Since..., the gravamen of the complaint by the applicant is on the constitutional validity of section 2 of the Presidential Powers Act, the applicant should have, in these circumstances, approached this Court in terms of section 85(1)(a) of the Constitution, alleging a violation of one or more of her constitutional rights....,.

As correctly pointed out by the first and third respondents, it is apparent that the applicant seeks to have section 2(2) of the Presidential Powers (Temporary Measures) Act [Chapter 10:20] declared unconstitutional.

That is also made clear in paragraphs 2 and 4 of her draft order quoted earlier in this judgment.

That is not the approach she adopted.

Where the constitutionality of subsidiary legislation is challenged, the proper channel is to approach this Court by way of direct access, in terms of section 85(1) of the Constitution, alleging that the particular statute or its provisions violate one or more of a person's fundamental rights.

It is one thing to allege that Parliament and the President have failed to fulfil a constitutional obligation and quite another to seek a declaratur that the conduct by either or the two is not in line with one or more provisions of the Constitution.

In the former instance, a litigant, by virtue of Rule 27(1) of the Constitutional Court Rules, as read with section 167(2)(d) of the Constitution, may make a court application supported by an affidavit setting out the constitutional obligation in question and what Parliament or the President has failed to do in respect of such obligation.

In the latter instance, however, the proper procedure would be to make an application in terms of section 85(1) of the Constitution seeking an order that such conduct be declared null and void for violating any one or more of the fundamental rights provided for in the Constitution.

The applicant clearly failed to follow the proper procedure before bringing her case before the court.

The applicant approaches this Court under section 167(2)(d) as read with section 85(1) of the Constitution of Zimbabwe.

It seeks an order declaring that the Constitution of Zimbabwe Amendment No.1 Bill, alternatively, the Constitution of Zimbabwe Amendment No.1 Act, and the Constitution of Zimbabwe Amendment No.2 Act are invalid.

Ultimately, the applicant seeks an order that both be set aside following a declaration of invalidity.

The applicant herein, the Law Society of Zimbabwe (hereinafter 'the LSZ') is a statutory corporate body set up in terms of the Legal Practitioners Act [Chapter 27:07]. It is the body responsible for the welfare and regulation of and for representing the legal fraternity in the country. It is capable of suing and being sued in its own right.

The first respondent is the Parliament of Zimbabwe (“Parliament”), with the second and third respondents being the heads of the Senate and the National Assembly, respectively.

The third respondent (hereinafter the 'Speaker') has deposed to the opposing affidavit on behalf of Parliament and the second respondent.

The fourth respondent is the President of Zimbabwe (hereinafter referred to as the 'President'), and the fifth respondent is the Minister of Justice, Legal and Parliamentary Affairs (hereinafter referred to as the 'Minister').

The sixth respondent is the Attorney-General of Zimbabwe. He is the Chief Legal Adviser to the government and has deposed to the opposing affidavit on behalf of the fourth and fifth respondents as well as himself.

Mr. Mubaiwa appears as amicus curiae.

Sometime in 2017, Parliament enacted the Constitutional Amendment No.1 Act after it had gone through both the National Assembly and Senate. Its promulgation was challenged in this Court on the premise that it had not been validly enacted.

On 31 March 2020, the Constitutional Court set aside the proceedings of the Senate of 1 August 2017 because a two-thirds majority had not been reached. The Senate was directed to conduct a vote by the procedure set out in section 328(5) of the Constitution within a prescribed period.

For reasons not germane to this dispute, the Senate could not conduct a vote and applied to the Constitutional Court for an extension of the time to do so.

On 6 April 2021, the Senate passed the Constitution Amendment No.1 Bill pursuant to an order of the Constitutional Court granting an extension.

The applicant contends, that, the Constitution Amendment No.1 Bill, alternatively, Constitution Amendment No.1 Act 2021, is invalid for the reason that Parliament failed to fulfil a constitutional obligation, in that:

(i) It passed the Constitution Amendment No.1 Bill 2017 in violation of section 147 of the Constitution;

(ii) It failed to follow the procedure set out in section 328 of the Constitution;

(iii) It acted contrary to its constitutional duty, under section 119 of the Constitution, in failing to protect the Constitution and promote democratic governance in Zimbabwe;

(iv) In conformity with its constitutional duty, under section 119 of the Constitution, it still needs to ensure that its provisions are upheld and that it acts constitutionally and in the national interest.

On 17 January 2020, Parliament gazetted the Constitutional Amendment No.2 Bill.

On 8 June 2020, Parliament notified the public, through the Clerk to Parliament, that the Portfolio Committee on Justice, Legal & Parliamentary Affairs was to conduct nationwide public hearings on the Constitutional Amendment (No.2) Bill. The dates scheduled in the notice were 15 to 19 June 2020.

The record shows that the hearings were conducted from 14 to 19 June 2020.

On 20 April 2021, Parliament passed the Constitutional Amendment (No.2) Bill of 2019.

The applicant contends, that, Parliament failed to comply with the provisions of section 328(4) of the Constitution in that it did not immediately invite members of the public, as required by the section, to express their views on the proposed Bill in public meetings.

The applicant contends, that, Parliament should have convened meetings or availed facilities for holding public meetings for the said consultations.

In this regard, the applicant argues that Parliament failed to fulfil a constitutional obligation.

Consequently, it seeks relief against Parliament only, in respect of both Constitutional Amendment No.1 Act and Constitutional Amendment No.2 Act, more specifically, an order declaring that both were promulgated in violation of the Constitution and are thus invalid.

The respondents have all filed papers opposing the application on various bases.

Parliament has raised preliminary points in its opposing papers.

Although the other respondents did not raise any preliminary objections in their sole opposing affidavit, counsel for the fourth, fifth and sixth respondents, has, in oral argument before the Court, set out several points in limine, which I will advert to hereunder before determining the merits of the application.

At the outset of the matter being heard, counsel for the applicant informed the Court, that, the applicant no longer relied on section 85 of the Constitution to seek relief. He submitted that the applicant did not seek an express declaration of rights. Therefore, the application would be solely based on the provisions of section 167(2)(d) of the Constitution in that, in respect of both matters, Parliament had failed to fulfil its obligations under the Constitution in the manner in which both Acts were passed into law.

The first, second, and third respondents have raised several points in limine, which they contend are dispositive of the application, thus obviating the need to determine it on the merits.

The fourth, fifth, and sixth respondents did not raise any objections in the opposing affidavit or their heads of argument. The objections were, however, raised in oral argument by counsel at the inception of the hearing.

They are all on points of law relating to the procedural aspects of the application, and, therefore, stand for resolution by the Court.

This is a trite position in our court system which requires, that, any issue placed before the court by the parties must be determined and a decision rendered in respect of the same.

The first objection raised by Parliament, the first respondent herein, is that the applicant lacks the required locus standi to approach this court for the relief sought.

Counsel for the first respondent argued, that, the concession by the applicant, that it was no longer proceeding under section 85 of the Constitution, left it without a cause of action.

Secondly, it is contended on behalf of Parliament, that, the matter is not properly before the Court.

In this regard, Parliament suggests, that, the challenge by the applicant, of both the Constitution of Zimbabwe Amendment No.1 Act and the Constitution of Zimbabwe Amendment No.2 Act, on the basis that the respondents have failed to fulfil a constitutional obligation, cannot be bundled up in one application. The obligations sought to be invoked are disparate and distinct.

A challenge to the alleged absence of jurisdiction on the part of the Court, raised in the opposing affidavit, was not motivated in the written submissions, nor was it moved in the oral argument.

I take the view that it has been abandoned.

The last objection is that the applicant has no causa for the relief it seeks from the Court.

Counsel for the first respondent submitted, that, the applicant conceded that the Constitution of Zimbabwe Amendment No.1 Act was promulgated pursuant to an order of court. It is the position of counsel for the first respondent, that, once the applicant accepted that the amendment was effected in compliance with an order from the Court, then, it cannot found a cause of action under section 167(2)(d) of the Constitution alleging that the respondents had failed to fulfil a constitutional obligation.

Counsel for the fourth, fifth, and sixth respondents, submitted that the application was invalid.

This objection stemmed from the fact, that, in the founding affidavit, the applicant states that the application was premised on section 167(2)(d) as read with section 85 of the Constitution and Rule 27 of the Constitutional Court Rules 2016. He argued, that, the validity of the application was determinable at the date of filing at which stage the applicant had stated that it was proceeding in terms of the provisions stated above.

Counsel argued further, that, the Constitutional Court enjoys exclusive jurisdiction under section 167(2)(d) of the Constitution, and the joinder of an application under section 85 of the Constitution was impermissible.

In this instance, he argued, that, the combination of the two causes of action rendered the application a nullity.

The second objection related to the relief being sought.

He argued that the draft order was defective as it was unclear whether the Court was being asked to invalidate the Act or the Bill.

Regarding the issue of locus standi, counsel argued that the relief in the application was not sought in terms of section 85 of the Constitution. The applicant did not seek a declaratur that a fundamental right had been violated and that consequential relief be issued by way of redress. Consequently, the cause of action had failed to relate to the relief being sought from the Court.

Counsel for the applicant made the following submissions in response:

Counsel submitted, that, the applicant had not sought an express declaration of a violation of a right enshrined in [Chapter 4] of the Constitution. As a result, he was no longer relying on section 85 of the Constitution for relief.

Instead, he would pray for an order to the effect that Parliament had failed to fulfil its constitutional obligation in passing both Constitutional Amendment Act No.1 and No. 2 and that, consequently, both are invalid and should be set aside.

Regarding locus standi, counsel submitted, that, the applicant had standing under the Legal Practitioners Act. He contended, that, the applicant had alleged that it had a substantial and direct interest in the matter, thus establishing its standing.

He argued further, that, his counterparts were misconstruing the principle in Mudzuri & Anor v Minister of Justice, Legal and Parliamentary Affairs 2016 (2) ZLR 45 (CC) and that instead of limiting standing, the authority extended the basis on locus for any approach to the Constitutional Court.

Mr. Mubaiwa, who appeared as amicus curiae at the behest of the Court, made the following submissions:

He suggested that the applicant had pleaded standing under section 85 of the Constitution. As a result, it was his view that its reliance on section 167 of the Constitution, for standing, did not pass muster.

He contended, that, the applicant must have pleaded standing under section 167 of the Constitution, but failed to do so. The abandonment of section 85 of the Constitution left the applicant needing locus standi to approach the Court.

He prayed that, as a consequence, the application should be dismissed....,.

I turn next to the objections raised by the respondents. In this regard, I propose to address the alleged absence of a cause of action in so far as such causa is linked to the locus standi pleaded by the applicant.

Depending on its determination, I will proceed to determine the remaining objections ad seriatim.

The respondents have all taken issue with the alleged absence of a cause of action on the papers.

Even though counsel for the applicant abandoned reliance on section 85 of the Constitution for relief, this remains the sole cause of action pleaded by the applicant. The respondents contend that the cause of action has been destroyed by the applicant failing to plead and establish locus standi in terms of section 167(2)(d) of the Constitution before the Court.

I proceed to consider that objection simultaneously with the second objection, which is that the applicant has joined two causes of action in a single application.

This objection is premised on the averment in the founding affidavit that the application is brought in terms of section 167(2)(d) of the Constitution as read with section 85 of the Constitution.

It is contended by the fourth, fifth, and sixth respondents, that, an application under section 167 of the Constitution does not permit the citation of any party other than the President or Parliament.

Under section 167(2)(d) of the Constitution, so the argument went, this court enjoys exclusive jurisdiction, and the joinder of an application under section 85 of the Constitution is bad at law and highly improper.

Counsel also argued, that, the joinder of the two applications is improper and renders the application a complete nullity.

This court has previously considered and determined the impropriety of joining two causes of action in one application premised on the above provisions.

The jurisdiction exercised by the Constitutional Court under section 167(2)(d) of the Constitution is clear and distinct from that exercised under section 85 of the Constitution.

Regarding section 167(2)(d) of the Constitution, only the Constitutional Court may determine whether the President or Parliament has failed to fulfil a constitutional obligation. On the other hand, under section 85 of the Constitution, the Constitutional Court enjoys parallel jurisdiction with different courts as it permits any person to approach any court alleging the violation of a fundamental right enshrined under Chapter 4.

Section 85(3) of the Constitution is pertinent in this regard. It provides that “the rules of every court must provide for the procedure to be followed in cases where relief is sought under subsection (1) and those rules must ensure that…,.”

Thus, the conflation of the two causes of action under one application is impermissible and bad at law.

This Court underscores this in Zimbabwe Human Rights Association v Parliament of Zimbabwe & Ors CC06-22. In that decision, PATEL JCC stated…:

“For the sake of completeness, it is necessary to point out, that, the application, to the extent that it is premised on section 85(1) of the Constitution, has been made without leave in terms of Rule 21 of the Rules.

The need to comply with the Rules, generally, and with Rule 21 in particular, was forcefully reaffirmed by MAKARAU JCC in the recent case of Museredza & Ors v Minister of Agriculture, Lands, Water and Rural Resettlement & Ors CC11-21, at pp9, 11, 13-14 and 15.

The Court noted the critical distinction between the jurisdiction of a court, which is a matter of substantive law, and access to that jurisdiction, which is a question of adjectival or procedural law. It was further observed that applications for leave to obtain direct access, under Rule 21, serve the dual purpose of confirming that it is in the interests of justice to determine the matter at hand and as a gate-keeping function to sieve matters that this Court must determine in the interests of justice. The learned judge accordingly held, at p15, that:

'The practice of this Court therefore is that, where a litigant wishes to bring a new and fresh cause and the matter is not listed in Rule 21 as one for which leave is not required, then leave must be sought even if the matter is in the exclusive jurisdiction of the Court.'”…,.

The above remarks apply with equal force in casu.

Not only has the applicant not properly pleaded its cause of action, it has also conflated two causes of action into a single in a situation where the rules of the Constitutional Court set different procedural requirements in any approach to the court justifying the exercise of its specialized jurisdiction.

Section 167(5) of the Constitution provides that the Rules of the Court must permit any person, when it is in the interests of justice, with or without leave, to bring an application directly to the Court or to appeal directly to the Court from any other court.

Thus, section 167(5) of the Constitution speaks directly to those persons approaching the Constitutional Court, either directly, or wishing to appeal against the decision of a subordinate court, on the premise that it is in the interests of justice for the Court to grant them direct access.

In my view, the important phrase therein is “when it is in the interests of justice.”

There is no suggestion by the applicant that it seeks to approach the Court for relief and that its application falls in the category of applications contemplated under section 167(2)(d) of the Constitution.

From a construction of the provisions of section 85 and section 167(2)(d) of the Constitution, I find that the former is an application brought in the interests of justice whereas an application under section 167(2)(d) is not.

It seems to me that there is a clear distinction between applications under section 85 and applications under section 167(2)(d) of the Constitution.

While an application under section 85 of the Constitution may, depending on the peculiar circumstances of the case, require leave of court, one under section 167(2)(d) of the Constitution does not; whilst the Rules have therefore made provision for the requirement of leave under Rule 21, the requirement for leave has been dispensed with in an application under section 167(2)(d) of the Constitution.

It seems to me, therefore, that, the objection by counsel for the fourth, fifth and sixth respondents, on the joinder of two causes of action, was properly taken.

The objection is therefore upheld.

Ordinarily, this should be dispositive of the application, but, I take the view that it is pertinent and necessary to determine the issue of whether or not the applicant has satisfied the obligation to plead locus standi which is linked to or premised on the cause of action and relief sought before the Court.

The starting point, in my view, is the court's approach to standing under the common law, which is stringent and restrictive.

In general terms, under the common law, a litigant who approaches the court for relief must establish that he or she has a direct and substantial interest in the matter in question. To be properly before the court, such a litigant must show the infringement of some right or that his or her personal interests have been adversely affected, resulting in the litigant approaching the court for redress.

Thus, a party must show that he or she has a direct, personal, and substantial interest in the matter in contention.

In Zimbabwe Stock Exchange v Zimbabwe Revenue Authority SC56-07, MALABA JA…, said:

“The common law position on locus standi in judicio of a party instituting proceedings in a court of law is that to justify participation in the action, the party must show that he or she has a direct and substantial interest in the right, which is the subject matter of the proceedings and the relief sought.”…,.

Locus standi in judicio refers to one's right, ability, or capacity to bring legal proceedings in a court of law.

One must justify such right by showing that one has a direct and substantial interest in the subject-matter and outcome of the litigation: see Zimbabwe Teachers Association & Ors v Minister of Education and Culture 1990 (2) ZLR 48 (HC).

See also Dalrymple & Ors v Colonial Treasurer 1910 TS 372; Henri Viljoen (Pty) Ltd v Awerbuch Brothers 1953 (2) SA 151 (O); United Watch Diamond Co (Pty) Ltd & Ors v Disa Hotels Ltd & Anor 1972 (4) SA 409 (C); Deary NO v Acting President & Ors 1979 RLR 200 (G); SA Optometric Association v Frames Distributors (Pty) Ltd t/a Frames Unlimited 1985 (3) SA 100 (O); Molotlegi & Anor v President of Bophuthatswana & Ors 1989 (3) SA 119 (B).

In Sibanda & Ors v The Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) Inc SC49-18, HLATSHWAYO JA…, considered the principle of locus standi and stated the following:

“It is trite that locus standi is the capacity of a party to bring a matter before a court of law. The law is clear on the point, that, to establish locus standi, a party must show a direct and substantial interest in the matter: see United Watch & Diamond Company (Pty) Ltd & Ors v Disa Hotels Ltd & Anor 1972 (4) SA 409 (C) at 415 AC and Matambanadzo v Goven SC23-04.”

In accordance with the general rule, that the party instituting proceedings must allege and prove that he has locus standi, the onus of so establishing rests upon the applicant.

Consequently, a litigant must show that he has the right or capacity to bring a matter to court and a right to appear in court.

Locus standi is the other side of the coin to jurisdiction.

It is incumbent, therefore, that, the applicant establishes locus standi in judicio to invoke the jurisdiction of the court to exercise its power in its favour: see Mars Incorporated v Candy World (Pty) Ltd 1991 (1) SA 567 (AD)…,.

A party instituting legal proceedings of any nature must show that both he and the party being sued, in layperson's terms, have a real interest in the matter being brought to court. A litigant must show his authority to sue or be sued and that the other party is one over which the court can exercise its jurisdiction. Any party instituting process in which relief is sought from the court is obliged to place itself as a party before the court seized with the dispute.

The applicant approached the court pursuant to section 85 of the Constitution. It did so more specifically in terms of section 85(1)(e) as the association has an obligation, in terms of the Legal Practitioners Act, to represent the interests of the legal fraternity in the country.

The applicant also states that it has “a direct and substantial interest to see that laws are passed and/or amended in compliance with the Constitution, including the Constitution itself.”…,.

The contention made on the respondents behalf is that the applicant has not pleaded any basis upon which it could be found as having locus standi in judicio under section 167(2)(d) of the Constitution in terms of which it sought relief.

In casu, in its papers, particularly the founding affidavit, the applicant had specifically pleaded that it is approaching this Court in terms of section 85 of the Constitution. The reasonable expectation that arises from this statement or averment is that a litigant approaching a court in terms of section 85 of the Constitution intends to enforce a fundamental human right or freedom.

The approach of the courts, generally, on the question of locus standi under the common law is rather restrictive.

The South African Supreme Court of Appeal in Four Wheel Drive Accessory Distributors CC v Rattan NO 2019 (3) SA 451 (SCA) considered the requirements of locus standi. It held that –

“The logical starting point is locus standi — whether, in the circumstances, the plaintiff had an interest in the relief claimed, which entitled it to bring the action.”

Generally, the requirements for locus standi are these:

The plaintiff must have a sufficient interest in the subject matter of the litigation, usually described as a direct interest in the relief sought; the interest must not be too remote; the interest must be actual, not abstract or academic; and it must be a current interest and not a hypothetical one.

The duty to allege and prove locus standi rests on the party instituting the proceedings.

On the other hand, the courts have adopted a broad and generous approach when it comes to standing to give access to court to those litigants wishing to enforce rights under the Constitution.

The principle upon which the courts exercise this discretion is that the effective enforcement of a justiciable Bill of Rights requires that courts adopt a broad approach in so far as standing under the Constitution is concerned.

This Court has extensively canvassed the issue of locus standi in the case of Gonese & Anor v President of Zimbabwe & Ors CC10-18, wherein PATEL JCC elucidated the approach of this Court as follows:

“In the Doctors for Life case (supra), at para 218, NCGOBO J recognized the need to find a proper balance between avoiding improper intrusions into the domain of Parliament and ensuring that constitutional provisions are sufficiently justiciable so as not to be rendered nugatory.

The latter consideration, in my view, behoves this Court to adopt a liberal and generous approach to locus standi in matters involving constitutional rights and obligations. This is so notwithstanding the constitutional and statutory independence enjoyed by Parliament in the control of its own affairs: see Smith v Mutasa N.O. & Anor 1989 (3) ZLR 183 (SC) at 208 & 209. See also Mudzuru & Anor v Minister of Justice, Legal and Parliamentary Affairs N.O. & Ors CC12-15, at pp.13-15, where this Court, per MALABA DCJ (as he then was), eschewed the narrow traditional conception of locus standi in favour of a broad and generous approach to standing in constitutional matters.”…,.

What I must consider, therefore, is whether the applicant has sufficiently placed enough factual allegations to lead to a conclusion that it has the necessary locus standi to approach the Constitutional Court for relief under section 167(2)(d) of the Constitution.

From a perusal of the founding affidavit, in setting out the premise of its locus standi, the applicant avers that, in addition to it approaching the Court in terms of section 85, on behalf of its members, it “has substantial interest to see that laws are passed and/or amended in compliance with the Constitution - including amendments to the Constitution.”

Although the applicant pleads that it has primarily approached the Court in terms of section 85 of the Constitution, in other portions of its founding affidavit, it purports to approach the Court in terms of section 167(2)(d) of the Constitution.

As already noted, the Rules relating to standing for each approach are different.

Whilst the applicant brought the matter premised on an alleged violation of a fundamental right enshrined in Chapter 4 of the Constitution, the relief sought, however, is an order to the effect that Parliament failed to fulfil a constitutional obligation in the manner in which the amendments were passed into law.

Section 85(1) of the Constitution defines the different classes of people who may approach the Constitutional Court to seek redress in terms of that section. This Court has settled the position that section 85(1) of the Constitution has liberalised standing, thus allowing a person who ordinarily could not seek redress for an injury another person had suffered to do so.

See M & Anor v Minister of Justice, Legal and Parliamentary Affairs N.O. & Ors 2016 (2) ZLR 45 (CC) and Mawarire v Mugabe & Ors 2013 (1) ZLR 466 (CC).

Section 167(2)(d) of the Constitution, however, is silent on the nature of standing entitling a person to approach this Court under it.

Rule 27 of the Constitutional Court Rules is also silent on the nature of standing that an applicant is expected to set out.

The generous approach to locus standi, in constitutional matters, does not excuse a litigant from satisfying the Court that he or she has the requisite standing to bring the suit.

A comparison of the provisions of Rule 21of the Constitutional Court Rules, allowing for access under section 85 of the Constitution, and Rule 27 of the Constitutional Court Rules, in terms of which the conduct of the President or Parliament may be impugned for failing to comply with a constitutional obligation, shows that those provisions are very different.

Whereas Rule 21 of the Constitutional Court Rules obliges an applicant to establish that the application is in the interests of justice, the latter Rule premises the application on an allegation of failure to comply with a constitutional obligation.

The requirement for a litigant approaching the court in terms of a provision of the Constitution to properly plead its cause and adhere to the Rules was emphasized in Zimbabwe Human Rights Association v Parliament of Zimbabwe & Ors CC06-22, wherein PATEL JCC opined:

“I should also highlight the other imperative of the rules of practice and procedure, to the effect, that, the pleadings relied upon by every litigant must be framed with crystal clarity to enable the court and the other parties involved to comprehend and respond to that litigant's cause of action and assertions.

This aspect was crisply underscored by GARWE JA (as he then was) in Medlog Zimbabwe (Pvt) Ltd v Cost Benefit Holdings (Pvt) Ltd 2018 (1) ZLR 449 (S), at 455G:

'In general, the purpose of pleadings is to clarify the issues between the parties that require determination by a court of law.'

After citing various authorities, both in this jurisdiction and elsewhere, the learned judge concludes, at 457G:

'The position is therefore settled, that, pleadings serve the important purpose of clarifying or isolating the triable issues that separate the two litigants. It is on those issues that a defendant prepares for trial and that a court is called upon to make a determination. Therefore, a party who pays little regard to its pleadings may well find itself in the difficult position of not being able to prove its stated cause of action against an opponent.'”…,.

Attention may also be drawn to the cautionary sentiments of MAKARAU JCC in Mliswa v Parliament of the Republic of Zimbabwe CC02-21, on the need to plead one's cause of action with precision.

In casu, a perusal of the founding affidavit reveals that even though the applicant pleaded locus standi under section 85 of the Constitution, there is no cause of action linked to section 85 of the Constitution on the papers. Instead, all the averments in the affidavit point to an alleged failure to fulfil a constitutional obligation on the part of Parliament.

It seems to me that the applicant, in framing the application, wished to place itself before the Court under section 85 of the Constitution in order to establish its locus standi, but sought relief under section 167(2)(d) of the Constitution.

It is apparent, that, the applicant assumed, and, was under the mis-apprehension that it was entitled to plead both section 85 and section 167(2)(d) of the Constitution as the vehicle to place itself before the Constitutional Court.

What an applicant needs to plead to establish locus standi under section 167(2)(d) of the Constitution was clarified by the Constitutional Court in Chirambwe v President of the Republic of Zimbabwe & Ors CC04-23.

This Court remarked as follows from paragraph 40 of the judgment:

“…,. That the new Constitution expanded the locus standi of persons seeking to approach the court is now settled. For example, in direct applications brought under section 85(1) of the Constitution, torch bearers are now permitted to seek redress on behalf of the general public or in the interests of a group or class of persons.

In respect of an application alleging that the President or Parliament has failed to fulfil a constitutional obligation, Rule 27 of the Constitutional Rules 2016 requires an applicant to depose to an affidavit setting out the constitutional obligation in question and what it is alleged the President or Parliament failed to do in respect of such obligation.

That the locus standi of applicants seeking constitutional protection and enforcement has been extended is now accepted by this Court.

In Everjoy Meda v (1) Maxwell Matsvimbo Sibanda (2) Zambe Nyika Gwasira (3) The Sheriff of the High Court of Zimbabwe (4)The Registrar of Deeds CC10-16, MALABA CJ made pertinent remarks…, that:

'The purpose of the section is to allow litigants as much freedom of access to the courts on questions of violation of fundamental human rights and freedom with minimal technicalities…,.'

Similarly, in Innocent Gonese (2) Jesse Majome v (1) The President of Zimbabwe (2) Parliament of Zimbabwe (3) Minister of Local Government, Public Works and National Housing N.O. CC10-18, PATEL JCC, writing for the court, remarked…, that:

'…, the latter consideration, in my view, behoves this Court to adopt a liberal and generous approach to locus standi in matters involving constitutional rights and obligations: See also Mudzuru & Anor v Minister of Justice, Legal & Parliamentary Affairs N.O. & Ors CC12-15 at pp13-15 where this Court, per MALABA DCJ (as he then was), eschewed the narrow traditional conception of locus standi in favour of a broad and generous approach to standing in constitutional matters…,. In my view, the applicants have an unquestionable right, both as citizens and as legislators, to vindicate any perceived violation of the Constitution….,.

Considering the whole tenor of the current Constitution and the cases cited above, I have no doubt in my mind, that, it is no longer a requirement for an applicant in a constitutional application, such as the present, to demonstrate that a particular constitutional right has been violated in respect of him/her personally.

The applicant makes it clear that he approaches the court in his capacity as a citizen and resident of Zimbabwe. The point in limine taken on this aspect must therefore fail.”

Given the above dicta, as clearly expressed by this Court, it is apparent that the applicant must aver, in its affidavit, facts which, if proved, would establish a failure to fulfil a constitutional obligation.

The complete absence of a factual basis upon which to approach the Constitutional Court for relief under section 167(2)(d) of the Constitution may leave a litigant without obtaining relief.

When describing the nature of the application, the applicant stated, that, it was an application brought in terms of section 167(2)(d) of the Constitution as read with section 85 of the Constitution.

This is all that it pleaded in justifying its approach to the Constitutional Court under section 167(2)(d) of the Constitution.

This must be read in conjunction with its claim to locus standi under section 85 of the Constitution wherein it states that it has a direct and substantial interest to see that laws are passed and/or amended in compliance with the Constitution, including amendments to the Constitution itself.

This statement is vague as it only speaks to laws being passed and/or amended in compliance with the Constitution, including amendments to the Constitution itself. It does not make specific reference to the intention to hold Parliament to account and the standing upon which the applicant considers that it is clothed with the requisite locus standi to do so.

This is against the settled position that legal standing should be pleaded or established.

The need to comply with the Rules in any application under the Constitution was re-affirmed by PATEL JCC in Zimbabwe Human Rights Association v Parliament of Zimbabwe & Ors CC06-22 wherein the learned judge stated:

“Having regard to the relevant passages in the founding affidavit that I have referred to earlier, it is abundantly clear that the applicant has predicated its locus standi on section 85(1) of the Constitution. On the other hand, its cause of action is specifically founded on the alleged failure of the first and second respondents to fulfil their constitutional obligations. Thus, the applicant's claim to activate the jurisdiction of this Court is exclusively anchored in section 167(2)(d) of the Constitution. This is then mirrored in the declaratory and substantive relief that it seeks both of which are confined to the juridical ambit of section 167(2)(d). The order prayed for makes no mention whatsoever of any infringement of a fundamental right giving rise to locus standi under section 85(1) and the jurisdictional competence of this Court under that provision.

In essence, what the applicant has purported to do is to proceed under two mutually exclusive provisions of the Constitution, viz. section 85(1) and section 167(2)(d).

This course of action was pointedly frowned upon in Central African Building Society v Stone & Ors SC15-21…, where GWAUNZA DCJ observes that:

'…,. An application under section 85 of the Constitution should not be raised as an alternative cause of action…,. Section 85(1) is a fundamental provision of the Constitution, and, an application under it, being sui generis, should ideally be made specifically and separately as such.'”

I find myself in agreement with the dicta in the above authorities and I respectfully associate myself with the remarks therein.

The applicant was obliged to plead its locus standi with the precision and clarity required. It ought to have pleaded a cause of action properly, starting with locus standi, thus enabling the court to exercise its special jurisdiction under section 167(2)(d) of the Constitution.

I find, that, in the circumstances, the matter can be resolved in favour of the respondents. The applicant, therefore, has not established locus standi in judicio to approach the court for relief under section 167(2)(d) of the Constitution.

Thus, it is the duty of the party instituting court proceedings to make out a case that he or she has locus standi to approach the Court for appropriate relief and that the Court can exercise jurisdiction over the party on the other side.

If he fails to do so, his case will fail. He will not have an opportunity to correct his error.

An opposing party can raise the issue of an absence of locus standi at any time in the proceedings.

The Court may not condone the lack of locus standi, even if the parties agree between them to litigate with one another. If locus standi is absent, the proceedings are invalid.

While the question of locus standi, to an extent, is a procedural issue, it is also a matter of substance. It concerns the sufficiency and directness of a person's interest in litigation justifying a basis for that person to be accepted as a litigating party. The sufficiency or the existence of the requirement of interest depends on the facts of each case. It is for the party instituting proceedings to allege and prove its locus standi.

The onus to establish any issue rests on that party relying upon it.

It is thus necessary for a party, in all cases, to allege, in its pleadings, facts sufficient to show that it has locus standi to bring an action. This applies to all proceedings, whether by application or summons.

The applicant has not met the onus to establish locus standi in judicio.

In addition, the applicant has conflated two causes of action, and, in practical terms, this resulted in the applicant placing itself out of the Court's jurisdiction. The application must therefore fail and should be dismissed.

In opposing the application, the respondents prayed for the application to be dismissed with costs.

The prayer for costs was not persisted with in argument.

This is a proper approach, as, the general principle is that courts should not order costs against the losing litigant, in constitutional matters, lest deserving litigants are discouraged from approaching the courts for redress.

In the premises, I make the following order:

The application is dismissed with no order as to costs.

With this in mind, I nevertheless hazard to express the view, that, contrary to its finding, the Labour Court was, in effect, not functus officio and should properly have entertained the application filed by the applicants on 21 December 2010.

It seems to me, that, the Labour Court judge failed to appreciate the fact, that, the applicant's seemingly repeated filing of the same application was traceable, in part, to the court's failure from the onset (i.e. 16 March, 2010) to indicate to the applicants (by striking the matter off the roll) that they could not apply to it for leave to appeal to the Supreme Court without first seeking its condonation of the late filing of such application.

That the court fully appreciated that this was the correct sequence of events to be followed, is evident from the following observations contained in the judge's reasons for the decision in the question;

“The reason (for dismissing the application of 21 December 2010, for condonation and for leave to appeal) are that on 23 June 2010 an application for leave to appeal was dismissed because it was filed out of time. At that time, no application for condonation was made….,.

The two applications that were filed sought to resuscitate a matter that had been dealt with to finality - at least before this Court. Should I condone the application for leave that has already been denied? I could not consider the second application for leave to appeal because I had already denied it. It was water under the bridge. I could not deal with the application because it was ill timed. It ought to have preceded the first application for leave which I had already dismissed.”

15. A couple of pertinent observations can be made from this rather unclear reasoning.

(i) Firstly, the judge a quo properly realised that the first application by the appellants needed to be preceded by an application for condonation of its late filing. The learned judge, however, then fell into the error of not fully appreciating the implication of this default vis a vis the application for leave to appeal to the Supreme Court.

This was that, absent an application for condonation of late filing of the application for leave to appeal, there was nothing before the court to dismiss.

The later application could not stand on its own, being premised on nothing.

(ii) Secondly, since the dismissal in question was, in my view, incompetent, there would have been nothing to prevent the court from hearing the two applications.

Thus, nothing was dealt with 'to finality'.

16. Be that as it may, the applicants did not, as they may have done, take the requisite steps to appeal to this Court against the Labour Court's finding that;

(i) It was functus officio; and

(ii) That, it had already dealt with the application for leave to appeal to the Supreme Court.

17. The applicants, instead, came back to this court seeking an order for leave to appeal against the court a quo's decision on the main dispute.

18. Needless to say, this application was repetitive and therefore improper.

The ground upon which the first application had been dismissed, that is, absence of condonation by the Labour Court, was still in point.

19. The application was heard and dismissed by GARWE JA on 17 November 2011. As a mark of its displeasure, this Court ordered that the applicants pay costs on the higher scale.

20. To the extent that this court had earlier dismissed the same application, albeit, and also without considering the merits, it could have been argued that the matter was res judicata and that this court was functus officio.

The judge, however, did not make a pronouncement nor issue an order to this effect.

21. The appellants apparently felt they could still pursue the dispute, and, in a manner suggestive of their now being totally confused and entangled in a true web of procedural technicalities, the relentless applicants went back to the Labour Court on 7 December 2011 and filed an application with this somewhat confusing title;

“CHAMBER APPLICATION FOR CONDONATION FOR LATE FILING OF AN APPLICATION FOR LEAVE TO APPEAL AGAINST THE DENIAL OF CONDONATION AND APPLICATION FOR LEAVE TO APPEAL AGAINST THE DENIAL OF CONDONATION FOR LEAVE TO APPEAL TO THE SUPREME COURT”

What immediately becomes evident from this title is the fact, that, the application in question was premised on the view, that, an application for condonation of the late filing of an application for leave to appeal to the Supreme Court had been heard and refused by the Labour Court.

The opposite was in fact the case.

The learned judge, in the excerpt from her judgment that is cited in paragraph 14 above, made it very clear why she was not going to entertain such an application. Nor did she, in the end, do so.

The application was therefore misguided.

22. Having, again, found no satisfaction from the Labour Court, the applicants have now, yet again, approached this Court with this application, which is no less misguided than the last one they made before the Labour Court (see above).

The application brings nothing new to this Court unless it is to demonstrate the applicants sheer determination to pursue the matter to what they perceive to be its logical conclusion - whatever pitfalls may stand in their way.

As this Court has entertained the same matter several times, it is my view, that, the court is now functus officio.

The dispute has gone round in circles for a period of over five years and there must be finality to litigation.

The application now before me is, in any case, not sustainable in its current form.

Accordingly, the application is dismissed with costs.

On the 23rd of March 2015, Mr Sebastian Bakare; Mr Terrance Moody; Ms Natsai Nyamuwanza; Mr Cephas Sagwete; Ms Poshier Magada; Ms Maraidza Elizabeth Mutambara joined together to form United Mutare Residents and Ratepayers Trust.

Counsel for the applicant appears on the copy of the Resolution dated 3rd July 2018 which was prepared just a day before the current application was filed at Court was added to the list of Trustees.

Clause 6 of the Deed of Trust specifies the applicant's Core Business thus:

“The provision of a comprehensive platform for residents participation in local governance, service delivery, local democracy, and policy formulation, accountability and transparency.”

Article 2, captioned “LEGAL STATUS” provides inter alia:

“The Trust shall be a body corporate and as such…,.”

It is not clear as whether it can sue or be sued in its name, however, it can acquire, own, and is
limited to its property in as far as liability is concerned.

On the 4th of July 2018, the applicant filed an application seeking the following relief:

“It is declared that 1st Respondent has failed to comply with its Constitutional mandate to 'ensure good governance by being effective, transparent, accountable and institutionally coherent' in exercising its right to govern the local affairs of the Community of Mutare by not carrying out an external audit of books, balance sheet and accounts for the financial years ending 30 June 2014, 30 June 2015, 30 June 2016 and 30 June 2017.

