Final Orders re: Writ of Execution, Enforcement of Judgments iro Form and Nature of Order for Execution

HH134-10 : HERBERT SAURAMBA and 113 OTHERS vs MITCHELLS BAKERY MUTARE
Ruled By: CHIWESHE JP

In this matter, the applicants, all employees of the respondent company, had a grievance concerning non-payment of wages. The parties went for arbitration, and, an award was made in favour of the applicants on 14 November 2010.The applicants now seek to register the award with this court. The arbitral award ...

In this matter, the applicants, all employees of the respondent company, had a grievance concerning non-payment of wages. The parties went for arbitration, and, an award was made in favour of the applicants on 14 November 2010.

The applicants now seek to register the award with this court. The arbitral award reads as follows:

“6. Award

Wherefore, after hearing this case, I make the following order.

1. That, the employer had partially fulfilled what was arrived, and agreed, at the conciliation stage at the Ministry of Labour, which culminated in a certificate of settlement.

2. That, respondent pays all outstanding salaries by end of February 2010; in the event that respondent fails to pay by that date, that it pays with interest at the prevailing bank rates.

3. That, both parties share the cost of this arbitration.”

This application is made in terms of section 98(14) of the Labour Act [Chapter 28:01] which provides as follows:

“Any party to whom an arbitral award relates may submit for registration the copy of it furnished to him in terms of subsection (13) to the court of any magistrate which would have had jurisdiction to make an order corresponding to the award had the matter been determined by it, or, if the arbitral award exceeds the jurisdiction of any magistrates court, the High Court.”

I am inclined to decline the application for the reason, that, the award sought to be registered does not sound in money.

I am referred to the judgment of my learned sister MAKARAU JP…, in Thandiwe Mandiringa v National Social Security Authority and five other similar applications dealt with together for purposes of convenience: HH98-05.

I am in entire agreement with the reasoning in that judgment.

As correctly observed in that judgment, the purpose of registering arbitral awards is to enable the applicant to execute upon the awards by the issue of writs out of the Magistrate Court or the High Court.

In terms of Rules 322 and 323 of the High Court Rules 1971, a writ may be issued in execution of a judgment in terms of which an order in respect of the payment of money, the delivery up of goods or premises, or for ejectment.

It follows, that, any order or judgment falling outside the above categories cannot be executed upon by the issuance of a writ.

It has been argued, that, the award under present consideration is that kind of award, which, although not sounding in money itself, by its terms and wording gives rise to a formula by which its monetary value can be calculated. Indeed, the applicants have calculated what is due to them in terms of their contracts of employment.

However, that calculation was not part of the award itself.

The resultant figure has been computed by one party to the dispute and has not been subjected to the determination of an impartial arbitrator, nor has it been shown to have been agreed to by the respondents. The figure, to all intents and purposes, remains a mere claim until such time as it has been adjudicated upon and made part of the arbitral award.

For these reasons, the application is dismissed with costs.

Appealed
SC04-12 : SHAUN EVANS and PAUL FRIENDSHIP vs YAKUB SURTEE and COLLIN MACMILLAN and RODNEY FINNIGAN and ACROSS ENTERPRISES PL
Ruled By: ZIYAMBI JA, GARWE JA and CHEDA AJA

On 19 May 2009, the High Court (BHUNU J) granted an order in favour of the first respondent in the following terms:“1. The defendants, jointly and severally, the one paying the others to be absolved, deliver to the plaintiff 47,500 litres of fuel within forty-eight (48) hours of service of ...

On 19 May 2009, the High Court (BHUNU J) granted an order in favour of the first respondent in the following terms:

“1. The defendants, jointly and severally, the one paying the others to be absolved, deliver to the plaintiff 47,500 litres of fuel within forty-eight (48) hours of service of this order, failing which the Deputy Sheriff be and is hereby authorised to recover the fuel and deliver it to the plaintiff.

2. Costs of suit.”

The defendants referred to in the Order were the two appellants and the second, third and fourth respondents (“Macmillan”, “Finnigan” and “Across Enterprises”). I shall refer to the two appellants and the second to the fifth respondents collectively as “the defendants” and, where the context requires, to the two appellants as “the appellants”. The first respondent will be referred to as “Surtee”.

When the defendants failed to make delivery in terms of the Order made by BHUNU J, the Deputy Sheriff was charged with the execution thereof. He served the Order at 72 Eastern Road, Greendale, Harare, on 22 July 2009 and made the following return:

“Attempt to recover the fuel. Mrs Evans said they are no longer dealing in fuel supplies and they do not have the fuel. Nulla bona. Return to Attorneys.”

This prompted Surtee to file an application in the High Court seeking an order that the defendants be held to be in contempt of court and committed to gaol for 90 days.

Macmillan, Finnigan and Across Enterprises did not file opposing papers and were therefore in default. All five defendants were found to be in contempt of court. Across Enterprises was sentenced to a fine of US$55,000 while the remaining four defendants were sentenced each to a term of 30 days imprisonment. The sentences imposed were suspended on condition that the defendants, jointly and severally, the one delivering the other to be absolved, deliver to Surtee 47,500 litres of fuel on or before 30 November 2010.

The appellants now appeal against the order of the court a quo on the grounds, inter alia, that, the learned Judge erred:-

(i) In finding that the appellants were in contempt of the order made by BHUNU J;

(ii) In finding, that, that order was one ad factum praestandum;

(iii) In finding that the appellants intentionally disobeyed that Order despite the Deputy Sheriff's nulla bona return, the import of which was that the appellants did not have the fuel.

The main issues to be determined are whether the order by BHUNU J was an order ad factum praestandum, and, if so, whether the court a quo correctly found the appellants to be in contempt of court by reason of their disobedience of that order.

Orders of court are, generally speaking, divided into two categories:

(i) Orders to pay a sum of money, namely, orders ad pecuniam solvendam; and

(ii) Orders to do, or abstain from doing, a particular act, or to deliver a thing, namely, orders ad factum praestandum.

See HERBSTEIN and VAN WINSEN, The Civil Practice of the Superior Courts in South Africa, 3ed…,.

The remedy of committal for contempt is available only in the latter category of cases.

These definitions notwithstanding, the distinction between the two types of orders is, in practice, not as clear cut as it may seem. Thus, certain orders for the payment of money, namely, maintenance orders (which one would have regarded as orders ad pecuniam solvendam) have been classified by the courts as orders ad factum praestandum.

The principle was expressed by SCHREINER AJ, in Carrick v Williams 1937 WLD 76…, as follows:

“The reason for holding maintenance orders…, to be orders ad factum praestandum is that they are not really money orders at all.

In their essential nature, they are orders that the defendant do something, namely, maintain the wife or the children.

This duty might be performed in various ways, including the provision of housing, clothing, and food in kind, or the transfer of property; but, in practice, the Court indicates how the defendant is to fulfil the duty by the payment of a periodical sum of money fixed in relation to the apparent capacity of the defendant and the needs of the party to be maintained at the time of the making of the order.

This direction by the Court does not convert the judgment from one ordering the doing of an act by the defendant into one awarding a sum of money to the Plaintiff.”

And, in East London Transitional Council v MEC for Health, Eastern Cape & Ors 2001 (3) SA 1133 (Ck), an order directing a public official to pay a certain sum of money to the judgment creditor was held to operate against that official ad factum praestandum.

The following extract from the judgment of EBRAHIM J, at page 1140F-I of the judgment, is instructive:

“In its strict sense, the order that this Court issued on 28 July 2000, for payment of the sum of R801,249, is an order ad pecuniam solvendam. But, the crucial issue that falls to be considered is, in what manner such an order operates against the first and second respondents and what the effect thereof is.

In my view, its operation is similar to that of an order which indicates the manner in which maintenance must be paid: see Carrick v Williams 1937 WLD 76 at 83.

In casu, even though the order directs that the debt be paid, it is issued, and operates, against the respondents in their nominal capacities. At the same time, and because of their official capacities, it imposes an obligation on them to take such steps as are necessary to enable the relevant departmental procedures to be implemented so that payment of the debt can be effected.

The obligation it imposes is not of a financial nature but one that requires them to carry out one or other function which forms an integral part of their official duties. In this respect, I consider that the Court's order of 28 July 2000 operates against the first and second respondents as an order ad factum praestandum.”

On this basis, counsel for the appellants submitted, that, on the authorities, the key determinant is not the act directed but the nature of the obligation to be enforced.

He submitted, that, the true nature of the Order by BHUNU J was one for the payment of a debt – albeit in kind - and that the fact that the court ordered the delivery of fuel does not convert the order from an order for payment of a debt into an order ad factum praestandum in the same way that an order for the payment of money by way of maintenance is not converted from an order ad factum praestandum to an order ad pecuniam solvendam by the fact that it is expressed in monetary terms.

He further submitted, that, just as a Maintenance Order requires the performance of an act in a specific way (and is therefore an order ad factum praestandum), so, the order by BHUNU J, required the payment of a debt in a specific manner (and was therefore an order ad pecuniam solvendam).

Counsel for the first respondent, on the other hand, contended, that, the order was clearly one ad factum praestandum since it directed the appellants to do something, namely, to deliver 47,500 litres of fuel.

The learned Judge in the court a quo decided the first issue on the basis that:

“As correctly acknowledged by both parties, this court's order, of 19 May 2009, was the type of order normally referred to as 'ad factum praestandum' (i.e. an order for specific performance or the performance of an act – namely, the delivery of 47,500 litres of fuel).”

I can find no such acknowledgement by the appellants on the record.

On the contrary, it is quite clear from the record that it was not common cause between the parties that the order was one ad factum praestandum.

In the supplementary heads of argument filed on behalf of the appellants in the High Court the following appears:

“It is submitted that the order sought to be enforced is not ad factum. The present case is very different from the one in Trevor Batezat case SC49-09 in that the appellant in that case was ordered to return an identified triaxle trailer Registration Number 490-816V…,.

In the case before this Honourable Court, the order arises out of a contractual arrangement of which the applicant cannot say he has no other remedy…, to cover his losses.”

In taking the parties to have agreed as to the nature of the order made by BHUNU J, the learned Judge misdirected himself.

Three factors persuade me to agree with counsel for the appellant's submissions:

(i) Firstly, the true nature of the order sought to be enforced is the repayment of a commercial debt.

