R https://old.zimlii.org/taxonomy/term/11164/all en Triangle Limited And Another v ZIMRA And 10 Others (SC 82-21, Civil Appeal No. SC 288/20) [2021] ZWSC 82 (01 July 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/82 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>judgment </p> <p> </p> <p><strong>REPORTABLE</strong>        <strong>(79)</strong></p> <p> </p> <p> </p> <ol> <li><strong>    TRIANGLE     LIMITED     (2)     HIPPO     VALLEY     ESTATES     LIMITED</strong></li> </ol> <p><strong>V</strong></p> <ol> <li><strong>ZIMBABWE     REVENUE     AUTHORITY</strong></li> <li><strong>Zimbabwe Sugarcane Develeopment Associations</strong></li> <li><strong>Zimbabwe Cane Farmers Association</strong></li> <li><strong>Mkwasine Sugar Farmers Trust</strong></li> <li><strong>Commercial Sugarcane Farmers Association</strong></li> <li><strong>Hippo Valley Productive Farmers Association</strong></li> <li><strong>Zimbabwe Sugarcane Development Association Royal Trust</strong></li> <li><strong>Chipiwa Mpapa Mill Group</strong></li> <li><strong>Chiredzi Productive Cane Growers </strong></li> <li><strong>Farai Dumo Augustine Musikavanhu</strong></li> <li><strong>Roy Bhila</strong></li> </ol> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA DCJ, MATHONSI JA &amp; CHITAKUNYE AJA</strong></p> <p><strong>HARARE: 18 MAY 2021 &amp; 01 JULY 2021.</strong></p> <p> </p> <p> </p> <p><em>E. T. Moyo, </em>for the appellants.</p> <p><em>T. Magwaliba, </em>for the first respondent.</p> <p><em>W. Muzenda</em>, for the second, eighth and tenth respondents</p> <p><em>C. Ndlovu</em>, for the fifth respondent</p> <p><em>R. Chavi</em>, for the seventh respondent</p> <p>Third, fourth, sixth, ninth and eleventh respondents in default.</p> <p> </p> <p> </p> <p>                   <strong>MATHONSI JA:           </strong>This is an appeal against the judgment of the High Court sitting at Masvingo delivered on 24 June 2020 which dismissed with costs the application made by the two appellants for a declaratory order and an interdict.</p> <p> </p> <p><strong>FACTUAL BACKGROUND</strong></p> <p>                   The two appellants are sugar producing giants in the Lowveld while the first respondent is the statutory body charged with revenue collection in Zimbabwe.  The remainder of the respondents are either sugar cane farmers or associations representing such farmers.  The respondents will be referred to in this judgment for convenience, as Zimbabwe Revenue Authority and the farmers respectively.</p> <p> </p> <p>                   The appellants and the farmers entered into two types of agreements, either a “cane milling agreement” or a “cane purchase agreement” in terms of which the appellants would either provide milling services to the farmers and market their sugar and molasses or outrightly purchase the sugar cane.</p> <p> </p> <p>                   The dispute which arose between the parties did not involve the outright purchase and sale of sugar cane.  As such this judgment does not deal with that scenario at all.  The judgment concerns itself with the cane milling agreements entered into between the parties.</p> <p> </p> <p>                   In terms of the cane milling agreements, the charge for milling and marketing services payable by the farmers to the appellants was calculated in terms of a pre-determined ratio referred to as the “Division of Proceeds” (DoP) ratio.  It was fixed at 23 percent of the proceeds the farmers would get, meaning that the appellants would retain 23 percent of the proceeds while remitting the balance of 77 percent to the farmers.</p> <p> </p> <p>                   Regrettably, in fixing the milling and marketing charge, the appellants did not include Value Added Tax (VAT) as required by law.  It follows that no Value Added Tax was paid by the appellants to Zimbabwe Revenue Authority in that regard.  It was in the process of auditing the appellants’ VAT assessments for the period 2009 to 2017 that Zimbabwe Revenue Authority decided that the milling and marketing charges of 23 percent of the proceeds levied by the appellants against the farmers attracted VAT.</p> <p> </p> <p>                   Zimbabwe Revenue Authority proceeded to issue assessments of VAT for those years and demanded payment of same from the appellants.  These assessments related to the past supplies where the appellants ought to have, but failed to, collect and remit VAT to Zimbabwe Revenue Authority.  The appellants objected to the assessments which objections were all disallowed by Zimbabwe Revenue Authority.  The appellants appealed to the Fiscal Appeals Court but paid the assessed VAT to Zimbabwe Revenue Authority notwithstanding.  An appeal does not exonerate a tax payer from paying the assessed tax.</p> <p> </p> <p>                   After effecting payments to Zimbabwe Revenue Authority, the appellants sought to recover such VAT from the farmers on the basis that they were obliged to charge and collect the VAT from the consumers of the service, the farmers, but had not done so.  The appellants were of the view that it was only fair and reasonable that the farmers should re-imburse them of the VAT paid by them to Zimbabwe Revenue Authority.  There being no convergence between the farmers, who had obtained advice from Zimbabwe Revenue Authority that the 23 percent Division of Proceeds ratio was inclusive of VAT, and the appellants, the latter filed an application in the court <em>a quo</em>.</p> <p> </p> <p>                   In their application the appellants sought declaratory relief that they were legally entitled to continue charging and collecting VAT from the farmers over and above the 23 percent milling charge.  The appellants also sought to be re-imbursed the monies they paid to Zimbabwe Revenue Authority on past assessments.</p> <p>                   In addition, they accused Zimbabwe Revenue Authority of interfering with contractual issues between them and the farmers by rendering advice to the farmers on the VAT dispute.  Accordingly the appellants sought an order interdicting Zimbabwe Revenue Authority from what they called “gratuitously interfering in pricing and contractual issues” between them and the farmers.</p> <p> </p> <p>                   The application was opposed by Zimbabwe Revenue Authority and most of the respondents.</p> <p> </p> <p><strong>DECISION <em>A QUO</em></strong></p> <p>                   It was the view of the court <em>a quo</em> that the entire dispute revolved around the interpretation of s 69 and s 72 of the Value Added Tax Act [<em>Chapter 23:12</em>].  Regarding the past supplies of sugar cane to the appellants the court <em>a quo</em> found that the literal meaning of s 69 of the Act suggests that it is irrelevant whether the registered operator has charged VAT or not.  If the price does not reflect the tax component, s 69 operates such that there is a presumption that a price not reflecting VAT included that tax.</p> <p> </p> <p>                   It was the finding of the court <em>a quo</em> that the section serves to “estop” a registered operator, who has not reflected VAT on the price, from denying that the price includes that tax.  It also found that s 69 precludes such registered operator from subsequently claiming VAT not reflected on the price.  In the court <em>a quo</em>’s view, permitting the appellants to recoup VAT in retrospect would render nugatory the deeming provision of s 69 as the deeming provision cannot be interpreted to mean different things to two different people.</p> <p> </p> <p>                   Regarding the claim for VAT on present and future supplies of sugar cane which the contracts of the parties are still silent on, the court <em>a quo</em> took the view that it was up to the parties to renegotiate or clarify the terms of their contracts in order to plug the existing <em>lacunae</em>.  If they do not, then s 69 of the Act will continue to apply.</p> <p>                   The court <em>a quo</em> was not persuaded that a case was made for an interdict against the first respondent.  It recognised that the appellants had made a formal request to the first respondent to intervene and educate the farmers on the tax implications of their agreement.  They could not thereafter cry foul after such intervention.  In addition, the court <em>a quo</em> found no evidence of the first respondent’s interference with the pricing issues between the appellants and the farmers.</p> <p>                   On the question of costs the court <em>a quo</em> found no basis for departing from the general rule that costs follow the result.  It dismissed the application with costs granted in favour of only those respondents who participated in the suit.</p> <p>                   The appellants were aggrieved.  They noted this appeal to this Court on the following grounds;</p> <p> </p> <p><strong>GROUNDS OF APPEAL</strong></p> <ol> <li>The learned judge of the court <em>a quo</em> erred and misdirected himself in finding that s 69 of</li> </ol> <p>the Value Added Tax Act [<em>Chapter 23:12</em>] operated to preclude the appellants from recovering VAT for past supplies on an alleged milling service which first respondent considered to have been rendered to farmers.</p> <ol> <li>Further the court <em>a quo</em> erred and misdirected itself in failing to pronounce definitively</li> </ol> <p>on the appellant’s right and entitlement to charge, levy and collect VAT, and the farmer’s respective obligation to pay same, in addition to the value of the alleged milling service with respect to current and future supplies pursuant to the first respondent’s decision to impose tax.</p> <ol> <li>The learned Judge of the court <em>a quo</em> erred and misdirected himself in failing to find that</li> </ol> <p>the letter by the first respondent to the farmers with respect to the farmers’ tax obligations strayed upon purely contractual matters which it was not competent for the first respondent to prescribe to parties.</p> <ol> <li>The court <em>a quo</em> erred in awarding costs against the appellants and in favour of the</li> </ol> <p>respondents in general and at any rate most especially as it relates to second, fifth, seventh, eighth and tenth respondents in particular.</p> <p> </p> <p><strong>ISSUES</strong></p> <p>                   The grounds of appeal may be four but they speak to essentially two narrow issues for determination in this appeal.  They are:</p> <ol> <li>Whether or not the court <em>a quo</em> erred in refusing to grant the declaratur and the interdict.</li> <li>Whether or not the court <em>a quo</em> erred in granting costs against the appellants.</li> </ol> <p> </p> <p><strong>SUBMISSIONS ON APPEAL</strong></p> <p>                   Mr <em>Moyo</em> for the appellants anchored his arguments on the legal effects of the decision taken by the first respondent contained in its letter dated 9 September 2019.  Following meetings held by the parties the first respondent determined that:</p> <p>“1. The VAT Act under section 6 provides that VAT shall be charged and levied</p> <p>where a service is provided.  Facts at hand indicated that millers provide milling services to the farmers and they retain 23% from the sugar proceeds</p> <p>.......</p> <p>Given the above legislative requirements VAT is therefore applicable on the milling fees and as discussed in the meeting VAT is recovered as depicted in the following scenario......”</p> <p>                   It was submitted that the moment the first respondent made the decision to commence recovering VAT on milling services when, prior to that it had not done so, the provisions of s 72(1) of the Act were triggered.  The section provides:</p> <p>“(1) Whenever the value added tax is imposed or increased in respect of any supply of goods or services in relation to which any agreement was entered into by the acceptance of an offer made before the tax was imposed or increased, as the case may be, the registered operator may, unless agreed to the contrary in any agreement in writing and notwithstanding anything to the contrary contained in any law, recover from the recipient, as an addition to the amounts payable by the recipient to the registered operator, a sum equal to any amount payable by the registered operator by way of the said tax on increase, as the case may be, and any amount so recoverable by the registered operator shall, whether it is recovered or not, be accounted for by the registered operator under this Act as part of the consideration in respect of the said supply.”</p> <p>                   To the extent that VAT was only imposed on the milling fees by letter quoted above, so the argument goes, when it had not been claimed previously, the appellants were entitled to recover it from the recipients of the milling services by virtue of that provision.</p> <p>                   It was submitted further that the deeming provisions of s 69 do not preclude the appellants from recovering the VAT paid to the first respondent.  This is so because the section is a shield in the hands of the revenue collector.  It is an administrative tool for the facilitation of easy collection of taxes without disruptive disputes with registered operators.  In Mr <em>Moyo’s</em> view, s 69 cannot be used to estop the operator from recovering VAT paid to the collector.</p> <p>                   <em>Per contra</em>, Mr <em>Magwaliba</em> for the first respondent submitted that given that the contracts for milling services did not reflect VAT, s 69 of the Act applies.  To that extent, in respect of past supplies, the contract price is deemed to be inclusive of VAT.  It was submitted further that in the absence of an agreement with the farmers to vary the contract price, even by the application of basic principles of contract law, the appellants could not unilaterally vary the price by levying VAT.</p> <p>                   On the effects of s 72 of the Act, it was submitted that the section may be regarded as a law – changing provision.  In the event that the law changes to include VAT where it was not applicable, so it was argued, or to increase the applicable VAT, then by dint of s 72, the agreement is varied accordingly.  The net effect of those submissions is that the section has no application where VAT was excluded in the agreement when it should have been included.</p> <p>                   Regarding the alleged interference with contractual rights and obligations by the first respondent, Mr <em>Magwaliba</em> submitted that the advice rendered by the first respondent was not only at the invitation of the appellants themselves but also in fulfilment of a statutory obligation.  The first respondent is obliged to educate tax payers on their tax obligations.  The requirements for an interdict were not met.</p> <p> </p> <p>                   Counsel for the rest of the respondents in attendance, in chorus, associated themselves with submissions made on behalf of the first respondent.</p> <p> </p> <p> </p> <p> </p> <p><strong>ANALYSIS</strong></p> <p>                   In as much as the record of appeal and the submissions made by counsel are heavy, what has to be decided has become very narrow indeed.  The entire appeal turns on the effect of the deeming provision in s 69.  In particular, whether it operates to prevent a registered operator who has fallen foul of the law by not reflecting VAT on the price of goods and services, from later recouping the VAT demanded by the first respondent from the consumer.</p> <p> </p> <p>                   <em>A fortiori</em>, whether s 72 applies to a situation where the registered operator has excluded or not reflected VAT on the price of goods and services even though the law required such registered operator to levy and reflect VAT on the price.  Section 72 varies the contract price by the margin of VAT imposed or increased subsequent to the contract being concluded.  I agree with Mr <em>Magwaliba</em> that it is a law-changing provision as it clearly relates to the imposition of a new tax or the increase of an existing tax.</p> <p> </p> <p>                   It is common cause that the burden of paying VAT lies with the consumer of goods and services.  The system of VAT collection existing in this jurisdiction was succinctly summarised by the court in <em>Zimbabwe Revenue Authority v Packers International (Private) Limited </em>2016(2) ZLR 84(S) at 85 D-F thus:</p> <p>“The system of collection of VAT as embodied in the VAT Act, involves the imposition of tax at each step along the chain of manufacture of goods or the provision of services subject to VAT.  Consequently, every registered operator is required in terms of s 28 of the VAT Act, to submit returns to the Commissioner of Taxes (‘the Commissioner’) every month, calculate the VAT due on the return and make payment of such VAT.  Due to the sheer volume and complexity of the VAT collection system, ZIMRA lacks the capacity and manpower to effectively monitor each and every transaction liable to VAT and as a consequence it is heavily reliant on the self-assessment process by registered operators.  However, in order to ensure that operators comply with the requirements to render returns and collect VAT, ZIMRA conducts periodic investigations as well as audits.”</p> <p> </p> <p>                   In terms of the VAT collection system which is in place, while the burden to pay resides with the consumer of goods and services, the registered operator bears the burden of collecting VAT and remitting it to the revenue collector.  Where the registered operator has omitted as required by s 6(1) of the Value Added Tax Act, to include VAT on the price, s 69(1) is activated to deem VAT to be included in whatever price is pegged by the operator.</p> <p> </p> <p>                        Section 6(1) is very clear in its wording, it provides:</p> <p>“Subject to this Act, there shall be charged, levied and collected, for the benefit of the Consolidated Revenue Fund a tax at such rate as may be fixed by the Charging Act on the value of-</p> <p> </p> <ol> <li>the supply by any registered operator of goods or services supplied by him on or after the 1st January 2004, in the course or furtherance of any trade carried on by him:”</li> </ol> <p> </p> <p> </p> <p> </p> <p>                   What it means is that by failing to charge, levy and collect VAT from the consumers of their milling services the appellants breached, to their peril, the peremptory provisions of s 6(1) of The Act.  By operation of s 69(1) the 23 percent charge for milling services was taken to include VAT for all intents and purposes.  The court <em>a quo</em> cannot be faulted for finding that, whether by inadvertence, oversight or misinterpretation of the nature of the contract, the consequence of the failure to specifically include VAT are that it is deemed included in the milling price.  The deeming provision cannot be applied differently on the registered operator and the consumer.</p> <p> </p> <p>                   As regards the question whether s 72(1) rescues the appellants from the consequences of their failure to comply with the peremptory provisions of s 6(1)(a), it is clearly a matter of statutory interpretation.  In my view the simple grammatical meaning of the words “whenever the value added tax is imposed or increased in respect of any supply of goods and services ....” is that, in the first instance, there would be no tax on such supply and the law steps in to impose a tax.</p> <p> </p> <p>                   In the second instance the law would have imposed a tax on the supply but it moves in to increase the value of tax.  In both instances the parties would have contracted in certain terms before the law changes.  Upon change of the law, s 72(1) comes in to vary the terms of a pre-existing contract to either impose or increase the tax.</p> <p> </p> <p>                   I do not agree with Mr <em>Moyo’s</em> submission that upon conducting an audit which revealed that the appellants were rendering a taxable milling service while not levying and collecting tax, the first respondent imposed a tax.  In my view the law had already imposed the tax but the appellants were committing an infraction by not reflecting it.  Again, the court <em>a quo</em> was correct in concluding that there was no imposition of a “new tax” nor an increase of chargeable tax.  Accordingly s 72(1) has no application and is certainly not available to the appellant.</p> <p> </p> <p>                   Mr <em>Moyo</em> did not prosecute the issue of the interdict sought against the first respondent with any degree of enthusiasm.  It is not without reason that this is so.  Firstly, evidence placed before the court <em>a quo</em> shows that the appellants invited the first respondent to intervene and educate the farmers on the tax implications of their contracts with the appellants.  That the first respondent interpreted their contracts in a manner not favourable to the appellants can scarcely found a cause of action.</p> <p> </p> <p>                   Secondly, and more importantly, the requirements for the grant of an interdict were not met.  I can only advert to the fact that the court <em>a quo</em> made factual findings relating to the failure by the appellants to prove that the first respondent had interfered with the contractual issues.  It also made a finding that the advice rendered by the first respondent was only confined to VAT matters falling within the statutory province of the first respondent as a revenue collector.  Surely one cannot be interdicted from carrying out a lawful duty.</p> <p> </p> <p>                   The court <em>a quo</em> also made a finding that the use of the term “gratuitously interfering” was too imprecise and unenforceable.  On appeal the appellants failed to set out a basis for interference with those findings.  It is trite that it is only where the factual findings of the lower court are clearly irrational to an extent that no sensible court seized with the same facts could have reached such a conclusion that the appellate court will interfere.  See <em>Hama v National Railways of Zimbabwe</em> 1996(1) ZLR 664 (S), <em>Shuro v Chiuraise</em> SC 20/19.  No such threshold was attained in the present case.  As such this Court cannot interfere.</p> <p> </p> <p>                   It remains for me to deal with the question of costs.  The court <em>a quo</em> granted costs against the appellants in favour of those respondents who participated in the proceedings.  It premised its decision on the general rule that costs follow the result.  Its attention was not drawn to the widely held principle in tax cases that the High Court or the Special Court is loathe to make an order as to costs save where the claim is held to be unreasonable or the grounds of appeal are frivolous.  See s 65(12) of Income Tax Act [<em>Chapter 23:06</em>].</p> <p> </p> <p>                   On appeal, counsel again did not address that issue at all.  It occurs to me that the court <em>a quo</em> was incapacitated in respect of costs by the failure to bring its attention to the prevailing jurisprudence on such costs.  As a result it misdirected itself, a misdirection entitling this Court to interfere with its exercise of discretion.</p> <p>                   There is nothing in this case suggesting that the appellants’ case was unreasonable or that it was frivolous.  Quite to the contrary, they raised quite pertinent issues which required the court to embark on detailed interpretation of the law.  The same applies to the appeal.  In my view this is a classic case in which the costs both <em>a quo</em> and in this Court should not be awarded to any party.</p> <p> </p> <p>                   In the result it be and is hereby ordered as follows:</p> <ol> <li>The appeal in respect of grounds of appeal 2.1, 2.2 and 2.3 is dismissed</li> </ol> <p>       with each party to bear its own costs.</p> <p>2.    The appeal in respect of ground of appeal 2.4 is upheld.</p> <p>3.    The judgment of the court <em>a quo</em> is amended by the deletion of para 5 and its substitution with the following:</p> <p>       “5. Each party shall bear its own costs.”</p> <p> </p> <p> </p> <p><strong>GWAUNZA DCJ:</strong>                                  I agree</p> <p> </p> <p> </p> <p> </p> <p><strong>CHITAKUNYE AJA:</strong>                            I agree</p> <p> </p> <p><em>Scanlen &amp; Holderness, </em>the appellants’ legal practitioners.</p> <p> </p> <p><em>Chuma, Gurajena &amp; Partners, </em>1st respondent’s legal practitioners.</p> <p> </p> <p><em>Muzenda &amp; Chitsama Attorneys</em>, 2nd, 8th and 10th respondents’ legal practitioners.</p> <p> </p> <p>Zimbabwe Cane Farmers Association, 3rd respondent.</p> <p> </p> <p><em>Kwirira &amp; Magwaliba</em>, 4th respondent’s legal practitioners.</p> <p> </p> <p><em>Ndlovu &amp; Hwacha</em>, 5th respondent’s legal practitioners.</p> <p> </p> <p><em>Mutumbwa, Mugabe &amp; Partners</em>, 6th respondent’s legal practitioners</p> <p> </p> <p><em>Ross Chavi Law Office</em>, 7th respondent’s legal practitioners</p> <p> </p> <p>Chiredzi Productive Cane Growers Association, 9th respondent</p> <p> </p> <p>Roy Bhila, 11th respondent</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="Microsoft Office document icon" title="application/msword" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/82/2021-zwsc-82.doc" type="application/msword; length=88064">2021-zwsc-82.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/supreme-court-zimbabwe/2021/82/2021-zwsc-82.pdf" type="application/pdf; length=461325">2021-zwsc-82.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/r">R</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/revenue-and-public-finance-see-also-customs-and-excise">REVENUE AND PUBLIC FINANCE See also CUSTOMS AND EXCISE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/value-added-tax">Value added tax</a></li></ul></span> Wed, 14 Jul 2021 12:03:33 +0000 Sandra 10078 at https://old.zimlii.org S v Mutokodzi And 2 Others (HH 299-21, CRB 2422/21 XREF CRB 991/21 REF CRB 2281/21) [2021] ZWHHC 299 (15 May 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/299 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HH 299-21</p> <p>CRB 2422/21</p> <p>CRB 991/21</p> <p>CRB 2281/81</p> <p> </p> <p>FEBBIE MUKOTODZI</p> <p>and</p> <p>NYASHA JORDAN</p> <p>and</p> <p>RODRICK TICHAONA</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAPI J</p> <p>HARARE, 15 May 2021</p> <p> </p> <p><strong>Criminal Review</strong></p> <p> </p> <p>            CHITAPI J:  The three matters above were dealt with by the same Provincial Magistrate sitting at Mbare. The trials of the accused persons were disposed of by guilty plea procedure in terms of s 271(2)(b) as read with s 271(3) of the Criminal Procedure &amp; Evidence Act, ([Chapter 9:07]. In the case of <em>S</em> v<em> Febbie Mukotodzi</em> CRB 2422/21 the accused on his guilty plea was convicted of  assault as defined in s 89(1)(a) of the Criminal Law (Codification &amp; Reform) Act, [Chapter 9:23] (“Criminal Code”). It was alleged that the accused slapped the complainant several times on the face on 15 April 2021 at Glen Norah B Shopping Centre. The accused was sentenced to 18 months imprisonment wholly suspended in part on condition of good behaviour and in part on condition that the accused performed community service.</p> <p>            In the case of <em>S </em>v<em> Nyasha Jordan</em> CRB 991/21 the accused was convicted of theft as defined in s 113(1)(a) of the Criminal Code. It was alleged that on 24 February 2021 the accused stole a purse with money at Mbudzi roundabout, Waterfalls, Harare. The accused was sentenced to 24 months imprisonment. 12 months of the sentence was suspended on conditions of restitution and a further 6 months on condition of good behaviour leaving an effective sentence of 6 months imprisonment.</p> <p>In the case of <em>S</em> v <em>Roderick Tichaona Meki</em> CRB 228/21, the accused was on his plea of guilty convicted of robbery as defined in s 126 of the Criminal Code. It was alleged that he robbed the complainant of a lap top, phone handset and charging accessories on 9 April, 2021 at Lord Malvern High School in Waterfalls. The accused was sentenced to 36 months imprisonment with 6 months suspended on conditions of future good behavior leaving an effective prison term of 30 months.</p> <p>In the case of <em>Nyasha Jordan</em>, the accused was charged with and convicted of the offence of theft as defined on s 113 (1) (a) and (b) and of the Criminal Code. The allegations against him were that the accused was self-employed as a tout at Mbudzi roundabout, Waterfall, Harare. On 24 February, 2021, he stole the complainant’s satchel with US$2 000.00 and ZAR 2000.00. The complainant was a traveller looking for transport. The accused was convicted on his plea of guilty and sentenced to 24 months imprisonment of which six months was suspended on conditions of future good behavior and 12 months on conditions of restitutions leaving an effective prison term of 6 months imprisonment.</p> <p>            In all the three records of proceedings, the trial on plea was done in the same fashion or pattern. The following appears recorded:</p> <p>            “charges – put and understood</p> <p>            Plea – G 271 (2)(b)</p> <p>            Facts – read and understood</p> <p>            …………………………………..”</p> <p> </p> <p>            The procedure followed was wrong. It did not conform to the peremptory provisions of s 271(3) of the Criminal Procedure and Evidence which sets out what the court is required to do in guilty plea proceedings. There have now been several review judgments of this court wherein proper direction has been given on how guilty plea proceedings ought to be conducted.</p> <p>            The guilty plea procedure is simple and straight forward but cumbersome or involved in terms of what the court is required to do. Whenever a case is to be disposed by way of guilty plea other than summarily in terms of s 271(1)(a), that is if the plea proceedings are to be conducted in terms of s 271(2)(b), the court should always keep in mind the provisions of s 271(2)(b); 271(3) and 272 of the Criminal Procedure and Evidence Act. It is not necessary to quote the sections extenso. Section 271 (2)(b) is the enabling section in regard to the guilty plea procedure whilst s 271(3) provides for the procedure to follow. Central to s 271(3) is that the matters provided for therein must be recorded. Critically, and relevant to the review herein is the provision which requires that the magistrate must “EXPLAIN THE CHARGE and RECORD THE EXPLANATION MADE.” (own emphasis.) This is what the magistrate failed or omitted to do in all the three cases. The omission to do so is a gross irregularity because firstly the requirement to do so is peremptory. Secondly, the procedure ensures a fair trial which is an inalienable right of the accused. No law may qualify the right as is evident upon a reading of s 86(3)(e) of the Constitution. Section 272 of the Criminal Procedure &amp; Evidence Act provides for the requirement that in dealing with a trial on a guilty plea basis, if in the course of proceedings, there is doubt on the part of the court that the accused’s guilty plea is genuine or that he is guilty as pleaded, the court should alter the plea to not guilty and direct the prosecutor to proceed to trial. Significantly, any admission made by the accused up to the stage of the change of plea are treated as evidence against the accused.