P https://old.zimlii.org/taxonomy/term/10833/all en Sunny Yi Feng Zimbabwe (Pvt) Ltd v Sallolly Investments (Pvt) Ltd And 4 ors (Judgment No. HH 406-21, HC 3971/21, HC 3970/21) [2021] ZWHHC 406 (05 August 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/406 <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 406-21</p> <p>HC 3971/21</p> <p>And HC 3970/21</p> <p> </p> <p>SUNNY YI FENG ZIMBABWE (PVT) LTD</p> <p>versus</p> <p>SALLOLLY INVESTMENTS (PVT) LTD</p> <p>and</p> <p>REGIS CHUNDU</p> <p>and</p> <p>COSTA LOGISTICS (PVT) LTD</p> <p>and</p> <p>ENERST ZVIKOMBORERO GWINYAI</p> <p>and</p> <p>OFFICER IN CHARGE ZRP NORTON N.O.                                                        Case 1</p> <p> </p> <p> </p> <p>SUNNY YI FENG ZIMBABWE (PVT) LTD</p> <p>versus</p> <p>COSTA LOGISTICS (PVT) LTD</p> <p>and</p> <p>ENERST ZVIKOMBORERO GWINYAI                                                               Case 2</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAFUSIRE J</p> <p>HARARE,</p> <p>                                                                                                                            </p> <p>Date of written judgment: 5 August 2021</p> <p> </p> <p><strong>Urgent court application &amp; urgent chamber application</strong></p> <p> </p> <p>On the papers</p> <p> </p> <p>MAFUSIRE J</p> <p>[1]        These are two cases under one judgment. At a pre-hearing case management conference, the parties agreed to have them consolidated. It made sense. Among other things, the cause of action in both matters is the same. The real protagonists are the same. Kindred orders are being sought. Both matters were filed under certificates of urgency. They were filed on the same day.</p> <p>[2]        Case 1 is an urgent court application. The applicant seeks final relief. The draft order is characteristic of bad draftsmanship. It lacks precision. It seeks an order directing the respondents [obviously excluding the fifth respondent, a mere policemen with no stake in the dispute] to offload certain 40 000 litres of diesel [obviously into the applicant’s tanks, otherwise where else?] The diesel is to be offloaded from a certain fuel tanker currently parked at the applicant’s premises [which are not identified]. The draft order goes on to direct that in the event that the respondents fail to offload the fuel as ordered, the Sheriff should do that himself by offloading the fuel it into the applicant’s reservoirs [obviously at the premises where the tanker is currently parked]. The draft order finishes by claiming costs of the application against the respondents. It says nothing about the liability for such costs being joint and several, or being against only such of the respondents as are culpable.</p> <p>[3]        Verbatim, the draft order in Case 1 reads:</p> <p>“1.          The Respondents are hereby ordered to offload 40 000 litres of diesel currently loaded on an International Truck Registration Number ADZ 4276 currently at the Applicant’s premises forthwith.</p> <p>2.             In the event of the Respondents failing to offload the diesel as ordered, the Sheriff of the High Court of Zimbabwe if (<em>sic</em>) hereby ordered to offload the fuel into the Applicant’s fuel Reservoirs.</p> <p>3.             The Respondents shall pay [the] costs of this Application.”</p> <p>[4]        Case 2 is an urgent chamber application. It seeks a provisional order against Costa Logistics (Pvt) Ltd [“<strong><em>Costa Logistics</em></strong>”] and Enerst Zvikomborero Gwinyai [“<strong><em>Gwinyai</em></strong>”] who are respectively the third and fourth respondents in Case 1. The final order sought on the return day, apart from costs, is an interdict barring the two from removing the fuel tanker from the applicant’s premises.  The interim relief seeks the relocation of the vehicle to a safe place, but within the applicant’s premises, as designated by it. This is pending the determination of an unnamed case [but obviously the urgent court application above]. Verbatim the interim relief sought reads:</p> <p>“1.       That pending the determination in HC … … the Respondents are hereby ordered to relocate their vehicle registered (<em>sic</em>) ABZ 4276 to a safe place designated by the Applicant within its premises.” </p> <p>[5]        At the case management conference aforesaid, following certain admissions and undertakings made by both sides, Case 2 had been all but settled. The parties agreed to file either a notice of withdrawal by consent, or some deed of settlement. But up to the time of this judgment nothing had been received. However, this might have been due to an interposing difficulty. The case management conference was on Thursday, 28 July 2021. The consolidated hearing, if Case 2 did not settle, was scheduled for Tuesday, 3 August 2021. However, following a Practice Direction from the Office of the Chief Justice to guide the operations of the courts in the wake of the extended lockdown measures put in place by Government to check the spread of the covid-19 pandemic, one of several such Directions in the recent past since the outbreak of that world pandemic in 2019, the courts have been practically shut down for all matters except bails and remands. Under the circumstances, and in line with previous Practice Directions, word was sent round to the parties that this matter would be determined on the papers but that the parties were free to file whatever additional papers they might deem fit, for as long as the documents reached me before concluding this judgment. Only the applicant’s supplementary heads of argument were received. However, they add no value.</p> <p>[6]        Much of the facts are common cause or without contest. Demonstrably, it is a dog eat dog situation in some sections of society. In this matter someone seems to be up to no good at all. The events have all the hallmarks of a fraud. The finger is pointing straight at Sallolly Investments [Pvt] Ltd [“<strong><em>Sallolly Investments</em></strong>”] and Regis Chundu [“<strong><em>Chundu</em></strong>”], respectively the first and second respondents in Case 1, even though the applicant, on the one side, and the third and fourth respondents, on the other, mutually accuse one another of collusion with the culprits. Chundu has effectively vanished. He is no longer reachable on the telephone. Sallolly Investments cannot be traced. The addresses initially supplied have turned out to be false. Feng’s lawyers have failed to serve process on them.  Forty thousand litres of diesel fuel are at stake. Although poor draftsmanship seems to put the fuel tanker at stake as well, plainly the parties are tussling over the fuel only. Once the fate of the fuel is determined, the fuel tanker will most likely be let go.</p> <p>[7]        It is expedient to refer to the parties by their names or monikers to avoid confusion. The applicant, Sunny Yi Feng [“<strong><em>Feng</em></strong>”], is a tile manufacturing company near Norton. On 10 July 2021, Sallolly Investments offered Feng 40 000 litres of diesel. Feng accepted. The price, the mode of payment and of delivery were all agreed upon. Feng was represented by one Leo, and Sallolly Investments by Chundu. But the two had never met before. The deal was concluded over the telephone. Payment for the fuel would be made upon delivery. On 16 July 2021 the fuel tanker in question arrived at Feng’s premises near Norton, laden with the fuel. Feng says inside the fuel tanker’s cab were four people. It is agreed the first two were the driver and his assistant. It is not agreed who the other two were. Feng believes the third person was Chundu, and the fourth Gwinyai. At the case management conference, Mr <em>A. Mambosasa</em>, representing Costa Logistics and Gwinyai, said that his instructions were that Gwinyai was in a separate car. However, this minor conflict does not stand in the way.</p> <p>[8]        Feng says after verifying the fuel quantity, it made a bank transfer of RTGS $4.8 million into the account of Sallolly Investments with one of the local banks, as per prior arrangement with Chundu. Feng has produced both the invoice from Sallolly Investments and the proof of payment. The proof of payment was shown to the driver and all those inside the cab. However, the fuel was not offloaded. It was alleged that the fuel tanker’s pump was too small for the task. It would not be able to offload the fuel from the tanker into Feng’s reservoirs. So it was agreed that a bigger pump would be procured from Norton. One or other or more of those people in the cab left to get the bigger pump. The tanker was left behind, still parked inside Feng’s premises. However, when those people returned, the narrative had changed. It was ordered that the tanker had to be driven away with its fuel because no payment had been made. But Feng would not hear of it. Its employees blocked the tanker. They protested the fuel had been paid for and now belonged to Feng.</p> <p>[9]        Gwinyai demanded the release of the truck and of the fuel. He claimed the fuel had been supplied by Costa Logistics. The tanker belonged to his employer Lopdale Energy (Private) Limited [“<strong><em>Lopdale Energy</em></strong>”]. He had been engaged by one Mushangwe to supply the fuel to some premises near Norton. Those premises had turned out to be Feng’s factory. He did not know Feng. He did not know Mushangwe. But he and Mushangwe belonged to the same WhatsApp platform for fuel dealers. Mushangwe had assured him that payment of the fuel would be made in United States dollars upon delivery, but before offloading. Since he had received no payment, he could not allow the fuel to be offloaded. He knew nothing about Feng’s alleged $4.8 million payment.</p> <p>[10]      There was no agreement. The matter was reported to the police. The police would not get involved, stating that it was a civil dispute. On 19 July 2021 Feng filed this urgent court application, Case 1, simultaneously with the urgent chamber application, Case 2. They are vigorously opposed by Costa Logistics and Gwinyai. Basically the grounds of opposition are that they do not know Feng. They have no contract with it. It is Feng which may have been defrauded by Chundu. They do not know anyone by that name either. Their fuel has not been paid for. Feng has no right to cling to it and to the truck. Feng’s recourse lies against Chundu, whoever he is and wherever he may be. Feng has no lien over the truck or the fuel. It made no such improvements on them as would form the basis of a lien. In any event, a lien is a weapon of defence, not of attack.</p> <p>[11]      Regarding the critical developments when the fuel tanker entered Feng’s premises, Gwinyai says Mushangwe, who was with him in another vehicle, not inside the tanker’s cab, told him that the payment for the fuel would be made in Avondale in Harare. He and Mushangwe drove to Harare to collect the money. But in Harare, Mushangwe’s story changed. Gwinyai got no payment. So he cancelled the deal and immediately drove back to Norton to order the tanker off Feng’s premises with the fuel unloaded. However, Feng’s employees barricaded the tanker and prevented it from leaving.</p> <p>[12]      Gwinyai also argues that Feng is approaching the court with dirty hands. It should be denied audience. He says on 20 July 2021 Lopdale Energy obtained <em>ex parte</em> from the magistrate’s court at Norton, an order for the release of the tanker. However, the messenger of court failed to execute the order. He was denied entry and access by Leo. The tankers’ tyres had been deflated. Lopdale Energy should be joined to the current proceedings so that it can counter-claim for the return of its vehicle.</p> <p>[13]      At the case management conference, Mr <em>T.G. Kuchenga</em>, representing Feng, admitted that Leo had been arrested by the police in relation to the dispute but said that he was on remand. He elaborated on what Feng’s deponent had said in an answering affidavit that the messenger of court had not been denied entry or access to the tanker as such. He said when the messenger of court had arrived at Feng’s premises to execute the order, the tanker had already been blocked by several other delivery trucks that were bringing supplies to the factory and taking away deliveries. Because of the chaos caused by the inappropriately parked tanker, most drivers, including the tanker driver, had since left. Therefore, there was no way the tanker could be removed. The driver had left with the ignition keys. At any rate, Feng had immediately obtained, also <em>ex parte</em>, an order staying execution of the release order.</p> <p>[14]      That is the case before me. Here now is my decision, first the preliminary point about Feng coming to court with ‘dirty hands’. As was stated in <em>Associated Newspapers of Zimbabwe [Private] Limited v The Minister of State for Information and Publicity in the President’s Office &amp; Ors </em>2004 (1) ZLR 538 [SC]:</p> <p>“This Court is a court of law, and as such, cannot connive at or condone the applicant’s open defiance of the law. Citizens are obliged to obey the law of the land and argue afterwards.”</p> <p>[15]      In his return of service on his unsuccessful attempts to execute the order of the magistrate’s court, the messenger of court wrote in part:</p> <p>“The main entrance was blocked with the 30 tonne trucks with load of gravel. Saw Mr Leo who refused me from collecting the Truck. Police arrested Mr Leo. On hold for another attempt tomorrow. To hire 30 to 40 tonne cranes.”</p> <p>[16]      There is a presumption of validity on what the messenger of court stated on his return of service as to the truth of what transpired. But that presumption is rebuttable on a balance of probabilities. I am satisfied that Feng has successfully rebutted it. From his own report above, there was no way the messenger of court would have removed the fuel tanker. It was blocked by other huge trucks laden with gravel. Furthermore, apart from that blockage, it would need a 30 to 40 tonne crane to remove it. This all but confirms Feng’s story that the fuel tanker had been blocked by other heavy duty trucks bringing supplies and taking away deliveries, and that, at any rate, the drivers of the trucks, including that for the tanker, had since left with the ignition keys. Therefore, the respondents’ preliminary point is hereby dismissed.</p> <p>[17]      On the merits, the matter falls to be decided on the principles of agency. In simple terms, an agency is a three way relationship. It is created when one person, the principal, hires another, the agent, to do something for a third person, the third party, on behalf of the principal. From the facts that are common cause, Chundu, fronting his <em>alter ego</em>, Sallolly Investments, contracted with Feng to supply it with forty thousand litres of diesel fuel. Terms were agreed upon, including the currency of the deal. But Chundu, also known as [a.k.a.] Sallolly Investments, did not have the fuel. He turned to Gwinyai, this time using the alias Mushangwe. Terms were agreed upon, including the currency of the deal and the place of delivery. But Gwinyai did not have the fuel. His employer Lopdale Energy had a tanker. Gwinyai hired Costa Logistics to supply the fuel. Terms were also agreed upon. Chundu a.k.a. Sallolly Investments a.k.a. Mushangwe, looked up to Feng for payment. Feng paid. Costa Logistics delivered the fuel. It looked up to Gwinyai or Lopdale Energy for payment. They did not pay. Chundu/Mushangwe promised payment in Avondale, Harare. Together with Gwinyai they drove to Harare, leaving the tanker parked at Feng’s premises unloaded. It is not clear how Chundu/Mushangwe managed to shake Gwinyai off his back. But Gwinyai quickly realised he was not going to be paid. He rushed back to Feng’s premises. His plan was to have the tanker driven away, unloaded. Feng blocked it.</p> <p>[18]      Feng accuses Gwinyai and Costa Logistics of collusion to defraud it of its $4.8 million. It says it is Gwinyai that came with Chundu.  It says Gwinyai was in the fuel truck when Leo showed the proof of payment. Gwinyai seemed satisfied. The fuel would have been offloaded but for the small size pump. He left with Chundu/Mushangwe ostensibly to get a bigger pump. It is only now that he is saying they had left together to collect payment in Avondale, Harare. But even this shows that Gwinyai was at all times aware that his money for the deal would come from Chundu/Mushangwe, not Feng. That concludes Feng’s argument. To me, it has a lot of substance.</p> <p>[19]      But Gwinyai equally accuses Feng of collusion with Mushangwe/Chundu to defraud it of the fuel. He did not know this Chundu or Mushangwe fellow. He did not know Feng. Whatever deal was between Feng and Chundu/Mushangwe does not concern him. Until the fuel is paid for, there will be no delivery or any offloading.</p> <p>[20]      Regrettably for Gwinyai and Costa Logistics, the probabilities support Feng. The law supports it too. Gwinyai’s case is limping. I do not have to go into the whole question of ostensible authority as between Gwinyai and Chundu/Mushangwe, as argued by Feng, to show that Gwinyai held out to Feng that Chundu/Mushangwe was Gwinyai’s agent to whom payment of the fuel could be made. I also do not need to get bogged down with the question of who colluded with who to defraud the other. That is for the criminal court. Lastly, I also do not need to be detained by the question of whether or not Feng has a lien over the tanker and the fuel.</p> <p>[21]      From the facts, Chundu/Mushangwe alias Sallolly Investments, was the principal to supply the fuel to Feng, the third party. Chundu/Mushangwe alias Sallolly Investments would supply the fuel through his/its agent Gwinyai, who in turn would do so through his own agent Costa Logistics. It is clear Feng performed its side of the bargain with Chundu or Sallolly Investments. It paid the full amount and in the currency of the deal. On his part, Chundu or Sallolly Investments has partly performed. The fuel was brought to Feng’s premises. Plainly, Feng is entitled to specific performance. It is not to Feng that Gwinyai or Costa Logistics should look to for payment. Feng does not know them. It has no privity of contract with them. There was no such relationship between Feng and Gwinyai or Costa Logistics as is recognised by law. It is to their agent Chundu/Mushangwe alias Sallolly Investments that they should look to for the payment done by Feng. Therefore, the diesel fuel must be offloaded into Feng’s fuel reservoirs and let go the tanker.</p> <p>[22]      As already pointed out, the draft order is poorly drafted. However, since the order of court must be efficacious, simple amendments to it will do no violence to the substance of the remedy sought, or cause any injustice to the respondents. Costs shall follow the event. However, on the question of costs, not only should the fifth respondent be absolved, as clearly he is not a party to the dispute in any conceivable capacity, but also I shall refrain from ordering that the liability therefor be joint and several. This is for a good reason. The applicant has not asked for it. The difference is significant. An order of liability that is joint and several gives the creditor the right to procure payment of the debt from any one of the co-debtors individually or collectively, up to the full amount. But where liability is not joint and several, it means the creditor cannot collect the full amount of the debt from any single debtor as the debt is split proportionally between both of them or amongst all of them. So, the following order is hereby made:</p> <p>i/          Within 48 hours of the grant of this order, the first, second, third and/or fourth respondents shall offload, or cause to be offloaded, from a certain fuel tanker, registration no ABZ 7839, which at all relevant times from 16 July 2021 was attached to the motor vehicle registration no ADZ 4276, and at all relevant times parked at the applicant’s tile manufacturing factory situate near Norton, forty thousand [40 000] litres of diesel fuel into the applicant’s fuel reservoirs thereat.</p> <p>ii/         In the event of non-compliance with the order aforesaid, the Sheriff for Zimbabwe, or his lawful deputy, or assistant, is hereby empowered, authorised and directed to execute the order and give effect to it by any means authorised by law.</p> <p>iii/        The costs of this application shall be borne by the first, second, third and fourth respondents.</p> <p>    </p> <p>5 August 2021</p> <p><em>Makururu &amp; Partners, </em>legal practitioners for the applicant in both cases;</p> <p><em>Mambosasa, </em>legal practitioners for the third and fourth respondents in case 1, and for the respondents in case 2</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/2021/406/2021-zwhhc-406.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=73243">2021-zwhhc-406.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/2021/406/2021-zwhhc-406.pdf" type="application/pdf; length=565429">2021-zwhhc-406.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/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/urgent-application">Urgent Application</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-spoliation-order">application for spoliation order</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/certificate-urgency">certificate of urgency</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/2005/105">Associated Newspapers of Zimbabwe (Pvt) Ltd. v Minister of State for Information and Publicity and Another ((320/03, 359/03, 323/03) ) [2005] ZWSC 105 (13 March 2005);</a></div></div></div> Wed, 18 Aug 2021 10:41:11 +0000 Sandra 10101 at https://old.zimlii.org 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 Nyakudya v Vibranium Resources (Pvt) Ltd (Judgement No. HH 409-21, HC 4040/21 Ref HC 2163/21) [2021] ZWHHC 409 (06 August 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/409 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>                                                                                                                            </p> <p>HH 409-21</p> <p>HC 4040/21</p> <p>Ref: HC 2163/21</p> <p>SPENCER NYAKUDYA</p> <p>versus</p> <p>VIBRANIUM RESOURCES (PVT) LTD</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MANZUNZU J</p> <p>HARARE, 27 July &amp; 6 August 2021</p> <p> </p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p> </p> <p><em>T Chiturumani</em>, for the applicant</p> <p><em>B Biza</em>, for the respondent</p> <p> </p> <p> </p> <p>MANZUNZU J: This is a chamber application filed on urgency. The applicant seeks an order in the following terms;</p> <p>“TERMS OF FINAL ORDER SOUGHT</p> <p>That you show cause to this Honourable Court why a final order should not be made as set out hereunder:-</p> <ol> <li>Respondent be and is hereby interdicted from evicting and or locking out applicant from a property known as Block number 47622, Shamva ‘X’ mine in Shamva without an order of court.</li> <li>Respondent to pay costs of suit at an attorney and client scale.</li> </ol> <p>INTERIM RELIEF GRANTED</p> <p>Pending the return date and finalization of this application:</p> <ol> <li>Respondent be and is hereby ordered to remove the fence that is erected and encircles a property known as Block number 47622, Shamva ‘X’ mine in Shamva upon receipt of this order failure of which the Sheriff for Zimbabwe or his lawful deputy be and is hereby ordered, empowered and directed to remove the fence.</li> <li>Respondent and all his agencies who act on his  behalf be and are hereby ordered to allow applicant access and entrance to the property known as Block number 47622, Shamva ‘X’ mine in Shamva upon receipt of this order.</li> <li>Respondent be and is hereby ordered to remove and or ensure that all the security guards, security forces, police officers and all his agents are removed from the property known as  Block number 47622, Shamva ‘X’ mine in Shamva.”</li> </ol> <p>The respondent opposed the application and raised six points in<em> limine</em> the chief of which being that the matter is not urgent. There was a serious attack on the certificate of urgency. The applicant maintained that the matter is urgent. The question then is whether or not this is a matter which must be heard on an urgent basis. In other words does it meet the requirements of urgency?</p> <p>The requirements for urgency are well known. It starts with rule 244 which provides that;<strong><em> “</em></strong>Where a chamber application is accompanied by a certificate from a legal practitioner in terms of paragraph (b) of subrule (2) of rule 242 to the effect that the matter is urgent, giving reasons for its urgency, the registrar shall immediately submit it to a judge, who shall consider the papers forthwith.</p> <p> </p> <p>Provided that, before granting or refusing the order sought, the judge may direct that any interested person be invited to make representations, in such manner and within such time as the judge may direct, as to whether the application should be treated as urgent.”</p> <p> </p> <p>In  <em>Kuvarega </em>v<em> Registrar-General &amp; Anor</em> 1998 (1) ZLR 188 (HC) it was stated,  “What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent, if at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the dead-line draws near is not the type of urgency contemplated by the rules.”</p> <p> </p> <p>In <em>Gwarada </em>v<em> Johnson &amp; Ors,</em> HH 91/09 it was stated,   “Urgency arises when an event occurs which requires contemporaneous resolution, the absence of which would cause extreme prejudice to the applicant. The existence of circumstances which may, in their very nature, be prejudicial to the applicant is not the only factor that a court has to take into account, time being of the essence in the sense that the applicant must exhibit urgency in the manner in which he has reacted to the event or the threats, whatever it may be.”</p> <p> </p> <p> </p> <p>In <em>Documents Support Centre (Pvt) Ltd </em>v<em> Mapuvire</em> 2006 (2) ZLR 240 (H) the court said, “… urgent applications are those where if the courts fail to act, the applicants may well be within</p> <p>their rights to dismissively suggest to the court that it should not bother to act subsequently as the position would have become irreversible and irreversibly so to the prejudice of the applicant.”</p> <p> </p> <p>In <em>Mushore </em>v<em>  Mbanga &amp; 2 Ors</em> HH 381/16 the court held that there are two paramount considerations in considering the issue of urgency, that of time and consequences. These are considered objectively. The court stated; “By ‘time’ was meant the need to act promptly where there has been an apprehension of harm. One cannot wait for the day of reckoning to arrive before one takes action… By ‘consequences’ was meant the effect of a failure to act promptly when harm is apprehended. It was also meant the effect of, or the consequences that would be suffered if a court declined to hear the matter on an urgent basis.”