Appeal https://old.zimlii.org/taxonomy/term/9424/all en Makoto v T.K. Mahwe N.O. & Another (CCZ 03/20, Constitutional Application No. CCZ 29/19) [2020] ZWCC 03 (08 January 2020); https://old.zimlii.org/zw/judgment/constitutional-court-zimbabwe/2020/3 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>REPORTABLE (3)</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>LOVERAGE     MAKOTO</strong></p> <p><strong>v</strong></p> <p><strong>(1)     T.K. MAHWE N.O.</strong></p> <ol> <li> </li> </ol> <p> </p> <p><strong>CONSTITUTIONAL COURT OF ZIMBABWE</strong></p> <p><strong>HARARE, OCTOBER 19, 2019 &amp; JANUARY 08, 2020</strong></p> <p> </p> <p><em>L Uriri,</em> for the applicant</p> <p>No appearance for the first respondent</p> <p><em>E Mavuto,</em> for the second respondent</p> <p> </p> <p><strong>Before: MALABA CJ</strong>, <strong>In Chambers</strong></p> <p><strong>AN APPLICATION FOR AN ORDER OF LEAVE FOR DIRECT ACCESS </strong></p> <p><strong>TO THE CONSTITUTIONAL COURT</strong></p> <p> </p> <p> </p> <p>This is a chamber application for an order of leave for direct access to the Constitutional Court (“the Court”) in terms of s 167(5) of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 (“the Constitution”), as read with r 21(2) of the Constitutional Court Rules S.I. 61/2016 (“the Rules”).</p> <p>The applicant intends to approach the Court in terms of s 85(1) of the Constitution, alleging that a decision by the first respondent refusing his request to refer “constitutional questions” to the Court for determination as frivolous and vexatious violates his fundamental rights to equal protection of the law. Should leave for direct access be granted, the applicant intends to place before the Court the question whether s 8(6) of the Money Laundering and Proceeds of Crime Act [<em>Chapter 9:24</em>] (“the Act”) infringes his fundamental rights to equal protection of the law, personal liberty, fair trial, and to be presumed innocent until proven guilty, enshrined in ss 56(1), 49(1), 69(1) and 70(1)(a) of the Constitution respectively.</p> <p>The Court holds that the applicant failed to show that it is in the interests of justice that he be granted leave for direct access to the Court. The application is without merit and ought to be dismissed. The reasons for the decision now follow.</p> <p><strong>FACTUAL BACKGROUND</strong></p> <p>The applicant was employed by the Zimbabwe Consolidated Diamond Company (“ZCDC”) as an Acting Supervisor. In December 2018 he was arraigned before the magistrate’s court (“the court <em>a quo</em>”) on a charge of contravening s 8(1)(a), as read with s 8(6), of the Act. It was alleged that between July 2018 and December 2018 the applicant stole diamonds and sold them to unknown dealers. He deposited the proceeds of the sale into his “Ecocash account”.</p> <p>In May 2019 the applicant raised questions on the constitutionality of s 8(6) of the Act. He requested the trial magistrate to refer the questions to the Court for determination in terms of s 175(4) of the Constitution. The applicant alleged that s 8(6) of the Act did not define the term “some kind of criminal activity”. He said the section “relieved the State of the obligation to establish what the offence is, how it was committed and by whom”. It was the applicant’s contention that s 8(6) of the Act infringes on his fundamental rights and was therefore invalid. The questions the applicant requested the trial magistrate to refer to the Court for determination were these:</p> <p>“i.        Whether s 8(6) of the Act is <em>ultra vires</em> ss 56(1), 69(1), 70(1)(a) and 49(1) of the Constitution and as such unconstitutional and thus void.</p> <p>ii.         If so, and whether the accused person’s prosecution thereunder is not a breach of his constitutional rights to the protection of the law enshrined under s 56(1) and the right to liberty enshrined in s 49(1) of the Constitution.”</p> <p> </p> <p>The application was opposed by the State. It submitted that the request was frivolous and vexatious. The contention was that the facts were clear that the applicant was involved in the theft. It was argued that the request for referral of the questions to the Court was meant to delay the criminal proceedings.</p> <p>The court <em>a quo</em> held that the facts of the case did not give rise to a constitutional question. The request for referral of the constitutional questions framed by the applicant was refused on the ground that it was frivolous and vexatious. It was held that the application lacked seriousness and was only meant to delay proceedings.</p> <p>The applicant was dissatisfied with the decision of the court<em> a quo</em> and filed the application for an order of leave for direct access on 08 August 2019. He asserted that the first respondent’s ruling did not show that he applied his mind to the purpose, context and spirit of the provisions of s 175(4) of the Constitution. The applicant submitted that it was in the interests of justice that direct access be granted because the object of s 175(4) of the Constitution is to afford speedy access to the Court, especially where access to the Court is impeded in circumstances that breach provisions of the Constitution which protect fundamental human rights and freedoms. Lastly, he contended that the questions he raised were at the heart of the right to a fair trial. He submitted that proceeding with the trial and raising the questions on a possible appeal would be contrary to the right to the protection of the law.</p> <p>The application was opposed by the second respondent. It was submitted that the applicant had adopted a wrong procedure and that he ought to have appealed against the decision of the court <em>a quo</em>. It was also submitted that, having adopted the referral procedure under s 175(4) of the Constitution, the applicant could not ditch this procedure and seek to file a direct application in terms of s 85(1) of the Constitution.</p> <p><strong>THE LAW AND THE FACTS</strong></p> <p>Direct access is a remedy which is granted only in exceptional cases and where compelling reasons are given.</p> <p>The requirements of an application of this nature are set out in r 21(3) of the Rules and are as follows:</p> <p>“(3) An application in terms of subrule (2) shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out -</p> <p>                                                     </p> <p>(<em>a</em>)        the grounds on which it is contended that it is in the interests of justice that an order for direct access be granted; and</p> <p> </p> <p>(<em>b</em>)        the nature of the relief sought and the grounds upon which such relief is based; and</p> <p> </p> <p>(<em>c</em>)        whether the matter can be dealt with by the Court without the hearing of oral evidence or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.”</p> <p>           </p> <p> </p> <p>The success or failure of the application rests on the consideration of the question whether or not it is in the interests of justice that direct access be granted.</p> <p>The issue that arises is whether the refusal of the request for referral was not within the confines of s 175(4) of the Constitution, to an extent that it violated the applicant’s right to equal protection of the law. Section 175(4) of the Constitution, which provides for referrals to the Court, states that:</p> <p>“(4) If a constitutional matter arises in any proceedings before a court, the person presiding over that court may, and if so requested by any party to the proceedings must, refer the matter to the Constitutional Court unless he or she considers the request is merely frivolous or vexatious.” (the underlining is for emphasis)</p> <p> </p> <p>This provision must be read with r 24 of the Rules, which gives practical effect to s 175(4) of the Constitution. The rule is to the effect that a judicial officer, upon satisfying himself or herself that a request is not frivolous or vexatious, shall refer the constitutional matter to the Court.</p> <p>The Supreme Court, sitting as a Constitutional Court, had occasion to deal with the question whether or not the refusal to refer a matter by a magistrate violated the fundamental right to equal protection of the law in <em>Williams and Anor</em> v <em>Msipha N.O. and Ors</em> 2010 (2) ZLR 552 (S) at 566B-567A. It said:</p> <p>“The answer lies in the examination of what the magistrate was required by s 24(2) of the Constitution to do and what he actually did as the basis of the refusal.  The right to an effective judicial protection of a fundamental human right or freedom requires that the judicial officer should act in accordance with the requirements prescribed by the Constitution for the protection of the particular right or freedom.</p> <p>…                                                                                            </p> <p>The procedural and substantial requirements with which the person presiding in a lower court is required … to comply under s 24(2) of the Constitution are integral parts of the protection for the right of access to the Supreme Court given to any person who has raised, in the proceedings in that court, a question as to the contravention of a fundamental right or freedom and requested the judicial officer to refer the question to the Supreme Court. The only restriction of the obligation imposed on the judicial officer is the discretion given to him or her to refuse a request for a referral when in his or her opinion the raising of the question is ‘merely frivolous or vexatious’.</p> <p>…       </p> <p>A refusal of a request for a referral, based on an opinion formed in accordance with the procedural and substantive requirements prescribed under s 24(2) of the Constitution, constitutes a permissible denial of access to the Supreme Court.  What all this means is that under the system governing the exercise of judicial power, the legal basis of an opinion does not follow from the choice of factors by the person presiding in the lower court alone but must rest upon objective factors prescribed by the law.” (the underlining is for emphasis)</p> <p> </p> <p>Regarding the procedure under s 175(4) of the Constitution, the Court in <em>Nyagura</em> v <em>Ncube N.O. and Ors</em> CCZ 7/19, at pp 9-10 of the cyclostyled judgment, stated that there must be a moment when the presiding person must address his or her mind to the factors that answer a number of questions, including whether the request to refer the matter to the Court is frivolous or vexatious, and whether the determination by the Court is necessary for the purposes of the proceedings before him or her.</p> <p>The purpose of the exercise of the jurisdiction of a subordinate court under s 175(4) of the Constitution is to protect the process of the Court against frivolous or vexatious litigation. The standard by which the facts on which the raising of a question is based must be measured is put so high so as to enable the person presiding in the lower court to stop legal proceedings that should not have been launched at all.</p> <p>In <em>Nyathi v The State </em>CCZ 16/19, the Court also explained the importance of the procedure under s 175(4) of the Constitution at p 10 of the cyclostyled judgment:</p> <p>“The importance of guarding the Court against the abuse of its process through the adjudication of matters that ought not to have passed the frivolity or vexatiousness test cannot be overemphasised. The Court must protect its integrity and ensure that it only adjudicates that which it is constitutionally mandated to hear and determine. Consequently, where the procedures of the Court are used to achieve purposes for which they are not intended that would amount to an abuse of process. It is in this context that presiding persons ought to exercise their minds when seized with a request for a referral to the Court.”</p> <p> </p> <p>The meaning of the phrase “frivolous or vexatious” was explained in the <em>Williams</em> case <em>supra</em> at 568C-F:</p> <p>“In <em>S</em> v <em>Cooper and Ors</em> 1977 (3) SA 475 at 476D, boshoff j said that the word ‘frivolous’ in its ordinary and natural meaning connotes an action or legal proceeding characterised by lack of seriousness as in the case of one which is manifestly insufficient. The raising of the question for referral to the Supreme Court under s 24(2) of the Constitution would have to be found on the facts to have been obviously lacking in seriousness, unsustainable, manifestly groundless or utterly hopeless and without foundation in the facts on which it was purportedly based.</p> <p>In <em>Martin</em> v <em>Attorney General and Anor</em> 1993 (1) ZLR 153 (S) it was held that the ordinary and natural meaning of the words ‘frivolous or vexatious’ in the context of s 24(2) of the Constitution had to be borne in mind and applied to the facts by the person presiding in the lower court to form the requisite opinion. gubbay cj at 157 said:</p> <p>‘In the context of s 24(2) the word “frivolous” connotes, in its ordinary and natural meaning, the raising of a question marked by a lack of seriousness; one inconsistent with logic and good sense, and clearly so groundless and devoid of merit that a prudent person could not possibly expect to obtain relief from it.  The word “vexatious”, in contra–distinction, is used in the sense of the question being put forward for the purpose of causing annoyance to the opposing party in the full appreciation that it cannot succeed; it is not raised <em>bona fide</em> and a referral would be to permit the opponent to be vexed under a form of legal process that was baseless ….’”</p> <p> </p> <p>In dismissing the application, the court <em>a quo </em>stated as follows:</p> <p>“The accused cannot at this stage before the trial has produced evidence say that there is no evidence that he committed theft so he must be presumed innocent of theft of the diamonds.</p> <p>The application can only be granted where it is not frivolous or vexatious.</p> <p>…                                                    </p> <p>The defence is clearly not serious when he says that his right to the presumption of innocence will be infringed yet he elects not to testify on why he makes such allegation.</p> <p>The court therefore makes a finding that the application lacks seriousness and is meant only to delay proceedings.” (the underlining is for emphasis)</p> <p> </p> <p>            Section 8 of the Act provides as follows:</p> <p><strong>“8 Money laundering offences                                      </strong></p> <p>(1)        Any person who converts or transfers property —</p> <p>(a)        that he or she has acquired through unlawful activity or knowing, believing or suspecting that it is the proceeds of crime; and</p> <p>(b)        for the purpose of concealing or disguising the illicit origin of such property, or of assisting any person who is involved in the commission of a serious offence to evade the legal consequences of his or her acts or omission;</p> <p>commits an offence.</p> <p>…                                           </p> <p>(6)        In order to prove that property is the proceeds of crime, it is not necessary for there to be a conviction for the offence that has generated the proceeds, or for there to be a showing of a specific offence rather than some kind of criminal activity, or that a particular person committed the offence.”</p> <p> </p> <p>The particulars of the applicant’s charge were articulated as follows in the charge sheet:</p> <p>“Contravening section 8(1)(a) as read with section 8 Part 6 of the Money Laundering and Proceeds of Crime Act CHAPTER 9:24</p> <p>In that during the period extending from July 2018 to 14 December 2018 and at Zimbabwe Consolidated Diamond Company, Loverage Makoto, was employed by Zimbabwe Consolidated Diamond Company, <strong><em>he stole diamonds and sold them to unknown dealers and obtained $34 246-00 of which he deposited into his Ecocash Account number</em> </strong>… .” (the bold italics is for emphasis)</p> <p> </p> <p>Implicit from a reading of the charge sheet is that the applicant was charged under s 8(1) of the Act. Section 8(1) is the charge section. It is very specific and the crime alleged has both <em>actus reus</em> and <em>mens rea</em>.</p> <p>Section 8(1) of the Act reveals that the State cannot charge a person under it unless it is convinced that an unlawful activity was committed. The State has the duty to show the <em>actus reus</em>. The State identified the <em>actus reus</em> in the case as “theft of diamonds”.</p> <p>Section 8(6) of the Act, on the other hand, deals with the evidential burden imposed upon the State to prove the offence under s 8(1) and lessens the burden of proof on the State. It relates to proof of the crime and not the charge itself. It can only be resorted to if such necessity arises, that is, where the State will have failed to establish proof beyond a reasonable doubt under s 8(1) of the Act. The alleged vagueness does not relate to the crime but, instead, it relates to the burden of proof.</p> <p>Sight must not be lost of the fact that in this case the State did not use s 8(6) of the Act in relation to the applicant. Hence, it is imperative that, when deciding whether or not a provision is unconstitutional, regard must be had, not only to the mere question itself, but also to the context or circumstances in which the question is being raised.</p> <p> </p> <p>There being a possibility that the alleged theft of diamonds can be proved without resort to s 8(6) of the Act, the determination of the question becomes irrelevant. Whether or not the State proves the case is of no importance to the Court.</p> <p> </p> <p>The question regarding the constitutionality of s 8(6) of the Act should be predicated on facts. As aforementioned, the articulation of the charge and particulars thereof leave no room for ambiguity or uncertainness in interpretation. The State identified the proceeds (money) to have been obtained as a result of an unlawful activity, in particular theft of diamonds. The argument that s 8(6) is unconstitutional loses sight of the fact that the provision may be inapplicable, as the unlawful act has been identified with precision. The applicant’s case can be disposed of on factual findings and evidence to be led by the State under s 8(1) of the Act without the need to resort to the constitutionality of s 8(6) of the Act.</p> <p> </p> <p>The applicant would have been in a stronger position had he been arguing his case after being convicted without direct evidence to prove the unlawful activity. He would also have been in a stronger position had he been arguing his case after the State secured a conviction following resort to s 8(6) of the Act.  That not being the case, the applicant is simply trying to put the cart before the horse.</p> <p> </p> <p>Under s 85(1) of the Constitution, which provides for direct access to the Court, for the Court to determine the constitutional question a party has to show that he, she or it has an interest to protect and that the interest has been, is being, or is likely to be, violated. The applicant’s interest is not being or has not been violated, as he was properly charged under s 8(1) of the Act. The Court noted that the applicant did not challenge s 8(1). By this conduct, he accepted that he was properly charged in terms of s 8(1) of the Act and implicitly accepted its constitutionality. Consequently, it is not in the interests of justice that direct access be granted.</p> <p>There is no need to resort to s 8(6) of the Act to secure the applicant’s conviction. The questions as to the constitutionality of s 8(6) should not have been taken in the abstract. In a referral, the questions should be premised on facts. Unless the State resorts to s 8(6) of the Act, no constitutional issue can arise in the matter.</p> <p> </p> <p>More importantly, the determination of a question must be of benefit to a party. It would be absurd for the Court to pronounce on the constitutionality of s 8(6) of the Act and then state that, in the circumstances of the case, the finding is unnecessary. This approach would render the whole determination an advisory opinion or a mere academic opinion. The Court is loathe to offer opinions which at the end of the day do not assist in the resolution of disputes in the lower courts.           </p> <p> </p> <p>If a remedy is available to a party, whether it is a factual or a legal remedy, courts will not normally consider a constitutional question unless the existence of a remedy depends on it.</p> <p> </p> <p>The determination of the constitutional question before evidence has been led is not necessary for the disposal of the proceedings in the court <em>a quo</em>, where the allegation is that the applicant stole and sold diamonds and converted the proceeds therefrom. The court <em>a quo</em> was therefore correct in holding that “the accused cannot at this stage before the trial has produced evidence say that there is no evidence that he committed theft so he must be presumed innocent of theft of diamonds”.</p> <p> </p> <p>From the foregoing, the Court finds that the ruling by the first respondent was made within the confines of the law. The right to equal protection of the law was not  infringed. The applicant failed to demonstrate that his prosecution under s 8(1), read together with s 8(6), of the Act is unconstitutional. The alleged vagueness of s 8(6) of the Act does not relate to the unlawful activity or the crime, it relates to the burden of proof imposed on the State.</p> <p> </p> <p>A reading of the first respondent’s ruling shows that he was alive to the need to answer the question of whether or not the request was frivolous or vexatious. The ruling demonstrates that the first respondent applied his mind to the spirit and purpose of s 175(4) of the Constitution. This emerges from the fact that the first respondent stated that “the application can only be granted where it is not frivolous or vexatious”.</p> <p>The applicant was aggrieved by the refusal of the request for referral. The law provides for the remedy of an appeal where one is aggrieved by a determination of a court. The appeal procedure is generally available only at the conclusion of the trial, as an appellate court should be slow to intervene in ongoing proceedings.</p> <p><strong>DISPOSITION</strong></p> <p>In the result, it is ordered as follows -</p> <p>“The application is dismissed with no order as to costs.”</p> <p> </p> <p> </p> <p><strong>GOWORA JA:   I agree</strong></p> <p> </p> <p> </p> <p><strong>HLATSHWAYO JA:   I agree</strong></p> <p> </p> <p> </p> <p><em>Makombe and Associates,</em> applicant’s legal practitioners     </p> <p><em>National Prosecuting Authority,</em> second 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/constitutional-court-zimbabwe/2020/3/2020-zwcc-03.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=35990">2020-zwcc-03.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2020/3/2020-zwcc-03.pdf" type="application/pdf; length=195679">2020-zwcc-03.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags/civil-procedure">Civil Procedure</a></li><li class="vocabulary-links field-item odd"><a href="/tags/appeals-and-reviews">Appeals and reviews</a></li><li class="vocabulary-links field-item even"><a href="/tags/disguised-appeal-grounds">Disguised Appeal Grounds</a></li><li class="vocabulary-links field-item odd"><a href="/tags/grounds-appeal">Grounds of Appeal</a></li><li class="vocabulary-links field-item even"><a href="/tags/role-appellate-court">Role of Appellate Court</a></li></ul></span><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/appeal">Appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/abuse-process-1">Abuse of process</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/frivolous-and-vexatious">frivolous and vexatious</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/constitutional-court-zimbabwe/2019/7">Nyagura v Lanzani Ncube N.O. &amp; Others (CCZ 7/19 , Const. Application No. CCZ 53/18) [2019] ZWCC 07 (06 March 2019);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/4">Money Laundering and Proceeds of Crime Act [Chapter 9:24]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Mon, 27 Jan 2020 18:17:45 +0000 takudzwa 9457 at https://old.zimlii.org Afritrade International Limited v ZIMRA (SC 1/19, Chamber Application No. SC 297/18) [2019] ZWSC 1 (29 May 2019); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2019/1 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>DISTRIBUTABLE</strong><strong>   (1)</strong></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> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GUVAVA JA</strong></p> <p><strong>HARARE: MAY 29, 2018 </strong></p> <p> </p> <p> </p> <p> </p> <p><em>H. Mutasa </em>for the applicant</p> <p><em>T. Magwaliba</em>, for the respondent</p> <p> </p> <p><strong>IN CHAMBERS</strong></p> <p> </p> <p><strong>GUVAVA JA: </strong>This is a chamber application for condonation and extension of time within which to note an appeal made in terms of r 31 of the Supreme Court Rules, 1964. At the close of arguments I granted the application by consent.</p> <p>           </p> <p>In the normal course of events where judgment is by consent it is not necessary to provide written reasons. However in this particular case an issue pertaining to the interpretation of a court order and the widespread confusion that has arisen with regards to the procedure which should obtain after the issuance of such an order have made it imperative to provide some guidance to legal practitioners and litigants. </p> <p> </p> <p><strong>BACKGROUND FACTS                  </strong></p> <p>The brief background of this application may be summarised as follows:</p> <p>The applicant is an international business company incorporated in the British Virgin Islands in Guernsey in the Channel Islands but is not permitted to trade in that jurisdiction.</p> <p> </p> <p>The respondent is a body corporate, responsible for the collection amongst other taxes, of Value Added Tax (VAT) in Zimbabwe.  </p> <p>                </p> <p>The respondent sued the applicant in the High Court alleging non-payment of VAT by the applicant. The facts leading to the dispute are that on 1 October 2007, the Governor of the Reserve Bank of Zimbabwe (RBZ) unveiled the Basic Commodities Supply Side Intervention (BACOSSI), a facility designed to end chronic shortages of basic commodities in Zimbabwe. The applicant and RBZ concluded an agreement in which the applicant supplied basic commodities to the RBZ. The respondent conducted a tax investigation of the purchases in foreign currency made by the RBZ between May 2006 and September 2008. It is alleged that during the course of this period the applicant was not remitting the requisite VAT to the respondent.</p> <p> </p> <p> </p> <p>The applicant unsuccessfully defended the respondent’s suit resulting in a judgment being granted in favour of the respondent. Aggrieved by this outcome the applicant noted an appeal to this court.</p> <p> </p> <p> </p> <p>In compliance with r 30 of the Supreme Court Rules, 1964 the applicant filed its notice of appeal in this Court on 11 November 2015 within the stipulated 15 day period. The appeal went through the usual processes set out in the Rules. Heads of Arguments were filed by both parties upon which they awaited the set down date from the Registrar of this Court.</p> <p> </p> <p> </p> <p>On 8 August 2017 the parties were invited by the Honourable Chief Justice to attend in his chambers concerning the notice of appeal. Following a discussion it was conceded by the applicant that the notice of appeal was defective in two respects. Firstly, the preamble to the notice of appeal did not state whether the appeal was directed against the whole or part of the judgment and secondly, the relief sought did not comply with the Rules. As a result of the defects, the applicant withdrew the appeal.