<em> S</em> v <em>Enock Mangwende</em> HH 895/20, <em>S</em> v <em>Moyo </em>697/20.</p> <p>            It appears to me that despite this court’s guidance on the need for magistrates to strictly comply with the provisions of s 271 (2) (b), 271 (3) and 272, the guidance falls on deaf ears and the blind. The situation is akin to a refusal to heed the advice or to read cases where such direction has been given. The trend wherein the same errors in procedure are made is worrying and constitute threat to the criminal justice system. The threat arises from the fact that the irregular proceedings are invariably set aside on review and the accused persons are released back into society without serving their sentences in full. Re-trials are then instituted by the Prosecutor General in his discretion. The retrials clog the court rolls and increase the backlog. All this can be avoided if the magistrates properly and procedurally conduct the guilty plea trials. Such trials form the bulk of cases disposed of in the magistrates court. It is unacceptable for the court to preside over an irregular trial on account of lack of knowledge of trial provisions. It is in my view an act of incompetence for a judicial officer to fail to comprehend steps required to be followed in holding a guilty plea trial when such procedure is legislated in black and white in s 271(2)(b) as read with s 271(3) of the Criminal Procedure &amp; Evidence Act. It is worse so where the superior court has interpreted the trial procedure and given guidance to the magistrates through judgments issued and the judicial officer is not guided by the judgements either by design or by default to keep abreast with important judgments of this court on procedure.</p> <p>            The failure by the magistrate to strictly comply with the provisions of s 272 (2) (b) as read with s 271 (3) should be censured because the accused person was by such failure to comply with the law subjected to an unfair trial. As has been done in proceedings where the misdirection by the magistrate pertains to a procedural irregularity in the nature of a failure to comply with s 271 (3), the impugned proceedings have invariably been set aside. The same process will ensue.</p> <p>The following order, made-</p> <ol> <li>The convictions and sentences in the following cases</li> </ol> <ol> <li><em>S</em> v <em>Febbie Mukotodzi</em> MBR CRB 2422/21</li> <li><em>S </em>v <em>Roderick Tichaona Meki</em> MBR CRB 2281/21</li> <li><em>S</em> v <em>Nyasha Jordan</em> MBR CRB 991/21</li> </ol> <p>are set aside and the accused persons entitled to their immediate release from serving the imposed sentences.</p> <ol> <li>The Prosecutor General may in his absolute discretion institute fresh prosecutions against the accused persons in the same matters, subject to the proviso that if the accused persons are retried, they shall not be sentenced to sentences more severe than the ones to which they were sentenced and the served portions of their sentences shall be taken into account in any sentence which may be imposed.</li> <li>The Registrar shall forward a copy of this judgmental to the Chief Magistrate for dissemination to magistrates for continued guidance.</li> </ol> <p> </p> <p>MUSITHU J agrees……………………………………………..</p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="Microsoft Office document icon" title="application/msword" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/299/2021-zwhhc-299.doc" type="application/msword; length=44032">2021-zwhhc-299.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/2021/299/2021-zwhhc-299.pdf" type="application/pdf; length=319089">2021-zwhhc-299.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/plea">Plea</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/guilty">guilty</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/r">R</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review-0">REVIEW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-matter-see-criminal-procedure-review">Criminal matter See CRIMINAL PROCEDURE (Review)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Mon, 21 Jun 2021 09:18:40 +0000 Sandra 10069 at https://old.zimlii.org MGZ (Pvt) Ltd v The Commissioner General ZIMRA (HH 269-21, ITC 01/16) [2021] ZWHHC 269 (01 June 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/269 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HH 269-21</p> <p>ITC 01/16</p> <p>MGZ (PVT) ‌LTD‌ ‌</p> <p>versus‌</p> <p>THE COMMISSIONER GENERAL ‌‌</p> <p>ZIMBABWE REVENUE AUTHORITY‌ ‌</p> <p> </p> <p> </p> <p>SPECIAL COURT FOR INCOME TAX APPEALS‌</p> <p>MTSHIYA ‌ ‌AJ‌ ‌‌</p> <p>HARARE,‌ ‌10 September 2019 ,‌ ‌26 November 2019, 29 January 2020, 27 February 2020,13 July 2020, 2 November 2020, 22 March 2021 and 1 June 2021.</p> <p> </p> <p><strong>Income‌ ‌Tax‌ ‌Appeal‌ ‌</strong></p> <p> </p> <p><em>D.  Ochieng, ‌ </em>‌‌for‌ ‌the‌ ‌appellant‌ ‌</p> <p><em>‌T‌ ‌Magwaliba‌, </em>‌‌for‌ ‌the‌ ‌respondent‌<strong> ‌</strong></p> <p><strong> ‌</strong></p> <p> </p> <p>MTSHIYA‌ ‌AJ‌<strong> ‌:</strong> ‌This‌ ‌is‌ ‌an‌ ‌appeal‌ ‌in‌ ‌‌terms‌ ‌of‌ ‌section‌ ‌65‌ ‌of‌ ‌the‌ ‌Income‌ ‌Tax‌ ‌Act,‌ ‌(‌ ‌ITA)‌ ‌where‌ ‌on‌ ‌10 October 2018‌ ‌the‌ ‌parties‌ ‌agreed‌ ‌that‌ ‌the‌ ‌main‌ ‌issues‌ ‌for‌ ‌determination‌ ‌would be ‌the ‌following:‌ ‌</p> <p>“1.‌ ‌Whether‌ or not the separate mining operations under the Appellant’s portfolio were inseparable and substantially interdependent, such that capital allowances in respect of the different mines should have been allowed under one tax return for each tax year period.</p> <p>2. In the event of a finding being made that the issuance of separate income tax assessments for each mining unit was proper, whether or not such assessments were invalid to the extent that they did not take into account various expenses incurred by the Appellant’s head office and it’s mining units.” ‌</p> <p> <strong>‌The‌ ‌background‌ ‌and‌ ‌facts.‌ </strong></p> <p>The‌ ‌Appellant is a limited liability company‌, registered and incorporated in Zimbabwe. The appellant carries on mining business and is one of the largest gold producers in Zimbabwe.  The appellant has five mines which are located in various parts of the country. The mines report to the Head office in Harare. The Head Office in turn reports to the Regional Head Office in South Africa.  The five mines are registered separately with the Registrar of Companies.</p> <p>The respondent, an administrative authority tasked with the collection of taxes in Zimbabwe, carried out tax investigations on the affairs of the appellant for the tax years 2009 to 2012.</p> <p>The income tax collection system in Zimbabwe is embodied in the ITA and involves submission of self-assessments of one’s income tax, which is however subject to audit by the respondent.  The system therefore largely relies on self-assessments by the income earners.  This is so mainly because the Respondent does not have the requisite capacity, technology and manpower to effectively monitor every income earner’s liability for income tax.  To ensure that tax payers comply with the requirements of the ITA, the respondent carries out periodic audits.</p> <p>             On 18 July 2014 the respondent issued amended assessments namely 3331, 3332, 3510, 3511,3512, 3513, 3514, 3515, 3516, 3517,3518, 3519, 3520-3227 inclusive.  </p> <p>On 15 August 2014, the appellant objected to these assessments through its tax advisors.  The respondent dismissed the objections filed and notified the appellant of its decision on 9 November 2015.</p> <p> This appeal is against the respondent’s dismissal of the appellant’s objections. </p> <p>The grounds of appeal were listed as follows:</p> <p>“1. Whether or not the separate mining operations under the appellant’s portfolio were inseparable and substantially interdependent, such that capital allowances in respect of the different mines should have been allowed under one tax return for each tax period.</p> <p> </p> <ol> <li>Whether or not such assessments were invalid to the extent that they did not take into account various expenses including those expenses incurred by the appellant’s Head Office and it’s mining units.”</li> </ol> <p> </p> <p> <strong>Evidence</strong></p> <p>In support of its case the appellant called two witnesses. However, in view of my decision on the <em>point in limine</em> raised by the respondent, it will now not be necessary to narrate the witnesses’ evidence.</p> <p>The respondent did not lead evidence but instead indicated that it would rely on the papers filed of record.  <strong> ‌</strong></p> <p><strong><em>Point in limine </em></strong><strong>raised by the respondent and resolution of same.</strong></p> <p>At the close of the hearing, I allowed parties to file written submissions as follows:-</p> <p>            appellant: 25 March 2021</p> <p>            respondent: 30 March 2021</p> <p>The respondent filed its closing submissions on 26 March 2021 while the appellant then filed its own on 6 April 2021.</p> <p>In its written submissions, filed before the appellant’s submissions as indicated above, the respondent raised, for the first time, a <em>point in limine</em> based on what it termed “a fatally defective appeal”. To that end the respondent submitted:</p> <p>“1. The first instance, the citation of the Respondent renders the appeal fatally defective.  The person cited as the Respondent is the Commissioner General, Zimbabwe Revenue Authority.</p> <p>2. Section 3 of the Revenue Authority Act (Chapter 23: 11) provides for the establishment of the Zimbabwe Revenue Authority in the following manner:</p> <p>“<strong>There is hereby established an authority, to be known as the Zimbabwe Revenue Authority, which shall be body corporate capable of suing and being sued in its own name and, subject to this Act, of performing all acts that bodies corporate may by law perform.” </strong></p> <p>To support the above position relating to the <em>point in limine</em> Mr <em>Magwaliba</em>, for the respondent cited a number of authorities which included the recently decided case, <em>G (Pvt) Ltd</em> v <em>The Commissioner General Zimbabwe Revenue Authority</em>, HH347/20, where Ziyambi, AJ, said:</p> <p>“It seems to me that the law on the matter has been clearly stated.  For the purposes of this application there is no legally recognized respondent before this court.  Unfortunately for the appellant, there is no mis-description that can be rectified by amendment.  It is an invalid citation contrary to statute- the Revenue Authority Act [Chapter 23:11] which has specific power to litigate to the Zimbabwe Revenue Authority.  It is a nullity and cannot be amended.  In the circumstances, the application is invalid in that there is no respondent before the court.  The matter must be accordingly be struck off the role.”</p> <p>In response to the above, Mr <em>D. Ochieng</em>, for the appellant made the following submissions:</p> <p>“13. For its part the respondent chose not to lead any evidence and is content to rely on the documents filed prior to the hearing. Only after the hearing was complete did the respondent affect to raise some objections <em>in limine</em> in its submissions. It would appear that it chose not to object during the five years that this matter has been pending out of the realization that there was no objective prejudice to it on account of the matters that it now pleads. The unfortunate impression is formed that it is only after it was further confirmed through the evidence that its position was untenable on the merits that the respondent scrambled to gather some dust to throw about in the hope of detracting from the substance of the matter:</p> <p>            <em>Telecel Zim (Pvt)Ltd </em>v<em> POTRAZ &amp; Ors</em> 2015 (1) ZLR 651 (H) at 659D-</p> <p>14 . In the first objection, taken after the conclusion of the hearing but expressed in terms that reveal a much earlier decision, the respondent affects to dispute the validity of proceedings in which it freely participated for years- even to the point of seeking resolution of many of the known issues. In the circumstances, and as the Supreme Court held in <em>Muskwe</em> v <em>Nyajina &amp; Ors</em> S-17-12, the respondent should not be permitted even too take the point. The respondent admits its true identity in the second paragraph 2 of the Commissioner General and no ‘the Commissioner.” On the face of its own pleadings, therefore, the reality is that the true respondent is the Zimbabwe Revenue Authority. This creates an issue estoppel  as regards the <em>locus standi</em> and identity of the respondent:</p> <p>            <em>Galante </em>v <em>Galante (1)</em> 2002 (1) ZLR 144 (H).</p> <p>According, and in reliance on <em>Muskwe</em>’s case, it is submitted, the common cause position as regards the identity of the respondent reveals that any error  the pleadings with regard to the description of that known respondent does not beget a nullity:</p> <p><em>McFroy </em>v<em> United Africa Co Ltd</em> [1961] 3 AIIER 1169 (PC) at 1173B-D”</p> <p>Admittedly, this issue, which is a point of law capable of being raised in the manner it was, came in the form of an ambush to both the court and the appellant. This practice, if deliberate, should be frowned upon. The points raised in the authorities quoted by the appellant in the above passages, particularly the issue of prejudice, are important.  However, in terms of applying the law as stated in <em>G (Pvt) Ltd supra</em>, l find myself in a situation where departure from the already stated position will not enjoy the support of the law. That stated position of the law does not allow the issue of estoppel as suggested in the case cited in the second passage above. That position is further enhanced in<em> MARANGE RESOURCES (PRIVATE) LIMITED </em>v<em> CORE MINING &amp; MINERALS (PRIVATE) LIMITED ( IN LIQUIDATION) AND 3 OTHERS. </em>SC 37/16  where the Supreme Court quoted from the <em>Civil Practice of the High Court of South Africa</em> as follows:</p> <p> “The need for the proper citation of parties is highlighted in, Cilliers, A.C. et al in Herbstein &amp; van Winsen’s <em>The Civil Practice of the High Courts of South Africa</em>, 5th ed, vol.1 page 143 as follows: “Before one cites a party in a summons or in application proceedings, it is important to consider whether the party has <em>locus standi</em> to sue or be sued (<em>legitima persona standi in judicio</em>) <strong>and to ascertain what the correct citation of the party</strong> is.” (emphasis added).”</p> <p>In dismissing the application for wrong citation in that case, the Supreme Court went further to say:           </p> <p> “Thus, the fate of an application where a wrong party is cited is clear. The proceedings cannot be sustained……….”</p> <p>Apart from dwelling on the issue of possible prejudice, the appellant does not deny that a wrong party was cited. The appellant merely objects to the timing with respect to the raising of the <em>point in limine</em>. Unfortunately the law permits the raising of the issue at any time before judgment. In view of this position of the law, l am disabled from rejecting the point in <em>limine</em> raised by the respondent. To that end, the point in <em>limine </em>should be upheld. That means the appeal should be struck of the role. That decision means there is no appeal before this court and accordingly the merits of the case, and indeed any other issue pertaining to the case, cannot be addressed. Proceeding further, would be improper because there is no proper appeal before the court.</p> <p><strong>Dispositon </strong></p> <p>I therefore order as follows:</p> <ol> <li>The appeal is struck off the roll; and</li> <li>Each party shall bear its own costs.</li> </ol> <p> </p> <p> <em>Atherstone &amp; Cook</em>, appellant’s‌ ‌legal‌ ‌practitioners</p> <p><em>The Legal Department</em>, respondent’s legal practitioners ‌</p> <p> ‌</p> <p> ‌</p> <p> ‌</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/269/2021-zwhhc-269.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=29156">2021-zwhhc-269.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/269/2021-zwhhc-269.pdf" type="application/pdf; length=423957">2021-zwhhc-269.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/r">R</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/revenue-and-public-finance-see-also-customs-and-excise">REVENUE AND PUBLIC FINANCE See also CUSTOMS AND EXCISE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/commissioner-taxes">Commissioner of Taxes</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/income-tax">Income tax</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/assessment-income-tax">assessment of income tax</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/income-income-tax">income (Income tax)</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/2015/446">Telecel Zimbabwe (Pvt) Ltd v POTRAZ &amp; Others (HC 3975/15) [2015] ZWHHC 447 (12 May 2015);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2002/31">Galante v Galante ( HH 31-2002 ) [2002] ZWHHC 31 (19 February 2002);</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/1999/17">Revenue Authority Act [Chapter 23:11]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1967/5">Income Tax Act [Chapter 23:06]</a></div></div></div> Wed, 09 Jun 2021 18:07:22 +0000 Sandra 10036 at https://old.zimlii.org CSE (Pvt) Ltd v ZIMRA (HH 270-21, ITC 16/18) [2021] ZWHHC 270 (01 June 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/270 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HH 270-21</p> <p>ITC 16/18</p> <p>CSE (PVT) LTD</p> <p>versus</p> <p>ZIMBABWE REVENUE AUTHORITY</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MTSHIYA AJ</p> <p>HARARE, 1 December 2020 and 1 June 2021</p> <p><strong>Income Tax Appeal                                                                                                              </strong>                                                      </p> <p><em>D. Moyana, </em>for the appellant</p> <p><em>L. Chipateni, </em>for the respondent</p> <p>            MTSHIYA AJ: This appeal seeks to determine whether or not it was proper for the Respondent to disallow appellant’s claims for the tax periods between 2010 and 2014. The answer lies in the interrogation of certain claims and expenses claimed by the appellant. That is necessary in order to determine if the said claims and expenses are allowable deductions according in terms of s 15(2) of the Income Tax Act [ <em>Chapter 23:11</em>] (the Act).</p> <p><strong> The Facts</strong></p> <p>            The appellant, CSE, is a duly registered company, trading as PFS. It is registered with the Respondent as a taxpayer.  The appellant is also an associate of DI (Pvt) Ltd, trading as CL.,</p> <p> In 26 September 2014, the respondent, an administrative authority tasked with, inter alia, the collection of income tax in Zimbabwe, carried out an audit on the appellant.  The audit was carried out in order to verify income tax payable by the appellant for the periods between 2010 and 2014. Subsequent to the audit, there was correspondence between the appellant and respondent.</p> <p>            On 7 July 2017, the respondent released audit findings which had a bill of $1 940.57 as payable income tax inclusive of a 100% penalty.</p> <p>            On 4  December 2017, the  appellant received a demand for payment of the tax debt without detailed assessments. The appellant made an urgent chamber application to the High Court (HC11879/17). However, the court’s finding was that the assessments had been delivered to a previous address of the appellant.      </p> <p>On 18 December 2017, the appellant lodged, with the respondent, its objection to the additional assessments. In the objections, which are correctly captured by the respondent, the appellant raised several issues. In fact, in order to fully appreciate the dispute between the parties, l feel compelled to reproduce the summaries of both sides as correctly presented by the respondent.</p> <p>            In the main the respondent presents the objections of the appellant in the following manner:</p> <p>“7.</p> <p>7.1      We chose to minimize our tax liability by legally utilizing tax incentives granted by statutes by making an election of Special Initial Allowance (SIA) instead of wear and tear when calculating capital allowances. The legislation allows taxpayer who qualifies as Small Medium Enterprises (SMEs) to claim capital allowances in 2010 of 150% on cost incurred in purchasing fixed assets. This means our company had claimed capital allowances of 100% of the cost in 2010 and 50% of the cost from 2011 to 2012, hence losses. Although capital allowances for qualifying assets according to the officer, no adjustments were done in the audit report.</p> <p>7.2      Incorrectly taxed bank deposits, not all deposits were sales as part was loan totaling $20, 050.00 secured from Joubert Crushers and Transport (Jourbert Crushers).Secondly, in 2014 we sold fixed assets, which had been used for transport business from 2010 to 2013 for a total of $15,100.00.These are capital receipts, which arise from disposal of fixed assets. Further, debtors balance from normal trading activities is $4,136.55 and the other balance is total amount loan receivable of $24,139.00 advanced to Daniel Mahonye for the purchases of assets and related costs.</p> <p>7.3      Charged withholding tax of $3,900.00 whilst no withholding tax was withheld          from C. Mwandimutsira.</p> <p>7.4       Incorrectly disallowed accounting services and advisory services offered by C             Mutangadura.</p> <p>7.5       Disallowed expenses on altered invoices whilst the company did not alter.”</p> <p> </p> <p>            On 6 April 2018 the respondent considered and rejected the appellant’s objections. In dismissing the objections, the respondent in part, commented as follows:</p> <p>            “8.</p> <p>8.1.1    According to the information before Respondent, the Appellant was granted special initial allowances on capital assets for the periods where documentary         evidence was submitted. In terms of section 63 of the Income Tax Act the burden            of proof that any amount is exempt from or not liable to the tax or is subject to any           deduction in terms of this Act or credit, shall be upon the person claiming such        exemption, non-liability, deduction or credit.</p> <p>8.1.2    In the absence of acceptable evidence that expenditure was incurred, Respondent     had no option but to disallow.</p> <p>8.1.3    This ground of objection was therefore disallowed in full.</p> <p>8.2       ……………………</p> <p>8.2.1    The Respondent was in agreement with the Appellant that transacting between             related companies is not prohibited at law. However, such transactions should be      done at arm’s length. The Respondent has mentioned earlier, the burden of proof lies with the Appellant not the Respondent that the transactions were at arm’s        length.</p> <p>8.2.2    According to information submitted, the Appellant failed tp produce documentary             evidence to substantiate that the amounts reflected in the bank statements were not   sales.</p> <p>8.2.3    The respondent therefore disallowed the second ground of objection in full.</p> <p>8.3       …………………………</p> <p>8.3.1    According to information before the Respondent, the Appellant wrote a letter dated 29 September 2015 to C. Mandimutsira   advising him that $3,900 had been       withheld by Clear Sky Enterprises. There is no reason for one to doubt that the amount was withheld.</p> <p>8.3.2    Based on that, The Respondent disallowed the 3rd ground of objection in full.</p> <p>8.4       ………………………..</p> <p>8.4.1    Accounting fees were disallowed because of the inconsistency of the documents             submitted. According to documents submitted C. Mutangadura was the          Appellant’s employee. In the Respondent’s view, it was impossible for him to      perform both as a Consultant and as an employee.</p> <p>8.4.2    The Respondent therefore disallowed the 4th ground of objection in full.”</p> <p>            It is important to note that before rejecting the objections the respondent fully considered all the issues raised by the appellant. It then gave its reasons for dismissing the objections, paying particular attention on each ground of objection that had been raised. I do not intend to repeat those reasons, except to say the reasons were never fully rebutted by the appellant. Furthermore, having gone through the appellant’s evidence, l am, unable to reject the appellant’s case as given in the papers before the court.</p> <p>            On 18 April 2018 the appellant filed its notice of appeal citing the following grounds:</p> <p>“ 1.      The Commissioner General erred at law by taking the loan facility of $20 050 which was             extended by Joubert Crushers &amp; Transport (Pvt) Ltd to Appellant as sales and thus taxable             income yet in terms of s8(1) of the Income Tax Act such amount is of a capital nature and   ought to have been excluded from taxable income especially given that the loan agreement,           bank statement, ITF12 returns for 2014 and acknowledgement of debt confirmed the credit          facility.</p> <p>2.         The Commissioner General  misdirected himself by taking the proceeds of sale of fixed             assets(motor vehicles) in the sum of $15 100.00 as taxable income when such proceeds are of capital nature and are not taxable and this was further notwithstanding that there was            plausible evidence <strong><em>vis a viz</em> </strong>the sale of Appellant’s fixed assets.</p> <p>3.         The Commissioner General further erred at law by treating government rebates from             ZIMDEF as sales and thus income yet s8 and s14 as read with the Third Schedule of the             income Tax Act exempts these rebates from taxable income.</p> <p>4.         The Commissioner General misdirected himself at law but taking into account debts owed    to Appellant as gross income.</p> <p>5.         The Commissioner General erred at law by applying an improper rate for capital       allowances which did not resonate with the rate applicable for the years under scrutiny.</p> <p>6.         The Commissioner General further erred at law by disallowing capital allowances which             Appellant was entitled to in terms of s15 (2) c as read with the Fourth Schedule of the             income Tax Act.</p> <p>7.         The Commissioner General misdirected himself by disallowing the expenses incurred             towards the services offered by a consultant, Mr. C.C Mutangadura, notwithstanding that             overwhelming evidence of the relationship  and payments  thereof was submitted.</p> <p>8.         The Commissioner General erred at law and in fact by raising a sum of $3 900 as     withholding tax remittances plus penalties purported to have been deducted from Mr        Mandimutsira in 2014 when Appellant never withhold the said amount and it was apparent           that the document he relied upon  was a product of fraud and further Mr Mandimutsira in          2014 denied in his affidavit that Appellant was his tenant.</p> <p>Wherefore the dismissal of the objection by Respondent be and is hereby set aside and substituted with the following;</p> <ol> <li>The appeal be allowed with costs; and</li> <li>All the additional assessments raised against the Appellant are set aside.”</li> </ol> <p> </p> <p><strong>The issues</strong></p> <p>            Notwithstanding the long list of the grounds of appeal indicated above, at the pre-trial hearing on 3 November 2020, the parties agreed that the issues for determination by the court were the following:</p> <p>“1.       Whether or not the deposits amounts reflected in the Appellant’s bank account were all        gross income and are taxable.</p> <p>2.         Whether or not the debts owed to Appellant are gross income and taxable.</p> <p>3.         Whether or not Respondent erred in disallowing capital allowances claimed by the    Appellant.</p> <p>4.         Whether or not the Respondent erred in calculating the rate of capital allowances claimed     by the Appellant.</p> <p>5.         Whether or not the Appellant withheld tax in the sum of $3900 from Mr Crispen             Mwandimutsira.</p> <p>6.         Whether or not the Respondent erred in disallowing expenses claimed by the Appellant.</p> <p>7.         Whether or not Respondent erred in the computation of tax due and chargeable to the             Appellant.”</p> <p> </p> <p><strong>Point in Limine</strong></p> <p>            However, before dealing with the above issues, it is necessary to consider the point <em>in limine</em> that was raised by the respondent.</p> <p>            During the hearing and in submissions, the respondent raised a point<em> in limine </em>in the following manner:</p> <p>“The Twelfth schedule of the Income Tax Act has no provision for the filing of the Appellant’s reply. There is no provision whatsoever which allows an appellant to file reply to the Commissioner’s case.  The appellant’s reply which has been filed by the appellant is improperly before the court and it should be expunged from the record.  The appellant cannot create its own rules, it is bound by the twelfth schedule.  It follows therefore that the appellant cannot make any reference t the documents contained in the so called appellant’s reply.”</p> <p>            Admittedly, the appellant had, <em>in casu, </em>filed a detailed reply to the respondent’s case, arguing that same was permitted in terms of Rule 1 of the Twelfth schedule as read with Order 19 Rule 125 of the High Court Rules 1971. I disagree.