Civil matter (Appeal) https://old.zimlii.org/taxonomy/term/9513/all en Humbe v Muchina And 4 Others (SC 81-21, Civil Appeal No. SC 373/20) [2021] ZWSC 81 (01 July 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/81 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Judgment No. SC 81/21</p> <p>Civil Appeal No. SC 373/20</p> <p> </p> <p><strong>REPORTABLE</strong>        <strong>(78)</strong></p> <p><strong>FRANK     HUMBE</strong></p> <p><strong>V</strong></p> <ol> <li><strong>    DESMOND     MUCHINA     (2)     SPARKLES     SERVICES     (PRIVATE)     LIMITED     (3)     GODFREY     MUNYAMANA     (4)     THE     SHERIFF     OF     ZIMBABWE     (5)     FADZAYI     MUNYAMANA</strong></li> </ol> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>BHUNU JA, MATHONSI JA &amp; KUDYA AJA</strong></p> <p><strong>HARARE: 10 MAY 2021 &amp; 01 JULY 2021.</strong></p> <p> </p> <p><em>T. S. T. Dzvetero </em>with Ms<em> T. M. Dzvetero, </em>for the appellant.</p> <p><em>E. K. Muhlekiwa, </em>for the second, third and fifth respondents.</p> <p>                   <strong>MATHONSI JA:      </strong>The appellant brought an urgent chamber application in the High Court for a stay of the execution of a judgment obtained by the first respondent against the second and third respondents on 12 February 2018 in the sum of US$352 851,30 together with interest and costs of suit.</p> <p>                   By judgment delivered on 21 August 2020, the High Court dismissed the application with costs.  This appeal is against that judgment dismissing the appellant’s urgent application.</p> <p><strong>THE FACTS</strong></p> <p>                   The third and fifth respondents, who are husband and wife, hold title to Stand 67 Guildford Estate Township of Subdivision H of Guildford of Borrowdale Estate, also known as No 67 Guildford Crescent, Borrowdale Harare, (the house) by Deed of Transfer Number 1447/2009.  On 15 November 2013 they entered into a deed of sale in terms of which they sold the house to the appellant for US$380 000.00 payable in certain instalments from 30 November 2013 to 30 June 2014.</p> <p>                   There is no convergence between them <a name="_GoBack" id="_GoBack"></a>as to whether the full purchase price was paid.  The appellant alleges having paid part of the purchase price through the sale of his own neighbouring house through the agency of the second respondent and part of it through the sale to the third respondent of his Mercedes Benz S Class motor vehicle.</p> <p>                   The appellant alleges further that although he failed to pay the cash balance of the purchase price in accordance with the agreement, he has however paid it in full.  On the other hand the third and fifth respondents’ position is that the appellant defaulted in his payments and after giving him the requisite 30 days notice in terms of the deed of sale, they duly cancelled the agreement.</p> <p>                   Notwithstanding such cancellation the appellant still sued the second, third and fifth respondents in case number HC 11367/15, which was filed on 20 November 2015, for an order compelling transfer of the house to himself and for their eviction from it.  The summons action in question was defended and does not appear to have been prosecuted with any zeal thereafter.</p> <p>                   Meanwhile the second and third respondents were sued by the first respondent in case number HC 11601/17 which summons action was filed on 14 December 2017. He obtained judgment against them on 12 February 2018 in the sum of US$352 851.30 plus interest and costs of suit aforesaid.  A writ was thereafter issued which the fourth respondent was instructed to execute.  In pursuance whereof the house in dispute was placed under judicial attachment.</p> <p>                   Following the attachment, the appellant lay a claim to the house motivating the fourth respondent to institute interpleader proceedings under case number HC 7525/19.  By judgment delivered on 9 June 2020 in <em>The Sheriff for Zimbabwe v Humbe &amp; Anor</em> HH 378/20, CHINAMORA J dismissed the appellant’s interpleader claim and declared the house executable.  The judgment remains extant and has not been appealed against.</p> <p>                   Instead, the appellant filed a further application on 21 July 2020 under case number HC 3805/20.  He sought an order setting aside the writ of execution in terms of which the house was attached.  The basis of the application was that the Sheriff was enjoined by r 326 of the High Court Rules to first diligently pursue the attachment of a debtor’s movable property before going against immovable property. In addition, the appellant took the view that the house could not be the subject of execution as it was <em>res litigiosa</em> having been the subject of litigation in HC 11367/15.</p> <p>                   In the same application the appellant also sought a declaration that his rights in the house “preceded” those of the first respondent.  He also sought an order that the house be transferred to him.  This, the appellant sought, in spite of the judgment of CHINAMORA J issued on 9 June 2020 which, as I have said, remains extant.</p> <p>                   At the same time that the appellant filed the court application in case number HC 3805/20, he also filed the urgent chamber application for interim relief of a stay of execution which is the subject of the present appeal.  The application was opposed by the first, second, third and fifth respondents.  The stay of execution was sought pending the finalisation of his claim in HC 11367/15 and his application for a declaratory order and the setting aside of the writ which is case number HC 3805/20.</p> <p> </p> <p><strong>DECISION <em>A QUO</em></strong></p> <p>                   The court <em>a quo</em> found that the appellant had failed to pay the full purchase price for the house in terms of the deed of sale.  In doing so the court <em>a quo</em> was fortified by the fact that the deed of settlement signed by the appellant and the third respondent on 12 December 2017 which, although later repudiated by the third respondent as having been procured by duress, acknowledged that there was still an outstanding sum of US$50 000.00.</p> <p>                   The court <em>a quo</em> recognised that both rules 326 and 327 of the High Court Rules provide for options to a party which applied for the issuance of a writ.  They do not provide a remedy to the appellant.  After criticizing the interim relief sought by the appellant which was the same as the final order sought, the court <em>a quo</em> wondered how the appellant could have filed further applications in the face of the judgment of CHINAMORA J which I have alluded to above.</p> <p>                   It was the court <em>a quo</em>’s finding that given that the house was registered in the names of the third and fifth respondents they hold real rights over the house.  The appellant never acquired any real rights over it.  The attachment of the house by the Sheriff in pursuance of a writ of execution gave the first respondent, as the judgment creditor in whose favour the writ was issued, a <em>pignus judiciale </em>on it created by the attachment.  That is to say an attachment creates a judicial mortgage on the property so attached.</p> <p>                   The conclusion of the court <em>a quo</em> was that the appellant failed to establish a <em>prima facie</em> right over the house as would entitle him to a stay of execution.  His claim through interpleader proceedings having failed and the house declared executable, the appellant was seeking “to mount a second bid based on essentially the same facts.”  He was precluded from doing so because the court <em>a quo</em> had already pronounced itself on the issue.</p> <p> </p> <p>                   Overcome by grief as a result, the appellant launched this appeal on grounds set out below:</p> <p> </p> <p><strong>GROUNDS OF APPEAL</strong></p> <ol> <li>The court <em>a quo</em> erred in fact and grossly misdirected itself in finding that the appellant breached the contract of sale by failing to pay the full purchase price by the date that the price was due.</li> <li>The court <em>a quo</em> erred in fact and grossly misdirected itself in finding that the appellant caused the arrest and prosecution of the fifth respondent on fabricated allegations of fraud and coerced the third respondent to sign the deed of settlement using the fifth respondent’s arrest.</li> <li>The court <em>a quo</em> erred at law and grossly misdirected itself in finding that the dispute between the parties in the instant matter is <em>res judicata</em>.</li> <li>The court <em>a quo</em> erred at law and grossly misdirected itself in disregarding that the property in dispute is <em>res litigiosa</em> and in further failing to give any reasons for such discount.</li> <li>The court <em>a quo</em> erred at law and grossly misdirected itself in disregarding that the application was an application for stay of execution pending a court application in terms of r 340 of the Rules of the High Court and in failing to give any reasons for such discount.</li> <li>The court <em>a quo</em> erred at law and grossly misdirected itself in determining that the interim relief was the same as the final relief and as such the relief could not be granted when in fact the interim and final reliefs were different and even if the reliefs were the same, the court could and it ought to have granted it either way even if it were to be found to be the same.</li> <li>The court <em>a quo</em> erred at law and grossly misdirected itself in exercising its discretion without addressing the requirements of and purpose for proceedings for stay of execution.</li> <li>The court <em>a quo</em> erred at law and grossly misdirected itself in finding that r 326 of the High Court Rules can only be invoked by a person who applied for the writ of execution.</li> </ol> <p> </p> <p><strong>ISSUE FOR DETERMINATION</strong></p> <p>             Clearly the grounds of appeal stray from the field of discourse.  They seem to attack every pronouncement in the judgment <em>a quo</em> without identifying the <em>ratio decidendi</em>.  The court <em>a quo</em> dismissed the application because it made a finding that the appellant failed to prove a <em>prima facie</em> right over the house.  This was more so regard being had that the same court had already pronounced itself when it declared the house executable.</p> <p>             In that regard, only one issue commends itself for determination in this appeal.  It is whether the court <em>a quo</em> erred in dismissing the application for stay of execution.</p> <p><strong>THE LAW</strong></p> <p>             The appellant approached the court <em>a quo</em> for a stay of execution pending the prosecution of a summons claim to compel transfer of the house to himself, which by then had been pending for 5 years, and a court application which seeks both a declaratory order that he possesses superior rights in the house and that the house be transferred to him.  The court application also seeks the setting aside of a writ issued in favour of the first respondent against a house not registered in the appellant’s name but those of the judgment debtors in that suit.</p> <p>             The execution of a judgment is a process of the court.  The court therefore retains an inherent power to manage that process having regard to the applicable rules of procedure.  What is required for a litigant to persuade the court to exercise its discretion in favour of granting a stay in the execution of the court’s judgment has been stated in a number of cases.</p> <p>             In <em>Mupini v Makoni</em> 1993 (1) ZLR 80(S) at 83 B–D this Court stated the position of the law quite clearly:</p> <p>“In the exercise of a wide discretion the court may, therefore, set aside or suspend a writ of execution or, for that matter, cancel the grant of a provisional stay.  It will act where real and substantial justice so demands.  The onus rests on the party seeking a stay to satisfy the court that special circumstances exist.  The general rule is that a party who has obtained an order against another is entitled to execute upon it.  Such special reasons against execution issuing can be more readily found where, as in casu, the judgment is for ejectment or the transfer of property, for in such instances the carrying of it into operation could render the restitution of the original position difficult.  See <em>Cohen v Cohen</em> (1) 1979 ZLR 184(G) at 187C, <em>Santam Ins Company Limited v Paget </em>(2) 1981 ZLR 132(G) at 134 G–135B; <em>Chibanda v King</em> 1983(1) ZLR 116(H) at 119 C-H; <em>Strime v Strime</em> 1983 (4) SA 850(C) at 852 A.”</p> <p>                   It is settled in this jurisdiction that a judgment creditor is entitled to attach and have sold in execution the property belonging to the judgment debtor.  This is so even in a situation where a third party has a personal right against such a debtor in respect of the same property.  The position is the same even where the personal right of the third party preceded the attachment of the property.  See Herbstein and Van Winsen, <em>Civil Practice of The Superior Courts in South Africa</em> 3 Ed at p 597 (quoted with approval in <em>Maphosa &amp; Anor v Cook &amp; Ors </em>1997 (2) ZLR 314 (H) at p 316 G).</p> <p>                   To that should be added the hallowed principle of our law that the conveyance of ownership in immovable property from person to person is achieved through the registration of transfer at the deeds registry.  Real rights in an immovable property are held only by registration at the deeds registry.  This was underscored by this Court in the seminal remarks made in <em>Takafuma v Takafuma</em> 1994 (2) ZLR 103(S) at 105 G-106A;</p> <p>“The registration of rights in immovable property in terms of the Deeds Registries Act [<em>Chapter 20:05</em>] is not a mere matter of form.  Nor is it simply a devise to confound creditors or the tax authorities.  It is a matter of substance.  It conveys real rights upon those in whose name the property is registered.  See the definition of ‘real right’ in s 2 of the Act.  The real right of ownership, or <em>jus in re propria</em>, is ‘the sum total of all the possible rights in a thing’ – see Wille’s <em>Principles of South African Law </em>8 ed p 255.”</p> <p>                   A party which lays a claim to property which has been placed under judicial attachment by the Sheriff in the discharge of his or her duties as the executive of the court, has remedies provided for in the rules of court.  