In this connection: “I am disposed to take the word 'debt' in a wide and general sense as denoting whatever is due, debitum, from any obligation:” per KOTZE J in Leviton & Son v De Klerk's Trustee 1914 CPD 691: see C.J CLAASEN, Dictionary of Legal Words and Phrases.

The debt in question comprised of 40,000 litres of fuel as well as arrear rentals expressed in litres of fuel to the amount of 7,500 litres.

In terms of the contract between Surtee, on the one hand, and Across Enterprises and the remaining defendants, who were then its directors, on the other hand, Surtee, as I understand it, lent or made available to Across Enterprises 40,000 litres of fuel which would be utilised in the course of trading. At the end of the contract an equal quantity of fuel was to be returned to Surtee by Across Enterprises.

That much can be gathered from the judgment of the court a quo.

A copy of the contract does not form part of the record and no more is known of the facts forming the background of the events leading up to the grant of the order by BHUNU J despite the averment in paragraphs 3- 4 of the founding affidavit attested by Surtee that:

“3. I instituted legal proceedings in this Honourable Court on the 4th June 2008, under case number HC2926/08 against the 1st, 2nd, 3rd, 4th, and 5th Respondents claiming supply and delivery of forty-seven thousand five hundred (47,500) litres of fuel from the 1st, 2nd, 3rd, 4th, and 5th Respondents, jointly and severally, within 48hrs of service of the Court Order upon them.

4. I beg leave of this Honourable Court to incorporate herein by reference the averments as stated in Plaintiff's declaration filed of record and abide by the same.”

Needless to say, the record of those proceedings was not attached to the record of proceedings in this appeal, but, it was not disputed that the arrears of rent were to be paid in fuel or that the defendants were indebted to Surtee in the amount of 47,500 litres of fuel.

The purpose of the order by BHUNU J was therefore to secure payment of that debt.

(ii) Secondly, it would appear that prior to the grant of the order in question, no inquiry was conducted into the means of the appellants to comply with it.

The Deputy Sheriff's issuance of a nulla bona return would, without more, (for example, evidence that the fuel had been available but was spirited away before his arrival at the premises), appear to bear this out.

From a reading of the authorities on this subject, it appears, that, in each case where an order ad factum praestandum was granted, the Court was satisfied that the defendant was able to comply with it so that a refusal so to comply would be mala fides and therefore contemptuous of the court.

Thus, in Trevor Batezat's case, SC49-09, an order of committal to gaol was granted because there was clear evidence that the defendant was in possession of an identified tri-axle trailer and had given a number of excuses for failing to deliver it.

In Sabawu v Harare West Rural Council 1989 (1) ZLR 47 (HC) the defendant wilfully disobeyed an order to pull down certain buildings which he had unlawfully erected.

In view of the dire consequences attendant upon the failure to obey an order ad factum praestandum, namely, committal to gaol, it is my respectful view, that, before granting an order which is ad factum praestandum a court ought to satisfy itself as to the ability of the defendant to comply with the order otherwise it takes the risk of issuing a 'hollow and unenforceable' order.

There is also an obligation on the Court before whom an application for an order of committal for contempt of an order of court is made to examine the order sought to be enforced in order to ascertain its true nature and to determine in which of the two categories the order falls.

(iii) Thirdly, there were other remedies available to Surtee, for example, an alternative order for the value of the fuel. Such an order would have been enforceable in the usual manner, namely, by a warrant of execution over the appellants' property, and, if necessary, a warrant for civil imprisonment.

Orders ad factum praestandum are usually granted only where there is no other remedy available to the applicant, the rationale being, that, the successful party has other options to enforce an order ad pecuniam solvendam.

I therefore conclude, that, in its essential nature, the order by BHUNU J was one for the repayment of a debt, and, therefore, one ad pecuniam solvendam. The fact that the order was framed as it was did not convert that order to one ad factum praestandum.

In any event, the appellants, in my judgment, were wrongly found to be in contempt of that order.

While it is trite that disobedience by a litigant of an order ad factum praestandum is punishable by committal to goal, it is also true that the disobedience must be wilful and mala fide.

Punishment for contempt of such an order by committal to gaol is aimed at enforcing civil orders of court, and to bring to its logical conclusion an order given by a judge, which the court finds has been deliberately disobeyed.

The principal object of the proceeding is to compel, by means of personal attachment and committal to gaol, the performance of the Court's Order.

Thus, the Court has enforced, by committal for contempt, inter alia, orders to give up possession of and quit a farm; to pass transfer of a plot of ground; in the case of an executor, to file estate accounts; to frame an account showing profits of a partnership business; to give discovery: HERBSTEIN and VAN WINSEN, The Civil Practice of the Superior Courts in South Africa, 3ed…,.

Wilfulness and mala fides will normally be inferred upon proof that the order sought to be enforced was brought to the attention of the respondent and that he has either disobeyed the order or neglected to comply with it.

The onus then shifts to the respondent to rebut the inference on a balance of probabilities.

Proved inability to comply with the order of Court will afford protection against a committal for contempt: HERBSTEIN and VAN WINSEN, The Civil Practice of the Superior Courts in South Africa, 3ed…,.

Thus, in Haddow v Haddow 1974 (2) SA 181 (R), the Court did not grant an order of committal for contempt because the defendant's disobedience of its order was not shown to be mala fide: see also Clement v Clement 1961 (3) SA 861.

In the court a quo, the appellants expressed their inability to comply with the order by BHUNU J.

The company (Across Enterprises) had stopped operations and they were not able to comply with the order because they did not have the fuel.

Their failure to comply with the order was due to inability to do so, as appears from the nulla bona return made by the Deputy Sheriff, and not to wilfulness and mala fides on their part. They expressed their respect for the Court and averred that their failure to deliver the fuel did not constitute contempt of the court.

No evidence was placed before the court a quo to contradict the averments by the appellants that they were unable to comply with the order.

In my view, the appellants rebutted, on a balance of probabilities, the inference of wilfulness and mala fides.

The court a quo, therefore, erred in granting an order for committal to gaol in circumstances where the appellants proved, on a balance of probabilities, their inability to comply with the order and failure to comply therewith was not due to mala fides on their part.

The appeal is therefore allowed with costs.

The judgment of the court a quo is set aside and substituted as follows:

“The application is dismissed with costs.”

SC30-21 : GRAIN MARKETING BOARD vs ARENEL (PVT) LTD and GORDON GEDDES N.O.
Ruled By: GWAUNZA DCJ, MATHONSI JA and KUDYA AJA

This is an appeal against part of the judgment of the High Court (“the court a quo") which granted an application for the registration of an arbitral award.FACTUAL BACKGROUNDOn 11 November 2016, the appellant and the first respondent entered into an agreement in terms of which they agreed that the ...

This is an appeal against part of the judgment of the High Court (“the court a quo") which granted an application for the registration of an arbitral award.

FACTUAL BACKGROUND

On 11 November 2016, the appellant and the first respondent entered into an agreement in terms of which they agreed that the appellant would sell and supply to the first respondent 6,000 metric tonnes of biscuit making flour. The flour was to be sold at a price of USD$450 per metric tonne. The purchase price was payable within sixty days of the monthly statement for all flour delivered. In the event of a dispute arising between the parties, it was also agreed that such dispute would be resolved through arbitration and that the decision of the arbitrator would be final and binding on both parties.

Pursuant to the agreement, the appellant supplied the first respondent with 1,379 metric tonnes of flour as at 16 April 2019, leaving a balance of 4,620 metric tonnes. Thereafter, the parties signed an addendum to the agreement varying the price of the flour from USD$450 per metric tonne to RTGS1,135 per metric tonne.

Thereafter, the appellant only supplied 267 metric tonnes leaving a balance of 4,353 metric tonnes.

On 13 June 2019, the appellant wrote to the first respondent informing it that it could no longer continue to supply the flour in terms of the agreement due to "force majeure." It was averred, that, the Government of Zimbabwe, being the owner of the flour, had directed that all flour be supplied exclusively to bakers of bread.

Consequently, a dispute arose between the parties, and, in terms of clause 6 of the agreement, it was submitted to arbitration before the second respondent.

The first respondent prayed for an order of specific performance for the supply of the outstanding 4,353 metric tonnes at the agreed purchase price. The appellant persisted with its contention, that, it could not perform its obligation to supply the biscuit flour to the first respondent owing to the aforementioned Government directive which allegedly amounted to "force majeure".

The appellant further averred, that, it was however willing to supply the outstanding flour - but on different terms as regards quantities and pricing.

In its "supplementary statement of defence" the appellant sought to argue the defence of severability, more particularly, that, the purchase price had been eroded by inflation so as to render it unreasonable and unequitable thus the specific clause relating to the purchase price had to be severed from the rest of the contract.

The second respondent granted the first respondent's claim for specific performance.

Following that arbitral award, the appellant filed an application in the court a quo to set aside the arbitral award in terms of Article 34(2)(b)(ii) of the Model Law in the Arbitration Act [Chapter 7:15] (“the Model Law").

Simultaneously, the first respondent filed an application for the registration of the award in the same court in terms of Article 36 of the Model Law in the Arbitration Act.

The matters were consolidated by consent of the parties.

The court a quo noted, that, the appellant was challenging the registration of the award on the basis that it was not sounding in money and thus could not be registered because it was incomplete.

The court found, that, the ground was devoid of merit as Article 36 of the Model Law in the Arbitration Act does not list the fact that an award is not sounding in money as one of the grounds upon which a court may refuse to recognise and register an arbitral award.

In the result, the court granted the application for registration of the arbitral award. It dismissed the application for the setting aside of the same award.

Dissatisfied, the appellant filed the present appeal on the following ground:

“The court a quo erred and misdirected itself on the law by registering an arbitral award that was incomplete, and, in particular, it was not sounding in money and not enforceable."…,.

ISSUE

The crisp issue for determination is: whether or not the court a quo was wrong in granting the application for the registration of the arbitral award.

THE FACTS AND THE LAW

On appeal, it is the appellant's argument that the court a quo erred in finding that an arbitral award which does not sound in money could be registered. It is averred that such an order is unenforceable.

The case of Matthews v Craster International (Pvt) Ltd SC151-20 is pertinent in this regard.