</p> <p>            I am in agreement with the respondent that, High Court Rules shall only be adopted where the rules of the Special Court do not specifically deal with the procedure or practice to be adopted as stated in the 12th schedule to the Income Tax Act. The procedure or practice to be adopted is clearly spelt out in the guiding schedule. That being the case l am unable to accept the position adopted by the appellant. I therefore uphold the point <em>in limine</em> raised by the respondent.  Accordingly, the reply in question is expunged from the record.   </p> <p><strong>The Law and Consideration of Issues.</strong></p> <p>            Given the fact that virtually all the issues submitted for determination are based on deductibles, a consolidation of those issues lands us on one main issue, namely:</p> <p>“which of the appellant’s expenses and claims are, in law, allowable deductions  for the purposes of determining payable income tax by the appellant.”</p> <p>            The answer to the above question is to be found in sections 15(2) and 63 of the Act.</p> <p>Section 15 of the Act provides as follows:</p> <p>            “ <strong>15 Deductions allowed in determination of taxable income</strong></p> <ol> <li>For the purpose of determining the taxable income of any person, there shall be deducted from the income of such person the amounts allowed to be deducted in terms of this section…….</li> <li>The deductions allowed shall be…….</li> </ol> <ol> <li>expenditure and losses to the extent to which they are incurred for the purposes of trade or in the production of the income except to the extent to which they are expenditure or losses of a  capital nature;”</li> </ol> <p>            It is imperative, that before any deductibles are made a tax payer should satisfy the requirements of s 15(2) quoted above. (<strong>see SB LIMITED versus ZIMBABWE REVENUE AUTHORITY, HH 731-20).</strong></p> <p>Section 63 of the Act also provides as follows:</p> <p><strong>“63 Burden of proof as to exemptions, deductions or abatements</strong></p> <p>“….In any objection or appeal under this Act, the burden of proof that any amount is exempt from or not liable to the tax or is subject to any deduction in terms of this Act or credit, shall be upon the person claiming such exemption, non-liability, deduction or credit and upon the hearing of any appeal the court shall not reverse or alter any decision of the Commissioner unless it is shown by the appellant that the decision is wrong.”</p> <p> </p> <p>            The appellant <em>in casu</em>, has not, in my view fully discharged the burden placed on it by the law to prove entitlement to the claimed deductibles. The appellant in some way concedes  that this is the case in the sense that it agrees that, all though it alleges use of unauthenticated documents, it however does not dispute the fact that the respondent relied on documents that were availed to it. There was no proof that the respondent tempered with any of the appellant’s documents. The appellant did not give any evidence to support the argument that the said unauthenticated documents should indeed have been rejected by the respondent due to the alleged tempering.   </p> <p>            The appellant further admits that the alleged loan which the respondent disputed was only submitted to the respondent after the additional assessments had already been made. In its submissions, the appellant states:</p> <p>“After the tax assessments were issued the loan agreement was attached to the objection”</p> <p>            It is because of the above that the respondent then concluded that the alleged existence of a loan was a scheme intended to benefit the appellant in terms of tax and was therefore not genuine. We cannot blame the respondent for using the documents that were before it when the assessments were made. (See SB LIMITED, supra).</p> <p>            As already stated all the issues raised are centred on whether or not certain expenses and claims are allowable deductions according to section 15(2) of the Act. Apart from rejecting the existence of a loan the respondent also noted that the appellant’s evidence also consisted of vexatious accusations of the respondents representatives who were accused, without clear evidence being given, of being impartial and unprofessional in their dealings.</p> <p>            With respect to ownership of assets i.e vehicles, the appellant dismally failed to prove that it indeed owned the vehicles that it then claimed to have sold as assets of the company (appellant). The appellant further failed to fully dismiss charges of in- house loans and false information relating to status of one employee namely Mr Mutangadura .</p> <p>            I also notice that in relation to evidence submitted the schedule dated 2 November 2017 from K Charangwa for the Head Audits in Mutare has altered invoices for the period under audit. This is conduct that the respondent could not ignore when dealing with the entire evidence of the appellant.</p> <p>            In addition to sections 15(2) and 63, section 47 of the Act gives authority to the respondent to make additional assessments. The section provides as follows:</p> <p>            <strong>“ 47 Additional assessments</strong></p> <ol> <li> If the Commissioner, having made an assessment on any taxpayer, later considers that –</li> </ol> <ol> <li>an amount of taxable income which should have been charged to tax has not been charged to tax; or</li> <li>in the determination of an assessed loss-</li> </ol> <ol> <li>an amount of income which should have been taken into account has not been taken into account; or</li> <li>an amount has been allowed as a deduction from income which should not have been allowed;</li> </ol> <p>    ( c) any sum granted by way of a credit should not have been granted;</p> <p>he shall adjust such assessment so as to charge to tax such amount   of taxable income or to reduce such assessed loss or to withdraw or vary such credit, and if any tax is due either additionally, or alternatively, call upon the tax-payer to pay the correct amount of tax:</p> <ol> <li> If the Commissioner, having made an assessment on any taxpayer, later considers that –</li> </ol> <ol> <li>an amount of taxable income which should have been charged to tax has not been charged to tax; or</li> <li>in the determination of an assessed loss-</li> </ol> <ol> <li>an amount of income which should have been taken into account has not been taken into account; or</li> <li>an amount has been allowed as a deduction from income which should not have been allowed;</li> </ol> <p>    (c)    any sum granted by way of a credit should not have been granted;</p> <p>he shall adjust such assessment so as to charge to tax such amount   of taxable income or to reduce such assessed loss or to withdraw or vary such credit, and if any tax is due either additionally, or alternatively, call upon the tax-payer to pay the correct amount of tax:”</p> <p>            It is clear from the above provision of the law that the Commissioner has a right to detect and enforce how tax liabilities shall be conducted and calculated. However, <em>in casu, </em>as already pointed out, there is indeed no evidence brought before me by the appellant to prove its case as required by section 63 of the Act. </p> <p>            I wish to re-state that all the grounds of appeal, point to the issue whether or not certain claims and expenses claimed by appellant are allowable deductions according to Section 15(2) of the Income Tax Act. With the appellant having failed to satisfy the burden imposed on it by section 63 of the Act, this appeal falls to be dismissed with each party bearing its own costs.</p> <p>I have no reason to interfere with the penalty imposed by the respondent.</p> <p><strong>Disposition</strong></p> <p>            I therefore order as follows:-</p> <ol> <li>The appeal is dismissed; and</li> <li>Each party shall bear its own costs.</li> </ol> <p><em>Legal Services Division</em>, respondent’s Legal Practitioners</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/270/2021-zwhhc-270.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=33462">2021-zwhhc-270.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/270/2021-zwhhc-270.pdf" type="application/pdf; length=447540">2021-zwhhc-270.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/r">R</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/revenue-and-public-finance-see-also-customs-and-excise">REVENUE AND PUBLIC FINANCE See also CUSTOMS AND EXCISE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/income-tax">Income tax</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/assessment-income-tax">assessment of income tax</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/income-income-tax">income (Income tax)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/recovery-income-tax">recovery of income tax</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/1967/5">Income Tax Act [Chapter 23:06]</a></div></div></div> Wed, 09 Jun 2021 14:40:27 +0000 Sandra 10035 at https://old.zimlii.org Samaya v Commissioner General of Police N.O And (HH 272-21, HC 374/20) [2021] ZWHHC 272 (02 June 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/272 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HH 272-21</p> <p>HC 374/20</p> <p>                                                                                                 </p> <p>ROBERT SAMAYA</p> <p>versus</p> <p>COMMISSIONER GENERAL OF POLICE N.O.</p> <p>and</p> <p>POLICE SERVICE COMMISSION</p> <p>and</p> <p>MINISTER OF HOME AFFAIRS AND CULTURAL HERITAGE N.O.</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MANZUNZU J</p> <p>HARARE, 17 May &amp; 2 June 2021</p> <p> </p> <p><strong>Court Application</strong></p> <p>                                                                                            </p> <p><em>B. Mlauzi</em>, for the applicant</p> <p><em>R.B. Madiro</em>, for the respondents</p> <p> </p> <p>            MANZUNZU J This is an opposed court application seeking a declaratory order and other ancillary relief in the following terms;</p> <p>            “IT IS HEREBY ORDERED THAT:</p> <ol> <li>The decision by the first respondent to hold a disciplinary trial in 2001 and the         conviction of the applicant be and is hereby declared null and void.</li> <li>The decision by the first respondent to hold a Board of Inquiry (Suitability) be and is             hereby declared null and void.</li> <li>The applicant be and is hereby reinstated forthwith without loss of salary and           benefits.</li> <li>Respondents pay costs of suit on an attorney and client scale.”</li> </ol> <p> </p> <p>            At the hearing both counsels took a lackadaisical approach by adhering to the heads filed of record as they declined any oral submissions other that urging the court to decide the matter on the papers.</p> <p>            There is a long history to this case which backdates to the year 2000. The brief of it all is that the applicant was a member of the Police Service. He was charged with misconduct for having performed his duty in an improper manner and went through disciplinary proceedings  in which he was convicted and sentenced to 7 days detention at Chikurubi Police on 16 January 2001. The Commissioner General of Police thereafter constituted a Board of Inquiry to look into the suitability of the applicant to continue serving as a member of the Police Service.  The Board recommended for his discharge and accordingly he was discharged from employment on 31 May 2001.</p> <p> </p> <p>The applicant’s appeals against his conviction and discharge were dismissed. However, applicant continued to mount a fight with his ex-employer by writing several letters of complaint. None of these letters yielded any positive results. On 16 January 2020 he then filed the present application with this court.</p> <p>            The first reaction by the respondents in opposition was to raise points <em>in limine</em>, the first alleging that the application was bad at law as it is an application for review clothed as a declaratur and that the action has prescribed. The applicant also raised a preliminary point that the notice of opposition was filed out of time and as such respondents were barred. Applicant urges the court to treat the matter as unopposed and grant the relief prayed for.</p> <p><strong>Is there a valid notice of opposition?</strong></p> <p>            This application is on form 29. It warns the respondents to file a notice of opposition together with opposing affidavits within 10 days of service of the application upon them. The application was filed with the Registrar on 16 January 2020. According to the certificates of service filed of record the application was served on the respondents on 17 January 2020. The ten day grace period would expire on 31 January 2020. The notice of opposition was filed on 6 February 2020 way out of the <em>dies induciae</em>.</p> <p>Rule <em>233(1) on Notice of opposition and opposing affidavits provides that;</em></p> <p>             “The respondent shall be entitled, within the time given in the court application in    accordance with rule 232, to file a notice of opposition in Form No. 29A, together with one           or more opposing affidavits.”</p> <p> </p> <p>            Rule 233 (3) further provides that;</p> <p>            “A respondent who has failed to file a notice of opposition and opposing affidavit in           terms of subrule (1) shall be barred.”</p> <p> </p> <p>            However a perusal of the record shows a deliberate attempt by the applicant to mislead the court. The bar was uplifted by the order of this court under case number HC 2594/20 when the following order was made;</p> <p>            “IT IS ORDERED THAT:</p> <ol> <li>The applicants’ non-compliance with the rules of this court by failing to file notice of             opposition within the stipulated ten (10) day period be and is hereby condoned,</li> <li>The notice of opposition filed by the applicant on the 6th of February 2020 be and is             hereby deemed to have been filed within time.</li> <li>Costs of the application shall be costs on the cause.”</li> </ol> <p> </p> <p>            There is therefore a valid notice of opposition in this case.</p> <p><strong>Is the application bad at law?          </strong></p> <p>            The respondents maintain that the application is bad at law in that while it purports to be a declaratur it is in essence a review. Secondly that the action has prescribed. For that reason they seek for the dismissal of the application with costs. What then is the distinction between a declaratur and a review?</p> <p>            This court derives its power from s 14 of the High Court Act [<em>Chapter 7:06</em>] in respect to a declaratur. Section 14 reads:</p> <p>“The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”</p> <p> </p> <p>            On the other hand, s 27 of the High Court Act which deals with the grounds for review state that;</p> <p>            “27 Grounds for review</p> <p>(1) Subject to this Act and any other law, the grounds on which any proceedings or decision may be brought on review before the High Court shall be –</p> <p>            (a) absence of jurisdiction on the part of the court, tribunal or authority concerned;</p> <p>(b) interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case may be;</p> <p>            (c)gross irregularity in the proceedings or the decision.</p> <p>(2) Nothing in subsection (1) shall effect any other law relating to the review of proceedings or decisions of inferior courts, tribunals or authorities.”</p> <p> </p> <p>An application for a declaratur must meet the requirements of an application for such a relief.</p> <p>            In Johnson v AFC 1995 (1) ZLR 65 (S) at p 72E gubbay cj said,</p> <p>“The condition precedent to the grant of a declaratory order under s 14 of the High Court of Zimbabwe Act 1981 is that the applicant must be an “interested person”, in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The interest must concern an existing, future or contingent right. The court will not decide abstract, academic or hypothetical questions unrelated thereto…</p> <p>At the second stage of the enquiry, the court is obliged to decide whether the case before it is a proper one for the exercise of its discretion under s 14 of the Act. It must take account of all the circumstances of the matter.”</p> <p> </p> <p>The cardinal principle in deciding whether a matter is for a declaratory order or review is not so much of the relief sought but rather the grounds upon which the application is based.</p> <p>            In <em>Geddes Ltd</em> v <em>Tawonezvi</em> 2002 (1) ZLR 479 (S) at 484 G, malaba ja said,</p> <p>“In deciding whether an application is for a declaration or review, a court has to look at the grounds of the application and the evidence produced in support of them. The fact that an application seeks a declaratory relief is not in itself proof that that application is not for review.” (My emphasis)</p> <p> </p> <p>            It was stated in the <em>Geddes</em> case (<em>supra</em>) that,</p> <p>            “setting aside of a decision or proceedings is a relief normally sought in an application for    review.”</p> <p> </p> <p>            The applicant’s founding affidavit is clear that it is a challenge of the procedure and that the first respondent was biased leading to his discharge. The applicant is simply saying the procedure used by the first respondent was wrong and those who led to the decision of his discharge did not independently act. In other words the adjudicators of his case were not impartial subjecting him to an unfair trial. In his founding affidavit the applicant states in paragraph 26 that;</p> <p>             “Second respondent ought to have acted independently in assessing the matter and arriving at          a just and equitable decision. They did not do so. Moreover so, the previous composition of the    Commissioners of the second respondent were captured and served at the whims of the then     Commissioner General and the old regime. They never acted independently as envisaged by        the law to the extent that my rights enshrined in section 68 and 69 were infringed by the          decisions of the trial officer, the suitability board and subsequent endorsement by the second     respondent.”</p> <p> </p> <p>In paragraph 28 the applicant proceeded to say;</p> <p>            “I have demanded the legal basis of my discharge from service but the respondents have been             shutting me out. The discharge as confirmed by the second respondent who acted in terms of             section 55 of the Police Act [<em>Chapter 11:10]</em> was unlawful and violated the tenets of natural             justice, fairness and equity. I have made efforts to engage with the respondents to no avail.”</p> <p> </p> <p>It is apparent from the content of the application that what the applicant seeks is not a declaration of rights but rather to set aside decision of the first respondent in respect to the appeal and discharge. It was stated in the <em>Geddes</em> case (<em>supra</em>) that,</p> <p>“setting aside of a decision or proceedings is a relief normally sought in an application for    review.”</p> <p> </p> <p>            I find this application one for review rather than one for a declaratur. An application for review is filed within 8 weeks of the decision being made in terms of rule 259 of the High Court Rules.   This is not a proper case for the court to exercise its discretion under s 14 of the Act. Applicant said nothing of substance in response to the point that his action has prescribed.</p> <p><strong>Disposition:</strong></p> <p>            The application be and is hereby dismissed with costs.</p> <p><em>Nyama Law Chambers</em>, applicant’s legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office, </em>respondents’ legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/272/2021-zwhhc-272.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=22785">2021-zwhhc-272.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/272/2021-zwhhc-272.pdf" type="application/pdf; length=414230">2021-zwhhc-272.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/police">POLICE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/discipline-police">Discipline (POLICE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/dismissal-force">dismissal from force</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/declaratory-order">Declaratory order</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/r">R</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review-0">REVIEW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-review-0">Application for review</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div></div></div> Wed, 09 Jun 2021 12:01:39 +0000 Sandra 10033 at https://old.zimlii.org Masawi And 4 Others v Master of the High Court And 3 Others (HH 273-21, HC 2920/19) [2021] ZWHHC 273 (17 November 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/273 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HH 273-21</p> <p>HC 2920/19</p> <p>TAFADZWA MASAWI</p> <p>and</p> <p>MICHAEL MASAWI</p> <p>and</p> <p>NYEMBESI MASAWI</p> <p>and</p> <p>LETWIN MASAWI</p> <p>and</p> <p>ROSE MUZENGEZA (NEE MASAWI)</p> <p>versus</p> <p>MASTER OF HIGH COURT</p> <p>and</p> <p>ESTATE LATE ABEL MASAWI</p> <p>and</p> <p>ABIGAIL CHIPURU</p> <p>and</p> <p>MUNYARADZI KAZINGIZI</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>ZHOU  J</p> <p>HARARE,17 November 2020</p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p>1st Applicant in person</p> <p>No appearance for 2nd to 5th applicants</p> <p>No appearance for 1st and 2nd respondents</p> <p><em>T.D. Mutsikadowo, </em>for the 3rd respondent</p> <p> </p> <p> </p> <p>            ZHOU J: This is a court application for review. What is being sought to be set aside according to the founding affidavit and draft order, is the alleged revocation by the Master of the High Court of letters of administration which the applicants allege were issued to the first applicant in respect of the Estate of the late Abel Masawi. Applicants also seek the setting aside of the sale by the Executor of the immovable property of the estate of the Late Abel Masawi by the second respondent, the Executor. The first relief is being sought on the grounds that the alleged revocation of the letters of administration was done without affording the first applicant the right to be heard and in the absence of an order of court. The second relief seeks to impeach the sale of the property on the grounds that it was done without affording the beneficiaries of the estate an opportunity to make representations and without the consent of the beneficiaries. It is further alleged that the sale was not advertised and also, that the decision to sell the property was grossly unreasonable.</p> <p>            The application is opposed by the second and third respondents. The second respondent is the Executor, the third respondent is the one who purchased the immovable property in question.</p> <p>            The facts, which are material to the determination of this matter are as follows. All the applicants are children of the deceased Abel Masawi and therefore potential beneficiaries of his estate. The fourth respondent, Munyaradzi Kazingizi, is a widow of Anthony Masawi who is a son of the late Abel Masawi. The late Abel Masawi owned an immovable property, Stand 8094 Glen View Township, Harare, measuring 200 square metres on which was a seven roomed house. After the death of Abel Masawi an edict meeting was called at which the first applicant was nominated to be appointed Executor of the Estate of the Late Abel Masawi. The Master did not issue him with letters of administration. His explanation is that after considering the small size of the estate he did not consider it necessary to go through the process of appointing the applicant as Executor by issuing letters of administration. A dispute ensued pitting the fourth respondent against the applicants over her occupation of the immovable property. The fourth respondent who had children with Anthony Masawi demanded her husband’s share of the Estate.</p> <p>            Owing to the dispute the Master called another meeting at which it was resolved to appoint a neutral Executor dative. This decision is clearly justifiable given that the first applicant had become a party to a dispute over the estate. He was also a potential beneficiary of the estate. Following that resolution, the Master appointed the second respondent as the Executor Dative. Second respondent was duly issued with the letters of administration.</p> <p>            By letter dated 14 October 2016 the second respondent invited the beneficiaries of the estate to contribute towards the expenses of the estate in order to avert the sale of assets of the estate. The letter is addressed to the first applicant. The beneficiaries failed to contribute the money required to cover the expense. Meanwhile the fourth respondent had written to the Executor demanding her husband’s share in the Estate. On 17 October 2016, the second respondent sought the consent of the Master to sell the immovable property in order to be able to pay the expenses of the estate and also pay the fourth respondent and the other beneficiaries their shares. The authority to sell the property was granted by the Master on 8 November 2016. After receiving the authority to sell the property the second respondent advised the applicants by letter dated 16 November 2016 to which he attached a copy of the authority to sell. In that letter he informed the applicants that he would proceed to dispose of the immovable property unless they came up with money to cover the administration expenses and to pay out Anthony Masawi’s share. It is common cause that none of the applicants raised the money or even made an offer to pay it. The second respondent proceeded to sell the property to the third respondent on 6 December 2016.</p> <p>            The first relief sought by the applicants is clearly misplaced, because first applicant was never issued with letters of administration. The relief is founded upon the false claim that he had been issued with letters of administration. In his submissions before the court the first applicant stated that the Master had appointed him Executor without issuing letters of administration. But this is not the cause of action pleaded. No relief based on that assertion is sought in the draft order. In any event, the meeting which the applicant relies upon merely nominated him. The nomination was not constitutive of appointment as Executor in the absence of a letter from the Master.</p> <p>            In respect of the complaint pertaining to the sale of the immovable property, the Executor gave the applicants an opportunity to contribute towards the administration expenses in order to obviate the sale of the immovable property. They failed. Even after obtaining the Master’s authority to sell the property the Executor invited the applicants again to pay the required money to avoid the sale of the property. They failed. The claim that the beneficiaries were not informed of the sale is therefore false. The consent of the beneficiaries to a disposal of the asset of the estate is not a prerequisite to the validity of the sale. An Executor is not an agent of the beneficiaries. There is nothing to show that the alleged failure to advertise the property prejudiced the estate. On the facts which are common ground the allegation that the conduct of the first and second respondents was grossly unreasonable is not supported.</p> <p>            In the result, the application is dismissed with costs.</p> <p><em>Maposa and Ndomene</em>, applicants’ legal practitioners</p> <p><em>Chatsanga Legal practitioners</em>, 2nd respondent’s legal practitioners</p> <p><em>Mugomeza and Mazhindu</em>, 3rd respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/273/2021-zwhhc-273.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=18232">2021-zwhhc-273.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/2020/273/2021-zwhhc-273.pdf" type="application/pdf; length=314743">2021-zwhhc-273.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/administration-estates">ADMINISTRATION OF ESTATES</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/claim-against-deceased-estate">Claim against deceased estate</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/executoradministrator-deceaseds-estate">Executor/Administrator of deceased&#039;s estate</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appointment">appointment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/duties">duties of</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/removal">removal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/inheritance">Inheritance</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/intestate-succession">Intestate succession</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/probate-and-administration">Probate and Administration</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/r">R</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review-0">REVIEW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-review-0">Application for review</a></li></ul></span> Wed, 09 Jun 2021 11:18:55 +0000 Sandra 10032 at https://old.zimlii.org S v Mare And 6 Others (HH 274-21, CRB KADP 40, 104, 105, 4, 5, 22, 23/21) [2021] ZWHHC 274 (03 June 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/274 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HH 274-21</p> <p>CRB KADP 40/21</p> <p>CRB KADP 104/21</p> <p>CRB KADP 105/21</p> <p>CRB CHK 4/21</p> <p>CRB CHK 5/21</p> <p>CRB KADP 22/21</p> <p>CRB KADP 23/21</p> <p>JESELINE MARE</p> <p>and</p> <p>NYASHA SHAVA</p> <p>and</p> <p>GOLDEN NYONI</p> <p>and</p> <p>WATSON KURUNETA BANDA</p> <p>and</p> <p>TAM SNAGA MAVHUNGA</p> <p>and</p> <p>JOHN TAVENGWA</p> <p>and</p> <p>JOHANE MUZENANGO</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAPI J</p> <p>HARARE, 29 May 2021 &amp; 3 June 2021</p> <p> </p> <p><strong>Review Judgement </strong></p> <p> </p> <p>            CHITAPI J:  The records of proceedings in the above matters were placed before me on review in terms of s 57 of the magistrates court Act, [<em>Chapter 7:10</em>]. In all the record of proceedings, the accused persons appeared before the same magistrate for the province of Mashonaland, viz, T.A. Chamisa Esquire. The learned magistrate aforesaid disposed of each of the matters by way of trial of the accused upon the guilty plea procedure. The guilty plea procedure is provided for in terms of sections 271(2)(a) and 271(2)(b) of the Criminal<br /> Procedure &amp; Evidence Act, [<em>Chapter 9:07</em>]. In terms of distinction between the provisions of sections 271(2)(a) and 271(2)(b), s 271(2)(a) is utilized for disposal of cases where, if accused person pleads guilty, the sentence which may be imposed does not merit, the imposition of imprisonment without the option of a fine or a fine exceeding level three. Section 271(2)(b) is utilized for disposal of cases where the accused pleads guilty to the charge and the sentence which may be imposed is imprisonment without the option of a fine or a fine exceeding level three. The proceedings on review in the four records of proceedings herein were purportedly disposed of by way of the guilty plea procedure provided for in s 271(2)(b) as aforesaid.