Such a party is required to submit a claim to the Sheriff in order to trigger the institution by the latter of interpleader proceedings in terms of Order 30 of the High Court Rules.</p> <p>                   The court resolves the conflicting claims of parties in interpleader proceedings by either upholding the claimant’s claim or dismissing it. Where it finds the claimant’s claim to be without merit, the court, in addition to dismissing the claim, ordinarily declares the property under attachment executable. The result is the opposite where the claim is upheld.</p> <p> </p> <p>                   In the present case, after raising essentially the same arguments as in the urgent chamber application the subject of this appeal, the appellants’ interpleader claim was dismissed by the court <em>a quo</em>.  It declared the house executable at the instance of the first respondent.</p> <p> </p> <p><strong>APPLICATION OF THE LAW TO THE FACTS</strong></p> <p>                   The first respondent has an extant judgment in his favour issued against the second and third respondents.  The judgment is sounding in money and it was in pursuance of it that a writ of execution was issued against the house.</p> <p>                   The house is registered at the Deeds Registry in the name of one of the judgment debtors.  It is the same house which the appellant lays a claim to by virtue of a deed of sale which ran into turbulence.  The dispute between the appellant and those of the respondents who sold the house to him had not been resolved by the courts at the time that the first respondent instructed the Sheriff to attach the house for sale in execution.</p> <p>          On the authorities that I have made reference to above the judgment creditor, who is the first respondent, was entitled at law to have attached and sold in execution, the house which is registered in the name of his debtor.  The appellant is a third party who only has personal rights exercisable against the debtor in respect of the ownership and possession of the house.  As much as those personal rights came about prior to the attachment, or may have arisen prior to the first respondent’s cause of action that is of no moment in law.</p> <p>                   The court <em>a quo</em> cannot be faulted for its finding that the attachment of the house in execution created a judicial mortgage or <em>pignus judiciale</em>.  The appellant’s situation is exacerbated by the failure of his interpleader claim and the prior declaration made by the court <em>a quo,</em> that the house was executable in favour of the first respondent.</p> <p> </p> <p>                   In dismissing the appellant’s claim to the same house CHINAMORA J, who determined the interpleader, relied on a line of authorities to the effect that where the house is registered in the name of the judgment debtor, he or she remains the owner of the property.  For that reason it is susceptible to execution.  The learned Judge concluded:</p> <p>“In <em>casu</em>, the judgment debtor has title to the property.  It is indeed immovable property.  However I propose to equate possession in the case of movable goods to title in respect of immovable property.  To the extent that possession and title raise a rebuttable presumption of ownership, the principle in <em>Zandberg v Van Zyl</em> (1910 AD 258 at 272) applies to immovable property.  The starting point is to examine the legal implication of title.  Title confers real rights in immovable property.  It cannot be gain said that a title deed is <em>prima facie</em> proof that a person enjoys real rights over the immovable property defined in the deed.”</p> <p> </p> <p>                    (The Sheriff for Zimbabwe v Humbe and Another, <em>supra</em>).</p> <p>                    It is against the foregoing background that the appellant approached the court <em>a quo</em> for the second time, seeking a stay of execution to enable him to pursue the determination of the parties’ rights in the house all over again.  Those rights had already been determined by the same court in a judgment that was not impugned and remains extant.</p> <p>                    In my view the court <em>a quo</em> cannot be faulted for coming to the conclusion that after the appellant had chosen to pursue interpleader proceedings, which failed, he could not mount a second bid in the same court based, essentially, on the same facts.  It is true that the court <em>a quo</em> had already pronounced itself on the status of the house having declared it executable.  It is not the number of times that a litigant approaches the court seeking recourse which determines a matter in the litigant’s favour, but the existence of a sustainable cause of action.  In this case there was none.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>                   I have set out what an applicant for a stay of execution is required to establish in order to motivate the exercise of the court’s discretion in his or her favour, namely that special circumstances exist for the court to halt its own execution process.</p> <p>                   The appellant dismally failed to discharge that onus.  This is a case in which the same property had been declared executable by judgment of the same court.  He had not appealed that judgment leaving it binding against the parties.  It would have been extremely incompetent for the court <em>a quo</em> to grant a stay of two judgments of its own definitively settling the rights of the parties.</p> <p>                   In addition, the house lawfully registered in the name of a judgment debtor had been placed under attachment in execution of a valid judgment.  The appellant only possessed personal rights against the debtor which could not override real rights in law.  There was no legal basis for a stay and certainly no special circumstances as would invite the court to grant it. </p> <p>                        I do not agree with Mr <em>Muhlekiwa’s</em> submissions that the appropriate order should have been the striking off of the application from the roll.  The reasons advanced for that proposition are clearly wrong.  The application was determined on the merits, the court having found that it lacked merit.  It could only be disposed of by its dismissal.</p> <p>                   Regarding the question of costs, this is an ill-conceived appeal, wholly without merit and predicated on extraneous grounds.  I see no reason why costs should not follow the result.</p> <p> </p> <p>                   In the result it be and is hereby ordered as follows:</p> <ol> <li>That the appeal is dismissed.</li> <li>That the appellant shall bear the costs.</li> </ol> <p>                </p> <p><strong>BHUNU JA:</strong>                                I agree</p> <p><strong>KUDYA AJA:</strong>                             I agree</p> <p><em>Antonio &amp; Dzvetero, </em>the appellant’s legal practitioners.</p> <p><em>Muhlekiwa Legal Practitioners, </em>the 2nd, 3rd and 5th 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="Microsoft Office document icon" title="application/msword" src="/modules/file/icons/x-office-document.png" /> <a 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class="vocabulary-links field-item odd"><a href="/tags-local/stay-execution-pending-appeal">Stay of execution pending appeal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/immovable-property">IMMOVABLE PROPERTY</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/personal-right-respect-immovable-property">Personal right in respect of immovable property</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rights-and-immovable-property">Rights in and to immovable property</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><li class="vocabulary-links field-item even"><a href="/tags-local/when-should-execution-appeal-be-granted">when should execution appeal be granted</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/s">S</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/sale">SALE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/immovable-property-sale">Immovable property (SALE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/instalment-sale-immovable-property-sale">instalment sale (Immovable property (SALE))</a></li></ul></span> Wed, 14 Jul 2021 12:49:02 +0000 Sandra 10079 at https://old.zimlii.org Nyamukunda v Saopa (HMT 35-20, HC 113/18) [2020] ZWMTHC 35 (08 June 2020); https://old.zimlii.org/zw/judgment/mutare-high-court/2020/35 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>JANE NETSAI NYAMUKUNDA                                      </p> <p>versus</p> <p>GOLDEN SAOPA</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUZENDA J</p> <p>MUTARE, 8 June  2020</p> <p> </p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p> </p> <p><em>C Chibaya</em>, for the applicant</p> <p><em>B. Majamanda</em>, for the respondent        </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>MUZENDA J: This is an application for condonation for late filing of notice of appeal against a judgement handed down at Rusape magistrate court on 20 June 2018 where the court <em>a quo</em> granted an interdict to the application and ordered her not to encroach with the respondent’s plot 5 Lot 1 Chimbi Source and barring applicant from interfering with farming activities of the respondents at that plot. Appellant was also ordered to remove her structures she had erected in plot 5 forthwith.</p> <p>The application was filed with this court on 24 August 2018. The respondent is opposing the application</p> <p>The applicant in her affidavit states that she instructed a fraudster who was masquerading as a legal practitioner and appeared on her behalf at court. A perusal of the record of proceedings before the magistrate shows that a notice of opposition was properly filed and the application was represented on the date of hearing and she was also represented in this application. She lost the matter in the court <em>a quo </em>and sought a new legal representative to prepare the appeal as well as this application for condonation. In her application for condonation she stated in her affidavit that she fell ill and sought assistance from her church. The affidavit falls short for detail pertaining to the date she fell ill, the date she learned about the judgement, the date she recovered, the date she consulted her legal practitioners to prepare the appeal and condonation, the date she was advised of the legal fees required by the lawyers as well as the date her children assisted her with the required fees. All this information is scanty from the record. This information would assist this court to determine the reasonableness of the explanation for delay. The heads of argument filed on behalf of the applicant equally came too short on that aspect and the initial greater part of the heads seem to be addressing issues and law relating to the appeal against the court a quo which appeal is not yet before this court. Such arguments should have properly been dealt with under the heading of prospects of success on appeal. The important subject of condonation was contained on the last 2 pages of the heads, yet that topic should have occupied the greater part of the heads for condonation. The applicant has failed to properly explain the time aspect which is central to the application for condonation. I have found that such a failure goes to the root of the application and it ought to fail.</p> <p>On the aspect of the probability of success on the merits of the appeal, after reading the draft notice of appeal and record of proceedings, the court a quo clearly ruled that the focal point of dispute between the parties relates to the boundaries of plot 5 and plot 24. That issue can best be resolved by the Ministry of lands and Makoni Rural district council who can intervene and show both parties the extent of their plots and the importance of protecting the boundaries of the dam. Hence the probability of success on the merit does not favour the applicant. I discern no misdirection in the judgement of the court a quo which concluded that the requirements of an interdict application were met by the respondent herein.</p> <p>As a result the following order is returned.</p> <p>The application is dismissed with no order as to costs.</p> <p> </p> <p><em>Messrs Bvuma and Associates</em>, applicant’s legal practitioners</p> <p><em>Messrs Khupe Chijara law Chambers</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/mutare-high-court/2020/35/2020-zwmthc-35.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=27880">2020-zwmthc-35.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2020/35/2020-zwmthc-35.pdf" type="application/pdf; length=307090">2020-zwmthc-35.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-high-court">Appeal to High Court</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/appeal-out-time">Appeal out of time</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/condonation">Condonation</a></li></ul></span> Mon, 06 Jul 2020 12:02:09 +0000 Sandra 9750 at https://old.zimlii.org ZIMRA & 2 Ors v Masamvu & Anor (HMT 37-20, CIV A 18/19) [ZWMTHC 37] (02 July 2020); https://old.zimlii.org/zw/judgment/mutare-high-court/2020/37 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>ZIMBABWE REVENUE AUTHORITY</p> <p>and</p> <p>REGIONAL MANAGER</p> <p>(ZIMRA FORBES ENVIRONS REGIONS)</p> <p>and</p> <p>THE COMMISSIONER GENERAL (ZIMRA)</p> <p>and</p> <p>versus</p> <p>EZEKIEL MASAMVU</p> <p>and</p> <p>ENOCK CHIBATI</p> <p>                             </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MWAYERA &amp; MUZENDA JJ</p> <p>MUTARE, 25 March 2020 and 2 July 2020</p> <p> </p> <p> </p> <p><strong>Civil Appeal </strong></p> <p> </p> <p> </p> <p><em>J Zviuya</em>, for the appellants</p> <p><em>H. B. R. T Tanaya</em>, for the respondents</p> <p> </p> <p> </p> <p>            MUZENDA J: This is an appeal filed by the appellants against the judgment of the magistrate sitting at Mutasa on 30 April 2019 and the appellants outlined the grounds of appeal as follows:</p> <p> </p> <p>GROUNDS OF APPEAL</p> <ol> <li>The Learned Magistrate grossly erred and misdirected himself on facts and law in concluding that the appellants had been properly cited and that the Notice of Intention to sue was properly served in this matter and in purporting to condone the improper citation and the purported service <em>mero motu</em>.</li> <li>The Learned Magistrate grossly erred and misdirected himself on facts and law in concluding that the respondents had exhausted domestic remedies prior to approaching the Magistrates Court for relief.