Judgment No. SC 2/04

Civil Application No. 224/03

ECKEM WILLIAM SITHOLE v

P.G. INDUSTRIES (ZIMBABWE) LIMITED t/a THE AFRICAN LUMBER COMPANY (PRIVATE) LIMITED

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, SANDURA  JA, ZIYAMBI JA, MALABA JA & GWAUNZA  JA

HARARE, JANUARY 13 & 29, 2004

The applicant in person

No appearance for the respondent

SANDURA  JA: This application was brought in terms of s 24(1) of the Constitution of Zimbabwe (“the Constitution”). The applicant (“Sithole”) seeks an order declaring, inter alia, that his right to a fair hearing within a reasonable time by an independent and impartial court, enshrined in s 18(9) of the Constitution, has been violated. The application was not opposed.

The background facts are as follows.

1. On 1 June 1995 Sithole joined the respondent company (“the company”) as one of its employees in Bulawayo. The company had a Code of Conduct (“the Code”) in terms of which the penalty for absenting oneself from duty for three or more consecutive days without a lawful excuse was a final written warning.

2. On 4, 5 and 6 December 1995 Sithole did not turn up for work. He alleges that he had been authorised to be away from work as he was taking some examinations, but that is denied by the company.

3. On 14 December 1995 the company’s disciplinary committee found him guilty of absenting himself from duty without a lawful excuse and issued a final written warning to him.

4. Thereafter, on 13 March 1996, the company’s operations manager transferred Sithole to the company’s Mutare Branch, but Sithole refused to go there. Consequently, the operations manager suspended him from duty pending dismissal. He cited two grounds. The first was wilful disobedience to a lawful order; and the second was acting in a manner inconsistent with the fulfilment of the express or implied conditions of the contract of employment.

5. Subsequently, on 2 April 1996, the company’s disciplinary committee was convened. After hearing the matter, the committee found Sithole guilty on 22 April 1996 and recommended his dismissal. It is not clear from the record whether he was found guilty of one or both charges. Nevertheless, his employment was terminated on 31 May 1996.

6. Aggrieved by the termination of his employment, Sithole instituted a civil action, case no. HC 3222/98, in the High Court at Bulawayo on 20 August 1998 claiming, inter alia, damages for wrongful dismissal. The summons was served on the company on 9 September 1998 and, thereafter, an appearance to defend was entered and a plea filed.

7. Subsequently, a pre-trial conference was held on 30 June 1999. It was presided over by a judge of the High Court. Sithole was not legally represented, but the company was. At the end of the pre-trial conference, the learned judge issued the following minute:

“IT IS RECORDED:

That the plaintiff is advised to apply to re-instate his case to the labour relations office.

That this court declines to re-hear the disciplinary proceedings as this has been determined in terms of the Code of Conduct.

That the plaintiff pay costs.”

8. Dissatisfied with the outcome of the pre-trial conference, Sithole noted an appeal to this Court on 15 December 1999. However, the appeal was not timeously noted and no extension of the time within which to appeal had been granted.

9. On the basis of the pre-trial conference minute, the company had its bill of costs taxed and allowed in the sum of $17 798.55. Sithole was not present when the bill was taxed because he had not seen the notice of taxation sent to his address for service, which was different from his residential address. However, the notice had been sent a day before the taxation, contrary to the provisions of r 310(2) of the High Court Rules, 1971 (“the Rules”), which require that at least three days’ notice of the taxation be given.

10. In January 2000 the company had a writ of execution issued against Sithole in order to recover its taxed costs from him. Thereafter, on 26 February 2000, movable property belonging to Sithole was attached by the Deputy Sheriff. It was listed in an inventory as follows:

“Four-piece red lounge suite – fair condition;

Phillips 20" colour TV – fair condition;

Kitchen table and four chairs – fair condition;

Kitchen unit – scratches all over;

Kic double door fridge

Panstar black and white TV (12") – fair condition;

Approximate value - $12 000.00”.

11. On 27 March 2000 Sithole filed a chamber application in the High Court at Bulawayo, case no. HC 1341/2000, seeking an order setting aside the taxation of the company’s costs and the attachment of his property. The matter was placed before the learned judge who had presided over the pre-trial conference. It was subsequently dismissed with costs on 11 April 2000, and Sithole’s property was later sold by public auction on 14 April 2000.

