Dispute of facts (PRACTICE AND PROCEDURE) https://old.zimlii.org/taxonomy/term/10971/all en Mwerenga v City of Harare Department of Housing (HH 262-21, HC 565/20) [2021] ZWHHC 262 (26 May 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/262 <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 262-21</p> <p>HC 565/20</p> <p>NELSON NKOSANA MWERENGA</p> <p>versus</p> <p>CITY OF HARARE DAPARTMENT OF HOUSING REGISTRAR OF DEEDS NO.</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MANGOTA J</p> <p>HARARE, 19 November 2020 &amp; 26 May 2021</p> <p> </p> <p><strong>Opposed application </strong></p> <p> </p> <p> </p> <p><em>A. T. Mutema,</em> for the applicant</p> <p><em>Ms K. Kaseke,</em> for the respondent                                        </p> <p> </p> <p> </p> <p>            MANGOTA J: Purchase and sale is a synalgmatic contract. It creates rights and obligations as between the parties. It allows the parties to enforce their respective rights one as against the other.</p> <p>            The seller’s right in a contract of sale, for instance, is to insist that the purchaser pays for the thing which he sells to him. His concomitant obligation is to deliver to the purchaser the thing which he has sold to him. He cannot insist on payment when he has not delivered or is not ready to deliver the purchased thing to the purchaser.</p> <p>            The purchaser’s right in the contract is to receive delivery of what he purchased. His concomitant obligation is to pay the purchase price for the thing which the seller sells to him. He cannot insist on delivery when he has not paid, or is not ready to tender payment of, the purchase price.</p> <p>            A party who has performed his own side of the contract has every right to claim specific performance from the other. A purchaser who has paid full purchase price for the property which he purchased does not waste his time. He, for instance, does not move the court to declare him the owner of what he purchased and paid for. He knows that declaring him the owner when the circumstances show otherwise will not weigh in his favour. He sues and moves the court to compel the defendant or the respondent, as the case may be, to deliver to him the thing which he purchased. His suit will, however, be subject to the qualification that he pays the purchase price in full for the property. Where he alleges and proves, on a balance of probabilities, that he discharged his obligation in an unqualified manner, his day in court will not be regarded as a wasted one. It will be a well rewarded one. He, under the stated circumstances, will not beat about the bush. He will not, in other words, waste my precious time moving me, as the applicant <em>in casu</em> is doing, to declare him to be the owner of the thing which he purchased. He would simply allege and prove that:</p> <ol> <li>he purchased the thing from the defendant, or the respondent; and</li> <li>he paid full purchase price for the thing; and</li> <li>the defendant or the respondent is refusing to deliver the thing to him- and</li> <li>he moves that the thing be delivered to him by way of a court order</li> </ol> <p>             He would support each of the abovementioned four allegations by way of documentary evidence. He would, for instance, attach to his application for specific performance such respective documents as (i) the contract of sale; (ii) receipts showing the payments which he made; (iii) his letter (s) of demand which went unanswered and (iv) court process which constitutes his suit against the defendant or the respondent.</p> <p>            The remarks which I made in the foregoing part of this judgement are apposite to this application. I heard it on 19 November, 2020. I delivered an <em>ex tempore</em> judgment in which I dismissed it with costs.</p> <p>            On 2 March, 2021 the registrar of this court wrote a minute to me. The minute advised that the applicant appealed my decision of 19 November, 2020 and that he required reasons for purposes of the appeal. My reasons are these:</p> <p>            The application falls under section 14 of the High Court Act [<em>Chapter 7:06</em>] (“the Act”). It is one for a declaratur. The declaratory order which is sought by the applicant is premised on the contract of sale which the first respondent concluded with him on 11 December, 1979. He purchased from it stand number 8763, Glenview area, Harare (“the property”) for the total sum of $582 which was to be paid off during the period which extended from 1 January 1980 to 31 December, 2010 at a monthly instalment of $4.65.</p> <p>He alleges that he paid full purchase price for the property. He, therefore, moves me to declare him to be the owner of the property which is the subject of his application. His draft order reads in the following terms:</p> <p>          “IT IS ORDERED THAT:</p> <p> </p> <ol> <li>The application for a declaratory order be and is hereby granted.</li> </ol> <p> </p> <ol> <li>The applicant be and is hereby declared the owner of stand number 8763, Glenview, Harare.</li> </ol> <p> </p> <ol> <li>It is hereby declared that there is no encroachment of any structure build (sic) on stand number 8763 by the applicant into any other stand as such construction is within the boundaries as indicated by both the cite (sic) plan and the building plan and was consequently approved by the first respondent.</li> <li>  The first respondent be and is hereby ordered to tender and facilitate transfer of rights, title and interest in stand number 8763, Glenview, Harare within 7 days of this order.</li> </ol> <p> </p> <ol> <li>Failing to comply with clause 4 of this order, the sheriff be and is hereby authorised to sign all necessary document (sic) for purposes of lodging title deed application with the second respondent.</li> </ol> <p> </p> <ol> <li>The second respondent be and is hereby ordered to accept documents lodged with him in compliance with either part 4 or 5 of this order for purposes of transfer of rights, title and interests (sic) in stand number 8763, Glenview, Harare.”</li> </ol> <p> </p> <p>                  The first respondent opposes the application. It raises three <em>in limine</em> matters the first two of which are, in my considered view, of an inconsequential nature and do not, therefore, deserve my full attention. The last preliminary matter, which has some merit, will be considered in the body of this judgment. It states, on the merits, that the applicant encroached on to the land which it did not sell to him. It denies that the dimensions of the site plan of the applicant tallied with those of the durawall which he was constructing on the property. It insists that he should remain within the confines of the dimensions of the site plan and the surveyor-general’s map. It denies that the applicant paid full purchase price for the property. It alleges that he made an effort to use the court to vary the terms of its contract with him. It moves me to dismiss the application with punitive costs.</p> <p>            The first respondent’s preliminary point which is to the effect that the application is fatally defective on account of the fact that it was filed at this court and not at the court of the magistrate for the district of Salisbury cannot hold. It cannot hold because, whilst there was, as at the time of the conclusion of the contract, the court of the magistrate for the district of Salisbury, that court no longer exists in independent Zimbabwe. There is sufficient knowledge for the stated proposition judicial notice of which is also taken of the same.</p> <p>            The applicant could not, on the strength of the reasoning in <em>Macfoy</em> v <em>United Africa Ltd</em> [1961] ALL ER 1169 approach a non-existent court of Salisbury. He was, therefore, within his rights to file his application with this court upon which the Constitution of Zimbabwe confers inherent jurisdiction which no parties’ submission clause can oust. Clause 22 of the agreement of the applicant and the first respondent is, therefore, of no moment and the preliminary matter which is premised upon it is without merit.</p> <p>            Whether or not the applicant had to, or did actually, comply with the requirements which are set out in clause 14 of the parties’ contract remains an issue for debate. The clause allows the applicant who is the purchaser <em>in casu</em> to apply to the first respondent which is the seller to transfer the stand/property to him.</p> <p>            The success, or otherwise, of his application does, in terms of the mentioned clause, depend on the applicant satisfying the first respondent on the fact that:</p> <p>“i)        he has constructed a house on the property within three years of the existence of his contract with it – and</p> <p> </p> <p>ii)         he has paid full purchase price for the property which price includes interest and such charges as are referred to in clause 4 of the contract.” (emphasis is added).</p> <p> </p> <p>            Because the first respondent raised the above mentioned <em>in limine</em> matter in its opposing papers, it was within the applicant’s right to deal with the issue of his compliance with clause 14 of the contract in his answering affidavit. He, in my considered opinion, had no choice but to do justice to his own side of the case. He had to do so, notwithstanding the fact that he had not substantively referred to the clause in his founding affidavit. The first respondent’s preliminary matter which touches upon the applicant’s compliance with clause 14 of the parties’ contract is without merit.</p> <p>The branch of the law under which the application was filed has already been identified. Section 14 of the Act upon which the application rests enjoins me, at my pleasure, to inquire into and determine the applicant’s existing, future or contingent right or obligation. For me to do so, however, the applicant must allege and show, on a balance of probabilities, that he has a direct and substantial interest in the matter which is the subject of my inquiry.</p> <p>            The full text of the section of the Act which relates to the application is relevant. The text places the application which is before me into context. The section, therefore, reads as follows:</p> <p>“The High Court may in its discretion at the instance of any interested person, inquire into and determine any existing, future, contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination”. (emphasis added)</p> <p> </p> <p>The above-cited section of the Act is divided into two very important segments. The first relates to my power as well as discretion to inquire into and determine the applicant’s right or obligation. The second relates to the applicant’s inability to claim any relief which is of a consequential nature following the inquiry and/or determination which may have been made in his favour by the court. The emphasis which I made in the cited portion of the quoted section of the Act relates to the second segment of the same.</p> <p>It is evident, from a reading of the underlined words which begin with “notwithstanding” and end with “determination” ..., that the applicant’s ability to the apply for relief which is of a consequential nature is so curtailed that it cannot be countenanced.</p> <p>Section 14 of the Act, it is apparent, gives with one hand and takes with the other. It confers a discretion on me to inquire into, determine and declare the applicant’s existing, future or contingent right. It, in the same vein, takes away from the applicant the right to claim any relief which results from the declaration which I make in his favour unless and until he combines his section 14 of the Act application with some such other application as compels the first respondent to transfer title in the property to the applicant.</p> <p>Because this application is a purely s 14 of the Act one which is not combined with any other application as should have been the case where the applicant wants title in the property to be transferred from the first respondent to him, paras 4, 5 and 6 of the draft order cannot stand. They cannot stand because they owe their existence to the declaratur which he is moving me to grant to him. They are of a consequential nature. The applicant cannot, therefore, claim any relief which is premised on what the law prohibits him from doing.</p> <p>That the applicant purchased stand number 8763, Glenview, Harare from the first respondent requires little, if any, debate. That he paid instalments towards his purchasing of the property is a matter which is of a common cause nature as indeed is the fact that he constructed/is constructing a durawall which constitutes the perimeter of the property upon which he has built/ is building a structure which will serve/is serving as his home.</p> <p>            The context in which the dispute of the applicant and the first respondent must be understood is not only important. It is also pertinent. The dispute is not as the applicant asserts. It is not that he constructed a durawall on the property which he purchased from the first respondent. Nor is it that the house which he is constructing on the property is without the approval of the first respondent.</p> <p>The dispute is that, in constructing the durawall which marks the boundary of the land which the first respondent sold to him, the applicant allegedly exceeded the dimensions of the land which he purchased from the first respondent. The dispute, in other words, centres on the size or area of the land which he purchased. The first respondent defines the dispute in a clear and unequivocal manner. It does so in para 8 of its opposing papers. It states, in the same, that the dimensions of the site plan do not tally with the dimensions which relate to the durawall which the applicant has constructed/is constructing on the property.</p> <p>            The applicant’s statement on the issue which relates to the first respondent’s abovementioned assertion is to the contrary. He states that the durawall which he has constructed /is constructing on the property does not, as the first respondent alleges, encroach into the site plan of the surveyor-general. He, in short, denies that there is an illegal extension of the boundary of his property into an adjacent stand. He insists that the dimensions of his property are in <em>sync </em>with the site plan of the surveyor –general.</p> <p>            The surveyor-general’s plan which the applicant attached to the application and marked annexure C does not, on its own, assist his case at all. The applicant cannot speak to it in any meaningful way. He cannot, from its mere sight, tell the area of the property which the first respondent sold to him. Nor can the court do so from its reading of the same.</p> <p>            The case of the applicant is exacerbated by the fact that the size of the land which he purchased from the first respondent remains unstated in the agreement of sale which the parties concluded on 11 December, 1979. Because annexure C as read with the agreement of sale does not resolve the dispute of the parties, the first respondent’s allegation which is to the effect that he encroached onto the land/property which it did not sell to him cannot be said to be a far- fetched matter. It, if anything, is a material dispute of fact which cannot be resolved on the papers. It cannot because, whilst he states that he did not encroach, the first respondent continues to assert, as it is doing, that he encroached onto land which it did not sell to him.</p> <p>What is created out of the above stated set of circumstances is a situation where the word of the applicant cancels that of the first respondent and <em>vice versa</em>. That cannot be resolved on the papers which the parties have placed before the court. There is need for what is called evidence <em>aliunde </em>which would unlock the parties’ dispute.</p> <p>            It is for the abovementioned reason , if for no other, that I am persuaded to subscribe to the view of the first respondent which is to the effect that the application contains material disputes of fact which go to the root of the case. Where such exist, as they do in <em>casu</em>, those can only be resolved through action, as opposed to application, proceedings. They are resolved through the procedure which, in other words, allows the hearing of <em>viva voce</em> evidence which clears the air for the benefit of the case of the parties.</p> <p>            The law which relates to an application which suffers the defect of material disputes of facts is clear. It states that, where such material disputes of fact exist, as is the case in <em>casu</em>, the court has a discretion which it must exercise in a judicious manner. It can dismiss the application as a whole: <em>Magurenje</em> v <em>Maphosa &amp; Ors</em> 2005 (2) ZLR 44 (H), or, it can allow the application to go to evidence with a view to resolving the observed dispute of facts: <em>Masakusa</em> v <em>National Foods Ltd &amp; Anor</em>, 1983 (1) ZLR 232. The choice remains that of the court.</p> <p>            It is evident, from a reading of the foregoing, that where the applicant’s attention has been, or is, drawn to the possibility, or as in <em>casu,</em> the probability of the existence of material disputes of fact, its best course of action would be to withdraw the application and adopt the course which better suits the achievement of its intention. Where it persists with its application when its attention has been drawn to the existence of material disputes of facts, the applicant cannot be heard to be crying foul when the court refuses to show any sympathy to it. It has, in such a case, no one to blame but itself for its unwholesome conduct.</p> <p>            Not only did the word of the applicant cancel that of the first respondent and <em>vice versa</em> on the issue which relates to the applicant’s alleged encroachment on land which the first respondent says it did not sell to him. The issues of whether or not the applicant paid full purchase price for the property is a matter which also remains in the balance. He alleges that he did and it asserts to the contrary on the same matter. It states that he did not pay full purchase price for the property.</p> <p>            The law of procedure places the <em>onus</em> on the applicant to prove, on a balance of probabilities, that he paid full purchase price for the property. He alleged. He, however, did not prove that he paid full purchase price. He did not rebut the assertion of the first respondent which says he did not pay full purchase price for the property. He, in other words, produced no evidence which supports the allegation that he paid full purchase price for the property.</p> <p>            The above-stated matter creates another challenge for the applicant. It draws him into one other material dispute of fact from which he must emerge in a clear and unambiguous manner. He would simply have discharged the <em>onus</em> which the law places upon him by producing receipts of the payments which he made to the first respondent towards purchasing of the property. The fact that he did not produce even one single receipt of his alleged payment of the instalments which the first respondent and him agreed upon shows nothing other than that he did not pay full purchase price for the property.</p> <p>The following text which appears in the first respondent’s opposing papers as read with those of the applicant’s answering affidavit brings to the fore the probabilities of the matter which relates to payment of the purchase price by him to the first respondent.</p> <ol> <li>“It is denied that the applicant became entitled to transfer of ownership of 8763 Glen View Harare. The applicant has not furnished the court with evidence of his compliance with the requirement to make full payment to the 1st respondent. I am advised that the proper pleading regarding payments would have been a proven allegation that I did not fulfil my financial obligations. This could have been simply proven by the statement of what is outstanding and the <em>onus</em> would have shifted to me to prove otherwise.”[emphasis added].</li> </ol> <ol> <li>I am advised that the proper pleading regarding payments would have been a proven</li> </ol> <p>allegation that I did not fulfil my financial obligation. This could have been simply proven by the statement of what is outstanding and the <em>onus</em> would have shifted to me to prove otherwise” (emphasis added.)</p> <p>Whatever the applicant meant to convey in stating as he did at paragraph 19 of his answering affidavit in response to what the first respondent stated in paragraph 8 of his opposing papers remains a matter for complete conjecture. It is a matter for anyone’s guess. There is no obligation on the part of the first respondent to show what the applicant paid and what sum of money remains not paid to it by him. He states that he paid full purchase price for the property. The <em>onus,</em> therefore, lies upon him, and not upon the first respondent, to prove that what he asserts conforms with the reality of his case. He, in other words, cannot be allowed to put the cart before the horse and move that the cart should pull the horse. The contrary of the postulated position holds true.</p> <p>The applicant’s attempt to go by way of inductive, as opposed to deductive, logic is not only intriguing. It also exposes his situation in a very irredeemable manner. The defence of prescription which he raises in his answering affidavit constitutes sufficient evidence which supports the allegation that he did not pay full purchase price for the property. His statement, put in a paraphrased form, is that “I paid full purchase price….if the first respondent insists that  I did not do so, the debt which relates to the unpaid sum has become extinct by operation of  law…it has prescribed….”</p> <p>Paragraph 21 of the answering affidavit is apposite in regard to the above-stated matter. It appears at p 30 of the record. It reads, in part, as follows;</p> <p>“…..the prescription act calls for a debt to be claimed within 3 years of any due date of such payments. If the last instalment was to be made by end of December 2010 then by December 2013 the claim for that debt ought to have been made. Failing which the debt, is also deemed prescribed by operation of law. None payment of outstanding debt apart from lack of proof can no longer be raised as an issue in defence of a claim to transfer title into my name.” (emphasis added)</p> <p> </p> <p>It is when the circumstances of the above-cited portion of the answering affidavit are placed into context that it becomes apparent that:</p> <ol> <li>the applicant does not prove that he paid full purchase price for the property and/or</li> <li>because of the stated matter, he cannot move me to compel the first respondent to transfer title in the property from it to him and /or</li> <li>his best option was/is to move for a declaratur in which he had no  choice but to pray for a relief which was/is for a consequential nature and cannot at law, therefore, be made.</li> </ol> <p>That the applicant has a direct and substantial interest in the property which forms the subject of my inquiry requires little, if any, debate. The contract which the first respondent and him signed confers personal rights upon him from which flows his right to sue for a declaratur. However, as the first respondent correctly states, the issue is not whether or not the applicant:</p> <ol> <li>purchased the property; or</li> <li>constructed  a structure on the same, or</li> <li>constructed a durawall at the property.</li> </ol> <p>The issue, in context, is whether or not the applicant, in constructing the durawall which demarcates the boundaries of his property from other properties or from the respondent’s land encroached on to land which the first respondent did not sell to him. He alleges that he did not. He, however, produces no evidence which supports the allegation.</p> <p>To the extent, therefore, that the allegation remains unrebutted, the applicant cannot claim to have a direct and substantial interest on a matter which relates to land which is not included in his contract of sale. He has no interest at all on such land. He, in short, does not have any existing, future or contingent right to the land which the respondent did not sell to him. That land falls outside his contract with the respondent. He has no relationship with it. He has neither personal nor real rights in respect of it.</p> <p>It is on the strength of the above-stated matters that a declaration cannot be made in the applicant’s favour. A declaratur, it is trite, cannot be made for a non-existent right or obligation. The applicant has neither a right nor an obligation to the first respondent in regard to the land which the latter refers to as an encroachment by him onto its land. There are no contractual rights and/or obligations which exist <em>inter partes</em> <em>vis-à-vis</em> the disputed portion of the property.</p> <p>I considered all the circumstances of this case. I am satisfied that the applicant’s motion for a declatur is ill-conceived. It stands on nothing. It has no merit at all. It is, in the result, dismissed with costs.</p> <p> </p> <p> </p> <p> </p> <p><em>Kanokanga &amp; Partners,</em> respondent’s legal practitioners</p> <p><em>Stansilous &amp; Associates</em>, applicant’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/harare-high-court/2021/262/2021-zwhhc-262.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=34117">2021-zwhhc-262.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/2021/262/2021-zwhhc-262.pdf" type="application/pdf; length=360742">2021-zwhhc-262.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/contract">CONTRACT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/specific-performance">Specific performance</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/dispute-facts-practice-and-procedure">Dispute of facts (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/s">S</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/sale">SALE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/contract-sale-0">Contract (SALE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interpretation-contract-sale">interpretation of contract for sale</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/1981/29">High Court Act [Chapter 7:06]</a></div></div></div> Thu, 10 Jun 2021 07:35:56 +0000 Sandra 10042 at https://old.zimlii.org Chiangwa v Katerere And 5 Others (SC 61-21, Civil Appeal No. SC 433/19) [2021] ZWSC 61 (24 May 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/61 <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 61/21</p> <p>Civil Appeal No. SC 433/19</p> <p><strong>DISTRIBUTABLE</strong><strong>  (58)</strong></p> <p> </p> <p><strong>COSMA     CHIANGWA</strong></p> <p><strong>v</strong></p> <ol> <li><strong>    DAVID     KATERERE     (2)     ROBERT     ADRIAN     CAMPBELL     LOGAN     (3)     ISRAEL     GUMUNYU</strong></li> </ol> <p><strong>(4)     REGISTRAR     OF     DEEDS     (5)     EDMOND     CHIVHINGE     (6)     MASTER     OF     THE     HIGH     COURT</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABAWE                                                               </strong></p> <p><strong>BHUNU JA, MATHONSI JA &amp; CHITAKUNYE AJA</strong></p> <p><strong>HARARE: 15 OCTOBER 2020 &amp; 24 MAY 2021.</strong></p> <p> </p> <p> </p> <p><em>F. Girach,</em> for the appellant</p> <p><em>A. Saunyama</em> with <em>M.</em> <em>Chipetiwa,</em> for the first respondent</p> <p>No appearance, for the second to sixth respondents</p> <p> </p> <p><strong>       CHITAKUNYE AJA</strong>:   This is an appeal against the whole judgment of the High Court (“the court <em>a quo</em>”) handed down on  15 June 2011 wherein the court <em>a quo</em> granted an application for a declaratur that the sale and transfer of Stand 382 Good Hope Township to the appellant was null and void.</p> <p> </p> <p> </p> <p><strong>FACTUAL BACKGROUND </strong></p> <p>       The matter before the court <em>a quo</em> was a court application for a declaration of the sale and registration of Stand 382 Good Hope Township of Subdivision B of Good Hope into the appellant’s name as being null and void.</p> <p> </p> <p>       In November 1999 the first respondent entered into an agreement of sale in terms of which he purchased an immovable property, namely Stand 382 Good Hope Township of subdivision B of Good Hope, from the estate of the late Johanna Maria Francisca Logan as represented by the executrix testamentary of the estate. The immovable property was transferred to the first respondent on 2 April 2007 by virtue of deed of transfer number 1597/2007.</p> <p> </p> <p>                   On 1 October 2006, one Tsungirai Musenha and the appellant, represented by third respondent, filed an application in the Magistrates’ Court in Case No. 12060/06 citing Robert Adrian Campbell-Logan, estate late Maria Johana Campbell-Logan and the Registrar of Deeds as respondents. They alleged therein that the second respondent had sold to them and they had purchased Stands Numbers 412 and 382 Good Hope Township of Subdivision B of Good Hope. On 5 October 2006 a rule <em>nisi</em> was granted by the Magistrates’ Court, interdicting the 3 respondents and all those acting through them  from disposing or transferring to anyone Stand Numbers 412 and 382 respectively being subdivisions of the remainder of subdivision B of Good Hope held under Deed Number 6180/95 pending the return date. The return date was, however, not stated in the order.</p> <p> </p> <p>                   On 29 November 2006 the sixth respondent issued Letters of Administration appointing the third respondent as executor <em>dative</em> to administer the estate of the late Maria Johanna Francisca Campbell-Logan, for the sole purpose of effecting transfer of Stand Number 382 into the name of Cosma Chiangwa, (the appellant herein). On 4 July 2007 Stand 382 was transferred into the name of the appellant by deed of transfer 4079/2007.</p> <p> </p> <p>                   This prompted the application in the court <em>a quo</em> wherein the first respondent sought an order that the sale, registration and transfer of the property in question to the appellant be declared null and void, that the appointment of the third respondent as executor<em> dative</em> of the estate of the late Maria Johanna Francisca Campbell-Logan be declared null and void and that the first respondent be declared the sole owner of the property in question. The first respondent averred that the appointment of the third respondent as the executor <em>dative</em> of the estate during the lifetime of the executrix testamentary and during a period when the executrix testamentary was still holding office and was not incapacitated was not valid in law. He also averred that when the second respondent sold Stand 382 to the appellant, he had no title to pass and that the sale was done in the second respondent’s personal capacity and without authority. He further averred that when the second respondent sold the property to the appellant he knew that it had already been sold to the first respondent as he had co-signed the agreement of sale between the first respondent and the executrix testamentary.</p> <p> </p> <p>                   Further, it was also alleged by the first respondent that the fourth respondent registered the property into the name of the appellant without checking his register. Furthermore, that the fifth respondent, who was the conveyancer of the property did not perform due diligence before drafting and lodging conveyancing papers with the Deeds Registry. Had he exercised due diligence and care he would have discovered that the immovable property belonged to the first respondent as it had already been registered into his name more than two months earlier. The first respondent further indicated that the position that was stated by the executrix testamentary in the letter of 1 September 2007 was the correct position at law. The letter had raised, with the sixth respondent, the invalidity of the appointment of the executor <em>dative</em> as it was done when the executrix testamentary had not been removed from office by a competent court or judge. It was thus averred that the sixth respondent acted without authority when he appointed the third respondent as executor <em>dative</em> and consequently all acts done by the executor <em>dative</em> in relation to the transfer of the property were of no force or effect.</p> <p> </p> <p>                   On the other hand, the appellant contended that the application ought not to succeed for the reason that the first respondent was alleging fraud on the part of the persons who prepared and authored the documents which are being challenged and that such persons would need to be cross examined in trial proceedings. Secondly, he contended that there were disputes of fact which could not be resolved on the papers, such disputes being in relation to how two agreements of sale could have been concluded for the same property; how the Master authorized third respondent to deal with the property and how the first respondent (applicant then) sought to register his property with the fourth respondent. These issues, he contended, could not be adequately addressed in affidavits. Thirdly, he contended that the first respondent did not challenge or cause the suspension of the ‘compellation order authorizing transfer of the property in issue emanating from Case No 1206/06 granted by the Magistrates Court in default on 8 November 2006. He further contended that the court therein decided that the property belonged to him and until that order is suspended, the court <em>a quo</em> could not hear the first respondent’s case.</p> <p>                   The appellant also contended that the first respondent had no real rights over the property in question and that the Registrar of Deeds had confirmed by letter that the property belongs to him. He contended that the first respondent’s supposed title deed is not a valid title deed and does not confer any rights on him hence the first respondent could not challenge the registration of a property which he does not own. As such he averred that there was no double registration of the immovable property in issue.</p> <p> </p> <p>                   The appellant further contended that the first respondent’s purported agreement of sale dated November 1999 with the executrix testamentary was invalid because the executrix testamentary did not then have authority from the sixth respondent to sell the property, such authority only having been granted by the sixth respondent on 27 February 2006. He further averred that the first respondent had sued the wrong party as he should have sued the estate from which his rights emanate in terms of the agreement of sale. The appellant thus moved the court to dismiss the application with costs on the higher scale.</p> <p> </p> <p>                   After considering submissions from the parties and papers filed of record, the court <em>a quo</em> found that the appellant’s deed was unlawful and therefore null and void as his registration as owner was subsequent to that of the first respondent over the same property. It was held that this was sufficient justification for the court to declare the registration of the appellant as owner to be null and void as deeds follow the sequence of their relative causes. It also found that at the time ownership was purportedly passed to the appellant, the property no longer belonged to the estate but to the first respondent thus it had no rights to transfer to the appellant. Pertaining to the executor, the court <em>a quo</em> found that the appointment of the third respondent was irregular in that he was appointed as executor <em>dative</em> whilst the executrix testamentary was still alive, holding office, not incapacitated and still sane, thus rendering any acts carried out by him in the name of the estate as of no legal consequence.</p> <p> </p> <p>                   The court <em>a quo</em> further found that the property was sold to the appellant by the second respondent who was an heir to the estate at a time when such property had not yet vested in him. It was on this basis that the court <em>a quo</em> held the purported sale to be fraught with illegality and therefore a nullity. It thus concluded that both the agreement of sale and the deed of transfer in favour of the appellant were in the circumstances null and void. Pertaining to the interdict, the court <em>a quo</em> found that the interim interdict granted had no return date and that it could not have been the intention of the Magistrates Court for it to be operative indefinitely as it could end up having the effect of a final interdict. It further found that the first respondent was not a party to the proceedings in that matter in which the interim interdict was granted hence the order could not bind him. On this basis, it found that the purported transfer to the appellant was invalid.</p> <p> </p> <p>                   Aggrieved by the decision of the court <em>a quo</em>, the appellant noted the appeal to this Court on the following grounds;</p> <p> </p> <ol> <li>The Learned Judge <em>a quo</em> erred in failing to appreciate and make a finding that there was a material dispute of fact regarding the validity of the agreements of sale between appellant and first respondent and consequently the deeds of transfer, which disputes could not be resolved on the papers.</li> <li>The learned Judge <em>a quo</em> erred in her finding that the Regional, Town and Country Planning Act has no application in this matter yet it is the law that regulates agreements relating to the sale of land.</li> <li>The learned judge <em>a quo</em> erred at law in invalidating the appointed executor <em>dative</em> and setting aside his actions when such an appointment was a legal requirement for the purposes of transferring property into appellant’s name.</li> <li>The learned judge <em>a quo</em> erred at law in relying upon an agreement of sale which was never placed before the court for its scrutiny.</li> </ol> <p> </p> <p><strong>ISSUES FOR DETERMINATION</strong></p> <p>                   Three issues arise for determination being;</p> <ol> <li>Whether or not the court <em>a quo</em> correctly found that there were no material disputes of fact.</li> <li>Whether or not the court <em>a quo</em> correctly found that the Regional, Town and Country Planning Act did not apply in the present circumstances and,</li> <li>Whether or not the court <em>a quo</em> erred in invalidating the agreement of sale between appellant and second respondent, the appointment of the executor <em>dative</em> and subsequently the purported transfer of the property into the appellant’s name.</li> </ol> <p> </p> <p><strong>SUBMISSIONS BEFORE THIS COURT</strong></p> <p>                   In motivating the appeal, appellant’s counsel submitted that the order of the court<em> a quo</em> was incompetent as it conflicted with another order of the Magistrates Court in terms of which a <em>rule nisi</em> was issued prohibiting the second and third respondents from transferring or disposing of the property in dispute.  He submitted that the court <em>a quo</em> ought to have set aside that order, failure of which it remains extant and commands obedience until set aside. He further submitted that the first respondent’s agreement of sale with the executrix testamentary of November 1999 is a nullity because the executrix testamentary at the point of concluding the agreement did not have authority to sell the property which consent she only obtained on 27 February 2006. Counsel further submitted that the first respondent’s case is premised on an agreement of sale which is void <em>ab initio</em> for the reason that the sale was conditional upon the grant of a subdivision permit in terms of the Town and Country Planning Act, [<em>Chapter 29:12</em>]. It was submitted that the said Act specifically proscribes such agreements as <em>in casu</em>. He also argued that there were material disputes of fact which could not be resolved on the papers. In that light he moved that the appeal be allowed and that the matter be referred for trial.</p> <p> </p> <p>                   Conversely, counsel for the first respondent submitted that the <em>rule nisi</em> did not have a return date hence it lapsed on 31 of December 2006 as it could not have been the intention of the Magistrates Court that it should operate indefinitely. Counsel also submitted that the property in dispute was sold to the appellant by an heir who had no power to sell. She stated that the power to sell vested in the executrix testamentary hence the sale was invalid. She further submitted that the executor <em>dative</em> (third respondent) had solicited for his own appointment so as to transfer the property to the appellant which conduct she alleged was improper as he was an agent for the appellant. She moved that the appeal be dismissed.</p> <p> </p> <p><strong>DETERMINATION OF THE ISSUES </strong></p> <p> </p> <ol> <li><strong>Whether or not the court <em>a quo</em> correctly found that there were no material disputes of fact.</strong></li> </ol> <p> </p> <p>                   The appellant in his first ground of appeal averred that the court <em>a quo</em> erred in failing to appreciate and make a finding that there were material disputes of fact regarding the validity of the agreements of sale between appellant and first respondent and consequently the deeds of transfer, which disputes could not be resolved on the papers.</p> <p> </p> <p>                   A material dispute of fact arises where a party denies material allegations made by the other and produces positive evidence to the contrary. Generally in considering whether or not there is a material dispute of fact, the court is enjoined to adopt a robust common sense approach to such defenses when raised by litigants. In <em>Soffiantini v Mould</em> 1956 (4) SA 150 (E) the court made the following pertinent comments.</p> <p>“ If by a mere denial in general terms a respondent can defeat or delay an applicant who comes to court on [application], then [application] proceedings are worthless, for a respondent can always defeat or delay a petition by such a device. It is necessary to make a robust, common-sense approach to a dispute on [application] as otherwise the effective functioning of the court can be hamstrung and circumvented by the most simple and blatant stratagem. The court must not hesitate to decide an issue of fact on affidavit merely because it may be difficult to do so. Justice can be defeated or seriously impeded and delayed by an over-fastidious approach to dispute raised in affidavit<em>.”</em></p> <p> </p> <p> </p> <p>                   In <em>Muzanenhamo v Officer in Charge CID Law and Order and Others</em> 2013(2) ZLR 604(S) at 608A-F PATEL JA aptly stated, <em>inter alia</em>, that-</p> <p>“As a general rule in motion proceedings, the courts are enjoined to take a robust and common sense approach to disputes of fact and to resolve the issues at hand despite the apparent conflict.  