</li> <li>The Learned Magistrate grossly erred and misdirected himself on facts and law in concluding that there were no material disputes of facts in the matter.</li> <li>The Learned Magistrate grossly erred and misdirected himself on facts and the law in concluding that respondents did not smuggle the goods/sugar when there was overwhelming evidence which proved that the goods/sugar were smuggled.</li> <li>The Learned Magistrate grossly erred and misdirected himself on facts and the law in ordering the release of the seized sugar in circumstances where the notice of seizure was never challenged in terms of the requisite tax legislation and the respondents failed to discharge the onus upon them by the law to the satisfaction of the appellants.</li> <li>The Learned Magistrate grossly erred and misdirected himself on the law in failing to appreciate that he is at law not empowered to determine the validity or review of the Notice of seizure.</li> </ol> <p> </p> <p>BACKGROUND FACTS </p> <p>            The first respondent, Ezekiel Masamvu, had hiS sugar packaged in Portuguese inscribed satchels seized by first appellant’s officers. Both respondents appeared at Mutasa Magistrates Court for criminal charges of being found with goods not duly accounted for, the state had abandoned the original charge of smuggling in respect of first respondent, the state also charged first respondent herein with s 4 (1) (b) (ii) as read with s 5 of the Food and Food Standards Act [<em>Chapter 15:04</em>], for false description of goods.</p> <p>            The respondents were acquitted on the charge in terms of the Act, however first respondent pleaded guilty to the charge involving false description of goods. The criminal court at Mutasa ordered the state to immediately release the sugar to the respondents, on condition that the sugar would not be sold in the offensive Portuguese packaging. The appellants refused to release the sugar. Having been acquitted of violating the Act, the respondents approached the court <em>a quo</em> for the release of the sugar in terms of s 193 (9) of the Customs and excise Act. The magistrates court made a finding that the appellants release the sugar to the respondents. It is that order which the appellants seek to be set aside on appeal. The appeal is opposed.   </p> <p>            Mr <em>HBRT Tanaya </em>for the respondents raised pOints <em>in limine</em> relating to the defective grounds of appeal and submitted that if these points are upheld by us the unavoidable consequence will be to strike off the appeal from the roll. </p> <p>            The first ground of appeal requires quoting <em>verbatim</em>:</p> <p><em>“The Learned Magistrate grossly erred and misdirected himself on facts and law in concluding that the appellants had been properly cited and that the Notice of Intention to sue was properly served in this matter and in purporting to condone the improper citation and the purported service mero motu”</em></p> <p>            The respondents submitted that this is not a valid ground of appeal as it is not precise nor concise but comes across as a rumbling statement of several complaints bundled into one statement purporting to be a ground of appeal. The ground of appeal is so crude that it raises several arguments or points of arguments in one sentence. The respondents further contended that the so called ground alleges that the magistrate erred and misdirected himself “on facts and law” without stating any single finding of fact by the magistrate nor does it indicate why each finding of fact or ruling of law that is to be criticised as wrong is said to be wrong. The ground attacks the magistrate’s conclusions and his exercise of discretion without showing why such deserve to be attacked or impugned. The statement of complaints does not comply with the rules, it was submitted. The respondents condemn same as not being a ground of appeal and moved that it be abandoned or struck off.  </p> <p>            The second ground of appeal reads:</p> <p><em>“The Learned Magistrate grossly erred and misdirected himself on facts and law in concluding that the respondents had exhausted domestic remedies prior to approaching the Magistrates Court for relief.”</em></p> <p>           </p> <p>            The respondents’ counsel, submitted that the second ground of appeal is bereft of specificity just as the first one. It is not concise nor is it clear. It also attacks the Honourable Magistrate’s decision without stating why that conclusion is wrong. The ground of appeal does not disclose whether there were any available domestic remedies that were not exhausted. It also does not originate from the judgment that is being appealed against but from a distinct judgment. Respondents further submitted that the court <em>a quo</em> ruled that the proviso to s 193 of Act gave it jurisdiction to entertain the application and that the respondents had a constitutional right to approach the magistrates court if aggrieved.</p> <p>The court <em>a quo</em> never decided that the respondents had exhausted local remedies or that there were local remedies to be exhausted. In any case the respondents added that the second ground of appeal was frivolous, the course of action open to the respondents was to institute civil proceedings against the appellants once the goods were not released<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a>.  </p> <p>The Third Grounds Of Appeal Reads:</p> <p><em>“The Learned Magistrate grossly erred and misdirected himself on facts and law in concluding that there were no material disputes of facts in the matter.”</em></p> <p> </p> <p>The respondents contend that this ground of appeal is equally fatally defective for the reasons advanced already whilst addressing grounds one and two above. The alleged material disputes of facts were not itemised even up to the time the appellants prepared their heads.</p> <p>The fourth ground of appeal was crafted by the appellants as follows:</p> <p><em>“The Learned Magistrate grossly erred and misdirected himself on facts and the law in concluding that respondents did not smuggle the goods sugar when there was overwhelming evidence which proved that the goods/sugar were smuggled</em><em>.”</em></p> <p> </p> <p>It is the contention of the respondents that the fourth ground of appeal is not valid. It is equally not succinct concise or clear. It does not specify why the appellant says there was overwhelming evidence which the court below did not see. Such evidence is not identified within the body of the ground of appeal<a href="#_ftn2" name="_ftnref2" title="" id="_ftnref2">[2]</a>.</p> <p>The fifth ground of appeal was presented by the appellants as follows:</p> <p><em>“The Learned Magistrate grossly erred and misdirected himself on facts and the law in ordering the release of the seized sugar in circumstances where the notice of seizure was never challenged in terms of the requisite tax legislation and the respondents failed to discharge the onus upon them by the law to the satisfaction of the appellants.”</em></p> <p> </p> <p>The respondents submitted that the fifth ground is similarly imprecise and unclear as the first to fourth grounds of appeal. The fifth ground lacked particularity that could enable the magistrate to meaningfully respond.</p> <p>The last ground of appeal by the appellants reads:</p> <p><em>“The Learned Magistrate grossly erred and misdirected himself on the law in failing to appreciate that he is at law not empowered to determine the validity or review of the Notice of Seizure.”</em></p> <p> </p> <p>The respondents argue that this is not a valid ground of appeal. An alleged failure to appreciate the law cannot be a ground of appeal as it does not amount to an attack of the court’s judgment. Respondents added that it will be infeasible for one to fail to appreciate an aspect of law and not still deliver a legally sound judgment on the matter before that court. In any case the respondents, submitted the validity of the notice of seizure was never an issue before the court <em>a quo</em>, no court application for review was ever brought before the court <em>a quo</em>.</p> <p>Finally the respondents submitted that the whole set of grounds of appeal filed by the appellants is a complete nullity and must be struck off the roll with costs on legal practitioner – client scale.</p> <p>The preliminary points relating to the grounds of appeal were raised in respondent’s heads of argument, the appellants did not apply to this court to file supplementary heads addressing the quality or appropriateness of the grounds of appeal. Having closely examined and analysed the six grounds of appeal filed on behalf of the appellants the preliminary points raised by the respondents have a basis.</p> <p>In terms of Order 31 (i) (4) (b) of the Magistrates Court (Civil) Rules, 2019, 2019, a valid ground of appeal shall state:</p> <p><em>“(b)      in the grounds of appeal concisely and clearly the findings of fact or ruling of law appealed against.” </em></p> <p> </p> <p>For a ground of appeal to be acceptably valid, it must be specific and hence if it is impressive that ground is not a valid one at law.<a href="#_ftn3" name="_ftnref3" title="" id="_ftnref3">[3]</a> In the matter of <em>Kodzwa v Yambuka Holdings and Others<a href="#_ftn4" name="_ftnref4" title="" id="_ftnref4"><strong>[4]</strong></a></em> the court remarked dealing with the Old Magistrates Court Rules:</p> <p>“At the hearing of the matter I asked the appellant’s legal practitioner whether the notice of appeal complied with Order 31 r 2 (4). <em>Mr Muchineripi</em> vigorously defended the notice of appeal. He states that the grounds of appeal are clearly set out in the Notice of Appeal Rule 2 (4) provides:</p> <p> </p> <p>            <strong><em>‘(4) A notice of appeal or cross-appeal shall state (a) …..</em></strong></p> <p><strong><em>(b) the grounds of appeal specifying the findings of fact or rulings of law appealed against. </em></strong></p> <p> </p> <p>The word ‘specify’ was defined in the <em>Oxford English Dictionary </em>as “to state explicitly”. In other words the appellant is expected to clearly define and outline his or her grounds of appeal. The above issue was dealt in s. v Mc Nab<a href="#_ftn5" name="_ftnref5" title="" id="_ftnref5">[5]</a>. The above decision was followed in s. v Jack <a href="#_ftn6" name="_ftnref6" title="" id="_ftnref6">[6]</a> where it was held that rule 22 contained in SI 504 of 1979, requires a notice “setting out clearly and specifically the grounds of appeal”.</p> <p> </p> <p>Although this was a criminal matter, the same can be said of a notice of appeal in civil matters <a href="#_ftn7" name="_ftnref7" title="" id="_ftnref7">[7]</a> <em>in casu</em>, the appellant’s grounds of appeal are far from being concise and specific.  The notice of appeal is four typed pages in a simple matter of rescission of judgement.  They are long, winding and rumbling. From a mere reading of the grounds of appeal, it is difficult to decipher what the appellant is attacking in the judgement of the court <em>a quo</em>. The court is left in a situation where it has to attempt to make out the grounds of appeal. This the court cannot do, as it amounts to drafting grounds of appeal on behalf of the appellant”<a href="#_ftn8" name="_ftnref8" title="" id="_ftnref8">[8]</a>.</p> <p>In the case of <em>Kunonga v The Church of the Province of Central Africa</em><a href="#_ftn9" name="_ftnref9" title="" id="_ftnref9">[9]</a> the Supreme Court dealing with the issue relating to the fact that “grounds must be clear and concise” stated:</p> <p>“ [21] in  <em>S v McNab</em><a href="#_ftn10" name="_ftnref10" title="" id="_ftnref10">[10]</a> the only ground of appeal before this court was that: ‘ The learned Trial Magistrate erred  in fact and law in holding that the state has proved the appellant was so drunk as to be incapable of having proper control of his motor vehicle’ this court held that the above ground did not comply with the rules of court and more specifically that the notice of appeal did not set out clearly and specifically the grounds of appeal. The court remarked at page 282 F-G:</p> <p>          </p> <p><em>‘… there must be stated in the Notice of Appeal’ a precise statement of the points on which the applicant relies”. A statement that the magistrate erred in fact and in law in holding that the state had proved appellant was so drunk to be incapable of having proper control of his motor vehicle’ is not precise enough … it does not tell the respondent or the magistrate what is it that is being attacked. The respondent is, required to prepare his answer to the allegations made in the Notice of Appeal ….’