when may be ordered (Joinder of parties) https://old.zimlii.org/taxonomy/term/11001/all en Chinosengwa v Mawere & 3 Ors (HB 160-20, HC 1138/20) [2020] ZWBHC 160 (30 July 2020); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2020/160 <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>TICHAONA CHINOSENGWA </strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>BHERI MAWERE </strong></p> <p> </p> <p><strong>And </strong></p> <p> </p> <p><strong>GARIKAI NGOMA </strong></p> <p> </p> <p><strong>And </strong></p> <p> </p> <p><strong>MINISTER OF MINES &amp; MINING DEVELOPMENT (N.O)</strong></p> <p> </p> <p><strong> And </strong></p> <p> </p> <p><strong>OFFICER COMMANDING, KWEKWE DISTRICT (N.O)</strong></p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>DUBE-BANDA J</p> <p>BULAWAYO, 23 AND 30 JULY 2020</p> <p> </p> <p><strong>Urgent chamber application </strong></p> <p> </p> <p><em>K. Mahereni, </em>for the applicants</p> <p><em>S.T. Farai,</em> for the respondents</p> <p> </p> <p> </p> <p><strong>DUBE-BANDA J:</strong> This is an urgent application. At the commencement of the hearing I informed the legal practitioners for the parties that I would first hear argument on the preliminary points raised by the 2nd respondent. After hearing argument on the preliminary points I reserved judgment. This is the judgment on the preliminary points raised by the 2nd respondent.</p> <p> In this urgent camber application, the applicant seeks an order drawn in the following terms:-</p> <p>Terms of the final order sought</p> <p>That you show cause to this Court why a final order should not be made in the following terms:</p> <ol> <li>That the 1st and 2nd respondents be and are hereby permanently interdicted from interfering with the applicant’s mining operations at Eva Mine, registration number 31580, Kwekwe  District.</li> <li>That the applicant’s registration papers in respect of Eva Mine, Registration Number 31580, Kwekwe District be and hereby declared valid.</li> <li>That 1st and 2nd respondents be and hereby ordered to pay costs on attorney and client scale.</li> </ol> <p> </p> <p>Interim relief granted </p> <p>Pending the confirmation or discharge of the order, applicant is granted the following interim relief:</p> <ol> <li>The first and 2nd respondents actions be and hereby declared illegal.</li> <li>The 1st and 2nd respondents, their employees, agents or assignees be and are hereby interdicted from entering, disturbing, carrying out any mining activities whatsoever or mining operations at Eva Mine, registration number 31580, Kwekwe District pending the finalisation of this matter.</li> <li>The sheriff of Zimbabwe by the powers that vest in his office with the assistance of the members of the Zimbabwe Republic Police be and is hereby authorised to enforce clause (a) above in the event of non-compliance with the court order.</li> </ol> <p> </p> <p>Service of provisional order</p> <p>The provisional order together with all supporting documents shall be served on the respondents by the Sheriff or applicant’s legal practitioners.</p> <p>            This application is opposed by the 2nd respondent.</p> <p>In his opposing papers second respondent raised three preliminary points being, the alleged lack of urgency of the application; misjoinder and non-joinder; and that they are material disputes of fact which could not be resolved on the papers before court. At the hearing, I asked Ms<em> Mahereni </em>counsel for the applicant whether the interim order sought was competent. Mr <em>Farai</em> then picked and ran with this issue, making the point that the interim relief sought was incompetent in that it seeks a final relief disguised as an interim relief.</p> <p>On the facts of this case the preliminary point relating with misjoinder and non-joinder has no merit. The preliminary point relating to the material dispute of factsis allied with the issue of urgency, I will therefore not deal with it as a stand-alone point. The resolution of the issue of urgency resolves the issue in respect of the material dispute of fact.</p> <p>In the certificate of urgency, signed by a legal practitioner in terms of rule 242 (2) (b) of the High Court Rules, 1971 (Rules) it is alleged that:</p> <ol> <li>On the 25th June 2020, the applicant was issued with a Certificate of Registration in respect of Eva Mine, Registration Number 31580 situated in the district of Kwekwe. He subsequently obtained an inspection certificate in respect of the mine on the 30th June 2020.</li> <li>On the 4th July 2020 the applicant discovered that 1st and 2nd respondents were carrying out mining operations on his mine when he had gone to the mine in a bid to prepare for the construction of a power line on the mine.</li> <li>He tried to stop the employees of the 1st and 2nd respondents but he was restrained. He immediately sought and gathered information concerning the mining operations and he learnt that the 1st and 2nd respondents were masquerading as legitimate owners of the mine.</li> <li>He approached the 1st respondent and showed him his registration papers but that did not move him as he stated that they were also issued with a certificate of registration in respect of the same mine by third respondent. The papers however are not in respect of Eva Mine.</li> <li>The applicant tried to resolve the dispute amicably but the 1st and 2nd respondents threatened the applicant with violence and forbidden from visiting the mine or making any developments on the mine.</li> <li>As a result, the applicant wrote a letter to the third respondent on the 6th July 2020 appealing for help to resolve the mine dispute. The third respondent was not forthcoming as he never responded to the applicant’s letter. The 1st and 2nd respondents got word that the applicant had filed a complaint with the third respondent and since then, they have been threatening the life and the livelihood of the applicant by death threats.</li> <li>The applicants also approached the 4th respondent for help but was dismissed on the basis that this was a civil matter which they could only act on an order from this court.</li> <li>As a result of the 1st and 2nd respondent’s interference, the applicant’s plans to put infrastructure to commence the mining operations at the mine have been put on hold. He has no access to the mine. He invested a huge sum for the construction of the powerline and Zimbabwe Electricity Transmission and Distribution Company (ZETDC) works with timelines such that if applicant is delayed, he will lose financially. He had already purchased the materials needed which are lying idle and at a risk of being stolen.</li> <li>The applicant faces irreparable harm if this court does not grant an order as set out in the draft to the application interdicting the 1st and 2nd respondents from interfering with the mining developments and operations of the applicant.</li> <li>The applicant has exhausted the remedies available at his disposal and it appears that the only route left is that of an interdict by this court.</li> <li>Looking at the totality of the facts presented by applicant and the papers attached, it appears that the applicant established a legitimate right to mine and also acted with haste in enlisting the present proceedings for the relief sought.</li> <li>Further, the balance of convenience favours the granting of the order in light of the fear of attack on the applicant, theft of gold which is a finite resource, prohibition from his mine by the 1st and the 2nd respondents and the circumstances of this case are such that the matter should jump the queue.</li> </ol> <p>This court enjoys a discretion in urgent applications to authorise a departure from the ordinary procedures that are prescribed by the Rules. However the court is usually hesitant to dispense with its ordinary procedures, and when it does, the matter must be so urgent that ordinary procedures would not suffice to meet the justice of the case.</p> <p>In the ordinary run of things, court cases must be heard strictly on a first come first serve basis. It is only in exceptional circumstances that a party should be allowed to jump the queue on the roll and have its matter heard on an urgent basis. The <em>onus </em>of showing that the matter is indeed urgent rests with the applicant. An urgent application amounts to an extraordinary remedy where a party seeks to gain an advantage over other litigants by jumping the queue. And have its matter given preference over other pending matters. This indulgence can only be granted by a judge after considering all the relevant factors and concluding that the matter is urgent and cannot wait. See <em>Kuvarega</em>v <em>Registrar General and Another </em>1998 (1) ZLR 188.</p> <p>In assessing whether an application is urgent, this court may consider a number of factors, being whether the urgency was self-created; the consequence of the relief not being granted and whether the relief would become irrelevant if it is not immediately granted. To pass the urgency test, applicant must show that there is an imminent danger to existing rights and the possibility of irreparable harm. See <em>General Transport &amp; Engineering (Pvt) Ltd &amp;Ors</em>v <em>Zimbank</em>1998 (2) ZLR 301.To pass the test, good cause must be shown for the applicant to dislodge other litigants who are in the queue.</p> <p>The certificate of urgency must create a factual basis of urgency. It must show that the matter is urgent and cannot wait. In <em>casu</em>, it is alleged in the certificate that the respondents are posing an unlawful threat to the applicant and to his mining claim. Applicant have produced proof of ownership of Eva Mine by way of registration certificate. According to him he got the certificate of registration of Eva Mine on the 25 June 2020, he says on the 4th July when he arrived at the mine he was surprised to see mining operations already taking place. The people present were about forty in total, and there was a hammer mill operating which was crushing stones. He says he was advised by the people thereat that the mine belonged to first and second respondents. He says he was told that the approximately forty people were mine workers. Applicant says he contacted first respondent, who told him that he was the owner of the mine. He says first respondent produced what he considered proof of ownership of the mine, however applicant noted that the papers did not relate to Eva Mine, and the coordinates were different from those of Eva Mine.</p> <p>Second respondent has produced a registration certificate of Ilamabat 6 Mine. Before court there is a copy of the registration certificate, however during the hearing second respondent’s exhibited an original copy of the certificate, it shows the following: that Johnson Rex Mawere is the registered holder of a block consisting of six G/Reef claims Ilamabat 6 Mine. This mine was registered on the 23rd February 2006. Second respondent contends that they have been working on the same mine from 2006 to date. Respondents have a valid inspection certificate for the mine they are working on which expires on the 23rd February 2021.</p> <p>Second respondent contends that when applicant came to their mine, he showed him (applicant) the coordinates of Ilamabat 6 Mine which are difference from the coordinates of Eva Mine, which applicant avers he owns. Applicant confirms that the coordinates are different. According to the respondents Ilamabat 6 Mine was never forfeited, to make the claim available for pegging. Respondents have produced proof, by way of a “cash payment voucher depository copy” to show that they have always been selling gold extracted from their mine to Fidelity Printers long before applicant appeared on the scene. The cash payment voucher is dated 19 April 2018.</p> <p>Respondents contend that they have been conducting mining operations at Ilamabat 6 from 23rd February 2006. There are hammer mills, stamp mills, carbon rooms, leaching tanks and a compound consisting of twelve houses which are visible for anyone to see them. The houses were erected more than ten years ago.  Applicant confirms that he saw approximately forty mine workers and a hammer mill.</p> <p>Applicant got his registration certificate on the 25 June 2020. His certificate relates to Eva Mine. Respondents got their registration certificate on the 23rd February 2006. Respondents have placed before court proof of payment of inspection fees shown by the inspection certificate. There is proof of sale of gold to Fidelity Printers long before applicant emerged on the scene. There is mining infrastructure, and there are approximately forty mine workers on the scene.</p> <p>Applicant seeks a provisional order/ interim relief. The definition and purpose of a provisional order is diametrically different from that of a final order. C. B Prest in his book, <em>The Law and Practice of Interdicts</em><em>8 </em>defines and explains the purpose of a provisional order as follows:</p> <p> </p> <p>“A provisional order is a remedy by way of an interdict which is intended to prohibit all <em>prima facie </em>illegitimate activities. By its very nature it is both temporary and provisional, providing (<em>interim</em>) relief which serves to guard the applicant against irreparable harm which may befall him, her or it, should a full trial of the alleged grievance be carried out. As the name suggests, it is provisional in nature, as the parties anticipate certain relief to be made final on a certain future date upon which the applicant has to fully disclose his, her or its entitlement to a final order that the interim relief sought was ancillary to.”