</p> <p> </p> <p>An applicant has a duty to lay out in his founding affidavit why he says the matter is urgent. This is over and above what is expected of the certificate of urgency. In <em>Mayor Logistics (Private) Limited </em>v <em>Zimbabwe Revenue Authority </em>CCZ 7/14 the court had  this to say; “A party favoured with an order for a hearing of the case on an urgent basis gains a considerable advantage over persons whose disputes are being set down for hearing in the normal course of events.  A party seeking to be accorded the preferential treatment must set out, in the founding affidavit, facts that distinguish the case from others to justify the granting of the order for urgent hearing without breach of the principle that similarly situated litigants are entitled to be treated alike. The certificate of urgency should show that the legal practitioner carefully examined the founding affidavit and documents filed in support of the urgent application for facts which support the allegation that a delay in having the case heard on an urgent basis would render the eventual relief ineffectual.”</p> <p> </p> <p> </p> <p>In summary, the applicant must act promptly when the need to act arises and must show that if the court does not hear the matter urgently he will suffer irreparable harm. Where the applicant fails to act timeously, he has a duty to give a reasonable explanation for the delay, otherwise in my view, even if it is shown that irreparable harm will be suffered, the matter cannot be heard on urgency. The applicant must treat the matter as urgent and this can be discerned from the action taken and how closely related such action is to the time when the apprehension of harm is realized.</p> <p>            A certificate of urgency assists the court in its determination of whether or not a matter is urgent. In <em>Condurago Investments (Pvt) Ltd </em>v <em>Mutual Finance (Pvt) Ltd</em> HH 630/15 the court underscored the importance of a certificate of urgency in the following words;</p> <p>“An urgent application is an extraordinary remedy where a party seeks to gain an</p> <p>advantage over other litigants by jumping the queue. That indulgency can only be granted by a judge after considering all the relevant factors and concluding that the matter cannot wait. See <em>Kuvarega </em>v<em> Registrar General &amp; Anor</em> 1998 (1) ZLR 188.</p> <p> </p> <p>The need for the certificate of urgency is therefore meant for the benefit of the generality of the hapless litigants who are about to be jumped in the queue but cannot speak for themselves because they are never consulted or given an opportunity to object. For that reason there is need for a judge to proceed with caution and due diligence so that justice may be done and be seen to be done. According to the well-established dictum of <em>Curlewis in R </em>v <em>Heerworth</em> 1928 AD 265 at 277, a judge must ensure that, “justice is done”</p> <p> </p> <p>To assist the judge in his difficult task in dispensing justice at short notice and in the heat of the moment r 244 provides him with the benefit of the opinion of an officer of the court a trained legal practitioner who will have had the opportunity to peruse the case beforehand and formulate an opinion regarding the urgency of the matter. The certifying lawyer therefore carries a heavy responsibility in which he guides and provides assistance to the presiding judge. That duty must be discharged conscientiously with due diligence and due attention to the call of duty.”</p> <p>The certificate of urgency is an assisting aid to the court and not a substitution to the discretion of the court. I have no doubt it plays a critical role. It must lay down the basis upon which the legal practitioner expresses his opinion of urgency.</p> <p>The applicant states in his founding affidavit that the respondent sued him for eviction from  Block number 47622, Shamva ‘X’ mine in Shamva under case number HC 2163/21 and that the matter is still pending before this court. The application for eviction was filed on 26 May 2021 and the applicant filed opposing papers on 1 June 2021. Applicant alleges that the respondent has now fenced the disputed area denying the applicant access. He only got to notice the fence on 21 July 2021 when he returned to the mine from Harare. He said he was absent from the mine as from 1 June 2021 when he went to see his family in Harare. It is the 21st July 2021 date which he says marks the need to act. He acted on 22 July 2021 when he filed the present application.</p> <p>The respondent said following the cancellation of the applicant’s mining certificates by the Provincial Mining Director the applicant was removed from the mining claims in June 2021. Respondent does not deny erecting a fence at the mine but said it was in compliance with the law. Respondent said applicant had sought to get a similar relief in an urgent application under case number HC 2171/21 which was ruled not urgent. Indeed there is an application filed on 11 May 2021 which was ruled not urgent on 12 May 2021. Applicant has kept silent about it. The interim relief sought in that application is for the withdrawal and removal of Police officers from the mine who allegedly raided, blocked, impeded, stopped and interfered with his mining activities. The applicant did not reveal that he was removed and barred from the mine by the Police as he stated in the HC 2171/21.</p> <p>Mr <em>Biza</em> was able to demonstrate how untruthful the applicant was. In order for the court to determine when the need to act arose, the parties must be truthful in the narration of events. Applicant said he was away from the mine as from 1 June 2021 presumably on a visit to Harare to see his family. He said he came back to the mine on 21 July 2021 only to find it fenced. That cannot possibly be correct. It was shown that applicant was involved in a fracas with the Police at the mine on 23 June 2021 resulting in certain charges being levelled against him. On 29 June 2021 in the company of the local Member of Parliament he also visited the mine. The evidence is uncontroverted.</p> <p>When then did the need to act arise according to the applicant whose evidence shows that he has been economic with the truth. Litigants who come to court on urgency have a duty to disclose all the facts surrounding their case including such facts which might be prejudicial to their case. It cannot be correct that the need to act arose on 21 July2021. In the absence of when the need to act arose the court cannot rule in applicant’s favour.</p> <p>I was not persuaded by Mr <em>Chiturumani’</em>s submission that the applicant would suffer irreparable harm. He went in circles to say the least. For the first time we heard this was applicant’s communal home and that the fence made him homeless leaving him with no clothes to wear in this unfriendly weather. The court had to remind Mr <em>Chiturumani</em> that the applicant said from 1 June 2021 to 21 July 2021 he was with his family in Harare. The issue of being homeless turned to be superficial. The truth of the matter is that applicant wants restoration to the mine, a place where the Ministry of Mines say he cannot do illegal mining activities.</p> <p>Applicant says he left mining equipment which is meant for hire and therefore will lose hiring business. Mind you the applicant is not saying he wants to remove his equipment from site, which he has not claimed that he is prevented from doing so. He hides behind the application for spoliation. His evidence does not aver the requirements of spoliation. In another breath he seeks a prohibitory interdict, interdicting respondent from evicting him from the mine.</p> <p>The certificate of urgency was attacked for its failure to meet the standard required of it. A certificate of urgency is not filed as a matter of routine which is the impression I got from Mr <em>Chiturumani’</em>s submission. It cannot just be a piece of paper filed to allow the Registrar to place the matter before a judge in terms of rule 244 but serves a purpose which is to give reasons why the matter must be treated as urgent. Because there is a demand to give reasons, it calls for a legal practitioner to apply his/her mind.  </p> <p>In <em>Chidawu and others </em>v <em>Shah &amp; others</em> 2013 (1) ZLR 260 the court had this to say; “In certifying the matter as urgent, the legal practitioner is required to apply his or her own mind to the circumstances of the case and reach an independent judgment as to the urgency of the matter. He or she is not supposed to take verbatim what his or her client says regarding perceived urgency and put it in the certificate of urgency. I accept the contention by the first respondent that it is a condition precedent to the validity of a certificate of urgency that a legal practitioner applies his mind to the facts. GILLESPIE J had occasion to discuss the duty that lies upon a legal practitioner who certifies that a matter is urgent in <em>General Transport &amp; Engineering (Pvt) Ltd&amp; Ors v Zimbank Corp (Pvt) Ltd</em> 1998 (2) ZLR 301, where he stated:</p> <p>‘Where the rule relating to a certificate of urgency requires a legal practitioner to state his own belief in the urgency of the matter that, invitation must not be abused. He is not permitted to make as his certificate of urgency a submission in which he is unable to conscientiously concur. He has to apply his own mind and judgment to the circumstances and reach a personal view that he can honestly pass on to a judge and which he can support not only by the strength of his arguments but on his own honour and name.</p> <p>………….It is therefore an abuse for a lawyer to put his name to a certificate of urgency where he does not genuinely believe the matter to be urgent. Moreover, as in any situation where the genuineness of a belief is postulated, that good faith can be tested by the reasonableness or otherwise of the purported view. Thus where a lawyer could not reasonably entertain the belief he professes in the urgency of the matter he runs the risk of a judge concluding that he acted wrongfully if not dishonestly in giving his certificate of urgency.” [emphasis is mine].</p> <p>What comes out of this case is that a legal practitioner, “is not supposed to take verbatim what his or her client says regarding perceived urgency and put it in the certificate of urgency. He has to apply his own mind and judgment to the circumstances and reach a personal view.”</p> <p>In <em>casu</em>, a reading of the certificate of urgency does not meet this criteria. It regurgitates what is in the founding affidavit. It must be noted it is the same legal practitioner who filed a certificate of urgency in HC 2171/21. He ought to have realised the factual incongruence. In HC 2171/21 he acknowledged the applicant was in peaceful and undisturbed possession of the mining claim before the Police raided, barred and blocked him from entering. He said the need to act in that case arose on 10 May 2021.</p> <p>In <em>casu</em>, the legal practitioner now says it is the fencing which has despoiled the applicant of his access to the mining claim. He should have realized that the two were not compatible and must have refused to issue his certificate without explanation. It makes the certificate of urgency fatally defective in that it shows the author did not apply his mind. A legal practitioner who issues a certificate of urgency owes a duty to court as an officer of this court. In HC 2171/21 the applicant said urgency was based on the fact that he was barred by the Police. Having failed on urgency in that respect he now claims the fence has barred him. “There is an allied problem of practitioners who are in the habit of certifying that a case is urgent when it is not one of urgency.” CHATIKOBO J, as he then was, observed in the<em> Kuvarega</em> case <em>(supra</em>). The bottom line is that this matter is not urgent.</p> <p>Disposition:</p> <ol> <li>The application is not urgent.</li> <li>The matter is struck off the roll of urgent matters with costs.</li> </ol> <p> </p> <p><em>Chiturumani Zvavanoda Law Chambers,</em> applicant’s legal practitioners</p> <p><em>Mhishi Nkomo Legal Practice</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/2021/409/2021-zwhhc-409.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=28798">2021-zwhhc-409.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/2021/409/2021-zwhhc-409.pdf" type="application/pdf; length=638834">2021-zwhhc-409.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/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/m">M</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/mines-and-minerals">MINES AND MINERALS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rights-mines-and-minerals">Rights (MINES AND MINERALS)</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/urgent-application">Urgent Application</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/certificate-urgency">certificate of urgency</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/what-constitutes-urgency-urgent-application">what constitutes urgency (Urgent application)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-may-be-made-urgent-application">when may be made (Urgent application)</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/2015/630">Condurago Inv. (Pvt) Ltd v Mutual Finance (Pvt) Ltd (HC 4019/15) [2015] ZWHHC 630 (21 July 2015);</a></div></div></div> Wed, 18 Aug 2021 09:24:33 +0000 Sandra 10099 at https://old.zimlii.org Diamond Bird Services (Pvt) Ltd And Anor v Massbreed Investments (Pvt) Ltd And Anor (Judgment No. HH 413-21, HC 4045/21 Ref Case No. HC 3072/20) [2021] ZWHHC 413 (11 August 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/413 <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 413-21</p> <p>HC 4045/21</p> <p>Ref Case No. HC 3072/20</p> <p>DIAMOND BIRD SERVICES [PRIVATE] LIMITED</p> <p>and</p> <p>TRUSTEES OF ZIMNAT VALUE PRESERVATION PROFESSIONAL TRUST FUND</p> <p>versus</p> <p>MASSBREED INVESTMENTS [PRIVATE] LIMITED</p> <p>and</p> <p>CITY OF HARARE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAFUSIRE J</p> <p>HARARE</p> <p> </p> <p> </p> <p>Date of written judgment: 11 August 2021</p> <p> </p> <p> </p> <p><strong>Urgent chamber application</strong></p> <p> </p> <p>On the papers</p> <p> </p> <p>MAFUSIRE J</p> <p>[1]        This is an urgent chamber application for an interim interdict. Due to the lockdown measures currently in place to check the spread of the covid-19 world pandemic and in terms of which the courts have virtually shut down, except for bail and remand matters, this application is being decided on the papers and thus, without the benefit of oral argument.</p> <p>[2]        The draft provisional order is improperly crafted. In terms of it, for interim relief, the applicants call upon the respondents to show cause why a final order should not be made directing the respondents to immediately cease developing, or in any way dealing with a certain piece of land in Alexandria Park, Harare, described as Stand 3189 Salisbury Township [“<strong><em>the property</em></strong>”]. This formulation is not in the nature of an interim relief. It is in the nature of a final order. It is a rule <em>nisi</em> seeking final relief. Yet a proper rule <em>nisi</em> is a provisional order of court that comes into force at a future date, unless certain conditions are met to prevent it from becoming absolute.</p> <p>[3]        As final relief, the applicants want that the rights and obligations accruing to the respondents in terms of a certain agreement of sale between them in respect of the property be suspended until the finalisation of certain proceedings which are pending before this court under the case reference no HC 3072/21 [“<strong><em>the main application</em></strong>”]. That seems to be the interim relief. I wonder whether the applicants’ legal practitioners have simply mixed up the headings for the types of orders intended, or whether the arrangement is purposeful. Certainly, such formulation is not in accordance with Form No 29C, which is prescribed by r 247[1][a] of the old High Court Rules. Nonetheless, in the adjudication of disputes, the courts try and avoid being unnecessarily fastidious. They go to the nub of the matter and hope to solve the real dispute between the parties. Sometimes form has to defer to substance. What is clear in this case is that the applicants want the respondents interdicted from carrying out any form of development on the property pending the final determination of the main application which pits them and the respondents.</p> <p>[4]        Despite my reservations about the draft order, I do not see any prejudice in construing it in the manner I have done above. That enables me to deal with the real substance of the dispute. I note that in its heads of argument, the first respondent has taken the point that the draft order is defective in that the interim relief sought is final in both form and substance, allegedly in that there is no averment as to when this order will be discharged. However, this particular argument, which has not been presented as an objection <em>in limine</em>, whilst well taken, does not detract from dealing with the matter, either on the points <em>in limine</em> or, if need be, the merits. This is because a draft order is merely the mould into which the actual order of court will be cast, if the application is granted. An order of court must be efficacious. If an applicant succeeds, simple variations to the draft order, which do no violence to the substance of the remedy sought, or cause any injustice to the respondents, can be effected in terms of r 240[1] of the old Rules.</p> <p>[5]        The facts of this matter are straightforward. The applicants, both of them juristic entities, are owners of pieces of land adjacent to the property. It is on this basis that they claim <em>locus standi</em>. The property is owned by the second respondent, a local authority for the purposes of the Urban Councils Act [<em>Chapter 29:15</em>]. The property is designated for recreational use. The second respondent sold the property to the first respondent, a private company, in terms of an agreement of sale signed by the parties in November and December 2019. The applicants are objecting to the sale. They filed the main application in June 2021. In it, they seek a declaratory order in the following terms:</p> <ul> <li>that the process leading to the agreement of sale [between the respondents] should be declared unlawful, and</li> </ul> <p> </p> <ul> <li>that the written agreement of sale between the respondents pursuant to the impeached process be declared null and void.</li> </ul> <p>[6]        In the main application, the applicants allege that the processes undertaken by the second respondent prior to the agreement of sale was defective for want of compliance with the Urban Councils Act, more particularly in that:</p> <ul> <li>in the advertisement, the property was described as Stand 3189 Harare Township, yet this is not the stand sold to the first respondent, and also it is not the [correct] description of the property;</li> </ul> <p> </p> <ul> <li>the sale was only published once in a newspaper, as opposed to twice;</li> </ul> <p> </p> <ul> <li>the publication lacked the requisite details;</li> </ul> <p> </p> <ul> <li>no proof of the notice required to be posted at the second respondent’s office has been produced.</li> </ul> <p>[7]        The respondents are opposing the main application. Distilled, their main grounds of opposition are that the applicants are being frivolous and vexatious in that the sale was properly advertised and the property properly described. The requirements of the Urban Councils Act were complied with. The applicants failed to lodge objections timeously when the intended sale was advertised and are now seeking to do so improperly in this court, instead of eating humble pie and seeking condonation from the Administrative Court.  </p> <p>[8]        In the present application, the applicants allege that the respondents are behaving as if there are no proceedings pending before the court because they have done all the preparatory work to carry out construction work on the property. They have drilled a borehole on site; ten thousand bricks have been ferried; two cabins have been erected, and some water pumping equipment is being installed. If not stopped, the applicants will suffer irreparable harm in that, among other things, buildings will be put up; underground water will be depleted; the recreation park will disappear. They allege that the main application will be rendered academic, and any order issued by the court afterwards, if the applications succeed, will be a <em>brutum fulmen</em>.</p> <p>[9]        The respondents also oppose this application. The grounds are essentially the same as those in the main application. They have taken two points <em>in limine</em>. The first is that there is no valid application before the court because the purported certificate of urgency, which is an integral part of the application, and is the <em>sine qua non</em> for any matter being heard on an urgent basis, is incurably defective in that it was executed well ahead of the founding affidavits whose contents it purports to vouch for as establishing urgency.</p> <p>[10]      As a matter of fact, the certificate of urgency is dated 22 July 2021. The founding affidavits by the applicants are both dated 23 July 2021. It is trite that a certificate of urgency cannot vouch for anything said in the founding affidavit that was not there when the certificate was itself executed. A certificate of urgency must show, <em>ex facie</em>, that the legal practitioner who executes it, carefully examined the founding affidavit for facts which support the belief that the matter is indeed urgent: see <em>General Transport &amp; Engineering [Pvt] Ltd &amp; Ors </em>v <em>Zimbabwe Banking Corporation [Pvt] Ltd</em> 1998 (2) ZLR 301 [H] and <em>Chidawu &amp; Ors </em>v <em>Shah &amp; Ors</em> 2013 [1] ZLR 260 [S]. That an urgent application is incurably defective if the certificate of urgency purports to vouch for facts which were non-existent at the time the certificate was itself executed is trite: see for example, <em>Condurago Investments [Pvt] Ltd t/a Mbada Diamonds v Mutual Finance [Pvt] Ltd</em> HH 630-15.</p> <p>[11]      In the present matter, and on the face of it, the respondents’ objection is well taken. But it cannot succeed. The first applicant, in an answering affidavit, attaches two affidavits: one by its legal practitioner of record, and the other by the lawyer who executed the certificate of urgency. It is alleged in these affidavits that the date on the certificate of urgency suggesting that it was executed a day before the founding affidavits was a mistake. They swear that the certificate of urgency was indeed signed on the same day as those affidavits. It is stated that the lawyer certifying the matter as urgent had the founding affidavits with her when she executed the certificate. On his part, the legal practitioner of record attaches some contemporaneous e-mails between himself and the applicants to support the point that under no circumstances could the certificate of urgency have come into existence any day prior to 23 July 2021 because by then he had not yet been given final instructions to proceed with the urgent chamber application.</p> <p>[12]      I accept that predating the certificate of urgency to the founding affidavit was just a mistake. Such mistakes are not uncommon with legal practitioners, especially in the rush to prepare and file documents urgently. That is not to say they are acceptable. They are merely understandable. I adopt the same approach as I did in <em>Zimbabwe Lawyers for Human Rights v Minister of Transport &amp; Ors</em> 2014 [2] ZLR 44 [H]. Sometimes such minor mistakes must be allowed to stand in the interests of pragmatism and practicality, especially when there is no discernible prejudice.</p> <p>[13]      Furthermore, whilst two wrongs do not make a right, I cannot help but notice the respondents’ own clumsiness, or that of their lawyers in preparing the opposing affidavits. The one affidavit is a mere reproduction of the other, almost word for word, mistakes, warts and all. The nadir is para 18 of the second respondent’s opposing affidavit. It regurgitates para 18 of the first respondent’s affidavit. In its para 18, the first respondent, as buyer, says, “<em>The land was sold <strong>to me</strong> as recreational land</em>...”  The second respondent, the seller, also says in its own para 18, “<em>The land was sold <strong>to me</strong> as recreational land …!</em>” These are supposed to be serious documents prepared in a serious matter for serious consideration by a serious court and for which serious money has probably been paid. That is why earlier on, I alluded to the fact that in the adjudication of disputes, the courts sometimes simply pay a blind eye to maladroit presentations in order to dispense justice. At any rate, the respondents, particularly in their heads of argument, do not at all comment on the affidavits by the applicants’ lawyers, or argue why I should not take their word at face value, especially as they are officers of the court. Accordingly, the respondents’ first objection <em>in limine</em> is hereby dismissed.</p> <p>[14]      The respondents’ second objection <em>in limine</em> is that the matter is not urgent. This objection is predicted on the observation that the order sought in the main application is merely declaratory the efficacy of which, if the applicants succeed, cannot be affected by anything done, or being done by the respondents in the interim. It is argued that what is sought in the main application is merely the nullification of the agreement of sale between the respondents. The order sought is not to declare the property as such an area as cannot be sold and transferred; or to prohibit the construction of any buildings on it; or to maintain the land in its current state; or to prevent the abstraction of underground water through a borehole. As such, the argument concludes, there is no imminent danger to any perceived rights of the applicants. At any rate, the applicants have not shown that there is no alternative remedy, especially given that damages are generally an alternative remedy, unless shown to be unsuitable.