</em></p> <p> </p> <p>            In <em>Songono v Minister of Law and Order</em> it was held:</p> <p>“it has been held that grounds of appeal are bad if they are so widely expressed that it leaves the appellant free to canvass every funding of fact and every ruling of the law by the court a quo, or if they specify the findings of facts or ruling of law appealed against so vaguely as to be of no value either to the court or to the respondents, or if they, in general fail to specify clearly and in unambiguous terms exactly what case the respondent must be prepared to meet…</p> <p>The lengthy and rambling notice of appeal filed in case falls woefully short of what was required, Mr Bursey suggested that grounds of appeal could be gleaned from the notice but that is not for the court to have to analyse a lengthy document in an attempt to establish what grounds the applicant intended to rely upon but did not clearly set out …”</p> <p> </p> <p>It is not adequate for the appellant to prepare documents and inscribe on it that it is a notice of appeal and then write a list of complaints against a judicial officer’s ruling or decision or conclusion and take it to a court of appeal for that court to randomly rummage what it can discern to be the complaint of the appellant against the lower court. Dealing with the similar provision of the <em>Magistrates Court Rules of South Africa</em>, Stegmann J<a href="#_ftn11" name="_ftnref11" title="" id="_ftnref11">[11]</a> spelt out distinct requirements, both of which have to be satisfied for a proper notice of appeal for it to qualify as a valid one: the notice must specify details of what is appealed against (i.e. the particular findings of facts and ruling of law that are to be criticised on appeal as being wrong or misdirection) and secondly; the grounds of appeal (that is it must indicate why each finding of fact or ruling of law that is to be criticised as wrong is said to be wrong, for example that the finding of fact appealed against is inconsistent with some documentary evidence that shows to the contrary or because it is inconsistent with the oral evidence of one or more witnesses, or because it was against the probabilities peculiar to the matter under consideration. Such comparative analysis would then be ratified in detail in the heads of argument by referring to particular pages of the record of proceedings and evidence adduced by the parties during the hearing. The trial officer and the respondent will be availed with enough and clear grounds for them to respond meaningfully. Such grounds of appeal however have to be concise and brief but albeit comprehensive in expression<a href="#_ftn12" name="_ftnref12" title="" id="_ftnref12">[12]</a></p> <p>            In <em>Dzinoreva v The State</em><a href="#_ftn13" name="_ftnref13" title="" id="_ftnref13">[13]</a> the court defined the nullity of the defectiveness of grounds of appeal:</p> <p>“The third grounds of appeal attacks conviction on the vague averments that the state failed to prove its case beyond a reasonable doubt. It is trite that such a ground is too vague a ground to constitute a ground of appeal. It is the same as saying the appellant is not guilty because he is not guilty. The magistrate who is seized with such a notice and grounds of appeal is entitled not to respond to it at all. He cannot possibly know what it is which is being attacked in his judgement. A notice of appeal without meaningful grounds is not a notice of appeal. As such it is a nullity which cannot be amended”</p> <p> </p> <p>            In the matter of <em>Kunonga</em> (<em>supra</em>) the supreme court summarised almost all the previously decided cases relating to the grounds of appeal, such as that “<strong>the judgement was against the weight of evidence</strong>” that a court’s finding is wrong because of “<strong>the fact that the charge was not substantiated</strong>” or that “<strong>the learned magistrate erred in accepting the complainant’s evidence</strong>” “ <strong>the conviction is against the weight of the evidence</strong>” “<strong>the evidence does not support the conviction</strong>” “<strong>the conviction is wrong in law</strong>” or that “ <strong>the learned magistrate erred in convicting the accused person in the absence of any concrete evidence showing beyond a reasonable doubt … that he committed the offence</strong>” were held to be all incurably bad. They do not tell anyone what is it that is being attacked. Such grounds were  held to be “<strong>meaningless</strong>”</p> <p>            <em>In casu</em> the appellants ground of appeal aver that “<strong>the learned magistrate grossly erred and misdirected himself on facts and law</strong> “<strong>in concluding</strong>” or “<strong>in ordering</strong>” or “<strong>in putting to appropriate</strong>”, the use of all the words attacks the judgement of court or order granted as a result of a judgement or a ruling. All the grounds spelt by the appellants do not disclose what is it the appellants are complaining about, no wonder why the trial magistrate in his response to the grounds of appeal, properly in our view wrote that he stood by the reasons for his judgement filed of record, because he failed to appreciate what it was that he had failed or erred in his judgement. The points <em>in</em> <em>lemine</em> filed by the respondents are upheld.</p> <p>            There is need for this court to express its displeasure towards this business as usual by legal practitioners in the drafting of the grounds of appeal before a legal practitioner embarks to draft his or her client’s notice of appeal in order at least to comply with the rules of the court. Failure to do so would lead to an order of costs <em>de bonis propriis </em>on attorney client scale.  The appellants having received the respondents’ heads did not take any steps at least to apply for the amendment of the notice of appeal nor did the appellants engage the respondents and withdraw the defective notice from the court. Appellants nonchalantly proceeded to indicate and agree with the respondents to have the matter be decided on paper. That was not the proper attitude by the appellants.</p> <p>            Accordingly it is ordered as follows:</p> <p>            The appeal is struck of the roll with costs on attorney and client scale.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>MWAYERA J agrees ___________</p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> QINGSHAM INVESTMENTS (PRIVATE) LIMITYED V ZIMBABWE REVENUE AUTHORITY HH 207/17.</p> <p><a href="#_ftnref2" name="_ftn2" title="" id="_ftn2">[2]</a> See DZINOREVA V THE STATE HH 780/15</p> <p><a href="#_ftnref3" name="_ftn3" title="" id="_ftn3">[3]</a> KODZWA V YAMBUKA &amp; ORS  HH 389/16</p> <p><a href="#_ftnref4" name="_ftn4" title="" id="_ftn4">[4]</a> (<em>supra</em>)</p> <p><a href="#_ftnref5" name="_ftn5" title="" id="_ftn5">[5]</a>[5] 1986 (2) 280 (SC at 282 B-E</p> <p><a href="#_ftnref6" name="_ftn6" title="" id="_ftn6">[6]</a> 1990 (2) ZLR 166 (SC)</p> <p><a href="#_ftnref7" name="_ftn7" title="" id="_ftn7">[7]</a> S v Sibanda 2001 (2) ZLR 514 (H)</p> <p><a href="#_ftnref8" name="_ftn8" title="" id="_ftn8">[8]</a> See also the matter of Jonga v Minister of Lands HH 243/17</p> <p><a href="#_ftnref9" name="_ftn9" title="" id="_ftn9">[9]</a> SC 25/17</p> <p><a href="#_ftnref10" name="_ftn10" title="" id="_ftn10">[10]</a> Supra</p> <p><a href="#_ftnref11" name="_ftn11" title="" id="_ftn11">[11]</a> In Van de Walt v Abreu 1994 (4) SA 85 (w)</p> <p><a href="#_ftnref12" name="_ftn12" title="" id="_ftn12">[12]</a> Chikura No. &amp; Another AL Sham Global BVI Ltd SC 17/2017</p> <p><a href="#_ftnref13" name="_ftn13" title="" id="_ftn13">[13]</a> HH 780/15</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2020/37/zwmthc-37.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=34620">zwmthc-37.docx</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/civil-matter-appeal">Civil matter (Appeal)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/formalities-appeal">Formalities of Appeal</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/2017/207">Qingsham Inv. (Pvt) Ltd. v ZIMRA (HH 207-17 HC 930/17) [2017] ZWHHC 207 (29 March 2017);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2015/780">S v Dzinoreva (CA 508/13) [2015] ZWHHC 780 (06 October 2015);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2016/389">Kodzwa v Yambuka Holding T/A Yambukai Finance &amp; Others (HH 389/16 CIV ‘A’ 258/14) [2016] ZWHHC 389 (29 June 2016);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2017/243">Jonga v Minister, Lands &amp; Rural Resettlement (HH 243-17 CIV ‘A’ 68/15) [2017] ZWHHC 243 (04 April 2017);</a></div><div class="field-item even"><a href="/node/8336">Dr. Kunonga v Church of the Province of Central Africa (SC 25/17 Civil Appeal No. SC 646/15) [2017] ZWSC 25 (17 March 2017);</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> Mon, 06 Jul 2020 10:47:02 +0000 Sandra 9748 at https://old.zimlii.org Chirombo v Mutamburo (HH 42-20, CIV 'A' 182/17 Ref Case No. MC 304/16) [2020] ZWHHC 42 (19 December 2019); https://old.zimlii.org/zw/judgment/harare-high-court/2019/42 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>WILLIAM H. CHIROMBE</p> <p>versus</p> <p>JOHN MUTAMBURO</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUREMBA &amp; MANZUNZU JJ</p> <p>HARARE, 4 July, 2019 and 19 December 2019                              </p> <p> </p> <p> </p> <p><strong>Civil Appeal</strong></p> <p>                                           </p> <p><em>T. M Takawira,</em> for the appellant</p> <p>Respondent in person</p> <p> </p> <p> </p> <p>            MANZUNZU J: This is an appeal against the decision of the Magistrate sitting at Marondera on 23 May 2017 where the plaintiff’s claim was dismissed with no order as to costs. The appellant was the plaintiff in the lower court with the respondent as defendant. The appellant claimed among other remedies arrear rentals and holding over damages. The prayer for cancellation of the lease agreement and eviction was abandoned at trial as that was overtaken by events. After a full trial the appellant’s claim was dismissed. The appellant initially raised 4 grounds of appeal before abandoning the 3rd and 4th ground at the hearing. The two grounds of appeal relied upon are:</p> <p>“1.  The learned magistrate erred in fact and law in dismissing the appellant’s claim based on the reasoning that the lessor has the onus to prove non-payment of arrear rentals despite the law clearly stating that the lessee has the burden to prove payment of alleged arrear rentals. Specifically, the court erred in dismissing appellant’s claim in the absence of proof that respondent had indeed paid the claimed rentals.</p> <ol> <li>The learned magistrate erred in fact and in law in making a finding that the lease agreement had been orally varied by failing to consider the non-variation clause in the lease agreement and the parole evidence rule.”</li> </ol> <p> </p> <p>            The background to this matter is that appellant leased his stand 2792 Rujeko North Township Marondera to the respondent. A written lease agreement was drawn and signed by the parties. It was a 4 year lease agreement running from 1st March 2013 to 1st March 2017. In 2016 the appellant sued the respondent for $2 800 arrear rentals and holding over damages. After hearing evidence the magistrate dismissed the plaintiff’s claim. The court made certain findings of fact. Key findings of fact which led to the dismissal of the appellant’s claim were that appellant had ceded his rights to receive rent to one Maphious Mutonhori the prospective new owner to the property. Furthermore, that the respondent had proved that he paid the said arrear rentals to the said Maphious Mutonhori.</p> <p>            The grounds of appeal allege misdirection on the part of the Magistrate on both the findings of fact and law. The case of <em>Charuma Blasting &amp; Earthmoving Services (Pvt) Ltd</em> v <em>Njanjai &amp; Others</em> 2001 (1) ZLR 85 SC set the circumstances under which an appeal court can interfere with the decision of the court <em>a quo</em>, per Sandura JA.</p> <p>            “An appeal court will generally not interfere with the exercise of a discretion of a lower court.             However the appeal court is entitled to substitute its discretion for that of the lower court where       the lower court’s exercise of its discretion was based on error such as where it has acted on a     wrong principle, or took into account extraneous or irrelevant matter or did not take into account            relevant considerations or it was mistaken about facts.”</p> <p> </p> <p>a) Ground of Appeal No. 1</p> <p>            The appellant’s first ground of appeal attacks the judgment of the court <em>a quo</em> from two angles. The first being that the court applied a wrong principle of law when it pronounced that the lessor has the onus to prove non-payment of arrear rentals. A reading of the judgment is clear in that nowhere did the court say lessor has a duty to prove non-payment. The closest to that was when the court stated, “The plaintiff bears the onus of proof in relation to (a) and (b) but the lessor must prove payment.” Paragraph (a) and (b) in the judgment relates to proof for the existence of the contract and the lessor’s duties to the contract. The use of the word “lessor” in the sentence quoted above was an obvious mistake where it was meant to be “lessee” otherwise no logic can be drawn if the word lessor is used.</p> <p>            It is incorrect as suggested by the appellant in the heads that the claim was dismissed on the basis that the court had reasoned that the lessor had the onus to prove non-payment.</p> <p>            The second leg of this ground of appeal is that there was no proof of payment of rentals by the respondent. The judgment is clear in this aspect. It was the court’s finding that the rightful recipient to the rent was Maphious Mutonhori who corroborated the respondent’s evidence and also confirmed receipt of the rentals as per their prior trio agreement. That finding is based on evidence on record. We did not find any misdirection on the part of the court <em>a quo</em> in regard to this.</p> <p>b) Ground of Appeal No. 2</p> <p>            This ground of appeal attacked the judgment in that Magistrate erred in his finding that the lease agreement was varied orally. What is clear from the judgment is that no terms of the lease agreement was varied. The oral agreement only dealt with the issue of who was entitled to receive rent. In other words the appellant ceded his rights to receive rent to Maphious Mutonhori who for all intents and purposes took appellant’s legal position. An attempt was also made by the appellant to rely on the parole evidence rule. The parole evidence rule is a principle that preserves integrity of written documents. The rule applies to integrated contracts i.e. where parties acknowledge in writing that the document or statement is the complete and exclusive declaration of their agreement.</p> <p>            The findings of the court <em>a quo</em> was that there was a cession of rights in that as a result of the verbal agreement the existing creditor (appellant) ceased to be a creditor and a new creditor (Maphious Mutonhori) became a new creditor. Such an agreement in our view cannot be defeated by a non-variation clause or principle of parole evidence rule.</p> <p>            We found no merit in this ground of appeal.</p> <p>            The appeal cannot succeed. Accordingly the appeal is dismissed with costs.</p> <p> </p> <p> </p> <p> </p> <p>MUREMBA J agrees:………………………………..</p> <p> </p> <p> </p> <p><em>Mupanga BhatasaraAttorneys</em>, appellant’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/42/2020-zwhhc-42.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=22281">2020-zwhhc-42.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/2019/42/2020-zwhhc-42.pdf" type="application/pdf; length=205403">2020-zwhhc-42.