</p> <p> </p> <p>The purpose of an interlocutory <em>injunction </em>is to preserve the position until the rights of the parties can be determined at the hearing of the suit. An applicant seeking an interlocutory interdict must be able to show a sufficiently arguable claim to a right to the final relief in aid of which the interlocutory relief is sought.</p> <p>This interim relief sought by the applicant is designed to subvert, undermine and disrupt the <em>status quo</em>. If granted it would result in the eviction of the respondents from where they are conducting mining operations.  That is not the purpose of a provisional order.</p> <p>In fact, granting such an order, would be in essence granting a final order through the proverbial “back door.” Applicant would have achieved what he desires in the final relief sought, that respondents be removed and evicted from the mining location where they are carrying out operations. If at this stage, as sought by the applicant this court declares the actions of the 1st and 2ndrespondents’ illegal, what will be there to decide on the return-day? An interim interdict is not designed to get a litigant an eviction. A court must refuse to be hoodwinked into granting a final order disguised as a provisional order.</p> <p>On the facts of this case I take the view that either applicant has failed to read the coordinates of his mining claim correctly and ended up at a wrong location, or there is some kind of mix up somewhere, either way this does not make this matter urgent.  This court cannot authorise the eviction of the respondents from a mine they allege they have been working on from 2006. Again this court cannot grant an eviction order by way of an urgent application. This application does not pass the urgency test.  Applicant has failed show that there is an imminent danger to his existing rights. This is not a case which should have seen the doors of this court by way of an urgent application.</p> <p>Mr <em>Farai</em> for the second respondent sought that the application be dismissed with costs. I cannot dismiss this matter at this stage for the reason that I have not considered the merits of this case.  I need not bang the door completely against the applicant, I intend to leave a window open, to give him an opportunity to try to vindicate his rights, should he so wish. In doing so he must come to this court <em>via </em>some other route, but not <em>via </em>an urgent application.</p> <p>This matter was heard on the 23rd July 2020. After the hearing I reserved judgment. hile I was preparing this judgment I saw an answering affidavit signed and filed on the 27th July 2020. I ignored this affidavit for the following reason; the matter was heard and concluded on the 23 July, what remained outstanding was the judgment. Again applicant’s counsel did not indicate at the hearing that she intended to file such an affidavit. A party cannot be permitted to file further pleading after the hearing of the matter, without warning to the court and to the opposing litigants.  Second respondent did not have an opportunity to tailor his address to meet the averments contained in such an answering affidavit. To consider the averments contained in this answering affidavit would be unfair to the other litigants. There must be finality to litigation.</p> <p>The applicant has failed to obtain the relief he sought from this court. There are no special reasons warranting a departure from the general rule that costs should follow the result. The second respondent is therefore entitled to his costs of suit.</p> <p> </p> <p><strong>Disposition </strong></p> <p> </p> <p>In the result, I order as follows:</p> <p> </p> <p>That this application is not urgent is accordingly struck off the roll of urgent applications with costs.</p> <p> </p> <p> </p> <p><em>Mutatu&amp; Partners</em>, applicants’ legal practitioners</p> <p><em>Farai &amp; Associates Law Chambers</em>, 2ndrespondents’ 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/2020/160/2020-zwbhc-160.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=25820">2020-zwbhc-160.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/2020/160/2020-zwbhc-160.pdf" type="application/pdf; length=342488">2020-zwbhc-160.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/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/when-may-be-ordered-joinder-parties">when may be ordered (Joinder of parties)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/order-practice-and-procedure">Order (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/provisional-order-see-practice-and-procedure-provisional-order">provisional order See PRACTICE AND PROCEDURE (Provisional order)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/provisional-order">Provisional order</a></li></ul></span> Mon, 03 Aug 2020 17:44:33 +0000 Sandra 9815 at https://old.zimlii.org Balwearie Holdings (Private) Limited v Jofris & 2 Ors (HH 403-20, HC 2529/20) [2020] ZWHHC 403 (16 June 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/403 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>BALWEARIE HOLDINGS (PRIVATE) LIMITED</p> <p>versus</p> <p>NEVER JOFRIS                   </p> <p>and</p> <p>ZEBEDIAH PHIRI</p> <p>and</p> <p>JOHN GWISALU</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUSITHU J</p> <p>HARARE, 28 May 2020; 5 June; 10 June &amp; 16 June 2020</p> <p> </p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p> </p> <p><em>Advocate A Saunyama and Ms G Chitsaka, </em>for the applicants</p> <p><em>Mr V Mhungu</em>, for the respondents</p> <p> </p> <p>            MUSITHU J: On 22 May 2020 applicant filed this urgent chamber application seeking relief set out in the draft provisional order as follows:</p> <p>“TERMS OF THE FINAL ORDER </p> <p>               </p> <ol> <li>Respondents be and are hereby interdicted and barred from visiting Applicant’s immovable property namely the Remainder of Westhey of Sabonabon Estate Kadoma.</li> <li>Respondents be and are hereby prohibited from disposing Applicant’s agro Plots situated at the Reminder of Westhey of Sabonabon Estate Kadoma.</li> <li>Respondents to pay costs of suit.  </li> </ol> <p> </p> <p>INTERIM RELIEF GRANTED</p> <p>Pending the finalization of this matter Applicant be and is hereby granted the following interim relief.</p> <ol> <li>Respondents be and are hereby barred and interdicted from entering any part of Applicant’s premises known as the Reminder of Westhey of Sabonabon Estate Kadoma.</li> <li>Respondents be and are hereby barred and interdicted from selling Plots belonging to Applicant situate at the Reminder of Westhey of Sabonabon Estate Kadoma and presenting themselves as employees of Balwearie Holding (Private) Limited….”</li> </ol> <p> </p> <p>The application was placed before me on 26 May 2020 and I proceeded to set down for hearing on 28 May 2020. On the day of the hearing, a Mr <em>Magodora </em>appeared in court and advised that he was representing clients who had an interest in the matter though they were not cited in the application. They wished to be joined in the application as respondents. His clients had just received evictions summons from applicant in connection with the same piece of land which is at the centre of the dispute between applicant and the cited respondents. With the consent of the parties’ lawyers, I postponed the matter to 5 June 2020 to allow for engagement between the parties. The postponement was also meant to afford Mr <em>Magodora</em> an opportunity to make an informed position on behalf of his clients after studying the application. To that end, I directed him to update the court and the other parties herein of his clients’ position on or before 3 June 2020.  </p> <p>            On 5 June 2020, and a few minutes before the commencement of the hearing, I received from Mr <em>Magodora,</em> a 50 paged notice of opposition (inclusive of supporting affidavits and annexures), prepared on behalf of 72 respondents. At commencement of the hearing, Ms <em>Saunyama</em> appearing for the applicant objected to the filing of the notice of opposition by the 72 respondents, before their joinder to the application in terms of <em>order 13 rule 85</em>. In reply, Mr <em>Magodora </em>conceded that the 72 respondents were not cited in the urgent chamber application, and neither had they been joined to the proceedings. They were improperly before the court and they could not be heard. I excused Mr <em>Magodora</em> from taking further part in the proceedings.</p> <p>            A notice of opposition was filed on behalf of the cited respondents on 28 May 2020. Only first respondent deposed to an opposing affidavit. The affidavit does not state whether he also speaks on behalf of second and third respondents. The opposing affidavit, raises the following points <em>in limine</em>. Absence of authority to depose to the founding affidavit; defective certificate of urgency; absence of urgency and defective draft order. The opposing affidavit does not address the merits of the application, except to state that <em>“save for admissions expressly made above, I deny each and every averment made by the Applicant and put it to the strictest of proof”</em>. Towards end of day on 4 June 2020, a day before the hearing on 5 June 2020, I received in chambers a supplementary affidavit filed by first respondent. It came at the same time as the applicant’s answering affidavit. The supplementary affidavit introduced a new ground of objection. The absence of <em>locus standi</em> on the part of applicant. I shall revert to these matters latter in the judgment after a brief exposition of the background facts.</p> <p><strong>BACKGROUND FACTS</strong></p> <p>            Believe Guta deposed to the applicant’s founding affidavit in his capacity as applicant’s company secretary. Applicant claims that sometime in 1992 it purchased a piece of land known as the Remainder of Westhey of Sabonabon Estate Kadoma (the property). The property measures 97,0653 hectares and is situated in the city of Kadoma. Applicant was granted permission by the Municipality of Kadoma to subdivide the property through permit number TP/SUB/1/97. The effect of the subdivision was to create further pieces of land called stands 4497 – 4674 Kadoma Township and R/E of Westhey of Sabonabon Estate. In his capacity as company secretary, Guta asserts that he makes regular visits to the property to check on progress being made by surveyors and engineers engaged in the servicing of the stands. The last such visit was on 29 March 2020, a day before the COVID 19 National Lockdown commenced.</p> <p>            On 17 May 2020, Guta claims to have visited the property to check on progress as aforementioned. He met Agenia Muzanenhamo, a resident at the property. Muzanenhamo informed Guta that during the lockdown, respondents made several visits to the property during which time they presented themselves as having the mandate to sell the subdivided stands on applicant’s behalf. The trio offered to regularize Muzanenhamo’s stay at the property if she paid them a US$1000.00 deposit, as well as sign an agreement of sale. The respondents also frequented one Mrs Manjera’s residence during their visits. Guta claims that Mrs Manjera is an illegal occupant of one of the stands. Muzanenhamo attached a supporting affidavit which essentially corroborates Guta’s account. She adds that when respondents offered to regularize her stay at the property, she informed them that she did not have the required deposit.  On their subsequent visits, respondents would enquire if she had managed to raise the required deposit. She still did not have the money. Respondents also came with prospective buyers who wanted to view some of the stands.  </p> <p>            A visit by Guta to Manjera’s property revealed that she was related to second respondent. She also confirmed that respondents had visited her residence on numerous occasions during the lockdown. They presented themselves as employees of applicant. Guta claims he then called first respondent on a mobile number supplied by Muzanenhamo, demanding to know who had authorized him to sell applicant’s stands. First respondent was hostile and allegedly threatened Guta on the phone. All the respondents are unknown to applicant. Applicant believes that if they are not restrained, they will swindle unsuspecting buyers of their cash through the unlawful sale of applicant’s stands. Guta reported respondents at Eiffel Flats Police station on 19 May 2020. </p> <p>            Applicant seeks an interdict barring respondents from disposing of its stands, in order to preserve its property as well as protect innocent buyers. Applicant also wants respondents barred from visiting the property.</p> <p>            The application was accompanied by a certificate of urgency from Angela Matarutso. She certified the urgency of the matter as follows:</p> <p>“I have read the Applicant’s founding affidavit, the supporting affidavit and annexures and I certify that the matter is urgent for the following reasons;</p> <ol> <li>Applicant is the registered owner of a certain piece of land known as Remainder of Westhey of Sabonabon Estate Kadoma.</li> <li>Respondents who are not employees or agents of Applicant took advantage of Applicant absence from the immovable property during the initial phase of the COVID 19 lockdown period and attempted to sell Applicants agro plots.</li> <li>Applicant only became aware of the Respondent’s activities at the immovable property when its employees visited the property on the 17th of May 2020 and immediately took action to protect Applicant’s interests.</li> <li>The only way that Applicant can adequately protect its interest in the immovable property and protect unsuspecting members of the public is through an urgent interdict prohibiting Respondents from visiting Applicants immovable property and disposing Applicants plots.