The prime consideration is the possibility of deciding the matter on the papers without causing injustice to either party. ……………………</p> <p>The first enquiry is to ascertain whether or not there is a real dispute of fact. As was observed by MAKARAU JP (as she then was) in <em>Supa Plant Investments (Pvt) Ltd</em> v <em>Chidavaenzi</em> 2009 (2) ZLR 132 (H) at 136F-G:</p> <p>‘A material dispute of facts arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.’</p> <p>In this regard, the mere allegation of a possible dispute of fact is not conclusive of its existence. …………….</p> <p>The respondent’s defence must be set out in clear and cogent detail.  A bare denial of the applicant’s material averments does not suffice.  The opposing papers must show a <em>bona fide</em> dispute of fact incapable of resolution without <em>viva voce</em> evidence having been heard. See the <em>Room Hire Co.</em> case, <em>supra</em>, at 1165, cited with approval in <em>Vittareal Flats (Pvt) Ltd</em> v <em>Undenge &amp; Others</em> 2005 (2) ZLR 176 (H) at 180C-D; <em>van Niekerk</em> v <em>van Niekerk &amp; Others</em> 1999 (1) ZLR 421 (S) at 428F-G.” (underlining for emphasis)</p> <p> </p> <p>                   Where there is a material dispute of fact the court may dismiss the application, order oral evidence or refer the matter to trial with such orders as to pleadings as it sees fit.</p> <p>Upon a consideration of the alleged disputes of fact I am of the view that the court <em>a quo</em> did take cognizance of the fact that the issue of the validity of the agreements of sale could be resolved without resorting to trial. The appellant did not show that the issue was incapable of resolution on the papers. The first respondent’s papers were clear and concise. He entered an agreement of sale with the executrix testamentary in 1999. The executrix received her letters of administration in 1998 and obtained authority to sell in 2006 and thereafter in April 2007 transfer of the property was effected. That the first respondent’s transfer papers were lodged and signed for by the Registrar of Deeds in April 2007 is without doubt. The executrix as the lawful representative of the estate had the right to authorise transfer to first respondent when she did so.</p> <p> </p> <p> </p> <p>                   On the other hand, the appellant’s registration papers were only effected in July 2007. Section 10 of the Deeds Registries Act, [<em>Chapter 20:05</em>] provides that<strong>:</strong></p> <p><strong>“10 When registration takes place </strong></p> <p>(1) Deeds executed or attested by a registrar shall be deemed to be registered upon the affixing of the registrar’s signature thereto:</p> <p>Provided that no such deed which is one of a batch of interdependent deeds, intended for registration together, shall be deemed to be registered until all the deeds of the batch have been signed by the registrar.</p> <p>(2) If by inadvertence the registrar’s signature has not been affixed to a deed at the time at which the signature should have been affixed in the ordinary course, the registrar may affix his signature thereto when the omission is discovered, and the deed shall thereupon be deemed to have been registered at the time at which the signature should have been affixed. </p> <p>(3) All endorsements or entries made on title deeds or in registers in connexion with the registration of any deed executed or attested by a registrar shall be deemed to have been effected simultaneously with the registration of such deed, although in fact they may have been made subsequent thereto.” (Underlining for emphasis)</p> <p> </p> <p> </p> <p> </p> <p>                   By virtue of this section the first respondent’s title was deemed to have been registered on 2 April 2007 under transfer number 1597/2007 when the registrar affixed his signature.</p> <p> </p> <p>                   Section 11 of the Act further provides for deeds to follow sequence of their relative causes in these words:-</p> <p>“(1) Save as otherwise provided in this Act or as directed by the court—</p> <p>(<em>a</em>) transfers of land and cessions of real rights therein shall follow the sequence of the successive transactions in pursuance of which they are made, and if made in pursuance of testamentary disposition or intestate succession they shall follow the sequence in which the right to ownership or other real right in the land accrued to the persons successively becoming vested with such right;</p> <p>(<em>b</em>) it shall not be lawful to depart from any such sequence in recording in any deeds registry any change in the ownership in such land or of such real right unless the registrar is satisfied that the circumstances are exceptional and has consented to such departure:” (underlining for emphasis)</p> <p> </p> <p> </p> <p> </p> <p>                   From the foregoing it was clear that the first respondent’s registration of title preceded the appellant’s. There was nothing unclear about the first respondent’s case in this regard.</p> <p> </p> <p>                   It was the appellant’s case that left one with more questions than answers. He had purportedly bought the property from an heir who had no legal right to deal with the property and appellant’s agent was appointed executor <em>dative</em> upon his own solicitation when the executrix testamentary was still in office. He then had proceeded to effect transfer of the property three months after the first respondent had filed his transfer papers and the registrar had acknowledged their receipt by affixing his signature thereto thus complying with s 10. The fact that the appellant’s papers were inexplicably finalized first by the fourth respondent does not detract from the sequence of the lodging of the papers. In his papers the appellant had not proffered any reasonable explanation to that course of events. Unfortunately for appellant <em>s</em>s 10 and 11 protected the first respondent’s position as the registrar had affixed his signature on 2 April 2007.</p> <p> </p> <p>                   It was clear that with regard to the agreements of sale there was no real dispute as to their sequence and parties thereto. The agreements of sale had similar suspensive conditions acknowledging the state of the subdivision. The first respondent’s agreement of sale was entered into with the executrix testamentary as the legal representative of the deceased’s estate. The appellant’s agreement of sale, on the other hand, was entered into with an heir who had no authority to deal in the property to the exclusion of the executrix.</p> <p> </p> <p>                   In the circumstances the appellant’s request to have the matter referred to trial was only a delaying tactic hence it was not granted. In my view there were no real material disputes of fact. The real issues between the parties were capable of resolution on the papers without the calling of <em>viva voce</em> evidence or referring the matter to trial. There was thus no misdirection in this regard.</p> <p> </p> <ol> <li><strong>Whether or not the court <em>a quo</em> found that the Regional, Town and Country Planning Act did not apply</strong></li> </ol> <p> </p> <p> </p> <p>                   The appellant in his second ground of appeal averred that the court <em>a quo</em> erred in finding that the Regional, Town and Country Planning Act has no application in this matter yet it is the law that regulates agreements relating to the sale of land. The court <em>a quo</em> stated as follows with regards to this Act:-</p> <p>“None of the arguments raised by the first respondent as detailed earlier in this judgment can be of any avail to the first respondent in the face of the above stated and established facts. It would appear to me that the issue of whether or not the provisions of the Regional, Town and Country Planning Act are applicable and if so with what effect, cannot be of any avail to the respondents in the circumstances of this case. Neither can it be the basis for this court in these proceedings, to declare invalid the agreement of sale in favour of the applicant. That agreement has not been subjected to scrutiny by this court. The fact is that the applicant is currently registered as the owner of the property and there is no basis for this court, in these proceedings, to deny the relief sought by the applicant.”</p> <p> </p> <p> </p> <p>                   The above is what the court <em>a quo</em> said with regards to the Act in question. It did not make any findings that the Act did not apply but rather that it would not delve into whether or not it applied in view of its findings pertaining to the registration of the first respondent’s title that preceded that of the appellant which showed that he was the owner of the said property as of 2 April 2007. Such registration of title was done with the authority of the executrix. The facts of the case did not call for such a determination. A reading of the judgment of the court <em>a quo</em> shows that the court did not make any determination on whether or not the Act was applicable in this case hence the allegation by the appellant pertaining to this issue is misplaced and this ground of appeal lacks merit and so must fail.</p> <p> </p> <ol> <li><strong>Whether or not the court <em>a quo</em> erred in invalidating the agreement of sale between the second respondent and the appellant, and the appointment of third respondent as executor <em>dative</em> and nullifying his subsequent actions.</strong></li> </ol> <p> </p> <p> </p> <p>                   In the third ground of appeal the appellant alleged that the learned judge <em>a quo</em> erred at law in invalidating the appointment of the executor <em>dative</em> and setting aside his actions when such an appointment was a legal requirement for the purposes of transferring property into the appellant’s name. It is my view that the court <em>a quo</em>’s findings with regard to this aspect cannot be faulted. This is so because there was a duly appointed executrix testamentary in terms of the deceased’s will. Such appointment had not been nullified or set aside. The court <em>a quo</em> aptly made the following findings in this respect:-</p> <p> “Firstly, the applicant purchased the property in issue from the estate as represented by the executrix testamentary. The first respondent, on the other hand, purchased the same property purportedly from the same estate but in his case the estate was represented by the executor <em>dative</em>. It is an undisputed fact that the executor <em>dative</em> was appointed to the office while the executrix testamentary was still alive, holding office, not incapacitated and still sane. Neither had the executrix testamentary been removed from office. Secondly, the applicant’s agreement of sale preceded that of the first respondent. Thirdly, it is also clear from the papers that the property was registered into the applicant’s name on 2 April 2007 by deed of transfer 1597/2007 while the transfer to the first respondent was done 3(three) months later on 4 July 2007 by deed of transfer 4079/2007<em>”</em></p> <p> </p> <p> </p> <p>                   After discussing the applicable law including <em>ss</em> 10, 11 and 14 of the Deeds Registries Act,  the court <em>a quo</em> proceeded to aptly conclude that:-</p> <p>“…the third respondent having been appointed as executor dative whilst the executrix testamentary was still alive, holding office, not incapacitated and still sane, was improperly appointed. The deceased had left a will in which the executrix testamentary was appointed. The sixth respondent was thus not dealing with an intestate estate. The third respondent’s appointment as executor dative was in the circumstances irregular and any acts carried out by him in the name of the estate would thus be of no legal consequence.</p> <p>According to the affidavit placed before the magistrate in 12060/06, the second respondent who is the heir to the deceased estate, sold the property in issue to the first respondent. It thus appears that the second respondent purported to sell the property before the property had vested in him; hence arises the illegality and nullity of the purported sale to the second respondent (<em>sic</em>). Thus both the agreement of sale and the deed of transfer in favour of the first respondent are in the circumstances null and void.”</p> <p> </p> <p> </p> <p> </p> <p>       The court <em>a quo</em>’s findings in this regard cannot be faulted. 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.</p> <p> </p> <p>       In this regard <em>s</em> 23 of the Administration of Estates Act, [<em>Chapter 6:01</em>] (the Act) provides that:-</p> <p>“The estates of all persons dying either testate or intestate shall be administered and distributed according to law under letters of administration to be granted in the Form B in the second schedule by the Master….”</p> <p> </p> <p>       It follows that in a case involving estates of deceased persons there shall be appointed a representative who is empowered through letters of administration to act for and on behalf of the deceased’s estate. This is so because the deceased estate cannot represent itself. In terms of <em>s</em> 25 of the Act a deceased estate is represented by an executor or executrix duly appointed and issued with letters of administration by the Master.</p> <p> </p> <p>       In <em>Nyandoro &amp; Anor v Nyandoro &amp; Ors</em> 2008 (2) ZLR 219(H) at 222H-223C KUDYA J aptly restated the legal position as follows:-</p> <p>“In <em>Clarke v Barnacle NO &amp; Ors</em> 1958 R&amp;N 358 (SR) at 349B -350A MORTON J stated the legal position that still obtains to this day in Zimbabwe. It is that “whether testate or intestate, an executor, either testamentary or dative, must be appointed…..so that the executor and he alone is looked upon as the person to represent the estate of the deceased person.” He left no doubt that towards the rest of the world the executor occupies the position of legal representative of the deceased with all the rights and obligations attaching to that position and that because a deceased’s estate is vested in the executor, he is the only person who has <em>locus standi</em> to bring a vindicatory action relative to property alleged to form part of the estate.</p> <p>Arising from the nature of a deceased estate as described in <em>Clarke v Barnacle, supra,</em> and <em>Mhlanga v Ndlovu</em>, <em>supra</em>, it must follow that the citation of a deceased estate as a party to litigation is wrong. The correct party to cite in <em>lieu</em> of the deceased estate is the executor by name. The citation of the second plaintiff and second defendant <em>in casu</em> was therefore improper and incurable. It makes their presence before me a nullity.”</p> <p> </p> <p> </p> <p>       The executor/executrix of an estate has certain rights and powers in connection with the estate and certain duties to perform both at common law and in terms of the Act.</p> <p> </p> <p>                   In <em>The Law and Practice of Administration of</em> <em>Estates</em>, 5th ed by D Meyerowitz at p 123 the esteemed author states that:</p> <p>“An executor is not a mere procurator or agent for the heirs but is legally vested with the administration of the estate. A deceased estate is an aggregate of assets and liabilities and the totality of the rights, obligations and powers of dealing therewith, vests in the executor, so that he alone can deal with them.</p> <p> He has no principal and represents neither the heirs nor the creditors of the estate.”</p> <p> </p> <p> </p> <p>                   Further, at p 124 the author firmly states that:</p> <p> </p> <p>“No proceedings can be taken against the estate without making the executor a party to them. Similarly, no person can institute proceedings on behalf of the estate except the executor. The estate cannot sue or be sued until an executor has been appointed.”</p> <p> </p> <p> </p> <p> </p> <p>       If therefore the totality of the rights, obligations and powers of dealing with a deceased estate is vested in an executor/executrix it follows that the executor/executrix must invariably be cited by name in any suit against the estate.  Failure to cite the executor/executrix would be fatal to an action against the deceased’s estate.</p> <p> </p> <p>                   In <em>casu,</em> it is common cause that an executrix testamentary was still in office when the second respondent purported to sell the property in question to the appellant. The sale was without the consent or authority of the executrix. It is also not seriously disputed that the executrix was not cited as a party to the proceedings in the magistrates’ court that the appellant sought to rely on as authority for the third respondent’s actions. The appointment of the third respondent as executor <em>dative</em> was done without citing or involving the executrix. It would appear that the appellant and his agents chose to sidestep the executrix. Such conduct was unlawful and rendered their subsequent actions a nullity.</p> <p> </p> <p>                   A properly appointed executrix cannot simply be ignored or sidestepped when dealing with a deceased estate. If there are any challenges with the executrix the proper procedure is to first seek his removal from office.  An executrix cannot be removed from office or incapacitated from dealing with any asset of the estate by a purported appointment of an executor <em>dative</em>. It must be acknowledged that courts do not lightly remove an executor/executrix in the absence of evidence of serious misconduct or incapacitation that would prejudice the estate. In <em>The Master v Moyo NO &amp; Ors </em>2009 (1) ZLR 119(H) the court held, <em>inter alia</em>, that the removal of an executor should never be undertaken lightly. If the Master applies for the removal of an executor in terms of s 117(1) of the Administration of Estates Act [<em>Chapter 6:01</em>], the court must be satisfied that the executor had failed to perform satisfactorily any duty or requirement imposed on him by, or in terms of, the law. The court also alluded to the legal position that in an application for the removal of an executor, the executor should be cited in his personal capacity, not in his official capacity as executor. When an action is brought against an executor in his representative capacity, it is an action against the estate, rather than one against the individual.</p> <p> </p> <p>                   In <em>casu</em>, there is no evidence on record to show that the executrix testamentary appointed by virtue of the deceased’s will had been removed from office at the time the executor <em>dative</em> was appointed. The evidence, in fact, shows that the executrix was still in office and administering the estate. There was no evidence of any legal process or complaints for her removal from office.</p> <p> </p> <p>                   In light of this, the court <em>a quo’s</em> finding that the appointment of the executor <em>dative</em> was tainted with illegality cannot be faulted. As a consequence all the actions he did subsequent to that faulty appointment were a nullity. This ground of appeal therefore lacks merit. The court <em>a quo</em> could not have upheld an irregularity which <em>in casu</em> is the unlawful appointment of an executor <em>dative</em> to administer the estate in the face of an existing executrix testamentary.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>                   It is evident from the above that all the grounds of appeal lacked merit. In the circumstances the appeal must fail.  On costs there is no reason why costs should not follow the cause. The appeal must be dismissed with costs.</p> <p> </p> <p>                   It is accordingly ordered that:-</p> <p> </p> <p>          “The appeal is hereby dismissed with costs.”</p> <p> </p> <p>           </p> <p><strong>                   BHUNU JA:</strong>                               I agree</p> <p> </p> <p> </p> <p><strong>       MATHONSI JA:                        </strong>I agree            </p> <p> </p> <p> </p> <p><em>Shava Law Chambers, </em>appellant’s legal practitioner</p> <p><em>Chigwanda Legal Practitioners</em>, 1st respondent’s legal practitioner</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/2021/61/2021-zwsc-61.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=48865">2021-zwsc-61.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/2021/61/2021-zwsc-61.pdf" type="application/pdf; length=586020">2021-zwsc-61.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/deceased-estate">Deceased estate</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/executoradministrator-deceaseds-estate">Executor/Administrator of deceased&#039;s estate</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/claims-made-behalf-estate">claims made on behalf of estate</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/immovable-property">IMMOVABLE PROPERTY</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/personal-right-respect-immovable-property">Personal right in respect of immovable property</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rights-and-immovable-property">Rights in and to immovable property</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/dispute-facts-practice-and-procedure">Dispute of facts (PRACTICE AND PROCEDURE)</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/2017/8">Deeds Registries Amendment Act, 2017</a></div><div class="field-item odd"><a href="/zw/legislation/act/1929/12">Administration of Estates Act [Chapter 6:01]</a></div></div></div> Wed, 09 Jun 2021 09:03:35 +0000 Sandra 10027 at https://old.zimlii.org Maziyanhanga v City of Harare (HH 630-20, Civil Appeal 02/20) [2020] ZWHHC 630 (08 October 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/630 <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>JOEL MAZIYANHANGA</p> <p>versus</p> <p>CITY OF HARARE</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>TSANGA &amp; CHIRAWU-MUGOMBA JJ</p> <p>HARARE 10, 22, 24 September &amp; 8 October 2020</p> <p> </p> <p><strong>CIVIL APPEAL </strong></p> <p> </p> <p> <em>J Koto, </em>for the appellant</p> <p><em>R.C Muchenje, </em>for the respondent</p> <p> </p> <p>            CHIRAWU-MUGOMBA J</p> <ol> <li>The appellant seeks an order that the decision of the Magistrate Court sitting at Harare on the 30th of December 2019 in which his application for an interdict was dismissed be set aside, and substituted with one granting the application.</li> <li>The brief facts of the matter are as follows.  Applicant made an application with the respondent in August 2016 for a lease in respect of a piece of land on which to carry out a car sale business.  In April 2019, upon advice, he visited the Mabelreign offices of respondent as a follow up and he obtained what he terms a verbal lease agreement to operate from a 500 square metres piece of land. This was through three unnamed officials of respondent who measured the piece of land.</li> <li>The appellant fenced the measured piece of land and engaged the services of a security guard.  A rental of US$150 was agreed upon and he was allocated a vendor number being 590108351.  Rentals in the stipulated amount were paid for May and June 2019.  The receipts clearly show that payments made were for a vending site.</li> <li>On the 19th of June 2019, the appellant was served with a notice of eviction on the ground that he was illegally occupying land belonging to the respondent.  He was given 48 hours to vacate the premises.</li> <li>Appellant averred that he had a clear right having been allocated the land by unnamed officials in the employee of the respondent. He had been allocated a vendor number and had been paying rentals. He was therefore a legitimate tenant.   If the eviction were to proceed he stood to face financial and reputational damages.</li> <li>In response, the respondent through an affidavit deposed to by its acting chamber secretary, denied that the appellant had made an application for a lease.  The markets officer for the relevant location had denied that they had given the appellant consent to operate.  Council officers are not allowed to enter into verbal agreements and such are approved by the relevant committees before being signed for by the Town Clerk.</li> <li>The respondent had noted that the appellant was benefitting from a reserved area for 12 years without paying and that is the reason why he was asked to make payment.  The money paid by the appellant was not for a lease but for the 12 years of free occupation. The site in question is reserved for vending and a car sale business does not fit into the category.</li> <li>The appellant had no clear right since he was an illegal occupier.  He had no lease agreement with the respondent.</li> <li>In his answering affidavit the appellant raised one point in-limine, that (1) the deponent to the opposing affidavit had not demonstrated her authority to represent the respondent and consequently there was no valid notice of opposition before the court a quo.  He also submitted that the deponent’s evidence was heresay as there were no supporting affidavits from the market officers.</li> <li>In its ruling the court <em>a quo</em> dismissed the point-in-limine and held that the deponent to the opposing affidavit had the requisite authority since she had asserted that she had been authorised. Further that the appellant had been using a piece of land illegally for twelve years without regularising it.   Material disputes of facts were also apparent in the matter that cannot be resolved on paper.  The appellant had failed to prove the existence of a verbal lease and its terms and accordingly he had no clear right.  The schedule of payments by the appellant does not show that he was paying in terms of a lease agreement.  In the absence of a clear right, the application for an interdict was dismissed with costs.</li> <li>The appellant took issue with the dismissal and noted an appeal based on the following grounds. (1) The court a quo erred at law in holding that the notice of opposition was valid despite lack of resolution authorising the deponent to represent the respondent.  (2) The court a quo erred at law in relying on averments contained in the opposing affidavit notwithstanding that the evidence was heresay. (3) The court a quo erred at law in failing to make a determination on the objection by the appellant that evidence on behalf of respondent was heresay and was inadmissible. (4) The court <em>a quo</em> erred in making a finding that there were material disputes of fact which could not be resolved on papers filed of record. (5) The court a quo erred at law in delving into the merits of the matter and making factual findings when it had already held that there were material disputes of facts in the matter and (6).  The court <em>a quo</em> erred at law in holding that appellant had failed to satisfy the requirements of an interdict.</li> <li>At the hearing, Mr <em>Koto </em>abandoned ground one of the grounds of appeal and rightly so since appellant had not invoked the procedure in O4R (3) of the Magistrate Court (Civil Rules) of 2019 (the rules) on challenging of the authority of any person to act for a party.  He also abandoned grounds 2 and 3. Therefore only grounds 4-6 remained for argument. He submitted in his heads of argument and orally that the appellant was not in illegal occupation. Between the time that the appellant submitted his application for a lease, i.e. between August 2016 and the time that he received a response, there was a legal process taking place. The appellant had been allocated a vendor number and he was therefore not an illegal occupier.  There were no material disputes of fact and even if there were, the court <em>a quo</em> ought not to have dismissed the matter but referred to trial.  It was contradictory to then delve into the merits after making a finding that disputes of fact existed.</li> <li>Ms <em>Muchenje</em>, in her heads of argument, and orally, submitted that the court a quo did not err since the appellant failed to prove that he had a lease agreement with the respondent. There were certain processes that needed to be undertaken before one can be said to be in legal occupation. These had not been done in respect of the appellant.  The appellant therefore had not proved a clear right that entitled him to an interdict. If a court finds that there are disputes of fact it has two main courses, i.e. dismiss the application or refer it to trial. The court a quo was correct to hold that there were disputes of fact that could not be resolved on paper. </li> <li>Given the above, in our view the critical issue is whether or not the court <em>a quo</em> erred in not directing that the matter proceed by way of action after making a finding that there were disputes of facts.</li> <li>Order 22(5) of the Magistrates Court (Civil Rules) 2019 gives a court three options that a court may exercise upon hearing all parties. These are (1) refuse the application and give written reasons for such decision (2) grant the application as applied for or as varied and give reasons and (3) order that the issue shall be tried by way of action and give directions as it thinks just to enable such issue to be brought to trial and make such order as to costs as it thinks fit.</li> <li>We agree with Mr <em>Koto </em>that having found that there were material disputes of facts, the court a quo ought to have referred the matter to trial.  Although a court has discretion, see <em>Barrows and Anor </em>v<em> Chimpondah, </em>1999(1) ZLR 58 (S) which should not be interfered with lightly, an error was made in dismissing the matter outright. The appellant had been in operation for a long time and he had been allocated a vendor number and was making payments.  All these issues needed to be delved into to establish what actually transpired.  The respondent would also have an opportunity to defend itself through leading of oral evidence. The respondent submitted in its opposing affidavit that some market officers had denied that a verbal lease was entered into. This and other evidence needed to be led before the court <em>a quo</em>. The dismissal of the claim would mean as rightly pointed to by Mr <em>Koto </em>that the door to the claim would be shut. </li> <li>We therefore find merit in grounds 4 and 5 of the appeal. Ground 6 has no merit given the fact that after finding that there were material disputes of fact, a finding of whether or not requirements for the granting of an interdict were met was not legally competent.  The ground is framed in a manner that suggests that the court <em>a quo</em> was correct to delve into the issue of requirements for the granting of an interdict.</li> <li>Having found that the court <em>a quo</em> erred in dismissing the application and not allowing oral evidence, it would not be competent to grant the order sought by the appellant, i.e. the dismissal of the claim.   In terms of costs, given the fact that both parties did not fully address the critical legal issue, an order will be made that each party bears its own costs. Accordingly the appeal partly succeeds and the following order is issued:-</li> </ol> <p><strong>DISPOSITION </strong></p> <ol> <li>The appeal partly succeeds with each party bearing its own costs.</li> <li>The order of the court a quo is set aside and substituted with the following: - “The matter in case number 9466/19 is remitted to the Magistrates Court for hearing of oral evidence on the merits”.</li> </ol> <p> </p> <p>TSANGA J: agrees</p> <p> </p> <p><em>Koto and Company, </em>appellant’s Legal Practitioners</p> <p><em>Mbidzo, Muchadehama and Makoni, </em>respondent’s Legal Practitioners</p> <p> </p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="Microsoft Office document icon" title="application/msword" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/630/2020-zwhhc-630.doc" type="application/msword; length=38400">2020-zwhhc-630.doc</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/2020/630/2020-zwhhc-630.pdf" type="application/pdf; length=123463">2020-zwhhc-630.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/l">L</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/landlord-and-tenant">LANDLORD AND TENANT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/lease">Lease</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/dispute-facts-practice-and-procedure">Dispute of facts (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/locus-standi-0">Locus standi</a></li></ul></span> Mon, 19 Oct 2020 10:43:19 +0000 Sandra 9871 at https://old.zimlii.org Destiny of Afrika Network v Shoko & 8 Ors (HH 613-20, HC 5145/19) [2020] ZWHHC 613 (30 September 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/613 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>DESTINY OF AFRIKA NETWORK</p> <p>versus</p> <p>SIMANGALISO SHOKO</p> <p>and</p> <p>TRYWEL MUKANDARA</p> <p>and</p> <p>VIOLA MANDUGUZA</p> <p>and</p> <p>FARAI MAKUWERERE</p> <p>and</p> <p>AGRIPA MUPARAGANDA</p> <p>and</p> <p>FAFADZWA DHAKWA</p> <p>and</p> <p>NEVER ZHANERA</p> <p>and</p> <p>LYDIA KASEKE</p> <p>and</p> <p>EVELYN TERA</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>TAGU J</p> <p>HARARE, 7 July and 30 September 2020</p> <p> </p> <p> </p> <p><strong>Opposed application</strong></p> <p> </p> <p><em>D Basopo</em>, for the applicant</p> <p>1st respondent, not served</p> <p><em>K Choga</em>, for the 2nd to 9th respondents</p> <p> </p> <p>            TAGU J: This is a court application for an order that the 1st to the 9th respondents be committed to prison for contempt of court, alternatively that a suspended sentence be imposed on them.</p> <p>The historical background of this case is that the applicant is a non-profit making non-denominational Christian organization which is in the business of carrying out religious and developmental projects. Chief among the projects is the development of land into residential stands for the benefit of the underprivileged and low-income earning members of the society. On the 6th of February 2018 the applicant made an urgent chamber application for an interdict and obtained an order against the 1st to the 9th respondents under case number HC 772/18. The respondents were interdicted from interfering with the operations and activities of the applicant and its members. The applicant is alleging that on various occasions and more particularly on the 7th of April 2019 the respondents interfered with the activities of the applicant by inciting other members from attending the meeting which was called by the applicant. It said this is confirmed by a video clip that was recorded on the day in question and the affidavits of some of the members who were in attendance of the meeting. For this the applicant wants the respondents to be committed to prison for contempt of an extant order. The relief sought is couched in the following terms-</p> <p>           “IT IS ORDERED THAT</p> <ol> <li>The application be and is hereby granted.</li> <li>The 1st to 9th Respondents be and are hereby found to be in contempt of the order of court of 6th February 2018 in that having been served with the orders under HC 722/18, without the authorization of the court the Respondents have continued to interfere with the operations and activities of the Applicant.</li> <li>The 1st to the 9th Respondents be and are hereby ordered to be committed to prison for a period of 30 days, alternatively that this court impose upon the Respondents such sentence as it considers appropriate.</li> <li>The warrant of committal to prison will be suspended on condition that 1st to 9th Respondents cease forthwith to interfere with the operations and activities of the Applicant.</li> <li>The Respondents be and are hereby ordered to pay costs of this application on a higher scale.”</li> </ol> <p>In their notice of opposition the respondents raised some preliminary points. The first point was that there was non-compliance with the rules relating to format of documents to be attached to an application. The second was that there are material disputes of fact. The third is that the application is incomplete.</p> <p>At the hearing of this matter the respondents withdraw the first point <em>in limine</em>. I will examine the other points <em>in limine</em>.</p> <p>MATERIAL DISPUTE OF FACT</p> <p>The respondents argued that the applicant’s papers contain inherent material disputes of fact which cannot be resolved on the papers in that the deponent to the applicant’s founding affidavit does not allege what each of the respondents did and at the same time some of the deponents to the supporting affidavits do not mention the respondents’ names at all as the people who allegedly caused disturbances on the day in question. Where some of the respondents are mentioned, what they allegedly did is not mentioned in precise terms as to point that they interfered with the activities of the applicant. They further submitted that the applicant makes a blanket statement to say the respondents disrupted the meeting without stating what each did. It was their contention that the applicant relies on a video clip whose authenticity is disputed. Some of the supporting affidavits mention persons who are not members of the applicant, and where the members are mentioned what they did is not mentioned.</p> <p>In responds the applicant submitted that it is clear what the group did and it cannot pin point each one as having done what. It therefore disputed that there are material disputes of facts.</p> <p>While the respondents challenged the authenticity of the video clip they did not object to the court viewing it. When the court viewed the video clip it noted the following. Reverend Obadia Musindo addressed a composed gathering of several people without any interference from anyone until he finished. While he was addressing people there appeared some skirmishes at the far gate. It appeared some agitated people were being refused entry into the meeting but it was not clear who was stopping them from entering. Police came to restore order but the skirmishes persisted. The video showed other people seated on outside the fence and chatting peacefully. When he was going out some people blocked him and shouting something to do with their contributions. It could not be said with certainty as to who was doing what. The court could not understand what was contained in a number of supporting affidavits which were written in vernacular language which is not the English language. The applicant did not bother to have them translated into English. I therefore agree with the counsel for the respondents that there are material disputes of facts which cannot be resolved on papers.</p> <p>INCOMPLETE APPLICATION</p> <p>The respondents submitted that they were not furnished with a copy of the video clip. Secondly there was no attendance register to confirm who attended the meeting that day. To this the applicant said it forgot to remove or attach the attendance register to its answering affidavit.</p> <p>The court was left at a loss as to who attended and who did what that may be said to constitute contempt of court. The preliminary points are therefore upheld. The applicant therefore failed to prove its case and the application is truck off the roll.</p> <p>IT IS ORDERED THAT</p> <ol> <li>Preliminary points are upheld.</li> <li>The application is struck of the roll.</li> </ol> <p> </p> <p> </p> <p> </p> <p><em>T. Pfigu Attorneys</em>, applicant’s legal practitioners</p> <p><em>Choga and Associates</em>, respondents’ 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/harare-high-court/2020/613/2020-zwhhc-613.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=19681">2020-zwhhc-613.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/2020/613/2020-zwhhc-613.pdf" type="application/pdf; length=216818">2020-zwhhc-613.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/contempt-court">CONTEMPT OF COURT</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/imprisonment-see-criminal-procedure-sentence-general-principles">IMPRISONMENT See CRIMINAL PROCEDURE (SENTENCE) General Principles</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/application-practice-and-procedure">Application (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/dismissal-application">dismissal of application</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/dispute-fact-application">dispute of fact (Application)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/dispute-facts-practice-and-procedure">Dispute of facts (PRACTICE AND PROCEDURE)</a></li></ul></span> Fri, 09 Oct 2020 09:41:55 +0000 Sandra 9865 at https://old.zimlii.org Kasongo & 3 Ors v Murowa Diamonds & 2 Ors (HMA 12-20, HC 365/19) [2020] ZWMSVHC 12 (20 May 2020); https://old.zimlii.org/zw/judgment/masvingo-high-court/2020/12 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>MAGRET KASONGO</p> <p>And</p> <p>NETSAI MUKWATURI</p> <p>And</p> <p>MACHAKARI MASHAMANDA</p> <p>And</p> <p>FRADRECK NYIKA</p> <p> </p> <p>Versus</p> <p> </p> <p>MUROWA DIAMONDS (PVT) LTD</p> <p>And</p> <p>MINISTER OF MINES &amp; MINING DEVELOPMENT</p> <p>And</p> <p>MINISTER OF PRIMARY &amp; SECONDARY EDUCATION</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>ZISENGWE J</p> <p>MASVINGO, 12 March 2020 and 20 May 2020</p> <p> </p> <p><strong>Opposed Application: Interdict</strong></p> <p> </p> <p><em>M. Mureri,</em> for the applicants</p> <p><em>T. Zhuwarara,</em> for 1st respondent</p> <p><em>T. Undenge</em>, for 2nd respondent</p> <p> </p> <p> </p> <p> </p> <p><strong>ZISENGWE J</strong>:  This is an application for an interdict wherein the applicants seek in the main an order barring the 1st respondent from continuing with their mineral prospecting activities on a certain piece of land situate in the Chivi communal lands.   The four applicants are all parents or guardians of leaners at two schools (Danhamombe Secondary school and St Simon Zhara primary school) on whose premises part of the prospecting is taking place. I briefly pause here to observe that the parties used the term "exploration" to refer to the 1st respondent’s prospecting activities.</p> <p>The 1st respondent is a company duly incorporated in terms of the laws of Zimbabwe.   It would appear from the papers filed of record that its main business is prospecting for minerals and mining and, hence the prospecting earlier stated.</p> <p>The 2nd respondent on the other hand is the Minister of Mines and Mining development.  He heads the ministry responsible for the regulation and superintendence of mining activities in the country.</p> <p>The 3rd respondent is the Minister of Primary and secondary education.   He was cited as a respondent because the dispute in question relates to alleged infringements by the 1st respondent on school and educational activities.</p> <p>In brief the background to this application is as follows. The 1st respondent which is a subsidiary of RIOZIM (private) Limited has been conducting prospecting work in the area on or adjacent to the premises of the schools referred to above.  They do so in the basis of what the 2nd respondent describes as “286 registered [diamond] mining blocks in the Chibi and Mshawasha communal lands” registered with it (i.e. 2nd respondent) between 2000 and 2001”.</p> <p> According to the applicants, the 1st respondent’s prospecting activities generate unbearable noise incompatible with a proper learning environment. As if that is not bad enough, so the applicants aver, the exploration activities of the 1st respondent have resulted in considerable damage to some critical school infrastructure such as water pipes.