</p> <p> </p> <p>On 31 August 2017 the applicant filed an application for condonation and extension of time within which to note an appeal. The application was granted by Ziyambi A/JA on 19 September 2017. In granting condonation the court ordered as follows:</p> <p>“The Notice of Appeal filed of record be and is hereby deemed to have been filed as of the date of this order in terms of rule 31(8) of the Supreme Court Rules (1964).”</p> <p> </p> <p> </p> <p>Following the grant of the above order the applicant awaited the call for the next step by the Registrar. On 21 March 2018 after having waited in vain for close to six months the applicant’s legal practitioner decided to follow up the matter with the Registrar. It was only then that he was advised that he should have filed his notice of appeal and this therefore meant there was no appeal before the court. The applicant thereafter filed the present application.</p> <p> </p> <p> </p> <p><strong>APPLICANTS SUBMISSIONS</strong></p> <p>Mr<em> Mutasa</em>, for the applicant, submitted that he understood the above order to mean that the notice of appeal had been deemed to have been filed therefore there was no need for him to file or serve another copy of the notice of appeal. He was of the view that after the conclusion of the matter before Ziyambi A/JA the Registrar was going to write to him requesting the filing of heads of argument since the notice of appeal filed in the application had been deemed to have been filed.</p> <p> </p> <p>He was thus surprised when he was advised that the appeal was again out of time considering that the order was given on 19 September 2017.</p> <p> </p> <p><strong>RESPONDENTS SUBMISSISSIONS</strong></p> <p>   The respondent initially opposed the application on the basis that the delay in seeking condonation and extension of time within which to file the appeal was inordinate. However during the hearing the respondent conceded that the phrasing of the order has caused considerable problems to litigants and there was need for the order to be interpreted.</p> <p>     </p> <p>   In interpreting the order I am of the view that it is also necessary to set out the procedure which ought to obtain once such an order has been granted.</p> <p> </p> <p> </p> <p><strong>INTERPRETATION OF THE ORDER</strong></p> <p>   The order is couched with a few variations in accordance with r 31 (8) of the Supreme Court Rules, 1964 as read together with Practice Direction No 1 of 2017 which was issued by the Chief Justice.  Rule 31 (8) reads as follows:</p> <p>   “If leave to appeal or leave to appeal out of time</p> <p>  is granted, the appeal shall be deemed to have been</p> <p>  instituted in accordance with the notice of appeal filed</p> <p>  in the application on the date on which it was granted.”</p> <p> </p> <p>           </p> <p>Form 3 to the Practice Direction which deals with Chamber Applications For Condonation And Extension Of Time states in the relevant part as follows:</p> <p>          “1……..</p> <p>                          2……..</p> <p>                          3. The notice of appeal shall be deemed to have</p> <p>              been filed on the date of this order. (or on</p> <p>              such date as may be fixed by the Judge)”</p> <p> </p> <p>The order which was granted by the Court stated as follows:</p> <p>“The Notice of appeal filed of record be and is hereby</p> <p> deemed to have been filed as of the date of this order</p> <p>in terms of rule 31(8) of the Supreme Court Rules</p> <p>(1964).”</p> <p> </p> <p> </p> <p>As can be noted the order that was granted incorporates the wording in r 31 (8) and form 3 of the Practice Direction No 1/2017.</p> <p> </p> <p>As alluded to earlier, this order has caused a lot of problems to the majority of legal practitioners and litigants alike who have interpreted the word “deemed” in the above order to mean that once the court has made an order the notice of appeal filed of record has been filed with the court. As the order is made primarily from r 31 (8) it is necessary to begin by interpreting this Rule.  A proper reading of r 31 (8) in my view merely states that the notice of appeal that has been filed by the applicant is the notice that will have been accepted by the court in granting the extension of time. The applicant cannot thereafter file a different notice of appeal to the one that was filed in the application for condonation and extension of time to appeal.</p> <p> </p> <p> </p> <p>It also seems to me that the assumption made by legal practitioners and litigants is legally wrong as it seeks to read the Rules in isolation. It completely disregards the Rules that state that service has to be effected on the Registrar of this Court, Registrar of the court <em>a quo</em> as well as the respondent(s). This is all prescribed in r 29 (2).</p> <p> </p> <p> </p> <p>In terms of procedure, it also overlooks the fact that in granting an application for condonation and extension of time with which to appeal there is no record of proceedings which is being appealed against and that no specific case number has been accorded to the intended appeal.</p> <p> </p> <p>In my view therefore, when the court makes an order such as the one in question, it simply means that the “draft” notice of appeal which must be filed together with the chamber application for condonation and extension of time to note an appeal has been accepted by the court.</p> <p> </p> <p>In my view it follows that the applicant must thereafter file the notice of appeal within the prescribed period in terms of the Rules.</p> <p> </p> <p><strong>PROCEDURE AFTER THE GRANTING OF THE ORDER</strong></p> <p>It is also necessary for the sake of completeness to mention that the acceptance of the notice of appeal does not do away with the appeal process, it actually marks its genesis.</p> <p> </p> <p>The granting of an application for condonation and extension of time means that one has been granted an indulgence by the court to do that which they ought to have done in the first place. Under the circumstances there is no pending appeal before the court.  In other words it means that soon after the issuance of the order the applicant’s legal practitioner ought to revert back to the initial process of noting an appeal.</p> <p> </p> <p>The process begins with the noting of an appeal to this Court. It is at this stage that the appellant is issued with a case number. In terms of Rule 30 (a), where leave is not necessary an appellant has fifteen days within which to file and serve the notice of appeal. This same 15 day rule applies with equal force where an applicant has been condoned and granted extension of time within which to note an appeal, unless a shorter period is ordered by the judge.</p> <p> </p> <p>I<em>n casu</em>, the applicant had 15 days from the date the order was made within which to file its notice of appeal under a new and separate case number.</p> <p> </p> <p>Thereafter, the applicant is mandated to comply with the provisions of r 29 (2) which is to the effect that the notice of appeal shall be served on the Registrar of this Court, the Registrar of the High Court and the respondent. It automatically follows that once the appeal has been noted and served on the relevant parties, r 34 comes into effect. It mandates that the requisite fees be paid to ensure the preparation of the record. Thereafter, in terms of r 43 the parties may be called upon to file their heads of arguments and the appeal is finally set down.</p> <p> </p> <p>In simple terms the effect of the above order is, since condonation and extension of time has been granted, the applicant has been granted the indulgence to file his appeal and in doing so the prescribed provisions in the Rules apply.</p> <p> </p> <p> </p> <p>It is imperative to note that the notice of appeal filed in the application is merely a draft that sought approval from the court and it forms part of the chamber application record. It is not a stand-alone document. Therefore, once an order is given pertaining to the chamber application that file is closed and the matter is deemed to have been completed. The contents therein cannot be tempered with. It also does not form part of the record which is being appealed against. In the event that the above procedure is not complied with the Appeal record will not have a notice of appeal as part of its papers.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>The failure to comprehend the import of this order has been a major cause for concern for a long time. It has completely defeated the concept of bringing finality to ligation as applications for condonation have kept coming back concerning the same case because they will not have complied with the Rules.</p> <p> </p> <p>It is for this reason that I have sought to interpret the Rule, the meaning of the order and to set out the procedure that must be followed after the order has been granted.</p> <p> </p> <p>Following the hearing of this application I made the following order by consent:</p> <p> </p> <p>“1. The application for condonation of non-compliance with</p> <p>    Rule 30 of the Supreme Court Rules, 1964, be and is hereby</p> <p>    granted.</p> <p>2. The application in terms of Rule 31 of the Supreme Court</p> <p>   Rule 1964 for extension of time within which to appeal be</p> <p>   and is hereby granted.</p> <p>3. The notice of appeal filed of record be and is hereby</p> <p>   deemed to have been filed as of the date of this order in</p> <p>   terms of Rule 31 (8) of the Supreme Court Rules, 1964.</p> <p>4. There shall be no order as to costs.”</p> <p> </p> <p><em>Gill, Godlonton &amp; Gerrans </em>applicant’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2019/1/2019-zwsc-1.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=36798">2019-zwsc-1.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2019/1/2019-zwsc-1.pdf" type="application/pdf; length=158866">2019-zwsc-1.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/appeal">Appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/civil-matter-appeal">Civil matter (Appeal)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-extension-time-within-which-appeal">application for extension of time within which to appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/extension-time-file-notice-appeal">Extension of time to file notice of appeal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/condonation">Condonation</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/court">COURT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rules-court">Rules of court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/judgment-practice-and-procedure">Judgment (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/consent-judgment">by consent (Judgment)</a></li></ul></span> Mon, 24 Jun 2019 11:45:14 +0000 admin 9334 at https://old.zimlii.org Delta Beverages (Private) Limited v ZIMRA (SC 9/19, Civil Application No. 226/17) [2019 ZWSC 9 (19 February 2019); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2019/9 <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>DISTRIBUTABLE</strong><strong>   (11)</strong></p> <p> </p> <p><strong>DELTA     BEVERAGES      (PRIVATE)     LIMITED</strong></p> <p><strong>v</strong></p> <p><strong>ZIMBABWE     REVENUE     AUTHORITY</strong></p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>BHUNU JA</strong></p> <p><strong>HARARE, JUNE 1, 2017 AND FEBRUARY 19, 2019</strong></p> <p> </p> <p> </p> <p><em>D Tivadar</em>, for the applicant</p> <p><em>S Bhebhe</em>, for the respondent</p> <p> </p> <p> </p> <p><strong>CHAMBER APPLICATION</strong></p> <p> </p> <p> </p> <p><strong>BHUNU JA</strong>:        This is an application for leave to appeal against a decision of the High Court in terms of r 30 (c) of the Supreme Court Rules, 1964. After hearing counsel and reading the papers filed of record, I ordered that the application be struck off the roll and indicated that the reasons would follow. These are they.</p> <p> </p> <p>The applicant is a company carrying on the business of manufacturing alcoholic and non-alcoholic beverages in Zimbabwe. The respondent is an administrative authority established in terms of the Revenue Authority Act [<em>Chapter 23:11</em>] and tasked among others with collection of revenue dues. The applicant approached the High Court under HC 12009/16 on an urgent basis seeking an interdict against the respondent. The sequence of events which led the applicant to take this action can be summarised as follows:</p> <p> </p> <p>    </p> <p>On 14 April 2016, the respondent confirmed a tax assessment, penalty and interest against the applicant. These were communicated to the applicant. The applicant objected to the assessment in terms of s 62 of the Income Tax Act [<em>Chapter 23:08</em>]. The respondent did not accede to the objection, its position on 9 May 2016 was that the assessed tax was due and payable. The respondent wrote to the applicant reminding it of its obligation despite its right of appeal to the Fiscal Court in terms of s 65 of the Income Tax Act. Under cover of a letter dated 21 November 2016, the respondent indicated its intention to institute recovery measures if the penalty was not paid by 25 November 2016.</p> <p> </p> <p> </p> <p>The applicant, upon receipt of the letter dated 21 November 2016, approached the High Court on 24 November 2016 on an urgent basis seeking an order interdicting the respondent from employing its recovering measures pending the outcome of the appeal it had noted. The court <em>a quo</em> found that the matter was not urgent and the application was struck off the roll on 1 December 2016. Applicant was aggrieved by that decision and it filed an application for leave to appeal against the decision in the court <em>a quo</em>. The application was dismissed on 8 March 2017.  This necessitated the filing of the present application. The applicant filed this application on 7 April 2017.</p> <p> </p> <p> </p> <p>This application is being made in terms of r 30 (c) of the Supreme Court Rules, 1964. It reads thus:</p> <p>“An appellant <strong>shall</strong> institute an appeal within the following times — if leave to appeal is necessary and has been refused, by the High Court, by making application for leave to appeal <strong>within ten days of the refusal of leave to appeal</strong>.” (my emphasis)</p> <p> </p> <p> </p> <p> </p> <p>Rule 30 (c) allows an applicant to whom leave to appeal is denied by the High Court to seek leave from this Honourable Court. The only caveat to this rule is that the application for leave to appeal must be filed within 10 days of the refusal of leave to appeal. <em>In casu</em> the applicant was denied leave to appeal on 8 March 2017. The applicant filed this application on 7 April 2017, 12 days out of time. The applicant`s last day of filing this application was 22 March 2017. The applicant being out of time did not seek condonation for non-compliance with the Rules and extension of time within which to file an application for leave to appeal against the decision of the High Court.</p> <p> </p> <p>Rule 30 (c) is mandatory and must be complied with. Failure to file an application for leave to appeal within the stipulated time frames is fatal. The application becomes a nullity. (See <strong><em>Matanhire v BP Shell Marketing</em></strong> SC 113-04, <strong><em>Dabengwa &amp; Anor v ZEC &amp; Ors</em></strong> SC 32-16). In <strong><em>Hattingh v Pienaar</em></strong> 1977 (2) SA 182 (O) at 183, KLOPPER JP held that a fatally defective compliance with the rules regarding the filing of appeals cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant rule. <em>In casu</em>, condonation for non-compliance with the Rules and extension of time was not sought thus the applicant remains in breach of r 30 (c).</p> <p> </p> <p>The need to comply with the rules of court cannot be over emphasised especially where the rule is peremptory. Where strict compliance with Rules of court is required, litigants must so comply because anything less will potentially prejudice the other party. In <em>Chikura &amp; Anor v Al Sham’s Global BVI Limited</em> SC 17/2017 ZIYAMBI JA had occasion to remark that:</p> <p>“The Rules are made for the proper running of the Court. Failure to comply with its mandatory provisions will render an appeal a nullity. See Matanhire v BP &amp; Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S).”</p> <p> </p> <p> </p> <p>In<em> casu,</em> it is clear that the applicant failed to comply with r 30 (c). It has not been condoned for its non-compliance with the Rules of court hence this application is a legal nullity. Against the backdrop of the foregoing, it becomes unnecessary for me to deal with the merits of this application.</p> <p> </p> <p>In the result, the matter is struck off the roll with costs.</p> <p> </p> <p><em>Gill, Goldonton &amp; Gerrans Legal Practitioners</em> for the applicant</p> <p><em>Kantor &amp; Immerman Legal Practitioners</em> for the respondent</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2019/9/2019-zwsc-9.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=27622">2019-zwsc-9.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2019/9/2019-zwsc-9.pdf" type="application/pdf; length=151347">2019-zwsc-9.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/appeal">Appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-supreme-court">Appeal to Supreme Court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/civil-matter-appeal">Civil matter (Appeal)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-extension-time-within-which-appeal">application for extension of time within which to appeal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/condonation">Condonation</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/condonation-practice-and-procedure">Condonation (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-condonation">application for condonation</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/condonation-non-observance-any-time-limit">condonation of non-observance of any time limit</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/urgent-application">Urgent Application</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interdict-sought-provisional-relief-urgent-application">interdict sought as provisional relief (Urgent Application)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2015/32-0">Dabengwa &amp; ZAPU v ZEC &amp; Others (SC 32/2016 Civil Appeal No. SC 418/2015) [2016] ZWSC 32 (12 January 2015);</a></div><div class="field-item odd"><a href="/node/7976">Chikura N.O. &amp; Another v Al Sham&#039;s Global BVI Ltd. (SC 17/2017 Civil Appeal No. SC 359/16) [2017] ZWSC 17 (20 February 2017);</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> Fri, 21 Jun 2019 08:53:49 +0000 admin 9330 at https://old.zimlii.org Sgt Khauyeza v The Trial Officer & Another (SC 23/19, Civil Appeal No. SC 474/18) [2019] ZWSC 23 (25 January 2019); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2019/23 <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><em>EX TEMPORE</em></strong></p> <p> </p> <p> </p> <p> </p> <p><strong>SERGEANT     KHAUYEZA</strong></p> <p><strong>v</strong></p> <ol> <li> </li> </ol> <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, JANUARY 25, 2019</strong></p> <p> </p> <p> </p> <p><em>N. Mugiya</em>, for the appellant</p> <p><em>K. Chimhiti </em>and <em>D. Jaricha</em>, for the respondents</p> <p> </p> <p> </p> <p><strong>PATEL JA:</strong>        This is an appeal against the judgement of the High Court in Case No. HC 5569/17 in which the High Court dismissed an urgent chamber application seeking the stay of the appellant’s detention, which was ordered by the Commissioner -General of Police (the second respondent), pending the finalisation of an application for review by the High Court of the proceedings before the single trial officer (the first respondent).</p> <p> </p> <p>            The High Court dismissed the urgent chamber application on the basis that the appellant had already appealed against the decision of the single trial officer to the Commissioner-General of Police and could not therefore seek a review of the decision of the trial officer. The High Court also found that the appellant could not seek the stay of the detention order imposed by the Commissioner-General as he had not questioned the decision of the Commissioner-General.</p> <p> </p> <p>At the hearing of the appeal, the Court took the position that the present appeal should be confined to the specific facts pertaining to the appellant himself and the determination of the court <em>a quo</em> in that regard. The other questions raised on appeal were purely academic, relating as they did to other cases before the High Court, and were therefore not properly before this Court.</p> <p> </p> <p>As agreed with counsel, the issues to be determined herein were as follows:</p> <p> </p> <ul> <li>Whether the appellant was entitled to approach the High Court on review of the trial officer’s decision after the dismissal of his appeal by the Commissioner-General.</li> <li>Whether the appellant was entitled to approach the High Court to stay the order of detention imposed by the Commissioner-General without having appealed his decision, pending the review of the trial officer’s decision by the High Court.</li> </ul> <p> </p> <p>During the course of submissions by counsel, it became apparent that the review proceedings in Case No. HC 5385/17 were not actually pending at the time that the urgent chamber application was heard and determined by the court <em>a quo</em>. It was common cause that the decision of the trial officer was made on 29 March 2017. However, the application for review of that decision was only filed on 15 June 2017, well beyond the eight weeks prescribed by the High Court Rules.</p> <p> </p> <p>Mr <em>Mugiya</em>, for the appellant, claimed that he had filed an application for condonation, for the late noting of the application for review, on 23 June 2017 and that the former application was still pending. He later contradicted himself by stating that the application for review had been amended by consent and therefore did not require any condonation. All of these claims were categorically refuted by Mr <em>Chimhiti</em>, for the respondents. To further compound the matter, none of the documents relied upon by Mr <em>Mugiya</em> to support his contentions formed part of the record before us.</p> <p> </p> <p>Mr <em>Mugiya</em> eventually sought an order striking the matter off the roll with a tender of wasted costs. Mr <em>Chimhiti</em>, on the other hand, sought the dismissal of the matter with costs.</p> <p> </p> <p>In our view, there was no review properly pending before the High Court at the time that the urgent chamber application was heard and determined by the court <em>a quo</em>. Therefore, the entire proceedings before the court <em>a quo</em> were premised on an erroneous factual background. Consequently and by the same token, the present appeal was also predicated on the same erroneous set of facts. In the result, we are of the unanimous view that the appeal, having been lodged on an improper footing, should be dismissed rather than being struck off the roll.</p> <p> </p> <p>     It is accordingly ordered that the appeal be and is hereby dismissed with costs.  </p> <p> </p> <p> </p> <p>BHUNU JA:                           I agree.</p> <p> </p> <p>BERE JA:                               I agree.</p> <p> </p> <p><em>Mugiya</em> <em>&amp;</em> <em>Macharaga Law Chambers</em>, appellant’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/supreme-court-zimbabwe/2019/23/2019-zwsc-23.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=23587">2019-zwsc-23.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2019/23/2019-zwsc-23.pdf" type="application/pdf; length=156786">2019-zwsc-23.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/appeal">Appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-supreme-court">Appeal to Supreme Court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/grounds-appeal">Grounds (Appeal)</a></li></ul></span> Mon, 10 Jun 2019 12:48:16 +0000 admin 9314 at https://old.zimlii.org Nkomo & Another v T.M. Supermarkets (Pvt) Ltd. (CCZ 4/19, Const. Application No. CCZ 30/18) [2019] ZWCC 04 (27 February 2019); https://old.zimlii.org/zw/judgment/constitutional-court-zimbabwe/2019/4 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Judgment No. CCZ 4/19</p> <p>Const. Application No. CCZ 30/18</p> <p> </p> <p><strong>REPORTABLE (4)</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>(1)     ITYAI     NKOMO     (2)     THEMBINKOSI     NYATHI</strong></p> <p><strong>(3)     NICHOLAS     KHUMBULA     TSHILI</strong></p> <p> </p> <p><strong>v</strong></p> <p> </p> <p><strong>T. M.     SUPERMARKETS     (PRIVATE)     LIMITED</strong></p> <p> </p> <p> </p> <p><strong>CONSTITUTIONAL COURT OF ZIMBABWE</strong></p> <p><strong>HARARE, OCTOBER 23, 2018 &amp; FEBRUARY 27, 2019</strong></p> <p> </p> <p> </p> <p>The applicants in person</p> <p> </p> <p><em>P Ncube</em>, for the respondent</p> <p> </p> <p> </p> <p><strong>Before: MALABA CJ, In Chambers</strong></p> <p> </p> <p> </p> <p>This is an application for leave to appeal to the Constitutional Court in terms of r 32 of the Constitutional Court Rules, 2016 (“the Rules”).</p> <p> </p> <p>The background to the matter is aptly captured in the Supreme Court judgment which is the subject of the intended appeal. The applicants were employed as section managers by the respondent at T.M. Supermarket, Lobengula Street, in Bulawayo. In 2011 the applicants became aware that other section managers at other branches were being paid higher salaries than themselves. They wrote letters to the Managing Director and the Human Resources Officer concerning the issue, but did not receive any response. In 2012 they lodged a complaint of an unfair labour practice with a labour officer emanating from the alleged salary differences. They sought back-pay from January 2010 to September 2011 with interest. The respondent explained that there was a performance based salary structure in place, which explained the differences noted by the applicants. The matter went through conciliation and a certificate of no settlement was issued.</p> <p> </p> <p>The matter was referred to arbitration, with one term of reference being whether or not the applicants were entitled to back-pay and, if so, the <em>quantum</em> thereof. The arbitrator found the decision to put in place and implement the performance based salary system to be in contravention of the <em>audi alteram partem</em> rule, as the applicants had not been heard concerning the system. He found further that the respondent had committed an unfair labour practice by underpaying the applicants. Consequently, he ordered that each of the applicants was entitled to back-pay in the sum of US$2 390.</p> <p> </p> <p>Aggrieved by the decision of the arbitrator, the respondent appealed to the Labour Court on two grounds. The first was that the arbitrator had erred in finding that the respondent had committed an unfair labour practice by implementing the performance based salary scheme without giving the applicants the opportunity to be heard. The second ground of appeal was that the arbitrator exceeded the terms of reference by ordering the respondent to normalise its remuneration system. The Labour Court dismissed the appeal, finding that the respondent had indeed committed an unfair labour practice by not apprising the employees of the introduction of the performance based salary system. It disposed of the second ground by finding that it was ill-judged, since the respondent had already started a process of regularising its remuneration system.