</li> <li>If this matter is not allowed to jump the queue of other matters awaiting hearing on the ordinary roll Applicant and unsuspecting members of the public stands to suffer irreparable harm and prejudice and the relief that Applicant currently prays for will no longer be available.</li> <li>For the above reasons I certify this matter to be urgent…..”</li> </ol> <p> </p> <p>For convenience, I asked counsel to address me on the points <em>in limine</em> and the merits at the same time. The matter would be disposed of on the basis of the preliminary points if I found them meritorious.</p> <p><strong>POINTS <em>IN LIMINE </em></strong></p> <p><strong><em>Absence of Locus Standi</em></strong></p> <p>As already stated, first respondent’s supplementary affidavit introduces a new ground of objection. It challenges applicant’s <em>locus standi</em>. First respondent submits he established that applicant was registered in 2020 under company number 1898/2020. Apparently at the time of applicant’s registration, there was already another entity with a similar name registered under company number 45/1977. The position was confirmed by the Registrar of Companies in a letter attached to the supplementary affidavit. The letter of 2 June 2020 reads as follows:</p> <p>           </p> <p> </p> <p> </p> <p> </p> <p>“……………</p> <p>Kindly be advised that</p> <ol> <li>There are two different companies registered under the name Balwearie Holdings (Private) Limited, that is 1898/2020 and 45/1977.</li> <li>There was an error in the registration of Balwearie Holdings (Private) Limited 1898/2020 due to the fact that there was already an existing company using the same name.</li> <li>The re-registration process has not yet commenced as required by the New Companies and Other Business Entities Act Chapter 24:31.</li> <li>Companies registered under company numbers 45/1977 and 1898/2020 are completely different companies</li> </ol> <p>…………………………..” (Underlining for emphasis).</p> <p> </p> <p>Mr <em>Mhungu</em> submitted that a company incorporated in 2020 could not have acquired land in 1992. He further submitted that the property was owned by Balwearie Holdings (Pvt) Ltd registered under company registration 45/1977 (hereinafter referred to as Balwearie 1977), and not the applicant. Applicant was trying to reap where it did not sow. The registration of applicant under 1898/2020 was a deliberate ploy to assume ownership of the property unlawfully. In paragraph 9 of the supplementary affidavit, first respondent claims to be an employee of Balwearie 1977, and that he is authorized in that capacity to represent this entity. Nothing was attached to the supplementary affidavit to back up these claims.</p> <p>            In reply Ms <em>Saunyama</em> argued that the supplementary affidavit was not properly before the court. Supplementary affidavits are permitted in very exceptional circumstances, all the more when they are tendered after an answering affidavit has been filed. A party that seeks to file such affidavit must provide a satisfactory explanation that negatives bad faith or deliberate failure to act timeously. The court must also be satisfied that no prejudice will be occasioned to the opposing party through its filing. The manner in which first respondent acted violated the procedure on concatenation of affidavits.  There is no room for the filing of a supplementary affidavit without the leave of court. The effect of this additional affidavit was to introduce a fresh line of defence and an entirely new matter which did not afford applicant adequate opportunity to refute that submission. Ms <em>Saunyama</em> further submitted that the supplementary affidavit was intended to cause unnecessary confusion as well as cure defects in the opposing affidavit in which first respondent had sorely committed to four grounds of objection. First respondent had not even explained the capacity in which he was employed by Balwearie 1977.</p> <p>            In the answering affidavit, applicant explains the fate of Balwearie 1977 as follows. The company was deregistered in terms of section 283 of the then <em>Companies Act</em><a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a><em>, </em>sometime in 1981. As proof of deregistration, applicant attached an extract of the Government Gazette of 18 December 1981, which contains General Notice 1178 of 1981. The notice carries a list of companies to be struck off the register of companies. The relevant part reads as follows:</p> <p>“IT is hereby notified in terms of section 283 of the Companies Act, [Chapter 190], that at the expiration of three months from the date of publication of this notice, the names of the companies set out in the Schedule will, unless cause is shown to the contrary, be struck off the register, and the said companies will thereby be dissolved”</p> <p> </p> <p>Balwearie 1977 is one of the companies listed in the notice. Its date of registration is stated as 14 February 1977. What is however not clear is what befell the company after the expiration of the three months’ notice. Contrary to applicant’s submission, the gazette of 18 December 1981 is no proof of deregistration. It merely called upon the companies listed to show cause why they should not be struck off the register after the expiry of three months’ notice. Applicant avers that first respondent is manipulating the papers of Balwearie 1977 to give an impression that the company still exists yet it was deregistered. First respondent denies that Balwearie 1977 was deregistered, and points to the letter of 2 June 2020 from the Registrar of Companies.</p> <p>            In order to explain the acquisition of the property by applicant 1992, Ms <em>Saunyama</em> applied to tender a memorandum of agreement of sale between Gatooma Development Corporation (Private) Limited and William Guta  (acting as a promoter of a company about to be formed “Balwearie Holdings (Private) Limited”). She also applied to tender applicant’s memorandum and articles of association. Mr <em>Mhungu </em>vehemently opposed the tendering of the agreement of sale between Gatooma Development Corporation (Private) Limited and William Guta (the agreement of sale) and the memorandum and articles of association. While justifying the tendering of the supplementary affidavit on the basis that it raised a point of law which can be advanced at any stage of proceedings in line with the <em>dictum</em> in <em>Muchakata v Netherburn Mine<a href="#_ftn2" name="_ftnref2" title="" id="_ftnref2"><strong>[2]</strong></a></em>, Mr <em>Mhungu</em> argued that the same could not be said of the agreement of sale. He submitted that the agreement ought to have been disclosed in the founding affidavit in order to explain how a company formed in 2020 acquired a property in 1992.</p> <p>In the exercise of my discretion in terms of <em>Order</em> 32 <em>Rule</em> 246 (1)(a)<a href="#_ftn3" name="_ftnref3" title="" id="_ftnref3">[3]</a>, I allowed the production of the supplementary affidavit, applicant’s memorandum and articles of association and the agreement of sale, to form part of the evidence before me. The agreement of sale and applicant’s memorandum and articles of association speak to matters raised in first respondent’s supplementary affidavit. The agreement of sale is concerned with the purchase of the property by applicant represented by William Guta acting as promoter of the company still to be formed. Such contracts are permissible under section 47 of the old <em>Companies Act<a href="#_ftn4" name="_ftnref4" title="" id="_ftnref4"><strong>[4]</strong></a></em>. In <em>Ian Spence Gray &amp; Another v The Registrar of Deeds<a href="#_ftn5" name="_ftnref5" title="" id="_ftnref5"><strong>[5]</strong></a></em>, GOWORA J (as she then was), stated the position of the law on pre-incorporation contracts as follows: </p> <p>“The issue has received attention from the learned authors Nkala and Nyapadi in their book Company Law in Zimbabwe 1995 Edition. The view of the learned authors is that a company can adopt contracts made on its behalf before incorporation provided that it (the company) meets the following five conditions- viz; that the contract is in writing; the person making the contract on behalf of the company to be formed, irrespective of how he describes himself must at least profess to act as agent for the company; the memorandum and articles of association must contain at the time of incorporation the contract as one of its objects; the contract must be delivered to the registrar simultaneously with the memorandum and articles of association and the contract must be legally enforceable. This view expressed on pp55-59 is in accord with the provisions of the Act”</p> <p> </p> <p><em>Clause ‘q’</em> of applicant’s memorandum of association states as one of applicant’s objects:</p> <p>“To manage land, buildings and other property whether belonging to the company or not, …………Also to adopt pre-incorporation contract in respect of a property known as the remainder of Westhey of Sabonabon Estate. Deed No. 4110/92”  (Underlining for emphasis)</p> <p> </p> <p>The agreement of sale ties in with the deed of transfer of the property attached to the applicant’s founding affidavit. I must state that at this stage I am not required to interrogate the competing claims in these two companies, or put differently which of the two Balwearies is the legitimate one, and concomitantly the lawful title holder of the property. That is a matter for the return day or for another forum. All that is required of me at this stage is to determine whether applicant has established a <em>prima facie</em> case that entitles it to the remedy it seeks. The papers that have been placed before me show that applicant’s name corresponds with the name on the title of the property. The memorandum and articles of association authorized applicant to adopt the pre-incorporation contract in respect of the same property once it was incorporated. Accordingly, I find that applicant has <em>locus standi</em> to institute these proceedings. The point <em>in limine</em> is accordingly dismissed.</p> <p><strong><em>Absence of authority to depose to the founding affidavit</em></strong></p> <p>            In his opposing affidavit first respondent submits that Believe Guta’s founding affidavit is defective as he is not applicant’s company secretary. He claims that applicant’s company secretary is Sabre Services (Private) Limited. To buttress his point, he attached a Form CR14 date stamped 9 January 2009 by the Registrar of Companies. It was presented for filing by Sabre Services (Pvt) Ltd (Sabre). It cites the company number as 45/77. The directors of the company (Balwearie 1977) are listed as Zane Patrick HEYNS and Lorraine Elizabeth HEYNS. As at 24 July 2008, their residential address/business address is stated as Balwearie Farm, Chegutu. Further, first respondent asserts that the board resolution attached to the founding affidavit is fraudulent. The two directors did not participate at the meeting which gave birth to the attached resolution, and neither did they sign the extract of the minutes of the said meeting. Consequently, the application was not sanctioned by the applicant.</p> <p>In reply, applicant averred that Sabre is unknown to it. It claims that Sabre is a creation of the respondents. Applicant also approached the Registrar of Companies seeking the constitutive documents for Balwearie Holdings (Private) Limited. The same registrar who was approached by first respondent furnished applicant with the following documents. Form CR14 which cites 1898/2020 as the company number. The directors are listed as Believe Guta and Christabel Mafirakurewa all of No 675 Victory Park, Kadoma. The company secretary is cited as Believe Guta. Also attached is a certificate of incorporation issued on 21 January 2020. Ms <em>Saunyama</em> submitted that first respondent did not have the standing to speak on behalf of Balwearie 1977, if at all it existed. He did not attach any document to assert his employment status with the company. Nothing connects him to Balwearie 1977. If the directors of the company existed as per the CR14 attached to his affidavit then they were expected to confirm first respondent’s allegations. He appeared to be on a frolic of his own. That raised questions about his interest in this matter.</p> <p>I find the submission persuasive. I have already intimated that there is a dispute regarding the status of the two companies that share the same name, and lay claim to the same property. Guta’s authority to represent applicant cannot be impugned on the basis of protestations by first respondent whose own association with Balwearie 1977 is questionable. In any event, the letter of 2 June 2020 from the Registrar of Companies attached to first respondent’s supplementary affidavit suggests that applicant and Balwearie 1977 are completely different companies. If they are different then first respondent cannot claim to speak on behalf of both entities. The objection is without merit and is dismissed.</p> <p><strong><em>Urgency </em></strong></p> <p>Mr <em>Mhungu</em> submitted that the subject matter of the application is land. It is not a fungible. No irreparable harm can be suffered by applicant if the matter joins the queue of ordinary applications. In reply Ms <em>Saunyama</em> insisted the matter is urgent. Respondents were selling applicant’s stands claiming to be doing so on behalf of applicant. They did not have authority to represent applicant. There was also potential for material and reputational harm to applicant. Third parties could be misled by respondent’s conduct. There was no point in waiting and watching respondents persist with an illegality or self-help, and then approach the court when damage had been done.  