2. And it is ordered that:

(a) 1st Respondent appoints a reputable firm of registered public auditors within 30 days of the granting of this order to carry out an audit of its books, balance sheets and accounts referred in section 286 of the Urban Councils Act [Chapter 29:15] for the financial years ending 30th June 2014-2017.

(b) Further that, 1st Respondent produce to the auditors for the purpose of audit, accounts, balance sheets, all relevant books, papers, writings and minutes books in its possession for the financial years ending 30 June 2014-2017 within 30 days of the granting of this order.

(c) Further, that, 1st Respondent prepare and present before this court a comprehensive report within the first 90 days of the granting of this order, detailing how it has complied with this order and at 180 days mark, an audit report for the financial years ending 30th June 2014-2017 as provided under section 306(3) of the Urban Councils Act [Chapter 29:15] failure which 1st Respondent shall be in contempt of court.

3. 1st Respondent will pay costs of suit on a legal practitioner-client scale.”

From 10 to 19 December 2015, the second respondent embarked on an institutional special investigative audit report at the first respondent's institution following complaints that the first respondent's, the City Council, employees were being owed salary arrears of eighteen months.

Obviously, the report by the Ministry was adverse and revealed anomalies committed by Mutare City Council.

The applicant accessed the investigative report and offered to assist the City Council.

The City Council refused and the applicant wrote threatening letters to the first respondent and indicated to Municipality of Mutare that it was going to advise residents to boycott payment of utility bills until the City Council met their demands.

The City Council responded encouraging dialogue, and, further letters were exchanged and the letter of 16 April 2018, written by the applicant's legal practitioners, proposed a tripartite meeting between the applicants, the City Council officials, and the residents and ratepayers on the other side.

No meeting was held.

The City Council supplied some information in June 2018, availing to the applicant schedules of Zinara funds, education levy, and outstanding debts due to the Council per ward.

The applicant was not amused by the conduct of the City Council, and, on the 4th of July 2018, this application was filed at the court.

The first respondent, the City Council, is opposing the application.

The first respondent raised three points in limine;

(i) The first one being that of locus standi in judicio;

(ii) The second one is that the relief sought is vague, imprecise, and unusual; and

(iii) The third and final one is that the applicant did not exhaust domestic remedies.

On the other hand, after receiving the first respondent's opposing papers, the applicant, in its replying affidavit, also introduced the fourth point in limine before this court, challenging the authority of Mr Joshua Maligwa in preparing the opposing affidavit without a resolution of the City Council.

On that note, the applicant proposed to the court, that, there is no valid opposition and the application has to be granted.

On the date of hearing of the application, I granted the first respondent an opportunity to address the court, first, focusing on all the points in limine - including that raised by the applicant.

After the first respondent had addressed the court, the applicant was given the opportunity to reply and address the court on the question of Mr Maligwa's lack of authority....,.

The first respondent submitted, that, the relief being sought is incompetent and cannot be granted in the circumstances.

The applicant seeks an interdict in the form of a mandamus and structural interdict; in addition, the applicant seeks a declaratur. The cover of the court application reads:

“Court application for an order of Declaratur, Mandamus, Structural Interdict and Ancillary Relief”

According to the first respondent, this clearly demonstrates the ineptitude and the irrationality of the relief that is being sought.

The first respondent submitted, that, the applicant has not proved the requirements of an interdict nor does the affidavit outline the allegations or facts which establish such pre-requisites. The applicant has not demonstrated that it has a clear right to compel the first respondent to do an audit. The applicant falsely believes, that, by forming a Trust, it grants it an automatic right to compel the first respondent to abide by its demands; there is no contract of such a right to compel the first respondent.

The applicant must aver or adduce evidence to establish such a right and it has failed.

The first respondent further added, that, the applicant has dismally failed to demonstrate on its papers any potential harm it may suffer or its beneficiaries may suffer if the relief it seeks is not granted.

The first respondent added, that, the application should also fail on the basis that there are other remedies available to the applicant; the applicant has not approached the Minister, the second respondent, to exhaust domestic remedies.

Where there is an alternative remedy, there is no basis for seeking the interdict.

The first respondent also impugned the applicant for failing to demonstrate the requirements of a structural interdict; that is, by proving that there is inefficiency in the system, and, as such, there will be need to be controlled.

The applicant did not manage to prove that there is incompetence or gross inefficiency which warrants the imposition of a structural interdict.

The first respondent cited the case of Kenton on Sea Ratepayers Association & Ors v Ndlambe Local Municipality 2017 (2) SA 86 (ECG).

The City Council also pointed out the dangers associated with structural interdicts, moreso, in that it violates the concept of separation of powers.

The court would end up treading into institutional spheres of control and result into undue interference with other spheres of governance.

The final point hammered by the first respondent is that even for a declaratur, the applicant failed to meet the requirements of section 14 of the High Court Act by failing to demonstrate the existing, future right which will be affected if the court does not give judgment.

It prayed for the dismissal of the application.

The first respondent cited the matter of Johnson HFC 1995 (1) ZLR 65 (S)…,.; GUBBAY CJ held:

“The condition precedent to the grant of a declaratory order under section 14 of the High Court of Zimbabwe Act 1981 is that the applicant must be an 'interested person' in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the Court. The interest must concern an existing, future, or contingent right. The Court will not decide abstract, academic, or hypothetical questions unrelated thereto. But, the presence of an actual dispute or controversy between the parties interested is not a pre-requisite to the exercise of jurisdiction.”

This point in limine lies on the borderline of law and fact.

In my view, these issues dealt with herein would have been appropriately dealt with in the main, that is, on the merits.

However, the first respondent's submission is that the applicant did not crisply, in its founding papers, exhaustively encapsulate these ingredients in order to achieve its intended purpose. Such a failure should putatively paralyse the application and this court should uphold the preliminary point and dismiss the application.

Apparently, the face of the court application is a mixed bag of separate reliefs “God's plenty” and like a hunter's arrow any prey can be caught and the hunter will attain his purpose of a catch.

I agree with the first respondent that the relief being sought is vague and embarrassing.

An examination of the affidavit, in conjunction with the draft order, indeed causes concern and the applicant ought to have crisply tabulated its facts and the draft, sealing, clearly, the relief sought.

The basis upon which the ultimate relief is premised was not established and I accordingly uphold this preliminary point.

The facts, which are fairly straightforward and common cause in this matter, can safely be summarised as follows:

The applicant is a company duly registered and incorporated in terms of the laws of Zimbabwe. The respondent is a registered commercial bank with a number of branches in Zimbabwe.

The applicant runs two distinct corporate bank accounts with the respondent's Kwekwe branch. As of October 2007, the applicant's two accounts had an aggregate credit balance of forty-seven thousand seven hundred and thirty nine dollars and eighty six cents (US$47,739=86).

The applicant's accepted position is that it is a foreign investor company which is legally in Zimbabwe carrying out a specific purpose, viz, the refurbishment of the blast furnaces of a Zimbabwean Company called Zisco Steel.

The applicant maintained it was not involved in any “foreign exchange” activities.

In October 2007, the applicant's two corporate accounts were debited with an aggregate amount of forty seven thousand seven hundred and thirty nine dollars and eighty six cents (US$47,739=86) without its consent and approval.

The applicant engaged the respondent with a view to recovering its money, to no avail, hence the instant application.

The respondent has offered a two-pronged defence to the application filed by the applicant for the recovery of its money:

(i) Firstly, the respondent has contended, as a point in limine, that, it is improper for the applicant to file a Court Application to recover a debt that is due to it. The correct position is that the applicant ought to have instituted proceedings by way of summons, so the argument went.

(ii) The second point raised in limine is that the applicant has targeted the wrong respondent. It was contended, on behalf of the respondent, that, since the funds in issue are held by the Reserve Bank of Zimbabwe, it is against the Reserve Bank of Zimbabwe that this application should have been directed.

Intricably linked to the second point in limine is the argument, that, by debiting the applicant's corporate foreign currency account, the respondent was merely complying with a directive issued by the Reserve Bank of Zimbabwe to so act.

In elaboration, the respondent's position is that in October 2007, the respondent, together with all other Commercial Banks in Zimbabwe, were directed, by the Reserve Bank of Zimbabwe, to lodge all foreign currency accounts balances in respect of corporate and non-governmental organization accounts with the Reserve Bank of Zimbabwe and to maintain mirror accounts in its own books for purposes of keeping track with these accounts....,.

It is not a rule of thumb that proceedings to recover a debt due must be instituted by way of summons as opposed to motion proceedings. It is clear to me, that, what determines the nature of the proceedings to initiate is whether or not there are material disputes of facts in the action contemplated.

Where the action contemplated is likely to have material disputes of facts, motion proceedings would be incompetent. Institution of proceedings would have to be by way of summons.

With respect, it is not the correct position of law, that, a creditor, in a proper case for a claim sounding in money owing to him, cannot initiate its recovery by way of notice of motion as argued by the respondent's counsel in the instant case.

DE VILLIERS J summed up the correct legal position in Regal Trading Co. (Pvt) Ltd v Coetzee 1956 (1) SA 766 after carrying out a survey of a number of South African decisions when he stated as follows:

“I have come to the conclusion, that, legally, it is not incompetent for a creditor, in a proper case, to claim money owing to him by way of notice of motion, provided, at least, that, the facts are not in dispute. This does not, however, refer to un-liquidated claims for damages. The court has a discretion whether it will allow a creditor to depart from the more usual procedure of rauw actie, and that discretion will depend upon all the circumstances of the case….,.”

It is correct that application procedure is inappropriate where disputes of facts exist.

Where a party alleges the existence of dispute of facts, one is expected to clearly spell out the basis of such dispute as it must be distinct from an “illusory dispute of fact”: see Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (SC)…,.

That explanation must be rooted in the respondent's opposing papers as opposed to giving them a magnified stature in the heads of argument like what seems to have happened in this case.

I am unable to locate any dispute of facts in this matter except that the parties are unable to agree on the legal implications of the directive given to the respondent. That is certainly not a dispute of facts but a legal issue that must be determined on the papers.

On 18 September 2018, the applicant filed a court application for review seeking the following relief spelt out in the draft order:

“1. The decision of the first respondent in which she made an order for the rescission of default judgment in court case number 127/18 in favour of second respondent be and is set aside.

2. The application of second respondent for rescission of default judgment be remitted for rehearing before a different magistrate.”

On 28 September 2018, the second respondent filed its opposing papers.

On 5 February, the applicant initiated summons at the Magistrates Court claiming US$651 from the second respondent, the Zimbabwe National Roads Administration.

The applicant, on 21 May 2013, attempted to receive an exemption over a number of his motor vehicles from Zimbabwe National Roads Administration for the period extending 1 June 2013 to 31 May 2014.

The Zimbabwe National Roads Administration officials demanded a letter from a commercial garage certifying such automobiles inoperative for a specified period.

From 2013 to 2018, a number of correspondences took place between the applicant and the second respondent.

In January 2018, the applicant was told, by the Zimbabwe National Roads Administration, to pay a total of $696 licencing penalty and penalty fees up to 30 April 2018.

The applicant admitted to pay $45 but resolved to claim $651, being the difference between $699 and $45, which amount he argued was excessive and unjustified in his view.

On 25 February 2018, a default judgment was granted in favour of the applicant.

On 12 March 2018, the Zimbabwe National Roads Administration filed an application for rescission of judgment.

The second respondent also filed, on the same date, an ex parte application for stay of execution.

On 26 March 2018, the applicant filed his opposing papers for the rescission of judgment as well as stay of execution.

On 13 July 2018, the magistrate, the first respondent in this application, heard the application for rescission and stay and deferred her ruling to 27 July 2018.

It is common cause, that, both applications, for rescission and stay of execution, were granted.

The second respondent was given leave by the magistrate to file a notice of appearance to defend. It filed it, and, then, proceeded to file an exception to the current applicant's summons.

Meanwhile, the applicant embarked on a vitriolic attack of the judicial officer, the magistrate, through writing of letters up to the Chief Justice.

When the second respondent caused the exception to be set down for argument, the trial magistrate, recused herself, patently because of the attack by the applicant.

The exception was set down for 11 September 2018 and postponed to 20 September 2018 so that a different magistrate would deal with the matter.

Before the matter could be heard, as already indicated, the applicant filed a court application for review.

Meanwhile, the hearing of the exception was deferred indefinitely until the finalisation of the review application.

On 24 June 2019, I gave the following order, indicating that I would give reasons for that order:

“IT IS ORDERED THAT:

1. Points in limine raised by the 2nd Respondent is upheld.

2. Application for review is dismissed with costs on attorney client scale.”

On the very date, 24 June 2019, the applicant submitted a letter addressed to the Registrar which he wanted to be placed before me raising my attention “on matters which he might have overlooked in an attempt to deal expeditiously with the proceedings before him” to use the applicant's own words.

As a matter of comment, I read the letter, but, at that stage, the court was functus officio. I could not revisit the proceedings.

I opted not reply the letter, serve to mention, that, the very points raised by the applicant had been extensively covered by the applicant in a document he produced in court.

I had read the document, and, in principle, covered the chronicle of what has built up in the matter before the application.

I wonder why the applicant assumed that I had not appreciated what he had submitted, but, presumably because I had dismissed his application, he thought that I had missed the point.

I had not...,.

On 21 January 2015, the respondent obtained judgment in its favour against the applicant under case number HC1548/13. The judgment is for the payment of $35,873 with interest at the rate of 5% per annum from 1 January 2013, and legal costs in the sum of $2,500.

The judgment debt led to the attachment of the applicant's dwelling, namely, Stand 907 Mt Pleasant Heights, Mt Pleasant, Harare.

The applicant received the notice of attachment on 18 January 2016 and filed this application on 29 January 2016.

The applicant wants the sale of the dwelling suspended because, firstly, if the sale is allowed to proceed, her family will suffer great hardship. Secondly, the applicant says she is making a reasonable offer to settle the debt at the rate of $1,000 per month.

The following is the relief that she is asking for:

“Terms of final order sought

That you show cause to this Honourable court why a final order should not be made in the following terms:

1. The sale in execution of the said dwelling is suspended on condition that the applicant carries out fully the terms of the offer of settlement made above, and, if applicant defaults on any one instalment, execution shall proceed.

2. No order as to costs.

Interim relief granted:

Pending determination of this matter, the Applicant is granted the following relief:

1. The Deputy Sheriff shall suspend the action towards the sale in execution of the said dwelling.

2. A copy of this order shall be served on the respondent's legal practitioners.”

The history of the case is as follows:

The applicant was in the employment of the respondent, as Human Resources Director, for 12 years before 2010. In 2010, she sought to leave the respondent's employment due to harsh economic conditions that were prevailing at the time.

On 10 September 2010, she made an application to the respondent for a voluntary retrenchment package which was being offered by the respondent which she found attractive. In response, the respondent persuaded her to stay with a staff retention proposal of a housing loan of $120,000.

The same offer was extended to the Chief Executive Officer and the Finance Director.

According to the housing loan offer, the title deeds of the house that she would purchase would be surrendered to the respondent as security.

The repayment of the loan was going to be upon separation; in other words, upon the applicant's termination of employment.

During her tenure, she was only supposed to pay interest of $600 per month.

Upon termination of employment, the applicant was supposed to repay the loan using her terminal benefits.

The applicant was persuaded to stay by the housing loan offer and took the loan on 23 October 2010.

This staff retention proposal was signed by the Chief Executive Officer, C Mutasa, and the Board Chairman, P.F Timba.

The applicant stated that in 2012, there was a change of management at chairman and CEO levels of the respondent.

She said that relations were not good between herself and them. She further stated, that, it became clear to her that the employment relationship could not continue.

On 17 December 2012, she tendered her resignation from employment in acknowledgement of the breakdown of the relationship.

She said that upon her resignation, her terminal benefits went towards settling the loan - but it was not extinguished.

It was only reduced from $67,124 to $35,172.

She said that she failed to agree with the respondent's new managers as to how the balance was to be settled.

As a result, litigation ensued resulting in the parties signing a Deed of Settlement in December 2014, and the respondent obtaining judgment which gave rise to the attachment of her dwelling.

The applicant stated, that, if the house is sold her family will likely suffer great hardship.

She said that she has always acknowledged her indebtedness to the respondent and has always intended to pay the debt; but, because she was not employed from January 2013 to June 2015 she was unable to pay anything.

She said that now that she is in employment she is making an offer to pay off the debt at the rate of $1,000 per month which offer she says is reasonable.

The applicant attached proof to show, that, from July 2015, when she took up employment with Pan African Mining (Pvt) Ltd, she had only managed to pay $4,000 to the respondent.

The amount was not disputed by the respondent.

Although the applicant does not state in her application that she is making this application in terms of Order 40 Rule 348A(5a), I do agree with the respondent, that, looking at the nature of the application, it is indeed being made in terms of Order 40 Rule 348A(5a) which deals with applications for the postponement or suspension of the sale of a dwelling where that dwelling has been attached and is occupied by the execution debtor or members of his family.

The applicants justification for bringing the same application before another judge, TAGU J, in a space of less than a month was that, as I understood it, and in my own words, they had appealed to the Supreme Court against the decision of MATANDA-MOYO J.

It was argued, that, in accordance with the common law rule that an appeal suspends the decision appealed against, the judgment of Her Ladyship had automatically been suspended and that the status quo ante obtained.

Counsel for the applicants submitted, that, the pendency of an appeal finds a prima facie right. For support, he referred to the case of Timothy Sean White v Zenzo Ntuliki HB147-15.

The applicants position was, that, unless the respondents were barred, they would continue to purport to run the affairs of the first applicant, yet, the judgment of MATANDA-MOYO J had been suspended by the appeal. Unless they obtained leave to execute, the argument concluded, the respondents had no business purporting to be the management committee of the first applicant.

The applicants argument on this point was manifestly scrambled.

The respondents claim to office was not by virtue of the judgment of MATANDA-MOYO J. It was by virtue of the vote of no confidence on 25 April 2015. The learned judge, TAGU J, did not decide the issue. Neither have I.

It was simply not before us.

I accept, that, in paragraph 7 of their notice of opposition, the respondents stated unequivocally that they had been voted into office following the passing of the vote of no confidence. I am also aware, that, the applicants purported to refute that claim in their answering affidavit. But, they merely made a fleeting reference to it. Through the fourth applicant, Andrew Marauka, here is how the applicants responded:

“4. AD PARA 7–12

The purported mandate of the 1st to 5th respondents was later revoked at a meeting of 1st Respondent's [sic] members: see Annexure A; and, this position remains the true position to date and unchallenged clearly putting pad [sic] to the issue of whether or not the Respondents have a mandate to run 1st Applicant's affairs.”

But, there was no Annexure A attached. There was nothing more said about the so-called meeting of “…, the 1st Respondent's members…,.” that allegedly had revoked the respondents mandate and had put paid to the respondents ambition to control the affairs of the first applicant.

But, most importantly, an application stands or falls by its founding papers.

In Bayat v Hansa 1955 [3] SA 547 [N] the principle was summarised as follows…,.:

“[A]n applicant for relief must [save in exceptional circumstances] make his case and produce all the evidence he desires to use in support of it, in his affidavits filed with the notice of motion, whether he is moving ex parte or on notice to the respondent, and is not permitted to supplement it in his replying affidavits [the purpose of which is to reply to averments made by the respondent in his answering affidavits], still less make a new case in his replying affidavits.”

It is quite clear, that, the applicants in this case had no interest in the court prying into the propriety of the vote of no confidence.

The case of Timothy Sean White v Zenzo Ntuliki HB147-15 that counsel for the applicants referred to was irrelevant.

The issue there was quite different. Therein, the respondents had wanted to execute a certain order of the Magistrate's Court despite an appeal that was pending against it. This court barred them pending the determination of the appeal.

In casu, the respondents were not at all trying to execute any court order.

Even if one accepts, that, the operation of the judgment of MATANDA-MOYO J was automatically suspended by the appeal against it, and that the status quo ante obtained, the question is: what was this status quo ante?

Counsel for the applicants conceded, quite correctly, that, it was the vote of no confidence.

When the parties appeared before Her Ladyship, the vote of no confidence was the one obtaining. Evidently, the applicants did not wish to have it adjudicated upon. They concealed it from the court. However, the court picked it up, and, on the basis that it existed, but that it had been deliberately concealed, the urgent chamber application was dismissed.

So the appeal, and the resultant suspension of Her Ladyship's judgment, had no practical effect on the status quo ante.

On this basis alone, namely, that, even if it were to be accepted that one's election into the management committee of a co-operative society is a right accruing to oneself, in one's personal capacity, for the purposes of an interdict, I would dismiss the application because no such right has been established.

The applicant is a Member of Parliament representing the Mutare Central Constituency. He filed this application, essentially, in terms of section 167(2)(d) of the Constitution of Zimbabwe, 2013 (hereafter 'the Constitution') albeit with passing references to section 85 of the Constitution. In fact, in his answering affidavit, the applicant made it abundantly clear that the application was indeed solely in terms of section 167(2)(d) of the Constitution.

Thus, any references to section 85 of the Constitution shall be taken merely as means to bolster the principal cause of action, and not as a separate cause of action.

Initially, the applicant sought an order in the terms set out below:

“IT IS HEREBY DECLARED THAT:

1. The passage of Constitutional Amendment Bill (No.1) of 2017 in Parliament on the 4th of May 2021 be and is hereby set aside on the basis that the bill had lapsed in July of 2018 and therefore its passage was in breach of section 147 of the Constitution of Zimbabwe:

Therefore:

(i) The actions of Parliament, in passing Constitutional Amendment Bill No.1 of 2017, are in breach of the provisions of section 147 of the Constitution of Zimbabwe.

(ii) The actions of the President of the Republic of Zimbabwe, in assenting to Constitutional Amendment Bill No.1, are in breach of section 147 of the Constitution of Zimbabwe.

(iii) Constitutional Amendment No.1 Act of 2017, gazetted on the 7th of September 2017, be and is hereby set aside.

2. That, the judgment of the Constitutional Court, in the case of Innocent Gonese & Jessie Majome v The Speaker of Parliament & Others CC04-20, directing that part of the disposition of the Constitutional Court directing Senate passes Constitutional Amendment Bill No.1, within 180 days from the declaration of invalidity, be and is hereby declared to be a nullity in breach of section 147 of the Constitution of Zimbabwe.

3. 2nd Respondent must pay cost (sic) of suit.”

I have deliberately used the word “initially” for reasons that will shortly become apparent.

The application relates to the enactment of Constitution of Zimbabwe Amendment (No.1) Act 2017. The relevant facts are all common cause:

On 25 July 2017, the National Assembly passed Constitutional Amendment (No.1) Bill 2017. Thereafter, on 1 August 2017, the Senate purported to pass the same Bill. On 7 September 2017, the President assented to the Bill. The Bill was published in the Government Gazette, promulgated as law, and thereafter became known as Constitution of Zimbabwe Amendment (No.1) Act, 2017.

It is crucial to note, that, a few days prior to the President's assent, the applicant, and a fellow Member of Parliament, had filed an application, under case number CCZ57/17, in terms of section 167(2)(d) of the Constitution, alleging that the second respondent had failed to fulfil a constitutional obligation.

Subsequent to the promulgation of Constitution of Zimbabwe Amendment (No.1) Act 2017, the applicant, together with his fellow Member of Parliament aforesaid, filed another constitutional application, under case number CCZ58/17, on 13 September 2017. They alleged that the second respondent had failed to fulfil a constitutional obligation by its passing of a constitutional bill in the absence of a two-thirds majority as required by section 328 of the Constitution.

The applications under CCZ57/17 and CCZ58/17 were consolidated and heard on 31 January 2018. After hearing the parties submissions in respect of those applications, this Court reserved its judgment.

Pending the delivery of the judgment, the country underwent harmonised general elections on 30 July 2018. Thus, Parliament stood dissolved at midnight on 29 July 2018, the day before the first polling day of the general election in terms of section 143 of the Constitution.

On 31 March 2020, this Court passed judgment in respect of the applications under CCZ57/17 and CCZ58/17. That is, the judgment of Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20 (hereafter referred to as 'CC04-20').

The operative part of that judgment reads as follows:

“1. It is declared that the passing of Constitutional Amendment Bill (No.1) of 2017 by the Senate on 01 August 2017 was inconsistent with the provisions of section 328(5) of the Constitution, to the extent that the affirmative votes did not reach the minimum threshold of two-thirds of the membership of the House. Constitutional Amendment Bill (No.1) of 2017 is declared invalid to the extent of the inconsistency. The declaration of invalidity shall have effect from the date of this order but is suspended for a period of one hundred and eighty days, subject to the provisions of paragraph 1(b).

Accordingly, the following order is made –

(a) The proceedings in the Senate, on 01 August 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and are hereby set aside for the reason that a two-thirds majority vote was not reached in that House.

(b) The Senate is directed to conduct a vote in accordance with the procedure for amending the Constitution prescribed by section 328(5) of the Constitution within one hundred and eighty days of this order, failing which the declaration of invalidity of Constitutional Amendment Bill (No.1) of 2017 in paragraph (1) shall become final.

2. The applicants allegation, that, there was no vote in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

3. The applicants allegation, that a two-thirds majority was not reached in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

4. There is no order as to costs.”

For reasons that are not pertinent to the present application, the Senate failed to conduct another vote within the period that was set out in paragraph 1(b) of the judgment under CC04-20.

As a result, the first and second respondents, and the Speaker of the National Assembly, implored this Court, by application, to extend the period that had been set out for conducting a second vote under case number CCZ11/20. The application was heard on 10 November 2020 and judgment was reserved.

On 25 February 2021, judgment was delivered in that application as the judgment of President of the Senate & Ors v Gonese & Ors CC01-21 (hereafter referred to as 'CC01-21'). The order passed in CC01-21 reads:

“Accordingly, I make the following order:

1. The application is granted.

2. The period referred to in para (b) of the order handed down on 31 March 2020 is extended by a further ninety days from the date of this order.

3. Each party shall bear its own costs.”

I digress briefly to foreshadow that I will advert to more comprehensively later in this judgment.

In view of the above order, the Senate conducted another vote on the Constitutional Amendment (No.1) Bill of 2017.

On 4 May 2021, it passed the Constitutional Amendment Bill (No.1).

The applicant contends, that, the passage of the Bill in the manner aforesaid, on 4 May 2021, is unconstitutional.

He principally considers the second and third respondents to have failed to fulfil constitutional obligations in the passage of the Bill contrary to the provisions of section 147 of the Constitution.

The applicant also considers the impugned conduct of the respondents to have been accentuated by the simultaneous violation of his rights under section 56(1) of the Constitution.

However, this last contention does not appear to have been persisted in with much vigour and conviction considering that the applicant stated, unambiguously, that, his application was solely in terms of section 167(2)(d) of the Constitution. In fact, the amicus considers this as the applicant's “fringe” contention.

At any rate, in my view, there would be no need to invoke section 56(1) of the Constitution where the cause of action is one of failure to fulfil a constitutional obligation as that situation is specifically provided for sufficiently in section 167(2)(d) of the Constitution, and requires no additional colouring through such invocation: compare Central African Building Society v Stone & Ors SC15-21.

All the respondents opposed the application.

They deny that their conduct, in the passage of Constitutional Amendment (No.1) Bill of 2017, was in violation of section 147 of the Constitution. Instead, they contend, that, their actions are predicated on a valid order of this Court handed down under CC04-20. They also maintain that none of the applicant's rights was violated by their conduct....,.

On 15 March, the parties then advanced their oral submissions in respect of the application.

Counsel for the applicant stated, that, the critical issue for determination was whether the passage of Constitution of Zimbabwe Amendment (No.1) Act of 2017, on 4 May 2021, breached section 147 of the Constitution.

To him, the crucial thing was to assess the status of the Bill as of 29 July 2018, which is the date on which Parliament stood dissolved.

The date the judgment of this Court, in Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20 was delivered was immaterial.

Citing decisions of this Court and the Supreme Court, counsel for the applicant stated, that, the order of this Court in CC04-20 merely confirmed the invalidity of Constitution of Zimbabwe Amendment (No.1) Act, which occurred in August 2017 when that Act was purportedly passed. It was, therefore, not a licence for the Senate to violate section 147 of the Constitution.

Accordingly, he submitted, that, Constitution Amendment (No.1) Bill lapsed when Parliament was dissolved on 29 July 2018.

In respect of the allegations that the applicant's constitutional rights were violated by the conduct of the respondents, counsel for the applicant submitted, that, section 56(1) of the Constitution does not qualify the nature of protection afforded by the section. In his view, the subsection had the same meaning as the equivalent provision under the previous Constitution of Zimbabwe.

Regarding the relief sought by the applicant, counsel for the applicant emphasised that the applicant simply sought a declaration that the passage of Constitution of Zimbabwe Amendment (No.1) Act, on 5 May 2021, was in breach of section 147 of the Constitution.

He formally abandoned the second paragraph of the applicant's draft order set out above.

He added, that, should the Court grant the declaratory relief sought, the order should not have retrospective effect.

Counsel for the applicant also abandoned his preliminary challenges to the authorities of the deponents to the first and second as well as the third respondent's opposing affidavits.

Counsel for the first and second respondents indicated, that, he was persisting with the preliminary points that he raised:

(i) Firstly, he submitted, that, the Court had no jurisdiction as the applicant had improperly joined the President of the Senate to the President and Parliament in an application under section 167(2)(d) contrary to the judgment of this Court in Mliswa v Parliament of the Republic of Zimbabwe CC02-21.

(ii) Secondly, he submitted, that, the applicant had no cause of action because the conduct of the respondents was in compliance with an order of this Court.

On the merits, counsel for the first and second respondents stated, that, the retrospective application of the order passed in CC04-20 was limited. Further, the Court had the power to limit the retrospective application in terms of section 175(6)(b) of the Constitution. Therefore, the provisions of section 147 could not have been breached, so his submissions went.

Counsel for the third respondent also put up ardent opposition to the application.

Essentially, he took three points in response to counsel for the applicant's submissions. He prefaced those points by stating that there are three broad steps in the enactment of a law. These are:

(i) The consideration of a Bill by the National Assembly;

(ii) The consideration of the same Bill by the Senate;

(iii) The President's assent to the Bill as the last step;

Counsel for the third respondent's first point was, that, the Presidential assent to the Bill, in 2017, was not set aside by this Court. Therefore, there was no failure by the third respondent to “re-gazette” the Bill as the applicant had pleaded.

His second point was that when Parliament was dissolved, in July 2018, there was no Constitution Amendment (No.1) Bill. It had become an Act. This meant, that, the declaration by this Court could not have affected the status of that Act as it had limited retrospective effect.

Counsel for the third respondent's third point was, that, section 147 of the Constitution does not impose an obligation on the third respondent. In the absence of such, there cannot be a constitutional obligation that the third respondent breached.

All the respondents prayed for the dismissal of the application.

Mr Zhuwarara, the amicus curiae, made submissions last.

His first submission was, that, the moment the applicant adverted to violations in terms of section 85 of the Constitution, he was obliged to allege that a fundamental right was infringed and to seek relief that is consistent with Chapter 4 of the Constitution. He further submitted, that, the applicant failed to base his relief on Chapter 4 of the Constitution and that ought to be the end of the matter.

On the merits of the application, the amicus submitted, that, judgments of the Constitutional Court are final. On this basis, the judgment in CC04-20 could not be revisited.

While agreeing that the Constitutional Court cannot pass unconstitutional judgments, he stated that this was not the situation in casu.

Proceeding from this point, he added, that, in terms of section 175(6)(b) of the Constitution, this Court passes corrective orders. For this reason, the order of this Court, and the subsequent passage of the Bill by the Senate, did not violate the Constitution.

Mr Zhuwarara concluded his submissions by stating, that, the applicant's rights, in section 56 of the Constitution, could not have been violated because the applicant failed to identify a similarly positioned person who was afforded a favour.

The respondents raised several preliminary objections in these proceedings. However, in their oral submissions they emphasized and focused only on the following:

(a) That, there is no cause of action against the respondents.

(b) That, it was improper to cite the first respondent in an application under section 167(2)(d) of the Constitution.

While counsel for the first and second respondents is of the view, that, there cannot be any perceivable cause of action against the respondents as they were acting in accordance with an order of this Court, counsel for the third respondent considers the cause of action to be unclear.

Without exception, the Rules require an applicant to set out all essential averments that are necessary to clarify and motivate the cause of action: see Rule 14(4)(d) of the Constitutional Court Rules.

See also Apex Holdings (Pvt) Ltd (in liquidation) & Anor v Venetian Blinds Specialists CC11-19…,.

This rule is in line with the salutary principle of pleading, which has become the gold standard in our jurisdiction, that, an application stands or falls on the founding affidavit: see Kufa & Anor v President of the Republic of Zimbabwe & Ors CC22-17…,.; Chani v Justice Hlekani Mwayera & Ors CC02-20…,.; Chironga & Anor v Minister of Justice, Legal & Parliamentary Affairs CC14-20…,.; and Mpofu v ZERA & Ors CC13-20…,.

A failure to set out the cause of action entitles a respondent to seek the dismissal of an application as of right: see HERBSTEIN and Van WINSEN “The Civil Practice of the High Courts and the Supreme Courts of Appeal of South Africa” 5th Ed. Vol 1…,.

The requirements of an application made in terms section 167(2)(d) of the Constitution are that one must identify a functionary [the President/Parliament] and a constitutional obligation that the functionary is alleged to have failed to fulfil: see Chirambwe v President of the Republic of Zimbabwe & Ors CC04–21…,. and Mliswa v Parliament of the Republic of Zimbabwe CC02–21…,.

It automatically follows, that, the applicant cannot sustain a cause of action against the first respondent because the first respondent is not a functionary against whom an application in terms section 167(2)(d) of the Constitution can be made.

Thus, the case as against the first respondent stands to be struck off without further ado.

In respect of the second and third respondents, I am inclined to hold, that, there is a cause of action against those functionaries.

In his founding affidavit, the applicant does identify the second and third respondents as functionaries upon whom constitutional obligations rest. He also identifies the constitutional obligations that Parliament and the President failed to fulfil.

Against the President, he states that failure to gazette Constitutional Amendment Bill (No.1) of 2017 in terms of section 131(6) of the Constitution is an illegality. Against Parliament, he essentially alleges, that, it failed to respect the Constitution by conducting a vote on a Bill that had lapsed contrary to section 147 of the Constitution.

However, the truthfulness or otherwise of the applicant's allegations against the second and third respondents stands to be determined in the process of the assessment of the merits of his application.

Accordingly, I am satisfied that there is a cause of action against the second and third respondents in so far as the application is based on section 167(2)(d) of the Constitution.

This is an appeal against part of the judgment of the High Court sitting at Bulawayo, dated 2 May 2019.

The court a quo granted the following order:

1. That, the purported Deed of Sale concluded by the parties on 26 January 2010, in respect of a portion of Umguza 100 Acre Lot 5A be and is hereby confirmed to be null and void for want of compliance with the mandatory provisions of the Regional, Town and Country Planning Act [Chapter 29:12].

2. That, the plaintiff's claim for payment by the defendant of reasonable rentals and holding over damages be and is hereby dismissed with costs.

3. That, the plaintiff be and is hereby ordered to pay to the defendant the sum of $125,000 being compensation for improvements effected by the defendant on the plaintiff's property.

4. That, the prescribed rate of interest be levied on the amount under (3), supra, with effect from 24 June 2015 to the date of full payment.

5. That, the plaintiff pays costs of suit.

The part under appeal relates to paragraphs 3, 4 and 5 of the order. The appellant is also aggrieved by the court a quo's failure to pronounce itself on the claim for eviction in that order.

The facts that are relevant to this appeal are common cause. The appellant sadly passed away on 24 August 2019, before the appeal was heard. He was, by order of this Court, substituted, on 22 July 2020, by his duly appointed executor dative, who also happens to be his son.

The appellant is the registered title holder of Umguza 100 Acre Lot 5A in the District of Bulawayo measuring 67,2123 hectares held under Deed of Transfer No.74/91 (the immovable property). It is situated in the outskirts of Bulawayo and falls under the administrative jurisdiction of the Umguza Rural District Council.

On 17 August 2000, the appellant sought, but failed, to obtain a sub-division permit for the property into units of less than five (5) hectares. The responsible authority adjudged any plots that were less than five (5) hectares not to be viable for agriculture.

The respondent resided on a fully developed six (6) acre plot in the vicinity of the appellant's immovable property.

On 12 January 2010, in anticipation of an agreement of sale to be consummated with the appellant, the respondent sold his plot for the sum of R225,000.

On 26 January 2010, the parties concluded a written agreement for the sale of 10 acres (4,047ha) of the immovable property (the plot) for the sum of US$20,000.

A deposit of US$10,000 was to be paid before the respondent could take occupation.

The balance was payable at the rate of US$2,000 per month from 1 May 2010.

The other terms and conditions of the agreement were that the respondent would “pay the cost of all transactions connected with the transfer of the property, all charges of capital gains, and draw electric power to the homestead of the seller.”

The respondent duly paid the deposit and took occupation on 1 April 2010.

His building plans were approved by the Umguza Rural District Council on 3 April 2010. He constructed a three bedroom cottage and a four bedroom main house in 2010. In 2011, he installed electricity infrastructure for his two dwellings and the appellant's homestead but only drew electricity to his dwellings. He flushed a borehole previously sunk by the appellant, constructed two (2) septic tanks and two (2) blair toilets. He also put up a perimeter fence around “his” plot.

It was common cause that he expended the total sum of US$34,158=75 and R2,220 on these developments.

The relationship between the appellant and the respondent deteriorated soon after the respondent took occupation of the property.