</p> <p> </p> <p>The respondent sought and was granted leave to appeal to the Supreme Court. It filed a notice of appeal containing the following grounds -</p> <p>1.         The court <em>a quo</em> erred in law in effectively coming to the conclusion that it was unlawful for the appellant (now the respondent) to pay its employees performance based salaries.</p> <p>2.         Having come to the conclusion that what the respondents (now the applicants) were being paid was in accordance with their contracts of employment, the court <em>a quo</em> erred in law in holding as valid an award which entitled them to be paid on a salary scale that was not contractual and which related to different employees.</p> <p> </p> <p>3.         The court <em>a quo</em> erred in failing to make a determination on whether the arbitrator was entitled to stray from the terms of reference in the manner he had done and whether he was at large to afford relief which had not been motivated.</p> <p> </p> <p>The court <em>a quo </em>determined the matter on the basis of two issues -</p> <ol> <li> </li> </ol> <p>2.        Whether the court <em>a quo</em> erred by failing to make a determination on the question of whether or not the arbitrator strayed from his terms of reference.</p> <p>The court <em>a quo</em> upheld the Labour Court’s finding that the performance based salary scheme put in place by the respondent was illegal because the applicants had not been given an opportunity to be heard before its implementation. It went on to find, however, that the Labour Court had erred in ordering the enforcement of the decision of the arbitrator on back-pay. The court <em>a quo</em> held that the Labour Court and the arbitrator were enforcing an illegal payment.</p> <p> </p> <p>On the second ground of appeal, the court <em>a quo</em> held that the term of reference before the arbitrator was whether or not the applicants were entitled to back-pay. It held that the order made by the arbitrator for the regularisation of the respondent’s salary system was without basis as it was outside the term of reference. The court <em>a quo</em> held that the Labour Court had not addressed its mind to the resolution of the issue, as it was of the view that the matter had been overtaken by events.</p> <p> </p> <p>The appeal was allowed with costs and the judgment of the Labour Court set aside.</p> <p> </p> <p>The applicants seek leave to appeal against the judgment of the court <em>a quo</em>. The contention is that the court <em>a quo </em>delivered a judgment which dealt with a performance based bonus scheme and not the performance based salary system which was the dispute between the parties. The applicants alleged that the matter they brought before the labour officer was premised on a complaint that the respondent was paying a higher basic salary to other section managers to their exclusion. They alleged that the court <em>a quo</em> dealt instead with the payment of a performance based bonus. The contention was that the court <em>a quo</em> infringed the rights of the applicants enshrined in s 56(1) (equal protection of the law), s 65(1) (to be paid a fair and reasonable wage) and s 65(4) (just, equitable and satisfactory conditions of work) of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 (“the Constitution”). The applicants contend that the court <em>a quo</em> failed to appreciate the issue before it.</p> <p> </p> <p>The respondent opposed the application. It contended that there was no constitutional matter upon which the intended appeal would be predicated. The respondent based the contention on the reading of r 32 of the Rules in terms of which the application was purportedly brought. Mr <em>Ncube</em> argued that the rule requires that there ought to have been a constitutional matter adjudicated upon by the court <em>a quo</em> for an appeal to lie to the Court. Reliance was placed on the authority of <em>The Cold Chain (Private) Limited t/a Sea Harvest</em> v <em>Robson Makoni </em>CCZ 8/17 to highlight the fact that the Court has emphasised the need for an appeal from a subordinate court to be predicated on a decision on a constitutional issue. A person has no right of appeal against a decision of a subordinate court on a non-constitutional issue. Section 169(1) of the Constitution provides that the Supreme Court is the final court of appeal for Zimbabwe except in matters over which the Constitutional Court has jurisdiction.</p> <p> </p> <p>In <em>Rushesha &amp; Ors</em> v <em>Dera &amp; Ors </em>CCZ 24/17 at pp 10-11 of the cyclostyled judgment, the Court emphasised the fact that there is no right of appeal from a subordinate court on a non-constitutional matter. gwaunza jcc (as she then was) said:</p> <p>“Only where the Supreme Court determines a constitutional issue, may one appeal to this Court for a final determination.  Because the Supreme Court in this matter did not determine any constitutional issue, the decision it rendered was final and not appealable. Since courts are not expected to, and invariably do not, render judgments that cannot be put into effect - which are in other words a <em>brutum fulmen</em> - a purported appeal against the effect of a judgment of the Supreme Court on a non-constitutional issue is in reality an appeal envisaged in s 169(1). That is, a final judgment that is not appealable no matter how well disguised any such purported appeal may be. It does not escape notice that in seeking to have the Supreme Court judgment overturned under the guise of an appeal to this Court, the appellants are, in effect, attempting to revive, and reinstate, the judgment of the High Court, which was in their favour.  What is sought would be both manifestly irregular, and bad at law.” (my emphasis)</p> <p> </p> <p>The applicants approached the labour officer with a dispute relating to salaries. The dispute arose from the allegation that other section managers were being paid a higher salary than the applicants.</p> <p>The matter for determination by the court <em>a quo</em> related to the same subject of the dispute that had engaged the parties in proceedings before the Labour Court. The dispute was about the legality of the alleged performance based salary scheme, which the applicants said was being beneficially applied to other section managers to their exclusion. The subject of the dispute before the subordinate court for determination was a labour matter, which called for the interpretation and application of the principles of labour law. The court <em>a quo</em> decided a labour matter. The non-constitutional issue did not become a constitutional matter because the applicants made a decision on it a matter of an application for leave to appeal to the Court.</p> <p>            No statement setting out clearly and concisely the constitutional matter raised in the decision of the court <em>a quo</em> was filed with the application, as required by r 32(3)(c) of the Rules. The founding affidavit supporting the application did not verify the cause of action as arising from a decision of the court <em>a quo</em> on a constitutional matter. The applicants could not have complied with the requirements of the procedure of an application for leave to appeal from a decision of the court <em>a quo</em> prescribed by the Rules, because the decision sought to be appealed against was not on a constitutional matter.</p> <p>           </p> <p>            The inevitable effect of a finding of the fact that the court <em>a quo</em> did not decide a constitutional matter is that the applicants have no right of appeal to the Court against the decision of the court <em>a quo</em>.</p> <p> </p> <p>In <em>Nyamande and Another</em> v <em>Zuva Petroleum </em>2015 (2) ZLR 351 (CC) at 354B-C ziyambi jcc said:</p> <p> </p> <p>“Having considered the submissions by the parties I agree with Mr <em>Chagonda</em> that the applicants have not established any right to approach the Constitutional Court by way of appeal. Section 167(5) relates to rules of procedure regulating the manner of approach to this Court on appeal from lower courts. It does not confer a right to appeal to the Constitutional Court on a litigant who has no right of appeal. … Failing that, a right of appeal could only arise where the Supreme Court makes a decision on a constitutional matter. …</p> <p> </p> <p>Since no constitutional issue was determined by the Supreme Court, no appeal can lie against its decision … . It follows that the applicants have not established a right of appeal to the Constitutional Court and any appeal filed in this matter by the applicants is a nullity as it conflicts with the provisions of s 169(1) of the Constitution.”<em> (</em>My emphasis)</p> <p> </p> <p> </p> <p>An application for leave to appeal to the Court against a decision of a subordinate court on a non-constitutional issue would be seeking from the Court relief, the granting of which would be a nullity for violation of s 167(1)(b), as read with s 169(1), of the Constitution.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>The application is dismissed with costs.</p> <p> </p> <p>           </p> <p> </p> <p> </p> <p><strong>GOWORA JCC:       I agree</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p>           </p> <p><strong>HLATSHWAYO JCC:                    I agree</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>Coghlan &amp; Welsh</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/constitutional-court-zimbabwe/2019/4/2019-zwcc-04.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=27186">2019-zwcc-04.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2019/4/2019-zwcc-04.pdf" type="application/pdf; length=125459">2019-zwcc-04.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/appeal">Appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-which-court">Appeal to which court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/constitution-zimbabwe-2013">Constitution of Zimbabwe 2013</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/court">COURT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rules-court">Rules of court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-practice-and-procedure">Application (PRACTICE AND PROCEDURE)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/constitutional-court-zimbabwe/2017/8">The Cold Chain (Pvt) Ltd. v Makoni (CCZ 8/2017 CONST. APPLICATION NO. CCZ 79/16) [2017] ZWCC 8 (17 February 2017);</a></div><div class="field-item odd"><a href="/zw/judgment/constitutional-court-zimbabwe/2015/8">Nyamande &amp; Another v ZUVA Petroleum (CCZ 8/15 Civil Application No. CCZ 62/15) [2015] ZWCC 8 (01 August 2015);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Tue, 09 Apr 2019 11:38:19 +0000 admin 9295 at https://old.zimlii.org S v Muzvongi (HB 3-19, HCB 261/18) [2019] ZWBHC 3 (17 January 2019); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2019/3 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>DOUGLAS MABASA MUZVONGI</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>THE STATE</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MAKONESE J</p> <p>BULAWAYO 10 &amp; 17 JANUARY 2019</p> <p> </p> <p><strong>Bail pending trial</strong></p> <p> </p> <p><em> A.  Ndlovu</em> for the applicant</p> <p><em>K. Ndlovu</em> for the state</p> <p>            <strong>MAKONESE J:        </strong>The applicant has been charged with contravening section 113 (1) of the Criminal law (Codification and Reform) Act (Chapter 9:23), theft of motor vehicle.  The applicant denies the charges.  He has filed an application for bail pending trial and avers that he is a “perfect” candidate for bail.  The motor vehicle which is the subject of the charge was stolen  and driven away from Nobert Hungwe’s residence at number 560 Medium Density Area, Plumtree on 6th  October 2018.  The motor vehicle, a Honda Fit, was recovered in Harare’s Epworth area in the custody of a panel beater one Nhamo Chifombe.  Chifombe revealed that the vehicle had been brought to him for repairs and spray painting by the applicant and his accomplices.  The applicant admits that he owns and operates a car sale.  He avers that he had no knowledge that the Honda Fit had been stolen and contends that the motor vehicle which bore Botswana registration plates at the time he bought it was not stolen property.  In his bail statement applicant seemingly suggests that he genuinely bought an imported vehicle and has no case to answer.  The applicant’s version is quickly exposed in that by his own admission, he bought a foreign registered vehicle without being shown the customs documents, police clearance and registration book.  A car dealer is unlikely to enter into a purchase agreement of a motor vehicle without any documentation.  Applicant deals in motor vehicles.  He cannot explain his possession of a recently stolen motor vehicle and gives an explanation which defies any logic.  After the vehicle was stolen from Plumtree it surfaced at applicant’s car sale.  His explanation that he bought it off an unnamed buyer who had imported it from Botswana (without any documentation) is as false as it sounds.</p> <p>            It is this court’s view that the state’s case against the applicant is very strong.  In the event of a conviction the applicant faces a lengthy prison sentence.  Further, the Investigating Officer indicates that the applicant has pending cases under Borrowdale CR 46/11/18 where he is facing fraud charges involving a motor vehicle.  He is also facing another charge of theft of a motor vehicle under Mrewa CR 201/08/18.  He is out on bail on these charges.  The applicant clearly has a propensity to commit offence of a similar nature.</p> <p>            Section 116 of the Criminal Procedure and Evidence Act (Chapter 9:07) empowers the court to admit an applicant to bail pending trial.  Section 115C (2)(ii) B provides that if the applicant is charged with an offence in Part II of the Third Schedule he bears the onus of proving on a balance of probabilities that exceptional circumstances exist, which in the interests of justice permit his or her release on bail.  Theft of a motor vehicle is a specified offence.  In the result, the onus is on the applicant to convince the court that is a good candidate for bail pending trial.  In an application of this nature, the court seeks to strike a balance between the liberty of the individual, who is presumed innocent until proven guilty by a court of law, and the overall interests of the orderly administration of justice.  Applicant does not dispute that he is currently on bail in respect of similar cases involving thefts of motor vehicles.  The courts will interfere with the liberty of an accused person where he is clearly shown to have an inclination to commit further offences if granted bail.  As a matter of policy and law and where possible, the courts will lean in favour of individual liberty.  See <em>S</em> v <em>Biti </em>2002 (1) ZLR 115 (H).</p> <p>            In the present application, whilst recognizing the applicant’s presumption of innocence, the overriding consideration is the fact that the applicant has a propensity to commit similar offense if granted bail.  Applicant’s accomplices are still at large and the likelihood to interfere with investigations if applicant is granted bail pending trial is a real possibility, and not a mere possibility.</p> <p>            I have considered all the facts placed before me and the state’s fear that that applicant is part of a well organised criminal gang is justified.  The affidavit of the Investigating Officer details how the applicant was arrested, and how it was difficult to locate the applicant.  It is my view that granting the applicant bail at this state would jeopardize the investigations and compromise the interests of justice.</p> <p>            In the circumstances, I conclude that the applicant is not a proper candidate for bail and accordingly dismiss the application.</p> <p> </p> <p> </p> <p><em>Dube &amp; Associates</em>, applicant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, state’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/2019/3/2019-zwbhc-3.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=19457">2019-zwbhc-3.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2019/3/2019-zwbhc-3.pdf" type="application/pdf; length=76259">2019-zwbhc-3.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/theft">Theft</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/bail">BAIL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal">Appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-bail">application for bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/conditions-which-bail-granted">conditions on which bail granted</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grant-bail">grant of bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/grounds-refusal-bail">grounds for refusal of bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/principles-be-observed-bail">principles to be observed (bail)</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> Thu, 28 Feb 2019 10:28:45 +0000 admin 9284 at https://old.zimlii.org Ex- Constable Nzonzo P. T & Another v The Commissioner General of Police & 2 Others (HB 2-19, HC 1887/17) [2019] ZWBHC 2 (10 January 2019); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2019/2 <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>EX-CONSTABLE NZONZO P.T.</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>EX-CONSTABLE SOKOLE D.</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>THE COMMISSIONER GENERAL OF POLICE</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>THE CHAIRPERSON OF THE POLICE</strong></p> <p><strong>SERVICE COMMISSION</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>THE MINISTER OF HOME AFFAIRS</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>TAKUVA J</p> <p>BULAWAYO 9 JANUARY 2018 &amp; 10 JANUARY 2019</p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p><em>N. Mugiya</em> for the applicants</p> <p><em>L. Musika</em> for the respondents</p> <p>            <strong>TAKUVA J:  </strong>This is a court application for a dclaratur wherein applicants seek the following relief:</p> <p>“1.       The discharge of the applicants from the Police Service by the respondents be and is hereby declared unlawful and wrongful.</p> <p>2.         The respondents are ordered to reinstate the applicants into the Police Service forthwith.</p> <p>3.         The respondents are ordered to pay costs of suit on a client attorney scale”.</p> <p>            The applicants’ case is based on the following facts:</p> <p>            On the 26th day of July 2016 they were discharged from the Police Service by the 1st respondent.  Both appealed against the dismissal to the 2nd respondent in terms of section 51 of the Police Act (Chapter 11:10) (the Act).  Despite the appeal the 1st respondent refused, failed and /or neglected to reinstate the applicants into the Police Service.</p> <p>            On 7 November 2016, 1st applicant received a notice from the 2nd respondent that his appeal has been dismissed and that the decision of the 1st respondent was upheld.  The 2nd applicant received a similar notification on 6 April 2017.  Both alleged that they verbally requested for reasons why their appeals were dismissed “by the 1st and 2nd respondents but we were never furnished with the said reasons”.  Further, the two contended that the 2nd respondent’s Commission is not “properly constituted in terms of the Constitution.  Finally, they claimed that the 1st respondent’s refusal to reinstate them is unlawful and wrongful, while the 2nd respondent’s refusal or failure to furnish them with written reasons for dismissing their appeals is also unlawful and wrongful.</p> <p>            The respondents opposed the application on the following grounds;</p> <ol> <li>The applicants failed to comply with the procedure provided in section 15 (1) of the Board of Inquiries (Regulations)1965 in that they did not file their appeals with their Officer Commanding but filed them directly to the 2nd respondent.</li> <li>Both applicants did not request for reasons from the 2nd respondent, making the 2nd respondent’s failure to supply those reasons lawful.</li> </ol> <p>Both parties filed detailed heads of argument which they adhered to.  Applicants abandoned all their points <em>in limine</em> and the matter was argued on the merits.  The parties agreed that the following are the issues to be determined:</p> <ul> <li>Whether or not the failure by the 1st respondent to reinstate applicants pending the determination of their appeal against discharge is wrongful and unlawful.</li> <li>Whether or not the dismissal of applicants from the Police Service without giving reasons is unlawful and wrongful.</li> <li>Whether or not the Police Service Commission is properly constituted.</li> </ul> <p><strong>The Law</strong></p> <p>            In seeking a Declaratur the applicants relied on section 14 of the High Court Act (Chapter 7:06) which provides;</p> <p>“The High Court may, in its discretion at the instance of any interested person enquire 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>This court per NDOU J laid down the guiding principles on the exercise of its discretion in <em>Mpukuta</em> v <em>Motor Insurance Pool &amp; Ors</em> 2012 (1) ZLR 192 (H) at p192E-G as:</p> <p>“The condition precedent to the grant of a declaratory order is that the applicant must be an interested person in the sense of having 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 relate to an existing future or contingent right.  The court will not decide abstract academic or hypothetical questions unrelated to such interest.  That is the 1st stage in the determination of the court.  At the second stage of the enquiry, it is incumbent upon the court to decide whether or not the case in question is a proper one for the exercise of its discretion under s14 of the High Court Act (Chapter 7:06).  In this regard, some tangible and justifiable advantage in relation to the applicant’s position, with reference to an existing future or contingent legal right or obligation, must appear to flow from the grant of the declaratory order”.  See also <em>Munn Publishing (Pvt) Ltd</em> v <em>ZBC </em>1994 (1) ZLR 387 (S). and <em>Johnsen </em>v <em>Agricultural Finance Corporation</em> 1995 (1) ZLR 65 (SC).</p> <p>            In the present matter, it is not in dispute that prior to their dismissal the relationship between applicants and the 2nd respondent was one of employer – employee.  Therefore the applicants have a direct and substantial interest in the lawfulness or otherwise of their dismissal.  For this reason, both applicants have established the requirements of the 1st test.</p> <p>            As regards the second stage. I turn to the merits of the case and specifically to the 1st issue.  The material legal provisions are the following:</p> <p> </p> <p> </p> <p>            “ Section 51.   Appeal</p> <p>A member who is aggrieved by any order made in terms of section forty-eight or fifty may appeal to the Police Service Commission against the order within the time and in the manner prescribed and the order shall not be executed until the decision of the Commissioner has been given”. (my emphasis)</p> <p>            The section has two critical components namely;</p> <ul> <li>the appeal must be within the time and manner prescribed; and</li> <li>the execution of the order appealed against shall be stayed pending the decision of the Police Service Commission.</li> </ul> <p>The appeal procedure isset out in section 15 (1) of the Police (Trials and Boards of Inquiry) Regulations 1965.  It states;</p> <p>“15(1)        A member who wishes to appeal in terms of s51 of the Act shall:</p> <ul> <li>Within twenty-four hours of being notified of the decision of the Commissioner General of Police, give notice to his Officer Commanding of his or her intention.</li> <li>Within seven (7) days of being notified of the decision of the Commissioner General of Police, lodge with him or her officer commanding a notice of appeal in writing setting out fully the grounds upon which his or her appeal is based and any argument in support thereof.</li> <li>Upon receipt of a notice given in terms of paragraph (a) of subsection (1) the member’s superior officer shall notify the Chief Staff Officer (Police) by the most expeditious means.” (my emphasis)</li> </ul> <p>The import of this provision is firstly, that compliance is mandatory.  Secondly, the applicants were required to give notice of their intention to appeal to their Officer Commanding.  Thirdly, both applicants were required to lodge with their Officer Commanding a notice of appeal and grounds thereof.  Finally, their superior officer was required to then notify the Chief Staff Officer of the applicants’ appeals.  The applicants contended that they filed their appeals properly in accordance with the law because the 2nd respondent determined the appeals.  Secondly, they argued that they submitted their appeals through their Officer Commanding who has not rebutted that assertion through an affidavit.  The 1st argument has no merit in that, in my view, it is neither here nor there that the 2nd respondent decided to consider and determine an appeal without looking at its procedural aspects.  This point was not raised or argued before the 2nd respondent.  Also since the reinstatement was supposed to be effected by the 1st respondent it was crucial that he be made aware of the appeal.  This in my view is the spirit of section 51 of the Act and s15 (1) of the Regulations.  The second argument has no merit in that it seeks to shift the onus to the respondents to prove that the appeals were improperly filed in circumstances where applicants positively asserted that they appealed through their Officer Commanding.  This is a fact known to them and they would have easily discharged the onus by producing copies of their notices stamped by their Officer Commanding.</p> <p>In terms of the regulations, the 1st respondent’s decision is only stayed by an appeal that complies with the regulations.  <em>In casu,</em> I take the view that both applicants failed to comply with the regulations.  Therefore the 1st respondent could not be obliged to reinstate applicants in circumstances where the 1st respondent was in the dark about the appeals.  Consequently, the 1st respondent’s failure to reinstate the applicants was not wrongful and unlawful.</p> <p>As regards the second issue the applicants’ argument is that they “verbally” requested for the 2nd respondent’s reasons but none were forthcoming.  The 2nd respondent denied receiving any such request.  The crisp issue is whether or not the applicants made verbal requests.  The court has to resolve this dispute on the papers as no <em>viva voce</em> evidence was led.  It must be noted that 2nd respondent is the chairperson of an institution.  Therefore, to allege that a verbal request was made without supplying further particulars of the identity of the person to whom it was made is not helpful.  Further, both applicants have not stated when and where the request was allegedly made.  If the request was made to the 2nd respondent 1st they should have specifically stated so in their founding affidavits.  The probabilities in my view, do not favour a conclusion that verbal requests were made to the 2nd respondent.</p> <p>This brings me to section 68 of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 which provides;</p> <p>68.       Right to administrative justice</p> <ol> <li>Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable proportionate, impartial and both substantively and procedurally fair.</li> <li>Any person whose right, freedom, interest or legitimate expectation has been adversely affected by administrative conduct has the right to be given promptly and in writing the reasons for the conduct.