed any papers in response. There was also no proof on record that the first respondent had served the court application on the applicant as required by the rules of court. At the time, the <em>dies induciae</em> stated on the application had not expired and the matter was removed from the roll for urgent chamber applications.</p> <p> </p> <p>After correspondence from the first respondent to the High Court pointing out the errors was received, the error was rectified and the parties filed their papers in accordance with the rules.</p> <p> </p> <p>The applicant had grievances on how papers of the application were served on her. She filed several letters in the record raising issues on how the matter was being dealt with by the first respondent and the conduct of the matter by court officials. The first respondent also requested audience with the judge to whom the matter had been assigned. The learned judge acceded and set a date for the parties to appear before her. On 28 September 2020, the parties appeared before a judge of the High Court in chambers for a case management meeting to prepare a road map for the disposal of the matter.</p> <p> </p> <p>During the meeting, the first respondent requested that the applicant agree to a postponement of the judicial sale of the immovable property. The applicant would not agree resulting in the former making an oral application for the suspension of the sale in execution. Pursuant to that meeting an order in the following terms was issued:</p> <p>“IT IS ORDERED THAT:</p> <ol> <li>First respondent to be served with applicant’s answering affidavit and heads of argument forthwith.     </li> <li>The first respondent shall if she so wishes file her heads of argument on or before 5 October 2020.</li> <li>The matter HC 4380/20 be set down on 8 October 2020.</li> <li>The writ of execution in SC 119/19 be suspended pending the decision of the court in HC 4380/20.</li> <li>Costs of the stay in execution incurred by the second respondent pending the decision of the court in HC 4380/20 shall be borne by the applicant.”</li> </ol> <p>           </p> <p>On 7 October 2020, the applicant filed this application for direct access to the Court. She attached a copy of the main application she wishes to file under s 85(1) of the Constitution in which she alleges that her rights had been violated by the order granted by the court <em>a quo</em>.</p> <p> </p> <p>THE LAW   </p> <p>The applicant intends to bring an application to the Court under s 85(1) of the Constitution alleging a violation of her fundamental rights as enshrined in s 56(1) of the Constitution. She alleges that her right to protection of the law under s 56(1) of the Constitution was infringed by a judgment of the High Court issued on 28 September 2020. Section 167(5) of the Constitution provides that rules of the court must allow a person, when it is in the interests of justice, with or without leave, to bring a constitutional matter to the Constitutional Court. In turn, r 21 makes provision for the manner of bringing such application to the court. Rule 21 (2) requires that such application be supported by an affidavit setting out the facts upon which the applicant seeks relief.</p> <p> </p> <p>The founding affidavit by the applicant for direct access does not set out any facts as required by r 21(2). Instead, the applicant incorporates her founding affidavit in the main application and the pleadings filed under Case No HC 4380/20.</p> <p> </p> <p>Direct access is an extraordinary remedy that should only be granted in exceptional cases. Rule 21(3) provides in relevant part as follows:</p> <p>(3)    An application in terms of subrule (2) shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out—</p> <p>(<em>a</em>)     the grounds on which it is contended that it is in the interests of justice that an order for direct access be granted; and</p> <p>(<em>b</em>)     the nature of the relief sought and the grounds upon which such relief is based; and</p> <p>(<em>c</em>)     whether the matter can be dealt with by the court without the hearing of oral evidence or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.</p> <p>(4) The applicant shall attach to the application a draft of the substantive application.</p> <p> </p> <p>As is evident from subrule (3)(c) the applicant should state in the affidavit whether the matter can be dealt with by the court without the need to hear oral evidence or, if it cannot, how such evidence should be adduced and any conflict of facts resolved. The applicant has not complied with this additional requirement.</p> <p> </p> <p>In <em>Zimbabwe Development Party v President of Zimbabwe</em> CCZ 3/18, the court said the following:</p> <p>“The Rules set out the objective factors a litigant has to state in a chamber application for direct access for consideration by the Court or Judge in the determination of the question whether it is in the interests of justice to grant direct access. There must be filed with the registrar, and served on all parties with direct or substantial interest in the relief claimed, an application setting out the grounds on which it is claimed it is in the interests of justice that direct access be granted.”</p> <p> </p> <p>The view I take is that notwithstanding the omissions in the affidavit, this is a matter in which the court can reach a determination on the substance. This is because the papers themselves, including the record from the High Court, clearly map out the events surrounding the order by the court <em>a quo</em>. In addition, the learned judge provided detailed reasons for the order made. For that reason, it is my view that the failure to set out the facts as required by r 21 (2) does not disable the court from determining this matter.</p> <p>   </p> <p>I consider each of the requirements as provided in the rule <em>ad seriatim</em>.</p> <p> </p> <p>WHETHER IT IS IN THE INTERESTS OF JUSTICE THAT DIRECT ACCESS BE GRANTED.</p> <p>The Constitutional Court is a specialised court and in terms of s 167(1), b) decides only constitutional matters and issues connected with decisions on constitutional matters. It thus exercises jurisdiction as a court of first instance and an appeal court. In view of the limited jurisdiction of this Court, direct access to the court for the exercise of its jurisdiction for the vindication of a fundamental right premised on s 85 of the Constitution as a court of first instance is granted to a litigant who is able to show that it is in the interests of justice for direct access to the court to be granted to such litigant. </p> <p> </p> <p>The import of the principle for the requirement that an applicant for direct access show that it is in the interest of justice that the application be granted ought not to be minimized. The requirement was explained by I Currie and J de Waal in “The Bill of Rights Handbook”, 6ed, at p 128 as follows:</p> <p>“Direct access is an extraordinary procedure that has been granted by the Constitutional Court in only a handful of cases.</p> <p>……</p> <p>If constitutional matters could be brought directly to it as a matter of course, the Constitutional Court could be called upon to deal with disputed facts on which evidence might be necessary, to decide constitutional issues which are not decisive of the litigation and which might prove to be of purely academic interest and to hear cases without the benefit of the views of other courts having constitutional jurisdiction. Moreover …… it is not ordinarily in the interest of justice for a court to sit as a court of first instance, in which matters are decided without there being any possibility of appealing against the decision given.”</p> <p> </p> <p>A court that sits to decide whether or not it is in the interests of justice that direct access be granted may take into account a number of factors for consideration. Those factors are set out in r 21(8) as follows:</p> <p>(8)     In determining whether or not it is in the interest of justice for a matter to be brought directly to the Court, the Court or Judge may, in addition to any other relevant consideration, take the following into account—</p> <p> </p> <p>(<em>a</em>) the prospects of success if direct access is granted;</p> <p> </p> <p>(<em>b</em>) whether the applicant has any other remedy available to him or her;</p> <p> </p> <p>(<em>c</em>) whether there are disputes of fact in the matter.</p> <p> </p> <p>Within this jurisdiction, the requirement that an applicant shows prospects of success as regards the main application as provided for in r 21 (8) was settled in <em>Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor</em> CCZ 11/18, wherein the court made the following remarks:</p> <p>“The Court turns to determine the question whether the applicant has shown that direct access to it is in the interests of justice. Two factors have to be satisfied. The first is that the applicant must state facts or grounds in the founding affidavit, the consideration of which would lead to the finding that it is in the interests of justice to have the constitutional matter placed before the court directly, instead of it being heard and determined by a lower court with concurrent jurisdiction. The second factor is that the applicant must set out in the founding affidavit facts or grounds that show that the main application has prospects of success should direct access be granted.”  (emphasis is mine)</p> <p> </p> <p><em>In casu,</em> it is common cause that the decision that the applicant alleges to be in violation of her rights is an interlocutory one. It was the decision to suspend the sale of the first respondent’s immovable property pending the determination of the matter on the substance. The suspension of the sale did not determine any rights of the respective parties. The decision served to preserve the rights of the parties until a decision on the merits had been made. The court reasoned thus:</p> <p>“This Court is required to decide, on 8 October 2020, whether the payment by the applicant,(first respondent herein), of $43, 495,37 to the Deputy Sheriff on 14 January 2020 sufficiently discharged its indebtedness to first respondent thus warranting a stay of execution and the setting aside of the writ issued on 7 July 2020. While first respondent is a self-actor she ought to understand that it is improper to insist on a sale in execution and thus render the decision of the court a <em>brutum fulmen</em>, particularly where the date of disposal of the matter has been agreed. In any event, she suffers no prejudice as the property remains under attachment with costs for the suspension of the sale being to the charge of the applicant. If she succeeds in opposing the application for stay of execution, she can continue with the execution which is merely being suspended, and not set aside. However, if execution is allowed to continue and it transpires that the applicant had indeed settled the judgment debt in full, then the harm to it would be irreparable as its property would have been sold to an innocent third party. While it is understandable that the first respondent is frustrated at the delay in obtaining just satisfaction for the applicant, it cannot be reasonable to insist on the sale in execution as that makes the whole process an exercise in futility. Therefore the balance of convenience favours the applicant.”</p> <p> </p> <p>A consideration of the reasons by the learned judge in the lower court shows that the real dispute between the parties has not even been heard. Thus, the rationale for the applicant to insist on execution of the writ of 7 July 2020 has not yet been ventilated. There are issues of fact and law that have yet to be determined.</p> <p>Indeed, if the applicant had not mounted these proceedings the main dispute which was scheduled for hearing on 8 October 2020 would have been decided by the High Court by now.</p> <p>This means that there is not even an issue of the applicant not having exhausted her domestic remedies as there were no domestic remedies to resort to. As explained by her ladyship in the judgment, the suspension of the sale was a reasonable intervention that would serve to achieve justice between the parties. The court had to decide whether or not the first respondent had satisfied the judgment debt and, in the interim, to ensure that the judgment would not be a <em>brutum fulmen</em> the sale had to be suspended. No prejudice ensued against either party as the applicant, would if successful, be able to have the sale continue and recover from the sale whatever the court would have decided was still owed.</p> <p>As a consequence, the court is disabled from considering the first factor mentioned in the rules, that of prospects of success. There is nothing to consider and determine due to the fact that the real dispute between the parties is pending before the court <em>a quo</em>.</p> <p>The correct position is that proceedings between the parties are still pending in the High Court. This, therefore, means that the application is ill-conceived and this court has in several cases pronounced on the imprudence of an applicant adopting this course of action. The dicta in <em>Chihava v Provincial Magistrate Mapfumo N.O &amp; Anor</em> 2015(2) ZLR 31,  at 38G-H, are apposite. GWAUNZA JCC (as she then was) remarked:</p> <p>“I, therefore, entertain no doubt that the certainty referred to above would be completely eroded were the courts to operate based on a literal and grammatical interpretation of s 85(1). This circumstance is not only highly undesirable, but it would also constitute an affront to the time-honoured common law principle that a superior court should be slow to intervene in ongoing proceedings in an inferior court, except in exceptional circumstances. This principle is persuasively articulated as follows in the case of <em>Wahlhaus v Additional Magistrate, Johannesburg </em>1959 (3) SA 113 (A);</p> <p>“ … a superior court would be slow to exercise any power upon the unterminated course of criminal proceedings in a court below, but would do so in rare cases where grave injustice might otherwise result or where justice might not by other means be attained.” See also <em>Mushapaidze v St Anne’s Hospital &amp; Ors CCZ 18/17</em></p> <p> </p> <p> </p> <p>The above remarks are apposite in this case. The High Court is seized with a very critical issue between the parties, viz, whether or not the first respondent has met its obligations in terms of the judgment obtained by the applicant. The court <em>a quo </em>is not aware of these proceedings or the fact that its directive is being impugned by the applicant. A perusal of the founding affidavit to the main application will tend to show that the applicant is aggrieved by the grant of the stay of execution concerning the sale scheduled for 2 October 2020. I do not read from the substance of the affidavit an allegation that the court <em>a quo</em> conducted itself in a manner that could be considered a violation of the applicant’s rights to a fair hearing. The complaints emanating from the affidavit focus on procedural and substantive issues regarding the order suspending the sale in execution.</p> <p>In <em>Bruce v Fleecytex Johannesburg CC</em> 1998 (2) SA 1143(CC) [4], the Constitutional Court of South Africa, in considering an application for direct access made the following remarks:</p> <p>“……..If Bruce is entitled to any relief she can obtain it from the High Court. In effect what she is now seeking to do through the application for direct access is to appeal against the decision of Wunsh J on an issue that was not raised in the proceedings before him, and to avoid the normal appeal procedure by launching proceedings for direct access to this Court.  </p> <p>[22] KENTRIDGE AJ made it clear in his judgment in <em>S v Zuma and Others</em> [26] that applications for direct access are to be entertained in exceptional circumstances and not merely to avoid the consequences of incorrect procedures that have been followed. If, notwithstanding the pending appeal, Bruce is entitled to raise the constitutionality of s 180(3) of the Insolvency Act in separate proceedings, she can initiate such proceedings in the High Court; but if she is not entitled to do so, she cannot avoid the consequences of her earlier omission by applying to this court for relief.</p> <p>[23] I am satisfied that grounds for direct access have not been established and that this is not a proper case for the granting of such relief.”  </p> <p> </p> <p> </p> <p>There is a suggestion that the learned judge had indicated that the matter was not urgent. This does not appear to be supported by the learned judge’s reasons for its removal from the roll. In any event, it is of no moment as the matter was filed as an urgent court application and not an urgent chamber application. There is a difference in the manner of treatment of the two by the registrar and the court itself.</p> <p> </p> <p>An urgent chamber application must be placed before the judge in chambers upon its filing, whereas an urgent court application must comply with the <em>dies induciae</em> as stated on the face of the application. It must be placed on the roll after the respondent or respondents, as the case may be, have been availed an opportunity to file papers in opposition.</p> <p> </p> <p>DISPOSITION</p> <p>I do not find it necessary to consider whether or not the applicant has established whether or not there is no other remedy available or if the matter cannot be dealt with without the calling of evidence. The application seeks to challenge interlocutory proceedings and this is not permissible in the light of the authorities referred to above.</p> <p> </p> <p>From the aforegoing, the applicant has not established that it is in the interests of justice that the application be granted. The application must fail.</p> <p> </p> <p>The first respondent has prayed that the applicant be mulcted with an order for costs. In constitutional matters, it is not the norm that costs be awarded against the unsuccessful litigant. The first respondent has not suggested that the applicant is guilty of vexatious conduct or an abuse of court process. Nor has it been suggested that the application is frivolous. In the premises, it is my view that an order for costs is not warranted.</p> <p> </p> <p>Accordingly, it is ordered that the application be and is hereby is dismissed with no order as to costs.  </p> <p> </p> <p><strong>GARWE AJCC                         :</strong>           I agree</p> <p> </p> <p><strong>PATEL AJCC                           :    </strong>       I agree</p> <p><em>Gill, Godlonton &amp; Gerrans</em>, legal practitioners for the first respondent </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2021/5/2021-zwcc.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=36878">2021-zwcc.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2021/5/2021-zwcc.pdf" type="application/pdf; length=449412">2021-zwcc.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/court">COURT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/abuse-process-0">Abuse of process</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/unlawful-dismissal">Unlawful dismissal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/human-rights">HUMAN RIGHTS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/substantive-rights">Substantive rights</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/equality-law-and-equal-protection-law">Equality before the law and equal protection of the law</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/execution-practice-and-procedure">Execution (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/sale-execution">sale (Execution)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/stay-execution">stay of execution</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/constitutional-court-zimbabwe/2018/3">Zimbabwe Development Party &amp; Another v President of the Republic of Zimbabwe &amp; 2 Others (CCZ 3/18, Constitutional Application No. CCZ 15/18) [2018] ZWCC 3 (28 May 2018);</a></div><div class="field-item odd"><a href="/zw/judgment/constitutional-court-zimbabwe/2018/11">Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited &amp; Anor (CCZ 11/18, Constitutional Application No. CCZ 54/17) [2018] ZWCC 11 (20 November 2018);</a></div><div class="field-item even"><a href="/zw/judgment/constitutional-court-zimbabwe/2015/6">Chihava &amp; Another v Provincial Magistrate Mapfumo N.O. &amp; Another (No. 02/14) [2015] ZWCCZ 6 (14 July 2015);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Mon, 19 Jul 2021 08:58:19 +0000 Sandra 10085 at https://old.zimlii.org Triangle (Pvt) Ltd v Mutasa (NO) And 10 Others (SC 77-21, Civil Appeal No. SC 845/18) [2021] ZWSC 77 (24 June 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/77 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Judgment No. SC 77/21</p> <p>Civil Appeal No. SC 845/18</p> <p> </p> <p><strong>REPORTABLE</strong><strong>:   (74)</strong></p> <ol> <li><strong>    TRIANGLE    (PRIVATE)     LIMITED</strong></li> </ol> <p><strong>v</strong></p> <ol> <li><strong>    FUNGAI     GEORGE     MUTASA     (NO)     (2)     A.B     MORAR     (3)     A.J     BOSCH     (4)     E.     ESTON     (5)     E.     GAVAZA     (6)    A.J.     VAN     RENSBURG     (7)     R.T     KARIDZA     (8)     L.     MABIKA     (9)     D.I.     MANCLINTOSH     (10)     I.     MIDDLETON     (11)     MUSHORIWA     </strong></li> </ol> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GARWE JA, MAVANGIRA JA &amp; MAKONI JA</strong></p> <p><strong>HARARE: 4 JUNE 2020 &amp; 24 JUNE 2021</strong></p> <p> </p> <p><em>T. Zhuwarara,</em> for the appellant</p> <p><em>F. Mahere</em>, for the 2nd -10th respondents</p> <p>No appearance for the 1st respondent</p> <p> </p> <p><strong>GARWE JA</strong></p> <p>[1]        This is an appeal against the judgment of the Labour Court confirming with an amendment a ruling by a labour officer that the appellant was guilty of an unfair labour practice and that the appellant pays to each of the respondents arrear compensation due to them for the period March 2011 to September 2015. The appellant seeks an order setting aside the confirmation and, in its place, another order dismissing the application for confirmation with no order as to costs. </p> <p> </p> <p> [2]       Having gone through the papers filed in this matter and after hearing counsel, I am not persuaded that the Labour Court was, except for part of its order, wrong in confirming the ruling by the labour officer.</p> <p> </p> <p><em>BACKGROUND FACTS</em></p> <p>[3]        The first respondent herein Fungai George Mutasa, is a labour officer to whom an allegation of unfair labour practice was referred by the second to the eleventh respondents (“the respondents”). He unsuccessfully attempted to settle the matter by conciliation following which he then heard the parties in order to come up with a draft ruling in terms of s 93 (5)(c) of the Labour Act, <em>[Chapter 28:01] </em>(“the Act”)<em>.</em></p> <p> </p> <p>[4]        The respondents are employed by the appellant and fall in what the appellant calls the E Band employment grade. The appellant is a wholly-owned subsidiary of Tongaat Hullett, a South African company. In addition to the benefits they enjoyed in Zimbabwe in terms of their conditions of employment commensurate with their grade, the respondents also enjoyed membership of the Tongaat Hullett Pension Fund, a South African registered pension fund as well as the Discovery Essential Saver Plan, which enabled them to access medical services in South Africa. On 21 February 2011, the respondents were advised of the intention to terminate their entitlement to both the Pension Fund and the Discovery Essential Saver Plan with effect from 28 February 2011. It was indicated in that communication that the respondents would each be paid accrued benefits in cash or alternatively such benefits would be transferred to a retirement annuity or pension preservation fund held in each employees name with a registered entity of the employee’s choice in South Africa. It was further indicated that the cost related to the current monthly fund contributions would be incorporated into each employee’s monthly United State Dollar package in Zimbabwe with effect from 1 March 2011. As regards the Discovery Essential Saver Plan, compensation was to be paid by incorporating the monthly member contributions, which translated to a hundred per cent contribution by Tongaat Hullett, into each employee’s monthly United States Dollar package in Zimbabwe.  </p> <p> </p> <p>[5]        The exchange of correspondence between the parties reveals that the respondents made several follow-ups to have the compensation paid and the contributions incorporated into their cash packages. This was to no avail. The papers further show that the appellant demanded that the respondents move from the Triangle Senior Staff Pension Fund (TSSPF) to the Money Plan Pension Scheme to enable these benefits to be processed.  Owing to the stalemate, the respondents approached the High Court and, in an order dated 26 February 2015, the court determined that the TSSPF remained valid and binding and that there was no obligation on the respondents to migrate to the Money Plan. The court consequently ordered the appellant to commence making its contributions and to actuate the TSSPF. Appellant was further ordered to pay the costs of the application. That order remains extant as it was not appealed against. Notwithstanding that order, the appellant did not pay compensation or incorporate the monthly contributions into the employee’s monthly United States Dollar package.</p> <p> </p> <p> [6]       In their statement of claim before the labour officer, the respondents averred that, in addition to benefits accruing in Zimbabwe, their conditions of service also provided for contractual entitlements to the Tongaat Hullett Pension Fund and the Discovery Essential Saver Plan, both of which were operational in South Africa. They further averred that it was the appellant that undertook to pay to each employee the accrued fund benefits or to transfer such fund to a retirement pension preservation fund and to incorporate the monthly fund contributions into the cash packages in Zimbabwe. They averred further that the pension fund and Saver Plan were open to all employees in the E Band, regardless of the nature of one’s pension in Zimbabwe.  The decision not to pay the respondents was a punitive measure because the respondents had dared to assert their rights to membership of the TSSPF in the High Court.  </p> <p> </p> <p> [7]       The respondents further alleged that the appellant had accepted its obligation to compensate the respondents when it communicated its decision to terminate the two benefits. The appellant had then proceeded to pay those employees who had agreed to join the Money Plan Pension Scheme in Zimbabwe but had then withheld compensation to the respondents. They therefore submitted that, by withholding the compensation, the appellant and its directors were guilty of an unfair labour practice. They therefore asked for a ruling directing the appellant to cease the unfair labour practice and to pay the arrear compensation.  They further averred that the amounts should be paid “without any additional tax losses” by them.</p> <p> </p> <p>[8]        In its response to the complaint, the appellant stated that the benefits which formed the subject of the matter were availed as a measure to cushion the employees from the harsh economic situation obtaining in Zimbabwe at the time and that these benefits were being administered by Tongaat Hullett, a South African company and the holding company of the appellant.  The benefits did not become vested in the contracts of employment of the respondents and remained discretionary on the part of the holding company. Therefore, so the appellant argued, whatever obligations the holding company created pursuant to the grant of these benefits do not bind the appellant. The benefits were paid and administered by Tongaat Hullett and, consequently, the appellant, as a subsidiary, had no obligation to actuate those benefits. The appellant further submitted that any claims that had arisen more than two years before the hearing of the matter were prescribed in terms of s 94 of the Act. In other words, if it was found that an unfair labour practice resulting in the underpayment of the respondents had taken place, then the monthly underpayments would constitute separate causes of claim.</p> <p> </p> <p>[9]        In his analysis of the evidence and submissions made on behalf of the parties, the labour officer found that the letter of 21 February 2011 unequivocally placed an obligation on the appellant to compensate the respondents and to incorporate the monthly fund contributions and member contributions into the respondents’ United States Dollar cash package in Zimbabwe with effect from 1 March 2011.  He further found that the fact that the pension fund was administered by another agency other than the appellant itself did not mean the employees were employed by that agency. He therefore concluded that the payment of compensation of accrued benefits was a right.  