In dealing with the issue whether or not the High Court was correct in declining to register an award made under the Model Law in the Arbitration Act, which did not sound in money, GOWORA JA had the following to say at p16 of the cyclostyled judgment:

“The same is not true of the Model Law. The law does not require that an award sound in money for purposes of recognition under Article 36. Sight must not be lost of the import of the Model Law and its application. Under Article 35, the law provides for the recognition of awards emanating from beyond our borders in addition to our own. It provides:

'ARTICLE 35 RECOGNITION AND ENFORCEMENT

(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.

(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.'

Suffice it to state, that, the matter proceeded to the High Court for the recognition of an award under Article 35 of the Model Law.

Refusal for the recognition of the award can only be premised on what the law permitting such recognition provides for.

The court a quo was wrong to find that an arbitral award under the Model Law must sound in money for purposes of recognition. The law does not require it.

In any event, awards under the Model Law arise under a myriad of agreements and may take the form of orders ad per cuniam solvendum or ad factum praestandum. For these reasons, the dismissal of the application, premised on a reading of section 98(14), is, in my view, a misdirection on the part of the court a quo”.…,.

In casu, it is common cause that the arbitral award sought to be registered is not an award made under the Labour Act [Chapter 28:01], rather, it is one made in terms of the Model Law in the Arbitration Act [Chapter 7:15].

It is now settled, that, an award under the Model Law which does not sound in money is capable of registration and enforcement.

As such, the appellant's argument to the contrary is without merit and must be dismissed.

HH707-15 : RICHARD MATTHEWS vs CRASTER INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

This was an application for the registration of an arbitral award. It was opposed.

Before the arbitrator, the within named applicant was the Claimant. The respondent herein was also the respondent therein.

The applicant was a former employee of the respondent.

The arbitration happened after the cessation of the employer-employee relationship. That cessation had been mutually and amicably agreed upon. Both parties were also agreed, in principle, that, the applicant was due a terminal package. However, they were not agreed as to the nature and quantum of that package.

It was for the determination of the appropriate terminal package that the matter was referred to arbitration.

The arbitrator was a retired judge of this court, Justice Smith. The operative part of his award read as follows:

“My award, therefore, is that the Respondent pays the Claimant -

(a) USD7,000 being his salary for August 2007;

(b) USD42,000 as a severance package;

(c) Cash-in-lieu of the leave he had acquired and not taken as at 4 September 2009 in line with the Respondent's leave policies.”

I have highlighted paragraph (c) of the award because argument for and against registration was partly centred on it.

The proceedings before me commenced by way of a chamber application. The heading to the application was:

“CHAMBER APPLICATION FOR REGISTRATION OF AN ARBITRAL AWARD IN TERMS OF SECTION 98(14) OF THE LABOUR ACT”

The highlighted portion was another source of argument.

The applicant vehemently sought to disown the reference to section 98(14) of the Labour Act, saying it was a mistake. He said his application had been made in terms of Article 35 of the Arbitration Act [Chapter 7:15], and not in terms of the Labour Act [Chapter 28:01].

On the other hand, the respondent sought to firmly bind the applicant to the letter of his heading.

It shall soon become apparent why the parties took such positions.

The opposition to the application was based on four grounds:

(i) The first was that paragraph (c) of the arbitral award did not sound in money. As such, it was unregistrable.

For support, the respondent cited the cases of Mandiringa & Ors v National Social Security & Ors 2005 (2) ZLR 329 (H) and Herbert Sauramba & Ors v Mitchells Bakery Mutare HH134-10.

(ii) The second ground of opposition was that the award had made no provision for Pay As You Earn tax (“PAYE”) in terms of the Income Tax Act [Chapter 23:06]. As such, the award was incomplete and therefore not registrable. Otherwise, to register it in that form, the court would be countenancing an illegality.

(iii) The third ground of opposition was that the applicant had failed to attach to his application for registration, a duly authenticated original of the arbitral award or a duly certified copy thereof. As such, he had breached the peremptory provisions of the Arbitration Act.

(iv) The fourth and last ground of opposition was that the respondent had earlier on obtained an arbitral award of its own against the applicant for an amount far in excess of what the applicant had been awarded in the arbitral award that he was seeking to register. As such, the principle of set-off had to be applied in order to do justice between man and man.

Otherwise, it would be inequitable that the applicant, who was owed much less by the respondent, should seek to recover from the respondent, which was owed much more by the applicant, when the two arbitral awards in question were intrinsically linked to each other, more particularly in that they had arisen out of the same set of facts and from the same relationship....,.

(b) Arbitral award not sounding in money

As I understand them, the ratio decidendi of Mandiringa & Ors v National Social Security & Ors 2005 (2) ZLR 329 (H) and Herbert Sauramba & Ors v Mitchells Bakery Mutare HH134-10 was that the purpose of registering an arbitral award, in terms of section 98(14) of the Labour Act, is so that it can be enforced; that, as such, for one to sue out a writ of execution to enforce an arbitral award, it must necessarily sound in money, and that an award that does not specify the sum due is incomplete and incapable of registration as an order of this court.

In my view, section 98(14) of the Labour Act and Article 35 of the Arbitration Act are in pari materia.

On the face of it, both provisions facilitate the registration of arbitral awards with the conventional courts for the purpose of enforcement.

In section 98(14) of the Labour Act, any party to whom an arbitral award relates may submit for registration to either the court of the magistrate, or the High Court, the copy of the arbitral award given to him in terms of sub-section (13).

The choice of court depends on the quantum of the award. Any award in excess of the monetary jurisdictional limit of the Magistrate's Court is to be submitted to this court.

In Article 35 of the Arbitration Act, an arbitral award, irrespective of the country in which it was made, is binding upon its registration with this court.

That the purpose for registering an arbitral award, in terms of section 98(14) of the Labour Act, is for enforcement is made clear by the next sub-section, namely, subsection (15).

It says, that, where an arbitral award has been registered, it shall have the effect “…, for purposes of enforcement…,” of a civil judgment of the appropriate court.

Similarly, with Article 35 of the Arbitration Act, that the purpose for registration is enforcement is self-evident from both the intrinsic provisions of the Article itself as well as the heading to it.

Sub-article 35(1) of the Arbitration Act says that the arbitral award, upon application to the High Court “…, shall be enforced…,” subject to the other provisions.

Sub-article 35(2) of the Arbitration Act also provides that the party applying for the “…, enforcement…,” of the award has to submit the original or certified copy.

The heading of the Article as a whole is “Recognition and enforcement.”

In casu, the applicant sought to wriggle out of the provisions of section 98(14) of the Labour Act, evidently to escape the conclusion in Mandiringa & Ors v National Social Security & Ors 2005 (2) ZLR 329 (H) and Herbert Sauramba & Ors v Mitchells Bakery Mutare HH134-10.

In my view, for the respondent to have insisted on binding the applicant to section 98(14) of the Labour Act, just because the heading to his application said so, was to insist on form prevailing over substance.

It was common cause, that, the reference of the dispute to arbitration had not been made in terms of the Labour Act. The arbitrator had not been appointed in terms of the Labour Act. The reference to arbitration, and the appointment of the arbitrator, had both been made in terms of the Arbitration Act.

For the above reason, I accept the applicant's submission that the applicant's reference to section 98(14) of the Labour Act in the heading to his founding papers was a mistake.

Furthermore, other than that the mistake may have deprived the respondent, on the face of it, the immediate opportunity to automatically rely on the case authorities aforesaid, and, other than that the mistake may have inconvenienced both the respondent and the court, I find no other discernible prejudice caused to the respondent.

Therefore, the applicant's mistake, in referring to section 98(14) of the Labour Act in its heading to its application, is excused.

The application to amend the heading by deleting the reference to section 98(14) of the Labour Act is hereby granted.

However, excusing the applicant for the mistake aforesaid does not altogether determine the point in issue.

If section 98(14) of the Labour Act and Article 35 of the Arbitration Act are in pari materia, as I believe they are, then, in my view, a legal finding on the one should be relevant to the other.

I find myself in agreement, with all due respect, with the views of MAKARAU J…, in Mandiringa & Ors v National Social Security & Ors 2005 (2) ZLR 329 (H) and CHIWESHE JP in Herbert Sauramba & Ors v Mitchells Bakery Mutare HH134-10.

In casu, paragraph (c) of the arbitral award was undoubtedly incomplete.

If an award is one that must sound in money and it is not, then, in my view, it is incapable of registration. It is incomplete.

In this case, if the parties went for arbitration to determine the nature and quantum of the terminal package due to the applicant, then, it is rather surprising that they came out of that arbitration with only two-thirds of the award having been quantified.

An order that an employer must pay his ex-employee cash-in-lieu of the leave due to him, and not taken for the period in question, is not complete.

Counsel for the applicant argued that it was complete because the leave days and their sum total were both capable of easy ascertainment.

But, that kind of approach is precisely what was rejected in the cases referred to above.

In particular, in Mandiringa & Ors v National Social Security & Ors 2005 (2) ZLR 329 (H), MAKARAU J said…,.:

“The awards did not compute the loss that each employer had to make good even if he chose to reinstate the respective applicant. It is conceded that while such computations are relatively easy by comparing what a similarly placed employee received in emoluments over the same period, the issue remains, that, the quantum thereof is not part of the award made and was not determined as part of the arbitration proceedings in the presence of both parties. It was not agreed upon in any one of the matters.”…,.

I agree with the learned judge's approach.

In casu, paragraph (c) of the arbitral award did not specify the period the leave was due to the applicant. It did not specify the number of those leave days. Naturally, it did not specify the quantum. It did not state what the respondent's leave policies were.

Before me, none of the parties said they were agreed on any of these items. Thus, the field for potential disagreement on them in the future was vast.

Counsel for the applicant argued, that, this did not render the award incapable of registration.

He conceded, that, it was not possible to sue out a writ of execution to enforce that part of the award if it remained in that form. However, he argued that the parties could always go back to the arbitrator for clarification if a dispute subsequently arose.

But, that precisely is the problem. The award was simply incomplete.

Counsel for the applicant's approach would entail the registration application being made and being heard twice. In my view, there was no conceivable basis for overburdening this court like that. The applicant simply had to submit for registration an award that was complete.