</li> <li>An Act of Parliament must give effect to these rights, and must –</li> </ol> <p>(a)  provide for the review of administrative conduct by a court where appropriate, by an independent and impartial tribunal;</p> <ul> <li>impose a duty on the State to give effect to the rights in subsections (1) and (2); and</li> <li>promote an efficient administration.” (my emphasis)</li> </ul> <p>The Act that gives effect to these rights is the Administrative Justice Act (Chapter 10:28).  Sections 3 thereof provides that:</p> <p>“3.       Duty of Administrative Authority</p> <ol> <li>An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person shall – <ul> <li>act lawfully, reasonably and in a fair manner; and</li> <li>act within the relevant period specified by law, or if there is no such specified period, within a reasonable period after being requested to take the action by the person concerned, and</li> <li>where it has taken the action, supply written reasons therefore within the relevant period specified by law or if there is no such specified period, within a reasonable period after being requested to supply reasons by the person concerned.” (my emphasis)</li> </ul> </li> </ol> <p>Now, in terms of this Act, a person who requires written reasons for any administrative decision which adversely affects him/her must request to be supplied with those reasons.  The question then becomes whether or not this interpretation should be extended to s68 of the Constitution?  The South African Supreme Court ascribed the same meaning to a provision that is similar to s68 of our Constitution, in <em>South African Police Service &amp; Ors</em> v <em>Maimela &amp; Anor</em> 2003 (S) SA 4801.  In this case, DU PLESSES J held that:</p> <p>“When interpreting section 33 (c) of the Constitution, it must be borne in mind that the right to be furnished with reasons is very wide, it applies to every person whose right or interests are affected by any administrative action.  In many instances the persons affected may not be interested in the reasons.  The practical interpretation of section 33(c) is that reasons must be furnished to affected persons who assert the right to be furnished with reasons.  The purpose of section 33(c) is not to oblige administrative decision-makers to furnish without a request, reasons for every single administrative action taken in this country”. (See Klaaren (in Chaskalson &amp; Others Constitutional Law of SA (Revision Services, 1999) at 25-19). (my emphasis)</p> <p>            In the present matter I have found that both applicants did not prior to filing this application request to be supplied with the 2nd respondent’s reasons for dismissing their appeals.  It is incredible and improbable to allege or assert that they made verbal requests to an institution without identifying a specific recipient.  As I pointed out above, if they made the request to the second respondent’s chairperson then they should have said so in their founding affidavits.  They should have also mentioned when and where the request was made.</p> <p>            Therefore, I find that the 2nd respondent’s failure to supply his reasons for dismissing the applicants’ appeals does not contravene s68 of the Constitution.  It cannot on the authorities above be termed “wrongful and unlawful”.</p> <p>            The 3rd issue relating to the constitutionality of the Police Service Commission was included as a parting shot in my view.  I say so because the point was not sufficiently argued by both parties.  As I pointed out elsewhere, the applicants are free to file any application with the Constitutional Court.  On the status of the 2nd respondent this court is unable to make a determination on the basis of the unsubstantiated allegations in the founding affidavits by the applicants.  The applicants have failed to discharge the onus to prove their claims.</p> <p>            In the circumstances the application is hereby dismissed with costs.</p> <p> </p> <p><em>Mugiya, &amp; Macharaga Law Chambers</em>, applicants’ 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/bulawayo-high-court/2019/2/2019-zwbhc-2.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24567">2019-zwbhc-2.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2019/2/2019-zwbhc-2.pdf" type="application/pdf; length=140646">2019-zwbhc-2.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/administrative-law">ADMINISTRATIVE LAW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/access-information">Access to information</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/administrative-decisions-and-acts">Administrative decisions and acts</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/decision-adverse-applicant">decision adverse to applicant)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal">Appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/audi-alteram-partem-rule">Audi alteram partem rule</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/fair-administrative-justice">Fair administrative justice</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/natural-justice">Natural justice</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/observance-rules">observance of rules of</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/1995/2">Police Act [Chapter 11:10]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</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 class="field-item odd"><a href="/zw/legislation/act/2004/12">Administrative Justice Act [Chapter 10:28]</a></div></div></div> Thu, 28 Feb 2019 09:55:36 +0000 admin 9283 at https://old.zimlii.org Ex- Constable Makumbi v The Commissioner General of Police & 2 Others Ex-Sergeant Mafenya v The Commissioner General of Police & 2 Others (HB 1-19, HC 1229/17; HC 1214/17) [2019] ZWBHC 1 (10 January 2019); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2019/1 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>EX-CONSTABLE MAKUMBI                                                                  HC 1229/17</strong></p> <p><strong>Versus</strong></p> <p><strong>THE COMMISSIONER GENERAL OF POLICE</strong></p> <p><strong>And</strong></p> <p><strong>THE CHAIRPERSON OF THE </strong></p> <p><strong>POLICE SERVICE COMMISSION</strong></p> <p><strong>And</strong></p> <p><strong>THE MINISTER OF HOME AFFAIRS</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>EX-SERGEANT MAFENYA                                                                     HC 1214/17</strong></p> <p><strong>Versus</strong></p> <p><strong>THE COMMISSIONER GENERAL OF POLICE</strong></p> <p><strong>And</strong></p> <p><strong>THE CHAIRPERSON OF THE </strong></p> <p><strong>POLICE SERVICE COMMISSION</strong></p> <p><strong>And</strong></p> <p><strong>THE MINISTER OF HOME AFFAIRS</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>TAKUVA J</p> <p>BULAWAYO 2 FEBRUARY &amp; 20 DECEMBER 2018 &amp; 10 JANUARY 2019</p> <p> </p> <p><strong>Opposed Court Application</strong></p> <p> </p> <p><em>R. Ndou</em> for the applicants</p> <p><em>L. Musika, R. Taruberekera, I. Dube &amp; B. T. Nyoni </em>for the respondents</p> <p><strong>            TAKUVA J:</strong>  At the hearing of these matters <em>Mr L. Musika</em> applied to have the two cases consolidated since the facts, issues and legal principles to be argued are the same.  <em>Mr Ndou</em> for the applicants agreed and both cases were consolidated.  The result is that I will deliver one judgment instead of two.</p> <p>            The background in respect of each case is as follows:</p> <ol> <li><strong>Ex-Sergeant Mafenya</strong></li> </ol> <p>Both parties have not divulged what caused the applicants’ discharge by the 1st respondent.  Be that as it may, on 7 November 2016, applicant received a radio communication from the 1st respondent to the effect that he had been discharged from the police service with effect from the 2nd day of November 2016. Aggrieved, applicant filed his notice of intention to appeal to the 2nd respondent on 7 November 2016.  On 14 November 2016 applicant filed his notice and grounds of appeal with the 2nd respondent.</p> <p>The 1st respondent did not reinstate the applicant pending the determination of his appeal.  Instead, in a letter dated 24 March 2016, served to his legal practitioners, applicant was advised that the 2nd respondent had turned down his appeal.  He was not informed of the reasons despite asking for them verbally.  According to him the failure to supply him with reasons is unlawful and wrongful.  Further, he also contended that the respondents’ failure or refusal to reinstate him into the police force is unlawful and wrongful.  Applicant also argued that the decision of the 2nd respondent is not only “unlawful but unconstitutional in that this body is not recognized by law”.</p> <p>Finally, applicant’s prayer for a declaratur is as follows;</p> <p>“1.       The discharge of the applicant from the Police Service by the 1st respondent be and is hereby declared wrongful and unlawful and accordingly set aside.</p> <ol> <li>The 1st respondent is ordered to reinstate the applicant to the Police Service and the 2nd respondent is ordered to regularise the applicant’s reinstatement by the 1st respondent forthwith.</li> <li>The 1st respondent is ordered to pay costs of suit.”</li> </ol> <p><strong>Ex-Constable Makumbi</strong></p> <p>Facts</p> <p>            This is a court application for a declaratur on the following background facts:  Applicant was discharged from the Police Service on 1st September 2016.  After being served with a discharge radio on 27 October 2016 he immediately filed a notice of intention to appeal together with a notice of appeal plus grounds of appeal with the 2nd respondent in terms of section 51 of the Police Act (Chapter 11:10).  Applicant was reinstated into the Police Service on the 10th of November 2016.</p> <p>            On 24 March 2017, applicant was informed of his appeal’s dismissal through a letter served to his legal practitioners.  The letter did not contain reasons for the 2nd respondent’s decision notwithstanding having made a “verbal request” to be furnished with reasons.</p> <p>            Unhappy with the outcome applicant filed this application seeking the following relief:</p> <p>“1.       The discharge of the applicant from the Police Service by the 1st respondent be and is hereby declared wrongful and unlawful and accordingly set aside.</p> <p>2.         The 1st respondent is ordered to reinstate the applicant into the Police Service and the 2nd respondent is ordered to regularize the applicant’s reinstatement by the 1st respondent forthwith.</p> <p>3.         The 1st respondent is ordered to pay costs of suit”.</p> <p>The following issues are common to both applications.</p> <ol> <li>Whether or not applicants were properly furnished with reasons for the dismissal of their appeal by the 2nd respondent?</li> <li>Whether or not the Police Service Commission is properly constituted in terms of the Constitution?</li> </ol> <p>The third issue is whether or not Ex-Sergeant Mafenya noted his appeal against discharge within the prescribed time frame?</p> <p>Both applicants seek a declaratur as their relief.  Section 14 of the High Court Act (Chapter 27:06) provides as follows:</p> <p>“The High Court may, in its discretion at the instance of any interested person enquire 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>            In <em>Mpukuta</em> v <em>Motor Insurance Pool &amp;Ors</em> 2012 (1) ZLR 192 (H) at p192E – G, this court per NDOU J held that:</p> <p>“The condition precedent to the grant of a declaratory order is that the applicant must be an interested person in the sense of having 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 relate to an existing future or contingent right.  The court will not decide abstract academic or hypothetical questions unrelated to such interest.  That is the 1st stage in the determination of the court.  At the second stage of the enquiry, it is incumbent upon the court to decide whether or not the case in question is a proper one for the exercise of its discretion under s14 of the High Court Act (Chapter 7:06).  In this regard, some tangible and justifiable advantage in relation to the applicant’s position, with reference to an existing future or contingent legal right or obligation, must appear to flow from the grant of the declaratory order”.  See also <em>Munn Publishing (Pvt) Ltd</em> v <em>ZBC </em>1994 (1) ZLR 387 (S).</p> <p>            Applying the law to the facts, I find that both applicants as ex-employees have a direct and substantial interest in the lawfulness or otherwise of their dismissal.  In my view, the applicants’ cases pass the 1st stage of the inquiry.</p> <p>            In respect of the 2nd stage, the initial question is whether there exists some “tangible and justifiable advantage in relation to the applicant’s position with reference to an existing, future or contingent right or obligation that appear to flow from the grant of the declaratory order sought”.  In order to answer this question, I must turn to the merits of the applications.  I shall deal with the 3rd issue first, namely whether or not Ex-Constable Mafenya’s appeal was properly filed.  The appeal procedure is set out in section 15 (1) of the Police (Trials and Boards of Inquiry) Regs 1965.  The section provides;</p> <p>            “15(1)  A member who wishes to appeal in terms of s51 of the Act shall:</p> <ul> <li>Within twenty-four hours of being notified of the decision of the Commissioner General of Police, give notice to his Officer Commanding of his or her intention.</li> <li>Within seven (7) days of being notified of the decision of the Commissioner General of Police, lodge with him or her officer commanding a notice of appeal in writing setting out fully the grounds upon which his or her appeal is based and any argument in support thereof.</li> <li>Upon receipt of a notice given in terms of paragraph (a) of subsection (1) the member’s superior officer shall notify the Chief Staff Officer (Police) by the most expeditious means.” (my emphasis)</li> </ul> <p>In the present case the applicant properly gave notice of his intention to appeal through his officer in charge.  However, applicant failed to give notice of appeal and grounds thereof in writing to his officer commanding in accordance with s15 (1) (b) <em>supra.</em>  This is fatal to his appeal because the provision is peremptory in that compliance is mandatory.  In his founding affidavit Constable Mafenya concedes that he filed his grounds of appeal with the 2nd respondent on 14 November 2016.  Failure to comply with the provisions of section 15(1) of the regulations renders the appeal a nullity.</p> <p>Section 51 of the Police Act (Chapter 11:10) states:</p> <p>“51.     Appeal</p> <p>A member who is aggrieved by any order made in terms of section forty-eight or fifty may appeal to the Police Service Commission against the order within the time and in the manner prescribed and the order shall not be executed until the decision of the Commissioner had been given”. (my emphasis)</p> <p>            <em>In casu</em>, Ex-Constable Mafenya did not comply with this section by not filing his appeal “in the manner prescribed”.  In my view, the 1st respondent was not obliged to invoke the provisions of section 51 where like in the present case the applicant has filed a defective appeal.  In other words, the 1st respondent was not notified of the appeal through the proper legal channels.  In the circumstances the respondents’ failure to reinstate Constable Mafenya is not a gross violation of the law.</p> <p>            As regards the 1st issue both applicants have contended that they were not furnished with reasons for the dismissal of their appeals by the 2nd respondent. The precise argument is that the 2nd respondent violated section 68 of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 (the Constitution).</p> <p>            The section provides:</p> <p>            “68.     Right to administrative justice</p> <ol> <li>Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable proportionate, impartial and both substantively and procedurally fair.</li> <li>Any person whose right, freedom, interest or legitimate expectation has been adversely affected by administrative conduct has the right to be given promptly and in writing the reasons for the conduct.</li> <li>…” (my emphasis)</li> </ol> <p>Both applicants submitted that they verbally requested to be furnished with reasons for the decision to dismiss their appeals but none were supplied.  The 2nd respondent denied receiving such request from the applicants.</p> <p>In <em>Commissioner South African Police Service and Ors</em> v <em>Maimela &amp; Anor</em> 2003 (S) SA 450T, DU PLESSSIS J while interpreting a similar provision in the South African Constitution, held that;</p> <p>“When interpreting section 33 (c) of the Constitution, it must be borne in mind that the right to be furnished with reasons is very wide, it applies to every person whose right or interests are affected by any administrative action.  In many instances the persons affected may not be interested in the reasons.  The practical interpretation of section 33(c) is that reasons must be furnished to affected persons who assert the right to be furnished with reasons.  The purpose of section 33(c) is not to oblige administrative decision-makers to furnish without a request, reasons from every single administrative action taken in this country”. (See Klaaren (in Chaskalson &amp; Others Constitutional Law of SA (Revision Services, 1999) at 25-19). (my emphasis)</p> <p>            In <em>Mahachi &amp; Ors</em> v <em>Officer Commanding Matabeleland South Province &amp; Anor</em> HB-146-16, it was held that;</p> <p>“It is my considered view that section 68 gives a person a right to prompt and written reasons for any administrative action taken. It therefore follows in my view that where administrative action is taken, and a party is adversely affected by it, he has a right to request for and be promptly supplied with written reasons.  I do not hold the view that an affected party should sit back, and not ask for reasons only to say the decision is unfair as no reasons were provided.  Section 68 of the Constitution of Zimbabwe simply endorsed and incorporated into the Supreme Law of the land, the provisions of the Administrative Justice Act [Chapter 10:28].</p> <p> </p> <p>In my view, the Administrative Justice Act <em>(supra) </em>is an act of Parliament that compliments the provisions of section 68 of the Constitution.  It actually provides in its preamble as follows:</p> <p>“To provide for the right to administrative action and decisions that are lawful, reasonable and procedurally fair, to provide for the entitlement to written reasons for administrative action or decisions----.”</p> <p> </p> <p>Section 3(1) (b) of the same Act provides thus:</p> <p>“An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person shall ---</p> <p>(c)        where  it has taken the action, supply written reasons therefore within the relevant period specified by law, or if there is no such specified period after being requested to supply reasons by the person concerned.”</p> <p> </p> <p>       What comes out from the above provisions is that the affected person must 1st request for reasons of a decision before the decision-maker can be deemed to have failed to comply with section 68 <em>supra.  In casu</em>, both applicants have simply proffered bold and unsubstantiated claims that they verbally requested for reasons.  I remain unconvinced that a verbal request can be effectively made to an institution like the 2nd respondent.  Applicants have the onus to prove that they requested for reasons and none were forthcoming.  Both have dismally failed to discharge the onus in that they have not identified the person to whom their requests were made.  They have not supplied the place or date when such requests were made.  I do not share the view that in terms of the Constitution, the applicants are entitled to be furnished with reasons even without the need to request for same.  I come to the conclusion that the applicants did not request for reasons and the respondents’ failure to furnish reasons for their decisions does not make those decisions null and legally untenable.</p> <p>            Finally, both applicants contended that the 2nd respondent’s commission is not properly constituted as is required by section 227 of the Constitution.  The argument here is that the 2nd respondent was not appointed by the President making the whole commission unconstitutional.  In my view this matter was not fully argued and the information supplied is so scanty that I am unable to decide one way or the other.  Applicants may file an application with the Constitutional Court if they so wish.</p> <p>            In the circumstances, I find that the applications have no merit.  Accordingly, I make the following order.</p> <p>            Both applications be and are hereby dismissed with costs.</p> <p> </p> <p><em>Mugiya &amp; Macharaga Law Chambers</em>, applicants’ 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/bulawayo-high-court/2019/1/2019-zwbhc-1.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24845">2019-zwbhc-1.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2019/1/2019-zwbhc-1.pdf" type="application/pdf; length=142711">2019-zwbhc-1.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/administrative-law">ADMINISTRATIVE LAW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/administrative-decisions-and-acts">Administrative decisions and acts</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal">Appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/declaratory-application">Declaratory application</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/fair-administrative-justice">Fair administrative justice</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/fair-hearing">Fair hearing</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/natural-justice">Natural justice</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rules">rules of</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review">Review</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/audi-alteram-partem-rule">Audi alteram partem rule</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/decision-statutory-authority">decision of statutory authority</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></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/bulawayo-high-court/2016/146">Mahachi &amp; Others v Officer Commanding Matabelelend South Provinve N.O. &amp; Another (HB 146-16 HC 750-16 XREF HC 765-16) [2016] ZWBHC 146 (09 June 2016);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1995/2">Police Act [Chapter 11:10]</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 class="field-item odd"><a href="/zw/legislation/act/2004/12">Administrative Justice Act [Chapter 10:28]</a></div></div></div> Thu, 28 Feb 2019 09:24:08 +0000 admin 9282 at https://old.zimlii.org S v Mundiwata (HH 21-19, B1605/18) [2019] ZWHHC 21 (18 January 2019); https://old.zimlii.org/zw/judgment/harare-high-court/2019/21 <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>LETFORD TAWANDA MANDIWATA</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>WAMAMBO J</p> <p>HARARE, 11 December 2018 &amp; 18 January 2019</p> <p> </p> <p><strong>Bail Application</strong></p> <p> </p> <p>Applicant in person</p> <p><em>E Nyazamba</em>, for the respondent</p> <p> </p> <p>            WAMAMBO J: The applicant appeared before me applying for bail pending appeal which application I dismissed. He has now requested my reasons for so doing.</p> <p>            These are the reasons</p> <p>            Applicant was convicted of contravening s 65 of the Criminal Law (Codification &amp; Reform Act) [<em>Chapter 9:23</em>]- rape.</p> <p>            What appears to be either common cause or not strongly objected to is as follows:</p> <p>            The female complainant was a juvenile at the time of the commission of the offence.</p> <p>            Complainant is married to appellant’s young brother or cousin.</p> <p>            On 24 December 2013 complainant and her husband were doing some chores at their homestead when applicant approached them. They were in fact ferrying bricks from their parents’ home to their homestead.</p> <p>            Applicant requested for some tobacco from complainant’s husband. Complainant who had changed the position where her husband usually left the tobacco went into the house to obtain  the tobacco for applicant.</p> <p>            From this point onwards the evidence is heavily contested from and on both sides.</p> <p>            Complainant testified that when she went into the five bedroomed house to collect tobacco for applicant, he followed her inside and raped her. She gives a graphic account of how the rape occurred including the fact that applicant throttled her during the ordeal.</p> <p>            Complainant also testified that by the time she emerged from the house after the rape and when her husband came from ferrying bricks she reported the rape to him in a tearful state. She later proceeded to her mother’s house where she made another report of rape to her in the presence of her husband.</p> <p>            One of the differences in the testimonies is that complainant says when she was raped apart from applicant there was only herself and her husband at the homestead. On the other hand applicant claims that there was the presence of complainant’s younger sisters, Action Zvevanhu and/or one Desire.</p> <p>            Applicant claims in his defence outline that he is being implicated in this matter because complainant’s husband occupied the family house with his wife to the detriment and disadvantage of other family members. Further that complainant’s husband refused other family members the right to plough the family fields and instead brought his in laws to occupy the houses and plough in the family fields.</p> <p>            There is a slight confusion on the real relationship existing between complainant and the applicant. The State outline reflects that the applicant is complainant’s husband’s brother. Complainant herself and applicant both confirm that applicant is her husband’s brother. However complainant’s husband testified that applicant is actually his cousin elder brother. Not much would normally turn on this difference. It could for instance be a mistake in interpretation made by the interpreter, or the common mistake that a cousin is actually referred to as a brother, being some form of translation from our indigenous language.</p> <p>            The circumstances of this case seem to suggest that whichever relationship exists between complainant’s husband and applicant is a close family relationship of either cousin or brother.</p> <p>            The medical report compiled after the examination of complainant reflects that penetration was definite and further gives out that “evidence of hymenal tears difficult to elucidate following rape in a woman who has recently delivered or sexually active.”</p> <p>            The findings do notmiss the background that complainant as a sexually active married woman and who had recently given birth.</p> <p>            The applicant in his notice of appeal which is titled “Notice of appeal against conviction and sentence” draws attention to 6 grounds, none of which is against the sentence imposed. For that reason there is effectively no appeal against sentence.</p> <p>            I will thus consider the application only as a matter of bail pending appeal against conviction the notice of appeal reflects 6 grounds of appeal against conviction which I will summarise below:-</p> <ul> <li>The trial court erred in accepting the complainant’s complaint of “sexual intercourse….and its contents” as meeting the requirements of consistence when it materially differed with complainant’s evidence.