This was more so given the fact that the other employees in the same grade as the respondents who had migrated to the Triangle Money Plan have accessed their pension fund contributions and have had their Saver Plan incorporated into their monthly cash package in Zimbabwe. On the question of prescription, he found that, as the parties had been communicating over the issue, the matter was of a continuous nature and therefore the claim had not become time-barred. Lastly, he found that when the appellant’s managing director wrote to the respondents, at no stage did he indicate that he was not writing on behalf of the appellant and that he was doing so on behalf of the holding company. Consequently he concluded that, by withholding the benefits, the appellant was guilty of an unfair labour practice. He therefore ordered that the appellant cease such unfair labour practice and pay individual arrear compensation to each of the respondents.  </p> <p> </p> <p><em>PROCEEDINGS BEFORE THE LABOUR COURT</em></p> <p>[10]      Having made the above draft ruling, the labour officer referred the same to the Labour Court for confirmation in terms of s 93 (5)(a) of the Act.  In its submissions before the Labour Court the appellant argued that the labour officer had grossly erred in finding that the benefits, the subject of this matter, had become vested in the contracts of employment entered into by the respondents. The benefits remained discretionary on the part of Tongaat Hullett. It further argued that whatever obligations Tongaat Hullett may have created were not binding on the appellant, a mere subsidiary. Lastly, the appellant submitted that the labour officer had misdirected himself in not finding that some of the claims by the respondents had prescribed. Having submitted their complaint to the arbitrator in September 2015, the respondents would only have succeeded on those claims that had arisen after September 2013, i.e. within the period of two years from the date when the unfair labour practice or dispute arose.  The monthly underpayments would have constituted separate causes of action.  Therefore the pensions claimed from March 2011 to September 2013 would have become prescribed. </p> <p> </p> <p>[11]      In their submissions before the Labour Court the respondents stated as follows. The appellant was attacking findings of fact made by the labour officer. There was no allegation that such findings were irrational.  On prescription, they submitted that the unfair labour practice was continuing at the time the matter was referred to the labour officer and that, in terms of s 94 (2) of the Act, the claims had not prescribed.</p> <p> </p> <p> [12]     The Labour Court agreed with the labour officer, but for a different reason, that the unfair labour practice was continuing and therefore the claim was not prescribed in light of s 94 (2) of the Act. The court agreed with the other factual findings made by the labour officer but was of the view that the order directing the managing director and board of directors to effect payment was irregular as they had not been heard before the order was made.  The court accordingly confirmed the draft ruling but amended it to remove the reference to the managing director and board of directors from the order.</p> <p><em>PROCEEDINGS BEFORE THIS COURT</em></p> <p>[13]      Unhappy with the outcome of the confirmatory proceedings, the appellant noted an appeal to this Court.  It alleged that the Labour Court had erred:-</p> <ul> <li>In determining that the respondents’ claim was not prescribed.</li> <li>In confirming the finding by the labour officer that the appellant had an obligation to pay the respondents when it was apparent that the benefits claimed had arisen from an agreement to which appellant had not been a party.</li> <li>In making a finding as regards the respondents’ attendant tax obligations and placing an obligation on the appellant to pay any ensuing tax penalties.</li> <li>In assuming review and / or appellate jurisdiction during the confirmation proceedings when the court has no such power.</li> </ul> <p> </p> <p> [14]     In its heads of argument before this Court, the appellant has submitted as follows. Section 94 of the Act provides for a prescriptive period of two years from the date when the dispute or unfair labour practice first arose. Having submitted their claim to the arbitrator on 9 September 2015, any claims by the respondents prior to 9 September 2013 would have become prescribed as each monthly underpayment constituted a separate cause of action. The appellant further submitted that the benefits were initially offered by Tongaat Hullett, its South African holding company, which subsequently terminated the benefit. Its own attempts to incorporate the benefits into the respondents’ contracts of employment were not accepted by them and consequently never became a contractual entitlement. The benefits could therefore be extinguished without the consent of the respondents. It further submitted that, not being privy to the agreement between the respondents and Tongaat Hullett, it had no obligation to pay any of the benefits and, consequently, no unfair labour practice has been perpetrated by it. On the order directing the appellant to pay ZIMRA tax penalties, it was its submission that this was a declarator which the court <em>a quo </em>had no jurisdiction to make. The court had determined a contingent right, being the contingent tax penalty which had not arisen and may not arise at all. Lastly, it submitted that the Labour Court misconstrued its powers during confirmation proceedings. It could not, in terms of the law, rehear the matter. Nor could it amend the ruling to remove reference to the managing director.</p> <p> </p> <p> [15]     The respondents pray that the appeal be dismissed with costs. They have submitted as follows. In terms of s 94(2) of the Act prescription does not apply to a dispute or unfair labour practice which is continuing at the time it is referred to a labour officer.  The appellant continues to discriminate against the respondents and has refused to pay them their monthly dues. The wrong was a continuous one and the respondents’ claim was therefore not prescribed. The respondents have further submitted that they had no relationship with Tongaat Hullett outside of their employment contracts, which contracts entitled them to the benefits now the subject of this matter.  The appellant had at all times accepted its obligation to pay the benefits. They further argue that the order directing the appellant to pay tax penalties was proper and that the court <em>a quo </em>correctly exercised its confirmatory jurisdiction.</p> <p> </p> <p> [16]     During oral argument, Ms <em>Mahere</em>, for the respondents, raised an objection to the submission by the appellant’s counsel that s 94 (2) of the Act did not arise because the matter between the parties was a dispute and not an unfair labour practice.  She submitted that this was a new point being taken on appeal for the first time. The effect of that submission was that s 94(2) of the Act would not arise because the issue before the labour officer was a dispute and not an unfair labour practice.  At no point had the appellant taken the position that the matter between the parties was a dispute and not an unfair labour practice.  She submitted that, in any event, regard being had to s 6 (1)(e) of the Act, the appellant’s conduct constituted an unfair labour practice as the latter had withheld the benefits due to the respondents as punishment for having sought recourse in the High Court. This conduct, in addition to the failure to pay the benefits, falls squarely within the ambit of an unfair labour practice as defined in s 8 of the Act.  Moreover, the challenge in the first ground of appeal is whether or not the unfair labour practice was continuous and not whether the conduct was an unfair labour practice in the first place.  </p> <p> </p> <p> [17]     Counsel for the appellant denied that it had changed its submission on the question of prescription, thereby taking the respondents by surprise. He submitted that it was appellant’s primary position that there was no unfair labour practice and that even if it were so, the two year prescriptive period would still apply. The respondents’ cause has always been that the conduct by the appellant of withholding compensation was their basis for alleging an unfair labour practice. The appellant has always argued that the claims were prescribed and that no reliance could be placed on s 94 (2) of the Act. What the court <em>a quo </em>determined was the time when the dispute arose. On a proper appreciation of the common cause facts, the respondents’ claims for compensation were prescribed.</p> <p> </p> <p><em>ISSUES FOR DETERMINATION</em></p> <p> [18]     From the foregoing, it seems to me that four issues arise for determination by this Court.  The first issue relates to the question whether the matter referred by the respondents’ to the labour officer was referred as a mere dispute or an unfair labour practice and, concomitantly whether the claim by the respondents had become prescribed. The second issue is whether the court <em>a quo </em>was correct in confirming the labour officer’s ruling that the appellant had an obligation to pay the benefits.  The third is whether the court <em>a quo </em>correctly confirmed the order directing the appellant to pay additional tax losses by the respondents. The last is whether the court <em>a quo </em>could, in confirmation proceedings, re-hear submissions and amend the ruling.  I relate to each of these issues in the same order in which they arise.</p> <p> </p> <p><em>WHETHER THE MATTER REFERRED TO THE LABOUR OFFICER WAS A MERE DISPUTE</em></p> <p> [19]     The contentious issue that arises is whether the matter referred by the respondents to the labour officer was so referred as mere dispute or as an unfair labour practice and whether, in terms of s 94 (2) of the Act, the claims by the respondents were prescribed. There is no doubt in my mind that, although the respondents did not, at the time they approached the labour officer, specifically refer to the provisions of s 8 of the Act dealing with unfair labour practices by an employer, the gravamen of their complaint was one of an unfair labour practice and not just a dispute.</p> <p> </p> <p> </p> <p>[20]      The letter referring the matter to the Principal Labour Officer by the respondents’ legal practitioner is dated 8 September 2015. It states in no uncertain terms that the matter being referred was one “of breach of employment contracts and unfair practices by Triangle Limited.” It makes the allegation that the appellant had “withheld payments due to them as a way of punishing them for asserting their rights in court.” It further alleges “unlawful conduct which is not only discriminatory and breach of employment contracts but a blatant unfair labour practice which we hereby request your office’s intervention in terms of the Labour Act.” It then requests the labour officer to proceed in terms of s 93 of the Act.</p> <p> </p> <p>[21]      It is the contents of that letter that kick-started the process of conciliation. When conciliation failed, the labour officer came up with a draft ruling which was then referred to the Labour Court for confirmation. In the draft ruling the labour officer found that when the employees turned down the request for them to exit from TSSPF to the Triangle Money Plan, the appellant had “proceeded to compensate all executives who are members of the Money Plan Pension Scheme in Zimbabwe and withheld compensation only to those executives who all along have been and are still members of the Triangle Senior Staff Pension Fund.” He further found the employees’ “assertion of discrimination persuasive” and that the appellant “should not have precluded them from enjoying the incorporation of compensation into the cash package or their salaries on the basis of their refusal to exit from the Triangle Senior Staff Pension Scheme as prescribed by the Respondent.” The labour officer concluded that, by withholding compensation, “the appellant, its managing director and Board of Directors” were guilty of an unfair labour practice. In his founding affidavit to the application for confirmation, the labour officer states that he “presided over the matter on 25 September 2015 on the alleged breach of contract of employment and unfair labour practice.”</p> <p> </p> <p>[22]      Although the labour officer on occasions used the terms “matter, “dispute”, it is clear he used these interchangeably with the term unfair labour practice.  At no stage did the labour officer entertain the idea that what he was dealing with was a mere dispute as opposed to an unfair labour practice. It was for that reason that the labour officer went on to consider “whether the matter … between the contending parties were (sic) of a continuous nature”- a clear reference to s 94 (2) of the Act.</p> <p> </p> <p> [23]     The appellant itself accepted that the issue before the labour officer involved an investigation into whether or not it (the appellant) had committed an unfair labour practice. In its written response to the complaint raised before the labour officer, it submitted that the respondents were only entitled to those claims which had arisen within two years of the date of the submission of the matter to the labour officer.  It even accepted that, were it to be found that it had committed an unfair labour practice resulting in underpayment every month, then such monthly underpayments would constitute separate causes of action. It submitted that the respondents could not rely on subs (2) of s 94 of the Act and argue that the unfair labour practice (if such was one) was still continuing. In other words the appellant accepted that should the labour officer find that there was an unfair labour practice, he should further find that each such monthly underpayment constituted a separate cause of action in respect of which the two-year prescriptive period provided in subs (2) of s 94 would apply. At no stage did the appellant argue that the matter before the labour officer was not an unfair labour practice but rather a mere dispute – a point belatedly raised during oral argument.  In all the circumstances therefore I hold that the issue before the labour officer was whether the appellant had committed an unfair labour practice by deliberately withholding monthly payments of benefits and whether the individual monthly claims were in any way affected by the two-year prescriptive period.</p> <p> </p> <p><em>WHETHER THE RESPONDENTS’ CLAIMS HAD PRESCRIBED</em></p> <p>[24]      Having found that the issue before the labour officer was whether the appellant had committed an unfair labour practice, the issue that consequently arises before this Court is whether the monthly benefits, or any of them, had become prescribed. As already noted, the appellant’s position was that the respondents’ cause of action would arise every month and that in terms of s 94 of the Act such cause of action would become prescribed after a period of two years from the date when it arose. Accordingly the respondents were only entitled to succeed on those claims that had arisen within the period of two years before the lodgement of their complaint. The appellant, in its heads of argument before this Court, argued that the respondents cannot rely on subs (2) of s 94 because the section “clearly states as to when such a prescriptive period must be reckoned from.” However the appellant, as is clear from its heads, made no effort to interpret what subs (2) of the section means.</p> <p>[25]      That subsection states, in short, that prescription shall not apply to an unfair labour practice which is continuing at the time it is referred to a labour officer.  The question before the court <em>a quo </em>and this Court is the interpretation to be accorded to the phrase “which is continuing at the time it is referred.” Whilst the principle of a continuous unfair labour practice has not been fully developed in our jurisdiction, the South African Labour Appeals Court has had occasion to consider the interpretation to be accorded to a similar phrase in their labour legislation. A case in point is that of <em>SABC Ltd. v CCMA &amp; Ors</em> 2010 (3) BLLR 251 (LAC). At paragraph 27 of the judgment, the court remarked as follows:-</p> <p>“….The problem however is that the argument presented by the appellant is premised upon the belief that the unfair practice or unfair discrimination consisted of a single act. There is however no basis to justify such belief. While an unfair labour practice or unfair discrimination may consist of a single act, it may also be continuous, continuing or repetitive. For example, where an employer selects an employee on the basis of race to be awarded a once-off bonus, this could possibly constitute a single act of unfair labour practice or unfair discrimination because like a dismissal, the unfair labour practice commences and ends at a given time. But where an employer decides to pay its employees who are similarly qualified with similar experience performing similar duties different wages based on race or any other arbitrary grounds, then notwithstanding the fact that the employer implemented the differential on a particular date, the discrimination is continual and repetitive. The discrimination in the latter case has no end and is therefore ongoing and will only terminate when the employer stops implementing the different wages. Each time the employer pays one of its employees more than the other, he is evincing continued discrimination.” </p> <p> </p> <p> </p> <p>[26]      I agree with the above remarks. Where, as in this case, the monthly benefits are withheld, the unfair labour practice is continual and repetitive. It will only terminate when such discriminatory conduct ceases and all the employees are treated the same. Section 94 (2) makes it clear that, in such a case, the prescriptive period of two years does not apply. In other words, even in a situation where the amounts claimed cover a period of, say, three years, the prescriptive period of two years would not apply as the unfair labour practice would be of a continuous nature.</p> <p> </p> <p>[27]      In the present case, it is not in dispute that the monthly benefits to which the respondents were entitled were being withheld. The practice was continuing. In terms of s 94 (2), the claims, even those that arose beyond the period of 2 years, were not prescribed.</p> <p> </p> <p><em>WHETHER THE COURT A QUO CORRECTLY FOUND THAT THE APPELLANT WAS LIABLE TO PAY THE BENEFITS</em></p> <p>[28]      It was the finding of the labour officer, subsequently confirmed by the court <em>a quo, that</em> the appellant was under an obligation to pay the various outstanding amounts, notwithstanding its claim that it was not privy to the agreement that gave rise to the conferment of those benefits by its parent company. The labour officer, in his draft ruling, found that the appellant had an obligation to compensate the respondents. He found that the appellant had authored the letter of 21 February 2011 to the individual employees undertaking to make such compensation. At no stage did the letter make reference to the compensation being a privilege or that the obligation to do so lay on its parent company. The labour officer also found that it is common practice for an employee’s pension to be held or administered by an entity other than the employer itself. He also found it strange that, whilst denying liability on the basis that the agreement was between the employees and the appellant parent company, the appellant was prepared to pay them had they agreed to move to the Triangle Money Plan.</p> <p> </p> <p>[29]      The labour officer made findings of fact. That these were made in the context of a draft ruling is neither here nor there. Those findings were not inconsistent with the evidence before him. The labour officer accepted the position that the pension fund was administered by the Tongaat Hullett Pension Fund. The correspondence that forms part of the record confirms that the respondents enjoyed the benefits in question by virtue of their membership of the Pension Fund. Nowhere does the appellant show the existence of a separate agreement between the respondents and the holding company. Had there been such an agreement, the appellant would, no doubt, have produced it. It did not do so. What is apparent is that the respondents enjoyed these pension benefits by virtue of their employment with the appellant and not because the holding company had separately entered into agreements with the respondents to provide these benefits. Indeed it was not in contention that the respondents did not have any other connection to the Tongaat Hullett Pension Fund except in their capacities as employees of the appellant. In the letter of 21 February 2011 the appellant accepted that the “letter and conditions contained therein are part and parcel of the revised terms and conditions of employment.”</p> <p> </p> <p> [30]     The court <em>a quo </em>agreed with the findings of the labour officer that it was the appellant that had the obligation to pay the benefits. This was a finding made on a consideration of all the evidence. Such a finding cannot be impugned unless the appellant shows that it was irrational – <em>Hama v National Railways of Zimbabwe</em> 1996 (1) ZLR 664 (5), 670 C – E; <em>Edward Misihairambwi &amp; 14 Ors v Africare Zimbabwe</em> SC 22/17. Absent demonstrable, material misdirections and clearly erroneous findings, the Labour Court was bound by the findings. No such finding can be made on the facts of this case.</p> <p> </p> <p><em>THE ORDER TO PAY ADDITIONAL TAX LOSSES</em>                       </p> <p>[31]      The appellant submits that the order for the appellant to pay additional tax losses was declaratory in nature. It submits that the court <em>a quo </em>had no jurisdiction to make such an order. During oral submissions, counsel for the respondents explained that what was envisaged were penalties to be imposed by ZIMRA owing to delays in the payment of tax by the respondents.</p> <p> </p> <p>[32]      I agree with the appellant that the court <em>a quo </em>made a determination on a contingent right, namely additional tax. Such tax penalty had not arisen and it is anyone’s guess whether it ever will be imposed. Neither the court <em>a quo </em>nor the labour officer provided the basis, in law, upon which this order was made. It is common cause neither party had made submissions on it.</p> <p> </p> <p>[33]      In any event, it is difficult to see how additional tax liabilities would arise, it being common cause that no payment had been made to the respondents. As I understand the law, the liability to pay tax would arise once the respondents were paid their benefits and not before. It is difficult to imagine ZIMRA imposing penalties on the respondents in respect of benefits that were the subject of court proceedings and which, to date, remain unpaid.</p> <p> </p> <p><em>WHETHER THE COURT A QUO PROPERLY EXERCISED ITS CONFIRMATORY ROLE</em></p> <p>[34]      As I understand the appellant’s submission on this aspect, the court <em>a quo </em>neither had review or appellate jurisdiction and could not therefore “rehear” the matter. It could not amend the ruling and was confined to either confirming it as it was or dismissing it in its entirety. It could not substitute its own order. </p> <p> </p> <p>[35]      In my view, there is no merit to the appellants’ submission in this regard. Section 93 (5b) of the Act allows the Labour Court to grant the application with or without amendment. In <em>Air Zimbabwe (Private) Limited v J.V. Mateko (2) Elijah Chiripasi and Others</em> SC 180/20, this Court had occasion to make the following pertinent remarks:</p> <p>            “(15)…</p> <p>It will be apparent from the above decision that when the Labour Court is called upon to confirm a draft ruling it is essentially being asked to exercise its powers of review.</p> <p>                        …   </p> <p>             (16) – (27)…</p> <p>(28) What the court <em>a quo </em>did was to confirm that the termination of employment was indeed lawful. In doing so, it removed reference to a declaratur. It also removed the names of the parties who had not been properly joined to those proceedings. It also made provision for reinstatement, alternatively payment of damages.</p> <p> </p> <p> (29)    In my view, there was no substitution of the order of the labour officer but rather a correction and addition to make the order more acceptable in terms of the law. At the end of the day therefore the order granted by the court <em>a quo </em>was one within the contemplation of the labour officer, the amendment having been made merely to ensure that the confirmed order accorded with the law.</p> <p> </p> <p>(30)  I am of the considered view, in light of the above sentiment, that the changes effected by the Labour Court were indeed amendments and that they cannot, by any stretch of imagination, be termed a substitution. As noted earlier in this judgment, labour officers are often lay persons with little or no training in matters legal. For that reason they are given the power to make draft rulings which are then subjected to scrutiny by the Labour Court, a specialised court in terms of labour and employment."</p> <p> </p> <p>[36]      In all the circumstances, therefore, I find nothing improper in the manner in which the court <em>a quo </em>handled the confirmation proceedings.</p> <p> </p> <p><em>DISPOSITION</em></p> <p>[37]      In light of s 94 (2) of the Act, the claims for unfair labour practice made by the respondents against the appellant were not prescribed, as these were of a continuing nature. The court <em>a quo </em>was correct in confirming the finding by the labour officer that the claims were not prescribed. The court was also correct in finding that the appellant, and not its parent company, was liable for the payment of the outstanding benefits. It was however irregular for the labour officer to order payment of possible tax penalties by the appellant. That part of the order should not have been confirmed.</p> <p> </p> <p>[38]      In the result, it is ordered as follows.</p> <ol> <li>The appeal is allowed only to the extent that the order directing the appellant to pay additional tax losses incurred by the respondents is set aside.</li> <li>Subject to paragraph 1 above, the appeal is otherwise dismissed.</li> <li>The appellant is to pay the costs of the appeal.</li> </ol> <p> </p> <p> </p> <p><strong>MAVANGIRA JA    :                       </strong>I agree</p> <p> </p> <p>                        <strong>MAKONI JA             :</strong>                       I agree</p> <p> </p> <p> </p> <p><em>Scanlen &amp; Holdernes</em>, appellant’s legal practitioners</p> <p><em>Chinawa Law Chambers</em>, 2nd – 11th respondent’s legal practitioners</p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/77/2021-zwsc-77.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=50825">2021-zwsc-77.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/77/2021-zwsc-77.pdf" type="application/pdf; length=497801">2021-zwsc-77.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-employment">Appeal (EMPLOYMENT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/wages-and-salaries">Wages and salaries</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/prescription">PRESCRIPTION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/period-prescription">Period of prescription</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/pleading-prescription">Pleading (PRESCRIPTION)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2016/22-3">Misihairabwi &amp; 14 Others v Africare Zimbabwe (SC 22/2017 Civil Appeal No. SC 296/14) [2017] ZWSC 22 (05 July 2016);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2020/180">Air Zimbabwe (Private) Limited v Mateko &amp; Ors (SC 180-20, Civil Appeal No. 105/19) [2020] ZWSC 180 (07 December 2020);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div></div></div> Thu, 15 Jul 2021 12:15:58 +0000 Sandra 10082 at https://old.zimlii.org Chibanda And 2 Others v City of Harare (SC 83-21, Civil Appeal No. SC 431/19) [2021] ZWSC 83 (29 June 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/83 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Judgment No. SC 83/21</p> <p>Civil Appeal No. SC 431/19</p> <p> </p> <p><strong>REPORTABLE:</strong><strong>       (80)</strong></p> <ol> <li><strong>    DOMBO     CHIBANDA     (2)     PINGO     WILBROAD         KANDORORO     (3)     JOHN     KANDWE</strong></li> </ol> <p><strong>v</strong></p> <p><strong>CITY     OF     HARARE</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABAWE</strong>                                                              </p> <p><strong>HLATSHWAYO JA </strong></p> <p><strong>HARARE: 29 NOVEMBER 2019 &amp; 29 JUNE 2021</strong></p> <p> </p> <p> </p> <p><em>J. Mambara</em>, for the applicants</p> <p><em>T.L. Mapuranga with T.G. Chigudugudze</em>, for the respondent</p> <p> </p> <p><strong>HLATSHWAYO JA:</strong> 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 r 43 of the Supreme Court Rules, 2018 (the Rules).  