In any case, commercial interests constituted a valid ground for seeking relief on an urgent basis. The court was referred to the case of <em>Silver’s Trucks (Pvt) Ltd &amp; Anor </em>v <em>Director of Customs and Excise<a href="#_ftn6" name="_ftnref6" title="" id="_ftnref6"><strong>[6]</strong></a>. </em>Whether or not a matter is urgent is an issue for exercise of discretion by the presiding judge. In <em>Econet Wireless (Pvt) Limited v Trustco Mobile (Proprietary) Limited &amp; Another</em><a href="#_ftn7" name="_ftnref7" title="" id="_ftnref7">[7]</a><em>, </em>GARWE JA made the following point on urgency:</p> <p>“It is clear that in terms of Rules 244 and 246 of the High Court Rules the decision whether to hear an application on the basis of urgency is that of a judge.  The decision is one therefore that involves the exercise of a discretion….”</p> <p> </p> <p>I am satisfied that the matter is urgent. In any case, the essence of first respondent’s objection is not so much about a delay in the launching of the application by applicant. It is about the nature of the property in dispute. I am satisfied that applicant did not have to remain idle while its rights in the property were being violated. That the subject matter of the dispute is land does not disqualify an interested party from approaching the court on an urgent basis to forestall the alleged self-help. The preliminary point is without merit and is accordingly dismissed.</p> <p>            First respondent had in his affidavit averred that the certificate of urgency is defective. Mr <em>Mhungu </em>did not pursue the point in his oral address. I considered the objection abandoned.</p> <p><strong><em>Non Joinder of the Registrar of Companies and Balwearie 1977</em></strong></p> <p>Mr <em>Mhungu</em> submitted that the matter cannot be resolved without submissions from the Registrar of Companies. There was also need to cite Balwearie 1977 since the Government Gazette did not explain whether it was subsequently deregistered or not. The Registrar of Companies would articulate the correct position regarding the two companies. Ms <em>Saunyama </em>on the other hand argued that Balwearie became defunct after 1981. In any event, the Registrar of Companies would not have registered the applicant if Balwearie 1977 still existed.  </p> <p>I am not persuaded by the submission that Balwearie 1977 ceased to exist in 1981, for reasons that I have already stated. There is clearly a dispute pertaining to the status of the two companies and their ownership. That is an argument for the return day. I am however not convinced that the failure to cite both the registrar of companies and Balwearie 1977 is fatal to the application. At this stage I am not required to decide which of the two entities is legitimate, and consequently the rightful owner of the property. The Registrar of Companies has already articulated his position on the issue by suggesting the two entities are different. First respondent has been far from convincing in expressing his association with Balwearie 1977. In any case, if first respondent was genuinely authorized to represent Balwearie 1977, then he ought to have sought its joinder in these proceedings. He cannot expect applicant to do so when the same applicant claims Balwearie 1977 does not exist. There is no merit in this objection and it is accordingly dismissed.</p> <p><strong><em>Defective Draft Order </em></strong></p> <p>Mr <em>Mhungu</em> submitted that the application is defective for want of a proper draft order. The interim relief sought is essentially similar to the terms of the final order sought. The application was therefore dismissible on that basis alone. The court was referred to the judgment by CHINAMORA J in <em>Ecocash Zimbabwe (Private) Limited v Reserve Bank of Zimbabwe<a href="#_ftn8" name="_ftnref8" title="" id="_ftnref8"><strong>[8]</strong></a></em>, as authority for the proposition that such defect renders the application dismissible. Ms <em>Saunyama </em>argued that such defect is not fatal but is remediable through an amendment which the court has discretion to accept or reject. She applied that the terms of the final order be amended by the repeal of paragraphs 1 and 2 and their substitution with <em>“First, second and third respondents are prohibited from transferring title in any part of the remainder of Westhey of Sabonabon Estate Kadoma.”</em> Paragraph 3 would remain as it is.</p> <p>            First respondent’s objection brings to the fore the significance of <em>Order </em>32 <em>Rule</em> 246 (2). It reads:</p> <p>“Where in an application for a provisional order the judge is satisfied that the papers establish a <em>prima facie</em> case he shall grant a provisional order either in terms of the draft filed or as varied”</p> <p> </p> <p>From a reading of <em>rule </em>246 (2), a judge needs to be satisfied that the papers before him/her establish a <em>prima facie</em> case. That is the primary consideration. The structure of the draft order is not the paramount consideration. After all as the appellation implies, the order accompanying the application comes in draft form. The order to be granted at the end of the day is an order of the court. That explains why in my view <em>rule </em>246(2) allows the judge to make modifications to the order. The judge must grant an order which will serve a purpose at the end of the day. I do not believe that the observations by CHINAMORA J in <em>Ecocash Zimbabwe (Private) Limited</em> matter should be construed as laying a firm foundation that similarities between the interim relief and final relief sought render an application dismissible. On page 10 of the judgment, my brother judge remarked as follows:</p> <p>“It requires no second guessing that the temporary order sought is final in nature. Equally evident <em>ex facie</em> the provisional order is that the relief sought in the interim order is the same or substantially the same as in the final order. The impropriety of such an approach has received ample emphasis in this jurisdiction……”</p> <p> </p> <p>The honourable judge found that the interim relief sought by applicant in that case was final in nature, in addition to it being similar to the final order sought. That may not have been proper in the circumstances of the case before him, as he went on to observe on page 11 of the judgment:</p> <p>“There is no difference in effect between this order and the orders sought in paragraphs 1 and 2 of the interim relief. The result is to unfreeze and allow the concerned agents access to their accounts. The question that I pose is: is there anything remaining to incentivize the applicant to come back to court on the return day when the accounts have already been unfrozen and access gained to the ecocash platform? The answer is obvious. In other words, the appellant can gleefully sit back since it would have achieved through the provisional order what it required by way of final order on the return day”</p> <p> </p> <p>What makes the <em>Ecocash Zimbabwe (Private) Limited</em> case distinguishable from the present case is that <em>in casu,</em> it has not been alleged that the interim relief sought is final in nature. It is certainly not final in the mold of the one in <em>Ecocash Zimbabwe</em>. The only blemish is that the relief sought though interim in nature, is similar to the final relief sought. That in my respectful view, does not make the relief sought defective or rather make the application susceptible to dismissal or striking off. I believe this is the kind of scenario contemplated by <em>rule </em>246 (2). Once a judge is satisfied that a <em>prima facie</em> case has been established, he cannot decline the relief sought on the basis that the interim relief sought is similar to the terms of the final relief sought. I am fortified in this regard by the views of MAFUSIRE J in <em>Amalgamated Rural Teachers Union of Zimbabwe &amp; Another v Zimbabwe African National Union [Patriotic Front] &amp; Another<a href="#_ftn9" name="_ftnref9" title="" id="_ftnref9"><strong>[9]</strong></a>. </em>He said:</p> <p>“<em>In casu, </em>it is true that the interim relief sought in the original draft order was almost identical to the final order sought on the return day. In essence this relief was the interdict to restrain the respondents from continuing with the activities complained of. But my view is that the principle or requirement that the interim relief in an urgent chamber application should not be the same as the final relief to be sought on the return day is not cast in stone. Every case depends on its own facts. In appropriate situations it may be that the relief sought in the interim may be all that an applicant was concerned with yesterday, today and tomorrow. He may want it today on an urgent basis. That does not stop him from wanting it again on a permanent basis on the return day. If it is granted today on an interim basis, all he may want on the return day is its confirmation. All he shows in the interim, among other things, is an actual or perceived infringement of a <em>prima facie right</em>, even if that right be open to some doubt. On the return day he must prove, <em>on a balance of probabilities</em>, an actual or perceived infringement of a clear right. It is not altogether uncommon for the court to grant interim relief, only to discharge it on the return day. Thus, I found the first respondent’s objection a moot point and lacking in merit”</p> <p> </p> <p>I fully associate myself with these observations. Once a judge is satisfied that a <em>prima facie</em> case has been established, then he must in my view grant the interim relief sought. Errors in the construction of the draft order, and in turn the interim relief sought are remediable<a href="#_ftn10" name="_ftnref10" title="" id="_ftnref10">[10]</a>. It is for this reason that <em>rule</em> 246(2) endures<a href="#_ftn11" name="_ftnref11" title="" id="_ftnref11">[11]</a>. In the exercise of my discretion, I allowed the proposed amendment to the terms of the final order sought by applicant, although it is not the only matter that the court should contend with on the return day. The parties require the court to determine the statuses of applicant and Balwearie 1977, and their competing claims to the property. The entity so determined to be the lawful holder of title in the property can deal with the property as it wishes. Accordingly I find that the objection lacks merit and is accordingly dismissed.</p> <p><strong>MERITS</strong></p> <p>The requirements for the granting of interim interdict were set out in <em>Airfield Investments (Pvt) Ltd v Minister of Lands, Agriculture and Rural Resettlement &amp; Ors.<a href="#_ftn12" name="_ftnref12" title="" id="_ftnref12"><strong>[12]</strong></a> </em>MALABA JA (as he then was said):</p> <p>“It must be borne in mind that an interim interdict is an extraordinary remedy, the granting of which is at the discretion of the court hearing the application for the relief. There are, however, requirements which an applicant for interim relief must satisfy before it can be granted. In <em>L F Boshoff Investments (Pty) Ltd v Cape Town Municipality </em>1969 (2) SA 256 (C) at 267 A-F, CORBETT J (as he then was) said an applicant for such temporary relief must show:</p> <p>“(a) that the right which is the subject matter of the main action and which he seeks to protect by means of interim relief is clear or, if not clear, is <em>prima facie </em>established though open to some doubt;</p> <p>(b) that, if the right is only <em>prima facie </em>established, there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing his right;</p> <p>(c) that the balance of convenience favours the granting of interim relief; and</p> <p>(d) that the applicant has no other satisfactory remedy.”</p> <p>I now turn to consider these requirements in detail.</p> <p><strong><em>Prima facie</em></strong><strong> right</strong></p> <p>Ms <em>Saunyama</em> submitted that the founding affidavit sets out the factual premise on which interim relief is sought. The annexures attached to the founding affidavit, and the other documents tendered during oral submissions all connect applicant to the property. Mr <em>Mhungu</em> submitted that the question whether an applicant has a right is a matter of substantive law. Whether that right has been established is a question of evidence. Once it is established that no right exists then the question of harm does not arise. Mr <em>Mhungu </em>argued that even if it were to be accepted that applicant acquired rights in the property through a pre-incorporation contract, it was improbable that it could have obtained title before incorporation. In all probability the applicant only ratified the alleged pre-incorporation contract in 2020 on registration. It could not have obtained title before ratification of the contract. Mr <em>Mhungu</em> further submitted that in view of the letter of 2 June 2020 from the Registrar of Companies, applicant’s registration violated the law. I have already expressed my position on the statuses of the applicant and Balwearie 1977. The question of the legitimacy of the two entities is not a matter that arises for consideration at this stage. It’s a matter for the return day. That is certainly desirable if this dispute is to be resolved.