The appellant refused to accept the instalments tendered by the respondent and demanded that the respondent keep his money while he kept his land.

The respondent tendered the balance of the purchase price, and, when it was rejected, he issued summons for specific performance in HC491/11.

Thereafter, with the help of their legal practitioners, a compromise was reached between the parties but was not honoured.

In the result, the appellant then sued the respondent for the payment of the balance of the purchase price, in the sum of US$10,000, in HC2828/12.

During this tumultuous period, unbeknown to the respondent, the appellant sought to regularize the sale of the plot by applying for a subdivision permit to the department of Physical Planning Offices in Bulawayo on 10 January 2011.

It was only in or about October 2012 that the respondent became aware that the appellant did not have a sub-division permit entitling him to subdivide the immovable property and sell the plot.

On 27 February 2013, acting on the appellant's request, the respondent paid US$550 to the appellant's former legal practitioners for the processing of a belated sub-division permit.

Notwithstanding that the immovable property measured 67,2123ha, a permit for the subdivision of the immovable property into two Stands measuring 4,047 and 37,6961 hectares was duly issued on 29 April 2013.

The permit, however, turned out to be a fake document.

Acting on the erroneous belief that the permit was genuine, on 6 June 2013 and 30 January 2014, the respondent paid US$5,000 and US$4,000, respectively, towards the purchase price.

The respondent, therefore, paid to the appellant a total sum of US$19,000 for the purchase of the plot.

He, in addition, expended US$34,158=75 and R2,220 in the development of the immovable property.

By the time a pre-trial conference was held a quo, both parties had withdrawn their earlier actions against each other.

At the pre-trial conference, the parties agreed, inter alia, that their agreement of sale was invalid and illegal for breaching section 39(1)(i) and section 40 of the Regional, Town and Country Planning Act. This was because it had been concluded without a subdivision permit.

Consequently, the appellant tendered the purchase price of US$19,000 and sought the eviction of the respondent from the plot.

He also claimed an ascertainable amount for unjust enrichment for the period of the respondent's stay to the date of his eviction.

The quantum for the enrichment claim was based on what the appellant perceived to be the reasonable rentals that the respondent would have paid for the occupation of the property.

He, therefore, claimed US$18,000 for the occupation of the plot from March 2010 to April 2015 and “holding over damages at the rate of US$10 per day…, from 1 May 2015 to the date of vacation” and costs on the higher scale.

The respondent contested the action.

He disputed being unjustly enriched and averred, that, he was a bona fide occupier by virtue of the invalid agreement. He also averred, that, in the absence of a lease agreement, the appellant did not have a valid cause of action for the payment of reasonable rentals and holding over damages.

He, in turn, counter claimed for unjust enrichment for the improvements he had made on the immovable property.

He averred that the appellant was enriched at his expense by these improvements.

He further alleged that the appellant was enriched by the payment of US$19,000 towards the purchase price and US$550 for the procurement of the subdivision permit.

The respondent, therefore, sought the repayment of the denominated amounts; a refund of the expenses incurred in erecting the electricity infrastructure; and the depreciated replacement cost (being the current cost of reproduction or replacement of an asset less deductions for physical deterioration, obsolescence and optimization) of the improvements he made on the plot.

He specially entreated the court to award him “such payments as will be sufficient to enable the defendant to purchase a property of comparable value including all the improvements he had effected.”

He also sought interest at the prescribed rate from the date of summons to the date of payment in full and costs on the higher scale.

In his plea to the counter-claim, the appellant, again, tendered the refund of US$19,000.

He disputed to being unjustly enriched by the developments made by the respondent on the immovable property. He averred, that, the respondent had failed to draw electricity to his homestead and had fraudulently facilitated the issuance of the fake permit. He also alleged that the respondent's dwellings were constructed without his authority and that he was therefore a mala fide occupier. Lastly, he stated that these dwellings would not be useful to him.

The two issues referred to trial a quo where whether or not:

1. The appellant was entitled to a reasonable rental arising from the respondent's occupation of the plot; and

2. The defendant has been unjustly impoverished, and plaintiff unjustly enriched, as a result of the alleged developments made by the defendant upon the plot; and, if so, the quantum thereof.

The court a quo confirmed the invalidity of the agreement of sale on the ground that it was contrary to the mandatory dictates of sections 39(1)(i) and 40 the Regional, Town and Country Planning Act.

The confirmation was in accordance with established authority emanating from this Court in such cases as X-Trend–A Home (Pvt) Ltd v Hoselaw (Pvt) Ltd 2000 (2) ZLR 348 (S) and City of Gweru v Kombayi 1991 (1) ZLR 333 (S).

It held, on the authority of Magodora & Ors v Care International Zimbabwe 2014 (1) ZLR 397 (S)…, that a lease agreement could not possibly be extrapolated from the invalid agreement of sale; and, resultantly, dismissed the claim for rentals and holding over damages sought by the appellant in the main.

It is clear from a reading of the judgment, that, the court a quo did not relate the request for reasonable rentals and holding over damages to the appellant's own enrichment claim against the respondent.

The appellant pleaded such a cause of action.

He testified during the trial, that, the respondent derived benefit from the farming activities he conducted on the plot. He also asserted that another benefit that accrued to the respondent was in the form of rental savings that he would have been obliged to pay elsewhere but for his stay on the plot.

These assertions were not, and could not, be controverted by the respondent.

However, it appears that counsel for the appellant misconceived the appellant's case and did not pursue the claim to fruition.

The court a quo, on the basis of credibility findings and the probabilities of the case, further found the respondent to have been a bona fide occupier and the appellant a mala fide seller.

Consequently, it relaxed the in pari delicto rule in favour of the respondent.

It, thus, held that the appellant had been unjustly enriched at the expense of the respondent, who was concomitantly impoverished by the transaction.

The court a quo, therefore, upheld the respondent's counter claim.

In computing the measure of the benefit that accrued to the appellant, the court a quo applied the pari delictum rule.

In the exercise of its broad discretion, it relaxed the pari delictum rule in a bid to do justice between the two protagonists.

It had no difficulties in finding the appellant to have been enriched in the sum of US$19,550 constituted by the payments towards the purchase price and the facilitation of the procurement of the sub division permit.

The correctness of this finding is beyond question.

After all, the appellant did not retract his tender of US$19,000, and conceded the payment of US$550 for the stated purpose.

The parties disagreed on whether or not the respondent was entitled to compensation for the improvements that he made on the immovable property.

The appellant submitted a quo that the respondent was not entitled to the value of the improvements:

(i) Firstly, because the respondent had not properly framed them under the enrichment cause of action in his pleadings.

(ii) The second was that the improvements were not, nor would they be, useful to him.

He, in any event, agitated for their urgent removal from his property.

The court a quo held, that, while on the pleadings, the cause of action for the improvements was poorly and inelegantly framed, the respondent had obliquely included them in his enrichment cause.

Further, that the purported defective pleadings had, in any event, been amplified and cured:

(i) Firstly, by the inclusion of the developments in the second issue referred to trial at the pretrial conference; and

(ii) Secondly, by the overwhelming evidence adduced by the respondent at the trial together with the scope and tenor of the questions asked and answers rendered during cross examination.

The court a quo also held, on the authority of Reza v Nyangani 2001 (1) ZLR 202 (S)…, that usefulness was to be measured objectively, and not subjectively, on the basis of added value.

It, therefore, found the improvements to be objectively useful to the appellant. It also found that they could not be removed because they were fixed to the immovable property.

The court a quo estimated the added value of the improvements at $125,000 and not US$132,833=33 claimed by the respondent.

It adopted the lowest depreciated replacement value of $90,000 provided in one of the three valuation reports produced in January 2018. The court a quo then added the depreciated replacement value of the plot, estimated in two of the valuation reports at $35,000, to this figure.

It, therefore, awarded the aggregate amount of $125,000 to the respondent as a fair and equitable amount that adequately represented the enrichment that accrued to the appellant and constituted his concomitant impoverishment.

Lastly, the court a quo declined to immediately evict the respondent from the immovable property on two grounds:

(i) The first was that he had a real improvement lien on the property, dischargeable on full payment of the award.

(ii) The second was that the respondent had invested all the resources he had on the plot.

To evict him from the plot, empty-handed, would not only be intolerable, but, would consign him and his family to the indignity of homelessness and destitution.

I quote below the concluding remarks of the court a quo in this regard. At p15 of its cyclostyled judgment, it stated that:

“This Court firmly believes that this is a proper case to exercise its discretion in the interest of equity and fairness by ordering that the defendant be evicted only upon payment of the full compensation ordered by the court per the defendant's counter-claim. This is mainly because the defendant has a real lien over the portion of the land in issue.”…,.

Notwithstanding the firm belief, the court a quo omitted to make the contemplated order of eviction in the final order that issued.

The appellant initially raised six grounds of appeal. At the commencement of the appeal hearing, in Bulawayo, counsel for the appellant moved for the deletion of the second ground of appeal and the amendment of the fourth ground.

Counsel for the respondent did not oppose the amendments.

We, accordingly, granted the amendments by consent of the parties.

Resultantly, the following five grounds of appeal remained in contention:

1. The Honourable Court a quo misdirected itself in law in holding, that, despite the respondent's failure to plead unjust enrichment with regards to the improvements upon the property at issue, such failure to specifically plead unjust enrichment was curable by the evidence.

2. The court a quo misdirected itself at law by failing to order either for or against the appellant on a claim of eviction of the respondent from the appellant's land when such a claim was put before the court a quo for determination by that court.

3. The court a quo misdirected itself in its application of the law in awarding what amounts to contractual damages in the relaxation of the in pari delicto principle in that the court a quo relied on valuations provided by the respondent, when, in fact, the court a quo could only have relied on the actual proof of expenditure upon such land having been pleaded and proof provided.

4. The Honourable Court a quo erred in ordering that interest on the judgment debt be paid by the appellant from 24 June 2015, when, in fact, the valuation relied upon for the monetary award in issue was done in 2018.

5. The Honourable Court a quo misdirected itself at law by ordering that the appellant pays the costs, when, in fact, the appellant was partially successful in the court a quo.

The relief sought from these grounds of appeal was:

(i) Firstly, that the appeal succeeds with costs.

(ii) Secondly, that the judgment a quo be altered by setting aside the paragraphs relating to the payment of the sum of $125,000, interest, and costs. These were to be substituted by an award for the payment of the purchase price paid of $19,000 and the actual expenditure proved to have been incurred in the improvements to the immovable property in the sum of $34,158=75 and ZAR2,220. The interest on these sums was to run from the date of the order and each party was to bear his own costs.

The appellant further sought the inclusion of an order of eviction to the substituted order.

The issues that arise from the grounds of appeal are these:

1. Whether or not the court a quo erred in finding that the respondent had proved his case and was therefore entitled to damages for unjust enrichment.

2. Whether or not the court a quo erred in relaxing the pari delicto rule and in awarding the respondent compensation in the nature of contractual damages.

3. The date on which interest should commence to run and the appropriateness of a cost order against the appellant a quo.

During counsel for the appellant's oral submissions, it appeared to the court that the parties required an opportunity to attempt settlement of the matter. Counsel for the respondent was amenable to such a course of action.

The parties requested for a period of three (3) weeks to pursue the attempt at settlement.

We accorded them the opportunity to do so. The matter was accordingly postponed for continuation in Harare on 24 August 2020.

The attempt at settlement was, however, not successful.

The appeal proceeded in Harare.

Mr G Ndlovu, substituted Mr Masiye-Moyo as counsel for the appellant at the resumed hearing.

Counsel for the appellant made the following submissions:

That, the court a quo erred in awarding compensation for improvements under the enrichment cause in circumstances where the respondent had not specially pleaded such a cause.

While he conceded that the respondent had, in oral testimony, specifically premised his claim for compensation for the improvements on unjust enrichment, he argued that oral testimony could not, in law, cure such a glaring defect in his pleadings.

We directed counsel for the appellant's attention to the averments, as amended by consent of the parties at the hearing a quo on 16 January 2018, embodied in paragraphs 3, 4 and 5 of the respondent's counterclaim (on p40 of the record of proceedings) and paragraph 4.1 of his replication to the appellant's plea in reconvention (on p48 of the record of proceedings).

Counsel maintained, that, these averments did not specifically plead unjust enrichment in respect of the improvements but only did so in regard to the purchase price and the amount paid to procure the subdivision permit.

Counsel for the appellant further argued, that, as no contractual rights could ever arise or be enforceable from an illegal agreement, it was incompetent:

(i) Firstly, for the respondent to pray for “contractual damages” under an enrichment claim; and

(ii) Secondly, that while the court a quo correctly relaxed the in pari delicto principle in this case, it was also incompetent for it to award such “contractual damages” to the respondent.

The court a quo had done so, the argument went, by awarding compensation which included the amount of money that the respondent would require to purchase a piece of land similar in size to the one he had lost; and, by further awarding an aggregate sum which would enable the respondent to erect structures of an equivalent value to the improvements.

He contended, that, an award of compensation based on improvements was limited to the actual expenses incurred by the respondent.

He also contended, that, it was against public policy, and therefore improper, for any court of law to accord judicial recognition to and approval of an illegal and void agreement. To do so would undermine the tenets of public policy upon which the in pari delicto principle was premised.

Lastly, he conceded that an improvement lien constituted part of our law.

He, however, argued that such a right of retention could not avail any party whose improvements flowed from an illegal agreement.

Concomitantly, the court a quo, therefore, misdirected itself in failing to grant the order of eviction to the appellant.

Counsel for the respondent made contrary submissions:

(i) Firstly, he contended that the respondent had actually pleaded unjust enrichment not just for the actual expenditure he incurred in purchasing the plot, in procuring the permit, and drawing electricity to the appellant's homestead, but, also for the improvements.

(ii) Secondly, that, on the authority of Reza v Nyangani 2001 (1) ZLR 202 (S) and Derby Farms (Pvt) Ltd v Chirunga HH82-07…, once the court relaxed the in pari delicto rule it had the further discretion to do justice between the parties by awarding an equitable amount of the value added by the improvements. In so doing, the court could consider the real and not the nominal value of the improvements.

He argued, that, in Reza v Nyangani 2001 (1) ZLR 202 (S), this Court had ignored the exact expenditure that had been incurred in favour of the depreciated replacement value of the improvements. This was because, by the time the dispute was adjudicated, the actual expenses were too negligible while the depreciated replacement value, which catered for the fall in the value of money, represented the fair and equitable value added to the property by the improvements.

He, therefore, contended, that, the respondent was entitled to the value added to the immovable property by the improvements and not just the actual expenditure he had incurred.

Hence, his submission that the correct value added to the immovable property by the improvements was constituted by the depreciated replacement value of such improvements.

Finally, he submitted that the invocation of the improvement lien was again an exercise of the court's discretion, which the appellant had not, and could not, impugn on any of the irrationality grounds known to our law articulated in the case of Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S).

He, however, conceded, in exchanges with the court, that the court a quo failed to capture the conditional eviction of the respondent in the operative part of its order.

He entreated us to exercise the powers conferred on the Supreme Court by section 22(1)(b)(ix) of the Supreme Court Act [Chapter 7:13] to “correct” the order and achieve justice between the parties.

In reply, counsel for the appellant, argued that both this Court and the High Court had adopted the depreciated replacement value in decided cases because of the endemic hyperinflation that characterized the local economy at the time.

He sought to distinguish the two cases cited by counsel for the respondent from the present case on the basis, that, this country did not experience similar inflationary pressures but was stable between 2010, when the actual expenses were incurred, and 2019, when the enrichment order was granted.

Counsel for the appellant, however, conceded that this Court could, in terms of section 22(1)(b)(ix) of the Supreme Court Act, correct the omission to grant the conditional eviction in the operative part of the order of the court a quo rather than remit the case for this to be done.

The requirements for an action of unjust enrichment were set out by ZIYAMBI JA in Gamanje (Pvt) Ltd v City of Bulawayo SC94-04…, in the following terms:

“The requirements for an action for unjust enrichment are:

(i) Firstly, that the defendant has been enriched by the receipt of a benefit;
(ii) Secondly, that he has been so enriched at the expense of the plaintiff;
(iii) Thirdly, that the enrichment is unjustified (in the sense that it would be unjust to allow the defendant to retain the benefit);
(iv) Fourthly, that the enrichment must not come within the scope of one of the classical enrichment actions; and
(v) Fifthly, there must be no positive rule of law which refused an action to the impoverished person.

See Industrial Equity v Walker 1996 (1) ZLR 269 AT P 300; See also Wille's Principles of South African Law, 8th edition, at pp633-5.”

To the same effect is Du PLESSIS in his seminal work The South African Law of Unjustified Enrichment, Juta, 2012…, where he writes that:

“To succeed with a claim based on unjustified enrichment, the plaintiff must meet four general requirements, or, as it is sometimes said, four general elements of enrichment liability have to be present. (i) First, the defendant must be enriched;
(ii) Secondly, the plaintiff must be impoverished;
(iii) Thirdly, the defendant's enrichment must be at the plaintiff's expense; and
(iv) Finally, the defendant's enrichment must be unjustified, which means that it must be without legal ground (sine causa).”

In the court a quo, and in this Court, the appellant conceded that the respondent had pleaded and proved unjust enrichment in respect of the part payment of the purchase price in the sum of US$19,000.

Counsel for the appellant, however, argued a quo, and in this Court, that, the respondent was not entitled to the measure of enrichment based on the valuations produced a quo:

(i) Firstly, because unjust enrichment was not specifically pleaded and could not, as held by the court a quo, be properly cured by evidence.

(ii) Secondly, because the award granted a quo was for contractual damages and not for unjust enrichment.

The law on what constitutes a cause of action is settled.

A cause of action is simply a factual conspectus, the existence of which entitles one person to obtain from the court a remedy against another person. In other words, it is an entire set of facts upon which the relief sought stands: see Peebles v Dairiboard (Private) Limited 1999 (1) ZLR 41 (H)…, and Abrahamse & Sons v SA Railways and Harbours 1933 CPD 626…,.

To determine whether the respondent raised an enrichment cause on the improvements, regard must be had to his plea to the appellant's declaration in the main matter, and to the subsequent averments he made in his counterclaim.

The facts pleaded by the respondent, upon which his relief rested appear in paragraph 10.2 of his plea and paragraph 3 of the appellant's replication in convention; paragraphs 2, 3, 4 and 5 of his counterclaim, as amended on the first day of trial a quo (16 January 2018). It is also necessary, for completeness, to refer to paragraph 1 of the appellant's plea to the counter-claim and paragraph 1 of the respondent's replication.

I set these below:

“RESPONDENT'S PLEA IN CONVENTION

10.2 The defendant avers that if the contract were to be found to be null and void then he stands to be prejudiced and the plaintiff to be unjustly enriched, because, in pursuit of his obligations in terms of the sale, he had built a house on the land, paid US$19,000 to the plaintiff, commenced to draw electricity to the plaintiff's homestead, and, through his own funds, facilitated the issue of a subdivision.

WHEREFORE, the defendant prays for the dismissal of the plaintiff's claims with costs on the punitive scale.

In the event, however, that the Honourable Court holds that the agreement is null and void, then, the defendant prays that the plaintiff be ordered to compensate the defendant in such sum of money as at the time of judgment would be sufficient for the defendant to acquire a property of comparable value including all improvements effected by the defendant on the land in issue, a refund of the money spent in drawing electricity for the plaintiff's benefit, and money spent in procuring a subdivision permit.

1….,.

2. On 26 January 2010, the parties entered into an agreement of sale wherein the plaintiff sold and the defendant purchased an undeveloped piece of land identified in the agreement of sale as 'a portion of land 10 acres in extent being part of Plot 5A 100 Acres Lot, Bulawayo'.

3. In pursuit of his obligation in terms of the agreement of sale, the defendant paid to the plaintiff the total sum of US$19,000, and, inter alia, for the benefit of the plaintiff, commenced drawing electric power to the defendant's homestead and paid for the procurement of a subdivision permit by the plaintiff.

4. The defendant avers, that, the plaintiff has been unjustly enriched at his expense in that the defendant paid to the plaintiff the sum of US$19,000 which the plaintiff accepted, and further commenced to draw electricity for the benefit of the plaintiff, and paid to the plaintiff US$550 to procure or cause the procurement of a sub-division permit at his expense.

5. The defendant, as he is entitled to do, had developed the piece of land and he will be unfairly prejudiced if the improvements were to accrue to the plaintiff without any compensation from him.”

Plaintiff denies that he stands to be unjustly enriched from the property built by the defendant and avers that:

3.1 Defendant built the property contrary to a warning against such development by the plaintiff.

3.2 Plaintiff has no use for the property so built by the defendant as he already has other plans with regards to the use of the land upon which the defendant built the property.

1. There is no cause of action disclosed in the counter-claim.

1. Ad para 1

This is disputed. The defendant's cause of action is founded on a claim of unjust enrichment.

4.1 The defendant will accept payment in the sum of US$19,550 and persist in its claim for damages as contained in the counterclaim.”…,.

The above pleadings clearly show, that, the respondent specifically pleaded to an enrichment claim in respect of improvements in defence to the main action, but, did not specifically carry this through to the counterclaim.

The substance of the enrichment cause is, however, embodied in paragraph 5 of the counterclaim.

The deliberate use of choice words such as 'developed piece of land' 'improvements' 'unfairly prejudiced' 'accrued to plaintiff without compensation' connote a direct benefit to the appellant at the expense of the respondent and clearly encapsulate all the four requirements of an enrichment cause recognised in our law.

I am satisfied that the court a quo's finding, that the respondent did plead unjust enrichment in his counterclaim, is unassailable.

In Mtuda v Ndudzo 2000 (1) ZLR 710 (H)…, GARWE J…, held that where an issue is not raised in the pleadings but has been identified for determination at a pre-trial conference, and fully canvased at the trial, even if an amendment is not moved, a court is entitled to adjudicate on it.

This effectively means, that, a defective pleading will be cured by evidence.

To similar effect is HERBSTEIN and Van WINSEN's Civil Practice of the High Courts of South Africa, 5th ed by CILLIERS et al…, where it is stated, that:

“Even where no amendments have been applied for, both trial and appeal courts have adjudicated on issues not raised on the pleadings but fully canvassed at the trial.”

Again Du PLESSIS in The South African Law of Unjustified Enrichment, Juta, 2012 at p3 footnote 10 writes that:

“A plaintiff who initially pleads the incorrect action may be allowed to amend his claim (see Hughes v Levy 1907 TS 276). But, even if such a plaintiff did not amend his claim, the court can still award the action that he should have relied on, as long as its requirements were fully canvassed in evidence and the defendant would not be prejudiced by reliance on the incorrect action in the pleadings….,.

If the pleadings contain some of the customary allegations of a specific enrichment claim, and the defendant was alive to the basis of the claim, the defendant may not maintain a passive stance; he must raise an exception if he considers that the case has not been properly pleaded.”…,.

I note, in passing, that, the underlined words also accorded with Order 21 Rule 137 of the High Court Rules 1971.

This is an appeal against the whole judgment of the High Court of Zimbabwe handed down on 9 September 2020 in which it ruled that the arbitral award granted against the first respondent be set aside and the matter be referred to a different arbitrator.

The appellant and the first respondent entered into a consultancy contract which commenced on 1 January 2013 and was expected to terminate on 31 July 2013.

Although the contract was not signed by the first respondent, the parties were agreed that the contract regulated their relationship.

The purpose of the contract was to transform the appellant from being a building society into a commercial bank.

On 28 February 2013, the Managing Director of the appellant wrote a letter to the first respondent advising that it was not renewing the contract. It thus terminated the contract and tendered to pay the first respondent cash in lieu of notice.

Aggrieved by the contents of the letter, the first respondent referred the matter to arbitration.

The first respondent's contention before the second respondent (the arbitrator) was that the appellant had no right, in terms of clause 7.1 of the contract, to unilaterally, and without reason, terminate the contract. It argued, that, the appellant should have given it notice to cure the breach and/or an opportunity to defend itself.

It claimed that the contract should be reinstated failing which it be paid damages in the sum of US$1,744,451=50.

The appellant argued that it exercised its rights to terminate the contract on notice in terms of clause 7.1 of the contract. It argued that termination of the contract, in terms of clause 7.1, did not require the existence of a breach or fault as a pre-condition to invoke the clause. It further argued that it was therefore not obliged to justify or give the first respondent reasons for the termination.

The appellant further argued, that, the first respondent had breached the contract as it had failed to implement the project successfully within the agreed time frame and budget.

It contended, that, in order to mitigate its losses, it engaged another consultant to complete the project. It argued that it suffered contractual damages in the sum of US$1,648,169=91 as a result of the breach and filed a counterclaim for damages in the stated sum.

The appellant conceded, that, a monthly payment of US$23,517 for the month of March 2013 was due to the first respondent in terms of clause 4 of the contract.

The first respondent denied that it had breached any terms of the contract. It argued that the damages claimed by the appellant were wrongly calculated and incompetent.

The arbitrator made a finding, that, the termination of the contract was in compliance with clause 7.1 of the contract which clause permitted termination of the contract without giving reasons for the termination.

The arbitrator dismissed the first respondent's claim that the cancellation of the contract be declared a nullity and that the contract be reinstated.

He also dismissed the first respondent's claim for damages.

The arbitrator awarded the first respondent the sum of US$23,517 being the monthly payment for the month of March 2013 due to the first respondent from the appellant.

The arbitrator further held, that, the appellant had not established its entitlement to the damages in the sum of US1,648,169=91. He therefore dismissed the appellant's counterclaim.

Aggrieved, the first respondent applied to the High Court to have the arbitral award set aside in terms of Article 34(2)(b)(ii) of the Uncitral Model Law, Schedule to the Arbitration Act [Chapter 7:15] (the Model Law).

The first respondent argued that the arbitrator misdirected himself in his interpretation of the contract.

It was argued, that, the arbitral award offends the principles embodied in our public policy as the arbitrator was biased in his decision. It was submitted that the possibility of bias arose from the fact that the arbitrator and Kevin Terry, the Managing Director of the appellant, were known to each other. It was contended that the two engaged in a conversation at the hearing during which the arbitrator expressed more than a casual interest in the life of Kevin Terry. It further contended, that, the two had a prior relationship, and, as a result, the conversation was likely to give rise to a reasonable apprehension of bias on the part of the arbitrator and he ought to have recused himself.

The first respondent further argued that the arbitrator, in an opposing affidavit which he filed in response to the application before the court a quo, used intemperate and unacceptable language towards the first respondent. It was submitted, that, the language used was evidence that the arbitrator was supporting the appellant in proceedings in which he ought to have been neutral.

In response, the appellant submitted that the conversation between Kevin Terry and the arbitrator was done in the presence of all the parties. It was further submitted, that, the conversation did not relate to the subject matter of the arbitral proceedings. It was argued that the conversation was innocuous, and, therefore, there was no basis for the apprehension of bias.

The appellant further argued, that, the allegations relating to the intemperate language in the arbitrator's opposing affidavit were not the basis for the first respondent's apprehension for bias as they were contained in the answering affidavit and not the founding affidavit.

The court a quo was urged to disregard the arbitrator's opposing affidavit.

The court a quo found, that, the arbitrator's interpretation of the contract, though it was faulty, did not render the award contrary to public policy.

The court a quo held, that, the conversation between the arbitrator and Mr Kelly was innocuous and did not raise a reasonable apprehension of bias. It found that the first respondent did not raise the allegations of bias with the arbitrator during the arbitration process. The allegations were only raised after the decision of the arbitrator. It therefore concluded, that, the first respondent had not established reasonable apprehension of bias in the making of the award.

The court a quo, however, found that the arbitrator's post award averments, in the opposing affidavit, created an impression that he was “pitching camp” with the appellant.

It found that the averments were intemperate, disparaging, and unacceptable in judicial proceedings. The court a quo held, that, disparaging averments taken in conjunction with the conversation between the arbitrator and Mr Terry, and the faulty interpretation of the contract, gave a reasonable apprehension of bias.

Consequently, it ruled that the arbitral award be set aside and the matter be remitted to a different arbitrator.

Aggrieved by the court a quo's decision, the appellant noted the present appeal.

The appellant noted the appeal on the following grounds:

“(1) The court a quo erred and grossly misdirected itself on the facts and evidence in holding that the degree of fault in the arbitrator's reasoning in the award, and his alleged acquaintance with Kelvin Terry, gave rise to a reasonable impression and apprehension of bias on part of the arbitrator, and that, consequently, the award was contrary to the public policy of Zimbabwe.

(2) The court a quo erred and misdirected itself, and, in any event, in considering the factual basis of the alleged bias which allegedly took place three months after the granting of the award and therefore could not invalidate the prior award on the basis of the alleged bias.

(3) The court a quo erred in placing reliance on the opposing papers in finding that there was an impression of bias as opposed to the founding papers upon which the application ought to have succeeded or failed.

(4) The court a quo erred and acted without jurisdiction in referring the dispute between the parties to be determined by a different arbitrator.”

The grounds of appeal raise two issues for determination:

1. The first three grounds of appeal raise one issue: whether the court a quo misdirected itself in holding that there was a reasonable apprehension of bias warranting the setting aside of the arbitral award.

2. The second issue is raised in the fourth ground of appeal. In that ground, the appellant seeks to challenge the order of the court a quo to remit the dispute between the parties for determination by a different arbitrator on the basis that the High Court is not reposed, by the Arbitration Act, with the power to make an order for remittal.

Counsel for the appellant submitted, that, the judgment of the court a quo was irregular in that it set aside the award on a basis other than the one alleged by the first respondent in its founding affidavit.

He submitted that the first respondent, in the proceedings a quo, alleged, in its founding affidavit, bias of the arbitrator during the arbitral proceedings. He argued that an application stands or falls on its founding affidavit.

He further argued that the court a quo was therefore called to answer whether there was bias on the part of the arbitrator during the making of the award.

He submitted, that, the court a quo correctly concluded that the first respondent did not establish bias and hence the application ought to have failed on that basis.

Counsel for the appellant argued, that, the court a quo however placed a lot of emphasis on the arbitrator's opposing affidavit to the application instead of the first respondent's founding affidavit.

Counsel for the appellant further submitted, that, the court a quo made a finding that both the substance of the award and the manner of the making of the award were not contrary to public policy. Counsel for the appellant argued that the court a quo therefore misdirected itself in relying on the arbitrator's affidavit which was filed three months after the issuance of the award.

He also argued that the court a quo erred in making contradictory findings and thus reviewed itself.

He submitted, that, the court a quo found that the conversation between Kevin Terry and the arbitrator did not constitute a reasonable apprehension of bias. He argued that the court a quo, later in the same judgment, found that the same conversation constituted bias if it is read together with the arbitrator's opposing affidavit.

He submitted that the court a quo misdirected itself by taking into account factors it had rejected earlier in its judgment.

Counsel for the first respondent submitted, that, the court a quo could not be faulted for accepting the evidence adduced by the first respondent in support of its claim that the arbitrator was biased.

He argued that the issue of bias was raised in the first respondent's founding affidavit.

He submitted that the adverse averments in the arbitrator's opposing affidavit were alluded to in the answering affidavit to illuminate the allegations of bias in the founding affidavit.

He submitted, that, the court a quo did not misdirect itself in considering the arbitrator's conduct post the award. He submitted that the court a quo did not review itself but considered the arbitrator's pre-award conduct together with the post-award conduct.

It is trite that an application stands or falls on its founding affidavit.

The founding affidavit sets out the case that a respondent is called upon to answer.

The principle was aptly set out in Austerlands (Pvt) Ltd v Trade & Investment Bank Limited & Ors SC92-05. CHIDYAUSIKU CJ remarked…, as follows:

“The general rule that has been laid down in this regard is that an application stands or falls on the founding affidavit and the facts alleged in it. This is how it should be, because the founding affidavit informs the respondent of the case against the respondent that the respondent must meet. The founding affidavit sets out the facts which the respondent is called upon to affirm or deny.”

The first respondent alleged, in its founding affidavit in the court a quo, that the conversation between the arbitrator and Mr Terry was the basis for its apprehension of the bias of the arbitrator and the reason why the arbitrator arrived at a wrong decision.

It stated, in paragraph 9.10 of the founding affidavit, that:

“Finally, the inexplicable findings of the Honourable Arbitrator as illustrated above could only be understood in the contest (sic) of some other influence. I am constrained to give that influence as the unusual familiarity between the Honourable Arbitrator and Kelvin Terry the managing director of the 1st respondent.”

The appellant disputed that the conversation was a cause for an apprehension of bias.

The court a quo held that there was no basis for any reasonable person to have an apprehension of bias.

It remarked, at p10, that:

“I agree with the observations made by the respondent in its heads of argument. These are that the discussion forming the basis of the applicant's case was held in the presence of both parties and within hearing distance. There was nothing to hide. A biased arbitrator would have been more circumspect. The discussion centred not on the arbitral proceedings themselves but on Mr. Terry's pending relocation to Kenya on transfer. The timing of his relocation was relevant from a case management point of view in the event that oral evidence was required.”

Further down, at p11, the court stated that:

“I am satisfied that the discussion between him and the arbitrator arose as a result of that communication by the respondent's legal practitioners and that the Arbitrator's sole interest in Mr Terry's imminent departure was legitimate. No reasonable person could perceive bias under these circumstances. Further, no allegation has been made that the prior dealings referred to by the applicant were in any way connected to the matter under arbitration.”…,.

The court a quo agreed with the appellant's submissions, and, in essence, concluded that the first respondent had not established bias.

The court a quo therefore ought to have dismissed the application following its finding.

The court a quo however proceeded to consider the first respondent's contention that the remarks by the arbitrator, in his opposing affidavit, gave credence to the first respondent's assertions of the arbitrator's bias.

It remarked that:

“In my view, the applicant's case hinges on the following factors: the degree of faultiness in the arbitrator's reasoning, the fact that the arbitrator and Kevin Terry are acquaintances, and the fact that in response to the present application, the arbitrator has attacked the applicant's intelligence and its legal practitioners professional standing.

Do these three factors, taken together, give rise, in the mind of a reasonable litigant in the applicant's position, to a reasonable apprehension of bias on the part of the arbitrator?

In my view, that question should be answered in the affirmative.

The arbitrator's post award comments in particular give the impression that he is 'pitching camp with, or rendering assistance to one of the contestants to the dispute before him'.”…,.

The court a quo misdirected itself in three respects when it took into account the arbitrator's averments in the opposing affidavit.

(i) Firstly, the first respondent's allegations of the arbitrator's bias, as contained in the founding affidavit, were based on the conversation between the arbitrator and Mr Terry during the arbitral proceedings.

The arbitrator's averments in the opposing affidavit were not pleaded in the founding affidavit. They found their way into the answering affidavit.

The first respondent therefore raised fresh allegations of bias in the answering affidavit instead of confining itself to its allegations in the founding affidavit.

The first respondent could not make out a case against the appellant on the basis of the answering affidavit.

The court a quo therefore misdirected itself when it made a decision relying on the fresh allegations in the answering affidavit.

The order of the court a quo was therefore not on the basis upon which the application had been brought in the founding affidavit.

(ii) Secondly, the court a quo had earlier on in its judgment concluded that the allegations of bias, based on the conversation between the arbitrator and Mr Terry, were without merit.

It thus misdirected itself when it relied on the same conversation to arrive, in the same judgment, at a contrary conclusion that the arbitrator was biased.

In so doing, it contradicted its earlier findings and essentially reviewed its own earlier determination.

It could only have relied on the averments in the answering affidavit to bolster its findings on the first respondent's case as pleaded in the founding affidavit. It could not use the averments in the answering affidavit to take away findings made on the basis of the founding affidavit.

Regard is given to the fact, that, when the court a quo made its pronouncement on the issues raised in the founding affidavit, the first respondent's answering affidavit and heads of argument addressing the arbitrator's opposing affidavit were both before it.

(iii) Thirdly, the court took into account factors which occurred after the award in order to find bias during proceedings leading to the award.

The arbitrator's opposing affidavit was filed long after the arbitration proceedings had been terminated. It could not therefore be a basis for a finding of bias during the making of the award.

The judgment of the court a quo is irregular on the basis that it set aside the arbitral award on a basis other than that sought by the first respondent.

It is also untenable on the basis that the court a quo relied on an opposing affidavit that had no bearing to the making of the award.

(iv) Lastly, before it contradicted itself, the court a quo had found in favour of the appellant on the two issues that had been placed before it in the founding affidavit.

The resultant order ought to therefore have been the dismissal of the application by the first respondent.

In view of the above findings, it is therefore not necessary to consider the second issue raised in the fourth ground of appeal.

The appeal has merit. The judgment of the court a quo cannot therefore stand. It must be set aside.

The appellant prayed, in the notice of appeal, for costs on the legal practitioner and client scale.

It however did not motivate for such costs in its heads of argument or oral submissions.

There is no basis advanced for granting the punitive costs. An order for ordinary costs is therefore appropriate.

Accordingly, it is ordered as follows:

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:

“The application be and is hereby dismissed with costs.”

On 22 April 2015, the plaintiff issued summons out of this court seeking the following order against the defendant:

“(1) An order confirming null and void the purported agreement of sale signed by the plaintiff and defendant on the 12th January 2010 in respect of Umguza 100 Acre Lot 5A for want of a subdivisions permit at the material time, and, in any event, and in the alternative, for defendant's breach of the terms and conditions of the agreement of sale.

(2) An order for the eviction of the defendant and all those claiming rights after him from Umguza 100 Acre Lot 5A currently occupied by the defendant on the basis of a null and void agreement of sale.

(3) Payment of the sum of US$18,000 being reasonable rental and unjust enrichment arising from defendant's occupation of Umguza 100 Acre Lot 5A from March 2010 to April 2015.