</p> <p>            The provisions of s 271((b) read as follows:</p> <p>“271(2)(b)       the court shall if it is of the opinion that the offence merits any punishment referred to in subparagraph (i) or (ii) of paragraph (a) or if requested thereto by the prosecutor-</p> <ol> <li>explain the charge and the essential elements of the offence to the accused and to that end require the prosecutor to state, in so far as the acts or omissions on which the charge is based; and</li> <li>enquire from the accused whether he understands the charge and the essential elements of the offence and of the acts or omissions stated in the charge by the prosecutor;</li> </ol> <p>and may, if satisfied that the accused understands the charge and the essential elements of the offence and that he admits the elements of the offence and the acts or omissions on which the charge is based as stated in the charge or by the prosecutor, convict the accused of the offence to which he has pleaded guilty on his plea of guilty and impose any competent sentence or deal with the accused otherwise in accordance with the law;…………..</p> <p>            “271(3)            Where a magistrate proceeds in terms of paragraph</p> <p>                        (b)        of subsection (2)-</p> <p>                        (a)        the explanation of the charge and the essential elements of the offence;</p> <p>and</p> <p>(b)        any statement of the acts or omissions on which the charge is based referred to in subparagraph (1) of that paragraph; and</p> <p>(c)        the reply by the accused to the enquiry referred to in subparagraph (ii) of that paragraph;             and</p> <p>(d)        statement made to the court by the accused in connection with the offence to which he has pleaded guilty;</p> <p>            shall be recorded (own underlining)”</p> <p>            An analysis of the guilty plea procedure as provided for in s 271(2)(b) as quoted shows that s 271(2)(b) is an enabling section which permits the court to adopt the guilty plea procedure as set out therein if the court is of the opinion that the offence charged to which the accused person admits commission thereof merits imprisonment without the option of a fine or a fine exceeding level three. The procedure aforesaid will also be adopted if the prosecutor requests the court that the trial of an accused be dealt with in terms thereof. The section then provides for what the court is required to do once it has decided to follow the guilty plea procedure or been requested to do so by the prosecutor. What the court must do is set out in subparagraphs (i) and (ii) of subs (b) of s 271 as I have quoted their contents above.</p> <p>            Section 271(2)(b) is however qualified by subs (3) of the same s 271. The subs lists matters which should specifically be recorded. The requirement to record the matters set out therein is peremptory. A failure to record the matters set out therefore vitiates the guilty plea proceedings for gross irregularity. A provision of an enactment which provides for how a trial ought to be conducted constitutes a fair trial standard which cannot in terms of s 86(3)(e) of the Constitution be limited. That section provides that</p> <p>            “No law may limit inter alia, the accused’s right to a fair trial.”</p> <p>            A failure to follow the procedure set out in s 271 (3) renders the trial irregular and it cannot be said that the accused’s right to a fair trial has not been violated if the procedure has not been followed.</p> <p>            Pertinent to the four records of proceedings under review was my observation that in all of them, there was no written or recorded explanation of the charge as required by the peremptory provisions of s 271(3) aforesaid. I then raised a query with the magistrate and asked for his or her comments in regard to the apparent omission. The query read as follows in material part.</p> <p>            “The magistrate does not appear to have complied with the peremptory provisions of s         271(3)(a) of the Criminal Procedure and Evidence Act, which requires that the magistrate shall     explain the charge and essential elements of that charge and shall be recorded. The magistrate          recorded the following on record-</p> <p>            “Charge explained to accused person and understood.”</p> <p>            In the case of <em>S</em> v <em>Banda</em> KADF 22023/21 the magistrate recorded:</p> <p>            “Charge explained to accused persons and understood.</p> <p>May the magistrate comment on the query. Further may the magistrate indicate whether he/she is acquainted with the decision of this court in <em>S</em> v <em>Enock Mangwende </em>HH 695/20 where the issue of the need for strict compliance with the provisions of s 271 (3) of the Criminal Procedure and Evidence Act is discussed….”</p> <p>            In response to my query in relation to each of the four records, the learned magistrate responded as follows in the response addressed to the Registrar dated 10 May, 2021.</p> <p>“May you please place the record before the Honourable Judge JUSTICE CHITAPI. I have noted the concerns raised by the Honourable Judge and I am indebted and stand guided.</p> <p> </p> <p>After having gone through the case of <em>S </em>v <em>Enock Mangwende</em> HH 695/20 I am now aware that I am in terms of s 271 (3) of the Criminal Procedure and Evidence Act, Chapter 9:23 (<em>sic</em>) required to explain the charge and record the explanation so given in content. This is so because the said provision is intended to ensure fairness to the accused by ensuring that the guilty plea is tendered deliberately and knowingly.</p> <p> </p> <p>I will not repeat the same mistake in future as I am now fully aware of the fact that section 271 (3) provision must be complied with. “</p> <p> </p> <p>            The response by the learned magistrate is candid. One does not entertain any doubt that the learned magistrate has been properly guided for the future.</p> <p>            It leaves me to then determine what must be done about the irregular trial. In the <em>Mangwende </em>case (<em>supra</em>), the irregular proceedings were set aside. The judgment makes it clear that proceedings which are not in accordance with the provisions of s 271 (3) are not certifiable as being in accordance with real and substantial justice. The proceedings are set aside because the omission to comply with the provisions aforesaid violate fair trial standards which can only be achieved upon conducting the proceedings in accordance with the law. The same fact of the setting aside of the proceedings as was done in the <em>Mangwende</em> case will befall the proceedings in each of the four records under review herein.</p> <p>            The order made on review is therefore as follows:</p> <ol> <li>The proceedings in the following cases are quashed and the conviction and sentence set aside.</li> </ol> <ol> <li><em>S</em> v <em>Joseline Mare</em> CRB KADP 40/21</li> <li><em>S </em>v <em>Nyasha Shava &amp; Golden  Moyo</em> CRB KADP 104-5/21</li> <li><em>S </em>v <em>John Tavengwa &amp; Johane Muzanago</em> CRB CHK 4-5/21</li> <li><em>S </em>v <em>Watson Kuruneta Banda</em> <em>&amp; Tamsanga Mavhunga</em> CRB KADP 22-23/21</li> </ol> <ol> <li>The Prosecutor General retains his discretion to institute fresh trials in respect of each of the quashed proceedings.</li> <li>In the event that a fresh prosecution is instituted by the Prosecutor General, the trials of the accused shall be presided by a different magistrate; and</li> <li>Should the accused be convicted, the accused shall not be sentenced to a greater sentence than the one imposed; and</li> <li>The sentences already served shall be counted as an already served portion of the sentence which may be imposed on retrial.</li> </ol> <p>MUSITHU J agrees.</p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="Microsoft Office document icon" title="application/msword" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/274/2021-zwhhc-274.doc" type="application/msword; length=49152">2021-zwhhc-274.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/2021/274/2021-zwhhc-274.pdf" type="application/pdf; length=324684">2021-zwhhc-274.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/plea">Plea</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/guilty">guilty</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/trial">Trial</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/duties-magistrate-criminal-trial">duties of magistrate in criminal trial</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/irregularity-trial">irregularity of trial</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/r">R</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review-0">REVIEW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-matter-see-criminal-procedure-review">Criminal matter See CRIMINAL PROCEDURE (Review)</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/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Wed, 09 Jun 2021 10:55:02 +0000 Sandra 10031 at https://old.zimlii.org Shangwa v Senior Assistant Commissioner Chengeta And 2 Others (HH 276-21, HC 6624/18) [2021] ZWHHC 276 (30 September 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/276 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HH 276/21</p> <p>HC 6624/18</p> <p> </p> <p> </p> <p>SHELTON SHANGWA</p> <p>versus</p> <p>SENIOR ASSISTANT COMMISSIONER JUSTICE CHENGETA</p> <p>and</p> <p>THE BOARD PRESIDENT CHIEF SUPERINTENDENT MASEKERA</p> <p>and</p> <p>THE COMMISSIONER GENERAL OF POLICE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>ZHOU</p> <p>HARARE, 30 September 2020                                                           </p> <p> </p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p> </p> <p><em>B Mutiro, </em>for the applicant</p> <p><em>J Bhudha, </em>for the respondent</p> <p> </p> <p>ZHOU J: This is an application for review in which the applicant seeks the setting aside of his discharge from the Zimbabwe Republic Police. The application is opposed by the respondents.</p> <p>The facts, which are common cause, are as follows: Applicant appeared before a Board of Inquiry facing charges of misconduct. The Board of Inquiry having found him guilty, recommended that the applicant be issued with a written warning in accordance with the applicable law. The first respondent, queried the recommendation and directed that the Board be reconstituted to reconsider its decision. He communicated this by letter dated 28 July 2015. On 14 August 2015 the Board addressed a letter, to the third respondent reaffirming its earlier recommendation for the applicant to be given a written warning.</p> <p>In a turn of events which is inexplicable on the papers, on 12 August 2015 the same Board produced a fresh set of findings in terms of which an inconsistent recommendation for the applicant to be discharged from the police was made and purportedly confirmed on 28 August 2015. This recommendation, made in the face of two other recommendations for a written warning to be issued, was made without recourse to the applicant. He was not notified of it. The making of this new recommendation is not only fraught with gross irregularities but was clearly made contrary to the rule of natural justice known as the <em>audi alteram partem </em>rule and to the provisions of the Constitution which demand a fair hearing in a case in which a person’s rights are to be adjudicated upon. For this reason, the recommendation and, indeed, the discharge of the applicant which was predicated upon that recommendation, cannot stand. They must be set aside.</p> <p>In the result, IT IS ORDERED THAT:</p> <ol> <li>The discharge of the applicant from the Zimbabwe Republic Police based on the recommendation dated 12 August 2015 and confirmed on 28 August 2015 be and is hereby set aside.</li> <li>The respondents shall pay the costs. </li> </ol> <p><em>Rubaya &amp; Chatambudza</em>, applicant’s legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office</em>, respondent’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/276/2021-zwhhc-276.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=19941">2021-zwhhc-276.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/2020/276/2021-zwhhc-276.pdf" type="application/pdf; length=387340">2021-zwhhc-276.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/administrative-law">ADMINISTRATIVE LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/audi-alteram-partem-rule">Audi alteram partem rule</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/police">POLICE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/discipline-police">Discipline (POLICE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/dismissal-force">dismissal from force</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/r">R</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review-0">REVIEW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-matter-see-criminal-procedure-review">Criminal matter See CRIMINAL PROCEDURE (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> Wed, 09 Jun 2021 10:09:03 +0000 Sandra 10029 at https://old.zimlii.org Afritrade International Limited v ZIMRA (SC 3-21, Civil Appeal No. SC 427/18) [2021] ZWSC 3 (23 March 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/3 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p><strong>REPORTABLE</strong> <strong>(3)</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>AFRITRADE     INTERNATIONAL     LIMITED</strong></p> <p><strong>v</strong></p> <p><strong>ZIMBABWE     REVENUE     AUTHORITY</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>PATEL JA, BHUNU JA &amp; BERE JA</strong></p> <p><strong>HARARE, JUNE 6 2019 &amp; MARCH 23, 2021</strong></p> <p> </p> <p> </p> <p><em>T Mpofu</em>, for the appellant</p> <p><em>T Magwaliba</em>, for the respondent</p> <p> </p> <p> </p> <p><strong>PATEL JA:</strong>                    This is an appeal against the judgment of the Fiscal Appeal Court dismissing an appeal against the determination of the respondent requiring the appellant to pay value added tax (VAT) on the importation of certain goods into Zimbabwe.</p> <p> </p> <p>Background</p> <p>The appellant is a foreign company incorporated in the British Virgin Islands and operating from Guernsey in the Channel Islands. The respondent is a body corporate responsible for the collection of VAT and other imposts in Zimbabwe.</p> <p> </p> <p>            The appellant was a supplier of basic commodities to local companies, including the West Group of Companies (West Group). In 1992, it concluded an agency agreement with Douglas and Tate (Pvt) Ltd (Douglas &amp; Tate), a subsidiary of West Group. By 1999, it was supplying basic commodities to West Group and other local customers under a US$ 10 million line of credit registered with the Reserve Bank of Zimbabwe (the RBZ).</p> <p> </p> <p>On 1 October 2007, the RBZ unveiled the Basic Commodities Supply Side Intervention (BACOSSI), a facility designed to end the chronic shortages of basic commodities in Zimbabwe. After negotiations between the appellant and the RBZ, the latter purchased certain non-BACOSSI goods, valued at US$ 7,987,207.54, that were in the Douglas &amp; Tate warehouse. The appellant also supplied BACOSSI goods, valued at US$11,698,174.00, to the RBZ in 2008.</p> <p> </p> <p>After conducting investigations, the respondent raised taxation schedules against the appellant for outstanding VAT, on both BACOSSI and non-BACOSSI transactions, initially on 17 March 2009 and later on 15 July 2009. The total charge raised was US$6,302,712.13, inclusive of interest and penalties. This was subsequently corrected, on 13 October 2009, by reducing the charge to US$ 6,249,496.70.</p> <p> </p> <p>The appellant lodged an objection to the assessment on 25 September 2009. It also applied for condonation for the late filing of the objection. The respondent dismissed the application for condonation and disallowed the objection. The appellant appealed against both decisions to the Fiscal Appeal Court on 12 October 2009. The respondent filed its reply on 12 November 2009. At a pre-trial hearing on 17 September 2014, the delay by the appellant in filing its notice of objection as well as the failure by the respondent to file its documents timeously were both condoned by consent.</p> <p> </p> <p>Judgment of the Fiscal Appeal Court</p> <p>At the hearing of the matter, the appellant called the evidence of one Kenneth Sharpe, who was the founder and Chairman of West Group and a director of Douglas &amp; Tate.  He confirmed the foreign status of the appellant. His evidence was that West Group, Douglas &amp; Tate and the appellant were not related companies. The court <em>a quo</em> found that he was not a credible or reliable witness. This was because he contradicted material parts of his evidence-in-chief under cross-examination. Furthermore, his evidence left gaps that could only be filled by the directors, employees, officials or agents of the appellant itself.</p> <p> </p> <p>On the merits, the court <em>a quo</em> relied on the documentary evidence, <em>i.e.</em> the unsigned agreement between the appellant and the RBZ and the relevant documents generated in South Africa, to find that it was the appellant that imported the goods in question into Zimbabwe. It was the appellant who beneficially owned and possessed the goods before they entered Zimbabwe and brought or caused them to be brought into the country. It was accordingly held that the appellant was the importer of both the BACOSSI and non-BACOSSI goods.</p> <p> </p> <p>The court further found that the activities of the appellant in Zimbabwe from 2004 onwards, which were carried on continuously and regularly, constituted trading in the country for the purposes of VAT liability. The appellant was not a registered operator, but every trader is liable to be registered for VAT purposes and is deemed to be a registered operator as the principal for goods supplied or imported on its behalf by its agent. The appellant was carrying on the business of supplying goods through the agency of Douglas &amp; Tate, which released the goods only on the instructions of the appellant after the latter had received payment in accordance with the relevant waybills and invoices.</p> <p>The court held that the appellant was the importer of the goods in question and was therefore liable for the payment of VAT in both the pre-BACOSSI and BACOSSI eras when it supplied goods in furtherance of its business activities. Furthermore, the appellant was required to be registered and had to be treated as a registered operator. Its failure to charge or receive VAT did not exonerate the appellant as VAT is deemed to be included in the purchase price. Additionally, it bore the obligation to remit VAT in foreign currency in accordance with the legislation in force at the relevant time.</p> <p> </p> <p>As regards the appointment of the Chief Executive Officer (CEO) of West Group as the public officer of the appellant, the court found that this was above board. In terms of the governing provisions, the respondent was allowed to compulsorily appoint the CEO of West Group, the holding company of Douglas &amp; Tate, which was the agent of the appellant in Zimbabwe, as its public officer and representative registered operator for the collection of VAT.</p> <p> </p> <p>            With respect to the appellant’s argument that the respondent had used an arbitrary exchange rate to convert Rand denominated transactions to United States dollar values, the respondent averred that the relevant invoice values together with the appropriate conversions were supplied by the appellant’s own agents. The court found that the onus was on the appellant to establish that the conversions were arbitrary. However, it did not lead any evidence in this regard and the respondent’s averments were not denied.</p> <p> </p> <p>In the event, the court held that the appeal before it was not sustainable in its entirety. However, the appellant’s objections raised important legal points and its grounds of appeal were not frivolous. The appeal was accordingly dismissed with no order as to costs.</p> <p>Grounds of appeal and relief sought</p> <p>There are six grounds of appeal in<em> casu</em>. They impugn the judgment of the court <em>a quo</em> in the following respects:</p> <ul> <li>Rejecting the evidence given on behalf of the appellant as being unreliable.</li> <li>Holding that the appellant, and not the RBZ, was the importer of the goods in question.</li> <li>Holding that the respondent was entitled to go behind the contents of the bills of lading which it had processed and approved to find that the appellant was the importer of the goods into Zimbabwe.</li> <li>Finding that the appellant operated a business in Zimbabwe.</li> <li>Holding that the appellant was to be treated as a registered operator and finding that the appellant was liable to pay VAT on the imported goods.</li> <li>Considering the issue of whether or not any company had been lawfully appointed as an agent to pay any tax due by the appellant, and in finding that such an appointment had in fact been lawfully made.</li> </ul> <p> </p> <p>The appellant prays that the appeal be allowed with costs and that the judgment of the court <em>a quo</em> be set aside and substituted with an order allowing the appeal <em>a quo</em> with costs and directing the respondent to withdraw the contested VAT assessments issued by it against the appellant in this matter.</p> <p> </p> <p>Preliminary issues</p> <p>Mr <em>Magwaliba</em>, raised two preliminary objections to the notice of appeal. The first was that paragraph 2 of the order to be substituted <em>a quo</em> lacks exactitude as to the specific notices of assessment to be set aside. The second was that the first ground of appeal is too wide and does not identify the specific evidence that was found to be unreliable. This ground does not allow the respondent or the court to identify that evidence.</p> <p> </p> <p>In response, Mr <em>Mpofu</em>, for the appellant, argued that the prayer in the notice of appeal is exact as to the notices of assessment to be set aside. However, if the prayer needed to be amended, he moved that it be so amended.</p> <p> </p> <p>As regards the prayer, I agree with Mr <em>Mpofu</em> that paragraph 2 of the order to be substituted <em>a quo</em> does specifically identify the VAT assessments that are to be withdrawn, in relation to both the goods concerned as well as the period covered. Therefore, I do not think that the objection taken is valid or that the draft prayer calls for any corrective amendment.</p> <p> </p> <p>As for the first ground of appeal, Mr <em>Mpofu</em> was quite correctly prepared to abandon this ground. Consequently, the fist ground of appeal was struck out by consent.</p> <p> </p> <p>Identity of importer: Zimtrade or RBZ</p> <p>The second and third grounds of appeal pertain to the identity of the importer of the goods in question. Was it the RBZ, as is contended by the appellant, or was it the appellant itself? Also relevant in this context are the contents of the bills of entry that had been submitted for processing and approval by the respondent’s Department of Customs and Excise.</p> <p> </p> <p>Mr <em>Mpofu</em> submits that a bill of entry is a document that is filed by the importer. In<em> casu</em>, one such bill of entry filed and approved in August 2008 identifies the appellant as the exporter/consignor, based in Guernsey. The importer/consignee is identified as the RBZ. All the other relevant bills of entry in this case contain the same information as to the identities of the exporter and the importer. The bills of entry were issued in terms of the Customs and Excise Act.  Mr <em>Mpofu</em> relies on the provisions of ss 37(1)(e), 39(1) and 40(1) of the Act in support of his submission that the entries in question were made by the RBZ as the importer. The respondent incorrectly took the position that the appellant was the importer of the goods concerned because it owned the goods before they entered into Zimbabwe from South Africa. The respondent, which bore the evidentiary burden in this respect, did not place any evidence before the court <em>a quo</em> to disprove the correctness of the bills of entry.</p> <p> </p> <p>Mr <em>Mpofu</em> also relies on other documentary evidence to buttress the appellant’s position. In particular, he refers to an opinion by the RBZ’s lawyer dated 17 June 2009, a letter of 1 July 2009 from the RBZ to the appellant’s lawyers, and the minutes of a meeting held on 7 October 2009 between the RBZ and representatives of West Group. These documents, so he submits, make it clear that the RBZ was the importer, the only unresolved issue being the currency in which VAT was to be paid.</p> <p> </p> <p>Turning to the unsigned draft agreement between the parties, Mr <em>Mpofu</em> submits that the court <em>a quo</em> wrongly relied on this draft to counter the bills of entry. The respondent itself indicated in its reply that it did not know whether or not the agreement was reduced to writing. It further confirmed, through its counsel, that it was not relying on the drafts as conclusive evidence of the agreement between the appellant and the RBZ. Consequently, so it is submitted, the unsigned agreement had no validity and could not be used as an antidote to the bills of entry, as the court <em>a quo</em> purported to do.</p> <p> </p> <p>Mr <em>Magwaliba</em> submits that the provisions of the Customs and Excise Act that are relied upon by the appellant do not address the question at hand. What is more relevant are the definitions that appear in s 2 of the Act relating to the meaning of the terms “import”, “importer” and “entry”. The court <em>a quo</em>, so he submits, correctly applied these definitions to find that the appellant was the owner and importer of the goods in question before they crossed the borders of Zimbabwe. Thus, the respondent was entitled to pursue the party that was statutorily liable to pay VAT as the importer, <em>i.e.</em> the appellant, and not the RBZ which was not the importer.</p> <p> </p> <p>As regards the bills of entry, Mr <em>Magwaliba</em> points to the definition of “entry” in s 2 of the Act which makes it clear that the information contained in a bill of entry must be correct. Most of the declarants on the bills in<em> casu</em> were employees of Mitchell Cotts Freight Zimbabwe, a freighting company. Therefore, so he submits, it was not the RBZ but the freighting agent that completed the bills of entry. The evidence indicates that the freighting agent was paid by the subsidiary of West Group, <em>i.e.</em> Douglas &amp; Tate, which acted for the appellant. Mr <em>Magwaliba</em> further submits that the bills of entry were not prepared by the respondent or the RBZ or by any other official. Consequently, no presumption of regularity could attach to them and their designation of the RBZ as the importer is therefore not reliable or conclusive.</p> <p> </p> <p>With reference to the alleged admissions of liability by the RBZ, Mr <em>Magwaliba</em> argues that the opinion tendered by its lawyer on 17 June 2009 is not binding. Again, the letter from the RBZ, dated 1 July 2009, was rejected by the Advisor to the RBZ Governor at a meeting held with the respondent’s officials on 20 August 2009. Furthermore, the RBZ’s expression of its willingness to pay the VAT invoices in Zimbabwe dollars, at its meeting with West Group on 7 October 2009, was conditional on seeking legal opinions on the matter.</p> <p> </p> <p>Finally, Mr <em>Magwaliba</em> submits that the draft agreement between the appellant and the RBZ affords evidence of the negotiations between and intention of the parties at some point. The terms contained in an unsigned agreement can be relied upon unless they are disproved by the party who asserts that the agreement was not intended to be binding. The court <em>a quo</em> was therefore correct in relying upon the contents of the draft agreement in<em> casu</em>.</p> <p> </p> <p>In response, Mr <em>Mpofu</em> submits that the contents of the bills of entry are crucial because they were officially accepted for the purposes of importation and the liability to pay tax. They show that the RBZ, which had a beneficial interest in the goods at the time when entry was made, was the importer of those goods. There was no evidence to rebut the contents of the bills of entry. In this respect, the fact that the freighting agents signed them as the declarants is irrelevant. In terms of s 12 of the Civil Evidence Act, a bill of entry, being a public document, does not have to be made exclusively by a public officer. The bills of entry in<em> casu</em> were made on ZIMRA forms and their contents were accepted by ZIMRA officials. Furthermore, copies of any documents kept by a public official can be used in evidence.</p> <p> </p> <p>Lastly, Mr <em>Mpofu</em> submits that the opinion of the RBZ’s lawyer, dated 17 June 2009, were based upon facts given to him by the RBZ itself. The RBZ clearly relied upon that opinion in order to accept liability to pay the VAT claimed in Zimbabwe dollars.</p> <p> </p> <p>There is a total number of 12 bills of entry on record, covering the period from 20 June 2008 to 26 August 2008. All of these bills identify the appellant as the exporter and the RBZ as the importer. The declarants on the first 7 bills were representatives of Big Star Cargo Services, while the declarants on the next 5 bills were representatives of Mitchell Cotts Freight Zimbabwe. There can be no doubt that, <em>prima facie</em>, the entries on these bills of entry support the appellant’s contention that it was not the importer of the goods in question.