</p> <p>What complicates respondents’ case at this stage is that first respondent, who seeks to assert rights on behalf of Balwearie 1977 does not appear to have the authority to do so. I am not persuaded by the submission that he speaks as an employee of the company. That would have been the easiest of things to prove, considering he filed a supplementary affidavit in an attempt to discredit the status of the applicant. As was pointed by MAFUSIRE J<a href="#_ftn13" name="_ftnref13" title="" id="_ftnref13">[13]</a>, all the applicant needs to show at this stage is a <em>prima facie</em> right, <em>“…even if this be open to some doubt”.</em> I am satisfied that applicant has established a <em>prima facie</em> right, even though on the papers before me it is open to some doubt. I say so because of the potentiality of a claim by Balwearie 1977, if it is eventually proved to exist.</p> <p><strong><em>Well-grounded apprehension of irreparable harm to the applicant</em></strong></p> <p>Ms <em>Saunyama</em> submitted that the irreparable harm that may arise is too ghastly to contemplate if respondents are not restrained. It means third parties will be transacting with respondents and officials of applicant at the same time. That would have disastrous consequences. Applicant did not have to wait for harm to occur before approaching the court. Mr <em>Mhungu </em>argued that the kind of harm contemplated by the law is that which cannot be compensated by an award of damages. I am not persuaded by this submission. I note that first respondent’s affidavit does not respond to the merits of the application in detail. First respondent did not deny that he is culpable of the conduct that applicant seeks to impugn. His contention that he is an employee of Balwearie 1977 is not supportable by the facts or evidence before me. That makes his position insecure. I am persuaded that there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted.</p> <p><strong><em>Balance of convenience </em></strong></p> <p>Ms <em>Saunyama</em> argued that the balance of convenience favoured the granting of the interim relief. She submitted that if Balwearie 1977 genuinely existed, then it ought to have been joined to these proceedings. The court could not rely on the evidence of first respondent whose association with Balwearie 1977 was suspicious. Mr <em>Mhungu</em> on the other hand submitted that it was unsafe to grant the interim relief on the backdrop of the letter from the Registrar of Companies suggesting Balwearie 1977 still existed. He submitted that there were glaring deficiencies in the applicant’s account, which made it highly improbable. He also pointed to material disputes of fact inherent in the dispute. I have already stated that at this stage all that is expected of applicant is to establish a <em>prima facie</em> right, which may still be open to some doubt. The parties competing claims and the alleged material disputes are not matters for consideration at this stage. I accordingly find that on a balance of probabilities, the balance of convenience favours the granting of the interim relief.</p> <p><strong><em>Absence of other satisfactory remedy</em></strong></p> <p>Ms <em>Saunyama</em> drew the court’s attention to paragraph 5.2 of the first respondent’s opposing affidavit, which reads, <em>“if it were to be assumed that there is any truth to the deponent’s averments, it still remains a truism that the relief of rei vindicatio is available to the applicant”</em>. The import of the submission is that a party in the position of applicant cannot assert rights or seek protection through a prohibitory interdict as long as it can also assert those rights through the <em>rei vindicatio</em>. Counsel submitted that such proposition offends the spirit of a prohibitory interdict which should be available to any party who satisfies its requirements.</p> <p>Mr <em>Mhungu</em> on the other hand submitted that this requirement was not addressed in the founding affidavit, an indication that it was not established. In any case, applicant indicated that it made a police report, which showed it had an alternative remedy. I am not persuaded by this submission. The requirements of an interdict are as set out in case law. They are part of the common law. The fact that a party may not have canvassed them in the papers does not mean they do not exist in that particular case. In an urgent chamber application, legal and factual submissions can be made from the bar. The procedure is not cast in stone. I am satisfied, that if applicant has established a <em>prima facie</em> right to the property, then it need not wait to assert those rights through a <em>rei vindicatio</em> claim while respondents continue selling the stands. Respondents did not deny that they acted in the manner complained of.  Further a police report, being criminal in nature, is no bar to the institution of these proceedings.</p> <p>In the final analysis, I am satisfied that the application meets all the requirements for the granting of an interim interdict.  The situation on the ground needs to be arrested to avoid chaos. As things stand, respondents may continue offering and advertising the stands for sale presumably under the banner of Balwearie 1977. On the other hand, applicant will also continue advertising and selling the stands under its own name. That will obviously confuse prospective buyers and regulatory authorities alike. That cannot be allowed to happen. Courts of law cannot condone, let alone allow lawlessness to prevail. In my view, it follows that on the return day the court is enjoined to consider, not only the confirmation or discharge of the provisional order, but the statuses of applicant and Balwearie 1977, and which one of them holds title in the property.</p> <p><strong>Accordingly it is ordered that:  </strong></p> <p>Pending determination of this matter, the Applicant is granted the following interim relief:</p> <ol> <li>First, second and third respondents be and are hereby barred and interdicted from entering applicant’s property known as the Remainder of Westhey of Sabonabon Estate Kadoma.</li> <li>First, second and third respondents be and are hereby barred and interdicted from selling applicant’s stands situate at the Remainder of Westhey of Sabonabon Estate Kadoma and presenting themselves as employees of the applicant.  </li> </ol> <p> </p> <p><em>Bherebhende Law Chambers</em>, applicant’s legal practitioners</p> <p><em>Mlotshwa &amp; Maguwudze Legal Practitioners, </em>respondents’ legal practitioners</p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> Chapter 190</p> <p><a href="#_ftnref2" name="_ftn2" title="" id="_ftn2">[2]</a> 1996 (1) ZLR 153 (SC) at 157A, korsah JA said:</p> <p> “Provided it is not one which is required by a definitive law to be specially pleaded, a point of law, which goes to the root of the matter, may be raised at any time, even for the first time on appeal, if its consideration involves no unfairness to the party against whom it is directed: <em>Morobane</em> v<em> Bateman</em> 1918 AD 460; <em>Paddock Motors (Pty) Ltd </em>v<em> Igesund</em> 1976 (3) SA 16 (A) at 23D-G.”[2]     </p> <p> </p> <p><a href="#_ftnref3" name="_ftn3" title="" id="_ftn3">[3]</a> Rule 246 (1) states:</p> <ol> <li>A judge to whom papers are submitted in terms of rule 244 or 245 may –</li> </ol> <ol> <li>Require the applicant or the deponent of any affidavit or any other person who may, in his opinion, be able to assist in the resolution of the matter to appear before him in chambers or in court as may to him seem convenient and provide, on oath or otherwise as the judge may consider necessary, such further information as the judge may require</li> </ol> <p> </p> <p><a href="#_ftnref4" name="_ftn4" title="" id="_ftn4">[4]</a> [<em>Chapter 24:03</em>]</p> <p><a href="#_ftnref5" name="_ftn5" title="" id="_ftn5">[5]</a> HH-114/10 at page 4 of the cyclostyled judgment</p> <p><a href="#_ftnref6" name="_ftn6" title="" id="_ftn6">[6]</a> 1999 (1) ZLR 490 where SMITH J held that-</p> <p>“The court has the power to hear an application as a matter of urgency not only where there is serious threat to life or liberty but also where the urgency arises out of the need to protect commercial interests”.</p> <p><a href="#_ftnref7" name="_ftn7" title="" id="_ftn7">[7]</a> SC-43/13 at page 14 of the judgment.</p> <p><a href="#_ftnref8" name="_ftn8" title="" id="_ftn8">[8]</a> HH 333/20</p> <p><a href="#_ftnref9" name="_ftn9" title="" id="_ftn9">[9]</a> HMA 36/18</p> <p><a href="#_ftnref10" name="_ftn10" title="" id="_ftn10">[10]</a> See Qingsham Investments (Private) Limited v Zimbabwe Revenue Authority HH 207/17 at page 2</p> <p><a href="#_ftnref11" name="_ftn11" title="" id="_ftn11">[11]</a> See also <em>Phillip Chiyangwa v Interfin Bank Limited (In Liquidation) &amp; Another</em> HH 982/15 at page 2 of the judgment</p> <p><a href="#_ftnref12" name="_ftn12" title="" id="_ftn12">[12]</a> <em>2004 (1) ZLR 511 (S) </em>at 517 C-E</p> <p><a href="#_ftnref13" name="_ftn13" title="" id="_ftn13">[13]</a> <em>Supra </em>at page 10 paragraph 27 of the judgment</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/403/2020-zwhhc-403.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=53385">2020-zwhhc-403.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/2020/403/2020-zwhhc-403.pdf" type="application/pdf; length=692471">2020-zwhhc-403.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/immovable-property">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/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/final-interdict">Final interdict</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/grant-interdict">Grant of interdict</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/requirements-interdict">Requirements for interdict</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/l">L</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/land-0">LAND</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/ownership">Ownership</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/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/principles-joinder-parties">principles (Joinder of parties)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-may-be-ordered-joinder-parties">when may be ordered (Joinder of parties)</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/urgent-application">Urgent Application</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/what-constitutes-urgency-urgent-application">what constitutes urgency (Urgent application)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-may-be-made-urgent-application">when may be made (Urgent application)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/property-and-real-rights">PROPERTY AND REAL RIGHTS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/ownership-0">Ownership</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/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/harare-high-court/2010/114">Gray and Another v Registrar of Deeds (HC 2537/09) [2010] ZWHHC 114 (29 June 2010);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2013/43">ECONET Wireless v TRUSTCO Mobile Ltd &amp; Another (Civil Appeal No SC 171/11) [2013] ZWSC 43 (25 September 2013);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2020/333">ECOCASH Zimbabwe (Pvt) Ltd. vs RBZ (HH 333-20, HC 3007/20) [2020] ZWHC 333 (26 May 2020);</a></div><div class="field-item odd"><a href="/zw/judgment/masvingo-high-court/2018/36">Amalgamated Rural Teachers Union of Zimbabwe &amp; Another v ZANU PF &amp; Another (HMA 36-18, HC 263/18) [2018] ZWMSVHC 36 (28 June 2018);</a></div><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2004/36">Airfield Investments (Pvt) Ltd. v Minister of Lands Agriculture and Rural Resettlement and Others (64/03) ((Pvt)) [2004] ZWSC 36 (02 June 2004);</a></div></div></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/1952/471951">Companies Act [Chapter 24:03]</a></div></div></div> Wed, 24 Jun 2020 14:52:54 +0000 Sandra 9699 at https://old.zimlii.org Stringer v Minister of Health and Child Care & Anor (HH 259-20, HC 2154/20) [2020] ZWHHC 259 (31 March 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/259 <div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/259/2020-zwhhc-259.pdf" type="application/pdf; length=412707">2020-zwhhc-259.