The applicants seek an order in the following terms:</p> <ol> <li>The application for condonation for non-compliance with r 38 of the Supreme Court Rules, 2018 be and is hereby granted.</li> <li>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.</li> <li>The notice of appeal shall be deemed to have been filed on the date of this order.</li> <li>The costs shall be in the cause.</li> </ol> <p> </p> <p><strong>BACKGROUND</strong></p> <p>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 <em>declaratur</em> in the High Court (the court <em>a quo</em>).</p> <p> </p> <p>They argued that s 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. </p> <p> </p> <p>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.</p> <p> </p> <p><strong>DETERMINATION OF THE COURT <em>A QUO</em></strong></p> <p>The court <em>a quo</em> 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.</p> <p> </p> <p>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 s 11 of the respondent’s pension scheme suggested that. According to the court <em>a quo</em> 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.</p> <p> </p> <p>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 <em>a quo</em> 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 <em>a quo</em> thus dismissed the application with an order of costs.</p> <p> </p> <p>Aggrieved by that decision, the applicants noted an appeal with this Court on 6 October 2015 under case number SC 549/15.  The applicants failed to pay costs for the preparation of the record and the appeal was deemed abandoned on 6 January 2016.  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.  However, the application was later withdrawn on the basis that the nature of the relief sought was unascertainable and, subsequently, the application was removed from the roll on 28 May 2019.  Again, a similar application was filed and subsequently withdrawn on 5 July 2019 on the basis that the notice of appeal appended to the application did not comply with r 43(3) as read together with r 37(1) of the Rules.  The applicants then filed the present application for condonation for failing to note an appeal within the prescribed time limit and extension of time within which to note an appeal against the judgment of the court <em>a quo</em>.</p> <p> </p> <p><strong>APPLICANTS’ SUBMISSIONS</strong></p> <p>The applicants’ counsel, Mr <em>Mambara</em>, conceded that the delay was inordinate but, however, submitted that the explanation for that delay was reasonable.  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.  The reason for the failure to pay the costs according to the applicants was because they could not afford to provide the same since the respondent had not paid their salaries which would have enabled them to pay the costs.  It was the applicants’ case that by the time they received money from the respondent, the appeal had already lapsed.</p> <p> </p> <p>The applicants also attributed their failure to note the appeal on time to wrong advice from their erstwhile legal practitioner who notified them that since their appeal had been deemed abandoned this marked the end of their appeal.  It was the applicants’ case that being laymen they thought this meant there was no other way their matter could be heard by this Court.  They also averred that the case of <em>Nyamande &amp; Anor v Zuva Petroleum (Pvt) Ltd &amp; Anor</em> 2015 (2) ZLR 186 (S) discouraged them from prosecuting their appeal.  The applicants thus submitted that, faced with the wrong legal advice and the <em>Zuva</em> judgment, they thought that they had no recourse whatsoever.</p> <p> </p> <p>According to the applicants it was the success of their colleague’s case, <em>Mubvumbi v City of Harare</em> SC 64/18 which prompted them to file an application for condonation for failing to note an appeal within the prescribed time limit and extension of time within which to note an appeal.</p> <p> </p> <p>On the prospects of success, the applicants’ counsel argued that their appeal had bright prospects of success because the <em>Mubvumbi</em> judgment, which was allegedly on all fours with the circumstances of their case, had been successful before this Court and as such they expected the same for their case.  The applicants further submitted that the matter was important in that it related to administrative justice.  They argued that, since they had served the respondent for a long time, their discharge with immediate effect amounted to arbitrary dismissal.</p> <p> </p> <p><strong>RESPONDENT’S SUBMISSIONS</strong></p> <p>The respondent’s counsel submitted that even though the applicants had admitted that the delay was inordinate, they had omitted to disclose that the degree of non-compliance was extremely long - three years and nine months.  The respondent further argued that the applicants’ reasons for delay had no merit and their numerous applications were an abuse of court process.  Mr<em> Mapuranga</em>, for the respondent, further noted that the applicants’ averments that they did not have money to pay costs were false because they managed at the same time to raise substantially higher fees to brief and pay counsel for legal opinions and, in any case, they had an option to proceed <em>in forma pauperis</em> but they did not, thus making their explanation unreasonable.</p> <p> </p> <p>The respondent further argued that the applicants’ case was distinguishable from the <em>Mubvumbi</em> case and the fact that the applicants took time to approach this Court, even after the <em>Mubvumbi</em> case, shows that they have no prospects of success.  He further submitted that the applicants should have attached an affidavit from their legal practitioner showing that he had given them wrong advice and failure to do so weakened their reason for the delay in noting the appeal.  Mr <em>Mapuranga</em> also argued that the applicants appeal was supposed to stand or fall on their grounds of appeal yet they had failed to motivate the grounds and demonstrate the prospects of success on appeal.  As such it was the respondent’s submission that the applicants had failed to show cause why they should be granted condonation and extension of time within which to note their appeal.</p> <p> </p> <p><strong>THE LAW</strong></p> <p>It is a trite principle of law that a party who fails to comply with the rules of this Court must apply for condonation and give adequate reasons for his or her failure to comply with the rules.  Rule 38 (1) (a) states that:</p> <p>“(1) An appellant shall institute an appeal within the following times- </p> <ol> <li>By filing and serving a notice of appeal in compliance with subrule (2) of r 37 within 15 days of the date of the judgment appeal against.” </li> </ol> <p> </p> <p>Condonation is not simply granted by virtue of the mere fact that a party has sought it.  This was emphasized by ZIYAMBI JA in <em>Zimslate Quartize (Pvt) Ltd &amp; Ors v Central African Building Society</em> SC 34/17 as follows at p 7 of the cyclostyled judgment:</p> <p>“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 indulgences, including that of condonation, are there for the asking does himself a disservice as he takes the risk of having his application dismissed.”</p> <p> </p> <p>The factors to be considered by the court were outlined by BHUNU JA in <em>Mzite v Damafalls Investment (Pvt) Ltd &amp; Anor</em> SC 21/18, where he expressed the following at p 2 of the cyclostyled judgment:</p> <p>“The requirements for an application of this nature to succeed are well known as outlined in the case of <em>Kombayi v Berkout </em>1988 (1) ZLR 53 (S).  These are:</p> <ol> <li>The extent of the delay;</li> <li>The reasonableness of the explanation for the delay; and</li> <li>The prospects of success on appeal.”</li> </ol> <p> </p> <p>Condonation is thus an indulgence granted when the court is satisfied that there is “good and sufficient cause” for condoning the non-compliance with the rules.  Good and sufficient cause is assessed by considering, cumulatively, the extent of the delay, the explanation for that delay and the strength of the applicants’ case on appeal, or the prospects of its success.  See <em>Bonnyview Estates (Pvt) Ltd v Zimbabwe Platinum Mines (Pvt) Ltd &amp; Anor</em> SC 58/18.</p> <p> </p> <p><strong>APPLICATION OF THE LAW TO THE FACTS</strong></p> <ol> <li><strong>The extent of the delay and reasonableness of the explanation.</strong></li> </ol> <p>The applicants ought to have noted their appeal fifteen days after 24 September 2015, being the date the judgment appealed against was handed down.  They were thus required to note their appeal by 16 October 2015.  The applicants initially noted their appeal timeously on 6 October 2015 but the appeal was deemed abandoned after they failed to pay costs for the preparation of the record.  From the time the appeal was deemed abandoned to the time this application for condonation of failing to note an appeal within the prescribed time limits and extension of time within which to note an appeal was filed, a period of three and a half years had lapsed.  Such a long delay is indeed inordinate, as correctly conceded.  Three and a half years is too substantial a period for a litigant to do nothing.</p> <p> </p> <p>As an explanation for the delay, the applicants contend that they failed to pay the requested costs for the preparation of the record of appeal because they were unable to secure the necessary funds.  The reason proffered by the applicants for failure to make an application for reinstatement of their appeal after it had been deemed abandoned is because of the wrong advice which they purportedly received from their legal practitioner.  The wrong advice of the applicants’ erstwhile legal practitioners, which is pleaded by the applicants, cannot be accepted as a reasonable explanation.  The applicants cannot blame their legal practitioners of choice for their misfortune.</p> <p> </p> <p>In <em>Kodzwa v Secretary for Health &amp; Anor</em> 1999 (1) ZLR 313 (S) at 317E, SANDURA JA cited with approval STEYN CJ in <em>Saloojee and Another v Minister of Community Development</em> 1965 (2) SA 135(A) at 141 C-E wherein the court stated:</p> <p>“I should point out however, that it has not at any time been held that condonation will not in any circumstances be withheld if the blame lies with the attorney.  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 <em>ad misericordiam</em> should not be allowed to become an invitation for laxity.  In fact, this Court has been lately burdened with an undue and increasing number of applications for condonation in which the failure to comply with the rules of this Court was due to negligence on the part of the attorney.  The attorney after all is the agent whom the litigant has chosen for himself, and there is little reason why, in regard to condonation for failure to comply with a rule of court, the litigant should be absolved from the normal consequences of such a relationship.”</p> <p> </p> <p>As such the applicants cannot seek to escape the consequences of their actions to timeously note their application for condonation by blaming their legal practitioner.  It would have been prudent if the responsible legal practitioner had filed an affidavit admitting fault and explaining in some detail what happened, then this Court would be in a position to decide whether the applicants should not be visited with the sins of their legal practitioners.  See <em>Diocesan Trustees for the Diocese of Harare v The Church of the Province of Central Africa </em>2010 (1) ZLR 267 (S).  The delay of three and a half years which the applicants took to make a proper application for condonation of late filing of an appeal is clearly inordinate and the reason offered by the applicants for such delay cannot be accepted as a reasonable explanation.</p> <p> </p> <p>The applicants submitted that they were prompted to make the present application because of the success of the <em>Mubvumbi</em> case which they felt was on all fours with the circumstances of their case.  Clearly this reasoning does not justify the granting of condonation because litigants cannot wait to be prompted by a favourable decision before they make their own applications.</p> <p> </p> <p>When a party brings an unsavoury situation upon himself by taking a lackadaisical approach to litigation in which he is involved and showing utter disinterest for a long time, the arrival of the day of reckoning does not create a calamity in respect of which the court should drop everything in order to give him audience.  Those are the consequences of being a sluggard and in the present case the court is unmoved as it does not ordinarily come to the rescue of the indolent.  See <em>Ndebele v Ncube</em> 1992 (1) ZLR 288 (S).  The reasons offered by the applicants for such delay are not sufficient to enable this Court to grant the applicants condonation and extension of time within which to note an appeal.  The delay is clearly unjustified and cannot be the kind of delay occasioned by a party who has a serious intention to prosecute his appeal.</p> <ol> <li><strong>The prospects of success on appeal.</strong></li> </ol> <p>It is settled that where no acceptable explanation for non-compliance with the rules has been given, an applicant for condonation must at least show very good prospects of success.  See <em>Mahachi v Barclays Bank of Zimbabwe</em> SC 6/06.  The applicants are required to show that they have an arguable case on appeal as was noted by the court in <em>Essop v S</em> (2014) ZASCA 114, where the court stated the following at para 6:</p> <p>“What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that a court of appeal could reasonably arrive at a conclusion different to that of the trial court.  In order to succeed, therefore, the appellant must convince this Court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding.  More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless.  There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”</p> <p> </p> <p> </p> <p> It is settled law that the applicant’s case stands or falls on the founding affidavit.  See <em>Austerlands (Pvt) Ltd v Trade and Investments Bank Ltd &amp; Ors</em> 2006 (1) ZLR 372 (H).  In their founding affidavits the applicants only alluded to but did not demonstrate any prospects of success on appeal.  They just stated that their appeal has bright prospects of success because it is similar to the <em>Mubvumbi</em> case which was successful.  That cannot possibly be a clear and sufficient articulation of prospects of success and clearly does not satisfy the requirements of the law.  The applicants could not sit on their rights for years until a favourable appellate decision was handed down and then claim to be diligent in pursuing their rights so that they can take advantage of that favourable decision. </p> <p> </p> <p>In any event, the grounds of appeal themselves are afflicted by such defects that they do not even meet the strict threshold fixed by the Rules for valid grounds of appeal.  The grounds of appeal are not clear and concise as is required by r 4(1) of the Rules.  It is trite at law that grounds of appeal must be clearly set out to enable the court and the respondent to be fully and properly informed of the case which the appellant seeks to make out and which the respondent is to meet.  Anything that falls short of that is improperly before the court.  See <em>Econet Wireless (Pvt) Ltd v TrustCo Mobile (Proprietary) Ltd &amp; Anor</em> SC 43/13.</p> <p> </p> <p>It appears from the grounds of appeal that the applicants are aggrieved by the factual findings of the court <em>a quo</em>.  It was stated in <em>Nzira v The State</em> SC 23/06 that an appeal court is very unlikely to go against factual findings of the trial court which had the opportunity to listen to and actually see the witnesses and observe their demeanour when giving evidence.  The appeal court will only interfere where it is shown that there was a clear misdirection on the part of the trial court which has not been demonstrated in this case. </p> <p> </p> <p>Considered cumulatively, the extent of the delay, the explanation for that delay and the strength of the applicant’s case on appeal, it is clear that the Court cannot extend the indulgence of condonation in these circumstances and, therefore, this application cannot succeed. Costs in this case should follow the outcome, nothing having been sufficiently advanced to the contrary.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>Accordingly, it is ordered that the application be and is hereby dismissed with costs.</p> <p> </p> <p><em>J Mambara and Partners</em>,applicant’s legal practitioners</p> <p><em>Chihambakwe, Mutizwa &amp; Partners</em>, respondent’s legal practitioners</p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/83/2021-zwsc-83.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=35947">2021-zwsc-83.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/83/2021-zwsc-83.pdf" type="application/pdf; length=449893">2021-zwsc-83.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-supreme-court">Appeal to Supreme Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/condonation">Condonation</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/employee-0">Employee</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/urban-council-employees">urban council employees</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/termination-employment">Termination of employment</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2015/43">Nyamande &amp; Another v ZUVA Petroleum (Pvt) Ltd (SC 281/14) [2015] ZWSC 43 (16 July 2015);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2018/64">Mubvumbi v City of Harare (SC 64/18, Civil Appeal No. SC 1079/17) [2018] ZWSC 64 (22 October 2018);</a></div><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2017/34">Zimslate Quartzite (Pvt) Ltd. &amp; Others v CABS (SC 34/2017 Chamber Application No. SC 82/17) [2017] ZWSC 34 (10 May 2017);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2016/21-0">Mzite v Damafalls Investments (Private) Limited &amp; Another (SC 21/18, Civil Appeal No. SC 89/16) [2018] ZWSC 21 (23 June 2016);</a></div><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2018/58">Bonnyview Estates (Private) Limited v Zimbabwe Platinum Mines (Private) Limited &amp; Another (SC 58/18, Civil Appeal No. 411/17) [2018] ZWSC 58 (26 September 2018);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2013/43">ECONET Wireless v TRUSTCO Mobile Ltd &amp; Another (Civil Appeal No SC 171/11) [2013] ZWSC 43 (25 September 2013);</a></div></div></div> Wed, 14 Jul 2021 09:34:55 +0000 Sandra 10077 at https://old.zimlii.org Madyavanhu v Cairns Foods Limited (HH 298-21, HC 3668/20) [2021] ZWHHC 298 (17 June 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/298 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HH 298-21</p> <p>HC 3668/20</p> <p> </p> <p>EDWARD MADYAVANHU</p> <p>versus</p> <p>CAIRNS FOODS LIMITED</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>DUBE J</p> <p>HARARE, 25 March 2021 &amp; 17 June 2021</p> <p> </p> <p><strong>Opposed Application </strong></p> <p> Applicant, in person</p> <p> <em>A K Maguchu</em>, for the respondent</p> <p>             DUBE J:</p> <ol> <li>The applicant is a former employee of the respondent. His contract of employment was terminated in 2001 after which he obtained judgment by consent against the respondent at the Labour Court for unlawful dismissal. He was awarded damages in the sum of Z$26 076 252 on 27 May 2009 after quantification. The applicant seeks to register the judgment with this court in terms of s 92B (3) of the Labour Act, [<em>Chapter 21: 08]</em>.</li> <li>The respondent challenges the registration of the judgment on two grounds. The first, is that the judgment sought to be enforced constitutes a nullity because the Labour Court was not empowered by law to hear the matter when it granted the judgment. It submitted that the Labour Court being a creature of statute, can only hear appeals in terms of the enabling Act and that the Labour Relations Act did not have a provision empowering the Labour Relations Tribunal to hear an appeal against a unilateral termination of a contract of employment by an employer. It contended that even its successor, the Labour Act<em>, [Chapter 28:01]</em> does not empower the Labour Court to hear such an appeal and that the glaring lack of jurisdiction renders the judgment which is sought to be enforced a nullity. It urged the court to decline to register the judgment and dismiss the application on this basis alone. <ol> <li> </li> </ol> </li> <li>The general approach is that a judgment will generally stand until set aside by way of appeal or review. In <em>Mkize  </em>v<em> Swemmor and Ors</em> 1967 (1) SA 186  the court stated at 197 C-D  , as follows,</li> </ol> <p>“Judicial decisions will ordinarily stand until set aside by way of appeal or review, but to that rule there are exceptions , one of them being that , where a decision is given without jurisdiction , it may be disregarded without the necessity of a formal order setting it side.” see also <em>Manning </em>v         <em>Manning</em> 1986 (2) ZLR 1.</p> <p> </p> <ol> <li>        This case speaks of exceptions to the general rule one of which is lack of jurisdiction.  Where a judgement or order is given without jurisdiction, it may be disregarded without the need for a formal order to set it aside. In <em>Dube </em>v<em> Maphephe Syndicate and Ors HB 5/2009, </em>the court remarked as follows;</li> </ol> <p><em>        “</em>’There is merit in the applicant’s contention. When a magistrates court does what is not within its         jurisdiction, the result of what it purports to do is void and it is a nullity in law with no force or         effect. No benefit can be derived from it. It has been repeatedly stated that it is like trying to build         something on nothing and expect it to stand; it will collapse. See for instance <em>Mcfoy </em>v<em> United Africa         Co Ltd</em> (1961) ER 1165”</p> <p> </p> <ol> <li>The applicant referred me, for the proposition that an order issued without jurisdiction must be obeyed until it is set aside on appeal,  to the case of  <em>Strachan</em> v <em>The Gleaner Company Ltd &amp; Anor</em> (Jamaican) [2005] UK PC 33, [2005], WLR 3204 , where the court held  as follows,</li> </ol> <p>            “An order issued by a judge without jurisdiction is obviously vulnerable, but it is not wholly             without effect; it must be obeyed unless and until it is set aside          ….. An appeal is the proper             method of getting rid of it. … Whenever a judge makes an order he must be taken implicitly to         have decided that he has jurisdiction to make it. If he is wrong he makes an error whether of law or fact which can be corrected by the court of appeal but he does not exceed his jurisdiction by    making the error, nor does a judge of co-ordinate jurisdiction have power to correct it’’</p> <p> </p> <ol> <li>This case is from a foreign jurisdiction and is of persuasive authority. The court in this case accepted that an order issued without jurisdiction is vulnerable and went on to say that an appeal is the method of getting rid of it. The position of our law is that such a judgment would be a nullity and there is no need to actually set it aside.</li> <li>It appears to me that judgment and orders that require to be registered to enable enforcement are in a class of their own. The purpose of s 92 B (3) of the Labour Act is to facilitate registration of an order or judgment. Consequently, when the High Court sits as a court registering an order or judgment of the Labour Court, it does not assume review or appeal powers. In <em>Nyarota </em>v<em> ANZ </em>(Pvt )Ltd  HH 591/15, the court remarked as follows;</li> </ol> <p>“in dealing with an application for registration of an arbitral award this court is not called upon to review the decision of the arbitrator or to go into the merits”  See also <em>Brian Muneka and Ors </em>v<em> Manica Bus Company</em>  HH 30/13.</p> <p> </p> <ol> <li>Were the court to deal with challenges to the jurisdiction of the Labour Court it would amount to it sitting as an appeal court.</li> <li>In a case where a judgment is granted without jurisdiction, the aggrieved party has an option to appeal the judgment or apply to set it aside on the basis that it is a nullity. This is especially so where the other party insists on enforcing the judgment. In this sense, the judgment is vulnerable as it is liable to being set aside.</li> <li>The jurisdiction of the Labour Court cannot be challenged at the registration stage and in this court. I am persuaded that because the respondent has not appealed the judgment of the Labour Court, it remains extant until set aside by the Supreme Court.</li> <li>I agree with the applicant that the issue of the jurisdiction of the Labour Court is not for this court. The respondent’s argument is misplaced.</li> <li> </li> <li> </li> <li> </li> <li> <ul> <li>courts are not expected to, and invariably do not, render judgements that cannot be put into effect –which are in other words a <em>brutum fulmen”</em>.</li> </ul> </li> </ol> <p> </p> <p>For the reason that the judgment is expressed in a moribund currency, it constitutes a <em>brutum fulmen. </em>No useful purpose will be served by registering an award in a currency which is no longer in use and valueless. Courts do not grant orders for enforcement of judgments that are <em>brutum fulmen</em>.</p> <p>16.       At the hearing of the matter there were suggestions that the Zimbabwean dollars be converted to United States dollars. This, in the spirit of settlement. This course failed. It is not the function of this court sitting as a court registering a judgment of the Labour Court to convert a currency in a judgment to a usable currency or carry out any form of quantification.</p> <p>17.       The court has considered the fact that the debt is still due and payable. In <em>Madhatter Mining Company </em>v<em> Tapfuma</em> SC 51/2014 gwaunza ja (as she then was) remarked as follows:</p> <p>“The principles of equity and social justice as well as the imperative for the Labour Court to secure the just and effective resolution of labour disputes, are all called into question when it comes to determining the basis and formula for computing a debt (e.g. damages) suffered in Zimbabwe dollars but claimed in foreign currency.This is particularly so where such damages, being owed to an employee, can no longer be paid in Zimbabwe currency realistically or in a way that gives due value to the employee.The undeniable fact is that a debt is not wiped out by the mere fact that there has been a change to the realisable currency.Equity would demand that a formula be found to give effect to the employee’s entitlement to payment of, and the employer’s obligation to pay, the debt in question.”</p> <p> </p> <p>18.       This case states the principle that a debt is not wiped out simply because there have been changes to a realisable currency in which it is expressed. Following on the case of <em>Fleximail (Pvt) Ltd </em>v<em> Samanyau &amp; Or</em>s SC 21/14, the  court emphasized the need for equity and social justice considerations for just resolution of labour disputes in cases where  damages awarded are  no longer payable the currency in which they are expressed. In the Supreme Court judgment of <em>Fleximail</em> (<em>Pvt) Ltd</em> v <em>Samanyau &amp; Ors</em> the court held that it is not the function of the High Court when registering a judgment of the Labour Court, to revisit an award simply because an award is no longer realisable in a currency in which it was expressed, see <em>Samanyau &amp; Ors </em>v<em> Fleximail (Pvt) Ltd</em> HH 108/11.</p> <ol> <li>Following the Supreme Court <em>Samanyau</em> case, the Labour Court in <em>Samanyau &amp; Ors  </em>v <em>FleximaiL (Pvt ) Ltd</em> LC/H/776/14  considered the provisions of 2A(1)(f) of the Labour Act  and held that the Labour Court  has an entitlement, in the exercise of its equitable jurisdiction to order payment of damages into an operational and realizable currency. In Nzuma<em> and 2 Ors </em>v<em> Hunyani Paper and Packaging,</em> SC 137/11, the court remitted a matter to the Labour Court for it to exercise its equitable jurisdiction and determine conversion of an award into foreign currency. A reconsideration of the award is permissible at law.</li> <li> </li> <li> </li> </ol> <p>            In the result, it is ordered as follows,</p> <ol> <li>The application be and is hereby struck off the roll.   </li> <li>The applicant to pursue his legal rights against the respondent in terms of the law.</li> <li> No order as to costs.  </li> </ol> <p><em>Dube Manikai &amp; Hwacha</em>, respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/298/2021-zwhhc-298.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=28668">2021-zwhhc-298.