(4) An order for holdover damages at the rate of US$10 per day being reasonable rental for the portion of Umguza 100 Acre Lot 5A currently occupied by the defendant calculated from the 1st May 2015 to date of vacation, both days included.

(5) Costs of suit on a higher scale.”

Upon being served with the summons, and after indicating his intention to defend the action, the defendant, in his plea, flatly denied any form of liability and sought the dismissal of the plaintiff's claim with costs at a punitive scale.

In addition, the defendant counter claimed on the basis of unjust enrichment and sought an order against the defendant in the following terms:

“1. Payment in the sum of US$19,000 together with such payment as will be sufficient to enable the defendant to purchase a property of comparable value including all the improvements he had effected.

2. A refund of all the money used by the defendant in drawing electricity to the plaintiff's homestead and applying for a subdivision permit.

3. Interest on all sums at the prescribed rate of 5% per annum with effect from the date of issue of summons to date of payment in full.

4. Costs of suit at an attorney and client's scale.”

The following facts are not in dispute in this case:

By a Deed of Sale signed by both parties on 26 January 2010, the plaintiff sold to the defendant 10 acres of land being part of 100 Acre of Lot 5A, Umguza District on certain terms and conditions outlined in the deed.

At the time the parties signed the agreement of sale, there was no subdivision of the land in question as required by section 40 of the Regional, Town and Country Planning Act [Chapter 29:12], thus rendering the agreement null and void from its inception.

As fate would have it, the parties ran into problems with their agreement, with allegations and counter allegations mounted against each other.

Under cases referenced HC491/11 and HC2828/12 both parties initiated civil action against each other over the invalid agreement.

Confusion reigned.

Both parties ended up withdrawing the civil suits against each other leaving the instant case to resolve their differences and provide some direction.

The evidence in this trial centred on the testimonies of the two protagonists aided by some documentary exhibits to strengthen each other's position. I proceed to deal with that.

The plaintiff, who was aged 94 years at the time he gave evidence in court, was in full control of his faculties and did not seem to show any sign of struggling due to his advanced age.

The witness gave a detailed narrative of his relationship with the defendant, whom he regarded as his “child”. He chronicled how he entered into an agreement of sale (exhibit 1 of Annexure 1) on 26 January 2010. The witness told the court, that, pursuant to the signing of the agreement and the payment of the initial US$10,000 (ten thousand) dollars, he allowed the defendant to commence construction on the purchased property.

He said it was part of the agreement that the defendant would pay expenses related to the processing of the subdivision permit.

The witness said he wanted the defendant to pay him $350 per month as rentals for staying and conducting his farming activities at the plot which was the subject of the sale agreement.

He said when they ran into problems with their agreement, owing to the defendant's failure to comply with their agreement, he wanted him to be evicted from the plot and the defendant's response was to report him to the police.

When the witness's attention was drawn to the fact that the defendant was alleging to have made improvements for which he had been enriched and therefore wanted to be compensated, he said that the improvements had not benefited him and that the defendant was free to destroy such improvements.

The witness confirmed the improvements consisted, inter alia, of two dwelling houses, the second one of which the defendant had constructed against his will. The witness further told the court, that, in installing electricity, the defendant had used substandard poles which got rotten, and, he concluded his evidence in chief by suggesting that the defendant had cheated him.

Under cross-examination from the defendant's counsel, the plaintiff confirmed that he and the defendant had signed the sale agreement in 2010 and that as a result of that, the defendant had carried out visible improvements on the purchased property.

The witness also confirmed, that, other than the sale agreement, he had not signed any lease agreement with the defendant.

When questioned about the borehole on the property, the witness was emphatic that it was him who had sunk it and that all the defendant did was merely to have it flushed.

On further cross-examination, the witness could not dispute that the houses built by the defendant had electricity installed by the defendant.

When the valuations of the improvements done by the defendant were brought to his attention, the plaintiff was unable to challenge same. The best the plaintiff could say on the valuations was;

“He did that on his own volition. I did not tell him to make such developments. There is a letter which says there should be no development until the case is over.”

The plaintiff's cross examination was concluded by an admission, that, when he concluded the agreement of sale with the defendant, he was fully aware that he did not have a sub-division permit.

When his attention was drawn to his arbortive attempt to obtain a subdivision permit in 2000, almost 10 year before signing the agreement with the defendant, the plaintiff denied having applied for such permit, and sought to argue that the only permit he had applied for was for the southern side of his plot.

The defendant commenced his evidence by highlighting the cordial relationship which he had enjoyed with the plaintiff prior to entering into this agreement of sale with him.

He indicated, that, in order to raise the money to buy this particular plot, he had to dispose of his smaller 6 acre piece of land. The defendant told the court, that, after paying the initial agreed sum of US$10,000 (ten thousand United States Dollars), he embarked on the construction of his cottage which was subsequently followed by the main house and electrification of same.

The defendant testified on the difficulties that he had with the plaintiff which were centred on the latter's refusal to receive part of the payment owing to delay.

The defendant, said, owing to the frustrations which he faced as a result of the refusal by the plaintiff to accept payment, he ended up initiating legal proceedings against the plaintiff for breach of contract.

The plaintiff also confirmed the civil suit commenced against him by the defendant and its ultimate withdrawal.

The defendant testified, that, all in all he paid the plaintiff a total of US$19,550 (nineteen thousand five hundred and fifty United Stated Dollars) toward the agreement.

The defendant's further evidence was that he only became aware of the absence of the subdivision permit much later, and when he was well into the agreement, as a result of which he gave the plaintiff US$80 for the facilitation of the permit.

The defendant further stated, that, when he eventually got the subdivision permit, through the plaintiff's legal practitioners, it turned out to be a fake or not authentic document.

He insisted that other than paying for its processing, he had no input into its production and flatly denied ever being involved in the fraudulent acquisition of the sub-division permit.

In his further evidence in chief, he gave a detailed account of the various improvements he made at the “purchased” property and the numerous demands for his eviction made against him by the plaintiff.

The witness said he was prepared to move out of the property as long as he was fully compensated for the improvements made. In his own words, the defendant stated the following as regards his counter claim;

“May the court order that the plaintiff compensates, the reason being that I constructed my house after he had given me permission to do so. I constructed two houses and he was watching me do so. If he says I should vacate the piece of land I will do so by removing what I put there to enable me to construct again at a different place. If he does not end up a destitute or a person of no fixed abode.”

When questioned during his evidence in chief to indicate the improvements he made, the following is what he stated:

“First and foremost, I built a three-bedroomed house (cottage), and, secondly, a three bedroomed main house. I pulled electricity to the house. On that Stand was a dry borehole. I got a company which flushed the borehole. I then bought the pump and the jojo tank which I fixed for the storage of water. That is the water that we are using. The rest of the things have their valuation.”

The witness went further to give the three valuations of the improvements he carried onto the property which he averaged to come up with a figure of US$97,833=33.

The witness emphasized that he had invested all his resources on the property and maintained that if he did not get compensated for such improvements he would end up having no fixed abode.

The defendant was taken through cross examination, part of whose thrust was to challenge him why his (defendant's) lawyer had not suggested to the plaintiff that he was lying, if at all he was misleading the court during his testimony. Part of the exchanges which caught the court's attention and require emphasis went along the following:

“Q: You accept now that this land has always belonged to plaintiff until today?

A: Yes.

Q: You appreciate that the plaintiff's claim is based on you being unjustly enriched and him being unjustly impoverished?

A: I realize he was unjustly enriched. I paid some money towards the property to the plaintiff following our sale agreement.

Q: What do you want from the plaintiff?

A: I want him to reimburse me for the expenses I incurred on that piece of land so that I am able to get another place to stay with my children since he pretended as if he was selling me that piece of land, he knew I would never get any title deed in respect of that land…,.

Q: Your claim is based on unjust enrichment?

A: Yes.

Q: You heard him say he has no use of such improvements?

A: Yes, I heard him say so but he is going to use them. The structures are on his piece of land which he pretended to be selling. There is electricity which he will use. If he did not want the houses, he could not have allowed me to construct them….,.

Q: Your bundle, you have put in several receipts from pages 90-102 to support your expenditure. All these are from September 2010. These were incurred at a time plaintiff told you to stay away from his land and to keep your money?

A: We had entered into an agreement of sale.”

When it was suggested to the witness that he was supposed to be paying rentals to the plaintiff, the defendant denied ever entering into a lease agreement with the plaintiff, but rather a sale agreement.

In conclusion, the defendant said that the valuation reports that he submitted had collectively dealt with the improvements he made and for which he was claiming to be paid.

At a joint pre-trial conference (record pp56-58), held by the parties, the parties narrowed their contentious issues to the following:

(1) Whether or not the plaintiff is entitled to a reasonable rental arising from the defendant's unauthorized/authorized occupation of the property in dispute.

(2) Whether or not the defendant has been unjustly impoverished and the plaintiff unjustly enriched as a result of the alleged developments made by the defendant upon the disputed part of the land, and, if so, the quantum thereof.

It is with these issues in mind that I proceed to consider the evidence tabled in this court.

The evidence which is not in dispute is that the defendant took occupation of the property in issue pursuant to a sale agreement, which sale turned out to be null and void or invalid owing to its non-compliance with the mandatory provisions of sections 39(1)(b)(i) and 40 of the Regional, Town and Country Planning Act [Chapter 29:12].

The sale agreement entered into by the parties is self-explanatory and it is too ambitious, if not too generous, to read into the agreement that it could, at any stage, be turned into a lease agreement to provide for a basis for the plaintiff to claim rentals.

It cannot possibly be the correct position, as stated by the plaintiff in his declaration, that:

“In or about March 2010, Defendant forcibly occupied a portion of Umguza 100 Acre Lot 5A….,.”

This averment is clearly not borne out by the overwhelming evidence in this court which speaks to the defendant's occupation as informed by the agreement of sale.

The fact that under case HC2828/12 the plaintiff initiated a civil suit against the defendant to force compliance with the sale agreement cements the existence of the agreement of sale between the parties.

The argument is simply, that, if in 2010, the defendant had forced himself onto the plaintiff's property, there would have been no need for the plaintiff to try and enforce compliance with some agreement in 2012 - two years down the line.

The plaintiff, in his own testimony, confirmed that the defendant only took occupation of the plot pursuant to an agreement.

What cannot be disputed is that subsequent to the defendant's occupation, the agreement ran into challenges. Despite this, these challenges did not in any way change the defendant from being a purchaser to a tenant.

The parties were fully conscious of what they wanted when they entered into this agreement.

It is not for this court to re-write the contract for the parties.

As was observed by the Supreme Court in the case Magodora and Others v Care International Zimbabwe 2014 (1) ZLR 397 (S)…,:

“It is not open to the courts to write a contract entered into between the parties or to excuse any of them from consequences of the contract that they freely and voluntarily accepted, even if they are shown to be onerous or oppressive. This is so a matter of public policy. Nor is it generally permissible to read into the contract some implied or tacit term that is in direct conflict with its express terms.”

For these reasons, the court is not prepared, for whatever reasons, to convert or to read into a simple sale agreement, a lease agreement.

One gets the obvious impression that reference to the defendant's alleged forced occupation of the property was slotted in as a desperate attempt to justify a claim for rentals by the plaintiff.

The averment clearly lacks merit and it is not sustainable.

This enquiry is intricably linked to the existence or non-existence of a lease agreement.

I have already made my position clear, that, the plaintiff is not entitled to any rentals flowing from a lease agreement because no such agreement ever existed or can be inferred from the evidence led in this court. If anything, the evidence shows, beyond doubt, that, it is in fact the plaintiff who has been unjustly enriched and the defendant impoverished in the process.

It is not in dispute, that, pursuant to the sale agreement the defendant paid a total of $19,550 towards the fulfillment of that agreement. The $19,000 was for the purchase of the land and $550 was paid towards the facilitation of the subdivision of the sold piece of land when the defendant realized that he had been sold the land in violation of the mandatory provisions of the Regional, Town and Country Planning Act.

The defendant's evidence in support of this payment was not challenged by the plaintiff.

In fact, in his declaration filed in this court on 22 April 2015, the plaintiff made an unsolicited offer to refund the defendant US$19,000 on monthly instalments of US$395.

The defendant's claim is built in his counterclaim filed in this court on 24 June 2015.

In that counter-claim, the defendant states that he made a number of improvements which would prejudice him if they were to accrue to the plaintiff without him being compensated.

In his closing submissions, the plaintiff's counsel criticized the defendant's pleadings and commended as follows:

“Of significance is that in paragraph 5 above defendant did not specifically allege that the alleged improvements have resulted in plaintiff being enriched.”

I accept the position taken by the plaintiff's counsel, that, the defendant's pleadings, especially in the counter claim, were poorly drafted. They lacked elegance. They could have been drafted in a much better way.

However, I do not accept that when the defendant's case is looked at holistically, the alleged defects in the pleadings can be raised to the level of fracturing his case. This is because the defects were cured by the overwhelming evidence in support of the defendant's case.

The defendant's uncontroverted evidence was that pursuant to the agreement of sale (which turned out to be invalid), he had poured substantial resources on the plaintiff's property. In the process, the plaintiff ended up being enriched and the defendant impoverished and that the defendant wanted to be compensated for this.

This was the basis of the defendant's claim, and even the plaintiff's counsel fully understood this as demonstrated by the tone and nature of his cross-examination of the defendant.

It is therefore not sustainable for counsel to argue that the defects in the pleadings must lead to the collapse of the defendant's case.

On 13 March 2017, the plaintiff issued summons claiming against the defendants, jointly and severally, one paying the other to be absolved, payment of:

(a) US$368,706=62 being capital;
(b) US$20,654=10 being interest;
(c) Interest on the sum of US$368,706=62 at the rate of 18% per annum subject to change from time to time with effect from 26 of November 2016 to date of payment;
(d) Costs of suit on a legal practitioner and client scale and collection commission as provided for under the law society of Zimbawe by-laws (1982).

At the commencement of trial, on 27 August 2018, by consent of all the parties, the claim was amended in paragraph 16 of the declaration as follows:

(i) By the deletion of the Capital amount of US$368,706=62 and the substitution thereof with the amount of US$361,034=23.

(ii) By the deletion of the interest amount of US$20,654=10 and the substitution thereof with the amount US$28,246=49.

The total amount being claimed by the plaintiff coming up to US$389,362=72.

The plaintiff's claim, as amplified in the declaration, is premised on the following synopsis:

“9. In or about November 2015, at Harare, Plaintiff and first defendant entered into an agreement in terms of which plaintiff extended to first defendant a loan of US$373,000. The loan was accessed through first defendant's operating account.

10. Interest was to accrue on the facility at the rate of 12 per cent per annum subject to change from time to time, but, in the event of first defendant defaulting on making due and punctual payment of any installment, the arrears were to attract interest at the rate of 18 per cent per annum subject to change from time to time, further, first defendant agreed to pay bank charges regarding the administration of the account.

11. The loan advanced of US$373,000 was repayable to plaintiff as follows:

(a) US$2,000 on the 30 of November 2015;
(b) US$1,500 on the 30 of December 2015;
(c) US$2,000 on the 30 January 2016; and, thereafter, US$15,200 per month with effect from the 28 of February 2016 until full payment.

12. It was a term of the agreement that in the event of first defendant defaulting on making due and punctual payment of any instalment, the total outstanding amount thereunder would immediately become due and payable.

13….,.

14. Second, third, fourth, fifth, sixth and seventh defendants bound themselves jointly and severally as sureties and co-principal debtors with first defendant for payment of any and all monies due to plaintiff by first defendant.

15. On diverse occasions, defendants defaulted on making due and punctual payments under the agreement resulting in the total outstanding amount under the agreement, as at the fifth of November 2016, in the sum of US$389,360=72 falling due and payable on the 25th of November 2016.”

All the seven defendants deny that the amount of US$373,000 the plaintiff claims arises from the loan agreement.

The first defendant denies that it is liable to the plaintiff for the capital sum of US$361,034=23 (as amended), or at all, arising out of the loan agreement signed on 16 November 2015 because only US$350,000 in capital was actually lent and advanced to the first defendant and the entire capital debt was repaid in full on 30 December 2015 - less than two months after 16 November 2015.

The agreement terminated in sixty (60) days in terms of the loan or facility agreement.

And the agreement does not have a survival clause.

Paragraph 24 of the facility cancels all previous agreements and this meant that even the balance on the first defendant's account is not covered by the agreement in question.

The first defendant denies liability under the facility and contended that the plaintiff actually recovered more interest than was lawfully due to it.

The first defendant also denies liability for any legal costs as it does not owe the plaintiff any money under the facility in question, and, if the plaintiff is successful, it would only be entitled to normal costs.

The defendants contend that all the suretyship deeds are void for vagueness in that they cover unlimited liability. The liability under suretyship must contain a limit in monetary terms.

The defendants further challenge the validity of the suretyship for they were not all authorized by the second defendant's Board of Directors. The second defendant challenges the company resolution for having been signed by an incompetent company representative.

The acknowledgement of debt alluded to by the plaintiff is challenged by the first defendant because it was not typed by its representatives. Equally so, the resolution signed by Ms Blumears was a nullity, the second defendant avers.

The first defendant denies defaulting payment. It denies owing the plaintiff any amount and also deny being liable to payment of the plaintiff's claims.

On 30 May 2017, the defendants sought to amend their pleas.

They added, that, if at all, the first defendant was liable ex contractu the loan agreement of 16 November 2015, the first defendant will dispute the amount owing since provisionally, as at the end of 2016, the first defendant's credits against debits had brought the first defendant's debit balance to less than US$109,000.

The defendants further contend, that, either the purported acknowledgement of debt or the loan agreement, or both, contravene section 12 of the Money Lending and Rates of Interest Act and consequently invalid and unenforceable.

The second defendant further pleaded that its act of suretyship fails to comply with the requirements of section 12 of the Money Lending and Rates of Interest Act for an instrument of debt as defined in that Act and the purported act of suretyship is therefore of no force or effect as an instrument of debt.

The second defendant's act of suretyship had expired by reason of the effluxion of time, having been signed more than three years before the grant of the loan as claimed for; it was signed on 23 May 2012.

The second defendant further pleaded, that, neither of the mortgage bonds filed reflect that they were surety bonds for debts owing by the first defendant to the plaintiff and accordingly do not bind the second defendant to the plaintiff for this purpose. Further, the mortgage bonds filed amount to a disposal of the whole or a greater part of the second defendant's assets in the absence of formal approval of a general meeting of shareholders as required by the Companies Act, and, for that reason, they are of no force or effect.

It reiterated that the registration of the mortgage bond in favour of the plaintiff was not authorised by the second defendant and that the plaintiff, as lender, clearly over-reacted and unlawfully requested the mortgage bonds.

The third, fourth, fifth, sixth and seventh defendants challenged the suretyships and validity of the mortgage bonds and contravention of the Money Lending and Rates of Interest Act.

Some of the suretyships were also signed long back, in February 2011; they had expired, the defendants aver.

The defendants pray for the plaintiff's claim to be dismissed with costs.

Due to the invalidity of the suretyships alleged in the pleas, the defendants pray that their respective purported suretyships be declared null and void and of no force and effect.

The second defendant, in its counter-claim, also prays that the plaintiff be ordered to issue formal consent according to deeds registry requirements for the cancellation of mortgage bonds registration nos 1557/2013 and 1656/2013 allegedly passed by the second defendant in favour of the plaintiff, and, with the said documents of consent, to release to the second defendant the deeds of the said mortgage bonds and deed of transfer no.1998/1975 made in favour of the second defendant on 7 May 1975.

The third and fourth defendants further pray that the plaintiff be ordered to issue formal consent, according to deeds registry requirements, for the cancellation of mortgage bonds reg nos. 2416/2011 and 4889/2011 allegedly passed by the third and fourth defendants in favour of the plaintiff, and, with the said documents of consent, to release to the third and fourth defendants the deeds of the said mortgage bond and deed of transfer no. 8573/95 made in favour of the third and fourth defendants on 15 December 1995.

The defendants jointly further pray for costs of suit in respect of this claim in reconvention.

The plaintiff, in its plea to the defendants claim in reconvention, contends that the defendants executed open guarantees which are valid, lawful, and enforceable.

It further avers, that, the second defendant's suretyship was and is properly constituted and was extended premised upon a valid resolution by the defendant company.

The acknowledgement of debt was also properly executed by the first defendant and is valid.

The plaintiff added that due process was equally provided in the execution on the guarantee by the second defendant, and the plaintiff was unaware that the third and fourth defendant's daughter unlawfully signed the guarantee and does not admit same.

The plaintiff denies that its representatives interfered in the execution of the guarantee by the second defendant. It argues that the guarantee is hence valid and enforceable.

The plaintiff contends further, that, due process was followed in the registration of the two bonds.

According to the plaintiff, the second defendant's resolutions were made and powers of attorney issued. The bonds were properly registered and are valid. As a result, according to the plaintiff, there is no legal basis on which the second defendant's guarantee and mortgage bonds should be cancelled.

The plaintiff prays for the dismissal of the defendant's claim in reconvention with costs.

1. Whether or not the first defendant is indebted to the plaintiff in the sum of US$361,024 as capital and US$28,246=49 as interest under and in terms of the loan agreement signed by the parties and dated 2 November 2015.

2. Whether or not the second, third, fourth, fifth, sixth and seventh defendants are jointly and severally liable together with first the defendant for the capital and interest amount claimed under and in terms of their respective deeds of suretyship.

3. Whether or not the second defendant's first and second mortgage bonds numbers 1557/13 and 1655/13, in favour of the plaintiff, are valid and enforceable, and whether or not the said bonds be declared null and void and cancelled.

On 27 August 2018, the plaintiff opened its case by calling Cuthbert Gunundu. He is a university graduate holding a Bachelor of Business Studies, a Masters Degree in Business Administration, a holder of a diploma certificate in Institute of Bankers of Zimbabwe, and is employed by the plaintiff as an Account Relationship Manager.

He has been employed by the plaintiff since January 2008.

His job entails managing customers account, more particularly the customer's operating account, receiving credit applications for borrowing to assess credit worthiness of the borrower and make recommendations to the Credit Committee, to approve or reject a credit application.

Once a resolution to lend to the customer is made, he will monitor performance of that client's account to ensure that the borrower performs in line with the terms of the facility.

When there is a deviation by the borrower, the witness would make recommendations for call up or otherwise of the debt.

These are the major roles of his job.

He knows the first defendant as a long outstanding customer of the plaintiff. The second to seventh defendants are guarantors to the first defendant. He testified, that, since 2011, when he was assigned to manage the first defendant's account, the plaintiff demanded the requirement of guarantees to safeguard its moneys loaned out.

From 2011, the plaintiff received guarantees, in terms of security guarantees as well as mortgage bonds against the third and fourth defendants properties. The security guarantees proferred by the third and fourth defendants were for unlimited lifespans until the defendants have paid their debts in full.

In 2013, the witness told the court that the first defendant approached the plaintiff for further borrowing and the first defendant's directors were advised, by the plaintiff, that, the plaintiff would need further security. At that stage, the third defendant indicated that it had associates to cover and provide security for the debt.

Sometime in 2015, the first defendant submitted an application to get assistance from the plaintiff through a loan to pay off its existing debt.

At that stage, the witness stated that the first defendant had failed to meet its obligations.

The first defendant then approached the plaintiff to access a loan whose proceeds the first defendant would then use to pay off its existing debts. That fresh application, of 2015, culminated into a fresh loan agreement which is the agreement dated 2 November 2015.

As at the date of the loan agreement, the witness told the court that the first defendant owed the plaintiff a total of US$373,000.

The terms of that loan agreement was that the Bank had to be secured, and, in terms of clause 6 of the agreement, the security was already in the hands of the plaintiff.

As a result of the 2 November 2015 agreement, the plaintiff advanced a loan to the first defendant to pay off the debt, a loan draw down of $350,000; and, that amount was to pay off the first defendant's outstanding debt.

On 30 December 2015, the second entry on the bank statement shows that there was a loan repayment of $350,000 and the witness told the court that to the plaintiff it was a debit to show that it was a new loan account.

The witness denies that the first defendant repaid the amount on 30 December 2015; there was no settlement on the account.

The witness denied the assertion made by the defendants, that, the plaintiff had sued under the wrong agreement.

He further added, that, the first defendant was using its operating account.

The witness also explained, that, the customer signed an acknowledgment of debt cited on pp10-12 of the plaintiff's bundle of documents, p202 of the record of proceedings. The document, the witness said, was executed by the third defendant and did so on behalf of the first defendant. He added, that, although the loan agreement shows a figure of $373,000 and the acknowledgement of debt bears an amount of $377,299=70 the two (2) documents relate to the same transaction.

Asked by the plaintiff's lawyer to explain, the witness stated that by 6 November 2015 the first defendant owed the plaintiff $377,299=70, the facility letter dated 2 November 2015 showed $373,000, and the acknowledgement of debt, dated 16 November 2015, was the date the acknowledgment of debt was executed.

The acknowledgment of debt was sent to the first defendant on 31 October 2015, and, by that date, the amount due to the plaintiff from the first defendant was $377,299=20; from time to time, the first defendant was periodically depositing money into the operating account and this resulted in gradual reduction of the first defendant's obligation.

However, from 2 November 2015 the first defendant failed to meet its obligations.

The witness further explained to court, that, the defendants provided two forms of security, the guarantees and mortgage bonds, contained on pp67-69 of the plaintiff's bundles.

The second defendant executed it for registration.

In 2012, the borrower applied for an increase to its loan facility and that is when the security was made.

The witness insisted that all the documents were properly executed and the resolution on p69 of the bundle was authentic and valid.

Mr Gunundu was cross-examined by counsel for the first, third, fourth, fifth, sixth and seventh defendants and was put to task to explain the capital debt of $373,000 and the $361,024 and also $350,000 and he had difficulties to explicitly define such figures.

Tasked to explain why the plaintiff would write on its statement that the second entry on the statement of 30 December crediting the first defendant's account with an amount of $350,000, the witness stated that it was a “confirmation” of the loan advanced to the first defendant.

Further, under cross examination, the witness averred that the loan agreement of 2 November 2015 permitted the plaintiff to factor in the old debts.

Pressed to explain clause 12 of the facility letter, on p16 of the record; that clause 12 cancels and invalidates all previous agreements, the witness admitted that the plaintiff was bound by that clause.

He could not produce a letter or application to show that the first defendant applied to the plaintiff for a loan to facilitate funding an existing debt.

Commenting on clause 2 of the facility letter relating to “working capital requirements” he testified that a letter application for a loan to pay off existing debt includes or encapsulates working capital requirements.

He failed to explain precisely the purpose of the loan, he could not satisfactorily explain the purpose of $350,000 whether it was for settling previous debts or was for working capital requirements; if it was for payment of old debts, then, it ceased to be for working capital.

On the aspect of surety, he agreed that the surety agreements violated section 12 of the Money Lending and Rates of Interest Act [Chapter 14:14] but insisted that they are valid.

The defendants, after signing the 2 November 2015 loan agreement, did not provide securities to cover the new loan.

On the aspect of the in duplum rule schedule, the witness computed the figures starting from 1 October 2015 and did not commence on 2 November 2015. The calculation patently included past debts and recapitalised the interest and he could not answer the question put to him, whether it was not proper to calculate the figures with effect from the date of the new loan.

He denied that the amount due to the plaintiff is at least $108,000 however the entries on the bank statement were debited based on the new loan not on the old debts.

He also admitted that the acknowledgment of debt, on p9 of the plaintiff's bundles was prepared by the Bank using a blank form which is later completed by the customer and the customer provides handwritten information to an existing format and the figure on the acknowledgement of debt $377,499=70 was written by the plaintiff.

He had difficulties of explaining the signature on the acknowledgment of debt.

The witness was referred to p6 of the bundle by counsel for the second defendant and asked to comment on the aspect of the declaration by the plaintiff, that, the plaintiff's claim is based on the 2 November 2015 agreement and no other, and he agreed.

He agreed with the second defendant's defence lawyer that the whole cause of action is premised on the 2 November 2015 agreement.

He agrees further that the $350,000 was for working capital.

He could not, however, agree that on 30 December 2015 the first defendant paid off the borrowed $350,000 clearly acquitted by the narrative.

He confirmed that the 2 November 2015 agreement is a stand-alone agreement and cancels all previous facility letters.

On the security and mortgage bonds, he concurred with counsel for the second defendant, that, the amounts of $437,500 was not registered for the 2015 November loan agreement but were meant for loans for 2013.

The mortgage bonds were executed for the 2013 agreement not for the 2 November 2015 agreement.

There was no accompanying resolution by the second defendant authorising the third defendant to represent the second defendant in any capacity, yet the 2013 agreement was totally distinct from the 2015 loan agreement.

The resolution captured on p70, the resolution by the second defendant's directors, was prepared by the plaintiff Bank and it does not authorise a power of attorney to pass a mortgage bond. It also does not provide for registration of a continuing covering bond, nor does it identify any property which is going to be covered by the mortgage bond.

Relating to the causa of the mortgage bond, he admitted that the second defendant was not indebted to the plaintiff.

On p99 of the record, it is clear that the second defendant was not granted any loan by the plaintiff and the $375,000 was not loaned to the second defendant by the plaintiff.

On p105, the clauses on the surety bonds do not reflect the truth about the entire transactions, the witness confirmed under cross-examination, because it appears that the surety bond was passed by the debtor itself.

The witness does not know as to who signed the documents and was not there when such documents were signed.

He was at pains in marrying the documents prior to November 2015 with the 2015 loan agreement which is the cause of action for the plaintiff.

He sought to rely on the clauses of the mortgage bond which speak of continuing cover and failed to explain the practicality of clause 12 of the 2 November 2015 agreement.

The witness had difficulties to explain what transpired relating to figures and signature on documents and legality of the documents contained on the plaintiff's bundle.

He did not impress as a good witness, moreso when he was subjected to a protracted cross-examination by the defendants legal practitioners. He did not fare well in evidence in chief and under cross examination.

He did not know much, even on basic issues of practices and interpretation of a simple loan agreement.

If clause 12 of the loan agreement cancelled all past agreements, how can the witness resort to previous debts to calculate the capital debt?

How can the witness “confirm” a loan facility after a month from the date the loan was signed and then enter into its own books the inscription “loan repayment $350,000?”

The capital sum of $373,000 keeps changing and no comprehensive statement to explain that continuous change of figures was produced and no good explanation by the plaintiff's witnesses was proferred.

This court cannot prepare a contract for the parties, it will interpret what is on paper and draw conclusions from such.

The duty to clarify the terms of the agreement lies with the plaintiff through its witness; Mr Gunundu left a lot of issues hanging.

The second witness to be called by the plaintiff was Mr V.S. Nyangulu, a registered legal practitioner, a Conveyancer and Notary Public.

He was conveyancer in the registration of the second defendant's first and second mortgage bonds (numbers 1557/13 and 1655/13) in favour of the plaintiff.

According to the witness, valid and proper resolutions were passed authorising him to attend to the bond registration process which was executed by the second defendants representatives. He added, that, all due process was followed pertaining to the registration of the mortgage bonds and there is no legal basis for their setting aside.

The witness also pointed out, that, on instructions, the Bank would normally send an e-mail stating that it wants to have a bond registered by him; the Bank will forward the copy of the title deed then he prepares the relevant papers. He would then prepare a power of attorney to pass a bond, a resolution by the company borrower, and send the papers back to the client Bank via email.

The Bank will download the documents, print them out, and send to client borrower for signing.

After all the papers are signed, the Bank submits them, together with the requisite on original title deeds, to the conveyancer who then lodges them with the Registrar of Deeds.

He is the one who prepared and registered all the documents on p294 of the record and the one on p293. Otherwise, all the other processes were done by the plaintiff.

He is the one who prepared the power of attorney which he filed with the Registrar of Deeds, including the mortgage bond on p303. He also prepared the resolution accompanying the power of attorney.

He admitted that the documents before the court, attached to the plaintiff's bundle, are mortgage bonds and not surety mortgage bonds; however, they are relevant to the loan under consideration and they are a continuous cover, the borrower will continue to draw money from the lender, and, according to Mr V.S. Nyangulu, paragraph 2 of Schedule of the Mortgage Bond provides for a continuing cover.

After the witness evidence, counsel for the first, third, fourth, fifth, sixth and seventh defendants did not have questions to the witness.

Counsel for the second defendant questioned the witness about the legal requirements of a mortgage bond as well as surety bonds, more particularly on the aspect of the causa which can either be a loan or a surety.

The witness acknowledged, that, the causa on both documents was not accurately captured and admitted that once the causa is defective the entire document is a nullity.

He was also put to task on the authenticity or otherwise of a power of attorney and/or a resolution and again admitted that the documents before the court had shortcomings.

A power of attorney must accurately describe the causa and prepared by an authorised person for a specific purpose. The resolution of a company must be prepared and signed by the appropriate agents and Directors of the body corporate.

The power of attorney on p293, the witness admitted, was not authorised. He also admitted that the second defendant, as a company, cannot execute any document and has to do that via an agent by power of a resolution and name a natural person, and, the plaintiff has failed to prove all these essential elements.

He further acknowledged, that, the power of attorney on p293, which authorized to pass a mortgage bond in the sum of $375,000 becomes the causa to pass a mortgage bond and not to pass a surety mortgage bond.

On p302 of the record, the witness does not know the identity of the person who executed the document, and, the power of attorney at p293 does not pass the test of a valid document.

At p294, the mortgage bond itself on the causa, the identity of the debtor is not correct; one cannot be both surety and borrower.

On p295, the declaration, which is the basis of the acknowledgment of debt, is falsely stated. Both the declaration and the causa are incorrect.

The effect is that the documents are a nullity and also subsequently invalidates the mortgage bond.

The witness also admits, that, on p302 of the record, authority that is given to a legal practitioner to pass a mortgage bond and not a surety mortgage bond. He also admitted on p303 the debtor shown there is not the correct one. The same applies to the declaration on p309. Both are invalid. He finally admitted that the power of attorney had shortcomings that go to the root of the documents.

The effect of the cross examination completely resulted in the destruction of the mortgage bonds, surety bonds, and requisite powers of attorney to pass mortgage bonds, more particularly, relating to the 2 November 2015 loan agreement.

The plaintiff then closed its case.

The first and third to seventh defendants indicated that they wished to make an application for absolution for instance. The second defendant also made the same indications.

In their application for absolution the first and third to seventh defendants argue that the issues for determination in this mater are:

(i) Whether or not the plaintiff led sufficient evidence, on the face of it, to establish its case against the defendants in respect of the pleaded cause of action.

(ii) Whether or not the plaintiff's evidence prima facie established valid sureties and mortgage bonds for that pleaded cause of action.

The cause of action pleaded by the plaintiff, the defendants submitted, against the first defendant is that in or about November 2015, at Harare, the plaintiff and the first defendant entered into a loan agreement in terms of which the plaintiff loaned and advanced to the first defendant the amount of $373,000 through the first defendant's operating account with the plaintiff and that the first defendant defaulted on making due and punctual repayment in terms of the agreement resulting in the first defendant owing the total sum of $389,360=72 made up of the capital sum of $361,034=23 and interest of $28,246=49.

The cause of action against the second and seventh defendants was pleaded as arising out of them having bound themselves jointly and severally, as sureties and co-principal debtors with the first defendant for the due payment of any and all monies due to the plaintiff by the first defendant under the loan agreement.

The plaintiff attached to its summons a statement of account pleaded to reflect the transaction history of the loan account. That statement of account showed that on 15 November 2015 the plaintiff credited the first defendant's operating account with the amount of $350,000 described as “loan draw down” under reference number LD 1532 460482, and, further, on 30 December 2015 the operating account was credited with the same amount of $350,000 described as “payment of principal” under the same reference number LD 1532460482.

The defendants submit, that, the net effect of these entries was to restore the first defendant's previous overdrawn overdraft facility.

The plaintiff also attached copies of surety agreements with the third to seventh defendants all of which predated the pleaded loan agreement having been made:

(a) By third defendant on 25 February 2011;

(b) By fourth defendant on 25 February 2011;

(c) By fifth defendant on 25 February 2011;

(d) By sixth defendant on 25 February 2011;

(e) By seventh defendant on 25 February 2011;

Further, the plaintiff's cause of action against the third and fourth defendants, the plaintiff attached mortgage bond numbers 2416/2011 and 4889/2011, dated 19 April 2011 and 4 August 2011 respectively, by the third and fourth defendants against a property they co-own as a certain piece of land situate in the District of Salisbury, called Stand 7 Greencroft Township Ascot of Subdivision A and B of Mabelreign measuring 2392 square metres.

The respective mortgage bonds contain the same causa clause stating that “the Appearer” declared that whereas that mortgagors have been granted certain loan credit and/or other facilities by NMB Bank Limited in respect of the mortgage bonds.

The two mortgage bonds also contain the same declaration stating that “the Appearer hereby acknowledged the mortgages to be truly and lawfully indebted and held firmly bound into and on behalf of the Bank in the capital sum arising from and being money lent and advanced or to be lent and advanced or re-advanced.”

The defendants submitted, that, Cuthbert Gunundu contradicted in material respects the particulars of the plaintiff's claim as pleaded and as amplified by the documentary evidence attached to the summons and declaration.

Under cross-examination by the defence, the witness insisted that the loan agreement was not to finance the first defendant's working capital needs but to refinance existing indebtedness; he could not, however, produce the written application made by the first defendant to refinance existing debt.

To Mr Gunundu, the loan described in the agreement of 2 November 2015 as being to refund working capital requirements meant the same thing as the refinancing of existing debt, and, further, that the narration on 31 December 2015 (there was debit entry of payment of principal) was a mere confirmation of the loan amount which had been credited on 20 November 2015.