Therefore, I hold that paragraph (c) of the arbitral award by Retired Justice Smith, on 28 June 2012, was incapable of registration as an order of this court because it was incomplete, more particularly, in that it did not sound in money....,.

In this matter, paragraph (c) of the arbitral award by Retired Justice Smith, dated 28 June 2012, relating to the payment of cash-in-lieu of leave, is not capable of registration as an order of this court as it is incomplete, more particularly, in that it does not sound in money, the amount due not having been specified.

SC03-24 : MINISTER OF LANDS, AGRICULTURE, FISHERIES, WATER AND RURAL DEVELOPMENT and REGISTRAR OF DEEDS vs ALISTAIR FLETCHER and ROBERT NJANJI
Ruled By: GWAUNZA DCJ, MAVANGIRA JA and CHIWESHE JA

This is an appeal against the decision of the High Court ('the court a quo') which ordered the second appellant to cancel caveat 844/2000; ZN caveat 26/2017 and caveat 77/2019 endorsed on Deed of Transfer 3188/83.

After considering the evidence and the submissions made by counsel, the court issued an order in the following terms:

“1. The appeal be and is hereby allowed with costs.

2. The judgment of the court a quo be and is hereby set aside and substituted with the following:

'(i) The preliminary point on jurisdiction be and is hereby upheld with costs.

(ii) The court declines jurisdiction to hear this matter.'”

A request has been made for the court's reasons for the quoted order. The reasons follow hereunder.

BACKGROUND FACTS

The first respondent is the occupier of a certain immovable property being Umguza Agricultural Lots of Umvutcha and Reigate registered under title deed 3188/83. On 25 August 2000, the land was listed in the Gazette Extraordinary under General Notice 405 of 2000. Pursuant to the gazetting of the land, the first appellant caused caveats 844/2000 and 77/2019 to be endorsed on the deed of transfer.

Caveat XN 26/2017 was further endorsed on the title deed at the instance of the second appellant.

On 15 January 2009, the first respondent approached the High Court under HC2291/08. The court granted an Order declaring that his land was not subject to any act of acquisition or resettlement by the first appellant or any other person or persons acting under the instructions of the first appellant.

It also ordered, that, the portion of the land held under the deed of transfer 740/95, in the name of Paul Medley, and occupied by virtue of an agreement of lease by the second applicant therein, one Troy Robert Maidwell (who is not a party in this matter), was not subject to any act of acquisition or resettlement by the first appellant or “by any person or persons acting under the instructions of authority” (sic) of the first respondent.

The High Court also declared, that, the appellant was, in respect of the land referred to in paragraphs 4 and 5 above “estopped from doing or carrying out any act connected with the subdivision or acquisition of the said land.”

The first appellant was also ordered to immediately desist from any further act of demarcation of the said portions of land.

On 1 December 2022, the first respondent approached the court a quo with an application for the upliftment of caveats 844/2000, XN 26/2017 and 77/2019 placed on his title deeds by the second appellant under the instructions of the first appellant and also of the second respondent.

In his founding affidavit, the first respondent averred, that, the caveats were unwarranted as they had no lawful basis. He stated that the second appellant maliciously, and unlawfully, caused a caveat to be placed on his property.

Pursuant to the placing of the said caveat 77/2019, the first appellant had been sending people to view and survey his property.

The first respondent averred, that, the unwarranted caveats were interfering with his “constitutional right of enjoying my (“his”) property rights.”

Further, that the first appellant had no legal standing to justify the caveats as they had been nullified by the court order under HC2291/08.

The first respondent also contended, that, if not lifted, the caveats would greatly prejudice him as he would not be able to transfer title without the approval of the caveator in circumstances where there was in existence an order that estopped the first appellant, or any other person acting on the first appellant's instructions, from interfering with the land held under the Deed of Transfer 3188/83.

The first appellant raised a preliminary objection to the effect, that, the court a quo lacked jurisdiction to deal with the matter.

He averred, that, section 2(3) of the Constitutional Amendment (No.17) Act of 2005 prohibited any person having interest in the land from applying to a court to challenge any of its acquisition. He contended, that, this approach was “confirmed in sections 72(3) and (4) of the Constitutional Amendment (No.20) Act 2021.”

He also averred, that, Schedule 7 was inserted into the former (1980) Constitution by section 16B of Constitutional Amendment (No.17) Act of 2005.

On the merits, the first appellant averred, that, the judgment which the first respondent alleged to have cancelled or nullified the caveats did not mention the caveats on the land or their fate.

He also averred, that, the first respondent no longer had real ownership rights over the farm because the farm now formed part of State agricultural land under Schedule 7 of the Constitution, which the court had no jurisdiction to preside over.

The second respondent appeared in court and submitted, that, Caveat XN 26/2017 was endorsed on the Deed of Transfer 3188/83 in error. He conceded that it had to be cancelled. His being cited in this appeal would be because he was a party in the proceedings a quo. However, he has not participated in this appeal.

FINDINGS BY THE COURT A QUO

In determining the preliminary objection on jurisdiction raised by the appellants, the court a quo found, that, the jurisdiction of the courts of law has been ousted from any case in which a challenge to the acquisition of agricultural land secured in terms of section 16B(2)(a) of the former Constitution of Zimbabwe 1980 is raised.

The court, however, went on to note that the matter before it was not a challenge to the acquisition of agricultural land as envisaged in the Mike Campbell (Pvt) Ltd & Ors v Minister of National Security Responsible for Land, Land Reform and Resettlement & Anor SC49-07 case.

It found, that, the case before it was about the cancellation of caveats endorsed on the Deed of Transfer of the first respondent's property.

The court further noted, that, the law does not take away the right of a litigant in the position of the first respondent to seek a remedy against what it considers an unlawful endorsing of caveats on his property.

The court further found, that, the first respondent was not challenging the acquisition but was challenging the placing of caveats on his property. The contention that the cancellation of the caveats would have the effect of reversing the acquisition of the first respondent's land was found to be not persuasive.

The court thus found the preliminary objection on jurisdiction raised by the first appellant to be without merit.

On the merits of the application, the court a quo found, that, the appellants did not challenge the existence of the court order in HC2291/08. It found, that, the argument by the first appellant, that, the order in HC2291/08, per NDOU J, was a brutum fulmen was not persuasive as our jurisprudence does not permit a litigant to choose to ignore a court order on the basis that it is a brutum fulmen.

It also noted, that, the whole argument advanced by the appellants was that the order in HC2291/08 was wrongly made.

With regard to this argument, the court a quo found, that, it was not up to it to vary or alter or declare invalid an order of a judge of parallel jurisdiction as it had no such competence.

The court a quo also found, that, the order of the High Court was still extant and that it was therefore binding unless overturned on appeal or through rescission proceedings. The court opined, that, it could not simply ignore the said order of the High Court.

It thus found, that, the existence of caveats 844/2000 and 77/2019 was not supported by law.

This was so as the order of the High Court in HC2291/08 declared that land held under Deed of Transfer 3188/83 was not subject to any act of acquisition or resettlement. The court thus ruled, that, the first appellant had no caveatable interest over the property.

In the result, the second appellant was ordered to cancel the Caveats 844/2000, ZN Caveat 26/2017 and Caveat 77/2019 endorsed on the first respondent's title deed.

Aggrieved by the decision of the court a quo, the appellants have approached this court on the following grounds of appeal:

1. The court a quo erred and grossly misdirected itself on a point of law by dismissing the appellant's preliminary point, that, this Court had no jurisdiction to adjudicate this matter at all as the farm was listed under Schedule 7 of the Constitution hence its title vests in the State.

2. The court a quo misdirected itself by cancelling the caveats which had been endorsed on the first respondent's title deed no. 3188/83 under caveats 844/2000, ZN caveat 26/2017 and caveat 99/2019. The effect of the cancellation would have reversed the acquisition of the appellant's land from the State which cannot be done by a court of law....,.

THE APPELLANTS SUBMISSIONS ON THE MERITS

Counsel for the appellants argued, that, the court a quo had no jurisdiction to deal with the application for the upliftment of the caveats. He argued, that, in terms of section 16B of the former Constitution of Zimbabwe, all land that was gazetted and itemized in Schedule 7 of the Constitution, was considered as State land.

Counsel further argued, that, the land in question was gazetted in 2000 and again in 2008 and was then listed under Schedule 7 of the Constitution.

He submitted, that, any challenge to the gazetting of the land had to be done by way of amendment of the Constitution. Further, that the court a quo erred in removing the caveats as the effect of such act was to reverse the acquisition of the land.

Counsel argued, that, the gazetting of the land, when it was done, was not challenged and neither was the acquisition. He argued that Commercial Farmers Union v The Minister of Agriculture, Land and Rural Resettlement and Others 2010 (2) ZLR 576 overrides all and any orders to the contrary, and, as such, the order of the High Court, per NDOU J, in HC2291/08, on which the first respondent based its claim to the land, had been overtaken by events.

Counsel argued, that, the judgment of NDOU J had therefore become a brutum fulmen.

THE FIRST RESPONDENT'S SUBMISSIONS

Counsel for the first respondent argued, that, section 16B of the Constitution dealt with land acquired for agricultural purposes only. Counsel conceded, that, there could be no challenge to agricultural land acquired by the State as per the decision in Commercial Farmers Union v The Minister of Agriculture, Land and Rural Resettlement and Others 2010 (2) ZLR 576.

He however argued, that, where the land in dispute was not agricultural land, then, such acquisition could be challenged.

Counsel further argued, that, the land in dispute had already been proclaimed, under S.I. 212 of 1992, as land within the boundaries of the City of Bulawayo, and that, such land formed part of Bulawayo City Council land and could not be regarded as agricultural land.

He maintained that the acquisition was done in error.

ISSUE FOR DETERMINATION

One issue arises for determination from the two grounds of appeal and the submissions made by counsel before this Court. The issue is: Whether or not the court a quo had jurisdiction to deal with the matter.

ANALYSIS

The appellants bone of contention, as discernible from their grounds of appeal, and from the submissions made before the Court, is that the court a quo grossly misdirected itself on a point of law by dismissing the appellant's preliminary point. The said preliminary point was to the effect, that, the court a quo had no jurisdiction to adjudicate the matter at all as the farm was listed under Schedule 7 of the Constitution and the title thereto thus vested in the State.