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/298/2021-zwhhc-298.pdf" type="application/pdf; length=542023">2021-zwhhc-298.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/dismissal-0">Dismissal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/labour-court-see-also-employment-labour-relations-tribunal">Labour Court See also EMPLOYMENT (Labour Relations Tribunal).</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/labour-relations-tribunal">Labour Relations Tribunal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/unlawful-dismissal">Unlawful dismissal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/judgment-practice-and-procedure">Judgment (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/judgment-expressed-foreign-currency">judgment expressed in foreign currency</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2015/591">Nyarota v ANZ Ltd. (HH 591-15 HC 2598/12) [2015] ZWHHC 591 (01 July 2015);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2013/30">Muneka &amp; Others v Manica Bus Company (HC 4538/11) [2013] ZWHHC 30 (05 February 2013);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2003/68">Masulani v Masulani andOthers (HH 68-2003 ) [2003] ZWHHC 68 (29 April 2003);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2014/51">Madhatter Mining Company v Tapfuma (Civil Appeal No. SC 299/12) [2014] ZWSC 51 (24 July 2014);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2011/108-0">Samanyau and Others v Fleximail (Private) Limited (HC 5710/09) [2011] ZWHHC 108 (07 June 2011);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div></div></div> Mon, 21 Jun 2021 08:11:09 +0000 Sandra 10068 at https://old.zimlii.org Janyure And 4 Others v NRZ (HB 3-21, HCA 32/18) [2021] ZWBHC 3 (25 March 2021); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2021/3 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HB 03/21</p> <p>HCA 32/18</p> <p> </p> <p><strong>ZEDIAS JANYURE</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>IFONDUKAYIFELI MANGENA</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>EDWARD CHIMBADWA</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>WILSON BULALA</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>SIMON TAKUVINGA TIZAYI</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>NRZ</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MAKONESE &amp; MOYO JJ</p> <p>BULAWAYO 11 NOVEMBER 2020 &amp; 25 MARCH 2021</p> <p> </p> <p><strong>Civil Appeal</strong></p> <p> </p> <p>Applicants in person</p> <p><em>L. Ncube</em> for the respondent</p> <p> </p> <p>          <strong>MOYO J:   </strong>The appellants in this matter are former employees of the respondent.  Respondent sued the appellants for eviction in the Magistrates’ Court and the court found in respondent’s favour.  Dissatisfied with that appellants approached this court.  The appeal was dealt with and dismissed <em>ex tempore</em>. They have now requested for written reasons and here are they.</p> <p>          The facts of the matter are that the employment of the appellants was terminated with the respondent for various reasons up to 2013.  In other words the employee whose employment terminated last in the group left employment in 2013.  The facts of this matter are very simple and straight forward.  The former employees and the employer were governed by a Collective Bargaining Agreement namely SI 61/99.  They had been housed in respondent’s properties prior to cessation of employment.  Upon cessation of employment (even if they refute this, they simply had no right of retention over the accommodation they had been provided as employees).  There was just 1 issue for determination by the court <em>a quo</em> that is whether the appellants had the right to remain in occupation of respondent’s properties after the cessation of their employment.</p> <p>The appellants did not dispute that their employment was terminated as alleged.  What they claim is that they could not be evicted because the respondent owed them $25 000 Zimbabwe dollars at the material time.  The respondent disputes that they are owed $25 000 and avers that they were entitled to $10 000,00 which they were paid in full.</p> <p>          The only guiding instrument in this regard is SI 61/99 (the Collective Bargaining Agreement). Appellants are clearly former employees but they argue that clause 4 of the Collective bargaining Agreement applies to them.  However clause 4 of the Collective Bargaining Agreement is couched in no uncertain terms. It reads as follows:</p> <p>“The aspect of funding is yet to be concluded.  However, in the meantime no employee is to be evicted until funding has been put in place.  Meanwhile those with cash can proceed to purchase the houses as agreed above.”</p> <p>         </p> <p>Clearly the clause as interpreted by the learned magistrate refers to “employees” not former employees”.  Again, in terms of clause 11 (a) of the Collective Bargaining Agreement, termination of employment ends tenancy.  So clearly, the tenancy phase of the appellants in respondent’s accommodation ended when they left employment.  The case is very clear.  It means that and cannot mean anything else. </p> <p>I then turn to the grounds of appeal.</p> <p>The grounds of appeal attack the learned magistrate’s interpretation of the Collective Bargaining Agreement and that the learned magistrate did not regard the Collective Bargaining Agreement and weekly notice 2313 of 14 January 1999.  The learned magistrate did interpret the provisions relevant to the appellant’s case and found that the Collective Bargaining Agreement did not support their cause and that is the position.  Weekly notice 2313 of 14th January 1999, whilst its provisions are not clear, cannot supercede a statutory instrument which is the law.</p> <p>          The same applies to the letter the appellant says was written by the human resources manager, it also cannot supercede a statutory instrument whatever its provisions were.  The appellants also seem to take issue with the magistrate for not following a fellow magistrate’s decision but a magistrate is not bound by a fellow magistrate’s decision, a magistrate is only bound by the decision of a higher court.</p> <p>Again, even if for argument’s sake, the appellants would be entitled to the $25 000,00 they claim is due to them, it does not in itself create a right of retention for them.  They could have approached the court to enforce that payment if they felt they were entitled to it as it clearly does not follow that if you are owed certain monies by your former employer, you then create a right of retention of accommodation for yourself.  They should have pursued their claim for the sums owed by the respondent if any.</p> <p>It is for these reasons that we found that the appeal lacks merit and accordingly dismiss it.</p> <p> </p> <p> </p> <p> </p> <p>          Makonese J ………………………. I agree</p> <p> </p> <p><em>James, Moyo-Majwabu &amp; Nyoni,</em> respondent’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/3/2021-zwbhc-3.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=20039">2021-zwbhc-3.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/3/2021-zwbhc-3.pdf" type="application/pdf; length=313381">2021-zwbhc-3.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/termination-employment">Termination of employment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/wages-and-salaries">Wages and salaries</a></li></ul></span> Fri, 18 Jun 2021 08:24:54 +0000 Sandra 10066 at https://old.zimlii.org S v Moyo (HB 2-21, HCA 135/18) [2021] ZWBHC 2 (18 March 2021); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2021/2 <div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/2/2021-zwbhc-2.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=30389">2021-zwbhc-2.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/2/2021-zwbhc-2.pdf" type="application/pdf; length=451218">2021-zwbhc-2.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-matter-appeal">Criminal matter (Appeal)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-magistrates-court">appeal from magistrates court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-high-court-0">appeal to High Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rape">Rape</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/trial">Trial</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/conduct-magistrate-criminal-trial">conduct of magistrate in criminal trial</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/duties-magistrate-criminal-trial">duties of magistrate in criminal trial</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/evidence-2">EVIDENCE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/admissibility-evidence">Admissibility of evidence</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/credibility-evidence">Credibility (EVIDENCE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/sexual-cases-evidence">Sexual cases (EVIDENCE)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div></div></div> Fri, 18 Jun 2021 08:07:24 +0000 Sandra 10065 at https://old.zimlii.org S v Marevanhema (HB 87-21, HC (CRB) 122/20) [2021] ZWBHC 87 (21 May 2021); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2021/87 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HB 87/21</p> <p>HC (CRB) 122/20</p> <p> </p> <p><strong>THE STATE </strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>NAISON TAKAWIRA ALLIAS MAREVANHEMA</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>DUBE-BANDA Jwith Assessors MrMatemba and MsBaye</p> <p>GWERU 20 &amp; 21 MAY 2021</p> <p> </p> <p><strong>Criminal Trial</strong></p> <p> </p> <p> </p> <p><em>Ndlovu, </em>for the State</p> <p><em>Chingwe, </em>for the accused</p> <p><strong>DUBE-BANDA J: </strong>The accused is charged with the crime of murder as defined in section 47 of the Criminal Law (Codification and Reform) [Chapter 9:23]. It is alleged that on the 2nd February 2018, and at Village Mapiye, Chief Samambwa, Zhombe in the Midlands Province, accused unlawfully caused the death of Tariro Kambarami (deceased), by stabbing her with a spear several times on the head, chest and arms, intending to kill her or realising that there was a real or possibility that his conduct may cause her death and continued to engage in that conduct despite the risk or possibility.</p> <p> The accused pleaded not guilty to the charge. He was legally represented throughout the trial. The State tendered an Outline of the State Case, which is before court and marked Annexure A. It shall not be necessary to repeat the entire contents of the state outline. It now forms part of the record. The accused tendered into the record an Outline of his Defence Case, which is before court and marked Annexure B.</p> <p>The state produced a confirmed warned and cautioned statement recorded by the police on 18 December 2018. The statement was confirmed by a magistrate on the 4th January 2019. It is before court as Exhibit 1.The state tendered a post mortem report compiled by Dr S Pesanai, at United Bulawayo Hospitals on 5 February 2018. The report is before court and marked Exhibit 2. Following an examination on the remains of the deceased, the Pathologist concluded that the cause of death was: haemorrhagic shock; haemponeumothorax; stab wound chest; and assault.</p> <p>The prosecutor sought and obtained admissions from the accused in terms of section 314 of the Criminal Procedure &amp; Evidence Act [<em>Chapter 9:07</em>]. These related to the evidence of certain witnesses as contained in the summary of the state case. That is, the evidence of Dr S Pesanai, who examined the remains of the deceased and recorded a post mortem report. The evidence of Lazarus Rumhungwe, a member of the Zimbabwe Republic Police (ZRP) stationed at Zhombe Police Station. He attended to the scene of crime. He saw the body of the deceased lying outside the yard in a pool of blood facing upwards. He observed that the body had a deep cut on the left side of the chest and a cut on the back side of the head. He failed to locate the accused. The evidence of Asedi Yasini, a member of the ZRP. On the 2nd February 2018, he ferried the body of the deceased to Kwekwe General Hospital mortuary. He again ferried the same body to United Bulawayo Hospitals for a post mortem examination. The body did not suffer any further injuries while under his care. The evidence of Tichaona Mabhunu, a member of the ZRP, and part of the investigating team in this case. He looked for the accused and failed to locate him. The evidence of Givemore Mutsinzwa, a member of the ZRP, and part of the investigating team in this matter. He, in the company of other members, on the 9th February 2019, arrested accused in Masvingo. Accused was asked about the weapon used in the commission of the crime, but it was not recovered. The evidence of Douglas Kapfumvuti and Willard Musiiwa, members of the ZRP, who recorded a statement from the accused. The statement was confirmed. The evidence of Sehliselo Khumalo, a member of the ZRP, stationed at Bulawayo Central Police Station. She received the body of the deceased and identified it to Dr. S Pesanai, who carried out a post mortem examination.</p> <p>The state led oral testimony from two witnesses.  We are going to summarise the evidence briefly.The first to testify was Leonard Mhosva. He resides at Village Ndumo, Chief Samambwa, Zhombe. He is a member of the Neighbourhood Watch Committee stationed at ZRP Zhombe. He knows the accused as a local person. He knew deceased during her lifetime as she stayed in the same neighbourhood. Witness says he has been resident in the area from 1987, he was born there and he still resides in the same area. He is not sure when deceased came to the area, but she has been in the neighbourhood for approximately 6 years. Deceased was staying with her son doing Grade 5. She was married, and the husband stayed at a place called Torwoord. The witness used to see the husband at the village. He told the court the name of the husband.</p> <p>In his evidence in chief, this witness testified that on the 2nd February 2018, deceased made a report to him. As a result of the report he proceeded to the deceased homestead. He was wearing his police uniform. When he got to the gate, he was confronted by accused who was carrying two long spears. The spears were made of iron, the first was 1.4 metres in length; diameter, he said it was the size of his two figures; it had a sharp end. The second spear was 1.6 metres in length; made of iron; diameter, narrower than the first spear, size of his one finger; it had a sharp end. He was first stabbed by the accused with a spear on his nose bridge. He was again stabbed on the stomach. He showed the court the scars from the stab wounds.</p> <p>It is in cross-examination that the court got to know the content of the report made by the deceased to this witness. State counsel avoided leading this witness to testify on the content of the report, as it would have been inadmissible hearsay evidence. Defence counsel, asked the witness to tell the court the nature of the report made to him by the deceased. This amounts to cross-examination on inadmissible evidence. In general, where inadmissible evidence is elicited by the cross examiner himself, it becomes admissible and may be used in the consideration of guilty. See: Pretorius JP <em>Cross-Examination in South African Law </em>(LexisNexis Butterworths 1997) 248-249). This is what occurred in this case. This witness then testified about the content of the report, being that accused had gone to the homestead of the deceased at night around 1 a.m. He violently broke the deceased’s door. Assaulted deceased once with a metal bar. He took a cell phone belonging to the deceased. Deceased said all she wanted was her cell phone and that accused must never come to her residence again. This is the report this witness was following when he went to deceased homestead.</p> <p>The second witness to give oral evidence is Rungano Mushangi. He resides at Village Mapiye, Chief Samambwa, Zhombe. He has been staying in this village from 1976 when he was born. He is now visually impaired. This disability afflicted him after the events he testified to. He knows the accused as he resides with his mother in the same village. He has known accused for a long time. He knew deceased during her lifetime as his neighbour. On the 2nd February 2018, during the afternoon, he was at his homestead, with two other persons. He heard someone calling out his name, he went outside to investigate. That is when he saw accused holding a blood stained spear and a jacket. Accused shouted that he had killed two dogs, pointing at the direction of deceased’s homestead. This witness immediately proceeded to the deceased’s homestead, which was close by. Upon arrival he saw deceased’s body lying on the ground a few metres from her yard. There was blood all over. He then made plans that the matter be reported to the police.</p> <p>In cross examination by defence counsel, he said accused stayed at the same village with his mother. He said it was not correct that accused stayed with the deceased. Asked whether deceased was accused’s wife, he said he knew nothing about that. He says accused was four metres from him, when he announced that he has killed two dogs.</p> <p>After the conclusion of the testimony of Rungano Mushangi, the prosecution closed its case.</p> <p><strong>Defence case</strong></p> <p>The accused elected to give evidence under oath. He testified that he resides at Village Mapiye, Chief Samambwa, Zhombe. He said before this tragic incident he was staying with his wife, the deceased. They have a child. He says on the fateful day, at around 10 O’clock in the morning he found his wife in a compromising position with one Leonard Mhosva (1st State witness). He testified that Leonard Mhosva then struck him (accused) with a metal bar on the back of his head. He realised that Leonard Mhosva, was a policeman, because of the uniform he was wearing. Although at that stage he was not putting on a trousers. After being hit with a metal bar, he says he left his homestead and his family, and eventually stayed with his father in Masvingo. He was only told by the police, a year later that his wife, i.e. deceased had died. He denied that he is the one who killed the deceased. He denied that he had a spear. He testified that the state witnesses are not telling the court the truth, they just want to put him in trouble.</p> <p>After the testimony of the accused, the defence closed its case.</p> <p><strong>The law and analysis of evidence</strong></p> <p>In the evaluation of the evidential material this court will observe the following principles; evidence must be weighed in its totality; probabilities and inferences must be distinguished from conjecture and speculation. The court must sift truth from falsehood. There is no <em>onus </em>on the accused to prove the truthfulness of any explanation which he gives or to convince the court that he is innocent. Any reasonable doubt regarding his guilty must be afforded to the accused. See <em>S v Jochems </em>1991 (1) SACR 208 (A), <em>S v Jaffer </em>1988 (2) SA 84 (C), <em>S v Kubeka </em>1982 (1) SA 534 (W) at 537 F-H.</p> <p>We have had the opportunity of watching all the state witnesses as well as the accused when they testified in this court.  We distinctly formed an impression that the state witnesseswere truthful, honest and reliable as witnesses in this court. We can say here without any shadow of doubt that the state witnesses did not embellish their versions to disadvantage the accused herein. We have no reason to reject or disregard their testimonies. We accept it as representing the truth.</p> <p>We distinctly formed an impression that the accused was not telling the truth to this court. There are so many inconsistencies and improbabilities in the accused’s version that we can say without any fear of contradiction that he was an untruthful, unreliable and untrustworthy witness whose evidence cannot be relied on. His version of events is so improbable that it cannot be accepted as representing a true version of events in this case. For instance: he says he was married to the deceased, and he finds his wife in a compromising position, he is stabbed, then leaves his home and disappears until he is arrested a year later in Masvingo. He does not report the stabbing to the police. No one tells him about the death of his wife, until he is told by the police a year later. He says he has a child with deceased who was 5 years old. When pointed out to him in cross examination that the child could not be five years, because by his own version he tried to get a Form 1 place for the child, he makes a turn and says the child is 13 years. This turn could not help him, because he says he had known deceased for the past 6 years, so there could not be a 13 year old child from a relationship of such a duration. He runs away to Masvingo and does not even bother to check what happened to the child. By his own version, he leaves a stranger, i.e. Leonard Mhosva with his wife, and escapes to Masvingo. We find the accused’s version to be false beyond a reasonable doubt.</p> <p>We find that the accused’s evidence that the deceased was his wife to be false. He might have had a relationship with the deceased, but she was not his wife. Deceased was married to someone else. The evidence that he was struck by Leonard Mhosva is false. The evidence that he found deceased with Leonard Mhosva in a compromising position is false. Accused was merely peddling falsehoods in this court. We factor his falsehoods in deciding this case. See: <em>S </em>v <em>Mtsweni</em> 1985 1 SA 590 (A), where the court said a false statement by an accused can be used in drawing an inference of guilty from other reliable evidence. See: Schwikkard PJ <em>Principles of Evidence </em>(2nd edition Juta 2002) 503-504.</p> <p>We find the following facts to be common cause in this case: deceased died on the 2nd February 2018. The Pathologist who conducted a post mortem report observed multiple abrassions on the face, chest, forearm and arms, and stab wound on the body of the deceased. The Pathologist concluded that the cause of death was: haemorrhagic shock; haemponeumothorax; stab wound chest; and assault.</p> <p>There is no direct evidence about the person who inflicted the injuries, which caused the death of the deceased. The State<strong>’</strong>s case against the accused is entirely built upon circumstantial evidence<strong>.  </strong>Much has been said and written about circumstantial evidence and how it should be evaluated by the courts<strong>. </strong>In <em>R </em>v <em>Blom 1939 AD188, 202-3 </em>the court referred to what it called the <strong>“</strong>two cardinal rules of logic<strong>” </strong>to be applied when deciding the proper inference to be drawn from circumstantial facts<strong>.</strong> Those <strong>“</strong>rules<strong>” </strong>are explained as follows<strong>:</strong></p> <p> </p> <p>1<strong>. </strong>The inference sought to be drawn must be consistent with all the proved facts<strong>. </strong>If it is not<strong>, </strong>then the inference cannot be drawn<strong>.</strong></p> <p>2. The proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn<strong>. </strong>If they do not exclude other reasonable inferences then there must be a doubt whether the inference sought to be drawn is correct<strong>.</strong></p> <p> </p> <p>These <strong>“</strong>two cardinal rules of logic<strong>” </strong>have become embedded in our jurisprudence<strong>.  </strong>In endeavouring to apply the <strong>“</strong>rules<strong>” </strong>to the evidence before it, a court should be careful not to fractionalise the process by applying the rules of logic in compartments<strong>. </strong>As in all cases of inferential reasoning any inference to be drawn<strong>, </strong>can only be done by considering all the relevant evidence as a whole<strong>.  </strong>In <em>R </em>v<em> de Villiers, </em><em>1944AD 493, 508</em>, the court said, the test is not whether each proved fact excludes all other inferences<strong>, </strong>but whether the facts considered as a whole, did so<strong>.</strong></p> <p> </p> <p>Circumstantial evidence in itself may at times furnish direct proof of issues in question. In <em>S v Reddy </em>1996 (2) SCR 1 (A) the court held among others that circumstantial evidence is not necessarily weaker than direct evidence. That in certain circumstances it may even be stronger or of more value than direct evidence. Inferences to be drawn when circumstantial evidence is utilised must be carefully distinguished from conjecture or speculation. If there are no positive proven facts from which the inference can be made, the method of inference falls away and what is left is mere speculation or conjecture. See: <em>Caswell v Powell Duffryn Association Collieries Ltd </em>1940 AC 152 at 169 per Lord Wright.</p> <p> </p> <p>In order to decide whether the State has proved its case beyond reasonable doubt based on circumstantial evidence, the court needs to take into account the cumulative effect of the evidence before it as a whole. It is impermissible and an incorrect approach to consider the evidence piecemeal. See <em>S v Snyman</em>1968 (2) SA 582 (A) at 589F, <em>S v Hassim</em>1973 (3) SA 443 (A) at 457H, <em>S v Zuma </em>2006 (2) SACR 191 (W) at 209B-I. The court must also not only apply its mind to the merits and demerits of the State and defence witnesses but also to the probabilities of the case. Such probabilities should also be tested against the proven facts that are common cause. See: <em>S v Abrahams </em>1979 (1) SA 203 (A); <em>S v Mhlongo</em>1991 (4) SACR 207 (A); <em>S v Guess </em>1976 (4) SA 715 (A); <em>S v Trainor </em>2003 (1) SACR 35 (SCA).</p> <p> </p> <p><em>In casu,</em> the first inquiry is simply this; what are the proved facts? We find the following facts proved: we have pointed out that the deceased died a violent death, as shown by the post mortem report. Deceased made a report to Leonard Mhosva, (first witness) a member of a member of the Neighbourhood Watch Committee stationed at ZRP Zhombe, and concluded by saying she does not want accused to come to her homestead again. On the 2nd February 2018, Leonard Mhosva, reacted to the report and proceeded to the homestead of the deceased. Upon arrival at the homestead of the deceased, Leonard Mhosva saw accused carrying two spears. The deceased stabbed him with a spear. Leonard Mhozva disarmed accused of one spear. Accused remained with one spear in his possession. After being stabbed Leonard Mhosva escaped from the scene. On the same date, accused was seen by RunganoMushangi (second state witness), holding a blood stained spear and a jacket. Accused had one spear. Accused shouted that he had killed two dogs, pointing at the direction of deceased’s homestead. This witness immediately proceeded to the deceased’s homestead, which was close by. Upon arrival he saw deceased’s body lying on the ground a few metres from her yard. There was blood all over. After the incident, accused left the village. He was only accounted for on the 9th February 2019, a year after the event. We find that he escaped and hid in Masvingo, to escape being held accountable for his deed. We conclude that the proved facts exclude every reasonable inference from them save that it is the accused who stabbed deceased with a spear causing her death.</p> <p> </p> <p>In our view, against the background of all the evidence, the accused’s version is so improbable that it cannot be said to be reasonably possibly true. The evidence of Leonard Mhosva and Rungano Mushangi is credible and is accepted. His evidence, on the other hand, is rejected as false. From the totality of the evidence led herein, inclusive of the accused’s false version. We find that the state proved its case beyond reasonable doubt.</p> <p> </p> <p>Mr <em>Ndlovu</em>, counsel for the State, invited this court to find accused guilty of murder in terms of section 47(1)(a) of the Criminal Law (Codification and Reform Act) [Chapter 9:23]. For this court to return a verdict of murder with actual intent, we must be satisfied that the accused desired death, and that death was his aim and object or death was not his aim and object but in process of stabbing the deceased he foresaw death as a substantially certain result of that activity andproceeded regardless as to whether death ensues. See: <em>S </em>v <em>Mugwanda </em>SC 215/01.  Accused used a spear, a lethal weapon. He stabbed the deceased many times, including in the chest. The stabbing caused multiple abrassions on the face, chest, forearm and arms. Furthermore there is a stab wound of 10 cm deep on the chest. Again, he told the second witness that he had killed two dogs. The deceased must have died instantly, because when Rungano Mushangi went to check he found her dead. We are satisfied on the evidence before us, that the accused is guilty of murder with actual intent.</p> <p> </p> <p><strong>Verdict </strong></p> <p> </p> <p>Having carefully weighed the evidence adduced as a whole in this trial: the accused is found guilty of murder with actual intent as defined in terms section 47 (1) (a) of the Criminal Law (Codification &amp; Reform Act) [<em>Chapter 9:23</em>].