</p> <p> [15]     However, I rule that the matter is urgent. The respondents’ second ground of objection is properly dealt with under the merits of the dispute. The arguments are not acceptable as preliminary objections if the effect of them is to non-suit the applicants, right at the outset. Whether the nature of the remedy sought in the main application is merely declaratory, and not substantive, is a question that is properly decided under the merits of the dispute. It is also the same with regards the question whether the applicants have an alternative remedy. The applicants allege that the respondents, with the full knowledge that the main application is pending, have proceeded to carry out developments on the property. The applicants got to know about this on 21 July 2021. On 23 July 2021, a mere two days later, they filed the urgent chamber application. The respondents’ second objection <em>in limine</em> is hereby dismissed. That paves the way for the determination of the matter on the merits.</p> <p>[16]      On the merits, it is always necessary to lay out the requirements for an interim interdict. Doing so, is akin to setting up a directional compass to navigate the course on the merits. These requirements are now so well-known as to require no citation of authorities beyond the <em>locus</em> <em>classicus Setlogelo v Setlogelo</em> 1914 AD 221. An applicant must show a <em>prima facie</em> right having been infringed, or about to be infringed, even if it be open to some doubt; an apprehension of an irreparable harm if the interdict is not granted; a balance of convenience favouring the granting of the interdict; the prospects of success on the merits, and the absence of any other satisfactory remedy. But legal principles are not an exact science like mathematics where, for instance, one plus one is always equals to two. These factors are considered objectively, cumulatively and in the context of the facts. One or other of them may be more important in some cases than they may be in others.</p> <p>[17]      The basis upon which the applicants claim <em>locus standi</em> has not been properly laid out. All that they say is that they are owners of premises adjacent to the property. It is not clarified by what law, whether common law, statute, or otherwise, such circumstances grant them the requisite <em>locus standi in judicio</em>. Except for a fleeting reference to s 152 of the Urban Councils Act in the main application, the court has not been invited to take judicial notice of any circumstances or legal provisions as would establish <em>locus standi</em> for persons in the position of the applicants. However, since the respondents do not challenge the applicants’ <em>locus standi</em>, I hold that having shown that there are legal proceedings pending before this court which pit the same parties and in which the same or kindred remedies are being sought, the applicants would have the right to ensure that those proceedings are not undermined by anything done by the respondents in the interim. On the face of it, they have the right to demand that the <em>status quo ante</em> be preserved until final determination of the main matter. On the face of it, they have the right to ensure that the main application is not negated. That right may be open to some doubt, as is self-evident from my concerns regarding <em>locus standi</em>. However, all that is in the nature of an interim interdict, and is therefore tolerable at this stage. The applicants only need to establish a <em>prima facie</em> right. But that hardly is the end of the enquiry.</p> <p>[18]      It is on the second requirement for an interim interdict that the application flounders, namely, an apprehension of an irreparable harm if the interdict is not granted. As the respondents argue, all that the applicants seek in the main application is a declaration of invalidity of the process leading to the agreement of sale between the respondents in respect of the property. Concomitantly, they also seek the setting aside of that agreement. Demonstrably, the main application shall not declare the property as one not open to a sale and transfer by the second respondent to any interested buyer, including the first respondent. It shall not lead to an impeachment of the second respondent’s power to dispose of the property. It shall not lead to a prohibition against the construction of any buildings on it or the abstraction of any water from it. It shall not lead to an order maintaining the property in its current state for all time, or preserving it exclusively as a recreational park for use by the respondents alone or other persons in their class or similar situation.</p> <p>[19]      The applicants argue that all those disparate remedies above are implied in the declaratory order, or are consequential to it. They maintain that the developments that are now happening at the property stem from the impugned agreement of sale. That cannot be correct. At the very most, if the applicants succeed in the main application, the respondents will simply have to go back to the drawing board. If their agreement of sale is nullified, it will not mean that the second respondent will no longer be able to correct whatever mistake it might have committed and proceed to dispose of the property, if it will still be so minded. In other words, it may well be that a court has the power to stop the second respondent from disposing the property in any way, or prevent it from changing its character from recreational to something else. But this will not be possible in the main application. I have looked at the pleadings. Not only have they been made part of this application, but also the whole record has been placed before me. There is no chance of the court going beyond the four corners of the <em>declaratur</em> being sought therein, or its precincts.</p> <p>[20]      In the circumstances, I reject the applicants’ argument that the efficacy of the main application stands compromised by what the respondents are alleged to be doing, or that the order of the court in that application will be negated, or will be a <em>brutum fulmen</em> if the interdict sought in this interim period is not granted. It follows from this that the balance of convenience weighs in favour of not granting the interdict. It seems a substantial amount of money has already been laid out in the purchase of the property and the commencement of development. The agreement of sale in question expressly ensures that the property remains recreational. Any buildings to be erected shall be designed for recreational purposes to the satisfaction of the second respondent.  The purchase price was above RTGS$1.89 million. The applicants say this was too little and that this is evidence of bias or favouritism. However, this is just a nude allegation which takes no one anywhere. There is no information why it is alleged that the amount was too little. Thus, there seems to be no justification for the court to intervene at this stage.</p> <p>[21]      It is always dicey to comment on the prospects of success of the main application without having had the benefit of argument, worse still when pleadings are apparently still being filed. However, it is a task that must necessarily be embarked upon in an application of this nature. Therefore, I proceed to do so. It is my considered view, albeit <em>prima facie</em>, that the applicants’ case is limping. For example, it seems that the bulwark of their attack against the agreement of sale, or the process preceding it, is the alleged misdescription of the property. But it is doubtful that a description that says “<em>Harare Township</em>”, instead of “<em>Salisbury Township</em>”, will be found to be 1800 off the mark. Furthermore, it is doubtful that on the papers currently on record, a conclusion will be reached that there was non-compliance with the pre-disposal obligations in respect of urban council land as set out in s 152 of the Urban Councils Act. Still further, the reason why the applicants lodged no objection timeously when the property was advertised for sale, shall probably weigh heavily against them.     </p> <p>[22]      It is upon a consideration of the more relevant factors for an interim interdict that I have come to the conclusion that the present application cannot succeed. Accordingly, it is hereby dismissed with costs.</p> <p> </p> <p>11 August 2021</p> <p><em>Gill, Godlonton &amp; Gerrans, </em>legal practitioners for the applicant</p> <p><em>Manase &amp; Manase, </em>legal practitioners for the first respondent</p> <p><em>Gambe Law Group</em>, legal practitioners for the second 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/harare-high-court/2021/413/2021-zwhhc-413.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=73809">2021-zwhhc-413.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/2021/413/2021-zwhhc-413.pdf" type="application/pdf; length=588820">2021-zwhhc-413.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/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/grant-interdict">Grant of 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/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/locus-standi-judicio">Locus standi in judicio</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/urgent-application">Urgent Application</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/certificate-urgency">certificate of urgency</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/what-constitutes-urgency-urgent-application">what constitutes urgency (Urgent application)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-may-be-made-urgent-application">when may be made (Urgent application)</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/2013/12">Chidawu &amp; Others v Shah &amp; Others (293/11) [2013] ZWSC 12 (17 March 2013);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2015/630">Condurago Inv. (Pvt) Ltd v Mutual Finance (Pvt) Ltd (HC 4019/15) [2015] ZWHHC 630 (21 July 2015);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2014/353">ZLHR v Minister of Transport, Communication &amp; Infrastructure Develeopment N.O &amp; 2 Ors (HH 353-14, HC 5708/14) [2014] ZWHHC 353 (14 July 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/2001/222001">Urban Councils Act, 2015 [Chapter 29:15]</a></div></div></div> Tue, 17 Aug 2021 10:24:10 +0000 Sandra 10097 at https://old.zimlii.org Chituku And 2 Ors v Infrastructure Development Bank of Zimbabwe And 3 Ors (Judgment No. HH 414-21, HC 4011/20) [2021] ZWHHC 414 (12 August 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/414 <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 414-21</p> <p>HC 4011/20</p> <p>STEPHEN CHITUKU</p> <p>and</p> <p>PATIENCE FADZAI CHITUKU</p> <p>and</p> <p>SOUTHEND CARGO AIRLINES (PVT) LTD</p> <p>versus</p> <p>INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE</p> <p>and</p> <p>STANDARD CHARTERED BANK OF ZIMBABWE</p> <p>and</p> <p>RESERVE BANK OF ZIMBABWE (N.O)</p> <p>and</p> <p>REGISTRAR OF DEEDS (N.O)</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUZOFA J</p> <p>HARARE, 24 May &amp; 12 August 2021</p> <p> </p> <p> </p> <p><strong>Opposed Matter</strong></p> <p> </p> <p> </p> <p><em>D. Sanhanga</em>, for the applicants</p> <p><em>F.Mahere</em>, for the 1st respondent</p> <p>No appearance for the 2nd, 3rd &amp; 4th respondents</p> <p> </p> <p> </p> <p> </p> <p>MUZOFA J: This is an application for condonation of late filing of heads of arguments.</p> <p>Factual background</p> <p>The applicants and the 1st respondent have been in and out of court from 1998 and its now about 22 years later the parties are still on the case. There must be finality to litigation. It is indeed an inconvenience for a party to be haunted by a case for such a long time. In the circumstances of this case the matter must have been put to rest as far back as 2004.The applicants seem unrelenting and continue to file applications with condescension.</p> <p>On 26 November 2002 an order by consent was granted in favour of the 1st respondent in the sum of US$590 470, 68 with interest and $54 917, 68 with interest thereon ‘the order by consent’.  In 2003 the applicants filed an application for the setting aside of the order by consent. The application was dismissed under HH123/04. Several court applications ensued between the parties. I shall not refer to them as they are not directly relevant in the determination of this matter. I shall refer to a few that are relevant. Subsequently the applicants filed yet another application for the setting aside of the order by consent under HC 5408/18’ the main matter’ in terms of rule 449 (1) and (2) of the High Court Rules, 1971.Parties filed their pleadings. The applicants failed to file their heads of argument in terms of the rules. In the result they filed this application for condonation for late filing of the heads of argument.</p> <p>The 2nd, 3rd  and 4th respondents did not file opposing papers.</p> <p>Preliminary issues</p> <p> In its opposing affidavit, the 1st respondent took the point that the applicants cited a non-existent entity. The application is therefore a nullity, there is no 1st respondent. The 1st respondent is not a private company but a statutory body. It is known as the Infrastructure Development Bank of Zimbabwe. In their answering affidavit and heads of argument the applicants conceded that the 1st respondent was not properly cited but explained it as a mis-description as opposed to citing a non-existing party. On the date of hearing of the matter <em>Ms Sanhanga</em> applied for an amendment so that the 1st respondent may be properly cited. She submitted that the amendment is not a substitution with another party but a correction of a mis- description. The application was opposed mainly on the point that since there is no 1st respondent in the first place, an amendment cannot be effected on nothing. A nullity cannot be amended.</p> <p>It is the applicant’s duty to make sure that it cites the correct party in its pleadings. There must be either a legal or natural person answering to that name<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a>.By adding Private Limited to Infrastructure Development Bank of Zimbabwe the applicants altered the identity of the party in whose favour the order by consent was granted. There is no natural or legal person answering to the name cited as the 1st respondent in this matter. The description of the 1st respondent in the founding affidavit does not cure the defect. The fact is there is no entity answering to the name cited as the 1st respondent. If it was a mistake, it was a mistake made by the applicants and they must live with it. The substitution the applicants are seeking is not a matter of form, but a matter of substance. Such a substitution of a party cannot be achieved through an amendment. There is nothing to amend since there is no party in the first place. I agree with the 1st respondent. On that basis alone this application is doomed to fail.</p> <p>The interests of justice and the public policy on finality to litigation demand that this is a matter that I must proceed to address on the merits. I shall proceed to determine all the issues raised by the parties. In the heads of argument, the applicants raise the issue that there is no opposition since the person who deposed to the 1st respondent’s affidavit has no personal knowledge of the issues raised. His evidence is predominantly hearsay evidence. The point has no merit. The 1st respondent’s affidavit was deposed to by its principal credit control officer. He is employed by the 1st respondent. Obviously, his evidence is based on official documents prepared and kept in the course of employment.  </p> <p>Submissions on the merit</p> <p>The applicants submitted that they could not file the heads of arguments in terms of the rules due to a breakdown in communication between them and their contact person. At the relevant time they were in Mozambique where they have business interests. The national lockdown due to the Covid 19 pandemic also contributed to the delay. They believe the delay is not inordinate and they have prospects of success in the main matter. From the 1st respondent’s opposing affidavit, the heads of argument and the oral submissions, the point made is that the there is no reasonable explanation for the delay, no prospects of success in the main matter specifically that the matter is res judicata, partial execution has been effected and in the interest of finality to litigation the application must dismissed with costs on a higher scale.</p> <p>The law                                                                                                             </p> <p>Both parties in their heads of argument referred to the main considerations in such an application. The considerations are now trite. These include the degree of non-compliance and the explanation thereof, the prospects of success in the main matter, the importance of the matter, respondent’s interest in the finality of the matter, the convenience of the court and that the administration of justice is not unnecessarily delayed<a href="#_ftn2" name="_ftnref2" title="" id="_ftnref2">[2]</a>.</p> <p>No one factor is decisive, the factors are taken cumulatively. By applying for condonation, the applicant is asking the court to exercise its discretion on a consideration of the said factors. The granting of condonation being entirely in the discretion of the court, these factors merely guide the court to exercise its discretion in a manner that balances the interests of the applicant, the respondent, the court and the administration of justice.</p> <p>The degree of non-compliance and explanation thereof</p> <p>The applicants’ explanation for the delay is that after their legal practitioners of choice renounced agency, their contact person could not get in touch with them promptly as they were working in Mozambique. When they were eventually advised of the service of the 1st respondent’s heads of argument, they instructed counsel to file heads of argument. The delay was also exacerbated by the national lockdown during which period the High Court’s work was limited to urgent matters.</p> <p>I find the explanation very porous and lacking in detail. It has no dates. For instance, the court is not told when the erstwhile legal practitioners renounced agency, neither is it told when the applicants’ contact person was served with the 1st respondent’s heads of argument and when the contact person eventually advised the applicants of such service. I perused the main matter and noted that the applicants’ erstwhile legal practitioners renounced agency on 22 June 2018. Thereafter the applicants were self-actors, and their address of service was care of Citizens Legal Aid and Advisory Services. Toindeipi Mahaso from Citizens Legal Aid and Advisory Services filed a supporting affidavit confirming receipt of the1st respondent’s heads of argument and what he did thereafter. His affidavit is bereft of the relevant information. He does not state when he contacted the applicants neither does he advise the court when he forwarded the heads of argument to the applicants’ legal practitioners of choice. The applicants refer to the national lockdown which affected the High Court work. They do not refer to the practice direction that specifically limited their access to the court. To simply refer to the national lockdown is not enough. It is common cause that during national lockdown, the office of the Chief Justice issued Practice Directions regulating the conduct of courts during the period. In the absence of reference to the relevant Practice Direction, the point taken for the applicants would not advance their cause. The applicants also indicated that they instructed counsel to file heads of argument yet by then they were already barred. They did not apply for condonation. There is no explanation why the application for condonation was not filed as soon as possible. There is no reasonable explanation for the delay.</p> <p>Condonation for the non-observance of the rules is not just there for the asking.  Where a litigant realises that he or she has fallen foul of the rules of court, an application for condonation must be made without delay.  If the litigant does not make the application without delay, he or she should give an acceptable explanation, not only for the delay in filing the heads of argument, but also for the delay in seeking condonation.  See <em>Viking Woodwork (Private) Limited </em>v <em>Blue Bells Enterprises (Private) Limited</em> <a href="#_ftn3" name="_ftnref3" title="" id="_ftnref3">[3]</a>.</p> <p> </p> <p> </p> <p>The prospects of success</p> <p>There is authority that where the explanation for non-compliance with the rules is not acceptable, the applicant must show very good prospects of success in the main matter.  See <em>Mahachi </em>v<em> Barclays Bank of Zimbabwe<a href="#_ftn4" name="_ftnref4" title="" id="_ftnref4"><strong>[4]</strong></a>.</em></p> <p>             I find no prospects of success in the main matter for the following reasons,</p> <p>I comment at the outset that the application is unclear which paragraph(s) the applicants rely on in their application. This is evident from the terminology used in the founding affidavit. At one point there is reference to a patent error, in another paragraph reference is made to a mistake common to the parties and lastly that the judgment was entered in the applicants’ absence. In such an application it must clear which paragraph the applicant relies on since the issues for consideration are different. A convoluted approach such as this may point to an applicant who is trying all options just in case one of them rescues him. The application does not indicate that it was made in the alternative.</p> <p>The order that the applicants seek to set aside was granted by consent in 2002.The application is made in terms of r449. Although the rule does not provide for the period within which the application must be made, it is accepted that it should be made within a reasonable time. What constitutes a reasonable period depends on the circumstances of each case. Where there has been a delay the applicant must explain why he or she could not approach the court as soon as possible. In this case the applicants filed the application in June 2018 some 16 years after the order by consent was entered and 14 years after the application for the setting aside of the consent order was dismissed. Either way the period is unreasonably long. In <em>Grantully (Pvt) Ltd and Another </em>v<em> UDC Ltd</em><a href="#_ftn5" name="_ftnref5" title="" id="_ftnref5">[5]</a> the court held that an application for rescission can be dismissed by reason of an inordinate lapse of time. Rule 449 is a procedural step meant to correct expeditiously an obviously wrong judgment or order. In this case the delay of sixteen years is inordinate the court may dismiss the application on that basis alone. The applicants must be taken to have accepted the judgment of the court. It is undesirable to reopen a matter after 16 years unless the interests of justice require so. It has not been shown that the interests of justice demand that this matter be revisited.</p> <p>Some of the issues raised in the main matter are <em>res judicata. </em>The applicants filed an application to set aside the order by consent in 2003. The application was dismissed under HH123/04. In the main matter on paragraph 15 of the founding affidavit the applicants aver that the judgment was entered in their absence in the sense that the lawyer who entered the consent order had no mandate, that there were patent errors of law committed by the court in granting the consent order for instance the payment in foreign currency. These issues were considered and disposed under HH123/04. In that case the court made a finding that the applicants were taken as not disputing liability. The court also made a finding that the liability was in foreign currency. The judgment was not appealed. The requirements of <em>res judicata</em> are satisfied the subject matter, the issues and the parties are the same. The submission made for the applicants that the cause of action in the main matter and HC2000/03(HH123/04) are different is just splitting hairs. As already demonstrated the issues for determination were the same regardless of what the application was termed. </p> <p>There are indeed some issues raised in the main matter that were not raised before the court under HH123/04. Even for those the applicants must be barred from raising them in the interest of justice and finality to litigation. It is surprising that the applicants have approached the court again after the terse dictum by the court in HC 123/04 that,</p> <p>‘In light of the above, I do not see any basis upon which the applicants can escape liability for the actions of their agent in settling the matter on their behalf and on their express instructions. In this regard, I am of the firm view that the principle that there must be finality to litigation must take precedence. The applicants have not made out a case why they should be allowed to fight the same battle twice. Simply because they may have come across a new weapon they did not deploy in the lost battle is not sufficient a ground upon to gain the indulgence they seek. In my view, for the applicants to be allowed to re-engage in the lost battle, they must show that their surrender on the battlefield was no surrender at all and not merely that it was an uninformed surrender. The courts would be inundated with reopened cases were litigants allowed to rethink their defences to cases where they would have consented to judgment.’</p> <p> </p> <p>The applicants have approached the court once again with new and fresh thought-out defences. The court cannot allow such an approach to litigation. It seems the applicants have totally disregarded the warnings given to them in the pursuit of their case. I refer to another stern warning made but disregarded in <em>Southend Cargo Airlines (Pvt) Ltd </em>v <em>Chituku &amp; Others<a href="#_ftn6" name="_ftnref6" title="" id="_ftnref6"><strong>[6]</strong></a></em> where the applicants filed what it termed a chamber application for reinstatement of a lapsed appeal. The appeal court marked its displeasure and noted,</p> <p>‘The applicants’ shoddy attempt to resurrect a dead case eleven years after the event is despicable and deserves censure.  The need to have finality to litigation cannot be over emphasised.  It appears that this application has been filed merely to delay the date of reckoning.  I am unable, and loath, to render assistance in that regard. </p> <p>The courts’ displeasure with the growing tendency among some legal practitioners to handle applications of condonation of failure to comply with the rules with disdain was amply articulated by Ziyambi JA in <em>Apostolic Faith Mission in Zimbabwe and 2 Ors v Titus Innocent Murefu</em> SC 28/03….</p> <p> </p> <p>It is needless to say that the applicants have dismally failed to discharge the onus of proving that there is any justifiable reason for excusing them from the natural consequences of their deliberate disdain of the rules of court 11 years after the event.