Parties https://old.zimlii.org/taxonomy/term/9947/all en Rwatizha And 162 Others v Luna Estates (Pvt) Ltd And Another (HH 261-21, HC 4717/19) [2021] ZWHHC 261 (26 May 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/261 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HH 261-21</p> <p>HC 4717/19</p> <p>SABINAH RWATIZHA</p> <p>and</p> <p>TITUS VENGESAI</p> <p>and</p> <p>BRIGHTON MAZITI</p> <p>and</p> <p>TENDAI MUNEDZI</p> <p>and</p> <p>JACOB MANYEMHESA</p> <p>and</p> <p>ASIMA CHEISA</p> <p>and</p> <p>LOVELY CHAGONDA</p> <p>and</p> <p>TATENDA CHAGONDA</p> <p>and</p> <p>EUPHIA MASOKA</p> <p>and</p> <p>GEORGE SILAS MAGAMBA</p> <p>and</p> <p>LONAH BANDA</p> <p>and</p> <p>NIGEL MUNYARADZI DANIEL JERE</p> <p>and</p> <p>CECILIA TINASHE SAMBO</p> <p>and</p> <p>ALLEN MAPURANGA</p> <p>and</p> <p>LETICIA MUTEDE</p> <p>and</p> <p>ENIMY MUTEDE</p> <p>and</p> <p>ROBERT PARAFINI</p> <p>and</p> <p>NYARAI MUCHECHETERE</p> <p>and</p> <p>KUDZANAI TEMBO</p> <p>and</p> <p>TAKURA VENGESA</p> <p>and</p> <p>TAWANDA DEREK NDUDZO</p> <p>and</p> <p>MANAI ANTONY</p> <p>and</p> <p>EDINAH KASEKE</p> <p>and</p> <p>EMELDAR GONDO</p> <p>and</p> <p>CHIPO MUSARA</p> <p>and</p> <p>HENRY TENDENEDZAI</p> <p>and</p> <p>SHINGIAI RAY MANGO</p> <p>and</p> <p>TAPUWA MAGWERE</p> <p>and</p> <p>PETROS PATISANI</p> <p>and</p> <p>IAN MADUME</p> <p>and</p> <p>PRISCILLA SHUWISAI HANDIKATARE</p> <p>and</p> <p>VICTOR PAULINE MBAYO</p> <p>and</p> <p>MARSHALL TSEKE</p> <p>and</p> <p>TONGAI MAVUNDUSE</p> <p>and</p> <p>MERCY MUGWENI</p> <p>and</p> <p>MUSA PHIRI</p> <p>and</p> <p>SIMONDENI NCUBE</p> <p>And</p> <p>JOSHUA BIRI</p> <p>and</p> <p>URITA BIRI</p> <p>and</p> <p>ERNEST NYAMBO</p> <p>and</p> <p>OSWELL TAWINEYI</p> <p>and</p> <p>MUNYARADZI NYANGA</p> <p>and</p> <p>RICHMOND NYAHORE</p> <p>and</p> <p>RUTH NYAHORE</p> <p>and</p> <p>OPPAH MOYO</p> <p>and</p> <p>MOREBLESSINGS MUNOUYA</p> <p>and</p> <p>MACKENZIE EUGENE</p> <p>and</p> <p>NORMAN GWEZUVA</p> <p>and</p> <p>MUNYARADZI LAWRENCE TSUNGA</p> <p>and</p> <p>MUCHIMBIDZIKE FATIMA</p> <p>and</p> <p>MUCHIMBIDZIKE STEWART</p> <p>and</p> <p>LOVEJOY MURAMBIWA</p> <p>and</p> <p>ERASMUS NYAMUSHONYONGORA</p> <p>and</p> <p>COLEEN MAFIKA</p> <p>and</p> <p>HENRY MUVANDIRI</p> <p>and</p> <p>ISAIAH CHINHENGO</p> <p>and</p> <p>NABOTH T. MAGWERE</p> <p>and</p> <p>ALVIN LOVEMORE MAGWERE</p> <p>and</p> <p>LOVEMORE MAGWERE</p> <p>and</p> <p>ALETTER MAGWERE</p> <p>and</p> <p>SHELLY ELIZABETH CHITSUNGO</p> <p>and</p> <p>JEREMIAH JANDA</p> <p>and</p> <p>MAXWELL NEKENDE CHITENDENI</p> <p>and</p> <p>CLIFFORD NKOMO</p> <p>and</p> <p>PRIVILEGE MUKWAIRA</p> <p>and</p> <p>FANUEL KANGONDO</p> <p>and</p> <p>KILLIAN Z MASUKUSA</p> <p>and</p> <p>MEMORY CHIPUNGU</p> <p>and</p> <p>WAYNE PAMIRE</p> <p>and</p> <p>ZACHEO PATISANI</p> <p>and</p> <p>FARAI NYABEZE</p> <p>and</p> <p>VIVIAN S. SITHOLE</p> <p>and</p> <p>EDINAH DAMBUDZO MASIYIWA</p> <p>and</p> <p>LIVISON TIZIRAI</p> <p>and</p> <p>THEODORA MUTSAGO</p> <p>and</p> <p>LIYON CHIKOMO</p> <p>and</p> <p>LINDARAY TANYANYIWA</p> <p>and</p> <p>MARIMIROFA ADVANCE</p> <p>and</p> <p>LETWIN MARIMIROFA</p> <p>and</p> <p>LUNGISANI MAKHALIMA</p> <p>and</p> <p>FADZAI C. MAKHALIMA</p> <p>and</p> <p>FUNGAI FELISTAS GAMU</p> <p>and</p> <p>JOSEPHINE CHAMBALANGA</p> <p>and</p> <p>ELMON MANGENA</p> <p>and</p> <p>RUVIMBO PATRICIA NCUBE</p> <p>and</p> <p>JENIFER DHLIWAYO</p> <p>and</p> <p>PARADZAI MAZUVAMANA</p> <p>and</p> <p>SALLY ANN</p> <p>and</p> <p>SHUPAI MOSES NYAMBO</p> <p>and</p> <p>CHIKOMBINGO SEVERINO</p> <p>and</p> <p>VANESA E. SALIMU</p> <p>and</p> <p>ELISMORE TAVENGWA</p> <p>and</p> <p>NEWTON TAWANDA MURINGAGOMO</p> <p>and</p> <p>CALVIN CHINEKA</p> <p>and</p> <p>PRECIOUS MAKWINJA</p> <p>and</p> <p>SHAKEY MUNYUKI BARE</p> <p>and</p> <p>LEVISON PHIRI</p> <p>and</p> <p>JOSPHINE TIZORA</p> <p>and</p> <p>MASHMELLON TINOTENDA MAZWI</p> <p>and</p> <p>JOYCE TINARWO</p> <p>and</p> <p>MAMBINGI MAKURIRA</p> <p>and</p> <p>GEORGE TINASHE SARE</p> <p>and</p> <p>NOMATTER NIKISI</p> <p>and</p> <p>CONSTANCE CHIMUKA</p> <p>and</p> <p>GODFREE MARIMBIRE</p> <p>and</p> <p>KUDIWA MAZANGO</p> <p>and</p> <p>ABBIGAIL CHARUKA</p> <p>and</p> <p>GARIKAI CHIKWEKWETE</p> <p>and</p> <p>JOE CHAKANYUKA</p> <p>and</p> <p>TICHAYANA MAKOTA</p> <p>and</p> <p>RUTENDO BLESSING MARIZA</p> <p>and</p> <p>MUNYARADI G. MUSWERAKUENDA</p> <p>and</p> <p>JULIET CHIBANDA</p> <p>and</p> <p>CHARLES CHIBANDA</p> <p>and</p> <p>ROPAFADZO MAPOSA</p> <p>and</p> <p>PESEVEARANCE MUZANYA</p> <p>and</p> <p>KENNETH MAKAZA</p> <p>and</p> <p>IREEN MUZAKA</p> <p>and</p> <p>NICODEMUS MUBVUMBA</p> <p>and</p> <p>JOSEPHAT MUBVUMBA</p> <p>and</p> <p>NGONIDZASHE MANIKA</p> <p>and</p> <p>ABIGIRL MANIKA</p> <p>and</p> <p>MANDIPE NGWADZAYI</p> <p>and</p> <p>ESTHER MUTSENGI</p> <p>and</p> <p>ESTHER DLAMINI</p> <p>and</p> <p>DICKSON MAPFUTI</p> <p>and</p> <p>BETTY MAPFUTI</p> <p>and</p> <p>IAN N. MANDIHLARE</p> <p>and</p> <p>TANAKA CLIVE MUKAKA CHITIYO</p> <p>and</p> <p>ACKIM MAKINA</p> <p>and</p> <p>LLOYD DOMBODZVUKU</p> <p>and</p> <p>MARYGRACE VALERIA ZINGONI</p> <p>and</p> <p>ALBERT ZHANJE</p> <p>and</p> <p>DEBBIE MTANDABARE</p> <p>and</p> <p>HERBERT MUNEMO</p> <p>and</p> <p>JOYLINE MHASHO</p> <p>and</p> <p>MASON WHITE</p> <p>and</p> <p>JULIA WHITE</p> <p>and</p> <p>PATMORE MADA</p> <p>and</p> <p>ISRAEL CHARM SIZIBA</p> <p>AND</p> <p>STELLA CHIMBUMU</p> <p>and</p> <p>KUDZAI NEMACHA</p> <p>and</p> <p>TEDDY NYAJEKA</p> <p>and</p> <p>FAITH SHOKO</p> <p>and</p> <p>ROBERT MUCHECHETERE</p> <p>and</p> <p>AGATHA CHIKUKWA</p> <p>and</p> <p>NETSAI MATEWERE</p> <p>and</p> <p>SYNTHIA KATONDO</p> <p>and</p> <p>MODESTA TUTURU</p> <p>and</p> <p>JACKQELINE MUTAMBARA</p> <p>and</p> <p>FREDRICK KASEKE</p> <p>and</p> <p>NOBERT MUSAKWA</p> <p>and</p> <p>CECILIA MUGARIRI</p> <p>and</p> <p>RONWELL CHITAMBIRA</p> <p>and</p> <p>STANFORD BUKUTA</p> <p>and</p> <p>PEARSON NGULUBE</p> <p>and</p> <p>MERCY MUGWENI</p> <p>and</p> <p>IAN MANYANDE</p> <p>and</p> <p>VIMBAI FAITH MBERI</p> <p>and</p> <p>MCDAVID OSLEM MBERI</p> <p>and</p> <p>JULIA MUCHEMWA</p> <p>and</p> <p>PRISCILLA MUGOBERA</p> <p>and</p> <p>LINDIWE MAKONI</p> <p>versus</p> <p>LUNA ESTATES (PRIVATE) LIMITED.</p> <p>and</p> <p>DEVINE AID TRUST COMPANY (PRIVATE) LIMITED</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MANZUNZU J</p> <p>HARARE,  18 &amp; 26 May 2021</p> <p> </p> <p><strong>Court Application</strong></p> <p> </p> <p><em>P Kawonde</em>, for the applicant</p> <p><em>G R J Sithole</em>, for the 1st   respondent</p> <p> </p> <p>            MANZUNZU J:  This is a court application by 163 applicants seeking a declaratory order in the following terms:</p> <p>            “IT IS ORDERED AS FOLLOWS:</p> <ol> <li>It is declared that the agreements of sale which were entered into between the applicants       and the 1st respondent represented by the 2nd respondent be and are hereby held to be     valid.</li> <li>The 1st respondent pays costs of this application on a legal practitioner and client scale.”</li> </ol> <p>            The background to the matter is largely common cause. The first respondent is the registered owner of a piece of land in the district of Zvimba measuring 200.72 hectares (the property).  In the year 2012 the first respondent and second respondent entered into a land development agreement for the second respondent to develop the property into residential and business stands. The second respondent was also given the mandate to sell the subdivided stands on behalf of first respondent. The applicants are some of the people who bought the stands from the first respondent through the second respondent. Agreements of sale were signed between the individual applicants and the second respondent as agent of the first   respondent.</p> <p>            The first and second respondents’ contractual relationship fell sour and they went for arbitration. An arbitration award confirmed, inter alia, the cancellation of the memorandum agreement for land development between the respondents as at 20 July 2017. Despite the termination of the land development agreement, the second respondent went ahead to sign some agreements of sale purportedly as agent of the first respondent with some 21 of these applicants. It is in respect to those 21 applicants that the first respondent has resisted the order prayed for.</p> <p>            The first respondent concedes to the order being sought by the applicants save in respect to the 21 applicants who signed their agreements after the second respondent’s mandate was terminated on 20 July 2017. The 1st respondent claims the following 21 applicants have no cause of action against it, 13th, 19th, 20th, 24th, 25th, 43rd, 44th, 57th, 58th, 70th, 99th, 101th, 102th, 103th, 112th, 113th, 114th, 123rd, 130th, 15,2nd and 160th.</p> <p>            The 21 applicants have maintained that the first respondent was bound by the agreements they signed with the second respondent on the basis of ostensible authority. The first   respondent argues that ostensible authority cannot be sustained in the face of  fraudulent acts by the second respondent.</p> <p>            Two issues came out for determination; whether the first respondent can be held liable on the basis of ostensible authority and secondly, whether applicants in the event of success should be awarded costs at legal practitioner and client scale.</p> <p><strong>OSTENSIBLE AUTHORITY</strong></p> <p>            Several authorities have defined and considered when ostensible authority is said to exist. In <em>Reed NO</em> v <em>Sager’s Motors (Pvt) Ltd</em> 1969 (2) RLR 519 (A) Beadle CJ stated that:</p> <p>           </p> <p>            “If a principal employs a servant or agent in a certain capacity, and it is generally      recognized that servants or agents employed in this capacity have authority to do certain acts,           then any of those acts performed by such servant or agent will bind the principal because they        are within the scope of his “apparent” authority. The principal is bound even though he never    expressly or impliedly authorized the servant or agent to do these acts, nor had he by any special    act (other than the act of appointing him in this capacity) held the servant or agent out as having            this authority. The agent’s authority flows from the fact that persons employed in the particular       capacity in which he is employed normally have authority to do what he did.”