</p> <p> </p> <p><strong>Sentence </strong></p> <p> </p> <p>It is firmly established that in determining upon an appropriate sentence a court should have regard to the nature of the crime the accused has committed, the interests of the community and the individual circumstances of the accused. These considerations are commonly referred to as the '<em>Zinn triad</em>’ after the often quoted decision of the Appellate Division that authoritatively confirmed them to be the relevant compass points. See:<em>S v Zinn </em>1969 (2) SA 537 (A).</p> <p> </p> <p>The accused did not lead evidence in mitigation of sentence.  He placed the following personal circumstances before the court through the medium of his legal practitioner. Accused is 37 years old. He was 34 years old at the time of the commission of this offence. He survives on vending and piece jobs. He has 8 head of cattle and 13 goats. He is a first offender and has been in pre-trial incarceration for a period of 2 years and 3 months.  The court must weigh these mitigating features against the aggravating factors and the interests of justice. </p> <p> </p> <p>However, we note that the accused committed a barbaric act of mindless brutality directed at a helpless and vulnerable woman. That the injuries inflicted by the accused were severe is borne out by the post-mortem report. We factor into the equation the following factors: accused stabbed deceased many times with a spear. A spear is a lethal weapon. Directed some stabs on the chest. Left the body of the deceased in an open area. Boasted that he has killed a dog.</p> <p> </p> <p>Her only crime was to report accused to a member of the Neighbourhood Watch Committee, that accused came to her home at night, around 1 a.m. damaged the door, and took her cell phone. She did not want accused to come to her home again.  For this, she paid with her life. The interests of society are significantly implicated in a case such as this that involves violence of an extremely serious degree against a woman. As violence against woman generally is <em>prevalent</em>, society is entitled to expect of courts to impose sentences that send a message clearly that violence against the weak and vulnerable in our society will not be tolerated.</p> <p> </p> <p>The evidence shows that an extraordinary degree of violence was deployed against a defenceless human being. The violence that preceded the killing of the deceased was such as to place this crime in the category of the most serious. It is difficult to conceive what the victim experienced in her last moments.What a horrible way to end the life of another human being. This court must say it, and say it strongly that such conduct will not be tolerated. This court has taken a stand, and it will continue taking a stand, against this wanton violence and destruction of life. Such conduct must be answered with appropriate punishment. The moral blameworthiness of the accused is very high. See: <em>S v Enock Sibanda </em>HB 151/20.</p> <p> </p> <p>There is no mathematical formula in sentencing. The personal circumstances of the accused and all that has been said on his behalf should enjoy appropriate consideration in coming up with an appropriate sentence. A balanced approach is required. It is a balancing act.</p> <p> </p> <p>After taking all factors in to account, we find that the following sentence will meet the justice of this case:</p> <p> </p> <p>Accused is sentenced to 25 years imprisonment.</p> <p> </p> <p><em>National Prosecuting Authority, </em>state’s legal practitioners</p> <p><em>Hore and Partners</em>, accused’s legal practitioners</p> <p>           </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/87/2021-zwbhc-87.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=31415">2021-zwbhc-87.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/87/2021-zwbhc-87.pdf" type="application/pdf; length=423997">2021-zwbhc-87.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/murder">Murder</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/evidence-2">EVIDENCE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/circumstantial-evidence">Circumstantial (EVIDENCE)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Wed, 16 Jun 2021 08:56:55 +0000 Sandra 10060 at https://old.zimlii.org Baron v Baron And 2 others (HB 92-21, HC 1665/20) [2021] ZWBHC 92 (03 June 2021); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2021/92 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HB 92/21</p> <p>HC 1665/20</p> <p><strong>WILLIAM BARON </strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>THERESA BARON </strong></p> <p> </p> <p><strong>And </strong></p> <p> </p> <p><strong>THOMAS WILLIAM BARON </strong></p> <p> </p> <p><strong>And </strong></p> <p> </p> <p><strong>REGISTRAR OF DEEDS </strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>DUBE-BANDA J</p> <p>BULAWAYO 12 MAY 2021 AND 3 JUNE 2021</p> <p> </p> <p><strong>Court application </strong></p> <p> </p> <p><em>Ms A Nkomo,</em> for the applicant</p> <p><em> I Mupfiga, </em>for the 1st respondent</p> <p>           </p> <p><strong>DUBE-BANDA </strong>J: In this court application, applicant seeks an order to have a caveat registered against the title of Plot 17 and 18 of Greenvale, Bickford, Umsungwe Block, Gweru (Plot 17 and Plot 18), and costs against 1st and 2nd respondent on a legal practitioner and client scale. The application is opposed by the 1st respondent. 2nd respondent filed a consent to judgment. 3rd respondent did not participate in these proceedings, and I take the view that it has taken a position that it shall abide by the order this court. For ease of reference, the parties shall, where the context permits, be referred to by their names.</p> <p>This application will be better understood against the background that follows.On the 1st July 2020, applicant (William Baron)caused to be issued out of this court a summons against 1st respondent (Theresa Baron) and 2nd respondent (Thomas William Baron). The summons matter is pending under cover of case No. HC 1025/20. In the summons applicant claims a sum of US$26 700.00, it being alleged to represents monies he contributed towards the purchase of assets for the Thomas William Baron Family Trust (Trust). It is pleaded in the summons that 1strespondent and 2nd respondent have dissolved the Trust, and did not reimburse applicant his contributions. The record in HC 1025/20 shows that the matter is at the discovery stage.</p> <p>Against this background, the applicant launched this application on the 19th March 2021, seeking an order to place a caveat against the title of Plot 17 and Plot 18. Plot 17 is registered in the name of the 1st respondent, and Plot 18 is registered in the name of 2nd respondent. Applicant’s contention is that should the summons matter pending under cover of case No. HC 1025.20 be decided in his favour, the two, i.e. 1st respondent and 2nd respondent have no other known assets that can be liquidated to meethis claims except the two plots. It is on this basis that he seeks an order encumbering the two plots with a caveat.</p> <p>The founding affidavit to this application was deposed to by one Nikiwe Ncube-Tshabalala. I will revert to this issue later in this judgment. 1st respondent filed a notice of opposition, and applicant<em> purported </em>to file an answering affidavit.The <em>purported</em>answering affidavit is not signed by the deponent. It was however signed by a commissionerof oaths – one Lerato Mguni. How such could happen, that a <em>purported </em>affidavit is not signed by the deponent but signed by a commissioner of oaths, leaves a lot of questions unanswered. However, the point is that there is no answering affidavit before court. This court cannot relate to an unsigned document masquerading as an affidavit.</p> <p>Another issue that arises in this application, relates to the 1st respondent’s failure to file heads of argument within the timeline allowed by the rules of court. Applicant filed his heads of argument on 18th November 2020, and 1st respondent<em>purported</em> to file her heads of argument on the 10th December 2020. When it became apparent to 1st respondent that her heads of argument were filed out of the timeline allowed by the rules of court, she filed a chamber application, under cover of case No. HC 2118/20, seeking an order uplifting the automatic bar imposed by rule 238 (2) (b) of the High Court Rules, 1971. At the commencement of the hearing of this application, I was informed of this chamber application, and that it was still pending. I stood down the hearing of this matter and directed that the chamber application be placed before me. Mr <em>Mupfiga,</em> counsel for the 1st respondent submitted that the order sought in the chamber application be granted. Ms <em>Nkomo</em>, counsel for applicant, indicated that the order sought was not opposed. In fact she asked that the order sought be granted by consent. On the facts of this chamber application, I was satisfied that the concession by Ms <em>Nkomo </em>was properly made, and the order sought was indeed merited. I then granted the order in terms of the amended draft. In the result, 1st respondent’s heads of argument, a copy already in the court file, was now properly before court.</p> <p>The applicant neither deposed to a founding affidavit nor supporting affidavit. The founding affidavit in support of the application was deposed to by one Nikiwe Ncube-Tshabalala. I asked Ms <em>Nkomo,</em>whether the evidence contained in the founding affidavit does not amount to inadmissible hearsay evidence. For completeness, I reproduce in full hereunder the affidavit of Nikiwe Ncube-Tshabalala in support of this application. It is this:</p> <p>I, NIKIWE NCUBE-TSHABALALA, do hereby make oath and say;</p> <ol> <li>I am a registered Legal Practitioner for the applicant in this matter and the facts I depose to herein are, to the best of my knowledge, true and correct. Where I have no personal knowledge of the facts I confirm having verified same. The applicant’s address of service is Ncube –Tshabalala Attorneys, 113A Broadway House, 12th Avenue &amp; Joshua M. N.  Nkomo Street Bulawayo.</li> <li>The 1st Respondent is Theresa Baron, a female adult whose address of service is Lot 17 of Greenvale of Bickford of the Umsungwe Block, Gweru.</li> <li>The 2nd Respondent is Thomas William Baron, a male adult whose address of service is Lot 18 of Greenvale of Bickford of the Umsungwe Block, Gweru.</li> <li>The third Respondent is cited in his official capacity as the Registrar of DEEDS &amp; COMPANIES, whose address of service is Tredgold Building in Bulawayo.</li> <li>The applicant caused Summons to be issued under Case No. H.C. 1025/20 claiming several sums of money that were sent to the 1st and 2nd Respondent  in pursuance of the objectives of Thomas Baron Family Trust, registered under MA 961/2017. I refer to the pleadings therein by reference.</li> <li>The Applicants claim against the 1st and 2nd Respondent amount to the equivalent of US$26 700.00 (Twenty Six Thousand Seven Hundred United States Dollars) at bank rate at date of payment.</li> <li>The 1st and 2nd Defendants are registered owners of Plot 17 and 18 of Greenvale of Bickford of the Umsungwe Block, Gweru respectively.</li> <li>There are no other known assets belonging to the 1st and 2ndDefendants that can be liquidated to pay the applicants claims except the two plots. Annexed hereto are copies of the Title Deeds for both properties. I am therefore applying that Caveats be placed on Plot 17 of Greenvale of Bickford of the Umsungwe Block, Gweru, held under Deed of Transfer Number 5805/89 and Plot 18 of Greenvale of Bickford of the Umsungwe Block, Gweru held under Deed of Transfer Number 1615/87 to secure the Applicants claims.</li> <li>The plaintiff has no alternative other than to burden the said properties.</li> </ol> <p>Ms <em>Nkomo,</em> argued that the founding affidavit does not contain inadmissible hearsay evidence, since the deponent, Nikiwe Ncube-Tshabalala is the legal practitioner of record of the applicant. It is contended that the founding affidavit was deposed on the basis of the instructions given by the applicant, to his legal practitioner of record, therefore the contents of the affidavit are admissible. It is important to observe at this point that the affidavit does not aver that it was drawn from the information given by the applicant. It merely says the deponent is the legal practitioner of the applicant.</p> <p>For completeness, it is important that I give a general definition of hearsay evidence, it is defined as evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence. Put differently, it is a statement made otherwise than by a witness giving evidence. See: <em>R v Harz</em>, (1966) 3 All E.R. 433 at p. 449).Generally affidavits must be confined to such facts as the witness is able of his own knowledge to prove, except in interlocutory motions, and urgent applications, where hearsay evidence may be admitted. See:<em> Jean Hiltunen v Osmo Juhani Hiltunen </em>HH 99/08.In<em> Bubye Minerals (Private) Limited and Athlone Investments (Private) Limited v Rani International Limited </em>S.C. 60/06 the court said the evidence on the founding affidavit of the applicant should be based on personal knowledge and not hearsay. If it is not based on personal knowledge but on hearsay, the effect of this is that there is no founding affidavit in support of the application and therefore, no application before court. I take the view that Order 32 Rule 227 (4) (a) of the High Court Rules, 1971, which says an affidavit filed with a written application shall be made by the applicant or respondent, as the case may be, or by a person who can swear to the facts or averments set out in therein, re-enforces the inadmissibility of hearsay evidence in applications.Nikiwe Ncube-Tshabalala is not the applicant in this matter. She can only depose to thefounding affidavit in support of the application if she can swear to the facts or averments set out in therein.</p> <p>In <em>casu,</em> the deponent avers that she is the legal practitioner for the applicant in this matter and the facts deposed to are, to the best of her knowledge, true and correct. Where she has no personal knowledge of the facts, she confirms having verified same. What is conspicuous about the averments made by the deponent is that she does not indicate the source of her information. She does not indicate the person from whom she verified the facts not in her personally knowledge.  She does not say it is the applicant who provided her with such information, as contained in the founding affidavit. For instance, in <em>paragraph</em> 8 of the founding affidavit, she avers that there are no other known assets belonging to the 1st and 2nd respondents that can be liquidated to pay the applicants claims except the two plots. She does not provide the source of this information. It is inadequate to merely aver that she is the legal practitioner of the applicant. The founding affidavit is laden with hearsay evidence. As a general rule, subject to the section 27 of the Civil Evidence Act [<em>Chapter 8:10</em>], and the rule relating to interlocutory and urgent applications, hearsay evidence is inadmissible in affidavits. This is neither an interlocutory nor urgent application.</p> <p>I asked Ms <em>Nkomo,</em> to consider whether the founding affidavit may be saved by the provisions of section 27 (1) of the Civil Evidence Act [Chapter 8:01], which deals with the requirements for admissibility of first hand hearsay evidence. Ms <em>Nkomo,</em> neither had any meaningful submissions to make, nor was I able to find in favour of the application in this regard.It is inadequate for the deponent to merely aver that she is the legal practitioner of the applicant. More is required to meet the requirements of section 27(1) of the Civil Evidence Act. There is no evidence that her averments that: that there are no other known assets belonging to the 1st and 2ndrespondents that can be liquidated to pay the applicants claims except the two plots; and that the applicant has no alternative remedy than to burden the said properties, would have been admissible from the mouth of the source. See:<em> Jean Hiltunen v Osmo Juhani Hiltunen (supra). </em>The court does not know the source of this information. The deponent deposed to facts that are not within her personal knowledge, did not indicate the source of her information, save for her statement that she is a legal practitioner for the applicant.  She does not say from whom she verified the facts not within her knowledge.</p> <p>So important is this principle that in <em>Bubye Minerals (Pvt) Ltd and Anor</em> v <em>Rani International Limited </em>SC 60/06 the Supreme Court dismissed an appeal on the sole basis that the deponent to the founding affidavit had no personal knowledge of transactions alleged in the affidavit. This was despite the fact that the deponent had access to the company records and also consulted the company’s employees. See: <em>Stalap Investments (Pvt) Ltd and Zimre Holdings Ltd and Douglas Mamvura and Ramsway (Pvt) Ltd versus Willoughby’s Investments (Pvt) Ltd and Itai Valerie Pasi and CFI Holdings Ltd </em>HH 459/19. The learned authors Herbstein and Van Winsen in <em>Civil Practice ofthe High Courts of South Africa</em> 5 ed, Vol. 1 of p 444 opine that where a deponent to an affidavit includes information that he does not have first-hand knowledge of, a verifying affidavit must be filed. There is no supporting affidavit in this application. All in all, I have not been able to isolate any facts that the deponent could have had personal knowledge of. I therefore, find that the entire founding affidavit contains inadmissible hearsay evidence.</p> <p>In conclusion, rule 230 of the High Court Rules, 1971, says a court application shall be in Form No. 29 and shall be supported by one or more affidavits setting out thefacts upon which the applicant relies. It is trite that in application proceedings, it is to the founding affidavit that the court will look to for the cause of action.  Hence as has been said in numerous cases before, an application must stand or fall by its founding affidavit and the facts alleged therein because those are the facts which the respondent is called upon either affirm or deny. See: <em>Magwiza </em>v <em>Ziumbe NO and Another </em>2000 (2) ZLR 489 (S) at 492 D-F.In this case, there is no founding affidavit recognizable at law.</p> <p>In the circumstances, I come to the conclusion that the evidence in the founding affidavit before court is inadmissible.  Thusthere is no founding affidavit and therefore, no application before court to consider.In respect of costs, the applicant has failed to obtain the relief he sought from this court. There are no special reasons warranting a departure from the general rule that costs should follow the result.</p> <p><strong>Disposition</strong></p> <p>In the result: the application is struck off the roll with costs of suit.</p> <p><em>Ncube-Tshabalala Attorneys</em>, applicant’s legal practitioners</p> <p><em>Gundu, Dube &amp; Pamacheche, </em>1st respondent’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/92/2021-zwbhc-92.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26587">2021-zwbhc-92.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/92/2021-zwbhc-92.pdf" type="application/pdf; length=419023">2021-zwbhc-92.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/evidence-2">EVIDENCE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/credibility-evidence">Credibility (EVIDENCE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/affidavit-practice-and-procedure">Affidavit (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/affidavit-support-application">affidavit in support of application</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/answering-affidavit">answering affidavit</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/founding-affidavit">founding affidavit</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/signatory-affidavit">signatory to affidavit</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/t">T</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/trust">TRUST</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2008/99">Hiltunen v Hiltunen (HC 1229/08) [2008] ZWHHC 99 (18 November 2008);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2007/91-0">Bubye Minerals (Private) Limited and Another v Rani International Limited ((297/05)) [2007] ZWSC 91 (17 January 2007);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2019/459">Stalap Investments (Pvt) Ltd &amp; 3 Others v Willoughby&#039;s Investments (Pvt) Ltd &amp; 2 Others (HH 459-19, HC 11164/17) [2019] ZWHHC 459 (04 July 2019);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/consolidated-act/chapter-801">Civil Evidence Act,Chapter 8:01</a></div></div></div> Wed, 16 Jun 2021 06:52:55 +0000 Sandra 10055 at https://old.zimlii.org Muyambo v Beitbridge Rural District Council (HB 97-21, HC 726/19) [2021] ZWBHC 97 (03 June 2021); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2021/97 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HB 97-21</p> <p>HC 726/19</p> <p><strong>RATANG MUYAMBO</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>BEITBRIDGE RURAL DISTRICT COUNCIL</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>TAKUVA J</p> <p>BULAWAYO19 FEBRUARY 2020 &amp; 3 JUNE 2021</p> <p> </p> <p><strong>Opposed application</strong></p> <p> </p> <p><em>K. Ngwenya</em> for the applicant</p> <p><em>J. J. Moyo </em>for the respondent</p> <p> </p> <p>            <strong>TAKUVA J:</strong>  This is an application for a declarateur against the respondent.  Applicant seeks an order declaring that the respondent’s deduction of her health allowance extended to her by the Ministry of Health and Child Care is illegal and unlawful.  Further applicant seeks an ancillary order for the payment of all monies that have been deducted by the respondent to date.</p> <p><strong>Background facts</strong></p> <p>            Applicant is employed by the respondent as an Executive Officer Health.  By virtue of that position the Ministry of Health and Child Care put in place an arrangement for some allowable deduction allowance for health personnel in councils including the applicant.  The applicant’s allowance total $218,00 per month. Applicant received her health allowance without any challenges until2010 when the allowance was deducted from her salary by the respondent.  Following discussions, the issue was rectified.  However in March 2015, respondent started again deducting the applicant’s health allowance from applicant’s salary.</p> <p>            Aggrieved, applicant approached the Ministry of Labour arguing that the effect of the deduction of her health allowance was a reduction in her salary contrary to the provisions of the Labour Act Chapter 28:01.  The applicant also claimed payment of all the monies deducted by the respondent up to that date.  A Designated Agent eventually dealt with the matter and dismissed the applicant’s claim.</p> <p>            In this application, applicant argued that the relief she seeks is different from the relief granted by the Designated Agent in that the dispute before the Designated Agent was whether the applicant’s salary had been unlawfully reduced whereas the effect of a declarateur is to declare the applicant’s “entitlement to the allowance”.  Applicant agrees that one of the issues before the Designated Agent was “whether or not the claimant’s salary was unilaterally reduced”.  In fact, the issue is put beyond any reasonable doubt by the applicant in the following words; “what the applicant has referred to this Honourable Court is that a declaration be made that the deduction by the respondent of her health allowance paid by the Ministry of Health and Child Care be declared unlawful and illegal.  Indeed no pronouncement was made by the Designated Agent on this issue.  Accordingly, it is submitted that the respondent’s contention that “a tribunal of competent jurisdiction has made a pronouncement of the applicant’s legal entitlement to her health allowances has no merit and cannot be sustained”.  (my emphasis)</p> <p>            According to the applicant there are only three issues for determination namely;</p> <p>“(i)       whether the respondent has any authority or legal basis to deduct applicant’s health allowance paid by the Ministry of Health and Child Care?</p> <p>(ii)        whether the applicant’s legal entitlement to the health allowance paid by the Ministry of Health and Child care has been determined by a tribunal of competent jurisdiction; and</p> <p>(iii)       whether the applicant has managed to satisfy the requirements for a declarateur and the relief she is seeking”.</p> <p> </p> <p>            Applicant proceeded to argue her case on the above premise.</p> <p>            The application was opposed by the respondent on the ground that the matter has already been determined by a tribunal of competent jurisdiction.  In the circumstances, the applicant ought to have taken the necessary steps to challenge the decision that was made either through an appeal process or one of review so that the decision if wrong at law, may be set aside.</p> <p>            The defence is one of <em>res judicata</em>.  In my view this is the issue before this Court.  The requirements of the principle of <em>res judicata</em> were set out in the following cases; <em>Wolfenden</em> v <em>Jackson</em> 1985 (2) ZLR 313 (SC); <em>Towers </em>v <em>Chitapa </em>1996 (2) ZLR 261(H); <em>Farai Chitsinde</em> <em>and Nyasha Chitsinde</em> v <em>Stanny Musa and the Registrar of Deeds and The Deputy Sheriff</em> HH-274-2010; <em>S. Makonyene</em> v <em>Alfred Muchini and the Sheriff and The Master of the High Court</em> HH-46-2013.</p> <p>            In a nutshell the requirements are that;</p> <ol> <li>The two matters involve the same parties;</li> <li>The two matters must involve the same issues; and</li> <li>The earlier matter having been brought before a court of competent jurisdiction and which court made its determination on that issue – see the <em>Chitsinde</em> case <em>supra</em>.</li> </ol> <p><em>In casu</em>, it is common cause that in both the matter before the Designated Agent, and in this application, applicant and the respondent remain the same parties.</p> <p> As regards the second requirement, there exists a dispute as to whether the issue is the same.  I must note that this requirement is interpreted expansively so as to permit the probability of the defence being satisfactorily invoked in respect of an issue determined as part of the <em>ratio decidendi</em> of the previous decision – see <em>Towers</em> v <em>Chitapa supra.</em></p> <p>In order to unravel the origin and basis of this dispute, it is necessary for the factual matrix to be closely examined.  It is common cause that applicant presented a set of facts relating to a labour dispute to a competent labour tribunal and urged that tribunal to find that the deduction by the respondent from her pay and benefits of an allowance given by the Ministry of Health and Child Care, was unlawful and that the respondent should be ordered to pay back amounts so deducted since 2015.  This version is consistent with applicant’s written submissions to the Designated Agent.  What then is the version presented to this Court?  The answer is in applicant’s founding affidavit to this application.</p> <p>A reading of the submissions by the applicant in the tribunal below and her founding affidavit in this application present the same case.  I take the view that in both presentations, the case she makes is that as an Executive Health Officer, she is entitled to allowances from the Ministry of Health and Child Care, whose aggregate is $218,00 and the respondent has no right to withhold this allowance  and must pass it on to her in full.  In both, she then asks for payment of these allowances from 2015 to date.</p> <p>Even the Designated Agent correctly identified the case he was asked to determine.  In his ruling he states; “The issues in dispute”.  According to claimant her salary which was initially $1 172,78 and which included allowances from the Ministry of Health and Child Care was unilaterally reduced by respondent to $954,78 by scrapping of Ministry of Health monthly allowances of $218,00 from 2015onwards.  The claimant is therefore claiming $7 412,00 in unpaid allowances of $218,00 over a period of 34 months”.</p> <p>In my view, that is the same complaint applicant makes in this application and the relief sought is the same as what was sought in the lower tribunal.  Further, the overall effect of the decision of the Designated Agent was that there was nothing wrong in the manner respondent treated the allowances received from the Ministry of Health, i.e. processing it through its payroll and topping up to ensure that the applicant receives her full pay as per her contract of employment.  He also found that it was quite proper to subject the allowance to tax.  