12. On 5 July 2000, at the request of the learned judge who had presided over the pre-trial conference, Sithole and the company’s legal practitioner appeared before him in chambers. The learned judge informed them that the pre-trial conference minute of 30 June 1999 had been issued by mistake, and that if both of them agreed the minute would be withdrawn. When they indicated their agreement, the learned judge issued the following order:

“IT IS ORDERED THAT: By consent

Order granted on 30 June 1999 be and is hereby withdrawn.”

13. On 11 July 2000 Sithole filed a notice of appeal in this Court against the dismissal of his chamber application on 11 April 2000. The appeal was noted because, notwithstanding the withdrawal of the pre-trial conference minute, Sithole’s property, which had been attached and sold in execution, had not be returned to him or replaced by the company. However, the appeal was noted out of time, and no extension of the time within which to appeal had been granted.

14. On 19 July 2000 the learned judge who had presided over the pre-trial conference issued the following order in chambers and in the absence of the parties:

“IT IS ORDERED THAT:

Since the matter is still incomplete, the costs, including those already taxed and executed upon are to be held over for determination at the hearing of the application.”

From the record, it does not appear that either party had applied for this order, or any other order for that matter. In addition, it is not clear what application the learned judge was referring to in the order.

15. When Sithole subsequently wrote to the assistant registrar of the High Court at Bulawayo, inquiring about the progress made in the preparation of the court record required in the appeal against the dismissal of his chamber application he received the following reply:

“It is not clear to the writer why you have noted an appeal in the above matter. On 19 July 2000 His Lordship issued a directive as follows:

‘Since the matter is still incomplete, the costs, including those already taxed and executed upon are to be held over for determination at the hearing of the application.’

Is it not the same matter set down for 26-27 June 2001?”.

In the circumstances, Sithole alleges that the assistant registrar, relying on the irregular order issued by the learned judge on 19 July 2000, refused to prepare the court record which was required in the prosecution of the appeal against the dismissal of his chamber application.

16. Sithole then decided to concentrate on having the main civil action, case no. HC 3222/98, set down for trial. In August 2002 the matter was set down for hearing on 28, 29 and 30 January 2003, but in November 2002 the company’s lawyer indicated that he was not available on those dates. As a result, the matter was not heard on those dates, despite protests by Sithole’s lawyers.

17. Thereafter, the matter was set down for trial on 13, 14, and 15 May 2003. The assistant registrar of the High Court at Bulawayo faxed the notice of set down to Sithole, who was then working in Chinhoyi. Sithole then sent a copy of the notice of set down to the company, although the company’s legal practitioner should have been officially notified of the trial dates by the assistant registrar.

18. On 12 May 2003 the company’s legal practitioner wrote to the assistant registrar as follows:

“We understand from the plaintiff … that you offered 13 May 2003 as a trial date for the matter. Regrettably, we did not receive that offer although we did point out to the plaintiff’s legal practitioners that Mr Mathonsi, who is handling this matter, is appearing at the High Court in Harare and is therefore not available on that date. …

We therefore assume that the matter has not been set down and that an offer for dates will be coming in due course.”

19. On 13 May 2003 Sithole appeared at the High Court in Bulawayo, but the company and its legal practitioner did not. In the circumstances, Sithole intended applying for a default judgment after giving evidence on the quantum of damages. However, his plan was frustrated by the fact that the court did not sit on that day. When he approached the trial judge’s clerk at about 11 am on that day, and made enquiries, he was informed that the trial judge had received some communication from the company indicating that it was not aware that the matter had been set down for trial on 13 May 2003. I presume that the judge’s clerk was referring to the letter written to the assistant registrar by the company’s legal practitioner on 12 May 2003. For the sake of clarity, I should state that the trial judge was not the judge who had presided over the pre-trial conference on 30 June 1999.

20. Undaunted by the clerk’s explanation, Sithole requested the clerk to take him to the judge’s chambers so that he could apply for a default judgment in the matter as the company was in default. The request was granted and he was taken to the judge’s chambers, where the judge informed him that as a result of the letter received from the company’s lawyers he had instructed the assistant registrar to furnish him with evidence indicating that the company had been notified of the trial dates. In the circumstances, Sithole did not make the application for a default judgment.

21. On 15 May 2003, after the assistant registrar had failed to produce the evidence required by the judge, Sithole requested the judge’s clerk to take him to the judge’s chambers. When the request was communicated to the judge, the judge refused to see him. Thereafter, Sithole saw the assistant registrar, who advised him to write a letter to the judge which he, the assistant registrar, would deliver to the judge. As advised, Sithole wrote a letter to the learned judge on 15 May 2003, gave it to the assistant registrar and left for Chinhoyi.