</p> <p>The applicants further aver that efforts to resolve the issue amicably with 1st respondent have proved fruitless leaving them as parents and guardians of some of the affected students with virtually no other option but to approach the courts and seek relief in the form of an interdict.</p> <p>Initially the applicants launched a two -pronged attack on the 1st respondent’s mineral exploration activities in or near the premises of the schools in question; the first leg being the noise complaint as alluded above.  The second leg of the application was that the 1st respondent had neither sought nor obtained the consent of the authority responsible for either school something it was required to do before the commencement of its prospecting activities as required by section 31 of mines and minerals Act, <em>[chapter 21:05] </em>(the Act). It would also appear that the applicants are alleging that the 2nd and 3rd respondents are complicit in permitting the alleged transgressions at the two schools and want them ordered to stop being so permissive.</p> <p>The applicants therefore sought an order in the following terms:</p> <p>"wherefore, after hearing counsel and reading the document filed of record</p> <p>It is hereby ordered that:</p> <ol> <li>The first respondent is interdicted and restrained from carrying out mining activities at St.Simon Zhara Primary school and Danhamombe Secondary School premises and grounds.</li> <li>The first respondent removes its machinery and move out of the school premises and grounds.</li> <li>The first respond [is] interdicted and restrained from using school property including premises, ground and infrastructure</li> <li>The second and third respondents and/or any employees of their ministries are interdicted and restrained from assisting the first respondent to do any of the restrained activities above or allowing the first respondent to use the school premises, grounds and infrastructure or do mining activities at these schools.</li> <li>The second and third respondents are hereby interdicted and compelled and take active measures to protect the pupils, school resources, property and infrastructure from abuse by the 1st respondent.</li> <li>The respondents to pay jointly and severally the applicant’s costs.</li> </ol> <p> </p> <p>In a nutshell, therefore, what the applicants initially sought was as amalgam of a prohibitory interdict and a mandatory interdict.   Prohibitory in the sense that they sought an order prohibiting the 1st respondent from carrying out its prospecting activities (which were erroneously referred to as “mining” activities) in and around the premises of two schools.  Additionally they sought an order prohibiting the 2nd and 3rd respondents from aiding the 1st respondent in whatever way in carrying out its prospecting activities in and around the premises of the two schools. It is also mandatory in part in the sense that the applicant wants the 1st respondent to be compelled to immediately remove its prospecting equipment and related paraphernalia from the schools’ premises.</p> <p>However, in the course of these proceedings counsel for the applicants, in view of the provisions of sections 31 and 32 of the Act, abandoned the attack related to the alleged absence of consent on the part of the 1st respondent to prospect on that piece of land.   This effectively left the sole issue for determination being whether the interdict sought should be granted on the basis of the noise complaint.</p> <p>            The 1st and 2nd respondents opposed the application and in this regard the 1st respondent raised three interrelated issues to confront the noise complaint. These issues can be summarised as follows;</p> <p>            Firstly that the applicants do not have the mandate of the generality of the learners at the school to bring this application and in the absence of such a mandate this application should fail.</p> <p>            Secondly, the 1st respondent contended that the issues at hand are replete with factual disputes rendering it incapable of resolution via application proceedings. They therefore argue that the choice of application proceedings by the applicants constitutes what should be an ill-fated misadventure on their part.</p> <p>            Thirdly and perhaps most importantly 1st respondent avers that in the absence of empirical data on the noise levels complained of, the court  is hardly in a position to conclude that the noise output of the 1st respondent’s prospecting activities exceeds legally permissible levels.</p> <p>From the above the issues for determination may be crisply put thus:</p> <ol> <li>Do the applicants have the requisite mandate to bring the application?</li> <li>Does the dispute lend itself to resolution on the papers and if not what are the consequences attendant thereto?</li> <li>Have the applicants managed to sufficiently establish a noise infringement warranting inference from the courts?</li> </ol> <p>It suffices however to observe that these issues are not (as is almost invariably the case) discrete and separate.   There are several areas of convergence and overlap.</p> <p>The first two issues are preliminary in nature and need to be addressed before embarking (should that be necessary) on a resolution of the third, the latter constituting as it does the main substance of this application.</p> <p> </p> <p><strong>Mandate</strong></p> <p>Right from the outset, counsel for the applicants conceded, rightly so, that in the absence of a clear mandate from the generality of the student population of the affected schools, the applicants cannot purport to represent same.   There was a half-hearted attempt to seek refuge in section 85 (1) (b) of the Constitution which empowers a person to approach the court on behalf of another person who cannot act for themselves.  However, this provision will not avail the applicant for the simple reason that it has not been shown that the parents of the affected students cannot act on behalf of those other students.  The applicants cannot arrogate unto themselves the power to act on behalf of all the students from the two schools without first establishing that those students have an interest in the order sought and secondly that their own parents or guardians are incapacitated form instituting such an application.</p> <p>At best the applicants can only represent their own children or dependants and the application should be allowed to proceed on that basis.   There was some apparent blurring and even conflation on the part of the 1st respondent of the concepts “mandate” and locus standi. Be that as it may, to the extent that the applicants are permitted to represent their children who are allegedly affected by the noise infringement, the applicants do have direct and substantial interest in the matter. They do therefore have the requisite locus standi to bring this application. What they cannot do, however, is purport to represent the interests of the generality of the learners at the two schools in question.</p> <p> </p> <p><strong>The question of the alleged use of the wrong procedure</strong></p> <p>            As stated earlier, it was s argued on behalf of the 1st respondent that the dispute is ridden with factual disputes rendering it incapable of resolution on the papers.  It was further contended in this regard that the appropriate procedure would have been for the applicants to proceed by way of action proceedings.   In the main the argument is that there is an intractable dispute regarding the level of noise occasioned by the 1st respondent’s prospecting activities and its impact on the teaching and learning environment. The first question therefore is whether there are material disputes of fact.</p> <p>In <em>Supa Plant Investment (Pvt) Ltd v Edgar Chidavaenzi </em>2009 (2) ZRL 132 (H) at 136 MAKARAU J (as she then was) described a material dispute of fact in the following terms;</p> <p>"A material dispute of facts its arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence"</p> <p>  </p> <p>            In <em>Room Hire co. v Jeppe street Mansions</em> 1949 (3) SA 1155 it was held that for a respondent to allege that there was a material dispute of fact he must establish and real issue of fact which cannot be satisfactorily determined without the aid of oral evidence.  He must not make a bare denial or merely allege a dispute.</p> <p>            In the present matter I find the argument by 1st respondent that there exist material disputes of fact meritorious.  There being sharp contestation as between the applicant and 1st respondent regarding nature, level, extent and impact of the noise emitted from the latter’s prospecting activities it is virtually impossible for the court to make a proper determination regarding the same on the papers.</p> <p>            This is particularly so in light of the fact that neither submitted scientific reports on the actual noise emitted.  The nature of the noise would of necessity need to be ascertained from those that produce and those that endure it.  Similarly, the frequency or regularity of same would equally need to be established.   Its alleged disruptive impact would likewise need to be proved.  The 1st respondent averred without producing proof, that it has constantly recorded noise levels in the region of 68 decibels over a 50 metre radius; well below the acceptable guidelines of 90 decibels and further that the natural dissipation of sound as distance from source increases.</p> <p>            Given the diametrically opposite assertions by the applicants and the 1st respondent, regarding this all important issue, it would be too presumptive of this court to conclude either way without the leading of proper evidence – oral or otherwise.</p> <p>            What remains to be decided is the course of action to take.  The 1st respondent urged the court to dismiss the application on the basis that the applicants consciously took the risk by persisting with the matter as an application despite realising the inevitability of disputes of fact arising.</p> <p>            In <em>Musevenzo v Beji and Another</em> HH 268/13 MAFUSIRE J synthesized the various options available to the court in such situations, namely, (a) to take a robust view  of the facts and resolve the dispute on the  papers, or (b)  permit or require any person to give oral evidence in terms of  r229B of the rules of it is in the interests of justice  to hear such  evidence or (iii) refer the matter to trial with  the application standing as the summons or the papers already filed of record standing as pleadings or (iv)  dismiss the application altogether if the applicant  should have realised the dispute when launching the application.</p> <p>            In view of the fact that the answer to this question in the present matter dovetails with the third and final issue for determination, it will be deferred accordingly.</p> <p><strong>Whether or not the requirements for an interdict have been satisfied.</strong></p> <p>            For a final interdict to succeed the following pre-requisite have to be satisfied (see <em>Flame Lily Investment Company (Private) Limited v Zimbabwe Salvage (Private) Limited and Anor </em>1980 ZLR 378; <em>Setlogelo v Setlogelo</em> 1914 AD 221)</p> <ol> <li>a clear right on the part of the applicant</li> <li>actual or reasonably apprehended injury, and;</li> <li>absence of any other remedy by which applicant can be protected with the same result.</li> </ol> <p>Each of these will be applied to the facts of this matter in turn.</p> <p><strong>Clear right</strong></p> <p>            This term has been interpreted to mean <em>"a right clearly established at law."</em>   In Erasmus <em>"Superior court Practice,"</em> 2nd edition at D6-12-13 following is stated:</p> <p>“It is submitted that what is meant by the phrase (clear right) is a right clearly established.  Whether the applicant has a right is a matter of substantive law, whether that right is clearly established is a matter of evidence.  In order to establish a clear right the applicant has to prove on a balance of probability the right which he seeks to protect."</p> <p>In <em>Plascon – Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd </em>1984 (3) SA 623 (A) the test as enunciated as follows;</p> <p> </p> <p>"That the interdict sought can be granted only if the facts as stated by the respondents, together with the admitted facts in the applicants affidavit, justify the granting thereof"</p> <p>            It is pertinent to note, as was stated in <em>Flame Lily investment Pvt Ltd v Zimbabwe salvage (Pvt) Ltd and Anor </em>(Supra) that a clear right need not be incontrovertible but definite.</p> <p>            Against the above stated principles, can it be said that in the present case the applicants have managed it establish a clear right against the respondents? Can it be said that the test formulated in the <em>Plascon-Evans Paints</em> case (Supra) has been satisfied? In other words do facts clearly justify the granting of the order sought?   I think not.   Here is why:  first and foremost it is not disputed that the 1st respondent is legally entitled to carry out prospecting activities in the geographical area in question from the papers filed of record, particularly the affidavit filed by 2nd respondent. The 1st respondent enjoys the unequivocal support of the Ministry of Mines and Mining development being the government organ mandated with the responsibility of regulating mining activities in the country.   That being the case how can the applicants claim to have a right to have 1st respondent ejected from that area?</p> <p>            Further it is clear that 1st respondent enjoys the support of the various strata of the education authorities as amply demonstrated by the minutes of various consultative meetings held in connection with the 1st respondents prospecting activities in the area.   The headmasters of the two schools supposedly affected by the noise lend their support to the prospecting activities of the 1st respondent. All this is borne out from the minutes of those consultative meetings.</p> <p>            Thirdly, the 1st respondent, from various documents filed of record including the minutes of the meetings referred to above, enjoys the unreserved support of other government organs (such as the Ministry of Local Government) all of whom participated in the said meetings.  The traditional leaders of the community in question also evidently support the venture undertaken by the 1st respondent.</p> <p>            Strangely the applicants seek not the abatement of the noise created by prospecting but the ejectment of the 1st respondent from the area in question.</p> <p>            It must be stressed that the right claimed by the applicant should not be viewed in the abstract but against other compelling rights enjoyed by the respondents.   Ordering the ejection of the 1st respondent will amount to a negation of the 1st respondent’s rights to conduct prospecting operations in the area in question. In <em>Natural Stone Export Co (Pvt) Ltd &amp; Anor v Dir, National Parks &amp; Ors </em>1997 (2) 215 (H) a dispute arose regarding whether or not the Parks and wildlife authority could impose restrictions on the mining activities of the applicant who was the holder of a mining licence authorising it to mine within a safari area. The court stated as follows:</p> <p>“I agree that it is the function and duty of Director and minister to control, manage and maintain Safari areas for the specified purposes but they cannot deprive prospectors and miners of rights conferred on them by Chapter 21:05 unless specifically authorised by Chapter 20:14 to do so. There is no such authority conferred by Chapter 20:14.” (Emphasis added)</p> <p> In the same vein, in the present case applicants cannot purport to hold such rights as to oust the rights held by 1st respondent to conduct prospecting activities in the area in question.</p> <p><strong>ACTUAL OR REASONBLY APPREHENDED INJURY</strong></p> <p>The applicants aver that the noise produced by or from the 1st respondent’s prospecting activities does not conduce to a proper teaching and learning environment or to the proper administration of examinations. The 1st respondent on the other hand relying on a passage from the case of <em>Wright v Pomona Stone Quarries (Pvt) Ltd</em> 1988 (2) ZLR 144(5) contend that there simply isn’t sufficient evidence to support that allegation.</p> <p>In that case as, in the present one, the nuisance complained of was noise generated by some excavation or quarrying activities undertaken by the respondents at a location adjacent to the suburb of Pomona where the applicant resided.</p> <p>The court stated as follows:</p> <p>“She (Applicant) says the noise level is now sufficiently greater and more intrusive than at any time during 1950 to 1979.  She does not say how she measures the noise level.</p> <p>The level of noise complained of is a matter of fact and opinion.  More so it is a matter of common sense.   But it must be measured for the court to give value judgement Miller J in <em>de Charmoy v Day star  Hatchery (Pvt) Ltd</em> 1967 (4) SA 188 (D) at 192 E-F, puts the test as follows: "the test moreover, is an objective  one in the sense that not the individual reaction of  a delicate or highly  sensitive person who truthfully complains that the finds the noise intolerable is to be decisive, but the reaction  of the reasonable man- one who, according to ordinary standards  of comfort and convenience, and without any peculiar sensitivity  to the particular noise, would find it, if not  quite intolerable a serious impediment to the reasonable enjoyment of his property <em>(cf Hilland v Scott 2 EDL at 324, Graham  v Dittman and Son 1917 TPT 288 at 290-1, Leith v Port Elizabeth  Museum Trustees 1934 EDL 211 at 213-4, Ferreira v Grant 1941 WLD 186 at 188-9, Prinsloo v Shaw 1938 Ad 570 at 575)."</em></p> <p> </p> <p>In applying the above test one finds that the application suffered from a paucity of evidence to sustain it.  Unlike the <em>Wright v Pomona Quarries</em> case (Supra) where the noise complained of was described in   great detailed, here we have only generalised averments to the effect that 1st respondent’s prospecting activities are disturbing classes and examination due to the noise produced thereby.</p> <p>Secondly there was no empirical evidence to demonstrate the extent of noise produced.  Such a measurement in decibels would probably have assisted the applicants’ cause.  I must however hasten to point out that the <em>Wright v Pomona Quarries</em> matter was not necessarily decided on the production of scientific data on the quantum of noise produced but upon a sufficiently descriptive account thereof something which is woefully lacking in the present matter.</p> <p>The third shortcoming is the absence of supporting affidavits from any of the affected learners.   What we have are averments by persons who have not personally experienced the noise. Such affidavits would have enabled the court to gauge the nature, extent and frequency of the noise nuisance and its impact on learning related activities. Affidavits by the school children supposedly affected by the noise would perhaps have assisted the applicants.</p> <p> </p> <p>I have already alluded to the fact that the 1st respondent’s prospecting activities enjoy wide spread support as evidenced by the minutes of the various consultative meetings filed of record.  This casts serious doubt on the truthfulness of the applicant’s averments that the noise produced by the prospecting activities of the 1st respondent are very highly disruptive to normal teaching/learning activities at the two schools. How probable is that the persons mandated with the proper administration of the schools (the school heads, Education inspectors etc.) would ignore or otherwise condone an infringement such as the one the applicants seek to portray? Put differently it is strange that this application is not backed by supporting affidavits deposed to by any of the other persons naturally expected to be adversely affected by the alleged noise nuisance, namely the teachers, the school headmasters and members of the school development committee. </p> <p> </p> <p>The danger, therefore, is to grant this application on the basis of unsubstantiated complaints by only four disgruntled students and their parents. Sight must not be lost of the objective nature of the test. I am of the view that it has not been established on an objective basis that the noise complained of is of such a nature as to justify the granting of the interdict sought. In other words the applicants have not managed to prove injury/harm actually suffered or reasonably apprehended.</p> <p>Earlier I reserved the question of whether to dismiss the application or refer it to trial or to lead evidence given the material disputes of facts present.  Having thus dealt with the patent absence of evidence to support the applicant’s case as demonstrated above, I believe that this is a case where the application ought to be dismissed as opposed to any of the other available options.  The applicants must have realised from the respondent’s notice opposition and accompanying opposing affidavits of the inevitability of material disputes of fact arising.  Ultimately therefore, for the reasons outlined above, I find that the application lacks merit and should be dismissed.</p> <p> </p> <p>Accordingly, I make the following order:</p> <ol> <li>The application is hereby dismissed.</li> <li>The applicants to pay costs of suit</li> </ol> <p> </p> <p> </p> <p><em>Matutu &amp; Mureri</em>, Applicants’ Legal practitioners</p> <p><em>Coghlan Welsh &amp; Guest</em>, 1st Respondent’s legal practitioners</p> <p><em>Civil Division of the Attorney General</em>, 2nd respondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>MAGRET KASONGO</p> <p>And</p> <p>NETSAI MUKWATURI</p> <p>And</p> <p>MACHAKARI MASHAMANDA</p> <p>And</p> <p>FRADRECK NYIKA</p> <p> </p> <p>Versus</p> <p> </p> <p>MUROWA DIAMONDS (PVT) LTD</p> <p>And</p> <p>MINISTER OF MINES &amp; MINING DEVELOPMENT</p> <p>And</p> <p>MINISTER OF PRIMARY &amp; SECONDARY EDUCATION</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>ZISENGWE J</p> <p>MASVINGO, 12 March 2020 and 20 May 2020</p> <p> </p> <p><strong>Opposed Application: Interdict</strong></p> <p> </p> <p><em>M. Mureri,</em> for the applicants</p> <p><em>T. Zhuwarara,</em> for 1st respondent</p> <p><em>T. Undenge</em>, for 2nd respondent</p> <p> </p> <p> </p> <p> </p> <p><strong>ZISENGWE J</strong>:  This is an application for an interdict wherein the applicants seek in the main an order barring the 1st respondent from continuing with their mineral prospecting activities on a certain piece of land situate in the Chivi communal lands.   The four applicants are all parents or guardians of leaners at two schools (Danhamombe Secondary school and St Simon Zhara primary school) on whose premises part of the prospecting is taking place. I briefly pause here to observe that the parties used the term "exploration" to refer to the 1st respondent’s prospecting activities.</p> <p>The 1st respondent is a company duly incorporated in terms of the laws of Zimbabwe.   It would appear from the papers filed of record that its main business is prospecting for minerals and mining and, hence the prospecting earlier stated.</p> <p>The 2nd respondent on the other hand is the Minister of Mines and Mining development.  He heads the ministry responsible for the regulation and superintendence of mining activities in the country.</p> <p>The 3rd respondent is the Minister of Primary and secondary education.   He was cited as a respondent because the dispute in question relates to alleged infringements by the 1st respondent on school and educational activities.</p> <p>In brief the background to this application is as follows. The 1st respondent which is a subsidiary of RIOZIM (private) Limited has been conducting prospecting work in the area on or adjacent to the premises of the schools referred to above.  They do so in the basis of what the 2nd respondent describes as “286 registered [diamond] mining blocks in the Chibi and Mshawasha communal lands” registered with it (i.e. 2nd respondent) between 2000 and 2001”.</p> <p> According to the applicants, the 1st respondent’s prospecting activities generate unbearable noise incompatible with a proper learning environment. As if that is not bad enough, so the applicants aver, the exploration activities of the 1st respondent have resulted in considerable damage to some critical school infrastructure such as water pipes.</p> <p>The applicants further aver that efforts to resolve the issue amicably with 1st respondent have proved fruitless leaving them as parents and guardians of some of the affected students with virtually no other option but to approach the courts and seek relief in the form of an interdict.</p> <p>Initially the applicants launched a two -pronged attack on the 1st respondent’s mineral exploration activities in or near the premises of the schools in question; the first leg being the noise complaint as alluded above.  The second leg of the application was that the 1st respondent had neither sought nor obtained the consent of the authority responsible for either school something it was required to do before the commencement of its prospecting activities as required by section 31 of mines and minerals Act, <em>[chapter 21:05] </em>(the Act). It would also appear that the applicants are alleging that the 2nd and 3rd respondents are complicit in permitting the alleged transgressions at the two schools and want them ordered to stop being so permissive.</p> <p>The applicants therefore sought an order in the following terms:</p> <p>"wherefore, after hearing counsel and reading the document filed of record</p> <p>It is hereby ordered that:</p> <ol> <li>The first respondent is interdicted and restrained from carrying out mining activities at St.Simon Zhara Primary school and Danhamombe Secondary School premises and grounds.</li> <li>The first respondent removes its machinery and move out of the school premises and grounds.</li> <li>The first respond [is] interdicted and restrained from using school property including premises, ground and infrastructure</li> <li>The second and third respondents and/or any employees of their ministries are interdicted and restrained from assisting the first respondent to do any of the restrained activities above or allowing the first respondent to use the school premises, grounds and infrastructure or do mining activities at these schools.</li> <li>The second and third respondents are hereby interdicted and compelled and take active measures to protect the pupils, school resources, property and infrastructure from abuse by the 1st respondent.</li> <li>The respondents to pay jointly and severally the applicant’s costs.</li> </ol> <p> </p> <p>In a nutshell, therefore, what the applicants initially sought was as amalgam of a prohibitory interdict and a mandatory interdict.   Prohibitory in the sense that they sought an order prohibiting the 1st respondent from carrying out its prospecting activities (which were erroneously referred to as “mining” activities) in and around the premises of two schools.  Additionally they sought an order prohibiting the 2nd and 3rd respondents from aiding the 1st respondent in whatever way in carrying out its prospecting activities in and around the premises of the two schools. It is also mandatory in part in the sense that the applicant wants the 1st respondent to be compelled to immediately remove its prospecting equipment and related paraphernalia from the schools’ premises.</p> <p>However, in the course of these proceedings counsel for the applicants, in view of the provisions of sections 31 and 32 of the Act, abandoned the attack related to the alleged absence of consent on the part of the 1st respondent to prospect on that piece of land.   This effectively left the sole issue for determination being whether the interdict sought should be granted on the basis of the noise complaint.</p> <p>            The 1st and 2nd respondents opposed the application and in this regard the 1st respondent raised three interrelated issues to confront the noise complaint. These issues can be summarised as follows;</p> <p>            Firstly that the applicants do not have the mandate of the generality of the learners at the school to bring this application and in the absence of such a mandate this application should fail.</p> <p>            Secondly, the 1st respondent contended that the issues at hand are replete with factual disputes rendering it incapable of resolution via application proceedings. They therefore argue that the choice of application proceedings by the applicants constitutes what should be an ill-fated misadventure on their part.</p> <p>            Thirdly and perhaps most importantly 1st respondent avers that in the absence of empirical data on the noise levels complained of, the court  is hardly in a position to conclude that the noise output of the 1st respondent’s prospecting activities exceeds legally permissible levels.</p> <p>From the above the issues for determination may be crisply put thus:</p> <ol> <li>Do the applicants have the requisite mandate to bring the application?</li> <li>Does the dispute lend itself to resolution on the papers and if not what are the consequences attendant thereto?</li> <li>Have the applicants managed to sufficiently establish a noise infringement warranting inference from the courts?</li> </ol> <p>It suffices however to observe that these issues are not (as is almost invariably the case) discrete and separate.   There are several areas of convergence and overlap.</p> <p>The first two issues are preliminary in nature and need to be addressed before embarking (should that be necessary) on a resolution of the third, the latter constituting as it does the main substance of this application.</p> <p> </p> <p><strong>Mandate</strong></p> <p>Right from the outset, counsel for the applicants conceded, rightly so, that in the absence of a clear mandate from the generality of the student population of the affected schools, the applicants cannot purport to represent same.   There was a half-hearted attempt to seek refuge in section 85 (1) (b) of the Constitution which empowers a person to approach the court on behalf of another person who cannot act for themselves.  However, this provision will not avail the applicant for the simple reason that it has not been shown that the parents of the affected students cannot act on behalf of those other students.  The applicants cannot arrogate unto themselves the power to act on behalf of all the students from the two schools without first establishing that those students have an interest in the order sought and secondly that their own parents or guardians are incapacitated form instituting such an application.</p> <p>At best the applicants can only represent their own children or dependants and the application should be allowed to proceed on that basis.   There was some apparent blurring and even conflation on the part of the 1st respondent of the concepts “mandate” and locus standi. Be that as it may, to the extent that the applicants are permitted to represent their children who are allegedly affected by the noise infringement, the applicants do have direct and substantial interest in the matter. They do therefore have the requisite locus standi to bring this application. What they cannot do, however, is purport to represent the interests of the generality of the learners at the two schools in question.</p> <p> </p> <p><strong>The question of the alleged use of the wrong procedure</strong></p> <p>            As stated earlier, it was s argued on behalf of the 1st respondent that the dispute is ridden with factual disputes rendering it incapable of resolution on the papers.  It was further contended in this regard that the appropriate procedure would have been for the applicants to proceed by way of action proceedings.   In the main the argument is that there is an intractable dispute regarding the level of noise occasioned by the 1st respondent’s prospecting activities and its impact on the teaching and learning environment. The first question therefore is whether there are material disputes of fact.</p> <p>In <em>Supa Plant Investment (Pvt) Ltd v Edgar Chidavaenzi </em>2009 (2) ZRL 132 (H) at 136 MAKARAU J (as she then was) described a material dispute of fact in the following terms;</p> <p>"A material dispute of facts its arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence"</p> <p>  </p> <p>            In <em>Room Hire co. v Jeppe street Mansions</em> 1949 (3) SA 1155 it was held that for a respondent to allege that there was a material dispute of fact he must establish and real issue of fact which cannot be satisfactorily determined without the aid of oral evidence.  He must not make a bare denial or merely allege a dispute.</p> <p>            In the present matter I find the argument by 1st respondent that there exist material disputes of fact meritorious.  There being sharp contestation as between the applicant and 1st respondent regarding nature, level, extent and impact of the noise emitted from the latter’s prospecting activities it is virtually impossible for the court to make a proper determination regarding the same on the papers.</p> <p>            This is particularly so in light of the fact that neither submitted scientific reports on the actual noise emitted.  The nature of the noise would of necessity need to be ascertained from those that produce and those that endure it.  Similarly, the frequency or regularity of same would equally need to be established.   Its alleged disruptive impact would likewise need to be proved.  The 1st respondent averred without producing proof, that it has constantly recorded noise levels in the region of 68 decibels over a 50 metre radius; well below the acceptable guidelines of 90 decibels and further that the natural dissipation of sound as distance from source increases.</p> <p>            Given the diametrically opposite assertions by the applicants and the 1st respondent, regarding this all important issue, it would be too presumptive of this court to conclude either way without the leading of proper evidence – oral or otherwise.</p> <p>            What remains to be decided is the course of action to take.  The 1st respondent urged the court to dismiss the application on the basis that the applicants consciously took the risk by persisting with the matter as an application despite realising the inevitability of disputes of fact arising.</p> <p>            In <em>Musevenzo v Beji and Another</em> HH 268/13 MAFUSIRE J synthesized the various options available to the court in such situations, namely, (a) to take a robust view  of the facts and resolve the dispute on the  papers, or (b)  permit or require any person to give oral evidence in terms of  r229B of the rules of it is in the interests of justice  to hear such  evidence or (iii) refer the matter to trial with  the application standing as the summons or the papers already filed of record standing as pleadings or (iv)  dismiss the application altogether if the applicant  should have realised the dispute when launching the application.</p> <p>            In view of the fact that the answer to this question in the present matter dovetails with the third and final issue for determination, it will be deferred accordingly.</p> <p><strong>Whether or not the requirements for an interdict have been satisfied.</strong></p> <p>            For a final interdict to succeed the following pre-requisite have to be satisfied (see <em>Flame Lily Investment Company (Private) Limited v Zimbabwe Salvage (Private) Limited and Anor </em>1980 ZLR 378; <em>Setlogelo v Setlogelo</em> 1914 AD 221)</p> <ol> <li>a clear right on the part of the applicant</li> <li>actual or reasonably apprehended injury, and;</li> <li>absence of any other remedy by which applicant can be protected with the same result.</li> </ol> <p>Each of these will be applied to the facts of this matter in turn.</p> <p><strong>Clear right</strong></p> <p>            This term has been interpreted to mean <em>"a right clearly established at law."</em>   In Erasmus <em>"Superior court Practice,"</em> 2nd edition at D6-12-13 following is stated:</p> <p>“It is submitted that what is meant by the phrase (clear right) is a right clearly established.  Whether the applicant has a right is a matter of substantive law, whether that right is clearly established is a matter of evidence.  In order to establish a clear right the applicant has to prove on a balance of probability the right which he seeks to protect."</p> <p>In <em>Plascon – Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd </em>1984 (3) SA 623 (A) the test as enunciated as follows;</p> <p> </p> <p>"That the interdict sought can be granted only if the facts as stated by the respondents, together with the admitted facts in the applicants affidavit, justify the granting thereof"</p> <p>            It is pertinent to note, as was stated in <em>Flame Lily investment Pvt Ltd v Zimbabwe salvage (Pvt) Ltd and Anor </em>(Supra) that a clear right need not be incontrovertible but definite.</p> <p>            Against the above stated principles, can it be said that in the present case the applicants have managed it establish a clear right against the respondents? Can it be said that the test formulated in the <em>Plascon-Evans Paints</em> case (Supra) has been satisfied? In other words do facts clearly justify the granting of the order sought?   I think not.   Here is why:  first and foremost it is not disputed that the 1st respondent is legally entitled to carry out prospecting activities in the geographical area in question from the papers filed of record, particularly the affidavit filed by 2nd respondent. The 1st respondent enjoys the unequivocal support of the Ministry of Mines and Mining development being the government organ mandated with the responsibility of regulating mining activities in the country.   That being the case how can the applicants claim to have a right to have 1st respondent ejected from that area?</p> <p>            Further it is clear that 1st respondent enjoys the support of the various strata of the education authorities as amply demonstrated by the minutes of various consultative meetings held in connection with the 1st respondents prospecting activities in the area.   The headmasters of the two schools supposedly affected by the noise lend their support to the prospecting activities of the 1st respondent. All this is borne out from the minutes of those consultative meetings.</p> <p>            Thirdly, the 1st respondent, from various documents filed of record including the minutes of the meetings referred to above, enjoys the unreserved support of other government organs (such as the Ministry of Local Government) all of whom participated in the said meetings.  The traditional leaders of the community in question also evidently support the venture undertaken by the 1st respondent.</p> <p>            Strangely the applicants seek not the abatement of the noise created by prospecting but the ejectment of the 1st respondent from the area in question.</p> <p>            It must be stressed that the right claimed by the applicant should not be viewed in the abstract but against other compelling rights enjoyed by the respondents.   Ordering the ejection of the 1st respondent will amount to a negation of the 1st respondent’s rights to conduct prospecting operations in the area in question. In <em>Natural Stone Export Co (Pvt) Ltd &amp; Anor v Dir, National Parks &amp; Ors </em>1997 (2) 215 (H) a dispute arose regarding whether or not the Parks and wildlife authority could impose restrictions on the mining activities of the applicant who was the holder of a mining licence authorising it to mine within a safari area. The court stated as follows:</p> <p>“I agree that it is the function and duty of Director and minister to control, manage and maintain Safari areas for the specified purposes but they cannot deprive prospectors and miners of rights conferred on them by Chapter 21:05 unless specifically authorised by Chapter 20:14 to do so. There is no such authority conferred by Chapter 20:14.” (Emphasis added)</p> <p> In the same vein, in the present case applicants cannot purport to hold such rights as to oust the rights held by 1st respondent to conduct prospecting activities in the area in question.</p> <p><strong>ACTUAL OR REASONBLY APPREHENDED INJURY</strong></p> <p>The applicants aver that the noise produced by or from the 1st respondent’s prospecting activities does not conduce to a proper teaching and learning environment or to the proper administration of examinations. The 1st respondent on the other hand relying on a passage from the case of <em>Wright v Pomona Stone Quarries (Pvt) Ltd</em> 1988 (2) ZLR 144(5) contend that there simply isn’t sufficient evidence to support that allegation.</p> <p>In that case as, in the present one, the nuisance complained of was noise generated by some excavation or quarrying activities undertaken by the respondents at a location adjacent to the suburb of Pomona where the applicant resided.</p> <p>The court stated as follows:</p> <p>“She (Applicant) says the noise level is now sufficiently greater and more intrusive than at any time during 1950 to 1979.  She does not say how she measures the noise level.</p> <p>The level of noise complained of is a matter of fact and opinion.  More so it is a matter of common sense.   But it must be measured for the court to give value judgement Miller J in <em>de Charmoy v Day star  Hatchery (Pvt) Ltd</em> 1967 (4) SA 188 (D) at 192 E-F, puts the test as follows: "the test moreover, is an objective  one in the sense that not the individual reaction of  a delicate or highly  sensitive person who truthfully complains that the finds the noise intolerable is to be decisive, but the reaction  of the reasonable man- one who, according to ordinary standards  of comfort and convenience, and without any peculiar sensitivity  to the particular noise, would find it, if not  quite intolerable a serious impediment to the reasonable enjoyment of his property <em>(cf Hilland v Scott 2 EDL at 324, Graham  v Dittman and Son 1917 TPT 288 at 290-1, Leith v Port Elizabeth  Museum Trustees 1934 EDL 211 at 213-4, Ferreira v Grant 1941 WLD 186 at 188-9, Prinsloo v Shaw 1938 Ad 570 at 575)."</em></p> <p> </p> <p>In applying the above test one finds that the application suffered from a paucity of evidence to sustain it.  Unlike the <em>Wright v Pomona Quarries</em> case (Supra) where the noise complained of was described in   great detailed, here we have only generalised averments to the effect that 1st respondent’s prospecting activities are disturbing classes and examination due to the noise produced thereby.</p> <p>Secondly there was no empirical evidence to demonstrate the extent of noise produced.  Such a measurement in decibels would probably have assisted the applicants’ cause.  