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/civil-matter-appeal">Civil matter (Appeal)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grounds-appeal">Grounds (Appeal)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/contract">CONTRACT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/evidence-0">Evidence</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/parol-evidence-rule">parol evidence rule</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-parol-evidence-may-be-led">when parol evidence may be led</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/l">L</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/landlord-and-tenant">LANDLORD AND TENANT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/lease">Lease</a></li></ul></span> Thu, 30 Jan 2020 07:31:35 +0000 Sandra 9474 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 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 Seargent Mhande 04737T & Another v The Chairman of the Police Service Commission & 2 Others (SC 63/18, Civil Appeal No. SC 674/18) [2018] ZWSC 63 (05 October 2018); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/63 <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</strong><strong>        (53)</strong></p> <p> </p> <p> </p> <p><strong>(1)     SERGEANT      MHANDE     04737T     (2)      CONSTABLE      MHAKA     O     081215B</strong></p> <p><strong>v</strong></p> <p><strong>(1)     THE     CHAIRMAN     OF     THE     POLICE     SERVICE      COMMISSION      (2)      THE     COMMISSIONER     GENERAL     OF      POLICE      (3) THE     MINISTER     OF     HOME     AFFAIRS</strong></p> <p> </p> <p> </p> <p> </p> <p>          </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>BERE JA,</strong></p> <p><strong>HARARE: OCTOBER 4 &amp;  5, 2018</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>T. Muvhami</em>, for the appellant</p> <p><em>T. Shumba</em>, for the respondent</p> <p> </p> <p><strong>IN CHAMBERS</strong></p> <p> </p> <p> </p> <p><strong>BERE JA:      </strong>This is a chamber application for reinstatement of appeal where the application seeks an order couched in the following terms: -</p> <p>“It is ordered that</p> <ol> <li>The application for reinstatement of appeal be and is hereby granted.</li> <li>The applicants’ appeal in SC753/17 be and is hereby reinstated.</li> <li>The applicants’ heads of argument in SC752/17 attached to this application shall be deemed to have been filed as at the date of this order.</li> <li>The costs shall be in the cause.”</li> </ol> <p> </p> <p>The facts giving rise to this application which can be gleaned from the filed papers are as follows: -</p> <p>Under case number SC753/17 the applicants made a similar application for reinstatement of their appeal before my brother Bhunu JA who after considering the documents filed and hearing counsel granted the order by consent with a caveat that the applicants were supposed to file their heads of argument within ten (10) days from the date of the order.</p> <p> </p> <p>For some reason, the order by Bhunu JA was not complied with. I suppose this is what has now necessitated the filing of this current application.</p> <p> </p> <p>In their application for reinstatement of the appeal, the applicants through their counsel allege that the letter calling on them to file heads never got to the attention of the lawyer due to misfiling in the lawyer’s offices. This was attributed to the negligence of their secretary.</p> <p> </p> <p>In support of the confusion in their offices the deponent attached an affidavit from the secretary concerned which details the alleged mix up. The secretary alleged that she received the letter calling on the applicants to file their heads of argument on 20 June 2018 and inadvertently filed the letter in a wrong file. She further alleged that she only discovered the mix up or the misfiling of the letter on 24 August 2018, necessitating the filing of this chamber application on 10 September 2018, exactly 17 calendar days after the alleged anomaly.</p> <p> </p> <p>The respondents have opposed this application. The respondents expressed reservations on the bona fides of the explanation given by the applicants for their failure to comply with Bhunu JA’s order which had been granted by consent.</p> <p> </p> <p>More importantly, the respondents argued that the applicants had not sought condonation for their non-compliance with the court order and that therefore, the application for reinstatement was improperly before the court.</p> <p> </p> <p>Finally, the respondents argued that the applicants desired appeal had no prospects of success.</p> <p> </p> <p>CONDONATION AND EXTENSION OF TIME</p> <p>It is the accepted position of the law that an applicant who has failed to comply with a given court order, or infringed the rules of the court must seek to be condoned or pardoned for non-compliance first before applying for reinstatement of their case.</p> <p> </p> <p>                        In the case of <em>Zimslate Quartize (Pvt) Ltd &amp; Others v Central African Building Society SC34/17</em> Ziyambi JA, when dealing deal with an almost similar matter remarked as follows: -</p> <p>“An applicant who has infringed the rules of the court before which he appears, must apply for condonation and in that application explain the reasons for the infraction. He must take the court into his confidence and give an honest account of his default in order to enable the court to arrive at a decision as to whether to grant the indulgence sought. An applicant who takes the attitude that indulgence, including that of condonation, are there for the asking does himself a disservice as he takes the risk of having his application dismissed.”</p> <p> </p> <p>                        It is clear that in this application, the applicants have not made any attempt to seek condonation. This does not appear in the founding affidavit or in the draft order filed. There is no indication at all why the application is being brought back to court almost four months after they failed to comply with an earlier order for reinstatement of the appeal. The situation is further compounded by the failure by the applicants to explain the cause of the delay seeking an appropriate remedy 17 days after they discovered the anomaly.</p> <p> </p> <p>As noted by Makarau JA in <em>Bonnyview Estates (Pvt) Ltd vs Zimbabwe Platinum Mines (Pvt) Ltd &amp; The Minister of Lands &amp; Rural Resettlement Judgment No SC58/18</em>;</p> <p>“Condonation is an indulgence granted when the court is satisfied that there is good and sufficient cause for condoning the non-compliance with the rules.”</p> <p>I might add that it is not for the court to infer or speculate about the existence of condonation when no request has been made for it. It must be applied for before reinstatement can be sought. It is in my view jumping the gun to seek reinstatement of an appeal before first seeking condonation and extension of time in situations where one has clearly infringed the court rules or an order of court as in this case.</p> <p> </p> <p>MATERIAL NON-DISCLOSURE </p> <p>There is one other aspect of this case which has caught my attention. There is no attempt by the applicants to advert to Bhunu JA’s earlier order in this application. There is no appetite by the applicants through their founding affidavit to openly disclose that this application is a second similar application which is being brought to court. That deliberate attempt to withhold information does not project the applicants in good light. Our courts are not keen to grant favorable orders to litigants who withhold vital information to it. Ndou J made this important observation in the case of <em>Anabus Services (Pvt) Ltd vs Minister of Health and Others HB88-03 </em>when he remarked as follows: -</p> <p>“The courts should in my view always frown on an order whether exparte or not sought on incomplete information. It should discourage non-disclosure, mala fides, or dishonesty.”</p> <p> </p> <p> </p> <p> </p> <p>The order by Bhunu JA and its relevance to these proceedings only came to the attention of the court through the notice of opposition filed by the respondents. That non-disclosure did not enhance the applicants’ application.</p> <p> </p> <p>DISPOSITION</p> <p>Under normal circumstances, if this application had been properly before the court I would have been inclined to consider prospects of success.</p> <p> </p> <p>However, given my position that the absence of an application condonation and extension of time to seek reinstatement must be precedent to an application for reinstatement of this appeal, I consider the application as fatally defective.</p> <p> </p> <p>I accordingly order that the matter be struck off. It is thus ordered: -</p> <p>“That the matter be and is hereby struck off the roll with costs.”</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>Mugiya &amp; Macharaga Law Chambers</em>, appellant’s legal practitioners.</p> <p> </p> <p><em>Civil Division of the Attorney General’s Office</em>, respondent’s legal practitioner’s</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2018/63/2018-zwsc-63.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=30021">2018-zwsc-63.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/2018/63/2018-zwsc-63.pdf" type="application/pdf; length=210428">2018-zwsc-63.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/condonation">Condonation</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/2017/34">Zimslate Quartzite (Pvt) Ltd. &amp; Others v CABS (SC 34/2017 Chamber Application No. SC 82/17) [2017] ZWSC 34 (10 May 2017);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2018/58">Bonnyview Estates (Private) Limited v Zimbabwe Platinum Mines (Private) Limited &amp; Another (SC 58/18, Civil Appeal No. 411/17) [2018] ZWSC 58 (26 September 2018);</a></div></div></div> Mon, 19 Nov 2018 09:45:07 +0000 admin 9157 at https://old.zimlii.org Amalgamated Rural Teachers Union of Zimbabwe & Another v ZANU PF & Another (HMA 37-18, HC 297/18) [2018] ZWMSVHC 37 (17 July 2018); https://old.zimlii.org/zw/judgment/masvingo-high-court/2018/37 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>AMALGAMATED RURAL TEACHERS UNION OF ZIMBABWE[2]</p> <p>and</p> <p>OBERT MASARAURE                                           </p> <p>versus</p> <p>ZIMBABWE AFRICAN NATIONAL UNION [PATRIOTIC FRONT]</p> <p>and</p> <p>MINISTER OF PRIMARY AND SECONDARY EDUCATION</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAFUSIRE J</p> <p>HARARE, 16 &amp; 17 July 2018</p> <p> </p> <p> </p> <p><strong>Urgent chamber application – leave to execute</strong></p> <p> </p> <p>Mrs <em>B. Mtetwa, </em>for the applicants</p> <p>Mr <em>N. Mushangwe, </em>for the first respondent</p> <p>Mr <em>T. Undenge</em>, for the second respondent</p> <p> </p> <p>MAFUSIRE J</p> <p>[1]        This is an application for leave to execute pending appeal. On 28 July 2018 I granted an interim interdict in the following terms:</p> <p> </p> <p>“Pending the final determination of this present case and/or the conclusion of the 2018 election cycle, including any run-off election, whichever comes first, it is hereby ordered:</p> <p> </p> <ul> <li>The first respondent is interdicted and restrained from asking, encouraging or forcing children at schools to attend or to participate in political rallies or activities or causing the closure of schools for any of its political rallies or activities.</li> </ul> <p> </p> <ul> <li>The first respondent is interdicted and restrained from compelling teachers to attend political rallies, wear party regalia, prepare performances for children to deliver at rallies or make contributions towards rallies whether in cash or kind.</li> </ul> <p> </p> <ul> <li>The first respondent is interdicted and restrained from using school property including school premises, buses, furniture, classrooms or any other property that belongs to the school, the Government or School Development Associations for any political rally or any other political purpose.</li> </ul> <p> </p> <ul> <li>The second respondent and/or any employees of his Ministry are interdicted and restrained from assisting the first respondent to do any of the restrained activities above or allowing the first respondent to use schools for political purposes.”</li> </ul> <p> </p> <p>[2]        The first respondent is the ruling party in Zimbabwe. The second respondent is a minister of government in charge of primary and secondary education. He is a member of the first respondent. The first applicant is a trade union of primary and secondary school teachers in rural Zimbabwe. The second applicant is a teacher. He is the current president of the first applicant.</p> <p> </p> <p>[3]        The first respondent appealed against the interdict in its entirety. It is pending that appeal that the applicants have sought leave to execute.  Just as in the original application, the second respondent does not oppose the application and he seeks to abide by the decision of the court. On the other hand, the first respondent does oppose it vigorously.</p> <p> </p> <p>[4]        An application for leave to execute is available because by operation of the law, an appeal automatically suspends the decision appealed against and so it cannot be carried into execution. But if despite the appeal the successful party wants to execute the judgment in the interim, he has to seek the leave of the court that granted the judgment.</p> <p> </p> <p> [5]       The application is premised on the principle that the court has an inherent power to control its own process. The overriding principle is the need to achieve real and substantial justice: see <em>Santam Insurance Company Ltd v Paget [2]</em>. In such an application, the court is guided by the following factors, which it considers cumulatively:</p> <p> </p> <ul> <li>The preponderance of equities: that is to say, the potentiality of irreparable harm and prejudice to the applicant if leave to execute is granted, or the potentiality of irreparable harm and prejudice to the respondent on appeal if leave to execute is refused.</li> </ul> <p> </p> <ul> <li>The prospects of success of the appeal: that is to say, whether the appeal is frivolous or vexatious or has been noted, not with the genuine intention of correcting a perceived wrong, but merely in order to buy time;</li> </ul> <p> </p> <ul> <li>If the competing interests are equal, then the balance of hardship to either party;</li> </ul> <p> </p> <p>see <em>Zaduck </em>v<em> Zaduck [2] </em>1965 RLR 635 [GD]; 1966 [1] SA 550 [SR]; <em>Graham </em>v <em>Graham</em> 1950 [1] SA 655 [T]; <em>South Cape Corporation v Engineering Management Services</em> 1977 [3] SA 534 [A]; <em>Fox &amp; Carney (Pvt) Ltd </em>v<em> Carthew – Gabriel [2]</em> 1977 [4] SA 970 [R]; <em>Arches [Pvt] Ltd </em>v<em> Guthrie Holdings [Pvt] Ltd </em>1989 [1] ZLR 152 [H]; <em>ZDECO [Pvt] Ltd v Commercial Carriers College [1980] [Pvt] Ltd </em>1991 [2] ZLR 61 [H]; <em>Econet [Pvt] Ltd </em>v<em> Telecel Zimbabwe [Pvt] Ltd 1998 [1] ZLR 149 [H]</em>;</p> <p> </p> <p>[6]        Invariably, the decision whether or not to grant an application for leave to execute turns on the relative strength or weakness of the appeal. This necessarily entails ploughing substantially the same field as done at the original hearing. It also entails the court peeking into an appeal that is pending before the superior court and, in some way, pronouncing a verdict on it. That is one of the shortcomings of this type of application. Mr <em>Mushangwe</em>, for the first respondent, argues that this in fact, amounts to a usurpation of the functions of the superior court. That seems true, but to a very limited extent.