22. On or about 27 May 2003 the assistant registrar telephoned Sithole and informed him that the company had misled the court when it asserted, through its lawyers, that it had not been notified of the trial dates. He added that the matter had again been set down for trial on 15 and 16 July 2003. Sithole then telephoned the company’s legal practitioner and spoke to his secretary, who informed him that she had been instructed by the legal practitioner not to accept any trial dates because he had some other matters to attend to.

23. On 1 July 2003 Sithole wrote to the assistant registrar, informing him about what the company’s legal practitioner’s secretary had said, advising him to make sure that the company or its legal practitioner was served with the notice of set down, and stating that if the company did not appear at the trial on 15 July 2003 he would make an application for a default judgment. Thereafter, on 7 July 2003, the company’s legal practitioners were served with the notice of set down indicating that the matter had been set down for trial on 15 and 16 July 2003.

24. On 15 July 2003 Sithole appeared at the High Court, but the company and its legal practitioner did not. When he made enquiries with the assistant registrar, he was informed that the company or its legal practitioner had been in communication with the court and that, as a result, the trial could not commence on that day. The court did not, therefore, sit and Sithole was not given an opportunity to make an application in respect of wasted costs.

25. Aggrieved by what had happened in this case, especially the long delay in the commencement of the trial, Sithole filed this application on 22 August 2003, seeking the following order:

“1. That the applicant’s right to a fair trial within a reasonable period of time as enshrined in sections 18(9) and 18(10) of the Constitution was violated.

2. That a judicial commission of enquiry be and is hereby established to establish the circumstances leading to … –

i) the judgment of the court of 12 April 2000;

ii) the judgment of the court of 19 July 2000;

iii) the failure by the court to sit on 13 to 15 May 2003; and

iv) the failure by the court to sit on 15 and 16 July 2003.

3. That the respondent be and is hereby declared to be in wilful default of appearance on 13 to 15 May 2003.

4. That the respondent’s defence in case number HC 3222/98 be and is hereby struck off.

5. That judgment in case number HC 3222/98 be and is hereby entered for the plaintiff in the sum of $1 531 755.78.

6. That the amount be adjusted for inflation by a factor of 40, to read $61 270 231.20.

7. That the attachment and removal of the applicant’s movable property on 23 March 2000 be and is hereby declared illegal, null and void.

8. That the respondent in case number HC 1341/2000 be and is hereby ordered to buy brand new replacement property of the same make and type as that attached and sold in execution on 14 April 2000.

9. That the respondent be and is hereby ordered to deliver the property referred to in para 8 above to number 30, 8^th Avenue, Alaska, Chinhoyi, within two weeks of the date of the granting of the order.

10. That the respondent in case number HC 1341/2000 be and is hereby ordered to pay punitive damages in the sum of $3 000.00 per day from 23 March 2000 to date of restoration of property to the applicant.

11. That the respondent reimburses the applicant his out of pocket expenses resulting from the abortive trial on 13 to 15 May 2003 and 15 to 16 July 2003 in the sum of $150 000.00.”

However, after this application had been filed in this Court, the assistant registrar of the High Court at Bulawayo wrote to Sithole on 26 August 2003, informing him that the civil action had been set down for trial on 28 and 29 October 2003. Subsequently, on 28 October 2003 the learned judge presiding over the trial informed the parties that, as Sithole had filed a constitutional application in this Court, the High Court could not proceed with the trial but had to wait for this Court’s decision in the application. Presumably, the trial was then postponed sine die, but the papers do not say so.

I now wish to consider the relief sought by Sithole in each paragraph of the draft order and determine whether it should be granted.

PARAGRAPH 1

In this paragraph Sithole seeks two declarations. The first is that his right to a fair hearing within a reasonable time by an independent and impartial court, enshrined in s 18(9) of the Constitution, was violated; and the second is that his right to have court proceedings held in public, and the announcement of the court’s decision made in public, as enshrined in s 18(10) of the Constitution, was violated. I shall deal with the two sections in turn.

Section 18(9) of the Constitution reads as follows:

“Subject to the provisions of this Constitution, every person is entitled to be afforded a fair hearing within a reasonable time by an independent and impartial court or other adjudicating authority established by law in the determination of the existence or extent of his civil rights or obligations.”

Bearing in mind what happened in this case, as outlined above, there can be no doubt that Sithole’s right to a fair hearing within a reasonable time was violated.