</p> <p> </p> <p>The draft agreement relied upon by the respondent appears to have been drafted at some stage in 2008. It identifies the appellant as a company duly incorporated in Zimbabwe and whose principal place of business is situated in Harare. The appellant is designated as the seller of specified goods, valued at US$ 12,759,114.00, while the RBZ is designated as the buyer of those goods. The agreement was not signed by either of the parties. In its reply, the respondent intimated that it had “no knowledge of whether the agreement in respect of the supply of goods was reduced to writing or not”. However, the respondent annexed to its reply the minutes of a meeting held on 13 February 2009 between officials of the RBZ and various other named but unidentified persons. The purpose of the meeting was to explain “the operations of BACOSSI project”. According to the officials of the RBZ, the appellant “was responsible for importation of basic commodities”. They further explained that the appellant “is not duly incorporated in Zimbabwe and does not have offices in Zimbabwe as indicated on the contract of agreement in ZIMRA’s possession”. Furthermore, “only a verbal agreement was reached between the governor and Tania, the Ukranian representing Afritrade International. There is no written agreement between Afritrade International and RBZ”.</p> <p> </p> <p> The learned judge <em>a quo</em> highlighted the principal terms of the agreement and reasoned that “the onus to establish that the terms and conditions in their agreement were different from those captured in the unsigned agreement was on the appellant. The appellant did not lead any evidence on this aspect”. Furthermore, “the unsigned agreement placed the duty to import the goods into Zimbabwe on the appellant. Again, the delivery of the goods cost, insurance and freight Harare strongly suggests that the appellant imported the goods into Zimbabwe. It would not make sense for the RBZ to undertake to expeditiously facilitate the quick clearance of its imports. The obligatory cost, insurance and freight Chitungwiza bonded warehouse delivery clause and the expeditious clearance clause suggests [<em>sic</em>] that the appellant was the importer”.</p> <p> </p> <p>In principle, an unsigned agreement cannot ordinarily be relied upon as creating a valid and binding contract. However, the surrounding circumstances, including prior dealings between the parties concerned, may give rise to the <em>prima facie</em> presumption that the terms and conditions embodied in an unsigned agreement represent the true intention of the parties. The burden then shifts to the party disputing the authenticity of the agreement to show that it was not intended to be binding. This position was affirmed by this Court in <em>Associated Printing and Packaging (Pvt) Ltd &amp; Ors</em> v <em>Lavin &amp; Anor</em> 1996 (1) ZLR 82 (S), at 87:</p> <p>“One must mention the fact that the written document, Annexure F, was not signed. The seller apparently declined to sign it. The law on this point is set out in Christie <em>op cit</em> at p 122:</p> <p>‘This principle, that the burden of proof is on the party who asserts that an informal contract was not intended to be binding until reduced to writing and signed, was adopted by the Appellate Division in <em>Goldblatt v Fremantle</em> 1920 AD 123 ...’</p> <p>In <em>Woods v Walters</em> 1921 AD 303 at 305 Innes CJ referred to the above passage         and added:</p> <p>‘It follows of course that where the parties are shown to have been <em>ad idem</em> as to the material conditions of the contract, the onus of proving an agreement that legal validity should be postponed until the due execution of a written document lies upon  the party who alleges it.’</p> <p>In this context, it is of significance that Mr Morris, the seller, declined to         give evidence on oath, or to call any witnesses.”</p> <p> </p> <p>It is common cause that there was an agreement between the appellant and the RBZ governing the importation and supply of the BACOSSI goods. This agreement was reduced to writing but was not signed by the parties, ostensibly because the appellant was unhappy with the description of its country of incorporation and principal place of business in the preamble to the draft agreement. In any event, the BACOSSI goods were imported into Zimbabwe and delivered to the RBZ in Harare as specified in the unsigned agreement. Given this background, it seems to me that the court <em>a quo</em> was correct in finding that the contract between the appellant and the RBZ was on the terms and conditions stipulated in the draft unsigned agreement, unless the appellant was able to prove that its contract with the RBZ was on some other terms and conditions. Inasmuch as the appellant did not adduce evidence of any other agreement between the parties, the learned judge <em>a quo</em> correctly concluded that the appellant was bound by the terms of the draft agreement. It follows that those terms must be taken as being correct in their designation of the appellant as the seller and importer of the goods in question.</p> <p> </p> <p>The next issue concerns the legal opinion submitted to the RBZ and its subsequent stance relating to the payment of VAT claimed by the respondent. In their letter to the RBZ, dated 17 June 2009, its lawyers took the following position:</p> <p>“From the documentation we were shown, the Reserve Bank imported the             Bacossi goods. The imported goods are VAT taxable and the tax is charged on the importer (RBZ in this case). …….. . The VAT payable on the importation of goods into Zimbabwe is payable by the importer and not by the supplier of those goods. Accordingly, if ZIMRA were to rely on the provisions dealing with imports the Reserve Bank would have to pay the VAT. …….. . We therefore advise the Reserve Bank to urgently pay Zimra in local currency. This should be done before parliament resume [<em>sic</em>] and          pass the Finance Bill which may have changes on the currency to be paid on all outstanding taxes. …….. . Government departments cannot take each other to court. …….. . We do not therefore believe that ZIMRA can go to court against the Reserve Bank.”  </p> <p> </p> <p>Three things emerge from the legal advice contained in this letter. The first, based on the importation documents, presumably the relevant bills of entry, is that the RBZ was the importer of the BACOSSI goods and was therefore liable for any VAT leviable on those goods. The second is that the RBZ should pay that tax in local currency before any legislative change was introduced. And thirdly, even if the RBZ were to be levied for payment of the VAT due, ZIMRA would not be able to pursue its claim against the RBZ through the courts.</p> <p> </p> <p>Pursuant to this opinion, its addressee (Dr Mombeshora) wrote on behalf of the RBZ to the appellant’s lawyers. The nub of this letter, dated 1 July 2009, was to confirm that the RBZ “imported BACOSSI goods” from the appellant and that the RBZ “accepts liability to ZIMRA for this VAT”. However, this purported admission of liability to pay the VAT was subsequently condemned and rejected at a meeting held on 20 August 2009 between officials of the RBZ and ZIMRA. The lead RBZ representative (Dr Kereke) “opposed the writing of the letter by Dr Mombeshora; in fact it was shocking to him and the governor. …….. . It was not proper to write such a letter to take responsibility of payment of tax of a supplier. …….. . The letter was not RBZ policy. …….. . The bank will revoke point number three of the letter which gave liability of Afritrade International to RBZ.”</p> <p> </p> <p>Following this <em>volte-face</em> by the RBZ, a meeting was held between the RBZ and representatives of West Group. The meeting, held on 7 October 2009, was chaired by the RBZ Governor. It was noted that “a bank employee erred in assuming the liability on behalf of the Bank without the express authority of the Governor”. It was further noted that “there could perhaps be some business transactions held between Dr Mombeshora and Afritrade that he [the Governor] could not verify or vouch for”. At any rate, “The Governor had no problem paying the VAT invoice as long as it was stated in Zimbabwe Dollars. …….. . However, he had asked Dr Mombeshora to seek legal opinion on the matter internally and externally”. At the conclusion of the meeting, “the Governor suggested to West Group to obtain all the invoices and have them assessed by an accounting firm and advise on the correct VAT due. The records should cover pre-bacossi and bacossi importations”.</p> <p> </p> <p>What is evident from all of the foregoing is that the RBZ’s acceptance of liability to pay the VAT due on the BACOSSI goods, albeit in Zimbabwe dollars, was not unequivocal or unqualified. It was conditional upon the reassessment of the relevant records and the need to seek further legal opinion. Very significantly, this qualified acceptance of liability was largely predicated on the legal advice given to the RBZ on 17 June 2009, not all of which advice was necessarily correct. The basic premise of that advice hinged upon the contents of the importation documents that were shown to the RBZ’s lawyers.</p> <p> </p> <p>As I have already stated, <em>ex facie</em> the contents of the bills of entry in<em> casu</em> the appellant was the exporter and the RBZ was the importer of the goods in question. In light of the factual findings made by the court <em>a quo</em>, it becomes necessary to evaluate the legal correctness of those entries in the specific circumstances of this case.</p> <p> </p> <p>Section 12(1) of the Civil Evidence Act [<em>Chapter 8:01</em>] defines a “public document” as a document made by a public officer for public use. In terms of s 12(2) of the Act, a copy of a public document is admissible in evidence as <em>prima facie</em> proof of the facts stated therein. By virtue of s 12(3), a copy of a document, other than a public document, the original of which is in the custody of a State official, is also admissible in evidence.</p> <p> </p> <p>In<em> casu</em>, there can be no doubt that the bills of entry produced in evidence are admissible documents within the contemplation of s 12(3) of the Civil Evidence Act. The fact that the entries therein were not made by a public officer or official of the State does not detract from their status as admissible evidence, for the obvious reason that their originals were, or should have been, in the custody of a State official. The court <em>a quo</em> was very much alive to the presumption of regularity attaching to the bills of entry. It accepted that those bills were “public documents whose contents are <em>prima facie</em> correct” and that, therefore, “the evidentiary onus to disprove the correctness of the contents of the bills of entry shifted to the respondent.”</p> <p>The court <em>a quo</em> then proceeded to examine the definitions of the terms “importer”, “exporter” and “entry” in s 2 of the Customs and Excise Act [<em>Chapter 23:02</em>]. The learned judge found that “the business activities of the appellant fell outside the definition of ‘exporter’ but squarely fit the definition of ‘importer’. It was a misnomer to refer to the appellant in the bill of entry as an exporter”. He then concluded that “notwithstanding the contents of the bills of entry and other documents compiled by or at the instance of the appellant to the contrary, the appellant was the owner or possessor of the goods who also had a beneficiary [<em>sic</em>] interest in them before they entered Zimbabwe who brought them or caused them to be brought into Zimbabwe”. He accordingly held that “the appellant was the importer of both the non-Bacossi and the Bacossi goods.”</p> <p> </p> <p>In terms of s 37(1)(e) of the Customs and Excise Act, where goods are imported by means other than ships, aircraft, trains or pipelines, the time of importation of goods into Zimbabwe is deemed to be the time when the goods cross the borders of Zimbabwe. Section 39(1)(a) of the Act requires every importer of goods to make entry of those goods at the point of entry at the time of importation. Section 40(1) prescribes the manner in which entry of imported goods is to be made. It requires the person making entry to, <em>inter alia</em>, deliver to the proper officer a bill of entry with full particulars as prescribed or required, make and subscribe to a declaration in the prescribed form as to the correctness of those particulars, pay the duty due on the goods, and produce all bills of lading, invoices, or other documents relating to the goods or their value.</p> <p> </p> <p>Turning to the salient definitions in s 2 of the Act, the term “entry” in relation to clearance of goods for importation means “the presentation in accordance with this Act of a correctly completed and signed declaration on a bill of entry in writing”. The term “export” means “to take goods or cause goods to be taken out of Zimbabwe”. Correspondingly, “exporter” means “any person in Zimbabwe who takes goods or causes goods to be taken out of Zimbabwe, and includes any employee or agent of such person and the owner of such goods as are exported”. Conversely, “import” means “to bring goods or cause goods to be brought into Zimbabwe”. The definition of “importer” is expanded to include “any owner of or other person possessed of or beneficially interested in any goods at any time before entry of the same has been made and the requirements of this Act fulfilled”.</p> <p> </p> <p>Having regard to the foregoing provisions governing the entry of imported goods and the relevant definitions cited above, as applied within the context of the dealings between the appellant and the RBZ, I am inclined to agree with the conclusion arrived at by the learned judge <em>a quo</em>. The critical entries contained in the bills of entry are patently anomalous and misleading for the following reasons.</p> <p> </p> <p>Firstly, the appellant cannot conceivably be said to be the exporter of the goods in question out of Zimbabwe. It was obviously the consignor of the goods into Zimbabwe, but certainly not their exporter out of Zimbabwe.</p> <p> </p> <p>Secondly, given the manner of and circumstances surrounding the importation and entry of the goods into Zimbabwe, the RBZ cannot be described as the importer of those goods. It may well have been the ultimate consignee of the goods in Harare, but it was not their owner or possessor at any time before entry of the goods was made or at the time of their importation, <em>i.e.</em> when they crossed the borders of Zimbabwe at the port of entry in Beitbridge. There is nothing on record or in the evidence adduced to show that the RBZ had any form of control over the goods at the time of their importation. On the other hand, the appellant was quite evidently the party that brought the goods or caused them to be brought into Zimbabwe. It was also the only party that can accurately be described as the owner or person possessed of or beneficially interested in the goods at any time before their entry was made or at the time of their importation.</p> <p> </p> <p>Thirdly, there is no evidence of any direct linkage between the RBZ and the freighting agents involved, <em>i.e.</em> Big Star Cargo Services and Mitchell Cotts. They were clearly not the agents of the RBZ or acting on its behalf at the time when they declared themselves on the bills of entry as the importer’s agents. There is no evidence on record to show that the RBZ itself was privy to the particulars contained in the bills of entry or that it could vouch for their correctness. Indeed, this is abundantly clear from the meeting that was held between the RBZ and the representatives of West Group on 7 October 2009, when it was decided that West Group was to obtain all the relevant invoices and records, for assessment by an accounting firm, so as to advise the RBZ on the correct amount of VAT due. On the other hand, there can be no doubt that it was the appellant that generated or caused to be generated the accompanying bills of lading, invoices and other documents relating to the imported goods and their value. Moreover, when subscribing to the particulars contained in the bills of entry, the freighting agents, as declarants, were evidently acting on the instructions and as the agents of the true “importer” of the goods in question, to wit, the appellant.</p> <p> </p> <p>In the final analysis, I am amply satisfied that the court <em>a quo</em> was perfectly correct in holding that it was the appellant that was the importer of both the BACOSSI and the non-BACOSSI goods. In the premises, the second and third grounds of appeal cannot be sustained and must accordingly be dismissed.</p> <p> </p> <p>Conduct of business or trade: Registration as operator</p> <p>The fourth and fifth grounds of appeal attack the judgment <em>a quo</em> in the finding of the court that the appellant operated a business in Zimbabwe and consequently holding that the appellant was to be treated as a registered operator liable to pay VAT on the imported goods.</p> <p> </p> <p>The evidence-in-chief of the Chairman of West Group (Kenneth Sharpe) was that there was no cross-holding of shares between West Group and the appellant. He further testified that none of the officers of the appellant was on any of the boards in West Group and that the appellant did not have and never had any personnel in Zimbabwe. He also confirmed the details in his earlier written statement pertaining to the type of business that was being conducted by the appellant with Douglas &amp; Tate, a subsidiary of West Group. This was to the effect that Douglas &amp; Tate was holding various items which had been put in its warehouse on behalf of the appellant. The arrangement between Douglas &amp; Tate and the appellant was that the former would act as an agent of the latter.</p> <p> </p> <p>On the basis of this testimony, Mr <em>Mpofu</em> submits that there was nothing to contradict the appellant’s position that it did not operate any business in Zimbabwe. The appellant is a foreign company that conducted business in South Africa to acquire goods for the RBZ. It did not undertake any gainful occupation or activity within Zimbabwe itself and it had no employees in Zimbabwe. Consequently, so it is submitted, the learned judge erred in holding that the appellant was required to be registered for VAT purposes.</p> <p> </p> <p>Mr <em>Magwaliba</em> counters that, in terms of the governing legislation, VAT is payable by any person, local or foreign, who is an importer. Whether or not that person carries on any trade in Zimbabwe is irrelevant. The appellant, so he submits, is obliged to pay VAT as an importer. Furthermore, it is common cause that the appellant operated in Zimbabwe through its agent, <em>i.e.</em> Douglas &amp; Tate. The appellant therefore carried on business partly in Zimbabwe. As regards registration as an operator, the law permits the respondent to deem a person to be registered from the date he becomes liable to pay VAT. Accordingly, it is argued that the respondent competently deemed the appellant to be a registered operator for VAT purposes.</p> <p> </p> <p>In terms of s 6(1)(a) of the Value Added Tax Act [<em>Chapter 23:12</em>], VAT is to be charged, levied and collected on the value of the supply by any registered operator of goods or services supplied by him in the course or furtherance of any trade carried on by him. Additionally, by virtue of s 6(1)(b) of the Act, VAT is also leviable on the value of the importation of any goods into Zimbabwe by any person.</p> <p> </p> <p>My reading of these provisions is that they afford two separate and distinct taxing bases for the levying and payment of VAT. Under s 6(1)(a), it is the supply of goods and services in the course or furtherance of any trade that attracts liability to pay VAT, while s 6(1)(b) pertains to the payment of VAT on the importation of any goods into Zimbabwe. By virtue of s 6(2)(a) and s 6(2)(b), the tax payable under s 6(1)(a) is to be paid by the registered operator, and the tax payable under s 6(1)(b) is to be paid by the importer of the goods in question. In the latter instance, it is not necessary that the importer should also be carrying on any trade in Zimbabwe for VAT to be levied.</p> <p> </p> <p>The registration of persons making supplies in the course of any trade is governed by s 23 of the Act. Section 23(1) stipulates that every person who, on or after 1 January 2004, carries on any trade and is not registered becomes liable to be registered. Subsections (2) and (3) of s 23 prescribe the procedural requirements for registration for VAT purposes. In terms of s 23(4)(b), where any person who is liable to be registered has not applied for registration, that person is deemed to be a registered operator for the purposes of the Act from the date on which he first became liable to be registered in terms of the Act.</p> <p> </p> <p>The word “supply” is defined in s 2 of the Act to include “all forms of supply, irrespective of where the supply is effected”. The term “trade” is equally broadly defined to mean “in the case of a registered operator, other than a local authority, any trade or activity which is carried on continuously or regularly by any person in Zimbabwe or partly in Zimbabwe and in the cause or furtherance of which goods or services are supplied to any other person for a consideration, whether or not for profit, …….. “. In similar vein, a “supplier” means “in relation to any supply of goods or services, …….. the person supplying the goods or services”.</p> <p> </p> <p>In<em> casu</em>, it is common cause that, at all material times, it was the appellant, acting through Douglas &amp; Tate as its agent, that supplied both the non-BACOSSI and BACOSSI goods to the RBZ. Having regard to the definitions of “trade”, “supply” and “supplier” in s 2 of the Act, the appellant was unquestionably the supplier of those goods, who supplied them in the course and furtherance of a trade carried on by it, within the contemplation of s 6(1)(a) of the Act. The fact that such supply might have been effected before, at the time when or after the goods in question arrived at the Beitbridge border post is quite immaterial, as is the fact that the appellant conducted its trade only partly in Zimbabwe. Again, it is equally irrelevant that the appellant was an entity incorporated in Guernsey, but not in Zimbabwe, or that its principal place of business might have been situated outside Zimbabwe.</p> <p> </p> <p>It follows from the foregoing that the appellant was liable to be registered in terms of s 6(1)(a) of the Act, as an entity subject to VAT, and that it was quite properly and lawfully registered for VAT purposes in terms of s 23(4)(b) of the Act. It also follows that the court <em>a quo</em> cannot be faulted for holding that the appellant was to be treated as a registered operator in terms of the Act and that it was therefore liable to pay VAT on the goods that it supplied, as required by s 6(2)(b) of the Act. Alternatively and in any event, in light of my earlier conclusion that the appellant was the true importer of the goods in question, it would also be liable to pay VAT on their importation, in terms of s 6(1)(b) as read with s 6(2)(b) of the Act.</p> <p> </p> <p>Appointment of agent to pay tax</p> <p>The sixth and final ground of appeal takes issue with the findings of the court <em>a quo</em> in connection with the appointment of an agent to pay tax and that such an appointment had in fact been lawfully made. As was correctly observed in argument by Mr <em>Mpofu</em>, this ground is only relevant if the other grounds of appeal are unsuccessful.</p> <p> </p> <p>On 12 March 2009, the respondent appointed the Chief Executive Officer (CEO) of West Group as the public officer and representative of the appellant on the ground that West Group was the holding company of Douglas &amp; Tate, the appellant’s agent in Zimbabwe. The CEO objected to this appointment but his objection was dismissed by the respondent on 31 March 2009. The court <em>a quo</em>, relying on various provisions of the Income Tax Act and the Value Added Tax Act, held that “the appointment of the CEO of the holding company of D &amp; T, the agent of the appellant, as a public officer and representative registered operator was above board because D &amp; T acted as an agent of the appellant in Zimbabwe”.</p> <p> </p> <p>Mr <em>Mpofu</em> submits that the appointment of the CEO of West Group was invalid, particularly as the respondent initially conceded this point by cancelling the appointment and dealing instead with the appellant’s legal practitioners, but then later overrode its own concession. Mr <em>Mpofu</em> points to s 61(4) of the Income Tax Act to submit that this provision completely excludes the propriety of the appointment and that it was clearly misconceived. Section 61(4) makes it clear that the appointed person must be an official of the importing company and not an official of an agent company. Mr <em>Magwaliba</em> submits that s 61(4) is not the only relevant provision. Section 61(8) of the Act is equally relevant as it allows the respondent to penalise the agent of any defaulting company.</p> <p> </p> <p>Subsections (1), (2) and (3) of s 61 of the Income Tax Act [<em>Chapter 23:06</em>] provide for the appointment of a public officer, being an individual residing in Zimbabwe, to represent every company which carries on a trade or has an office or other established place of business in Zimbabwe. Such individual, who must be a person approved by the Commissioner of Taxes, must be appointed within one month of the company commencing its operations in the country. Section 61(4) of the Act stipulates that “in default of any such appointment, the public officer of any company shall be such managing director, director, secretary or other officer of the company as the Commissioner may designate for that purpose” (my emphasis). By dint of s 61(8), any company which fails to comply with s 61 “and every person who acts within Zimbabwe as agent or manager or representative of such company” incurs a monetary penalty for every day during which the default continues. Additionally, s 61(9) enables any notice, process or proceeding under the Act to be given to, served upon or taken against the public officer of the company and, in his or her absence, “any officer or person acting or appearing to act in the management of the business or affairs of such company or as agent of such company”. The word “agent” is defined in s 2 of the Act to include “any partnership or company …….. when acting as an agent” and “any person declared by the Commissioner to be the agent of some other person for the purposes of this Act”.</p> <p> </p> <p>Section 53 of the Income Tax Act sets out the persons who are representative taxpayers for the purposes of the Act. In terms of s 53(1)(a), a “representative taxpayer …….. in relation to the income of a company, means the public officer of the company”. Section 54(1) of the Act subjects every representative taxpayer to the same duties, responsibilities and liabilities as if such income were received by or accruing to him or her beneficially as well as liability to assessment in his or her own name in respect of such income. However, s 54(5) makes it clear that any tax payable in respect of an assessment made upon a public officer is recoverable from the company itself.</p> <p> </p> <p>Turning to the Value Added Tax Act [<em>Chapter 23:12</em>], the provisions relied upon by the court <em>a quo</em> are to be found in ss 47, 48 and 49 of Part VIII of the Act, pertaining to representative registered operators. In terms of s 47(a), the person responsible for performing the duties imposed by the Act upon any company is the public officer contemplated in s 53 of the Income Tax Act. Section 48(2) empowers the Commissioner to declare any person to be the agent of any other person for the purposes of the Act, including the payment of any amount of tax, additional tax, penalty or interest due from any moneys held or received by him or her as an agent or intermediary of the other person. In similar vein, s 49(2) stipulates that every representative registered operator shall be liable for the payment of any tax, additional tax, penalty or interest chargeable under the Act in relation to any moneys controlled or transaction concluded by him or her in a representative capacity, as though such liability had been incurred personally.</p> <p> </p> <p>The key provisions for consideration in the present context are s 61(4) of the Income Tax Act and s 47(a) of the Value Added Tax Act. The former enables the Commissioner to designate the public officer of a company in the absence of an appointment of such officer by the company itself. The latter, as read with s 53 of the Income Tax Act, identifies the public officer as the person responsible for performing the duties imposed by the Value Added Tax Act on any company. Apart from identifying the public officer of a company as its principal representative for all tax-related purposes, the other provisions in both Acts that I have alluded to earlier also impose various responsibilities and obligations upon other specified individuals. These include any person who acts as an agent, manager or representative of the company and anyone declared by the Commissioner to be the agent of the company.</p> <p> </p> <p>It is trite that the provisions of a statute must be construed holistically, within the context of the statute in which they appear as well as any statute <em>in pari materia</em>. In this respect, the learned judge <em>a quo</em> quite properly took into account “the architectural design” of both the Income Tax Act and the Value Added Tax Act which allow the Commissioner to compulsorily appoint public officers and agents for the collection of VAT and other taxes. On this basis, he found that the appointment of the CEO of West Group as a public officer and representative registered operator of the appellant was perfectly lawful.</p> <p> </p> <p>With great respect, the learned judge appears to have misconstrued and misapplied the provisions that he relied upon to arrive at that conclusion. First and foremost, it is common cause that there was no corporate nexus between West Group and the appellant. The fact that Douglas &amp; Tate, a subsidiary of West Group acted as an agent of the appellant in Zimbabwe, did not justify the imposition of corporate responsibility upon the CEO of West Group simply because the latter was the holding company of Douglas &amp; Tate. Secondly and more significantly, the learned judge seems to have stretched the concept of contextual construction well beyond the permissible limits. In terms of s 47(a) of the Value Added Tax Act, it is the public officer of a company that is responsible for performing the duties imposed by that Act. Such public officer is ordinarily appointed by the company itself or by an agent or legal practitioner vested with the authority to do so. And in default of such appointment, s 61(4) of the Income Tax Act enables the Commissioner to designate a “managing director, director, secretary or other officer of the company” as its public officer. Without doing critical violence to the clear and unambiguous language of this provision, it is difficult to imagine how the CEO of West Group, an entity that had no managerial, directorial or shareholding connection with the appellant, could possibly be regarded as an officer of the appellant company.