</p> <p> </p> <p>            In <em>casu,</em> the second respondent as an agent was expressly authorized to enter into agreements with prospective buyers of stands on behalf of first respondent. That is the situation obtained from 2012 to 20 July 2017 when the land development agreement was terminated. The issue of termination was not published to the world at large. It was known between first and second respondents. The question is how were the 21 applicants expected to know that first   respondent had terminated its authority with the second respondent? The second respondent continued to use the first respondent’s standard agreement after 20 July 2017 as if it were expressly authorized to do so. The first respondent’s defence is that the second respondent was committing a fraud hence the applicants cannot rely on ostensible authority. This is despite the first respondent’s admission that the public were not warned that second respondent was no longer its agent. The first respondent had a duty to warn members of the public about the severance of its relationship with the second respondent.</p> <p>            I do not think this is a matter where first respondent can successfully wash its hands like Pontius Pilate in the face of its failure to give notice to the public and hide behind a claim for fraud to the prejudice of the applicants. There was nothing to stop the 21 applicants from believing that the second respondent was still acting within the scope of its authority with the first respondent which authority was, for a considerable period of time, so exercised.</p> <p>            In alleging fraud the first respondent relied on the findings of the arbitration. In fact, instead of being specific, the issue was argued in a generalized form. The court was referred to the entire arbitration award ranging from page 1054 to 1088 of the record. There was no evidence to show that the money received from the 21 applicants was not handed over to the first respondent. The issue of fraud was not proved on a balance of probabilities.</p> <p>            The first respondent should have realized that the acts by second respondent after 20 July 2017 would bind it unless the public were warned. This is a matter where ostensible authority must be upheld.</p> <p><strong>COSTS</strong></p> <p>            Applicants asked for costs at legal practitioner and client scale. Costs are at the court’s discretion. The first respondent asked that each party must pay its own costs. Ordinarily costs follow the cause. There was no justification for each party to bear its own costs at the expense of a winning party. Costs were asked at a higher scale because of 1st respondent’s attitude. The history of this matter shows that this application is not the first of its own kind. In HC 6816/18 an application by 140 applicants against the respondents seeking a similar declaratory order was granted by this court on 3 December 2018. The first respondent filed an appeal with the Supreme court but the order of this court was confirmed.</p> <p>            The applicants through their lawyers had on 6 December 2018 written to the respondents’ lawyers to accept their agreements as valid more so in light of the order of this court of 3 December 2018. The response of 12 December 2018 by the respondents, to say the least, was arrogant coupled with a threat to invoke penalty clauses in the agreements for these applicants and those in HC 6816/18. At the time the first respondent did not differentiate the applicants according to when they signed the agreements. Despite this matter being capable of amicable resolution between the parties, the first respondent’s attitude made it impossible to take that route hence the parties found themselves embroiled in this litigation with a bulky record running into 1174 pages.</p> <p>            The first respondent has not shown to have any valid defence to the application from the beginning apart from its arm twist approach. The opposing affidavit also bears testimony to this in paragraph 7:1 when it states;</p> <p>            “This is an application that ought not to have been made at all. I content that there is absolutely        no legal disputes between the applicants and the 1st respondent.”</p> <p>             One may then pause to ask as to why applicants proceeded with litigation. The answer in my view is simple, ‘because of the first respondent’s big brother attitude.’ The first respondent wanted to use its upper hand position in the agreement to coerce the applicants to resile from their existing agreements and create new agreements with new terms to its advantage.</p> <p>            Courts will ordinarily not grant punitive costs unless it is shown that the losing litigant was not genuine in pursuing litigation. See <em>Mahembe</em> v <em>Matambo</em> 2003 (1) ZLR 149 (H). In <em>Chizura</em> v <em>Chiweshe</em> HB 80/03 the court had this to say;</p> <p>             “In awarding costs at a higher scale the losing litigant’s attitude in the proceedings is an        essential ingredient which should be taken into account as it impacts negatively in the expenses          of the litigant – see <em>Mahomed &amp; Son</em> v <em>Mahomed </em>1959 (2) SA 688.”</p> <p> </p> <p>            This is a proper case where a successful party was unnecessarily put out of pocket by this litigation. It is just and proper that the losing party must compensate.</p> <p><strong>Disposition</strong>:  </p> <p>            IT IS ORDERED THAT:</p> <ol> <li>It is declared that the agreements of sale which were entered into between the       applicants and the 1st respondent represented by the 2nd respondent be and      are       hereby held to be valid.</li> <li>The 1st respondent pays costs of this application on a legal practitioner and client   scale.</li> </ol> <p> </p> <p> </p> <p> </p> <p><em>Kawonde Legal Services</em>, applicants’ legal practitioners</p> <p><em>Muza and Nyapadi</em>, 1st respondent’s legal practitioners</p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/261/2021-zwhhc-261.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26330">2021-zwhhc-261.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/261/2021-zwhhc-261.pdf" type="application/pdf; length=439925">2021-zwhhc-261.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/arbitration">ARBITRATION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/award-0">Award</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/contract">CONTRACT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/land">Land</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/parties-0">Parties</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/legal-practitioner-and-client-scale">Legal practitioner and client scale</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/abuse-process">abuse of process</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/discretionary-nature">discretionary nature of</a></li></ul></span> Thu, 10 Jun 2021 07:59:45 +0000 Sandra 10043 at https://old.zimlii.org Breckridge Investments (Pvt) Ltd v RioZim Limited And 2 Others; Breckridge Investments (Pvt) Ltd v RioZim Limited And 3 Others (HH 19-21, HC 1380-1/20) [2021] ZWHHC 19 (25 January 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/19 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p>1.         BRECKRIDGE INVESTMENTS (PVT) LTD                                          HC  1380/20      versus</p> <p>            RIOZIM LIMITED                                                                           </p> <p>            and</p> <p>            NORTH RAND (PVT) LTD                                                                         </p> <p>            and</p> <p>            MINISTER OF MINES AND MINING DEVELOPMENT          </p> <p> </p> <p>2.         BRECKRIDGE INVESTMENTS (PVT) Ltd                                              HC 1381/20</p> <p>            versus</p> <p>            RIOZIM LIMITED</p> <p>            and</p> <p>            NORTH RAND (PVT) LTD</p> <p>            and</p> <p>            SHERIFF OF THE HIGH COURT</p> <p>            and</p> <p>            MINISTER OF MINES AND MINING DEVELOPMENT</p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUNANGATI-MANONGWA J</p> <p>HARARE, 7 September 2020 &amp; 25 January 2021</p> <p> </p> <p><strong>Opposed Matter</strong></p> <p><em>Z. Lunga</em>, for the applicant</p> <p><em>T.L Mapuranga</em>, for the 1st respondent</p> <p><em>C Chitekuteku</em>, for the 4th respondent</p> <p>            MUNANGATI-MANONGWA J: This matter is a consolidation of two cases HC 1380/20 and HC 1381/20 the parties of which are the same. In both matters, rescission of judgment is being sought. In HC1380/20, the applicant seeks the following relief:</p> <ol> <li>The rescission of the judgment in HC 4945/18.</li> <li>The joinder of the Applicant in Case No. HC 4945/18</li> <li>That the 1st Respondent serves the Applicant with a copy of the application and founding affidavit in HC 4945/18 within 4 days from the date of this order being granted.</li> <li>That Applicant is granted 10 days within which to file its opposition and opposing affidavit.</li> </ol> <p>The relief sought in HC 1381/20 is as follows:</p> <ol> <li>The rescission of the judgment in Case No. HC 8198/20.</li> <li>The joinder of applicant as respondents in HC 8198/20.</li> <li>That 1st respondent serves the applicant with a copy of the founding affidavit in HC 8198/20 within four days from the date of this order.</li> <li>That applicant be granted 10 days to file their notice of opposition and opposing affidavits.</li> </ol> <p>The 1st respondent opposed the application. The brief facts of this matter are that on 3 October 1996, 1st and 2nd defendants entered into a Notarial Prospecting Contract and Option Agreement involving 50 (fifty) gold mining claims. In the contract Rio Tinto Zimbabwe Limited (now Riozim Limited, 1st respondent herein) was stated as “the Owner” and North Rand,( 2nd respondent herein) “the Company.” A pertinent clause in the agreement read as follows: “The Owner as the registered and beneficial owner of the said blocks and of the Mining Rights hereby grants to the company, which accepts from it, the sole and exclusive option during this agreement to buy, at any time on or before the 30 day of September, 1997, or such later date as the owner and the Company may agree in writing, the said blocks and all the mining rights relating thereto together with ore and mineral or metalliferous substance…for the sum of ONE MILLION DOLLARS ($1 000 000) (hereinafter referred to as “the initial payment”)…” The total purchase price was US$6 000 000. The other terms of the contract are not relevant in the determination of this application. The 2nd respondent issued out summons against second and third respondents seeking cancellation of the said agreement and transfer of certain claims from the 2nd respondent, back to it.