I must however hasten to point out that the <em>Wright v Pomona Quarries</em> matter was not necessarily decided on the production of scientific data on the quantum of noise produced but upon a sufficiently descriptive account thereof something which is woefully lacking in the present matter.</p> <p>The third shortcoming is the absence of supporting affidavits from any of the affected learners.   What we have are averments by persons who have not personally experienced the noise. Such affidavits would have enabled the court to gauge the nature, extent and frequency of the noise nuisance and its impact on learning related activities. Affidavits by the school children supposedly affected by the noise would perhaps have assisted the applicants.</p> <p> </p> <p>I have already alluded to the fact that the 1st respondent’s prospecting activities enjoy wide spread support as evidenced by the minutes of the various consultative meetings filed of record.  This casts serious doubt on the truthfulness of the applicant’s averments that the noise produced by the prospecting activities of the 1st respondent are very highly disruptive to normal teaching/learning activities at the two schools. How probable is that the persons mandated with the proper administration of the schools (the school heads, Education inspectors etc.) would ignore or otherwise condone an infringement such as the one the applicants seek to portray? Put differently it is strange that this application is not backed by supporting affidavits deposed to by any of the other persons naturally expected to be adversely affected by the alleged noise nuisance, namely the teachers, the school headmasters and members of the school development committee. </p> <p> </p> <p>The danger, therefore, is to grant this application on the basis of unsubstantiated complaints by only four disgruntled students and their parents. Sight must not be lost of the objective nature of the test. I am of the view that it has not been established on an objective basis that the noise complained of is of such a nature as to justify the granting of the interdict sought. In other words the applicants have not managed to prove injury/harm actually suffered or reasonably apprehended.</p> <p>Earlier I reserved the question of whether to dismiss the application or refer it to trial or to lead evidence given the material disputes of facts present.  Having thus dealt with the patent absence of evidence to support the applicant’s case as demonstrated above, I believe that this is a case where the application ought to be dismissed as opposed to any of the other available options.  The applicants must have realised from the respondent’s notice opposition and accompanying opposing affidavits of the inevitability of material disputes of fact arising.  Ultimately therefore, for the reasons outlined above, I find that the application lacks merit and should be dismissed.</p> <p> </p> <p>Accordingly, I make the following order:</p> <ol> <li>The application is hereby dismissed.</li> <li>The applicants to pay costs of suit</li> </ol> <p> </p> <p> </p> <p><em>Matutu &amp; Mureri</em>, Applicants’ Legal practitioners</p> <p><em>Coghlan Welsh &amp; Guest</em>, 1st Respondent’s legal practitioners</p> <p><em>Civil Division of the Attorney General</em>, 2nd respondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </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/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/class-action">Class action</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/representative-class-action">representative (Class action)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/who-may-bring-class-action">who may bring class action</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/dispute-facts-practice-and-procedure">Dispute of facts (PRACTICE AND PROCEDURE)</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> Fri, 26 Jun 2020 10:27:39 +0000 Sandra 9715 at https://old.zimlii.org Simalu Mining (Pvt) LTD & Others v Sibanda & 13 Others (HB 47-20, HC 325/20) [2020] ZWBHC 47 (12 March 2020); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2020/47 <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>SIMALU MINING (PVT) LTD &amp; 4 OTHERS</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>ZIBON SIBANDA &amp; 13 OTHERS</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MAKONESE J</p> <p>BULAWAYO 13 FEBRUARY &amp; 12 MARCH 2020</p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p><em>T. Muganyi, &amp; M. Mahasao </em>for the applicants</p> <p><em>D. Dube </em>for 1st to 9th respondents</p> <p><em>Ms B. T. Nyoni</em> for 10th to 13th respondents</p> <p><strong>            MAKONESE J:        </strong>This urgent application was filed on the 7th February 2020.  I heard the parties in chambers on the 13th of February 2020.  This is my determination on the chamber application.</p> <p>The order sought in the draft order is couched in the following terms:</p> <p>            “Terms of Interim Relief sought</p> <p> </p> <p>Pending the final determination on this matter on the return date applicants are hereby granted the following relief:</p> <p> </p> <ol> <li>That respondents are hereby interdicted from executing under the order issued in favour of 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th and 9th respondents under case number HC 3013/19 pending finalization of this matter.</li> </ol> <p> </p> <p>“Terms of final order sought</p> <p> </p> <ol> <li>The order issued against applicants under HC 3013/19 shall be permanently stayed pending finalisation of the application for rescission of judgment under case number HC 324/20.</li> </ol> <p> </p> <ol> <li>Applicant be declared to be in lawful occupation of Goldwin N Mining claims consisting 10 Gold Reefs registration number 48981.</li> </ol> <p> </p> <ol> <li>1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th and 9th respondents be and hereby ordered to pay costs of an attorney and client scale, the one paying the other to be absolved.</li> </ol> <p> </p> <p>This application is opposed by the respondents.  Several points <em>in limine</em> have been raised by the respondents. I shall consider each one of these preliminary points in turn.  Before I do so, I shall set out by way of a brief background, the circumstances surrounding this matter.</p> <p><strong>Background</strong></p> <p>            The respondents are members of a Community Share Ownership Trust, known as Lushonkwe Nqama Small Scale Miners Association.  The association is based at Lushonkwe, Ward 4, Gwanda.  The association, under the banner of this Community Share Ownership Scheme secured mining claims belonging to Freda Rebecca Mine.  The community members with the involvement of the local Chief and the political leadership received a donation of certain mining claims located in the Tuli area, known as Orient 1, 2, Lady Anna 4, Lady Anna 5, Lady Anna 6, Lady Anna 7, Lady Anna 8, Lady Anna 9, Lady Anna 10 and 11, which were registered under registration numbers 37537 – 46.  The respondents delegated 2nd, 3rd, 4th and 5th applicants in this matter to oversee legal transfers, logistics,  payment of arrear fees at the Ministry of Mines and to have the claims transferred to the community.  Unknown to the respondents and the community leaders, 2nd, 3rd, 4th and 5th applicants invited the Zimbabwe Republic Police to evict the community from the claims alleging that these claims belonged to a private company, Simalu Mining (Pvt) Ltd, the 1st applicant.  The   respondents lodged a complaint with the Minister of State for the Province of Matabeleland South and the Provincial Mining Director.  The respondents subsequently filed summons commencing action against the applicants under case number HC 3013/19 for the eviction of the applicants from the mining claims.  A default judgment was granted against the applicants on the 3rd of February 2020.  The applicants contend that the default judgment was fraudulently obtained and that proceedings to set aside the default judgment have been commenced.  That application is yet to be set down and determined.  This urgent chamber application is meant to operate as an interdict preventing the operation of the judgment under HC 3013/19 pending the outcome of the application for rescission of judgment.  The effect of the order sought is to allow the applicants to resume occupation of the mining claims which are the subject of the application for rescission of judgment.  I shall proceed to deal with the points <em>in limine</em>.</p> <p> </p> <p><strong>Wrong form used</strong></p> <p>            The respondents contend that there is no proper application before this court.  The urgent application, it is argued, does not comply with the High Court Civil Rules, 1971.  The application should be in Form 29B.  The applicants do not deal with this objection at all.  They simply state that the use of the wrong form is not fatal to the application.  No explanation is given why the wrong form was used.  In the event that the court can exercise its discretion in terms of Rule 4C, this should be done where in the interests justice of the case it is prudent to deal with the matter.  The applicants cannot avoid the issue.  Strict compliance with the rules of this court is fundamental in respect of all applications that are filed in this court.  See;  <em>R. M. Mining &amp; Industrial Zimbabwe Ltd </em>v <em>STANBIC Bank </em> HH-11-15.  I would not however, dismiss this application on this alone.  The   grounds upon which the application has been made are clear from the application and the supporting affidavits.</p> <p><strong>Defective Certificate of Service</strong></p> <p>            The respondents contend that the certificate of urgency is defective as it does not comply with Rule 244 of the High Court Rules.  I do not agree that the certificate of urgency is defective in any manner.  The applicants have set out in the certificate of urgency sufficient particulars of the perceived urgency.  This point <em>in limine</em> is not sustained.</p> <p><strong>Matter overtaken by events</strong></p> <p>            The respondents allege that the matter has already been overtaken by events.  This is so because an order is sought seeking to interdict the execution of an order which was executed by the Sheriff on the 4th of February 2020.  It is factually correct that the order granted by this court on the 3rd February 2020 by the Honourable KABASA J had already been executed.  For this court to order that the “<em>respondents are hereby interdicted from executing the order issued in favour of 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th and 9th respondents under HC 3013/19 pending finalisation of this</em> <em>matter.”</em> may indeed be academic.  The order if granted in its present form would be a <em>brutum fulmen.  </em>See ; <em>Kashumba </em>v <em>Idehen &amp; 4 Ors</em> 279/18.</p> <p>            To compound the difficulty for the applicants, the final order seeks an order that the applicants be declared to be in lawful occupation of the premises.  The applicants seek to obtain substantive relief on the lawfulness of their occupancy of the claims.  That matter is not before the court, in this application.  The applicants seek relief which has not been raised in the founding affidavit. This cannot be correct.  An applicant may not seek substantive relief which is not canvassed in the application. In response to the submission that the matter has been overtaken by events, the applicants, aver that the court is enjoined to ensure that real and substantial justice is done between the parties.  The applicants aver that real and substantial justice can only be achieved if this court intervenes positively.  In essence, the applicants assert that real and substantial justice can only be achieved if the matter is decided in their favour.  The applicants contend that the default judgment was procured improperly and therefore this court must intervene, and stay the execution of the order which by their own admission has already been executed.  On this aspect, I must point out that the applicants must themselves take positive steps to set aside the default judgment.  The judgment of the 3rd of February 2020 is still extant.  A default judgment cannot be set aside in the manner proposed by the applicant via an urgent chamber application. I have had occasion to peruse the record under case number HC324/20 and observe that no steps have been taken to set down the application for rescission of judgment.</p> <p>            It is my view hat this point <em>in limine</em> has merit.  The order sought by the applicants if granted, would be a <em>brutum fulum</em>.</p> <p><strong>Material dispute of facts</strong></p> <p>            The respondents contend that there are material disputes of fact which can only be resolved by leading <em>viva voce</em> evidence.  In the brief background that I gave in this judgment, this is a dispute relating to the occupation and ownership of the mining claims.  There are serious and material disputes of fact which cannot be dealt with without hearing oral evidence.  I note that an attempt was made to bring Patrick Dube to appear in chambers to give his version regarding the default judgment allegedly obtained through fraud or misrepresentation.  While it is permissible to call parties in chambers to clear issues in dispute, the route has its own hazards.  The first problem is that there is no scope for the cross examination of witnesses in chambers, in an urgent chamber application.  Where a matter is brought to court on an urgent basis it stands or falls on the founding affidavit.  Where there is a material dispute of fact, the matter should be brought by way of action proceedings.  See Mackintosh <em>(Nee Perkinson)</em> v <em>Mackintosh</em> SC-37-18.</p> <p>            I need not therefore proceed to consider the rest of the preliminary points.  I cannot decide this matter on the papers.  I cannot grant an order where material and serious disputes of fact abound. I cannot simply ignore such material factual disputes.   The respondents’ opposing papers have annexures of minutes of meetings between the parties clearly indicating that the applicants and respondents have disagreements regarding the manner in which the applicants allegedly went behind the Community Share Ownership Scheme to set up a private limited company to work upon the mining claims in dispute.  I cannot decide that dispute.  It is not before me.  I am satisfied that the applicants have chosen this procedure well aware of the existence of these disputes of fact.  It is important to note that the applicants have sought to suppress the background to this matter by simply asserting that they are the registered owners of the mining claims in dispute.  The applicants contend forcefully that they are the title holders in respect of the mining claims.  The entire background in this matter must, in my view, be taken into account in deciding whether this is an appropriate case to grant the order sought.   I reiterate that there is a material dispute of fact, which is not capable of resolution on the papers.  In the circumstances, the last two preliminary points referred to in this judgment are upheld.</p> <p>            Accordingly, and in the result, the application is hereby dismissed with costs.</p> <p> </p> <p> </p> <p><em>Tanaka Law Chambers</em>, applicants’ legal practitioners</p> <p><em>Mathonsi Ncube Law Chambers</em> 1st to 9th respondents’ legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office</em>, 10th to 13th respondents’ 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/bulawayo-high-court/2020/47/2020-zwbhc-47.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=22372">2020-zwbhc-47.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/47/2020-zwbhc-47_0.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=22372">2020-zwbhc-47.docx</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/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/application-practice-and-procedure">Application (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/cause-action-must-be-set-out-founding-affidavit">cause of action must be set out in founding affidavit</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/dispute-fact-application">dispute of fact (Application)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/dispute-facts-practice-and-procedure">Dispute of facts (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></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/2015/11">RM Mining and Industrial Zimbabwe (Pvt) Ltd v Stanbic Bank Zimbabwe Ltd. (HC 11 398/14 ) [2015] ZWHHC 11 (07 January 2015);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2018/279">Kashumba v Idehen &amp; 4 Others (HH 279-18, HC 4388/18) [2018] ZWHHC 297 (24 May 2018);</a></div><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2018/37">Mackintosh (Nee Parkinson) v Mackintosh (SC 37/18, Civil Appeal No. SC 433/16) [2018] ZWSC 37 (15 June 2018);</a></div></div></div> Thu, 11 Jun 2020 14:32:26 +0000 Sandra 9655 at https://old.zimlii.org Vision/R4 Corporation v Professional Computer Services (Pvt) Ltd & 3 Others (HH 198-20, HC 3350-20) [2020] ZWHHC 198 (04 March 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/198 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>VISION/R4 CORPORATION                                                                     </p> <p>versus</p> <p>PROFESSIONAL COMPUTER SERVICES (PVT) LTD</p> <p>and</p> <p>CHRISTOPHER ANDREW SAMUKANGE</p> <p>and</p> <p>ASSUMPTA SAMUKANGE  </p> <p>and</p> <p>CHRISTOPHER J.N. MAKASI -SHAVA</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUSITHU J</p> <p>HARARE, 26 November 2019 &amp; 4 March 2020</p> <p> </p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p><em>R. Chingwena</em>, for the applicant</p> <p><em>T. Zhuwarara</em>, for the second and third respondents</p> <p><em>T. Chiwuta</em>, for the fourth respondent</p> <p> </p> <p>            MUSITHU J: The history of this matter is somewhat long and chequered. It spans almost a decade. The parties have had a fair share of run-ins which degenerated into court duels. Applicant’s affidavit does not set out the factual background with the necessary coherence and perspicuity. One has to painstakingly plough through the attachments, and associated records of this court involving the same parties in order to coalesce the facts and relate them to the dispute. Affidavits must, for the benefit of the court, set out the background facts germane to the dispute with sufficient detail and clarity. Annexures to affidavits should not just be attached as a formality. Their connection to the cause of action must equally be explained with sufficient exactitude.  The applicant seeks an order lifting the corporate veil of first respondent. The relief sought is couched as follows;</p> <p>            “IT IS ORDERED THAT:-</p> <ol> <li>The application for lifting the corporate veil against the 1st respondent be and is hereby granted;</li> <li>The 1st Respondent is liable to pay the debt, charges and interest in case No HC5149/14 due and payable to the Applicant.</li> <li>Any property in which the 1st Respondent has an interest or shareholding or ownership, be and is hereby declared executed to the full extent of her interest shareholding or ownership to meet the said debt.</li> <li>The 1st Respondent pay the costs of this application on a legal practitioner and client scale.</li> </ol> <p> </p> <p>ALTERNATIVELY</p> <p>IT IS ORDERED THAT</p> <ol> <li>The application for lifting the corporate veil against the 1st Respondent be and is hereby granted.</li> <li>The 2nd and 3rd Respondents be and are hereby held jointly and severally liable to pay the debt, charges and interest in case No. HC5149/14 due and payable to application.</li> <li>Any property in which the 2nd and 3rd Respondents have any interest or shareholding or ownership, be and is hereby declared executable to the full extent of their interest, shareholding or ownership to meet the said debt.</li> <li>The 2nd and 3rd Respondents shall jointly and severally each paying and the other to be absolved, pay the costs of this application on a higher scale.”</li> </ol> <p> </p> <p><strong>FACTUAL BACKGROUND         </strong></p> <p>The application arises from the following factual background as deciphered from the parties’ affidavits and pleadings in related matters. The applicant and first respondent were partners in a computer software business. Their relationship was consummated through a memorandum of agreement. On 11 October 2005, the two made a bid to supply the National Social Security Authority (NSSA) with computer software needed for NSSA’s operations. The successful bid led to the signing of a contract between NSSA and first respondent. A dispute arose between NSSA and first respondent during the implementation phase of the project. The dispute was referred to arbitration and resolved in favour of first respondent. An arbitral award of US$1 219 111.68, was rendered in favour of first respondent on 24 November 2011.</p> <p>In anticipation of the outcome of the award, applicant and first respondent had entered into a revenue sharing agreement on 26 October 2011. In terms of that agreement, applicant was to receive two thirds of the proceeds and first respondent one third. In between the date of the award and 17 February 2012, applicant and first respondent revised the revenue sharing formula to a fifty-fifty basis. By the time the parties signed the revised revenue sharing agreement, applicant had already received a bigger portion of the proceeds in line with the first agreement of 26 October 2011. In keeping with the revised agreement, applicant says it reimbursed first respondent the overpaid amount through fourth respondent.</p> <p>From the arbitral award, applicant first received a sum of US$773 000.00. NSSA was still to pay the balance of US$446 111.68. Out of the US$773 000.00, applicant asserts it paid first respondent its fifty percent share of US$386 500.00. The parties had a misunderstanding on the sharing of the balance of US$446 111.68, in respect of which each party was entitled to receive US$223 055.00. Applicant instituted proceedings against first respondent for its fifty percent share under HC5149/14. It obtained a default judgment for US$223 055.00 against first respondent. The judgment remains extant and unsatisfied as first respondent has no executable assets. That default judgment is the genesis of the present lawsuit.</p> <p>In justifying the relief sought, applicant points to certain acts of omission and commission on the part of first, second and third respondents. I summarise them hereunder.</p> <p><strong><em>First respondent was run with reckless abandon</em></strong></p> <p>            Following the claim for US$223 055.00, applicant claims that first respondent was recklessly managed and exposed to several unnecessary incidences of litigation. The summons case, HC 5149/14 was not defended, and neither was there a consent to judgment. A default judgment was granted and the directors made no attempt to settle the judgment debt. An attempt to execute the judgment debt hit a brick wall as there were no executable assets at number 4 Adven House, Innez Terrace, Harare, being first respondent’s address for service and business premises. The sheriff’s <em>nulla bona</em> return of service showed that the premises were now occupied by Stallone Consultancy (Pvt) Ltd. In that regard, it was submitted that first respondent therefore failed to comply with the legal requirement to maintain a registered office where all communication and process was to be served. Any change of address had to be communicated to the Registrar of Companies. No communication was made. The company registry continued to reflect number 4 Advern House as the registered office when first respondent had ceased operating from that address. Attempts to execute on first respondent’s NMB Bank Southerton Branch, Harare bank account hit a dead end. The account had been closed on 20 February 2013.</p> <p>            Having yielded <em>nulla bona</em> returns following attempts to execute, applicant filed an application for the piercing of first respondent’s corporate veil under HC10930/14. This was to enable applicant to proceed with execution against assets of second and third respondents to satisfy the judgment debt. The parties were the same as <em>in casu.</em> Respondents in that matter failed to file their heads of argument timeously, resulting in them applying for condonation and extension of time within which to file same. That indulgence was only granted to fourth respondent by matanda-moyo J under HH 868/15. Fourth respondent failed to produce a power of attorney authorising him to act on behalf of second and third respondents in that matter. The two were found to be improperly before the court. Consequently, a default judgment was granted against them by musakwa J under HC 10930/14 on 16 December 2015. It reads as follows:</p> <p>                        “IT IS ORDERED THAT:</p> <ol> <li>The corporate veil in respect of the 1st respondent be and is hereby pierced.</li> <li>The assets of the 2nd and 3rd respondent be and are hereby executable in satisfaction of the order in case no. HC 5149/14.</li> <li>The 2nd and 3rd respondent jointly and severally each paying the other to be absolved, pay costs of this application”</li> </ol> <p> </p> <p>The order was granted a month after the judgment of matanda-moyo J denying the pair condonation to file their heads of argument out of time. The pair was undeterred. They filed an application for condonation and rescission of judgment under HC 400/16 in January 2016. The matter was heard by phiri J who dismissed the application. They appealed to the Supreme Court which remitted the matter to this court with directions that it be heard on the merits. Of significance was the prayer for rescission of judgment and condonation for the late filing of heads of argument. By judgment of 14 February 2019, phiri J granted condonation for the late filing of heads of argument, and set aside the default judgment by MUSAKWA J. The application for the lifting of the corporate veil under case number HC 10930/14 was to be heard as an opposed matter after the filing of heads of argument by the respondents. That matter never saw light of day. It was withdrawn by the applicant.</p> <p><strong><em>Improper and dishonest conduct</em></strong>      </p> <p>            The second ground for lifting the corporate veil was the alleged improper conduct by respondents. Having agreed to share the revenue from NSSA equally with applicant, the respondents converted the proceeds due and payable to applicant to their own use. They defrauded the applicant thereby committing a crime. If they had legitimate reasons for misappropriating the funds, then they should have stated so. The respondents were challenged to account for the dates of payment of the said amounts, the recipients of the amounts, and the reasons for not paying applicant. The court was urged to take note of the respondents’ explanation in determining whether or not the manner in which they conducted the affairs of first respondent did not warrant granting the relief sought. The respondents had failed to account to the applicant on the fate of the amount which remained outstanding. Their failure to do so was evidence of bad faith and dishonesty. First respondent was in a fiduciary relationship with applicant obliging it to account for the said payment. The misappropriation of funds owing to applicant justified the piercing of the corporate veil.</p> <p>            Applicant also contends that first respondent was used to peddle falsehoods by second and third respondents. For instance, third respondent misrepresented to the Zimbabwe Revenue Authority (ZIMRA) that following the death of its founding director, Charles Samkange, first respondent paid off all its creditors. Third respondent was seeking to deregister first respondent’s business partner number with ZIMRA. As at 31 December 2013, the date of the letter to ZIMRA, first respondent had not accounted for applicant’s outstanding share of the NSSA proceeds. Third respondent did not disclose that the shareholders had closed the first respondent’s business bank account on 20 February 2013. For the foregoing reasons, it was argued that second and third respondents recklessly, improperly and dishonestly ran the affairs of first respondent, and the money due to applicant was abused in the process.</p> <p>First respondent did not respond to the application, while second respondent deposed to an affidavit on his own behalf and on behalf of third respondent. The power of attorney authorising him to depose to the affidavit on behalf of third respondent was tendered in court by consent. No relief was sought against fourth respondent although he was cited as a party. He nonetheless filed an opposing affidavit. No submissions were made on behalf of fourth respondent at the hearing.</p> <p>At the commencement of the hearing the parties’ respective attorneys raised preliminary objections. They agreed to proceed to argue the merits of the matter after their addresses on the preliminaries. I shall deal with the preliminary objections first.</p> <p><strong>PRELIMINARY OBJECTIONS</strong></p> <p>            Applicant raised two preliminary objections which attacked the propriety of second and third respondents’ notice of opposition. Mr<em> Chingwena</em> raised the following <em>in limine</em>; second and third respondents’ address for service fell outside the five kilometres radius from the court, and that second and third respondents’ opposing papers flouted <em>statutory instrument </em>80 of 1998, which requires a notice of opposition to state the date of service of an application on a respondent. I shall proceed to deal with these <em>seriatim</em>.</p> <p><strong><em>Address for service outside 5 kilometres radius</em></strong></p> <p>            Second and third respondents’ address for service is stated as Vumba House, 20 Northend road, Borrowdale. Mr <em>Chingwena</em> submitted that the address is outside the five kilometre radius contrary to the rules of court. Second and third respondents were therefore not properly before the court. Order 32 rule 227(2) provides that:</p> <p>                        “(2) every written application and notice of opposition shall-</p> <p>                        (a)………</p> <p>                        (b)……….</p> <p>(c) give an address for service which shall be within a radius of five kilometres from the registry in which the document is filed;”</p> <p>            Mr <em>Chingwena</em> argued that the use of the word “shall” in the construction of sub rule 2(c) shows the requirement is mandatory. The procedure must be complied with. Mr <em>Zhuwarara</em> on the other hand argued that the address for service is within the five kilometre radius. Nothing was placed before the court by either counsel to reinforce their respective positions. Be that as it may, <em>order 1 rule 4C (a)</em>, gives this court discretion to condone a departure from the rules where it is in the interests of justice to do so. The court must be wary of needlessly elevating form over substance. This is not to suggest that litigants may flout rules of court with impunity. Each case will of course be decided on its own merits. I did not hear Mr<em> Chingwena </em>submitting that prejudice was occasioned to the applicant as a result of that oversight. I find no merit in the objection to warrant the striking out of second and third respondents’ notice of opposition. The objection is dismissed.</p> <p><strong><em>Failure to comply with Statutory Instrument 80/98</em></strong></p> <p>            Mr <em>Chingwena </em>submitted that first and second respondent’s opposing papers flouted Statutory Instrument 80/98, which requires a notice of opposition to state the date of service of the application on the respondents. He contended that second and third respondents were not properly before the court. Mr<em> Zhuwarara</em> submitted that noncompliance with the form as opposed to the rule, is not fatal. The insertion of the date of service is meant to ascertain whether the notice of opposition was filed timeously. It is for the convenience of the court. The notice of opposition was filed timeously. There was substantial compliance with the rules of court. The technical hitch did not warrant the striking out of the notice of opposition. Counsel referred to the case of <em>Trans Africa Insurance Co Ltd </em>v<em> Maluleka</em>where schreiver JA said of technical objections:</p> <p>“Technical objections to less than perfect procedural steps should not be permitted, in the absence of prejudice, to interfere with the expeditious, and if possible inexpensive decision of cases on their real merits.”</p> <p> </p> <p>In <em>Kaisa Nguwo &amp; Another</em> v<em> Maria Peno &amp; Another</em> the court commented as follows:</p> <p>“In the case of <em>Four Tower Investments Pty Ltd </em>v <em>Andre’s Motors </em>2005 (3) SA 39 (NPD) it was stated that decisions in reported cases tend to show that there has been a gradual move away from the overly formal approach. That, it is a development which is to be welcomed if proper ventilation of the issues in a case is to be achieved and if justice is to be done. I hold the same view”</p> <p> </p> <p>I associate myself with the views of the learned judges. Preliminary points that relate to form as opposed to the substance of the matter should not be raised as a routine. It is an unnecessary distraction. The courts have expressed their position on the point in a surfeit of case law authority. Courts are disinclined to elevate form over substance, unless there is prejudice which is not remediable by an appropriate order of costs and, where necessary, a postponement of the matter. In the present matter, the applicant proceeded to file its answering affidavit following the filing and service of second and third respondents’ opposing affidavit. It did not point to any prejudice as may have been occasioned by the non-inclusion of the date of service of the application on the form. The objection is dismissed.</p> <p><strong><em>Irredeemable Disputes of Fact  </em></strong></p> <p>            Mr<em> Zhuwarara </em>submitted that the matter is fraught with material disputes of fact which are unresolvable on the papers. He urged the court to take judicial notice of its own records and note that applicant was forewarned in HC10930/14, that the factual basis upon which its cause of action is predicated was disputed. Applicant withdrew the application under HC10930/14. In that matter, second and third respondents disputed allegations of fraud and having acted recklessly in managing the affairs of first respondent. Cogent evidence was required to prove these allegations. It was improper to reinstitute motion proceedings for the same relief despite being fully aware of the materiality of the disputed facts.</p> <p>The <em>causa</em> for the relief sought were funds paid by NSSA and allegedly abused by first, second and third respondents. Second and third respondents pointed to the involvement of fourth respondent in the handling of funds from the project. The nub of fourth respondent’s affidavit is to clarify matters, especially the non-payment of the judgment debt by first respondent. I set out hereunder, the extent of fourth respondent’s involvement in the project as it is relevant to the determination of this preliminary objection.</p> <p>At the inception of the NSSA project first respondent was brought on board as project manager by first respondent through his company Tijojan Enterprises (Pvt) Ltd. All issues pertaining to the project fell under his purview as the contact person between NSSA, applicant and first respondent. The applicant accepted this position by consistently interacting with him respondent in all matters pertaining to the project. These include the arbitration proceedings between NSSA and first respondent and the distribution of proceeds arising from the arbitral award. As the project manager he was entitled to fees for services rendered during the course of his engagement. He was owed in excess of $140 000.00, as confirmed by his email of 7 October 2013 to applicant’s Jean-Paul Ouellette attached to his affidavit. The email spelt out amounts owed to him by applicant for work done on several projects. It reads as follows:</p> <p>            “Hi Jean-Paul</p> <ol> <li>According to my records and recollection of events in 2006/2007 we entered into a verbal agreement that was supported by various emails in which you (Jean-Paul on behalf of Vision) promised to compensate me for all the work that I had done and was to do with respect to the NSSA project.</li> </ol> <p>We agreed that you would pay me USD670,000.00 from Vision’s portion of the proceeds in the NSSA contract.</p> <ol> <li>I have therefore set off your 50% of USD220,000.00 against what you owed me. This only partially clears what you owe me, as there are still various amounts that you owe me for assisting you in numerous projects that you were pursuing in Zimbabwe (Zinwa, Zimpost, Chemplex, City of Harare, Municipalities tenders) Kenya (Financing for City of Nairobi), Uganda (Municipalities tender through their ministry of Local Government) and South Africa (Municipalities) and Lesotho (Water Authority of Lesotho), Zambia, Tanzania.</li> <li>Your remittances to my Mauritius account were in recognition and compliance with our agreement. You were paying for services rendered by me. In the meantime I would encourage you to pursue whatever action you deem necessary if you have a contrary view, but the mindful of the pitfalls of falsehoods, violating our telecommunications Act, blackmail and defamation. The consequences of which will prove dire for you.</li> <li> </li> </ol> <p>Regards Cris”</p> <p> </p> <p>            Fourth respondent asserts that by the time the NSSA project came through, he had a long business association with applicant. He was owed money from various projects and whatever money he retained or was remitted to him by applicant was either a set off of what was owed to him or payment for what was due. That explains why applicant never brought any claim against him. The closest he came to be involved in a lawsuit with applicant was when he received a letter of demand from applicant’s lawyers. The letter is annexure “A” to fourth respondent’s opposing affidavit under HC10930/14. The letter of 12 June 2014 reads as follows:</p> <p>                        “MR CHRISTOPHER J.N. MAKASI-SHAVA</p> <p>                                921 WILLOW CRESCENT</p> <p>                                TWINLAKES</p> <p>                                NORTON</p> <p>                                Dear Sir</p> <p>                        RE: <strong>VISION R4 CORPORATION</strong></p> <p>We address you at the instance of our above named client which partnered with Professional Computer Services (Pvt) Ltd (PSC) in concluding a Sales Agreement with National Social Security Authority (NSSA) for the supply of software and services. The agreement was however later cancelled by NSSA for alleged non-performance. The matter went for arbitration where PSC was awarded $1 145 830.29.</p> <p>Pursuant to the aforesaid award it was then agreed between our client and yourself that the $1 145 830.29 would be split in such a way that you would get one third thereof whilst our client would get the remaining two thirds. This agreement was reduced to writing. You however later verbally changed this agreement so that the amount in question would be shared equally between the parties. We are instructed that you have so far remitted $773 000.00 to our client leaving a balance in the sum of $223 055.00 which amount is arrived at as follows:</p> <p>Arbitral Award                                                 $1 145 830.00</p> <p>Interest paid via Scanlen &amp; Holderness                                   $     38 281.68</p> <p>Estimated interest earned on Performance Bond                      $     35 000.00</p> <p>                                                                        -----------------</p> <p><strong>TOTAL</strong>                                                                       $1 219 111.68</p> <p>Less amount remitted to our client                               $   773 000.00</p> <p>                                                                        -----------------</p> <p><strong>BALANCE</strong>                                                      $   446 111.68</p> <p>                                                                        -----------------</p> <p>50% of the aforesaid balance gives you $223 055.00 which is the amount due to our client. We demand payment of this amount through our Trust Account whose details are stated hereunder;</p> <p>……………</p> <p>Yours faithfully</p> <p> </p> <p><strong>KANOKANGA AND PARTNERS</strong>”</p> <p> </p> <p>Commenting on this letter in his opposing affidavit under HC10930/14, fourth respondent had this to say:</p> <p>“5.1 ……I state that I was never privy to the proceedings in case in case No 5149/14. The nearest I came to being party to the proceedings was when I received a letter of demand from Applicant’s Attorneys which I attach hereto marked CS “A”. Thereafter no further action was taken against me.</p> <p>5.2 As appears from the letter of demand the view of the Applicant seems to have been that I personally owed the amount subsequently claimed from the 1st Respondent. It is surprising that given this state of affairs the Applicant did not cite me in the action they then initiated. It is even more of a surprise that I am now cited in these proceedings in my personal capacity</p> <p>5.3 ……….</p> <p>5.4 I have a defence to the Applicants claim which I should be allowed to air in Court. The Applicant owed an amount of $670 000.00 for work I did on the NSSA project as reflected in email attached as Annexure CS’B’. The Applicant was aware of this and the fact is I was entitled to set off same against funds received from NSSA. Even after the setoff I am still owed an amount in excess of $200,000.00 by the Applicant hence Applicant could not bring an action against me given their knowledge of my claims against them. This is the reason why summons were never issued against me” (underlining for emphasis)</p> <p>In response to these averments, applicant argued that fourth respondent was not cited in HC5149/14 because the cause of action in that matter was concerned with the agreement between applicant and first respondent. The reason for citing fourth respondent in the withdrawn application under HC 10930/14, was explained in the applicant’s answering affidavit to fourth respondent’s opposing affidavit in the same matter as follows:</p> <p>“4……The 4th Respondent is cited as the person who was mandated by the 2nd and 3rd Respondents to act on behalf of the 1st Respondent. He is also cited as the person who had control of the 1st Respondent’s bank Accounts”</p> <p> </p> <p>That fourth respondent was central to all payment processes is also confirmed in paragraphs 12 and 13 of applicant’s founding affidavit under HC10930/14. They read as follows:</p> <p>“12 The $773 000.00 which the applicant has so far received from the 1st Respondent was transferred into Applicant’s Bank Account by the 4th Respondent.