</p> <p> </p> <p>I am fortified in this position by having regard to the extremely onerous obligations imposed upon the public officer or registered representative operator of a company as well as the highly punitive consequences and liabilities attaching to the failure to fulfil those obligations. Amongst other things, there is the possibility of being subjected to monetary penalties, legal process and tax assessments as well as the liability to pay, albeit in a representative capacity, taxation debts incurred by the company. I do not think that the lawmaker would have intended the visitation of such punitive measures upon the officers of an entirely separate corporate entity.</p> <p> </p> <p>Both at common law and by virtue of s 3 of the Administrative Justice Act [<em>Chapter 10:28</em>], the Commissioner of Taxes, as an administrative authority, is enjoined to act fairly, reasonably and lawfully in the performance of his or her statutory functions and duties. In the instant case, I am of the considered view that the compulsory appointment of the CEO of West Group as the public officer and representative registered operator of the appellant was patently unfair, unreasonable and unlawful. In this respect, the court <em>a quo</em> clearly erred in upholding this appointment.</p> <p> </p> <p>Disposition</p> <p>To conclude, the first ground of appeal is struck out by consent. The second, third, fourth and fifth grounds of appeal are dismissed. Only the sixth ground of appeal succeeds and is therefore upheld.</p> <p> </p> <p>As regards costs, the court <em>a quo</em> quite properly declined to award costs against the appellant on the basis that its objection raised important legal points on the status of a bill of entry and that its grounds of appeal were not frivolous. I am inclined to agree and adopt the same approach on appeal.</p> <p> </p> <p>It is accordingly ordered that:</p> <ol> <li>The appeal partially succeeds in respect of the sixth ground of appeal.</li> <li>Each party shall bear its own costs.</li> <li>The judgment of the court <em>a quo</em> is set aside and substituted as follows:</li> </ol> <p>                        “(i)       Subject to paragraph (ii) below, the appeal be and is hereby dismissed.</p> <p>(ii)        The respondent’s appointment of the Chief Executive Officer of the West Group of Companies Limited as the public officer and representative registered operator of the appellant be and is hereby set aside.</p> <p>                        (iii)       There shall be no order as to costs.”</p> <p> </p> <p> </p> <p><strong>BHUNU JA                    :                       </strong>I agree</p> <p> </p> <p><strong>BERE JA                                    :                       </strong>(No longer in office)</p> <p> </p> <p> </p> <p><em>Gill, Godlonton &amp; Gerrans</em>, appellant’s legal practitioners</p> <p><em>ZIMRA Legal &amp; Corporate Services Division</em>, respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/3/2021-zwsc-3.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=42716">2021-zwsc-3.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/3/2021-zwsc-3.pdf" type="application/pdf; length=410382">2021-zwsc-3.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/r">R</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/revenue-and-public-finance-see-also-customs-and-excise">REVENUE AND PUBLIC FINANCE See also CUSTOMS AND EXCISE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/value-added-tax">Value added tax</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/1955/16">Customs and Excise Act [Chapter 23:02]</a></div></div></div> Wed, 02 Jun 2021 13:12:56 +0000 Sandra 10011 at https://old.zimlii.org S v Muronda (HH 679-20, CRB 406/20) [2020] ZWHHC 679 (30 October 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/679 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>THE STATE </p> <p>versus</p> <p>TAKUDZWA MURONDA</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUSAKWA &amp; MUZOFA JJ </p> <p>HARARE, 30 October  2020</p> <p> </p> <p> </p> <p><strong>Criminal Review </strong></p> <p>                        </p> <p> </p> <p>            MUZOFA J: On 12 March 2020 the complainant, a married woman retired to bed around 23:00 hours. Her husband was away. So she was alone. The accused who is related to the complainant was aware of the absence of the complainant’s husband stealthily entered the room. He was naked.  He crept into bed, and slept on top of the complainant. The complainant who was fast asleep by then, was startled and to realize that someone was on top of her. The complainant pushed the accused who resisted. During the struggle the appellant forced his hand into the complainant’s skirt and grabbed her panty. The complainant fought harder until she set herself free and rushed to the door. The accused tried to sweet talk her to calm down so that he could have sexual intercourse with her. He tried to grab her again, she fought him off and ran outside.</p> <p>            The complainant immediately reported to her brother in-law who was sleeping in the tobacco barn. </p> <p>            The accused was subsequently charged with indecent assault in contravention of s 67 (1) (a) of the (Criminal Law Codification and Reform Act) [<em>Chapter 9:23</em>] ‘the Code’. He pleaded guilty. A sentence of 12 months imprisonment was imposed of which 4 months’ imprisonment was suspended on condition the accused did not within that period commit an offence involving indecent assault. The remaining 8 months’ imprisonment was suspended on condition of community service.</p> <p>             The learned Regional Magistrate who scrutinized the matter, raised issue on the propriety of the charge. In a detailed letter citing relevant case law, which I  will revert to later in this judgement, he requested the trial magistrate to comment whether in the circumstances of this case a charge of attempted rape would not have been appropriate.</p> <p>            The trial magistrate stood his ground and referred to case law that, in his perception justified the charge. A reading of the case law does not support the learned Magistrate’s view on this issue.</p> <p>            Having reached a stalemate, the Regional Magistrate referred the matter on review and guidance.</p> <p>            The engagement between the two magistrates demonstrates the fine line between some acts of indecent assault and attempted rape. However reverting to the provisions that create the offences and decided cases should be able to settle the issue.</p> <p>            The issue for determination is whether the accused’s conduct constitutes attempted rape or indecent assault.</p> <p>            All attempts derive from s 189 of the Code which creates this type of offences and provides</p> <p>            “189     Attempt </p> <p>            …………</p> <p>            Two requisites have to be met the <em>mens rea</em>to commit the offence and the attempt to commit the offence. The accused must have reached at least the commencement of the execution of the intended crime”<a href="//DCD79BB2-17CF-462A-84F1-62A1B38F2045#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a></p> <p> </p> <p>            The difficulty lies in the determination of when “the commencement of execution” begins. This has been subject of debate as far back as 1921<a href="//DCD79BB2-17CF-462A-84F1-62A1B38F2045#_ftn2" name="_ftnref2" title="" id="_ftnref2">[2]</a>where the court said the act charged as an attempt must</p> <p>            “…reach far enough towards the accomplishment of the desired result as to amount to a   commencement of the consummation.”</p> <p> </p> <p>Consummation is what is referred in the Code as “commencement of the execution” which the court in <em>Rex</em>v <em>Sharpe<a href="//DCD79BB2-17CF-462A-84F1-62A1B38F2045#_ftn3" name="_ftnref3" title="" id="_ftnref3"><strong>[3]</strong></a></em>describes as the beginning of the final series of acts which complete the crime. The beginning of the acts of the final series depends on the circumstances of each case. It also involves a value judgment by the court. This principle has been applied in numerous judgments in our jurisdiction. A case in point that I believe the Regional Magistrate relied on is <em>S</em>v <em>Dube<a href="//DCD79BB2-17CF-462A-84F1-62A1B38F2045#_ftn4" name="_ftnref4" title="" id="_ftnref4"><strong>[4]</strong></a></em>where the Supreme Court emphasized value judgment of a practical nature based on proximity and remoteness to the commission of the offence. In other words, it is an exercise of common sense. In the <em>Dube</em>case (supra) the court dismissed an appeal against conviction on a charge of attempted rape. The appellant had made sexual overtures to the complainant, had seized her, thrown her on the ground and tried to remove her panty, but then got up and refrained from further attacking her because he discovered that she was menstruating. The court held that the appellant’s conduct had gone beyond the preparatory stage to commit the offence when some external factor caused him to change his mind.</p> <p>            In<em>S </em>v <em>Kuwizha<a href="//DCD79BB2-17CF-462A-84F1-62A1B38F2045#_ftn5" name="_ftnref5" title="" id="_ftnref5"><strong>[5]</strong></a></em>the accused was charged with indecent assault. The accused met the complainant along a road. He blocked her way and expressed his intention to have sexual intercourse with her. He grabbed her arm and dragged her to a nearby bush where he pushed her to the ground. The complainant fell on her back and her dress moved up to her thighs. The accused sat on her legs. The complainant bit the accused’s thumb and he let her go. The review judge declined to confirm the proceedings to be in accordance with real and substantial justice. The court relied on the Attorney General’s opinion that it sought, which referred to the <em>dicta</em>in <em>R</em>v <em>B <a href="//DCD79BB2-17CF-462A-84F1-62A1B38F2045#_ftn6" name="_ftnref6" title="" id="_ftnref6"><strong>[6]</strong></a></em>where the court noted,</p> <p>            “In my view, which I believe accords with the general practice, the stage of attempted rape is       reached as soon as the assault takes place and before any direct effort is made to effect penetration.     Of course, if what the man did was through an assault, equivocal, it may not be possible to affirm beyond reasonable doubt that his purpose was to effect penetration. In such a case, the proper       verdict may be one of indecent assault or common assault. But once the acts prove that the purpose         was to achieve forcible intercourse, they constitute in my view an attempt to rape'....”</p> <p> </p> <p>            The court held that attempted rape occurs when the assault takes place aimed at having sexual relations with a woman without her consent and his conduct had gone beyond mere preparation.</p> <p>            In<em>S</em>v <em>Mkandla<a href="//DCD79BB2-17CF-462A-84F1-62A1B38F2045#_ftn7" name="_ftnref7" title="" id="_ftnref7"><strong>[7]</strong></a></em>the appeal court dismissed an appeal against conviction on a charge of attempted rape where the appellant threatened the complainant with a knife, dragged her to a nearby bush, fell her to the ground, removed her skirt, got on top of her and muffled her mouth.</p> <p>            The above cases demonstrate the approach the courts take. Indeed, there is no one size fits all or mathematical formula to determine whether the acts by the accused have advanced beyond the preparatory stage to be classified as substantial steps towards the commission of the offence.</p> <p>            In this case it is not only about the attempt but whether indecent assault was the appropriate charge. It means if the accused’s conduct was anything short of attempted rape it then becomes indecent assault. Invariably some, if not all attempted rape matters involve some indecent assault.</p> <p>            Indecent assault by a male person involves physical contact on a female person that would be regarded as an indecent act by a reasonable person.<a href="//DCD79BB2-17CF-462A-84F1-62A1B38F2045#_ftn8" name="_ftnref8" title="" id="_ftnref8">[8]</a>A case in point is <em>S </em>v <em>Makaya<a href="//DCD79BB2-17CF-462A-84F1-62A1B38F2045#_ftn9" name="_ftnref9" title="" id="_ftnref9"><strong>[9]</strong></a></em>. In a review judgment, the reviewing Judge declined to confirm a conviction on a charge of attempted rape. The accused and complainant were at their workplace. The accused approached the complainant in the kitchen carrying a pack of condoms. He expressed his intention to be sexually intimate with the complainant. The complainant refused. The accused held her by the hands, but she pushed him away. He staggered backwards. The complainant ran into another room. The accused followed her. This time armed with a kitchen knife demanding to have sex with her. She texted her employer but the phone fell. The accused threatened to kill her for not submitting to his demands. For some reason he then left her.</p> <p>            The review judge set aside the conviction of attempted rape in that there was intention as expressed by his word of mouth. However, there were no acts towards the commission of the Act. The charge was set aside and substituted with threatening the complainant under s 186 (1) (b) of the Code.</p> <p>            In my view the judge in the <em>Makaya</em>case (<em>supra) </em>found that the acts by the accused were merely preparatory. The accused did not touch or access any private part of the complainant’s body. His conduct could not be classified as substantial steps towards the commission of the offence.</p> <p>            In the present case the intention was expressed. The accused took substantial steps towards the commission of the offence. He entered the room already naked. He took steps to undress the complainant, not only of the skirt but her panty. Obviously his hands had contact with her private parts. Had the complainant not overpowered him, he could have raped her.</p> <p> </p> <p>            In my opinion the appropriate charge should be attempted rape.</p> <p> </p> <p>            For the above reasons, the proceedings are not in accordance with real and substantial justice. I accordingly withhold my certificate.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>MUSAKWA J AGREES:………………………………....</p> <p>            </p> <p> </p> <p> </p> <p> </p> <p><a href="//DCD79BB2-17CF-462A-84F1-62A1B38F2045#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> Section 159 (1) (b) of the Code</p> <p>2 .Rex v Nhovo 1921 AD 485</p> <p><a href="//DCD79BB2-17CF-462A-84F1-62A1B38F2045#_ftnref3" name="_ftn3" title="" id="_ftn3">[3]</a> 1903 TS 868</p> <p>4. 1996 (1) ZLR 77 SC</p> <p> </p> <p><a href="//DCD79BB2-17CF-462A-84F1-62A1B38F2045#_ftnref5" name="_ftn5" title="" id="_ftn5">[5]</a>1992 (1) ZLR 156 (HC)</p> <p>6.R v B 1958 91) SA 199 (A)</p> <p><a href="//DCD79BB2-17CF-462A-84F1-62A1B38F2045#_ftnref7" name="_ftn7" title="" id="_ftn7">[7]</a>HB 143/04</p> <p><a href="//DCD79BB2-17CF-462A-84F1-62A1B38F2045#_ftnref8" name="_ftn8" title="" id="_ftn8">[8]</a>S 67 of the code</p> <p><a href="//DCD79BB2-17CF-462A-84F1-62A1B38F2045#_ftnref9" name="_ftn9" title="" id="_ftn9">[9]</a>HH 525/15</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/2020/679/2020-zwhhc-679.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24069">2020-zwhhc-679.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/2020/679/2020-zwhhc-679.pdf" type="application/pdf; length=115598">2020-zwhhc-679.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/indecent-assault">Indecent assault</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/charge">Charge</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/amendment-charge">amendment of charge</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/r">R</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review-0">REVIEW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/civil-and-criminal-review">Civil and criminal 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/2015/525">S v Makaya (CRB NO. 5818/15) [2015] ZWHHC 525 (09 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/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Wed, 25 Nov 2020 09:07:14 +0000 Sandra 9951 at https://old.zimlii.org S v Moyo (HH 697-20, CR CHG 999/19) [2020] ZWHHC 697 (29 October 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/697 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p>THE STATE</p> <p>versus</p> <p>TAMIRIRASHE MOYO</p> <p> </p> <p>HGH COURT OF ZIMBABWE</p> <p>CHITAPI J</p> <p>HARARE, 29 October 2020</p> <p> </p> <p> </p> <p><strong>Review Judgment</strong></p> <p> </p> <p>            CHITAPI J: The proceedings in the above matter were referred for review by the scrutinizing regional magistrate under cover of a letter dated 7 September 2019. The letter referred to four records of trials presided over by the same magistrate in which there appears what the scrutinizing regional magistrate termed a “common error.” I should point out though that although the letter aforesaid referred to four records, only one record is before me for review. The learned scrutinizing regional magistrate described the common error as follows-</p> <p>“The above four records have a common error. The second sentences of imprisonment suspended on condition accused pays restitution appear incompetent.</p> <p>In all the four records, the State nor the complainant applied for restitution in terms of s 268 Criminal Procedure &amp; Evidence Act. (sic)</p> <p>The trial magistrate views were sought. She believes the sentence are competent.”</p> <p> </p> <p>It is totally unacceptable for the regional magistrate and indeed the trial magistrate having taken divergent positions on a point of law to fail to advance their respective stand points. If the trial magistrate believed she is a right, then a researched and supported response should have been furnished to the scrutinizing regional magistrate. Equally if the scrutinizing regional magistrate did not agree, he or she was required to research and support the dissenting position. It cannot be left to the judge to figure out the points of divergence between the two magistrates. The two magistrates are therefore corrected for the future to support their adopted legal positoons on the point of divergence. I will however review the proceedings without their output.</p> <p>To answer the query, it is necessary to give a brief background of the case and to generally review the proceedings. </p> <p>The accused was charged with the offence of unlawful entry as defined in s 131 of the Criminal Law Codification &amp; Reform Act [<em>Chapter 9:23</em>]. The charge alleged that between 13 and 25 June 2019, the accused unlawfully forced open the door to the complainant’s dwelling house and stole 52 buckets of shelled maize. The offence occurred at Magwaza Village, Chief Mashayamombe, Mhondoro.</p> <p>The facts as outlined in the outline of State case were that the accused was aged 23 years old. He was employed as a domestic worker by the complainant and resided at the complainant’s homestead. The complainant was a 60-year-old female adult who stayed with her daughter. Complainant left her homestead and came to Harare on 9 June 2019. She left her daughter in charge of the home. The daughter subsequently followed to Harare on 13 June 2019 leaving accused in charge of the homestead. The accused during the period of the absence of the complainant and her daughter forced open the door of the house where the maize was stored and stole 52 buckets of shelled maize which he sold at the local business centre for $520.00. Maize worth $290.00 was recovered.</p> <p>The trial was purportedly held in terms of s 271 (2) (b) of the Criminal Procedure &amp; Evidence Act, [<em>Chapter 9:07</em>], that is, by guilty plea. It is necessary to quote the plea proceedings recording as per the learned trial magistrate’s record.</p> <p>“PLEA</p> <p>Q         Any complaints against police?</p> <p>A         No</p> <p>Q         Constitutional rights explained?</p> <p>A         I will be self-actor</p> <p>Charge</p> <p>P          Guilty              s 271 (2) (b)</p> <p>Facts read and u/d</p> <p>Q         Admit that on the day in question you committed an unlawful entry by forced opening of the complainant’s house and after “(--- not legible)” and stole 52 buckets of shelled maize?</p> <p>A         Yes</p> <p>Q         Admit it you intended to deprive the owner</p> <p>A         Yes</p> <p>Q         Was it lawful</p> <p>A         No</p> <p>Q         Any right</p> <p>A         No</p> <p> </p> <p>V         GAP</p> <p>PP        First offender</p> <p>The learned trial magistrate adopted a very casual approach to the disposal of this matter by way of guilty plea. The learned trial magistrate started by asking the accused if he had any complaints against the police. What sort of complaints if one may ask? One cannot expect a simple villager to be able to appreciate the purport of a generalized question like “do you have complaints against the police?” In my view, direct and specific questions should be asked. For example, the starting point is to deal with a constitutional issue. An arrested person should be brought before the court within 48 hours of arrest with the period being reckoned to include weekends and public holidays. The accused should be asked to give details of when he was arrested, where and how he was arrested. Questions can be put like who arrested him. How he was treated upon arrest and whilst in police custody. One cannot give an exhaustive list of the nature of questions which may be asked. I surmise that some magistrates may not even appreciate why the court enquires as to whether the accused has complaints against the police.</p> <p>In order to appreciate the rationale for ascertaining whether or not the accused has complaints against the police, it is important to refresh and keep in mind that the law provides for the presumption of innocence until proven guilty. Every accused person has a right to claim that presumption. The constitution provides for rights of an accused upon arrest until the accused is brought to court. Upon appearing in court further rights are accorded the accused. The accused’s rights before appearing in court are set out in s 50 of the constitution. The court is therefore advised where it puts questions to the accused on whether he has any complaints against the police to tailor make the questions in such a manner that they address the rights of the accused in terms of s 50 and generally to ascertain that the police did not act unlawfully in their handling of the accused. For example, if the accused alleges and proves assault, the court would make the necessary order for the accused to be medically examined and a report compiled. The court in terms of s 44 of the constitution has a duty to protect, promote and fulfil the human rights set out in the declaration of rights, [<em>Chapter 4</em>], of the constitution. The role of the court is in terms of s 165 (1) (c) of the constitution made “paramount in safeguarding human rights and freedoms and the rule of law.”</p> <p>Therefore, the court should go deeper in ascertaining whether the accused’s rights were not violated by the police. The enquiry on police treatment should not start and end with the colourless question, do you have any complaints against the police as is the norm?” The magistrate must adopt an active role in ascertaining that the accused’s rights were not trampled upon by the police.</p> <p>The next observation I make is the learned trial magistrate’s handling of the peremptory provisions of s 163A of the Criminal Procedure &amp; Evidence Act. The provisions of that section require that the accused must be informed of his right to legal or other representation (where applicable) as provided for in s 191 of the same Act [<em>Chapter 9:07</em>]. The s 191 rights derive from the constitution. They are part of fair trial rights. The right to a fair trial as given in s 69 of the constitution cannot in terms of s 86 (2) and (3) of the constitution be abrogated by any law. The right is absolute. The right to legal representation is part of safeguards which ensure that the accused receives a fair trial. In <em>casu</em>, the learned trial magistrate simply recorded as follows:</p> <p>            “Q        Constitutional rights explained</p> <p>            -           I will be a self-actor.”</p> <p> </p> <p>            The endorsement by the learned trial magistrate is meaningless. The constitution comprises many rights. It is not possible therefore to determine what constitutional rights were explained to the accused and to which of the rights the accused responded. Section 163 A requires that the accused is informed of s 191 rights. Although the rights in s 191 derive from the constitution because s 163 A is specific that the accused shall be informed of his or her rights in terms of s 191 of the Criminal Procedure and Evidence, the magistrate should specify that the rights which the accused has been informed of are those set out in s 191. Whilst it is onerous a duty to perform, the learned trial magistrate must record the content of the information or explanation given to the accused in relation to the s 191 rights. To simply record that a right has been explained leaves the question open, as to “what was the accused told or how was he informed of the right.” The Magistrates Court is a court of record. What that means is that the record should bear testimony to what transpired in the proceedings. The record cannot be a complete record where answers to what transpired during the proceedings have to be sought outside the record. It is important that the reader of the record of proceedings including the scrutinizing magistrate and/or review judge as the case may be is not left to wonder as to the content of the information given to the accused and/or its accuracy. The recorded explanations should not leave room for doubt that there was full compliance with the peremptory requirements of s 163 A. The magistracy must be guided in future that there is no provision for a curtailed procedure in complying with the requirements of s 163A. The trial magistrate must record the content of the information given to the accused. It is important to do so because the accuracy of the information given is subject to review to ensure that indeed it is the correct information as set out in s 191. In <em>casu</em>, it is not possible to hold so.</p> <p>            The other issue pertains to non-compliance with the provisions of s 271 (3) of the Criminal Procedure and Evidence. The learned trial magistrate in <em>casu</em>simply recorded “P. Guilty s 271 (2) (b)”. Amongst other peremptory requirements s 271 (2) (b) sets out what the trial magistrate should do by way of exchange between him or her and the accused. The section provides that the magistrate shall explain the charge and the essential elements of the offence to the accused. The magistrate then must enquire from the accused whether the accused understands the charge and the essential elements. Section 271 (3) however lists the matters which should be recorded in the process of the guilty plea disposal. For example, para (a) of subs (3) of s 271 requires that “the explanation of the charge and essential elements of the offence…”  shall be recorded. In other words, the full content of the explanation given must be recorded. The reason for this is simple. Again because magistrates court proceedings are susceptible to scrutiny and review, which are quality control measures imposed by statute and are peremptory, the scrutinizing magistrate or review judge should be satisfied that the correct explanation of the charge was given to the accused. If properly explained there would be no doubt arising that the accused who pleaded guilty did so well aware of what constitutes the offence. It is not in my view too onerous a duty to explain the charge and record it because the criminal offences are codified in this jurisdiction.</p> <p>            Lastly, I address the specific query by the learned regional magistrate. The learned trial magistrate sentenced the accused as follows:</p> <p>“6 months imprisonment of which 3 months is suspended for 5 years on condition within this period the offender does not commit any offence of which unlawful entry is an element for which upon conviction he will be imprisoned with the option of a fine 3 months effective.</p> <p>            In addition, 30 days wholly suspended on condition that the accused restitutes $230 to the            complainant by 31/07/19”</p> <p> </p> <p>            I should firstly record that there is no explanation why the restitution amount was assessed at $230 when the agreed facts showed this amount as $290. This lack of attention to detail should be avoided. Figures should not be plucked off from nowhere and a sentence determined on the basis of a ghost figure.</p> <p>            The learned magistrate in this case passed two sentences, the first sentence of 6 months with part suspended on condition of good behaviour and an additional term of imprisonment of 30 days wholly suspended on condition of restitution. It is incompetent to compose sentence in this fashion. Section 358 (2) (b) provides as follows:</p> <p>“(2)      When a person is convicted by any court of any offence other than an offence specified in the Eighth Schedule, it may</p> <p>            (a)        …………..</p> <p>(b)        pass sentence, but order the operation of the whole or any part of the sentence to be suspended for a period not exceeding five years on such conditions as the court may specify        in the order...”</p> <p> </p> <p>            The above provision would be the one that the leaned trial magistrate proceeded in terms of Subsection (3) of s 258 lists the conditions on which the sentence may be suspended in whole or in part. The list is not close ended. The court may include other matters considered necessary or desirable in the interests of the offender, any other person or the general public as a condition of suspension of the sentence. This discretion is provided for in para (h) of subs (3) of s 358.