It all started on 30 June 1999 when the judge presiding over the pre-trial conference determined, wrongly in my view, that Sithole’s civil action against the company would not be heard by the High Court, and advised Sithole “to apply to re-instate his case to the labour relations office”. In my view, the learned judge did not have the power to issue such an order at a pre-trial conference except, perhaps, with the concurrence of both parties. As it is clear from the papers that the order was not issued with Sithole’s concurrence, it was a nullity.

The purpose of a pre-trial conference is set out in r 182(2) of the Rules, which reads as follows:

“At a pre-trial conference the parties shall attempt to reach agreement on possible ways of expediting or curtailing the duration of the trial and on the following matters –

(a) the obtaining of admissions of fact and of documents;

(b) the holding of any inspection or examination;

(c) the exchange of reports of experts;

(d) the giving of further particulars reasonably required for the purpose of the trial;

(e) plans, diagrams, photographs, models and the like, to be used at the trial;

(f) the consolidation of trials;

(g) the quantum of damages;

(h) a definition of the real issues and the manner in which any particular issue may be proved;

(i) an estimation of the probable duration of the trial;

(j) the preparation of correspondence and other documents to be handed in at the trial in the form of a paged bundle with copies for the court and all the parties;

and, if it is practicable to do so, the parties shall attempt to reach a settlement of all or any of the matters in dispute between them.”

As already indicated, on the basis of the pre-trial conference minute issued by the learned judge, the company had its bill of costs taxed and allowed in the sum of $17 798.55. The notice of taxation was sent to Sithole the day before the taxation and Sithole did not see it until after the taxation. It is clear that r 310(2) of the Rules was not complied with by the company because Sithole was not given sufficient notice of the taxation. Subrules (1) and (2) of r 310 read as follows:

“(1) Notice of taxation to the party against whom any order for costs has been awarded shall be necessary in every case except where the party against whom costs have been awarded has either not entered an appearance to defend or has failed to appear before the court either in person or by legal practitioner.

(2) In all cases where a notice of taxation is necessary, three days’ notice together with a copy of the bill of costs shall be given by the legal practitioner of the party whose costs are to be taxed to the other party or his legal practitioner.” (emphasis added).

The exception mentioned in r 310(1) does not apply to Sithole and, consequently, he should have been given three days’ notice of the taxation. It is clear from the wording of r 310(2) that this is peremptory. As the Rule was not complied with, the taxation was a nullity.

In fact, as the order issued by the learned judge at the pre-trial conference was a nullity, everything which depended upon that order for its validity was also a nullity. That includes not only the taxation of costs but also the warrant of execution and the sale of Sithole’s property by public auction.

As LORD DENNING stated in MacFoy v United Africa Co Ltd [1961] 3 All ER 1169 (PC) at 1172I:

“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

Although the order issued by the learned judge at the pre-trial conference was subsequently withdrawn by him, with the consent of both parties on 5 July 2000, the learned judge did nothing to ensure that the adverse consequences of his order were reversed.

In addition, after the order had been withdrawn, the civil action was set down for trial on seven occasions, according to Sithole, and on all those occasions the company came up with one excuse or another for the postponement of the matter. This allegation and others have not been contradicted by the company.

On most of the occasions when the matter was postponed, it would appear that the excuse given by the lawyers representing the company was that the legal practitioner handling the matter was engaged on other matters. However, as Sithole submitted, the matter could have been handled by another member of the firm. Alternatively, the legal practitioner concerned should have renounced agency and advised the company to instruct other lawyers to represent it at the trial if he was too busy to do so.

The summons commencing the civil action was issued on 20 August 1998 and by 28 October 2003, more than five years later, no trial had taken place, despite the fact that the matter had been set down for trial on at least seven occasions. In addition, there was no good reason for the postponements. In a way, Sithole was justified in submitting that the company was afraid of meeting him in court.

In the circumstances, I am satisfied that Sithole’s right to a fair hearing within a reasonable time, enshrined in s 18(9) of the Constitution, was violated.

I now wish to deal with Sithole’s submission that the provisions of s 18(10) of the Constitution were also violated.

The section reads as follows:

“Except in the case of a trial such as is referred to in subsection (14) or with the agreement of all the parties thereto, all proceedings of every court and proceedings for the determination of the existence or extent of any civil right or obligation before any other adjudicating authority, including the announcement of the decision of the court or other authority, shall be held in public.”