</p> <p> </p> <p>[7]        In an application for leave to execute it is necessary to weigh the relative strength or weakness of an appeal to guard against frivolous and vexatious appeals that are noted purely to buy time and not for any genuine intention to correct a wrong by the lower court.  Each case depends on its own facts. Some factors relevant to the determination of this type of application may assume greater or lesser importance in some cases than do others in other cases.</p> <p> </p> <p>[8]        In the present case, I have considered that I can decide the matter without making a pronouncement on the prospects of success of the appeal. Some other factors have assumed greater importance. I have been informed that once the appeal was filed, the Supreme Court has already set down the appeal for hearing on 27 July 2018. That is eleven [11] days away, and just three [3] days before the general election on 30 July 2013.</p> <p> </p> <p>[9]        In <em>Engen Petroleum [Pvt] Ltd v Infrastructure Development Bank of Zimbabwe</em> I declined an application for leave to execute pending appeal when it was brought to my attention that the appeal had been set down for hearing in the Supreme Court in just a month’s time. I regarded it would be more prudent, more expedient, more practical and less disruptive to allow the appeal to be heard without upsetting the status <em>quo</em>. That would avoid a potentially embarrassing situation where I would grant the application only for the Supreme Court to overturn my judgment in a month’s time, probably after the Sheriff had attached and possibly removed assets.</p> <p>  </p> <p>[10]      However, in the present case, the term “<strong>execution</strong>” is hardly being used in the literal sense. It is hardly meant to refer to the situation of the Sheriff going after the respondents with some form of writ. What the applicants seek to achieve is basically to ensure that my order of 28 June 2018 remains operative despite the appeal.</p> <p> </p> <p>[11]      The applicants justify the granting of such an order on an urgent basis and with costs on a punitive scale on the grounds that even after the order was granted, the first respondent has with impunity persisted with the prohibited conduct. The applicants have detailed instances of the first respondent, through several functionaries, including some of its aspiring members of parliament in several parts of the country, ordering teachers and school children to attend its campaign rallies. They have attached pictures of school children and school buses draped in the first respondent’s colours at the first respondent’s rallies. Some parents of school children have submitted sworn statements confirming the forced attendance of their children at the rallies.</p> <p> </p> <p>[12]      Mrs <em>Mtetwa</em>, for the applicants, has argued that the first respondent’s conduct is extremely disruptive of school life, particularly at this time of the year when most schools are conducting mid-year examinations. She says there is a real fear of physical injury being caused to the children given that the first respondent’s rallies not infrequently turn violent. The damage is also psychological. Vulgar conduct, inflammatory language and other anti-social activities are all part and parcel of the first respondent’s rallies. Despite the first respondent’s appeal having been set down for hearing on an urgent basis, the need to protect children remains ever urgent. The damage being meted out to them is irreversible. This is against the background that the second respondent, the custodian of government policies on children, has not only refrained from appealing against the interdict, but also has, as he did in the original application, undertaken to abide by the decision of the court.</p> <p> </p> <p>[13]      The first respondent does not dispute the urgency of the matter. However, it stresses that the appeal having been set down for hearing in the next 11 days, there is no compelling reason for granting the order sought. It is more expedient to leave everything to the Supreme Court to give a final determination on the whole matter.</p> <p> </p> <p>[14]      The first respondent argues that the application is predicated on bald allegations that have remained unsubstantiated. It denies being involved in any of the wrongful activities chronicled by the applicants. It has argued that the order sought severely prejudices it. Among other things, the election campaign by all parties has entered a decisive phase. The first respondent cannot be seen to be switching the venues for its rallies some of which comprise school grounds. It denies using these premises, or the school buses and other assets by force and says it pays for them or utilises them with the consent of the relevant school authorities or parents’ bodies.</p> <p> </p> <p>[15]      Mr <em>Mushangwe</em>, for the first respondent has drawn particular attention to paragraph 3 of the interim interdict. Unlike paragraphs 1 and 2 that make it clear that what is prohibited is the conduct of the first respondent in compelling or coercing school children and their teachers to attend rallies or to contribute towards the cost of holding them, paragraph 3 is cast in very wide terms. It is a blanket prohibition against the use of school property regardless of whether the first respondent pays for it or not, or regardless of whether it secures the consent of the relevant school authorities. Such a prohibition is so harmful to the first respondent’s interests that it must remain suspended by the pendance of the appeal.</p> <p> </p> <p>[16]      Mr <em>Mushangwe</em> has a point. Paragraph 3 of the interdict is couched in very wide terms. It clearly was unintended that the first respondent should be prohibited from using the school premises and other assets where it has the agreement of the relevant authorities. Mrs <em>Mutetwa</em> agrees that this is not what the applicants intended. Both parties have agreed that this particular concern can easily be addresses by a simple amendment to paragraph 2[c] of the draft order sought in the current application, by the addition of the words, “… <strong>without the consent of the school development committees or associations</strong> …” so as to make it clear that what is being prohibited is the first respondent’s use of force. Of course, the first respondent does not concede that the order sought is warranted.</p> <p> </p> <p>[17]      But beyond its concern on the wording of paragraph 3 of the interdict as aforesaid, the first respondent really has no good reason to resist the order being sought in the present application. No reasonable person can genuinely have any serious objections to such a progressive order that merely seeks to protect a vulnerable section of society such as school children. Even the first respondent itself is not saying that such an order is a bad thing. It is simply saying it is not doing the acts complained of.</p> <p> </p> <p>[18]      To my question what prejudice the first respondent will suffer if the order is granted, Mr <em>Mushangwe</em> retorts by a counter question: what prejudice do the applicants themselves suffer if the status <em>quo </em>remains until the appeal is determined in a mere 11 days’ time?</p> <p> </p> <p>[19]      In my judgment in the original application, I made a positive finding that the respondents were guilty of flagrant abuse of the rights and freedoms of the school children; their schools and their teachers as was set out in that application. I found that the respondents’ conduct infringed on a number of the children’s rights as set out in the Constitution, such as the following:</p> <p> </p> <ul> <li>the right to education [s 75 and s 81(1)(<em>f</em>)];</li> </ul> <p> </p> <ul> <li>the right not to be compelled to take part in any political activity [s 81(1)(<em>h</em>)];</li> </ul> <p> </p> <ul> <li>the right not to perform work or provide services that are inappropriate for the children’s ages [s 19(3)(<em>b</em>)(i)];</li> </ul> <p> </p> <ul> <li>the right not to perform work or provide services that place at risk the children’s well-being, education, physical or mental health or spiritual, moral or social development [s 19(3)(<em>b</em>)(ii)];</li> </ul> <p> </p> <p>[20]      I also found that the respondents’ conduct infringed on the rights of the applicants’ members as set out in the Constitution, such as the following:</p> <p> </p> <ul> <li>the right to freedom of assembly and association, and the right not to assemble or associate with others [s 58(1)];</li> </ul> <p> </p> <ul> <li>the right not to be compelled to belong to an association or to attend ameeting or gathering [s 58(1)];</li> </ul> <p> </p> <ul> <li>[in relation to school premises and assets under their occupation, custody or control] the right to hold, occupy and use property, and the right not to be compulsorily deprived of same [s 71(2) and (3)].</li> </ul> <p> </p> <p>[21]     On such findings I held that any breach of the rights accorded by the Constitution should not be allowed to subsist for any day longer. It is when such allegations are made that the court, as the upper guardian of all minor children, should be moved to set aside all its other non-urgent business to attend to the urgent matter.</p> <p> </p> <p>[22]      <em>In casu</em>, I have considered that the preponderance of equities favours the granting of the application. If it were an application for leave to execute an ordinary judgment sounding in money, as was the case in the <em>Engen Petroleum</em> case referred to above, then it would probably have been more expedient to leave everything for the Supreme Court which is set to determine the appeal in the next eleven days. But this is not an application for leave to execute an ordinary judgment sounding in money. <em>Engen Petroleum</em> is distinguishable.</p> <p> </p> <p>[23]      Both parties agree that campaigning for votes in the forthcoming election on 30 July 2018 has entered the home stretch. Political parties are leaving no stone unturned. There is heightened political activity. More rallies have been lined up. It is probably now, more than ever, that school children and their teachers in particular, require greater protection from some excesses by political parties. Examinations should not be disrupted. Every day counts. Eleven days is such a long time, especially given that one of the applicants’ fears is that of physical violence.</p> <p> </p> <p>[24]      The first respondent’s concerns are more to do with what it considers to be negative publicity generated by the interdict. But it is up to it to desist from the conduct complained of. At any rate, that kind of prejudice is incomparable to that being suffered by the school children. The evidence placed before me shows that the first respondent has continued with the prohibited conduct even after the granting of the interdict.  </p> <p> </p> <p>[25]     In the premises the application for leave to execute is hereby granted in the following terms:</p> <p> </p> <p>i/          The application for leave to execute the judgment of this court granted on 28 June 2018 in Case No. HC 263/18 pending the appeal against that judgment noted by the first respondent under SC 513/18 is hereby granted.</p> <p> </p> <p>ii/         Thus, the respondents, their employees, members and/or agents are, notwithstanding the appeal, interdicted and restrained from:</p> <p> </p> <ul> <li>asking, encouraging or forcing children at schools to attend or participate in political rallies or activities or causing the closure of schools for any of its political rallies or activities;</li> </ul> <p> </p> <ul> <li>compelling teachers to attend political rallies, wear party regalia, prepare performances for children to deliver at rallies, or to make contributions towards rallies whether in cash or kind;</li> </ul> <p> </p> <ul> <li>using school property including school premises, buses, furniture, classrooms or any other property that belongs to the schools for any political rally or any other political purpose without the consent of the relevant school authorities.</li> </ul> <p> </p> <p>iii/        The first respondent shall pay the applicants costs for this application.</p> <p> </p> <p> </p> <p>17 July 2018</p> <p> </p> <p><em>Mtetwa &amp; Nyambirai, </em>legal practitioners for the applicants</p> <p><em>Mushangwe &amp; Company</em>, legal practitioners for the first respondent</p> <p><em>Civil Division of the Attorney-General’s Office, </em>legal practitioners for the second respondents</p> <p>1981 ZLR 132, at p 134 – 135</p> <p>HH 270-17</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2018/37/2018-zwmsvhc-37.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=59665">2018-zwmsvhc-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/masvingo-high-court/2018/37/2018-zwmsvhc-37.pdf" type="application/pdf; length=250130">2018-zwmsvhc-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/civil-matter-appeal">Civil matter (Appeal)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/execution-practice-and-procedure">Execution (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/pending-appeal-execution">pending appeal of execution</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/when-should-execution-appeal-be-granted">when should execution appeal be granted</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/2017/270">Engen Petroleum (Pvt) Ltd. v IDBZ (HH 270-17 HC 8588/16 Ref Case No. 4095/11) [2017] ZWHHC 270 (03 May 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/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Tue, 07 Aug 2018 10:22:30 +0000 admin 9087 at https://old.zimlii.org Mzite v Damafalls Investments (Private) Limited & Another (SC 21/18, Civil Appeal No. SC 89/16) [2018] ZWSC 21 (23 June 2016); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2016/21-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>EASTER        MZITE</strong></p> <p><strong>(In     her     capacity     as     the     Executrix     Dative     of     the     Estate     Late     Chemayi      Joseph     Mtize)</strong></p> <p><strong>v</strong></p> <ol> <li>DAMAFALS INVESTMENTS (PRIVATE) LIMITED &amp; THE MASTER OF THE HIGH COURT</li> </ol> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>HARARE: JULY 18, 2016</strong></p> <p> </p> <p><em>D.P. Drury (Pro amico), </em>for the applicant</p> <p>Ms<em> Matshiya, </em>for the first respondent</p> <p>No appearance for the second respondent</p> <p> </p> <p><strong>IN CHAMBERS</strong></p> <p> </p> <p><strong>BHUNU JA:</strong>       This is an application for condonation and extension of time within which to note an appeal in terms of r 31(3) of the Supreme Court Rules 1964. The applicant is the widow of the late Chemayi Joseph Mtize. She is the duly appointed executrix dative of his deceased estate.