</p> <p>            With regard to restitution, it is provided for in s 365 of the Criminal Procedure and Evidence Act, as follows;</p> <p>            “365    Restitution of unlawfully obtained property</p> <p>           (1)       Subject to this Part, a court which has convicted a person of an offence involving the unlawful obtaining of property of any description may order the property to be restored to its owner or the person entitled to possess it.</p> <p>         (2)         For the purposes of subsection (1), where the property referred to in that subsection consists of—</p> <p>           (a)         money, the court may order that an equivalent amount be paid to the injured party from                moneys—</p> <p>              (i)      taken from the convicted person on his arrest or search in terms of any law; or</p> <p>             (ii)       held in any account kept by the convicted person with a bank, building society or similar institution; or</p> <p>            (iii)      otherwise in the possession or under the control of the convicted person;</p> <p>           (b)        fungibles other than money, the court may order that an equivalent amount or quantity be handed over to the injured party from similar fungibles in the possession or under the control of the convicted person.”</p> <p> </p> <p>            It will be apparent that the restitution envisaged in s 365 is not accompanied by a criminal sanction if not complied with. In this regard restitution becomes a circumstance of mitigation. Ideally the accused should be given the opportunity to make restitution before sentence in which case the restitution is considered mitigatory. The restitution envisaged is one to be ordered in circumstances where the accused actually has the property subject of the offence or some other property of a tangible nature or money from which the equivalent of the unlawfully obtained property can be exacted. Restitution is then ordered to be effected.</p> <p>            It is however also competent to make restitution a condition of a suspension of a sentence in terms of paragraph (b) of subs (2) of s 258. The learned trial magistrate was correct to consider restitution as a condition of suspension of part of the sentence imposed. The learned trial magistrate could not however impose an additional sentence suspended on condition of restitution. What was competent was to impose one sentence with part suspended on condition of future good behaviour and a further portion on condition of restitution. The learned magistrate should have determined what sentence he or she considered appropriate in all the circumstances of the case.  The global sentence imposed in this case was 6 months imprisonment. Part of the 6 months should have been suspended on condition of good behaviour and a further portion on condition of restitution. It was incompetent to impose an additional imprisonment term suspended on condition of restitution. The learned regional magistrate was correct to query the sentence. The learned magistrate was wrong and misdirected to insist that the sentence was proper.</p> <p>            In disposing of the review, I note that the accused has already served the sentence imposed. No useful purpose will be served by correcting the sentence. For all the irregularities which I have set out, the proceedings cannot be said to accord with real and substantial justice dictates.</p> <p>            I accordingly refuse to confirm the proceedings as being in accordance with real and substantial justice. I accordingly withhold my certificate.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>            </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/697/2020-zwhhc-697.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=23956">2020-zwhhc-697.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/2020/697/2020-zwhhc-697.pdf" type="application/pdf; length=123182">2020-zwhhc-697.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/unlawful-entry-premises-followed-theft-property-therefrom">Unlawful entry into premises followed by theft of property therefrom</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/compensation">Compensation</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/r">R</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review-0">REVIEW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-review-0">Application for review</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-matter-see-criminal-procedure-review">Criminal matter See CRIMINAL PROCEDURE (Review)</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/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Mon, 23 Nov 2020 10:43:50 +0000 Sandra 9936 at https://old.zimlii.org S v Chipande (HB238-20, HC (CRB)106/19) [2020] ZWBH 238 (06 October 2020); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2020/238 <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>THE STATE</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>MARTIN CHIPANDE</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>DUBE-BANDA J with Assessors Mr Ndlovu and Mr Bazwi</p> <p>HWANGE CIRCUIT COURT 6 OCTOBER 2020</p> <p> </p> <p><strong>Recusal <em>mero moto</em></strong></p> <p> </p> <p><em>Mrs M. Cheda </em>for the State</p> <p><em>Mr. E. Mashindi, </em>for the accused</p> <p> </p> <p><strong>DUBE-BANDAJ:</strong>      The accused’s trial was set-down for today, i.e. 6 October 2020. He is charged with the crime of murder.   Before the accused could plead, I alerted the prosecution and the accused’s defence counsel of my previous association with the now deceased person.  I disclosed that I knew the now deceased during his lifetime, and I was in some instances his legal adviser. I raised the issue of my recusal with the parties. It is trite in this jurisdiction that a judicial officer may recuse himself or herself <em>mero motu</em>, i.e. without any prior application, and this happens in practice now and again.</p> <p>But whenever it occurs, the judicial officer who raises recusal should cross the high threshold needed to satisfy the test for recusal. The application for recusal or where it is raised <em>mero motu </em>by a judicial officer, cannot be done in <em>vacuo</em>or on the judicial officer’s predilections, preconceived, unreasonable personal views or ill-informed apprehensions. To do so would be to cast the administration of justice in anarchy where judicial officers would be at liberty to make choices of which cases to preside over and which not/or applicants to go on a judge forum shopping hoping to get the one who might be favourable to their cases. Judicial officers have a duty to sit in any case in which they are not obliged to recuse themselves. See <em>Sikunda v Government of the Republic of Namibia </em>(1) 2001 NR 67 HC at 83I-J; <em>Christian v Metropolitan Life Namibia Retirement Annuity Fund</em>2008(2) NR 753 SC at 769H-770A. <em>President of the Republic of South Africa and others v South African Rugby Football Union and others </em>1999 (4) SA 147 (CC) (1999 (7) BCLR 725) at 173; <em>S v Malindi and others </em>supra at 969 G-I.</p> <p>              At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds for a recusal. The test for recusal has been stated and restated in this jurisdiction and elsewhere and that test is, ‘whether a reasonable objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case. ’The test is objective. <em>See </em><em>President of the Republic of South Africa and other v South African Rugby Football Union and other, supra at 177D-G.</em></p> <p> </p> <p>              It is now settled law that in certain circumstances the duty of recusal arises where it appears that the judicial officer has an interest in the case or where there is some other reasonable ground for believing that there is likelihood of bias on the part of the judicial officer, that is, that he will not adjudicate impartially. Again, it is settled law that not only actual bias but also the appearance of bias disqualifies a judicial officer from presiding (or continuing to preside) over judicial proceedings. The disqualification is so complete that continuing to preside over a matter after recusal should have occurred renders the further ''proceeding'' a nullity. See <em>Albert Matapo and Silas Sarezi Shonhiwa and Philip Chivhurunge and Ruperts Chimanga And Lucky Mhungu and Bigknows Wairesi versus Magistrate Bhila and The Attorney General</em>HH 84/10. </p> <p> </p> <p>The common law basis of the duty of a judicial officer in certain circumstances to recuse himself was fully examined in the cases of <em>S</em>v <em>Radebe</em>1973 (1) SA 796 (A) and <em>South African Motor Acceptance Corporation</em>(<em>Edms</em>) <em>Bpk</em>v <em>Oberholzer</em>1974 (4) SA 808 (T). Broadly speaking, the duty of recusal arises where it appears that the judicial officer has an interest in the case or where there is some other reasonable ground for believing that there is a likelihood of bias on the part of the judicial officer: that is, that he will not adjudicate impartially. The matter must be regarded from the point of view of the reasonable litigant and the test is an objective one. The fact that in reality the judicial officer was impartial or is likely to be impartial is not the test. It is the reasonable perception of the parties as to his impartiality that is important. See <em>Albert Matapo  and Silas Sarezi Shonhiwa and  Philip Chivhurunge and Ruperts Chimanga And Lucky Mhungu and Bigknows Wairesi versus Magistrate Bhila and The Attorney General (supra). </em></p> <p>After all in considering the issue of recusal, the judicial officer should always take into account the circumstances of the case and above all ascertain what impression they would create upon a reasonable citizen and in the eyes of the public,  In short any condition of things which, reasonably regarded, is liable to destroy his impartiality should disqualify him.  See<em>Head </em><em>and Fourtuin v Woolaston N.O and De Villiers, N. O </em>1926 TPD 549; <em>Sladie v The Pretoria Rent Board </em>1943 TPD246.</p> <p> </p> <p>I requested both the State Counsel and Defence Counsel to make submissions on the recusal issue I had raised, they all agreed that in the circumstances I should recuse myself from this trial.  The fact that I was known to the now deceased during his life time, and that in some instances I acted as his legal adviser, creates a reasonable basis for recusal. A reasonable, objective and an informed person armed with these facts, is likely to conclude that the judge would not bring an impartial mind to bear on the adjudication of the case. </p> <p> </p> <p>In the result, I recuse myself from the murder trial of Martin Chipande. </p> <p> </p> <p><em>National Prosecuting Authority,</em>state’s legal practitioners</p> <p><em>Mashindi &amp; Associates</em>, accused’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/238/2020-zwbh-238.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=21603">2020-zwbh-238.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/2020/238/2020-zwbh-238.pdf" type="application/pdf; length=115390">2020-zwbh-238.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/murder">Murder</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/r">R</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/recusal">RECUSAL</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/allegation-bias-recusal">Allegation of bias (RECUSAL)</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/2010/84">Matapo and Others v Bhila and Another (HC 2794/10) [2010] ZWHHC 84 (13 May 2010);</a></div></div></div> Fri, 13 Nov 2020 07:59:10 +0000 Sandra 9914 at https://old.zimlii.org Moyo v Dzira & Anor (HB 212-20, HC 1431/20) [2020] ZWBHC 212 (30 September 2020); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2020/212 <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>JOSIAS MOYO </strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>MARK DZIRA</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>NATIONAL PROSECUTING AUTHORITY</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>KABASA J</p> <p>BULAWAYO 15 SEPTEMBER &amp; 30 SEPTEMBER 2020</p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p><em>N. Sithole</em>for the applicant</p> <p>No appearance for 1strespondent</p> <p><em>B. Maphosa</em>for the 2ndrespondent</p> <p>            <strong>KABASA J:   </strong>This is an urgent chamber application wherein the applicant seeks the following interim relief:-</p> <p>“Pending the determination of applicant’s applications for review filed under cover of case numbers HCR 1141/20 and HCR 1423/20, proceedings in the case under cover of  case number CRB BYO R 83/20 be and are hereby stayed.</p> <p> </p> <p>            In the event that the interim relief is granted, the final order sought is:-</p> <p> </p> <p>“          Applicant’s case, proceeding under cover of case number CRB BYO R 83/20 having been reviewed and set aside in HC 1423/20, proceedings in CRB BYO R 83/20 be and are hereby permanently stayed.”</p> <p>            I propose to give a background to the matter for purposes of clarity.  The background is this.  The applicant appeared before the 1strespondent, a Regional Magistrate at Bulawayo Magistrates Court, charged with 12 counts of fraud.  The allegations being that he acted as a clearing agent for the complainant, a managing director of a company which sells motor spares and accessories.  The company would import goods and the applicant was supposed to pay duty for these goods to the Zimbabwe Revenue Authority (ZIMRA).  The complainant would deposit the money for payment of import duty to the applicant who was to process the relevant clearance papers before the goods found their way to the complainant. This happened over a period of time.</p> <p>            The complainant’s consignment of goods was later impounded because it had not been properly cleared.  An investigation subsequently unearthed that the bills of entry relating to goods imported on 12 different occasions were not authentic.  ZIMRA had not been paid the requisite duty from the deposits the complainant had made into the applicant’s bank account.</p> <p>            The applicant was then charged with 12 counts of fraud to which he pleaded not guilty.  A total of 9 witnesses were called to testify, among them a bank official who had initially not been on the list of witnesses the State intended to call.  The bank official was called in order to produce the bank statements the police had obtained reflecting the deposits the complainant had made into the applicant’s bank account. The state had intended to have the bank statements produced through the investigating officer but the defence objected necessitating the calling of an official from the bank.</p> <p>            The bank official was called despite the defence’s objections to the calling of this witness, which objection was premised on the fact that such witness had not been lined up as one of the state witnesses and the 1strespondent was essentially allowing the prosecution to “investigate” as the trial progressed.</p> <p>            The defence felt strongly about the “procedural irregularity” and filed a review application to this court under case number HC 1141/20.  The trial progressed up to the close of the State’s case, whereupon the defence applied for discharge in terms of s198 (3) of the Criminal Procedure and Evidence Act, Chapter 9:07.  This provision states that:</p> <p>“If at the close of the case for the prosecution the court considers that there is no evidence that the accused committed the offence charged in the indictment, summons or charge or any other offence of which he might be convicted thereon, it shall return a verdict of not guilty.”</p> <p>            The applicant’s defence counsel had moved for the discharge of the applicant on the basis that the essential elements of the offences had not been proved and the applicant’s defence to the charges had not been rebutted.  The application did not find favour with the 1strespondent who proceeded to dismiss it and put the applicant to his defence.</p> <p>            Aggrieved, the applicant filed a second review application to this court under case number HC 1423/20.  In it the applicant seeks the setting aside of the 1strespondent’s decision and an acquittal.  The contention being that by putting the applicant on his defence, 1strespondent has placed the onus on the applicant to prove his innocence.</p> <p>            The present application seeks to halt the proceedings before the 1strespondent pending the hearing and determination of these review applications.</p> <p>            Has the applicant made a case for the relief be seeks?  In an endeavor to answer this question I will consider the requirements to be met in an application of this nature.</p> <p>            As regards urgency I decided to allow the applicant to jump the queue and hear the matter on an urgent basis.  I arrived at this decision based on the argument that the applicant was being subjected to irregularities which threatened his right to a fair trial and  stood to be  extremely prejudiced thereby warranting a hearing on an urgent basis.  He acted without delay when the need to so act arose. (<em>Kuvarega</em>v <em>Registrar General &amp; Another</em>1998 (1) ZLR 188 (HC)).</p> <p>            I therefore was persuaded to grant him the indulgence of hearing the matter on an urgent basis.</p> <p>            I turn now to consider the requirements to be met for the applicant to get the relief he seeks. These requirements have been stated in a plethora of cases, <em>Setlego</em>v <em>Setlego</em>1914 AD 221; <em>Lilian Ihekwoaba</em>v <em>Chief Immigration Officer &amp; 2 Others</em>HH-229-11;<em>Gold Reef Mining (Pvt) Ltd</em>v <em>Mnjiva Consulting Engineers (Pty) Ltd and Another</em>HH-631-15 and <em>Magaritha </em>v <em>Munyuki &amp; 2 Others </em>HH-44-18.</p> <p> </p> <p>            The requirements are:-</p> <ol> <li>A <em>prima facie</em>right, even if it be open to doubt</li> <li>A well grounded apprehension of irreparable harm if the relief is not granted</li> <li>The balance of convenience favouring the granting of the interdict</li> <li>The absence of any other satisfactory remedy</li> </ol> <p>I asked counsel for the applicant to address me on these requirements notwithstanding the State’s attitude to the application.  State counsel had initially intimated that the application was opposed and sought a number of postponements in order to read the record of proceedings and file opposing papers but on the date of hearing had a <em>volte face</em>and submitted that the application was no longer opposed.</p> <ol> <li><strong>A <em>prima facie</em>right</strong></li> </ol> <p>Counsel for the applicant submitted that the applicant’s trial rights are under siege and there is need to protect his rights to a fair trial.</p> <p>            S69 of the Constitution guarantees the right to a fair trial.  To the extent that the applicant expresses the fear that the conduct of the proceedings pose a threat to this right and given that all he has to establish is a <em>prima facie</em>right, although open to doubt, I would hold that such <em>prima facie</em>right has been established.</p> <p>            I must state that these requirements are not to be considered in isolation but as a whole, in other words conjunctively as opposed to disjunctively (<em>Magaritha</em>v <em>Munyuki supra</em>). I move on to the second requirement.</p> <ol> <li><strong>A well grounded apprehension of irreparable harm</strong></li> <li> </li> </ol> <p>“The power of the High Court to review the proceedings in the Magistrates Court is exercisable even where the proceedings in question have not yet terminated.  However, it is only in exceptional circumstances that the court will review a decision in an interlocutory decision before the termination of the proceedings.  It will do so only if the irregularity is gross and if the wrong decision will seriously prejudice the rights of the litigant or the irregularity is such that justice might not by other means be attained.”</p> <p>            There must be very good cause shown before this court steps in to interfere with proceedings before the Magistrates’ Courts.  As MATHONSI J (as he then was) eloquently put it in <em>Elizabeth Shava</em>v <em>Primrose Magomore N.O. and Another</em>HB-100-17.</p> <p>“The net effect of such an approach is really to render in-effectual the jurisdiction of the Magistrates’ Court to try offenders and to sit in judgment over such matters.”</p> <p>The applicant <em>in casu</em>argues that to allow the trial to continue will be tantamount to sanctioning illegalities.  The applicant could appeal but such would not provide a complete cure of the harm as he would have sacrificed resources with his liberty continuing to hang in the balance when such a burden should be terminated.  Does this make for exceptional circumstances warranting a departure from the general rule that the superior courts should be very slow in interfering with unterminated proceedings?</p> <p>            The most that will happen <em>in casu</em>is that the applicant maybe convicted.  His fate does not however end with the decision of the 1strespondent as the applicant has a right to seek either a review or note an appeal.</p> <p>            The decision to allow the calling of the bank official was made after the 1strespondent reasoned that:</p> <p>“The defence was served with the bank statement.  They already know its contents.  The state argued that they want to call a bank official at ZB Bank solely for the purposes of tendering the bank statement.  In the court’s view the accused will not be prejudiced if the witness is called.  Whether the state decide (<em>sic)</em>to call the bank manager or his/her deputy or a bank teller, in the court’s opinion the deference (<em>sic</em>) is the same there is no need for a statement from the witness as in the court’s view this witness is specifically to talk about the document only.”</p> <p>            Such reasoning can hardly be construed to reflect bias on the part of the 1strespondent. The argument that the 1strespondent was bent on aiding the state against the accused/applicant in order to convict the applicant is not borne out by this reasoning.</p> <p>Equally, it can therefore not be said the applicant has a well grounded apprehension of irreparable harm if an interdict is not granted to halt the proceedings before the 1strespondent.  As regards the refusal to discharge the applicant at the close of the state case, the 1strespondent had this to say.</p> <p>“The accused’s version is that after receiving the money from the complainant he would hand it over to Alpha Mashingaidze for the purposes of declaring the goods.  He would then receive bills of entries from Alpha Mashingaidze and transfer them to the accused person (complainant?).  He argued that he never did anything wrong with the papers he received.</p> <p>In the court’s view the accused has a case to answer.  He should be placed to his defence to explain in full how the money received from the complainant was used. While he handed over the money to Alpha Mashingaidze he still remained accountable for the use of that money.  He was supposed to ensure that duty is paid after due process was done.”</p> <p>Can it be said this reasoning amounts to a gross irregularity that vitiates the proceedings and therefore lead to a miscarriage of justice that cannot be redressed by any other means?  I think not.</p> <p>That said, it cannot be said the review applications will undoubtedly succeed thereby making it imperative to halt the trial before its conclusion.</p> <p>The “irreparable harm” of possible loss of  liberty should a conviction ensue and the sacrificing of resources in paying for the services of a legal practitioner does not, in my view, meet the mark of exceptional circumstances justifying the halting of the trial pending the hearing of the review applications.</p> <p>“The general rule is that a superior court should intervene in uncompleted proceedings of the lower court only in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice which cannot be redressed by any other means or where the interlocutory decision is clearly wrong as to seriously prejudice the rights of the litigant” (per MALABA JA in <em>Attorney-General</em>v Makamba2005 (2) ZLR 54 at 64C-E).</p> <p>            With this general rule in mind I hold the view that there is no well grounded apprehension of irreparable harm if the relief is not granted.</p> <ol> <li><strong>The balance of convenience favouring the granting of the interdict</strong></li> </ol> <p>The State case has closed and the defence case is set to open at the resumption of the trial set for 1stOctober 2020. This is a trial that is almost complete and the judicial officer should be allowed to see the trial to its logical end.</p> <p>“It is trite that judges are always hesitant and unwilling to interfere prematurely with proceedings in the inferior courts and tribunals.  In the ordinary run of things inferior courts and tribunals should be left to complete their proceedings with the superior courts only coming in when everything is said and done at that level. (per BHUNUJ (as he then was) in <em>Munyaradzi Chikusvu</em>v <em>Magistrate T. Mahwe</em>HH-100-15)</p> <p>            The balance of convenience favours allowing the 1strespondent to proceed with the trial to its logical conclusion.  Care must be taken not to unnecessarily shackle magistrates by interfering with the exercise of their judicial powers in a manner that may result in an unfortunate erosion of their confidence to the detriment of the justice delivery system.  They should be allowed to render judgments rightly or wrongly and the hierarchical corrective system provided by the court structure should be trusted to come in and effect whatever correction that is required.</p> <p>            I therefore hold that the balance of convenience does not favour the granting of the interdict sought by the applicant.</p> <p> </p> <p> </p> <ol> <li><strong>The absence of any other satisfactory remedy</strong></li> </ol> <p>I have already alluded to the fact that at the conclusion of the trial the applicant is not rendered remedy-less.  Whatever irregularities that are found to have afflicted the proceedings, such can be addressed by way of appeal or review.</p> <p>If the 1strespondent is shown to have been wrong in allowing the calling of the bank official for purposes of producing the bank statements and also wrong in coming to the decision not to discharge the applicant at the close of the state case, the superior courts will correct that.</p> <p>It cannot be said whatever irregularities that occurred, if any, are such that they cannot be addressed on appeal or review at the conclusion of the trial. Consequently it cannot be said there is no other satisfactory remedy except the granting of the interdict.</p> <p>I am equally not persuaded to grant the interdict on the basis that if I do not, the pending review applications will be rendered nugatory. Given the general rule as regards interference with unterminated proceedings by superior courts, it cannot be said the review applications are guaranteed to succeed.</p> <p>With that said, the answer to the question I earlier on posed as to whether the applicant has made a case for the relief sought is NO.</p> <p>I do not intend to make an order for costs.  I do not think this is a case that warrants such an order and the 2ndrespondent did not ask for costs either.</p> <p>In the result, the application is accordingly dismissed.</p> <p> </p> <p><em>Ncube Attorneys</em>, applicant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, 2nd respondent’s legal practitioners</p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/212/2020-zwbhc-212.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26623">2020-zwbhc-212.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/2020/212/2020-zwbhc-212.pdf" type="application/pdf; length=138825">2020-zwbhc-212.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/fraud-0">Fraud</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/discharge-close-state-case">Discharge at close of State case</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review-criminal-procedure">Review (CRIMINAL PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/r">R</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/revenue-and-public-finance-see-also-customs-and-excise">REVENUE AND PUBLIC FINANCE See also CUSTOMS AND EXCISE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/taxes">Taxes</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review-0">REVIEW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-review-0">Application for review</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/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Tue, 10 Nov 2020 13:27:35 +0000 Sandra 9898 at https://old.zimlii.org S v Makotore; S v Tinarwo; S v Madanyika (HMA 54-20, CRB BKT 314-20; BKT 383-19; BKT 215-20) [2020] ZWMSVHC 54 (06 October 2020); https://old.zimlii.org/zw/judgment/masvingo-high-court/2020/54 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><ol> <li>THE STATE</li> </ol> <p> </p> <p>versus</p> <p> </p> <p>TONDERAI MAKOTORE</p> <p> </p> <ol> <li>THE STATE</li> </ol> <p> </p> <p>versus</p> <p> </p> <p>JOSHUA TINARWO</p> <p> </p> <ol> <li>THE STATE</li> </ol> <p> </p> <p>versus</p> <p> </p> <p>MOSES MADANYIKA</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAWADZE J</p> <p>MASVINGO 6 OCTOBER, 2020</p> <p> </p> <p>                                                                </p> <p> </p> <p><strong>Criminal Review</strong></p> <p> </p> <p> </p> <p>MAWADZE J:           All these three matters were submitted to me by the learned Regional magistrate ostensibly for review purposes.</p> <p>All these three matters were dealt with by the Resident Magistrate at Bikita. Due to the sentences imposed by the trial Magistrate of 3 months imprisonment wholly suspended on the usual conditions for 5 years in all these matters, the cases would not ordinarily be subject to scrutiny or review.