</p> <p>On 6 June 2018, default judgment was granted in favour of the first respondent Riozim, against North Rand (Pvt) Ltd as follows:</p> <ol> <li>The agreement between the plaintiff and the 1st defendant is hereby cancelled.</li> <li>The 2nd defendant (Minister of Mines) shall transfer to the plaintiff all the mining claims registered in the 1st defendant’s name as of the date of this order and listed under annexures RZ3, which claims were transferred to the 1st defendant from the plaintiff pursuant to the agreement dated 3 October 1996.</li> <li>Costs of suit on a legal practitioner client scale.</li> </ol> <p>Apparently the applicant claims that it owns the 20(twenty) mining claims listed in Annex RZ3 referred to in the order. The mining claims are registered in its names. It is this default judgment that applicant herein seeks to rescind. Of note is the fact that the agreement aforementioned pertained to 50 claims and of these, the applicant claims that 20 claims are registered in its name.</p> <p>            Suffice to say after the granting of the initial default judgment the 1st respondent went back to Court and sought another judgment which was granted against North Rand and the Minister of Mines in default on 10 October 2018. The order thereof reads:</p> <ol> <li>      The Sheriff is hereby authorized to sign all papers authorizing the 2nd respondent to transfer the following mining claims from the 1st respondent to the applicant            as contemplated in Section 275 of the Mines and Minerals Act (<em>Chapter 21:05</em>) <ol> <li>      Bono, registered no. 14860 in respect of Gold, 9 claims situated in Kadoma</li> <li>      Bono 2 registered no, 14770, in respect of Gold, 9 claims situated in Kadoma</li> <li>      Bono 3, registered no. 14771, in respect of Gold, 10 claims situated in Kadoma</li> <li>      Blue Streak, registered no.12918, in respect of Gold, 10 claims situated in Kadoma</li> <li>      Blue Streak 2, registered no.12989, in respect of Gold, 10 claims situated in           Kadoma</li> <li>      Blue Streak  8, registered no.14132, in respect of Gold, 10 claims situated in          Kadoma</li> <li>      Blue Streak 9, registered no.14145, in respect of Gold, 10 claims situated in           Kadoma</li> <li>      Blue Streak 10, registered no.14146, in respect of Gold, 8 claims situated in           Kadoma</li> <li>      Blue Streak 11, registered no.14259, in respect of Gold, 6 claims situated in           Kadoma</li> <li>Blue Streak 12, registered no.14260, in respect of Gold, 10 claims situated in         Kadoma</li> <li>Blue Streak 13, registered no.14261, in respect of Gold, 10 claims situated in         Kadoma</li> <li>Concession Hill (W Portion) registered no. 319B, in respect of Gold, 5 claims        situated in Kadoma.</li> <li>Duchess 2, registered no.13938, in respect of Gold, 10 claims situated in    Kadoma</li> <li>Hilldene M, registered no 14144, in respect of Gold, 7 claims situated in    Kadoma</li> <li>Homelands 2, registered no.14143 in respect of Gold, 10 claims situated in            Kadoma</li> <li>Pickstone North, registered no.14037 in respect of Gold, 10 claims situated in        Kadoma</li> <li>Peerless, registered no. 8034, in respect of Gold, 10 claims situated in Kadoma</li> <li>Venning, registered no.9315, in respect of Gold, 10 claims situate in Kadoma</li> <li>Warren 2, registered no.14772, in respect of Gold, 10 claims situate in        Kadoma</li> <li>Duchess 3, registered no.6436, in respect of Gold, 11 claims situate in        Kadoma</li> </ol> </li> <li>      Any respondent opposing this application will pay costs of the application.</li> </ol> <p>The applicant herein further seeks rescission of this judgment.</p> <p>            At the hearing of the two applications, the parties agreed that, if rescission of the judgment in HC 4945/18 (the initial order) is granted, the other default judgment, which sought execution, should also be set aside. The court acceded to the request as the proper course of action to follow as the second judgment/order was premised on the first order and simply sought to attain execution.</p> <p>                  It turns out that I granted the two orders for which rescission is being sought. The applicant seeks rescission of the initial order in terms of Rule 449 (1)(a).The applicant’s case is that it is the owner of the 20 (twenty) aforementioned claims which are stated in the order as listed under Annexure RZ3.The claims are registered in its name and it has proof of ownership by way of certificates. The applicant submits that it was not aware that there were court proceedings instituted in this Court which pertained to its claims. It only became aware of the case through the media when it was reported that the third respondent, Minister of Mines was found to be in contempt of court for failure to comply with the aforementioned court orders to transfer the claims to first respondent and was thus sentenced to 90 days imprisonment.</p> <p>                  It its founding affidavit the applicant submits that the order was granted in its absence. As the registered holder of the mining claims applicant’s rights and interest in those rights are affected by the order. Further, that the order was granted in error in that it directed second respondent to transfer the mining claims to first respondent when second respondent was not the registered holder of the rights. The applicant further submitted that had the Court known that the mining claims were registered in the applicant’s names it would not have granted the order to first respondent.</p> <p>                  The applicant further submits that it was not a party to the agreement between the first respondent and the second respondent. It was not bound by that agreement hence there was no cause for the transfer of its rights to first respondent. The applicant further submits that clause 4 of the agreement between first and second respondent showed that the agreement had expired by effluxion of time. The applicant thus argued, had the court known that the agreement did not bind applicant the registered holder of rights, and that the agreement between first and second respondent had expired it would not have granted the order. Mr <em>Lunga</em> for the applicant argued that it is because of the assertion by the first respondent that the second respondent was the holder of the mining claims that the court granted the order. He submitted that no court fully conversant of the state of affairs would have proceeded to grant the order had the full facts been known, as this goes against the principle that a party cannot transfer that it does not have.</p> <p>                  The first respondent opposed the matter. Its initial stance was that the claims, which the order pertains to, are in the names of the second respondent. This respondent stated that applicant wants to irregularly invite itself in a matter in which it has no legal interest. The court notes that in all its opposition papers in both HC 1380/20 and HC 1381/20 the first respondent denies that the claims stated in the orders belong to the applicant arguing that the claims are different. In HC 1380/90 there is outright denial that the claims are the same (see p 102 para 5-11). The first respondent categorically stating in para 11 that “The claims to which the order of the court pertains are in the name of second respondent. The order does not relate to claims which are in the name of the applicant.” These averments are maintained in HC1381/20 from para 5-11. This stance was maintained until the day of hearing when ultimately there was a concession that the claims are the same.</p> <p>The first respondent maintained in opposition that the agreement has nothing to do with the applicant and at any rate, the second respondent a party to the agreement refrained from raising any argument on the status of the agreement. The respondent further stated in the affidavit filed on its behalf that it is incompetent to seek a joinder consequent upon the granting of an order in terms of r 449 and prayed for the dismissal of the application with costs on a higher scale.</p> <p>            Mr <em>Mapuranga</em> for the first respondent argued that rule 449 is not applicable <em>in casu</em> in that the errors that the applicant seeks to rely on are not errors of form or procedure. He submitted that before the summons were issued it was verified with the Ministry of Mines and the respondent was advised that the claims were registered in North Rand’s names. This therefore was an error of substance so he argued<em>. </em>He further submitted that the option agreement was attached to the application hence the court should have been aware of the provisions of paragraph 4 which related to the expiry of the agreement. He argued that in any case it was the main agreement that it sought cancelled. That being so, the court was <em>functus officio.</em> Mr <em>Mapuranga</em> further submitted that paragraph 1 of the order that granted cancellation of the agreement cannot be rescinded as the second respondent, North Rand was duly served and it did not defend the matter. However, the order could be rescinded in part.</p> <p>    In what seems to be an about turn, Mr Mapuranga submitted that as the order seeks transfer of the claims in the name of North Rand and not in the names of any other party, if the claims are in a third party’s name the order will just be <em>brutum fulmen</em>.