</p> <p> </p> <p>The respondent has been put to unnecessary expense long after the matter had been put to rest by the courts.  The application appears to be a delaying tactic in a futile attempt to delay the course of justice.  It is only fair that the respondent should recoup its costs at the highest scale.</p> <p>It is accordingly ordered that the application be and is hereby dismissed with costs on the attorney client scale.’</p> <p> </p> <p>The applicants have literally failed at every turn to upset the order granted in 2002 but they continue to approach the court in a trial an error fashion. I associate myself with the sentiments of the court under HH124/04 a litigant must be barred from approaching the court on the same matter every time they come up with a new argument. The court is not surprised that the 1st respondent has made a counter application for an order of perpetual silence in the main matter. This court has inherent powers to regulate its processes and it can grant such an order. See <em>Fuyana</em> v <em>Moyo</em><a href="#_ftn7" name="_ftnref7" title="" id="_ftnref7">[7]</a> .</p> <p>As properly submitted for the 1st respondent, the applicants have accepted the order for execution and the order has been partially executed. The order sought in the main matter is the setting aside of the order by consent and the reversal of the transfer of title from the 1st respondent. When the order by consent was granted, the 1st respondent subsequently issued a writ of execution. The applicants approached the court for the setting aside of the writ of execution on the basis that the order by consent had been fully paid under HC 906/09 judgment delivered under HH 225/10. The application was dismissed. The relevance of that case is that, in their founding affidavits the applicants indicated that they had fully discharged their obligations. The statement has two implications that must bar the applicants from reopening this case. Firstly, it shows that the applicants accepted the order by consent as binding on them. Secondly there has been partial execution of the order by consent. Once an order has been executed it is taken that the matter is put to rest. The applicants cannot therefore blow hot and cold. The applicants made their bed when they consented to the granting of the order by consent, they should lie on it no matter how hard it maybe.</p> <p>Other considerations</p> <p>In considering the interests of justice, the administration of justice and the convenience of the court, the court would assess the implication of either granting or not granting the order. If the order is granted the court would be saddled with a matter that was determined some decades ago. The main matter would be unnecessarily clogging the system. The issues have been dealt with there is no need for it to remain as a pending matter. Secondly the need for finality to ligation cannot be overemphasised but it rears its head in this case. Granting the order is certainly would contradict and negate the public policy principle on finality to litigation. Litigants must have confidence in the system that once matters are finalised they are not re opened over and over again. It is about 16 years after the order by consent was granted. The 1st respondent has dealt and organised its affairs in tandem with the order. To reopen the matter would certainly result in untold inconveniences to the 1st respondent including some innocent third parties. Obviously, the 1st respondent has dealt with the property as it pleases as the owner of the property. In the final analysis the considerations point to the one result that the application cannot succeed.</p> <p>The 1st respondent requested for costs on a legal practitioner client scale. I agree. The court must mark its displeasure in the way the applicants have conducted themselves in the main matter. They are <em>dominus litis</em> in the main matter. They defaulted in filing heads of argument until the 1st respondent filed its heads of argument and set down the matter. It is only then that the application for condonation for late filing of heads of argument was filed. Besides the unconvincing explanation given for the delay the main matter is devoid of any merit. The court can grant punitive costs where the litigant pursues a hopeless case. I intend to do so in this case.</p> <p>Accordingly, the following order is made.</p> <p>The application is dismissed with costs on a legal practitioner client scale.</p> <p> </p> <p> </p> <p> </p> <p><em>Chingeya-Mandizira Legal Practitioners</em>, applicants’ legal practitioners</p> <p><em>Gill Godlonton &amp; Gerrans</em>,1st respondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a>  Gariya Safaris (Pvt) Ltd v van Wyk 1996 (2) ZLR 246 (H),Fadzai John v Delta Beverages Limited</p> <p><a href="#_ftnref2" name="_ftn2" title="" id="_ftn2">[2]</a> Kodzwa v Secretary for Health &amp; Anor 1999 (1) ZLR 313 (SC),KM  Auctions (Pvt) Ltd v Samuel &amp;Anor SC15/12</p> <p><a href="#_ftnref3" name="_ftn3" title="" id="_ftn3">[3]</a> 1998 (2) ZLR 249 (S) @ 251 C-D, Herbstein &amp; Van Winsen’s.  <em>The Civil Practice of the Supreme Court of South Africa </em>4 ed at pp 897-898:</p> <p><a href="#_ftnref4" name="_ftn4" title="" id="_ftn4">[4]</a> SC 6/06.</p> <p> </p> <p><a href="#_ftnref5" name="_ftn5" title="" id="_ftn5">[5]</a> 2000(1) ZLR 361 (SC)</p> <p><a href="#_ftnref6" name="_ftn6" title="" id="_ftn6">[6]</a> SC 42/16</p> <p><a href="#_ftnref7" name="_ftn7" title="" id="_ftn7">[7]</a> SC 24/06</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/2021/414/2021-zwhhc-414.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=32714">2021-zwhhc-414.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/2021/414/2021-zwhhc-414.pdf" type="application/pdf; length=497324">2021-zwhhc-414.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/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/condonation-practice-and-procedure">Condonation (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-condonation">application for condonation</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/parties-practice-and-procedure">Parties (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/citation-parties">citation of parties</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/company-parties">company (Parties)</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/principles-res-judicata">principles (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/supreme-court-zimbabwe/2006/6-0">Mahachi v Barclays Bank of Zimbabwe ( SC6/06) [2006] ZWSC 6 (31 January 2006);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2016/42">Southend Cargo Airlines (Pvt) Ltd. v Chituku &amp; Others (SC 42/2016 Chamber Application No. SC 560/15) [2016] ZWSC 42 (29 September 2016);</a></div><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2006/54">Fuyana v Moyo ( 236/00) (( 236/00)) [2006] ZWSC 54 (29 November 2006);</a></div></div></div> Mon, 16 Aug 2021 13:24:48 +0000 Sandra 10096 at https://old.zimlii.org Estate Late Ngavaite Jack Chikuni And 2 Ors v Chikuni And 5 Ors (Judgment No. HB 143-21, HC 1919/20) [2021] ZWBHC 143 (11 August 2021); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2021/143 <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 143/21</p> <p>HC 1919/20</p> <p><strong>ESTATE LATE NGAVAITE JACK CHIKUNI </strong></p> <p><strong>aka NGAVAYITE JACK CHIKUNI </strong></p> <p> </p> <p><strong>And </strong></p> <p> </p> <p><strong>GODFREY MUTSEYEKWA</strong></p> <p><strong>In his capacity as the executor testamentary to</strong></p> <p><strong>the estate of the late Ngavaite Jack Chikuni</strong></p> <p><strong>aka Ngavayite Jack Chikuni</strong></p> <p> </p> <p><strong>And </strong></p> <p> </p> <p><strong>ZEMDY INVESTMENTS (PVT) LTD </strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>JAMES CHIKUNI </strong></p> <p> </p> <p><strong>And </strong></p> <p> </p> <p><strong>TICHAONA CHIKUNI </strong></p> <p> </p> <p><strong>And </strong></p> <p> </p> <p><strong>TICHAFA CHIKUNI</strong></p> <p> </p> <p><strong>And </strong></p> <p> </p> <p><strong>MANASA CHIKUNI </strong></p> <p> </p> <p><strong>And </strong></p> <p> </p> <p><strong>TAURAI CHIKUNI </strong></p> <p> </p> <p><strong>And </strong></p> <p> </p> <p><strong>MAUDI CHIKUNI </strong></p> <p> </p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>DUBE-BANDA J</p> <p>BULAWAYO 1 JULY 2021 &amp; 11 AUGUST 2021</p> <p> </p> <p><strong>Application to dismiss for want of prosecution </strong></p> <p> </p> <p><em>L. Nkomo,</em> for the applicants</p> <p><em>S. Siziba, </em>for the respondents</p> <p> </p> <p><strong>DUBE-BANDA J:</strong>    In this application the applicants seek the dismissal for want of prosecution of an application for condonation of the late filing of an application for review under cover of case No. 1513/20. The order sought is couched in the following terms:</p> <p>It is ordered that:</p> <ol> <li>The application be and is hereby granted with costs.</li> <li>The court application filed by respondents under case No. HC 1513/20 of this Honourable Court be and hereby dismissed for want of prosecution in terms of rule 236 (3) (b) of the Rules of this Honourable Court.</li> </ol> <p> </p> <p>This application is opposed by all the respondents. </p> <p> </p> <p>At the commencement of the hearing, I enquired from Adv. <em>Nkomo, </em>counsel for the applicants, about the legal status of the 1st applicant, i.e. Estate Late Ngavaite Jack Chikuni A.K.A Ngavayite Jack Chikuni. Counsel conceded that there is no 1st applicant before court. The concession was well taken. This is so because the deceased estate cannot represent itself. In terms of Section 25 of the Administration of Estates Act [chapter 6:01] a deceased estate is represented by an executor or executrix duly appointed and issued with letters of administration by the Master. The executor/executrix must be cited by name in any suit where the estate is a party.  Failure to cite the executor/executrix would be fatal to an action against the deceased’s estate. See: <em>Nyandoro &amp; Anor v Nyandoro &amp; Ors</em> 2008 (2) ZLR 219(H); <em>Cosma Chiangwa v (1) David Katerere (2) Robert Adrian Campbell Logan (3) Israel Gumunyu (4) Registrar of Deeds (5) Edmond Chivhinge (6) Master of The High Court </em>SC 61/21. There is no legal entity at law answering to the name estate late Estate Late Ngavaite Jack Chikuni. Therefore, there are only two applicants before court, i.e. 2nd and 3rd applicants.</p> <p> </p> <p><strong>Factual background </strong></p> <p>           </p> <p>                This application will be better understood against the background that follows. On the 4th September 2020, respondents filed a court application for condonation for the late filing of an application for review (main application). The main application was served on the 1st applicant on the 7th September 2020, and was served on the 3rd applicant on the 14 September 2020. On the 21st September 2020, applicants filed and served a notice of opposition and opposing affidavit to the main application. As at the 4 November 2020, the date of filing of this application, the respondents had neither filed an answering affidavit nor set-down the main application. It is against this background that applicant has launched this application seeking the relief mentioned above.</p> <p> </p> <p><strong>The law and the facts </strong></p> <p> </p> <p>This application has been filed in terms of Order 32 Rule 236(3) (b) of the High Court Rules 1971, which provides that:</p> <p>Where the respondent has filed a notice of opposition and an opposing affidavit and, within one month thereafter, the applicant has neither filed an answering affidavit nor set the matter down for hearing, the respondent, on notice to the applicant, may either—</p> <p>(<em>a</em>) set the matter down for hearing in terms of rule 223; or</p> <p>(<em>b</em>) make a chamber application to dismiss the matter for want of prosecution, and the judge may order the matter to be dismissed with costs or make such other order on such terms as he thinks fit.</p> <p> </p> <p>In <em>Guardforce Investments (Private) Limited </em>v <em>(1<strong>) </strong>Sibongile Ndlovu <strong>(2) </strong>The Registrar of Deeds N.O. (3) The Deputy Sheriff  </em>SC 24-18 the court said the discretion to dismiss a matter for want of prosecution is a judicial discretion, to be exercised taking the following factors into consideration – the length of the delay and the explanation thereof; the prospects of success on the merits; the balance of convenience and the possible prejudice to the applicant caused by the other party’s failure to prosecute its case on time.</p> <p> </p> <p>I now consider the length of the delay and the explanation of such delay. In the main application the applicants filed and served a notice of opposition and opposing affidavit on the 21st September 2020. This application was filed on the 4th November 2020. In terms of rule 263 (3) of the Rules, respondents had one month from the 21st September 2021, to either file an answering affidavit or set down the main application. The delay was approximately fourteen days out of time. My view is that he delay was not inordinate.</p> <p> </p> <p>According to the respondents to delay in filing an answering affidavit or setting down the main application was caused by new developments, which respondents reasoned would resolve the dispute without the need for further litigation. It averred that the family sought to settle the matter amongst themselves. My view is that the attempt to settle the matter amongst family members negated the fact that the main matter included litigants who were not family members, i.e. the executor and Zemedy Investments (Pvt) Ltd. Further, a litigant cannot unilaterally just stop prosecuting litigation, hoping that there would be an out of court settlement in the matter.  In the result, I come to the conclusion that although the delay in this matter was not inordinate, but the explanation for it is not reasonable. However, the unreasonableness of the explanation for the delay cannot standing alone form the basis for the dismissal of the main application. The other factors should also have to be considered in determining whether or not to dismiss the main application. See: <em>Guardforce Investments (Private) Limited (supra). </em></p> <p> </p> <p>I now turn to the issue of the prospects of success of the main application. The 2nd applicant, Mr Godfrey Mutseyekwa, is a legal practitioner practising under the style of Danziger &amp; Partners, and he is the executor of the estate of the late Ngavaite Jack Chikuni.  In his capacity as the executor, he entered into an agreement of sale with 3rd applicant (Zemedy Investments (Pvt) Ltd) for the sale of estate property, being number 9 Old Bell Road, Kwe Kwe (the property). The respondents contend that the sale of the property was a nullity in that the Master of the High Court had not consented to the sale in terms of the law. Section 120 of the Administration of Estates Act [Chapter 6:01] (Act) says:</p> <p> </p> <p>120 Sale of property otherwise than by auction</p> <p> </p> <p>If, after due inquiry, the Master is of opinion that it would be to the advantage of persons interested in the estate to sell any property belonging to such estate otherwise than by public auction he may, if the will of the deceased contains no provisions to the contrary, grant the necessary authority to the executor so to act.</p> <p> </p> <p>The argument is that the property was sold without the Master’s authority in terms of section 120 of the Act. The executor accepts that the sale of the property was concluded without the Master’s authority. It is however contended that the sale was subject to a suspensive condition, being the master’s consent. Whether a suspensive condition in such an agreement of sale may sanitise the absence of Master’s consent at the point of sale, is for the court hearing the main application to decide.  I hold the view that the reason why the Master’s consent is sought is neither fanciful nor ceremonious, it is because the Master is required to consider whether, among other things the proposed sale is in the interest of the estate. The consent is not for the taking. The master is enjoined to do an inquiry in order to be satisfied that the request to sell the property by private treaty would be to the advantage of the persons interested in the estate. Due inquiry connotes that the Master takes active or positive steps to verify the contents of the application before granting consent. See: <em>Kudzanayi Frank Katsande </em>v <em>Raymond Katsande and Three Others </em>HH 113-2010 at page 7; <em>Maria Salome Katsiga v Hilda Tambudzai Charlie and Nyasha Lovemore Machakaire and Master of High Court and Registrar of Deeds </em>HH 6/09; <em>David Chigodora and Nelia Chigodora v Thomas C. T Rodrigues and Thomas C.T. Rodrigues (N.O) and The Registrar of Deed and The Master of The High Court and The Deputy Sheriff  </em>HH 276/10. 2nd respondent has an explanation as to why he sold the property prior to obtaining the consent of the Master. Whether his explanation would render such sale lawful, is an issue I cannot resolve in this application. However, for the purposes of this application I hold the view that respondents have prospects of success in respect of the argument that the sale is a nullity because the executor sold the property by private treaty prior to obtaining the authority of the Master.</p> <p> </p> <p>3rd applicant is in this case because it purchased the property. In his founding affidavit the executor avers that he is the 2nd applicant and executor testamentary of the estate, and the 3rd applicant’s legal practitioner. It is in such capacities that he is familiar and has personal knowledge of this matter. It is the 3rd applicant which purchased the estate property. In this application the respondents aver that executor sought to benefit the 3rd applicant. Again, in the main application the respondents aver that the executor facilitated the sale of the property to 3rd applicant a company in which he has some interests. In applicants’ heads of argument it is argued that respondents made unfounded accusations of impropriety and self-interests on the part of the executor, an officer of this court, and sought to rely on those allegations to seek the indulgency of condonation to file a court application for review setting aside the sale of the property. It is common cause that the executor, a legal practitioner of this court, sold the property to 3rd applicant. Again, it is clear that 3rd applicant, the purchaser of the property, is his client.</p> <p> </p> <p>The main functions of an executor are to administer and distribute the estate legally, with due care and diligence pursuant to the provisions of the Administration of Estates Act [Chapter 6:01]. To this end, the Act empowers him to take possession of the deceased assets. The administration of the estate therefore vests solely in the executor. This is underpinned by the principle that once there is a duly appointed executor he assumes legal title to the estate, which he has to manage for the benefit of the estate. It is trite that an executor/executrix is the recognized legal representative of a deceased estate. He/she is appointed to administer the estate and to ensure the estate is properly wound up with all assets and liabilities being accounted for. See: <em>Cosma Chiangwa v (1) David Katerere (2) Robert Adrian Campbell Logan (3) Israel Gumunyu (4) Registrar of Deeds (5) Edmond Chivhinge (6) Master of The High Court </em>SC 61/21.</p> <p> </p> <p>The issue is whether the executor had a conflict of interest, i.e. between his duties as executor and the interests of his client, 3rd applicant the purchaser of the property. I take the view that the conflict of interest <em>might</em> have arisen from his duty as the recognized legal representative of a deceased estate, and his duty towards 3rd applicant, his client. The allegations by the respondents of self-interests against the executor cannot be rubbished as “unfounded accusations of impropriety,” they have some substance. This is an issue that this court has to consider in the main application.  The court may find that there was a conflict of interest or there was no such conflict. In essence it is a matter requires a consideration by this court. This is the reason I take the view that on this point the main application has prospects of success.</p> <p> </p> <p>Again respondents contend that The First and Final Liquidation and Distribution Account (Account) contains some omissions and false declaration. The Account was confirmed. It lists the immovable property as the only asset of the estate. It is important to note that the Last will and Testament of the deceased bequeaths to James Chikuni the home in Zhombe and farm machinery. The home and the farm machinery are not listed in the distribution account. Respondents aver in the main application that “such omission and false declaration constitutes a serious irregularity.” A distribution account must be honest and show all the known assets of the deceased. Again on this point, my view is that the main application has prospects of success. All in all I hold the view that the main application has good prospects of success.</p> <p> </p> <p>            I now turn to deal with the issue of prejudice. The founding affidavit to this application does not in any way speak to how the applicants would be prejudiced by the delay in the finalisation of the main application. It is an established principle of our law that an applicant’s cause stands or falls on his founding affidavit and not in an answering affidavit. My view is that allowing the main application to proceed to finality will not be prejudicial to the applicants. Again, there is too much at stake for the respondents which mitigate against the dismissal of the main application for want of prosecution. Respondent have a right to know whether the estate of their father has been administered in terms of the law. Equally important, the 2nd applicant must know whether his administration of the estate was conducted in terms of the requirements of the law.  On the factual matrix of this case, the balance of convenience favours allowing the main application to proceed to finality.</p> <p> </p> <p>In determining this application, I also factor into the equation the fact that the respondents have, though belatedly filed an answering affidavit, heads of argument and applied for a set-down in the main application. The main application awaits a set-down date.<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a> This is a sign that the respondents are serious about prosecuting the main application to finality. Again, the vigorous opposition to the application for dismissal for want of prosecution also shows to some extent that the respondents really intend to prosecute the main application to finality.  </p> <p> </p> <p>In conclusion, it would be an injustice if respondents with good prospects of success on the merits are denied their day in court. Again, rule 236 of the High Court Rules, 1971 provides that when faced with an application for dismissal for want of prosecution, this court is enjoined to consider options other than dismissing the main application. In the circumstances of this case, the appropriate option is to allow the application for condonation to proceed to finality.</p> <p> </p> <p>One last issue requires determination: costs. The general rule in matters of costs is that the successful party should be given his costs, and this rule should not be departed from except where there are good grounds for doing so. In this case there are good grounds to depart from the general rule. It is the inaction of the respondents in the main application that caused the filing of this application. Had respondents prosecuted the main application in terms of the timeline provided in the rules of court, this application would not have been filed. On another note, applicants seeing that this application was vigorously opposed, should have reflected on the propriety of prosecuting this application to the wire. This is a case where justice would be served with a no costs order.</p> <p> </p> <p><strong>Disposition </strong></p> <p> </p> <p>In conclusion, applicants have not made a case for the relief sought, and in the result, I order as follows: this application is dismissed with no order as to costs.</p> <p> </p> <p><em>Danzinger &amp; Partners (Gweru), </em>applicants’ legal practitioner<em>s</em></p> <p><em>Makonese, Chambati &amp; Mataka, </em>respondents’ legal practitioners</p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a>In general the court is always entitled to make reference to its own records and proceedings and to take note of its contents. See: <em>Mhungu v Mtindi </em>1986 (2) ZLR 171 (SC).</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/2021/143/2021-zwbhc-143.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=33400">2021-zwbhc-143.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/2021/143/2021-zwbhc-143.pdf" type="application/pdf; length=347256">2021-zwbhc-143.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/administration-estates">ADMINISTRATION OF ESTATES</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/executoradministrator-deceaseds-estate">Executor/Administrator of deceased&#039;s estate</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/claims-made-behalf-estate">claims made on behalf of estate</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/duties">duties of</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/application-practice-and-procedure">Application (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-dismissal-action">application for dismissal of action</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/application-condonation">application for condonation</a></li><li class="vocabulary-links field-item odd"><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 even"><a href="/tags-local/locus-standi-0">Locus standi</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/2016/24">GuardForce Inv. (Pvt) Ltd. v Ndlovu &amp; Others (SC 24/16 Civil Appeal No. SC 20/14) [2016] ZWSC 24 (31 May 2016);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2021/61">Chiangwa v Katerere And 5 Others (SC 61-21, Civil Appeal No. SC 433/19) [2021] ZWSC 61 (24 May 2021);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2010/113">Katsande v Katsande and Others (HC1359/09) [2010] ZWHHC 113 (30 June 2010);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2009/6">Katsiga v Charlie and Others (HC 2059/07) [2009] ZWHHC 6 (04 February 2009);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2010/276">Chigodora and Another v Rodrigues and Others (HC 3796/05) [2010] ZWHHC 276 (28 December 2010);</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/1929/12">Administration of Estates Act [Chapter 6:01]</a></div></div></div> Thu, 12 Aug 2021 12:47:46 +0000 Sandra 10094 at https://old.zimlii.org Ndangariro v Mpofu And Anor (Judgment No. HB 145/21, HC 1079/21) [2021] ZWBHC 145 (02 August 2021); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2021/145 <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="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/145/2021-zwbhc-145.pdf" type="application/pdf; length=191027">2021-zwbhc-145.