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/human-rights">HUMAN RIGHTS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/substantive-rights">Substantive rights</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/environment">Environment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/equality-and-non-discrimination">Equality and non-discrimination</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/health">Health</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/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/principles-joinder-parties">principles (Joinder of parties)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-may-be-ordered-joinder-parties">when may be ordered (Joinder of parties)</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/urgent-application">Urgent Application</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interdict-sought-provisional-relief-urgent-application">interdict sought as provisional relief (Urgent Application)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/what-constitutes-urgency-urgent-application">what constitutes urgency (Urgent application)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/when-may-be-made-urgent-application">when may be made (Urgent application)</a></li></ul></span><div class="field field-name-field-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></div> Thu, 02 Apr 2020 09:33:54 +0000 Sandra 9607 at https://old.zimlii.org Mapingure v Provincial Assembly of Chiefs Masvingo Province (HH 841-19, HC 3009/18) [2019] ZWHHC 841 (19 December 2019); https://old.zimlii.org/zw/judgment/harare-high-court/2019/841 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>FAINIOS MIHWA MAPINGURE</p> <p>versus</p> <p>PROVINCIAL ASSEMBLY OF CHIEFS MASVINGO PROVINCE</p> <p>and</p> <p>SENATOR CHIEF CHITANGA</p> <p>and</p> <p>FORTUNE ZEPHANIA CHARUMBIRA</p> <p>and</p> <p>MINISTER OF LOCAL GOVERNMENT PUBLIC WORKS AND NATIONAL HOUSING</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE<br /> TSANGA J </p> <p>HARARE, 14 June &amp; 19 December 2019</p> <p> </p> <p><strong>Opposed application</strong></p> <p> </p> <p><em>F Mukwewa, </em>for the applicant<br /> <em>L Madhuku, </em>for the 2nd respondent<br /> <em>T Mpofu with W Chinamhora, </em>for the 3rd respondent</p> <p> </p> <p>TSANGA J: The applicant seeks to compel the Provincial Assembly of Chiefs in Masvingo Province to constitute and convene an investigative committee to look into the complaint and dispute concerning the appointment of the Charumbira Chieftainship. The applicant is member of the Karanga tribe. At the heart of his complaint is that the appointment of Fortune Zephania Charumbira as substantive chief of the Charumbira chieftaincy, is illegal because it was done contrary to the prevailing cultural, customary and traditional principles of succession of the community concerned. His appointment is said to have been by primogeniture contrary to karanga tradition whereby appointment is collateral in that it rotates according to the seniority of houses of those entitled to chieftaincy. The introduction of an appointment format alien to karanga custom is said to have had its origin from the colonial era when specifically Chief Madyira died in 1943 and his son Mazhira was appointed chief due to his proximity to the white colonial regime. Thereafter Chief Zephania Charumbira, the third respondent’s father was appointed. The incumbent chief is said to have been appointed substantive chief in 2000 despite protest from other houses.</p> <p>The first respondent is the Provincial Assembly of Chiefs Masvingo, whilst the second respondent Senator Chief Chitanga is its chairperson. The third respondent, Fortune Charumbira, is the incumbent chief of the Charumbira clan. The fourth respondent is the Minister of Government Public Works and National Housing. The first and fourth respondents chose to abide by the final decision of this court and were therefore not represented at the hearing.</p> <p>Applicant says that the first and second respondents have a duty to preside over disputes and as such what he seeks is that they be compelled to act in terms of hearing the dispute pertaining to the Charumbira chieftaincy, within 30 days of the order. He says he wrote to the first respondent on the 12th and 13th of September 2017, asking the first and second respondent to constitute a committee. They have failed to do so. Notably, in his supporting affidavit, the second respondent as chairperson of the Provincial Assembly of Chiefs denies ever receiving the letter in question written in September 2017.</p> <p>It is applicant’s averment that he is entitled to administrative justice in terms of s 68 of the Constitution, a section which calls for administrative conduct that is lawful, prompt, efficient, reasonable and procedurally fair. Section 3 of the Administration of Justice Act is equally drawn with regard to these principles. Applicant also relies on s 286 of the Constitution as read with the Traditional Leaders Act [<em>Chapter 29:17</em>] regarding the right to choose a chief or traditional leader in accordance with the tradition, custom and culture of the people concerned. The right to equal protection of the law in terms of 56 is equally emphasised.</p> <p>The application is opposed and several points have been raised <em>in limine</em> by the incumbent chief and supported by Senator Chief Chitanga as the chairperson of the Provincial Assembly of Chiefs. The main point <em>in limine</em> emphasised on behalf of the second and third respondents was that there is no cause of action as applicant cannot found his contentions on the Traditional Leaders Act that was not in place at the time that the action the he complains of arose. The Traditional Leaders Act came into force on the 1st of January 2000. The reality is that though the incumbent chief, Fortune Charumbira, was initially made acting chief in 1992, he was in fact sworn in or inaugurated as substantive chief on 24 May 2000. Having been only appointed as <strong>substantive chief</strong> in May 2000 after the Act commenced, this means that at the time of his actual appointment as a chief, the Traditional Leaders Act was in already in place. Section 3(2) (a) (i) which speaks to giving due consideration to “the prevailing customary principles of succession, if any, applicable to the community over which the chief is to preside’’ would have been applicable. It is this provision that the applicant has founded his cause of action on. The point <em>in limine </em>that the legislation was not in place at the time of his appointment lacks merit and is dismissed. However, there are other critical points <em>in limine </em>raised.</p> <p>A critical issue is that of the non-joinder of the President of the Republic of Zimbabwe to this application. It is said to be fatal to the application on the ground that the appointment and resolution of chieftainship disputes is the President’s prerogative. The first respondent’s role, as the Provincial Assembly of Chiefs, is said to be to make recommendations to the President but that the initiation of the entire process itself, as the argument goes, must be done by the President himself. As such, this application which seeks to compel the Provincial Assembly of Chiefs and its chairperson to come up with recommendations, is said to essentially put the cart before the horse in circumstances where the President has not acknowledged the existence of a dispute. It is therefore emphasised by Chief Fortune Charumbira that the Provincial Assembly of Chiefs and its cited Chairperson cannot set off a process which is not sanctioned by the President or impose upon the President recommendations which he has not sought.</p> <p>The applicant’s core response to this point <em>in limine</em> is that s 283 (c) does not stipulate that it is the President who must initiate the process. He argues that the President’s main role as gleaned from the provision, is to act on the recommendations that are given to him through the Minister from the Provincial Assembly of Chiefs. Applicant also relies on rule 87 of the High Court rules that non joinder is not an issue and that in any event a party can be joined at any stage.</p> <p>An additional point <em>in limine </em>raised is prescription on the basis that the failure to follow customs is said to have started in 1943 up to the present day. In particular, the relief sought being that of a <em>mandamus,</em> which falls under general law, the issue is said to have been affected by extinctive prescription following failure to challenge the affront within a three year period from the knowledge of it. Applicant’s response to this point <em>in limine</em> is that the matter is governed by customary law which is not affected by prescription and that the remedy he seeks is essentially akin to an interdict. Related to this issue of prescription is also raised that of estoppel whereby it is argued that the applicant is estopped from challenging Chief Fortune Charumbira’s chieftaincy, having never approached the court in the last 26 years but has instead lived with the Charumbira’s chieftaincy. It is further averred that entertaining this application would set a bad precedent whereby people accept a position only to turn around and adopt a position inconsistent with their previous actions.</p> <p><strong>Failure to join the President</strong></p> <p>Our courts have been very clear that any dispute concerning chieftaincy now falls to be resolved through s 283 of the constitution. Unless remedies mentioned therein have been exhausted, the High Court has made it clear in cases such as <em>Gambakwe and Others</em> v <em>Chimene and others</em> HH 465/15; <em>Munodawafa and Others</em> v <em>District Administrator Masvingo</em> HH 571/15; <em>Silibaziso Mlotshwa </em>v<em> District Administrator, Hwange District N.O &amp; Ors </em>HB 161/16 to mention a few that it will decline to exercise jurisdiction in light of s283 of the Constitution which deals with disputes. That said, the applicant in this case is not trying to skirt s 283 by coming to court but is in fact seeking to enforce s 283 by getting the Provincial Assembly of Chiefs to play its role as per that section. In other words, he is only before the High Court because the Provincial Assembly of Chiefs is, according to him, not acting as mandated in the relevant constitutional provision. He thus wants it to be compelled to take action. He believes that his quest for action does not need to involve the President because from the applicable provision, the President’s role in a dispute comes in later after the Provincial Assembly of Chiefs has acted.</p> <p>It is on this point that respondents who have challenged him differ with him and where they say he is offside. They emphasise that it is only the President who can declare a dispute and set the Provincial Assembly of Chiefs in to motion to make its recommendations. Senator Chief Chatanga, the chairperson of the Assembly averred to having never received any communicating regarding a dispute. This is disputed by applicant.</p> <p>The provision in question upon which joinder is said to be essential is worded thus:</p> <p><strong>“</strong><strong>283 Appointment and removal of traditional leaders </strong></p> <p>An Act of Parliament must provide for the following, in accordance with the prevailing culture, customs, traditions and practices of the communities concerned—</p> <p>(<em>a</em>) the appointment, suspension, succession and removal of traditional leaders;</p> <p>(<em>b</em>) the creation and resuscitation of chieftainships; and</p> <p>(<em>c</em>) the resolution of disputes concerning the appointment, suspension, succession and removal of traditional leaders;</p> <p>but—</p> <p>(i) the appointment, removal and suspension of Chiefs must be done by the President on the recommendation of the provincial assembly of Chiefs through the National Council of Chiefs and the Minister responsible for traditional leaders and in accordance with the traditional practices and traditions of the communities concerned;</p> <p>(ii) disputes concerning the appointment, suspension and removal of traditional leaders must be resolved by the President on the recommendation of the Provincial Assembly of Chiefs through the Minister responsible for traditional leaders;</p> <p>(iii) the Act must provide measures to ensure that all these matters are dealt with fairly and without regard to political considerations;</p> <p>(iv) the Act must provide measures to safeguard the integrity of traditional institutions and their independence from political interference.”</p> <p> </p> <p>Notably, as has been observed in the cases cited above, no new Act of Parliament has yet been put in place setting out the actual guidelines to be observed when a dispute erupts. This lament was put thus in <em>Silibaziso Mlotshwa </em>v<em> District Administrator, Hwange District N.O &amp; Ors (supra)</em>:</p> <p>“The current Act of Parliament providing for matters referred to in s283 is the Traditional Leaders Act [Chapter 29:17]. As has been said repeatedly about the delays in aligning the laws to the current constitution that Act is still lagging behind awaiting alignment. For instance, the Act does not provide a dispute resolution mechanism regarding the appointment and succession of chiefs. While it does provide for a provincial assembly of chiefs in s35 it does not have as one of its functions making recommendations to the President envisaged by the constitution.”</p> <p> </p> <p>Without properly articulated guidelines, interpretative disputes are bound to arise. Despite the arguments by the second and third respondents that the process is initiated by the President, it is obvious from a reading of the provision that nowhere does it state so in the actual provision itself. The two respondents say it is the practice in reality. The provision lends itself to ambiguities or vagueness in determining whether the process is to be top down or bottom up as far as the President’s role is concerned.</p> <p>The interpretation of the provision in the case<em> Mlotshwa </em>v <em>District Administrator, Hwange District N.O </em>&amp; <em>Ors</em> would in fact suggest that the process is bottom up.</p> <p> </p> <p>“What is clear though is that s283 of the constitution has created domestic or internal remedies for a party who is aggrieved by a process of selecting a chief. <strong><em>Such person is at liberty to approach the provincial assembly which is reposed with the authority to make recommendations to the President, or to submit a grievance to the President for resolution. </em></strong>To the extent that such remedies are available, this court will not readily exercise jurisdiction”. (My emphasis)</p> <p> </p> <p>It is in fact a crucial provision which rests on a fundamental issue of interpretation of the constitutional values and underlying purposes that were intended by the provision. Was the intention to genuinely mainstream and devolve democratic customary values in decision making from the bottom up or was it to essentially maintain the colonial legacy of administratively driven justice with seeming undertones of democracy. It would do well in a proper case for the Constitutional Court to definitively interpret the import of this provision for the avoidance of doubt.