</p> <p>13. The 4th Respondent had control over the funds which the 1st Respondent received from National Social Security Authority and NMB Bank Limited”</p> <p> </p> <p>The same argument is raised in the present matter. In his opposing affidavit to the present application, fourth respondent absolves first, second and third respondents of blame by insisting that he was owed funds by applicant and they agreed to a set off arrangement. The email of 7 October 2013 from fourth respondent to Jean-Paul Ouellette set out what fourth respondent was owed by applicant in respect of the NSSA project. In paragraph 2.5.4.2 of applicant’s founding affidavit, the deponent states that:</p> <p>“Applicant therefore reimbursed 1st Respondent through 4th Respondent, the excess sum by which Applicant had been overpaid by a reverse transfer. I attach herewith part of the repayment done by me reflected in email correspondence between 4th respondent and myself, dated the 17th February 2012, as <strong>Annexure E</strong>, involving the transfer of US$140 000.00” </p> <p> </p> <p>Curiously, the email of 17 February 2012 does not confirm any reimbursement of funds to first respondent through fourth respondent. It is a request for payment by fourth respondent. For the sake of completeness, I quote the contents of the email hereunder:</p> <p>                        “Hi Jean Paul</p> <p>Of the money I sent please transfer USD40,000.00 to my Zimbabwean Standard Chartered account and then USD100,000.00 to my call account in Mauritius.</p> <p>I am still to get feedback from State Procurement Board, but I hope on Monday something will come through. I checked with Louise and she said so far nothing had come through so I guess Monday you will send me transfer notifications.</p> <p>Thanks and kind regards</p> <p>Cris”</p> <p>The contents of the email are consistent with the fourth respondent’s account that he was owed money from the NSSA project by applicant. In paragraph 8.2 of his opposing affidavit to the present application, fourth respondent makes the following point:</p> <p>“Applicant was not defrauded by myself or any of the other respondents. All the decisions I made and action I took as Project Manager in the NSSA project were with the full knowledge and approval of the applicant. It boggles the mind that applicant would have remitted part of the money 1st respondent paid to me personally and not back to 1st respondent (if as alleged it was a remittance following on the 50-50 sharing agreement) except that this was money due to me personally from applicant, which is in fact the correct position”</p> <p> </p> <p>In paragraph 9.1, he asserts that:</p> <p>“I can categorically state that I never personally received a further payment of $446,000.00 from NSSA and am not in a position to account for same. I also do not recall the 1st respondent receiving any such amount during the time I associated with 1st respondent until the conclusion of the NSSA project including all litigation”</p> <p> </p> <p>In paragraph 10 he states:</p> <p>“I was never privy to the conduct of case number 5149/14 and cannot comment on these issues. Applicant deliberately chose not to cite me as a party to such proceedings for fear that I would have successfully have raised a defence to any such claim”</p> <p> </p> <p>Fourth respondent was thus deeply involved in all payments involving the NSSA project. Applicant and first respondent appear to have endorsed his role as all funds from the NSSA project exchanged hands through him.  </p> <p>Second and third respondents referred to yet another material dispute which they contend cannot be resolved on the papers. It concerns payments received from NSSA and how these were apportioned between the parties. In the declaration under HC5149/14, a total of $1 219,111.68 was expected from NSSA. Applicant received $773,000.00 of that amount. In line with the revised agreement to share proceeds equally, applicant paid first respondent $386,500.00. The sum of $446,111.68 still remained due from NSSA. It represented the balance outstanding from the arbitral award of $1 219,111.68, less $773,000.00 already paid by NSSA. Each party was entitled to receive half of that amount which is $223,055.00. The claim by applicant for $223,055.00 resulted in the default judgment against first respondent under HC5149/14. Applicant avers that first respondent received the outstanding $446,111.68 from NSSA, out of which $223,055.00 was to be remitted to applicant. Second and third respondent deny that first respondent received that payment from NSSA. Fourth respondent equally denies that first respondent received that amount from NSSA. Applicant did not attach proof showing that first respondent was paid $446,111.68 by NSSA.</p> <p>It was further submitted that there is no proof that applicant paid first respondent’s half share of $386,000.00, from the $773,000.00 paid by NSSA. The only proof of payment referred to by applicant is an email from fourth respondent of 17 February 2012 to applicant’s Jean-Paul Ouellette. I have already alluded to this email. It does not constitute proof of payment by applicant. Second and third respondents contend that even assuming the $140,000.00 was paid from the $773,000.00, a balance of $633,000.00 remained unaccounted for. That balance represents more than fifty percent of the sum of $1 219,111.68 expected from NSSA. By its own calculation and evidence, the applicant had therefore been paid in full. If applicant was paid in full, then there was no cause of action against any of the respondents. In any case, paragraph 8.2 of fourth respondent’s opposing affidavit is quiet telling. The amounts paid to him by applicant were not meant for first respondent. They were payments for what he was owed by applicant. The dispute cannot therefore be resolved on the papers.  </p> <p>Mr <em>Chingwena</em> argued that there are no material disputes of fact at all. He referred to paragraphs 2 up 2.10 of the applicant’s founding affidavit which were not sufficiently refuted by second and third respondents, and paragraphs 3.7 to 3.8 which were not responded to at all. Paragraphs 2 to 2.10 are more of an exposition of the background to the matter. These were in my view, extensively dealt with in paragraph 8 of the second respondent’s opposing affidavit. Paragraphs 3.7 to 3.8 were indeed not directly responded to by second and third respondents. They relate to matters which applicant reckons are clear examples of how first respondent was abused by second and third respondents justifying the relief sought. These include alleged falsehoods that first respondent had taken care of its creditors to justify the closure of its account with ZIMRA, and the alleged failure to disclose to ZIMRA that shareholders had long closed first respondent’s business bank account. I find that the alleged falsehoods and concealment of facts do not warrant consideration in isolation.  They need to be carefully appraised in the broader context of the materiality of the disputes that beset this matter from the onset.</p> <p>Mr <em>Chingwena</em> submitted that fourth respondent had not referred to any disputes of fact, despite his intimate involvement in the matter. This showed that no such disputes existed. Counsel further submitted that the concession by fourth respondent that neither he nor any of the respondents received $446 000.00 from NSSA showed recklessness on the part of second and third respondents. It exposed their omissions. I am not persuaded by this submission. To the contrary, the evidence of fourth respondent reaffirms the materiality of disputes of fact inherent in this matter. The exact amount received by applicant is unknown. Indications are that he may have received an overpayment of his share of the NSSA proceeds. The parties have given highly conflicting narratives. On the papers, the parties’ positions are irreconcilable.</p> <p>Mr<em> Chingwena</em> also submitted that the relief sought is based on a judgment which was not contested. There is no dispute on the amount owed as the judgment remains extant. The court is not persuaded by this submission. The uncontested judgment under HC5149/14 should not be considered remotely.  If the amount due to applicant is unknown, or if applicant was paid in full as is suggested by respondents, what further payment does applicant seek to enforce against second and third respondents? The court needs to be satisfied that the debt remains outstanding before it can be persuaded to grant the relief sought. Regrettably, that position is not decipherable on the papers. The default judgment was against first respondent.  The relief sought affects second and third respondents. Their evidence on the amount applicant claims to be outstanding effectively throws a spanner in the works. There is nothing in the papers to show that applicant is owed anything.</p> <p>Mr <em>Chingwena</em> urged the court to consider the effect of the judgment by PHIRI J of 14 February 2014. He submitted that paragraph 3 of the order directed that the main matter be heard as an opposed matter.  The court must have been satisfied there were no material disputes of fact in making that order. He implored the court to dismiss this objection.</p> <p><strong>THE LAW</strong></p> <p>A decision as to the form of procedure to use at the onset of a lawsuit is one that requires serious and careful consideration by a litigant. Authors <em>Herbstein &amp; Van Winsen </em>make the following pertinent point:</p> <p>“It is clearly undesirable in cases in which the facts relied upon are disputed to endeavour to settle the dispute of fact on affidavit, for the ascertainment of the true facts is effected by the trial judge on considerations not only of probability, which ought not to arise in motion proceedings, but also of credibility of witnesses giving <em>viva voce</em> evidence. In that event it is more satisfactory that evidence should be led and that the court should have the opportunity of seeing and hearing the witnesses before coming to a conclusion……Generally speaking, therefore, the character or subject matter of the claim is not the touchstone, the real question being the proper method of determination in each case of the facts upon which any claim depends……”</p> <p> </p> <p>In <em>Supa Plant Investments (Pvt) Ltd </em>v <em>Edgar Chidavaenzi</em>, makarau J (as she then was) held that:</p> <p>“A material dispute of fact arises when such material facts put by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence”.</p> <p> </p> <p>See also the remarks by heher JA in <em>Wightman t/a JW Construction</em> v<em> Headfour (Pty) Ltd and Another.</em></p> <p>            The grounds upon which relief is sought in the present matter are contested. The court noted that applicant sought the same relief as in <em>casu</em> under HC10930/14, but the application was withdrawn. It is trite that the court is at large to take judicial notice of its own records. The applicant was aware at the time of reinstituting proceedings that there were contestable disputes of fact.</p> <p>            The submission that the order by phiri J pointed to the absence of disputes of fact is untenable. What was before phiri J was an application for condonation for the late filing of heads of argument under HC10930/15, and the setting aside of an order obtained in default. The main issue before the learned Judge was not the drastic remedy of lifting the corporate veil. The reference to the case proceeding as an opposed matter did not obviate the need to seriously consider the appropriateness of the motion procedure in this matter. As observed by authors <em>Herbstein &amp; Van Winsen:</em></p> <p>“Every claimant who elects to proceed on motion runs the risk that a dispute of fact may be shown to exist, and the way in which the court exercises its discretion as to the future course of the proceedings in such an event will depend very much upon the extent to which the claimant is found to have been justified in accepting that risk. If, for example, the applicant should have realised when launching the application that a serious dispute of fact was bound to develop, the court may dismiss the application with costs”</p> <p> </p> <p>In <em>Mashingaidze </em>v<em> Mashingaidze</em> ROBINSON J remarked:</p> <p>“It is necessary to discourage the too-oft recurring practice whereby applicants who know or should know as was the case with the applicant in this matter, that real and substantial disputes of fact will or are likely to arise on the papers, nevertheless resort to application proceedings on the basis, that at the worst, they can count on the court to stand over the matter for trial………”</p> <p> </p> <p>Courts are enjoined to take a robust approach to disputes of fact and endeavour to resolve them on the papers to the extent that it is realistically possible. The remarks by patel JA in <em>Douglas Muzanenhamo</em> v<em> Officer in Charge CID Law and Order and 7 Others</em>, are pertinent in this regard. He said:</p> <p>“As a general rule in motion proceedings, the courts are enjoined to take a robust and common sense approach to disputes of fact and to resolve the issues at hand despite the apparent conflict. The prime consideration is the possibility of deciding the matter on the papers without causing injustice to either party. See Masukusa v National Foods Ltd &amp; Another 1983 (1) ZLR 232 (S) at 235A; Zimbabwe Bonded Fibreglass v Peech 1987 (2) ZLR 338 (S) at 339C-D; Ex-Combatants Security Co. v Midlands State University 2006 (1) ZLR 531 (H) at 534E-F…….”</p> <p> </p> <p>The evidence placed before the court points to the existence of material disputes of fact which are not resolvable on the papers. The court is constrained from taking a robust approach to the disputed facts without causing undue prejudice to the parties. The areas of dispute are wide and far reaching. The applicant had been forewarned under HC10930/14. It did not take heed. In the final analysis, I am guided by the remarks of PATEL JA in the <em>Douglas Muzanenhamo </em>v<em> Officer in Charge CID Law and Order and 7 others</em> judgment</p> <p>“It is of course open to the court to strike off or dismiss the application on the technical ground that the applicant has adopted the wrong procedure and should have instituted this matter by way of action in the High Court.”</p> <p> </p> <p>I am satisfied that the applicant ought to have been aware of the materiality of the disputed facts before adopting the motion procedure. It had been forewarned in the aborted proceedings. The applicant was lackadaisical in its approach. The nature of the disputes of fact inherent in this matter warrant a dismissal of the application on that premise without the need to traverse the merits.</p> <p><strong>DISPOSITION </strong></p> <p>Accordingly, it is ordered as follows;</p> <ol> <li>The application is dismissed.</li> <li>Applicant shall pay the second and third respondents’ costs.</li> </ol> <p> </p> <p> </p> <p> </p> <p><em>Kanokanga and Partners, </em>legal practitioners for the applicant</p> <p><em>Bruce Tokwe Commercial Law</em>, legal practitioners for the second and third respondents</p> <p><em>Ziumbe &amp; Partners, </em>legal practitioners for the fourth respondent</p> <p> </p> <p> </p> <p> </p> <p> </p> <p>1956 (2) SA 273 AD at 278</p> <p>HB 214/16 at page 3</p> <p>Page 25 of the record of proceedings under HC10930/14</p> <p>Page 22 of the record of proceedings under case HC 10930/14</p> <p>The Civil Practice of the High Courts of South Africa Fifth Edition at page 293</p> <p>HH 92/09 at p 4</p> <p>SCA 66/2007 at pages 5-6</p> <p>Supra at page 300</p> <p>1995 (1) ZLR 219 at 221G-222A</p> <p>CCZ 3/13 page 4</p> <p>Supra at page 7</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/rtf" src="/modules/file/icons/application-octet-stream.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/198/2020-zwhhc-198.rtf" type="application/rtf; length=372761">2020-zwhhc-198.rtf</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/2020/198/2020-zwhhc-198.pdf" type="application/pdf; length=411947">2020-zwhhc-198.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/company">COMPANY</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/corporate-veil">Corporate veil</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/dispute-facts-practice-and-procedure">Dispute of facts (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/execution-practice-and-procedure">Execution (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/sale-execution">sale (Execution)</a></li></ul></span> Thu, 19 Mar 2020 12:49:02 +0000 Sandra 9573 at https://old.zimlii.org Mutize v FMC Financial Services (Pvt) Ltd & 5 Others; Nyahasha v Mutize (HH 10-20, HC 10930/18; HC 505/19) [2020] ZWHHC 10 (08 January 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/10 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>1.ABIGAIL MUTIZE                                                                                                            HC 10930/18                                                                                                           </p> <p>versus</p> <p>FMC FINANCIAL SERVICES (PVT) LTD</p> <p>and</p> <p>REVESAI TABETH NYAHASHA</p> <p>and</p> <p>SHERIFF OF THE HIGH COURT</p> <p>and</p> <p>REGISTRAR OF THE HIGH COURT</p> <p>and</p> <p>REGISTRAR OF DEEDS</p> <p>and</p> <p>POWER BREEZE ENGINEERING (PVT) LTD</p> <p> </p> <p>2.REWESAI TABETH NYAHASHA                                                                      HC 505/19</p> <p>versus</p> <p>ABIGAIL MUTIZE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>TAGU J</p> <p>HARARE, 24 July 2019 &amp; 8 January 2020</p> <p> </p> <p> </p> <p><strong>Consolidated opposed applications</strong></p> <p> </p> <p><em>N Musuba</em>, for applicant (HC 10930/18)</p> <p><em>E Mubaiwa</em>, for respondents</p> <p> </p> <p><em>F Moyo</em>, for applicant (HC 505/19)</p> <p><em>N Musviba</em>, for respondent</p> <p> </p> <p>             TAGU J: There is an order of this Court consolidating the two matters in HC -10930/18 and HC- 505/19 for hearing. The matters speak to each other particularly because the title sought to be enforced in HC- 505/19 is also being impugned in HC-10930/18. It is necessary to set out the facts in each case.</p> <p>In Case No. HC 10930/18 the applicant ABIGAIL MUTIZE is applying for setting aside a sale in execution by public Auction in terms of the common law of Zimbabwe. The applicant as the one of the directors of, and on behalf of the 5th respondent pledged her house, which is a certain piece of land situate in the district of Salisbury, being Stand 659 Mabelreign Township, measuring 1163 square meters (the property) as collateral for the money borrowed from the 1st respondent, by the 5th respondent. The 5th respondent defaulted in its payments and the 1st respondent obtained a judgment against the applicant under Case Number HC 7340/11. The property was attached and sold in execution by public auction by the 3rd respondent. The 2nd respondent was duly declared the highest bidder and purchaser of the said property for $115 500.00 on the 19th of March 2018 and the sale was confirmed on the 31st May 2018. Efforts by the applicant to challenge the confirmation were unsuccessful. The terms of the sale set by the 3rd respondent were that the purchase price was to be paid in full within 7 days after confirmation and failure to do so would result in the sale cancelled. The applicant alleges that the 2nd and 3rd respondents breached the terms of the sale in that payment was made after seven days. The 3rd respondent is accused of having passed transfer to the 2nd respondent before full purchase price was paid. She therefore submitted that the manner in which the Sheriff handled this sale is opaque and suggestive of bad faith or mischief on the part of the purchaser or the Sheriff or both of them. The relief being sought by the applicant is as follows-</p> <p>“1. The Deed of transfer registered in favor of the second respondent in respect of the property in dispute be and is hereby cancelled.</p> <p>2. The Deed of transfer No. 8554/89 registered in the name of the applicant on the 12th day of September 1989 be and is hereby revived.</p> <p>3. The third respondent be and is hereby directed, in respect of the relevant documents, to make the endorsements and entries necessary to give effect to paragraph 2 of this order.</p> <p>4. The sale by public auction concluded between the second and third respondents on the 19th of March 2018, in respect of Stand 659 Mabelreign Township, Harare, measuring 1163 square meters, be and is hereby set aside.</p> <p>5. The second respondent shall pay the costs of this application.”</p> <p> </p> <p>The applicant (Rewesai Tabeth Nyahasha) in Case No. HC-505/19 is that she is applying for the eviction of the respondent, (Abigail Mutize) her invites, occupants, employees and any other person claiming occupation at her behest from a certain piece of land situate in the district of Salisbury called Stand 659 Mabelreign Township measuring 1163 square meters held under deed of transfer 5886/2018 also known as No. 9, 27th Avenue Haig Park, Mabelreign, Harare. (the stand). Facts in respect of Case No. HC 505/19 are that the applicant in or around the 28th September 2018 became the legal owner of the said stand. Transfer from the respondent arose following a Sheriff’s sale by way of public auction held under SS16/18 to which she successfully tendered the highest bid and was consequently confirmed by the Sheriff of Zimbabwe as the purchaser in and around the 31st of May 2018. She claims to have title to the property and is being deprived of possession and all the rights which flow from ownership by the respondent’s conduct of refusing to vacate the property despite demand. She now prays for an order in the following terms-</p> <p>“1. The eviction of the Respondent and all those claiming through her from the premises known as No. 9, 27th Avenue, Haig Park, Mabelreign, Harare within 7 days of being served with this Order failing which the Sheriff of the High Court of Zimbabwe is hereby authorized to evict the Respondent and all those claiming occupation through her.</p> <p>2. Costs of the suit on a legal practitioner and client scale.”</p> <p><strong>CASE HC -10930/18</strong></p> <p>Several preliminary objections were raised by the second respondent. These have to be dealt with first. The first point <em>in limine</em> is that there are material disputes of facts. The contention by the second respondent is that at the time of issuing this application the immovable property had already been transferred to the 2nd respondent as evinced by Annexure “D”. She said not only does the applicant need to prove that the conduct of the 3rd respondent fell below the standard expected of him but she must also address the issue of ownership which facts form triable issues that cannot be dispensed solely on the papers filed of record. Counsel for the applicant submitted that there are no disputes of facts because there is a balance of $500.00 that needs to be paid. In response the counsel for the second respondent produced receipt number 0984015 which proved that the amount of $ 500.00 was paid on the 13th of November 2018. A perusal of the papers indeed shows that this court application was filed on the 27th of November 2018 well after the balance had been paid. Therefore it is not correct that an amount of $500.00 is outstanding. Therefore this point <em>in limine</em> has merit.</p> <p>The other point <em>in limine</em> is that the application is <em>lis pendens</em> under Case No HC 5402/18. The court indeed had sight of the file referred to by the second respondent. I agree with the counsel for the applicant that the case referred to does not apply in that while some parties are mentioned the case involves some totally different parties. This point <em>in limine</em> is therefore dismissed.               </p> <p>The other point <em>in limine</em> is that of res judicata. This submission is based on a letter of compromise made at the time the applicant was not aware of the bad faith she referred to. Besides in my view this letter is not a court order. I cannot uphold this point <em>in limine</em>. See <em>Wolfenden</em> v <em>Jackson</em> 1985 ZLR (2) 313 (S).</p> <p>One point <em>in limine</em> was that the applicant failed to comply with Rule 257 of the Rules of this Honourable Court in that the Form No. 29 which the applicant used neither specifies the grounds upon which application is brought nor states the relief sought. She said these infractions render the application fatally defective. See<em> Moyo</em> v <em>Forestry Commission </em>1997 (2) ZLR 254 (S). The counsel for the applicant argued that since the application is one made under common law there was no need to comply with the Rules. The Form used by the applicant reads as follows-</p> <p>“TAKE NOTICE that the applicant intends to apply to the High Court at HARARE for an Order in terms of the Draft Order annexed to this notice and that the accompanying affidavit and documents will be used in support of the application”</p> <p> </p> <p>Rule 257 reads as follows-</p> <p><strong>             “257. Contents of notice of motion</strong></p> <p>The court application shall state shortly and clearly the grounds upon which the applicant seeks to have the proceedings set aside or corrected and the exact relief prayed for.”</p> <p> </p> <p>A reading of the Form used by the applicant in this case does not contain the particulars referred to in by the Rule. It is therefore fatally defective. This point <em>in limine</em> is upheld.</p> <p>The other point <em>in limine</em> was failure to apply for condonation. The second respondent submitted that the applicant was out of time and should have applied for condonation or at least explain why this application was brought out of time. Again the counsel for the applicant submitted that since this is an application under common law there was no need to apply for condonation. This was disputed by the counsel for the second respondent.</p> <p>I tend to agree with the counsel for the second respondent who submitted that a perusal of the applicant’s papers suggest that the motion before this court is actually an application in terms of Rule 359 of this Honourable Court. In particular Rule 359(8) provides that a person aggrieved by the Sheriff’s decision may within 1 month after notification apply to the Court by way of Court application to have the decision set aside. The applicant in her papers at paragraph 23 admits to filling her papers out of time all the while being economical about the truth as to why she filed her application out of time. She merely said-</p> <p>“further, she did not file this application sooner in terms of rule 359 of the High Court Rules, because she was not informed despite all her numerous requests from the Sheriff if the full purchase price had been paid. She was only advised that the full purchase price had not been paid through Annexure B supra, on the 6th of November 2018, hence bringing this application in terms of the common Law.”</p> <p>Realizing that she was out of time this is what the applicant should have said in an application for condonation. The applicant should have first sought condonation from this Honourable Court highlighting the reasons for late filing and seeking the court’s pardon to file the present application. I therefore uphold this point <em>in limine</em>.</p> <p>Finally, the last point <em>in limine</em> is that the applicant lacks <em>locus standi</em> to found a cause on the decision by the Sheriff to not cancel the agreement of sale. The second respondent submitted that the authorities are clear that the effect of the confirmation of a sale in execution is to bring about a contract between the Sheriff as the seller and the purchaser. Applicant is therefore not privy to the contract and has no relationship to the Sheriff’s right to elect to abide the contract. She has no locus standi to seek to enforce sanctions on the exercise of contractual rights of other persons. The counsel for the applicant conceded that the Sheriff had discretion but argued that it was exercised in bad faith.</p> <p>In the case of <em>Allied Bank Limited</em> v <em>Dengu &amp; Anor</em> SC- 12-2016 it was held that-</p> <p>“It is quite clear that the question of locus stand does not arise in the present case for the following reason. The principle of locus standi is concerned with the relationship between the cause of action and the relief sought. Once a party establishes that there is a cause of action and that he/she is entitled to the relief sought, he or she has locus standi. The plaintiff or applicant only has to show that he or she has direct and substantial interest in the right which is the subject –matter of the cause of action.”</p> <p> </p> <p>In the present case if the purchaser of the property in question had not complied with the terms of sale set by the Sheriff it was the Sheriff himself/herself who had a direct interest/ cause and not the judgment debtor and he had the right to extent the time within which the purchaser could make good the payment and not for the judgment debtor to bring an application for cancellation of the sale. I therefore agree with the second respondent that the applicant does not have <em>locus standi</em>. I uphold the point <em>in limine</em>.</p> <p>On the basis of the points <em>in limine</em> that I upheld the applicant’s application is dismissed without dealing with the merit of the application with costs.</p> <p><strong>CASE HC- 505/19</strong></p> <p>This an application for eviction of the respondent, her invites, occupants, employees and any other persons claiming occupation at her behest from a certain piece of land situate in the district of Salisbury called Stand 659 Mabelreign Township measuring 1163 square metres held under deed of transfer 5886/2018. (also commonly known as No. 9, 27th Avenue, Haig Park, Malbereign, Harare). It is common cause that the applicant has title to the said property. The respondent lost title to the property when it was sold in execution by the Sheriff.  The applicant temporarily allowed the respondent to stay in the property. Now the applicant wants to take possession of her property she lawfully bought at a public auction. The sale has since been confirmed by the Sheriff. All attempts to set aside the sale made by the respondent for one reason or another have hit a brick wall.</p> <p>This application is premised on the law of <em>rei vindicatio</em> and right to uninterrupted ownership. It is trite that in order for the applicant to succeed in a motion for <em>rei vindicatio</em>, it is incumbent upon the applicant to prove the following-</p> <ul> <li>That the immovable property vests in her;- <em>Savanhu</em> v <em>Hwange Colliery  Co.</em> SC -15-08;</li> <li>That the immovable property in dispute exists and is clearly identifiable;-<em>Sorvaag </em>v <em>Prettersen &amp; Ors</em> 1954 (5) SA 636;</li> <li>That at the time of issuing these motion proceedings, the respondent and those claiming occupation through her were in continued occupation at the premises.-<em>Chetty</em> v <em>Naidoo </em>1974 (3) SA 13 (H)</li> </ul> <p>In the authority of <em>Pretoria Standard</em> v <em>Ebrahim</em> 1979 (4) SA 193 (T) cited by the applicant it is put forward that ejectment of an occupier of land can be obtained by the registered owner of the immovable property. This applies mutandis mutatis to this case.</p> <p>The first requirement in my view has been satisfied by the applicant who provided the title deed to the immovable property despite the challenge by the respondent. The second requirement has also been satisfied as the property in question is in existence and is clearly identifiable. Equally the final requirement has been met as can be manifested from the respondent’s opposing papers filed of record wherein she admitted to having been in continuous occupation of the premises at the time proceedings were instituted.</p> <p>On the premise of the <em>nemo plus iuris</em> rule the remedy of <em>rei vindicatio</em> entitles the owner to exclusive possession and the applicant having met the requirements at law, the onus shifts to the respondent to prove that a right exists to her continued occupation at the premises. See <em>Muriwa &amp; Others</em> v <em>Noxon Investments &amp; Ors</em> HH-17-27.</p> <p>In deciding whether the respondent discharged the onus on her the court has to have regard to the following-</p> <ul> <li>Documentary evidence that the applicant is not the owner of the immovable property;</li> <li>That the immovable property is no longer identifiable or does not exist;</li> <li>That the respondent’s continued occupation of the immovable property is not unlawful; or</li> <li>That the respondent is no longer in physical control of the premise.</li> </ul> <p>Having considered the submission made before the court and the documentary evidence the court is of the view that the respondent, despite the spirited challenges she made failed to discharge the onus on her and her defence is dismissed with costs. The applicant managed to prove her case.</p> <p>IT IS ORDERD THAT</p> <ol> <li>The application in HC 10930/18 be and is hereby dismissed with cost on a legal practitioner and client scale.</li> <li>The application in HC 505/19 be and is hereby granted.</li> </ol> <ul> <li>The eviction of the Respondent and all those claiming through her from the premises known as No. 9, 27th Avenue, Haig Park, Mabelreign, Harare within 7 days of being served with this Order failing which the Sheriff of the High Court of Zimbabwe be and is hereby authorized to evict the Respondent and all those claiming occupation through her.</li> <li>Costs of suit on a legal practitioner and client scale.</li> </ul> <p> </p> <p> </p> <p><em>Donsa Nkomo &amp; Mutangi</em>, applicant’s legal practitioners (HC- 10930-18)</p> <p><em>Scanlen and Holderness</em>, 2nd respondent’s legal practitioners</p> <p> </p> <p><em>Scanlen &amp;Holderness</em>, applicant’s legal practitioner (HC-505-19)</p> <p><em>DNM Attorneys</em>, respondent’s legal practitioners</p> <p>     </p> <p>               </p> <p>        </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/10/2020-zwhhc-10.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=25698">2020-zwhhc-10.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/2020/10/2020-zwhhc-10.pdf" type="application/pdf; length=319655">2020-zwhhc-10.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/dispute-facts-practice-and-procedure">Dispute of facts (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/execution-practice-and-procedure">Execution (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/sale-execution">sale (Execution)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-should-execution-appeal-be-granted">when should execution appeal be granted</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/locus-standi-0">Locus standi</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/property-and-real-rights">PROPERTY AND REAL RIGHTS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/ownership-0">Ownership</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/actio-rei-vindication">actio rei vindication</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/2016/52">Allied Bank Ltd. v Dengu &amp; Another (52/2016 Civil Appeal No. SC 503/15) [2017] ZWSC 52 (30 June 2016);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2014/8-0">Savanhu v Hwange Colliery Co. (Civil Appeal No. SC 473/13) [2015] ZWSC 08 (29 May 2014);</a></div></div></div> Tue, 18 Feb 2020 07:42:07 +0000 Sandra 9486 at https://old.zimlii.org Zimbabwe Alloys Limited & Another v Balasore Alloys Limited & 4 Others (HH 597-19, HC 6879/18) [2019] ZWHHC 597 (11 September 2019); https://old.zimlii.org/zw/judgment/harare-high-court/2019/597 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>ZIMBABWE ALLOYS LIMITED</p> <p>and</p> <p>ZIMBABWE ALLOYS CHROME (PRIVATE) LIMITED</p> <p>versus</p> <p>BALASORE ALLOYS LIMITED</p> <p>and</p> <p>BENSCORE INVESTMENTS (PRIVATE) LIMITED</p> <p>and</p> <p>ROSEMARKET (PRIVATE) LIMITED</p> <p>and</p> <p>COMETAL TRUST</p> <p>and</p> <p>COMETAL SA</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>TAGU J</p> <p>HARARE, 25 June &amp; 11 September 2019</p> <p> </p> <p> </p> <p><strong>Opposed application</strong></p> <p> </p> <p><em>D Ochieng</em>, for applicants</p> <p><em>T Mpofu</em>, for respondents</p> <p> </p> <p>            TAGU J: The applicants are seeking the cancellation of a court –sanctioned scheme of arrangement citing a material breach of a fundamental term by the first respondent which breach the applicants say strike at the root of the entire scheme and justifies the grant of the relief sought. The reliefs sought are that the Scheme of Arrangement sanctioned by the Honourable Mr Justice Zhou on the 20th December 2017 in Case Number HC 5670/17 be and is hereby set aside, the Judicial Manager be and is hereby authorized to proceed to engage other interested parties that wish to invest in the applicants and that the first respondent pays the cost of suit.</p> <p>            The brief facts are that in January 2014 the first applicant, Zimbabwe Alloys Limited (“ZAL”) and the second applicant Zimbabwe Alloys Chrome (Private) Limited (“ZAL”) were placed under provisional Judicial Management due to operational challenges which the group was facing that made continued operations untenable. The operational challenges were attributed to the closure of all the furnaces, poor commodity prices and escalating costs. The applicants were unable to settle amounts owed to various creditors amounting to US$60 million (Sixty million United States Dollars.) To resuscitate their operations and settle existing debts, the applicants required significant recapitalization.</p> <p>            At a meeting of creditors and members held in November 2013, prior to the applicants being placed under final Judicial Management, the creditors and members agreed that the envisaged recapitalization could only be achieved by the introduction of a new investor to inject fresh capital and kick-start operations.</p> <p>            Two (2) bids were received and following an evaluation of the bids, the first respondent was selected as the preferred bidder on the 12th of April 2017, to revive the group and ultimately negotiate settlement terms with creditors.</p> <p>            In anticipation of the conclusion of the proposed investment by the first respondent, the members and creditors of the applicants unanimously agreed that the Judicial Manager would proceed by way of a Scheme of Arrangement in terms of section 191 of the Companies Act [<em>Chapter 24.03</em>].</p> <p>            A Scheme of arrangement was duly concluded between the members and creditors of the applicants, premised on the investment proposal from the first respondent. The Scheme of Arrangement was duly sanctioned by this Honourable Court on the 20th of December 2017. The court order by JUSTICE ZHOU reads as follows-</p> <p>       “IT IS ORDERED THAT:</p> <ol> <li>The Scheme of arrangement which was approved by the requisite margins, at the meeting of the members and creditors of Zimbabwe Alloys Limited and Zimbabwe Alloys Chrome Private Limited held on Wednesday 6 December 2017 be and is hereby sanctioned in terms of section 191 (2) of the Companies Act (Chapter 24. 03).</li> <li>The aforesaid Scheme shall be binging on all the members and creditors of the applicant.</li> <li>That the Scheme shall become effective on the date on which applicants register with the Registrar of Companies (“the Registrar”) copies of this order and the Scheme Circular in terms of section 191 (2) of the Companies Act, which is expected to be 3b January 2018 or such later date as the aforesaid documents may be so registered with the Registrar.</li> <li>There is no order as to costs.”</li> </ol> <p> </p> <p>            The Scheme of Arrangement was duly registered with the Registrar of Companies on the 29th March 2018 in terms of s 191 (3) of the Companies Act. In terms of the implementation clause, section 10 (7) of the Scheme document sanctioned by the Honourable Court, the first respondent was required to make an initial payment of US$10 697 833.00 (Ten million six hundred and ninety –seven thousand eight hundred and thirty three United States Dollars) together with the transaction costs to the Judicial Manager’s Trust Account within 30 days from the date when a copy of the High Court Order sanctioning the Scheme and the Scheme document were lodged with the Registrar of Companies for registration. There was therefore no condition precedent.</p> <p>            In terms of the Implementation Clause, s 10 (8), 10 (9) and 10(10) of the Scheme document, upon receipt of this payment, the Judicial Manager would then make the necessary payments to Creditors and issue share certificates to the first respondent or its nominee to be held in escrow pending receipt of the full investment amount. The Judicial Manager would then facilitate handover and take –over of the company to the first respondent upon receiving this initial payment as per the implementation clause in the Scheme document.</p> <p>            Regrettably the first respondent failed to make the initial payment of US$10 697 833.00 which was due on the 16th of March 2018. In fact on the 12th March 2018 the first respondent in apparent breach of the terms of the Scheme wrote to the Judicial Manager committing itself to new payment terms. The new proposed terms were accepted by the major creditors on the 19th March 2018 based on the fact that the first respondent would take action to secure the required exchange control approval.</p> <p>            Despite submitting new payment terms, the first respondent failed to make payment based on its own revised terms. As at the time of filing of this application, no payment had been received from the first respondent. In light of the first respondent’s apparent failure to execute the transaction the Judicial Manager proceeded to terminate the first respondent Balasore Alloys Limited (BAL’s) bid as directed by the major creditors and members. Citing this material breach of a fundamental term the applicants now seek the cancellation of Mr Justice Zhou’s court –sanctioned Scheme of arrangement made on the 20th December 2017 in Case Number HC 5670/17 so that they can proceed to engage other interested parties that wish to invest in the applicants.</p> <p>            The first respondent raised some points <em>in limine</em>. The first point <em>in limine</em> is that the deponent to the founding affidavit Bulisa Mbano was not validly appointed as Judicial Manager and consequently cannot bring these proceedings. The other point <em>in limine</em> challenges the locus standi of the fourth respondent. Another point <em>in limine</em> was about the non-joinder of the creditors who mandated the application. The last point <em>in limine</em> is that there are material disputes of facts.