In finding that it had jurisdiction to deal with the matter, the court a quo found that the matter before it was not one of acquisition of land, but, of the cancellation of caveats that had been registered against the property in issue by the first appellant.

The court also took into account the judgment handed down by the High Court in HC2291/08, per NDOU J, which it considered to be extant.

However, the appellants view was that after the appellant's land had been gazetted it automatically became State land by operation of the law and that the judgment by NDOU J had been rendered a brutum fulmen.

The appellants also contended, that, by virtue of section 16B of the former Constitution, the jurisdiction of the courts, in respect of disputes arising out of acquisition of land, was ousted and that the court a quo therefore lacked the requisite jurisdiction to deal with the application for the upliftment of the caveats.

In his opposing papers in the court a quo, the first appellant (as first respondent) stated as follows:

“…,. (T) His Honourable Court has no jurisdiction to adjudicate this matter…,. The section 16B of Constitutional Amendment (No.17) Act of 2005 inserts Schedule 7 into the 1980 Constitution of Zimbabwe to the effect, that, all the farms listed on General Notices published in the Gazette or Gazette Extraordinary prior to the 8th of July 2005 were acquired and vested in the State.

Section 2(3) of the Amendment prohibited any person having interest in the land from applying to a court to challenge any of the acquisition. This approach is confirmed in sections 72(3) and 72(4) of the Constitution Amendment (No.20) Act 2021.

Further reference is made to the cases of Mike Campbell (Pvt) Ltd & Ors v Minister of National Security Responsible for Land, Land Reform and Resettlement & Anor 2008 (1) ZLR 17 (S) p43F-G to 44A and Naval Phase Farming (Pvt) Ltd and Ors v Minister of Lands and Rural Resettlement and Anor SC50-18 wherein both courts confirm and reiterate that section 16B of the former Constitution effectively ousts the power of courts to adjudicate issues relating to acquired State land under Schedule 7.”

He further averred that:

“In the present case, the Applicant's former properties, under title deed 3188/83, were acquired and listed in the Gazette Extraordinary on 25 August 2000…, which is a copy of the Gazette Extraordinary under general notice (sic) 405 of 2000. The General Notice referred (to) falls under Schedule 7 of the Constitution.”

The first respondent's contention, as articulated in its answering affidavit, was that:

“The provisions of sections 72(3) and subsection 4 of the same section of the Constitution Amendment (No.20) Act 2021 are not denied. I, however, am not challenging the acquisition of my land, for, it was, in the first place, not subject to any act of acquisition or resettlement.

Subsections (3) and (4) of section 72 of the Constitution do not affect my application.

This is so as the court order granted in 2009 clearly states that the land held under title deeds (sic) 3188/83, deeds of transfer registered in my name, are not subject to any act of acquisition or resettlement.

I am neither seeking compensation as it is one of the actions prohibited by the sections cited by the first Respondent. In the present case, the properties held under title deed 3188/83 are still mine. The court order stopped any acts connected with the acquisition of my land. My right to claim any action over property under title deed 3188/83 hasn't been taken over by any operation of law.”

The High Court order, in HC2291/08, was handed down on 15 January 2009. This is a date that followed after the dates of the gazetting of the first respondent's land in 2000 and also in 2008.

The listings of the first respondent's land in the gazettes indicated, that, the land had been acquired by the State. After having been acquired by the State, the first respondent ceased to be the lawful owner of the land, and, any dispute arising over the acquisition of the land was to be settled through the provisions of section 16B of the former Constitution.

This Court, in Campbell & Anor v The Minister of National Security Responsible for Land Reform and Resettlement & Anor SC49-07…, had an opportunity to interpret the import of section 16B of the Constitution of Zimbabwe, Amendment (No.17) 2005 as follows:

“By the clear and unambiguous language of section 16B(3) of the Constitution, the Legislature, in proper exercise of its powers, has ousted the jurisdiction of courts of law from any of the cases in which a challenge to the acquisition of agricultural land, secured in terms of section 16B(2)(a) of the Constitution, could have been sought.

The right to protection of law for the enforcement of the right to fair compensation, in case of breach by the acquiring authority of the obligation to pay compensation, has not been taken away.

The ouster provision is limited, in effect, to providing protection from judicial process to the acquisition of agricultural land identified in a notice published in the Gazette in terms of section 16B(2)(a).

An acquisition of the land referred to in section 16B(2)(a) would be a lawful acquisition.

By a fundamental law, the Legislature has unquestionably said that such an acquisition shall not be challenged in any court of law. There cannot be any clearer language by which the jurisdiction of the courts is excluded.”…,.

The sentiments expressed in Mike Campbell (Pvt) Ltd & Ors v Minister of National Security Responsible for Land, Land Reform and Resettlement & Anor 2008 (1) ZLR 17 (S) were equally applied in the case of Commercial Farmers Union v The Minister of Agriculture, Land and Rural Resettlement and Others 2010 (2) ZLR 576 wherein this Court interpreted section 16B(3) of the Constitution as ousting the jurisdiction of the courts to enquire into the legality or otherwise of the acquisition of land in terms of section 16B(2)(a) of the Constitution.

Section 16B of the former Constitution inserted Schedule 7 into the 1980 Constitution to the effect, that, all of the farms listed on General Notices published in the Gazette prior to 8 July 2005 were acquired and vested in the State.

The first respondent's farm was acquired by the State as listed in the Gazette Extraordinary on 25 August 2000. It was also listed in the gazette for the second time in 2008.

It naturally followed, that, the first respondent had no legal cause or justification to be aggrieved by the caveats placed over land which had been acquired by the State. He had no legal cause to justify any approach to the courts for the redress of the nature that he sought before the court a quo. The caveats registered against the title deeds are caveats that relate to the State's land and not the appellant's land.

The first respondent's right to lay any claim over the property, or to have the caveats registered over the title deed of the property cancelled, was overtaken and extinguished by the law once the land was gazetted.

Conversely, the court had no jurisdiction to entertain the first respondent's application.

After section 16B of the former Constitution had been interpreted by the Court in Commercial Farmers Union v The Minister of Agriculture, Land and Rural Resettlement and Others 2010 (2) ZLR 576, the judgment of NDOU J was effectively rendered a brutum fulmen, hence, the first respondent could not have relied on it as an extant judgment defining his rights over the land.

In any event, the judgment by NDOU J was handed down in January 2009 when the court had ceased to have jurisdiction, as clearly enunciated in Mike Campbell (Pvt) Ltd & Ors v Minister of National Security Responsible for Land, Land Reform and Resettlement & Anor 2008 (1) ZLR 17 (S)....,.

That order is brutum fulmen. It is incapable of being implemented....,.

The judgment of the High Court in HC2291/08 fell away once section 16B(5) of the former Constitution was enacted...,.

The court a quo's view that the judgment or order in HC2291/08 was still in existence was, thus, also erroneous.

SC37-23 : CFI HOLDINGS t/a FARM & CITY vs ANDREW MACHAYA
Ruled By: GUVAVA JA, CHATUKUTA JA and MWAYERA JA

This is an appeal against the whole judgment of the High Court (court a quo) in which the court granted an application for the registration of the judgment of the Labour Court amounting to US$177,408 in favour of the respondent.FACTUAL BACKGROUNDThe labour dispute between the appellant and the respondent has ...

FACTUAL BACKGROUND

The labour dispute between the appellant and the respondent has been raging on for the past twenty-three years, dating back to 2000. The respondent was employed by the appellant as a Personnel Manager. Sometime in 2003, the appellant suspended the respondent on allegations of misconduct. The respondent challenged the suspension, resulting in a judgment by this Court, in 2012, in which the suspension was declared a nullity.

Following the nullification of the suspension, the appellant opted to retire the respondent in 2012.

The appellant paid the respondent his salaries and benefits for the period from January 2009 up to 2012 in United States dollars.

The payment for that period did not raise any dispute between the parties as the country had dollarized.

A dispute, however, arose as to the payment of salaries and benefits for the period extending from 1 April 2003 to 31 December 2008 which were denominated in Zimbabwean dollars.

The respondent filed an application in the Labour Court for the quantification of the outstanding salaries and benefits for the period 1 April 2003 to 31 December 2008 in United States Dollars.

The total amount he sought was US$1,001,381=14.

The Labour Court held, that, the respondent was not entitled to payment of benefits. It awarded him an amount of US$177,408 being arrear salaries and cash in lieu of leave with interest on the total sum payable at the prescribed rate.

PROCEEDINGS BEFORE COURT A QUO

The respondent filed an application in the court a quo for the registration of the Labour Court judgment in terms of section 92B(3) of the Labour Act [Chapter 28:01]. The respondent submitted, in the court a quo, that, the Labour Court judgment was sounding in money and could therefore be registered.

The appellant opposed the application.

It argued, that, the judgment of the Labour Court was unenforceable as it was denominated in United States dollars, which currency had ceased to be lawful currency. It submitted, that, the Labour Court erred in ordering payment in United States dollars for a debt that was incurred prior to 22 February 2019.

It was further argued, that, the judgment was therefore contra bonos mores and not registrable.

It was also argued, that, an application for leave to appeal was pending in the Labour Court under case number LC/H APP/293/2020, and, the court a quo should defer determining the application pending determination of the appeal.

In response, the respondent argued, that, the appellant was not being denied the right to pay in local currency using the Reserve Bank of Zimbabwe auction rate. He denied there being a pending application for leave to appeal. He also argued, that, the existence of an application for leave to appeal was not a valid reason for refusing to register a judgment.

DETERMINATION BY THE COURT A QUO

The court a quo found, that, the respondent had managed to satisfy the requirements for registration of the judgment of the Labour Court. It further found, that, the issue of currency of the judgment is a question of law which could only be entertained by the Supreme Court, on appeal, in terms of section 92F of the Labour Court Act. It held, that, registration of the judgment was not contrary to public policy.

The court a quo further held, that, the appellant could not seek to rely on an intended appeal as a ground for opposing the registration of the judgment, and that, in any event, the noting of an appeal does not suspend the decision appealed, and, consequently, the registration as well.

The court a quo proceeded to grant the application for the registration of the Labour Court judgment.