</p> <p>   In seeking rescission of judgment in terms of r 449 an applicant needs to satisfy the following requirements:</p> <ol> <li>That the judgment was erroneously sought and granted</li> <li>That the judgment was granted in its absence</li> <li>That the judgment affects its rights or interests</li> </ol> <p>            See <em>Tiriboyi </em>v<em> Jani &amp; Anor</em> 2004 (1) ZLR 470. Makarau JP as she then was held at p472 D-E that “the purpose of r449 appears to me to be to enable the court to revisit its orders and judgments to correct or set aside its orders or judgments given in error and where to allow such to stand on the excuse that the court is <em>functus officio</em> would result in an injustice and will destroy the very basis upon which the justice system rests.’’</p> <p>            The issue therefore is whether it is proper in the circumstances to revisit this judgment? Was the order given in error? Whether maintaining the order will result in an injustice. In making, this enquiry the court is conscious to the fact that it needs not enquire into the merits of the matter to find good cause. GUBBAY CJ (as he then was) held in <em>Grantully (Pvt) Ltd &amp; Anor</em> v <em>UDC Limited</em> 2000 (1) ZLR 361 (S) “For there is no requirement that an applicant seeking relief under Rule 449 must establish “good cause.” If a court establishes that a judgment or order was erroneously granted in the absence of a party affected, it may be corrected, rescinded or varied without further enquiry. It is apparent from the Summons upon which default judgment was obtained, that the first respondent claims to have transferred the mining blocks in issue to the second respondent. (See p 66 paras 4 and 7 of the declaration). Precisely paragraph 4 states:</p> <p>             “ The plaintiff entered into a Notarial Prospecting Contract and Option Agreement with       the       1st defendant on the 3rd October 1996 wherein it transferred various blocks of mining    claims attached hereto as “Annexure RZ1’’ to the first defendant.”</p> <p>            The above is further buttressed by the contents of paragraph 7 which states that upon the payment of the initial sum of US$1 000 000 (One million dollars) to 1st respondent, the 1st respondent Riozim “duly facilitated the transfer of the claims to first  defendant (second respondent North Rand). In the affidavit of evidence filed under the application for default judgment in HC 4945/18 the same averment is repeated in para 5 on p 38. Despite these assertions, it is common cause that 20 (twenty) out of the 50 (fifty) claims that are covered by the default judgment are in the name of applicant. The applicant provided proof of such ownership by way of certificates of registration. The court was thus made to believe that all the claims listed in the draft order were in the names of the second defendant. In that regard, retransferring them to the first respondent was legally proper. If therefore information had been placed before the court that twenty of the claims were in actual fact registered in the names of the applicant the order would not have been granted in the nature and form in which it is. There would not have been any <em>causa</em> or reason for the transfer in the absence of a contract or a legal obligation by applicant towards the first respondent. The issue of ownership was thus not placed before the judge which information was vital. The court thus erroneously granted the order in the absence of the other party who had a legal interest in the matter in so far as the subject pertained to it in terms of ownership rights. In the circumstances the court is not <em>functus officio</em>. To leave the order intact as the first respondent has suggested on the basis that the order is <em>brutum fulmen</em> is not proper. Litigants cannot send the courts on a wild geese chase and obtain orders, which they can then shelve because they are not executable.</p> <p>            The second argument by the applicants that the judgment was granted in error because the contract between the first respondent and the second respondent had expired cannot be sustained. This is because of the issue of privity of contract. The applicant is not a party to the contract and the concerned party did not defend the matter. As a third party the applicant cannot therefore seek to rely or base its case on the terms of a contract to which it is not party to. The applicant’s interest being limited to the protection of its assets.</p> <p>The applicant further seeks to be joined to the proceedings should rescission be granted. The application which has been combined with the one for rescission is clear that joinder is being sought in terms of Rule 87 Order 13. Whilst the court questions the wisdom of joining the applications it finds that it is not fatal as the averments pertaining to joinder are clearly distinct. Joinder is not being sought in terms of r 449. An application for joinder can be made at any stage. In <em>Shumbairerwa </em>v<em> Chiraramiro &amp; Ors</em> HH731/15 this court held that the purpose of r 87 (2) (b)</p> <p> “is to prevent unnecessary multiplicity of litigation and to facilitate the speedy and wholesale             resolution of disputes by ensuring that everyone whose legal interests are likely to be affected          by the outcome of the proceedings is joined as a party to the proceedings. This ensures that all interested parties are aware of the proceedings, and advised of the outcome, which gives them      an opportunity to protect their interests and fight for their rights…” </p> <p>           Thus the applicant needs to satisfy the following for them to be joined as a party:</p> <ol> <li>  A party must have a direct and substantial interest in the issues raised in the proceedings before the court; and that;</li> <li> His rights may be affected by the judgment of the court.</li> </ol> <p>            Given the facts of this matter the court is satisfied that the applicant has satisfied the requirements for joinder.The court finds that the applicant has a direct and substantive interest in the issues raised in the proceedings and not just a financial interest. It is the owner of 20 mining claims which are subject of the proceedings and its ownership rights are at stake. The court being satisfied that the requirements for rescission of the default judgment have been met and the grounds for joinder satisfied, it is justiciable that the applicant’s prayer for joinder be granted.</p> <p>            The court however finds merit in Mr <em>Mapuranga</em>’s argument that there cannot be a blanket rescission of judgment in this case. Clause 1 of the order in HC4945/18 provides for the cancellation of the agreement between the plaintiff (first defendant <em>in casu</em>) and the first defendant (second respondent). There is no need for the court to interfere with this relief as the applicant has no interest in that contract and furthermore the first defendant thereat had not defended the matter. It is clause 2 which needs to be set aside in so far as it relates to the applicant. This is a case which it was not necessary for the first respondent to go all out and defend as parties could have made necessary concessions and saved time and costs. For this conduct, the court would have ordered costs against the first respondent. However the  applicants have submitted that they will not insists on costs, so no order for costs will be issued.</p> <p>In view of the concession by the first respondent that if rescission of the order in HC 4945/18 is granted the rescission of the order in HC8198/18 automatically follows, the court therefore will grant the application as prayed for with necessary amendments.</p> <p>            In the result, the following order is made:</p> <ol> <li>Clause 2 of the order issued in default in HC4945/18 which reads:</li> </ol> <p>“The 2nd defendant shall transfer to the plaintiff all the mining claims registered in the 1st defendant’s name as of the date of this order and listed under annexures RZ3, which claims were transferred to the 1st defendant from the plaintiff pursuant to the agreement dated 3 October 1996” be and is hereby rescinded.</p> <ol> <li>Clause 3 of the same order pertaining to an award of costs is set aside.</li> <li>The applicant be and is hereby joined to the proceedings in HC 2587/18 as third defendant.</li> <li>The 1st respondent shall serve summons in HC 2587/18 upon the applicant within 5 days calculated from the first business day following the last day of the lockdown period.</li> <li>Thereafter the matter to proceed in terms of the rules.</li> <li>The application for rescission of the default order in HC 8198/20 be and is hereby granted.</li> <li>There is no order as to costs.</li> </ol> <p><em>Lunga Attorneys</em>, applicant’s legal practitioners</p> <p><em>Coghlan, Welsh and Guest</em>, 1st respondent’s legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office</em>, 4th respondent’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/19/2021-zwhhc-19.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=32136">2021-zwhhc-19.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/19/2021-zwhhc-19.pdf" type="application/pdf; length=448292">2021-zwhhc-19.