More importantly, he found that there was nothing wrong or illegal in the way respondent was doing things.  Accordingly, he concluded that the applicant’s claim had no merit and he dismissed it.</p> <p>On the other hand, the effect of the declarateur sought, if granted will be to provide for exactly the opposite of what the Designated Agent found in that applicant now wants this Court to find that the respondent acted unlawfully, as it has no right to tax the allowance from the Ministry of Health, and it must be passed on to her as it is.  Clearly, such a finding would contradict the Designated Agent’s finding.  Whilst this CCourt is a superior Court, it would be undesirable for it to make decisions that contradict those made by lower tribunals and without the decision of such lower tribunals first being set aside.  This is the hallmark of the principle of <em>res judicata.</em></p> <p>In this regard, I agree with Mr Moyo’s submission respondent that, “To try and distinguish the case presented here from the case that was presented to the Designated Agent and the decision of the Designated Agent and the one sought here, is just splitting hairs.  The applicant is trying to have the Designated Agent overruled without appealing against his decision or subjecting it to an application for review.  This is legally untenable …”</p> <p>For these reasons, I find that the applicant is essentially bringing before this Court the same issue that she brought before the Designated Agent of the National Employment Council for the Rural District Councils and without first having the decision of the Designated Agent set aside.  The wording and content of the declarateur in essence seek an answer to the very question that the Designated Agent was asked to determine, namely whether the deduction of the health allowance provided by the Ministry of Health by the respondent was proper.</p> <p>I now turn to the 3rd requirement of the principle of <em>res judicata</em>.  In terms of section 93 as read with section 63(b) of the Labour Act [Chapter 28:01], a Designated Agent of an Employment Council enjoys exclusive jurisdiction in determining labour disputes within the industry he is appointed to act as Designated Agent and to the exclusion of a labour officer.  Therefore, there is no argument that this is a tribunal of competent jurisdiction. Further, applicant also understood it as such which is why she correctly referred her matter to that tribunal.</p> <p>This application is simply an invitation to go back and re-argue before this Court, a case that the parties have argued elsewhere and a decision made for them.  The fact that the issues are the same is further demonstrated by the ancillary relief sought namely the “payment of all the monies that have been deducted by the respondent to date”.  Essentially, the Designated Agent declared the manner in which the deduction was carried out by the respondent legal and lawful. On the other hand the applicant seeks through a declarateur that the deduction be declared by this Court illegal and unlawful.  The unlawfulness and illegality issues are settled by the earlier matter and the applicant cannot reopen them while the Designated Agent’s ruling stands intact.</p> <p><strong>Disposition</strong></p> <ol> <li>The doctrine for <em>res judicata</em> applied in this case.</li> <li>The application is dismissed with costs.</li> </ol> <p> </p> <p><em>Messrs T. J. Mabhikwa &amp; Partners, </em>applicant’s legal practitioners</p> <p><em>Calderwood, Bryce Hendrie &amp; Partners</em>, respondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/97/2021-zwbhc-97.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=22277">2021-zwbhc-97.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/97/2021-zwbhc-97.pdf" type="application/pdf; length=329239">2021-zwbhc-97.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/salaries-and-wages">Salaries and wages</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/declaratory-order">Declaratory order</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/res-judicata">Res judicata</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/essentials-res-judicata">essentials of res judicata</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/principles-res-judicata">principles (Res judicata)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/requirements-res-judicata">requirements for (Res judicata)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2010/274">Chitsinde and Another v Musa and Others (CS 129/08) [2010] ZWHHC 274 (14 December 2010);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2013/46">Makonyere v Muchini &amp; Others (HC 6053/2007) [2013] ZWHHC 46 (13 February 2013);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div></div></div> Thu, 10 Jun 2021 12:55:31 +0000 Sandra 10049 at https://old.zimlii.org Ngaru v Kusano (HH 265-21, HC 6160/20 Ref Case No. HC 2760/20) [2021] ZWHHC 265 (21 May 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/265 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HH 265-21</p> <p>HC 6160/20</p> <p>Ref Case No. HC 2760/20</p> <p>ESTHER NGARU</p> <p>versus</p> <p>LIVINGSTONE KUSANO</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUZOFA J</p> <p>HARARE, 12&amp; 28 May 2021</p> <p> </p> <p> </p> <p><strong>Opposed Application- Special Plea</strong></p> <p> </p> <p><em>E.T Muhlekiwa</em>, for the plaintiff</p> <p><em>R. Gasa</em>, for the defendant</p> <p> </p> <p>            MUZOFA J: The plaintiff sued out summons for the division of immovable property acquired by the parties during the subsistence of their tacit universal partnership. Alternatively, the division of the immovable property acquired during the subsistence of the parties’ unregistered customary law union based on unjust enrichment. In opposition to the claim the defendant filed a special plea, that the claim is prescribed.</p> <p>The plaintiff and the defendant were living together as husband and wife in terms of an unregistered customary law union from December 1982 when lobola was paid. Three children were born of the union.  In 2010 the defendant gave the plaintiff “gupuro” a token of rejection thereby terminating the union. There is no dispute that this is when the plaintiff’s cause of action arose.</p> <p>            During the subsistence of the union the parties acquired both movable and immovable property. In order to obtain her share of the property, the plaintiff approached the community court in Bulawayo for division of property. She was awarded by consent an immovable property known as No 6 Birkley Street North End “the property”. The defendant was awarded No 32 Wigton Road, Avondale in Harare. Both properties were registered in the defendant’s name. When the defendant delayed in causing the transfer of the property, the plaintiff approached this court to compel transfer. The matter was heard and the court dismissed the application and set aside the community court order<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a>. The court found that the community court had no jurisdiction to dissolve a customary law union neither could it share the “matrimonial” property because there was no marriage recognized at law between the parties. This was on 15 October 2020, some 7 years after the order of the community court. The plaintiff was undeterred, faced with this new hurdle, she did not throw in the towel. The plaintiff issued out summons as already set out.</p> <p>            In opposing the claim , the defendant filed a plea in bar that the claim is prescribed in terms of s 14 and s 15(d) of the Prescription Act [<em>Chapter 8:11</em>] (hereinafter referred to as the Act). The submission is that, the claim is founded in general law. Tacit universal partnership and unjust enrichment are general law concepts. As such prescription is applicable. The declaration is clear that the unregistered customary law union between the parties was terminated in 2010. The court process in the community court did not interrupt the running of prescription since the judgment was subsequently set aside. The summons in the main matter was issued in October 2020 almost 10 years after the cause of action arose.</p> <p>            In response, the plaintiff insisted on the claim. It was argued that the cause of action is based on the unregistered customary law union, pleading tacit universal partnership or unjust enrichment is for purposes of division of property only. In reality the claim is founded on customary law and in terms of s 3(2) of the Act prescription does not apply and referred to case authority for that proposition <a href="#_ftn2" name="_ftnref2" title="" id="_ftnref2">[2]</a> where the court confirmed the position of the law that prescription does not apply where the rights and obligations of the parties are determined in terms of customary law.</p> <p>The issue for determination is whether prescription applies in the circumstances of this case. This is a matter of interpretation of statutes. The golden rule of interpretation is that where the language of the statute is clear and unambiguous, the words used ought to be given their ordinary grammatical meaning. However where the language used is ambiguous and lacks clarity or may result in an absurdity, the court will interpret it and give it meaning. In the event of an absurdity the court is required to give a meaning that does not result in an absurdity because it is presumed that the legislature in enacting any statute does not intend an absurdity<a href="#_ftn3" name="_ftnref3" title="" id="_ftnref3">[3]</a>.</p> <p>In <em>Coopers and Lybrand and Others v Bryant</em><a href="#_ftn4" name="_ftnref4" title="" id="_ftnref4">[4]</a>  the court noted,</p> <p>‘According to the ‘golden rule’ of interpretation, the language in the document is to be given its grammatical and ordinary meaning, unless this would result in some absurdity, or some repugnancy or inconsistency with the rest of the instrument”</p> <p> </p> <p>I find no ambiguity in the language used in s3 (2) of the Act. The intention of the legislature can easily be ascertained from the ordinary and grammatical meaning of the language used.</p> <p> Section 3(2) of the Act reads:</p> <p>"In so far as any right or obligation of any person in relation to any other person is governed by customary law this Act shall   not apply."</p> <p> </p> <p>            The section deals with the applicable law in the determination of the parties’ rights and obligations. It is the applicable law therefore that determines whether the provisions of the Act are applicable or not. The applicable law is determined by the nature of the pleadings through the cause of action.</p> <p>I was urged to consider the genesis of the right and conclude that the cause of action is based on customary law therefore the provisions of the Act do not apply. There is a difficulty in the submission. The plaintiff’s cause of action is based on tacit universal partnership and unjust enrichment. The plaintiff cannot rely on the customary law union since the cause of action is not based on the customary law union. Section 3 (2) of the Act is very clear and allows of no other interpretation. In other words where customary law is applied in the resolution of a dispute, the provisions of the Act will not apply. The opposite is equally true, where general law is applicable in the determination of the parties’ rights the provisions of the Act will apply. This interpretation resonates with reason since the concept of prescription is unknown under customary law.</p> <p>The plaintiff and the defendant were married in terms of an unregistered law union and therefore customary law would apply in the division of the property they acquired together. However in light of s3 of the Customary Law and Local Courts Act (Chapter 7:05), a claim on a proper cause of action under general law can be made. Customary law applies in civil cases where, regard being had to the nature of the case and the surrounding circumstances, it appears just and proper that it should apply. It does not apply if the justice of the case otherwise requires. Where the application of customary law would bring injustice, the general law will apply. Indeed our courts have applied general law in many cases where the plaintiff has properly set out her cause<a href="#_ftn5" name="_ftnref5" title="" id="_ftnref5">[5]</a>. Thus even if parties are married in terms of an unregistered customary law union, their rights and obligations can be determined applying general law provided the cause of action is properly pleaded.  </p> <p>The plaintiff’s cause of action as set out in the summons is</p> <ol> <li>Sharing of immovable property that was acquired by the parties during the subsistence of their universal partnership alternatively</li> <li>The plaintiff claims against the defendant sharing of immovable property acquired during the subsistence of an unregistered customary law union between the parties based on the principle of unjust enrichment.</li> </ol> <p>The pleaded causes of action are tacit universal partnership and unjust enrichment. These two concepts are unknown under customary law. They are common law concepts. The <em>Pasipanodya</em> case (supra) does not assist the applicant. In that case, the cause of action was based on the unregistered customary law union. The cause of action was not based on general law as set out in the plaintiff’s summons.</p> <p>In submitting that the provisions of the Act do not apply in this case, the plaintiff is blowing hot and cold. In pleading general law concepts as causes of action, she wants general law to apply in her circumstances. The plaintiff dedicated some paragraphs in her founding affidavit narrating how they lived a life that deserves the application of general law. It would seem that the plaintiff wants a restricted application of general law. If general law applies in the sharing of the parties’ property, therefore all the general law principles must apply. It would be an absurdity and an affront to the proper administration of justice to selectively apply the principles of general law by applying only the two concepts of general law as pleaded by the applicant and turn a blind eye to other general law principles. I was not given any authority for such a proposition which l believe maybe problematic.</p> <p>The court fully appreciates the plaintiff’s unfortunate circumstances. The status of a customary law union has not developed in light of modern trends .The legislature has not intervened to properly guide the parties on how to proceed in the event of termination of the union despite numerous calls from different sections of society<a href="#_ftn6" name="_ftnref6" title="" id="_ftnref6">[6]</a>.As a result parties grope in the dark in pursuit of a share in their hard earned properties. While they knock different doors time lapses as in this case. The plaintiff held on to a nullity from 2012 until 2020. Surprisingly the defendant who initially consented to the division of property now raised a sword to destroy the plaintiff’s claim.   </p> <p>            As observed in the <em>Zembe</em> case (supra), it is for the litigant through their legal practitioners to approach the court and properly plead their cases. In this case even if the plaintiff properly pleaded her case, the claim had prescribed. This is so because in the determination of the parties’ rights and obligations general law shall  apply. As such the provisions of s3 (2) of the Prescription Act do not apply.</p> <p>            It is common cause that the summons was issued after the prescriptive period. It was also conceded that the litigation in the community court did not interrupt the running of prescription. On that basis the special plea must succeed.</p> <p>                        The defendant seeks costs on a higher scale. I do not find any justification for costs on a higher scale. The plaintiff’s claim was justified considering that the matrimonial property was not shared except for the technicality of prescription.</p> <p>           </p> <p>Accordingly the special plea is upheld</p> <p> </p> <p>            The plaintiff’s claim dismissed with costs.</p> <p> </p> <p> </p> <p><em>Gasa-Nyamadzawo &amp; Associates</em>, Plaintiff’s Legal Practitioners</p> <p><em>Muhlekiwa Legal Practice</em>, Defendant’s Legal Practitioners</p> <p>           </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> <em>Esther Kusano (nee Ngaru)</em> v <em>Livingstone Kusano and Another</em> HH 647/2</p> <p><a href="#_ftnref2" name="_ftn2" title="" id="_ftn2">[2]</a> <em>Pasipanodya </em>v <em>Muchoriwa</em> 1997 (2) ZLR 182 (SC)</p> <p><a href="#_ftnref3" name="_ftn3" title="" id="_ftn3">[3]</a> Endeavour Foundation and Anor v Commissioner of Taxes 1995 (1) ZLR 339 (S) AT P356F-G</p> <p><a href="#_ftnref4" name="_ftn4" title="" id="_ftn4">[4]</a> 1995 (3) SA 761 (A) at p 767</p> <p><a href="#_ftnref5" name="_ftn5" title="" id="_ftn5">[5]</a> Jengwa v Jengwa 1999 (2)ZLR 121 (H),Mtuda v Ndudzo 2000 (1) ZLRr 710 (H)</p> <p><a href="#_ftnref6" name="_ftn6" title="" id="_ftn6">[6]</a> Jenke v Zembe</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/265/2021-zwhhc-265.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24020">2021-zwhhc-265.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/265/2021-zwhhc-265.pdf" type="application/pdf; length=354685">2021-zwhhc-265.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/enrichment">ENRICHMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/unjust-enrichment">Unjust enrichment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/interpretation-statutes">INTERPRETATION OF STATUTES</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/ambiguity-interpretation">Ambiguity (INTERPRETATION)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/golden-rule-interpretation">Golden Rule (INTERPRETATION)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/partnership">PARTNERSHIP</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/tacit-universal-partnership">Tacit universal partnership</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/prescription">PRESCRIPTION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/pleading-prescription">Pleading (PRESCRIPTION)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1975/31">Prescription Act [Chapter 8:11]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1990/2">Customary Law and Local Courts Act [Chapter 7:05]</a></div></div></div> Thu, 10 Jun 2021 07:11:13 +0000 Sandra 10040 at https://old.zimlii.org S v Mutsure (SC 62-21, Criminal Appeal No. SC 731/18) [2021] ZWSC 62 (20 May 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/62 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>Judgment No. SC 62/2021</strong></p> <p><strong>Criminal Appeal No. SC 731/18</strong></p> <p>                                                                                   </p> <p><strong>REPORTABLE</strong><strong>        (59)</strong></p> <p> </p> <p> </p> <p><strong>KIZITO     MUTSURE</strong></p> <p><strong>                                                                          v        </strong></p> <p><strong>THE     STATE</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>MAVANGIRA JA, UCHENA JA AND MAKONI JA</strong></p> <p><strong>HARARE: 28 JANUARY 2020 &amp; 20 MAY 2021</strong></p> <p> </p> <p> </p> <p> </p> <p><em>T. Mpofu </em>with <em>T.L. Mapuranga </em>and <em>A. Rubaya, </em>for the appellant</p> <p><em>T. Mapfuwa,</em> for the respondent</p> <p> </p> <p> </p> <p> </p> <p><strong>MAVANGIRA JA: </strong></p> <ol> <li>This is an appeal against the conviction and sentence of the appellant by the High Court on a charge of murder.</li> </ol> <p> </p> <ol> <li>The appellant was charged with murder as defined in s 47(1) of the Criminal Law (Codification and Reform) Act, [<em>Chapter</em> <em>9:23</em>]. The allegation was that on 23 October 2011 at house number 221 Ephraim Blank Street, Chivhu, he unlawfully caused the death of Modester Chikaka by pouring paraffin over her body and setting her on fire causing severe burns all over her body, from which injuries she died on 26 October 2011.</li> </ol> <p> </p> <p> </p> <ol> <li>The appellant pleaded not guilty to the charge alleging that the deceased had poured paraffin over her body and set herself alight. He was convicted after a full trial and sentenced to 13 years’ imprisonment.</li> </ol> <p> </p> <ol> <li>The State’s case was based largely on circumstantial evidence. The State led evidence from three witnesses; Tawanda Miti (Miti), a police officer, his wife Nyasha Tsopotsa (Tsopotsa) and Sekai Guramatunhu (Guramatunhu), also a police officer. The evidence of Miti was to the effect that his wife and he shared the same residence with the deceased. They lived in adjoining rooms that shared the same veranda. Each room had its own entrance door from the common veranda. The deceased occupied one room at the furthest end. The witness, together with his wife and brother, occupied the next two rooms after the deceased’s. The fourth door led into a common washroom and toilet. Behind the toilet was a water tap.</li> </ol> <p> </p> <ol> <li>During the night in question, after having retired to bed, he was awoken by the screaming of a person calling out his name. He went out of his room and saw flames of fire inside the deceased’s room. He next saw the appellant arriving on the veranda. He instructed the appellant to put out the fire that was burning in the deceased’s room. He next saw the deceased coming from behind the residence in the direction of where the water tap was. He observed burn injuries on the deceased’s body. The deceased said to the appellant words to the effect “Why did you not pour paraffin on yourself as well since you said that you wanted both of us to die?”</li> </ol> <p> </p> <ol> <li>The deceased kept on saying this and went on to tell the witness that the appellant was in possession of the matches which he had used to set her ablaze after he had poured paraffin on her from a paraffin stove. The witness inquired from the appellant who told him that the deceased had set herself ablaze. The witness gave instructions for the deceased to be wrapped in a cloth. He, in the company of his brother, drove the appellant and the deceased to Chivhu Police Station where the appellant was searched and the matches was found in his pocket. He thereafter drove the deceased to hospital.</li> </ol> <p> </p> <ol> <li>The witness was found to be a honest, impressive and reliable witness in the assessment of the court <em>a quo</em>.</li> </ol> <p> </p> <ol> <li>The second witness, Tsopotsa’s evidence was to the effect that as they were asleep during the night of 23 October she heard the deceased screaming “mai wee ndofa” which was translated to mean “mother I am dying.” Soon thereafter she heard the sound of a door being opened. She heard footsteps going to the backyard at the same time as the deceased yelled “Brandon’s father!”, a reference to the witness’ husband. In response, her husband went out with her in tow. She saw the deceased standing by the doorway to the toilet. The half petticoat that the deceased was wearing had been burnt and was stuck to her body. She had burn injuries on her body. The appellant was standing by the deceased’s doorway. The deceased accused the appellant of setting her alight and demanded that he finishes her off as he had been ill treating her for too long. The appellant, on the other hand, was saying that the deceased had burnt herself. The witness also saw smoke coming out of the deceased’s room.</li> </ol> <p> </p> <ol> <li>The witness was instructed by her husband to find something to wrap the deceased with as she was virtually naked. She took a sheet from the deceased’s bed and wrapped her with it before her husband instructed the deceased to get into the vehicle so that they could proceed to the hospital. The appellant also boarded the same vehicle and they left.</li> </ol> <p> </p> <ol> <li>As with Miti, the court <em>a quo</em> was impressed by the witness’ demeanour. It found that her evidence was largely corroborative of that of Miti. The court <em>a quo</em> also noted that the witness’ evidence that the deceased accused the appellant of persistent harassment and further said that the appellant ought to have finished her off was not disputed or challenged in cross examination. The court thus accepted that the deceased uttered the words testified to by the witness.</li> </ol> <p> </p> <ol> <li>Sekai Guramatunhu was the State’s third and last witness. On the night in question at around 2:00 or 3:00 am she was at the police station when Miti entered the charge office with the appellant. After Miti made a report to her she went outside to where Miti’s vehicle was. Inside the vehicle was the deceased who was in pain. She observed the injuries that the deceased had sustained and suggested that she be ferried to the hospital. The appellant followed her to the vehicle and told her not to talk to the deceased as she had been burnt. She assumed that the appellant’s utterance was because the deceased was in pain.</li> </ol> <p> </p> <p> </p> <ol> <li>The defence applied for discharge at the end of the State case in terms of s 198 (3) of the Criminal Procedure and Evidence Act, [<em>Chapter 9:07</em>]. The State consented to the application. The court <em>a quo</em> had a different view and it dismissed the application on the basis that the evidence that the State had adduced raised a <em>prima facie</em> case that the appellant had to answer.</li> </ol> <p> </p> <ol> <li>In its ruling the court <em>a quo</em> stated <em>inter alia</em>:</li> </ol> <p>“In short the accused does not deny being in the company of the complainant (sic) at the time that this incident took place. The deceased ended up dead in circumstances where there were certain utterances which intended (sic) to lead to an inference that the accused may well have had something to do with this matter. It is only fair that the court is placed in a position to get the whole story of what took place. The accused is the only person who was there who can give such story. That application is dismissed.”</p> <p>    </p> <p>     </p> <ol> <li>The appellant’s evidence was to the following affect. The deceased was his second wife and had been so for five years. He had no children with her but had four children with his first wife. On 23 October 2011 he arrived at the place where the deceased was staying at about 1:00am. The deceased opened the door for him and they exchanged greetings. She went back to bed and he “sat on a chair which was next to the table and this table is located next to the bed.” He advised her that there were some issues that he wanted to talk to her about. She got out of bed and got dressed in a skirt and a blouse. She went and sat across the table opposite to where the appellant was seated.</li> </ol> <p> </p> <ol> <li>When asked what sort of conversation he had with her he said:</li> </ol> <p>“I then advised her that she was in the habit of going to the bars in my absence. I even went to tell her (sic) the names of the persons who had told me this information. These people were my relatives and were actually known to her. … They are two of my brother’s sons. … I then advised her that by going to the bars like what she was doing these young men were actually seeing them (sic) and as such was causing a lot of embarrassment. … She was silent during the time that I was telling her that. But she suddenly got up and said that she was going to set herself alight. … During the time that she was making that utterance she was actually making the way to the stove that was located next to the bed. … It was a pram (primus) stove that normally uses paraffin. I had eventually bought that paraffin stove for use during the time that there will be no electricity. … She suddenly got up, grabbed the stove and poured the paraffin on herself. … She let go the stove and she quickly grabbed the matches. It was during the time that I quickly grab (sic) (grabbed) her by both hands as I was afraid that she might strike the matches. I then kept a firm grip on the hand holding the matches in order that she will not be able to lit (sic) (light) the matches. I took the matches from her and placed it in my pocket. … I then asked her why she wanted to set herself on fire. … She did not respond and she went back and sat on the chair and I sat back on my chair. I then asked her why she wanted to set herself on fire and that I was just reprimand(ing) her not that I no longer loved her. … She did not reply. I then kept on telling her to desist from her behaviour and that I was going to continue maintaining her as I have (sic) been doing before. Thereafter she first remained silent. I then started to contact her aunt and her sisters unfortunately I failed to get through to them. I continued sitting down trying to cool her down whilst advising her to desist from her behaviour. It was after some time had lapsed whilst I was trying to contact her aunt and her young sister and I was failing to get through. So we sat for quite some time … I was afraid to leave as I thought that maybe she might do something. It was after we had settled for quite some time that she might have noticed that I was dozing as it was during the night that she took advantage because I just suddenly heard the sound of a chair being moved. When I got up she had already stood up and rushed to get another box of matches that I had not noticed.”