</p> <p>Materially, whether the President declares the dispute and sets the process in motion of having the matter investigated through the appropriate channels, or, whether the process is truly energised and escalated from below in seeking the President’s final input, goes beyond the issue of the President’s joinder in a dispute.</p> <p>It is a provision which is of significance to the rights of many ordinary citizens who are governed by chiefs. Customary law is incorporated into our constitution through sections 16 and 63. Section 63 recognises the personal right to language and culture of one’s choice. Section 3 the Constitution lays out its founding values and principles. In particular s 3 (2) (h) lists among principles of good governance, “the fostering of national unity, peace and stability with due regard to diversity of languages, customary practices and traditions. Furthermore, under national objectives suffice it to observe that s 16 (1) which deals with culture, enjoins the state and all its institutions of government to “promote and preserve cultural values and practices which enhance the dignity and wellbeing and equality of Zimbabweans’. Furthermore, s 16 (2) calls on all state institutions to endeavour to preserve and protect Zimbabwe’s heritage whilst s 16(3) specifically calls for respect for traditional institutions. Against this backdrop, a narrower approach in interpretation which focuses on the President having the key administrative function of a declaratory role in the dispute and in the removal of the chief, placing the issue firmly in his hands from start to finish, would seem to contrast sharply with an interpretative approach that is bottom up, truly post-colonial, and, is informed by a genuine desire to decentralise democratic processes that have to do with the preservation of culture, albeit ultimately bowing to his authority. The provision lends itself just as easily to an interpretation which departs from a colonial legacy of a top down approach with a thrust towards fostering democratic dispute resolution within administrative structures that are central to the people.</p> <p>Be that as it may, regardless of the deeper constitutional interpretative thrust that underlies the provision and indeed this dispute, the issue of the President’s joinder to this matter is one that can be decided. This can be done by answering the question whether he is an interested party who ought to have been cited in these proceedings which seek to compel the Provincial Assembly of Chiefs to act in accordance with its mandate as outlined in s 283 of the Constitution. What is not disputed is that the ultimate task of resolving a dispute is his. It is obvious from a reading of the section that he is an interested party.</p> <p>Against the back drop and import of s 283, there is no order which can be crafted to compel action which would not be of relevance to the President in his role in ultimately resolving the dispute. After all it is the President who appoints a chief at his discretion. Since it is the President who appointed Chief Charumbira, he has a right to be aware of and to be party to any case whatsoever before the courts that touches on that appointment. In other words, he is an interested party and arbiter in any dispute involving chieftaincy on terms of s 283 (c) of the Constitution. As such, joining him to any proceedings brought before the courts is indeed an imperative. Whether the substantive provision is interpreted bottom up or top down, the inescapable conclusion is that the President is an indispensable party to any controversy that involves the removal of a chief he has appointed. He ought to have been cited at the onset more so since ordinarily the courts do not readily exercise jurisdiction in these matters in light of the thrust of s 283 of the new constitution.</p> <p>As regards the non-joinder and misjoinder of parties, Rule 87(1) provides as follows:</p> <p>“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.”</p> <p>Non joinder or misjoinder is not fatal and a matter, may still be heard to finality even where there has been non joinder. However as stated in the case of <em>Rodger &amp; Ors </em>v<em> Muller &amp; Ors</em> HH 2 2010 r 87(1) of the High Court Rules, 1971, does not absolve a litigant of the obligation to cite all relevant parties.</p> <p>Also rule 87(2) permits the court in a cause or matter whether on its own motion or <em>mero motu</em> to join a party or dispense with a party at any stage of a cause or a matter.</p> <p>In terms of r 87(2):</p> <p>“At any stage of the proceedings in any cause or matter the court may on such terms as it thinks just and either on its own motion or on application-</p> <ul> <li> </li> <li>order any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, to be added as a party.</li> </ul> <p>but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised.”</p> <p> </p> <p>Equally, the discretion by the court to join a party is also one that is judiciously exercised. Where a party had an opportunity to rectify the issue of joinder because the other side raised it and yet still chooses to forge ahead without the joinder, the court may not regard the circumstances as warranting a proper exercise of its discretion. The papers will often tell their story as to whether an issue has been raised and a party has elected to proceed regardless.</p> <p>Where a court decides not to exercise its discretion to proceed without joinder or to join a party has who is an indispensable party to the proceedings, then failure to join in the initial instance, by a party who could have done so, is generally fatal. The court can dismiss the claim in the absence of the citation of a necessary party.</p> <p>Non joinder is fatal to this application for the reason that the applicant had ample opportunity to attend to the joining of the President before this hearing. His application was lodged on 4 April 2018. By 26 April 2018 applicant was fully aware of the respondent’s position regarding the failure to join the President. Applicant did nothing to join the President. I am in agreement with the second and third respondents that r 87 of the High Court Rules, cannot be used to hide behind failure to observe an obligation to cite an interested party in the hope that the court will rely on this provision should the party be necessary.</p> <p>Having found that there is critical non joinder it will not be necessary to delve in-depth into the issue of prescription or estoppel, save to say the issue is definitely a customary law one in substance. Moreover, the respondents acknowledge in their heads of argument that the applicant did not exhaust local remedies before approaching the courts. It is argued in paragraph 3.8 and 3.9 that the proper course, given the averment that no complaint was received by the chairperson of the Assembly, would be for the applicant to approach second respondent. Indeed given that Chairperson is now aware, assuming he genuinely was not, then there is no reason why the process laid down for disputes should not be followed. In any event, it is also the Provincial Assembly of Chiefs this is better placed to determine whether the dispute has a long standing history that the applicant has averred.</p> <p>Whilst the point <em>in limine</em> on joinder is upheld, I do not think that an order of costs against the applicant would be appropriate in this case given the absence of harmonisation of the Constitution with relevant legislation. It is ultimately disrespectful of the constitutional status of customary law which impacts on many people’s lives when ordinary people are left to dither for years on end regarding how processes are supposed to operate efficiently due to lack of speedier harmonisation of relevant legislation with the constitution. In the final result;</p> <p>It is hereby ordered that:</p> <ol> <li>The point <em>in limine</em> regarding the fatality of non-joinder of the President of the Republic of Zimbabwe in this application is upheld.</li> <li>The application is dismissed.</li> <li>There is no order as to costs.</li> </ol> <p> </p> <p><em>Mukwewa Law Chambers, </em>applicant’s legal practitioners<br /> <em>Gill Godlonton and Gerrans, </em>2nd and 3rd 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="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/2019/841/2019-zwhhc-841.doc" type="application/msword; length=68608">2019-zwhhc-841.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/2019/841/2019-zwhhc-841.pdf" type="application/pdf; length=336042">2019-zwhhc-841.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/customary-law">CUSTOMARY LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/chieftainship">Chieftainship</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appointment-chiefs-president">appointment of chiefs by President</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/joinder-parties">Joinder of parties</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/principles-joinder-parties">principles (Joinder of parties)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-may-be-ordered-joinder-parties">when may be ordered (Joinder of parties)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/bulawayo-high-court/2016/161">Mlotshwa v Hwange District Administrator N.O. &amp; Others (HB 161-16 HC 3449-15) [2016] ZWBHC 161 (20 June 2016);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2015/465">Gambakwe &amp; Others v Chimene &amp; Others (HC 4443/12) [2015] ZWHHC 465 (19 May 2015);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2015/571">Munodawafa v Masvingo District Administrator &amp; Others (HC 8352/11) [2015] ZWHHC 571 (23 June 2015);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1998/25">Traditional Leaders Act [Chapter 29:17]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Tue, 28 Jan 2020 14:35:31 +0000 Sandra 9466 at https://old.zimlii.org Nyekile One Penny Half Penny (PVT) LIMITED (HB 1-18, HC 2097/16 X REF HC 2122/16) [2018] ZWBHC 1 (01 January 2018); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2018/1 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>NYEKILE ONE PENNY HALF PENNY (PVT) LTD APPLICANT And PARIRENYATWA GROUP OF HOSPITALS 1ST RESPONDENT And SURDAX INVESTMENTS (PV) LTD 2ND RESPONDENT IN THE HIGH COURT OF ZIMBABWE TAKUVA J 28 JULY 2017 &amp; 18 JANUARY 2018 Opposed Application Advocate L. Nkomo for the applicant Advocate H. Moyo for the 1st respondent No appearance for 2nd respondent TAKUVA J: This is an application for review of a decision made by the 1st respondent. The applicant is an unsuccessful bidder in a tender process that was flighted by the 1st respondent. Aggrieved by this decision, it filed this application seeking the following order: “1. The informal tender process conducted by the 1st respondent under Tender No. CLE 01/2016 is a nullity and is accordingly set aside; or alternatively 2. The decision of the 1st respondent rejecting the applicant’s tender bid as unsuccessful be and is hereby set aside and is substituted with a decision awarding the tender to applicant as the lowest bidder. 3. The 1st respondent pays the costs of suit.” The facts are as follows: In 2016 the 1st respondent floated an Informal Tender No. CLE 01/2016 for provision of cleaning services. The requirements that successful bidders must comply with are set out in Annexure I which contains inter alia a chapter on “Method of Evaluation”. For a bid to be successful, it has to comply with the criteria set out in the table therein numbered 1 to 17 at page 13 of Annexure I. After complying with this criteria a bidder is then awarded to the lowest bidder again in accordance with Annexure I. In casu nine (9) bids were lodged after Annexure I was floated. An Evaluation and Assessment of the bids was conducted and results were tabulated on the Evaluation Comparative Schedule attached as Annexure 2 on pages 76-82 of the record. After this process, the applicant’s bid was rejected after the preliminary assessment and evaluation because it did not state payment terms as required by item 14 on page 13 of the record. During evaluation, it was noted that all bid prices exceeded the annual threshold of US$500 000,00 (Five Hundred Thousand United States Dollars) set out in Procurement (Amendment) Regulations 2015 (No. 18) SI 19 of 2015. As a result, 1st respondent referred its recommendations to the State Procurement Board for a review and an opinion in terms of section 21 of the Procurement (Amendment) Regulations SI 126 of 2015. After considering the recommendations, the Procurement Board, sent a letter dated 18 July 2016 directing that the tender be awarded to the 2nd respondent. Applicant and other bidders were thereafter advised by the 1st respondent of the decision. Arising from this decision applicant filed this application seeking the nullification of this decision on two grounds namely, the 1st respondent did not comply with the provisions of the “Procurement Act and the Procurement Regulations” and that the 1st respondent’s decision is irrational. The 1st respondent opposed the application. It raised a point in limine on material non-joinder of the State Procurement Board. First respondent contended that the applicant should have cited the State Procurement Board because the decision it seeks to review is that of the State Procurement Board and not that of the 1st respondent. Also, it was argued that a reading of SI 126/2015 reveals that tenders both formal and informal are now subject to State Procurement Board’s supervision and directions. This is why the State Procurement Board authorized the informal tender to run under its supervision. Accordingly, so the argument goes, this application cannot be determined without citation of the State Procurement