According to the defendants, the documentary evidence produced by the plaintiff shows that the loan amount was repaid and narrated as such on 31 December 2015.

The defendants further submitted that the 2 November 2015 loan agreement was repaid and what may be owed to the plaintiff, by the first defendant, may be from the old debt.

The defendants argued that the plaintiff is estopped from disputing that the loan advanced on 2 November 2015 was repaid on 31 December 2015 and cited cases for that submission.

Similarly, the plaintiff is estopped from disputing that the loan was for funding the first defendant's working capital requirements.

The defendants went on to argue, that, the plaintiff cannot claim the amount of $361,034=23 as capital arising out of the loan agreement of 2 November 2015 because only $350,000 was credited to the first defendant's account under the loan agreement and the rest of the amount up to $361,034=23 relates to monies advanced earlier in terms of prior credit facility agreements otherwise not pleaded as part of the plaintiff's cause of action.

The amount of $361,034=23 being claimed relates to money advanced earlier than 2 November 2015 in terms of some other agreements, which amount clearly includes both old capital and old interest in circumstances where the plaintiff has not provided the in duplum schedule relating to those agreements.

The defendants also argue, that, the acknowledgement of debt, dated 6 November 2015, does not take the plaintiff's case any further.

In the declaration, the plaintiff has not pleaded any cause of action founded on the acknowledgement of debt. Secondly, as an instrument of debt, the acknowledgement of debt does not bind the first defendant because no evidence was led as to any resolution of the first defendant authorizing the acknowledgement, the acknowledgement does not bear the name of any official of the first defendant authorised to execute it, and who so executed it, and the acknowledgement was not executed by any official of the first defendant authorised or otherwise as it does not bear any such official signatures.

As a result of the foregoing, the third to seventh defendants argue that the plaintiff has not managed to prove their liability to it of the principal debt given that their liability is pleaded and arising out of them having stood as surety to the first defendant's indebtedness.

As the application for absolution relates to the registration of continuing covering mortgage bond which was not outlined, the third to seventh defendants submitted that the plaintiff produced a Board resolution dated 21 May 2012 which allegedly authorized it to register a mortgage bond against the second defendants property; that authority was not for a continuing covering mortgage bond.

None of the defendants ever authorised the plaintiff to register a continuing covering mortgage bond. The plaintiff was only authorised, by the surety mortgage bond, to register just one surety mortgage bond in respect of the loan that was advanced to the first defendant in 2012 and not any time thereafter.

The plaintiff's purported rights, arising from the registration of a continuing mortgage loan that was not authorised, cannot be saved from the inevitable consequences of invalidity; the defendants argued and they cited Elsie v Johnson ZW SC49-17.

The sureties executed by the third to seventh defendants were all executed on 25 February 2011 in respect of some facility arrangement availed to the first defendant in 2011 but in respect of which the plaintiff gave absolutely no evidence.

The plaintiff seeks that these sureties be held to bind the third to seventh defendants in respect of the loan agreement of 2 November 2015.

The defendants argued, that, the surety agreements cannot found a valid cause of action against the third to seventh defendants on account of the fact that having been executed on 25 February 2011 the underlying indebtedness arising out of them, as of that date, prescribed three years after 25 February 2011, that is, on 25 February 2014 by virtue of section 15(d) of the Prescription Act [Chapter 8:11].

The fact that the surety agreements are invalid because they contravene section 12 of the Money Lending and Rates of Interest Act [Chapter 14:14] in that they did not state the amount actually lent to the borrower.

Thirdly, the fact that the plaintiff did not obtain the consent of the third to seventh defendants when the terms of the first defendants indebtedness were materially altered when the plaintiff and the first defendant entered into the loan agreement of 2 November 2015 which was materially different from the overdraft facilities in respect of which they were or equally given in 2011.

On the issue of mortgage bonds, the third to seventh defendants submitted that a mortgage bond which contains a false causa and a false declaration is invalid, of no force or effect, and unenforceable; they referred the court to MHISHI M.L a Guide to the Law and Practice of Conveyance in Zimbabwe, 2004…,.

Mr Nyangulu did not refer to mortgage bonds executed over the property of the third and fourth defendants.

However, the defendants urge the court to equally apply the principle of the law relevant to the third and fourth defendants property which were executed or registered by Mr Sobusa Gula Ndebele who was not called by the plaintiff to give evidence.

The third to seventh defendants contend, that, the mortgage bonds relied upon in respect of third and fourth defendants are the same as those relied upon as against the second defendant.

Both bonds contain false causa and false declaration since they state that they are for monies lent and advanced to the third and fourth defendants when it is common cause that no monies were lent and advanced by the plaintiff to the third and fourth defendants.

Hence, the third and fourth defendants are that the mortgage bonds that were registered by Mr Gula-Ndebele, at the behest of the plaintiff or in favour of the plaintiff, as against the third and fourth defendant's Mabelreign immovable property, are invalid and of no force or effect and unenforceable against the two defendants.

The bonds allegedly also contravene section 45 of the Deeds Registries Act [Chapter 20:05] in that even therein there are continuing bonds, the third and fourth defendants liability under each of them is uncapped.

In any event, the unlimited surertyship agreement from which they are founded is contrary to public policy for its attempt to provide an unlimited surety.

The first and third to seventh defendants pray for absolution and also pray for the cancellation of the two (2) mortgage bonds registered against their Mabelreign property.

The second defendant also applied for absolution, and, in addition, it prays for the grant of its counter claim at the close of the plaintiff's case on the basis that the facta probanda has been resolved in its favour at the close of the plaintiff's case, and, as such, the second defendant believes that there is no need for evidence to establish the same.

According to the second defendant, the plaintiff's evidence has established the following:

1. That there was resolution to pass a mortgage bond in respect of the first bond;

2. That both mortgage bonds are generally covering bonds as opposed to surety mortgage bonds;

3. That the causa is money lent and advanced;

4. That the plaintiff never in fact lent and advanced any money to the second defendant;

5. That the causa in respect of the bonds is in fact false; and

6. That one cannot be a surety for one's own debt.

The second defendant further added, that, the plaintiff relies on the mortgages. The plaintiff had the onus of establishing that the mortgages were complete and regular on the face thereof. An incident of this onus was the duty to begin. The plaintiff failed to discharge this onus, it meant that the only material before the court is the second defendant's admitted claim.

The second defendant prays for a judgment in its favour.

The second defendant associates itself with the first and third to seventh defendants facts laying the basis for the application for absolution, inclusive of the submissions made by the first and third to seventh defendants.

However, the second defendant added that the plaintiff's case is that it entered into a facility agreement. That agreement resulted in the first bond, which was intended to be a surety mortgage bond.

The truth, according to the second defendant, is that no surety mortgage bond was registered, but a continuing general covering bond predicated on money lent and advanced.

It is common cause that no money was lent and advanced. The plaintiff never related with the second defendant.

The plaintiff testified, that, the first arrangement was not honoured; the result was a refinancing agreement, but, from the evidence led by the plaintiff, it did not consult the second defendant on the plaintiff's own case, there was novation, but it was novation without recourse to the surety discharges, the surety, and all security.

In any event, the plaintiff admitted that a new arrangement came into place, it would therefore not sue on the old arrangement.

On the face of the documentary evidence, the money advanced to the principal debtor was paid off within just over a month of the advance. The second defendant contends that the net effect of the evidence on the principal debt and alleged sureties is:

(a) The agreement between the plaintiff and the principal debtor was novated;

(b) The plaintiff's claim had been compromised as between the plaintiff and the principal debtor;

(c) The obligations between the plaintiff and the principal debtor were materially and prejudicially altered;

(d) There was prejudicial extension of time within which to meet the alleged conditions of the contract as between the plaintiff and the principal debtor;

(e) There was prejudicial agreement not to enforce as between the plaintiff and the principal debtor.

A guarantee extends to the obligations which flow from the contract itself, the suretyship agreement could not apply to that new agreement - a novation by the agreement between the parties.

The plaintiff's claim was grounded on the fact, that, this novation agreement between the plaintiff and the principal debtor was not effected as desired, but, a novation releases the surety....,.

The plaintiff dismisses the defendants suggestion by all sureties, that, they should be released from suretyships because there was a material variation of the principal obligation.

It says that this point was not pleaded by the defendants and thus should not be considered....,.

This is an appeal against the whole consolidated judgment of the High Court dismissing the appellants application in HC4197/18 and granting the respondents application in HC1774/18.

The appellants are husband and wife and were, at one point, members of the United Family International Church (“UFIC”), the third respondent in casu.

The first and second respondents are also husband and wife and are the leaders (prophet and prophetess, respectively) of the United Family International Church (UFIC).

In the court below, the appellants instituted an action against the respondents, under HC7214/18 claiming a total sum of US$6,535,000 to be paid jointly and severally, the one paying the others to be absolved, broken down as follows:

“(a) Damages for US$700,000 being the value of property number 14 Edinburgh, Marlborough, Harare.

(b) A refund of the sum of US$1,698,000 for misrepresentation.

(c) US$37,000 being refund for fees paid to Tichaona Mawere.

(d) An amount of US$1,100,000 being a refund paid to the defendants.

(e) An amount of US$2,000,000 being damages for fraud and misrepresentation.

(f) An amount of US$500,000 being damages for mental anguish.

(g) US$500,000 being damages for defamation of character. (sic)

(h) Payment of interest on the sums in (a) to (g) above at the prescribed rate from the date of demand to the date of full and final payment.

(i) Payment of costs of suit on a legal practitioner and client scale.”

The claims were particularised in the declaration as summarised hereunder:

In 2012, and during church proceedings, the first and second respondents fraudulently misrepresented to the appellants “that anyone with a bank debt or loan was to be cancelled as it was a season of miraculous cancellation of debts.” (sic)

It is alleged, that, this followed after the respondents had been 'privately' informed that the appellants had an existing ZB Bank loan in the sum of US$500,000.

As a result of this misrepresentation, the appellants were induced not to pay back the loan, and, as a consequence, the Bank executed on their immovable property thus causing them to lose a property worth US$700,000.

In the same year, the respondents misrepresented in church, that, one Tichaona Mawere (Mawere) “was a great lawyer and that he would not lose a case” when in fact he was not a registered legal practitioner.

Acting on the misrepresentation, the appellants instructed the said Tichaona Mawere (Mawere) to handle their matter for a claim of US$1,698,000 and expended fees in the sum of US$37,000. Mawere produced fake court orders resulting in them making a loss to the tune of US$1,735,000.

That, in the period ranging from 2014 to 2016, the appellants were called on stage in church. The respondents would announce that the appellants “were a successful example in the Ministry.”

Acting on these “misrepresentations” the appellants made various direct contributions amounting to US$1,100,000 to the respondents. The respondents would represent “that, in so contributing, the plaintiffs (the appellants) would reap what was commensurate with their contributions.”

The appellants were again paraded in church on stage “as a chosen people by God to have succeeded in business.”

As a result of that further “misrepresentation” the appellants marketed the respondents prophecies for the advancement of the respondents interests and “their prophesies as the success story of the prophesies.” In the process, the appellants were prejudiced to the tune of US$2,000,000.

Before the amendment, which I shall deal with later, the claim was that “the defendants (the respondents) caused damages through defamation (sic) by publishing false articles against the plaintiffs and their business activities; articles claiming that the plaintiffs perfumes cause cancer.”

The appellant's claimed that “the defendants caused mental anguish to the plaintiffs, emotional embarrassment and torture by exposing the plaintiffs private lives on the defendants Facebook online page 'The Truth About Prophet Makandiwa.'”

It was further averred, that, the information had been given to the respondents “in private” and the statements were meant to destroy their reputation.

Upon being served with the summons, the respondents entered an appearance to defend.

They further addressed a letter to the appellants, in terms of Rule 140 of the High Court Rules 1971 (the Rules), to the effect that the claims in question were vague and embarrassing and that they did not disclose a cause of action.

It was averred that it was not clear whether the appellants were suing in terms of Contract or under the Law of Delict, and, as regards claims five and six, whether the claims were made under defamation or injuria.

The appellants did not respond to this letter.

Consequently, the respondents filed an exception to the appellants summons and declaration.

The exception was dismissed on 12 January 2018 by MANGOTA J who ordered that the appellants amend their declaration in respect of claims five and six, that the respondents file their plea, and that the matter proceeds in terms of the Rules.

As directed, the appellants amended their declaration in respect of claims three, five, and six.

It was amended by the addition of paragraph 20.1.

It was claimed, that, upon being confronted by the appellants, the respondents undertook to repay the appellants all the money they had contributed upon proof of such payment. Despite being furnished with the proof, the respondents have refused or neglected to pay in accordance with their undertaking.

It was amended by deleting the original claim and substituting it as summarised below:

The appellants were in the business of manufacturing and selling perfumes. On or around 16 August 2016, and after the fallout between the appellants and the respondents, the respondents caused to be published an article in the Herald Newspaper in which they said:

“You just need one person who can move around telling people that your perfumes can cause cancer and the news begins to spread; your company will begin to go down.” (sic)

“The statement was false and the respondents intended to spread a rumour and thereby injure the appellants in their trade. In view of the close relationship between the parties before the fallout, the words of the respondents caused a rumour to spread that the appellants perfumes cause cancer. As a result of the statement, and the subsequent rumours, the public desisted from purchasing appellants perfumes. Consequently, the appellants, through their company, ceased to manufacture the perfumes. The appellants suffered damages due to the respondents wrongful conduct in the sum of USD$500,000.”

The original claim was deleted and substituted with a claim summarized as follows:

On or about 2 February 2017, the respondents caused to be published on their Facebook page titled “The truth about Emmanuel Makandiwa” private and intimate details of the appellants which they had received in confidence. The publication of the details was wrongful and was done with an intention to injure the appellants standing in society, and was done in the wake of the fallout between the parties. Appellants suffered damages, as a result of the unlawful intrusion into their private lives, in the sum of USD$500,000.

Following the dismissal of the exception, and, on 23 February 2018, the respondents filed an application for the dismissal of the appellants claims in toto in terms of Order 11 Rule 75 of the High Court Rules, under HC1774/18.

The respondents, having failed to prosecute their application under HC1774/18 timeously, the appellants filed a chamber application for dismissal of the same for want of prosecution in terms of Rule 236(3)(b) of the High Court Rules, on 8 May 2018, under HC4197/18.

Since both matters were set down for hearing at almost the same time, and, before different judges, a request was made for their consolidation and it was granted.

The court' s approach was to determine the application in terms of Rule 236(3)(b) of the High Court Rules under HC4197/18 first.

It opined, that, if it granted the relief being sought by the appellants that would be the end of both matters. If it dismissed the application, then, it would proceed to hear the respondents application in terms of Rule 75 of the High Court Rules, under HC1774/18, which it coined the main matter.

Regarding the application for dismissal for want of prosecution, the court found that the reasons proffered for the delay in prosecuting the matter were reasonable. It also stated that it had a discretion to discharge the application or make any other order as it deemed fit in the circumstances.

In the result, the application for dismissal for want of prosecution was dismissed and the court ordered that the main matter be heard on the merits.

Pertaining to the issue of the dismissal of the appellants claims, in terms of Rule 75 of the High Court Rules, the court a quo dealt with each of the appellants claims in turn.

It found, that, the appellants claims were frivolous and vexatious and warranted summary dismissal.

Aggrieved by the decision of the court a quo, the appellants noted an appeal to this Court. This is the appeal that this Court is seized with.

“1. The court a quo erred and misdirected itself in that having found that respondents had, by their admission, failed to prosecute their cause within the prescribed period, it ought to have dismissed for want of prosecution; no special circumstances existing to exercise a discretion in their favour.

2. The court a quo grossly erred and misdirected itself in that a prior judgment of the High Court, in HH10-18, having established that a valid and substantiated cause of action based on fraud existed between the parties, it could not render otherwise.

3. A fortiori the court a quo effectively reviewed and contradicted an extant earlier judgment of a judge of parallel jurisdiction on the same cause, between the same parties, contrary to the principles of res judicata and issue estoppel.

4. The court a quo further erred and misdirected itself in finding, contrary to law, that, fraud and fraudulent misrepresentation did not constitute a valid cause of action at law; subsequently, the court a quo erred in failing to find that the question of whether fraud and its constituent elements had been proven was an evidentiary issue reserved for trial.

5. The court further grossly erred and misdirected itself in determining the matter regardless of conflicting material averments which could not be resolved on affidavit a fortiori, it could not find as a matter of fact that the claims by the appellants were frivolous and vexatious, absent evidence and its testing in contested action proceedings....,.

Regarding grounds four and five, the court, at the outset during the hearing, enquired of counsel for the appellants whether these grounds had been abandoned as they had not been motivated in the Heads of Argument.

In response, counsel for the appellants advised, that, none of the grounds were being abandoned.

On being asked to direct the court to where these grounds were motivated, he directed the court to paragraph 15 of the appellants Heads of Argument. This is what paragraph 15 states;

“Even if the court per TAGU J could revisit the question, it still did so wrongly and wrongfully. That there is a valid cause of action is beyond doubt. The law allows refunds and reimbursements for unlawfully paid funds. As a result, there cannot be argument that no cause of action can arise.”

The argument advanced in this paragraph completely misses the respondents position.

It is not that there is no cause of action. It is that the appellants pleaded falsehoods and that they could never succeed at trial on the facts as pleaded. Their action was therefore frivolous and vexatious.

The paragraph also misconstrues the finding of the court a quo.

Nowhere in the judgment a quo is it stated that a misrepresentation did not constitute a valid cause of action.

The court a quo examined each claim separately and gave reasons as to why it found each claim to be frivolous and vexatious. The crisp finding of the court a quo, in respect of each claim, was that on the facts as pleaded by the appellants, no competent cause could be sustained.

By way of illustration, in Claim One, the appellants alleged that the respondents alleged that they stopped paying the loan that they had obtained from ZB Bank on the basis of a prophecy made by the respondents to the effect that it was “a season of miraculous cancellation of debts.”

It could not, on the facts as pleaded by the appellants, be established through a deeds search at the Registrar of Deeds office that the appellants owed ZB Bank Limited USD500,000 and that the property they allegedly lost was bonded in favour of ZB Bank for that amount.

It could not be supported, factually, through a search carried out in the Civil Registry of the High Court that ZB Bank sued the appellants for USD500,000 between 2012 and 2017 as alleged, and that the property in question was attached or sold in execution as alleged or at all at the instance of ZB Bank Limited.

The reality on the ground, which the appellants never controverted, was that the property was at all material times owned by Carmeco Investments (Private) Limited (Carmeco) a separate persona from the appellants in terms of Deed of Transfer No.10763/2002 dated 24 September 2002.

In that regard, the law relating to companies applies with full force and effect.

The appellants cannot claim to have been prejudiced in respect of what they did not own.

In any event, as early as 29 February 2012 Carmeco Investments (Private) Limited had sold the property for USD800,000 to Nemajo Family Trust as represented by Steward Nyamushaya. The purchase price thereof was paid in full through the appellants agents, McDowells International (Private) Limited.

At no time did it appear from the deeds search that Carmeco Investments (Private) Limited, which owned the property, mortgaged number 14 Edinburgh Road, Marlborough to ZB Bank Limited for the sum of USD500,000 during the period 2012 to 2017.

The above illustration clearly demonstrates that the appellants pleaded falsehoods.

In their notice of opposition to the application, the appellants did not controvert these facts.

They contended, that, they did not have to reply to the evidence submitted by the respondents as it was a matter of evidence to be related to at trial.

They overlooked the fact, that, in terms of Rule 75(2) and (3) of the High Court Rules a party making an application in terms of subrule (1) is required to do two things:

(i) Firstly, he or she shall file an affidavit in which he sets out his belief that the action is frivolous and vexatious and the grounds for his belief.

(ii) Secondly, he or she may attach documents which verify his or her belief that the matter is frivolous and vexatious.

Once that information has been placed before the court, it should be incumbent upon the other party to controvert it.

In casu, the appellants did not do so. Rather, they directed their energy to a vitriolic attack on the respondents instead of addressing the requirements of Rule 75 of the High Court Rules.

Having misconstrued the court a quo's finding, grounds of appeal four and five must fail.

The two matters were consolidated to avoid conflicting judgments as the two matters involving the same parties, and same issues, were ready for arguments at almost the same time before different judges.

At the hearing of the two matters, counsels for the parties did not make oral submissions but agreed that the two matters be decided on the papers filed of record.

The following is the background to the two matters.

Upenyu and Blessing Mashangwa (the Mashangwas) are husband and wife respectively. They are members of the United Family International Church (UFIC).

Emmanuel and Ruth Makandiwa (the Makandiwas) are also husband and wife respectively. The Makandiwas are leaders (prophet and prophetess respectively) of United Family International Church (UFIC).

In case HC7214/18 the Mashangwas filed summons in this Honourable Court containing six claims against the Makandiwas and the United Family International Church for a total sum of US$6,535,000 to be paid jointly and severally, the one paying the other to be absolved.

In their declaration, the Mashangwas claimed that:

(1) In the year 2012, at Harare, and in church, the Makandiwas fraudulently and misrepresented to the Mashangwas that anyone with a bank debt or loan was to be cancelled as it was the season of miraculous cancellation of debts after the Makandiwas were informed, privately, that the Mashangwas had an existing ZB Bank loan to the tune of US$500,000.

As a result of the misrepresentation, the Mashangwas were induced not to pay the ZB Bank loan, and, in the result, the Bank executed on the Mashangwas property being 14 Edinburgh Road, Harare for $500,000 thereby losing their house valued at $700,000.

(2) In the same year, the Makandiwas misrepresented, in church, that one Tichaona Mawere was a great lawyer who would not lose a case, when, in fact, Mr Tichaona Mawere was an unregistered legal practitioner.

Acting on the misrepresentation, the Mashangwas handed over their McDowell file to the said Tichaona Mawere for a claim of US$1,698,000 and expended in fees an amount of US$37,000. Tichaona Mawere then produced fake court orders and the Mashangwas lost a total sum of US$1,735,000.

(3) In the years ranging from 2014 to 2016, the Mashangwas were called on stage, in church, by the Makandiwas and were announced as a successful example in their Ministry (UFIC).

Acting on this misrepresentation, the Mashangwas made various direct contributions to the Makandiwas and the church money amounting to US$1,100,000.

(4) The Mashangwas were also paraded in church, on the stage, by the Makandiwas, as the chosen people by God to have succeeded in business.

As a result of the misrepresentation, the Mashangwas marketed the Makandiwas prophecies to the tune of US$2,000,000.

(5) and (6) In claims (5) and (6), they alleged that the Makandiwas defamed them thereby destroying their reputation and causing monetary loss to the tune of USD500,000.

Having been served with the summons, the Makandiwas entered appearance to defend the claims.

They proceeded to address a letter, in terms of Rule 140 of the High Court Rules 1971, to the Mashangwas pointing out that the claims were vague and embarrassing and that they did not disclose a cause of action, and asked whether they were suing in contract or delict; and, as regards claim (5) and (6) asked whether the claims were in defamation or injuria.

The Mashangwas did not respond to the letter, causing the Makandiwas to file an exception on 30 August 2017 to the Mashangwas pleadings in terms of Order 21 Rule 137(1)(b) in case HC7214/18.

The exception was heard on 6 November 2017 by MANGOTA J in respect of all the six claims but was dismissed on 12 January 2018 and the Mashangwas were ordered to amend their declaration in respect of claims (5) and (6), and, the Makandiwas to plead, and thereafter, the matter was to proceed in terms of the High Court Rules 1971.

However, after the dismissal of their exception, the Makandiwas filed another court application on 23 February 2018 for the dismissal of the Mashangwas claims in terms of Order 11 Rule 75(1) of the High Court Rules 1971 in HC1774/18.

The Mashangwas, having felt that the Makandiwas had neglected or failed to timeously prosecute the court application which they instituted under case HC1774/18, filed a chamber application for dismissal on 8 May 2018 under HC4197/18.

Both applications were ready for hearing at almost the same time, before different judges, hence the consolidation of the two applications.

This court is therefore being asked to decide two issues simultaneously:

(i) The first issue is whether the Makandiwas application should be dismissed for want of prosecution as prayed for by the Mashangwas in HC4197/18.

In the event of this court granting the relief asked by the Mashangwas, this would be the end of the matters and this court will not deal with the Makandiwas application.

(ii) However, in the event that this court dismisses the Mashangwas application for dismissal, the court will proceed to deal with the second issue pertaining to the Makandiwas application for dismissal of the Mashangwas claims in the main case under HC7214/17....,.

After the dismissal of their exception in HC7214/17 the Makandiwas pleaded to the main case and filed this application for summary dismissal of the principal case as being frivolous and vexatious in terms of Order 11 Rule 75(1) of the High Court Rules 1971 (the Rules).

The principal case contained the six claims brought against them by the Mashangwas as outlined above. I shall endeavor to deal with each of the claims where possible.

Suffice to state, at this stage, that Rule 75 of the High Court Rules provides that:

“75 Application for Dismissal of Action

(1) Where a defendant has filed his plea, he may make a court application for the dismissal of the action on the ground that it is frivolous or vexatious.

(2) A court application in terms of subrule (1) shall be supported by affidavit made by the defendant or a person who can swear positively to the facts or averments set out therein, stating that in his belief the action is frivolous or vexatious and setting out the grounds for his belief.

(3) A deponent may attach to his affidavit, filed in terms of subrule (2), documents which verify his belief that the action is frivolous or vexatious.”

In their supporting affidavits, the Makandiwas prayed that the principal case must accordingly be summarily dismissed pursuant to Rule 75(1) of the High Court Rules, and contended, among other things, that the action in the principal case is not only both frivolous and vexatious, but also a self–evident gross and contemptuous abuse of the process of this court on the bases that -

“1. The plaintiffs have deliberately pleaded and founded their purported causes of action on deliberate and easily demonstrable falsehoods;

2. Each of the six (6) claims suffers from predictable failure and so groundless that no reasonable person could ever hope to obtain relief therefrom;

3. The principle case has not been brought with the bona fide intention of obtaining relief;

4. The proceedings have been brought with the sole and mala fide intention of annoying and harassing us. It as such amounts to the unmitigated abuse and contempt of this court and the process thereof; and

5. The principal case is inconsistent with reason and common sense, and, as such, unworthy of serious consideration.”

The respondents (the Mashangwas) opposed the application. They took seven points in limine. The points were:

(1) Matter passed in rem judicatam;

(2) Estopel;

(3) Disputes of fact;

(4) Unlawful reversal of order of proceedings;

(5) Attempt to avoid the consequences of a valid acknowledgement;

(6) Mala fides and abuse of court process; and

(7) Provisions of the Rules not available to applicants.

On the merits, they contended, among other things, that, Mr Makandiwa is a common fraudster, a false prophet who has no relationship with God, is a liar who lied about a lawyer called Tichaona Mawere, and many other ills.

The court will briefly look at the points in limine raised by the respondents....,.

I will deal with these preliminary points at once.

The respondents alleged, that, in a bid to arrest the matter after they demanded the money they had given to Mr Makandiwa, Mr Makandiwa undertook, in writing, that he was going to pay all sums as would have been proved to have been offered in a letter marked “B”.

The court was unable to see the veracity of such allegations because the said letter was never attached to the opposing affidavit.

On the mala fide and abuse of court process, the respondents submitted that there are sinister agendas which the applicants hope to pursue.

None have been elaborated as a basis for bringing this application under Rule 75(1) of the High Court Rules; serve to say same would be exposed during cross examination.

This application is redolent with irregularities. This, understandably, constrained the respondent to raise a number of points in limine praying for its dismissal.

The irregularities complained of, which were not fully conceded by the applicant, are these:

1. The application does not comply with Rule 227(3) in that when it was filed, it did not contain a draft of the order sought;

2. It offends against Rule 227(2)(d) in that it has more than five (5) pages but does not have an index attached;

3. It is unclear whether the application is being brought in terms of Order 32 (Ordinary Court Application) or in terms of Order 33 (an Application for Review). The applicant has prefaced its founding papers with a document titled 'Court Application' and another titled 'Application for Review' both prepared by the applicant's legal practitioners on 4 May 2010 and filed on 17 May 2010.

3. If it be taken as an application for review, it is fraught with deficiencies in that it fails to comply with Rule 256, Rule 257 and Rule 259 by not citing the arbitrator whose award is sought to be reviewed, by not stating shortly and clearly the grounds upon which the applicant seeks to have the proceedings set aside or corrected, and, by not having been filed within the stipulated eight (8) week period. Further, this Court does not have review jurisdiction in respect of arbitration proceedings.

On the basis of the foregoing alleged irregularities, the respondent moved the court to dismiss the application with costs on a higher scale.

The gravamen of the application is essentially for the setting aside of an arbitral award.

The applicant's legal practitioner, while making half-hearted concessions in respect of the above cited irregularities through skilful manipulation that is not taught in law school but acquired naturally thereafter, endeavoured to persuade the Court to invoke Rule 4C(a) and condone the departure from the provisions of the Rules flouted.

Regarding the non-attachment of the draft order, he insisted that one was attached to the application. He submitted that in any event, when the objection pertaining thereto was raised in the respondent's opposing affidavit, one was attached to the answering affidavit in case the respondent was truthful in objecting.

I am not persuaded that the respondent would have been that naive to raise an objection of this nature merely for the “heck” of it if such documents were attached. If that were the sole flouting of the Rules, the Court would not have any difficulty in invoking Rule 4C(a).

There are numerous others which are more material.

As regards the non-indexing of the application, this was conceded with the qualification that it was subsequently cured by the filing of a consolidated index thereby rendering the initial non-indexing irrelevant.

He asked the Court to invoke Rule 4 and condone the departure from the provisions of the Rules in the interests of justice.

For the same reason given when dealing with the non-filing of the draft order supra, I am not persuaded to condone.

Over and above that, that consolidated index being alluded to was not prepared by the applicant's legal practitioners but by the respondent's legal practitioners, ex mero motu, who are not the dominus litus.

Regarding the issue that the application was made using the wrong form of review instead of in terms of Article 34(2) of the Model Law in terms of the Arbitration Act [Chapter 7:15], the legal practitioner conceded the error and attributed it to a genuine but mistaken belief of law on his part.

This, quite apart from being utterly footling at law, for lawyers are presumed to know the law, the alleged mistake of law is so gross and persistent as to render it not only not genuine but inexcusable.

Here is a terse recital of the legal practitioner's blunders of the law which culminated in the one at hand:

(a) In what is titled 'Application For Review' (p3), it is stated:

“TAKE NOTICE THAT on a date to be set by the Registrar, an application will be made for the review of an arbitrary (sic) award made by the Honourable Mr Mordecai P. Mahlangu on the 23rd of February 2010 but received by the applicant on 3 March 2010…, on the following grounds.”

Six grounds for the review are then enumerated.

The founding affidavit clearly deals with an application for review.

In spite of being alerted to the irregularities alluded to supra by the respondent in the opposing affidavit, including the wrong form of the application, the applicant did not “reck”. It remained obdurate in its answering affidavit that the application for review was the proper one.

In paragraphs 4.1 to 4.3:

“4.1 The long and short of it all is that this is a Court Application for review. This is quite apparent on the papers. The document says it's a Court Application and the other defines it as one for review. No magic is required to discern this much.

4.2 The basis for the application for review could not have been stated in better terms than what it is in the founding affidavit. In summary and in simple terms, the award is being challenged on the grounds that it is contradictory, it is unreasonable, and it offends against public policy.

4.3 Citing the Arbitrator as a party to the proceedings is not a rule cast in concrete. Such non-joinder is not fatal to the proceedings….,.”

In paragraph 5.1 the applicant reiterates that the application was one for review by averring:

“Again, I should emphasis (sic) that there is no magic in how the grounds for review should be stated as long as they are stated with sufficient clarity to enable the Court to appreciate their substance.”…,.

In paragraph 6 of the answering affidavit, the applicant attempts to defend why the review application was filed outside the required eight (8) week period.

It avers that it first filed an application for review in the Labour Court within the eight (8) week period and alleges that a copy of that application is attached marked 'A'.

However, no such copy is attached!

After being awakened to the fact that only the High Court had exclusive jurisdiction to set aside an arbitral award made in terms of the Arbitration Act, by way of application, it then withdrew that application from the Labour Court. It alleges also that a copy of such withdrawal is attached marked 'B'.

Again, no such copy is attached!

In paragraph 7.1 the applicant avers that it believed that “respondent is wrong in its view that the High Court has no review jurisdiction in respect of arbitration proceedings;” and in paragraph 8.2 the applicant alleges that “our Courts have dealt with applications for setting aside such awards as ones for review.”

The foregoing recital displays what I may call an orgy of legal blunders on the part of the applicant's legal practitioner.

At the hearing, while conceding that this application should not have been brought by way of review, counsel for the applicant submitted, that, this Court is perfectly entitled to condone the use of the incorrect form of application seeking to rely on the case of Moyo v Forestry Commission 1996 (1) ZLR 173 (a case not cited in his Heads of Argument).

That case does not support the applicant's cause because it was overturned on appeal in the case of Forestry Commission v Moyo 1997 (1) ZLR 254.

In the earlier case, the point had been made in limine that a wrong procedure had been used and that the decision complained of should have been brought on review instead of an ordinary court application. The court a quo had held that the relief susceptible to review could be granted even though the proceedings had not been brought under the review procedure provided in the Rules. The court had also condoned the delay of over two (2) years, although there had been no application for condonation or explanation for the delay. The reason for so doing was that the decision to dismiss the respondent from employment was null and void because of gross procedural irregularities by the disciplinary enquiry, and so, to dismiss the application would constitute a failure to redress an injustice.

The Supreme Court, in overturning the decision of the court a quo, held inter alia, that, though the rules of court are not an end in themselves, to be slavishly applied for their own sake, they are there to regulate the practice and procedure of the High Court, and, in general, strong grounds would have to be advanced to persuade the court or judge to act outside them.

In casu, have strong grounds been advanced to persuade the court to act outside the Rules?

The answer must be perfectly in the negative. The orgy of legal blunders recited supra speaks for itself and admits of no other answer.

In spite of it having been pointed out that a wrong format has been employed in the launch of this application, the applicant persevered undaunted in its argument in futility that the application was one for review and that 'no magic is required to discern this much' and that the High Court has 'review jurisdiction in respect of arbitration proceedings.'

It was only in the applicant's Heads of Argument that the legal practitioner made an unexplained about turn stating that the application is one in terms of Article 34 of the Model Law, a review sui generis to be understood as one for setting aside in terms of Article 34(2)(b)(ii).

Article 34(2)(b)(ii) of the Model Law provides, that, the High Court can only set aside an arbitral award if it finds that the award is in conflict with the public policy of Zimbabwe.

The mere fact that the arbitral award is alleged to be 'in conflict with the public policy of Zimbabwe' as one of the grounds for review in the application per se does not imbue the review application with the nuance to transform it into an application in terms of Article 34 of the Model Law.

That an application under Article 34 of the Model Law must be made in terms of Order 32 and not Order 33 of the High Court Rules 1971 was put beyond doubt by GWAUNZA JA in Mtetwa and Anor v Mupamhadzi 2007 (1) ZLR 253 (S)…,.

The words of the learned Judge of Appeal, in that case, bear useful repetition for clarity. She said:

“It is contended for the appellants, that, they were perfectly within their rights to file an application for review/setting aside of the decision of the arbitrator in terms of Order 33 Rule 256 of the High Court Rules since there is nothing in that Rule which precluded them from bringing such an application.

This contention, I find, has no validity.

As discussed below, the Model Law, in its Article 34(1), makes it clear that recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paragraphs (2) and (3) thereof. Specifically, the relevant provision reads as follows:

'ARTICLE 34 Application for setting aside an exclusive recourse against arbitral award

(1) Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paras (2) and (3) of this article.'…,.

The use of the words 'exclusive' and 'only' in my view suggest that there is to be no compromise when it comes to an attempt to have an arbitral award set aside. The application must be made in terms of the provision cited. That provision quite simply and effectively precludes the applicants from filing their application for the setting aside of an arbitral award otherwise than in terms of paras (2) and (3) of Article 34.”

Further, the learned Judge of Appeal also found that the contention that there is nothing in Order 33 Rule 256 of the High Court Rules that prevented them from making the application in question under that Order was misplaced.

Article 34 of the Model, being part and parcel of a statute, the Arbitration Act, should hold dominance over Order 33 of the High Court Rules, which is subsidiary legislation.

In any case, so the learned Judge found, the purported application in question failed to satisfy even the provisions of Order 33.

Rule 256 of Order 33 makes it imperative by the use of the word “shall” for an applicant to “direct” his application to the person whose decision is to be reviewed, as well as to all other parties affected.

In the instant case, the application, as already pointed out above, was one for review of the arbitral award up until the stage of the applicant's Heads of Argument when a u-turn was made in a vain endeavour to clothe it with a semblance of one made in terms of Article 34 of the Model Law.

Indeed, the respondent avers that there is even an application before this court, in Case No.4120/10, seeking condonation for late filing of the review.

I did not hear the applicant to dispute this assertion.

It goes without quarrel that a wrong form for this application was adopted.

Even assuming that the application were permissible in terms of Order 33 of the High Court Rules, it would still fail to scale the insurmountable difficulty besetting it for flagrantly flouting provisions of Order 33.

Rule 256 of Order 33 makes it imperative by the use of the word “shall” for an applicant to “direct” the application to, inter alia, the person whose decision is to be reviewed, viz the arbitrator.

This omission to cite the arbitrator is fatal to a review application.

The applicant in casu did not cite the arbitrator.

In paragraph 4.3 of its answering affidavit, the applicant lamely tried to defend this omission saying “citing the Arbitrator as a party to the proceedings is not a rule cast in concrete. Such non-joinder is not fatal to the proceedings. In any event, the relief sought is against the respondent only.”