</p> <p> </p> <p> </p> <ol> <li>The appellant was asked how much time had elapsed between the time that she poured paraffin on herself and the time when she rushed to get another box of matches. His response was “I think about 30 minutes when I was talking to her.”</li> </ol> <p> </p> <ol> <li>He proceeded to state as follows:</li> </ol> <p>“When I heard the sound of the chair and I got up he (sic) (she) was already stood up (sic) and picked up the matches box (sic) and she then struck the matches. I also assumed that because of the time that we had spent after she had poured paraffin on herself that maybe it might have vapoured off. She actually directed the flame of the match on the bottom but it failed to catch and she put it under her arm and she then caught the fire. … She then screamed whilst advancing towards me. … She appeared she actually wanted to grab me by the neck, but she missed, then she grabbed me by one of my hand(s) on the upper arm. During the time she was now on fire. She actually held me in an indication that she did not want to let me go (sic). It was then that I also caught the fire such that I also suffered injuries. I realised that the fire was quite great and that my life was also in danger that is when I decided to open the door whilst she was still holding me. I then advised her that she had to go to the tape (tap) so that I put out the fire. She left hold of me as we were by the door and she was now in front. When we got to the tap I instructed her to kneel down, I opened the tap and there was now water that was being poured on her head (sic) and all the body. (my emphasis)</p> <p> </p> <p> </p> <ol> <li>It is opportune to briefly digress at this stage and take note that in his confirmed warned and cautioned statement the appellant did not make any mention of having dozed off. He said that after setting herself on fire the deceased embraced him and he opened the door whilst she was so embracing him. He stated <em>inter alia</em>:</li> </ol> <p>“She went and sat on a chair which she had been sitting on and I also sat on a chair. We spent about ten to fifteen minutes while I was questioning her about the story but she was not responding. Whilst I was sitting, Modester Chikaka got up from where she was seated and picked another matches (sic) and struck a matchstick before I got close to where she was and lit herself and embraced me whilst she was screaming. I opened the door while she was still embracing me and she was crying. When I opened the door, the fire burned heavily. She then ran to the tape (sic) where she poured some water on her. (sic) I followed her to the tape, (sic) helped her to extinguish the fire. I then went into the house to extinguish (the) fire which was burning there and that was when Modester Chikaka informed her neighbours that I had burned her. I did not want to dispute with her because it was a waste of time.”</p> <p>         </p> <ol> <li>The appellant further stated in his testimony before the court <em>a quo</em> that after putting out the fire he rushed towards the veranda where Miti gave him a bucket which had water in it and told him to put out a fire that was burning inside the deceased’s room. Inside the room he saw something that was burning on the floor. It appeared to be a skirt and he poured water on it thereby putting out the fire. There was another fire burning at the spot where the deceased had poured paraffin on herself. After putting out the fire in the room he went outside and in his words he found the deceased “telling Miti and others that I had actually poured paraffin on her and set her on fire. But I actually denied that and advised that she had done that to herself. But after I had advised her that I am not the one who had poured paraffin on her, she then kept silent on that aspect.”</li> </ol> <p> </p> <p> </p> <ol> <li>The appellant was asked how many minutes elapsed between the time that he put out the fire on her at the tap and the time that he found her alleging to Miti and others that he had set her on fire. His answer was “I think the incident could have taken about five minutes.” He stated that when she was making the allegation she was no longer on fire as he had doused it.</li> </ol> <p> </p> <ol> <li>It was also the appellant’s evidence that during the time that the deceased was on fire and was crying out he could not make out what she was saying.</li> </ol> <p> </p> <ol> <li>Under cross examination the appellant said that the deceased called out to Miti after he had put out the fire that was burning her and as he was putting out the fire in her room. He said that the deceased only screamed out the words “oh mother I am dying” after he had put out the fire on her. He further said that the deceased was lying about everything that she was saying to Miti and the others. He accepted that the deceased did ask him why he had not also burnt himself. He said that she was lying but he thought that it was no use arguing with her considering the state of her injuries at the time and his concern was to seek medical attention for her.</li> </ol> <p> </p> <ol> <li>As to why he had not asked or caused the deceased to remove the clothes on which she had poured paraffin his response was that he did not think of it and that he thought the clothes would dry up. He also thought that the deceased made the utterances that she made against him in order to “fix” him because he had exposed her infidelity of being seen in bars with other men.</li> </ol> <p> </p> <ol> <li>The court <em>a quo</em> convicted the appellant on the basis that the circumstantial evidence placed before it proved beyond reasonable doubt that he had committed the offence. It also found that the State witnesses were credible witnesses. It concluded that the utterances made by the deceased constituted <em>res gestae</em> and were admissible against the appellant. It was the court <em>a quo</em>’s view that the issue was whether it was the appellant who had poured paraffin on the deceased and set her ablaze resulting in the injuries from which she died and that the absence of a post mortem report was not fatal to the State case. It concluded that it was the appellant who had poured paraffin on the deceased and set her ablaze.</li> </ol> <p> </p> <ol> <li>The appellant raised the following five grounds of appeal against his conviction and one against sentence:</li> </ol> <p>“1. The Court <em>a quo</em> erred in coming to the conclusion that the State had proved beyond any reasonable doubt the appellant doused Modester Chikaka “the deceased” with the paraffin and set her alight in the absence of admissible evidence supporting that conclusion.</p> <p>2. The Court <em>a quo</em> lost its path in concluding that the deceased died from the fire in the absence of a post-mortem report supporting that finding.</p> <p>3. The trial court erred in misapplying the doctrine of <em>res gestae</em> by admitting inadmissible hearsay evidence of the deceased in circumstances where the State had not satisfied the pre-requisites of such admissibility.</p> <p>4. The Court <em>a quo</em> misapplied rules of circumstantial evidence and misdirected itself by making a finding that the appellant committed the <em>actus reus</em> of murder in the absence of any proved facts from which that inference could be drawn.</p> <p>5. The Court <em>a quo</em> fell into error by summarily rejecting the appellant’s defence as inherently improbable that it could not reasonably be said to be true in circumstances where the evidence before it supported such a defence.</p> <p>AD SENTENCE</p> <ol> <li>The Court <em>a quo</em> erred in imposing a disturbingly severe sentence in circumstances where the Court <em>a quo</em> had made (a) finding that appellant’s mitigation was considerably weighty.”</li> </ol> <p> </p> <p> </p> <p><strong>ISSUE TO BE DETERMINED</strong></p> <ol> <li>The issue to be determined is whether or not the State proved the appellant’s guilt beyond reasonable doubt.</li> </ol> <p> </p> <p> </p> <ol> <li>Mr <em>Mpofu,</em> for the appellant, based his oral submissions before us on five points. The first, which he indicated was not covered in his heads of argument, was that the court <em>a quo</em> proceeded under circumstances of an irregularity, the irregularity being that the summary of the State case contained allegations on which no evidence was led by the State, that such irregularity was designed to undermine the appellant’s defence and colour the court’s mind and that both these aims were achieved.</li> </ol> <p> </p> <ol> <li>From the other four points that he said were covered in his heads of argument, the second point was that on the application of the proper legal test, it cannot be said that the defence put forward by the appellant in the court <em>a quo</em> was false and consequently worthy of the rejection by the court. </li> </ol> <p> </p> <ol> <li>The third point was that the cause of death was not established in the court <em>a quo</em>.</li> </ol> <p> </p> <ol> <li>The fourth point was that the court <em>a quo</em> irregularly admitted inadmissible hearsay evidence and went on to found its judgment on such inadmissible evidence.</li> </ol> <p> </p> <ol> <li>The fifth and final point was that the requirements for a conviction based on circumstantial evidence were not met <em>a quo</em>.</li> </ol> <p> </p> <ol> <li>With regard to the first point the contention was that the State made damning but false allegations against the appellant on which no evidence was led. Specific reference was made to paras 2, 3 and 4 of the Summary of the State case as reflected at p 2 of the record of proceedings. Mr <em>Mpofu</em> particularly highlighted para 3 which reads:</li> </ol> <p>“The accused proceeded to take a paraffin stove which was in the room and poured the paraffin onto the deceased. He took a box of matches from his trousers pocket, lit one match stick and threw it on the deceased’s body setting her alight.”</p> <p> </p> <p> </p> <ol> <li>It is my view that if the court <em>a quo</em> convicted the appellant purely on the basis of what is stated in the State Summary and not on the basis of the evidence that was placed before it, then it goes without saying that the conviction would be baseless and would not survive this appeal. If, as alleged, the court’s mind was “coloured” and the appellant’s defence “undermined” by the averments in the State Summary, such should be discernible from a reading of the court’s judgment as it would have no cogency on the basis of the evidence that was placed before it. In this regard I also take it that by the use of the word “coloured” the defence meant that the court <em>a quo</em> was unduly influenced in a negative manner to the prejudice of the appellant.</li> </ol> <p> </p> <ol> <li>It is trite that an appeal to this Court is based on the record. It is also trite that an appellate court will not interfere with the decision of a trial court or tribunal unless the trial court or tribunal fundamentally misdirected itself in arriving at its decision. It is trite that an appellate court will not lightly interfere with a trial court’s factual findings.</li> </ol> <p>   </p> <ol> <li>It is common cause that the appellant’s conviction was not based on direct evidence. There was only circumstantial evidence that was adduced before the court <em>a quo</em>. I might at this stage deal with and comment on the issue raised that the cause of the deceased’s death was not established. On this aspect the court <em>a quo</em> stated:</li> </ol> <p>“In reasoning that a <em>prima facie</em> case was established in relation to the main charge, I do so mindful of the defence argument that a post mortem report was not produced. I however considered that proof of death may arguably be established from the fact that no issue is taken by the accused to the allegation that the deceased died of burn injuries as alleged in the indictment.”</p> <p> </p> <p> </p> <ol> <li>In this regard para 3 of the appellant’s Defence Outline is, in my view, pertinent. It reads in part:</li> </ol> <p>“The accused will further state that the now deceased caused her own demise by pouring herself paraffin (sic) and setting herself alight.” (the underlining is mine)</p> <p> </p> <p>Significantly, the Defence Outline which is in response to the allegations in the State Summary, does not question or dispute the State’s averment that “the deceased later died on 26 October 2011 from the injuries she had sustained.” Notably, the death occurred on 26 October 2011, some three days after the deceased sustained the burn injuries. The differing assessments of plus or minus 35 per cent and 76 per cent respectively, as given by two different doctors with regard to the percentage degree of burns on the deceased, do not, in my view, impact negatively against the State case in the circumstances. The doctor who saw the deceased at Chivhu Hospital on 23 October 2011 at about 0300 hours observed that she had “large surface area burns of plus or minus 35% of body surface.” The doctor who saw her on the following day at Harare Central Hospital at about 1020 hours observed “76 per cent open flame burns on torso, lower limbs and upper limbs and neck and …”</p> <p>This disposes of Mr <em>Mpofu’s</em> third point.</p> <p> </p> <ol> <li>It must not be overlooked that the <em>onus</em> on the respondent was to prove its case against the appellant beyond reasonable doubt. Mr Mpofu’s second, fourth and fifth points revolve around the issues of the application of the evidential rules relating to <em>res gestae</em> and to circumstantial evidence. The circumstantial evidence is made up of different aspects of the events that took place as the incident unfolded. The deceased’s utterances the subject of the conflicting contentions regarding hearsay evidence with particular reference to <em>res gestae</em> form one of the weighty aspects, among others, that emerge from the evidence that was placed before the court <em>a quo</em>. The admissibility of the evidence of those utterances has been hotly contested by the Defence.</li> </ol> <p> </p> <ol> <li>What clearly emerged from the evidence by the State witnesses, which evidence the trial court accepted, was that during the time that the deceased was on fire she called out “oh mother I am dying” and she also called out Miti’s name. Soon after the fire that was consuming her had been doused and as soon as she saw Miti who she had called out to, she told him (Miti) and the others who had come out that the appellant had poured paraffin on her and set her alight. The defence’s contention is that this was hearsay evidence of utterances that did not amount to a spontaneous exclamation of a statement at the time of the relevant event, which would at common law constitute <em>res gestae</em>. The submission was made that the deceased had had ample time for cogitation in the five minutes that elapsed from the time that she was burning, attempting to put out the fire, running to the tap and running back and then making the allegation, such that whatever she said at that stage could not qualify as part of the <em>res gestae</em>.  The argument was that the spontaneity requirement was not met.</li> </ol> <p> </p> <ol> <li>Mr <em>Mapfuwa</em>, for the respondent, on the other hand submitted that the court <em>a quo</em> decided that the deceased’s utterances were <em>res gestae</em> because she had screamed out and footsteps were heard by the first and second witnesses and that immediately upon returning from the water tap she had accused the appellant of having doused her with paraffin and set her on fire. He submitted that the court <em>a quo</em> cannot be faulted for its finding that the failure by the deceased to name the appellant at the time that she was burning cannot be held against her if regard is had to the fact that at the first opportunity when she was no longer on fire she named the appellant as the culprit. Furthermore, that this was in the presence of the appellant at the scene.</li> </ol> <p> </p> <ol> <li>Mr <em>Mapfuwa</em> cited the case of <em>R v Andrews</em> [1987] 1 All ER 513 in support of his argument as regards spontaneity in cases involving <em>res gestae</em>. In his heads of argument he gave the following quote purportedly from the case but did not give the specific page at which it appears in the law report:</li> </ol> <p>“the test used by the courts in determining spontaneity is not necessarily one of exact spontaneity that is defined with mathematical precision. It is sufficient to establish approximate or substantial spontaneity.”</p> <p> </p> <p> </p> <p>It was his submission that the court <em>a quo</em> correctly observed that to fault the deceased for not mentioning the appellant’s name at the time that she was on fire would be to take an armchair approach. It was also his submission that it is necessary to consider the totality of the evidence adduced and ascertain whether there was a break in the chain of events. He referred specifically to p 26 of the record where the following exchange took place between the defence counsel and the witness Miti during cross examination:</p> <p>“Q. How many minutes lapsed from the time you heard the scream and the time that you then saw the now deceased coming from the tap direction? A. Judging from the events it could be less than a minute.”</p> <p> </p> <p>I need to point out that in my reading of the judgment in <em>R v Andrews</em> (<em>supra</em>) I was unable to locate the quotation cited by Mr <em>Mapfuwa</em>.</p> <p>         </p> <ol> <li>I make note at this stage that Mr <em>Mpofu’s</em> comment on this English authority was that its full content was not captured in the excerpt quoted by Mr <em>Mapfuwa</em>. He submitted that the uncaptured aspects are firstly, that if a statement is made after the event, it ordinarily falls outside spontaneity. Secondly, if the statement is to be received in evidence there is a mandatory procedure to be followed in the Supreme Court of Judicature after which a preliminary ruling must be made by the judge. Thereafter, evidence of the statement   can be given. He likened the procedure to a trial within a trial in which the court must deal with and answer what he referred to as the recurring question “At what stage did this end?” In <em>casu,</em> so he submitted, because the statement was said after the deceased had seen a third party, there are dangers that the deceased had had time for reflection.</li> </ol> <p>  </p> <ol> <li>In my reading of the <em>Andrews</em> judgment I was unable to locate the part of the report that specifically stipulated or referred to the procedure that he referred to and which he likened to the procedure of a trial within a trial (if I understood his submission correctly). The facts in the <em>Andrews</em> matter as summarised in the headnote are as follows:</li> </ol> <p>“The appellant and another man knocked on the door of the victim’s flat and when the victim opened it the appellant stabbed him in the chest and stomach with a knife and the two men then robbed the flat. The victim was found some minutes later. The police and they arrived very soon after. The victim, who was seriously wounded, told the police that he had been attacked by two men, gave the name of the appellant and the name and address of the other before becoming unconscious. He was then taken to hospital where he died two months later. At the trial of the appellant for murder the Crown sought to have the victim’s statement to the police admitted in evidence. The trial judge ruled the statement was admissible. The appellant was convicted of manslaughter. He appealed to the Court of Appeal, contending that the victim’s statement was i9nadmissible under the rule against the admission of hearsay evidence. The appeal was dismissed and the appellant appealed to the House of Lords.</p> <ul> <li>– Hearsay evidence of a statement made to a witness by the victim of an attack describing how he had received his injuries was admissible in evidence, as part of the <em>res gestae</em>, at the trial of the attacker if the statement was made in conditions which were sufficiently spontaneous and sufficiently contemporaneous with the event to preclude the possibility of concoction or distortion. In order for the victim’s statement to be sufficiently spontaneous to be admissible it had to be so closely associated with the event which excited the statement that the victim’s mind was still dominated by the event. If there was a special feature, eg malice, giving rise to the possibility of concoction or distortion the trial judge had to be satisfied that the circumstances were such that there was no possibility of concoction or distortion. However, the possibility of error in the facts narrated by the victim went to the weight to be attached to the statement by the jury and not to admissibility. Since the victim’s statement to the police was made by a seriously injured man in circumstances which were spontaneous and contemporaneous with the attack and there was no possibility of any concoction or fabrication of identification, the statement had been rightly admitted in evidence. The appeal would accordingly be dismissed. … <em>Ratten v R </em>[1971] 3 All ER 801 applied.</li> </ul> <p><em>R v Beddington </em>(1879) 14 Cox CC 341 overruled. (my emphasis)   </p> <p> </p> <ol> <li>I however found the following useful exposition by Lord WILBERFORCE in <em>Ratten v R</em> [1971] 3 All ER 801 at p 807 a-e, (a case cited by Lord ACKNER in his speech):</li> </ol> <p>“The person testifying to the words used is liable to cross-examination: the accused person … can give his own account if different. There is no such difference in kind or substance between what was said and evidence of what was done (for example between evidence of what the victim said as to an attack and evidence that he (or she) was seen in a terrified state or was heard to shriek) as to require a total rejection of one and admission of the other.</p> <p>The possibility of concoction or fabrication, where it exists, is on the other hand an entirely valid reason for exclusion, and is probably the real test which judges in fact apply. In their Lordships’ opinion this should be recognised and applied directly as the relevant test: the test should not be the uncertain one whether the making of the statement was in some sense part of the event or transaction. This may often be difficult to establish: such external matters as the time which elapses between the events and the speaking of the words (or vice versa), and differences in location being relevant factors but not, taken by themselves, decisive criteria. As regards statements made after the event <strong>it must be for the judge</strong>, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it. And the same must in principle be true of statements made before the event. The test should not be the uncertain one, whether the making of the statement should be regarded as part of the event or transaction. This may often be difficult to show. But if the drama leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received. The expression ‘<em>res gestae</em>’ may conveniently sum up these criteria, but the reality of them must always be kept in mind: it is this that lies behind the best reasoned of the judges’ rulings.” (my emphasis)</p> <p> </p> <p> </p> <ol> <li>His Lordship also referred to the case of <em>O’Hara v Central SMT Co</em> 1941 SC 363 where at p 381 the Lord President (Lord Normand) said that “there must be close association: the words should be at least <em>de recenti</em> and not after an interval which would allow time for reflection and concocting a story.” He further quoted Lord Fleming who at p 386 said:</li> </ol> <p>“Obviously statements made after there has been time for deliberation are not likely to be entirely spontaneous, and may, indeed, be made for the express purpose of concealing the truth.” (my emphasis)</p> <p> </p> <p> </p> <ol> <li>He further pertinently states at p 808 f-g:</li> </ol> <p>“These authorities show that there is ample support for the principle that hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.” (my emphasis)</p> <p> </p> <p>And, at p 809 b:</p> <ul> <li> </li> </ul> <p> </p> <p>Finally, at p 808 d he stated as follows:</p> <p>“… In an earlier case in the High Court (<em>Brown v R </em>(1913) 17 CLR 570) where evidence was excluded, Isaacs and Powers JJ in their joint judgment (at 597) put the exclusion on the ground that it was a mere narration respecting a concluded event, a narration not naturally or spontaneously emanating from or growing out of the main narration but arising as an independent and additional transaction.” (my emphasis)</p> <p> </p> <p> </p> <p> </p> <ol> <li>In <strong>Principles of Evidence</strong> 4 ed (Juta) the learned authors <em>Schwikkard and van der Merwe,</em> under the heading “<em>Res gestae</em> statements” state that the phrase <em>res gestae</em> does not lend itself to any meaningful translation but that the phrase has developed a meaning in the law of evidence and is succinctly stated by Choo (in <strong>Evidence</strong> (2012) 292) as follows:</li> </ol> <p>“Evidence of facts may be admissible as part of the <em>res gestae</em> if these facts are so closely connected in time, place and circumstances with some transaction which is at issue that they can be said to form part of that transaction.”</p> <p> </p> <p>Under the subheading “Spontaneous statements” the learned authors state that the reasoning behind the admission of spontaneous statements was that despite their hearsay nature, they are the product of an instinctive response and therefore less likely to be an invention or deliberate distortion. Furthermore, for the statement to be regarded as spontaneous it must be so closely linked to the event which gave rise to it that the presiding officer is able to conclude that the “event” dominated the mind of the declarant at the time of uttering the statement.</p> <p> </p> <ol> <li>The learned authors further refer to the case of <em>S v Tuge</em> 1966 (4) SA 565 (A) wherein “[T]he court held that the following conditions needed to exist for a <em>res gestae</em> statement to be admitted into evidence: (a) ‘the original speaker must be shown to be unavailable as a witness’; (b) ‘there must have been an occurrence which produced a stress of nervous excitement’; (c) ‘the statement must have been made whilst the stress was still “so operative on the speaker that his reflective powers may be assumed to have been in abeyance”’; (d) ‘the statement must not amount to a reconstruction of a past event’”</li> </ol> <p> </p> <ol> <li>Against the above backdrop of the position of the law relating to <em>res gestae</em> I am unable to find fault with the manner in which the court <em>a quo</em> dealt with the issue of <em>res gestae</em> when it stated as follows:</li> <li> </li> </ol> <p> </p> <p> </p> <ol> <li>As with any other matter, each case must be decided on its own merits. <em>In casu</em>, on a view of the evidence adduced before the trial court and on a consideration of the manner in which the events unfolded as well as the time frame within which it all happened, the court <em>a quo</em> cannot be faulted when it stated that “(I)t cannot be said that there was no spontaneity in the exclamation.” As commented by Lord Wilberforce at p 806 h-j:</li> </ol> <p>“The reason why this is so” (that is the application of different standards to the admissibility of the hearsay statement) “is that concentration tends to be focused on the opaque or at least imprecise Latin phrase rather than on the basic reason for excluding the type of evidence which this group of cases is concerned with. There is no doubt what this reason is: it is twofold. The first is that there may be uncertainty as to the exact words used because of their transmission through the evidence of another person than the speaker. The second is because of the risk of concoction of false evidence by persons who have been the victim of assault or accident.”</p> <p> </p> <p> </p> <ol> <li>As to the actual words used by the deceased, the court <em>a quo</em> cannot be faulted for believing the State witnesses. The appellant did not dispute the evidence of the State witnesses as to what was uttered whilst the witnesses were still in their room. He would naturally not have been able to challenge the witnesses as his evidence was that he could not make out what the deceased was saying as she was screaming. The witnesses said that they were awoken by the deceased’s screaming out “oh mother I am dying!” as well as calling out to the first witness by the deceased. Further, the appellant did not dispute that the deceased uttered the words attributed to her by the witnesses after she came back from the tap at the back of the rooms and soon after the fire on her had been extinguished. The deceased had burn injuries and as a result her undergarment was sticking onto her body. It is at that stage in the unfolding drama that the deceased said that the appellant had poured paraffin on her and set her alight and that he had the match box on him. As it turned out the box of matches was recovered from the appellant when he was subjected to a bodily search by the police, <em>albeit</em> he had a different explanation for his possession of it. The deceased also asked why the appellant had not also poured paraffin on himself as he had said that he wanted both of them to die. According to Tsopotsa she also said to the appellant that he should finish her off as he had been tormenting or ill-treating her for a long time.