Aggrieved by the court a quo's decision, the appellant noted the present appeal on the following grounds:

GROUNDS OF APPEAL

“1. The court a quo erred and misdirected itself in relying on an authority neither argued nor brought to the attention of the parties.

2. The court a quo further erred and misdirected itself in failing to exercise judicial function to determine an application before it contra the specific provision of section 92B(3) of the Labour Act.

3. The court a quo further erred in failing to distinguish between and conflating the determination of the executability of a judgment with an appeal addressing the correctness of a judgment.

4. The court further erred and misdirected itself in registering and ordering the enforcement of judgment whose enforcement is proscribed and contra statutory authority per section 22 of Finance Act and section 2 of S.I. 142/19, section 4(1)(d) of SI 33/19 and section 12A(1), 92B(3) and section 94 of the Labour Act.”

SUBMISSIONS BY THE APPELLANT

Counsel for the appellant submitted, that, to order execution on an unlawful currency is contrary to the law. He argued, that, the order issued by the court a quo was not sounding in money as it was denominated in United States dollars which, at the time, was not legal tender. He further argued, that, the court a quo could therefore not register a judgment which ordered payment of arrear salaries in illegal tender.

Counsel for the appellant argued, that, the court a quo failed to exercise its judicial function when it held, that, the matter raised a point of law which could only be determined by the Supreme Court. He submitted, that, the court a quo ought to have determined whether or not the amount in issue was legal tender rather than avoid the issue.

SUBMISSIONS BY THE RESPONDENT

Counsel for the respondent submitted, that, the court a quo was not required to go into the merits of the case as doing so would be usurping the powers of the Labour Court. He submitted, that, the court a quo did not misdirect itself in failing to deal with the issues raised by the appellant. He further submitted, that, the court a quo cannot amend the Labour Court's judgment.

Counsel submitted, that, the judgment was sounding in money thereby satisfying the requirements for registration.

He argued, that, the issue that the judgment was not sounding in money was never raised in the court a quo and could not therefore be raised for the first time before this Court.

He further submitted, that, if the Labour Court's judgment was unlawful, as alleged, the appellant ought to appeal against that decision.

ISSUES FOR DETERMINATION

Two issues fall for determination:

(i) Firstly, whether the Labour Court judgment was registrable; and

(ii) Secondly, whether the court a quo ought to have entertained the question of law raised by the appellant, that, the judgment was denominated in an illegal currency.

THE LAW AND ANALYSIS

The requirements to be satisfied in an application for the registration of an award were listed in Biltrans (Pvt) Ltd v Minister of Public Service, Labour and Social Welfare & Ors 2016 (2) ZLR 306. MALABA DCJ…, citing with approval the remarks by CHIWESHE JP…, in Olympio & Ors v Shomet Industrial Development HH191-12, remarked…, as follows:

“In registering an arbitral award, the High Court and the Magistrates Court are not carrying out a mere clerical function.

While the registering Court may not go into the merits of the award, since its duty is to provide an enforcement mechanism and not to usurp the powers of the Labour Court, it must be satisfied, before registering an award, that all the necessary formalities have been complied with.

In Olympio & Ors v Shomet Industrial Development HH191-12, CHIWESHE JP at 1 and 2 of the cyclostyled judgment, outlining the requirements for registering an arbitral award, stated:

'The purpose of registration is merely to facilitate the enforcement of such an order through the mechanism availed to the High Court or the Magistrate Court, namely, the office of the Deputy Sheriff or the Messenger of Court, respectively….,.

In an application such as the present one, this Court is not required to look at the merits of the award - all that is required of this Court is that it must satisfy itself that the award was granted by a competent arbitrator, that the award sounds in money, that the award is still extant and has not been set aside on review or appeal, and that the litigants are the parties, the subject of the arbitral award. There must also be furnished, a certificate given under the hand of arbitrator….,.'

The requirements that must be satisfied before the High Court or the Magistrates Court grants an application for registration of an award are:

(a) The award must have been granted by a competent arbitrator.

(b) The award must sound in money.

(c) The award is still extant and has not been set aside on review or appeal.

(d) The litigants are the parties to the award.

(e) The award must be certified as an award of the arbitrator.”...,.

As correctly noted by the court a quo, whilst both cases related to the registration of arbitral awards, they apply with equal force to the registration of Labour Court judgments.

In casu, the appellant did not dispute that requirements (a), (c), (d), and (e) were satisfied. It, however, argued, that, the judgment was not sounding in money as it was not denominated in legal tender. It further argued, that, the judgment was not, as a result, executable and hence could not be registered.

As correctly submitted by the respondent, the question whether the judgment was sounding in money was not raised in the court a quo.

The court a quo cannot, therefore, be faulted for failing to determine an issue that was not raised before it. Had it done so, the court would have gone on a frolic of its own: see Nzara v Kashumba SC18-18.

In any event, the mere fact that the appellant is of the view that the judgment is denominated in illegal tender does not mean that the judgment is not sounding in money.

In Shaun Evans & Another v Yakub Surtee & 3 Others SC04-12 two categories of judgments were identified. It was held that:

“Orders of court are, generally speaking, divided into two categories: orders to pay a sum of money, namely, orders ad pecuniam solvendam; and orders to do, or abstain from doing, a particular act, or to deliver a thing, namely, orders ad factum praestandum.”

The court, in that case, addressed the meaning of a judgment sounding in money, which it described as ad pecuniam solvendum. A judgment sounding in money, therefore, simply means, a judgment that requires the judgment debtor to pay an identified sum of money.

HERBSTEIN and Van WINSEN, The Civil Practice of the High Courts of South Africa, 5th ed, Volume 2…, also state, that, ad pecuniam solvendam is when the court has ordered the judgment debtor to pay a sum of money.

In terms of the Labour Court judgment, the appellant is required to pay to the respondent a sum of US$177,408. The amount payable having been specified, the judgment is sounding in money.

The court a quo, therefore, correctly relied on Vasco Olympio & Ors v Shomet Industrial Development HH191-12 and Biltrans (Pvt) Ltd v Minister of Public Service, Labour and Social Welfare & Ors 2016 (2) ZLR 306 when it held, that, all the five requirements were met and the Labour Court judgment was registrable.

SC93-23 : AUGUR INVESTMENTS and DOOREST PROPERTIES vs FAIRCLOT INVESTMENT and THE SHERIFF and THE REGISTRAR OF DEEDS
Ruled By: BHUNU JA, CHIWESHE JA and MWAYERA JA

We agree that the Sheriff, when in doubt, should seek directions from the court.

SC93-23 : AUGUR INVESTMENTS and DOOREST PROPERTIES vs FAIRCLOT INVESTMENT and THE SHERIFF and THE REGISTRAR OF DEEDS
Ruled By: BHUNU JA, CHIWESHE JA and MWAYERA JA

This is an appeal against the whole judgment of the High Court (the court a quo) sitting at Harare, handed down on 9 May 2023, dismissing the first appellant's application for a declaration under case HC5989/19 and granting the first respondent's application to set aside the second respondent's decision to uplift judicial attachment on Stand 654 Pomona Township, under case HC10315/19.

Aggrieved by the decision of the court a quo, the appellants have noted the present appeal.

The Facts

The first respondent obtained an arbitral award against the first appellant in the sum of US$4,800,000 excluding interest. The award was granted on 19 March 2015.

The first appellant appealed the arbitral award, which appeal was dismissed on 11 February 2019.

The award was ultimately registered as an order of the court a quo on 26 June 2019.

A writ of execution was issued by the first respondent leading to the attachment of Stand No.654 Pomona Township held under Deed of Grant No.2884/10 (“the property”).

Thereafter, the first appellant paid the sum of RTGS $4,800,000 as the judgment debt and RTGS $1,078,040=21 as interest thereon.

Following these payments, the second respondent advised the judgment creditors (ie the first respondent) that the debt had been discharged and he was thus proceeding to remove the property from judicial attachment.

He did so through letters to the first respondent dated 21 and 25 November 2019, respectively.

The first respondent protested this move, arguing that the property should not be removed from attachment as the judgment debt had not been extinguished because the amount should be paid at the prevailing inter-bank rate between the US$ and the RTGS, and not at the rate of 1US$ to 1RTGS$.

The second respondent did not heed that advice.

It was then that the first respondent approached the court a quo, under HC10315/19, for an order setting aside the second respondent's decision to remove the property from attachment. It also sought consequential relief.

At the close of submissions, the court a quo found in favour of the first respondent who had sued, under HC10315/19, for the setting aside of the second respondent's decision to remove the property from attachment.

Under HC5989/19 the court a quo dismissed the first appellant's application for a declaration that the judgment debt be extinguished at the rate of 1:1 between the US$ and the RTGS$.

For convenience, the two applications were heard together.

The appellants appeal the decisions of the court a quo on the following grounds:

“GROUNDS OF APPEAL

1. The court a quo erred in failing to hold that the Arbitral Award dated 19 August 2015, granted in favour of the first respondent, constituted a liability affected by the provisions of section 4(1)(d) of Statutory Instrument 33 of 2019 (subsequently section 22 of the Finance Act No.2 of 2019).

2. Concomitantly, the court a quo also erred in determining that the Arbitral Award issued on the 19th of March 2015 only became effectual upon its registration on the 26th of June 2019. At law, an arbitral award constitutes a binding obligation as at the date of its grant and not its registration.

3. With respect, the court a quo also grossly misdirected itself in holding that the first appellant's RTGS payments did not fully discharge its indebtedness to the first respondent in respect of the registered arbitral award dated 19th March 2015. Such payments fully discharged what was lawfully due.

4. The court a quo also erred in determining that the second respondent had acted unlawfully in uplifting the judicial attachment on Stand 654 Pomona held under Deed of Grant 2884/10. The voiding of such uplifting was anomalous at law given that the first appellant had discharged its indebtedness, thereby obviating the continuation of execution.

5. Additionally, the court a quo erred in cancelling 'any and all' transfers effected on Stand 654 Pomona Township in circumstances where the second appellant had received title by operation of an extant Deed of Settlement and court order handed down by the court a quo under HC4528/19.

6. The court a quo also erred in ordering the advertisement and sale in execution of Stand 652 Pomona Township held under Deed of Grant No.2884/10 after the cancellation of all subsequent transfers. Such determination is anomalous, in that, after the aforesaid cancellation of subsequent transfers, the land reverts to being State land, incapable of being sold in execution.”