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/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/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/urgent-application">Urgent Application</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/certificate-urgency">certificate of urgency</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interdict-sought-provisional-relief-urgent-application">interdict sought as provisional relief (Urgent Application)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/what-constitutes-urgency-urgent-application">what constitutes urgency (Urgent application)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/when-may-be-made-urgent-application">when may be made (Urgent application)</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/2007/7">Triple C Pigs (Partnership) and Another v Commissioner General Zimbabwe Authority Revenue (HC 7270/06) [2007] ZWHHC 7 (17 January 2007);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2006/117">Document Support Centre (Private) Limited v Mapuvire (HC 6314/06) [2006] ZWHHC 117 (30 October 2006);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2004/48">Dexprint Investments v Ace Property &amp; Investments (Private) Limited and Others (HH 48-2004 ) [2004] ZWHHC 48 (27 January 2004);</a></div></div></div> Thu, 12 Aug 2021 07:36:50 +0000 Sandra 10092 at https://old.zimlii.org Muchenurwa v Double M Prospects And Anor (Judgment No. HB 147/21) [2021] ZWBHC 147 (30 July 2021); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2021/147 <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/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/grant-interdict">Grant of interdict</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/requirements-interdict">Requirements for interdict</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/urgent-application">Urgent Application</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/interdict-sought-provisional-relief-urgent-application">interdict sought as provisional relief (Urgent Application)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/what-constitutes-urgency-urgent-application">what constitutes urgency (Urgent application)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-may-be-made-urgent-application">when may be made (Urgent application)</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/1961/38">Mines and Minerals Act [Chapter 21:05]</a></div></div></div> Thu, 12 Aug 2021 06:34:10 +0000 Sandra 10090 at https://old.zimlii.org Maphisa v City of Harare (Judgment No. SC 91/21) [2021] ZWSC 91 (25 March 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/91 <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. 91/21</p> <p>Civil Appeal No. SCB 82/20</p> <p> </p> <p><strong>DISTRIBUTABLE</strong><strong>              (88)                           </strong></p> <p> </p> <p><strong>ELPHAS     M     MAPHISA</strong></p> <p><strong>v</strong></p> <p><strong>CITY     OF     BULAWAYO</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GUVAVA JA, UCHENA JA &amp; CHITAKUNYE AJA</strong></p> <p><strong>BULAWAYO: 22 &amp; 25 MARCH, 2021</strong></p> <p> </p> <p>Appellant in person</p> <p><em>T. Dube</em>, for the respondent</p> <p> </p> <p>                   <strong>UCHENA JA</strong>:    This is an appeal against the whole judgment of the High Court Bulawayo dated 23 July 2020, which dismissed the appellant’s appeal against the decision of the Magistrate’s Court granting the respondent summary judgment against him.</p> <p> </p> <p><strong>BACKGROUND FACTS</strong></p> <p> </p> <p>       The appellant is the owner of a residential property known as number 18 Pingstone Road Kumalo within the City of Bulawayo. His property’s account number is 34452705. He, as is the norm, was billed for water and rates between August 2013 and November 2018. He did not pay his bills leading to an accumulated debt of US$4 601.50. He says he did not pay the bills because:</p> <ol> <li>He wanted to be billed separately for water and rates citing s 281 of the Urban Councils Act [<em>Chapter 29:15</em>].</li> <li>That he should not be billed in US dollars when that currency was not available; and</li> <li>That the respondent had not disclosed the particulars of the Urban Councils Act under which the bill was based.</li> </ol> <p> </p> <p>                    In terms of s 281 (1) of the Urban Councils Act the respondent sent a final letter of demand to the appellant on 16 March 2018. The appellant did not pay. As a result on 1 November 2018 the respondent issued summons against the appellant in the Magistrate’s Court. He still did not pay for the, reasons already explained above. On 13 November 2018 he entered an appearance to defend. Thereafter on 16 May 2019 the respondent applied for summary judgment.</p> <p> </p> <p>                   After taking into consideration the changes which had taken place due to the coming into force of the Magistrate’s Court Rules 2019 the Magistrate’s Court granted the respondent’s application for summary judgment. It held that the appellant did not have a <em>bona fide</em> defence to the respondent’s claim and that he had entered appearance to defend for purposes of delaying the inevitable eventual payment of the respondent’s claim.</p> <p> </p> <p>                   Aggrieved by the granting of summary judgment the appellant appealed to the court <em>a quo</em>. In his grounds of appeal he raised two issues that he had not been billed separately for rates and water, and that the application for summary judgment had been made more than 7 days after entry of his appearance to defend. The respondent opposed the appeal. On hearing the appeal the court <em>a quo </em>held that the application for summary judgment was made in terms of the rules and the appellant had no <em>bona fide</em> defence to the respondent’s claim. He dismissed the appeal with costs on the higher scale holding that the appeal marks vexatious conduct and an abuse of the process of court. Undeterred the appellant appealed to this Court on four grounds which raise the following issues:</p> <ol> <li>Whether the application for summary judgment was made in terms of the rules.</li> <li>Whether the appellant had a defence to the respondent’s claim.</li> </ol> <p> </p> <p><strong>SUBMISSIONS ON APPEAL.</strong></p> <p>                   The appellant who appeared in person submitted that:</p> <ol> <li>He should have been billed separately for rates and water and</li> <li>That the summary judgment granted by the Magistrate’s Court and was upheld by the court <em>a quo</em> was irregularly granted because according to the 1980 Rules summary judgment should be applied for within seven days after the defendant’s entry of appearance to defend.</li> </ol> <p> </p> <p>                   In response Mr <em>Dube</em> for the respondent submitted that the Magistrate’s Court Rules 1980 were no longer applicable when summary judgment was applied for on 16 May 2019 as they had been replaced by the Magistrates’ Court Rules 2019 on 1 February 2019. On the issue of ss 279 and 281 of the Urban Councils Act he submitted that these sections do not entitle the appellant to be billed separately for rates and water but merely provide for the procedure to be followed by the respondent when suing for unpaid rates and water bills.</p> <p> </p> <p> </p> <p><strong>THE LAW.</strong></p> <p>                   The Magistrate’s Court (Civil) Rules 1980 were repealed and substituted by The Magistrate’s Court (Civil) Rules 2019. The Magistrates (Civil) Court Rules 2019 came into operation on 1 February 2019. Therefore from 1 February 2019 the 1980 Rules were no longer in use. The procedure to be followed was that provided in the Magistrate’s Court Rules 2019.</p> <p> </p> <p>                   Order 15 Rule 1 and 2 of the Magistrates’s Court (Civil) Rules 1980 which provided for when an application for summary judgment could be made provided as follows:</p> <p><strong><em>“1. When application for summary judgment may be made</em></strong></p> <ol> <li>Where a defendant has entered an appearance to defend, the plaintiff, whether in convention or reconvention, may apply to the court for summary judgment on any claim in the summons which is only—</li> </ol> <p>(<em>a</em>) on a liquid document; or</p> <p>(<em>b</em>) for a liquidated amount in money; or</p> <p>(<em>c</em>) for the delivery of specified movable property; or</p> <p>(<em>d</em>) for ejectment; or</p> <p>(<em>e</em>) for any two or more such matters as are described in paragraph (<em>a</em>), (<em>b</em>), (<em>c</em>)</p> <p>       or (<em>d</em>); in addition to costs.</p> <ol> <li>An <strong>application in terms of subrule (1) shall be made on not less than seven days’ notice delivered not more than seven days after the date of the defendant’s appearance to defend,</strong> and the plaintiff shall deliver with such notice—</li> </ol> <ol> <li>if the claim is illiquid, a copy of an affidavit, made by himself or by any other</li> </ol> <p>person who can swear positively to the facts—</p> <ol> <li>verifying the cause of action and the amount  claimed, if any; and</li> <li>stating that in his belief there is not a <em>bona fide </em>defence to the action and</li> </ol> <p>that appearance has been entered solely for the purpose of delay;</p> <ol> <li>if the claim is liquid, a copy of the liquid document on which the claim is</li> </ol> <p>founded” (emphasis added)</p> <p> </p> <p> </p> <p>                   Therefore in terms of the 1980 Magistrate’s Court (Civil) Rules an application for summary judgment could be made ‘on not less than seven days’ notice delivered not more than seven days after the date of the defendant’s appearance to defend<strong>.</strong></p> <p> </p> <p>                   The 1980 Rules were repealed and replaced by Statutory Instrument 11 of 2019 which according to Order 1 r 2 came into operation on 1 February 2019.</p> <p> </p> <p>                   Order 15 r 1 sub r (2) of the 2019 Rules which provides for applications for summary judgment reads as follows:</p> <p>“(2) An application in terms of sub rule (1) <strong>shall be made at any time before the holding </strong></p> <p><strong>       of a pre-trial conference,</strong> upon seven days’ notice—“ (emphasis added)</p> <p>                </p> <p> </p> <p>                   It therefore follows that after the coming into force of the 2019 Rules, summary judgment can be applied for at any time before the holding of a pre-trial conference.</p> <p> </p> <p>                   Sections 279 and 281 of the Urban Councils Act which the appellant relied on for his submission that he was entitled to separate rates and water bills provide as follows:</p> <p>“<strong>279 Liability to pay rate</strong></p> <ol> <li>The person who is the owner of any property on the date on which any rate fixed and levied by the council becomes due and payable shall be primarily liable for that rate.</li> <li>If, on the date on which a rate becomes due and payable, the owner primarily liable has failed to pay that rate, a demand in writing may be served on him requiring him to pay the amount stated therein within fourteen days of the service of the demand.</li> <li>If the owner primarily liable for a rate fails to comply with the demand referred to in subsection (2), then any person who at any time during the period in respect of which such rate was fixed and levied—</li> </ol> <ol> <li>is the occupier of the property concerned shall, if a demand in writing is served on him by the council, be liable for such rate together with any other unpaid rates in respect of such property, not exceeding the amount of any rent in respect of such property due by him but not yet paid at the time of the demand and shall thereafter continue to pay such rents to the council until the amount of the unpaid rates has been paid off;</li> <li>as agent or otherwise, receives any rent in respect of such property, shall, if a demand in writing is served on him by the council, be liable for such rate, together with any other unpaid rates in respect of that property, not exceeding the amount of any such rent paid to him subsequent to that demand, subject to the deduction by the agent of commission due to him for the collection of that rent.</li> </ol> <ol> <li>The persons referred to in paragraphs (<em>a</em>) and (<em>b</em>) of subsection (3) shall be liable for the rates to the amount specified therein jointly and severally with each other and with the owner primarily liable.</li> <li>Any person referred to in subsection (3) who has paid any rate in terms of that subsection may deduct from any rent payable by him to the owner so much as was so paid by him to the council, and the production of the receipts for the rates so paid shall be a discharge for the amount so paid as payment of rent to the owner:</li> </ol> <p>All property within a council area shall be rateable by the council, except property which is—Provided that an occupier of property who has entered into an agreement whereby he has accepted liability for payment of the rates due in respect of that property shall not be entitled to make any deduction in terms of this subsection.</p> <p> </p> <p><strong>281 Legal proceedings for recovery of rates</strong></p> <p>No legal proceedings for the recovery of rates shall be instituted against any person referred to—</p> <ol> <li> in subsection (2) of section <em>two hundred and seventy-nine </em>unless the council has</li> </ol> <p>complied with that subsection and the owner has failed within fourteen days to comply with the demand served on him in terms of that subsection requiring him to pay the amount stated therein; or</p> <ol> <li>  in subsection (3) of section <em>two hundred and seventy-nine </em>unless he has failed</li> </ol> <p>within thirty days to comply with the demand served on him in terms of that subsection requiring him to pay the amount stated therein, subject to the maximum amount provided for in that subsection.”</p> <p> </p> <p> </p> <p> </p> <p>                   These sections merely provide for who should pay Council’s bills on demand being made and the procedure to be followed when legal proceedings are instituted.</p> <p> </p> <p><strong>WHETHER THE APPLICATION FOR SUMMARY JUDGMENT WAS MADE IN TERMS OF THE RULES.</strong></p> <p> </p> <p><strong>                   </strong>The judgments of the magistrate’s court and the court <em>a quo</em> clearly explained that the 2019 Magistrates Court Rules came into effect on 1 February 2019. Therefore when the respondent applied for summary judgment on 16 May 2019 the 2019 Rules were the applicable rules. It was then permissible to apply for summary judgment at any time before the holding of a pre-trial conference. The appellant did not take heed. He remained fixated on the 1980 Rules, which were no longer in force.</p> <p> </p> <p>                   The respondent’s application for summary judgment was filed on 16 May 2019 long after the Magistrate’s Court Rules 2019 had come into force and a Pre-trial Conference had not been held. The use of the 2019 Rules justified the filing of the summary judgment application on 16 May 2019 as they were the rules in force since 1 February 2019.</p> <p> </p> <p><strong>WHETHER THE APPELLANT HAD A DEFENCE TO THE RESPONDENT’S CLAIM.</strong></p> <p> </p> <p>                   As regards the interpretation of ss 279 and 281 of the Urban Council Act the court <em>a quo</em> correctly held that they do not provide that the appellant should be billed separately for rates and water. It further held that the bills sent to the appellant had all the information he required for the payment of his rates and water bills. The appellant therefore had no <em>bona fide</em> defence to the respondent’s claim. The court <em>a quo</em> therefore correctly upheld the granting of summary judgment by the Magistrate’s Court.</p> <p> </p> <p><strong>DISIPOSITION</strong></p> <p>                   The appellant’s appeal has no merit. The appellant has unfortunately continued with vexatious litigation. The respondent is entitled to costs at the legal practitioner and client scale.</p> <p> </p> <p>                   The appeal is dismissed with cost on the legal practitioner and client scale.</p> <p> </p> <p> </p> <p> </p> <p><strong>                   GUVAVA JA:</strong>                                        I agree</p> <p> </p> <p> </p> <p><strong>       CHITAKUNYE AJA:</strong>                           I agree</p> <p> </p> <p>Appellant in person.</p> <p><em>James Moyo-Majwabu and Nyoni</em>, respondent’s legal practitioners.</p> <p> </p> <p> </p> <p> </p> <p> </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/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/summary-judgment-see-practice-and-procedure-summary-judgment">summary judgment See PRACTICE AND PROCEDURE (Summary judgment).</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/summary-judgment">Summary judgment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-summary-judgment">application for summary judgment</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/2001/222001">Urban Councils Act, 2015 [Chapter 29:15]</a></div></div></div> Wed, 04 Aug 2021 08:04:42 +0000 Sandra 10087 at https://old.zimlii.org Ngirazi and Another v Rensburg and 2 Others (SC 89-21, Civil Appeal No. SC 333/20) [2021] ZWSC 89 (19 July 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/89 <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 89/21</strong></p> <p><strong>Civil Appeal No. SC 333/20   </strong></p> <p><strong>REPORTABLE</strong><strong>    (86)</strong></p> <p> </p> <p><strong>(1)     KENNEDY     NGIRAZI     (2)     NAN     JIANG     MINE     (PRIVATE)     LIMITED</strong></p> <p><strong>v</strong></p> <p><strong>(1)     EMMANUEL     JAMES     RENSBURG</strong></p> <p><strong>(2)    MEGAMANIA     AUCTIONEERS</strong></p> <p><strong>(3)     SHERIFF    OF     THE     HIGH     COURT     N.O</strong></p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>BHUNU JA, MATHONSI JA &amp; CHIWESHE JA</strong></p> <p><strong>HARARE: 15 JUNE 2021 &amp; 19 JULY 2021 </strong></p> <p> </p> <p><em>G. R. J Sithole</em>, for the appellant</p> <p><em>R. G. Zhuwarara</em> with <em>M. Mbanje</em>, for the respondent</p> <p>No appearance for the second and third respondents</p> <p><strong>MATHONSI JA:  </strong>This is an appeal against the whole judgment of the High Court handed down on 23 July 2020 which declared the first respondent the rightful owner of a Cat Caterpillar Dump Truck 769C. The Caterpillar was purchased by the first respondent at a judicial auction conducted by the Sheriff on 18 October 2019 at Devuli Farm in Bikita.</p> <p> </p> <p>After hearing arguments we issued the following order:</p> <p>“1. The appeal be and is hereby dismissed.</p> <p>2. By consent, the appellant shall pay costs at the ordinary scale.</p> <p>3. The reasons for judgment will be delivered in due course.”</p> <p> </p> <p> </p> <p> </p> <p>What follows hereunder are the reasons for judgment.</p> <p> </p> <p><strong>FACTUAL BACKGROUND</strong></p> <p>                        The Zimbabwe Electricity Transmission and Distribution Company (ZETDC) obtained judgment against Nan Jiang Mine (Pvt) Ltd in case number HC 564/17. In due course a writ of execution was issued against its property and the Sheriff was instructed to sell the property in execution of the judgment of the court.</p> <p> </p> <p>The Cat  Caterpillar which now forms the basis of this appeal was one of the properties placed under attachment on the instructions of Chihambakwe, Mutizwa and Partners, the legal practitioners representing ZETDC. The sale of the properties was duly advertised for 18 October 2019. It was to be conducted <em>in situ</em> at Devuli Farm, in Devuli Range, Bikita.</p> <p> </p> <p>On that date the first respondent participated at the auction and made a bid for the caterpillar. He was declared the highest bidder and paid the sum of $ 141 500.00 as the purchase price for it. He could not immediately collect it after the sale as he had to return to his home in Gweru to make arrangements for transport to convey it to his place.</p> <p> </p> <p>Upon the first respondent’s return to the site on 3 November 2019, he found that the first appellant had removed the Caterpillar and taken it away to an address in Southerton, Harare. After lodging a criminal complaint  with the police, the first respondent filed an application at the High Court in Masvingo for a declaratory order that he was the lawful owner of the Caterpillar. The first respondent also sought consequential relief that it be transported  to his address in Gweru.</p> <p> </p> <p>The basis of the application was that the first respondent had lawfully purchased the machine at an auction conducted in accordance with the law. The first respondent contended that he concluded a valid sale agreement with the Sheriff which had the effect of transferring ownership to him. The conduct of the first appellant in removing his property to a location in Harare was unlawful.</p> <p> </p> <p>In opposing the application the appellants raised a number of issues not relevant in the determination of this appeal. What was germane to the dispute was their contention that after receiving information of the pending auction they made arrangements to settle the judgment debt and the Sheriff’s costs.</p> <p> </p> <p>In that regard, the appellants stated that they had paid to the judgment debtors legal practitioners a sum of money which cleared all that was due in terms of the judgment of the court. They alleged that full payment was made on 18 October 2019, the very date of the auction sale. In their view, it was then incumbent upon the Sheriff to immediately stop the sale in execution and release their property from the shackles of attachment.</p> <p> </p> <p>It was further contended by the appellants that proceeding with the sale when the judgment debt, together with the Sheriffs costs, had been liquidated yielded an invalidity. For that reason the first respondent could not enforce a nullity.</p> <p> </p> <p>The court <em>a quo</em> found that, notwithstanding the appellants’ frantic but belated effort to clear the debt, the judgment creditor had accepted the proceeds of the sale from the Sheriff. It found that the judgment creditor had so accepted the proceeds because the appellants had been untruthful. More importantly, the court <em>a quo</em> found that the correspondence from the judgment creditor’s legal practitioners purpoting to stop the sale had only been received by the Sheriff on 30 October 2019, several days after the auction. Accordingly, there had been no attempt to stop the sale by auction.</p> <p> </p> <p>In light of that, the court <em>a quo</em> concluded that due process had been followed in executing the sale. As such the court could not interfere with the judicial sale. It granted the application for a declaratory order and consequential relief.</p> <p> </p> <p><strong>THE APPEAL</strong></p> <p>                        The appellants were aggrieved by that turn of events. They noted an appeal on six grounds. The first three grounds of appeal seek to impugn the court <em>a quo</em>’s finding that the first respondent was the rightful owner of the Caterpillar on the basis that the auction sale was invalid. It ought to have been stopped because the debt had been cleared.</p> <p> </p> <p>                        The remaining grounds which seek to attack the judgment <em>a quo</em> on an alleged “serious dispute of facts”, and the alleged citation of a non-existent litigant are clearly extraneous. This is in light of the court <em>a quo</em> having resolved any perceived disputes on the papers and the fact that the appellants’ complaint that the property belonged to Nan Jiang Africa Resources (Pvt) Ltd and not Nan Jiang Mine was misplaced.</p> <p> </p> <p>                        If indeed that was the case, the appellants, or is it Nan Jiang Africa Resources (Pvt) Ltd, had an alternative remedy. It should have made a claim to the property before it was sold. That way the Sheriff would have instituted interpleader proceedings. It was not open to the present appellants, not being Nan Jiang Africa Resources (Pvt) Ltd to use the alleged misjoinder to try and ward off the enforcement of the sale agreement.</p> <p> </p> <p>                        Only one issue emerges from  the remaining grounds of appeal. It is whether the first respondent and the Sheriff concluded a valid sale on 18 October 2019.</p> <p> </p> <p><strong>WHETHER THERE WAS A VALID SALE</strong></p> <p>                        Two critical principles are central in the determination of this appeal. First, where the lower court has made factual findings in resolving the dispute between the parties, as a general rule, an appellate court will not interfere with such findings unless they are grossly unreasonable to the extent that no reasonable tribunal applying its mind to the same facts could have reached that conclusion.</p> <p>                        It is sometimes said that for the appellate court to interfere with factual findings such finding must be irrational. The finding complained of must be so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his or her mind to the question to be decided could have arrived at such a conclusion. See <em>Hama v National Railways of Zimbabwe</em> 1996 (1) ZLR 664 (S) at 670 C-E; <em>Metallon Gold Zimbabwe v Golden Million (Pvt) Ltd</em> SC 12/15.</p> <p>                        The court <em>a quo</em> made a factual finding that despite the electronic mail from Chihambakwe, Mutizwa and Partners bearing the date of 18 October 2019, it was only delivered to the Sheriff on 30 October 2019. This was 12 days after the sale. It was not suggested either before the court <em>a quo</em> or this Court that the legal practitioner had used any other means to communicate their instruction to suspend the sale. I mention in passing that a diligent person, be it the debtor or the legal practitioner, would have contacted the Sheriff by telephone to alert him of the settlement  of the debt. This is so because on the date of the alleged payment, an auction was taking place, to the knowledge of all concerned.