This argument does not hold water for it merely amounts to digging in the ashes.

Further, a review application in casu would also have been hamstrung by it being lodged outside the eight (8) week period permitted by the Rules.

It also does not state shortly and clearly the grounds for review.

In the result, on the totality of the numerous fundamental irregularities alluded to supra, I am satisfied that the application was improperly brought and is ill-conceived. I have no option but to dismiss it with no need to delve into the merits, with costs on the scale of legal practitioner and client.

It also behoves me to remark that I hope that Mr Kwaramba will not charge his client any fees regarding this aborted application.

As a result of runaway inflation and the sliding value of the local currency, in February 2009 the Government of Zimbabwe adopted the multi-currency regime as a mode of conducting financial transactions.

Salaries that had been pegged on the local currency lost buying power in the hands of the recipients. It became necessary to re-negotiate salaries and benefits across the board with the unions representing the appellant's employees.

In casu, the parties were unable to agree on a minimum wage and allowances. It was resolved to submit the dispute to voluntary arbitration through the Commercial Arbitration Centre.

On 13 January 2010, the Commercial Arbitration Centre in Harare appointed M.P. Mahlangu ('the arbitrator') to arbitrate the dispute between the parties.

After hearing the parties, on 23 February 2010 the arbitrator issued an award in the following terms:

“For the period between 1 May and 31 August 2009, the salary of the lowest earning employee of the respondent company should receive an adjustment of US$25 in respect of each month, and for the period between 1 September and 31 December 2009 a further US$25 adjustment should be effected. The effect of this on the lowest earning employee of the respondent is that, in total, the back-pay payable to him or her will be US$300.

In doing this, I realise that further financial strain will be added to the respondent but believe that this is necessary in fairness to the claimant.”…,.

The appellant was aggrieved by the award, and, on 17 May 2010 it filed a Court Application in the High Court.

Attached to the court application, under separate cover, was what was termed an Application For Review. One of the grounds upon which the review was sought was “that the arbitral award was in conflict with the public policy of Zimbabwe.”…,.

The respondent filed papers in opposition in which it raised a number of preliminary issues on alleged procedural irregularities appearing on the papers.

When the matter was heard, the High Court upheld the objections raised by the respondent, and, on 1 December 2010 the court a quo dismissed the application without determining the merits of the dispute.

This appeal is against the dismissal.

In the court a quo, the respondent relied on the following points in limine:

1. That, the application was fatally defective in that it was not clear whether or not it was a court application or an application for review;

2. That, in the event that it was an application for review, the application did not comply with the provisions of Order 33 of the rules of the High Court and the court should find that it was filed out of time;

3. That, if it was a review the arbitrator ought to have been cited as a party to the proceedings;

4. That, in any event, an arbitral award is not subject to review and the High Court lacks the jurisdiction to review an arbitral award outside the provisions of the Arbitration Act [Chapter 7:15] (the “Act”).

In upholding the preliminary issues, the learned judge in the court a quo said:

“In the instant case, the application, as already pointed out above, was one for review of the arbitral award up until the stage of the applicant's Heads of Argument when a u-turn was made in a vain endeavour to clothe it with a semblance of one made in terms of Article 34 of the Model Law. Indeed, the respondent avers that there is even an application before this Court in Case No. HC4120/10 seeking condonation for the late filing of this review.

I did not hear the applicant to dispute this assertion. It goes without quarrel that a wrong form for this application was adopted.

Even assuming that the application was permissible in terms of Order 33 of the High Court Rules, it would still fail to scale the insurmountable difficulty besetting it for flagrantly flouting provisions of Order 33.

Rule 256 of Order 33 makes it imperative by the use of the word 'shall' for an applicant to 'direct' the application to, inter alia, the person whose decision is to be reviewed, viz, the arbitrator.

The applicant in casu did not cite the arbitrator. This omission is fatal to a review application.

In para 4.3 of its answering affidavit, applicant lamely tried to defend this omission saying 'citing the arbitrator is not a rule cast in concrete. Such non-joinder is not fatal to the proceedings. In any event, the relief sought is against the respondent only.'

Further, an application for review in casu would also have been hamstrung by being lodged outside the 8 week period permitted by the rules.

The application does not comply with the requirements for an application for review in that it does not state, shortly and clearly, the grounds upon which an application for review would be sought in terms of Order 33 of the Rules of the High Court.”

The criticism that the learned judge in the court a quo placed more emphasis on form rather than substance cannot be denied.

It is true that the format adopted in launching the application does indeed cause confusion.

The applicant appears to have merged two applications into one. There is a court application to which is annexed an application for review, thus creating the impression that the applicant to the process is not confident of what form the intended proceedings should take.

Nevertheless, the application for review lists as one of the grounds of the application that the arbitration award was in conflict with the public policy of Zimbabwe.

That is a ground for review which is peculiar to the Arbitration Act, and, in particular, Article 34(2)(b)(ii) of the Model Law incorporated in the Arbitration Act.

To show the confusion under which the appellant's counsel was labouring under; in the answering affidavit, it is averred that the application is one for review in terms of the said Rules.

It was only in the heads of argument that reference was made to the Model Law.

Notwithstanding reliance by the appellant on the Model Law as a basis for the application, the court a quo was persuaded to find, that, what was before it was an ordinary review which had been brought in defiance of the provisions of Order 33 of the rules of the High Court.

Order 33 does not set out the grounds upon which a review may be launched. It merely sets out the form an application should take and sets out time limits for bringing such application.

The grounds upon which a review may be brought are set out in the High Court Act [Chapter 7:06], in particular section 27 thereof which reads in relevant part:

“27 Grounds for Review

(1) Subject to this Act and any other law, the grounds on which any proceedings or decision may be brought on review before the High Court shall be -

(a) Absence of jurisdiction on the part of the court, tribunal, or authority concerned;

(b) Interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case may be;

(c) Gross irregularity in the proceedings or the decision.

(2) Nothing in subsection (1) shall affect any other law relating to the review of proceedings or decisions of inferior courts, tribunals, or authorities.”

An examination of the additional grounds upon which the applicant sought reliance for relief points to those grounds as being an amplification of the first ground rather than grounds of review under Order 33 of the rules of the High Court.

None of those grounds are such as contemplated by the High Court Act as being grounds upon which the court could set aside any decision on the basis of its powers of review.

The conclusion by the court a quo, to the effect that what was before it was an ordinary review was therefore a misdirection.

The issue that begs an answer is: how the court a quo should have dealt with the matter given the apparent confusion that had been created by the appellant in settling its papers.

An application must be disposed of on the basis of the founding affidavit.

The only ground for review referred to in the affidavit is that the award is contrary to the public policy of Zimbabwe.

Granted, there is an averment within the affidavit to the effect that the decision of the arbitrator was irrational, but, the statement is made in the context of justifying the claim that the award was in conflict with the law.

The court a quo overlooked the dicta in ZESA v Maposa 1999 (2) ZLR 452 (S) wherein GUBBAY CJ stated…,.:

“Certainly, for some reason not easy to comprehend, the application purported to be in the nature of a review to the High Court rather than one brought pursuant to Article 34(2)(b)(ii) of the Model Law. Consequently, the ground justifying an order that the award be set aside was specified as 'gross unreasonableness in the decision arrived at.'

However, one of the particulars given of such unreasonableness was that the arbitrator had erred 'in holding that ZESA did not comply with section 13(2) of the code of conduct.'

This was to be read in conjunction with the earlier explanatory statement of the Chief Executive, that, the application in which Maposa sought an order that the looming disciplinary proceedings be held before an independent arbitrator as opposed to the disciplinary committee of the Board, caused such proceedings to be stayed.

When so viewed, it seems to me that the complaint, by implication, sets out the factual basis for the application to set aside the award as a breach of Article 34(2)(b)(ii). This is how the learned judge understood the contention, and, I do not think he was wrong. Accordingly, I am not persuaded that the objection raised is valid.”

In my view, these remarks apply with equal force to the facts of this case.

The facts, as contained in the founding affidavit, cried out for the setting aside of the award on the basis that it was contrary to the public policy of Zimbabwe.

Here, rather than an implication of the relief being sought, there was a statement identifying the basis upon which the award was being challenged. There was no need for further amplification, and, the fact that the applicant thereto described the application as one for a review to the High Court did not change the substance of what it was.

The applicant might have been confused as to the form that it was meant to take, but, the legal principle upon which the award was challenged was clearly stated and identified in the founding papers.

The heads of argument filed in support of the application state clearly and succinctly, that, the challenge to the award was predicated on the ground that recognition of the award would be contrary to the public policy of Zimbabwe.

The essence of the application was not lost upon the learned judge who commented that “…, the gravamen of the application is essentially for the setting aside of an arbitral award.”…,.

It becomes obvious that the learned judge understood the contention of the application and premise upon which it had been brought. It is then difficult to fathom the rationale for refusing to entertain the same on the premise that it was a review to the High Court.

The view I take is that there was no application for review before the court a quo. What was filed was an application to set aside an arbitral award under the Model Law.

It was for these reasons that we allowed the appeal and issued an order in the following terms:

“It is ordered that:

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

2. The judgment of the court a quo be and is hereby set aside.

3. The matter is remitted for a determination on the merits by the same judicial officer.”

This is an appeal against the dismissal by the High Court of the appellant's claim to property placed under attachment in execution, being a piece of land situate in the district of Salisbury called Stand 262 Mount Pleasant Township 9 of Lot 50 Mount Pleasant, measuring 4144 square meters also known as No.5 Westcott Road, Mount Pleasant, Harare.

The facts giving rise to the dispute are as follows:

On 23 March 2015, the second respondent obtained judgment against a company called Westcott Speciality Chemicals (Pvt) Ltd, the judgment debtor, in the sum of twenty four thousand four hundred and twenty one united states dollars (US$24,421).

Pursuant to the judgment, the second respondent instructed the Sheriff of Zimbabwe (the first respondent herein) to attach the judgment debtor's property at its principal registered office, being Number 187 Munhondo Street, Ruwa.

Upon arrival, the first respondent discovered that the property had already been attached in another matter. The judgment debtor apparently had ceased to operate from that address when the property was attached and had left no forwarding address.

In the circumstances, the first respondent issued a nulla bona return as an indication that there was nothing to attach.

The second respondent investigated the matter and discovered that the judgment debtor had moved its offices to No.5 Westcott Road, Mt Pleasant, being the appellant's residence.

The findings by the second respondent also revealed that the appellant was the director of the judgment debtor as well as its company secretary.

The second respondent formulated the view, that, the appellant was the alter ego of the judgment debtor.

It is at that point that the second respondent instructed the first respondent to attach the appellant's immovable property, namely, Stand No.5 Westcott Road, Mt Pleasant.

Upon such attachment, the appellant advised the first respondent that the property attached was owned by him in his personal capacity and not by the judgment debtor.

In the result, the first respondent instituted interpleader proceedings in terms of Rule 205A of the High Court Rules 1971.

During the proceedings in the court a quo, the second respondent argued, that, the court should pierce the corporate veil.

The second respondent further contended, that, where the director is the alter ego of the company he/she is always aware of the happenings of the company at any time. It was further submitted, that, the appellant has been running the company from his own premises and that the company is just a 'sham.'

Per contra, the appellant submitted that he is one of the four directors of the company and that it is the cardinal principle of Company Law that a company is a separate legal entity from its members.

He further submitted, that, because he is a separate entity from the company, the courts should be reluctant to pierce the corporate veil as to do so would negate or undermine the policy and the principles that underpin the concept of separate corporate personality and its legal consequences.

In determining the matter, the court a quo held that the appellant, although he was one of the four directors of the judgment debtor, was the only director who had been dealing with creditors.

He was also the Company Secretary and appeared in all meetings between the parties to discuss their business dealings.

It was also found that efforts to contact other directors who were indicated on the CR14 Form had yielded no response and that the only contact person in the company was the appellant.

The court a quo made findings to the effect, that, the appellant was the alter ego of the judgment debtor. He was the company and the company was him, and, the interests of justice required the lifting of the corporate veil to enable the second respondent to recover its dues.

In the result, the court a quo dismissed the appellant's claim to the immovable property.

Aggrieved, the appellant has noted an appeal to this Court on the following grounds:

(i) The court a quo erred in law in not finding that the lifting of the judgment debtor's corporate veil as a pre-condition to declaring the appellant's immovable property executable, required separate and specific proceedings against the appellant, and, as a consequence, further erred in not finding that such lifting of the corporate veil could not be done in inter pleader proceedings.

(ii) Alternatively, the court a quo improperly exercised its discretion and made an irrational decision in lifting the judgment debtor's corporate veil and in thereafter finding that the appellant and the judgment debtor were so inseparable as to permit the attachment of the appellant's immovable property in execution of the judgment in HC1566/15.

Counsel for the appellant submitted, that, there were two issues that ought to be determined:

(i) Firstly, he argued that the writ of execution issued against the property of the appellant was void ab initio since the property was not registered in the name of the judgment debtor.

(ii) Secondly, he claimed that it was irrational for the court a quo to lift the corporate veil so as to attach liability to the appellant; liability that would otherwise not exist.

On the other hand, counsel for the second respondent submitted that the lifting of the corporate veil in inter-pleader proceedings was permissible in order to prevent manifest injustice from being committed.

From the submissions made, it appears to me that the sole issue arising for determination is as follows:

The concept of separate legal personality of a company is the cornerstone of Company Law.

The cardinal principle of Company Law, as enunciated in Salomon v Salomon & Co. Ltd [1897] AC 22 (HL) and Dadoo Ltd & Others v Krugersdorp Municipal Council 1920 AD 530…, is that a company is a separate entity that is distinct from its members.

The concept of corporate personality is that a company, once it is registered, acquires a personality of its own, quite distinct from its members or shareholders: see Welli-Well (Pvt) Ltd v Malvern Imbayago & Anor SC08-21…,.

Because a company is separate from its members, the courts will not readily disregard such corporate legal personality and lift the corporate veil so as to attach liability to individuals who are related to the company.

This principle was buttressed in the case of Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd & Ors 1995 (4) 790 (A) SA..., wherein the court held as follows:

“It is undoubtedly a salutary principle that our Courts should not lightly disregard a company's separate personality, but should strive to give effect to and uphold it. To do otherwise would negate or undermine the policy and principles that underpin the concept of separate corporate personality and the legal consequences that attach to it.

But, where fraud, dishonesty, or other improper conduct is found to be present, other considerations will come into play.

The need to preserve the separate corporate identity would, in such circumstances, have to be balanced against policy considerations which arise in favour of piercing the corporate veil…, and a court would then be entitled to look to substance rather than form in order to arrive at the true facts, and, if there has been a misuse of corporate personality, to disregard it and attribute liability where it should rightly lie. Each case would obviously have to be considered on its own merits.”

Legislation also prescribes certain exceptions to the prevention of piercing of the corporate veil.

Section 318(1) of the Companies Act [Chapter 24:03] provides:

“(1) If at any time it appears that any business of a company was being carried on -

(a) Recklessly; or

(b) With gross negligence; or

(c) With intent to defraud any person or for any fraudulent purposes;
the court may, on the application of the Master, or liquidator, or judicial manager, or any creditor of or contributory to the company, if it thinks proper to do so, declare that any of the past or present directors of the company or any other persons who were knowingly parties to the carrying on of the business in the manner or circumstances aforesaid shall be personally responsible, without limitation of liability, for all or any of the debts or other liabilities of the company as the court may direct.”

Now that it has been established that the corporate veil can be lifted in the case of fraud or dishonest conduct, the question that follows is whether it is procedurally necessary for a judgment creditor to have obtained a prior court order lifting the corporate veil before attempting to attach the property.

The case of Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd & Ors 1995 (4) 790 (A) SA has indicated, that, even if there are other routes that can be taken, the mere failure to do so does not block the lifting of the corporate veil. The Court held as follows at p805G–806B:

“In principle, I see no reason why piercing of the corporate veil should necessarily be precluded if another remedy exists….,. If the facts of a particular case otherwise justify the piercing of the corporate veil, the existence of another remedy, or the failure to pursue what would have been an available remedy, should not, in principle, serve as an absolute bar to a court granting consequential relief….,.

Whatever laxity or 'fault' there may have been on the part of the appellant in failing to pursue its rights under the doctrine of notice pales into insignificance compared to the impropriety of Lubner's conduct. Yet, respondents seek to rely upon such failure to deny the appellant relief.

Policy considerations dictate that they should not be permitted to do so.

In the circumstances, the appellant's failure to pursue its remedy under the doctrine of notice does not, in my view, operate as a bar to the relief it seeks.”…,.

PATEL J…, commenting on the above excerpt in the case Deputy Sheriff v Trinpac Investments (Pvt) Ltd & Anor 2011 (1) ZLR 548 (H)…, held as follows:

“While these observations may not be directly pertinent to the question at hand, they certainly fortify the principle that mere procedural technicalities should not be allowed to frustrate or impede the effective satisfaction of a just claim. In any event, I see no logic or practical reason in requiring the judgment creditor to institute fresh proceedings in this Court to pierce the corporate veil in circumstances where those proceedings would entail the same conclusion that I have reached earlier.”…,.

There are no compelling reasons why the second respondent was obliged to institute fresh proceedings.

If the end result would be that the corporate veil would be pierced, certainly that order could still be granted in interpleader proceedings.

This is so because the court a quo found, that, the appellant was the only director dealing with the second respondent, he appeared at all meetings between the parties, and that only his email address appeared on the judgment debtor's letter heads. In the result, it was found that “the impression that one gets from the above facts is that the appellant is the company and the company is the appellant and that the two were in fact, and in truth, inseparable.”

Accordingly, in such circumstances, it is not necessary to institute fresh proceedings for the lifting of the corporate veil as all facts point to the conclusion that the appellant is the alter ego of the judgment debtor. The interests of justice do not require the institution of fresh proceedings as insisting on the same would be tantamount to denying the second respondent what is due to it: see Sibanda v Sibanda SC07-14…,.

While it is accepted that there are no hard and fast rules on the circumstances that justify the lifting or piercing of the corporate veil, with each case generally having to depend on its own facts and merits, I find this dictum from the case of Mkombachoto v Commercial Bank of Zimbabwe & Anor 2002 (1) ZLR 31 (H)…, to be apposite.

The court held as follows:

“In my view, the court has no general discretion to disregard the company's separate legal personality whenever it considers it just to do so. The court may 'lift the veil' only where otherwise as a result of its existence fraud would exist or manifest justice would be denied.”…,.

From the evidence placed on record, and the observations of the court a quo thereof, it can be seen that the appellant has been running the company from his residential address. He has been the one dealing with the second respondent throughout, and, from that alone, the impression that one gets is that the appellant and the judgment debtor are inseparable.

As a result, I am satisfied that there exists some element of dishonesty in the operations of the appellant in trying to evade liability. The court a quo cannot be faulted in exercising its discretion to lift the judgment debtor's corporate veil as a failure to do so would have resulted in manifest injustice being done.

In the result, the court a quo exercised its discretion properly by lifting the judgment debtor's corporate veil during interpleader proceedings. Failure to do so would have caused great injustice to the second respondent.

The appeal ought to fail with costs following the cause.

Accordingly, the appeal is dismissed with costs.

In Mashonaland Tobacco Company (Private) Ltd v Mahem Farms (Pvt) Ltd & Another SC152-20..., this Court summed up the general principle regarding the necessity of pleading a cause of action in these words:

“As a general rule, judgment cannot be granted on a cause of action that is not pleaded. The pleadings must clearly set out the precise parameters of the issues contested between the parties. Thus, in the Namibian case of Courtney-Clarke v Bassingthwaighte 1991 (1) SA 684 (Nm), at 698, it was explained that:

'…, there is no precedent or principle allowing a court to give judgment in favour of a party on a cause of action never pleaded, alternatively, there is no authority for ignoring the pleadings…, and giving judgment in favour of a plaintiff on a cause of action never pleaded. In such a case, the least a party can do if he requires a substitution of or amendment of his cause of action, is to apply for an amendment.'

In Medlog Zimbabwe (Pvt) Ltd v Cost Benefit Holding (Pvt) Ltd 2018 (1) ZLR 449 (S) at 455G, this Court aptly stated the position as follows:

'In general, the purpose of pleadings is to clarify the issues between the parties that require determination by a court of law.'

And, at page 456E-G that:

'25.6 In Jowell v Bramwell-Jones & Ors 1998 (1) SA 836 (W) at 898, the court cited with approval the following remarks by Jacob and Goldrein, Pleadings: Principles and Practice at pp 8-9:

'As the parties are adversaries, it is left to each of them to formulate his case in his own way, subject to the basic rules of pleadings…,. For the sake of certainty and finality, each party is bound by his own pleading and cannot be allowed to raise a different or fresh case without due amendment properly made.

Each party thus knows the case he has to meet and cannot be taken by surprise at the trial.

The court itself is as much bound by the pleadings of the parties as they are themselves. It is not part of the function of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings.

Indeed, the court would be acting contrary to its own character and nature if it were to pronounce upon any claim or defence not made by the parties.

To do so would be to enter the realm of speculation….,.

The court does not provide its own terms of reference or conduct its own inquiry into the merits of the case, but accepts and acts upon the terms of reference which the parties have chosen and specified in their pleadings.

In the adversary system of litigation, therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to.'”…,.

See also DD Transport (Pvt) Ltd v Abbot 1988 (2) ZLR 92 (S)...,.; City of Harare v Everisto Mungate SC86-22.

This is an appeal against the whole judgment of the High Court of Zimbabwe handed down on 31 August 2021, and ordering the eviction of the appellants and all those claiming occupation through them from a mining claim labelled Valentine 56.

At the end of the hearing, the court dismissed the appeal with costs and indicated that full reasons for the judgment would follow in due course. These are they.

The first respondent applied to the High Court for a spoliation order on the basis that it had been in peaceful and undisturbed possession of a mining claim known as Valentine 56 before being despoiled of it by the second appellant, a company registered in terms of the laws of Zimbabwe.

The deponent to the appellants joint opposing affidavit, one Thomson Moyo, averred that the second appellant was claiming mining rights through the first appellant.

The appellants opposed the application on the basis that the first appellant was the registered owner of the mining claim.

Per contra, the respondents case was that the appellants, sometime in May 2021, took unlawful occupation of the mining claim and began mining activities thereon. The first respondent had been conducting exploration on the same mining claim in the form of diamond drilling from 2020 until May 2021.

It was its case, that, valuation of the drilling results was underway and while awaiting these, they had temporarily ceased drilling activities on the claim. The results were required in order to determine how best to proceed with the diamond drilling.

During this temporary cessation of drilling, the appellants had taken occupation of the disputed mine and started conducting mining activities thereon. This led to a dispute between the first appellant and the first respondent as they both claimed they had mining claims to the property.

As a result of the dispute, the assistance of the third respondent (Provincial Mining Director) was sought, leading to the issuance by him of an injunction ordering all parties to cease mining at the mining location.

The third respondent also summoned the parties for purposes of negotiating a settlement of the dispute.

At the meeting, the second appellant, through Thompson Moyo, refused to sign the settlement consent form. The first respondent sought the assistance of the police to no avail, prompting it to file an urgent chamber application in the High Court for a spoliation order against the appellants.

It was the first respondent's case, that, despite the third respondent issuing an injunction in terms of section 354(5) of the Mines and Minerals Act [Chapter 21:05], and the dispute not having been resolved, the appellants continued to be in occupation of the mine, carrying out mining activities thereon.

In their defence, the appellants argued that there was never any forceful occupation of the disputed mine as the mining activities were being conducted on the first appellant's duly registered claim.

It was their view, that, the injunction in question was irregularly issued, which is why it was under challenge before the courts in case number HC731/21.

The appellants argued further, that, the application for spoliation was fatally defective since it was a disguised application for eviction and could, accordingly, not be heard on an urgent basis. This was because, so the argument went, the courts have held that eviction should always be by way of action.

They further argued, that, there were material disputes of fact that could not be resolved on the papers before the court a quo.

They also argued, that, a juristic person was incapable of despoiling anyone.

The third respondent, in his supporting affidavit, submitted that the records in his office confirmed the first respondent as the registered holder of Valentine 56 mining claim. This was supported by the ground verifications of the mining claims that his office had conducted.

The court a quo found, that, the argument that the application ought not to be heard on an urgent basis was a sterile argument which sought to emphasise form over substance. It found that the application was for a spoliation order and that the dispute as to who owned the mining claim was a matter for another day.

The court a quo further found, that, the fact that restoration of possession entailed removing the appellants from the mining claim did not make the application any less spoliatory in nature. It found that the first respondent was in undisturbed and peaceful possession of the claim before it was despoiled of it by the appellants.

Consequently, the court granted the order sought by the first respondent.

Disgruntled by the judgment of the court a quo, the appellants filed the present appeal on the following grounds:

(i) The court a quo grossly erred at law in granting an application for eviction on an urgent basis.

(ii) The court a quo misdirected itself in granting relief against the first appellant without any averment that it had unlawfully dispossessed the first respondent.

(iii) The court a quo grossly erred in granting relief when it was not shown that the first respondent was in physical control of the mine in dispute.

(iv) The court a quo misdirected itself by granting relief on an urgent basis when it had not been shown that the first respondent had treated the matter with urgency.

(i) Whether the court a quo misdirected itself by granting relief on an urgent basis; and

(ii) Whether the court a quo erred in granting the application in favour of the first respondent.

The appellants argue, that, the court a quo erred in granting an application for eviction on an urgent basis. Referring to the application in the court a quo as one of eviction rather than spoliation, the appellants argue that the first respondent's founding affidavit in the court a quo stated that the application was for eviction and that an application stands or falls on its founding affidavit.

Like the court a quo, this Court is not persuaded by the appellants submissions in this respect.

On p18 of the record, the first respondent expressly stated that the application was one for a spoliation order.

The appellants, it seems, have also ignored the fact that the first respondent further stated in its founding affidavit that the application was seeking an order restoring peaceful and undisturbed possession of the mine - a circumstance which is a major requirement for a spoliation order.

The first respondent therefore correctly argues that the appellants have 'mis-characterised' the application that was made in the court a quo.

The whole application a quo was speaking to the elements of a spoliation order rather than those for an application for eviction.

Eviction of the appellants was sought as a natural consequence of the spoliation order that the first respondent was seeking against them.

It is settled law, that, a spoliation order aims to restore the parties to the status quo ante, a process which would, in appropriate circumstances, require the removal of the spoliators from the property in issue. This result would necessarily not convert an application for spoliation into one for eviction.

Taking the foregoing into account, the court finds no fault with the finding of the court a quo, expressed thus in its judgment:

“The fact that such restoration entails removing the respondent does not make the application any less a spoliatory one.”

The court is accordingly satisfied, that, the application was properly brought before the court a quo and determined on the basis of urgency.

Ground of appeal number 1, being without merit, is hereby dismissed.

This is an appeal against the whole judgment of the High Court (“the court a quo”) handed down on 7 July 2022 in which it declined to assume jurisdiction in respect of an application filed by the appellant for the review of the recommendations of the second, third and fourth respondents in accordance with which the first respondent removed her from the office of Judge of the High Court.

Until 17 June 2021, the appellant was a sitting Judge of the High Court. She was removed from that office by the first respondent, the President of the Republic of Zimbabwe, acting in terms of section 187(8) of the Constitution of Zimbabwe 2013 (“the Constitution”).

Whenever the question of the removal of a sitting Judge arises, the Judicial Service Commission informs the first respondent, who, in terms of section 187(3) of the Constitution, is required to appoint a Tribunal to inquire into that question.

The second, third, and fourth respondents are members of the Tribunal appointed by the first respondent to inquire into the question of removing the appellant from the office of Judge of the High Court.

The salient facts are generally not in dispute and may be traced back to 9 October 2020, on which date the Judicial Service Commission advised the first respondent that a question of whether the appellant had to be removed from the office of Judge of the High Court had arisen.

On 5 November 2020, by dint of Proclamation 7 of 2020 published in Statutory Instrument 261B of 2020, the first respondent established a Tribunal constituted by the second, third, and fourth respondents to inquire into the aforementioned question of the removal from office of the appellant.

The Tribunal would conduct its business for a period of five months, from the date of the swearing in of its members.

The members of the Tribunal were duly sworn in on 18 November 2020, thereby triggering their mandate.

On 8 December 2020, the Tribunal served the appellant with a letter informing her of the matters into which it would inquire, chief among which was whether she had been grossly incompetent in performing or omitting to perform the acts mentioned in that letter.

The particulars of the matters into which the Tribunal would inquire are not germane to the resolution of this appeal.

The hearing before the Tribunal commenced on 18 March 2021 and was concluded on 22 April 2021 after several witnesses, and the appellant herself, had presented evidence.

The parties appearing before the Tribunal were thereafter requested to file their closing submissions, with the appellant being requested to submit her final response on 4 May 2021.

On 17 June 2021, having concluded its investigations, the Tribunal presented its recommendations to the first respondent.

The Tribunal found the appellant guilty of gross incompetence.

By letter of the same day, the Chief Secretary to the President and Cabinet advised the Honourable Chief Justice of Zimbabwe, that, the Tribunal had recommended the removal of the appellant from office for gross incompetence and that the first respondent had accordingly removed the appellant from office.

Against this background, the appellant harboured grievances. On 25 August 2021, she filed a court application for review in terms of sections 26 and 27 of the High Court Act [Chapter 7:06] as read with Rule 60 of the High Court Rules 2021. The appellant advanced multiple grounds of review.

Among the grounds was that the Tribunal had no jurisdiction to inquire into the question of her removal after 18 May 2021 since its five-month tenure had lapsed.

She added, that, it was grossly irregular for the Tribunal to disregard her preliminary objections on the basis of what had occurred during an earlier inquiry involving the removal of another Judge and not during her own inquiry.

It was also contended, that, it was a gross irregularity for the Tribunal to find her guilty of gross incompetence when she had not been charged with such a misconduct.

All in all, the appellant advanced no less than eight grounds of review on the basis of which she craved the grant of relief in the following terms:

“1. That the Applicant's application for review of the recommendations of the 2nd, 3rd and 4th Respondents dated 17 June 2021 and the subsequent decision of the 1st Respondent be and is hereby succeeds. (sic)

2. The recommendation of the 2nd, 3rd, and 4th Respondents dated 17 June 2021 and the subsequent decision of the 1st Respondent be and are hereby reviewed and set aside.

3. The decision of the 1st Respondent to remove the Applicant from the office of a Judge of the High Court in terms of section 187(7) and (8) of the Constitution be and is hereby set aside.

4. The Appellant be and is hereby reinstated to her position as a Judge of the High Court of Zimbabwe without loss to salary and benefits from the date of publication of Proclamation 7 of 2020.

5. The Respondents shall pay costs of suit.”…,.

The first respondent opposed the application, averring that the Tribunal had not acted without jurisdiction, and that, in removing the appellant from office, he had acted in accordance with section 187 of the Constitution.

He, therefore, prayed for the dismissal of the application.

Raising a number of preliminary objections, inter alia, that the court a quo lacked jurisdiction because the appellant had already noted an appeal to the Labour Court against the decision she sought to have reviewed; that, in terms of the Commissions of Inquiry Act [Chapter 10:07], they were not liable to any action or suit in respect of any matter or thing done by them while they were members of the Tribunal; and that, there was a fatal non-joinder of the Judicial Service Commission, the second, third and fourth respondents also opposed the application.

On the merits of the application, the second, third, and fourth respondents contended that none of the grounds of review had been established.

The hearing of the application proceeded before a panel comprising three Judges of the court a quo.

At the commencement of the hearing, the court a quo requested counsel for the parties to address it on the question of whether it still had review jurisdiction given that the appellant had already been removed from office by the first respondent in terms of the recommendations made to him.

What exercised the mind of the court a quo was whether it could entertain the application when a decision in accordance with the Constitution had ensued.

In its judgment, the court a quo recorded that invitation thus:

“[6] At the hearing, before going into the preliminary issues raised and the merits of the matter, the court invited submissions from the legal practitioners on the following critical legal issue - given that the first respondent acted on recommendations submitted to him by a tribunal and made a decision in terms of the Constitution to remove the applicant, does the court have jurisdiction to hear the matter?

It is trite that a court can raise mero motu the question of jurisdiction: see Boswinkel v Boswinkel 1995 (2) ZLR 58 (H) as cited with approval in Chikwenengere v Chikwenengere SC75-06.”

I note, in passing, that, during the hearing, counsel for the second, third, and fourth respondents were put to task on the question of whether their clients had any real interest in the application.

Following exchanges with the court a quo, they conceded that their interest in the matter was nominal and indicated that they would abide by the court a quo's decision.

The judgment of the court a quo was solely devoted to resolving the question that it invited the parties to address.

The court a quo considered, correctly in my view, that the issue of the removal of a sitting judge and a subsequent review application made to set aside recommendations of a Tribunal, to be novel in this jurisdiction.

It made several findings and conclusions of law on the basis of which it declined jurisdiction:

(i) Firstly, citing the decisions of this Court in Moyo v Mkoba 2013 (2) ZLR 137 (S) and Marange v Marange SC01–21, the court a quo stated that it is not, and would not, be the ultimate decision of the first respondent that is subject to review but only the process preceding it.

It reasoned, that, what could be subjected to review was only the process by which the Tribunal makes its recommendations.

(ii) Secondly, it considered the legislative framework outlining its review jurisdiction and also made a survey of approaches followed in different jurisdictions in respect of the review of the decisions of ad hoc Tribunals enquiring into the question of the removal of judges. These comparator jurisdictions included Nigeria, Kenya, South Africa, and India.

Following a lengthy discussion, the court a quo found that once the first respondent has acted upon a recommendation by a Tribunal on the question of whether a judge should be removed from office, that action becomes a decision in terms of the Constitution, whose validity cannot be reviewed. It stated;

“The question then becomes whether or not the decision made by the first respondent is subject to review by this court. Whatever recommendation is made, the President must act in terms of section 187(8). In my view, once removal or no removal is recommended and acted upon, it becomes a decision made in terms of the Constitution.

It could not have been the intention of the legislature that once such removal is finalised in terms of the Constitution, that this court assumes jurisdiction, even under the guise of 'inherent' jurisdiction, as contended by Mrs Mtetwa.

Conversely, in my view, it would be absurd for the Judicial Service Commission for instance, to seek a reversal of a recommendation not to remove a judge by way of an application for review in this court.”…,.

(iii) Finally, while accepting that the President's exercise of his prerogative power may be subject to review, the court a quo concluded, that, the first respondent did not exercise prerogative power in acting upon the Tribunal's recommendations which could be reviewed.

In its finding, the only executive powers of the President that are subject to review are those in which he has discretion or where he is required to act by a specific piece of legislation.

The court a quo reasoned that in the present matter, the first respondent had no discretion whatsoever once recommendations had been made concerning the question of the removal of a judge. In its view, he was required to act on those recommendations.

It was principally on the basis of the foregoing findings and conclusions of law that the court a quo declined jurisdiction.

Again, the appellant was disenchanted and dissatisfied with the decision of the court a quo. She noted an appeal to this Court.

She attacked the decision of the court a quo on several bases. Essentially, the grounds of appeal are an attack on the court a quo for declining jurisdiction and on its reasoning in arriving at the conclusion that it could not assume jurisdiction over the appellant's application.

Thus, the pre-eminent issue commending itself for determination is whether or not the court a quo erred in concluding that it had no jurisdiction over the appellant's review application.

At the commencement of the hearing, the court inquired from counsel for the second to the fourth respondents whether they had any intention to oppose the appeal since they had not filed any heads of argument and were, in any event, barred.

Counsel for the second and fourth respondents stated that his clients were not opposing the appeal and that he had made an appearance out of courtesy.

For her part, counsel for the third respondent indicated that her client was not opposing the appeal and that she had made an appearance simply to observe the proceedings.

Both counsel stated that their clients will abide by the decision of this Court.

There was also the sticking issue of the first respondent's non-appearance when he had strenuously contested the application in the court below.

In the end, following inquiry from counsel and examination of the record, the court was satisfied that counsel for the first respondent was aware of the set down. For unexplained reasons, he was not in attendance.

It is for that reason that the court proceeded to hear counsel for the appellant on the merits of the appeal - regrettably without the benefit of submissions from counsel for the first respondent.

Counsel for the appellant motivated the appeal in two parts:

In the first part, he argued that the court a quo had jurisdiction by dint of section 171(1)(a) of the Constitution and section 26 of the High Court Act [Chapter 7:06].

On the basis of those provisions, counsel argued that the original civil jurisdiction of the High Court is unlimited. The inherent power of the High Court, so it was argued, clothes it with the authority to adjudicate over any matter, being, in this case, the recommendations that were made by the second, third, and fourth respondents and acted upon by the first respondent.

Relying on the decision of this Court in Marange v Marange & Ors SC01–21, counsel argued further that the court a quo grossly misdirected itself in holding, that, once the first respondent has acted upon the recommendations by the second to the fourth respondents, they become non-reviewable.

He contended, that, there is no law that ousts the review jurisdiction of the High Court.

Counsel questioned how the legality of the process of the removal of a Judge, which process must be in accordance with the law as held in Bere v Judicial Service Commission & Ors SC01–22, can be interrogated when the court “shies away” from its jurisdiction.

In the second part of his submissions, counsel for the appellant submitted, that, the mere act of the first respondent, in terms of the Constitution, does not take away the irregularities that bedevilled the process of the removal of the appellant.

According to counsel, the first respondent has a duty to ensure that the Constitution, and other laws, are faithfully observed.

Thus, in light of the duty of the first respondent, the irregularities alleged by the appellant cannot be ignored once the first respondent has acted upon the recommendations.