The right enshrined in this section is qualified by s 18(11) of the Constitution, but that qualification does not apply in this case. In addition, the exception mentioned in s 18(10) does not apply.

It was Sithole’s submission that s 18(10) of the Constitution was contravened in relation to him because on each occasion when the matter was postponed without his consent, the proceedings leading to the postponement, and the announcement of that postponement, did not take place in court, nor did they take place in chambers after the parties had made their submissions on the issue of postponing the matter. On the contrary, he was merely informed by the assistant registrar or the judge’s clerk that the court was not sitting because the company had written to the judge, presumably seeking a postponement.

In the circumstances, he submitted that he was deprived of the opportunity of arguing against the postponement of the matter, and applying for wasted costs in the event that his argument against postponement was rejected.

In my view, this is a valid submission. Where a matter has been set down for trial, and there is no agreement on its postponement, the party seeking a postponement must make an application for the postponement either in chambers or in court, after notifying the other party, and the presiding judge must make a ruling on the matter, and on the issue of wasted costs if the postponement is granted.

Since that is not what happened on each occasion when the matter was postponed without Sithole’s consent, I am satisfied that s 18(10) of the Constitution was contravened in relation to him.

PARAGRAPH 2

In this paragraph of the draft order, Sithole seeks an order setting up a judicial commission of inquiry to investigate the manner in which the judges of the High Court at Bulawayo handled his case.

Quite clearly, this Court does not have the power to issue such an order. The conduct of the judges concerned could only be investigated if the CHIEF JUSTICE was of the view that such an investigation was warranted, in which case he would act in terms of s 87(3) of the Constitution, which reads as follows:

“If, in the case of a judge of the Supreme Court or the High Court other than the Chief Justice, the Chief Justice advises the President that the question of removal from office of the judge concerned ought to be investigated, the President shall appoint a tribunal to inquire into the matter.”

PARAGRAPHS 3, 4, 5, AND 6

These paragraphs read as follows:

“3. That the respondent be and is hereby declared to be in wilful default of appearance on 13 to 15 May 2003.

4. That the respondent’s defence in case number HC 3222/98 be and is hereby struck off.

5. That judgment in case number HC 3222/98 be and is hereby entered for the plaintiff in the sum of $1 531 755.78.

6. That the amount be adjusted for inflation by a factor of 40, to read $61 270 231.20.”

I have decided to consider these four paragraphs together because they are all connected in that if the relief sought in para 3 is not granted the other paragraphs fall away.

In my view, the relief sought in para 3 cannot be granted because there is no evidence indicating that the assistant registrar notified the company or its legal practitioners that the matter had been set down for trial on 13, 14, and 15 May 2003. The evidence on record shows that after Sithole informed the company’s legal practitioner that the matter had been set down for trial on 13, 14 and 15 May 2003, the legal practitioner wrote to the assistant registrar on 12 May 2003, stating that he had not been informed of the trial dates by him, and that if he had been informed he would have indicated to him that he was unavailable on those dates because he was under an obligation to appear in the High Court in Harare on those dates.

Indeed, when the learned judge who was to preside over the matter asked the assistant registrar, on 13 May 2003, to produce proof of service of the notice of set down on the company or its legal practitioners he was unable to do so.

In the circumstances, the company was not in wilful default, and the relief sought in paras 3, 4, 5 and 6 of the draft order cannot be granted.

PARAGRAPH 7

In this paragraph, Sithole seeks a declaration to the effect that the attachment and removal of his property on 23 March 2000 was null and void.

In my view, he is entitled to this declaration, for the reasons which I have already given in this judgment.

PARAGRAPHS 8, 9 AND 10

It is convenient to deal with these three paragraphs together because they all relate to case no. HC 1341/2000, the chamber application filed by Sithole on 27 March 2000 seeking an order setting aside the taxation of the costs awarded to the company at the pre-trial conference, and the attachment of Sithole’s property.

The three paragraphs read as follows:

“8. That the respondent in case number HC 1341/2000 be and is hereby ordered to buy brand new replacement property of the same make and type as that attached and sold in execution on 14 April 2000.

9. That the respondent be and is hereby ordered to deliver the property referred to in para 8 above to number 30, 8^th Avenue, Alaska, Chinhoyi, within two weeks of the date of the granting of the order.

10. That the respondent in case number HC 1341/2000 be and is hereby ordered to pay punitive damages in the sum of $3 000.00 per day from 23 March 2000 to date of restoration of property to the applicant.”