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/contract">CONTRACT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/cancellation">Cancellation</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/breach-one-party-obligations">breach by one party of obligations</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/parties-0">Parties</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/m">M</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/mines-and-minerals">MINES AND MINERALS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rights-mines-and-minerals">Rights (MINES AND MINERALS)</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/rescission-judgment">Rescission of judgment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-rescission-judgment">application for rescission of judgment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/principles-rescission-judgment">principles (Rescission of judgment)</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/2004/117">Tiriboyi v Nyoni Jani and Another ( HH 117-2004 ) [2004] ZWHHC 117 (25 May 2004);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2015/731">Shumbairerwa v Chiraramiro &amp; Others (HH 731 -15 HC 1321/14 Ref Case No. HC 4963/13) [2015] ZWHHC 731 (17 September 2015);</a></div></div></div> Mon, 29 Mar 2021 09:11:49 +0000 Sandra 9986 at https://old.zimlii.org Gwanda Rural District Council v Botha (SC 174-20, Chamber Application No. SC 456/18) [2020] ZWSC 174 (27 November 2020); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2020/174 <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:              (160)               </strong></p> <p><strong>                                      </strong></p> <p><strong>GWANDA     RURAL     DISTRICT     COUNCIL</strong></p> <p><strong>v</strong></p> <p><strong>LOURENS     MARTHINUS     BOTHA     (SNR)</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GOWORA JA, BHUNU JA &amp; MAKONI JA</strong></p> <p><strong>HARARE: NOVEMBER  26, 2018 &amp; NOVEMBER 27, 2020</strong></p> <p> </p> <p> </p> <p> </p> <p><em>L. Nkomo, </em>for the appellant</p> <p><em>K.I. Phulu, </em>for the respondent</p> <p> </p> <p> </p> <p> </p> <p><strong>BHUNU JA:</strong>       This is an appeal against the whole judgment of the High Court sitting at Bulawayo. The judgment upheld the respondent’s court application for the registration of an arbitral award against the appellant in terms of the Arbitration Act [<em>Chapter7:15</em>] (UNCITRAL) Model Law Schedule (Section 2) (Model Law).  </p> <p> </p> <p><strong>BRIEF FACTS OF THE CASE</strong></p> <p> </p> <p>The appellant is a District Council duly constituted as such in terms of the laws of Zimbabwe whereas the respondent is a male adult of full legal capacity and a signatory to the agreement forming the basis of the arbitral dispute.</p> <p> </p> <p> </p> <p>The appellant is the owner of a farm known as Doddieburn Ranch situate in Gwanda District Matabeleland South Province. On 17 December 2007 the parties concluded a written joint venture agreement. Clause 8 of the agreement provided for an arbitration clause for the resolution of disputes arising from the contract. Clause 3 provided for accession of improvements and compensation for the improvements upon termination of the contract. It reads:</p> <p>“In the event of termination of the agreement, the entire infrastructure shall become the property of the council. The operator shall be    compensated for all the improvements associated with the Joint venture including movables, the animals and all stock in grades.”</p> <p> </p> <p> </p> <p>It is common cause that by letter dated 22 October 2014 the appellant terminated the joint venture agreement in terms of clause 3 of the agreement.  Upon termination of the contract, the respondent successfully lodged a claim for compensation in terms of the arbitration clause.  The arbitral award was couched in the following terms:</p> <p> </p> <p>“I therefore make the following award:</p> <p> </p> <ol> <li>Gwanda Rural District council be and is hereby ordered to pay Lourens Marthinus Botha (Snr) the sum of US$5 507 980.00 being the compensation due and payable in terms of clause 3 of the Joint Venture Agreement between the parties dated 17 December 2007.</li> </ol> <p> </p> <ol> <li>The said sum of US$5 507 980.00 shall be paid by Gwanda Rural District Council to the Hon. Arbitrator through his offices <em>Messrs Coghlan</em> and <em>Welsh, </em>Legal Practitioners, Barclays Bank building, 8 Avenue, Zimbabwe who shall hold it in trust and pay from it the following:</li> </ol> <p> </p> <ol> <li>The sum due to Buffels Vallai 375 (Pty) Limited in terms of the   Arbitration award of 20 January 2016 and 14 December 2016.</li> </ol> <p> </p> <ol> <li>The balance, if any shall be paid to Marthinus Botha (Snr).</li> </ol> <p> </p> <p>c)    Each party be and is hereby ordered to pay its own costs save that the         Honourable Arbitrator’s costs for the current proceedings shall be borne by the parties in equal shares.</p> <p> </p> <p>d)  The arbitration award be and is hereby declared final and binding   between the   parties.”</p> <p> </p> <p> </p> <p> </p> <p>                                          Armed with the above award, the respondent sought its enforcement in terms of Article 35 of the Model Law which provides for recognition and enforcement of arbitral awards.</p> <p> </p> <p> </p> <p>In line with the provisions of the above law, the respondent approached the court <em>a quo</em> for registration of the arbitral award for enforcement purposes. The application was opposed but the court <em>a quo</em> found in favour of the respondent and issued the following registration order:</p> <p> </p> <p>         “It is ordered that:</p> <p> </p> <p>1.<em> </em>The arbitral award made by the Honourable Promise Ncube on 13 December 2017 be and is hereby registered as an order of this Court.</p> <p> </p> <p>2.  The respondent shall pay to the applicant the sum of US$5 507 980 -00.</p> <p> </p> <p>3. The said sum shall be paid to the Honourable Arbitrator through his office at <em>Coghlan and Welsh</em> Legal Practitioners Bulawayo who shall hold it in trust and pay from it the following:</p> <p> </p> <p>(a)        The sum due to Buffels Valei 375 (Pty) Ltd in terms of the arbitral     awards of 20 January 2016 and 14 December 2016.</p> <p> </p> <p>     (b)        The balance, if any, shall be paid to the applicant.</p> <p> </p> <p>4.    Each party shall bear its own costs but the parties shall bear the arbitrator’s costs for the current arbitration in equal shares.</p> <p> </p> <p>5.     The arbitral award is declared to be final and binding between the parties.”</p> <p> </p> <p> </p> <p>Aggrieved by the judgment of the court <em>a quo</em>, the appellant has raised 4 grounds of appeal challenging its decision to register the arbitral award. The 4 grounds of appeal are as follows:</p> <p>1.       The court <em>a quo</em> grossly misdirected itself by disregarding as falling     outside the scope of its enquiry the issue of whether the arbitral award is contrary to the law and public policy of Zimbabwe in that the award enforced a joint venture agreement that is null and void<em> ab initio </em>because one of the contacting parties is not a juristic person.</p> <p> </p> <ol> <li>The court <em>a quo</em> erred in law by concluding that there is no basis for refusing to register the arbitral award when the application for the registration was fatally defective by reason of non-compliance with the peremptory provisions of Article 35(2) of the Model law.</li> </ol> <p> </p> <p>3.       The court <em>a quo </em>erred in law by registering an award that is based on a valuation report that is not sworn to by a valuer as required by law.</p> <p> </p> <ol> <li>The court <em>a quo</em> erred in registering an arbitral award that is based on a valuation report that is tainted by bias collusion and Impartiality of the valuer, which is against the law and public policy.</li> </ol> <p> </p> <p> </p> <p>   Before delving into the merits or otherwise of the grounds of appeal, I pause to observe that when presiding over the registration of an arbitral award, the court <em>a quo </em>had very limited jurisdiction. This is mainly because its function was merely to register the arbitral award for purposes of enforcement. To that end, it did not in the main exercise its appellate or review jurisdiction. Article 35 which provides for the registration and enforcement of arbitral awards provides as follows:</p> <p> </p> <p>“(1)   An arbitral award, irrespective of the country in which it was made, shall be recognised as binding and, upon application in writing to the High Court, shall be enforced subject to the provisions of this article and of article 36.</p> <p> </p> <p>(2)  The party relying on an award or applying for its enforcement shall supply the duly authenticated original award or a duly certified copy thereof and the original arbitration agreement referred to in article 7 or a duly certified copy thereof. If the award or agreement is not made in the English language, the party shall supply a duly certified translation into the English language.”</p> <p> </p> <p> </p> <p>Thus in terms of the applicable law an application for the registration of an arbitral award is granted upon its mere presentation, authentication and production of the original arbitration agreement subject to the provisions of article 36. The essential requirements to be met by the applicant may be summarised as follows:</p> <ol> <li>Present to the High Court the original or a certified copy of the arbitral award. </li> </ol> <p> </p> <p>2.   Present to the High Court the original arbitration agreement referred to in Article 7.</p> <p> </p> <ol> <li>If the award or arbitral agreement is in a language other than English the applicant   must provide a duly certified translation into English.</li> </ol> <p> </p> <p> </p> <p>Once the 3 basic requirements are met the applicant is entitled on the face of it to register the arbitral award as of right. The right to register is however not cast in stone as it is subject to Article 36 which provides an exception to the general rule entitling the applicant to register the arbitral award upon fulfilment of the 3 basic requirements for registration.</p> <p> </p> <p> </p> <p>The respondent does not however have an unfettered right to object to registration of the Arbitral award. This is because the right to object is strictly limited within the confines of the grounds of objection stipulated under Article 36: The Article provides that:</p> <p>“ARTICLE 36</p> <p> </p> <p>Grounds for refusing recognition or enforcement</p> <p> </p> <ol> <li>Recognition or enforcement of an arbitral award, irrespective of the country in which it was made, may be refused only—</li> </ol> <p> </p> <p>(<em>a</em>)     at the request of the party against whom it is invoked, if that party furnishes to the court where recognition or enforcement is sought proof that—</p> <p> </p> <ol> <li>a party to the arbitration agreement referred to in article 7 was under some incapacity; or the said agreement is not valid under the law to which the     parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or</li> </ol> <p> </p> <ol> <li>the party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or</li> </ol> <p> </p> <p>(iii)  the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced; or scope of the grounds upon which</p> <p> </p> <p>(iv)  the composition of the arbitral tribunal or the   arbitral procedure was  not in accordance with the agreement of the parties or, failing such  agreement,  was not in accordance with the law of the      country where the arbitration took place; or</p> <p> </p> <p>(v)   the award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which, or under the law of which, that award was made; or</p> <p> </p> <p>(<em>b</em>)   if the court finds that—</p> <p> </p> <p>(i)    the subject-matter of the dispute is not capable of settlement by arbitration under the law of <em>Zimbabwe</em>; or</p> <p> </p> <p>(ii)   the recognition or enforcement of the award would be contrary to the                                                                                                                                                                                                                                                                                                                                         public policy of <em>Zimbabwe</em>.