</li> <li>The trial court erred when it failed to appreciate that appellant was falsely implicated by complainant and her husband given the State’s inconsistent evidence.</li> <li>The trial court erred in finding corroborative evidence to complainant’s testimony where the “corroborative evidence” was materially contradictory and inconsistent with complainant’s evidence.</li> <li>The trial court misdirected itself by relying on a medical affidavit when the deponent to the medical affidavit failed to clearly explain his opinion.</li> <li>The trial court erred when it dismissed appellant’s defence on the basis of appellant’s “mere” failure to win the court <em>a quo’s</em> faith contrary to how defences are considered in criminal matters.</li> <li>The trial court misdirected itself in dismissing appellant’s defence on the basis of a stereotype defence without basis that a wife cannot risk her marriage by fabricating serious charges without careful consideration of the nature and the circumstances of the alleged offence.”</li> </ul> <p> </p> <p>Clearly bail pending appeal is not just for the taking. I sit to determine the application where there is already a conviction. The presumption of innocence that applies at the pre conviction stages has been overtaken by events or a main event, namely the conviction.</p> <p>In <em>Tigere Majani and Another</em> v <em>The State</em> HH 642/17 J at p 2 said</p> <p>“In determining an application for bail pending appeal, the court is guided by several considerations. The first one is that the convict no longer enjoys the same rights to be released on bail on reasonable conditions pending appeal as are accorded to an unconvicted trial prisoner under s 50 (6) of the Constitution……..”</p> <p> </p> <p>The convict’s rights to bail after conviction does not arise as a fundamental human right as guaranteed in Chapter 4 of the Constitution. The powers of the court to admit a convicted person to bail pending appeal as in this case do not derive from the Constitution but from the Criminal Procedure and evidence Act [<em>Chapter 9:07</em>]. Section 23 of the said enactment provides for the limited instances wherein the convicted and sentenced person may be admitted to bail by the magistrate or by a judge of this court or the Supreme Court as provided therein. In casu the applicant’s application falls under the provisions of s 123 (1) (b) ii. Whenever an application is made to the court or judge and the same is based or grounded in a specific provision of an enactment the applicant especially the represented one should always cite the provision of the law relied upon. This assists the judicial officer to appreciate the basis of the application and the powers which can be exercised in relation to the application.”</p> <p> </p> <p>I undoubtedly agree with the above.</p> <p>Section 123 (1) (b) (ii) reads as follows:</p> <p>“123 (1) Subject to this section, a person may be admitted to bail or have his conditions of bail altered-</p> <ol> <li> </li> </ol> <p>(b) in the case of a person who has been convicted and sentenced by a magistrate court and who applies for bail</p> <ol> <li> </li> </ol> <p>(ii) pending the determinationby the High Court of his appeal :or</p> <p>by a judge of the High Court or by any magistrate within whose area of jurisdiction he is in custody…</p> <ul> <li> </li> </ul> <p> </p> <p>It is of importance to note that the burden of proof in a bail pending appeal application lies on the accused or appellant in terms of s 115C (2) (b) of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>] which reads as follows:-</p> <p>“(2) Where an accused person who is in custody in respect of an offence applies to be admitted to bail-</p> <ol> <li> </li> </ol> <p>(b) after he or she has been convicted of the offence, he or she shall bear the burden of showing on a balance of probabilities that it is in the interest of justice for him or her to be released on bail.”</p> <p> </p> <p>In <em>Tigere Majani and Another</em> v <em>The State</em> (<em>supra</em>) J went on to say the following at p 3</p> <p>“As correctly noted by Tsanga J in <em>Denis Schiz</em> v <em>S</em> HH234/17 where bail is sought after sentence, the court considers the prospects of success on appeal and the likelihood of abscondment.  The Supreme Court reinforced these principles in <em>S</em> v <em>Dzawo </em>1998 (1) ZLR 536. Other factors relevant to consider are the convict’s rights to liberty and the likely delay before the appeal is disposed of. The delay aspect is relevant because it would amount to an injustice if bail were refused and the applicant serves the entire sentence only for the sentence to be set aside or reduced to levels lower than the period already served”</p> <p> </p> <p>            In considering this application I will apply the principles as enunciated in the above cited cases.</p> <p>            The respondent is of the considered view that an application of the principles enunciated in <em>S</em> v <em>Banana 200</em> (1) ZLR 607 (S) would lead to the impression that complainant is a credible witness whose evidence has sufficient corroboration as provided for in our law.</p> <p>            The respondent deals specifically with the grounds of appeal as they appear on the notice of appeal. Respondent is of the view that the second, third, fifth and sixth grounds are  not clear and specific.</p> <p>            According to respondent the fourth ground of appeal is arguable as it relates to an inconclusive medical affidavit necessitating the oral testimony of the Doctor who deposed to the said affidavit.</p> <p>            I have reminded myself that I am only dealing with the application for bail pending appeal and not the appeal itself. I am also mindful that the burden of proof lies on the appellant.</p> <p>            Having read the whole file of the whole proceedings and considering the principles and related case law I have come to the conclusion that the applicant has not proven his case as <em>per</em></p> <p>s 115 C (2) B of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>]. The reasons are as follows:</p> <p>            Upon reading the record my mind was locked on the grounds of appeal as formulated. I firstly find for the purposes of this application that the grounds as formulated appear to be vague and do not for the most part reflect “clear and specific” grounds as is required by the rules.</p> <p>            The starting point is the credibility of complainant. The trial court’s view that complainant is a credible witness is borne by the record of proceedings.</p> <p>            I find that complainant did not only impress as a witness but that her testimony appears to be corroborated by her husband’s testimony on the relevant and important issues. It is of note that complainant was not challenged by applicant in cross examination.</p> <p>            Applicant was happy to ask complainant a few peripheral questions, when she had incriminated him in her testimony.</p> <p>            The complainant as the wife to applicant’s brother placed her in a tricky position. A young married woman who had been raped by the husband’s relative could not possibly find it easy to make a report. The evidence reflects that complainant had to report to her own mother after the rape. The finding that complainant would not risk her marriage by making a false report is but one of the many reasons given for finding complainant’s testimony credible. The finding appears to resonate with the totality of the evidence and the probabilities. The difference in the testimonies as pointed out by the applicant seems not to be already material to the matter. The medical affidavit was to all intents and purposes neutral. Calling the deponent thereof to testify would probably not advance the matter any further for the State or for the defence.</p> <p>            Thus a consideration of the full circumstances of the matter even without recourse to the medical report in my view appears to support the finding reached by the trial court that applicant is guilty of the offence charged.</p> <p>            In the circumstances I find that there are slim prospects of success on appeal.</p> <p>            The application is dismissed.</p> <p> </p> <p> </p> <p> </p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p>           </p> <p>Cr</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/21/2019-zwhhc-21.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=23174">2019-zwhhc-21.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/21/2019-zwhhc-21.pdf" type="application/pdf; length=168851">2019-zwhhc-21.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/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rape">Rape</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/bail">BAIL</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal">Appeal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-bail">application for bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/conditions-which-bail-granted">conditions on which bail granted</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/grant-bail">grant of bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grounds-refusal-bail">grounds for refusal of bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/pending-appeal-bail">pending appeal for bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/principles-be-observed-bail">principles to be observed (bail)</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></div> Wed, 20 Feb 2019 10:52:32 +0000 admin 9280 at https://old.zimlii.org ZUPCO v Packhorse Services (Pvt) Limited (HH 37/19, HC 4673/17) [2019] ZWHHC 37 (23 January 2019); https://old.zimlii.org/zw/judgment/harare-high-court/2019/37 <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>ZIMBABWE UNITED PASSENGER COMPANY</p> <p>versus</p> <p>PACKHORSE SERVICES (PVT) LTD</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAKONI J</p> <p>HARARE, 8 February 2018 &amp; 23 January 2019</p> <p> </p> <p><strong>Opposed</strong></p> <p><em>T Magwaliba,</em> for the applicant</p> <p><em>T Mafukidze &amp; A Moyo</em>, for the respondent</p> <p> </p> <p> </p> <p>            MAKONI J: The applicant approached this court seeking an order that the respondent pays to it the sum of USD972 323.00 in terms of an agreement executed between the parties on 20 June 2013. The background to the matter is clearly set out in the applicant’s heads of argument and I will borrow heavily from them.</p> <p>3.1       In case number HC 45218/07 (judgment number HH 299/12) the High Court handed down a judgment against the applicant in favour of the respondent. the judgment ordered the applicant to pay the respondent the sum of</p> <p>US$763 068.00 together with interest at the rate of %5 per annum and costs of suit.</p> <p>3.2       The applicant though intending to appeal against the judgment was out of time. Accordingly, it instituted an application for leave to appeal out of time in the Supreme Court in case number SC 155/13.</p> <p>3.3       In case number SC 192/13, the applicant also instituted an urgent application for stay of execution of the High Court’s judgment pending the determination of the application for leave to execute pending appeal in case number SC           155/13.</p> <p>3.4       The respondent consented to the grant of leave to appeal out of time and extension of time within which to appeal as sought by the applicant in case number SC 155/13.</p> <p>3.5       By the time that agreement was reached, in order to stave off execution against its property, the applicant had already paid the sum of US$1000 000.00 to the respondent’s legal practitioners Messrs Kantor and Immerman in respect of a portion of the judgment debt, the Deputy Sheriff’s commission and the auctioneers charges.</p> <p>3.6       Terms were therefore agreed in respect of the payment of the balance pending the determination of the appeal against the High Court judgment.</p> <p>3.7       In clause 5 of the agreement, it was agreed that:</p> <p>            <strong>“In the event of ZUPCO succeeding in the appeal, Packhorse shall refund ZUPCO all amounts paid to it in terms of this agreement.”</strong></p> <p>3.8       On 23 February 2017, the Supreme Court granted the applicant’s appeal in case number SC 216/13 (judgment number SC 13/17).</p> <p>4.         Upon the grant of the appeal in favour of the applicant on 23 February 2017, in terms of clause 5 of the agreement between the parties the respondent became obliged to refund all amounts which had been paid by the applicant pursuant to the said agreement. The total amount paid by 23 February was the sum of</p> <p>US$972 323.00.</p> <p>            After the Supreme Court judgment and on 24 February 2017, the applicant wrote a letter to the respondent demanding a refund of the sum of US$972 320.00. The respondent disputed liability resulting in the applicant instituting the present proceedings.</p> <p>            The application is opposed on four grounds, <em>viz</em></p> <ol> <li>The respondent acted as an agent for a disclosed principal in the transaction. Payments made to the transaction were therefore remitted to the principal.</li> </ol> <p>If the applicant intends to obtain any refund it must of necessity show</p> <ul> <li>that it is not indebted to Scania(respondent’s disclosed principle).</li> <li>that there was no legal or factual basis for the payments</li> <li>look to Scania for any payment made without cause.</li> </ul> <ol> <li>The applicant will be unjustly enriched if the relief sought is granted. The applicant received the buses and utilised them in a business without paying for them, it now intend to obtain money either from the agent or the principal.</li> <li>The claim is <em>contra bonos mores. </em>The effect of the applicant’s claim is that it wishes to extract the money for free. This runs contrary to all acceptable commercial moral standards.</li> <li>The claim in violation respondent’s constitutional rights.</li> </ol> <p>The claim is in violation of s 71 of the Constitution of Zimbabwe Amendment (No 20) Act 2013.</p> <p>The respondent raised of a further defence of non-joinder of Scania South Africa in its Heads of Argument.</p> <p>Mr <em>Magwaliba</em> submitted that the applicant’s case is predicted upon an agreement entered into between the parties. That agreement has clause 5 which is specific that if the applicant succeeds in the Supreme Court, then the respondent was obligated to pay back all the amounts that it received from applicant together with interest and costs. The Supreme Court granted judgment in applicant’s favour and the respondent is now obliged to pay as per its undertaking. A demand for payment was made and the respondent did not oblige. The applicant is therefore entitled to judgment in terms of the draft order.</p> <p>            As regards the issue of joinder of Scania, he submitted that the applicant has no claim against Scania. The undertaking to refund the money was made by the respondent in its own right. Further he submitted that r 87 of the High Court Rules 1971 enjoins the court to resolve issues as between the parties that appear before it. <em>In casu</em> no relief is being sought against Scania. The matter can be resolved in the absence of Scania.</p> <p>Regarding the issue of agency of the respondent, Mr <em>Magwaliba</em> submitted that the agreement in issue was entered into by the respondent in its capacity as a principal. It does not refer to the respondent as the agent of an undissolved principal.  On the constitutional argument he submitted that it does not arise as it is Scania which sold the buses and it has a right to sue the applicant if is so minded. He further contended that Scania compromised its rights in an agreement on p 136 of the record. The sum agreed was paid in full and final settlement to Scania.</p> <p>            Mr <em>Mafukidze</em> submitted that the agreement must be interpreted in its context. He referred to <em>Natal Joint Municipal Pension Fund</em> v <em>Entubeni Municipality</em> 2012 (4) SA 593 (SCA) where it was stated that interpretation is a process of attributing meaning to the words used in a document be it legislation, or a contract, having regard to the context prove by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. The context that he referred to <em>in casu</em> was the economic situation prevailing in Zimbabwe in 2002 regarding foreign currency shortages. This resulted in the cash cover agreements. The agreement in issue was entered into in the context the litigation whereby the applicant was contending that it did not buy the buses from the respondent. The respondents were agents of a principal.</p> <p>            What is at the centre of dispute between the parties is the Deed of Settlement entered into by the parties on 20 June 2013. Clause 5 of the agreement provides.</p> <p>            “In the event of ZUPCO succeeding in the appeal, Packhorse shall refund ZUPCO all      amounts paid to it in terms of this agreement.”</p> <p> </p> <p>            It is common cause that the applicant succeeded in the Supreme Court. The amounts that were paid to the respondent in terms of the agreement are not in issue.</p> <p>            The agreement was made pursuant to a High Court judgment granted in favour of the respondent. A reading of the summons and declaration in HC 4218/07 and the Deed of Settlement reflects that the respondent was suing and acting in its own right.</p> <p>            The respondent seeks to resile from the agreement on the basis of the various grounds it raised in its opposition.</p> <p>            I would want to agree with the applicant’s position as put forward by Mr <em>Magwaliba</em>.</p> <p>            The parties are agreed on the law regarding interpretation of contracts as laid out in Natal Joint Municipal pension Fund supra where the following was stated</p> <p>“The present state of the law can be expressed as follows. Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective not subjective.</p> <p>A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation. In a contractual context it is to make a contract for the parties other than the one they in fact made. The “inevitable point of departure is the language of the provision itself”16 read in context and having regard to the purpose of the provision and the background to the preparation and production of the document.”</p> <p> </p> <p>            One must have regard to the context provided by reading the particular provision in the light of the document as a whole and the circumstances attended upon its coming into existence. <em>In casu</em> the relevant provision to be interpreted is clause 5 of the agreement. In my view, the circumstances attended upon its coming into existence would be the High Court judgment and the pending Supreme Court case. One would also have to have regard to the findings made by the Supreme Court. The High Court made a finding that the agreement sale of the buses was between the applicant (respondent) and the defendant (applicant) and that the applicant should pay the respondent the amount in issue.</p> <p>            The Supreme Court found otherwise on p 16 of the cyclostyled judgment where it states the following</p> <p>“<em>In casu, </em>the evidence placed before the court a quo suggests that the cash cover agreements are not the agreements of sale. The evidence supports the conclusion that the transaction of the sale of the buses was between the appellant and Scania with the respondent only coming into the pictures at Scania’s instance, and only for the purpose of safeguarding the due performance of the agreement of sale of the buses, I conclude that the respondent did not proffer any evidence which substantiate its claim that it transacted with the appellant in respect of the purchase of the buses. It thus did not prove that which it had alleged.</p> <p> </p> <p>Further credence is lent to this probability by the fact that the documentary evidence placed before the court a quo suggests that the appellant’s obligation to pay the purchase price for the buses was to Scania. Furthermore, that the Zimbabwe dollar amounts were held by the respondent so as to ensure the execution of the appellant’s obligation towards Scania. The case cover agreement record that the Zimbabwe dollar amounts were to be released upon the appellant’s fulfilment of its obligations to Scania. The appellant’s version is thus further shown to be the more likely of the two.”</p> <p> </p> <p>            It concluded by finding that the respondent did not prove that the transaction of the sale of the buses was between it and the applicant. It dismissed the respondent’s claim. With that disposition clause 5 of the agreement kicked in and that is the basis upon which applicant’s case is predicated on.</p> <p>            The above findings by the Supreme Court defeat all the defences raised by the respondent. Respondent’s case is that it was an agent of Scania South Africa and all the payments it received were on behalf of Scania and were remitted to it. Scania should have been joined to the present proceedings. Further the Applicant would be unjustly enriched if the relief sought is granted as it would receive a refund of the purchase price and retain the buses.</p> <p>            The issue that the respondent acted as an agent of Scania are not borne out by the Supreme Court judgment. The furthest the Supreme Court went was to find that the agreement of sale of the busses was entered into directly between Scania and the applicant. The respondent only came into the picture afterwards for the purpose of ensuring that the cash cover, which was in terms of separate agreements, would be utilized for purposes of obtaining payment.</p> <p>The issue of joinder would also be defected. The dispute in the suit can be resolved as between the parties without the involvement of Scania. The undertaking to refund the money was made by the respondent in its own right and not as an agent for Scania. If the respondent felt that Scania’s joinder was necessary for purposes of resolving the dispute between the parties it was at liberty to join it. Resolution of the present dispute will not impact on Scania’s rights against the applicant if any, and Scania can still enforce such rights as the resolution of this dispute cannot be pleaded as <em>res judicata</em> by the Applicant against Scania.</p> <p>            The issues of public policy and violation of property rights cannot be sustained in view of the findings by the Supreme Court. It would be up to Scania, and not the respondent to raise such concerns. As it stands, there is evidence on record that Scania compromised its rights in terms of the agreement of sale and was paid in full in terms of the compromise.</p> <p>            In view of the above the applicant has made out a case for the relief sought and the respondent has not established a basis to resile from the agreement.</p> <p>            I will therefore make the following order.</p> <ol> <li>Judgment be and is hereby entered in favour of the applicant against the respondent for the sum of US$972 323.00 together with costs of suit and interest at the rate of 5% <em>per </em>annum from 27 February 2017 (the date of delivery of the letter of demand) to the date of full payment.</li> </ol> <p> </p> <p> </p> <p> </p> <p><em>Magwaliba &amp; Kwirira</em>, applicant’s legal practitioners</p> <p><em>Kantor &amp; Immerman</em>, respondent’s legal practitioners</p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/37/2019-zwhhc-37.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=23775">2019-zwhhc-37.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/37/2019-zwhhc-37.pdf" type="application/pdf; length=167230">2019-zwhhc-37.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/appeal">Appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-supreme-court">Appeal to Supreme Court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/contract">CONTRACT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/breach">Breach</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/liability-breach-contract">liability for breach of contract</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/remedies">remedies</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/execution-practice-and-procedure">Execution (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/stay-execution">stay of execution</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Thu, 31 Jan 2019 08:01:41 +0000 admin 9257 at https://old.zimlii.org Prosecutor-General of Zimbabwe v Masvaire & 2 Others (HH 5-19, CA 1010/12) [2019] ZWHHC 5 (28 November 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/5 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>THE PROSECUTOR-GENERAL OF ZIMBABWE</p> <p>versus</p> <p>RICHARD MASVAIRE</p> <p>and</p> <p>PETER MAJAYA</p> <p>and                                                                                            </p> <p>TOBACCO SALES LIMITED</p> <p>Represented by Washington Matsaire</p> <p> </p> <p> </p> <p> </p> <p>THE HIGH COURT OF ZIMBABWE</p> <p>HUNGWE and WAMAMBO JJ</p> <p>HARARE, 22 May 2018 and 28 November 2018</p> <p> </p> <p> </p> <p> </p> <p><strong>Appeal by the Prosecutor General</strong></p> <p> </p> <p><em>Mrs S. Fero,</em> for the appellant</p> <p><em>ABC Chinake</em>, for the respondents</p> <p> </p> <p> </p> <p>            HUNGWE J: This is an appeal by the Prosecutor-General against the verdict of the magistrate discharging the respondents at the close of the State case in case number R931-933/14. The three respondents were the accused in a trial on a charge of fraud before the regional magistrate at Harare. At the close of the case for the State the respondents successfully applied for their discharge in terms of s 198 (3) of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>]. Unhappy with the discharge of the accused at the close of the State case, the Prosecutor General sought and was granted leave to appeal the decision of the regional magistrate. This appeal is therefore consequent to that leave.</p> <p>            At the hearing of this appeal, Mr <em>Chinake</em> for the respondents, raised an objection <em>in limine</em> that the order granting leave to file heads of argument out of time by the appellant was  improperly obtained. As such, the appellants are barred as they are hopelessly out of time within which to file same. Consequently, appellant is barred. There was no appeal before the court.</p> <p>            For this objection Mr <em>Chinake</em> relied on a series of events which followed the grant of leave to appeal against the discharge at the close of the State case. This court granted the said leave under HH 816-15 on 21 October 2015. Mr <em>Chinake</em> submitted that the appellant did not file heads of argument until well after the expiration of a year. After that period, the appellant had sought and failed to secure the extension of leave within which to file heads of argument before Mangota J.</p> <p>            Somehow a “strange” order was later obtained, almost a year later, from Chigumba J. <em>Mr Chinake,</em> for the respondents, criticized the order as “strange” and “curious” on the basis that the wording of the operative paragraph was incomprehensible; that it was not signed; and that when the court application seeking that order was filed, the respondents had duly opposed the grant of the order. Notwithstanding the notice of opposition, the respondents were not advised of the date of the hearing before Chigumba J.  