Whilst it is correct that Sithole’s property was wrongfully attached and sold, it is clear from the inventory compiled by the Deputy Sheriff on 26 February 2000, the date when the property was attached, that the property was not new. Sithole is not, therefore entitled to new property of the same make and type as that attached and sold.

Had the property been recently attached and sold, it would have been appropriate to order its return to him. However, that is not the case. The property was attached on 26 February 2000 and sold by public auction on 14 April 2000. In all probability, the present condition of the property is no longer what it was at the time of attachment.

In the circumstances, the best way of compensating Sithole for the loss of his property is to order that he be paid what his property, in the condition it was at the time of attachment, would be worth at the time of the trial. Expert evidence will, obviously, be required to establish that value, which will have to be determined by the High Court after hearing the parties and/or their witnesses.

Paragraph 9, therefore, falls away.

However, paragraph 10 requires consideration. In that paragraph, Sithole seeks damages in the sum of $3 000.00 per day from 23 March 2000 to the date of the delivery of the new replacement property to him. The significance of 23 March 2000 is that it is the date on which the property was removed from Sithole’s premises after it had been attached on 26 February 2000.

As Sithole has been unlawfully deprived of the use of his property since the date of its removal from his residence, the company’s liability to pay him damages is established. However, the quantum of those damages shall be determined by the High Court after hearing evidence from the parties and/or their witnesses.

PARAGRAPH 11

In this paragraph, Sithole seeks an order directing the company to pay to him the sum of $150 000.00, being expenses allegedly incurred by him when he appeared at the High Court in Bulawayo on 13, 14, and 15 May 2003, and on 15 and 16 July 2003, when the civil action, which had been set down for trial on those dates, was postponed without his consent.

In my view, this claim should be dealt with by the High Court at the trial of the civil action.

Finally, I wish to deal with the powers of this Court in applications brought to it in terms of s 24(1) of the Constitution. In this regard, s 24(4) of the Constitution, in relevant part, reads as follows:

“The Supreme Court … may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of the Declaration of Rights …”.

It is clear from the wording of the section that, as far as remedies are concerned, this Court has a very wide discretion in applications of this nature. Thus, in In re Mlambo 1991 (2) ZLR 339 (S) at 355 B-C, 1992 (4) SA 144 (ZS) at 155 I-J, this Court commented on s 24(4) of the Constitution as follows:

“It is difficult to imagine language which would give this Court a wider and less fettered discretion.”

Bearing that in mind, as well as the need to determine all the issues between the parties as soon as possible, I shall direct that case no HC 3222/98 be set down for trial by the High Court in Bulawayo as a matter of urgency. Secondly, I shall direct the High Court to determine what Sithole’s property, in the condition in which it was at the time of attachment, would be worth at the time of the trial. That value will constitute the compensation payable to Sithole for the loss of his property. Thirdly, I shall direct the High Court to determine the quantum of damages payable to Sithole for the unlawful deprivation of the use of his property from the date it was removed from his residence to the date of the commencement of the trial. And fourthly, I shall direct the High Court to determine whether the sum of $150 000.00, allegedly spent by Sithole when he appeared at the High Court in Bulawayo on 13, 14 and 15 May 2003 and on 15 and 16 July 2003, and the matter was postponed without his consent, is recoverable from the company.

In the circumstances, the following order is made –

1. It is declared that the applicant’s rights, in terms of ss 18(9) and 18(10) of the Constitution of Zimbabwe, were violated.

2. It is declared that the attachment and removal of the applicant’s property from his residence on or about 23 March 2000 were wrongful and unlawful.

3. The assistant registrar of the High Court at Bulawayo shall set down for hearing case no. HC 3222/98 as a matter of urgency.

4. At the hearing of case no. HC 3222/98, the High Court shall deal with the following additional issues –

(a) the compensation to be paid to the applicant for the loss of his property in accordance with the formula set out in this judgment;

(b) The quantum of the damages payable to the applicant for the unlawful deprivation of the use of his property from the date it was removed from his residence to the date of the commencement of the trial; and

(c) whether the sum of $150 000.00, allegedly spent by the applicant when he appeared at the High Court for trial in May and July 2003, is recoverable from the respondent.

5. The costs of this application shall be paid by the respondent.

CHIDYAUSIKU CJ: I agree.

ZIYAMBI JA: I agree.

MALABA JA: I agree.

GWAUNZA JA: I agree.

Coghlan & Welsh, respondent's legal practitioners