</p> <p> </p> <p>(2)          If an application for setting aside or suspension of an award has been made to a court referred to in paragraph (1) (<em>a</em>) (v) of this article, the court where recognition or enforcement is sought may, if it considers it proper, adjourn its decision and may also, on the application of the party claiming recognition or enforcement of the award, order the other party to provide appropriate security.</p> <p> </p> <p>(3)          For the avoidance of doubt and without limiting the generality of paragraph (1) (b) (ii) of this article, it is declared that the recognition or enforcement of an award would be contrary to the public policy of Zimbabwe if—</p> <p> </p> <p>(a)   the making of the award was induced or effected by fraud or corruption; or</p> <p> </p> <p>(<em>b</em>)   a breach of the rules of natural justice occurred in connection with the making of the award.</p> <p> </p> <p> </p> <p>Undoubtedly the appellant’s first ground of appeal falls squarely within the scope of Article 36 (1) (a) (i) which validates an objection to the registration of an arbitral award on the grounds that a party referred to in the arbitral agreement under Article 7 was under some legal incapacity to contract.</p> <p> </p> <p> </p> <p>The appellant’s complaint is that the original party to the Joint Venture agreement <em>Shashi – Zambezi t/a Doddienburn</em> <em>Holdings</em> (Duly represented by <em>Lourens M Botha</em> of D<em>oddienburn</em> <em>Ranch West Nicholson) (Shashi – Zambezi</em>) was not a juristic person.</p> <p> </p> <p> </p> <p>This dispute has its genesis in the original joint venture agreement which cites <em>Shashi – Zambezi</em> as the first party to the joint venture agreement. Having realised that there might be a problem with the citation of <em>Shashi – Zambezi</em> as a party to the joint venture agreement, the parties mandated the Arbitrator to determine:</p> <p> </p> <p>            1.         The true partner to the joint venture   agreement.</p> <p> </p> <p>            2.         The true party to be compensated by the Appellant.</p> <p> </p> <p> </p> <p>On 22 July 2015 the arbitrator issued an interlocutory award in the following terms:</p> <p> </p> <p>“i.           Marthinus Botha (Snr) Herein called “Botha” or “claimant”) through his <em>alter ego</em> Shashi Zambezi t/a Doddieburn Holdings was the true party that entered into the JVA with Gwanda RDC on the 17 of December 2007. (Award No. 1)”.</p> <p> </p> <p> </p> <p>The above interlocutory award, No. 1 was final and binding. The Arbitrator having determined that the respondent was the true party to the joint venture agreement the parties proceeded to agree on the issues for determination by the arbitrator.</p> <p> </p> <p> </p> <p>At p 119 of the record of proceedings, the Arbitrator records the issues for determination as follows:</p> <p> </p> <p>“a) Arbitration issues </p> <p> </p> <p> </p> <p>After much deliberation, it was agreed that the arbitration issues would be as follows:</p> <p>           </p> <p>i.          A determination of the compensation due to Lourens Marthinus Botha by Gwanda Rural District Council in terms of clause 3 of the Joint Venture Agreement between the parties dated 17 December 2007 as read with the arbitral award of 22 July 2015 (This would be the subject matter of the first Arbitration)</p> <p>ii.         A determination of the value of the compensation due to Lourens Marthinus Botha and payable by Gwanda RDC and when that compensation should be paid. (This would be the subject of the 2 Arbitration awards.</p> <p>The parties noted that there could be a situation where they would lead viva voce evidence but that would be up to the Hon. Arbitrator.</p> <p> </p> <ol> <li> </li> </ol> <p> </p> <ol> <li>…</li> </ol> <p> </p> <ol> <li>…</li> </ol> <p> </p> <ol> <li>Finality of Proceedings.</li> </ol> <p> </p> <p> </p> <p><strong>The parties agreed that my decision would be final and binding on them.</strong> (My emphasis).</p> <p> </p> <p> </p> <p>The parties to the arbitration award registered by the court <em>a quo</em> in this case are Gwanda Rural District Council and Lourens Marthinus Botha (snr), the appellant and respondent in this case respectively. It is common cause that Gwanda Rural District council is a local authority body incorporated as such in terms of the laws of Zimbabwe whereas the respondent is a male adult of full legal capacity to sue and be sued in his own name.</p> <p> </p> <p>The learned author Peter Ramsden<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a> gives an overview as to the legal competence</p> <p>of any person to engage in arbitration. He states:</p> <p> </p> <p>“Today it seems that anyone who has contractual capacity or who can bring a legal action to court or against whom a legal action can be brought (could sue or be sued) can submit to arbitration.”</p> <p> </p> <p> </p> <p>That definition of who qualifies to engage in arbitration puts paid to any lingering doubt that both parties appearing before the arbitrator had full legal capacity to submit to arbitration in this case.</p> <p> </p> <p> </p> <p>The parties agreed to refer their dispute to arbitration in recognition of their respective legal capacities. The fact that in other related matters there might have been a party tainted with legal incapacity is not relevant to the arbitral award at hand which is not so tainted. It is also material to note that once the issue of the true parties to the dispute had been settled by the arbitrator in award No. 1, it ceased to be an issue before any other court or tribunal. The court <em>a quo</em> was therefore correct in treating both parties as being clothed with full legal capacity. The parties voluntarily agreed to be bound by the arbitrator’s award electing that his award shall be final.</p> <p> </p> <p> </p> <p>The principle of party autonomy is central to arbitration as an alternative mode of dispute resolution. Thus once the parties had conferred the arbitrator with the mandate to determine the true parties to the dispute and the amount of compensation payable to the respondent, the parties were firmly bound by his award. That being the case, none of them can legitimately accuse the other of lacking legal capacity.</p> <p> </p> <p> </p> <p>I accordingly find that there is no merit in the first ground of appeal. It ought to be dismissed without any further ado.</p> <p> </p> <p> </p> <p>The second ground of appeal alleges noncompliance with the mandatory provisions of Article 35 (2) of the Model Law. The Article required the respondent to supply the court <em>a quo</em> with the following documents before registration of the arbitral award:</p> <p> </p> <p>1.       A duly authenticated original award or duly certified copy thereof.</p> <p> </p> <p>2.       The original arbitration agreement referred to in article 7 or a duly certified copy thereof.</p> <p> </p> <p> </p> <p>                    It is common cause that the respondent initially approached the court<em> a quo </em>without a full authenticated original award or certified copy of the award owing to the appellant’s failure to pay its share of the arbitrator’s costs. For that reason the arbitrator had legitimately withheld release of the full essential documents.</p> <p> </p> <p> </p> <p>The learned judge <em>a quo</em> correctly found that the appellant could not rely on its own fault to frustrate enforcement of the award. This is what the learned judge had to say at p 3 of his cyclostyled judgment:</p> <p> </p> <p><em>“In </em>this case, the respondent, a whole municipal authority which initiated the entire process of disengagement with the applicant by terminating the joint venture agreement cited “financial dire straits” for its non-compliance with the requirement for payment of its part of the costs. The circumstances under which that was done or not done, exposes the respondent to the genuine concern that it had its sights on delaying the inevitable. This forced the applicant, who had dutifully paid his share of the fees, to approach this court for registration without the original award For the respondent to then turn around and seek to rely on its own default to undermine the application, is the height of lack of bona fides”.(My emphasis<em>)</em></p> <p> </p> <p> </p> <p> </p> <p>Having said that, the learned judge <em>a quo</em> buttressed his legal sentiments with the leading case of <em>Standard Chartered Bank of Zimbabwe Ltd v Matsika</em> 1997 (2) ZLR 389 (S) at 389G for the proposition that no one should be allowed to benefit from his own wrong. In that case KORSAH JA had this to say:</p> <p> </p> <p>“A cardinal principle of the common law is expressed in the aphorism: “<em>nemo</em> ex <em>proprio dolo consequitur actionem</em>,” which translates: no one maintains an action arising out of his own wrong. Complementary to this principle is another which stipulates: “<em>nemo ex suo delicto meliorem suam conditionem facere potest, </em>which means no one can make his better by his own misdeed”<em>.