The appellants seek the following relief:

“1. That, the instant appeal succeeds with costs.

2. That, the order of the court a quo be set aside and be substituted with:

Case No. HC5989/19

(i) The application for a declaration order be and is hereby granted.

(ii) The liability arising from the Arbitral Award dated 19th March 2015, in favour of the first respondent, be and is hereby declared executable in RTGS dollars at the rate of one to one to the United States dollars in accordance with section 4(1)(d) of Statutory Instrument 22 of 2019.

(iii) The first respondent to pay costs of suit.

Case No. HC10315/19

(i) The application is dismissed with costs.”

The grounds of appeal raise only one issue, that is, whether the arbitral award in issue, is subject to the provisions of SI 33 of 2019 in terms of which all assets and obligations denominated in United States dollars immediately before the effective date of 22 February 2019 shall be redeemed at the rate of 1US$ to 1RTGS$.

If that question is answered in the affirmative, then, the appeal should succeed. If not, then, the appeal stands to be dismissed....,.

APPELLANTS SUBMISSIONS IN THIS COURT

It is now trite, that, all assets and liabilities that were denominated in United States dollars immediately before 22 February 2019, must, on or after that date, be valued in RTGS dollars on a one is to one rate. This is the effect of section 4(1)(d) of SI 33 of 2019, and, subsequently, section 22 of the Finance Act No.2 of 2019.

This position was confirmed by MALABA CJ in the seminal case of Zambezi Gas Zimbabwe P/L v N.R. Barber P/L and Anor SC03-20.

The appellants submit, that, the court a quo erred in interpreting the above provisions in that it treated a judgment debt as if it was separate from the definition of “debt”.

It also erred in taking the date of registration of the arbitral award as if it was the date on which the debt came into existence. It failed to appreciate, that, prior to the registration of the award, a debt already existed, as confirmed by the arbitration award of 2015, paving the way for enforcement. This debt arose before 22 February 2019, the effective date under S.I.33 of 2019.

The court a quo also erred in treating an arbitration award as of no force or effect as long as it was not registered. It misunderstood the existence of an award embodying a debt and its enforcement.

The appellants further submitted, that, the law is clear that the registration of an award in the court a quo is purely for purposes of execution through the Sheriff. To that end, the registration of an award, as an order of the court a quo, does not create a new debt nor does it, at law, change the status of the debt.

The appellant relied in this regard on the words of BHUNU JA in the case of Gwanda Rural District Council v Botha SC174-20 wherein he had this to say:

“Before delving into the merits or otherwise of the grounds of appeal, l pause to observe that when presiding over the registration of an arbitral award, the court a quo 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.”

Accordingly, argue the appellants, the High Court does not enquire into anything when registering an award. It is merely permitting the applicant access to its enforcement mechanism.

The court a quo was thus in error when it held, that, an arbitral award, dated 19 March 2015, only became effective when it was registered by the court a quo on 26 June 2019 - well after the effective date fixed under Statutory Instrument 33 of 2019.

The appellants reiterate that such registration by the court a quo was for purposes of execution only.

It was because of that error that the court a quo determined, that, the arbitral award was not affected by the provisions of section 4(1)(d) of SI 33/2019, a finding contrary to law.

The appellants further relied on the case of Air Zimbabwe Holdings v Chiweshe and Others 2019 (1) ZLR 311 (S) where GOWORA JA had this to say by way of dicta:

“Once rendered, an arbitral award is binding upon everyone to whom it pertains until set aside.”

In other words, the first appellant's liability to pay arose on the date of issue of the award, that is, on the 19th March 2015 and not on the date of registration in the court a quo.

Reliance was placed on the case of Dudka & Ors v Cheni Investments (Pvt) Ltd 2011 (1) ZLR I where MAKONI J…, remarked that:

“An award takes effect upon its grant. Its execution has no effect on whether it is binding or not. A party can choose to obey an award, such that there would not be need for the award to be registered.”

The court a quo, according to the appellants, was wrong when it held that the first appellant was only obligated to pay the respondent after the arbitral award was registered.

Further, under our law, the registration of an arbitral award does not turn such an award into an order of the High Court. Arbitral awards are registered and enforced as is without being transformed into court judgments: see Thornton v Mckenzie 2006 (2) ZLR 91 (H)…,.

The registration of an arbitral award does not create new obligations, further submitted the appellants.

In Ropa v Reosmart Investments (Pvt) Ltd 2006 (2) ZLR 283 (S)…, the finality of arbitral awards was explained by GWAUNZA JA…, in the following terms:

“In addition to this, I found to be persuasive the submission made by the respondent, that, the effect of the arbitral award is to bring to finality the dispute between the parties.”

At law, therefore, no new rights and entitlements are obtained by the holder of an arbitral award upon recognition and enforcement.

Accordingly, submit the appellants, the registration of the 19 March 2015 arbitral award did not create a new liability or circumstances that allowed it to escape the jaws of section 4(1)(d) of SI 33/19.

The appellants further argue that “the novation upon registration” that the first respondent refers to is erroneous at law. It is that submission that led the court a quo astray.

Counsel for the Sheriff (the second respondent) filed heads of arguments titled:

“SECOND RESPONDENT'S/CROSS APPELLANT'S HEADS OF ARGUMENTS INCORPORATING SECOND RESPONDENT'S HEADS OF ARGUMENTS IN RESPECT OF THE MAIN APPEAL”

Counsel for the Sheriff (second respondent) stated in his heads of arguments, that, the second respondent had been served with the Notice of Appeal filed by the appellants on 12 May 2023. The second respondent filed a cross-appeal in terms of Rule 45(1) as read with Rule 45(2) of the Supreme Court Rules 2018 on 22 May 2023.

The cross appeal is on three critical errors of law and fact made by the court a quo:

(i) Firstly, the court a quo grossly misdirected itself and erred in failing to consider or address, in its judgment, the Sheriff's report which had been filed of record on 23 June 2020, at pages 373-374 of the record. The report was filed in case No. HC10315/19 and bears the full citation of the case.

The second respondent contends, that, it is a valid Sheriff's Report compiled, and filed, in terms of the rules of the court a quo. The report is comprehensive in that it sets out the background of the matter, the steps taken by the Sheriff, and the reasons therefor. It explains how the amount of RTGS4,800,000 had been paid out, and how the property had been transferred to the second appellant. The report is quoted from p8 as follows:

“8. We proceeded to uplift the caveat and transferred the property to Doorest Properties as per court order by Justice Mushore.

9. Our actions led to Messrs Mutumbwa Mugabe Legal Practitioners filing the current application as they believed we failed to execute our mandate properly.

10. It is our belief that the $4,800,000 paid constitutes the judgment debt in full.

11. Our decision to act in the manner we did was informed by the legal position prevailing with regards to execution of court orders denominated in USD dollars, in light of SI 33/2019 and Finance Act 2 of 2019.

12. If our position was wrong, it was because of the lack of clarity with regards to the interpretation of the relevant statutes.

13. The matter was once directed to the Judicial Service, as a complaint, and the position taken was that the Sheriff had not acted improperly.

14. We believe our decision was not irrational. The case arises from different interpretations of available statutory instruments. We are now aware of the Supreme Court judgment which vindicates the position that we took.

15. We pray that no costs are levied against the Sheriff as we believe we acted reasonable in terms of the law.

M. Madhega, Sheriff of the High Court of Zimbabwe, Harare.”

Thus, the Sheriff's report constitutes a full and proper response to the issues raised by the first respondent in the court a quo. It does not, argues the second respondent, in any way constitute disrespect of the court proceedings nor a failure to respond nor is it an improper pleading.

The second respondent asserts, that, the application in the court a quo, under HC10315/19, was, to all intents and purposes, a review of the action taken by the Sheriff. The Sheriff was thus functus officio. The Rules do not require him to file opposing affidavits. He is only required to file a report informing the court as to what he did and the reasons therefore.

In such situations, the Sheriff is not a litigant but an officer of the court, charged with the execution of court orders.

The Sheriff's report having been tendered to the court a quo, in conformity with its Rules, should have been given due regard before the court a quo arrived at its decision. If the court a quo had applied its mind to this report, it would have arrived at a different decision.

That the application before the court a quo was for review of the second respondent's decision is confirmed by the court a quo when it states:

“The applicant in the first instance, Fairclot Investments, seeks a review of the decision of the second respondent, of 21 November 2019, to uplift the judicial attachment of Stand 654 Pomona Township….,.”

The second respondent further argues, that, it is common cause that the Sheriff gave notice to all parties that the judgment debt had been discharged in full, and, for that reason, he was removing the attachment.

Nothing was done clandestinely or maliciously as all concerned were informed beforehand.

In the circumstances, there was no basis for the levying of costs against the Sheriff (which, on its own, is unusual on an officer of the court) let alone on the legal practitioner and client scale.

The court a quo misdirected itself on the facts when it held:

“Given the history of the case, and the manner in which the Sheriff handled the case, refusing to heed the call not to uplift the caveat, when advised that the writ had not been satisfied, the defiance requires a sanction be imposed upon the Sheriff. Most disturbing is the fact, that, despite being cited in an application where costs are claimed on the attorney/client scale, the Sheriff made no effort to defend himself/herself.

Without any submission from the Sheriff as to why costs on a higher scale should not be imposed, the court is left with no option but to accede to the prayer for costs against the Sheriff.”

Clearly, the court a quo, argues the second respondent, did not take into account the contents of the Sheriff's report giving reasons why the court should not levy costs against it. The finding on costs is therefore without basis.

With regards the interpretation of SI 33/2019 as read with the Finance Act 2/2019, the second respondent agreed with the first and second appellants, that, the award granted in March 2015 is payable in RTGS$ at the rate of 1 to 1 with the US$, and, further that the registration of the award in the court a quo was only for purposes of execution. Such registration does not novate or change the status of the arbitral award.

SUBMISSIONS BY THE FIRST RESPONDENT

On the merits, counsel for the first respondent submitted, that, an arbitral award does not become final as long as it is being challenged. He submitted further, that, it does not become final if it has not been recognized (ie registered as an order of the court a quo) or the party against whom it is made has not paid in accordance with its terms.