</li> </ol> <p> </p> <ol> <li>There is another consideration that buttresses the court <em>a quo</em>’s assessment of the evidence that was placed before it.  Notably, it was the appellant’s stance that all that the deceased said in the presence of the State witnesses were all lies. By implication, the appellant’s contention was that the deceased deliberately concocted a false story, to his disadvantage. It was thus the defence’s argument that the said utterances ought not to have been accepted or admitted as part of the <em>res gestae</em>. On this aspect the trial court dispelled the risk of concoction on the view that to hold otherwise would be to adopt or take an armchair approach. I find no misdirection by the court <em>a quo</em> in this regard on a view of the evidence that was placed before it.</li> </ol> <p> </p> <ol> <li>The citation by the defence of the case of <em>Thompson v Trevanion</em> (1693) Skin 402 ER 179 does not in my view establish any misdirection by the trial court in this regard. I say so for the reason, as already stated earlier, that it is trite that each case must be determined on its own merits. In the appellant’s heads of argument the following statement by HOLT CJ in the cited case is quoted:</li> </ol> <p>“What the wife said immediate upon the hurt received, and before she had time to devise or contrive anything for her own advantage might be given in evidence.”</p> <p> </p> <p> </p> <p> </p> <ol> <li>The court was alive to the fact that it was dealing with circumstantial evidence there being no independent witness to testify as to how the deceased ended up in flames. It rightly drew the applicable legal principles as espoused in <em>R v Blom</em> 1939 AD 188 and followed in <em>Zacharia Amos Simango v S</em> SC 42/14, <em>Abraham Mbovora v S</em> SC 75/14. The two cardinal rules on circumstantial evidence have been stated to be:</li> </ol> <p>“1. The inference to be drawn must be consistent with all the proven facts –</p> <ol> <li> </li> </ol> <p> </p> <p> </p> <ol> <li>The court isolated the issue that needed to be answered by the circumstantial evidence, viz, “whether or not the deceased poured paraffin upon and burnt herself or it was the accused who set her alight after pouring paraffin on her.”</li> </ol> <p> </p> <ol> <li>On the evidence that was placed before the trial court there are certain baseline facts that stand out. The appellant was the only person with the deceased in her room when she called out the first witness’ name and screamed. The deceased did not call for assistance from the appellant, whether on the appellant’s evidence or on the evidence of the State witnesses.  She called out to Miti. The appellant himself, a frequent visitor to the premises according to the evidence of the State witnesses, did not call out for help from the deceased’s neighbours who he must have known to be in their own rooms. Thereafter the deceased pointed to the appellant as the person who had doused her with paraffin and set her on fire. Another notable aspect is that the appellant said that the deceased got dressed in a skirt and blouse when he indicated that he wanted to have a discussion with her. But when the deceased was seen by her neighbours when they reacted to her distress call she was observed wearing only a petticoat that was now stuck to her body due to the burning.  There was no explanation by the appellant as to how the skirt that he found burning on the floor after he came back to the room had got there.</li> </ol> <p>In the circumstances, I find no misdirection on the part of the court <em>a quo</em> when it found as follows:-</p> <p>“… The complainant was heard screaming and calling out to neighbours.She did not call out to the accused person.If indeed the deceased had burnt herself and the accused had nothing to do with it, assuming that she was crying out for help because of pain, she would have been expected to call out to the person who was nearest to and in her presence to assist her or come to her aide (sic).It was most improbable that the deceased would in the process of seeking assistance have reached for people far away from her.”</p> <p> </p> <ol> <li>The court <em>a quo </em>correctly noted that the appellant came to visit the deceased in the dead of night and that he had a grievance that he wanted to raise with her about her reported behaviour. It was the trial court’s finding that the appellant must have been incensed and that his interrogation of the deceased was unlikely to have been amicable as he wanted the court to believe. The trial court found the appellant’s narration of events as regards the deceased’s reaction to his questions to be “illogical and improbable to a point that it can safely be said not to have happened.”  The court found it to be improbable that after she was asked as to why she went to bars in the absence of the appellant, she responded by pouring paraffin on herself and setting herself alight.  I find no misdirection in this finding by the court <em>a quo</em>.</li> </ol> <p> </p> <ol> <li>In assessing the sufficiency of the circumstantial evidence that was placed before it, the court <em>a quo</em> drew guidance from firstly, the cases of <em>R v Sibanda &amp; Others</em> 1965 (4) SA 241 (R.A.) where at p 246 BEADLE CJ, dealing with circumstantial evidence, stated as follows:</li> </ol> <p>“The degree of certainty with which the individual facts must be proved in criminal cases must always depend on the probative value of the individual facts themselves. Generally speaking, when a large number of facts taken together, point to the guilt of an accused, it is not necessary that each fact should be taken in isolation and its existence proved beyond a reasonable doubt. It is sufficient if there are reasonable grounds for taking these facts into consideration and all the facts, taken together prove the guilt of an accused beyond a reasonable doubt.”</p> <ol> <li>It also referred to <em>S v Chabalala</em> 2003 (1) SACR 134 (SCA) in which at para 15 the following is stated:</li> </ol> <p>“The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and having done so, to decide whether the balance weighs so heavily in favour of the state as to exclude any reasonable doubt about the accused’s guilt. The result may prove that one scrap of evidence or one defect in the case for either party (such as the failure to call a material witness concerning an identification parade) was decisive but that can only be an <em>ex-post facto</em> determination and a trial court (and counsel) should avoid the temptation to latch on to one (apparently) obvious aspect without assessing it within the context of the full picture presented in evidence. once that approach is applied to the evidence in the present matter, the solution becomes clear.” (my emphasis)</p> <p> </p> <p> </p> <ol> <li>The findings made by the court <em>a quo</em> must be viewed against the trite position at law that as the trial court, it had the advantage of seeing and hearing the witnesses as they testified to the events of the night in question. That is an advantage that an appellate court does not have. An appellate court hears an appeal on the record and cannot disregard findings made <em>a quo</em> unless a reading of the record patently does not support such findings. There is no patent misdirection in the findings of the court <em>a quo</em> discernible on a reading of the record.</li> </ol> <p> </p> <ol> <li>The court <em>a quo</em>’s finding on the appellant’s demeanour as a witness has an important bearing on the determination of his guilt by the court, particularly in circumstances where the court had found that the State had established a prima <em>facie case</em> against him and that he had to be put on his defence. Commenting on the appellant’s demeanour the court <em>a quo</em> stated:</li> </ol> <p>“… he showed some degree of annoyance and irritability when giving evidence and answers in cross examination. The court got the impression that the accused considered the trial and his being asked to give an account of events as an unnecessary bother. He appeared not to be a concerned person with the proceedings yet the victim was his second wife as <em>per</em> his testimony. The accused’s demeanour was adjudged not to be impressive.</p> <p> </p> <p> </p> <ol> <li>This finding on the appellant’s demeanour by the court <em>a quo </em>is supported and borne out by a reading of the appellant’s Confirmed Warned and Cautioned statement, his Defence Outline and his testimony in court both in chief and in cross examination. In the Warned and Cautioned statement, he said that after she had set herself alight the deceased embraced him and he opened the door while she was still embracing him. When he opened the door the fire “burned heavily” and she ran to the tap where “she poured some water on her” and he followed her and helped her to extinguish the fire. In his Defence Outline he said that after setting herself on fire the deceased “sought to embrace him intending to cause harm to him but he managed to slip away going out of the room.” He said that he also assisted the deceased to put out the fire by pouring some water on her at the water tap. In his evidence before the court <em>a quo</em> he said that the deceased wanted to grab him by the neck but she missed and grabbed hold of the upper arm of one hand. He further stated that she got,</li> </ol> <p>“hold of me in an indication that she did not want to let me go. It was then that I also caught the fire such that I also suffered injuries. I realised that the fire was quite great and that my life was also in danger that is when I decided to open the door whilst she was still holding me. I then advised her that she had to go to the tap so that I put out the fire. She get hold of me as we were by the door and she was now in front. When we got to the tap I instructed her to kneel down, I opened the tap and there was now water that was being poured on her head and all the body.”</p> <p> </p> <p>62.     The discrepancies in the extra curial statement, the defence outline and the evidence in court in the respect highlighted above cannot be missed. Significantly, the unexplained discrepancies relate to a stage in the unfolding events that only he could give clear evidence on. He did not.</p> <p> </p> <p>In the circumstances, I find no misdirection or error in the court <em>a quo</em>’s assessment of the appellant’s demeanour.</p> <p>63.     The issue that has been raised in relation to the rejection of the appellant’s defence by the court <em>a quo</em> must not be considered in isolation. The court was obliged, as it rightly noted, to consider the totality of the evidence before it. Its reliance on the case of <em>S v Isolano</em> 1985 (2) ZLR 62 (SC) in this regard cannot be faulted. Therein LORD DENNING was quoted when he stated as follows in <em>Miller v Minister of Pensions</em> [1947] All ER 372 (KB):</p> <p>“… the evidence must reach the same degree of cogency as is required in a criminal case before an accused person is found guilty. The degree is well settled. It need not reach certainty but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of this will suffice.”</p> <p> </p> <p> </p> <ol> <li>The court <em>a quo</em> found that on a consideration of the evidence before it and having derived   guidance from the authorities, the State had proved the appellant’s guilt beyond reasonable doubt and it therefore convicted him of murder with constructive intent.</li> </ol> <p> </p> <ol> <li>In the absence of misdirection by the trial court there is no basis for this court to interfere with the conviction.</li> </ol> <p> </p> <p> </p> <ol> <li>No submissions having been made in relation to sentence, this will be taken as a concession that the appeal against sentence has no merit. No basis has been established for interference with the same.</li> </ol> <p> </p> <ol> <li>Consequently, it is thus found that there is no merit in this appeal. It is accordingly ordered as follows:</li> </ol> <p>The appeal be and is hereby dismissed in its entirety.</p> <p> </p> <p><strong>UCHENA JA</strong>       I agree</p> <p> </p> <p><strong>MAKONI JA</strong>       I agree</p> <p> </p> <p><em>Rubaya and Chatambudza</em>, appellant’s legal practitioners</p> <ul> <li>, respondent’s legal practitioners</li> </ul> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/62/2021-zwsc-62.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=54820">2021-zwsc-62.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/62/2021-zwsc-62.pdf" type="application/pdf; length=566525">2021-zwsc-62.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-supreme-court">Appeal to Supreme Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-matter-appeal">Criminal matter (Appeal)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-high-court-0">appeal to High Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/murder">Murder</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/discharge-close-state-case">Discharge at close of State case</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/evidence-2">EVIDENCE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/circumstantial-evidence">Circumstantial (EVIDENCE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/confession-evidence">Confession (EVIDENCE)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2014/42">S v Simango (Criminal Appeal SC 254/12) [2014] ZWSC 42 (07 May 2014);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Tue, 08 Jun 2021 14:02:40 +0000 Sandra 10026 at https://old.zimlii.org Manjovha v Delta Beverages (Private) Limited (SC 64/21, Civil Appeal No. SC 12/19) [2021] ZWSC 64 (24 May 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/64 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Judgment No. SC 64/21</p> <p>Civil Appeal No. SC 12/19</p> <p><strong>DISTRIBUTABLE</strong><strong>  (60)</strong></p> <p><strong>PATRICK     MANJOVHA</strong></p> <p><strong>V</strong></p> <p><strong>DELTA     BEVERAGES     (PRIVATE)     LIMITED</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA DCJ, HLATSHWAYO JA &amp; BHUNU JA</strong></p> <p><strong>HARARE: 30 JANUARY 2020 &amp; 24 MAY 2021.</strong></p> <p> </p> <p><em>L. Ziro, </em>for the appellant                                                         </p> <p><em>F. Mahere, </em>for the respondent</p> <p> </p> <p>                   <strong>BHUNU JA:</strong>  This is an appeal against the whole judgment of the Labour Court <em>(</em>the court<em> a quo)</em>.  The order appealed against is dated 14 November 2018.  That order upheld the respondent’s objection <em>in limine</em> to the effect that the appellant’s claim had prescribed.  Consequently it dismissed the appellant’s application for condonation of late noting of appeal and extension of time within which to note the appeal.  Aggrieved by the judgment <em>a quo, </em>the appellant approached this Court on appeal for relief.</p> <p> </p> <p><strong>PRELIMINARY OBJECTION</strong></p> <p>                   On 30 of September 2019 the learned counsel for the respondent gave notice of intention to raise a preliminary point premised on the appellant’s alleged failure to comply with the peremptory provisions of r 37(1)(a) of the Supreme Court rules 2018.  The Rule provides as follows:</p> <p>“37(1) Every civil appeal shall be instituted in the form of a notice of appeal signed by </p> <p>            the appellant or his or her legal practitioners which shall state –</p> <ol> <li> the date on which, and the court by which, the judgment appealed against was given;”</li> </ol> <p>                   The basis of the objection is that the appellant did not state the correct date when judgment was handed down as is required by r 37(1)(a) of the Supreme Court Rules 2018.  The submission is that the appellant in his notice of appeal stated 14 November 2018 as the date judgment was handed down when the actual date of judgment was 3 May 2019.</p> <p> </p> <p> </p> <p>                   A perusal of the record of proceedings suggests that there were two hearings presided over by the same judge involving the same parties in the same case number LC/H/603.  The first sitting was on 7 November 2018 where the learned judge <em>a quo</em> issued the following order under order number LC/H/ORD/1229/2018:</p> <p>“WHEREUPON after reading documents filed of record and hearing counsel for both parties:</p> <p> </p> <p>   IT IS ORDERED THAT:</p> <ol> <li>The preliminary issues are upheld.</li> <li>The claim is prescribed.</li> <li>The application for condonation of late noting of appeal and extension of time be and is hereby dismissed with costs.”</li> </ol> <p>                   The second case according to the record of proceedings commenced on 7 November 2019 and the learned judge <em>a quo </em>issued an order substantially on the same lines but under a different judgment number LC/H/115/2019. The order reads:</p> <p>          “It is accordingly ordered that:</p> <ol> <li>The preliminary issues are accordingly upheld, the claim is prescribed.</li> <li>The application for condonation of late noting of appeal and extension of time be and is hereby dismissed with costs.”</li> </ol> <p> </p> <p>                   The appellant in his sole discretion has elected to appeal against the first order under order number LC/H/ORD/1229/2018.  He correctly stated the date on which the judgment was given as appears on the face of the corresponding order.  He has not appealed against the subsequent order of 2019 which appears to be a restatement of the initial order of 2018 above.</p> <p>                   Although the dates of hearing appear suspiciously to have been confused that issue was not ventilated before us.  We therefore came to the unanimous conclusion that the appellant correctly cited the date appearing on the face of the order appealed against.  It being an entrenched position in our law that one appeals against the order of court and not the reasons we unanimously upheld the appellant’s contention that he had complied with the law by stating the date appearing on the face of the first court order. We accordingly dismissed the respondent’s objection <em>in limine</em> without any further ado.</p> <p>                   The appellant subsequently applied for leave to appeal to this Court.  The application was granted by the court <em>a</em> <em>quo </em>on 19 December 2018 with costs being costs in the cause.</p> <p><strong>BRIEF SUMMARY OF THE CASE.</strong></p> <p>                        The appellant was employed by the respondent as a truck driver/salesman.  He was charged with theft of his employer’s property and he paid an admission of guilt fine to the police.  He was subsequently dismissed from employment for theft in terms of the respondent’s registered code of conduct on 29 January 2015.  He appealed to the works council without success.</p> <p>       On 18 March 2015 he was served with a letter advising him of the dismissal of his appeal and if aggrieved to appeal to the court <em>a quo</em> within a period of 14 days in terms of the registered code of conduct.</p> <p> </p> <p>                   The appellant did not appeal to the court <em>a quo</em> within the prescribed time limit.  He applied for condonation of late noting of appeal and extension of time within which to note the appeal.  His application was successful and on 20 January 2016 he was ordered to lodge his appeal within 7 days of the order.</p> <p>                   The appellant was again in default by failing to comply with the 7 days period.  He again belatedly approached the court <em>a quo </em>2 years later on 17 August 2018 with an application for condonation of late noting of appeal and extension of time within which to note the appeal.  The application was unsuccessful hence this appeal.</p> <p><strong>FINDINGS OF THE COURT <em>A QUO</em></strong></p> <p>                   In dismissing the application the court <em>a quo</em> found that the appellant’s cause of action had prescribed in terms of the Prescription Act [<em>Chapter 8:11</em>].  This was because of his failure to successfully prosecute his appeal within the prescribed 3 year period from the date of his dismissal.</p> <p> </p> <p>                   The court <em>a quo</em> also found that in the absence of a provision in the registered code of conduct authorising it to extend the 14 day period within which the appellant was obliged to appeal, it had no jurisdiction to extend the <em>dies induciae</em>.                           </p> <p><strong>THE APPELLANT’S GROUNDS OF APPEAL.</strong></p> <p> </p> <p>                   Arising from the above two findings of the court <em>a quo</em>, the appellant has raised the following two grounds of appeal:</p> <p>“1.  The court <em>a quo</em> erred and misdirected itself at law by concluding that the</p> <p>appellant’s right to appeal the decision of the Works Council had prescribed in terms of the Prescription Act [<em>Chapter 8:11</em>] by computing the period (of) prescription began to run from 18 March 2015, while overlooking the fact that the Appellant’s right to appeal and time to appeal had been successfully condoned and extended under LC/H/19/16 granted on the 20th of January 2016.</p> <p> </p> <ol> <li>The court <em>a quo</em> erred and misdirected itself by concluding that (the) Labour Court does not have jurisdiction and power to condone late filing of appeals sought to be made outside the days stipulated by an Employment Code agreed to by the parties and neither can the Labour Court extend the time within which such appeals can be made outside the days stipulated in an employment Code.”</li> </ol> <p> </p> <p><strong>ISSUES FOR DETERMINATION.</strong></p> <p> </p> <p>                   The grounds of appeal raise two issues for determination:</p> <ol> <li>Whether or not the appellant’s cause of action has prescribed.</li> <li>Whether or not the Labour Court has the jurisdiction to extend the time within which to appeal set out in the employment code of conduct.</li> </ol> <p>             </p> <p><strong>WHETHER OR NOT THE APPELLANT’S CAUSE OF ACTION HAS PRESCRIBED.</strong></p> <p>                   It is trite that ordinary debts are irrevocably extinguished by prescription after 3 years in terms of s 15 (d) of the Prescription Act.  Section 2 defines a debt as including anything that may be sued for.  That definition squarely brings an appeal within the ambit of the definition of a debt.  The definition therefore renders an appeal subject to the Prescription Act.  It is therefore necessary to ventilate the time frames in this case to see if the appellant’s appeal falls foul of the Act.</p> <p>                   In this regard it is common cause that the appellant’s cause of action arose from his dismissal from employment by the disciplinary committee on 29 January 2015.  The notice of dismissal was served on him on 6 February 2015.  He lodged various appeals and applications which interrupted the running of prescription in terms of s 7(2) of the Act.  Subsection (3)(b) however provides that if one fails to successfully prosecute his cause of action and in this case his appeal to finality the interruption shall lapse and the running of prescription shall not be deemed to have been interrupted.  The subsection provides as follows:</p> <p>   “(3) Any interruption in terms of subsection (2) shall lapse, and the running of</p> <p>prescription shall not be deemed to have been interrupted, if the person claiming ownership in the thing in question—</p> <p> </p> <p>(<em>a</em>) does not successfully prosecute his claim under the process in question to final judgment; or</p> <p> </p> <p>(<em>b</em>)   successfully prosecutes his claim under the process in question to final judgment, but abandons the judgment or the judgment is set aside.”</p> <p> </p> <p>       The section is couched in clear unambiguous terms.  Once a litigant has failed to successfully prosecute his cause of action and in this case his appeal to finality the interruption lapses and the running of prescription is not deemed to have been interrupted.</p> <p> </p> <p><strong>APPLYING THE LAW TO THE FACTS.</strong></p> <p>                   It is common cause that on 20 January 2016 the court <em>a quo</em> gave the appellant 7 days within which to prosecute his appeal with effect from the date of the order.  He failed to prosecute his appeal within the prescribed period with the result that his appeal lapsed and prescription was deemed not to have been interrupted by operation of law.</p> <p>                   Prescription began to run on 6 January 2015 when he was served with notice of dismissal, the set period of prescription of 3 years had already set in as at the time of the court <em>a quo’s</em> judgment on 14 November 2018.</p> <p>                   In <em>Hodgson v Granger&amp; Anor</em><a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a> the court articulated the purpose of prescription, it said:</p> <p>“It is important, in this exercise of interpretation, to emphasise that it is trite that the whole purpose of statutes of limitation is to ensure that a person who has a valid cause of action, of which he is aware, proceeds reasonably timeously to prosecution thereof before events become ‘stale’.  It is absolutely clear that the purpose is to penalise the dilatory creditor but not a creditor who is unaware, through no fault of his own, of the cause of action at his disposal.”</p> <p>                   As the appellant was eminently aware of his cause of action right from the beginning way back in January 2015, his dilatoriness in prosecuting his appeal deserves censure to give effect to the purpose of the Act.</p> <p><strong>DISPOSITION</strong></p> <p>                   The net effect of the appellant’s failure to prosecute his appeal in the court <em>a quo </em>is that there can be no valid appeal before this Court in the absence of any appeal having been placed before the court<em> a quo</em> in respect of this matter. The appellant’s failure to successfully note his appeal with the court <em>a quo</em> within the 7 day period as ordered by the court sounded the death knell for his appeal as the 3 year prescription period had already run its course.</p> <p>                   From the foregoing, the learned judge <em>a quo</em> cannot be faulted for holding that the appellant’s appeal has prescribed for want of successful prosecution within a period of 3 years.  That finding of fact strips the court of the jurisdiction to determine the second issue.</p> <p> </p> <p>                   That being the case, the appeal can only fail. Costs follow the cause.</p> <p> </p> <p>       It is accordingly ordered that:</p> <p> </p> <ol> <li>The appeal be and is hereby dismissed.</li> </ol> <p> </p> <ol> <li>The appellant is to bear the costs of suit.</li> </ol> <p><strong>GWAUNZA DCJ:</strong>                                              I agree</p> <p><strong>HLATSHWAYO JA:</strong>                                         I agree</p> <p> </p> <p><em>Hungwe and Partners, </em>the appellant’s legal practitioners.</p> <p> </p> <p><em>Dube Manikai Hwacha, </em>the respondent’s legal practitioners.</p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> 1991 (2) ZLR 10 (H)</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/64/2021-zwsc-64.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=33428">2021-zwsc-64.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/64/2021-zwsc-64_0.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=33428">2021-zwsc-64.docx</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-employment">Appeal (EMPLOYMENT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/code-conduct">Code of conduct</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/dismissal-0">Dismissal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/condonation-practice-and-procedure">Condonation (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/condonation-non-observance-any-time-limit">condonation of non-observance of any time limit</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/prescription">PRESCRIPTION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/pleading-prescription">Pleading (PRESCRIPTION)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1975/31">Prescription Act [Chapter 8:11]</a></div></div></div> Tue, 08 Jun 2021 13:20:43 +0000 Sandra 10025 at https://old.zimlii.org