</p> <p><strong><em>LOCUS STANDI</em></strong><strong> OF THE APPLICANT’S DEPONENT</strong></p> <p>            In this case, a simple reading of ANNEXURE “A” to the founding affidavit confirms that a vacancy arose in the office of judicial manager following the resignation of Reggie Saruchera. Section 304 (5) of the Companies Act [<em>Chapter 24.03</em>] provides that such a vacancy must be filled by the Master in accordance with s 218(3); that is to say, by firstly seeking the agreement of the creditors and contributories. Annexure “A” confirms that there was such agreement to the appointment of the applicant’s deponent, and the first respondent does not dispute this,. It is thus most unhelpful and legally unsustainable for it to affect to challenge his authority. The Annexure “A”, a letter of appointment from the Master reads as follows-</p> <p>       <strong> “RE: ZIMBABWE ALLOYS CHROME (PVT) LTD AND ZIMBABWE ALLOYS     LIMITED (UNDER JUDICIAL MANAGEMENT): CR 49/13</strong></p> <p>            Pursuant to the resignation of <strong>Mr R Saruchera</strong> from his position as Judicial Manager of   the above companies, and <strong>Mr B P Mbano’s</strong> acceptance to be appointed as the new   Judicial Manager of the said companies, and regard being had to the fact that the             shareholders holding at least 85% of the issued share capital of the companies and     creditors holding at least 71,68% of the proved claims against the companies have so      approved, I hereby accept <strong>Mr R Saruchera’s</strong> resignation with effect from 10 October             2016 and appoint <strong>Mr B P Mbano</strong> as the new Judicial Manager of the companies with      effect from the same date.</p> <p>            Please note that the bonds of security provided by Grant Thomton Camelsa in respect of   <strong>Mr R Saruchera</strong> will be held to be the bonds of security for <strong>Mr B P Mbano.</strong></p> <p>            Also note that it is no longer necessary to convene meetings of creditors and          contributories for the purpose of electing a new judicial manager, because the votes    would be as reflected in the letters from the shareholders with at least 85% of the issued share capital and the creditors with at least 71,68% of the proved claims against the        companies.</p> <p>            Please ensure a proper handover and takeover of the companies between yourselves.”</p> <p> </p> <p>            <em>In casu</em> the first respondent itself accepted in Annexure “H” to the founding affidavit that the deponent is the judicial manager of both applicants. This court has in the past deplored the unfortunate practice of objecting to the locus standi of parties as if merely for the sake of doing so, even where it is known from previous dealings that the party speaks with the requisite authority: <em>Air Zimbabwe Corporation &amp; Ors</em> v <em>ZIMRA</em> 2003 (2) ZLR 11 (H) at 16G. The first point <em>in limine</em> was not seriously taken and is dismissed.</p> <p><strong>LOCUS STANDI OF FOURTH RESPONDENT</strong></p> <p>The fourth respondent is cited as Cometal Trust. The first respondent complaints about this citation. However, I found no merit in the objection because Rules of this Honourable Court expressly allow the citation of the trustees by the name of the trust rather than by their individual names. For this contention I refer to Order 2A, rule 8 as read with r7. The second point <em>in limine</em> is summarily dismissed.</p> <p><strong>NON-JOINDER OF CREDITORS</strong></p> <p>            The first respondent complains about the non-joinder of the very creditors who mandated the application and wish fervently for the relief sought to be granted: See Annexure “P” to the founding affidavit. Not only does the first respondent not dispute that the creditors are the very people who mandated this application. The legal position is that this court may determine the rights and liabilities as between the parties before it; and it is upon those rights that the whole issue turns. See <em>Moyo</em> v <em>Ncube &amp;Ors</em> 2008 (2) ZLR 333 (H) at 335G-336A. See also order 13 r 87 of the Rules of this Honourable Court where the rules say-</p> <p><strong>        “ 87. Misjoinder or nonjoinder of parties</strong></p> <ol> <li>No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party and the court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.”</li> </ol> <p> </p> <p>            I therefore found no merit in this point <em>in limine</em> and I accordingly dismiss it as well.</p> <p><strong>MATERIAL DISPUTE OF FACTS</strong></p> <p>            The long and short of it is that the first respondent alleged that there are material disputes of facts. What the court found puzzling about this suggestion is that the circumstances under which Mr Mbano was appointed presents disputes of fact. Yet as I stated above the letter from the Master clearly states the circumstances under which Mr Mbano was appointed, being that there was a vacancy and the Master was mandated to fill that vacancy. Also a dispute was raised about the claims and or title held by applicants. The other issue is whether there was any breach. I am of the view that these are some of the issue this court has to determine, being the very reason why this application has been brought up. There are therefore no material disputes of facts which this court cannot resolve without the leading of evidence. I will dismiss the last point <em>in limine</em>.</p> <p> </p> <p><strong>AD MERITS</strong></p> <p>In the present case the Scheme of Arrangement that the applicants seek to be set aside was unanimously approved at a scheme meeting convened by order of this Honourable court. It was thereafter sanctioned by the court in the prescribed manner and, consequent upon the grant of such sanction, has the effect of a contract binding on all concerned. The applicants now allege that there was a breach by the first respondent of the material term of the Scheme of Arrangement.</p> <p>            In the case of<em> Parker</em> v <em>WGB Kingsley &amp; Co (Pvt) Ltd</em> 1985 (1) ZLR 380 (HC) at 386C it was held that-</p> <p>             “this court would be able to set aside the scheme of Arrangement but only if there [has]   been a material breach of the terms thereof and there [is] no other remedy available to the             aggrieved party to protect his right.”</p> <p> </p> <p>            I gave a brief summation of the facts of this matter at the beginning of this judgment and I need not repeat them. The contract in this case was very clear. In terms of the Implementation clause s 10(7) of the Scheme document sanctioned by this Honourable Court, the first respondent was required to make an initial payment of US$10 697 833.00 together with the transaction costs to the Judicial Manager’s Trust Account within 30 days from the date when a copy of the High Court Order sanctioning the scheme and the scheme document were lodged with the Registrar of Companies for registration. The scheme document and the High Court Order were duly lodged with the Registrar of Companies on the 14th February 2018 as per Annexure “G1”. Therefore logically the initial payment was due on or before the 16th of March 2018. This payment from my reading of the Scheme document was not subject to the fulfilment of any condition precedent. The first respondent was simply required to make the payment upon receiving confirmation from the Judicial Manager that the scheme document and Court Order sanctioning the Scheme had been delivered to the Registrar of Companies. Regrettably to date the first respondent failed to make the initial payment of US$10 697 833.00 which was due on the 16th March 2018. It is not disputed that the first respondent then wrote to the Judicial Manager committing to new payment terms which were as follows-</p> <ol> <li>“Payment of US$22.03 million by 30 March 2018 to creditors as part of the Equity injection;</li> <li>Payment of US$23.3 million by 30 April 2018 to creditors as part of the Equity injection. And</li> <li>Submission of the requisite comprehensive loan document required by the Exchange Control Authority by 30 April 2018, in respect of the debt component of US$45 million.”</li> </ol> <p> </p> <p>            The new arrangement was accepted by major creditors on the 19th March 2018 based on the fact that the first respondent would take action to secure the required exchange control approval. Despite submitting new payment terms the first respondent failed to make payment based on its own revised terms. As at the time of filling this application on the 24th of July 2018 no payment had been received from the first respondent. Further, the first respondent had not submitted the required comprehensive loan documents to the Reserve Bank of Zimbabwe which it had undertaken to submit by the 30th April 2018.</p> <p>            There can therefore be no doubt that the first respondent failed to-</p> <ol> <li>Discharge the initial payment;</li> <li>Disburse under its own revised payment terms and</li> <li>Submit adequate information for Exchange Control Approval as required by the RBZ.</li> </ol> <p>            In light of the first respondent’s apparent failure to execute the transactions, the Judicial Manager proceeded to terminate the first respondent’s bid as directed by the major creditors and members as per minutes of the informal meeting of the Zim Alloys limited major creditors held at Grant Thornton on 19th March 2018 at 11AM. See Annexure ‘’I’’ which reads in part as follows-</p> <p>            “……</p> <p>            Most creditors were not opposed to termination of the bid. Following much deliberation   on the issue, the following resolutions were made;  </p> <p>            Resolution 1</p> <p>            Balasore is to pay the first equity portion of US$22.03 million on or before 30 March        2018. Failing which, the Judicial Manager is authorized to immediately terminate the bid            on 1 April 2018 and proceed with the cancellation of the Court Order sanctioning the      Scheme of Arrangement.</p> <p>            Resolution 2</p> <p>            ……….”     </p> <p> </p> <p>            Having read the papers filed of record and hearing counsels it can safely be concluded that the Scheme of Arrangement between the members and creditors of the applicants was premised on the first respondent’s investment. In light of the fact that the first respondent has failed to meet its obligations in terms of the Scheme, the members and creditors at a meeting held on 7 June 2018, authorized the Judicial Manager to proceed to apply to this Honourable Court for cancellation of the Scheme of Arrangement in respect of Balasore’s investment in ZAC and ZAL. The members and creditors of ZAL and ZAC further instructed the Judicial Manager to identify other potential investors to revive the fortunes of the group. Am satisfied that the first respondent clearly has shown that it has no capacity to fulfil the terms of the Scheme of Arrangement despite having made various undertakings during the tender process. Consequently, the Scheme of Arrangement sanctioned by this Court on the 20th December 2017 has to be cancelled as per the request of creditors and members. It is unfair for the first respondent to continue to play victim, mislead stakeholders, drag its feet and employ all sorts of delaying tactics at the prejudice of the applicants. The Judicial Manager’s mandate is to revive the operations of the group. Since the first respondent’s bid has already been terminated the Judicial Manager must be afforded an opportunity to engage other interested parties that wish to invest in the group. Accordingly the application is granted.</p> <p>            IT IS ORDERED THAT</p> <ol> <li>The Scheme of Arrangement sanctioned by the Honourable Mr Justice Zhou on the 20th December 2017, in Case Number HC 5670/17, be and is hereby set aside.</li> <li>The Judicial Manager is hereby authorized to proceed to engage other interested parties that wish to invest in the Applicants.</li> <li>The 1st Respondent is ordered to pay the costs of suit.</li> </ol> <p><em>Atherstone &amp; Cook</em>, applicants’ legal practitioners</p> <p><em>Honey &amp; Blanckenberg</em>, respondents’ legal practitioners         </p> <p>                    <br />            </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/2019/597/2019-zwhhc-597.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26556">2019-zwhhc-597.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/2019/597/2019-zwhhc-597.pdf" type="application/pdf; length=337415">2019-zwhhc-597.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/company">COMPANY</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/judicial-management">Judicial management</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/contract">CONTRACT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/breach">Breach</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/liability-breach-contract">liability for breach of contract</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/remedies">remedies</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/dispute-facts-practice-and-procedure">Dispute of facts (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/joinder-parties">Joinder of parties</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/non-joinder">non-joinder</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/principles-joinder-parties">principles (Joinder of parties)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/locus-standi-0">Locus standi</a></li></ul></span> Tue, 24 Sep 2019 09:22:36 +0000 Sandra 9407 at https://old.zimlii.org Gondora & Another v ZIMSEC (HH- 438-19, HC 2833/18 Ref Case No. SC 779/18) [2019] ZWHHC 438 (19 June 2019); https://old.zimlii.org/zw/judgment/harare-high-court/2019/438 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>JOB GONDORA</p> <p>and</p> <p>PETER MATONGO</p> <p>versus</p> <p>ZIMBABWE SCHOOL EXAMINATIONS COUNCIL</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHIRAWU-MUGOMBA J</p> <p>HARARE, 26 June 2018, 18, 19 June 2019  </p> <p> </p> <p><strong>Opposed Application </strong></p> <p> </p> <p><em>T. Maanda,</em> for the applicants</p> <p><em>T.Z Zvobgo</em>, for the respondent</p> <p> </p> <p>               CHIRAWU-MUGOMBA J: On the 28th of June 2018, I gave an interlocutory order in this matter in case number HH 371/18.  The respondent sought leave to appeal which I granted. On the 27th of May 2019, the Supreme Court granted the appeal and ordered that the matter be remitted to this court for a determination of the issues raised by the parties.  I sought audience with <em>T Maanda </em>and <em>T.Z Zvobgo </em>who both indicated that they did not wish to make any further submissions on the matter and would abide by the submissions made on the 26th of June 2018.</p> <p>              Pages 1- 4 of HH- 371-18 sets out the relief sought and the background to this matter. I shall not repeat them save to state that this matter revolves around the cancellation and withholding of all November 2017 ordinary level results of the applicant’s children.  The applicants based their case on the following, that:-</p> <ol> <li>The decision to cancel the results is illegal in that apart from cancelling the mathematics results, the respondent proceeded to cancel all other results for subjects sat for.</li> <li>The cancellation of all results is not proportional with the offence as envisaged by section 68 of the Constitution.</li> <li>The decision to cancel the results is substantively unfair especially in view of the fact that there was no investigation conducted on the alleged unlawful accessing of the examination.</li> <li>The applicants daughters were not given an opportunity to be heard thus breaching the rules of natural justice.</li> <li>The respondent did not afford the applicants daughters’ reasons for the decision within a reasonable time.</li> <li>The right of the applicants’ daughter to education was infringed upon.</li> </ol> <p>            Annexure A attached to the application is a report by Ruvimbo Gondoro; annexure B is a report by Pamela Matongo and annexure C is the decision taken by the respondent.</p> <p>            In its opposing affidavit, the respondent made the following averments: - that the relief sought by the applicants is not commensurate with the allegations made in the founding affidavit. The applicants were not clear as to whether they sought a review of the respondent’s decision or merely the provision of reasons for the decisions taken.  Further that there are material disputes of facts in the matter as the first issue to be resolved was whether or not the applicants’ daughters had engaged in examination malpractice. The respondent also averred that the issue of whether or not there were material disputes of fact is now <em>res judicata</em> by virtue of the doctrine of estoppel in view of the fact that zhou J had found in another matter based on the same cheating allegations that there were material disputes of fact. The applicants were not party to that matter.  Further that the relief sought by the applicants is unsustainable on the factual averments established in their founding affidavit.  With regards to the main relief sought, the court cannot set aside the decision of the respondent of the 3rd of November 2017 and replace it with its own.  The respondent also averred that the alternative relief sought by the applicants cannot be secured on the basis of section 4 of the Administrative Justice Act [<em>Chapter 10:28</em>]<em>. </em> Public policy would demand that the decision of the respondent be upheld as it is reasonably justifiable in a democratic society.</p> <p>            In <em>casu, </em>the respondent took action in its capacity as an administrative authority.  Section 68 of the constitution which is contained in the Declaration of Rights [<em>Chapter 4</em>] provides:</p> <p>“(1)      Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair.</p> <p> </p> <p>(2)        Any person whose right, freedom, interest or legitimate expectation has been adversely affected by             administrative conduct has the right to be given promptly and in writing the reasons for the conduct.</p> <p> </p> <p>(3)        -------------”</p> <p> </p> <p>            The Administrative Justice Act has brought in the concept of, “business unusual”. In that regard I can do no better than borrow a leaf from the words of makarau J ( as she then was) in <em>U-Tow Trailers (Pvt) Ltd </em>v <em>City of Harare and Another </em>2009 (2) ZLR 259 (H) 267 F-G; 268 A-B as follows:-</p> <p> “That the promulgation of the Act brings in an era in administrative law in this jurisdiction cannot be disputed. It can no longer be business as usual for all administrative authorities, as there has been a seismic shift in this branch of the law. The shift that has occurred is, in my view, profound as it brings under the judicial microscope all decisions of administrative authorities save where the provisions of s 3 (3) of the Act, apply. On the basis of the foregoing, I find that the decision by the first respondent summarily to terminate the lease agreement between itself and the applicant was an administrative action carried out by an administrative authority, empowered to do so by the lease agreement between the parties. The Act applies to that decision. The Act provides that an administrative authority which has the responsibility or power to take any administrative action which may adversely affect a right, interest or legitimate expectation of any person shall, <em>inter alia</em>, act reasonably and in a fair manner. The Act proceeds to define what a fair manner, for the purposes of the Act, entails and this includes adequate notice of the nature and purpose of the proposed action and a reasonable opportunity to make adequate representations, in my view, an embodiment of the <em>audi alteram partem </em>rule.”</p> <p> </p> <p>            In cancelling the examination results, the respondent relied on s 34 (2) of the Zimbabwe School Examinations Council Act   [<em>Chapter 25:18</em>] which reads as follows:-</p> <p><strong>            “34 Cancellation of examinations and annulment of results</strong></p> <p>            (2) If the Board is satisfied that any candidate for an examination—</p> <p>                        (<em>a</em>) obtained unauthorized access to any examination material prior to the examination; or</p> <p>                        (<em>b</em>) was impersonated by any other person at the sitting of the examination; or</p> <p>                        (<em>c</em>) engaged in any form of fraud or dishonest conduct in regard to the examination; or</p> <p>                        (<em>d</em>) contravened any rule or regulation governing the examination;</p> <p>                        the Board may prohibit him from sitting the examination or may annul his results or                           withdraw any certificate, diploma or award given to him in respect of the examination, as                   may be appropriate.</p> <p>            (3) It shall not be necessary for the Board to consult or invite representations from any person             before cancelling or postponing an examination or annulling the results of an examination in terms    of subsection (1).”</p> <p> </p> <p>            In <em>casu, </em>annexure C being the letter of cancellation makes reference to the ZIMSEC regulations particularly paragraph C.  The applicants also seek as part of their relief the invalidation of the Zimbabwe School Examination description of malpractice and schedule of penalties to the extent that they are ultra vires s 34(2) of ZIMSEC Act and s 68 of the Constitution. It is pertinent to note that these regulations were not placed before the court by both parties and not enough evidence and submissions were made on the issue.   </p> <p>            Although section 34(3) of the ZMISEC Act states that this body shall not consult or invite representations from any person before cancelling or postponing any examination or annulling any results or withdrawing any certificate, this seems to fly in the face of the constitution particularly section 68.  It seems that the respondent is given the authority to act arbitrarily without considering the right to be heard.  Any decision to withhold, cancel or annul examination results has drastic consequences on those affected and should not be exercised arbitrarily.  </p> <p>         Having said that, I do concur with zhou J  when he stated in the case of <em>Velah and ors </em>v<em> The Minister of Primary and Secondary Education and anor, </em>HH-124-18 that, “ <em>The nature of examinations and their bearing on the credibility and integrity of a system of education are matters of national importance”.  </em>Section 34 (2) (a) addresses, “unauthorized access to any examination material prior to the examination”. It does not state the manner of the unauthorised access. In my view, it is sufficient to just merely establish that there was unauthorised access.  I note that the applicants’ daughters were given an opportunity to present their side of the story regarding the allegations of having pre-accessed the mathematics examination paper.  Both these reports confirm that the same questions that the two students had seen prior to the mathematics examination appeared in the paper in question. It cannot therefore be said that the issue of unauthorised access has not been established.  In Ruvimbo Gondora’s report she states that, <em>“Was even surprised to see the same questions Kim had asked me except of the circle geometry”. </em>That statement unequivocally establishes unauthorised access and it does not matter that the writer places blame on someone else.  In Pamela Matongo’s report she states as follows, <em>“I was shocked to see some of the problems I helped in the morning in the paper”. </em> This again is an unequivocal admission of unauthorised access despite the shifting of blame to someone else. It would have been a different matter had the two students not admitted the similarities in the questions that they saw prior to sitting for the examination and those that appeared in the examination paper. In my view, the issues of material disputes of fact and estoppel fall away.  The decision by the respondent to cancel the mathematics results in respect of the two students cannot be faulted.</p> <p>            The next issue for consideration falls on the decision to cancel results for all other examinations in addition to the mathematics results.  The applicants’ daughters were never afforded an opportunity to make representations regarding the cancellation of results for all the other examinations. Annexure C specifically states that the students concerned accessed a mathematics 4030/01 paper which they received via social media. The same cannot be said about the other papers that they sat for. I did not read the respondent’s notice of opposition to allege that there was evidence of “unauthorised access” to any other examination prior to them sitting or that there was some fraud or dishonest conduct on the part of the students. It seems to me that the students were punished for their conduct in relation to the mathematics paper and nothing more. To that end, the decision to cancel all other results falls foul of the Administrative Justice Act and the standard set in the <em>U-Tow Trailers (Pvt) Ltd </em>v <em>City of Harare and Another </em>matter.  <em>T. Maanda </em>for the applicants likened the decision to crushing a lice with a hammer.</p> <p>        The respondent in its papers filed of record and at the hearing through submissions made by <em>T. Z Zvobgo, </em>contended that the court assuming that it sets aside the decision of the respondent should not substitute the decision with its own and grant the alternative relief sought by the applicants.  It went on to state that the court will only assume the role of an administrative authority in limited circumstances as follows: - 1. Where the end result is a foregone conclusion and it would be a waste of time to refer the matter back. 2. Where further delay could prejudice the applicant. 3. Where the extent of the bias or incompetence is such that it would be unfair to the applicant to force it to submit to the same jurisdiction and 4. Where the court is in as good a position as the administrative body to make the decision – see <em>Affretair (pvt) Ltd and anor</em> v<em> MK Airlines (pvt) Ltd,</em> 1996(2) ZLR 15 @21 (based on comments in <em>Baxters Administrative law); Mhanyami Fishing and Transport Co-operative Society Limited and 2 ors </em>v<em> The Director General Parks and Wildlife Management Authority n.o- </em>HH 92-11; <em>Juve Simba </em>v<em> The Mining Commissioner and 2 others </em>HH-10-16.  The applicants in their heads of argument also made similar submissions. I must hasten to add that the quality of the heads filed by both parties was very good and helpful to the court.</p> <p>            In my view, this matter is on all fours with the four considerations enunciated above. It will be an exercise in futility to remit the matter back to the respondent a body that has already cancelled the results. The examinations in questions were conducted in September/ November 2017 and already time has gone by. In Zimbabwe, one’s ordinary level results determines whether they will (a) proceed to advanced level and (b) the subjects that they will study at advanced level and (c) whether a student will repeat particular subject (s). Given the fact that the ZIMSEC Act (wrongly in my view) does not require consultation with the affected student before cancelling the results of an examination, it would be unfair to send the two students back to the respondent for a further determination of their matter.  This court is also in a very good position as the respondent to make a decision. </p> <p>         The applicants’ sought costs on a legal practitioner to client scale.  Although this is a matter of national importance as it touches on the integrity of examinations, I do not see anything warranting an order of costs on a higher scale.</p> <p> </p> <p><strong>Disposition </strong></p> <p>It is ordered as follows:-</p> <ol> <li>Respondent’s decision to cancel and withhold the September/ November 2017 Ordinary Level results of the applicants’ minor children namely, Ruvimbo Gondora (Candidate no. 3039, and Pamela Matongo (Candidate no. 3086) of subjects in examinations other than that  of mathematics in unlawful.</li> <li>Accordingly respondent shall provide the applicants’ minor children with the ordinary level results in respect of all other subjects they wrote in the September/ November 2017 examinations except mathematics which shall not be referred to on the certificate of the ordinary level results.</li> <li>The respondent shall pay the costs.</li> </ol> <p> </p> <p> </p> <p> </p> <p><em>Maunga Maanda and Associates, </em>Applicants’ legal practitioners</p> <p><em>Dube, Manikai and Hwacha, </em>Respondent’s legal practitioners</p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="Microsoft Office document icon" title="application/msword" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/438/2019-zwhhc-438.doc" type="application/msword; length=52224">2019-zwhhc-438.doc</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/2019/438/2019-zwhhc-438.pdf" type="application/pdf; length=221738">2019-zwhhc-438.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/administrative-law">ADMINISTRATIVE LAW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/administrative-decisions-and-acts">Administrative decisions and acts</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/audi-alteram-partem-rule">Audi alteram partem rule</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/fair-administrative-justice">Fair administrative justice</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/fair-hearing">Fair hearing</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/natural-justice">Natural justice</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rules">rules of</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/delay-instituting-proceedings">Delay in instituting proceedings</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/dispute-facts-practice-and-procedure">Dispute of facts (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></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/2011/5">U-Tow Trailers (Pvt) Ltd v City of Harare and Another (HC 5803/09) [2011] ZWHHC 5 (18 January 2011);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2018/124">Velah &amp; 3 Others v The Minister of Primary &amp; Secondary Education &amp; 1 Other (HH 124-18, HC 1992/18) [2018] ZWHHC 124 (07 March 2018);</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 class="field-item odd"><a href="/zw/legislation/act/2004/12">Administrative Justice Act [Chapter 10:28]</a></div><div class="field-item even"><a href="/zw/legislation/act/1994/17">Zimbabwe School Examinations Council Act [Chapter 25:18]</a></div></div></div> Fri, 19 Jul 2019 07:34:08 +0000 admin 9368 at https://old.zimlii.org Materia & 2 Others v Menk & 2 Others (HH 445-19, HC 4205/16) [2019] ZWHHC 445 (27 June 2019); https://old.zimlii.org/zw/judgment/harare-high-court/2019/445 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>IBRAHIM  MUSA ASMAL MATERIA</p> <p>and</p> <p>RASHID AHMED MATERIA</p> <p>and</p> <p>ZAKARIYYA MATERIA</p> <p>versus</p> <p>MUSA MENK</p> <p>and</p> <p>SHABIR AHMED MENK</p> <p>and</p> <p>ISMAIL MUSA MENK </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MANZUNZU J</p> <p>HARARE, 14 June &amp; 27 June 2019</p> <p> </p> <p><strong>Court Application: Points In Limine </strong></p> <p><em>Advocate F Girach</em>, for applicants</p> <p><em>Advocate T  Magwaliba, </em>for the respondents</p> <p> </p> <p> </p> <p>MANZUNZU J: This is a hearing <em>de novo</em> as directed by the Supreme Court in its appeal judgment of 4 April 2019 in SC 36/19.</p> <p>            It is a court application in which the applicants seek an order in the following terms:-</p> <p>            “IT IS ORDERED</p> <ul> <li>That it be and is hereby declared the appointment of the Executive Committee of the AL Falaah Trust is invalid as it is not in compliance with the terms of the Notarial Deed of Trust and is therefore an unlawful delegation of the powers of the Trustees;</li> <li>That it be and is hereby declared that all decisions and actions taken in the name of the Executive Committee of the Al Falaah Trust are invalid and of no force or effect;</li> <li>That all decisions relating to the operations and activities of the Mosque and the Madrasah must be taken by the Trustees at a properly convened meeting of the Trustees, or by resolution signed by all of the Trustees;</li> <li>That the first to third respondents be and are hereby interdicted from acting in the name of the Trust, save where specific authority to that effect has been given in terms of resolution duly passed at a properly constituted meeting of the Trustees; and</li> <li>That all persons purporting to be members of the Executive Committee of the Al Falaah Trust or such other persons who hold themselves out as agents or representatives of the respondents be interdicted from involving themselves in or with the management and control of the Al Falaah Mosque and Madrasah or of in any way interfering with the activities of the same or the Al Falaah Trust; and</li> <li>That the respondents pay the costs of this application jointly and severally the one paying the other to be absolved.”</li> </ul> <p>In opposing the application the respondents have also counterclaimed seeking relief in the following terms:</p> <p>            “IT IS ORDERED</p> <ol> <li>Paragraph 10 (c) of the Deed of Trust of Al Falaah Trust be amended by increasing the maximum number of trustees to twelve.</li> <li>The applicants and the respondents shall within fourteen days of the date of this order appoint three additional trustees, agreeable to both parties, which trustees must have no relationship to the families of the applicants or the respondents, such new trustees to be from amongst those involved in the formation of Al Falaah Trust.</li> </ol> <p>ALTERNATIVELY</p> <ol> <li>The applicants and the respondents shall within fourteen days of the date of this order appoint three additional trustees which trustees must have no relationship to the families of the applicants or the respondents from amongst those involved in the formation of Al Falaah Trust. One new trustee shall be appointed by the applicants, one new trustee shall be appointed by the respondents and the third new trustee shallbe appointed jointly by both parties.</li> </ol> <p>ALTERNATIVELY</p> <ol> <li>The applicants and the respondents shall within fourteen days of the date of this order each appoint amongst those involved in the formation of Al Falaah Trust three new trustees, which trustees shall have no relationship to the families of the applicants or respondents. Upon the appointment of the six new trustees, the applicants and the respondents shall all cease to be trustees of Al Falaah Trust.</li> <li>The applicants shall pay the costs of the counter application if the counter application is opposed. If the counter application is unopposed, there shall be no order as to costs.”</li> </ol> <p> </p> <p>The application was initially heard by my sister Chigumba J who delivered a judgment on 16 November 2016. Dissatisfied with the judgment, the respondents appealed to the Supreme Court.</p> <p>            On 4 April 2019 the Supreme Court handed down its judgment with the following order:</p> <p>            “Accordingly it is ordered as follows:</p> <ol> <li>The appeal be and is hereby allowed with costs.</li> <li>The judgment of the court <em>a quo</em> under case number HH 706/15 dated 16 November 2016 be and is hereby set aside.</li> <li>The matter is hereby remitted to the court a quo for a hearing de novo including</li> </ol> <p>a determination on the issue of <em>locus standi.”</em></p> <p> </p> <p>            It is on this basis that the matter was placed before me for hearing <em>de novo</em>. I allowed Counsels to address me on the points in <em>limine</em> raised by the respondents. The two points in <em>limine</em> are:</p> <p>            (a)        Whether or not the applicants have<em> Locus standi</em> to bring this application.</p> <p>            (b)        Whether or not there are material disputes of fact in this application.</p> <p>This judgment relates to the preliminary points which I will now deal with in turn:</p> <p>            <em>Locus Standi</em> of the applicants:</p> <p>            Advocate <em>Magwaliba</em> who appeared for the respondents argued at length saying the applicants have no<em> locus standi</em>. He relied on the authority of the case of <em>CIR</em> v <em>McNeillie’s Estate</em> 1961 (3) SA 840 which held that the actions involving trust affairs must be brought by the trustee in his official capacity.</p> <p>He went further to demonstrate why he said the applicants sued in their personal capacities. He referred to the draft order (cited supra) which in its entirety shows that the relief sought is not one attaching to the applicants but beneficial to the Trust. He further said the applicants were acting for the benefit of the Trust and yet they were not the only trustees. Paragraph 2.1 of the founding affidavit by the first applicant was relied upon. It reads in part;</p> <p>“I make this affidavit in my personal capacity having direct interest in my assertion of rights and to the outcome of the relief that I, second and third applicants, as Trustees of the Al Falaah Trust – seek.”</p> <p> </p> <p>This was meant to demonstrate that applicants were seeking relief in their personal</p> <p>capacity but the relief relates to the affairs of the Trust. It was also further argued that the respondents were cited in their personal capacities for the actions they took as trustees. The founding affidavit cites the respondents, “in his personal capacity as an interested party to this application and by reason that he is a Trustee of the AL Falaah Trust.”</p> <p>            Advocate <em>Magwaliba</em> further demonstrated the alleged lack of <em>locus standi</em> by reference to clause 8 (g) on powers of the Trust on the Notarial Deed of Trust which states that:</p> <p>            “The Trust shall have the following powers:</p> <p>To sue or be sued and to appear by proper representation under the name of the Trust in</p> <p>any court of law or before any Tribunal of any kind in any place and to join in and bind itself to</p> <p>any submissions to arbitration under the laws of Zimbabwe.”</p> <p> </p> <p>            This, he argued, shows that the affairs of the Trust cannot be vindicated by individuals in their personal capacity.</p> <p>            Further reference was made to clause 9 of the Deed of Trust on the exercise of objects and powers of the Trust, which provides;</p> <p>“EXERCISE OF OBJECTS AND POWERS OF THE TRUST</p> <p>9 (a)     The Trustees undertake and agree that they will and they shall carry out the objects of the Trust in such manner and to such extent as they shall see fit, but subject always to the provisions of this deed.”</p> <p>This was used as emphasis that applicants had no legal standing in their personal capacities to litigate for the benefit of the Trust.</p> <p>            Clause 9 (b) of the Deed of Trust was also relied on to demonstrate the need for all Trustees to jointly sue. The clause reads:</p> <p>“9 (b)   All the powers of the Trust shall be exercises on behalf of and in the name of the Trust by the Trustees, in such manner and to such extent as the Trustees shall decide; but subject to the provisions of this deed.”</p> <p> </p> <p>            He closed his submissions on this point with emphasis that the relief was for the benefit of the Trust and not the applicants in their personal capacity.</p> <p>            Advocate <em>Girach</em> had of course to respond to the submissions taking a totally different view. In his submissions in general, he urged the Court to see through the intentions of the respondents in their effort to delay finality to this matter. He said the whole purpose of the respondents raising points <em>in limine</em> is to achieve delay. This explains why, he argued, the issue of <em>locus standi</em> seats in the heads when it should adequately been raised in the opposing affidavits. He referred the Court to paragraph 2:1 of the founding affidavit by first applicant, which I quoted earlier on in this judgment, but I see no harm in reciting the same. It reads:</p> <p>“I make this affidavit in my personal capacity having direct interest in my assertion of rights and</p> <p>to the outcome of the relief that I, second and third applicants, as Trustees of the Al Falaah Trust</p> <p>– seek.”</p> <p> </p> <p>A reading of this statement by applicants, to me, means that applicants are suing in their personal capacity and derive such personal interest by virtue of them being trustees. The bottom line is that they are suing in their personal capacity.</p> <p>            Further, reference was made by Advocate <em>Girach</em> to para 2:1 of the opposing affidavit of first respondent which stated that paragraphs 2 to 14 of the first applicant’s founding affidavit were admitted. Paragraph 2 of the first applicant’s founding affidavit deals with description of parties. It was argued that such an admission meant the applicants had <em>locus standi</em> otherwise respondent ought to have raised this point at that juncture. To then challenge <em>locus standi</em> of the applicants in heads amounts to a withdrawal of an admission which cannot be allowed at law. This was an admission made and cannot be withdrawn procedurally, it was argued.</p> <p>            Advocate <em>Magwaliba</em> on this point was quick to say the admission by the respondents was an admission on the facts as stated by the applicants. In other words, he was saying the respondents are saying, yes we admit as you stated that you are suing respondents in your personal capacities. I agree with Advocate <em>Magwaliba</em>’s reasoning on this point. The admission cannot be construed to mean an admission on a point of law that the applicants had <em>locus standi</em>.</p> <p>            Paragraph 2 of the second and third applicants’ supporting affidavits was also relied on and the relevant part reads;”….and I make this affidavit in my personal capacity and as a Trustee of the Al Falaah Trust…..” The attack on this was that such a claim was not done with the blessing of all the trustees who should have been cited as applicants.</p> <p>            The second leg of Advocate <em>Girach</em>’s argument was that no law says one cannot sue in his personal capacity. He gave examples of a political party member who challenges a decision not taken in line with the Constitution of that organisation. I did not find the example to  be on all fours with the present scenario where we are dealing with trustees. By illustration, he said applicants were suing the respondents by saying “you respondents, you have done something which only us the trustees could do.” It was said the complaint was not against the respondents as trustees but the Menks. Be that as it may, the issue remains the applicants seek relief not for their personal benefit but for the benefit of the Trust.</p> <p>            Advocate <em>Girach</em> could not easily accept defeat on this point. He pushed his argument further to a third level. He said the complaint is against the respondents not as trustees. This is because the issue of <em>locus standi</em> affects the ability to sue not to be sued.