</p> <p> </p> <p>                        The court <em>a quo</em> cannot be faulted for finding that the auction sale was not stopped and the writ of execution was never withdrawn. In the absence of evidence of stopping the sale timeously and/or withdrawing the writ from the Sheriff, it follows that a valid sale was conducted on 18 October 2019. It led to the lawful transfer of ownership in the caterpillar to the first respondent.</p> <p> </p> <p>                        In addition, the court <em>a quo</em> made a finding that in fact the appellants’ claim that they paid off the debt was not established. This is because the judgment creditor had accepted payment of the proceeds of the sale from the Sheriff. I should add that in arriving at that conclusion, the court <em>a quo</em> had examined correspondence between the Sheriff and the judgment debtor’s lawyers. It also had the benefit of the Sheriff’s report.</p> <p> </p> <p>                        Submissions made on appeal on behalf of the appellants do not come anywhere near suggesting that those factual findings were irrational. In my view they are sound and based on credible evidence. No basis for interference is established.</p> <p> </p> <p>The second principle central to the determination of the appeal is that courts of law will not readily interfere with judicial sales in execution in order to protect their efficacy especially after confirmation or transfer. See <em>Kanoyangwa v Messenger of Court &amp; Others </em>SC 68/06. The remarks of this Court in <em>Walezim Investments(Pvt) Ltd v The Sheriff of the High Court</em> SC 44/21 are opposite:</p> <p>            “Sales in execution should not be easily interfered  with after they have been confirmed because this can render the execution process nugatory as the general public will lose confidence in the same. Judgment debtors are given ample time to settle their debts and if they fail to utilize such opportunities they should not be allowed to frustrate the consequent process that follows.”</p> <p>                        In my view, the court <em>a quo</em> was correct in finding that due process was followed in conducting the sale. The sale could not be interfered with on the fanciful reasons advanced by the appellants. There is demonstrably no merit in the appeal.</p> <p> </p> <p>                        On the issue of costs, Mr <em>Sithole</em> who appeared for the appellants made a tender of costs on the ordinary scale. The view of the court is that the tender was properly made. I should point out that after the interventions of the court, Mr Sithole could not advance any meaningful argument to motivate what was clearly a meritless appeal. His hands were however, tied in that his instructing counsel restrained him from making any further concessions.</p> <p>                        It is for these reasons that we issued the order set out above.</p> <p> </p> <p><strong>BHUNU JA</strong>                                                   I agree</p> <p><strong>CHIWESHE JA        </strong>                                    I agree</p> <p><em>Magaya &amp; Mandizvidza</em>, appellant’s legal practitioners</p> <p><em>Kwiriwiri Law Chambers</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/supreme-court-zimbabwe/2021/89/2021-zwsc-89.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=40458">2021-zwsc-89.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/2021/89/2021-zwsc-89.pdf" type="application/pdf; length=328118">2021-zwsc-89.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/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/property-and-real-rights">PROPERTY AND REAL RIGHTS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/ownership-0">Ownership</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/acquisition-ownership">acquisition of ownership</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/2007/97-0">Kanoyangwa v Messenger of Court and Others ( (68/06) ) [2007] ZWSC 97 (05 March 2007);</a></div></div></div> Tue, 27 Jul 2021 08:34:05 +0000 Sandra 10086 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 Sachiti And Another v Mukaronda (HMT 38-21, HC 42/21) [2021] ZWMTHC (21 June 2021); https://old.zimlii.org/zw/judgment/mutare-high-court/2021/38 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HMT 38-21</p> <p>HC 42/21</p> <p>TIMOTHY SACHITI</p> <p>and</p> <p>ALICE SACHITI</p> <p>versus</p> <p>GIFT MUKARONDA</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUZENDA J</p> <p>MUTARE, 21 June 2021</p> <p> </p> <p><strong>Opposed Application: Reasons for Judgment.</strong></p> <p> </p> <p>Applicants in Person</p> <p><em>D. Tandiri</em>, for the Respondent</p> <p>            MUZENDA J: This is an application for Rescission of Judgment made in terms of Order 49, Rule 449 of the High Court Rules, 1971, where the two applicants who are husband and wife are seeking the following relief.</p> <p> </p> <p>            <em>“IT IS ORDERED THAT:-</em></p> <ol> <li><em>Rescission of judgement be and is hereby granted in favour of the applicants</em></li> <li><em>The order in case No. HC 19/18, be and is hereby set aside.</em></li> <li><em>An order be issued to cancel all documents issued to effect this order.</em></li> <li><em>The record be and is hereby referred to the Registrar for a re-set down</em></li> <li><em>The respondent to bear all costs.”  </em></li> </ol> <p> </p> <p>The application is opposed by the respondent.</p> <p> </p> <p>Background Facts.</p> <p>      On 13 July 2018 parties signed an order by consent before MWAYERA J (as she then was) and resolved a dispute between the applicants and respondent pertaining to change of ownership of Toyota Ipsum Registration number ABO 4985 into the names of the  applicants. Applicants agreed to effect transfer of title in respect of stand 3279 Umtali Township Lands to Onesmo Bhasera and sign all documents required for transfer. The order by consent was consolidated by a Deed of Settlement signed by the applicants, Gift Mukaronda, and Mr <em>D Tandiri</em>, representing Mr Mukaronda. The parties signed the deed on 7 August 2018 which had patent errors on the numbering of paragraphs to the draft order where the paragraphs or clauses started from 6 to 9 then 5 to 6. The order issued by the Deputy Registrar dated 23 October 2018 reflects the paragraphs as being 6 to 11. On 24 October 2018 applicants noted the errors and alerted respondent’s legal practitioners in order to attend to the errors in numbering the paragraphs. On 15 March 2021 a corrected order was issued by the Registrar capturing virtually the same contents of the Deed of Settlement. A number of correspondences were exchanged between the parties dealing with the substance of the order and fulfilment of each party’s obligations arising out of the deed of settlement. On 31 March the applicants approached this court with the current application. In their founding affidavits they outlined the history of the matter and state that although the history of the matter state that respondent took occupation of the immovable property he breached the deed of settlement by failed to pay capital gains tax to the Zimbabwe Revenue Authority, failing to pay City of Mutare bills and did not transfer ownership of the car to them. The two applicants contend that the agreement of sale had prescribed. The applicants went on to blame respondent’s legal practitioners for producing a wrong document calling it order by consent and that the order by consent was produced in their absence. They went on to allude to the wrong numbering of paragraphs as outlined herein above. The applicants further aver that the order by consent was issued on 7 August 2018 and they became aware of same on 18 October 2018 and they went on to cite Rule 63 of the High Court 1971 stating that for one to proceed in terms of Rule 63 one should show good and sufficient cause to have the judgment set aside. They added that in terms of Rule 449 of the High Court Rules, a court can make an order correcting rescinding or varying a judgment that was erroneously granted in the absence of a party.</p> <p>      The applicants indicated in their founding affidavits that they are seeking rescission on the grounds that the default judgment was granted in error and therefore should be set aside. They pointed out that there are clear differences in content between contents of the deed of settlement and order by consent. Having said that applicants went on to state that the respondent has no intention of complying with what was agreed on and signed by the parties in the deed of settlement and the two prayed for the order specified in the draft.</p> <p>      The respondent raised a preliminary point relating to the delay in filing an application for rescission of judgment. Applicants took two and half years to lodge the application, respondent averred. No explanation for such delay was not supplied by the applicants and they used the wrong Rule of High Court Rules, applicants ought to have used rule 56 to have an order by consent set aside, not to apply for rescission of judgement in terms of Rule 449, they were expected to apply for the setting aside of the judgment by consent and on paper the applicants have failed to satisfy the requirements to have a judgment by consent be set aside.</p> <p>      On the merit of the application, respondent disputes that he breached conditions of the deed of settlement. He is willing to pay capital gains tax, he has since changed ownership of the car to reflect first applicant’s name and applicants refused to accept the motor vehicle’s number plates. On 31 July and 7 August 2018 parties attended a pre-trial conferences which culminated, in the presence of both applicants. According to the respondent applicants refused to sign the application for capital gains tax clearance certificate. Respondent goes on further to state that both rules 63 and 449 of High Court Rules, 1971 do not apply in this matter because no default judgment was granted by the court. In any case the court did not make any error and if there was an error that error could have originated from the parties. As a result the respondent sees no basis for the rescission of the judgment by consent and prayer for the dismissal of the application with costs on legal practitioners-client scale.</p> <p> </p> <p>The law </p> <p>      <strong>Order 9  Rule 63</strong> provides that a court may set aside judgment given in default.</p> <p> </p> <ol> <li><em>“A party against whom judgment has been given in default whether under these rules or under any other law, may make a court application, not later than one month after he has had knowledge of the judgment, for the judgment to be set aside. </em></li> <li><em>If the court is satisfied on an application in terms of Subrule (1) that there is good and sufficient cause to do so, he court may set aside the judgment and give leave to the defendant to defend or to the plaintiff to prosecute his action on such terms as to costs and otherwise as the court considers just.”</em></li> </ol> <p> </p> <p><strong>Order 8 Rule 56</strong>: Court may set aside judgment given by consent</p> <p>“A judgment given by consent under these rules may be set aside by the court and leave may be given to the defendant to defend, or to the plaintiff to prosecute his action. Such leave shall only be given on good and sufficient cause and upon such terms as to costs and otherwise as the court deems just”</p> <p>     </p> <p><strong>Order 49 Rule 449</strong>: Correction variation and rescission of judgment and orders.</p> <ol> <li><strong>The court or a judge may in addition to any other power it or he may have, <em>mero molu</em> or upon the application of any party affected, correct, rescind, or vary any judgment or order -----</strong></li> </ol> <ol> <li>That was erroneously sought or erroneously granted in the absence of any party affected thereby: or</li> <li>In which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission, or</li> <li>That was granted as the result of a mistake common to the parties.</li> </ol> <p> </p> <p>Analysis</p> <p>            The order being sought by the applicants to be rescinded was borne out of a consent order and not granted in default of the other party. Both applicants appended their signatures to the draft and the draft become final order when the judge signed it. It cannot be adjudged to have been granted in error or default judgement at all. Hence where a judgement was entered by consent rule 63 of the High Court Rule, 1971 does not apply in my view. If the applicants were not happy with the judgment by consent their recourse lies in rule 56 and such an order by consent can be set aside on grounds of fraud, discovery of new documents, error or irregularities in procedure<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a> the success or otherwise of such an application depends on the circumstances which gave birth to the consent order. I am satisfied that the judgment in dispute was borne out of the parties genuine efforts to settle the dispute by way of a consent order, and the applicants effort to have order rescinded is to withdraw from the entire agreement between them and respondent.</p> <p>            Rule 449(1) of the High Court Rules, 1971 requires an applicant to establish that the judgment was erroneously sought or granted, the judgment was granted in the absence of the applicant or one of the parties and that the applicant’s rights or interests were affected by the judgment<a href="#_ftn2" name="_ftnref2" title="" id="_ftnref2">[2]</a>. I did not hear applicants submitting any argument to prove any of these grounds. I am equally satisfied that applicants did not establish requirements of rule 449 and equally so used a wrong procedure. In their founding papers the applicants juggled between rule 63 and rule 449. Its not clear as to which rule they wish to rely on in the application.</p> <p> </p> <p>Respondent’s preliminary points are valid and the application is dismissed with costs.</p> <p> </p> <p><em>TandiriLaw Chambers</em>, Respondent’s  legal practitioners</p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> Washaya v Washaya 1989 (2) ZLR 195, Mukundadzviti v Mutasa 1990 (1)ZLR 342</p> <p><a href="#_ftnref2" name="_ftn2" title="" id="_ftn2">[2]</a> Mshosho v Mudimu &amp; another HH443/13</p> <p>  Mutebwa v Mutebwa &amp; another 2001(2) SA 193</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/mutare-high-court/2021/38/2021-zwmthc.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=25328">2021-zwmthc.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/mutare-high-court/2021/38/2021-zwmthc.pdf" type="application/pdf; length=436750">2021-zwmthc.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/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/correction-judgment">correction of judgment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/order-practice-and-procedure">Order (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/order-consent">order by consent</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rescission-judgment">Rescission of judgment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-rescission-judgment">application for rescission of judgment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/principles-rescission-judgment">principles (Rescission of judgment)</a></li></ul></span> Fri, 16 Jul 2021 07:59:49 +0000 Sandra 10084 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 Zimbabwe Homeless Peoples Federation And Another v Minister of Local Government and National Housing And 3 Others (SC 78-21, Civil Appeal No. SC 118/19) [2021] ZWSC 78 (24 June 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/78 <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 78/21</p> <p>Civil Appeal No. SC 118/19</p> <p> </p> <p><strong>REPORTABLE:</strong><strong>      (75)</strong></p> <ol> <li><strong>    ZIMBABWE     HOMELESS     PEOPLES     FEDERATION     (2)     TAWONGA     SAVING     SCHEME     (3)     NGWARU     MASANZA</strong></li> </ol> <p><strong>v</strong></p> <ol> <li><strong>    MINISTER     OF     LOCAL     GOVERNMENT     AND     NATIONAL     HOUSING     (2)     ZVIMBA     RURAL     DISTRICT     COUNCIL     (3)     LEENGATE     PRIVATE     LIMITED     (4)     MINISTER     OF     LANDS,     LAND     REFORM     AND     RESETTLEMENT</strong></li> </ol> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GARWE JA, MAVANGIRA JA &amp; MATHONSI JA</strong></p> <p><strong>HARARE: 14 SEPTEMBER 2019 &amp; 24 JUNE 2021</strong></p> <p> </p> <p><em>N. Munetsi,</em> for the appellant</p> <p><em>V. Munyoro</em>, for the first and fourth respondents</p> <p>L. Uriri, for the third respondent</p> <p><strong>GARWE JA</strong></p> <p>[1]        After hearing argument from the parties, the High Court of Zimbabwe made an order dismissing the application filed by the appellants in terms of s 85 (1) of the Constitution of Zimbabwe.  The court also ordered the appellants to pay the costs of the application.  This followed a finding by the court that the appellants could not properly seek to enforce their right to shelter in terms of s 85 of the Constitution of Zimbabwe as such a right was not a fundamental right enshrined in Chapter 4 of the Constitution which contains the declaration of rights.  The court further found that the right to shelter was one of the national objectives under Chapter 2 of the Constitution and therefore not justiciable. This appeal is against that determination.</p> <p><em>FACTUAL BACKGROUND</em></p> <p>[2]        The first appellant, the Zimbabwe Homeless Peoples Federation, is a <em>universitas</em> at law with an active membership said to be ten thousand homeless people who contribute and pool their resources together for the purpose of achieving and attaining the goal for housing for poor homeless people. The second appellant, Tawonga Savings Scheme, is a saving scheme established in terms of its constitution with the power to sue and be sued. The third appellant is a resident of Newpark informal settlement situated at Haydon Farm along the Old Mazoe Road.</p> <p> </p> <p>[3]        Although counsel for appellants attempted, unsuccessfully, to urge the court <em>a quo </em>and this Court to accept that the application brought by the first and second appellants in the court was not in terms of s 85 (1) of the Constitution of Zimbabwe, it is clear, when all is said and done, that all three appellants approached the court <em>a quo </em>in terms of s 85 (1) of the Constitution. This is an aspect I will revert to in the course of this judgment as it has an important bearing on whether or not the appellants were properly non-suited by the court <em>a quo </em>on the basis that they could not seek relief in terms of s 85 of the Constitution.</p> <p> </p> <p>[4]        The first respondent is the Minister of Local Government and National Housing whose Ministry is responsible for national housing and the administration of local authorities in Zimbabwe. He is hereinafter referred to as “the Minister” of Local Government. The second respondent is Zvimba Rural District Council, a local authority that operates under the aegis of the first respondent. It will be referred to in this judgment simply as “the Council”. It is the local authority for Haydon Farm which is at the centre of the dispute between the parties herein.  The third respondent is Leengate (Pvt) Ltd (“Leengate”), a private company involved in housing development. It was this company which was given the right to develop a portion of the farm in question.  The fourth respondent is the Minister of Lands, Land Reform and Rural Resettlement, the acquiring authority of the farm.  He is hereinafter referred to as “the Minister of Lands”. It was the Minister of Lands who handed over the farm to the Minister of Local Government for housing development who, in turn, allocated it to the Council and Leengate.</p> <p> </p> <p>[5]        Members of the Tawonga Savings Scheme, including the third appellant herein, took occupation of Haydon Farm sometime in 2000, during the height of the land reform programme. They proceeded to construct fixtures, some permanent, but these were demolished in 2005 during a government operation that came to be referred to as Operation Murambatsvina. It was shortly thereafter that the land in question was acquired by the State pursuant to Constitutional Amendment No 17 after which it became State land. The informal settlement at the farm was not regularised. In due course the third respondent, Leengate, was offered a hundred hectares of the land for residential development. It is common cause that some of the appellants occupy part of the land that was offered to Leengate for development.</p> <p> </p> <p>[6]        It is not in dispute that Leengate proceeded to have the land surveyed after which roads and storm drains were constructed thereon. Leengate proceeded to develop a hundred and fifty stands which it then sold to the public. About forty per cent of this land is still occupied by the second appellant’s members.</p> <p> </p> <p><em>PROCEEDINGS BEFORE THE HIGH COURT</em></p> <p>[7]        In their founding papers before the High Court, the appellants averred that Council and Leengate then began to threaten them and proceeded to evict some of them from the farm.  They gave notice to the remaining occupants to vacate the farm by a given date. The appellants contended that the evictions were a breach of their rights enshrined under ss 28, 44, 48, 51, 56 (1) and 77 of the Constitution. They argued that, whilst there was no specific right to shelter or housing in the Declaration of Rights, other than for children, the right to dignity (S 48) necessarily incorporates the right to shelter as the latter right would be meaningless without the concomitant right to food and shelter. The appellants therefore sought an order interdicting the Council and Leengate from evicting them.  They also sought orders compelling the Minister of Local Government and the Council to allocate serviced stands to them as well as construct basic houses for them. Alternatively they sought an order compelling the Minister of Local Government and the Minister of Lands to provide them with alternative land and serviced stands thereon. An application to further amend the prayer was abandoned at the hearing of this matter.  </p> <p> </p> <p> [8]       All the respondents, including the City of Harare against which the application was subsequently withdrawn, opposed the application to interdict what the appellants termed forced evictions. The Minister of Local Government and the Minister of Lands took the common position that the land in question was State land and that the appellants had no lawful authority to occupy, use or hold it. They contended that the right to shelter was not part of the Bill of Rights and therefore the appellants could not seek relief against them in terms of s 85 of the Constitution. Leengate on the other hand averred that the appellants’ occupation of the farm was illegal and that, as a corollary, they had no right of audience before the court. Leengate also submitted that there had been no illegal evictions undertaken by itself or at its instance. Instead what it had done was follow due process and to institute eviction proceedings against the appellants in the Magistrates’ Court.  Leengate further submitted that as the right to shelter was not entrenched in the Constitution, the appellants therefore had no cause of action against it pursuant to s 85 of the Constitution.</p> <p> </p> <p>[9]        In its determination, the court <em>a quo </em>found that all the applicants had approached the court in terms of s 85(1)(d), 85(1)(e) and 85(1)(a) respectively. The court held that s 85(1) was available to litigants who sought to enforce rights enshrined under the Declaration of Rights in Chapter 4. It found that since the right to shelter was not part of the Declaration of Rights, the appellants could not have properly approached the court in terms of s 85(1) alleging a breach of a fundamental right.  The court found it unnecessary to determine the merits of the matter and, consequently, dismissed the application with costs.</p> <p> </p> <p><em>PROCEEDINGS BEFORE THIS COURT</em></p> <p>[10]      Aggrieved by the above determination, the appellants noted an appeal to this Court. They alleged that the court <em>a quo</em> had erred in three respects:</p> <ul> <li>Firstly, in failing to recognise the right of shelter on the basis that it is not included in Chapter 4 of the Constitution whereas s 47 of the Constitution, which is part of the Bill of Rights, provides that Chapter 4 does not preclude the existence of other rights and freedoms that may be recognised or conferred by law, to the extent that they are consistent with the Constitution.</li> <li>Secondly, in finding that the appellants could not approach the court in terms of s 85 of the Constitution when there was in existence s 47 of the same Constitution which recognised the existence of other rights and freedoms conferred by the law.</li> <li>In not making a determination on the merits through the selective application of Chapter 4, when the very same Chapter contains the non-exclusionary clause under s 47 of the same Constitution.</li> </ul> <p> </p> <p>[11]      Both in his heads of argument and oral submissions, counsel for the third respondent raised the preliminary point that the appellants’ heads of argument were not compliant with r 52(2) of the Supreme Court Rules, 2018. Although the parties had agreed before the hearing not to pursue the preliminary points taken by the respondents in their respective heads of argument, all addressed the court on whether there were proper heads of argument filed by the appellants before the court. The court directed the parties to address it on all the issues that required determination by this Court.   </p> <p> </p> <p>[12]      Counsel for the appellants argued that the rationale for the lengthy and comprehensive heads of argument was that this was the first case before this Court dealing with socio-economic rights that speak to an extension of the right to dignity, life and equal protection of the law relating to housing. It was as a result of the need to give a historical context of the right to housing in relation to other fundamental rights that it was felt necessary to capture domestic and private international law and to provide a comparative analysis of the approach taken by other developing countries.</p> <p> </p> <p> [13]     On the merits, counsel for the appellants submitted that the right to shelter ought to be declared a fundamental right pursuant to s 47 of the Constitution.  She further argued that the right to life, dignity and equal protection of the law do not exist independently of the right to shelter. Human rights are indivisible and interdependent. Indeed one cannot be said to have the right to life or dignity if one does not have the right to shelter or a home. Counsel urged the court to adopt a wide and purposive interpretation in order to determine whether the legislature intended to make shelter a fundamental right within the Constitution.