</p> <p>The first respondent, Damafalls (Pvt) Ltd is a duly registered company in terms of the laws of Zimbabwe whereas the second respondent, the Master of the High Court is cited in his official capacity. He is responsible for the administration of deceased estates.</p> <p> </p> <p>The first respondent sued the applicant in the High Court alleging that during his life time the deceased sold stand number 2699, Gwelo Township to it. In consequence whereof it sought the following relief against his deceased estate:</p> <ol> <li>An order for the setting aside by the second defendant of the distribution of Stand 2699 Gwelo Township to the beneficiaries of the estate Late Chemayi Joseph Mtize.</li> <li>An order for the transfer of Stand 2699 Gwelo Township from the estate of the Late Chemayi Joseph Mtize to the plaintiff, failing which the Deputy Sheriff Gweru be authorised to sign the transfer documents.</li> <li>An order for the eviction of the first defendant from Stand 2699 Gwelo Township.</li> <li>An order for payment of US$2 800-00 together with a sum of US$400-00 per month from 1 December 2014 to date of eviction of first defendant and all those claiming occupation in her name. Or alternatively an order for payment to the plaintiff by the first defendant of the value of the said property currently US$60 000-00.</li> <li>An order for payment of legal costs on an attorney client scale.</li> </ol> <p> </p> <p>The applicant unsuccessfully defended the respondent’s suit in the court <em>a quo</em> with judgment being given against her on 23 December 2015. If she intended to appeal against that judgment she had 15 days from the date of judgment to note her appeal in terms of r 30 of the Supreme Court Rules 1964. She however only approached this court on 26 February 2016 with this application for condonation of late noting of appeal and extension of time to file the appeal. By then she was 26 days out of time excluding weekends and public holidays.</p> <p> </p> <p>The requirements for the application of this nature to succeed are well known as outlined in the case of <em>Kombayi v Berkout</em> 1988 (1) ZLR 53 (S). These are:</p> <ol> <li>The extent of the delay;</li> <li>The reasonableness of the explanation for the delay; and</li> <li>The prospects of success on appeal.</li> </ol> <p>I now proceed to consider the three requirements in sequence.</p> <p> </p> <p>The Extent and Reasonableness of the Explanation for Delay</p> <p>The judgment sought to be appealed against is dated 23 December 2015 but was issued to the applicant on 25 January 2016. Rule 30 of the Supreme Court Rules 1964 requires that where leave to appeal is not necessary the aggrieved   party must appeal to this court within 15 days of the date of judgment.</p> <p> </p> <p>The applicant’s explanation for delay is that despite frequent enquiries with her erstwhile Legal Practitioners she was consistently told that judgment was not yet ready. She only received notification that the judgment was now ready for collection on 19 January 2016. Her erstwhile Legal Practitioners did not receive the notification timeously because the Law Firm had closed for the Christmas and New Year holidays.</p> <p> </p> <p>It was her submission that when she received the letter advising her that judgment was ready for collection, she promptly consulted her current Legal Practitioners and made arrangements to travel from Gweru to Harare to collect the judgment. She however only managed to collect a copy of the judgment from the Registrar of the High Court on 25 January 2016.</p> <p> </p> <p>Having received a copy of the judgment on the 25 January she only filed this application on 23 February 2016 which is almost a month after receipt of a copy of the judgment. Her explanation for this further delay is that she was conferring with her current legal practitioners.</p> <p> </p> <p>That explanation is rather unsatisfactory but considering her indigent state and the importance of this case to her and her family, it is difficult to dismiss her explanation off-hand as being unreasonable. I take that view because her current legal practitioners are representing her <em>pro amico </em>out of their generosity and benevolence of their good heartedness.</p> <p> </p> <p>In the normal run of things I consider that it is difficult to find a legal practitioner willing to offer his services for free within a short space of time.</p> <p> </p> <p>The applicant presents a picture of an elderly unsophisticated widow, desperately fighting to save her home with paltry resources and scanty knowledge of the legal intricacies. Despite those impediments she did not sit back doing nothing about this case. She fought tooth and nail in search of justice in circumstances where she could not afford legal representation. For that reason there is need to give her the benefit of a reasonable doubt so as to consider and ventilate her prospects of success on appeal on the merits.</p> <p> </p> <p>Prospects of success on Appeal</p> <p>The plaintiff relied on the evidence of four witnesses in the court <em>a quo</em>, comprising Martin Mataranyika, Edmore Samson, Priscilla Marume and Ravheti Kaseke.</p> <p> </p> <p>Martin Mataranyika was the main witness for the plaintiff. It was his testimony that he was a business consultant with a company called Millennial Insurance Company. The first respondent was the principal shareholder whereas, the late Joseph Chemayi Mtize was one of the executive Directors.</p> <p> </p> <p>Sometime in 2005 there was need to inject more capital in the company. He then advised the executive directors to top up their nominal shareholding in a board meeting to avoid their shareholding being diluted to zero by the envisaged increase in capital. The late Chemayi Mtize who had no money offered to sell the disputed property to the first respondent to raise funds to purchase more shares. He is not privy to the contract of sale but he knows that the late Mtize travelled to Gweru with a representative of the respondent company to view the property. Following the trip to Gweru the late Mtize later bought more shares from Millenial Insurance Company.</p> <p> </p> <p>Edmore Samson is the first respondent’s Managing Director and a shareholder in Millenial Insurance Company. He confirmed Mataranyika’s evidence that in 2015 there arose need to raise Millenial Insurance Company’s share capital. It then became necessary for shareholders to increase their shareholding by purchasing more shares in the company. He corroborated Mataranyika’s evidence to the effect that the late Mtize who had no money offered to sell his house to the first respondent.</p> <p> </p> <p>It was his testimony that the first respondent then bought house Number 5 Cooper Road Southdowns being the disputed property. The property was bought for $Z300 000 000 (three hundred million Zimbabwean Dollars) payable in instalments from May 2005 to August 2005. The agreement of sale was reduced to writing and signed by both parties. The written agreement of sale has since been misplaced and the first respondent’ officials are still looking for it.</p> <p>When the purchase price was paid in full, the late Mtize handed over the title deeds of the disputed property to the first respondent. He then took a copy of the title deeds saying he was taking it to ZIMRA for capital gains exemption since he was above the age of 60.</p> <p> </p> <p>It is common cause that the first respondent had possession of the original title deeds of the disputed property which were produced in evidence at the trial in the court <em>a quo</em>. It is also not in dispute that the first respondent took peaceful and undisturbed occupation of the property way back in 2005 soon after payment of the purchase price in full as alleged.</p> <p> </p> <p>Mrs Mtize the executrix dative of the late Mtize’s deceased estate alleged without proof that the first respondent stole the title deeds from the late Mtize’s office while he was ill. This unfounded allegation was denied by both witnesses for the first respondent, saying that Mtize’s office was kept under lock and key during the duration of his illness. Despite those serious allegations of theft of property of immense value, Mrs Mtize did not bother to report the theft to the police.</p> <p> </p> <p>Samson testified that Mrs Mtize only emerged about 9 years later when she invaded the property, forcibly took the keys and occupation of the property.</p> <p> </p> <p>Priscilla Marume testified that at the material time she was employed as the first respondent’s accountant. It was her testimony that she signed the agreement of sale as a witness in the presence of the late Mtize and Samson. She was responsible for paying the purchase price in full to the late Mtize. It was her evidence that she paid him the full purchase price starting from 13 May 2005 to 22 August 2005. Each time she paid him he would sign on a petty cash voucher to acknowledge receipt. She produced 3 cash voucher receipts dully signed by the late Mtize. The amounts on the 3 petty vouchers add up to a total of $Z300 000 000.00 (Three hundred million Zimbabwean dollars).</p> <p> </p> <p>She denied that the first respondent ever managed the property on behalf of the late Mtize as alleged by Mrs Mutize.</p> <p> </p> <p>It is common cause that Mrs Mtize in her first and final distribution account in the estate of her late husband Mtize deliberately left out the disputed property from the inventory.  </p> <p> </p> <p>According to Samson’s evidence when he approached Mrs Mtize seeking transfer of the disputed property, she was surprised that the property had not yet been transferred to the first respondent’s name.</p> <p> </p> <p>Upon realising that the property was still registered in her husband’s name she refused to effect transfer and filed a supplementary distribution account in which she included the disputed property in the distribution inventory. The supplementary account was advertised in the newspapers. The first respondent did not object because it did not see the advertisement.</p> <p> </p> <p>In her evidence Mrs Mtize confirmed having deliberately left out the disputed property from the first and final distribution account. She also confirmed having included it in the supplementary account upon realising that it was still registered in her late husband’s name. She explained that she initially left out the property from the initial distribution account because she wanted to investigate whether indeed the first respondent had purchased the disputed property as alleged.</p> <p> </p> <p>The evidence on record however establishes that she carried out no such investigations. She only decided to claim the property after being approached for transfer and realising that it was still registered in her late husband’s name.</p> <p> </p> <p>It is only then that she started to question the validity of the sale. She alleged without proof that the first respondent was merely administering the property on her late husband’s behalf. She did not know the terms of that arrangement or the commission her husband was paying to the first respondent.  She first said Z$325 after contradicting herself under cross-examination she ended up saying that she did not know.</p> <p> </p> <p>Faced with the totality of the evidence placed before her, the learned judge in the court <em>a quo</em> weighed the credibility of witnesses and made material findings of fact: She had this to say:</p> <p>“Looking at the evidence led before the court, I am inclined to find in favour of the plaintiff that there was indeed a sale agreement involving the late Mr Mtize’s property in Gweru between the plaintiff and Mr Mtize. I am convinced because the plaintiff’s witnesses gave their evidence very well and impressed the court as credible witnesses. They were truthful and did not exaggerate their testimonies”.</p> <p> </p> <p> </p> <p>The learned judge in the court <em>a quo</em>’s summation of evidence and analysis of the credibility of witnesses is beyond reproach. The evidence clearly exposes Mrs Mtize as a desperate widow trying to pounce on the delay in effecting transfer to hang onto property which her husband sold during his life time. The late Mtize having validly sold his property during his life time, it cannot form part of his deceased estate.</p> <p> </p> <p>For the foregoing reasons I consider that the judgment the applicant seeks to appeal against is water tight and unassailable. As such, there are no reasonable prospects of success on appeal.</p> <p> </p> <p>Although the first respondent has asked for costs at the punitive scale, these are not warranted. The first respondent was in a way to blame by delaying in seeking transfer.</p> <p> </p> <p>It is accordingly ordered:</p> <ol> <li>That the application for condonation of late noting of appeal and extension of time within which to appeal to the Supreme Court be and is hereby dismissed.</li> <li>That the applicant shall pay costs of this application at the ordinary scale.</li> </ol> <p><em>Honey &amp;</em> <em>Blanckenberg</em>, applicant’s legal practitioners<em>.</em></p> <p><em>Wilmot &amp; Bennett, </em>first respondent’s legal practitioners<em>.</em></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/2016/21/2018-zwsc-21.