In his view, an unlawful process can never give rise to a lawful decision.

Counsel drew an analogy between what the appellant seeks to do and what occurred in the case of Gonese & Anor v Parliament of Zimbabwe & Ors CC04–20.

In that case, the Constitutional Court set aside the passage of a Constitutional Bill in the Senate after the President had assented to it.

On this score, it was submitted that it is legally permissible for the court a quo to review the procedure followed in the appellant's removal, even after the first respondent has acted upon the recommendations emanating from that process.

A focused discussion of the applicable law requires that it be prefaced with an examination of the nature of the proceedings before the court a quo, the nature of the jurisdiction it was called upon to exercise, and the parties who were before it.

As already observed, the appellant launched an application in terms of the High Court Act and the rules of the High Court for the review of the recommendations of the Tribunal that inquired into the question of her removal.

Had the application succeeded, not only did the appellant pray that the court a quo exercise its power to review and set aside the recommendations by the second, third, and fourth respondents, but, also review and set aside the subsequent decision of the first respondent.

This much is readily apparent from the appellant's draft order filed in the court a quo.

It is common cause that the second, third, and fourth respondents were mandated, in terms of section 187 of the Constitution, to consider the question of the appellant's removal from office and to thereafter provide recommendations to the first respondent.

In turn, the first respondent was required, in terms of subsection [8] of section 187, which is of peremptory application, to act in accordance with the recommendations made to him.

Having said that, it is important, in developing the discussion further, to consider the rudimentary concept of jurisdiction.

In essence, jurisdiction connotes the power reposed in a court to adjudicate upon, determine, and dispose of a matter: see Sadziwani v Natpak (Pvt) Ltd & Others CC15-19…,.

Ordinarily, a superior court such as the court a quo, has inherent and unbridled jurisdiction.

However, such jurisdiction may and is often limited by a statute, and, in some cases, the common law may place or develop limitations on the jurisdiction of a court.

Limitations may, among other aspects, be placed on the subject-matter, monetary value, persons, or territory over which a court may exercise its jurisdiction.

The following passage in HERBSTEIN and Van WINSEN, The Civil Practice of the High Courts and Supreme Court of Appeal of South Africa, 5ed (2009)…, illustrates the varying nature of limitations usually placed upon a court's jurisdictional powers:

“Generally speaking, limitations may be placed upon the power of a court in relation to factors such as territory, subject-matter, amount in dispute, and parties. Each High Court has jurisdiction with regard to a specific territory within the Republic of South Africa. The power of the High Courts may be limited by legislation which assigns certain types of matters to other courts.”

The learned authors go on to add that:

“The limitations upon the jurisdiction of the High Court and the Supreme Court of Appeal are mainly statutory, though the common law also imposes some limitations. The Constitution itself provides limitations by reserving certain matters for the exclusive jurisdiction of the Constitutional Court….,.”…,.

It is also instructive to examine the provisions of the Constitution which delineate the jurisdiction of the High Court in matters that are directly permeated by the Constitution.

Section 171(1)(c) of the Constitution provides that:

“(1) The High Court —

(a) Has original jurisdiction over all civil and criminal matters throughout Zimbabwe;

(b) Has jurisdiction to supervise magistrates courts and other subordinate courts and to review their decisions;

(c) May decide constitutional matters, except those that only the Constitutional Court may decide; and

(d) Has such appellate jurisdiction as may be conferred on it by an Act of Parliament.”…,.

Although the High Court has constitutional jurisdiction, its jurisdiction in such matters is ousted in respect of matters that are within the exclusive power of the Constitutional Court.

So, by clear and unambiguous legislative pronouncement, that court has no jurisdiction whatsoever over those constitutional matters “that only the Constitutional Court may decide.”

It follows that subsections (2) and (3) of section 167 of the Constitution, outlining part of the jurisdiction of the Constitutional Court, have a bearing on the resolution of this matter. They provide:

“(2) Subject to this Constitution, only the Constitutional Court may —

(a) Advise on the constitutionality of any proposed legislation, but, may do so only where the legislation concerned has been referred to it in terms of this Constitution;

(b) Hear and determine disputes relating to election to the office of President;

(c) Hear and determine disputes relating to whether or not a person is qualified to hold the office of Vice-President; or

(d) Determine whether Parliament or the President has failed to fulfil a constitutional obligation.

(3) The Constitutional Court makes the final decision whether an Act of Parliament or conduct of the President or Parliament is constitutional, and must confirm any order of constitutional invalidity made by another court before that order has any force.”…,.

Section 167(2)(d) of the Constitution exclusively gives the jurisdiction to determine whether the President or Parliament has failed to fulfil a constitutional obligation to the Constitutional Court.

The provision inherently implies, that, where the disposition of a matter is dependent on a finding relative to the question of whether the President or Parliament failed to fulfil a constitutional obligation, no other court, besides the Constitutional Court, will have jurisdiction over the subject matter.

This point was emphasized by the Constitutional Court in Chirambwe v President of the Republic of Zimbabwe & Others CC04–21…, where the court said:

“[49] Section 110(2)(d) of the Constitution of Zimbabwe recognises, as an executive function, the making of appointments by the President. The question whether the President has failed to properly make an appointment as directed by the Constitution is a matter that requires the Court to intrude into the executive functions of the President and hence it falls squarely within the exclusive jurisdiction of this Court.

In Von Abo v President of the Republic of South Africa 2009 (5) SA 345 (CC) the South African Constitutional Court held that a decision of the President that flows directly from the Constitution and that relates to the relationship between the judicial and executive branches of the State generally falls within the exclusive jurisdiction of this Court.”…,.

There is also another provision of the Constitution that sheds light on the constitutional jurisdiction of the High Court. It is section 175(1) of the Constitution, which provides for the powers of the courts in constitutional matters thus:

“(1) Where a court makes an order concerning the constitutional invalidity of any law or any conduct of the President or Parliament, the order has no force unless it is confirmed by the Constitutional Court.”

There is no gainsaying that section 175(1) of the Constitution is critical on the exercise of the constitutional jurisdiction of all courts in whom such jurisdiction is invested in matters that are not within the exclusive jurisdiction of the Constitutional Court.

The harmonious relationship between section 167(2)(d) of the Constitution, which allows only the Constitutional Court to determine whether the President has failed to fulfil a constitutional obligation, and section 175(1) of the Constitution which allows “a court” to make an order concerning the constitutional invalidity of the conduct of the President, has implications on the jurisdiction of the High Court in matters involving the conduct of the President.

The reason for this is that there is a thin line between a failure by the President to fulfil a constitutional obligation and the conduct of the President that is constitutionally invalid.

One may suppose that in most cases, a failure to fulfil a constitutional obligation will also involve conduct that is constitutionally invalid.

In saying so, I am mindful of the celebrated principle of constitutional interpretation that the provisions of the Constitution must be considered holistically to find the legislative intendment.

The Constitutional Court has had occasion to pronounce on that principle in a number of cases.

In Mupungu v Minister of Justice Legal and Parliamentary Affairs & Ors CC07-21…, PATEL JCC made the point, that, all relevant provisions that bear on the subject for interpretation must be considered together and as a whole so as to give effect to the objective of the Constitution, having regard to the nature and scope of the rights, interests, and duties that form the subject matter of the provisions to be construed.

See also Chamisa v Mnangagwa & Ors CC21-19…,.; Museredza & Ors v Minister of Agriculture, Lands, Water and Rural Resettlement & Ors CC01–22…,.; and Mawere v Registrar General CC04–15…,.

Where a court of competent jurisdiction, other than the Constitutional Court, is faced with the question of whether the case before it involves a failure by the President to fulfil a constitutional obligation or constitutionally invalid conduct by the President, such a court must, perforce, be certain of the nature of the case before it lest it unlawfully assumes jurisdiction over a matter that is within the preserve of the Constitutional Court in terms of section 167(2)(d) of the Constitution.

In that regard, the views expressed by the Supreme Court of Appeal of South Africa, in the case of King and Others v Attorneys Fidelity Fund Board of Control and Another 2006 (1) 474 (SCA)…, are apposite:

“[12] The main question is whether this Court is precluded from pronouncing on the appellants complaint. Though an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court, this Court and the High Courts have jurisdiction to 'make an order concerning the constitutional validity of an Act of Parliament' (s172(2)(a)). Section 167(4)(e), however, allows only the Constitutional Court to 'decide that Parliament or the President has failed to fulfil a constitutional obligation'.

[13] Before the hearing, this Court invited the parties to make submissions on this issue, which was not argued before Chetty J. Both sides rightly submitted that the words 'constitutional obligation' in s167(4)(e) must bear a restricted meaning.

The Constitutional Court has said as much.

In President of the Republic of South Africa and Others v South African Rugby Football Union and Others, a case concerning the conduct of the President, the Court pointed out that if s167(4)(e) were construed as applying to all questions concerning constitutional validity of conduct of the President, it would conflict with s172(2)(a).

It therefore considered that when the two sections are read together a 'narrow meaning' should be given to 'fulfil a constitutional obligation' in s167(4)(e), though it found it unnecessary to decide what that meaning should be.

[14] The purpose of the constitutional provisions giving exclusive jurisdiction to the Constitutional Court is 'to preserve the comity between the judicial branch of government, on the one hand, and the legislative and executive branches of government, on the other, by ensuring that only the highest Court in constitutional matters intrudes into the domain of the principal legislative and executive organs of State'.

Since the Constitutional Court bears 'the responsibility of being the ultimate guardian of the Constitution and its values' s167(4) vests it with exclusive jurisdiction in 'crucial political areas' and it bears the duty 'to adjudicate, finally, in respect of issues which would inevitably have important political consequences'.

[15] These are the clear premises. The question is whether they leave space for this Court and the High Courts to grant an order of statutory invalidity when the defect is alleged to arise from breach of a constitutional obligation….,.

[16] In our view, these approaches [contended for by counsel in the case] impermissibly attenuate the jurisdictional exclusion in s167(4). Although s172(2) grants power to this Court and the High Courts 'to make an order concerning the constitutional validity of an Act of Parliament' the co-existence of the two provisions requires that we distinguish between different ways in which the Constitution envisages that statutes may be invalid.”…,.

While I have selectively and carefully relied on King and Others v Attorneys Fidelity Fund Board of Control and Another 2006 (1) 474 (SCA), in light of the reservations expressed by the Constitutional Court in Chirambwe v President of the Republic of Zimbabwe & Others CC04–21 as to its compatibility with our jurisprudence, I find the observations made therein somewhat illustrative of the necessity to determine whether a matter involving an act, conduct, or decision of the President would be in the exclusive jurisdiction of the Constitutional Court.

In Chirambwe v President of the Republic of Zimbabwe & Others CC04–21…, the Constitutional Court set out the test to determine whether a matter falls within the exclusive jurisdiction of the Constitutional Court as being “whether the issues raised involve an intrusion into the domain of either Parliament or the President's executive powers.”

See also Mujuru v The President of Zimbabwe & Ors CC08-18…, for a discussion on the term “constitutional obligation”.

The import of the above is that notwithstanding section 175(1) of the Constitution, where a court with constitutional jurisdiction has been approached to set aside, either directly, or as consequence of some other constitutionally invalid act or conduct, an act or decision of the President on the basis it falls short of the constitutional requirements, such a court must be certain that the matter before it is not one involving a failure by the President to fulfil a constitutional obligation.

Any such matter is obviously within the exclusive jurisdiction of the Constitutional Court.

The comity demanded among the arms of the State necessitates that only the highest court in constitutional matters pronounces upon the defiance of the Constitution by the President or Parliament: see Mliswa v Parliament of the Republic of Zimbabwe CC02-21…, and Chirambwe v President of the Republic of Zimbabwe & Others CC04–21.

In the words used in King and Others v Attorneys Fidelity Fund Board of Control and Another 2006 (1) 474 (SCA), subordinate courts must not impermissibly attenuate the jurisdictional exclusion of section 167(2)(d) of the Constitution because it could not have been the intention of the legislature in enacting section 175[1] of the Constitution to dilute the exclusivity enjoined by the Constitutional Court by opening the floodgates for courts inferior to it to join the fray on such matters.

This case also brings to the fore the presumption of constitutionality or constitutional validity.

The presumption of constitutionality can be understood in a couple of senses:

In the first sense, the presumption operates in favour of certain executive, administrative, or legislative acts, which are taken to be constitutionally valid unless proven to be otherwise.

The presumption was lucidly set out by BHUNU JA in Econet Wireless (Pvt) Ltd v Minister of Public Service, Labour and Social Welfare & Ors SC31–16…, as follows:

“What this means is that all questioned laws and administrative acts enjoy a presumption of validity until declared otherwise by a competent court. Until the declaration of nullity, they remain lawful and binding, bidding obedience of all subjects of the law.”…,.

In the case of Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20…, the court held that the presumption of constitutionality also applies to the conduct of the business of the National Assembly.

In the most common sense, the presumption of constitutional validity is invoked in respect of legislation.

Where legislation is capable of two meanings, one of which accords with the Constitution; it is always presumed that the meaning that is consistent with the Constitution is the meaning that Parliament intended to ascribe to the legislation.

In that regard, any person alleging that a piece of legislation is unconstitutional bears the onus to rebut the presumption: see Zimbabwe Electoral Commission & Anor v Commissioner-General, Zimbabwe Republic Police & Ors 2014 (1) ZLR 405…,.; In Re: Prosecutor General of Zimbabwe on his Constitutional Independence and Protection from Direction and Control CC13-17…,.; Mujuru v President of Zimbabwe & Ors CC08-18…,.; and Kawenda v Minister of Justice, Legal and Parliamentary Affairs & Ors CC03-22…,.

This case partly hinges upon the first sense in which the presumption of constitutionality is used.

If a decision, act, or conduct of the President is susceptible to being set aside on the basis that the President failed to fulfil a constitutional obligation, then, only the Constitutional Court would have the jurisdiction to make such a declaration.

In the meantime, that decision will remain valid until the presumption operating in its favour is appropriately negated following proceedings in a court with the requisite jurisdiction.

The court a quo's starting point was to ask the question whether its review jurisdiction had been ousted since a decision, in terms of the Constitution, had been made by the first respondent.

It occurs to me, that, that was somewhat the wrong question to ask since the finality of the first respondent's decision is not a determinant factor on the question of jurisdiction.

All that the court a quo had to do was consider the statutory framework on its jurisdiction and then decide whether there was anything in that framework ousting its jurisdiction to review the recommendations of the Tribunal after the first respondent had acted upon them.

It is not the conclusiveness or finality of a constitutional step, act, or conduct that ousts the jurisdiction of a court to review that step, act, or conduct.

The court a quo, in determining its review jurisdiction over what it called “a decision in terms of the Constitution to remove the [appellant]” ought to have been guided by the presumption against the ouster of the jurisdiction of the High Court, which would have compelled it to identify a positive, clear, and unambiguous provision limiting the jurisdiction of the High Court in constitutional matters - which is section 167(2)(d) of the Constitution.

Drawing on an analogy of the facts in the case of Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20, counsel for the appellant correctly argued, that, it is possible for an act, law, conduct, or decision to be set aside even after it has been concluded or finalised.

Though that analogy is compelling, it does not establish a basis for the High Court to assume jurisdiction in this case.

In any event, that case is distinguishable on the basis, that, the court which assumed jurisdiction there was the Constitutional Court and not the High Court.

It is correct, as argued by counsel for the appellant, that, the High Court has original civil jurisdiction to review the proceedings of any inferior court or tribunal. However, the provisions of section 171(1) of the Constitution are not the only provisions of the Constitution shedding light on the jurisdiction of the High Court.

As already observed, the jurisdiction of the High Court, in constitutional matters, is limited to those matters that are not within the exclusive jurisdiction of the Constitutional Court.

Accordingly, the High Court does not have jurisdiction over a matter falling within the ambit of section 167(2)(d) of the Constitution.

It is with this consideration in mind that I have already adverted to the exhortation that a court must be careful not to assume jurisdiction over a matter that only falls within the exclusive competence of the Constitutional Court.

I entertain the view, that, the question of whether or not the court a quo had the requisite jurisdiction over the appellant's causa is better understood and resolved in the context of the appellant's draft order wherein she sought relief to set aside the decision of the first respondent.

In order to determine whether only the Constitutional Court would have the jurisdiction to set aside the decision of the first respondent, there is a need to ascertain that the constitutional invalidity of that decision is based on a failure to fulfil a constitutional obligation.

But, before that is even determined, the appellant's founding affidavit a quo must set out the basis upon which the court a quo was called upon to review and set aside the decision of the first respondent.

In carrying out the enquiry whether this matter is within the exclusive jurisdiction of the Constitutional Court, one must first be satisfied that there is a constitutional matter.

In Moyo v Chacha & Ors 2017 (2) ZLR 142 (CC) …, while commenting on the definition of a “constitutional matter” that is provided by the Constitution, the Constitutional Court stated as follows:

“The import of the definition of 'constitutional matter' is that the Constitutional Court would be generally concerned with the determination of matters raising questions of law, the resolution of which require the interpretation, protection, or enforcement of the Constitution.

The Constitutional Court has no competence to hear and determine issues that do not involve the interpretation or enforcement of the Constitution or are not connected with a decision on issues involving the interpretation, protection, or enforcement of the Constitution.”

The defining character of a constitutional matter is the interpretation or enforcement or protection of the Constitution.

Thus, it has been stressed that the mere reference to a provision of the Constitution does not imbue a matter with constitutional character.

The opposite, though less persuasive, may also true.

The absence of a reference to the Constitution does not mean that a matter is not a constitutional matter, although, in most constitutional matters, there generally would be reference to the Constitution: see Bere v Judicial Service Commission & Ors CC10-22…,.

As stated in Moyo v Chacha & Ors 2017 (2) ZLR 142 (CC), one must simply be satisfied that a matter raises questions of law, the resolution of which require the interpretation, protection, or enforcement of the Constitution.

A related issue of important consideration is the point at which a matter assumes constitutional character.

In Bere v Judicial Service Commission & Ors CC10-22, the Constitutional Court held that a constitutional matter cannot arise for the first time on appeal when it was not available or in existence in the subordinate court. At p14, it was stressed that:

“In order to determine whether or not there was a constitutional matter before the court a quo, the dispute must be traced back to the court of origin, in this case, the High Court.”

Turning to the facts of this case, the application a quo had all the characteristics of a non-constitutional matter.

The court application plainly declared, that, it was for review in terms of Rule 60 of the High Court Rules, 2021 as read with sections 26 and 27 of the High Court Act [Chapter 7:06].

The application further stated, that, the subject of the review was the first respondent's decision made in terms of section 187(7) and (8) of the Constitution on 17 June 2021.

In paragraph 12 of her founding affidavit, the appellant unequivocally stated that:

“The present application is for the review of the decisions of the Respondents that led to my removal from the office of a judge.”

The application a quo is ostensibly based on common law grounds of review.

There are scant references to any provisions of the Constitution. In fact, those references were merely intended to buttress the common law grounds on which the application is based.

For instance, the appellant made reference to section 190(4) of the Constitution intending to explain that the Tribunal ignored the preliminary point that she raised.

As a preliminary point, she had argued that she was first supposed to be subjected to the constitutional disciplinary procedure provided for in section 190(4) of the Constitution before the Tribunal could proceed to enquire into the matters that were before it.

The appellant also referred to section 69 of the Constitution, suggesting that the preliminary points she raised were of crucial importance to her right to a fair hearing before an independent and impartial Tribunal.

Given that the matter was not heard on the merits, it suffices for me to simply observe that the resolution of the allegation that the preliminary points she raised were not considered is unlikely to have yielded a constitutional matter.

Further on, the appellant also made reference to section 56 of the Constitution in paragraph 15.5 of her founding affidavit to support her contention that the Tribunal did not consider the preliminary objection that the Judicial Service Commission submitted her matter to the first respondent without following the provisions of Statutory Instrument 107 of 2012.

She sought to make the point, that, the same provisions were followed in the case involving Mr Justice Bere who had earlier on been subjected to an inquiry.

Thus, reference to section 56 of the Constitution was intended to demonstrate, bearing in mind the imperativeness of the right to equality, that the Tribunal failed to pronounce on an important preliminary point.

Therefore, the ineluctable conclusion to be drawn from an analysis of the appellant's founding affidavit is that it did not present a constitutional matter.

The issue, however, does not end there.

It must be remembered that the appellant sought the review and setting aside of the second, third, and fourth respondents recommendations and the subsequent decision of the first respondent.

In particular, there must be clarity as to the nature of the jurisdiction required to set aside the decision of the first respondent.

It is important to specifically advert to the grounds upon which the appellant intends to have the decision of the first respondent set aside.

The grounds appear to have been canvassed simultaneously, in the founding affidavit, with the basis upon which the appellant sought to have the recommendations of the second, third, and fourth respondents set aside.

For good measure, regarding the allegation that the recommendations of the second, third, and fourth respondents were made at a time when there was no longer any valid Tribunal, the appellant averred in paragraph 13.13 that:

“This means that the recommendations…, were made at a time when there was no valid Tribunal which could present a valid report, and, as such, the recommendations are a legal nullity and ought to be set aside. Once the recommendations became unlawful, and therefore a legal nullity, the 1st Respondent could not act on them as he is constitutionally barred from acting on unlawful actions. Consequently, his accession to an unlawful recommendation is tainted and must itself be set aside.”…,.

On the allegation that she was not given a right to address the Tribunal in mitigation and to be heard on the appropriate penalty, the appellant averred in paragraph 14.7 of her founding affidavit that:

“The 1st Respondent was misled when the Tribunal members claimed that there were no extenuating circumstances when these could not be considered in the absence of a hearing in mitigation.”

On that score, she added that the recommendations to the first respondent, and his subsequent decision, ought to be set aside because he “ought only to act on recommendations properly reached after following due legal process.”

On the failure to determine the preliminary points she raised before the Tribunal, the appellant avowed that such a failure constituted a gross irregularity that vitiated the recommendation by the second, third, and fourth respondents as well as the subsequent decision of the first respondent.

This is set out in paragraph 15.7 of the appellant's founding affidavit.

Thereafter, the appellant canvassed the allegation that she was not provided with documents that would be relied on during the Tribunal proceedings. On that point, she concluded in paragraph 17 of her founding affidavit thus:

“It is my view that I have made a case for the review of the recommendations of the 2nd, 3rd, and 4th Respondent to be set aside, together with the subsequent decision of the 1st Respondent on this additional ground.”

Beyond these averments, one would not find any other averment on the basis of which the decision of the first respondent would be reviewed and set aside.

The effect of the application a quo would have been that the decision of the first respondent would be set aside as a consequence of findings made by the court a quo on non-constitutional grounds of review.

In light of the relief sought against the decision of the first respondent, the question that begs an answer on the jurisdiction of the court a quo is: whether it would have had the power to set aside that decision on the basis of the averments in the applicant's founding affidavit.

A fortiori, would the High Court even have the jurisdiction to set aside the decision in the circumstances?

The decision having been apparently made on the basis of the procedure and provisions of section 187 of the Constitution, it necessarily follows that the invalidity of the first respondent's decision must ordinarily be predicated upon a breach of the provisions of section 187 of the Constitution.

To exemplify this conclusion, the logic behind the appellant's basis of review must be laid bare.

Essentially, the appellant argues that the decision of the first respondent is invalid simply because it is predicated upon recommendations that are null and unlawful due to the procedural irregularities cited.

It is trite that if an act is a nullity, then, nothing can stand on it.

Thus, taken to its logical conclusion, the appellant's basis for impeaching the first respondent's decision is that his decision is invalid since there were no lawful and valid recommendations in terms of which a decision could be taken, as stipulated by section 187(8) of the Constitution.

Whether the recommendations of the second, third, and fourth respondents are null and unlawful is a question that has not been adjudicated upon and determined. They can only be regarded as such when so declared by a court of competent jurisdiction.

They are presumed to be valid. As things stand, the recommendations are only voidable.

In this regard, the famous remarks of LORD DENNING, in MacFoy v United Africa Company Limited [1961] 3 All ER 1169 (PC)…, remain true:

“But, if an act is only voidable, then, it is not automatically void. It is only an irregularity which may be waived. It is not to be avoided unless something is done to avoid it. There must be an order of the Court setting it aside: and the Court has discretion whether to set it aside or not. It will do so if justice demands but not otherwise. Meanwhile, it remains good and a support for all that has been done under it.”

For the decision of the first respondent to be set aside in turn, a competent court must also necessarily find that the decision is invalid because the first respondent acted on the basis of null recommendations.

In other words, the first respondent would have constructively failed to comply with section 187(8) of the Constitution since, at law, there would not have been valid recommendations in accordance with which he could have made a decision.

Surely, where the decision of the first respondent is set aside on the basis that it is predicated on null recommendations, that decision would have not have been made in accordance with the Constitution.

The decision would essentially be set aside because the first respondent would have failed to comply with the Constitution.

We know, of course, that only the Constitutional Court can determine whether the first respondent has failed to act in accordance with the Constitution as he is obliged to.

But, to my mind, this outcome can only be achieved by a litigant who has properly pleaded a constitutional basis upon which the first respondent's decision ought to be set aside.

In the case of Sibangani v Bindura University of Science Education CC07-22…, the Constitutional Court set out the importance of properly pleading jurisdiction in constitutional matters. The Court stated:

“[20]…,. An applicant must set out either the facts or the law that would form the basis of the jurisdiction of the Court in his or her cause. It is insufficient for an applicant, without more, to merely cite a provision of the Constitution and assume that the Court's jurisdiction is triggered. The existence of jurisdiction is an objective fact derived from the founding affidavit. It must also find expression in a draft order which speaks to the relief concerned with a constitutional matter for adjudication by the Court….,.”…,.

The court went on to state:

“[22] The need to plead jurisdiction, which in our jurisdiction is laid down in the rules of this Court, was more incisively pronounced in another decision of the Constitutional Court of South Africa, namely, Gcaba v Minister for Safety and Security [2009] ZACC 26; 2010 (1) SA 238 (CC) at para 75. The Court held that:

'Jurisdiction is determined on the basis of the pleadings, as LANGA CJ held in Chirwa, and not the substantive merits of the case….,.

In the event of the Court's jurisdiction being challenged at the outset (in limine), the applicant's pleadings are the determining factor. They contain the legal basis of the claim under which the applicant has chosen to invoke the Court's competence.

While the pleadings, including in motion proceedings, not only the formal terminology of the notice of motion but also the contents of the supporting affidavits, must be interpreted to establish what the legal basis of the applicant's claim is; it is not for the Court to say that the facts asserted by the applicant would also sustain another claim, cognisable only in another court.'”…,.

I have already demonstrated that the relief that the appellant sought against the first respondent would be, in effect, based on the invalidity of the decision as a result of the absence of valid recommendations that would trigger the provisions of section 187(8) of the Constitution.

That determination is a constitutional matter requiring a court to interpret and enforce the Constitution by ensuring that the first respondent makes his decision in accordance with section 187 of the Constitution.

The appellant did not properly plead a jurisdictional basis upon which the court a quo could set aside the decision of the first respondent.

It was incumbent on her to show, in her founding affidavit, that, the court a quo had the requisite power to set aside the decision of the first respondent, not having, as she impliedly contends, been made on the strength of recommendations contemplated by section 187 of the Constitution.

This is a chamber application for condonation and extension of time within which to file an application for direct access due to non–compliance with Rule 9(7) of the Rules of this Court. The instant application was made in terms of Rule 35 of the Constitutional Court Rules 2016.

The applicant in this matter is a self-actress seeking the indulgence of this Court to be granted condonation for non-compliance with the Rules.

On 29 March 2023, her application for direct access to this Court, under Case No. CCZ55/22, was struck off the roll due to her failure to effect proper service on the first respondent. The application was one of many suits between the applicant and the first respondent who have been deadlocked in protracted litigation since 2016 when the latter sought to evict the former from his property.

The dispute between the parties appeared to have reached finality when the Supreme Court, in Case No. SC443/21, dismissed the applicant's appeal in which she had challenged the court a quo's dismissal of her urgent chamber application for an interdict meant to bar the first respondent from effecting eviction in terms of the ejectment order granted in his favour under Case No. MC39520/16.

However, the applicant was dissatisfied with the verdict rendered by the Supreme Court, taking particular issue with the utilisation of Rule 53(3) of the Supreme Court Rules 2018.

It was on the basis of the aforementioned Rule that the matter was determined on the merits, having regard to the papers filed of record following the applicant's default of appearance before the Supreme Court.

The dismissal of the appeal culminated in the applicant filing an application for rescission which was subsequently dismissed by the Supreme Court.

Aggrieved by this turn of events, the applicant sought to challenge the final verdict of the Supreme Court before this forum arguing that her fundamental right to a fair trial had been unduly violated.

However, it was due to the earlier-mentioned defective manner of service that the applicant found herself seeking this Court's indulgence to file a proper application for direct access.

In her founding affidavit, the applicant proceeded to narrate the background of her prospective application before this Court. She made unsubstantiated allegations of professional impropriety against the Registrar of this Court which suggested that there was collusion with the first respondent.

There was no explanation tendered for her non–compliance with the Rules of this Court save to insist upon vindicating her allegedly impugned constitutional rights.

According to the applicant, the main application enjoys prospects of success as she was discriminated against by the Supreme Court in Case No. SC443/21.

She also made the bald averment that the first respondent also wanted the matter to be determined to finality by this Court.

The applicant advanced the argument, that, it was important for this Court to make a ruling on whether the Supreme Court's decision to proceed with the matter under Case No. SC443/21 in her absence was fair and just.

It was the applicant's case, that, the Supreme Court furthered her injustice by dismissing her application for rescission in Case No. SC237/22, especially since the matter was determined by the same Bench which had presided over her appeal in Case No. SC443/21.

The grant of condonation was opposed by the first respondent.

It was submitted, that, the applicant's conduct was driven by a desire to remain on his property despite a valid ejectment order from the Magistrates Court under Case No. MC39520/16.

The first respondent alleged, that, the applicant was creating a trail of purportedly pending litigation to frustrate her eviction. He reasoned that the Supreme Court was well within its power to utilise Rule 53(3) of the Supreme Court Rules in the appeal proceedings under Case No. SC443/21. Thus, it was argued that the present proceedings were now a mere abuse of court process.

In response, the applicant submitted that the first respondent was intent on preventing the finalisation of the dispute. She proceeded to justify her interests in several matters pending before this Court and other judicial fora.

The rest of her answering affidavit was dedicated to objectionable material save for the insistence that her fundamental right to a fair trial had been violated by the conduct of the Supreme Court in the proceedings under Case No. SC443/21.

At the hearing of the matter, it came to the Court's attention that the applicant had now been evicted by the first respondent in terms of the eviction order under Case No. MC39520/16.

The applicant confirmed that she was evicted on 23 May 2023.

She added that she had since filed a spoliation application in the High Court, which matter was still pending determination.

It became apparent that the instant application had since been overtaken by events and was now academic.

This point was appreciated by both parties, but, the applicant was resolute in proceeding with the matter despite its nominal bearing on her present predicament.

The applicant had no reasonable explanation for her failure to serve the first respondent as per Rule 9(7) of the Constitutional Court Rules 2016.

She persisted with the argument that she had effected service personally on the first respondent.

When directed to the content of Rule 9(7) of the Constitutional Court Rules, no credible or reasonable explanation was proffered as to why service had not been effected through the Sheriff as stipulated by the Rules.

She submitted, that, her intended application for direct access was in the interests of justice since the Supreme Court had violated her fundamental rights by proceeding with the appeal under Case No. SC443/21 in her absence.

The applicant suggested that there was evidence in her favour that she could have provided at the hearing before the Supreme Court.

In addition, she also impugned the conduct of the bench in Case No. SC237/22 for refusing to recuse themselves from determining her application for rescission.

Per contra, counsel, on behalf of the first respondent, submitted that the matter was now merely academic following the applicant's eviction from the property. As such, no consequential relief from this Court would restore her occupation since eviction was made in terms of a valid order under Case No. MC39520/16.

Counsel for the first respondent reiterated that the present proceedings were now an abuse of court process by the applicant. To that end, she sought costs on a higher scale as the first respondent was being constantly dragged to court without any just cause.

The applicant disputed the claim for costs as she insisted that she was merely vindicating her constitutional rights.

The relief sought before this Court was for an order framed as follows:

“1. Application for condonation of non-compliance with Rule 9(7) of the Constitutional Court Rules be and is hereby granted.

2. Application for extension of time within which to file and serve an application in terms of the rules be and is hereby granted.

3. There shall be no order as to costs if the matter is not opposed.”

The parties have helpfully referred the Court to some of the relevant principles in an application of this nature. Some of these principles will inform the Court's determination and are listed as follows:

(i) The degree of non-compliance;

(ii) The explanation for the non-compliance;

(iii) The importance of the case;

(iv) The prospects of success;

(v) The interests of justice;

(vi) The interests of finality in the case; and

(vii) The avoidance of unnecessary delay in the administration of justice.

See Mhora v Mhora CC05-22; K.M. Auctions (Pvt) Ltd v Samuel & Anor SC15-12…,.; Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S)…,.; Terera v Lock & Others SC93-21; and Maheya v Independent African Church 2007 (2) ZLR 319 (S).

The warning has long often been sounded to litigants that petition the courts regarding non-compliance with the Rules. In the case of Museredza and Ors v Minister of Agriculture, Lands, Water and Rural Resettlement and Ors CC11-21, the following was reiterated by MAKARAU JCC:

“It is a rule of common law and an entrenched part of our practice and procedure that matters are to be brought before the court in accordance with the Rules of that court. The remarks of PATEL JCC in Marx Mupungu v The Minister of Agriculture, Lands, Water and Rural Resettlement and Others CC07-21 are apt. He wrote:

'One cannot institute an action or application in the High Court, or any other court, without due observance of and compliance with the Rules of that court. The Rules inform a litigant of what is required of him to access the court concerned. If he fails to observe or comply with those Rules, he will inevitably be non-suited.'”

Flowing from the above is the necessary implication, that, where litigants fall foul of the applicable Rules, a sufficient explanation must be tendered in order to be granted the Court's indulgence.

However, in the present case, the applicant's founding affidavit is bereft of any reasonable explanation.

Save for a heading titled “Extent of the delay and reasonableness of the explanation” the applicant made no attempt to bring the Court into her confidence regarding the circumstances that led to her non-compliance.

This deficit was further compounded during submissions before this Court where the applicant tendered no reasonable explanation for her non–compliance, except to insist that she had effected service personally upon the first respondent.

Generally, a measure of tolerance is afforded to self-actors. Reference is made to the case of Sibangani v Bindura University of Science and Education CC07-22…, wherein GOWORA JCC posited the following:

“There is an unwritten rule of practice, that, wherever possible and where justice demands, courts should ensure that unrepresented litigants be accorded a measure of tolerance where it concerns procedural issues.”

However, in this instance, where the applicant is seeking the indulgence of the Court, a failure to satisfy the foremost requirement for condonation cannot pass unheeded. The applicant does not accept any accountability for how and why her matter was struck off the roll.

She alternated between simply laying blame upon the first respondent and/or the Registrar.

As such, she has failed to provide an adequate explanation for her non-compliance in addition to completely disregarding the need to plead the degree of non-compliance adequately.

The applicant averred, that, she was treated in a discriminatory manner by the Supreme Court in Case No. SC443/21. She alleged that the presiding Bench in her matter subjected her to treatment distinct from that afforded to other litigants appearing before the Supreme Court. This violated her right to a fair trial in terms of section 69 in addition to the non–discriminatory provisions of section 56(1) of the Constitution.

However, the attached draft substantive application reveals the lack of any merit in the applicant's case.

There is no indication as to how the applicant was unfairly discriminated against by the Supreme Court through the utilisation of Rule 53(3) of the Supreme Court Rules 2018. The Rule grants the Supreme Court the authority to proceed as follows:

This is an application for direct access to this Court.

If the application is granted, it is the applicant's intention to approach this Court in terms of section 85(1)(a) of the Constitution of Zimbabwe, alleging and arguing that a judgment of the Supreme Court, handed down on 31 December 2020, infringed his dual rights to equal protection and benefit of the law and to a fair hearing before an independent and impartial court.

The applicant owed the second respondent the sum of US$327,345=77 plus interest thereon at the rate of fifty percent per annum. On a date that is not material, the second respondent obtained judgment in the High Court against the applicant for the payment of the debt together with the accrued interest.

The applicant failed to satisfy the judgment debt.

In due course, the first respondent attached the applicant's farm and sold it by public auction. The sale realized the sum of US$205,000. The applicant successfully objected to the sale. The first respondent set the sale aside, accepting that the sale had been conducted in an irregular manner.

It had not been preceded by a nulla bona return against the applicant's movables and the property had been poorly described in the advertisement flighted before the sale.

In his ruling setting aside the sale, the first respondent indicated that he would offer the property for sale by private treaty for the following thirty days on certain specified conditions.

The first respondent proceeded to sell the property to the fourth respondent by private treaty for the sum of US$825,000.

Clearly not anticipating any further objections from the applicant, the first respondent advised the judgment creditor's legal practitioners of the sale by letter, which he also copied to the applicant.

In the same breath, he advised the parties that he had declared the fourth respondent the purchaser of the property and had consequently confirmed the sale in accordance with the rules of court.

The germane part of the letter reads:

“I refer to the sale in the above matter and advise that on 27 February 2018, the Sheriff declared and confirmed the highest bidder, Paperhole Investments (Pvt) Limited, to be the purchaser at the sum of US$825,000 after the property was sold by private treaty.”

The letter advising and confirming the sale at the same time was written on 27 February 2018, the same date on which the sale was concluded.

Upon receipt of his copy of the letter, the applicant approached the first respondent, intending, once again, to object to the sale.