The resultant order does not reflect whether or not the respondents were in default. He contended, on behalf of the respondents, that this “curious” order was not procedurally obtained as the respondents were not heard before a determination to grant the order was made. As such this court must disregard it and hold that in the interests of justice, and in light of the undue delay in the prosecution of the appeal, the appellant is barred for failure to file and prosecute the appeal in time.</p> <p>            Mrs <em>Fero</em>, for the appellant, explained away and cleared the air regarding the factual contention put forward by the respondents. She rightly conceded that the appellant indeed did not prosecute the appeal as expeditiously as one would have expected from a diligent litigant. She did not say why this occurred but went on to give a chronology of events which occurred thereafter. She stated that after the grant of leave to appeal nothing apparently happened attendant to the matter. After this period of inaction, it was decided to seek, by way of a chamber application, an extension of time within which to file heads of argument. That application was filed with the Registrar of this court and served on the respondents. It was placed before Mangota J.</p> <p>            At the hearing before Mangota J, the learned judge directed that the application be filed in Form 29B. Consequently, the applicant formally withdrew the matter. Later, a chamber application in Form 29 B was filed with the Registrar of this Court and served on the respondents in terms of Order 32 Rule 241 of the High Court Rules, 1971. This is the application that was placed before Chigumba J in which the respondents filed a notice of opposition. On 18 May 2017 Chigumba J granted the order sought in chambers without hearing both parties. The Registrar then dispatched the order to the then applicant, the present appellant. In filing his heads of argument, the appellant attached the order to the heads of argument for the purpose of demonstrating that the heads had been filed within the time stipulated in the order. There was nothing “strange”, “curious” or “sinister” about the order by Chigumba J.</p> <p>            It is clear that respondents laboured under the mistaken belief that after appearance before Mangota J, the appellant was obliged to make a formal court application to secure the extension of time within which to file the heads of argument. In fact, the appellant made a chamber application, as he was entitled to do, and the matter was placed before Chigumba J. Applications filed in terms of Order 32 Rule 241, do not always require a formal set down for hearing of oral submissions nor is the appellant required, as a rule, to file heads of argument. Heads may be filed if the parties believe this may assist the judge in the determination of the application, or if the judge so requests. Even where the judge makes such a request on both parties, it does not necessarily follow that the matter will be formally set down in terms of r 236 of Order 32. Rule 245 is, out of practice, utilized by the placing of the matter before a judge who is expected to consider the papers without delay. Because of the need to act expeditiously in the disposal of such chamber applications, a practice has developed that, generally, no oral argument is invited nor is the subsequent order given accompanied by reasons. This is so notwithstanding the fact that heads of argument may have been gratuitously filed in support of opposing but apparently contentious viewpoints. Such an approach to procedural applications is acceptable in most other jurisdictions as appropriate for the efficient dispatch of matters on the roll.</p> <p>It would appear from the record that the chamber application for an extension of time within which to file heads of argument in Form 29B was placed before Chigumba J. She considered the papers in chambers and signified the grant of the application by appending her signature to the draft order on 18 May 2017. The observation that the order is incomprehensible is correct. However, that on its own, does not mean that the order extending the time to file heads was not properly sought and granted. The reference to “be and is hereby appreciated” is clearly an error of drafting which escaped both the learned judge as well as the Registrar who issued it. In the context of the application clearly the learned judge meant that the order “be and is hereby granted”. Any other construction of the order would render the order <em>brutum fulmen.</em> Where, such as here, there is a vague or unclear order, a construction or interpretation which gives effect to the intention of the drafter ought always to be preferred.</p> <p>I may add here that the Act and the Rules both do not provide any time limits within which to seek leave to appeal against a discharge at the close of the State case. Once leave to appeal had been granted, as indicated above, it was up to the appellant to prosecute it with reasonable dispatch. Whilst no time limits are indicated in both the High Court Act, [<em>Chapter 7:06</em>] and the Supreme Court (Magistrate Court)(Criminal Appeals) Rules, 1979, expectation is that the appellant prosecutes his appeal speedily so as not to compromise the respondent’s constitutionally entrenched rights to a fair trial within a reasonable time.</p> <p>            In the present matter, the appellant needed to file heads of argument. The purpose of heads of argument is well-known. They serve to give the court and the opposing party an opportunity to prepare themselves for the hearing. Heads of argument outline the submissions relied upon by a party and must set out the authorities, if any, which that party intends to cite for the contention that will be advanced at the hearing of the appeal. Generally, where no heads of argument are filed by the appellant within the time prescribed, the appeal is regarded as having been abandoned. It is dismissed by the Registrar as a matter of course. In the present matter, in light of the observation that there are no time limits prescribed for the Prosecutor-General to have filed his heads of argument, it follows that once leave to appeal is granted, the matter remains alive until it is determined either through the hearing of the appeal itself or though the determination of an application made to dismiss the appeal for want of prosecution. It is important to note that, unlike with criminal appeals in general, the Registrar has no power to dismiss for want of prosecution an appeal by the Prosecutor-General. This implies that the respondent would need to make a formal court application for such dismissal, if minded to do so. In the present matter the respondents did not do so. As matters stand therefore, this appeal is extant, and stands to be determined on the merits.</p> <p>            For these reasons we dismissed the points raised <em>in limine </em>and ordered argument on the merits to be received.</p> <p>            Mrs <em>Fero</em> advanced four grounds of appeal worded as follows:</p> <ol> <li>The court <em>a quo</em> erred and misdirected itself when it acquitted the respondents on the basis that the “actual complainant” must be ZAZU Investments (Pvt) Limited and not the 6<sup>th</sup> state witness in his personal capacity. This was despite cogent evidence on record that the said witness Yakub Ibrahim Mohammed was a shareholder and director ZAZU (Private) Limited and had been instrumental in concluding the agreement in question and produced a company resolution that he was appearing before the court <em>a quo</em> in his representative capacity.</li> <li>The court <em>a quo</em> erred and misdirected itself by making a finding that there was “no complainant” and therefore no complaint before it simply because ZAZU Investments (Pvt) Ltd was not cited in the state papers as the complainant when it remained unchallenged throughout the proceedings that ZAZU Investments (Pvt) Ltd as represented by Yakub Ibrahim Mohammed was prejudiced by the respondent’s misrepresentations.</li> <li>The court <em>a quo</em> erred and misdirected itself when it acquitted the respondents when the evidence on record proved a <em>prima facie</em> case against them. The evidence proved that the respondents did not disclose to the complainant, Yakub Ibrahim Mohammed, the ZAZU Investments representative that the land on which the flower growing business was being conducted had been gazetted despite having known of the fact in 2008. The complainant acted on the misrepresentation to his prejudice.</li> <li>The court <em>a quo</em> misdirected itself when it reasoned that putting the respondents in their defence would be “perpetuating underhand dealings upon underhand dealing” when there was no basis for making such a finding and most importantly when such is not the legal test for placing an accused person on his defence. The evidence revealed a <em>prima facie</em> case and the respondents must have been placed on their defence.</li> </ol> <p>Mr <em>Chinake,</em> in answer to the concise and detailed heads in support of the grounds of appeal, dwelt more on the points he had addressed <em>in limine </em>than on a substantive response to the grounds of appeal advanced by the appellant. He submitted that the appeal is devoid of merit and prayed for the dismissal of the appeal on the basis of the points he had raised <em>in limine.</em></p> <p>It remains for me to consider whether in fact the learned trial magistrate erred in law when she discharge the respondents at the close of the State case in terms of s 198 (3) of the Criminal Procedure and Evidence Act, <em>[Chapter 9:07].</em></p> <p>In an application of this nature, the test is whether the prosecution has, at the close of its case, presented evidence upon which a reasonable court might convict. If so, the accused is put on his defence. If not, the court must discharge the accused. Once this finding is made, the Court has no discretion in the matter. The weight of authority in this regard is to this effect. See <em>S v Kachipare</em><em>; S v Tsvangirai</em></p> <p>Section 198 (3) of the Criminal Procedure and Evidence Act provides;-</p> <ul> <li>198 (3) If at the close of the case for the prosecution the court considers that there is <strong>no evidence</strong> that the accused committed the offence charged in the indictment, summons or charge, or any other offence of which he might <strong>be convicted</strong>  thereon, it shall return a verdict of <strong>not guilty</strong>.” (my own emphasis).</li> </ul> <p> </p> <p>The test be applied in such an application has been laid down in a long line of cases. It may be summarized+ as being that the court should discharge the accused at the close of the case for the prosecution where:-</p> <ul> <li>There is no evidence to prove an essential element of the offence charged;</li> <li>v <em>Bvuma &amp; Anor</em></li> <li>There is no evidence on which a reasonable court acting carefully might properly convict;</li> </ul> <p> <em>Attorney-General</em> v <em>Mzizi</em>;</p> <ul> <li>The evidence adduced on behalf of the State is so manifestly unreliable that no reasonable could safely act on it;</li> </ul> <p><em>Attorney-General or Tarwireyi</em></p> <p>            In <em>S</em> v <em>Nyarugwe</em> HH 42-16 I had occasion to comment on the test to be applied in the following words.</p> <p>“In all the cases the cardinal guide is that the State would have failed to prove a <em>prima facie</em> case against the accused. A <em>prima facie</em> case is a case where one can say there has been shown, on the evidence led, a probable cause to put the accused on his defence. Generally, probable cause or a <em>prima facie</em> case, is made where all the essential elements of the offence charged or any other offence on which the accused may be convicted have been proved on a balance of probability. At this stage the test is not whether there is proof beyond reasonable doubt but whether on a balance of probability it can be argued that the essential elements constituting the offence charged or any other offence have been proved.”</p> <p> </p> <p>The legal position therefore, in application brought in terms of s 198 (3), may be</p> <p>summarised as follows: </p> <ul> <li>an accused person is entitled to be discharged at the close of the case for the prosecution if there is no possibility of a conviction other than if he enters the witness box and incriminates himself;</li> <li>in deciding whether the accused is entitled to be discharged at the close of the State case, the court may take into account the credibility of the State witnesses, even if only to a limited extent;</li> <li>where the evidence of the State witnesses implicating the accused is of such poor quality that it cannot be relied upon, and there is accordingly no credible evidence on record upon which a court, acting carefully, may convict, an application for discharge should be granted.</li> </ul> <p> </p> <p>See also <em>State </em>v <em>Shrien Prakash Dewani</em> CC 15/2014 (Constitutional Court of South Africa).</p> <p>At that stage of a trial, the evaluation of the evidence is different from that involved at the end of the trial. It is a <em>sui generis</em> interlocutory application, which typically raises a question of law and not fact. A court seized with such an application must bear this in mind when adjudicating an application in terms of s 198 (3) of the Criminal Procedure and Evidence Act.</p> <p>            The words “no evidence” have been interpreted to mean no evidence upon which a reasonable court acting carefully may convict. Again the “no evidence” test is <em>sui generis</em>.</p> <p>See <em>S </em>v <em>Shuping. </em>It will be seen that at this stage there is not an onus in the usual sense of the law, and specifically not an onus on a <em>prima facie</em> basis to be met by the State. “<em>Prima facie”</em> is defined as that: if a party on who lies the burden of proof goes as far as he reasonably can in producing the evidence and that evidence calls for an answer, it is <em>prima facie</em> evidence. In the absence of an answer from the other side, it becomes conclusive. Therefore, once a prima facie case has been established the evidential burden will shift to the accused to adduce evidence in order to escape conviction. However the burden of proof will remain with the prosecution.</p> <p>            Mrs <em>Fero</em>, for the appellant submitted that in coming to the conclusion that “the actual complainant” must be ZAZU Investments (Pvt) Ltd (“ZAZU”) and not Yakub Ibrahim Mohamed (“Yakub”) the court erred. This is demonstrated by the further conclusion that there was no complainant before that court when the evidence indicated that ZAZU, as represented by the said Yakub, was conducting the affairs of that company and was authorised to represent it in the proceedings. The evidence which remained unchallenged was that ZAZU, as represented by Yakub had been prejudiced by the misrepresentations made by the respondents during the negotiations and conclusion of the transaction involving the immovable property in question. He had paid over the money on the basis of the misrepresentations made to him by the respondents or on respondents’ behalf. That misrepresentation consisted of the failure to disclose the fact in respect of ownership status of the land. That fact was that the land in question had been gazetted for acquisition by the State therefore the respondents’ interests had been diminished to the extent of the State interest consequent to the gazetting of the land. But for the non-disclosure of this fact, the ZAZU Investments represented by Yakub Mohamed, would not have entered into the agreement or parted with the money which was paid over in pursuance of the agreement. Where parties are negotiating in good faith, the duty to make full disclosure of the subject of the sale, as here, cannot be gainsaid. The respondents clearly had a duty to make full disclosure of all the facts regarding the land or the shares of the company whose major asset was the land in issue. That company conducted its floriculture business on the land which had, to the knowledge of the respondents or respondents’ representatives, been gazetted for resettlement. Silence on the part of a person who has a duty to speak, knowing that another person has been or will be misled by the silence constitutes misrepresentation. Therefore <em>prima facie</em>, all the essential elements of the offence charged had been proved. In the judgment, the learned magistrate did not advert to this crucial aspect in the determination of the application before her. In this regard she erred on a point of law.</p> <p>            Accordingly, since the essential elements of the offence charged had, <em>prima facie,</em> been proved, the court <em>a quo</em> erred in discharging the respondents at the close of the case for the prosecution. The allegations set out in the charge had been confirmed in the evidence led from the State witnesses. There was therefore a <em>prima facie</em> case against the respondents which disentitled them to a discharge at the close of the case for the State.</p> <p>            The first witness confirms the fact that the land had been acquired by the State in 2002. The second state witness who held an offer letter corroborated this fact. The failure by the respondents, or respondents’ representative,  to disclose such a material issue regarding the status of the land constituted one of the essential elements of fraud as defined in s 135 of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>].</p> <p>            The reasoning of the court <em>a quo</em> regarding the absence of a complainant is flawed. Clearly, the court <em>a quo</em> did not consider the curative provisions in s 203 of the Criminal Procedure &amp; Evidence Act. If the court <em>a quo</em> considered that the correct complainant, from the evidence was the company ZAZU, then section 203 of the Criminal Procedure and Evidence Act permitted her to read into the indictment that amendment since both the company and Yakub were before it. Any discrepancy between the indictment and the evidence would have been cured by the evidence. Her sweeping statements about “perpetuating underhand dealings upon underhand dealings” are not borne out by the facts of the case and in any event misplaced and entirely wrong. A reading of the evidence does not support this conclusion.  </p> <p>            Mr <em>Chinake</em> indicated that he did not wish to make any submissions in light of my remarks in HH-816-15, an earlier judgment between the parties. He, however, submitted that an appropriate order, at law, cannot be a remittal to the same magistrate for continuation of trial before the same magistrate since, in his view, that court was now <em>functus officio</em>. He also submitted that since the court had already pronounced itself on the guilt or otherwise of the respondents, it should not be asked to make a different finding.</p> <p>            Two issues arise from Mr<em> Chinake’s</em> submissions. The first issue is whether upon discharging an accused person in terms of s 198(3) of the Criminal Procedure and Evidence Act a trial court becomes <em>functus officio</em>.</p> <p><strong>Is the court <em>a quo functus officio</em>?</strong></p> <p>I assume that the respondents’ argument that the court is <em>functus officio</em> is premised on the wording or phraseology appearing in s 198 (3) of the Criminal Procedure and Evidence Act. That section contains the following phraseology:</p> <p>            “…. it shall return a verdict of <strong>not guilty</strong>.” (my own emphasis).”</p> <p> </p> <p>            <em>Mr Chinake</em>, for the respondents, argued that such a verdict amounts to an acquittal of the accused. Therefore, having pronounced itself on the guilt or otherwise of the appellants, that court is rendered <em>functus officio.</em> But, even so, is the accused acquitted where he is discharged at the close of the case for the prosecution? In administrative law, the principle was stated thus:</p> <p>“In general, the <em>functus officio</em> doctrine applies only to final decisions, so that a decision is revocable before it becomes final. Finality is a point arrived at when the decision is published, announced or otherwise conveyed to those affected by it.”</p> <p> </p> <p>In civil procedure this court has held as follows:</p> <p>“In general, the court will not recall, vary or add to its own judgment once it has made a final adjudication on the merits. The principle is stated in <em>Firestone South Africa (Pty) Ltd v Genticuro AG</em> 1977(4) SA 298 (A) at 306, where TROLLIP JA stated:</p> <p>‘The general principle, now well established in our law, is that, once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement it. The reason is that it thereupon becomes functus officio: its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased.’” (per GIBSON J in Kassim v Kassim)</p> <p> </p> <p>            In criminal procedure it would appear that until a final determination on the merits is made, an order under s 198(3) falls to be considered as interlocutory. In <em>R </em>v<em> Eigner</em> the magistrate, after convicting an 18 year old, postponed the passing of sentence for three years on condition of good behaviour and supervision by a probation officer. The accused joined the army and supervision became impossible. The probation officer then wrote to the magistrate highlighting the fact that it was no longer possible to supervise the accused. The magistrate took the view that he was functus officio. On review YOUNG, J stated:</p> <p>“In my judgment the magistrate is not <em>functus officio</em> in the matter. The magistrate's court is seized of the case until a final order is made imposing a sentence or discharging Eigner without passing sentence. In the nature of things circumstances may change, calling for an alteration in the conditions attached to the postponement of sentence; and, if the original order was made by a magistrate's court, the application for a variation should obviously be made to a magistrate's court, whether or not the magistrate who made the order is available.”</p> <p> </p> <p>            In my view, there is a clear difference between an acquittal and a discharge. Although the words “not guilty and acquitted” and “not guilty and discharged” may be used interchangeably when an applicant in terms of this section in successful, the correct position at law is that because the ruling is only interlocutory at that stage, the court cannot return a final verdict. Therefore, even where a court is satisfied that there is no evidence, at that stage, upon which a reasonable court might convict, the true position is that the accused is only discharged and not acquitted. Section 198 (3) permits the court to discharge an accused before the end of a full trial. A full criminal trial, encompasses the evidence led on behalf of the State and that led on behalf of the accused. A finding of not guilty after a full trial results in an acquittal in the legal sense of the word. The consequence of an acquittal are that the accused cannot be tried again on the same facts and the same charge. In that sense an acquittal is a judicial decision taken after a full inquiry establishing the innocence of the accused. In other words, an acquittal bars a second trial on the same facts and for the same offence, or on the same facts for any other offence for which different charges from the one made against the accused might have been made.</p> <p>            On the other hand our law provides that where a person has been discharged he can still be rearrested and committed for a further inquiry. An order for discharge simply implies that there is no <em>prima facie</em> evidence against the accused to justify further inquiry in relation to the charge. Such an order does not establish anything regarding the guilt of the accused. In such cases a discharge does not bar the institution of fresh proceedings when new or better evidence becomes available against the accused. An instance of this is when the State procedurally withdraws charges against an accused person before he has pleaded to a charge. Whilst the accused person is literally free and is released from court, such a discharge may or may not mean that his innocence has been established. It only means that at that stage there is insufficient evidence to proceed with a trial or to keep him on remand. A refusal of remand also has the same effect. The court, in essence, is putting State on terms; either prosecute the accused or release him.  If the charges are not withdrawn, the court invariably refuses to keep an accused on remand. This does not mean that the accused’s innocence has been established.</p> <p>            In my view, when a court discharges an accused in terms of s 198 (3) of the Criminal Procedure and Evidence Act, it is merely stating the fact that no <em>prima facie</em> evidence has been established to warrant a full trial. It is upholding the accused’s right to a fair trial. This is, in my view, the more reason why a careful exercise of judicial discretion is required. There is need to balance the interests of the accused as well as those of the due administration of justice. Only after full trial can the innocence of an accused person be pronounced finally.</p> <p>            In the event, I find that a successful appeal against the verdict of not guilty rendered in terms of s198 (3) of the Criminal Procedure and Evidence Act deprives finality to the proceedings in the trial court. The trial court is not therefore <em>functus officio</em> as it is obliged to continue with the trial.</p> <p>            The second issue raised by Mr Chinake does not require as detailed a scrutiny. An order remitting the matter for continuation is not a directive to the court a quo to render a conviction. Where an appeal of this nature succeeds, its value is in identifying an error of law committed in the earlier proceeding which, in the resumed hearing, the presiding officer ought to take note of for the benefit of a fair trial. The rationale for this is that in an appeal from a decision discharging an accused at the close of the case for the prosecution, generally, there would have been an error of law committed by the court a <em>quo</em> either in its conclusion on question of facts or of law or both law and fact. Consequently, an order such as must follow in the present case must be accompanied by reasons or a judgment correcting the error committed in the interlocutory ruling discharging the accused. A court of law is expected to appreciate that an order for continuation of trial is not a direction to convict the accused, but to apply the rules and principles of law in the adjudication process judicially, fairly and properly. To my mind, a trier of fact is expected to be influenced only by the facts and the law. The question of the court having already made up its mind does not arise. It is not expected to.</p> <p>            Consequently I make the following order:-</p> <p>            1.  The appeal be and is hereby allowed.</p> <p>            2.  The verdict of not guilty be and is hereby set aside.</p> <p>            3.  The matter is hereby remitted to the court of the magistrate for continuation of trial      with the appellants being put on their defence.</p> <p> </p> <p> </p> <p>WAMAMBO J ……………………..agrees</p> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>National Prosecuting Authority</em>, Appellant’s legal practitioners</p> <p><em>Kantor and Immerman</em>, respondents’ legal practitioners</p> <p> </p> <p> </p> <p>           </p> <div> <div> <p>In terms of s 198 (4); see also High Court Act, s 44 (b) and SCR r 27A (1).</p> </div> <div> <p>1998 (2) ZLR 271 (S)</p> </div> <div> <p>2005 (2) ZLR 88 (H)</p> </div> <div> <p>1987 (2) ZLR 96 @ 102</p> </div> <div> <p>1991 (2) ZLR 321 @ 323</p> </div> <div> <p>1997 (1) ZLR 575 @ 576.</p> </div> <div> <p>1983 (2) SA 119 (B).