</p> <p>            It was further argued that the relief sought was declaratory and for such relief applicants must be cited as trustees because of then substantial interest in the matter.            Further, that there was no need to cite the Trust as a party.</p> <p>            The evidence on paper is clear that the applicants brought this application in their personal capacity but seeking a relief for the benefit of the Trust. Such an action can only be brought by trustees. The applicants have no <em>locus standi </em>to remedy the affairs of the Trust in their personal capacity. This point <em>in limine</em> must succeed.</p> <p>Material disputes of fact:</p> <p>            The applicants alleged that there are material disputes of fact which cannot be resolved on paper.</p> <p>            Material disputes of fact were defined in <em>Supa Plant Investments (Pvt) Ltd</em> v <em>Edgar Chadavaenzi</em>, HH 92/09 where at p 4 of the cyclostyled judgment Makarau JP (as she then was) states  that;</p> <p>            “A material dispute of fact arises when material facts alleged by the applicant are disputed and     traversed by the respondent in such a manner as to leave the court with no ready answer to the            dispute between the parties in the absence of further evidence.”</p> <p> </p> <p>            It must be noted that the 6 trustees are members of the 2 families the Materias and the Menks. Their dispute has taken family lines. There is hostility between the two families. Each family has claimed superiority over the other by laying blame on the other family. We have a situation where each family says they were right and the other family is to blame. Advocate <em>Magwaliba</em> said the material disputes of fact surrounds the formation and functions of the advisory Committee, the executive committee and other subcommittees which fall thereunder. Furthermore, he argued that the applicants in their heads conceded to the existence of the material disputes of fact. He drew the court’s attention to para 4 of the applicants’ written heads which says;</p> <p>“It is immediately accepted if this Honourable  Court considers it necessary to resolve any of the disputes as to the events that have occurred since October 2015, those disputes cannot be resolved on the papers and would have to be stood over for a trial. However, it is submitted that the relief sought by the Applicants has to be granted notwithstanding those disputes, and the relief sought in the counter-claim cannot be given as that relief claimed is outside the powers of this Honourable Court.”</p> <p> </p> <p>            Advocate <em>Girach</em> said he would stand by the heads. He expressed a strong view that the court could only decide whether or not material disputes of fact exist after the court has heard the merits of the matter. I do not think that is the proper route to take. The court is already aware of the contention between the parties through their evidence on paper. Written heads have already been filed in support of the parties’ positions. The court can easily make a determination on the papers filed of record. The applicants’ supplementary heads para 15 reads;</p> <p>“Once again it is difficult to determine from the Heads of Argument what facts relevant to the relief being sought are put in issue by the Respondents. There are undoubtedly ‘areas of contention’, but they do not relate to the existence of the trust deed, the fact that the six parties hereto are the appointed trustees, that an executive committee has been created and that there is a divergence of view as to rights concerning such an executive committee arising out of the trust deed. What transpired between the parties is of little or any relevance to the real issues between the parties.”</p> <p> </p> <p>            Faced with concession by the applicants, advocate <em>Girach</em> said material disputes of fact exist after October 2015 after the formation of the executive committee but the relief sought could nevertheless be granted as it relates to the period prior to that. I have difficulty in accepting this line of argument. It is a splitting of hair type of argument.</p> <p>            The truth of the matter is that there are material disputes of fact in this application which are acknowledged by the applicants themselves. What then is the consequence of an application marred with material disputes of fact.</p> <p>            Advocate <em>Magwaliba</em> said the application must be dismissed with costs. He relied on the authority of <em>Mashingaidze </em>v <em>Mashingaidze</em> 1995 (1) ZLR 219 H 221 where Robinson J (as he then was) dismissed the application instead of referring the matter to trial as a way of discouraging applicants who chose the application procedure in the circumstances they knew or ought to know the existence of real and substantial disputes of facts in the matter. I did not hear Advocate <em>Girach</em>  interpret the reasoning in that judgment differently.</p> <p>            For the above stated reasons, the points <em>in limine</em> must succeed.</p> <p>Accordingly, it is ordered that:</p> <ul> <li>The points <em>in limine</em> succeed.</li> <li>The application is hereby dismissed with costs.</li> </ul> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>Honey and Blanckenberg</em>, applicants’ legal practitioners</p> <p><em>Dube, Manikai &amp; Hwacha</em>, respondent’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/445/2019-zwhhc-445.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=25464">2019-zwhhc-445.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/2019/445/2019-zwhhc-445.pdf" type="application/pdf; length=181487">2019-zwhhc-445.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/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/dispute-facts-practice-and-procedure">Dispute of facts (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/locus-standi">Locus standi</a></li></ul></span> Wed, 17 Jul 2019 12:38:04 +0000 admin 9361 at https://old.zimlii.org Nyagura v Lanzani Ncube N.O. & Others (CCZ 7/19 , Const. Application No. CCZ 53/18) [2019] ZWCC 07 (06 March 2019); https://old.zimlii.org/zw/judgment/constitutional-court-zimbabwe/2019/7 <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. CCZ 7/19</strong></p> <p><strong>Const. Application No. CCZ 53/18</strong></p> <p> </p> <p><strong>REPORTABLE (7)</strong>    </p> <p><strong>LEVI     NYAGURA</strong></p> <p><strong>v</strong></p> <p><strong>(1)     LANZANI     NCUBE,      N.O.</strong></p> <p><strong>(2)     THE     PROSECUTOR-GENERAL     OF     ZIMBABWE</strong></p> <p><strong>(3)   TAPIWA   FRESH   GODZI    (4)   MICHAEL   CHAKANDIDA</strong></p> <p> </p> <p><strong>CONSTITUTIONAL COURT OF ZIMBABWE</strong></p> <p><strong>HARARE, OCTOBER 29, 2018 &amp; MARCH 6, 2019</strong></p> <p> </p> <p><em>T R Mafukidze</em>, with him <em>J C Muzangaza</em> and <em>B Muzeba</em>, for the applicant</p> <p><em>O Zvedi,</em> for the first respondent</p> <p><em>J Uladi,</em> for the second, third and fourth respondents</p> <p> </p> <p><strong>Before: MALABA CJ, In Chambers</strong></p> <p>This is a chamber application for an order for direct access to the Constitutional Court (“the Court”) made in terms of r 21(2) of the Constitutional Court Rules SI 61/2016 (“the Rules”). </p> <p><strong>FACTUAL BACKGROUND</strong></p> <p>In 2014 the University of Zimbabwe awarded a Doctor of Philosophy degree to Mrs Ntombizodwa Grace Mugabe (nee Marufu) (“Mrs Mugabe”). The applicant was the Vice-Chancellor of the University at the time. The applicant stated that, to his knowledge, the degree was awarded in accordance with the University of Zimbabwe Act [<em>Chapter 25:16</em>] as well as the statutes and ordinances of the University. In February 2018 the applicant was arrested by members of the Zimbabwe Anti-Corruption Commission. He was charged with criminal abuse of office as defined in s 174(1)(a) of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>], on the allegation that he had improperly awarded the degree to Mrs Mugabe.</p> <p> </p> <p>The applicant was arraigned before the Harare Magistrates Court on initial remand. He was suspended from his position as the Vice Chancellor of the University of Zimbabwe by the President pending finalisation of the criminal charges. On 23 July 2018 the second respondent issued authority to prosecute to the third and fourth respondents. He purported to do so in terms of s 259 of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 (“the Constitution”). The third and fourth respondents are members of the Special Anti-Corruption Unit in the Office of the President and Cabinet (“the Unit”).</p> <p> </p> <p>When the trial began on 5 September 2018 the third and fourth respondents appeared as prosecutors in the case. The applicant objected to their right to prosecute at the public instance. The applicant raised three constitutional questions. The questions were –</p> <p>“i.        Whether the grant of authority to prosecute to the third and fourth respondents, purportedly under s 259 of the Constitution, being persons other than employees of the National Prosecuting Authority, was <em>ultra vires</em> s 259 of the Constitution?</p> <p> </p> <p>ii.         Whether the grant of the said authority is <em>ultra vires</em> s 263 of the Constitution and a wilful abdication of constitutional power by the Prosecutor-General, thereby infringing his rights aforesaid?</p> <p> </p> <ul> <li>Whether, in any event, the grant of the said authority undermines the protective scheme of inherent prosecutorial independence afforded him by s 258 through to s 263 of the Constitution, and as such a breach of hisrights aforesaid?”</li> </ul> <p> </p> <p> </p> <p>The third and fourth respondents opposed the application, which they perceived to be an application for referral of the three constitutional questions to the Court for determination. They did not deny being employed by the Unit, but argued that the authority to prosecute was under s 5(2) of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>] (“the CP&amp;E Act”) and as such was lawful.</p> <p> </p> <p>The court <em>a quo</em> found that while it was correct that the second respondent had no power under s 259 of the Constitution to grant prosecutorial authority, s 5(2) of the CP&amp;E Act allowed him to delegate prosecutorial functions to any legal practitioner entitled to practise in Zimbabwe.</p> <p> </p> <p>To put the reasoning of the court <em>a quo</em> and its decision into context, it is important to refer to the constitutional provisions and the law governing the delegation of authority to prosecute.</p> <p> </p> <p>Section 259 of the Constitution provides generally for the Office of the Prosecutor-General and other officers of the National Prosecuting Authority (“the NPA”). Section 259(10) provides:</p> <p>“(10) An Act of Parliament must provide for the appointment of a board to employ persons to assist the Prosecutor-General in the exercise of his or her functions, and must also provide —</p> <p> </p> <p>(<em>a</em>)        for the qualifications of those persons;</p> <p> </p> <p>(<em>b</em>) for the conditions of service, conduct and discipline of those persons;</p> <p> </p> <p>(<em>c</em>)        that in exercising their functions, those persons must be independent and impartial and subject only to the law and to the direction and control of the Prosecutor-General;</p> <p> </p> <p><em>(d</em>)        for the structure and organisation of the National Prosecuting Authority; and</p> <p> </p> <p>(<em>e</em>)        generally, for the efficient performance and well-being of the National Prosecuting Authority.”</p> <p> </p> <p>Sections 260 and 261 of the Constitution entrench the independence of the Prosecutor-General and officers of the NPA. They provide:</p> <p>“<strong>260 Independence of Prosecutor-General </strong></p> <p> </p> <p>(1) Subject to this Constitution, the Prosecutor-General —</p> <p> </p> <ul> <li>is independent and is not subject to the direction or control of anyone; and</li> </ul> <p> </p> <p>(<em>b</em>)        must exercise his or her functions impartially and without fear, favour, prejudice or bias.</p> <p> </p> <p>(2)        The Prosecutor-General must formulate and publicly disclose the general principles by which he or she decides whether and how to institute and conduct criminal proceedings.</p> <p> </p> <p><strong>261 Conduct of officers of National Prosecuting Authority </strong></p> <p> </p> <p>(1) The Prosecutor-General and officers of the National Prosecuting Authority must act in accordance with this Constitution and the law.</p> <p> </p> <p>(2) No officer of the National Prosecuting Authority may, in the exercise of his or her functions —</p> <p> </p> <p>(<em>a</em>)        act in a partisan manner;</p> <p> </p> <p>(<em>b</em>)        further the interests of any political party or cause;</p> <p> </p> <p>(<em>c</em>)        prejudice the lawful interests of any political party or cause; or</p> <p> </p> <p>(<em>d</em>)        violate the fundamental rights or freedoms of any person.</p> <p> </p> <p>(3) Officers of the National Prosecuting Authority must not be active members or office-bearers of any political party or organisation.</p> <p> </p> <p>(4) An Act of Parliament may make further provision to ensure the political neutrality of officers of the National Prosecuting Authority.”</p> <p> </p> <p> </p> <p>While the authority to prosecute was given in terms of s 259 of the Constitution, as appears <em>ex facie</em> the heading of the letter granting authority, s 259 does not make specific reference to granting of authority to prosecute by the Prosecutor-General. Section 259(10) of the Constitution leaves the details of the powers of appointment of officers to assist the Prosecutor-General in the exercise of his or her functions to an Act of Parliament. The Act of Parliament required by s 259(10) of the Constitution is the National Prosecuting Authority Act [<em>Chapter 07:20</em>] (“the Act), the preamble to which makes reference to ss 258 to 263 of the Constitution and seeks to give effect to them.</p> <p> </p> <p>Section 27 of the Act gives the Prosecutor-General power to engage any person with the relevant qualifications to perform services for the NPA in specified cases. It provides:</p> <p> </p> <p>“<strong>27      Engagement of persons to perform services in specific cases</strong></p> <p> </p> <p>(1) The Prosecutor-General may, in consultation with the Minister, engage under agreement in writing any person having suitable qualifications and experience to perform services for the Authority in specific cases.</p> <p> </p> <p>(2) The terms and conditions of service of a person engaged under subsection (1) shall be determined from time to time by the Minister in consultation with the Minister responsible for finance.”</p> <p> </p> <p> </p> <p>Section 5(2) of the CP&amp;E Act more specifically authorises the Prosecutor-General to grant prosecutorial authority to any legal practitioner with the requisite qualifications. It provides:</p> <p>“<strong>5 Delegation of functions by Prosecutor-General</strong></p> <p> </p> <p>(2) The Prosecutor-General may, when he or she deems it expedient, appoint any legal practitioner entitled to practise in Zimbabwe to exercise (subject to the general or specific instructions of the Prosecutor-General) all or any of the rights and powers or perform all or any of the functions conferred upon the Prosecutor-General by section 259 of the Constitution, this Act or any other enactment, whether or not they relate to criminal proceedings.”</p> <p> </p> <p>The court <em>a quo</em> found that reference to s 259 of the Constitution in the provisions of s 5(2) of the CP&amp;E Act made the mention of s 259 in the heading of the letters of appointment to the third and fourth respondents an innocuous inadvertence.</p> <p> </p> <p>The applicant accepted that the third and fourth respondents are legal practitioners entitled to practise law in Zimbabwe. The fact that they are members of the Unit in the Office of the President and Cabinet does not disqualify them from being appointed to perform prosecutorial functions in terms of s 5(2) of the CP&amp;E Act.</p> <p> </p> <p>In the result, the court <em>a quo</em> directed that the trial should proceed. The matter was postponed to 17 September 2018 for commencement of the trial.  </p> <p> </p> <p>The substantive application sought to be filed with the Court is based on the allegation that the decision by the court <em>a quo</em> that the constitutional questions raised by the applicant were frivolous and vexatious breached his right to equal protection of the law enshrined in s 56(1) of the Constitution.</p> <p> </p> <p>The applicant intends to approach the Court in terms of s 85(1) of the Constitution. Section 85(1) of the Constitution provides as follows:</p> <p>“<strong>85      Enforcement of fundamental human rights and freedoms </strong></p> <p> </p> <p>(1)        Any of the following persons, namely —</p> <p> </p> <p>(a)        any person acting in their own interests;</p> <p> </p> <p>(b)        any person acting on behalf of another person who cannot act for themselves;</p> <p> </p> <p>(c)        any person acting as a member, or in the interests, of a group or class of persons;</p> <p> </p> <p>(d)       any person acting in the public interest;</p> <p> </p> <p>(e)        any association acting in the interests of its members;</p> <p> </p> <p>is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this <em>Chapter</em> 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.”</p> <p> </p> <p>The first respondent indicated that he was abiding by the decision of the Court. The second, third and fourth respondents opposed the application for leave for direct access. The grounds of opposition were the following -</p> <p> </p> <p>1.         The application is not properly before the Court as it does not cite the Office of the President and Cabinet which, according to the applicant, made the appointments.</p> <p> </p> <p>2.         There are no prospects of success if direct access is granted, in view of the fact that there are no constitutional issues raised in the application.</p> <p> </p> <p>3.         The applicant has other remedies available to him. The issues complained of are procedural issues of “Plea” covered by s 180(g) of the CP&amp;E Act. The principle of subsidiarity dictates that those issues be dealt with in the lower court.</p> <p> </p> <p>4.         There are disputes of fact in the matter. The second respondent disputes the allegation that the third and fourth respondents were appointed by the Office of the President and Cabinet to carry out prosecutorial duties. The second respondent stated that he delegated his prosecutorial functions to the third and fourth respondents in terms of the law.</p> <p> </p> <p>At the hearing of the application, Mr <em>Mafukidze </em>submitted that the Office of the President and Cabinet is not a necessary party because no relief is sought against it. He indicated that what the applicant was seeking was to set aside the authority granted by the Prosecutor-General to the third and fourth respondents. He submitted that, in terms of r 51 of the Rules, non-joinder is not a basis for removing a matter from the roll. He also argued that the issues <em>in casu</em> related to prosecutorial authority, an issue the Court could determine and as such a non-joinder plea was without merit.</p> <p> </p> <p> Mr <em>Mafukidze</em> argued that the argument by the respondents that the matter ought to be dealt with in the court <em>a quo</em> and not by the Court, as dictated by the principle of subsidiarity, was flawed. He averred that the issue that the court <em>a quo</em> was requested to refer to the Court related to the constitutionality of the authority to prosecute the applicant. He argued that the court <em>a quo</em> held that the constitutional questions raised were frivolous and vexatious. The trial could only proceed after the question whether the decision of the court <em>a quo</em> violates the applicant’s fundamental right to equal protection of the law had been determined by the Court. Mr <em>Mafukidze</em> argued that there were no disputes of fact.</p> <p> </p> <p>Mr <em>Uladi</em> submitted that the application was not properly before the Court. He argued that the applicant did not cite the President, whom he alleged made the appointments of the third and fourth respondents. The second, third and fourth respondents denied that the appointments were made by the President. They averred that the appointments were made by the Prosecutor-General, who issued certificates of authority to prosecute on his behalf. He submitted that the authority to prosecute was lawfully given as the conduct of the Prosecutor-General was within the terms of s 5(2) of the CP&amp;E Act. In his view, the fact that the third and fourth respondents were members of the Unit did not disqualify them from being appointed as prosecutors. Mr <em>Uladi</em> argued that the law authorised the Prosecutor-General to appoint a legal practitioner to conduct a prosecution on his behalf. The authority was not limited to legal practitioners employed in specific institutions.</p> <p> </p> <p><strong>DETERMINATION OF THE ISSUES</strong></p> <p> </p> <p>WHETHER THE MATTER IS PROPERLY BEFORE THE COURT</p> <p> </p> <p>Section 175(4) of the Constitution provides as follows:</p> <p>“(4) If a constitutional matter arises in any proceedings before a court, the person presiding over that court may and, if so requested by any party to the proceedings, must refer the matter to the Constitutional Court unless he or she considers the request is merely frivolous or vexatious.” (My emphasis)</p> <p> </p> <p> </p> <p>A constitutional matter, as defined in s 332 of the Constitution, must arise or be raised in the proceedings in the subordinate court. The person presiding may, if he or she is of the view that the determination of the constitutional issue by the Court is necessary for the purposes of the proceedings before him or her, <em>mero motu</em> refer the matter to the Court. If the matter is raised by any party to the proceedings, there must be a request by that party or any other party that the matter be referred to the Court for determination.</p> <p>If the presiding person is of the view that the determination of the constitutional matter by the Court is necessary for the purposes of the proceedings and that the request for a referral is not frivolous or vexatious, he or she is obliged to refer the matter to the Court for determination. If the presiding person is of the opinion that the request for a referral is frivolous or vexatious, he or she shall refuse the request.</p> <p> </p> <p>There must be a moment in the procedure set out in s 175(4) of the Constitution when the presiding person must address his or her mind to factors that answer a number of questions, such as whether what is raised is a constitutional question, whether the request to refer the matter to the Court is frivolous or vexatious, and whether the determination by the Court is necessary for the purpose of the proceedings before him or her. There must be evidence that a request for a referral of a constitutional matter to the Court was made to the presiding person.</p> <p> </p> <p>It is not compliance with the requirements of the procedure of referral of a constitutional matter to the Court prescribed under s 175(4) of the Constitution to say the constitutional question was raised and the presiding person declined to refer it to the Court. The reason is that it is the request to refer a constitutional question to the Court which must have been found to be frivolous or vexatious. It is not the constitutional matter itself that has to be found to be frivolous or vexatious.</p> <p> </p> <p>The reasons for approaching the Court set out in the applicant’s founding affidavit do not make mention of a request for referral being made to the court <em>a quo</em>. In para 8 of the applicant’s founding affidavit the applicant stated that:</p> <p>“8.       I set out the facts upon which the application is founded below. In short, I raised constitutional questions in criminal proceedings pending before the first respondent. The first respondent declined to refer the said constitutional questions that arose before him to this Court on the basis that the said constitutional questions were frivolous and vexatious in circumstances wherein, with respect, the questions raised were neither frivolous nor vexatious. Such refusal was, therefore, a breach of my right to the equal protection and benefit of the law. …</p> <p> </p> <p>37.       In short, the first respondent did not even attempt to consider the submissions made before him. It was not sufficient, with respect, to simply hold that ‘the application is frivolous and vexatious’ without illustrating that he had applied his mind to it and found the same frivolous and vexatious for given reasons. In the ABSENCE of a reasoned and considered ruling that the application was frivolous and vexatious, the refusal to refer to this Court the questions raised was a breach of the provisions of section 175(4) which oblige the first respondent to refer an application of this nature to this Court upon a consideration of the request in accordance with set criteria … .”</p> <p> </p> <p> </p> <p>            An application for leave for direct access to the Court on an application in terms of s 85(1) of the Constitution, alleging that the refusal by a presiding person to refer a constitutional matter is a violation of a fundamental right enshrined in <em>Chapter 4</em>, must comply with the requirements of s 175(4) of the Constitution.</p> <p> </p> <p>            An applicant for leave for direct access to the Court who seeks relief on the ground that the refusal by the presiding person to refer a matter is a violation of his or her or its fundamental right or freedom must show compliance on his or her or its part with the requirements of s 175(4) of the Constitution in the proceedings before the court <em>a quo</em>.</p> <p> </p> <p>            The applicant accepts that the court <em>a quo</em> decided that the constitutional questions raised were frivolous and vexatious. According to him, the decision violated his right to equal protection of the law in terms of s 56(1) of the Constitution. The applicant does not take issue with the fact that the court <em>a quo</em> did not determine the question whether the “request” for referral of the constitutional questions, if it was made, was frivolous or vexatious.</p> <p> </p> <p>            The case intended to be placed before the Court in terms of s 85(1) of the Constitution is that the decision by the court <em>a quo</em> that the constitutional questions were frivolous and vexatious violated the applicant’s right to equal protection of the law. The allegation is that the decision was made in the context of s 175(4) of the Constitution. For the right of access to the Court under s 85(1) of the Constitution to achieve the intended purpose, it must be shown that in the exercise of its power the court <em>a quo</em> violated the applicant’s right to equal protection under s 175(4) of the Constitution.</p> <p> </p> <p>            What is clear from the papers is the fact that the court <em>a quo</em> did not proceed in terms of s 175(4) of the Constitution. The court <em>a quo</em> decided the constitutional questions on the merits. The record of proceedings shows that the court <em>a quo</em> addressed its mind to the issue of the legality of the authority to prosecute given to the third and fourth respondents forming the subject of the constitutional questions. The court <em>a quo</em> decided that the authority to prosecute given to the third and fourth respondents was lawful, as it fell within the terms of s 5(2) of the CP&amp;E Act.</p> <p> </p> <p>            The controversy between the parties arising from the question of the legality of the authority given to the third and fourth respondents terminated with the decision that gave victory to the Prosecutor-General.</p> <p> </p> <p>            There was no consideration of the question whether a request for a referral of the constitutional questions raised by the applicant was frivolous or vexatious.</p> <p> </p> <p>The jurisdiction of a subordinate court under s 175(4) of the Constitution is mandatory and especially focused, in that it has to be exercised in respect of a specific question whether a request for a referral of a constitutional matter to the Court is merely frivolous or vexatious. At the time the decision is made, the subordinate court must be engaged with the question.</p> <p> </p> <p>            In this case, the evidence shows that the court <em>a quo</em> was not engaged with that question. It was, instead, engaged with the question whether the authority to prosecute was lawfully given to the third and fourth respondents. It looked at the merits of the question and decided that the authority to prosecute was lawfully given in terms of s 5(2) of the CP&amp;E Act.</p> <p> </p> <p>            The purpose of the exercise of the jurisdiction of a subordinate court under s 175(4) of the Constitution is to protect the process of the Court against frivolous or vexatious litigation. Section 175(4) of the Constitution does not authorise a subordinate court to determine the constitutional matter on the merits. If the subordinate court exercises its general power to determine the constitutional matter on the merits, it does so on the basis of some other law, not s 175(4) of the Constitution. The determination of a constitutional question by a subordinate court is of itself a judicial protection, unless the court has no jurisdiction over the matter. The remedy for the enforcement of the law prescribing the standard of jurisdiction is the appeal.</p> <p> </p> <p>            A determination by a subordinate court of a constitutional matter on the merits cannot be taken as a failure to provide the applicant with the judicial protection provided under s 175(4) of the Constitution. The determination of a constitutional matter on the merits cannot provide a ground for approaching the Court, alleging a violation of the right to equal protection of the law. Section 175(4) of the Constitution applies to cases where the constitutional matter raised is to be decided upon by the Court.</p> <p> </p> <p>            The subordinate court decides the question whether a request to refer the constitutional question to the Court is merely frivolous or vexatious. Once the subordinate court decides the constitutional question on the merits, s 175(4) of the Constitution ceases to be applicable. In other words, the alleged violation of the right to equal protection of the law, forming the ground on which the substantive application is intended to be filed with the Court in terms of s 85(1) of the Constitution should leave for direct access be granted, cannot, in the circumstances, be based on alleged failure to act in terms of s 175(4) of the Constitution.</p> <p> </p> <p>            The court <em>a quo</em> could not have addressed its mind to the question whether a request for referral of the constitutional questions was merely frivolous or vexatious after determining the constitutional questions itself.</p> <p> </p> <p>            There is a discordance between what happened and the relief sought. The relief sought is based on the allegation that there was refusal by the court <em>a quo</em> to refer the constitutional questions to the Court. There was no refusal. There was a determination of the constitutional questions on the merits. The decision terminated the controversy between the parties on the question whether the authority to prosecute was lawfully given to the third and fourth respondents, by giving victory to the Prosecutor-General.   The applicant was bound by the decision of the court <em>a quo</em> and had to stand trial.</p> <p> </p> <p>The Court can only exercise its jurisdiction to interpret, protect and enforce the Constitution in respect of matters that reach it from lower courts through the procedures prescribed by the Constitution and given effect to by the relevant provisions of the Rules. The substantive and procedural requirements of the relevant constitutional provisions must be complied with. It must be shown that the matter sought to be brought before the Court for determination falls within the ambit of matters for which the constitutional provisions invoked were designed.</p> <p> </p> <p>            The applicant invoked a wrong remedy in a bid to redress the decision of the court <em>a quo</em> on the constitutional questions he raised in the criminal proceedings in that court.</p> <p> </p> <p>            In <em>Mutero and Anor</em> v <em>Attorney-General</em> 2000 (2) ZLR 286 (S), it was held that it was incompetent for the court <em>a quo</em> to consider the issue of frivolity or vexatiousness of a request for a referral of a constitutional matter to the Court when it had already determined the question on the merits. It was held that once a subordinate court rendered a decision on the constitutional question, the dispute arising therefrom could only be resolved by way of appeal.</p> <p> </p> <p>            If the applicant was of the view that the decision by the court <em>a quo</em> was wrong, he had the remedy of appeal for the redress of the decision. A wrong judicial decision does not, however, give rise to a ground for an alleged violation of the right to equal protection of the law. No law provides protection to a litigant against the possibility of a judicial officer making a wrong decision.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p> </p> <p>In the result, it is ordered as follows:</p> <p> </p> <p>“The application be and is hereby dismissed with no order as to costs.”</p> <p> </p> <p> </p> <p> </p> <p> </p> <p>            <strong>UCHENA JCC</strong>:         I agree</p> <p> </p> <p><strong>MAKONI JCC</strong>:         I agree</p> <p> </p> <p><em>Muzangaza, Mandaza and Tomana</em>, applicant’s legal practitioners</p> <p><em>Civil Division of the Attorney-General’s Office</em>, first respondent’s legal practitioners</p> <p> </p> <p><em>National Prosecuting Authority</em>, second, third and fourth respondents’ 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/constitutional-court-zimbabwe/2019/7/2019-zwcc-07.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=44304">2019-zwcc-07.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/2019/7/2019-zwcc-07.pdf" type="application/pdf; length=234780">2019-zwcc-07.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/appeal-which-court">Appeal to which court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/arrest">ARREST</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/constitutional-law">CONSTITUTIONAL LAW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/constitution-zimbabwe-2013">Constitution of Zimbabwe 2013</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/constitutional-appeal">Constitutional appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/courts-constitutional-practice">Courts (Constitutional practice)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rules-court">Rules of court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/attorney-general">Attorney-General</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/powers-ag">powers of AG</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/prosecution-0">Prosecution</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/frivolous-and-vexatious">frivolous and vexatious</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/dispute-facts-practice-and-procedure">Dispute of facts (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/prosecutor-see-criminal-procedure-prosecutor">PROSECUTOR See CRIMINAL PROCEDURE (Prosecutor)</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/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div><div class="field-item odd"><a href="/zw/legislation/act/2014/4">National Prosecuting Authority Act [Chapter 7:20]</a></div><div class="field-item even"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1982/27">University of Zimbabwe Act, [Chapter 25:16] </a></div><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Sun, 14 Apr 2019 18:59:56 +0000 admin 9299 at https://old.zimlii.org Tshuma v Dube (HB 275-18, HCA 11/18) [2018] ZWBHC 275 (08 November 2018); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2018/275 <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>MBONGENI TSHUMA</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>DOMINIC DUBE</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MAKONESE &amp; TAKUVA JJ</p> <p>BULAWAYO 5 &amp; 8 NOVEMBER 2018</p> <p> </p> <p><strong>Civil Appeal</strong></p> <p> </p> <p><em>K. Phulu</em> for the appellant</p> <p>Respondent in person</p> <p>            <strong>MAKONESE J:        </strong>After hearing argument in this matter we upheld the appeal and set aside the judgment of the court <em>a quo.</em>  These are the full reasons for the decision.</p> <p>            It is a settled principle of our law that an appeal must be against an order or judgment of the court, and not against the individual findings.  In certain instances, however an appeal against certain findings is properly launched, if such findings are decisive of the triable issues before the court.</p> <p>            The facts of the matter are fairly simple.  The sole issue before the court <em>a quo</em> was whether there was a valid lease agreement between the appellant and the respondent in respect of a property known as stand 56C, Mthwakazi, in Filabusi area.  The respondent issued summons against the appellant seeking an eviction order against the appellant.  The basis of the claim was that appellant had leased the property, which comprised a shop to the appellant who was refusing to vacate the premises.  The respondent claimed that he had leased the premises for the period August 2014 to August 2015.  The respondent asserted that it was a term of the oral agreement that respondent would pay rentals at US$500 per month.  The appellant paid the respondent a lump sum of US$2 500.  The respondent who was unwell left for his rural home where he was recuperating.  The respondent avers that when he had recovered he approached the appellant seeking his rentals.  This was around August 2015.  The appellant had by that time taken over occupation of the property and had demolished the old existing structure and had modernized the building.  The appellant contended that he had purchased the property from the respondent and had paid him a sum of US$7 500 in cash.  He had made extensive renovations on the property amounting to US$19 000 and what was outstanding was the transfer of ownership to him.  The appellant denied that he was leasing the premises from the respondent and that in fact there was never such a lease in existence.</p> <p>            The learned magistrate in the court <em>a quo</em> ruled in favour of the respondent and ordered the eviction of the appellant.  The learned magistrate made a finding that of the two parties, the appellant was the “more sophisticated”, in that he ran various businesses scattered around the Filabusi area.  The magistrate reasoned that it was improbable that the appellant would have concluded a verbal agreement for purchase of an immovable property.  Further, the magistrate’s view was that the appellant had failed to explain how he managed to have electricity disconnected from the old premises without the assistance of the respondent, and that if respondent had sold the property to him, he would not have refused to assist the appellant.  For that reason, the learned magistrate, concluded, “judgment should be resolved in favour of the plaintiff”.</p> <p>            What becomes evident is that, without attempting to analyse the evidence led by the parties, the court <em>a quo</em> decided to believe the respondent.  The court <em>a quo</em> then ordered the eviction of the appellant from the premises.  Aggrieved by the decision of the magistrate in the court <em>a quo</em>, the appellant lodged this appeal.</p> <p><strong>Issues for determination in this appeal</strong></p> <p>            The following issues which are raised in the grounds of appeal lie for determination by this court:</p> <ol> <li>Whether the court <em>a quo</em> made a finding at all on the existence of a lease agreement, and whether the court erred at law in failing to do so.</li> <li>Whether the court <em>a quo</em> erred in its analysis and examination of the oral evidence of the witnesses who testified before it.</li> <li>Whether the court <em>a quo</em> misconstrued the appellant’s defence to the plaintiff’s claim in summarizing the parties’ positions, and whether this mischaracterisation caused the court to misdirect itself.</li> <li>Whether the court <em>a quo</em> erred in its finding on the issue of the failure to put the contract in writing, and the issue of the sophistication of the parties, when such issues were pivotal issues in its findings on the probabilities.</li> </ol> <p><strong>Findings by the court <em>a quo</em></strong></p> <p>            In arriving at his decision, the learned magistrate made adverse findings regarding the appellant’s case.  By inference the he found that the evidence of the contract of sale was false.  He found that the evidence of the respondent was true.  The learned trial magistrate in summarizing the appellant’s case held as follows:</p> <p><em>“Defendant opposed the relief and in doing so set up the defence that he had bought the property subject to the claim from the plaintiff.”</em></p> <p>            Clearly, this summary of the appellant’s case caused the learned magistrate to fail to appreciate substantive issue of onus and the burden of proof in so far as it related to the respondent’s claim that there was a lease agreement between the parties.  This was a serious misdirection.  Further, and in any event, the respondent’s version was riddled with glaring commercial improbabilities which ought to have immediately captured the attention of the court.  The court conveniently ignored the improbabilities and proceeded to grant an eviction order. The first issue for consideration was that there was no reason given for the payment of five month’s rent in advance, for a business that had not even commenced operations.  The respondent upon collecting the advance payment went away to rest at his rural home only to return a year later.  When he found that his old building had been demolished and that appellant had erected a new structure he raised no issue.  The evidence of the builder, Dumisani Mpofu, is to the effect that the respondent gave positive comments regarding the new building.  The respondent did not enquire from the builder why they had demolished his building.  The appellant, being a business person would not have constructed a new structure at considerable expense, if the agreement he had with the respondent was for a lease.  This runs against both commercial and good common sense.