</em></p> <p> </p> <p> </p> <p> </p> <p>I share the learned judge <em>a quo’s </em>sentiments that the appellant was deliberately throwing spanners into the works by not paying its share of the costs. Without such payment the respondent was not in a position to obtain the full original award from the arbitrator thereby stalling enforcement of the award. That kind of behaviour is reprehensible and unbecoming of a litigant. Having wrongfully prevented the respondent from obtaining the original award, the authorities are clear that the appellant cannot derive any benefit from its wrongful conduct. It cannot be heard to cry foul when the respondent availed the best evidence available to it.</p> <p> </p> <p> </p> <p>It is clear that the purpose of requiring the original award before enforcement is to protect a respondent from the enforcement of a fake or erroneous award. Article 35 (2) was therefore crafted for the benefit of the respondent. Where however, the respondent wrongfully bars or disables the applicant from obtaining the original award, he divests himself of the due protection of the law. Thus in this case, the appellant must be deemed to have waived its right to the due protection of the law provided by Article 35 (2) of the Model Law.</p> <p> </p> <p> </p> <p>In this case the respondent however subsequently obtained and filed the original award with his answering affidavit thereby fulfilling the requirements of Article 35 (2) of the Model Law. The appellant’s complaint that the respondent’s application was void <em>ab initio</em> for want of compliance with Article 35(2) and therefore beyond repair is misguided. As we have already seen, the appellant was at fault in preventing the respondent from accessing the necessary documentation. It cannot therefore derive any benefit from its own fault.</p> <p> </p> <p> </p> <p> In any case, the relevant original award was supplied during the course of pleadings. Reliance on the case of <em>Muchakata v Netherburn Mine</em><a href="#_ftn2" name="_ftnref2" title="" id="_ftnref2">[2]</a> for the proposition that, if an act is void it is incurably bad is misplaced.  This is because owing to the appellant’s fault the respondent was only able to supply part of the award available being the order without reasons for the order. In my view that conduct does not render the act void but voidable because there was substantial compliance with the law. The subsequent provision of the full award rectified the procedural defect complained of. It is trite that unlike a void act, a voidable act can be rectified.</p> <p> </p> <p>I accordingly find no merit in the second ground of appeal.</p> <p> </p> <p> </p> <p>Turning to the third and fourth grounds of appeal, these need to be treated as one as they both attack the correctness or otherwise of the arbitrators award. Both grounds of appeal question the propriety of the arbitrator placing reliance on the valuation report.</p> <p> </p> <p> </p> <p>Dealing with his mandate to determine the question of valuation, the Arbitrator had this to say at page 5 of his award:</p> <p> </p> <p>“iii. The parties also agreed that the Honourable Arbitrator would be at liberty to appoint a Valuer – to do a valuation of the improvements he would have found in the 1st arbitration Award to be improvements that Gwanda RDC should compensate Botha for. The valuation of that valuer, who the Arbitrator indicated would be R.E.D. Property represented by Redfern, would be final and binding on the parties.(My emphasis)</p> <p> </p> <p> </p> <p> </p> <p>It is plain and a matter of common cause that the parties agreed to be bound by the valuation report of R.E.D.  Property represented by Redfern with no strings attached.  Once the parties had freely and voluntarily agreed to be bound unconditionally by the valuation of the valuer appointed by the Arbitrator they were firmly bound by that undertaking. The arbitrator was in turn obliged to rely on that valuation in making his award.</p> <p> </p> <p> </p> <p>Section 3 of the Arbitration Act incorporates and domesticates the Model Law into our jurisdiction. Article 5 of the Model Law generally bars court intervention in matters of arbitration. It provides as follows:</p> <p>            “ARTICLE 5</p> <p><em>             Extent of court intervention</em></p> <p> </p> <p>              In matters governed by this Model Law, no court shall intervene except where</p> <p>              so provided in this Model Law”.</p> <p> </p> <p> </p> <p> </p> <p>What this means is that generally speaking courts of law are barred by operation of law from intervening in voluntary arbitration matters unless duly authorised thereto by the Act or the Model Law. It appears that cognisant of that hurdle in the law, the appellant sought to invite the court <em>a quo’s</em> intervention through the back door. In particular it is clear that grounds of appeal 3 and 4 raise appeal grounds without stipulating the authority under which the courts may intervene on appeal in purely voluntary arbitration matters. </p> <p> </p> <p> </p> <p>Voluntary arbitration matters are not subject to appeal because there is no provision for appeal either in the Act or the Model Law. This prompted GWAUNZA JA as she then was in <em>Ropa v Reosmart Inverstments (Pvt) Ltd &amp; Anor<a href="#_ftn3" name="_ftnref3" title="" id="_ftnref3"><strong>[3]</strong></a> </em>to remark that:</p> <p> </p> <p> </p> <p>“I found to be persuasive the submission made for the respondent that the effect of an arbitral award is to bring to finality the dispute between the parties. The respondent relied for this submission on the following passage set out in Butler and Finsen “Arbitration in South African Law &amp; Practice” at p 271:</p> <p> </p> <p>“The most important legal consequence of a valid final award is that it brings the dispute between the parties to an irrevocable end; the arbitrator’s decision is final and there is no appeal to courts.          For better or worse, the parties must live with the award, unless the arbitration agreement provides for a right of appeal to another arbitral tribunal. The issue determined by the arbitrator becomes <em>res judicata</em> and neither party may reopen those issues in a fresh arbitration or court action”.</p> <p> </p> <p> </p> <p> </p> <p>Thus, in the absence of any right of appeal in the arbitration agreement, the Act or Model Law, it was remiss of the appellant’s lawyers to raise appeal grounds under the guise of objecting to the registration process for enforcement purposes.</p> <p> </p> <p> </p> <p>In ground 4 the appellant’s complaint is that the Registration of the award was against public policy in that the award was based on a discredited valuation report. Looked at from another angle, the appellant is simply saying that it is against Zimbabwean public policy to register a wrong award based on a defective valuation report.</p> <p> </p> <p> </p> <p>As we have already seen, the parties in their arbitration agreement freely and voluntarily clothed the arbitrator with final binding jurisdiction. It is trite that ordinarily a court or tribunal of final jurisdiction can do no wrong as its determination is generally not subject to any other authority. The only window of opportunity is where the High Court is asked to exercise its powers of review under Article 34 of the Model Law. The appellant could however not invoke the court <em>a quo’s</em> review powers by merely lodging an objection to registration of the award. The appellant was obliged to lodge a proper application for review in terms of Article 34 to trigger the court <em>a quo’s</em> review powers if it intended to subject the award to review. This it did not do.</p> <p> </p> <p> </p> <p>The remarks of  MALABA DCJ as he then was in <em>Zimbabwe Educational</em> <em>Scientific, Social and Cultural Workers Union</em> v <em>Welfare Educational Institutions Employers Association</em><a href="#_ftn4" name="_ftnref4" title="" id="_ftnref4">[4]</a> are apposite, though made in the context of the Labour Act [<em>Chapter 28:01</em>]. In that case the learned judge had this to say:</p> <p> </p> <p><em>“</em>An application or appeal to a court or tribunal is a remedy which exists because there is a statutory right to use it to seek relief. For the court to exercise the right to review a decision of the arbitrator as provided by s 89 (1) (d) (1) there has to be a valid application for review in terms of the Act or any other enactment as provided by s 89(1).</p> <p> </p> <p> </p> <p>The appellant not having taken any valid steps to have the award set aside and having failed to fulfil the conditions laid down under article 3 for objection to the registration of an arbitral award, the appeal can only fail.</p> <p> </p> <p>It is accordingly ordered that the appeal be and is hereby dismissed with costs.</p> <p> </p> <p> </p> <p><strong>GOWORA JA:</strong>                                              I agree</p> <p> </p> <p> </p> <p> </p> <p><strong>MAKONI JA :</strong>                                               I agree</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>Calderwood, Bryce-Hendrie &amp; Partners c/o Kwenda Chagwiza Legal</em> P<em>ractitioners</em>, the appellant’s legal practitioners.</p> <p> </p> <p><em>Vhundhla Pulu c/o Gill Godlonton &amp; Gerrans</em>, the respondent’s legal practitioners.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> The Law of Arbitration, South African &amp; international Arbitration, 2014 Juta &amp; co, Ltd 2014.at pP 27 para 5. 2. 4.</p> <p><a href="#_ftnref2" name="_ftn2" title="" id="_ftn2">[2]</a> 1996 (1) ZLR  153 (S) at 157C</p> <p><a href="#_ftnref3" name="_ftn3" title="" id="_ftn3">[3]</a> 2006 (2) ZLR 283 S) at 286B</p> <p><a href="#_ftnref4" name="_ftn4" title="" id="_ftn4">[4]</a> SC 11/2013 at page 5.</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/2020/174/2020-zwsc-174.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=50150">2020-zwsc-174.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/2020/174/2020-zwsc-174.pdf" type="application/pdf; length=505150">2020-zwsc-174.