</p> </div> <div> <p>s 198(3) of the Criminal Procedure and Evidence Act, [Chapter 9:07]</p> </div> <div> <p>Cora Hoexter, Administrative Law in South Africa (2<sup>nd</sup> ed) (2012) at 278</p> </div> <div> <p>1989 (3) ZLR 234 @242</p> </div> <div> <p>1965 (3) SA 773 (SR)</p> </div> <div> <p>R v Eigner supra note 9 @ 774</p> </div> </div> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/5/2019-zwhhc-5.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=34966">2019-zwhhc-5.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/5/2019-zwhhc-5.pdf" type="application/pdf; length=246506">2019-zwhhc-5.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/appeal">Appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-prosecutor-general">Appeal by Prosecutor-General</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-high-court">Appeal to High Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-matter-appeal">Criminal matter (Appeal)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-magistrates-court">appeal from magistrates court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-high-court">Appeal to High Court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-attorney-general-leave-appeal-against-sentence">application by Attorney-General for leave to appeal against sentence</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></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/2015/42-0">S v Nyarugwe (CRB 198/15) [2016] ZWHHC 42 (03 November 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/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></div> Fri, 25 Jan 2019 07:09:43 +0000 admin 9252 at https://old.zimlii.org S v Mahachi (HB 4-19, B1645/18) [2019] ZWHHC 4 (23 November 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/4-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>MICHAEL MAHACHI</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>HUNGWE J</p> <p>HARARE, 23 November 2018</p> <p> </p> <p> </p> <p> </p> <p><strong>Appeal against refusal of bail pending trial</strong></p> <p> </p> <p> </p> <p><em>M. Hogwe, </em>for the appellant</p> <p>Mrs <em>S Fero</em> with <em>M Reza, </em>for the respondent</p> <p> </p> <p> </p> <p>            HUNGWE J: This is an appeal against the decision of the magistrate denying the appellant bail pending trial.</p> <p>            The appellant appeared in the court of the magistrate on 17 November 2018 facing two counts. The first count alleged that the accused corruptly concealed from a principal, a personal interest in a transaction as defined in s 173 (1) of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>]. The second count was one of criminal abuse of duty as a public officer as defined in s 174 of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>].</p> <p>            The allegations from which these two counts arose are set out in the Police Form 242 commonly called Request for Remand Form. It states:</p> <p>“During the period extending from 2008 to 2010, City of Harare and Augur Investments (Pvt) Ltd signed a Memorandum of Understanding and a Memorandum of Agreement worth US$80 million dollars for upgrading and construction of the Harare Airport Road, and the accused engaged Classique Project Management, a company in which he is one of the Directors without disclosing his personal interest and secondly, abusing duty as a public officer by corruptly and fraudulently engaging Augur Investment (Pvt) Ltd without carrying due diligence in duties (sic). See attached (Annexure).”</p> <p> </p> <p>The evidence linking accused to the Commission of the offence, according to this</p> <p>form 242, is given as:-</p> <ol> <li>The Memorandum of Understanding and Agreement entered between City of Harare and Augur Investments (Pvt) Ltd.</li> <li>Shareholder Agreement between City of Harare and Augur Investments (Pvt) Ltd.</li> <li> </li> <li>Proof of payment to Classique Project Management.</li> </ol> <p>Nothing is said to have been recovered.</p> <p> </p> <p>The reasons given for opposing bail by the Police are set out under section C of Form 242. That section suggests possible reasons which the State may rely on in opposing bail. One necessarily assumes that police carry out investigations before effecting an arrest. As such they will be aware of the suspect’s predilections to behaviour that militates against the grant of bail. They will naturally be expected to lay this information before the court seized with an application for bail as was the court <em>a quo</em>. Out of the possible six grounds for opposing bail, police relied on three. The reasons relied on by the State in the present case, as reflected in that section, are the following: </p> <p>            “1. The accused can relocate to any country if granted bail.</p> <p> </p> <p>  2. The accused still holds a position of influence as former Chairperson of Council and is likely to interfere with witnesses from City of Harare. </p> <p> </p> <p>  3. Accused is facing serious charges and is likely to abscond.” </p> <p> </p> <p>The court <em>a quo</em> heard the submissions made on behalf of the applicant as well as those made on behalf of the State in opposition to the application. After the submissions were made the court dismissed the application for bail pending trial. It is important that I recite the full judgment here. It says:-</p> <p> </p> <p><strong><em>Ruling</em></strong></p> <p><em>This is an application for bail. The State opposed the application on the basis that this is a serious offence and that accused has the potential to interfere with investigations and also that he can comfortably escape from the jurisdiction of the court and start his life somewhere.</em></p> <p><em>On the other hand, the defence argued that the State has not placed before the court evidence to show that there are serious allegations.</em></p> <p><em>On the issue of interference they have also not placed before the court evidence of such and all what the State gave are bold allegations not substantiated.</em></p> <p><em>Bail is now a Constitutional right u</em><em>nless there are cogent and compelling reasons.</em></p> <p><em>In the instant matter indeed the allegations against the accused are of a very serious nature.</em></p> <p><em>In terms of s 117 (2) (a) (iv), the Court is empowered to deny bail where there is a likelihood that if the accused is released on bail that will undermine or jeopardise the objectives or proper functioning of the Criminal justice system.</em></p> <p><em>The accused is indeed the owner of the company in issue. It goes without saying that he has the capacity to influence his workers.</em></p> <p><em>Moreso the accused is not a man of straw. He indeed can remove himself from the jurisdiction of their court and leave comfortably anywhere in the world as he is not a man of straw.</em></p> <p><em>                                                                                                R Mugwagwa</em></p> <p><em>                                                                                                Provincial Magistrate</em></p> <p> </p> <p>            The appellant submitted that the judgment of the court <em>a quo</em> is liable to be set aside as the learned magistrate seriously misdirected herself. The misdirection relied on is that the magistrate, in the assessment of the application before her, did not address her mind to the issues that she was expected to. As an example, although the Court <em>a quo</em> correctly, adverted to the fact that bail is a constitutional right, the refusal of bail when there were no compelling reasons to do so, constituted a serious misdirection. This demonstrates that the learned magistrate only paid lip service to the fact that an accused is entitled to bail as of right.</p> <p>Bail is a means of procuring the release of a prisoner from legal custody upon posting sufficient security, for his appearance at a time and place designated, to answer to a criminal charge. The court gives liberty to the prisoner and, at the same time, secures the intent of the law to punish the offender, by insuring his future attendance in court and by compelling him to remain within the jurisdiction of the court.</p> <p>This qualified freedom was devised to meet conflicting interests of society and the individual. Its primary purpose is to prevent the punishment of an innocent person and yet, at the same time, administer criminal justice. Such an allowance is favoured by law, being based on the cardinal principle of justice that every man is presumed innocent until proven guilty. However it is an equally accepted principle of society that the guilty should suffer. These two principles work against each other from the time of arrest until the suspect is finally adjudged in a competent court. Any imprisonment before that decision would punish an innocent person. Therefore in order to meet these conflicting interests, an interval of time is necessary to ascertain the truth of the accusation and to set in motion machinery fashioned for that purpose. During the interval bail is generally allowed for all offences except those set out in the third and fifth schedules in Part 1 and Part 2 respectively. The rights of an accused person are firmly entrenched in the Constitution of Zimbabwe. Section 70 protects the right of any person accused of an offence to be presumed innocent until proven guilty. As a corollary to that right, section 117 entrenches the entitlement to bail as follows:-</p> <p><strong>117 Entitlement to bail</strong></p> <p>(1) Subject to this section and section 32, a person who is in custody in respect of an offence<strong> shall be entitled to be released on bail</strong> at any time after he or she has appeared in court on a charge and before sentence is imposed, unless the court finds that it is in the interests of justice that he or she should be detained in custody.</p> <p>(2) The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice</p> <p>where one or more of the following grounds are established—</p> <p>(<em>a</em>) where there is a likelihood that the accused, if he or she were released on bail, will—</p> <p>(i) endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; or</p> <p>(ii) not stand his or her trial or appear to receive sentence; or</p> <p>(iii) attempt to influence or intimidate witnesses or to conceal or destroy evidence; or</p> <p>(iv) undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system; or</p> <p>(<em>b</em>) where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine public peace or security. (my emphasis)</p> <p> </p> <p>It is manifestly evident that entitlement to bail exists as of right. As a constitutional right, its enjoyment can only be limited if exceptional circumstances are established. The legislature in its wisdom set out elaborated situations in which the right to bail would be forfeited in s 117 (2).</p> <p> </p> <p>            The question that falls for decision in this court is whether, on the facts before it, the court erred and misdirected itself in denying the appellant bail.</p> <p>            In order for this court to make a determination on the issue, this court is restricted to the reasons for the judgment rendered by the court <em>a quo</em>, which judgment is quoted verbatim above.</p> <p>            The specific right of an accused person to be presumed innocent until proven guilty, is sacrosanct and is the basis for the entitlement to bail set out in s 117 (1) of the Criminal Procedure and Evidence Act, [<em>Chapter</em> <em>9:07</em>]. Section 117 (1) uses peremptory language</p> <p> </p> <p>            Where the court refused or declines to comply with the peremptory provisions of s117 (1) above, it can only do so if certain specified grounds are established. These are set out in  s 117 (2) (a). That subsection provides:</p> <p>(2) The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of the following grounds are established—</p> <p>(<em>a</em>) where there is a likelihood that the accused, if he or she were released on bail, will—</p> <p>(i) endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; or</p> <p>(ii) not stand his or her trial or appear to receive sentence; or</p> <p>(iii) attempt to influence or intimidate witnesses or to conceal or destroy evidence; or</p> <p>(iv) undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system; or</p> <p>(<em>b</em>) where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine public peace or security.</p> <p>            The factors to be taken into account in considering whether the grounds referred to in s 117 (2) (a) are set out in s 117 (3) (a) to (e).</p> <p>            In the present matter it is clear from the brief reasons given in the judgment that the court held that appellant ought to be denied bail because;</p> <ul> <li>he can easily relocate out of the jurisdiction;</li> <li>he can influence witnesses;</li> <li>his release will undermine or jeopardise the objectives or proper functioning of the criminal justice system.</li> </ul> <p>Put differently the court anchored the dismissal of the application for bail on grounds set out in s 117 (2) (a) (ii) to (iv).</p> <p>In respect of 117 (2) (a) (ii), the first ground for denying bail, it was not in dispute that the appellant has strong ties with Zimbabwe and no other jurisdiction. (s117 (3) (b) (i)). His known assets are in Zimbabwe (s117 (3) (b) (ii)). He has only one travel document, a Zimbabwean passport. (s117 (3) (b) (iii)). It was accepted that the allegations are serious but that was not a basis to refuse bail as it can be counter-balanced with the measures set out in s 117 (3) (vi).</p> <p>As for the second ground regarding his ability to influence witnesses, (s117 (2) (a) (iii)), the State did not intimate, either in form 242 or elsewhere, that there are witnesses which are known to appellant who he can influence or intimidate. It would appear that, on its own admission, the State will, at the trial, rely more on documentary evidence and other witnesses outside the immediate sphere of appellant’s influence. In any event, it appears to me that if appellant was minded to influence any witnesses, he would have done it over the ten year period since the commission of the alleged offence. Whatever evidence that stood the test of time would be that evidence in the State or City of Harare’s custody. Any proposed witness would have been long influenced, if such witnesses exists.</p> <p>Regarding the third ground upon which bail was refused, s 117(2) (a)(iv), that his release will undermine or jeopardise the objectives or the proper functioning of the criminal justice system, no averment was made by the State at the hearing of the application, nor was any evidence led to substantiate this or the other grounds. Sight should not be lost that in every application of this nature, the State, rather than the applicant, bears the onus to establish the grounds why bail should not be granted, as long as the applicant is not charged with the scheduled offences. This appears to have been lost to the court <em>a quo</em> as both it and the State adopted a lackadaisical approach to the matter.</p> <p>Consequently, and importantly, the court <em>a quo</em> did not demonstrate that State had established any of the grounds required to be established by the Criminal Procedure and Evidence Act. The record shows that not even the Investigating Officer was called to testify on any of the grounds set out in section C of the Form 242.</p> <p>In my judgment this explains the lack of depth in the reasons given for the judgment.</p> <p>A court which gives an order adverse to the interest of a party before it is expected to give reasons for its decision. Those reasons must be detailed enough, and at least sufficient, to demonstrate the rationale of the judgment. To do otherwise will be to invite derision of the order. The reader will be left to think that it was capricious and therefore irrational.</p> <p>In fact the facts in this matter suggest that appellant knew of these allegations at least a week before he was called by the authorities. When he was eventually called, he agreed to meet the officials at his offices at an agreed time and date. He together with his lawyer, waited for them but they did not pitch up. The officials advised him telephonically, to report at their offices on the other side of town the same day. He complied and went to those offices. He was interrogated and detained at a local police station where he slept. He appeared in court the following day, 17 November 2018. He was then taken to court where he expected to be granted bail. He was not granted bail for the obscure reasons given by the court.</p> <p>For these reasons I find that the court <em>a quo </em>erred at law by failing to find that the State had not given compelling reasons why bail should be refused. I therefore find that the appellant is a proper candidate for bail.</p> <p>There will be an order in terms of the draft proposed by the appellant.</p> <p><em>Hogwe, Dzimirai &amp; Partners</em>, appellant’s legal practitioners</p> <p><em>The National Prosecuting Authority</em>, respondent’s legal practitioners     </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/4/2019-zwhhc-4.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=32070">2019-zwhhc-4.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/4/2019-zwhhc-4.pdf" type="application/pdf; length=152549">2019-zwhhc-4.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/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/bail">BAIL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal">Appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-bail">application for bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/conditions-which-bail-granted">conditions on which bail granted</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grant-bail">grant of bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/grounds-refusal-bail">grounds for refusal of bail</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> Wed, 23 Jan 2019 11:02:11 +0000 admin 9251 at https://old.zimlii.org S v Dube & Another (HB 265/18, HCA 91/17) [2018] ZWBHC 265 (22 October 2018); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2018/265 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>ZENZO DUBE</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>REVERENCE DUBE</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>THE STATE</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MAKONESE &amp; MOYO JJ</p> <p>BULAWAYO 22 OCTOBR 2018</p> <p> </p> <p><strong>Criminal Appeal</strong></p> <p> </p> <p><em>S. Mawere</em> for the appellants</p> <p><em>Ms N. Ndlovu</em> for the respondent</p> <p>            <strong>MAKONESE J:        </strong>The appellants appeared before a magistrate sitting at Gwanda Magistrates’ Court facing one single count of stock theft, that is to say a contravention of section 114 (2) (a) of the Criminal Law (Codification and Reform) Act Chapter 9:23.  The allegations against them were that sometime in November 2016, together with Peter Ncube (who was convicted and sentenced before the appellant’s trial), they stole complainant’s 8 head of cattle from Dwala grazing lands.  Two of these beasts found their way back to the owner while the remaining 6 were not recovered.  The appellants pleaded not guilty but following a full trial they were both convicted and sentenced to 15 years with 3 years suspended on the usual conditions of  future good conduct.  A further 3 years was suspended on condition the appellants compensated the complainant the value of the 6 missing beasts.</p> <p>            Dissatisfied with both the conviction and sentence, the appellants now appeals to this court.</p> <p>The state does not support the conviction and contends that the state failed to prove its case against the appellants beyond reasonable doubt.  After perusing the record of the trial proceedings in the lower court, it is abundantly clear that there were several inconsistencies in the state case.</p> <p>It is trite that in criminal law the state bears the onus of proof.  The state led evidence from four state witnesses.  The complainant was the first to testify.  He told the court that after losing his cattle in November 2016 he was approached by one Cosmas Shoko who told him that he had met Peter Ncube, Nhlanhla and Ree driving head of cattle that fitted the description of the ones he was missing.  When he was probed further on why in his statement to the police there was the name “Richard” mentioned, and then altered and replaced by the name “Ree”, the witness stated that he was not sure of the suspect’s full names.  He had later learnt from Peter Ncube that the name “Ree” was an acronym for the name Reverence Dube (2nd appellant).  Upon taking the witness stand <strong>COSMAS SHOKO</strong> testified that he knew the appellants prior to the commission of the offence.  He was also known to Peter Ncube.  On the day he met the three driving complainant’s cattle he only spoke to one Peter Ncube.  This witness conceded that in his statement to the police the only person he mentioned was Peter Ncube.  The witness disputed that he ever mentioned the name Nhlanhla to the complainant.  It was not disputed that Nhlanhla was once heavily assaulted for stock theft in respect of the same missing beasts.  The evidence revealed that the identity of the persons who were seen driving the cattle whilst in the company of Peter Ncube was not ascertained beyond reasonable doubt.  The discrepancy between the state witnesses’ testimony was material and dealt a fatal blow to the state case.</p> <p>Peter Ncube, who led to the arrest of the appellants, having implicated them after his conviction, made a dramatic u-turn in court.  In his testimony during evidence in chief this witness completely exonerated the appellants.  The convicted accomplice instead, averred that he had stolen the beasts in question with one Godwin Ndou.  The witness gave hostile evidence to the state, case.  No effort was made to impeach his testimony.  The evidence of the convicted accomplice’s testimony coupled with the unreliable evidence of the other state witnesses left the state case with insufficient evidence to sustain the convictions.</p> <p>On the requirements of proof beyond reasonable doubt reference is made to; <em>Chudu </em>v <em>The State</em> HB-214-17; <em>Sv Makanyanga</em> 1996 (2) ZLR 231 and <em>R v Difford</em> 1937 AD 370. In cases involving the identity of a perpetrator of a crime, it is the duty of the court to exercise special caution, more particularly where there is only one single witness who has made the visual identification.  The issue has been exhaustively dealt with in the following Supreme Court decisions: <em>Mutters &amp; Anor</em> v <em>State S</em>-166-89; <em>Makoni &amp; Ors</em> v <em>The State</em> S-67-89; <em>Nkomo &amp; Anor</em> v <em>The State</em> 1989 (3) ZLR 117 (S) and <em>Madziwa </em>v <em>The State</em> S-191-90.</p> <p>For the aforegoing reasons we are satisfied that the appeal is merited.</p> <p>Accordingly it is ordered that:</p> <ol> <li>The appeal is upheld.</li> <li>The conviction and sentence is hereby set aside.</li> </ol> <p> </p> <p>Moyo J ……………………………… I agree</p> <p> </p> <p><em>Morris-Davies &amp; Co</em>. appellants’ legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/265/2018-zwbhc-265.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=19811">2018-zwbhc-265.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/265/2018-zwbhc-265.pdf" type="application/pdf; length=79173">2018-zwbhc-265.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/appeal">Appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-high-court">Appeal to High Court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-matter-appeal">Criminal matter (Appeal)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-magistrates-court">appeal from magistrates court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-high-court">Appeal to High Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/theft">Theft</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></div> Mon, 21 Jan 2019 09:18:49 +0000 admin 9244 at https://old.zimlii.org S v Ndlovu & Another (HB 266/18, HCA 72/18) [2018] ZWBHC 266 (22 October 2018); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2018/266 <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>MPHOLISI NDLOVU</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>TELMORE DUBE</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>THE STATE</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MAKONESE &amp; MOYO JJ</p> <p>BULAWAYO 22 OCTOBER 2018</p> <p> </p> <p><strong>Criminal Appeal</strong></p> <p> </p> <p><em>R. Ndlovu</em> for the appellants</p> <p><em>Mrs C. C. Muhwandavaka</em> for the respondent</p> <p>            <strong>MAKONESE J:        </strong>This is an appeal against the decision of the Regional Magistrate sitting at Bulawayo on the 21st of May 2017.  The appeal is against both conviction and sentence.  The appellants were convicted and sentenced of contravening section 12 of the Criminal Law (Codification and Reform) Act (Chapter 9:23), i.e. robbery.  It is alleged that on 15th April 2017 and at 3rd Avenue Pharmacy, Bulawayo, both appellants, one or more of them unlawfully and intentionally used threats of violence by pointing a firearm, immediately before taking US$642,00 in cash.  The appellants were convicted of armed robbery and sentenced to 12 years imprisonment.  Aggrieved by the conviction the appellants now appeal against conviction only.</p> <p>            The state called three witnesses who gave evidence.  The first witness was <strong>BONGANI MKANDLA</strong> who testified that whilst on duty two male accused persons walked into the pharmacy.  One of them was dark in complexion, aged around 40 years and with a depression on the top of his eye.  He was putting on a hat.  This witness did not capture the description of the other since he was paying attention to the gentlemen he was conversing with.  He only noticed that the other accused was light in complexion.  The dark man approached the counter asking for 25mg of pheburbitone tablets, while the other went to stand close to the corridor.  The dark man suddenly produced a pistol and pointed at him and uttered words to the effect that this was a robbery and any slight movement he was going to shoot.  The complainant was ordered to lie on the ground and he called his workmate who was counting money in another office.  When she came the accused person demanded cash from her.  The evidence of Bongani shows that there were two accused persons at the scene, one of them was identified as Khumbulani Mpofu who is at large and the other is unclear as to whether it was accused one or two since Bongani did not pay attention to the second man at the scene.</p> <p>            The second state witness <strong>CAROLINE CHIKEREMA</strong> told the court that she collected cash for the day from the till and went to count it in an office.  As she was counting the money she heard Bongani calling her and she went out of the office and saw 2nd appellant in the corridor.  She observed one of the robbers whom she described as being dark in complexion holding a gun.  This other accomplice, demanded cash in Ndebele saying “Sinike imali”, meaning give us some money.  He was pointing a gun at the witness who then panicked and went back to the office followed by the second appellant.  The second appellant then took the money that was on a table.  Caroline was invited for an identification parade on the 20th April 2017.  She identified the second appellant as the man she had seen at the pharmacy.  The witness indicated that she had the appellant under observation for about 10-15 seconds.  