</p> <p>            In a case where there are two mutually destructive versions of events, the learned magistrate’s duty was to make a definite choice as to which side was being truthful.  There was no question of one side having misunderstood what the other alleged happened between them.  There was either a sale or lease between the parties.  For some strange reason the learned magistrate decided not to analyse the evidence of the witness.  The learned magistrate simply went along and agreed with the evidence of the respondent without analyzing the evidence of each of the witnesses.  See the case of <em>Mtimkulu </em>v <em>Nkiwane &amp; Anor</em> A SC-136-01.</p> <p>            In this matter MALABA (JA) (as he then was) stated at page 3 of the cyclostyled judgment as follows:</p> <p><em>“The principle that governs the approach of an appellate court on the question of the correctness of the trial court’s findings of fact is that as a general rule the trial court’s findings on the credibility of the witnesses should not be lightly disturbed because the court would have seen the witnesses give evidence and from that position was better placed to comment accurately on their demeanour.  An appeal is, however a re-trial on the recorded evidence.”</em></p> <p>            In the appeal before this court, the court may disagree with the findings of the trial court, if on examination of all the circumstances (such as inferences from unquestioned facts and probabilities) of the case it comes to the conclusion that the trial court’s findings on credibility cannot be supported.  The appeal court requires cogent and substantial reasons for it to hold that the trial court was wrong in its assessment of witnesses.  See ; <em>National Suppliers Mutual General Insurance Association </em>v <em>Gany</em> 1931 AD 187 at 199.</p> <p>            In this matter, five witnesses gave oral testimony in the court <em>a quo</em>.  Their versions were aligned with the case of the party they testified for.  The parties to the litigation maintained mutually destructive versions.  Faced with such a situation, the court was enjoined to apply the test set out in; <em>Stellenbosch Farmers Winery Group Ltd &amp; Anor </em>v <em>Martell Etcle &amp; Ors</em> 2003 (1) SA 11 (SCA), where the court held as follows:</p> <p><em>The technique generally employed by courts in resolving factual disputes of this nature may be commonly summerised as follows:  To come to a conclusion on the disposed issues the court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities … As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues …”</em></p> <p>            The learned magistrate in the court <em>a quo</em> did not apply any of the tests referred to in the above case law.  The court seemed to focus only on the evidence of the appellant and the respondent.  He did not analyse the evidence of the rest of the witnesses.  In the end the trial magistrate dwelt on the “sophistication” of the parties.  This approach led the trial magistrate to come to wrong conclusions on the facts and the law.  The failure to assess all the evidence and to apply the proper legal tests to the evidence was a material misdirection.  As a result, the discrepancy between the evidence of the respondent and that of his witness, Sothini Mlalazi, regarding the amount paid by the appellant to the respondent on 5th August 2015 went without comment, mention or notice.  This discrepancy was material, and ought to have been weighed by the court <em>a quo</em>.  If the witness was present she would have known the exact amount and what currency was paid.  She would not have testified to payment of ZAR2 500 instead of US$2 500.  The court totally ignored this piece of evidence.  The issue which the trial court dwelt with in detail in assessing probabilities in this matter was done in an unusual and unprecedented manner.  The approach by the learned magistrate is unique and I must say unconventional and without precedent or logic.  The entire case was decided on the level of sophistication of the parties.  The learned magistrate had this so say on this aspect.</p> <p><em>“In this particular case, the court had to look at the sophistication of the parties,neither displayed an advanced degree of sophistication”.</em></p> <p>            The magistrate then continued:</p> <p><em>            “It was, however, appeared that the defendant is an astute businessman (sic)”.</em></p> <p>            Of great concern to this court, however, is the fact that the learned magistrate did not attempt to decide the issue that was before him.  The single issue for determination was whether there was lease agreement between the appellant and the respondent.  The learned magistrate did not make any specific findings on the substantive issue of the existence of the lease agreement.  There was no attempt to deal with the issue of the burden of proof on the respondent to prove the existence of the lease agreement on a balance of probabilities.  Trial magistrates ought to remind themselves that in a trial the court has the duty to determine the triable issue or issues before it. They must determine the issues and make specific findings on them based on a careful analysis of all the evidence.  That is the essential purpose of a trial.  It was incumbent upon the court <em>a</em> <em>quo </em>court to make findings on the terms and nature of the lease entered into by the parties as alleged by the respondent.  In the absence of evidence establishing the existence of a lease agreement, respondent did not discharge the burden of proof.  The two destructive versions of the parties were not properly dealt with in that the court did not analyse the totality of the evidence before it.  This misdirection was so fundamental and this court on appeal, is entitled to interfere with the findings and order of the court <em>a quo</em>.</p> <p>            For the aforegoing reasons the following order is made:</p> <ol> <li>The appeal is upheld.</li> <li>The judgment of the court <em>a quo</em> be and is hereby set aside and substituted with the following:</li> </ol> <p>“The plaintiff’s claim is dismissed with costs.”</p> <ol> <li>The respondent is ordered to pay the costs of suit.</li> </ol> <p> </p> <p>Takuva J ………………………………. I agree</p> <p><em>Vundhla-Phulu &amp; Partners,</em> appellant’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/bulawayo-high-court/2018/275/2018-zwbhc-275.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=23598">2018-zwbhc-275.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/2018/275/2018-zwbhc-275.pdf" type="application/pdf; length=144890">2018-zwbhc-275.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/landlord-and-tenant">LANDLORD AND TENANT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/lease">Lease</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/dispute-facts-practice-and-procedure">Dispute of facts (PRACTICE AND PROCEDURE)</a></li></ul></span> Thu, 20 Dec 2018 08:22:37 +0000 admin 9230 at https://old.zimlii.org Velah & 3 Others v The Minister of Primary & Secondary Education & 1 Other (HH 124-18, HC 1992/18) [2018] ZWHHC 124 (07 March 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/124 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>MIKE VELAH</p> <p>and</p> <p>ALBERT NYAMURONDA</p> <p>and</p> <p>JOSEPH KURAI PEDZAYI</p> <p>and</p> <p>BRENDA HATINAHAMA</p> <p>versus</p> <p>THE MINISTER OF PRIMARY &amp; SECONDARY</p> <p>EDUCATION</p> <p>and</p> <p>ZIMBABWE SCHOOL EXAMINATIONS COUNCIL</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>ZHOU J</p> <p>HARARE, 7 March 2018</p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p><em>S. Chamuka </em>with him Ms<em> N. Hatinahama</em>, for the applicants</p> <p>Ms <em>B Shava</em>, for the 1st respondent</p> <p><em>T. Mpofu</em>, for the 2nd respondent</p> <p>            ZHOU J: The four applicants are parents of minor children who wrote Ordinary Level examinations in November 2017. The examinations are managed by the second respondent, a body corporate duly established by and in terms of s 3 of the Zimbabwe School Examinations Council Act [<em>Chapter 25:18</em>]. The results for the November 2017 examinations were released by the second respondent on 23 February 2018. When the applicants and/or the children they represent attended at St David’s Bonda Secondary School, which was their examination centre, to collect the results they were informed by the authorities there that their results had been withheld by the second respondent on grounds of alleged cheating. The precise dates on which the withholding of the results was communicated to the applicants is not clear from their affidavits. Be that as it may, what is evident is that the applicants then instituted the instant urgent chamber application on 2 March 2018. At the commencement of the hearing the fourth applicant notified that she was withdrawing from the matter. Three applicants persisted with the application. The application is opposed by both respondents. Before hearing submissions on the merits of the application I heard argument on the objections <em>in limine</em> taken by the respondents.</p> <p>            The first respondent objected to his joinder on the grounds that his responsibility is only to give policy guidance to the second respondent, and he has no role in the making of the decision of the first respondent which is sought to be impugned. Mr <em>Chamuka</em> for the applicants readily conceded that the first respondent was improperly joined to the application. The concession was properly made. The decision which is sought to be challenged is administrative, and the first respondent is indeed not involved in its making. The second respondent, as provided for in s 3 of the Zimbabwe School Examinations Council Act is a body corporate capable of suing and being sued in its corporate name. The objection <em>in limine</em> pertaining to improper joinder of the first respondent is therefore upheld.</p> <p>            The second respondent also objected <em>in limine</em> to the determination of the matter on the merits on 5 grounds. These are:</p> <p>‘(1)      that the application is invalid for want of compliance with the provisions of r 241,</p> <p>(2)        that the matter is not urgent,</p> <p>(3)        that the relief sought is incompetent for being final in its effect,</p> <p>(4)        that the applicant are seeking review through an urgent chamber application rather than through a court application as required by the High Court Rules, 1971 and</p> <p>(5)       that there are material disputes of fact which cannot be resolved on the papers.</p> <p>On the question of urgency the application was filed within 7 days after the results</p> <p>were released by the second respondent. While the applicants do not give the precise dates on which they were notified of the withholding of the results and do not explain what they were doing in the 7 or so days prior to the filing of this application, I do not think that in the circumstances of this matter a period of 7 days deprives the matter of its urgency. The application was filed about 5 days before the date upon which the urgency appears to be founded which is the 7th of March 2018, the date on which enrolment for Form 6 was due to commence. The applicants did not therefore wait for the day of reckoning to arrive. They acted expeditiously in the circumstances.</p> <p>            On the question of the non-compliance with the proviso to r 241 (1) the complaint is that the chamber application ought to have been in Form 29 with the necessary adjustments. Mr <em>Chamuka</em> conceded the non-compliance and moved condonation of the non-compliance by invocation of the powers reposed in the court or judge in terms of r 4C. While there are judgments which suggest that the non-compliance with r 241 renders the application fatally defective, I hold a different view. If this was the only defect complained of I would have considered whether there are indeed good grounds for the non-compliance to be condoned, especially as the respondents were served with the applicants’ papers and had the opportunity to file opposing papers in the case of the second respondent. But this matter can be disposed of easily on the other points <em>in limine.</em></p> <p>            The first insurmountable hurdle for the applicants is the relief which they seek. The relief sought is final not just in its form and substance but in its effect. This court has in many judgments warned against the undesirability of seeking final relief through an urgent chamber application under the guise that it is interim relief. Quite apart from the procedural requirement that this kind of relief should be sought by way of review as an ordinary court application as required by order 33 r 256, if the relief was granted as sought its consequences would be irreversible should the provisional order be not confirmed. The interim relief that the applicants seek is that the decision to withhold the applicants’ results be set aside, and for the applicants’ results to be confirmed and released. Mr <em>Chamuka</em> understandably was unable to make any meaningful submission on how that kind of relief could be granted as interim relief. On that ground alone, the relief which the applicants seek is incompetent and this court cannot grant it other than with the consent of all the parties to the dispute. The application thus fails on that basis.</p> <p>            The further point taken is that there are material disputes of fact which cannot be resolved on the papers. The dispute relates to whether there is indeed evidence which establishes that the applicants’ children had access to the examination question papers or parts thereof prior to the date and time of writing the examination. The applicants make the allegation that their children did not cheat and never admitted to accessing the examination question in advance of the date of the examination. The respondents, on the other hand, have placed before this court cogent facts and in some instances evidence which point to cheating. Although the fourth applicant did not give any reason for withdrawing from the application one cannot ignore the possibility that the decision may have been influenced by evidence of her cellphone texts conversation with her daughter. That conversation suggests the she secured the examination questions for the daughter prior to the date of examinations. The second respondent has also through its internal procedures presented findings which if proved at the trial would mean that the applicants’ children were guilty of the misdemeanour alleged. These are matters that would need to be tested through a trial.</p> <p>            The nature of examinations and their bearing on the credibility and integrity of a system of education are matters of national importance. It is therefore necessary that where the integrity of a country’s system of education is exposed to being questioned the authorities responsible for examinations be allowed to act in the interests of protecting that integrity. In this case the curt would be aiding illegal conduct if it was to ignore the findings made by the second respondent through its investigations. Those findings cannot be rejected via the procedure of a court application.</p> <p>            The court has a discretion as to the future course of proceedings instituted by way of court application where there are material disputes of fact. In the present case the applicants were always aware or ought to have realise the existence of the disputes of fact. Further, when the issue of disputes of fact is taken together with the relief sought as considered above, it is only appropriate that the application be dismissed.</p> <p>            In the result, It is ordered that:</p> <ol> <li>the first respondent’s objection <em>in limine</em> to its joinder be and is hereby upheld with costs.</li> <li>In relation to the second respondent, the application be and is hereby dismissed with costs.</li> <li>The costs referred to in paragraphs 1 and 2 hereof shall be paid by all the applicants, including the fourth applicant, jointly and severally the one paying the others to be absolved.</li> </ol> <p> </p> <p><em>Magaya-Mandizvidza Legal Practitioners</em>, applicants’ legal practitioners</p> <p><em>Dube, Manikai &amp; Hwacha</em>, 2nd 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/2018/124/2018-zwhhc-124.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=20668">2018-zwhhc-124.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/2018/124/2018-zwhhc-124.pdf" type="application/pdf; length=118260">2018-zwhhc-124.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/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/chamber-application">chamber application</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/dispute-facts-practice-and-procedure">Dispute of facts (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/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/1994/17">Zimbabwe School Examinations Council Act [Chapter 25:18]</a></div></div></div> Thu, 12 Apr 2018 07:31:23 +0000 admin 8719 at https://old.zimlii.org Ilasha Mining (PVT) Limited v Yatakala Trading (PVT) LTD t/a Viking Hardware Distributors (HB 3-18, HC 3283/17 X REF HC 3165/17; 2965/17) [2018] ZWBHC 3 (01 February 2018); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2018/3 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>ILASHA MINING (PVT) LTD</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>YATAKALA TRADING (PVT) LTD</strong></p> <p><strong>t/a VIKING HARDWARE DISTRIBUTORS</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MAKONESE J</p> <p>BULAWAYO 18 DECEMBER 2017 &amp; 1 FEBRUARY 2018</p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p><em>Advocate L. Nkomo</em> for the applicant</p> <p><em>Advocate Harshiti</em> for the respondent</p> <p>            <strong>MAKONESE J:        </strong>The applicant approached this court on an urgent basis seeking a declaratory order in the following terms:</p> <p>“1.       It is hereby declared that no binding contract of sale was concluded between the applicant and the respondent in respect of equipment listed in the pro forma invoices QU106252 and QU106278 issued by the respondent to the applicant and submitted by the applicant to Fidelity Printers and Refiners (Pvt) Ltd.</p> <p>2.         Any purported transaction by the respondent utilizing the loan funds of          US$1 808 829,00 paid by Fidelity Printers and Refiners (Pvt) Ltd into the respondents’ bank accounts be and is hereby declared null and void and of no force and effect.</p> <p>3.         The respondent be and is hereby ordered to pay to the applicant or to the applicant’s nominee the sum of US$1 808 829,00 together with interest thereon at the prescribed rate of interest calculated from the date of this order to date of full payment.</p> <p>            4.         The respondent to pay the costs of suit on an attorney and client scale.”</p> <p><strong>Factual background</strong></p> <p>            The facts giving rise to this application for a declaratur are that on 6th September 2017, the applicant concluded a written loan facility agreement with Fidelity Printers and Refiners (Pvt) Ltd (hereinafter referred to as Fidelity).  In terms of the loan agreement funds to an aggregate amount of US$2 500 000 were availed to the applicant for the purposes of capitalizing its business operations by <em>inter alia</em>, purchasing mining equipment to ramp up gold mining and processing.  Prior to the conclusion of the loan facility agreement with Fidelity the applicant requested pro-forma invoices from the respondent listing particular equipment and the prices for the sole purpose of submitting the same to fidelity as an indication of the type of equipment the applicant intended to purchase and the price range for such equipment.  Following the submission by the applicant of the respondent’s pro-forma invoices to Fidelity, the applicant and Fidelity agreed on the disbursement of part of the funds pursuant to the provisions of clause 5.2 of the loan agreement.  It is important to observe here that the loan agreement was purely between Fidelity and the applicant.  The respondent was essentially not part of that loan agreement and there was no privity of contract between Fidelity and respondent.  It is clear from the provisions of the loan agreement that the loan facility funds amounting to US$1 808 899,00 were released by Fidelity directly to the respondent, at the instance, and, for the benefit of the applicant.  Respondent had been identified as a potential supplier of the mining equipment intended to be purchased by the applicant.  After Fidelity transferred part of the loan facility funds, the respondent and applicant failed to agree on the pricing of the mining equipment.  Applicant contended that the prices were highly inflated and sought quotations from other suppliers for comparison.  The respondent intimated that it had utilized the loan funds in its possession by purchasing part of the equipment and called upon applicant to collect such equipment.  The applicant, refused to sign the pro-forma invoices and to collect the equipment purportedly purchased with the loan funds without a prior contract between applicant and respondent.  The applicant’s position is that the respondent had no mandate or legal basis to purport to utilize the applicant’s loan funds for any purpose without a prior agreement.   Respondent refused to release the loan funds, whilst insisting that the applicant should instead collect part of the mining equipment that had been sourced.  Faced with the respondent’s refusal to release the loan funds as requested by applicant, applicant filed an urgent chamber application on an <em>ex parte</em>  basis  under case number HC 3165/17 seeking urgent relief in the form of an order compelling respondent to release the funds to the applicant.  On the 1st of December 2017 a provisional order was granted in favour of the applicant against the respondent.  It emerged that on 5th December 2017 respondent had filed an appeal at the Supreme Court under case number SC 1024/17 against the granting of the provisional order .On the 12th December 2017 the Supreme Court issued a consent order staying execution of a writ issued under case number HC 3165/17.   On the 13th December 2017 an urgent application for leave to execute pending appeal was removed from the roll as it had been overtaken by the Supreme Court order.   On the 14th December 2017, the applicant filed a notice of abandonment of the provisional order granted in its favour under case number HC 3165/17.</p> <p>            On 18th December 2017, the respondent filed a notice of opposition in this matter which was predicated on an opposing affidavit deposed by Mr S. Shlomo Lepar.  The position taken by the respondent is that the matter is not  urgent nor merited.  The respondent raised the following points <em>in limine</em>:-</p> <p>            Firstly, respondent contends that there is a clear dispute of fact which cannot be decided on the papers,  but  through the leading of <em>viva voce</em> evidence.  The applicant asserts that there was no contract concluded by applicant and respondent, whilst on the other hand respondent contends that a contract of sale was reached between the parties.</p> <p>            Secondly, respondent argued that the matter was not urgent.  Thirdly the respondent argued that he non-joinder of Fidelity to these proceedings was fatal.</p> <p>            Fourthly, the notice of abandonment is incompetent in that the applicant should have ensured the reversal of the transfer of a payment of US$176 308,00, an amount transferred from respondent’s bank account pursuant to the provisional order granted under case number HC 3165/17.</p> <p>Finally, that last point in<em> limine</em> raised by respondent is that the order sought by the applicant, in particular paragraph 3 cannot be granted in that it is inconsistent with section 14 of the High Court Act (Chapter 7:06) which is the basis of the application.</p> <p> </p> <p><strong>Issues for determination</strong></p> <p>            In this matter these  are the issues that must be determined and resolved.</p> <ul> <li>Whether or not the matter is urgent.</li> <li>Whether or not the applicant has met the requirements of a declaratory order as enshrined in section 14 the High Court.</li> <li>Whether or not there is a material dispute of fact which cannot be decided on the papers filed of record.</li> <li>Whether or not the non-joinder of Fidelity Printers and Refiners (Pvt) Ltd is fatal.</li> <li>Whether or not the notice of abandonment is incomplete and if so whether that is fatal to the application.</li> <li>Most pertinently, whether or not a valid contract was concluded between the parties.</li> </ul> <p>I now proceed to deal with these issues seriatim.</p> <p><strong>Whether the matter is urgent</strong></p> <p>            The first issue I must dispose of is whether or not this matter is urgent.  I must decide based on the facts placed before me whether this one of those special cases which deserves to have the normal and ordinary rules of this court suspended, the stipulated time periods to be waived, other litigants’ interests to be temporarily overlooked the judge to “drop” everything, have his vacation interrupted, and give audience to the applicant because failure to do so would result in “palpable injustice” in the circumstances.  Put differently, can it be said that if this applicant is not allowed to be heard ahead of other litigants who are already in the queue there will be an inexcusable failure to do justice timeously, such that any subsequent attempt to do justice would be meaningless or ineffective.  The subject of what constitutes urgency has been discussed and decided in numerous cases in this court and the Supreme Court.  It is now settled that:</p> <p><em>“A party who brings proceedings urgently gains a considerable advantage over persons whose disputes are being dealt with in the normal course of events.  This preferential treatment is only extended where good cause can be shown for treating one litigant differently from most litigants.  For instance where, if it is not afforded, the eventual relief will be hallow because of the delay in obtaining it.”</em></p> <p>            See <em>Dilwin Investments (Pvt) Ltd t/a Formscaff</em> v <em>Japa Engineering Comp Ltd</em> HH-116-98.</p> <p>            See also <em>Kuvarega</em> v <em>Registrar General &amp; Anor</em> 1998 (1) ZLR 189</p> <p>            What has been established by the various decided cases is that a matter is urgent if it cannot wait when the need to act arises.  A mater will be evidently urgent  if irreparable harm is likely to arise if the matter is not dealt with on an urgent basis.  The applicant must demonstrate that he has treated the matter in an urgent manner and that there is no satisfactory remedy available to the applicant.</p> <p>            The critical question faced by the court in determining whether the matter is urgent is in the first place, to decide whether or not to give priority to the application by dealing with it on an urgent basis.  In arriving at a decision on this issue the court is called upon to exercise its discretion.  Such discretion must, however be exercised judiciously taking into account the factors argued in favour of and against the matter being treated as urgent.  If convinced that the matter is urgent, a hearing must be conducted and the court must then make an appropriate order.  If the court is not convinced that the matter is not urgent, the matter will not be heard and removed from the roll, in which event, the matter may be referred for hearing on the ordinary roll of court applications.</p> <p>            In this matter it is clear that the urgency is founded and predicted on commercial urgency.  The applicant cannot be expected to wait for the matter to proceed on the ordinary roll of applications.  A huge amount of money has been released into the respondent’s bank account.  Applicant is suffering serious financial prejudice as the loan facility with Fidelity has to be serviced and will attract huge penalties by way of interest accrued.  It is evident that this one of those cases which cannot wait.  There can be no doubt that irreparable prejudice will result, if the matter is not dealt with immediately and without any delay.  There is <em>prima facie</em> evidence that the applicant treated the matter as urgent.  Most importantly, there can be no satisfactory relief to the applicant .</p> <p> </p> <p> To that end and for this cause, I find that the applicant has met the criteria set out for the requirements of urgency as set out in decided cases.</p> <p><strong>Whether applicant has met the requirements for a declaratory order</strong></p> <p>            It is trite that an application for declaratory order ought to be made in terms of the High Court Act (Chapter 7:06).  Section 14 of the Act provides that:</p> <p>“The High Court may in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”</p> <p>            It is axiomatic that an application for a declaratory order ought to be considered and ventilated in light of the provisions of section 14 of the High Court Act.  The requirements of declaratory order were succinctly and aptly considered in the case of <em>Johnsen</em> v <em>Agricultural Finance Corporation</em> 1995 (1) ZLR 65.  The court stated the position as follows:</p> <p><em>“The condition precedent to the grant of a declaratory order under section 14 of the High Court Act of Zimbabwe, 1981 is that the applicant must be an “interested person”, in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court.  The interest must concern an existing, future or contingent right.  The court will not decide abstract, academic or hypothetical questions unrelated thereto.  But the presence of an actual dispute or controversy between the parties is not a pre-requisite to the exercise of jurisdiction.  See Ex P Chief Immigration Officer 1993 (1) ZLR 122 (S) at 129F-G; 1994 (1) SA 370 (25) at 376G-H; Munn Publishing (Pvt) Ltd v ZBC 1994 (1) ZLR 337 (S) and the cases cited …”</em></p> <p>            In my view  the requirements for the grant of a declaratur have been met.  The second stage of the enquiry is to decide whether in the case before me is a proper one for the exercise of my discretion under section 14 of the High Court Act.  It is my considered view that the application is one which enjoins this court to exercise its discretion judiciously in terms of section 14 of the High Court Act.  I am satisfied that the existing rights and obligations of the parties have been succinctly placed in the founding affidavit and the opposing affidavits.  A declaratory order is manifestly and potentially definitive in that in the event that I decide in favour of the applicant that no valid contract of sale was concluded the respondent will have no modicum of any right to continue holding on to the funds paid to it by Fidelity.  Whether, I should however, grant the order as  prayed, is an entirely different matter.</p> <p><strong>Whether there is a material dispute of fact incapable of resolution on the papers</strong></p> <p>            The respondent contended that there is a clear dispute of fact which cannot be decided on the papers without leading oral evidence.  That dispute being whether applicant and respondent concluded a binding contract of sale.  The nub of the respondent’s argument is that once the pro-forma invoices were transmitted to Fidelity and once payment was processed and effected on the strength of such invoices, the applicant and respondent entered into a valid contract of sale.  The applicant contends that there is no material dispute of fact which cannot be resolved on the papers.  In other words the court must decide on the papers whether the requirements of a valid contract exist and if not, whether a declaratur should be made to that effect.  No <em>viva voce</em> evidence is needed to settle the issue as the parties’ respective positions is articulated in the papers.  In <em>Douglas Muzanenhamo</em> v <em>Officer in Charge CID Law &amp; Order and Others </em>CCZ 3/13, the Constitutional Court held as follows:</p> <p><em>“As a general rule in motion proceedings the courts are enjoined to take a robust and common sense approach to disputes of fact and to resolve the issues at hand despite the apparent conflict.  The prime consideration is the possibility of deciding the mater on the papers without causing injustice to either party. …”</em></p> <p>            See also <em>Masukusa</em> v <em>National Foods Ltd and Anor</em> 1983 (1) ZLR 232</p> <p>            In <em>Supa Plant Investments (Pvt) Ltd</em> v <em>Chidavaenzi </em>2009 (2) ZLR 132 (H) the Makarau(JP) (as she then was)  held that:</p> <p><em>“A material dispute of fact arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.”</em></p> <p>            In this regard, and on the facts of this matter, the mere allegation of a possible dispute of fact is not conclusive of its existence.</p> <p>            See <em>Room Hire Co (Pty) Ltd</em> v <em>Jeppe Street Mansions (Pty) Ltd</em> 1949 (3) SA 1155 (T)</p> <p>            The common thread that runs through the decided cases is that even where material disputes of fact exist, the court should take a robust and common sense approach to the dispute and endeavour to resolve it.  If it succeeds then the matter ends there.  If it does not, then the court has the option to either dismiss the application or refer the matter to trial for a resolution of the dispute.  The court should only dismiss the application outright where the dispute must have been apparent when the applicant embarked on the application procedure.</p> <p>            It is my finding that the alleged dispute of facts is not material.  The alleged disputes are indeed capable of resolution without the need to call viva voce evidence.  The alleged dispute of facts is not material to the disposition of whether a declaratory order is appropriate in the circumstances of the case.  It is common cause that both parties have already adduced and produced their documentary evidence to buttress and advance their arguments.  Oral evidence will simply be a regurgitation of what has already been pleaded in the papers.  I accordingly dispose of this preliminary issue and make a finding that any alleged disputes of fact are capable of resolution on the basis of the papers filed of record.</p> <p><strong>Whether non-joinder of Fidelity Printers is fatal to the application</strong></p> <p>It is settled that the non-joinder or mis-joinder of a party does not and cannot render the proceedings is fatal.  Order 13 Rule 87(1)  of the High Court Rules provides that:</p> <p>“No cause or matter shall be defeated by reason of the mis-joinder or non-joinder of any party and the court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.”</p> <p>            In this matter the court is required to determine whether or not a valid contract was entered into between the parties before it.  Be that as it may, joining Fidelity would not take the matter any further.  The court is well placed to determine the rights and obligations of the parties to this dispute inspite  of the non-joinder of Fidelity.  Consequently, the point <em>in limine</em> relating to non-joinder must fail.</p> <p>            See <em>Nyamweda </em>v <em>Georgias </em>1988 (2) ZLR 422 (S) and <em>Rodger &amp; Ors</em> v <em>Mulier &amp; Ors</em> HH-2-10.</p> <p><strong>Whether or not a valid contract was concluded</strong></p> <p>            The position of our law of contract is that for there to be a binding contract there must be an offer and acceptance.  The offer must be unqualified and unequivocal.  The respondent’s position is that indeed there was a contract of sale between the parties.  The relief sought by the applicant is accordingly challenged.  From a reading of the loan facility agreement, Fidelity reserved the right to make payments directy to respondent.  Applicant agreed to such an arrangement and signed the loan agreement.  In terms of clause 5.2 of the agreement the monies paid to the respondent were in respect of specific pro-forma invoices.  The applicant consented to  the payments being  made to respondent well knowing that such payments were for the purchase of specific equipment listed in the pro-forma invoices.  The funds totaling US$1 808 899,00 were paid on the basis of two pro-forma invoices.  There were a number of communications between the parties confirmed by “whatsapp” chats where the applicant undertook to expedite payments on the remaining invoices.  Once procurement of equipment had commended, applicant was kept informed.  Applicant’s conduct suggests that there was indeed a binding contract between the parties.  It is my view, that the parties reached a contract of sale in terms of which the applicant obtained pro-forma invoices for payment.  An offer was made and accepted.  Payments were made to the respondent and procurement of the goods commenced.  There was a clear <em>consensus</em> <em>ad idem</em> between the parties.  If there was no such consensus the applicant should have objected immediately.  The legal position is to the effect that:</p> <p><em>“A sale in Roman-Dutch law has been defined as a contract in which one person promises to deliver a thing to another, who promises to deliver a thing to another, who on his part promises to pay a certain price.”</em></p> <p>            See <em>Chikoma</em> v <em>Mukwena</em> 1998 (1) ZLR 541.</p> <p>            In <em>Hoffmann &amp; Charvalho</em> v <em>Minister of Agriculture</em> 1947 (2) SA 855 (T) at 860, the court stated as follows:</p> <p><em>“Where parties intend to conclude a contract, thin they have concluded a contract, and proceed to act as if the contract were binding and complete, I think the court ought rather to try and held the parties towards what they both intended rather than obstruct them by legal subtleties and assist one of them to escape the consequences of all that he has done and all that he has intended …”</em></p> <p>            I am acutely aware that the test for a meeting of the minds of the parties should involve the effect of their conduct on whether or not there was a contract.  <em>Consesus ad idem</em> does not only take the subjective and mental state of the parties, but also takes into consideration the conduct of the parties.</p> <p>            See <em>Smith </em>v <em>Hughes</em> (1871) LR6QB587 where the test was set out in the following terms:</p> <p><em>“If whatever a man’s real intention may be, he so conducts himself that a reasonable man</em> <em>would believe that he was asserting to the terms proposed by the other party, and such other party upon that belief enters into the contract with him the man thus conducting himself would be equally bound as if he had intended to agree to the other party’s terms.”</em></p> <p>            As I have indicated above, applying these principles to the established facts it is clear that a contract of sale was concluded between the parties.</p> <p> </p> <p><strong>Whether the notice of abandonment is incomplete</strong></p> <p>            The respondent argued that applicant should have reversed the transfer of an amount of US$176 308 which was transferred from respondent’s bank account pursuant to a provisional order granted by this court under case number HC 3165/17.  It was further argued that the notice of abandonment was not complete as there was no tender of the wasted legal costs.  Until that is done, the respondent argued  that the abandonment filed of record cannot take effect.  Respondent further argued that, the abandonment cannot take effect with applicant retaining the benefits of the provisional order.  In terms of the rules of the Supreme Court, 1964, in particular rule 33 (3), it is provided that:</p> <p>“At anytime the respondent in an appeal or cross-appeal may by notice given to the registrar and the opposite party, abandon the whole or any part of the judgment appealed against.”</p> <p>            Quite clearly, the said rule permits the litigant to withdraw in whole or in part  his appeal, subject to the tendering of wasted costs.   I  observe that the usual practice in these courts is that every notice of withdrawal or abandonment must provide for a tender of wasted costs.  In the exercise of my discretion, and given the urgency of the matter it was my view that there was need to deal with all the preliminary issues raised and the merits in order to make a definitive determination for the parties. It is clear that there was commercial urgency and for that reason it was not prudent, in my view, to dispose of the matter on technicalities.</p> <p><strong>Costs of suit</strong></p> <p>            Each party prayed for an award for costs on the legal practitioner and client scale.  The question of punitive costs arises where a party has been unduly unreasonable or has unnecessarily put the other party out of pocket.  Such costs are awarded where an application or a party’s response to an applicant is motivated by malice.  Where a party has adopted a wrong procedure and prejudiced the other side such costs may also be awarded.  In this matter the matter is of extreme financial and commercial importance to both sides in the dispute.  I find no sound legal or factual basis to make an order against the losing party for costs on the legal practitioner and client scale.</p> <p><strong>Disposition</strong></p> <p>            Having found that a binding contract of sale was concluded by the parties when the respondent issued the two pro-forma invoices to the applicant and that the applicant submitted the two pro-forma invoices to Fidelity for the release of funds, I make the following order:</p> <ol> <li>The application for a declaratur and consequential relief be and is hereby dismissed.</li> <li>The applicant shall bear the costs of suit.</li> </ol> <p><em>Ncube &amp; Partners</em>, applicant’s legal practitioners</p> <p><em>Messrs Coghlan &amp; Welsh,</em> respondent’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/3/2018-zwbhc-3.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=28605">2018-zwbhc-3.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/3/2018-zwbhc-3.pdf" type="application/pdf; length=179274">2018-zwbhc-3.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/contract">CONTRACT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/terms-and-conditions">Terms and Conditions</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/declaratory-order">Declaratory order</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/dispute-facts-practice-and-procedure">Dispute of facts (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/joinder-parties">Joinder of parties</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/non-joinder">non-joinder</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/what-constitutes-urgency-urgent-application">what constitutes urgency (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/constitutional-court-zimbabwe/2013/3">Muzanenhamo v Officer In Charge CID (Law &amp; Order) &amp; Others (CCZ 287/12) [2013] ZWCC 3 (13 November 2013);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div></div></div> Wed, 11 Apr 2018 08:43:34 +0000 admin 8706 at https://old.zimlii.org