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/arbitration">ARBITRATION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/award-0">Award</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/contract">CONTRACT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/parties-0">Parties</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2013/11">Zimbabwe Educational, Scientific, Social and Cultural Workers Union v Welfare Educational Empoyers Institutions Association (121/11) [2013] ZWSC 11 (25 February 2013);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1996/6">Arbitration Act [Chapter 7:15]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div></div></div> Wed, 06 Jan 2021 09:00:20 +0000 Sandra 9959 at https://old.zimlii.org Rwafa v Paradzai (HH 685-20, CIV 'A' 72/20 REF CASE 25589/18) [2020] ZWHHC 685 (04 November 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/685 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>NYASHA RWAFA</p> <p>versus</p> <p>TOKOTI PARADZAI</p> <p> </p> <p>HIGH COURT OF ZIMBABWE<br /> TSANGA J &amp; CHIRAWU MUGOMBA JJ<br /> HARARE, 29 October &amp; 4 November 2020</p> <p> </p> <p><strong>Civil appeal</strong></p> <p> </p> <p>Appellant in person<br /> <em>R E Nyamayemombe, </em>for the respondent</p> <p> </p> <p>TSANGA J: Appellant’s application for rescission of judgment was dismissed by the magistrate in a matter involving eviction from stand 656 Zone 6 in Hopley in which the court found that the appellant had no bona fide defence on the merits. Having been given the benefit of the doubt that he was not in wilful default as there was no conclusive evidence of having been served the notice to plead, the appellant averred on merits that the stand from which eviction was sought in fact belonged to his wife and that this stand was known as 658 Zone 5 Hopley and not stand 656 Zone 6 as indicated in the summons. He had also sworn to an affidavit dated 30thof November 2018 that although he knew the complainant in the matter having previously worked for him, he did not understand why a case had been made against him as he does not possess a stand in Hopley nor has he ever owned one. In essence he stated he was a wrong party to the action. The court found that he could not therefore represent his wife since a party affected by a judgment can apply for rescission in their own right in terms of Order 30 rule 4(1) and that the wife could proceed in terms of the stated provision. </p> <p>Appellant filed this appeal on the grounds that </p> <ol> <li>The court erred in holding that he could not file for rescission as he was not the owner of the stand but failed to grasp that the Respondent had no <em>locus standi</em>to evict him </li> </ol> <ol> <li>The court erred in failing to recognise that the respondent’s stand and the stand from which appellant was evicted are different and so should have granted his prayer.</li> </ol> <p>The prayer sought is that the appeal be allowed with costs and that the judgment of the court a quo be substituted with the following:</p> <ol> <li>Default judgment entered against applicant in case number 36/18 be and is hereby set aside.</li> <li>Applicant shall file his plea within 14 days of grant of this order.</li> <li>The applicant be restored to his occupation of the stand from which he was evicted.</li> <li>The respondent shall pay costs of suit on attorney client scale.</li> </ol> <p>At the appeal hearing appellant appeared in person and confirmed having been evicted in July 2019. He confirmed that his wife was aware of the court’s reasoning in not granting him rescission. Indeed, she had sworn an affidavit at the time of the application for rescission stating that she had bought the stand. Even though she had not taken any action to vindicate her claims, appellant maintained his argument that he had reason to appeal in that the court had misdirected itself in ordering an eviction from stand 658 zone 5 when the papers spoke of stand 656 Zone 6. As for the stand numbers which he latches on, the averment on record by Amon Nyika who describes himself as the current Chairman of Simon Mazorodze District shows that these were in a state of flux and had been changed. </p> <p>In essence the error appears to be not one in the stand itself and who was to be evicted from it but in its simple numerical description or nomenclature. Indeed, that this is the case is borne out by the fact that the parties are known to each other and the appellant was an employee of the respondent before they fell out. Respondent says that the appellant was his tenant. The appellant’s own sworn affidavit on p 47 of the record spoke to this relationship and to the fact that he himself has never owned a stand in Hopley.</p> <p>The respondent’s counsel therefore emphasized the point that the appellant never claimed that the property was his. His wife has never applied for rescission and has never taken any action to protect her alleged property. He highlighted that there are clear affidavits on record capturing that the stand in question had been sold to the respondent by one Wilfred Mataka. There was also an affidavit from one Amon Nyika the current chairman of Mazorodze district where the stands are located explaining the sale of the stand by Wildred Mataka and also the issue of stand numbers and the fact that they were yet to be rectified and synchronised. </p> <p> </p> <p>The first ground of appeal it is in reality linked to the second ground in that the court is said to have erred in failing to recognise that even though he was not the owner the papers referred to a different stand and that therefore the respondent has no basis for evicting him.</p> <p>There was no error on the part of the magistrate as the magistrate simply indicated that the alleged owner of the stand, who is privy to all details must be the one to take action. Even though the wife was very aware of the facts at the time of the application fer rescission of judgment no application was made to be joined as a party having an interest in the matter. She has not sought rescission of the judgment of the court below. </p> <p>Order 30 rule 4 provides as follows:</p> <p><strong><em>4. Application for rescission by person affected by judgment </em></strong></p> <p>(1) Any judgment of the court may, on the application of any person affected thereby who was not a party to the action or matter, made within seven days after he or she has knowledge thereof, be so rescinded, varied or corrected.”</p> <p> </p> <p>The fact is having been evicted in July 2019 it was only in March 2020 that the appellant notably, sought to take action by seeking condonation for late noting of the appeal. The wife’s failure or reluctance to take action over property claimed is hers is truly baffling and cannot be explained by hiding behind the fact that she is a self-actor. The magistrate’s decision was clear that:</p> <p>“In terms of order 30 Rule 4 (1) a party affected by a judgment can apply for rescission. As such the wife of the applicant who purported to be the owner of the stand can apply for a rescission and later to be joined to the proceedings as a party.”</p> <p> </p> <p>Joinder to the claim if the rescission is granted will be by her application to the court. There is no basis for this court to order a return to the stand by the appellant as he lacks standing, worse still when the person said to be the owner is seemingly not interested in taking any action. It is not for this court to join her <em>mero motu</em>when she has not even sought rescission as owner of the property.</p> <p>As stated in the case of <em>Sherperd Zengwe &amp; Anor v Maria A Shangu &amp; Anor</em>HH 180/17 </p> <p>“The doctrine of privity of contract provides that contractual remedies are enforced only by or against parties to a contract, and not third parties, since contracts only create personal rights<a href="//9A6C736C-9041-4D8D-9380-E2FBC9B4BB98#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a>. Third parties cannot sue even if they would be benefitted by the performance of the contract<a href="//9A6C736C-9041-4D8D-9380-E2FBC9B4BB98#_ftn2" name="_ftnref2" title="" id="_ftnref2">[2]</a>. The first defendant who acted as an agent of herhusband cannot seek to enforce personal rights that emanated from the contract that she was not a party to. Being married to a person who is a party to a contract does not make one privy to that contract. There is no automatic transmission of privity of contract to a spouse by virtue of marriage, be it customary or civil.” </p> <p> </p> <p>The only person who can speak to the ownership of the stand as being hers is the wife and the magistrate did not err in refusing to grant rescission once the applicant himself told the court that he did not own the stand and neither has he ever owned one in Hopley. It was him who told the court that the stand belongs to his wife. It is she who needed to take action as highlighted by the court below.</p> <p>The appeal by the appellant lacks merit and is accordingly dismissed with costs.</p> <p> </p> <p> </p> <p>CHIRAWU MUGOMBA J agrees ................................. </p> <p> </p> <p> </p> <p><em>Takaindisa Law Chambers, </em>respondent’s legal practitioners</p> <p> </p> <p> </p> <p><a href="//9A6C736C-9041-4D8D-9380-E2FBC9B4BB98#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a>Innocent Maja <em>The</em><em>Law of</em><em>Contract in Zimbabwe</em>p 27.</p> <p><a href="//9A6C736C-9041-4D8D-9380-E2FBC9B4BB98#_ftnref2" name="_ftn2" title="" id="_ftn2">[2]</a>See Innocent Maja <em>The</em><em>Law of</em><em>Contract in Zimbabwe</em>p 27</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="Microsoft Office document icon" title="application/msword" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/685/2020-zwhhc-685.doc" type="application/msword; length=45568">2020-zwhhc-685.doc</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/685/2020-zwhhc-685.pdf" type="application/pdf; length=126645">2020-zwhhc-685.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/c">C</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/contract">CONTRACT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/parties-0">Parties</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/default-judgment">Default judgment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rescission-default-judgment">rescission (Default judgment)</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/2017/180">Zengwe &amp; Another v Shangu &amp; Another (HH180-17 HC 2310/15) [2017] ZWHHC 180 (22 March 2017);</a></div></div></div> Wed, 25 Nov 2020 06:33:44 +0000 Sandra 9946 at https://old.zimlii.org