The witness clearly had the second appellant under observation for too short a period for one to correctly identify someone hence there was a high chance that the complainant would be mistaken.</p> <p>            The third witness was <strong>MEHLULI SIBANDA</strong>.  He was the Investigating Officer.  He testified that he received a report of armed robbery which had occurred at 3rd Street Pharmacy.  He told the court that when he visited the scene he interviewed <strong>CAROLINE CHIKEREMA</strong> who gave a full description of the suspects.  The witness immediately matched the description of one of the suspects with Khumbulani Mpofu who was on the police wanted list for a string of robberies in the city.  The police started looking for Khumbulani Mpofu and his known accomplices matching the description of the second appellant.  On the 20th April 2017 the second witness Caroline identified the second appellant as one of the person who had robbed them.</p> <p>            Upon his arrest second appellant denied any involvement in the robbery, but instead implicated the first appellant of that robbery.  The police then arrested the first appellant who gave positive indications at the scene of the crime.  In his evidence, Khumbulani admits being at the scene of the robbery.  He however states that when they arrived at the pharmacy he was not aware that Khumbulani was armed.  First appellant testified that he was ordered to collect cash from Caroline.  He complied.  After collecting the cash he handed the loot to Khumbulani and they left the scene and boarded a kombi</p> <p>            The evidence of the first state witness, Bongani is largely leaned towards Khumbulani Mpofu.  He was mainly focused on the gentleman who wanted to buy some medication and who later produced a gun.  The second witness Caroline told the court that she had the 2nd appellant under observation for about 10-15 second which is too short a time for one to carefully observe peculiar features of a person under the circumstances considering that a gun was involved.  What makes the whole case intriguing is that the second appellant denies being at the scene of the crime.  The first appellant placed himself at the scene of the crime, though he indicates that he had no knowledge that Khumbulani was armed and that there were going to the pharmacy to carry out a robbery.  First appellant states that he was following the instructions of Khumbulani.</p> <p>            In <em>S </em>v <em>Polosi &amp; Ors</em> HH-210-15 one of the accused persons painted a picture that he had not repost because he required to confirm with accused two first.  This rendered its testimony exaggerated or spiced with a view to dissociate himself from the offence given that accused two was a mere constable.  He sought to portray a picture that he was just a sheep being driven by the second accused and another.</p> <p>            In the present case the first appellant told the court that he was not part and parcel of the armed robbery.  He was just following the instructions from Khumbulani.  If that were the case first appellant would have reported the matter to the police.  This defence was clearly false and the court <em>a quo</em> cannot be faulted for rejecting the first appellant’s defence.</p> <p>            In <em>S </em>v <em>Woods &amp; Anor </em>1993 ZLR 258, the court held that where persons participated and rendered significant assistance to the actual perpetrator they are both equally guilty.  In the matter there can be no doubt that Khumbulani and first appellant set out on a common criminal enterprise.  They set out to rob a pharmacy. They both had the requisite <em>mens rea</em> to commit the offence.  The first appellant did not disassociate himself from the offence once he realised that Khumbulani had produced a gun.  The appellant’s role was to collect the cash whilst Khumbulani induced fear in the witnesses.  The state succeeded in proving any reasonable doubt and that first appellant committed the offence.</p> <p>            As regards the second appellant the court <em>a quo</em> held as follows at page 49 of the record;</p> <p><em>“This was a well planned robbery by three accused persons and the two accused are in court today want to exonerate themselves because Khumbulani Mpofu has yet been arrested …”</em></p> <p>            There can be no doubt that there was no factual basis for the court to reach this conclusion.  The finding that three persons were involved in the robbery is not supported by the evidence on record.  Both Bongani and Caroline that they were robbed by two persons.  On being questioned on the number of people who robbed the pharmacy Bongani confirmed that two persons were involved.  The following exchange between the defence counsel and this witness occurred at page 13 of the record:</p> <p>            “Q       -           Would you confirm that the people who robbed you were two?</p> <p> </p> <p>            A         -           Yes there were the people who walked into the pharmacy.”</p> <p>            The prosecution was in the court a quo alive to the fact on the evidence placed before the court only one of the appellants could be convicted.  It is for this reason that in its closing submissions, the state made a case for the conviction of 1st appellant only.  The state had no credible evidence against the 2nd appellant.  The identification of the 2nd appellant by Caroline is problematic.  She had the suspect under observation for 10-15 seconds.  It is a trite principle of our law that evidence of identification must be treated with caution.  See <em>Nyath</em>i v <em>S </em>HB-60-13 where the court provided the guidelines on how the court should evaluate the evidence of identification.  There is a reasonable probability that given the fact that the witness was under immense fear after the production of the gun, and the fact that the witness had very limited time to observe the suspect, the possibility for mistaken identity cannot be eliminated.</p> <p>            For the foregoing reasons, I am satisfied that the first appellant was properly convicted.  The conviction of the second appellant is however unsafe.</p> <p>            In the result it is ordered as follows:</p> <ol> <li>The conviction and sentence of first appellant is hereby confirmed.</li> <li>The 2nd appellant’s appeal against conviction and sentence succeeds.</li> <li>The conviction and sentence in respect of 2nd appellant is set aside.</li> </ol> <p> </p> <p> </p> <p>Moyo J ………………………………. I agree</p> <p> </p> <p><em>R. Ndlovu &amp; Company</em>, appellants’ legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> <p> </p> <p>           </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/266/2018-zwbhc-266.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=21617">2018-zwbhc-266.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/266/2018-zwbhc-266.pdf" type="application/pdf; length=132794">2018-zwbhc-266.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/appeal">Appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-matter-appeal">Criminal matter (Appeal)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-magistrates-court">appeal from magistrates court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-high-court">Appeal to High Court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/robbery">Robbery</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></div> Mon, 21 Jan 2019 09:07:31 +0000 admin 9243 at https://old.zimlii.org Zhou v Mimosa Mining Company (Pvt) Ltd (HB 268-18, HCA 99/16 X Ref HC 328/12) [2018] ZWBHC 268 (01 November 2018); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2018/268 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>RAISON ZHOU</p> <p><strong>versus</strong></p> <p>MIMOSA MINING COMPANY (PVT) LTD</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>TAKUVA AND MABHIKWA JJ</p> <p>BULAWAYO 23 JULY 2018 AND 1 NOVEMBER 2018</p> <p> </p> <p> </p> <p><strong>Civil Appeal</strong></p> <p> </p> <p> </p> <p><em>A Sibanda </em>for the appellant</p> <p><em>Adv L Nkomo </em>for the respondent</p> <p> </p> <p> </p> <p>            <strong>MABHIKWA J:        </strong>On 20 October 2016, a Magistrates sitting at Gweru after a protracted trial, made an order that defendant (now appellant), be evicted from house number 3769 Lot 4 Highlands, Zvishavane and also that he pays arrear rentals of $50-00 per month from 1 December 2011 to the date of judgment.</p> <p>            Dissatisfied with the trial magistrate’s judgment and order, the appellant filed with this court a notice of appeal on 25 October 2016.  For the reason that respondent has raised preliminary points in respect of the notice of appeal, I will repeat herein verbatim, the grounds of appeal as shown on the document titled “Appellant’s Notice and Grounds of Appeal”. It reads:</p> <p>The court <em>a quo</em> erred in making the following findings:</p> <p>1)         That there is no evidence that the appellant paid the purchase price of the house in full, when in fact evidence put before the court clearly demonstrated that the purchase price for the house was Z$105 000 000.00 and that the appellant paid a sum, which is in excess of the purchase price on conversion of the United States dollar to the Zimbabwean dollar, alternatively that the appellant did not fail to pay the balance of the purchase price but the respondent stopped deducting the instalments in order to delay statement.</p> <p>2)         That there was no formula to convert the Zimbabwe dollars to United States dollars when in fact at the time the appellant paid the Zimbabwean dollar was not demonitised but was still currency and could be converted using available rates.</p> <p>3)         That the purchase price of the house was at one point pegged at Z$105 000 000.00 as if it was fluctuating, whereas it was a fixed price and there was no provision of either interests or inflation in the agreement of sale.</p> <p>4)         That the appellant was offered a refund of the purchase price, by the respondent, whereas such an offer was not acceptable for the following reasons:</p> <p>            4.1       The offer was not for the value of the house but just an arbitrary figure.</p> <p>            4.2       The offer was only made by a letter well after closure of pleadings.</p> <p>            4.3       The offer was not pleaded in court as tendered.</p> <p>5)         That the appellant is bound by the caveat <em>subscripto</em> rule without regard to exceptions to the caveat <em>subscripto</em> rule as dictated by statutory and common law.</p> <p>6)         That the appellant is bound by the caveat <em>subscripto</em> rule without taking due cognizance of the fact that the contract of sale between the appellant and the respondent was subject to intervention of the Contractual Penalties Act [Chapter 8:07] and in particular section 8.</p> <p>7)         That the appellant was given 10 days notice to remedy the breach, when in fact he was given 10 days notice to vacate the house in contravention of section 8 of the Contractual Penalties Act [Chapter 8:07] which stipulates that he should have been given 30 days written notice to remedy the breach.</p> <p>The court <em>a quo</em> erred in failing to make the following findings and or appreciate the</p> <p>following factual and legal aspects of the matter:</p> <p>8)         That the contract of sale of the house signed by the appellant and the respondent is subject to the Contractual Penalties Act [Chapter 8:07] particularly section 8 thereof:</p> <p>9)         That the provisions of section 8 of the Contractual Penalties Act [Chapter 8:07] are mandatory and do not allow for departure.</p> <p>10)       That the respondent failed to give the appellant the requisite notice to remedy the breach in terms of thereof.</p> <p>11)       That the respondent in compliance with section 8 of the Contractual Penalties Act [Chapter 8:07] was obliged to forewarn the appellant of the consequences of resignation as part of notice to remedy the breach likely to occur.</p> <p>12)       That public policy is a principle of law which is applicable in this matter and that it is embodied in the spirit of the Contractual Penalties Act [Chapter 8:07].</p> <p>13)       That fairness is a principle of law that is applicable in this case and is embodied in the spirit of Contractual Penalties Act [Chapter 8:07]</p> <p>Respondent opposed the appeal.  In its heads of argument, respondent raised a point <em>in </em></p> <p><em>limine</em> that the notice of appeal was invalid for want of compliance with the mandatory provisions of order 31 Rule 2 (4) (a) of the Magistrate Court Rules, 1980.  Respondent then prayed the appeal be dismissed with costs of suit.</p> <p>            Respondent further argued that there was yet an additional ground rendering the whole appeal fatally defective.  It was argued that the notice of appeal was a lengthy document consisting of a list of grievances rather than proper grounds of appeal as envisaged by the rules.  It was contented that some of the 13 grounds on the lengthy document simply did not make sense.</p> <p>            During the hearing, respondent further argued that the said notice also did not attack the trial court’s order and therefore was not directed to the said order as stated in <em>Econet Wireless (Pvt) Ltd</em> v <em>Trustco Mobile (Pvt) Ltd and Another</em> 2013 (2) ZLR 309 (S).</p> <p>            Appellant then filed a document which respondent only saw in court on the date of hearing.  The document was titled – “Appellant’s response to respondent’s heads of argument”.  In that 8 paged document, appellant purported to respond to the points <em>in limine</em> raised and the rest of respondent’s heads.  Appellant however could not explain in terms of what procedure or rule he had filed such a document.  It was eventually agreed that such being alien to the court rules, the document be expunged from the record.           Appellant could and should have, if he so wished, filled supplementary heads of argument instead.</p> <p>            It was agreed at the beginning of the hearing that both counsel would deal with the preliminary points and then go to the merits so that the judgment would be made at once.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p>Background</p> <p>The brief history of the matter is on 20 April 2006 to be precise, the two parties entered into an agreement of sale of property valued then at Z$105 000 000-00.  At the very beginning of the agreement was a suspensive clause titled as follows:</p> <p>1.         Condition <em>precedent</em></p> <p>It is understood and agreed by both parties that the property is sold to the purchaser by virtue of his status as an employee of the seller and that once such contract is terminated the sale agreement, subject to any contrary provisions herein, shall automatically be cancelled without notice to the purchaser.”</p> <p>Clause 3:1 of the agreement related to the purchase price.  It was to the effect that the purchase price of $105 000 000-00 would be payable by instalments deducted monthly from the employee’s wages. The instalments would be equal to the prevailing Building Society Mortgage rates, not exceeding 25% of the gross basic monthly salary.  The deductions would commence from the first month falling after the date of signing thereof.  Whilst the purchase price remained owing the purchaser could not be permitted to accelerate payment by increase instalment or otherwise.  The employer was also under no obligation to accept any offer of increased payments as the purchaser may offer nor under any obligation to tender transfer of property to the purchaser against full payment of the purchase price, with interest before the expiry of a period of ten (10) years following the date of signing hereof.”</p> <p> </p> <p>            Clause 4:2 was to the effect that if the employee (purchaser) resigned or was dismissed from the seller’s employment on the expiration of the 10 year period after signing the agreement, then he would be entitled to continue making monthly instalments in terms of the agreement towards the purchase price and at his discretion to settle the outstanding balance of the purchase price even in one instalment and take transfer of the property.</p> <p>            The appellant resigned from the respondent’s employment 5 years into the contract on 28 November 2011, and refused to give vacant possession of the house leading to this litigation.  Respondent instituted proceedings and served process by affixing it at the outer door having found only a minor child at the address for service agreed as per the contract <em>(domicilium cintandit et executandi)</em>.  It obtained default judgment.  Appellant applied for rescission of judgment which apparently was granted most likely by consent.  Appellant defaulted again at PTC stage and again made an application for rescission which again was granted most likely by consent.</p> <p> </p> <p> </p> <p>Preliminary Points raised</p> <p>Order 31 Rule 2 (4) (a) and (b) of the Magistrates’ Court Rules, 1980 reads as follows:</p> <p>            “A notice of appeal or of cross-appeal shall state:</p> <p>            (a)        Whether the whole or part only of the judgment or order is appealed against and,</p> <p>if part only then what part?</p> <p>(b)        The grounds of appeal, specifying the findings of fact or rulings of Law appealed against.” (The underlining is mine)</p> <p> </p> <p>            It was argued by <em>Advocate Nkomo</em> for the respondent that the rule is clear and peremptory, giving no room for assumption or implication, that the notice of appeal as filed by appellant did not comply with the provisions of the court rules and therefore fatally defective.  He directed the court’s attention to the case of <em>Econet Wireless (Pvt) Ltd</em> v <em>Trustco Mobile (Pvt) Ltd and another</em> 2013 (2) ZLR 309 (S) where the court pointed out per GARWE JA with MALABA DCJ and ZIYAMBI JA concurring that “a notice of appeal must comply with the mandatory provisions of the rules; if it does not, it is a nullity and cannot be condoned or amended.  A notice of appeal, which is unnecessarily prolix is not concise.”  The court also held that an appeal must be directed at the order made and not the reasons thereof, although it is permissible to challenge the reasoning of the court <em>a quo</em> in order to ultimately challenge the order.</p> <p>            <em>Advocate Nkomo</em> bemoaned the fact that inspite of having been advised by letter at the time of filing the appeal and having seem the respondent’s heads on the issue of non-compliance with the rules, appellant remained intransigent and adamant even at the hearing of the appeal that the notice did not offend the court rules.</p> <p>            For the record, the document is headed “Appellant’s Notice and Grounds of Appeal.  It then goes on to simply state:</p> <p>“Be pleased to take notice that the appellant herein appeals the judgment of the Magistrates’ Court on the 20th October 2016, on the following grounds”</p> <p>.</p> <p>            In response to the point <em>in limine</em> raised, <em>Mr Sibanda</em> for the appellant argued that the rules’ provision that a notice must state whether appellant is appealing against the whole or part of the court <em>a quo’s</em> judgment, does not entirely mean that a mere notice of appeal against judgment as that of the appellant states, becomes entirely invalid.  He (<em>Mr Sibanda</em>) argued that if one mentions that he/she appeals against “the judgment” it means that he/she appeals against the whole judgment not a specific portion of it.  In <em>Econet Wireless (Pvt) Ltd</em> v <em>Trustco (Pty) Ltd and another</em> 2013 (2) ZLR 309 (S), the court pointed out that rule 32 of the Supreme Court Rules 1964 requires that the Notice of Appeal shall state the grounds of appeal concisely.  To the extent of the use of the term “shall’’, the rule is peremptory.</p> <p>            It is important to note that order 31 (2) of the Magistrates’ Court Rules, 1980 is also worded in the same fashion and equally peremptory.  The position is thus now well settled that a notice of appeal must comply with the mandatory provisions of the rules and that if it does not, it is a nullity and cannot be condoned or amended.</p> <p>            Also in <em>Jensen</em> v <em>Acavalos</em> 1993 (1) ZLR 216 (S) also reported in <em>Jacob Jansen</em> v <em>Aleck Acavos </em>S- 64-93 where an application was made for condonation of the late noting of an appeal and for an order that the original defective notice of appeal be amended by the substitution there of a new notice of appeal.  Just as in the current case, the original notice simply read;</p> <p>“Take notice that appellant hereby notes an appeal against the judgment of the High Court sitting at Harare on 6 December 1989 dismissing appellant’s claim.” (The underlining is mine).</p> <p> </p> <p>            It was held that the notice of appeal was defective for non-compliance with the mandatory provisions of the then Rule 29, sub rules (c), (d), and (e) which required the appellant or his legal practitioner to state</p> <p>(i)         Whether the whole or only part of the judgment is appealed against.</p> <p>(ii)        The grounds of appeal to be set fourth concisely and in separate numbered paragraphs;</p> <p>(iii)       The exact nature of the relief which is sought</p> <p>            In <em>Jansens (supra</em>) it was held that the Notice of appeal being bad for non-compliance with the rules, could not be cured by the subsequent filing of other grounds of appeal on 3 January 1990 without a prayer and that even if the subsequent grounds filed had contained a prayer for relief, this would not have been effectual in validating the defective notice of appeal.  It was held that the reason is that a notice of appeal which does not comply with the rules is fatally defective and invalid.  It is a nullity.  It is not only bad but incurably bad.</p> <p>            It follows therefore that <em>Mr Sibanda’s</em> argument in <em>casu</em>, that when an appellant states that he appeals “the judgment” he means “the whole judgment,” falls away.  It was rejected in <em>Jensen’s </em>case.  It is unfortunate that apparently, even after numerous attempts were made to alert the appellant’s legal practitioner of the defective nature of the notice of appeal, he insisted on bringing the matter to court and argue it as it stands.</p> <p>            I am satisfied that the appeal fails for non-compliance with the court rules, and having found that the appeal fails by reason of non-compliance, the court had no obligation or reason to go on to deal with the merits but for good reason, I will in brief, show that even on the merits, appellant cannot succeed.</p> <p>            It is very clear from the nature of the agreement of sale between the parties, particularly clause 1 (condition precedent), clause 3 and clause 4 cited above that the whole purpose of the agreement was to empower the respondent company’s workers and to incentivize them so that it retains them in order to benefit from their skills whilst they in turn benefit from the housing scheme.  The company thus went out of its way to acquire land and build houses which an individual employee, for various reasons and constraints, could not have done.  To that extent therefore, it is a contract <em>sui generis</em>.</p> <p>            The court finds that there was nothing punitive about the agreement of sale and the Contractual Penalties Act does not apply in this case.  It was clear from the agreement especially the cited clauses that the contract started running from the time of signing (which is only logical anyway) up to the expiry of ten (10) years thereafter.  <em>Mr Sibanda’s</em> implication in his argument, that the 10 year period started running from the time appellant was employed was a deliberate attempt to mislead the court.</p> <p>            Section 8 of the Contractual Penalties is meant to curb contracts entered into in an uneven contractual field and where one party is then punished for certain breach, usually unjustly enriching the stronger party in the contract.  It however clearly contemplates a normal purchase agreement capable of being remedied by notice to make good the breach.</p> <p>            In any event, and inspite of the definition in clause 2 of the Contractual Penalties Act wherein “Land” includes any improvements on land, it is clear that section 8 of that act was meant primarily for parties involved in the sale of “land” in the strict sense and in a normal and ordinary agreement of sale.</p> <p>            It was equally wrong to argue that the sale agreement was against public policy.  It is clear that the scheme was introduced and the contract signed not only as an employee empowerment programme but also as a skills retention strategy. It would therefore be wrong for an employee with ulterior motives to own a house easily, to enter the scheme, sign the contract and thereafter resign, only to argue that the contract itself was against public policy, or that it was against the contractual penalties act.  Such an employee would not have entered the contract in good faith and would therefore not be coming to court with clean hands.  He cannot be allowed to use his own initial bad intentions to defend himself against the contract that he signed.</p> <p>            In any case, the Caveat <em>Subscripto</em> rule was summed up succinctly, by the learned judge in <em>Total Zimbabwe Ltd</em> v <em>Bakani </em>HH 2226/16 at page 9.</p> <p>            Further, in <em>Waste Management Services</em> v <em>City of Harare</em> 2001 (1) ZLR 172 (H), it was held that</p> <p>“Public Policy is a vague and elusive concept and the power of the court to decide a contract, or part of a contract to be void as being contrary to public policy should be used sparingly and only in the clearest of cases, lest uncertainty as to the validity of contracts results from an arbitrary and indiscriminate use of the power.”</p> <p> </p> <p>            Also in <em>Scotfin (Pvt) Ltd</em> v <em>Bakes</em> 1989 (1) SA 1 at page 2B it was held that,</p> <p>“The power to declare contracts contrary to public policy should however be exercised sparingly and only in the clearest of cases -----.  Commercial transactions should not be unduly trammeled by restrictions on that freedom.”</p> <p> </p> <p>            Above all, this court would not want to interfere with such clear contracts and in the process make a contract for the parties.  Contracts are generally sacrosant.  For the reasons above, this court finds that no misdirection on the part of the trial magistrate was proved even on the merits of the case.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p>            Accordingly the appeal is dismissed with costs of suit on the ordinary scale.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p>Takuva J …………………………………………….agrees</p> <p> </p> <p> </p> <p><em>Mhaka Attorneys</em>, appellant’s legal practitioners</p> <p><em>Danziger and Partners</em>, respondent’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/268/2018-zwbhc-268.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26025">2018-zwbhc-268.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/268/2018-zwbhc-268.pdf" type="application/pdf; length=194365">2018-zwbhc-268.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/appeal">Appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/civil-matter-appeal">Civil matter (Appeal)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/notice">Notice of</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/validity-notice">validity of notice</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/1992/13">Contractual Penalties Act [Chapter 8:04]</a></div></div></div> Thu, 17 Jan 2019 09:48:11 +0000 admin 9240 at https://old.zimlii.org