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=31725">2018-zwsc-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/supreme-court-zimbabwe/2016/21/2018-zwsc-21.pdf" type="application/pdf; length=235799">2018-zwsc-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/administration-estates">ADMINISTRATION OF ESTATES</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/deceased-estate">Deceased estate</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/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/condonation">Condonation</a></li></ul></span> Fri, 18 May 2018 10:22:59 +0000 admin 8828 at https://old.zimlii.org Makoni v Makoni & Another (SC 7/18, Civil Application No. SC 409/2016) [2018] ZWSC 7 (15 February 2018); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/7 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>DISTRIBUTABLE</strong><strong>   (7)</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>JULIUS     TAWONA     MAKONI</strong></p> <p><strong>V </strong></p> <ol> <li><strong>PAULINE MUTSA MAKONI (2) THE REGISTRAR OF DEEDS</strong></li> </ol> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>HARARE, 10 OCTOBER, 2016 &amp; FEBRUARY 15, 2018</strong></p> <p> </p> <p><em>F. Girach, </em>for the applicant</p> <p>Mr <em>S. Mpofu, </em>for the first respondent<em>.</em></p> <p> </p> <p><strong>IN CHAMBERS</strong></p> <p><strong>BHUNU JA:</strong>  This is an application for condonation of late noting of appeal and extension of time within which to file the appeal in terms of r 31 of the Supreme Court Rules, 1964.</p> <p>The parties were married but divorced in England. The court in England issued a decree <em>nisi</em> which the first respondent used to obtain an interdict in the local High Court. The interdict barred the applicant from dealing in the property known as No. 5 Reitfontein Close Highlands, Harare, which he claims to be his sole property.</p> <p>Aggrieved by the court <em>a quo’s</em> order, the appellant sought to appeal to this Court. He initially filed his notice of appeal on time but the application was struck off the roll with costs for want of compliance with r 29. The appeal was fatally defective in that it did not state the date on which the judgment appealed against was handed down, thereby prompting this application.</p> <p>The taxed costs amounted to $7 545.25.  (<strong>Seven Thousand five hundred and forty-five dollars twenty –five cents).</strong></p> <p>At the hearing Mr <em>Mpofu</em> counsel for the first respondent raised a point <em>in limine</em> objecting to the continuation of the proceedings before the applicant has settled the first respondent’s wasted costs. He accordingly moved for the proceedings to be stayed pending payment of the outstanding wasted costs.</p> <p> Mr <em>Girach</em> counsel for the applicant after taking brief instructions acknowledged that his client owed the first respondent the taxed costs. He however countered that his client is owed some untaxed costs by the first respondent. He then proposed that the first respondent’s costs be set off against the applicant’s untaxed costs. When it was pointed out to him that a liquidated amount cannot be set off against an illiquid amount he conceded the point but countered that the respondent should execute against applicant’s property.</p> <p>In further argument he submitted that justice must be dispensed quickly and fairly with due regard to the need to effect finality to ligation. It was his submission that the first respondent should effect execution for wasted costs awarded while the hearing proceeds to finality on the merits.</p> <p> He pointed out that the court had the discretion whether or not to stay the proceedings pending payment of the first respondent’s taxed costs. There is merit in that submission.</p> <p>The applicant’s attitude that the respondent should proceed with execution against his property evinces a mind set on piling wasted costs on the respondent. I come to that conclusion because he has advanced no reason why he cannot voluntarily sell his property to liquidate his liability to the respondent without incurring further costs for execution. That attitude gives credence to Mr <em>Mpofu’s</em> submission that it is unfair for the applicant to continuously bring proceedings against the first respondent without paying respondent’s wasted costs awarded by the court <em>a quo</em>.</p> <p>Considering that money may be hard to come by I held back delivering judgment in this application to give the applicant time to pay the outstanding wasted costs. I am in agreement with Mr <em>Mpofu</em> that it would be manifestly unfair and unjust for the applicant to continue piling proceedings on the 1st respondent without first making good the wasted taxed costs he caused the respondent to incur. In my considered view this may be meant to wear down the respondent with costs.</p> <p>It is now more than 15 months since the applicant was granted the opportunity to pay the respondent’s wasted costs. If by now he has not paid the respondent’s wasted costs, proceeding with the hearing in the absence of payment will cause the respondent serious prejudice if not grave injustice.</p> <p>In the event that to date the applicant has not paid the respondent’s wasted costs, the application for stay of proceedings succeeds. I note in passing that the order will not adversely affect the respondent since the interdict granted by the court <em>a quo</em> operates against the applicant in favour of the respondent. Any prejudice which the applicant may suffer arising from the stay of these proceedings is self-inflicted.</p> <p>It is accordingly ordered that:</p> <ol> <li>The objection <em>in limine</em> be and is hereby sustained with costs.</li> <li>This application for condonation of late noting of appeal and extension of time within which to appeal to this court be and is hereby stayed until the applicant has paid the first respondent’s taxed costs in the court <em>a quo</em>.</li> </ol> <p><em>Magwaliba &amp; Kwirira</em>, the applicant’s legal practitioners</p> <p><em>Munangati &amp; Associates, </em>incorporating<em> Goneso &amp; Associates</em>, the 1st respondent’s legal practitioners.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2018/7/2018-zwsc-7.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26830">2018-zwsc-7.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/2018/7/2018-zwsc-7.pdf" type="application/pdf; length=186046">2018-zwsc-7.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/condonation">Condonation</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/costs">COSTS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/order-costs">Order of costs</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/taxation">Taxation</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li></ul></span> Thu, 26 Apr 2018 07:10:56 +0000 admin 8759 at https://old.zimlii.org Moyo v Samuponda (HB 5-18, HCA 56/17) [2018] ZWBHC 5 (25 January 2018); https://old.zimlii.org/zw/judgment/bulawayo-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>PRAYER MOYO</p> <p><strong>versus</strong></p> <p>MERJURY SAMUPONDA</p> <p>HIGH COURT OF ZIMBABWE</p> <p>MATHONSI AND TAKUVA JJ</p> <p>BULAWAYO 22 JANUARY 2018 AND 25 JANUARY 2018</p> <p><strong>Civil Appeal</strong></p> <p><em>S Siziba</em> for the appellant</p> <p><em>Ms V Chikomo</em> for the respondent</p> <p>            <strong>MATHONSI J:</strong>          In respect of an application for a binding over order to keep the peace which is granted in terms of section 388 of the Criminal Procedure and Evidence Act [Chapter 9:07] whose effect is really the same as an application for a protection order made in terms of section 7 of the Domestic Violence Act [Chapter 5:16], I expressed the view in <em>Monga</em> v <em>Moyo</em> HB 282-17 (unreported) at p. 3 of the cyclostyled judgment that;</p> <p>“A binding over order to keep the peace is granted in terms of section 388 of the Criminal Procedure and Evidence Act [Chapter 9:07] following a complaint to a magistrate on oath that a person is conducting themselves violently towards, or is threatening injury to, the person or property of another or has used language or behaviour in a manner towards another which is likely to provoke a breach of the peace.  It is granted after the magistrate would have conducted an inquiry and satisfied himself or herself that indeed there has been a breach.  It is therefore a protective mechanism meant to prevent future misbehavior by such a person.  See <em>Manamela and Another</em> v <em>Zulu and Another</em> HB 236-17.  In that regard I am unable to understand why a party who has been ordered to keep the peace by the resort to a preventive order would appeal against such an order.  It is a truism that in any civilized society citizens must forever conduct themselves in a peaceful manner towards one another.  On what basis therefore can a citizen be allowed not to be peaceful towards another as to be entitled to overturn a court order merely underscoring what is standard behaviour in a civilized society? Is the appellant suggesting that she should be allowed to breach the peace?”</p> <p> </p> <p>            I stand by that pronouncement and find no reason to depart from it.</p> <p>            The 17 year old customary marriage of the parties has hit turbulent weather as a result of accusations and counter accusations of infidelity.</p> <p>            Accusing the appellant of physical and emotional abuse the respondent approached the court <em>a quo</em> for a protection order in terms of section 7 of the Domestic Violence Act [Chapter 516].  She set out a list of incidents of abuse which the appellant did not specifically deny but sought to explain on the basis that the respondent caused them by her unbecoming behaviour.</p> <p>            The court <em>a quo</em> issued an order on 27 June 2017 to wit:</p> <p>“I hereby confirm it (the protection order) as a final order.  Respondent is ordered to desist from;</p> <ol> <li>Physically assaulting the applicant.</li> <li>Verbally abusing the applicant.</li> <li>Harassing the applicant in any manner.</li> <li>Chasing her out of the matrimonial home or matrimonial bedroom.</li> </ol> <p>To be bound for 5 years by this order.”</p> <p>            I must say that what the appellant has been ordered to do, or is it not to do, is what is expected of a normal law abiding citizen to conduct himself or herself towards his or her spouse.  The protection order merely confirms how spouses should behave towards one another and cannot by any stretch be prejudicial to the appellant except of course if he intends to conduct himself in an unlawful manner towards the respondent.  It is therefore surprising that the appellant has seen it fit to appeal such an order.</p> <p>            What is significant is that out of all the incidents of abuse that the respondent complained of, none of them whatsoever was denied by the appellant.  Instead he attempted to down play the gravity of the event or to side step the complaint either by attempting to justify it or to explain it in another way.  It is because of this that the court <em>a quo</em> concluded that the appellant “sought to sugar coat every incident” and that on a balance of probabilities the respondent had proved her case.</p> <p> </p> <p>Examples abound; to the accusation that upon discovering a record of a telephone call received by the respondent at 0035 hours he proceeded to church where the respondent was worshipping and forced her out before subjecting her to physical and emotional abuse, the appellant admitted the incident but played it down by suggesting that he “simply requested that she (toes) the line.”  (p26 of the record).  This is unlikely considering that he was an angry man smitten by pangs of jealousy.</p> <p>            To the allegation that he banned the respondent from dressing as she liked, chose her wardrobe and directed her to wear only dresses and skirts, the appellant admitted that but sought to explain it on the basis that it was necessary in the interest of his children (p27 and p 47of the record).</p> <p>            To the accusation that he has given the respondent a book of rules including that she is not allowed to fellowship with others, interact with her friends and family and that she is required to only go to work and back home, the appellant again admitted that.  He explained it by saying that he “requested that the applicant informs me when she is going out” (p27 and p47 of the record).</p> <p>            Regarding the allegation that in anger he had held the respondent by the jaws, he sugar coated it by saying – “I grabbed her by the hands and pushed her away.”  (p48)  And later at p52 he said “I just grabbed your shoulder----.”  When being accused of stalking the respondent’s econet line including causing it to be reactivated against her will after she had deactivated it, he could only say; “the truth is that I came to you and asked we go together and activate the line.”  The question is: why do so when the respondent had deliberately de-activated her cellphone line?  What business did the appellant have with that line which did not belong to him unless if he wanted to continue extracting private information from the line for use against the appellant?</p> <p>            There was abundant evidence of abuse being perpetrated against the respondent.  In fact the appellant is shown to have been a shameless male chauvinist living in the primitive feudalistic rhythm who had no qualms whatsoever with demanding of his wife that once dressed for work every morning she should parade in front of him for inspection to check if her dressing met his own standards.  A man who has come all the way to this court to defend a warped entitlement to determine how his wife dresses, who she interacts with and to vet all the people that communicate with her on her cellphone and at what time.  It is just unthinkable that such things still happen in a civilized modern society.</p> <p>            Therefore I am unable to detect any misdirection on the part of the findings of the court <em>a quo</em>.  The appeal is completely without merit.</p> <p> </p> <p>            In the result the appeal is hereby dismissed with costs.</p> <p>Takuva J agrees………………………………………….</p> <p><em>Phulu &amp; Ncube</em>, appellant’s legal practitioners</p> <p><em>Dube-Tachiona &amp; Tsvangirai</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/2018/5/2018-zwbhc-5.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=21044">2018-zwbhc-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/bulawayo-high-court/2018/5/2018-zwbhc-5.pdf" type="application/pdf; length=119227">2018-zwbhc-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/civil-matter-appeal">Civil matter (Appeal)</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/2006/14">Domestic Violence Act [Chapter 5:16]</a></div></div></div> Wed, 11 Apr 2018 10:07:33 +0000 admin 8709 at https://old.zimlii.org