</p> <p>As per the learned Regional magistrate’s minute dated 24 September 2020 all these matters were ″discovered″ during what is described as routine CRB checks. After such ″discovery″ the view was that the trial magistrate was imposing manifestly lenient sentences which are not in accordance with real and substantial justice in a bid to avoid to submit the records for automatic scrutiny or review. This practice is sometimes referred as ″hitting under the belt”. The learned Regional magistrate’s in the said referral minute to this court said;</p> <p>″<em>In my humble view the trial Magistrate imposed the bare minimum sentences in order to avoid sending the records for scrutiny for reasons best known to himself. Notwithstanding the mitigatory factors and reasons for sentence, the sentences imposed are a far from what substantial justice entails. I humbly believe the irregularities in these matters are so gross to warrant intervention by your good office.</em></p> <p> </p> <p><em>Humbly submitted for our consideration</em>″</p> <p>After painstakingly ploughing through all the three record of proceedings, I was unable to find what really offended the learned Regional magistrate’s sense of justice.</p> <p>I now proceed to deal with each of the matters;</p> <ol> <li>STATE v TONDERAI MAKOTORE CRB BKT 314/20</li> </ol> <p>In this matter the accused whose age is variably given as either 24 years (as per the charge sheet) or 30 years (as per his mitigation) was convicted on his own plea of guilty of  contravening section 157 (i) (a) of the Criminal Law (Codification and Reform) Act [<em>Cap 9:23</em>] which relates to unlawful possession of dangerous drugs being dagga.</p> <p>The facts of this matter are that on 8 July 2020 police received information that the accused was selling dagga as his homestead. They proceeded to the accused’s homestead and carried out a search in the presence of the accused wife. They found 700g of dagga in a sack in one of the accused huts.</p> <p>The trial magistrate proceeded in terms of section 271(2) (b) of the Criminal Procedure and Evidence Act <em>[Cap 9:07]</em>.</p> <p>The accused admitted possession of the 700g of dagga indicating that he wanted to sell it. The accused was duly convicted.</p> <p>In mitigation the accused stated that he had 3 minor children aged 6 years, 3 years and 1 year respectively and that he had no savings. He only owns 5 chickens.</p> <p>In his reasons for sentence the trial Magistrate pointed out that on his initial appearance the accused exhibited symptoms of being COVID 19 positive and was therefore remanded in custody before his plea of guilty was taken. Whilst in prison the relevant tests were done as the accused was isolated from other prisoners. The test results were only availed after one month and they were negative. The pre-trial incarceration period of one month was therefore considered in assessing sentence. It was also considered that the accused who is a first offender pleaded guilty to the charge. The trial Magistrate was of the view that in light of the mitigatory factors a sentence of 3 months imprisonment wholly suspended for 5 years on the usual conditions was in order.</p> <p>The learned Regional Magistrate wrongly stated that the trial Magistrate proceeded in terms of section 271(2) (b) of the Criminal Procedure and Evidence Act [<em>Cap 9:07</em>] without putting the essential elements of the offence to the accused. It is not clear why the learned Regional Magistrate makes this erroneous allegation when the record of proceedings clearly shows that the essential elements of the offence were well canvassed as is required in terms of section 271(2)(b) of the Criminal Procedure and Evidence Act  [<em>Cap 9:07</em>].</p> <p>The learned Regional Magistrate also states that the agreed facts as per the State Outline refers to dealing in dangerous drugs as defined in section 156(1)(a) of the Criminal Law (Codification and Reform) Act, [<em>Cap 9:23</em>] rather than possession of dangerous as defined in section 157(i)(a) of the Criminal Law (Codification and Reform) Act, [<em>Cap 9:23</em>]. The concerns by the learned Regional Magistrate is of the view that a penalty which is described as “heavier penalty” [whatever that means] should have been imposed. Again, I do not share this view.</p> <p>The penalty provision for contravening section 157(i) (a) of the Criminal Law (Codification and Reform) Act, [<em>Cap 9:23</em>] is a fine not exceeding level 10 ($6 000) or imprisonment not exceeding 5 years or both. The trial Magistrate gave clear reasons as to why an effective custodial sentence was inappropriate. The accused was sentenced to 3 months imprisonment wholly suspended for 5 years on the usual conditions of good behaviour and the 700 g of dagga was forfeited to the State. The accused was convicted of the proper charge as per agreed facts.</p> <p>I find no basis at all to interfere with these proceedings. Accordingly, the proceedings are confirmed as in accordance with real and substantial justice.</p> <ol> <li>STATE v JOSHUA TINARWO: CRB BKT 383/19</li> </ol> <p>In this matter the accused was convicted of contravening section 131(1) as read with section 131(2) (e) of the Criminal Law (Codification and Reform) Act, [<em>Cap 9:23</em>] which relates to unlawfully entry into premises in aggravating circumstances. At the commencement of these proceedings the 43 years old accused tendered limited plea of theft of 1 x 10kg of maize grain whose value was never ascertained. The State insisted that the accused had stolen 4 x 14 size tyres, 1 x 15 size tyre and 2 x 50kg of maize grain all valued at $330 and that only 1 x 50kg of maize grain valued at $60 was recovered. However after the complainant’s evidence the State subsequently ate the proverbial humble pie and accepted the limited plea offered by the accused.</p> <p>The essential elements of the offence were put to the accused who was duly convicted of opening a closed door and stealing 1 x 10kg of maize grain which was apparently recovered.</p> <p>In mitigation the 43 year old accused stated that he had 5 minor children and owns 2 beasts and 10 chickens as assets.</p> <p>In the reasons for sentence the trial Magistrate considered the accused’s plea of guilty and the fact that the accused is a first offender who is saddled with family responsibilities. The trial Magistrate reasoned that an effective custodial sentence was uncalled for and proceeded to sentence the accused to 3 months imprisonment wholly suspended for 5 years on the usual conditions of good behaviour.</p> <p>The learned Regional Magistrate’s view is that “a heavier penalty” [whatever that means or implies] should have been imposed. No cogent reasons are given for attacking the sentence imposed by the trial Magistrate.</p> <p>I find no misdirection all in how the trial Magistrate exercised his discretion in assessing the appropriate sentence. This court has said times without number that imprisonment is a rigorous form of imprisonment which should only be imposed as a last resort for serious offenses committed especially by first offenders.</p> <p>I am inclined to confirm these proceedings as in accordance with real and substantial justice.</p> <ol> <li>STATE v MOSES MADANYIKA: CRB BKT 215/20</li> </ol> <p>In this matter the 22 year old accused was arraigned before the Bikita Magistrate facing two counts.</p> <p>In count 1, the accused contravened section 3(a) (ii) of the Public Health [COVID 19] Prevention Containment and Treatment (National Lockdown). Amendment Order No. 5 of 2020 by failing to wear a face mask whilst at Nyika Growth point which is a public place.</p> <p>In count 2, the accused contravened section 185(1)(a) of the Criminal Law (Codification and Reform) Act, [<em>Cap 9:23</em>] when after his arrest in count 1 at Nyika Growth Point he escaped from lawful custody before being lodged in any prison.</p> <p>The agreed facts are that on 21 May, 2020 at about 1300 hrs, 22 year old accused was at Nyika Growth Point. He was not wearing a mask and two police officers on patrol arrested him as per count 1. The accused was then taken to Nyika Police base for further management of the case.</p> <p>In count 2, whilst at Nyika Police base in the custody of the police the accused fled from the police and was only arrested some ½ km from the police base.</p> <p>When the accused appeared before the trial Magistrate and after pleading guilty to both counts, he stated that he had paid an admission of guilty fine in respect of count 1. The trial Magistrate sensibly adjourned the matter to allow the State to verify this assertion by the accused. The trial Prosecutor, when the matter resumed confirmed that indeed the accused had paid an admission of guilty fine in respect of count 1.</p> <p>The anomaly in this matter which however was not raised by the learned Regional Magistrate is that the trial Magistrate proceeded to put the essential elements of the offence in count 1 to the accused despite the fact the he had paid an admission of guilty fine in count 1. In essence the accused had already been convicted in count 1 and sentenced. It would amount to double jeopardy to proceed to again convict the accused of the same offence in count 1.</p> <p>In respect of count 1, I am obliged to take corrective measures by quashing the proceedings in respect of count 1 and setting aside the accused’s subsequent conviction in respect of count 1 by the trial Magistrate in these proceedings. Since no sentence was passed there is no sentence to set aside.</p> <p>The query raised by the learned Regional Magistrate is that the sentence imposed in count 2 of 3 months wholly suspended for 5 years on the usual conditions of good behaviour is too lenient.</p> <p>The penalty provision of contravening section 185(i) (a) of the Criminal Code [<em>Cap 9:23</em>] is a fine not exceeding level 10 ($6 000) or imprisonment not exceeding 5 years.</p> <p>It is trite that where statute provides for a fine sentencing court is enjoined to consider the option of a fine and only a custodial sentence in circumstances where a fine would be deemed inappropriate.</p> <p><em>In casu</em> the youthful 22 year old accused is a first offender. He is still single and makes a living by selling airtime. He naively escaped from the police simply because he failed to wear a face mask. For that failure to wear a face mask he rightly paid an admission of guilty fine.</p> <p>The trial Magistrate in my view properly reasoned that it was not reasonable and justifiable to incarcerate the accused in count 2 in view of the prevailing COVID 19 pandemic moreso as the accused had already paid the fine in count 1. A conditionally wholly suspended prison term of 3 months was therefore deemed appropriate.</p> <p>I find no misdirection by the trial Magistrate in respect of count 2. The proceedings in count 2 are therefore confirmed as in accordance with real and substantial justice.</p> <p>For the avoidance of doubt I make these following orders in respect of all the 3 matters;</p> <ol> <li>In State v Tonderai Makotore CRB BKT 341/20 the proceedings are confirmed as in accordance with real and substantial justice.</li> <li>In State v Joshua Tinarwo CRB BKT 383/19 the proceedings are confirmed as in accordance with real and substantial justice.</li> <li>In State v Moses Madenyika CRB BKT 215/20</li> </ol> <ol> <li>The proceedings in respect of count 1 are quashed and the accused’s subsequent conviction by the trial Magistrate in those proceedings be and is hereby set aside.</li> <li>In respect of count 2 the proceedings are confirmed as in accordance with real and substantial justice</li> </ol> <p> </p> <p>Zisengwe J. agrees …………………………………………………………</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/masvingo-high-court/2020/54/2020-zwmsvhc-54.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=25083">2020-zwmsvhc-54.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/masvingo-high-court/2020/54/2020-zwmsvhc-54.pdf" type="application/pdf; length=134736">2020-zwmsvhc-54.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review-criminal-procedure">Review (CRIMINAL PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/r">R</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review-0">REVIEW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/proceedings-brought-review">Proceedings brought on review</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Wed, 21 Oct 2020 12:48:40 +0000 Sandra 9886 at https://old.zimlii.org Kimberworth Investments (Pvt) Ltd t/a Sabi Gold Mine v Nhuzvi & 4 ors (HMA 56-20, HC 331-335/19) [2020] ZWMSVHC 56 (01 October 2020); https://old.zimlii.org/zw/judgment/masvingo-high-court/2020/56 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p>KIMBERWORTH INVESTMENTS (PVT) LTD t/a SABI GOLD MINE</p> <p> </p> <p>versus</p> <p> </p> <p>FRANCIS NHUZVI</p> <p> </p> <p>and</p> <p> </p> <p>LILIAN GANJIRI</p> <p> </p> <p>and</p> <p>                    </p> <p>ELIZABETH SIBANDA</p> <p> </p> <p>and</p> <p> </p> <p>MUDYANAGO ZHOU</p> <p> </p> <p>and</p> <p> </p> <p>TICHAONA MUDZINGWA</p> <p> </p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>ZISENGWE J</p> <p>MASVINGO 1st OCTOBER, 2020</p> <p> </p> <p>                                                                </p> <p> </p> <p><strong>Opposed Application for Condonation</strong></p> <p> </p> <p> </p> <p><em>Ms Mudisi</em>, for the applicant</p> <p>All respondents in person</p> <p> </p> <p> </p> <p>ZISENGWE J:            On the 1st of October, 2020 I delivered an <em>ex-tempore</em> judgment wherein I granted an application for condonation for the late filing of a review application. The respondents have since requested for the full reasons thereof, and these are they.</p> <p><strong>The nature of the application </strong></p> <p>Although the applicant instituted separate applications against each of the five respondents, (<em>which were accordingly heard as five separate matters</em>) they will be dealt with simultaneously because they all relate to the same set of facts and to the same dispute.</p> <p>The applicant sought condonation for the late filing of an application for the review of the decisions of the Magistrates Court sitting at Zvishavane.</p> <p>In those proceedings the applicant had sought an order for leave to execute a judgment of the eviction of the respondents from certain residential premises pending the determination of the latter’s appeal against that judgment. That application (<em>for leave to execute</em>) was dismissed. It is against that decision that the applicants intend to file an application for review.</p> <p><strong>The background to the application</strong></p> <p>This matter has its roots in what is essentially a labour dispute between the parties. The respondents each occupies certain residential premises on account of their employment with the applicant company. There is no consensus, however, as to whether or not that employment relationship still subsists. Whereas the applicants averred that this relationship has since been terminated, the respondents argued contrariwise; they insisted that they are still in the employ of the applicant.</p> <p>Be that as it may, the applicant instituted in the Magistrates Court a suit for the eviction of the respondents from the said premises. That application was granted on 16 April, 2019. Aggrieved by that decision, the respondents appealed against the same to the High Court. It was then that the applicant filed an application for leave to execute pending the determination of that appeal. As indicated earlier that application was dismissed for the reasons that I will shortly advert to.</p> <p>In the current application, it was stressed on behalf of the applicant that it (i.e. applicant) has always been keen to pursue a review of the Magistrate’s decision denying it leave. It however failed to do so within the prescribed period owing to sentiments expressed by the Magistrate in his judgment dismissing the application for leave to execute pending appeal. More specifically, it was averred on behalf of the applicant that reliance was placed on that part of the judgment to the effect that it is not uncommon for appeals to be processed and determined within a period of thirty days and that on the basis of the Magistrate’s personal knowledge of a similar appeal having been disposed of within a month, he was confident that the appeals in question would similarly be expeditiously disposed of.</p> <p>Implicit in this particular averment by the applicant was the contention that it deemed it unnecessary to pursue an application for the review in question when the impending appeal would in any event have disposed of the dispute in no time.</p> <p>It was contended therefore, in the context of this current application that all the pre-requisites for the granting of an application for condonation were satisfied. All five respondents were self-actors in this application. What is interesting, however, is that their notices of opposition were identical in every respect (<em>save of course, for their names, addresses and other personal details</em>) including the wording, structure and content. Yet each claimed to have independently and personally authored their respective papers.</p> <p>Further, it did not escape my attention that although they each claimed to have authored those court documents, none of them could properly articulate the contents thereof during oral submissions in court. Mr Imbayago Zhou, for instance was essentially dumbstruck when requested by the court to explain and expand on the contents of his affidavit. Other than muttering a few incomprehensible words, he remained literally mum when asked to respond to the application and to explain the contents of his opposing affidavit. Similarly, Lilian Ganjiri and Elizabeth Sibanda apart from brazenly claiming authorship of the said court papers, could hardly mouth anything intelligible. Although Francis Nhunzvi and Tichaona Mudzingwa fared slightly better, they too struggled to sustain any meaningful argument in support of their respective positions. They would frequently wander off on matters tangential to the issues at hand.</p> <p>It was apparent therefore that someone else assisted them to draft the opposing papers although they refused, for reasons best known to themselves, to acknowledge as much.</p> <p>In the determination of the issues at hand, reliance therefore had to be placed to a large extent on the contents of their opposing affidavits.</p> <p>In these affidavits the respondents opposed the application on the basis that no cogent or reasonable explanation had been proferred by the applicant for the late filing of the application for review.</p> <p>They each raised two preliminary objections to the granting of the application. In the first objection they impugned the authority of the deponent to the applicant’s founding affidavit to so institute the application on behalf of the applicant. This stems, so the argument went, from the fact that as far as they were aware the authority granted to the deponent (<em>Albert Chitambo</em>) was defective. The alleged defect in turn arose from the fact that it was granted by one Oliver Mtasa, whose Appointment Certificate as Provisional Judicial Manager of the applicant had not been availed.</p> <p>Ultimately, however, Francis Nhunzvi, whose matter was argued first, consented to the production by counsel for the applicant, of the Certificate of Appointment of Oliver Mtasa as Provisional Judicial Manager of the applicant. That effectively put paid to the first preliminary point. The Certificate of Appointment is marked as Exhibit 1 of record.</p> <p>The second preliminary objection was to the effect that the application for condonation was defective for want of citing of the Judicial Officer who presided over the application for leave to execute. Reliance was ostensibly placed on Rule 256 of the High Court Rules, 1971. Whereas it is a requirement to cite the Judicial Officer who presided over the proceedings which form the subject matter of review in the review proceedings themselves, there is no similar requirement to do so in application for condonation that may precede the application for review.</p> <p><strong>The issues</strong></p> <p>The sole issue that fell for determination was whether or not the applicant had managed from the facts to satisfy all the prerequisites for the granting of an application for condonation for the late filing of an application for review.</p> <p><strong>The applicable law</strong></p> <p>The requirements of the granting of an application for condonation have been formulated in various ways. One case which I find instructive in this regard is that of <em>Forestry Commission</em> v <em>Moyo </em>1997 (1) ZLR 254 (SC) where the then Chief Justice, GUBBAY CJ listed the following as the prerequisites;</p> <ol> <li>That the delay involved was not inordinate, having regard to the circumstances of the case</li> <li>That there was a reasonable explanation for the delay</li> <li>That the prospects of success should the application be granted are good, and</li> <li>And the possible prejudice to the other party should the application be granted</li> </ol> <p>Often a fifth requirement is considered namely</p> <ol> <li>The need to bring finality in litigation</li> </ol> <p>Each of these will be considered in turn as they apply to the facts</p> <p><strong>Length of delay</strong></p> <p>The period within which an application for the review of judicial or quasi-judicial proceedings is provided for in Rule 259 of the High Court Rules, 1971 which reads;</p> <p><strong><em>“259.   Time within which proceedings to be instituted</em></strong></p> <p> </p> <p><em>Any proceedings by way of review shall be instituted within eight weeks of the termination of the suit, action or proceeding in which the irregularity or illegality complained of is alleged to have occurred:</em></p> <p> </p> <p><em>Provided that the court may for good cause shown extend the time</em>”.</p> <p>            In the present matter, the judgment which appears ex facie the record indicates that the judgment was passed on 5 July, 2019.</p> <p>            Under this heading it was averred on behalf of the applicant as follows;</p> <ol> <li><em>extent of the delay</em></li> </ol> <p><em>“the judgment in question was granted on the 5th of July, 2019 and the 30 day period expired on 16th August, 2019 and as such the matter had delayed with 20 days and such delay cannot be said to be inordinate. Hence the extent of the delay is reasonable under the circumstances</em>.”</p> <p> </p> <p>            It is apparent that there was misapprehension on the part of the applicant regarding the period within which one is required to file an application for review. As stated earlier a party desirous of instituting an application for review has eight weeks within which to do so and not thirty days.</p> <p>            Had the applicant made a proper construction of the Rules it may very well have instituted its application without the need to bring the current application. It would appear the applicant mistook such period with the one prescribed for the lodging of appeal.</p> <p>            Even if one were to consider the twenty days as erroneously referred to by the applicant, one would still be inclined to accept the applicant’s position that the delay cannot be considered as inordinate.</p> <p>            <strong>The reasonableness or otherwise of the explanation for the delay</strong></p> <p>            The explanation proffered by the applicant is fairly straight forward. It was averred in this regard that the Magistrate had given the distinct impression in its reasons dismissing the application for execution pending appeal that appeals are usually disposed of expeditiously - within a month to be precise.</p> <p>            It is perhaps necessary to revisit the exact wording of the Magistrate’s ruling. In the penultimate paragraph of its judgment the court made the following remarks:-</p> <p>“<em>What this basically means is that it will not take a long time before the appeal is dealt with by the High Court. The court makes that determination in view of the fact that a similar case involving the applicant which was heard on the same date with this case was dealt with by the High Court within a period of about a month. It is therefore prudent that this court allows the High Court to decisively deal with the appeal.</em></p> <p> </p> <p><em>For that sole reason that the appeal is going to be decided within a short period of time the court would therefore dismiss the application for execution pending appeal</em>.”</p> <p>           </p> <p>The sentiments of the court are expressed in rather emphatic and definitive terms. One can hardly question the applicant’s position that it was influenced by the above pronouncement and waited to see if indeed the court <em>a quo’s</em> “prognosis” would eventuate. Litigants seldom lightly dismiss court pronouncements as they tend to accept same at face value.</p> <p>I interpose here to address one of the averments by the respondents challenging the authenticity of the reasons for judgment appearing on pages 39 – 40 of this current application. Apart from merely highlighting the difficulty they purportedly encountered in securing a copy of that judgment, the respondents failed to advance any meaningful reasons why I should dismiss that judgement as a fraud.</p> <p><strong>Prospects of success on review </strong></p> <p>A perusal of the reasons given by the Magistrate for dismissing the application for leave to execute pending appeal appears to reveal an inappropriate importation of factors extraneous to consideration of such an application.</p> <p>As indicated earlier the dismissal was solely predicated on the Magistrate’s projection that the appeal filed by the respondents would be disposed of by the High Court within a month.</p> <p>In <em>ZDECO (Pvt) Ltd v Commercial Careers College (1980) (Pvt) Ltd</em> 1991 ZLR 61 (HC) SMITH J, referred among other authorities to the case of <em>South Cape Corporation (Pty) Ltd</em> 1977 (3) SA S34(A) where CORBETT JA set out the factors relevant to the exercise of the court’s discretion in an application for leave to execute pending appeal.</p> <p>It was stressed that the court enjoys a wide general discretion to grant or refuse leave and, if leave were granted, to determine the condition upon which the right to execute should be granted, the following was stated;</p> <p>“<em>In exercising this discretion the court should in my view determine what is just and equitable in all the circumstances, and, in doing so, would normally have regard, inter alia, to the following factors</em>:</p> <p> </p> <ol> <li><em>The potentiality of irreparable harm or prejudice sustained by the appellant on appeal (respondent in the application) if leave to execute were granted;</em></li> </ol> <p> </p> <ol> <li><em>The potentiality of irreparable harm sustained by the respondent on appeal (applicant in the application) if leave to execute were to be refused;</em></li> </ol> <p> </p> <ol> <li><em>The prospects of success on appeal, including more particularly the question as to whether the appeal is frivolous and vexatious or has been noted not with the bona fide intention of seeking to reverse the judgment but for some indirect purpose e.g. to gain time or harass the other party; and</em></li> </ol> <p> </p> <ol> <li><em>Where there is potentiality of irreparable harm or prejudice to both appellant and respondent, the balance of hardships or convenience as the case may be.”</em></li> </ol> <p> </p> <p>See also <em>Dabengwa &amp; Anor</em> v <em>Minister of Home Affairs &amp; Ors</em> 1982 (1) ZLR 223, <em>Arches (Pvt) Ltd</em> v <em>Guthrie Holdings (Pvt) Ltd</em> 1989 (1) ZLR 152 (HC).</p> <p>What is surprising though is that the court <em>a quo</em> after having correctly referred to the applicable factors, went off at a tangent and based its order on a consideration alien to the application. As fate would have it, the projection that the appeal against the eviction order would be determined within a month has infact proved to be unjustifiably optimistic as to date that appeal is yet to be heard let alone disposed of.</p> <p>The failure by the Magistrate to apply the relevant factors is in my view fertile ground for the setting aside of that ruling on review or the basis of gross unreasonableness or some other related ground for review.</p> <p><strong>Possible prejudice</strong></p> <p>I do not see any prejudice to the respondents should the applicant be granted leave to file its application for review. The granting of this application for condonation does not in the least translate to an order for their eviction (<em>which is what they are fearful of</em>). The order for their eviction remains suspended until set aside on appeal or until the order for the dismissal of the application for execution pending appeal is set aside on review.</p> <p>In view of the foregoing therefore I am of the view that there is merit in the application for condonation for late filing of review.</p> <p><strong>Costs1  </strong></p> <p> The general rule is that the substantially successful party is entitled to his costs. The court can withheld costs if there is justification for doing so.</p> <p>It emerged during these proceedings that the applicant disregarded counsel’s advice to timeously file its application for review. The officials of the applicant insisted on waiting to see if what the Magistrate had stated regarding the time frame within which the appeal against eviction would take place. To some extent therefore, despite its <em>bona fides</em>, the applicants should shoulder part of the responsibility for the delay in the filing of its application for review. For this reason the court will not award costs to the applicant.</p> <p>Ultimately, therefore, the following order is hereby given;</p> <p><strong>IT IS ORDERED THAT</strong>:-</p> <ol> <li>Application for condonation for late noting of application for review be and is hereby granted.</li> <li>Leave be and is hereby granted for the applicant to file an application for review out of time.</li> <li>The applicant shall file the application for review within fourteen (14) days of the granting of this order</li> <li>There shall be no order as to costs.</li> </ol> <p> </p> <p> </p> <p><em>Mutendi, Mudisi &amp; Shumba</em>, applicant’s legal practitioners</p> <p> </p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/56/2020-zwmsvhc-56.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=27068">2020-zwmsvhc-56.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/masvingo-high-court/2020/56/2020-zwmsvhc-56.pdf" type="application/pdf; length=231247">2020-zwmsvhc-56.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/r">R</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review-0">REVIEW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-review-0">Application for review</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/condonation-review">Condonation (Review)</a></li></ul></span> Tue, 20 Oct 2020 13:21:46 +0000 Sandra 9884 at https://old.zimlii.org