In other words, although in casu the arbitral award was granted in 2015, it was not final until the challenges brought against it, by the first appellant, had been resolved, and it had been registered by the court a quo.

Reliance was placed in this regard on the provisions of Article 34(4) of the Model Law which provides:

“The High Court, when asked to set aside an award, may, where appropriate, and so requested by a party, suspend the setting aside proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the arbitral tribunal's opinion will eliminate the grounds for setting aside.”

For that reason, it is argued, that, for as long a party has challenged an award, finality cannot be achieved. Matters will remain fluid until the award has been finally recognized.

It is further argued, that, Article 36 of the Model Law sets out the grounds upon which the court a quo may decline to register an award. This is a clear sign that the arbitral award is not final until it is registered.

The gravamen of the first respondent's argument is that because of the continued litigation, at the instance of the first appellant, there was still a live dispute between the parties such that the debt could not have been affected by the provisions of SI 33 of 2019.

For this proposition, the first respondent has relied on the cases of Lock v Lock and Another SC127-22 and Lugalulu Investments and Another v National Railways of Zimbabwe SC43-22.

It must be noted, that, these cases dealt with High Court judgments (therefore judgments debts) as opposed to arbitral awards.

The first respondent submits, that, since the award in casu was registered after the effective date, in terms of SI33 of 2019, the award is not affected by the provisions of that statutory instrument. In other words, the debt is payable in United States dollars converted to RTGS at the prevailing bank rate.

The first respondent concedes, that, an arbitral award is not a judgment debt. It submits, however, that once registered as an order of the court a quo it becomes a judgment debt.

ANALYSIS

Both parties have cited authorities tending to show, on behalf of the appellants, that an arbitral award is final upon its grant, and, on behalf of the first respondent, that it is not final until it is registered.

We note that there is no legislative provision that says that the filing of a challenge to an arbitral award suspends the operation of the award.

That being the case, we would agree with counsel for the first and second appellants, that, an arbitral award is effective upon its grant until it is set aside.

In any event, it does not matter when the arbitral award may be regarded as being final. The point is, whether, at the time of ultimate registration in the court a quo, such an award becomes a judgment of the court a quo.

We agree with counsel for the first and second appellants, that, registration of an award in the court a quo does not change the status of the award. The award is registered simply for the purpose of execution. The court a quo, at registration, does not determine the rights and obligations of the parties. These have already been determined by the arbitrator. The court a quo does not, and cannot, determine the matter on the merits.

For that reason, the order for registration does not become a judgment debt because it is not a judgment of the court a quo. The fact that the court a quo may refuse to register an award, on any of the grounds set out under Article 36 of the Model Law, is irrelevant to the issue at hand, namely, whether the registration of an arbitral award transforms it into a judgement debt.

The rights and obligations of the parties were determined by the arbitrator in 2015. The award/debt is fully covered by the provisions of S.I. 33 of 2019 notwithstanding its registration after 22 February 2019 (the effective date).

The position would have been different if proceedings in a court of law had been instituted in 2015 but concluded after the effective date. The order given would be a judgment debt. In such a scenario, the rights and obligations of the parties would have been determined by a court after the effective date, and, therefore, the judgement debt so arising would be payable in Unites States dollars converted to RTGS at the prevailing bank rate.

An arbitral award granted in 2015 cannot assume a similar status merely because it was registered by the court a quo after the effective date.

The court a quo therefore misdirected itself in treating the order for registration of the award as a novation of the arbitral award giving rise to a judgment debt. Having so misdirected itself, it wrongly concluded, that, the debt was not covered by SI 33 of 2019 and disregarded the payment in full in RTGS dollars made by the first appellant.

There is no evidence in the judgment of the court a quo, that, it took into account or noted the Sheriff's report filed of record. There is absolutely no reference to it. If it had had regard to the Sheriff's Report, it would not have issued an order for costs against him on the higher scale, or, indeed any costs at all.

As already indicated, the Sheriff is an officer of the court, not a litigant. He is not required to file opposing papers. His report is sufficient to inform the court, and the parties, as to his actions and the reasons therefor.

We agree that the Sheriff, when in doubt, should seek directions from the court. He should have done so.

As it turns out, however, he was right in his assertion that the debt had been fully discharged in RTGS at the prescribed rate of one is to one to the United States dollar.

For that reason, the order granted against him cannot stand.

In any event, the Sheriff acted in terms of an order granted by MUSHORE J.

DISPOSITION

The appeal has merit. The registration of an arbitral award does not create a judgment debt. Registration is a vehicle through which parties may access the services of the Sheriff to execute arbitral awards. It is a procedure designed solely for purposes of execution. In that regard, the court a quo does not inquire into or determine the merits of the matter as it is a mere vehicle for enforcement.

Thus, the arbitral award, granted in 2015, is subject to the provisions of SI 33 of 2019, notwithstanding its late registration after the effective date. The debt is therefore payable at the prescribed rate of 1US$ to 1RTGS$. The first appellant has thus fully discharged its debt.

The order for costs against the Sheriff is not justifiable. It must be set aside. Costs will follow the cause.

In the result, it is ordered as follows:

1. That the appeal succeeds with costs.

2. That the order of the court a quo in case No. HC5989/19 and case No. HC10315/19 be set aside and be substituted with the following:

“Case No. HC5989/19

(i) The application for a declaratory order be and is hereby granted.

(ii) The liability arising from the arbitral award, dated 19th March 2015, in favour of the first respondent, be and is hereby declared executable in RTGS dollars at the rate of one to one to the United States dollar in accordance with section 4(1)(d) of Statutory Instrument 33 of 2019.

(iii) The first respondent to pay costs of suit.

Case No. HC10315/19

The application is dismissed with costs.”

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Final Orders re: Writ of Execution, Enforcement of Judgments iro Form and Nature of Order for Execution

HH134-10 : HERBERT SAURAMBA and 113 OTHERS vs MITCHELLS BAKERY MUTARE
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SC93-23 : AUGUR INVESTMENTS and DOOREST PROPERTIES vs FAIRCLOT INVESTMENT and THE SHERIFF and THE REGISTRAR OF DEEDS
Ruled By: BHUNU JA, CHIWESHE JA and MWAYERA JA

SC93-23 : AUGUR INVESTMENTS and DOOREST PROPERTIES vs FAIRCLOT INVESTMENT and THE SHERIFF and THE REGISTRAR OF DEEDS
Ruled By: BHUNU JA, CHIWESHE JA and MWAYERA JA

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Law Portal Zimbabwe

Final Orders re: Writ of Execution, Enforcement of Judgments iro Form and Nature of Order for Execution

HH134-10 : HERBERT SAURAMBA and 113 OTHERS vs MITCHELLS BAKERY MUTARE Ruled By: CHIWESHE JP

Appealed SC04-12 : SHAUN EVANS and PAUL FRIENDSHIP vs YAKUB SURTEE and COLLIN MACMILLAN and RODNEY FINNIGAN and ACROSS ENTERPRISES PL Ruled By: ZIYAMBI JA, GARWE JA and CHEDA AJA

SC30-21 : GRAIN MARKETING BOARD vs ARENEL (PVT) LTD and GORDON GEDDES N.O. Ruled By: GWAUNZA DCJ, MATHONSI JA and KUDYA AJA

HH707-15 : RICHARD MATTHEWS vs CRASTER INTERNATIONAL (PRIVATE) LIMITED Ruled By: MAFUSIRE J

SC03-24 : MINISTER OF LANDS, AGRICULTURE, FISHERIES, WATER AND RURAL DEVELOPMENT and REGISTRAR OF DEEDS vs ALISTAIR FLETCHER and ROBERT NJANJI Ruled By: GWAUNZA DCJ, MAVANGIRA JA and CHIWESHE JA

SC37-23 : CFI HOLDINGS t/a FARM & CITY vs ANDREW MACHAYA Ruled By: GUVAVA JA, CHATUKUTA JA and MWAYERA JA

SC93-23 : AUGUR INVESTMENTS and DOOREST PROPERTIES vs FAIRCLOT INVESTMENT and THE SHERIFF and THE REGISTRAR OF DEEDS Ruled By: BHUNU JA, CHIWESHE JA and MWAYERA JA

SC93-23 : AUGUR INVESTMENTS and DOOREST PROPERTIES vs FAIRCLOT INVESTMENT and THE SHERIFF and THE REGISTRAR OF DEEDS Ruled By: BHUNU JA, CHIWESHE JA and MWAYERA JA

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Zimbabwe

HH134-10 : HERBERT SAURAMBA and 113 OTHERS vs MITCHELLS BAKERY MUTARE
Ruled By: CHIWESHE JP

Appealed
SC04-12 : SHAUN EVANS and PAUL FRIENDSHIP vs YAKUB SURTEE and COLLIN MACMILLAN and RODNEY FINNIGAN and ACROSS ENTERPRISES PL
Ruled By: ZIYAMBI JA, GARWE JA and CHEDA AJA

SC30-21 : GRAIN MARKETING BOARD vs ARENEL (PVT) LTD and GORDON GEDDES N.O.
Ruled By: GWAUNZA DCJ, MATHONSI JA and KUDYA AJA

HH707-15 : RICHARD MATTHEWS vs CRASTER INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

SC03-24 : MINISTER OF LANDS, AGRICULTURE, FISHERIES, WATER AND RURAL DEVELOPMENT and REGISTRAR OF DEEDS vs ALISTAIR FLETCHER and ROBERT NJANJI
Ruled By: GWAUNZA DCJ, MAVANGIRA JA and CHIWESHE JA

SC37-23 : CFI HOLDINGS t/a FARM & CITY vs ANDREW MACHAYA
Ruled By: GUVAVA JA, CHATUKUTA JA and MWAYERA JA

SC93-23 : AUGUR INVESTMENTS and DOOREST PROPERTIES vs FAIRCLOT INVESTMENT and THE SHERIFF and THE REGISTRAR OF DEEDS
Ruled By: BHUNU JA, CHIWESHE JA and MWAYERA JA

SC93-23 : AUGUR INVESTMENTS and DOOREST PROPERTIES vs FAIRCLOT INVESTMENT and THE SHERIFF and THE REGISTRAR OF DEEDS
Ruled By: BHUNU JA, CHIWESHE JA and MWAYERA JA