</p> <p> </p> <p>[14]      Counsel further argued that the findings of the court <em>a quo </em>had not taken into account all the provisions of the Constitution. The Constitution has provided for adequate shelter as a national objective under s 28. It has provided for freedom from arbitrary evictions under s 74 of the same Constitution.  It has also made provision for the right of children to education, health services, nutrition and shelter under s 81(f). It also provides for security of tenure to every person lawfully owning or occupying agricultural land. The court should therefore have adopted a purposive interpretation and paid due regard to all these provisions that have a bearing on the right to shelter.  Taken as a whole, the Constitution provides for the fundamental right to housing.</p> <p> </p> <p> [15]     The appellants have further contended that the decision of the court <em>a quo </em>has far reaching implications as it effectively leaves the appellants’ members homeless with nowhere to go. Before sanctifying the drastic measure of eviction, the court <em>a quo </em>should have gone beyond the facts. The court did not take into account the circumstances and length of time the appellants’ members had been in occupation, the rights and needs of vulnerable sections of that group such as children and the failure by the relevant organs of the state to make suitable alternative accommodation available.</p> <p> </p> <p><em>SUBMISSIONS BY THE MINISTER OF LOCAL GOVERNMENT AND THE MINISTER OF LANDS</em></p> <p>[16]      Counsel for the two Ministers submitted that, for the reasons given by Leengate, with which they agree, the appellants’ heads of argument do not comply with the Rules of Court. He urged this Court to find that there are no proper heads before it.</p> <p> </p> <p> [17]     On the merits he argued that the right to shelter is not included in Chapter 4 of the Constitution but is envisaged as a national objective under s 28. He further submitted that the reliance by the appellants on s 47 was inappropriate as they had failed to point to any law that provides the right to shelter.  In any event any rights recognised by s 47 of the Constitution are not fundamental rights. The provision simply means the Constitution does not exclude the existence of other rights confirmed in terms of other laws recognised as such by the Constitution.  </p> <p> </p> <p><em>SUBMISSIONS BY LEENGATE</em></p> <p>[18]      Counsel for Leengate submitted that there were no proper heads of argument before the court.  The appellants’ heads span fifty-eight pages and are clearly not in compliance with r 52 (2)  of the Rules</p> <p> </p> <p> [19]     On the merits, counsel also submitted that the right to shelter is just but an aspiration. Section 47 of the Constitution refers to rights conferred by law. The appellants have not pointed to any provision of law that creates the right to shelter.  The matter brought before the court is therefore not a constitutional matter and consequently the principle of subsidiarity applies.</p> <p> </p> <p><em>ISSUES ARISING FOR DETERMINATION</em></p> <p>[20]      From the above synopsis, four issues arise for determination.  These are first, whether the appellants’ heads of argument are compliant with r 52(2) of the Supreme Court Rules, 2018. Second, whether the right to housing is a fundamental right cognizable in our law. Third, whether the court correctly found that the appellants could not properly approach the court in terms of s 85 of the Constitution and whether the doctrine of avoidance is applicable in this case.  Last, whether the court <em>a quo </em>erred by not making a determination on the merits. I proceed to deal with each of these issues in turn.</p> <p> </p> <p><em>WHETHER THE APPELLANTS’ HEADS OF ARGUMENT COMPLY WITH THE RULES OF COURT</em></p> <p>[21]      Rule 52 (2) of the Supreme Court Rules, 2018, provides as follows:-</p> <p>“(2) Within fifteen days after being called upon to file heads of argument in terms of subrule (1), or within such longer period as a judge may for good cause allow, the appellants’ legal practitioner shall file with the registrar a document setting out the heads of his or her argument together with a list of authorities to be cited in support thereof, and immediately thereafter shall deliver a copy to the respondent.”</p> <p> </p> <p> </p> <p>[22]      Rule 50 has however made provision for written arguments and not heads of argument to be filed. That Rule provides as follows:-</p> <p>“50.  A party to a civil appeal may, not less than five days before the date on which the appeal has been set down for hearing, file with the registrar a declaration in writing that he or she does not intend to be present in person or to be represented by counsel at the hearing of the appeal, together with four copies of such argument as he or she wishes to submit to the court.  Such argument shall be in numbered paragraphs under distinct heads. …”</p> <p> </p> <p>[23]      It will be apparent, from the foregoing, that our Rules of Court have deliberately made a distinction between, on the one hand, heads of argument and written arguments, on the other.  Written arguments are filed in terms of r 50 by either an appellant or a respondent who does not intend to be present in person or to be represented by a legal practitioner at the hearing of the appeal. Written arguments are intended to be a lot more comprehensive for the reason that the party will not be present before the court to motivate his or her appeal. An appellant who is called upon by the registrar to file heads of argument in terms of r 52 (2) may not file written arguments.  The filing of written arguments in that circumstance would not be compliant with the Rules.</p> <p> </p> <p>[24]      The option of filing written arguments is one that is by no means common in this jurisdiction. Invariably an appellant or applicant files heads of argument in compliance with a directive from the Registrar and failure to do so will result in the matter being deemed abandoned and dismissed – see r 39 (5). Equally, a respondent upon whom the appellant’s heads are served is required to file his or her own heads within ten days of receipt of the appellant heads.  In my experience on the Supreme Court bench, the option available to file written arguments in terms of r 50 is one that has not, to date, been utilised by litigants.</p> <p> </p> <p> [25]     That there is a significant difference between heads of argument and written arguments there can be no doubt.  Heads of argument are intended to set out, without elaboration, a relatively concise statement of the main points intended to be argued on appeal by, or on behalf of, the respective parties and represent the starting point of the debate which follows. They also constitute the background against which the actual debate during argument of the appeal coalesces but the parties may and often do depart from such heads and the debate can range beyond the bare submissions contained in the heads which, in the hearing process, are supplemented or amplified, as the debate continues.</p> <p> </p> <p>[26]      Written argument, on the other hand, is presented <em>in lieu</em> of heads of argument, and is intended to be so comprehensive and complete so as not to require any supplementing. It also presupposes that such argument adequately addresses all possible points which may arise in the course of considering the appeal.</p> <p> </p> <p>[27]      As noted in the South African decision in <em>Mandlakhe Khehla Shinga v The Society of Advocates (Pietermaritzburg Bar) (Intervening as Amicus Curiae) &amp; Anor</em> Appeal No. AR 969/2004:</p> <p>“… There is a clear distinction between “heads of argument” and “written argument”- The rules do not permit the latter.  The operative words are “main”, “heads” and “argument”:</p> <ul> <li>“main” refers to the most important part of the argument</li> <li>“heads” means “points”, not a dissertation; and</li> <li>“argument” involves a process that must be set out in the heads.</li> </ul> <p> </p> <p>In addition, and to emphasise the point, the rule requires the heads of argument to be clear, succinct, and without unnecessary elaboration.”</p> <p> </p> <p>I agree entirely with the above remarks which, in my view, correctly reflect the law in this country.</p> <p> </p> <p> </p> <p>[28]      There can be no argument that both in the court <em>a quo </em>and in this Court, the appellants were, and are guilty of, presenting written arguments.  Before the court <em>a quo, </em>the appellants’ heads of argument spanned a total of seventy (70) pages. In addition to those seventy pages, the appellants’ counsel then addressed the court at length, regurgitating the same points made in the written submissions.  His oral submissions span a further thirty two pages. In the heads of argument filed before this Court, the appellants’ legal practitioner has filed “heads of argument” spanning forty five (45) pages.</p> <p> </p> <p>[29]      There can also be little doubt that there has been a failure to comply with the Rules. The appellants were requested to file heads of argument. Instead what was filed is more of a dissertation. It is prolix, rambling and in some cases repetitious.  No consideration has been given to the need to be concise.</p> <p> </p> <p>[30]      I note that the High Court of Zimbabwe has had similar experience.  In <em>Milton Gardens Association &amp; Anor</em> v <em>Mvembe &amp; Ors</em> HH 94/16, the court, obviously exasperated, had this to say at p 5 of the judgment:-</p> <p>   “I must make observations concerning the heads of argument filed on behalf of the applicants in this matter. These stretch up to 127 pages. Heads of argument are meant to be simply that. The purpose of heads of argument is to set out fully one’s arguments. Heads of argument are required to be drawn up in a clear and concise manner. It is inappropriate to file voluminous papers and expect the other party as well as the court to plough through such a voluminous pile of papers and still be able to make sense out of them. What these heads contain is basically every fact and argument concerning this matter. This is most inappropriate. In fact, this is an abuse of court process. This style of drafting heads of argument and conduct ought to be discouraged. The eventual consequence of such conduct results in delays in delivery of the judgment concerned. Litigants who bombard the court with voluminous papers and information deserve to be penalised even if they are eventually successful in the litigation. This sort of conduct deserves censure by this Court….”</p> <p> </p> <p>[31]      The appellants were asked to file heads of argument. Instead they filed what appear to be written arguments. In filing written arguments, they thought they were complying with the direction to file heads of argument. In this regard, they erred. Ordinarily the failure to file heads of argument would have consequences. However, considering that this Court has heard the appellants on the basis of those lengthy and rambling submissions, the court, in the exercise of its discretion, will condone this anomaly, regard being had to the fact that this is perhaps the first time that this Court has taken the pains to emphasize the distinction between heads of argument and written arguments.  Parties and their legal practitioners are admonished to pay heed to this distinction in the Rules. In future heads of argument that do not comply with r 52(2) may well be struck out, the result being that the party guilty of such non-compliance may well be regarded as being barred with the concomitant results that would normally flow from such a determination.</p> <p> </p> <p><em>WHETHER THE RIGHT TO HOUSING IS A FUNDAMENTAL RIGHT</em></p> <p>[32]      It is the appellants’ submission that the court <em>a quo</em> erred in failing to adopt a purposive approach in its interpretation of the provisions of the Constitution. They have argued that had the court <em>a quo</em> correctly interpreted the Constitution, it would have found that the right to housing and shelter is provided for in the Constitution, even though such a right is not specifically provided for. For this proposition they relied on the provisions of s 47 as well as ss 48 and 51 of the Constitution. They further contended that the right to life and to dignity enshrined in the Declaration of Rights cannot be fulfilled if one does not have shelter.  The right to housing is therefore part and parcel of the right to dignity.</p> <p>                         </p> <p>[33]      The appellants accept that the right to shelter is not specifically provided for in [<em>Chapter 4</em>] of the Constitution.  They rely on <em>Chapter 2</em> of the Constitution and in particular ss 8 and 28 thereof. Section 8 provides:-</p> <p>“(1) The objectives set out in this Chapter guide the State and all institutions and agencies of government at every level in formulating and implementing laws and policy decisions that will lead to the establishment, enhancement and promotion of a sustainable, just, free and democratic society in which people enjoy prosperous, happy and fulfilling lives.</p> <p>(2) Regard must be had to the objectives set out in this Chapter when interpreting the State’s obligations under this Constitution and any other law.”</p> <p> </p> <p>[34]      It is s 28 of the Constitution – which also falls under Chapter 2 of the Constitution dealing with National Objectives - that makes reference to access to adequate shelter. That section provides:-</p> <p>“The State and all institutions and agencies of government, at every level must take reasonable legislative and other measures, within the limits of the resources available to them, to enable every person to have access to adequate shelter.”</p> <p> </p> <p>[35]      The appellants have sought to rely on a somewhat similarly worded provision in the South African Constitution. Section 26 of the South African Constitution provides as follows:</p> <p>   “26 HOUSING</p> <ol> <li>Everyone has the right to have access to adequate housing.</li> <li>The State must take reasonable legislative and other measures within its available resources, to achieve the progressive realisation of this right.</li> <li>No-one may be evicted from their home, or have their home demolished without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.”</li> </ol> <p> </p> <p>[36]      There is however a major distinction between the Zimbabwean and South African provisions. Section 28 of the Constitution of Zimbabwe falls under Chapter 2 which spells out the national objectives to guide the State and all institutions of government. Section 26 of the South African Constitution, to the contrary, is part of the Declaration of Rights of that Constitution.  It is a justiciable right.  Even though s 74 of the Constitution of Zimbabwe protects people from arbitrary evictions, it states clearly that persons can be evicted from their home, or have their home demolished if a court order is granted after considering all the relevant circumstances. </p> <p> </p> <p>[37]      It is correct that, in interpreting a Constitution, the ordinary grammatical meaning used in the Constitution is not always decisive. The Constitution itself provides, in s 46, that in interpreting provisions of the Constitution, a court must pay regard to all the provisions of the Constitution, in particular the principles and objectives set out in Chapter 2.  Section 331 then stipulates that the provisions of s 46 apply, <em>mutatis mutandis</em>, to the interpretation of the whole Constitution.</p> <p> </p> <p>[38]      This Court has, in the past, had occasion to consider the status of the objectives set out in Chapter 2 of the Constitution.  It is now accepted that the national objectives are important in interpreting the various provisions of the Constitution and any other laws.  But they are not justiciable. In <em>Zimbabwe Homeless Peoples’ Federation &amp; Ors</em> v <em>Minister of Local Government and National Housing &amp; Others</em> SC 94/20, this court remarked at p 8 of the judgment:-</p> <p>“These provisions are essentially hortatory in nature, given that they are qualified by that they are to be realised “within the limits of the resources available” to the State and the government.  In this sense, they cannot be said to be strictly justiciable and enforceable in themselves. Nevertheless, they are not to be regarded as being entirely superfluous and otiose and therefore devoid of any legal significance whatsoever. They remain interpretively relevant for the purpose of informing and shaping the specific contours of the substantive rights enshrined elsewhere in the Constitution.”    </p> <p> </p> <p>[39]      The question remains whether, on a consideration of ss 28, 47, 48 and 51 of the Constitution, the right to shelter can be inferred.  This is essentially a question of interpretation.  In attempting to interpret whether such a right exists, one must bear in mind the remarks made by the Constitutional Court of South Africa in <em>State v Zuma</em> 1995 (2) SA. 642 (CC) that:</p> <p>“While we must always be conscious of the values underlying the Constitution, it is nonetheless our task to interpret a written instrument. I am well aware of the fallacy of supposing that general language must have a single “objective meaning”…. But it cannot be too strongly stressed that the Constitution does not mean whatever we might wish it to mean.  We must heed Lord Wilberforce’s reminder that even a Constitution is a legal instrument, the language of which must be respected.  If the language by the law giver is ignored in favour of a general resort to values, the result is not interpretation but divination….” </p> <p> </p> <p>[40]      It is the duty of this Court to give full effect to the obligations enshrined in the Constitution. The Constitution says so. However, a court does not itself create rights. It simply interprets the various provisions of the Constitution to ascertain the existence, nature and extent of those rights.</p> <p> </p> <p>[41]      The right to shelter is not provided for anywhere in the Declaration of Rights.  Parliament, in its wisdom, merely made provision for the State and all institutions of government to take reasonable steps and measures, within the limits of the resources available, to actualise access to adequate shelter.  That provision is essentially exhortatory but is one that the State and all institutions of government must bear in mind when formulating or implementing laws and policy decisions of government. Parliament is deemed to have been aware of the various provisions that make up the Constitution. It deliberately came up with founding values and principles. In Chapter 2, it came up with various national objectives that must guide the State and all its institutions in formulating and implementing laws and policy decisions. It also provided that those national objectives must be considered in interpreting the Constitution. Many national objectives have been delineated under Chapter 2.  These include the requirement, under s 28, for the State and all its institutions to do everything possible, within the limits of the available resources, to actualise access to adequate shelter.</p> <p> </p> <p>[42]      Chapter 4 of the Constitution contains the Declaration of Rights.  Under Part 2 of that Chapter, the lawmaker has listed fundamental human rights and freedom. These include the right not to be evicted from one’s home unless this is pursuant to a court order.  Part 3 of Chapter 4 elaborates certain fundamental rights “to ensure greater certainty as to the application of those rights and freedoms”. Part 4 then provides for the enforcement of fundamental human rights and freedoms and Part 5 the limitations of those rights and freedoms.</p> <p> </p> <p>[43]      A number of national objectives captured under Chapter 2 of the Constitution are not part of the fundamental rights and freedoms that are delineated under Chapter 4 of the Constitution. In fact only a few of them are recognised as fundamental human rights. These include the right to education (s 75), right to health care (s 76), right to food and water (s 77), marriage rights (s 78), rights of children (s 81), rights of the elderly (s 82), rights of persons with disabilities (s 83), and rights of veterans of the liberation struggle (s 84). </p> <p> </p> <p>[44]      The Constitution deliberately left out a number of national objectives from the Declaration of Rights. Whilst there is an obligation on the government and its institutions to adopt reasonable measures to actualise these objectives within the limits of the resources available, these cannot be enforced under s 85 as fundamental rights and freedoms. On a holistic consideration of the provisions of the Constitution, the inference is ineluctable that it was never the intention of the lawgiver to make the right to shelter a fundamental right which would be justiciable in terms of s 85.</p> <p> </p> <p>[45]      It is correct that s 47 of the Constitution provides that Chapter 4 does not preclude the existence of other rights and freedoms that may be conferred or recognized by law, to the extent that they are consistent with the Constitution. <em>Iain</em> <em>Currie &amp; Johan De Waal</em>, commenting on a provision in South African similar to our s 47, states:</p> <p>“Section 39(3) simply confirms that the Bill of Rights does not prevent a person from relying on rights conferred by legislation, the common law or customary law.  But since the Bill of Rights is supreme law, such rights may not be inconsistent with the Bill of Rights.</p> <p>For example, if the right to self-incrimination (s 35(3)(j)) is only available to persons accused in criminal proceedings, nothing prevents a person in any other proceedings from relying on his or her common law right against self-incrimination to the extent that the right is available.”</p> <p> </p> <p> </p> <p>[46]      That is all that s 47 says. It simply recognizes other rights that may be bestowed by other laws subsidiary to the Constitution. It does not state, as the appellants would want this court to believe, that these rights automatically become Chapter 4 rights and that they are enforceable as such.  Whilst these rights can be enforced, this would be in terms of the provisions of those laws and not s 85. As Mr. <em>Uriri</em> stated, correctly in my view, the right to shelter the appellants seek to enforce in terms of s 85 of the Constitution is not one in terms of our Declaration of Rights.  I am aware that in terms of s 326 of the Constitution, customary international law is also part of the law of Zimbabwe, unless it is inconsistent with the Constitution or an Act of Parliament. Further, in terms of s 327 of the Constitution, an international treaty which has been concluded by the President has binding effect if approved by Parliament and domesticated. Whilst international conventions may recognize the right to shelter or housing, such right is not, in terms of our Constitution, a fundamental right, capable of being enforced in terms of s 85 of the Constitution of Zimbabwe in favour of adult persons. It is the Constitution, the supreme law of this country itself, which has deliberately left out the right to shelter from the list of fundamental rights delineated under Chapter 4 of the Constitution.</p> <p> </p> <p>[47]      Everything considered therefore, the appellants have not shown that the right to shelter is a fundamental right in terms of our law and that it can be enforced pursuant to the provisions of s 85 of the Constitution in favour of adult persons. The right to shelter is a fundamental right that is accorded to children only, together with their rights to education, health care and nutrition (s 81).  Indeed this was the finding of the Supreme Court in a matter involving the same parties in <em>Zimbabwe Homeless People’s Federation &amp; Ors v The Minister of Local Government and National Housing &amp; Three Ors </em>SC 94/20. In the present matter, it is not the right to shelter for their children that is in issue. Rather the issue is whether the right to shelter under s 28 of the Constitution is a fundamental right and therefore justiciable in respect of persons who are not children. The conclusion by the court <em>a quo</em> that the right to shelter is not a fundamental right was therefore correct.</p> <p> </p> <p><em>WHETHER THE APPELLANTS COULD APPROACH THE COURT IN TERMS OF SECTION 85</em></p> <p>[48]      Section 85 of the Constitution is very clear as to the nature of the rights and freedoms that can be enforced pursuant to its provisions.  It provides:</p> <p>   “85 ENFORCEMENT OF FUNDAMENTAL RIGHTS AND FREEDOMS</p> <ol> <li>Any of the following persons, namely –</li> </ol> <ol> <li>– (e) … (not relevant)</li> </ol> <p>is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.” (Underlining is for emphasis)</p> <p> </p> <p>[49]      The section states in no uncertain terms that an application in terms of that section must allege that a fundamental right or freedom enshrined in that Chapter has been, is being or is likely to be infringed. The corollary to this is that other rights that are not fundamental rights or freedoms can be enforced through other provisions of other laws, but not in terms of s 85.  Indeed the Constitutional Court of Zimbabwe has stressed this position in a number of decisions.  For example in <em>M &amp; Anor</em> v <em>Minister of Justice Legal &amp; Parliamentary Affairs N.O &amp; Others</em> 2016(2) ZLR 45, 55 G-H (CC) the Constitutional Court stated:</p> <p>“Section 85(1) of the Constitution is the cornerstone of the procedural and substantive remedies for effective judicial protection of fundamental rights and freedoms and the enforcement of the constitutional obligation imposed on the State and every institution and agency of government at every level to protect the fundamental rights in the event of proven infringement.</p> <p>…… The fundamental principle is that every fundamental human right or freedom enshrined in Chapter 4 is entitled to a full measure of effective protection under the Constitutional obligation imposed on the State ……….”</p> <p> </p> <p>[50]      Further, in <em>Prosecutor General of Zimbabwe</em> v <em>Telecel Zimbabwe (Pvt) Ltd</em> CCZ 10/15, the court also remarked at p 10 of the judgment:-</p> <p>“What is clearly evident from this provision is that the relief sought and to be granted by the court in terms of this section must relate to fundamental rights and freedoms enshrined in the relevant Chapter, and nothing else…….”