Board. Reliance was placed on MBCA Bank Ltd v RBZ &amp; Anor HH-482-15 and Dynamos Football Club (Pvt) Ltd and Anor v Zimbabwe Football Association &amp; Ors 2006 (1) ZLR 346 (S). In my view, the point in limine is devoid of merit for a number of reasons. Firstly, the provisions of r87 of the High Court Rules 1971 and clear that no cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party and the court may in any case or matter determine the issues and questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter. In any event, where a matter has not been determined, there is no question of non-joinder being fatal because the court has power under r87 (2) of the High Court Rues to order the joinder of a party whose presence is necessary to ensure the effectual and complete adjudication of all the matters in dispute. See Wakatama &amp; Ors v Madamombe 2011 (1) ZLR 10 (s); Capital Alliance (Pvt) Ltd v Renaissance Merchant Bank Ltd &amp; Ors 2006 (2) ZLR 232 (H) at p232E, PATEL J (as he then was) held that, “Having regard to r87 (1) of the High Court Rules 1971, there is no basis to warrant the striking out of a matter for material non-joinder. Where a party should have been joined to proceedings, a court is entitled, in terms of r87 (2) of the Rules, to order the joinder of such party either on its own motion or on application so (as) to ensure the effectual and complete adjudication of all matters in dispute. See also Chiadzwa v Commissioner-General of Police &amp; Ors 2011 (2) ZLR 241 (H) at p241H; Sibanda v Sibanda &amp; Anor 2009 (1) ZLR 64 (H) at p64E-F. Secondly, the non-joinder of the State Procurement Board in casu is neither a material non-joinder nor fatal in that the matter in dispute is capable of effectual and complete adjudication between the parties without occasioning any prejudice to the State Procurement Board. This is so because the informal tender process sought to be nullified was conducted by the 1st respondent’s Adjudication and Procurement Committees. Notwithstanding the State Procurement Board’s letter dated 18 July 2016 the decision to reject the applicant’s bid as non-compliant to mandatory requirements and specifications was made by the 1st respondent’s said committees. Therefore, the State Procurement Board has no direct and substantial interest in the relief sought by the applicant. The 1st respondent is the procuring entity. In Mugano v Fintrac &amp; Ors 2013 (2) ZLR 452, it was held that: “The right of a defendant to demand the joinder of another party and the duty of the court to order such joinder or ensure that there is a waiver of the right to be joined are limited to cases of joint owners joint contractors and partners and where the other party has a direct and substantial interest in the issues involved and the order which the court may make. Such an interest is one in the right which is the subject matter of the litigation and not merely a financial interest which is only an indirect interest in such litigation. (my emphasis) Consequently, I take the view that there is no conceivable prejudice likely to be suffered by the State Procurement Board if it is not joined in these proceedings in light of the specific relief sought by the applicant. The non-joinder is neither material nor fatal. Therefore, the point in limine is dismissed. On the merits the applicant contends that by conducting an informal tender process when the annual contract price threshold required that a special informal or formal tender be conducted, 1st respondent violated the following statutory provisions; (a) Section 4 of the Procurement Regulations as amended (b) Section 30(1) (b) as read with sections 31 and 32 of the Procurement Act. It was further contended that the State Procurement Board’s opinion that it had “No objection” to the 1st respondent’s award of the tender to the 2nd respondent could not confer the informal tender process with any legality or validity. Applicant relied on PMA Real Estate Agency (Pvt) Ltd v ARDA 2011(2) ZLR 355(H) where it was held that what was contemplated by the Procurement Act was that every procurement entity must adopt a method that complies with the general procedures elaborated in the regulations and that any departure from the prescribed proceedings must be sanctioned under the Act or Regulations. The issue here is whether the tender process conducted by the 1st respondent is contrary to the provisions of the Procurement Act Chapter 22:14 and its regulations? It is common cause that section 4 sets out the monetary threshold for informal and formal tenders. It is also common cause that the bid prices exceeded the threshold for an informal tender that had been flighted. Further, it is also common cause that when faced with this predicament, 1st respondent sent a bid evaluation for review to the State Procurement Board in terms of section 21 of SI 126/15. The section states: “Board shall review Accounting Officer’s awards for formal tenders. 21. The Board shall review the Accounting Officer’s recommendations and issue an opinion based on the facts presented, the opinion does not exonerate the Accounting Officer from mis-procurement when additional information contrary or in addition to the initial presentation are received.” In submitting its report to the State Procurement Board the Accounting Officer complied with the provisions of section 16 of SI 126 of 2015. The State Procurement Board received the report and deliberated on it fully before issuing its opinion to the 1st respondent. The real issue is whether an informal tender flighted as such could be lawfully transformed into a special Informal or Formal Tender in terms of section 21 supra. In order to fully appreciate how section 21 was invoked, it is necessary to examine the relevant communication between the 1st respondent’s Group Chief Executive and the State Procurement Board. The former wrote in the following terms: “… with reference to your correspondence SPB/A/12/B of 27 June 2016, we hereby submit our evaluation report for the above-mentioned tender for your review. The total annual cost of the contract will exceed the Informal Tender threshold as anticipated. Please find attached bid documents, tender documents and signed evaluation report. Your opinion and guidance will be appreciated.” In response, the State Procurement Board wrote: “Reference is made to your minute dated July 7, 2016 concerning the above. At its Meeting No.50/2016, Members observed that the Accounting Officer floated a Limited Tender without prior approval of the Board in violation of section 7 (1) of the Procurement Regulations. Accordingly, the State Procurement Board has, through PBR 0699 of July 14, 2016, having reviewed the Accounting Officer’s submission in line [with] SI 126/2015, resolved that: • There is “No objection” to the Accounting Officer’s request to award Informal Tender No. CLE 01/2016 for Provision of Cleaning Services, to SURDAX Investments P/L the lowest bidder to specification, in the sum of US$536 345,28. • In terms of SI 159/2012, the Accounting Officer should pay US$900 administration fees as per State Procurement Board invoice for violating sections 7(1) and 25(4) of the Procurement Regulations as amended by floating a “limited Tender” and limiting participation to Registered Suppliers without prior approval by the Board. You are therefore advised to proceed as follows: 1. Take all necessary steps as directed by the resolution. 2. In all communications, please quote the above PBR number and the date.” It follows therefore from the above that the State Procurement Board has authority to review an Accounting Officer’s recommendations and proffer an opinion and directions. There is nowhere in the regulations where it is stated that an informal tender may not be reviewed by the State Procurement Board and applicant’s counsel has not drawn my attention to any such provision. In my view s21 provides the legal basis for reviewing an informal tender so as to convert it to a formal tender where necessary. Therefore I find no merit in applicant’s contention that the informal tender was a nullity because the bids exceeded the informal tender threshold stipulated in the Regulations. The informal tender process was found to be valid by the State Procurement Board despite the imposition of an administrative fee for violating sections 7(1) and 25(4) of the Regulations. I note with interest that the procedure that applicant complains about did not in any way prejudice it. The manner in which the tender was issued and the subsequent conversion has nothing to do with the reasons why applicant’s bid was rejected. For the above reasons, the main ground for review is hereby dismissed. In the alternative, applicant argued that the decision of the 1st respondent to reject its tender bid on the basis that it failed to meet mandatory requirements in that it did not specify payment terms is irrational, or so wrong that it must have been reached, “deliberately or inadvertently, by failing to apply the right criteria or through bias, malice or corruption on the part of 1st respondent.” The totality of applicant’s argument on this ground is captured in paragraphs 21 and 22 of its heads of argument. I hereby reproduce them verbatim. “21. Item 14 under Evaluation Criteria of the Request for Proposals required bidders to state; “Payment strictly after provision of service”. In response to that requirement the applicant stated that: “Payment terms: 30 days”. The 1st respondent contends that the applicant’s stated payment terms do not meet the requirement to state “Payment strictly after provision of service”. The 1st respondent contends that the applicant should have stated that “Payment terms: 30 days strictly after provision of service”. It is submitted that the 1st respondent’s contention is manifestly flawed and irrational because it would be unnecessarily repetitive for the applicant to repeat the wording “strictly after provision of service” when same is already stated in item 14 of the evaluation criteria in the Request for Proposals. 22. There was therefore no vagueness or failure to meet the mandatory requirement to state payment terms in the applicant’s bid. The stated payment term of “30 days” is a sufficient response to the requirement in item 14 of the Request for Proposals.” (my emphasis) It is clear from the above argument that applicant does not deny that it did not exactly do what it was required to do by the 1st respondent. Its contention is that what it did is sufficient to meet the requirement. What is vague is what is not clear and applicant’s phrase “30 days” is not clear in that it is unknown when the 30 day period begins to run. In other words does it start to run before or after the service has been rendered. Applicant’s tender was inelegantly drafted and it was not the procurement committee’s duty or role to search for a meaning. The committee acts as an umpire, it cannot add words or supplement one bid in favour of another – see Premier Free State and Ors v Firechem Free State (Pty) Ltd 2000 (4) SA 413 (SCA) at para 30. As regards irrationality, it is trite that a court sitting as a review court can only set aside a decision if it is satisfied that it was so grossly unreasonable that no reasonable person applying his mind to the facts before him would have come to that conclusion. See EXP MUSS X 1993 (1) ZLR 233 (H) at 239C; Charumbira v Commissioner of Taxes &amp; Ors 1998 (1) ZLR 584 (S) at 585D-E and Muringi v Air Zimb Corp &amp; Anor 1997 (2) ZLR 488 (S) at 490F. In the present case, the 1st respondent’s decision cannot be described as so grossly, unreasonable that no reasonable person applying his mind to the facts before him would have come to that conclusion. As regards bias, corruption and malice, I concur with counsel for the 1st respondent that these allegations are “a red herring”. In fact the applicant betrays itself by stating that “it has shown a well-grounded apprehension of bias and malice against it in that the 1st respondent previously refused to allow the applicant to commence the provision of tendered services after the applicant was declared a winning bidder.” One wonders why applicant thought this allegation was relevant. Applicant’s prayer that he be awarded the tender as the “lowest bidder” is baseless because the lowest bidder is the 2nd respondent. In conclusion, I find that the bidding process followed by 1st respondent was in tandem with the procurement laws and dictates of justice and fairness. Consequently, the alternative ground for review is devoid of merit and is hereby dismissed. Accordingly, the application is dismissed with costs. Ncube &amp; Partners applicant’s legal practitioners Kantor &amp; Immerman 1st 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/bulawayo-high-court/2018/1/2018-zwbhc-1.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=25330">2018-zwbhc-1.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/2018/1/2018-zwbhc-1.pdf" type="application/pdf; length=120566">2018-zwbhc-1.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/joinder-parties">Joinder of parties</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/when-may-be-ordered-joinder-parties">when may be ordered (Joinder of parties)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review">Review</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-review">application for review</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/proceedings-brought-review">Proceedings brought on review</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/2015/482">MBCA Bank Ltd v RBZ &amp; Another (HC 1147/14) [2015] ZWHHC 482 (26 May 2015);</a></div></div></div> Wed, 11 Apr 2018 07:43:15 +0000 admin 8705 at https://old.zimlii.org