</p> <p> </p> <p>[51]      Despite attempts by appellants’ counsel both <em>a quo</em> and in this court to urge this Court to accept that the application before the court <em>a quo</em> was not made in terms of s 85(1) of the Constitution, the papers on record reveal clearly that, in fact, the appellants approached the court <em>a quo</em> in terms of that section. For example, in its founding affidavit, in para 4, the first appellant, as first applicant stated: “The first appllicant thus has a public interest in housing and asserting the right to housing.  It is this same reason, which is the basis of this application by which this application is brought in terms of s 85(1)(d) …. It seeks in this case, to assert the existence of the right to housing for its members thereof”. The second appellant, as second applicant, in para 13 of its founding affidavit also stated: “We thus bring this application, on behalf of our members in terms of s 85(1)(e) of the Constitution of Zimbabwe.” Likewise the third appellant, as third applicant, also stated in para 52 of his founding affidavit: “As a resident of Haydon Farm and a victim of the respondents’ unlawful actions, I bring this action in my own right to protect my interest as defined in s 85(1)(a) of the Constitution of Zimbabwe”.</p> <p> </p> <p>[52]      There thus can be no doubt that the appellants approached the court <em>a quo</em> in terms of s 85(1) of the Constitution. They were alleging a violation of their right to shelter, which is not a fundamental right. In the circumstances, the finding by the court <em>a quo</em> that s 85(1) was not available to them was correct.</p> <p> </p> <p><em>PRINCIPLE OF SUBSIDIARITY</em></p> <p>[53]      It is the settled position of our law that where there exist other remedies, a litigant may not approach a court on a constitutional basis and ignore the remedies at his disposal in order to deal with what he perceives to be an infringement of his rights. The principle of subsidiarity, itself part of the doctrine of avoidance, recognizes that there are many disputes of right or interest which do not give rise to a constitutional matter. In this regard in <em>Moyo v Sgt Chacha</em> &amp; Others CCZ 19/17, the Constitutional Court remarked as follows:</p> <p>“The principle of subsidiarity … states that a litigant who avers that his or her constitutional right has been infringed must rely on legislation enacted to protect that right and may not rely on the underlying constitutional provision directly when bringing action to protect the right, unless he or she wants to attack the constitutional validity or efficacy of the legislation itself.  Norms of greater specificity should be relied upon before resorting to norms of greater abstraction.” </p> <p> </p> <p>[54]      The principle of subsidiarity is particularly apposite in the circumstances of this case. Before the court <em>a quo,</em> the appellants sought the relief of an interdict against unlawful eviction.  The relief of an interdict was available to them even without resort to the Constitution. It was a relief that could have been granted by the Magistrates’ Court or the High Court once the appellants had shown a <em>prima facie</em> or clear right.  Moreover, there was a pending application filed by Leengate in the Magistrates’ Court for their eviction which they could have opposed without them approaching the High Court on a constitutional basis.  The appellants had also filed an ordinary court application under HC 1148/18 seeking to assert the government’s obligation to the realisation of the right to housing under the Constitution, to order the halting of any evictions and for the court to determine whether Leengate had lawfully acquired land through the Council. This matter was apparently pending when the appellants filed the application in the High Court that is the subject of this appeal.  </p> <p> </p> <p>[55]      For this additional reason, the appellants could not have simultaneously moved for relief under s 85 of the Constitution.</p> <p> </p> <p><em>THE ALLEGED FAILURE TO DETERMINE THE MATTER ON THE MERITS</em></p> <p>[56]      Having correctly found that the appellants could not approach the court in terms of s 85 of the Constitution, it became unnecessary for the court to deal with the matter on the merits.</p> <p> </p> <p><em>DISPOSITION</em></p> <p>[57]      The court <em>a quo</em> was correct in finding that there was no fundamental right to shelter in terms of the Constitution of Zimbabwe. It was also correct in finding that the appellants had no standing to institute an application in terms of s 85(1) of the Constitution to enforce such a right. Part of the relief the appellants sought could have been enforced without the need to resort to remedies provided by s 85 of the Constitution.</p> <p> </p> <p>[58]      On the issue of costs, it seems to me that, although this matter has come to this court as an appeal, it essentially seeks to enforce what the appellants may have perceived, albeit wrongly, to be constitutional remedies. Rule 55 of the Constitutional Court Rules, 2016 states that, in general, a no costs order should be awarded in constitutional matters. Given the fact that the appellants may have genuinely believed that they could enforce the right to shelter, I see no reason for departing from this general position.</p> <p> </p> <p>[59]      In the result, it is ordered as follows:</p> <p>“The appeal be and is hereby dismissed with no order as to costs”.</p> <p> </p> <p> </p> <p><strong>MAVANGIRA JA    :                       </strong>I agree</p> <p> </p> <p><strong>MATHONSI JA        :</strong>                       I agree</p> <p> </p> <p><em>Tendai Biti Law</em>, appellant’s legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office,</em> first and fourth respondents’ legal practitioners</p> <p><em>Bherebhende Law Chambers</em>, third 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/supreme-court-zimbabwe/2021/78/2021-zwsc-78.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=55986">2021-zwsc-78.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/2021/78/2021-zwsc-78.pdf" type="application/pdf; length=514750">2021-zwsc-78.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/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/housing">Housing</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/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/heads-argument">Heads of argument</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/effect-failure-file-heads-argument-timeously">effect of failure to file heads of argument timeously</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/time-within-which-heads-argument-be-filed">time within which heads of argument to be filed</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/2016/94">Milton Gardens Assoc. &amp; Another v Mvembe &amp; Others (HH 94-16, HC 1236/15) [2016] ZWHHC 94 (03 February 2016);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2020/94">Zimbabwe Homeless People&#039;s Federation &amp; 7 Ors v Minister of Local Government and National Housing &amp; 3 Ors (SC 94-20) [2020] ZWSC 94 (17 July 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/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Thu, 15 Jul 2021 10:29:14 +0000 Sandra 10081 at https://old.zimlii.org Gessen v Chigariro (SC 80-21, Chamber Application No. SC 75/21) [2021] ZWSC 80 (30 June 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/80 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p>Judgment No. SC 80/21</p> <p>Chamber Application No. SC 75/21</p> <p> </p> <p><strong>REPORTABLE</strong><strong>        (77)</strong></p> <p><strong>ALLEN     ALESKSEY     GESSEN</strong></p> <p><strong>v</strong></p> <p><strong>PRISCILLA     CHIGARIRO</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>HARARE: 2 JUNE 2021 &amp; 30 JUNE 2021</strong></p> <p> </p> <p><em>T. Zhuwarara,</em> for the applicant.</p> <p>Ms<em> M. Musuka, </em>for the respondent.</p> <p> </p> <p><strong> IN CHAMBERS</strong></p> <p> </p> <p><strong>MATHONSI JA:        </strong>This is an application for condonation of the late noting of an appeal and the extension of time within which to appeal against a judgement of the High Court handed down on 1 October 2020.  The applicant’s initial appeal filed timeously was struck off the roll on 1 April 2021 for the reason that the notice of appeal was fatally defective.</p> <p> </p> <p><strong>FACTUAL BACKGROUND</strong></p> <p>                   The applicant is a citizen of the United States of America (USA) even though he was born in Russia.  The respondent is a Zimbabwean citizen.  The two met in 2011 in Harare Zimbabwe and commenced having a relationship which is said to have been upgraded to a customary marriage by reason that the applicant paid the bride price for the respondent.  They never registered a legal marriage.</p> <p>                   The parties’ association was blessed with a boy child called Orrin who was born on 23 July 2013.  During the period extending from 2015 to 2019, the applicant secured employment in Russia and as such became resident in that country.  In 2016 the respondent and the boy child Orrin followed the applicant to Russia where the family took up residence.</p> <p> </p> <p>                   It was during the period of their temporary residence in Russia that the couple decided to have a second child.  Owing to some health challenges, the respondent could no longer carry the pregnancy.  They decided to have the child through surrogacy and found a surrogate mother with whom a surrogacy agreement was entered into.  It was signed by the applicant, the respondent and the surrogate mother on 2 March 2018.</p> <p> </p> <p>                   The surrogacy agreement stated in pertinent part:</p> <p>“We undertake to assume the equal rights and obligations of parents with respect to the children, born by ‘surrogate mother’ after embryo transfer to the uterine cavity of ‘surrogate mother’, in terms of their upbringing, as defined by the Russian legislation on family and marriage.”</p> <p> </p> <p> </p> <p> </p> <p>                    In pursuance of that agreement, the surrogate mother carried the pregnancy for the parties and gave birth to the girl child, Elizabeth, now at the centre of the dispute, on 15 November 2018.  Unfortunately the parties’ relationship hit turbulence and a short while after the birth of the child they commenced living apart.         </p> <p> </p> <p>                    Although the surrogate mother had given her consent for them to register the child as their own as genetic parents, the Khamovhichesky Department of the Civil Registry of Moscow refused their application to register the child as they were not married.  Acting together, they instituted a law suit against the Registry Office for their recognition as the parents of Elizabeth.</p> <p>                   On 27 September 2019, the Meshchansky District Court of Moscow allowed the state registration of the child and for the respondent to be registered as its mother.  The applicant was not so lucky.  His application for registration as the father was rejected because, by then, he had had his employment in Russia terminated and had relocated to the United States of America.  In doing so, the applicant took the boy child, Orrin, with him.</p> <p> </p> <p>                   Although there is no convergence between the parties as to what their intentions were, the applicant says he relocated to United States of America with the respondent’s consent, while the respondent’s position is that the applicant abducted Orrin and deserted her and Elizabeth.  It is however not in dispute is that the respondent and Elizabeth were left stranded in Russia.  They had been in that country on the applicant’s expired VISA.</p> <p> </p> <p>                   The respondent and Elizabeth ended up living at the Zimbabwean embassy while processing documents to move to Zimbabwe.  In due course, the duo found their way to Zimbabwe in November 2019 where they have remained to this date.  The applicant was aggrieved.</p> <p> </p> <p>                   He brought an application to the High Court in terms of the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention).  The Hague Convention has been domesticated in Zimbabwe and bears the force of law by virtue of s 3 of the Child Abduction Act [<em>Chapter 5:05</em>].  The basis of the applicant’s case was that the removal of the child from Russia and its retention in Zimbabwe are unlawful.</p> <p> </p> <p>                   The applicant sought a declaratory order to that effect.  Consequent to that, the applicant sought an order that the child be removed from Zimbabwe and sent to Boston in the United States of America or to Russia for a determination of the parties’ parental rights in those jurisdictions.  According to the applicant, Russia was the child’s habitual residence.  He asserted that the child had been in that country awaiting the processing of documentation which would have enabled it to migrate to the United States of America with the respondent in terms of their agreement.</p> <p> </p> <p>                   The respondent opposed the application.  According to her, the parties had agreed to return to Zimbabwe and settle here.  She stated that an email she had written to the applicant’s lawyer insinuating the existence of an agreement with the applicant for their relocation to the United States of America had been written under duress.  The respondent asserted full parental rights over the child to the exclusion of the applicant as her rights had been settled by the court in Russia.  According to her, the child was lawfully retained as a Zimbabwean.</p> <p> </p> <p>                   The High Court dealt with a number of approaches in seeking to determine the child’s habitual residence for purposes of the Hague Convention.  It concluded that, while the issue of the intention of the parties was key in determining habitual residence, the child’s parents never formed an intention to settle in Russia.  They travelled there for work only and for that reason Russia was not the child’s habitual residence.  It could not be returned to that country.</p> <p> </p> <p>                   By the same token, the High Court found that it could not order that the child be returned to the United States of America given that doing so would not be in line with the Hague Convention’s purpose of restoring the <em>status quo ante</em>.  Finding the Hague Convention inapplicable, the High Court dismissed the application.</p> <p>                   The applicant was dissatisfied.  On 9 October 2020, well within the time allowed by the rules of court, the applicant filed an appeal to this Court.  The appeal was defective in that the relief sought therein was incompetent. At the hearing, the appeal suffered the fate of all defective appeals.  It was struck off the roll.</p> <p> </p> <p><strong>THE APPLICATION</strong></p> <p>                   The appeal having been struck off the roll, the applicant has filed the present application for condonation of the late filing of an appeal and the extension of time within which to appeal.  The application before me was filed on 9 April 2021 just 8 days after the initial appeal was struck off.  Clearly there was no material delay in seeking condonation.</p> <p> </p> <p>                   The applicant’s explanation for failure to comply with the rules is that right up to the date of the hearing of the appeal, he was labouring under the mistaken belief that he had filed a valid appeal.  The explanation is actually given by the applicant’s legal practitioner who takes ownership of the defective prayer in the initial appeal.</p> <p> </p> <p>                   On the prospects of success on appeal, the point is made on behalf of the applicant that the High Court was wrong in dismissing the application on the basis that shared parental intent could not give rise to an application under the Hague Convention.  The applicant would also want to contest the High Court’s finding that Russia was not the child’s habitual residence.</p> <p> </p> <p>                   The respondent opposes the application.  In doing so, the respondent asserts that the intended appeal enjoys no prospects of success because the applicant had sought the return of the child to Russia.  That country could not possibly be said to be the child’s habitual residence in the circumstances of the case.  Accordingly the High Court’s decision cannot be assailed.</p> <p> </p> <p>                   In the respondent’s view the applicant ought to have appealed against the judgment of the court of Moscow which gave her sole parental rights over the child.  She denies unlawfully retaining the child in Zimbabwe.</p> <p> </p> <p><strong>PRELIMINARY OBJECTIONS</strong></p> <p>                   Ms <em>Musuka</em> for the respondent raised two preliminary objections.  Firstly, she submitted that the prayer in the heads of argument filed on behalf of the applicant was defective.  It sought the dismissal of the appeal when what is before the court is an application for condonation.  In counsel’s view, such inattention has permeated the manner in which the applicant has dealt with this matter.</p> <p> </p> <p>                   Mr <em>Zhuwarara</em> for the applicant was down on his knees, so to speak, when he apologised profusely for that typing error.  He promptly applied for the deletion of the prayer from the heads of argument.  While such clerical oversights should not be done in papers filed by senior counsel for the benefit of a superior court, they cannot form the basis of a dismissal of an application.</p> <p> </p> <p>                   Secondly, Ms <em>Musuka</em> objected to the filing of the applicant’s answering affidavit out of time.  In terms of r 43(5) the applicant should file his or her answering affidavit within 3 days of being served with the respondent’s opposing affidavits.  In this case the answering affidavit was filed on the 4th day.</p> <p> </p> <p>                   In my view, no prejudice was suffered by the respondent by that marginal failure to meet the time lines set by the rules.  This is more so given that the offending affidavit was filed on 22 April 2021 several weeks before the application was set down.  I restate that such small indiscretions should not be allowed to stand in the way of the attainment of justice and the right of litigants to access the court.  I condoned the late filing of the answering affidavit.</p> <p> </p> <p><strong>THE LAW</strong></p> <p>                   What the court has regards to in an application for condonation is now settled.  The court has a discretion, which is exercised judicially, in considering an application of this nature.  Relevant factors in this regard are the degree of non-compliance with the rules of court, the explanation for the failure to comply, the prospects of success on appeal, the importance of the case, the interest of the respondent in the finality of the judgment, the convenience to the court and the avoidance of unnecessary delays in the administration of justice.  See <em>Maheya v Independent African Church</em> 2007(2) ZLR 319 (S) at 323 B-C.</p> <p> </p> <p>                   It is also settled that these factors have to be considered in conjunction with one another as they tend to be complimentary.  While it is true that consideration of the factors generally boils down to having regard to the explanation given by the applicant for condonation for delay  and the prospects of success on appeal, the lack of a satisfactory explanation for the delay may be complimented by good prospects of success on appeal.  See <em>Khumalo v Mandeya and Another </em>2008 (2) ZLR 203 (S).</p> <p> </p> <p><strong>APPLICATION TO THE FACTS</strong></p> <p>                   The judgment sought to be appealed against was handed down on 1 October 2020. </p> <p>The applicant’s putative appeal under case number SC 421/20 was struck off the roll on 1 April 2021.  There was no delay in filing this application after the striking off of the appeal.</p> <p> </p> <p>                   The applicant’s failure to comply has been explained as the oversight of his legal practitioner who drafted a defective notice of appeal.  I accept that this Court has stated in the past that there is a limit beyond which a litigant cannot escape the consequences of his or her legal practitioner’s dilatoriness or lack of diligence.  See <em>Musemburi and Another v Tshuma</em> 2013(1) ZLR 526 (S) at 529 E-H; 530 A-B.</p> <p> </p> <p>                   I take the view, however, that this is not a case in which the legal practitioner’s lack of diligence should be visited upon the applicant.  This is so mainly for two reasons.  The first one is that the infraction by the legal practitioner only related to the crafting of the prayer in the notice of appeal.  It is a fault that cannot be said to be gross.</p> <p> </p> <p>                   The second is that I hold the view that the issues raised by the proposed appeal are arguable.  They deserve the attention of the full bench of the appeal court, if for no other reason but that the Supreme Court has not authoritatively pronounced itself on them.</p> <p> </p> <p>                   I can only refer to the manner in which the court <em>a quo</em> dealt with the issue of the agreement of the parties in coming to a conclusion that the Hague Convention’s application was not triggered.  For a matter to fall under the Hague Convention its article 3 must be satisfied.  It provides:</p> <p>“The removal or the retention of a child is to be considered wrongful where-</p> <ol> <li>  It is in breach of rights of custody attributed to a person, an institution or any other</li> </ol> <p>body, either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or retention;</p> <ol> <li>  At the time of removal or retention, those rights were actually exercised, either</li> </ol> <p>jointly or alone, or would have been exercised but for the removal or retention.</p> <p> </p> <p>The right of custody mentioned in subparagraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” (The underlining is for emphasis).</p> <p> </p> <p> </p> <p>                   In <em>Peacock v Steyn</em> 2010(1) ZLR 254(H) the court found that the existence of a custody agreement between the parents of minor children who are not married regulating their rights of shared custody, triggered the application of the Hague Convention.  This is by virtue of article 3.</p> <p> </p> <p>                   In the present case, the surrogacy agreement I have referred to above provided some kind of shared custody between the parties.  That therefore presents the applicant with an arguable case on appeal.  Apart from that, Mr <em>Zhuwarara</em> drew attention to an email written by the respondent on 11 November 2019 while she was still in Russia.  He submitted that the letter affirms the existence of an agreement between the parties to move the child to the United States of America.</p> <p> </p> <p>                   The email was addressed to the respondent’s legal practitioner instructing him to relay it to the applicant’s legal practitioner for the attention of the applicant.  It reads:</p> <p>“Please be advised that Elizabeth and I are finally ready to travel and are now able to make plans for next steps.  As you have previously indicated you had gone ahead to America and we were to follow so that the children would be together and neither one of us would be deprived of his rights to both children.  We will of course need to travel to Zimbabwe first in order to get visas and after that will proceed to America.  Please may you send confirmation that this is indeed still the plan as well as confirmation that you will be buying tickets so that we are all reunited.  I look forward to receiving your response and finally ending the current separation from Orrin.”</p> <p> </p> <p> </p> <p> </p> <p>                   I am aware that there was a suggestion by Ms <em>Musuka</em> that the email was written under duress, the particulars of which were not clearly articulated.  That is however immaterial for our present purposes.  What is important is that the statement by the respondent suggests that an agreement for shared custody may have existed.</p> <p> </p> <p>                   If that is the case, the applicant is entitled to argue on appeal that the retention of the child in Zimbabwe in breach of such agreement brings the case under the ambit of the Hague Convention.  I am not sitting to determine the appeal but merely to consider whether it is arguable.  I think it is.  A case has been made for the grant of the indulgence of condonation.</p> <p> </p> <p>                   Regarding the issue of costs, Mr <em>Zhuwarara</em> for the applicant tendered to pay the respondent’s costs regardless of the outcome of the application.  This he did upon a realisation that the application was necessitated by the applicant’s blameworthiness.  An award of costs will be made by consent.</p> <p> </p> <p>                   In the result, it be and is hereby ordered as follows:</p> <ol> <li>The application for condonation for non-compliance with r 38(1)(a) 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 against the judgment of the High Court handed down on 1 October 2020 as HH 620-20 be and is hereby granted.</li> <li>The applicant shall file his notice of appeal within 7 days from the date of this judgment.</li> <li>By consent, the applicant shall bear the costs of this application.</li> </ol> <p><em>Mambosasa Legal Practitioners</em>, applicant’s legal practitioners</p> <p><em>Karuwa and Associates</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/supreme-court-zimbabwe/2021/80/2021-zwsc-80.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=40938">2021-zwsc-80.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/2021/80/2021-zwsc-80.pdf" type="application/pdf; length=348415">2021-zwsc-80.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/condonation">Condonation</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/extension-time-within-which-note-appeal">Extension of time within which to note appeal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/f">F</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/family-law">FAMILY LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/child-family-law">Child (FAMILY 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/condonation-practice-and-procedure">Condonation (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-condonation">application for condonation</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/condonation-non-observance-any-time-limit">condonation of non-observance of any time limit</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/bulawayo-high-court/2010/81">Peacock v Steyn (Case No. HC 1370/10) [2010] ZWBHC 81 (04 August 2010);</a></div></div></div> Thu, 15 Jul 2021 06:50:04 +0000 Sandra 10080 at https://old.zimlii.org