The first respondent raised the defence of functus officio. He advised the applicant that after confirming the sale, his mandate was discharged and the applicant had to approach the High Court for any possible relief.

In due course, the applicant filed an application for review in the High Court, seeking an order setting aside the confirmation of the sale. He alleged that such confirmation was irregular and not in accordance with the rules of the High Court.

The application was opposed by all the respondents save for the third.

In opposing the application before the High Court, the first respondent stated in his opposing affidavit, that, he had declared the fourth respondent as the purchaser and had confirmed the sale in the same breath because it was his reading of the rules of court that the applicant had no right to object to the second sale. It was his considered position that the rules did not permit him to entertain multiple objections in respect of the same property sold in execution.

Dismissing the first respondent's contentions, the High Court upheld, and correctly so in my view, the applicant's right to challenge the second sale.

It found that the applicant's right to object to any sale of his property in execution was not limited by the certain number of objections he had taken. For as long as there was a sale in execution against his property, the applicant had the right to object to any such sale on the grounds given in the law.

The High Court, however, went on to dismiss the application for review on the basis that the applicant had failed to disclose in the papers before the court the grounds of his objection to the second sale.

Aggrieved by the dismissal of the application for review, the applicant appealed to the Supreme Court.

Before that court, he contended that once the High Court had upheld his right to object to the second sale, it ought to have given him an opportunity to lodge his objection with the first respondent in accordance with the Rules.

It was his argument, that, the nature and content of his objection, embodying the recognised grounds of objecting to the sale, was not an integral part of the application for review such that its absence would be fatal to that application.

Fully developed, it was his argument that the law did not require him to lodge his objection to the sale with the court in the application for review, but to lodge it with the first respondent once the court had upheld and protected his right to object.

Viewed differently, he argued that the High Court had wrongfully conflated the application seeking the declaration of his right to object to the second sale with the procedure that he had to adopt to enjoy that right.

In its judgment, the Supreme Court took a few steps backwards, and, without making any reference to the Notice of Appeal or seeking further submissions from the parties, found that the applicant had not lodged with the first respondent an objection to the second sale as was required of him by Rule 359(1) of the High Court Rules 1971 (now Rule 71(38)).

After setting out the relevant Rule in detail, the Supreme Court found that the applicant had not complied with the provisions of the Rule, which, in its view, is worded in peremptory terms.

For emphasis, the court a quo went further to hold that there was no provision in the Rule that imposes a duty on the first respondent to invite persons to submit objections to the confirmations of the sale of immovable property in execution of court judgments.

The above finding became the ratio decidendi of the Supreme Court judgement.

Respecting the finality of the judgment of the Supreme Court, the applicant brought this application for leave.

It is his intention to bring an application alleging that the Supreme Court judgment breaches his right to equal protection and benefit of the law and the right to a fair hearing before an independent and impartial court.

He submitted, in this regard, that the Supreme Court judgement is erroneous both in fact and in law.

In his application, the applicant raised four main arguments:

(i) Firstly, he argued that although the judgment of the Supreme Court was on a non-constitutional issue, it threatened the court's claim to judicial authority in that it infringed his right to judicial protection.

(ii) Secondly, he alleged that the Supreme Court failed to act in accordance with the law governing the proceedings that were before it, which failure disabled it from making a decision on the non-constitutional matter that was before it.

(iii) In the third instance, he argued that the failure by the court to act in accordance with the law governing the proceedings that were before it violated his rights to equal protection and benefit of the law and a fair hearing before an independent and impartial court.

(iv) Finally, he alleged that the judgment of the court a quo was irrational and arbitrary....,.

I now turn to the second allegation, that, the decision of the Supreme Court allegedly infringed the applicant's right to a fair hearing before an independent and impartial court.

Apart from making the allegation, the applicant did not proceed to lay any foundation in his founding papers, or in oral argument, for a finding that the applicant was not afforded a fair hearing.

The applicant exerted all his energies and arguments towards establishing the error made by the Supreme Court and the alleged infringement of his right to the equal protection and benefit of the law and paid scant attention to the alleged breach of his right to a fair trial.

I find no basis on the facts of the matter for holding that the applicant was not afforded a fair trial. I do not so hold.

I now turn to consider whether the first respondent's claim can be defeated by virtue of the alleged change of land use.

The first appellant filed its opposing affidavit on 8 February 2011. The opposing affidavit was deposed to by its director, Killian Kapaso, duly authorised thereto by resolution of the company directors.

Nowhere in that affidavit did the appellant raise the issue of change of land use as a defence to the first respondent's claim.

The first appellant only raised the issue of change of land use more than two years later, in an affidavit deposed to by the same company director, Killian Kapaso, who had deposed to the original opposing affidavit two years earlier.

In that affidavit, the first appellant was responding to the Chief Registrar of Deeds affidavit confirming that the land in dispute was registered in the name of the President of Zimbabwe and had become State land in terms of section 16B of the Constitution.

That registration still subsists. It has not been nullified by any court of competent jurisdiction.

The respondent issued summons out of the High Court seeking an order for the release of its plastic bags which were being retained by the appellant, payment of the sum of US$157,350=05 representing the business it lost as a result of such retention, and costs of suit on the scale of legal practitioner and client.

The respondent also sought payment of interest from the date of issue of summons to the date of payment in full.

After hearing evidence and submissions from the parties, the court a quo ordered the appellant to pay the sum of $157,350=05 to the respondent being damages for loss of business, interest on that sum at the prescribed rate, and costs of suit on the ordinary scale.

The present appeal is against that order.

The appellant is a company registered in accordance with the laws of Zimbabwe and carries on business from premises in Avondale, Harare. It is an agent of the Mediterranean Shipping Company (“Mediterranean Shipping”) a company that operates worldwide with its core business being the carriage of containers.

As agent, appellant's responsibility is to fulfil the obligations of Mediterranean Shipping by facilitating delivery of containerised cargo to the clients of Mediterranean Shipping in Zimbabwe.

In this particular instance, at the behest of Mediterranean Shipping, the appellant supervised the movement, by road, of the plastic bags, which were in a container, from the Port of Beira to Mutare Dry Port.

In Mutare, the appellant instructed the employees of the Port not to release the goods until certain monies were paid by the respondent.

It is common cause, that, initially, the appellant refused to release the container until a sum of money owed by the wife of one of the directors of the respondent had been paid. Upon realizing that the debt had nothing to do with the respondent, the appellant then demanded payment of the sum of $80=50 in respect of handling charges.

The respondent, believing the bags had been unlawfully retained by the appellant, instituted proceedings in October 2012 for the release of the bags, damages for loss of business, and interest thereon at the prescribed rate.

The sum of $80=50 was only paid in August 2013 after which the plastic bags were then retrieved.

In its declaration, the respondent alleged that it had imported a container of plastic bags from Hong Kong and that it had engaged the appellant as its agent to facilitate the importation and clearing of the goods with the Zimbabwe Revenue Authority(“ZIMRA”).

It alleged, that, notwithstanding the fact that it had paid the import duty and the appellant's clearing fees, the appellant had refused to release the container on the basis that it was owed money from a previous transaction by the wife of one of the respondent's directors.

It alleged, that, consequent upon the refusal by the appellant to release the container, a client who had placed an order with it for plastic bags had cancelled the order as a result of which the respondent had suffered damages in the amount claimed.

In its plea, the appellant, as defendant, denied that it had entered into a contract of agency with the respondent.

It alleged, that, it had been contracted by the shipper (a term used in the freight business to denote the person who prepares the necessary documentation for the carriage of goods), Hong Kong Richer Int'l Group Limited (”Richer International”) to transport the cartons of plastic bags cif Mutare. It alleged, that, it duly discharged its obligations to deliver the container to Mutare Dry Port after which the respondent became liable to pay its administration fee relating to the Bill of Lading and the container in the sum of $80=50.

The appellant accepted that it refused to release the container before payment of the administration fee in the sum of $80=50 had been made.

At a pre-trial conference before a judge in chambers, the parties agreed the issues to be determined at the trial.

The issues included, inter alia, whether a contract existed between the parties, and, if so, the terms thereof. Further, whether the appellant was entitled to refuse to release the container until payment of the handling fee of $80=50 had been made, and, if not, whether the respondent had suffered damages in the amount claimed in the summons.

During viva voce evidence, the respondent, represented by its managing director, Albert Kuwaza, stated as follows:

His company ordered the plastic bags from China, and, through the supplier, engaged the appellant at its offices in China to transport the merchandise from China to Mutare, Zimbabwe. Once the goods were in Mutare, the appellant then demanded payment of the sum of $1,750 which it alleged was owed by a Mrs Kuwaza, wife of one of the respondent's directors, in respect of a previous transaction.

The issue of the handling fee of $80=50 was raised by the appellant for the first time in October 2012, way after a client who had placed an order for the bags had cancelled the purchase.

Under cross-examination, he conceded, that, in fact, the company with which he contracted in China was Hong Kong Richer Int'l Group Limited (Richer International) and that Richer International, in turn, contracted with Mediterranean Shipping to transport the goods to Mutare. He further conceded, that, the clearing fees were paid directly to Green Motor Services, the company that was operating Mutare Dry Port and not to the appellant. He told the court, further, that, as far as he was concerned, the appellant, Mediterranean Shipping, and Green Motor Services were part of the same company.

Following the dismissal of an application for absolution at the close of the plaintiff's case, the appellant's managing director, Dr Giorgio Spambinato, gave evidence before the court a quo. His evidence was as follows:

The appellant, which operates from offices situate at 27 Natal Road, Belgravia, Harare is an agent of Mediterranean Shipping. It has no offices outside Zimbabwe. The appellant's role was to assist Mediterranean Shipping to execute its contractual obligation of moving cargo into and out of Zimbabwe. In this case, the appellant only supervised the movement, by road, of the container from the Port of Beira to Mutare. It was not involved in the clearance of the goods with the Zimbabwe Revenue Authority (ZIMRA).

He confirmed that, initially, the appellant had insisted on payment of the sum of $1,750 owed by a Mrs Kuwaza in respect of a previous transaction, but, on realizing the error, had personally instructed that the container be released on payment of the sum of $80=50.

That sum represented the handling fee for facilitating the necessary documentation and supervising the speedy execution of delivery by sub-contractors and service providers.

He explained, that, in Zimbabwe, it is customary for the agent handling the cargo on behalf of Mediterranean Shipping to recover the costs directly from the recipients of the cargo. In other countries, the handling fee is paid by Mediterranean Shipping.

Whatever role the appellant played in this case was in fulfilment of its agency agreement with Mediterranean Shipping.

In its closing address a quo, the respondent submitted, that, the question whether there was a contract was “of no real consequence” and that “there needn't have been a contract between them because the scenario can be resolved by the principles of depositum…,.” Further, that, as depositary, the appellant had an obligation to return the goods to the respondent upon demand.

The respondent further submitted, that, it was clear from the summons and declaration that the claim “was vindicatory in nature, not contractual.”

Accordingly, the respondent prayed for its claim for damages and interest thereon to be granted on the basis of depositum.

In its address a quo, the appellant submitted, that, on the evidence led before the court, no contract had been proven. The person with whom the respondent had communicated in China was not the appellant but an employee of Mediterranean Shipping. More critically, the terms of the alleged contract between the respondent and the appellant had not been established. Moreover, at no stage had the respondent deposited the goods with the appellant.

In its judgment, the court a quo found, that, Mr Kuwaza, the managing director of the respondent had been unclear as to the nature of the relationship between the appellant, Mediterranean Shipping, Hong Kong Richer Int'l Group Limited (Richer International) and the respondent.

The court remarked as follows at page 10 of its judgment:

“What is apparent from Mr Kuwaza's evidence is that he did not produce any documents to show the existence of a contract between the plaintiff and the defendant. From the evidence that is before me, it is clear that the plaintiff entered into a shipping agreement with Mediterranean Shipping Company in Hong Kong, China in April 2012 for the shipment of its plastic container from China to Zimbabwe. That contract did not involve the defendant.”

However, at pages 10-11 of the cyclostyled judgment, the court a quo stated:

“I am of the considered view, that, the circumstances of this case show, that, there was a contract between the plaintiff and the defendant. Although the defendant said that it was acting as an agent of Mediterranean Shipping Company, its conduct towards the plaintiff shows that it also contracted with the plaintiff separately. It is not disputed that the defendant facilitated the importation of the plaintiff's cargo from the Port of Beira to Mutare.

Thereafter, it demanded payment from the plaintiff for the service that it had rendered.

The parties did not enter into this contract verbally or in writing, but, they did so by their conduct.

By demanding payment from the plaintiff for the costs it incurred in facilitating the importation of the plaintiff's cargo, the defendant created a contract between itself and the plaintiff. It made it a condition of the contract, that, if the administration fee was not paid, the plaintiff's cargo was not going to be released.

If there was no contract between the plaintiff and the defendant, the defendant should have simply demanded payment of its fees from Mediterranean Shipping Company which it alleges to be its principal.

At law, an agent's duty is to perform his mandate on behalf of his principal and he accounts to his principal. The agent's remuneration is paid by the principal and not by a third party.

I therefore take it, that, the moment an agent starts demanding payment from the third party and not from his principal, then, it means that he is no longer acting in terms of the contract between himself and his principal, but he would have created his own contract with the third party.

That contract he would have created with the third party is separate from his contract with his principal.

In casu, this is what the defendant did. It created its own contract with the plaintiff, which contract was separate from the one it had with Mediterranean Shipping Company.”

At page 12 of its judgment, the court, without commenting on the submission by the respondent, that, it now relied on a contract of depositum, concluded by stating:

“If there was no contract between the 2 companies, then, the defendant should and would have demanded its fee from Mediterranean Shipping Company which is its principal. If there was on (sic) contract, the defendant had no business demanding that money from the plaintiff. It also had no business withholding or refusing to release the plaintiff's container on the basis that the handling fee had not been paid. All the defendant's payments would have been due from Mediterranean Shipping Company. The plaintiff managed to prove that there was contract between itself and the defendant.”

Based on the above findings, the court concluded, that, the appellant had wrongfully refused to release the container and that the respondent had proved its contractual damages. It consequently made the order which is the subject of this appeal.

In its notice of appeal, the appellant raised five grounds. These are:

(i) The court a quo erred in finding, that, there was a contract between the appellant and the respondent when the latter was unable to identify the nature of the contract it relied upon and its terms – i.e. whether the contract was one of carriage, depositum, or agency.

(ii) The court a quo erred in finding, that, there was a contract between the appellant and the respondent despite a contrary indication in the Bill of Lading and the respondent's lack of knowledge of the terms of the contract it alleged.

(iii) The court a quo erred in placing the onus of proving the terms of the contractual relationship between the appellant and the respondent on the former, albeit obliquely.

(iv) The court a quo erred in finding that -

(1) The contract for the sale of the plastic bags between the respondent and Nedol Investments (Private) Limited was not a sham; and

(2) The loss suffered by the respondent, if any, was reasonably foreseen by the appellant at the time of the conclusion of the alleged contract, and, despite the fact that the reasonable foreseeability was not specifically pleaded and proved.

(v) The court a quo erred in finding that the respondent had mitigated its loss.

In its submissions before this Court, the appellant has argued, that, the respondent did not sufficiently identify the nature of the contract between the parties, in particular, whether it was one of agency or depositum. The terms of the agreement, be it agency or depositum, remained unknown.

It further submitted, that, the case for the respondent was muddled and that the judgment of the court a quo was equally confusing and confused. Lastly, it submitted that whilst the facts show some relationship between the parties, the respondent had not proved the nature of the relationship that existed between them.

In its heads of argument, the respondent has submitted as follows:

Its declaration in the court a quo made it clear, that, what it sought was the release of its goods arising from their unlawful detention. Further, that, even if there was no contract of agency between the parties, the respondent “was not without a remedy” and that there was a tacit contract of depositum between the parties.

In paragraph 3 of its heads of argument, it has further stated:

“The respondent had contended that the claim was of a vindicatory nature and that any contract between the parties was one of depositum…,. As the appellant states, the court did not deal with these issues. It is here noted, that, by the time the matter came before the court, the goods had been released, and, if the claim had originally been vindicatory in nature, it no longer was, which was probably the reason why the court a quo allowed itself to be misled by the appellant to believe that the claim fell to be decided in contract.”…,.

At paragraph 10 of its heads of argument, the respondent has also stated:

“The absence of a contract, however, would not have left the respondent without a remedy because he would have a claim in delict for any loss incurred as a result of the unlawful possession of his property…,.”

Finally, at paragraphs 13 and 14 of its heads, the respondent has further argued:

“13. Thus, as the respondent's counsel contended at p239, the issue whether there was a contract between the parties was really of no consequence and the appeal cannot succeed on the basis that no such contract was brought into being.

The court a quo found, in effect, that, there was a tacit contract between the parties based on the fact, that, the appellant raised charges mentioned above against the respondent.”

It is clear from the foregoing that the respondent, as plaintiff, changed its cause of action as the trial progressed.

In the declaration, the claim clearly arises from a contract of agency. When the respondent realised that the evidence did not establish such agency…, it then claimed, without amending its pleadings, relief on the basis of the rei vindicatio and a contract of depositum.

In its submissions before this Court, the respondent says, whatever the correct position might be on whether or not it had a contract with the appellant, it cannot be without a remedy.

The suggestion was made that it even had a claim arising out of delict.

I am inclined to agree with learned counsel for the appellant, that, the cause of action a quo was most confusing.

The cause of action based on a contract of agency was abandoned in favour of the rei vindicatio and depositum, which had not been pleaded. No evidence was led on the terms of such contract.

To add to the confusion, before this Court, the possibility of the claim arising out of delict has also been thrown in.

The manner in which the respondent handled its cause of action in the court a quo, and before this Court, is most unsatisfactory and not permissible. Implicit in the submissions by the respondent, in support of the judgment of the court a quo, is that pleadings serve no purpose.

The manner in which the respondent has handled its case, both a quo, and in this Court, brings to the fore the question as to what the purpose of pleadings is.

In general, the purpose of pleadings is to clarify the issues between the parties that require determination by a court of law. Various decisions of the courts in this country, and elsewhere, have stressed this important principle.

In Durbach v Fairway Hotel Ltd 1949 (3) SA 1081 (SR) the court remarked:

“The whole purpose of pleadings is to bring clearly to the notice of the court, and the parties to an action, the issues upon which reliance is to be placed.”

HARWOOD BA in his text Odgers Principles of Pleading & Practice in Civil Actions in the High Court of Justice (16th edn, Stevens & Sons Ltd, London, 1957) states…,:

“The function of pleadings, then, is to ascertain with precision the matters on which the parties differ and the points on which they agree; and thus arrive at certain clear issues on which both parties desire a judicial decision.”

In Kali v Incorporated General Insurance Ltd 1976 (2) SA 179 (D)…, the court remarked:

“The purpose of pleading is to clarify the issues between the parties, and, a pleader cannot be allowed to direct the attention of the other party to one issue, and then, at the trial, attempt to canvass another.”

In Courtney–Clarke v Bassingthwaighte 1991 (1) SA 684 (Nm), the court remarked…,:

“In any case, there is no precedent or principle allowing a court to give judgment in favour of a party on a cause of action never pleaded; alternatively, there is no authority for ignoring the pleadings…, and giving judgment in favour of a plaintiff on a cause of action never pleaded. In such a case, the least a party can do, if he requires a substitution of or amendment of his cause of action, is to apply for an amendment.”

In Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A) 108, the court cited with approval the case of Robinson v Randfontein Estates GM Co. Ltd 1925 AD 173 where…, it was stated as follows:

“The object of pleading is to define the issues; and parties will be kept strictly to their pleas where any departure would cause prejudice or would prevent full enquiry. But, within those limits, the court has a wide discretion. For pleadings are made for the court, not the court for pleadings. And, where a party has had every facility to place all the facts before the trial court and the investigation into all the circumstances has been as thorough and as patient as in this instance, there is no justification for interference by an appellate tribunal, merely because the pleading of the opponent has not been as explicit as it might have been.”

In Jowell v Bramwell-Jones 1998 (1) SA 836…, the court cited with approval the following remarks by the authors JACOB and GOLDREIN in their text Pleadings: Principles and Practice…,.:

“As the parties are adversaries, it is left to each of them to formulate his case in his own way, subject to the basic rules of pleadings….,. For the sake of certainty and finality, each party is bound by his own pleading and cannot be allowed to raise a different or fresh case without due amendment properly made.

Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as much bound by the pleadings of the parties as they are themselves. It is not part of the duty or function of the court to enter upon any enquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings.

Indeed, the court would be acting contrary to its own character and nature if it were to pronounce upon any claim or defence not made by the parties. To do so would be to enter the realm of speculation….,.

Moreover, in such event, the parties themselves, or, at any rate, one of them, might well feel aggrieved; for a decision given on a claim or defence not made, or raised by or against a party, is equivalent to not hearing him at all and may thus be a denial of justice.

The court does not provide its own terms of reference or conduct its own inquiry into the merits of the case, but, accepts and acts upon the terms of reference which the parties have chosen and specified in their pleadings. In the adversary system of litigation, therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to.”…,.

The authors, CILLIERS AC, LOOTS C and NEL HC in their text, Herbstein and Van Winsen, The Civil Practice of the High Courts of South Africa (5th edn, Juta and Co. Ltd, Cape Town 2009) quote the following passage from Halsbury's Laws of England, 4th edn (Reissue), Vol 36 para 1 in which the function of pleadings is said to be:

“…, to give a fair notice of the case which has to be met, and to define the issues on which the court will have to adjudicate in order to determine the matters in dispute between the parties. It follows, that, the pleadings enable the parties to decide, in advance of the trial, what evidence will be needed. From the pleadings, the appropriate method of trial can be determined. They also form a record which will be available if issues are sought to be litigated again. The matters in issue are determined by the state of pleadings at the close, if they are not subsequently amended.” (at page 558)

In Farrell v Secretary of State for Defence (1980) 1 All ER 166…, Lord Edmund-Davies stated as follows:

“It has become fashionable these days to attach decreasing importance to pleadings, and, it is beyond doubt that there have been times when an insistence on complete compliance with their technicalities put justice at risk, and, indeed, may, on occasion, have led to its being defeated.

But, pleadings continue to play an essential part in civil actions, and, although there has been…, a wide power to permit amendments, circumstances may arise when the grant of permission would work injustice or, at least, necessitate an adjournment which may prove particularly unfortunate in trial with a jury. To shrug off criticism as 'a mere pleading point' is therefore bad law and bad practice. For the primary purpose of pleadings remains, and it can still prove of vital importance. That purpose is to define the issues and thereby to inform the parties, in advance, of the case they have to meet and so enable them to take steps to deal with it.”

In a paper: A Judge's View Point, the Role of Pleadings presented by Justices Rares of the Federal Court of Australia and Richard White of the Supreme Court of New South Wales, at a judge's symposium, the learned judges remarked:

“Precise formulation of the applicant's rights in the initiating document is of central importance. This is because the pleading is the source from which many other consequences flow in the life of the litigation, from filing at first instance through to final resolution in the High Court. The pleading will be used as the reference point for the seeking of particulars, the administering of interrogatories (which is virtually extinct), the obtaining of an order for discovery if the court is satisfied this is required, the issue of subpoenas, the calling of evidence, the relevance and admissibility of evidence, the closing arguments, the reasons for judgments, and the availability of arguments on appeal.

At all of these points, the following questions arise: “Was this issue pleaded?” and “How was this issue pleaded?”

The question is not the loose one, whether the argument could possibly be raised on the evidence at the conclusion of a hearing, but, whether the issue has been pleaded….,.”

I associate myself entirely with the above remarks made by eminent jurists both in this jurisdiction and internationally.

The position is therefore settled, that, pleadings serve the important purpose of clarifying or isolating the triable issues that separate the two litigants. It is on those issues that a defendant prepares for trial and that a court is called upon to make a determination.

Therefore, a party who pays little regard to its pleadings may well find itself in the difficult position of not being able to prove its stated cause of action against an opponent....,.

This is a chamber application for condonation of the late noting of appeal and extension of time within which to appeal, purportedly in terms of Rule 38(1) of the Supreme Court Rules 2018.

The brief facts giving rise to this application may be stated as follows:

On 22 September 2016, the first respondent made a decision allowing the second respondent to effect developments on Stand 18962 Boundary Road, Eastlea, Harare, whose location the applicant contends is a wetland.

The decision was made under section 130(3) of the Environmental Management Act [Chapter 20:27].

Section 130 of the Environmental Management Act prescribes a period of 28 days within which an appeal must be filed in these terms:

“(1) Subject to this section, any person who is aggrieved by any decision of any authority in terms of this Act, may, within twenty-eight days after being notified of the decision or action of the authority concerned, appeal in writing to the Minister, submitting with his appeal such fee as may be prescribed:

Provided that such appeal shall not suspend the operation of any order, decision or action of the authority issued by the Authority.

(2) For the purpose of determining an appeal noted in terms of subsection (1), the Minister (if he is not the authority concerned in the appeal) may require the authority to furnish him with the reasons for the decision or action that is the subject of the appeal and a copy of any evidence upon which the reasons are based.

(3) The Minister, after due and expeditious inquiry, may make such order on any appeal noted in terms of subsection (1) as he considers just.

(4) An appeal shall lie to the Administrative Court against any order of the Minister in terms of subsection (3).

(5) An appeal in terms of subsection (4) shall be made in the form and manner and within the period prescribed in the rules of court.

(6) On appeal, in terms of subsection (4), the Administrative Court may confirm, vary, or set aside the decision or action appealed against and may make such order, whether as to costs or otherwise, as the court thinks just.”

The Minister, having made his decision on 22 September 2016, it was apparent that when the applicant sought to appeal against the Minister's decision, in March 2019, it was out of time.

The applicant therefore approached the Administrative Court with an application for condonation of late filing of appeal on 18 March 2019 under Rule 6 of the Administrative Court Rules, SI 122 of 1980.

On 7 June 2019, the applicant's application for condonation of late noting of appeal was dismissed by the Administrative Court for lack of prospects of success.

Aggrieved by that decision, the applicant filed a notice of appeal with this Court on 1 July 2019 and served the same on the other party on 2 July 2019.

The appeal was subsequently set down for hearing on 10 July 2020.

On that date, counsel for the respondent advised counsel for the appellant that the notice of appeal had been filed one day out of time and he was going to raise that as a preliminary point. Counsel for the applicant, without much reflection, conceded and opted to have the matter removed from the roll.

It is in an endeavour to overcome the alleged late filing of the notice of appeal that the applicant has now approached this Court with this application.

In the founding papers, the applicant averred that its notice of appeal was filed one day out of time and proffered reasons for that delay. Those reasons pertained essentially to administrative issues at the law firm of the applicant's legal practitioners.

The applicant asserts, in its founding affidavit, that this is an application for condonation of the applicant's failure to file its notice of appeal against the judgment of the Administrative Court within fifteen days in terms of Rule 38(1)(a) of the Supreme Court Rules 2018 and for an extension of time within which to appeal.

The relief sought was couched as follows:

“It is ordered that:

The failure to file a notice of appeal within fifteen days of the date the judgment appealed against was given, in terms of Rule 38(1)(a) of the Supreme Court Rules 2018, be and is hereby condoned.

The extension of time within which to note an appeal be and is hereby granted. The appeal is to be deemed to have been noted on the date of this order.”

The second respondent opposed the application.

In its opposition, it raised some preliminary points. The preliminary points were that:

(i) The application was not in the form provided for in terms of Practice Direction Number 1 of 2017;

(ii) This is a Rule 43 of the Supreme Court Rules application, yet, the applicant appears to be lodging one in terms of Rule 38 of the Supreme Court Rules; and

(iii) The relief sought is incompetent as Rule 38 of the Supreme Court Rules does not provide for condonation.

The applicant, in its answering affidavit, maintained that the application was compliant with Practice Direction Number 1 of 2017, Form 3. On the appropriate Rule, the applicant agreed that this was an application under Rule 43 of the Supreme Court Rules and that reference to Rule 38 of the Supreme Court Rules was only for the fifteen-day period for lodging an appeal.

On the date of hearing, counsel for the parties maintained their positions on the points in limine.

It was apparent that both counsel were of the view that the appeal in question was under Part VI of the Supreme Court Rules 2018 hence reference to Rule 38 and Rule 43 of the Supreme Court Rules.

It was only after I pointed out that Part VI pertains to civil appeals from the High Court and the appeal in question was from the Administrative Court that counsel for the applicant realized the error and submitted, that, in that case, the application should be under Part VII of the Supreme Court Rules.

She submitted that any reference to Rule 38(1) of the Supreme Court Rules should be substituted with Rule 60(1) of the Supreme Court Rules.

Unfortunately, this belated effort to amend the application, from the bar, could not amend the applicant's founding affidavit in which the applicant was clear on the Rules under which the application was being brought and attempted to provide requirements for condonation under those Rules.

I am of the view, that, where an application is brought under Part VI of the Supreme Court Rules and the founding affidavit is specific in this respect, as in this case, a legal practitioner cannot purport to amend it.

It is also pertinent to note, that, the legal practitioner was not the deponent of the affidavit. She could, therefore, not, in any event, seek to amend an affidavit deposed to by another person and seek to substitute it with provisions under Part VII of the Supreme Court Rules.

It is apparent from a reading of the relevant provisions under those parts that their requirements are not exactly the same.

For instance, Rule 61 of the Supreme Court Rules is to the effect, that, condonation can only be granted if special circumstances are shown by way of application in writing. The applicant must thus address the issue of special circumstances in the application. A Part VI application, on the other hand, does not require the applicant to establish special circumstances (see Rule 43 of the Supreme Court Rules).

The submission by the applicant's counsel, to simply substitute Rule 38(1) with Rule 60(1) of the Supreme Court Rules, is thus untenable.

The application must stand or fall on its founding papers.

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....,.

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.

This is an opposed chamber application for condonation for non-compliance with the Supreme Court Rules 2018 and for extension of time in which to appeal made in terms of Rule 43.

The intended appeal is against a judgment of the High Court, handed down on 17 February 2021, upholding the respondent's application for a compelling order. The applicant seeks an order in the following terms:

1. The application for condonation for non-compliance with rules and extension of time within which to appeal be and is hereby granted.

2. The Notice of Appeal filed of record be and is hereby deemed to have been filed as of the date of this order.

On 6 and 7 March 2013, the applicant and the respondent entered into an agreement whereby the respondent was contracted to construct housing units for the applicant. It was a term of the contract, that, in the event of a dispute arising between the parties, an adjudicator would be appointed to resolve the dispute, and, the adjudicator's decision would be final.

Two disputes arose between the parties.

The first dispute was referred for adjudication and a determination was made. The applicant did not give notice of dissatisfaction with the adjudicator's decision, thus, rendering the decision final and binding.

Another dispute between the parties arose and this related to a termination certificate that was issued by the applicant, and the matter was also referred for adjudication.

The adjudicator ruled, that, the termination of the contract was improper as it arose out of the applicant's own wrongdoing. The adjudicator further ruled, that, the termination certificate was not issued promptly and in accordance with the terms of the contract.

It is in respect of the adjudicator's second decision that the respondent sought a compelling order against the applicant in the court a quo.

Before the court a quo, the respondent contended, that, the decision by the adjudicator was binding on the parties unless and until it was revised by the tribunal, and was enforceable as a matter of contractual obligation between the parties and not as an arbitral award. It thus argued, that, the respondent was entitled to the relief sought.

The applicant opposed the application arguing, that, there was no legal basis for the relief sought as the respondent was attempting to enforce the adjudicator's determination as if it was an arbitral award.

It further argued, that, the matter was already before the courts, thus, the application was an abuse of court process.

In addition, the applicant contended that the respondent's claim had prescribed.

It was the court a quo's finding, that, the parties relationship, rights, duties, and obligations were governed by the contract which the parties had entered into.

The court a quo ruled, that, since the adjudicator's decision was final and binding, until it was set aside by the tribunal, the argument by the applicant, that, the matter was improperly before the court fell away. It ruled, that, a notice of dissatisfaction or referral to arbitration did not, within the context of the contractual terms, serve to suspend or stay the adjudicator's decision.

On the issue of prescription, it was the court's finding, that, prescription only begins to run when a cause of action is complete, and, in this case, it was not complete since the entire decision of the adjudicator had been referred to arbitration by the applicant.

Consequently, the court a quo granted the application in favor of the respondent.

Irked by the decision of the court a quo, the applicant appealed to this Court. The appeal was struck off the roll on the basis, that, the notice of appeal was defective as the grounds of appeal did not comply with the Supreme Court Rules.

Accordingly, the applicant brings the present application to seek condonation and extension of time to file a fresh appeal.

At the commencement of the proceedings, counsel for the respondent had sought to argue some points in limine first. I directed that submissions be made both on the preliminary points as well as on the merits.

In respect of the preliminary issues raised, counsel for the applicant argued, that, the date of the judgment a quo was indicated clearly in the notice of appeal. As regards the contents of the founding affidavit, he submitted, that, there were no material falsehoods as contended by the respondent. He further contended, that, no evidence was advanced to prove the alleged falsehoods.

Regarding the issue of prospects of success, counsel for the applicant denied that the applicant did not address the prospects of success. He submitted, that, the prospects of success are canvassed in the heads of argument filed in the main appeal and referred to in the application.

Counsel for the respondent submitted, that, the draft notice of appeal was defective in that the date of judgment is not specific. Counsel further submitted, that, the founding affidavit does not identify the parties, yet the rules state that parties should be identified. He further submitted, that, there are material falsehoods made regarding the preparation of the founding affidavit.

Counsel for the respondent also submitted, that, in an application for condonation, prospects of success ought to be addressed. He further argued, that, the applicant has failed to address the issue of prospects in the founding affidavit hence the application should fail on that basis.

Additionally, he submitted, that, an affidavit constitutes both pleadings and evidence. As such, if pleadings do not address the prospects of success, then, there is no application before the court.

Reference was made to the case of Matsika v Chingwena SC144-21.

Applications for condonation and late filing of appeal and extension of time within which to appeal are regulated by Rule 61 of the Supreme Court Rules 2018 which states that;

“Save where it is expressly, or by necessary implication, prohibited by the enactment concerned, a judge may, if special circumstances are shown, by way of an application in writing, condone the late noting of the appeal and extend the time laid down, whether by Rule 60 or by the enactment concerned, for instituting an appeal.”

It is a common principle of law which has been practiced over time, that, a party who fails to comply with the rules of this Court must apply for condonation and give adequate reasons for failure to comply with the rules. This was expressed in Zimslate Quartize (Pvt) Ltd & Ors v Central African Building Society SC34-17 where the court held that;

“An applicant, who has infringed the rules of the court before which he appears, must apply for condonation, and, in that application, explain the reasons for the infraction. He must take the court into his confidence and give an honest account of his default in order to enable the court to arrive at a decision as to whether to grant the indulgence sought. An applicant who takes the attitude that indulgences, including that of condonation, are there for the asking does himself a disservice as he takes the risk of having his application dismissed.”…,.

The factors to be considered in an application of this nature were outlined in Mzite v Damafalls Investment (Pvt) Ltd & Anor SC21-18 where the court stated that;

“The requirements for the application of this nature to succeed are well known as outlined in the case of Kombayi v Berkout 1988 (1) ZLR 53 (S). These are:

1. The extent of the delay;

2. The reasonableness of the explanation for the delay; and

3. The prospects of success on appeal.”

The judgment which the applicant intends to appeal against was handed down on 17 February 2021. The applicant should have filed a valid notice of appeal by 11 March 2021, but, it filed a defective notice of appeal which resulted in the matter being struck off the roll on 10 September 2021.

The applicant lodged this application for condonation and extension of time on 23 September 2021, some nine (9) days after the original appeal was struck off the roll. However, the applicant claims to have filed the present application seven (7) days after the original appeal was struck off the roll.

The overall delay, from the date judgment was handed down, is six months, which delay, in my view, is inordinate.

The applicant did not explain why it failed to note an appeal timeously. It is only stated, that, the applicant's legal practitioner was consulted on the first day after the hearing of the appeal to get instructions. Counsel for the applicant avers, that, they then instructed an advocate to prepare a notice of appeal.

In my view, this cannot be regarded as an explanation for the delay at all.

In the case of Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S) the court held that:

“Condonation of non-observance of the rules is by no means a mere formality. It is for the applicant to satisfy the court that there was sufficient cause to excuse him from non-compliance…,.; the court's power to grant relief should not be exercised arbitrarily and upon the mere asking, but, with proper judicial discretion and upon sufficient and satisfactory grounds shown by the applicant.”…,.

Based on the above authority, the applicant ought to have proffered a reasonable explanation for the delay. The mere asking for condonation does not suffice. There is no explanation given as to why the applicant did not file its appeal on time.

As a result, the application for the delay is not satisfactory.

Although the delay is inordinate, prospects of success have to be assessed.

It is clear from the record, that, the applicant did not canvass the prospects of success. Failure to canvass prospects of success in a founding affidavit is fatal to an application of this nature as correctly submitted by counsel for the respondent.

It is trite law, that, an application stands or falls on the averments made in the founding affidavit.

According to HERBSTEIN & Van WINSEN, The Civil Practice of the Superior Courts in South Africa, 3rd ed…, the learned authors state as follows:

“The general rule, however, which has been laid down repeatedly is that an applicant must stand or fall by his founding affidavit and the facts alleged therein, and that, although sometimes it is permissible to supplement the allegations contained in that affidavit, still, the main foundation of the application is the allegation of facts stated therein, because, these are the facts which the respondent is called upon either to affirm or deny. If the applicant merely sets out a skeleton case in his supporting affidavits, any fortifying paragraphs in his replying affidavits will be struck out.”

Prospects of success refer to the question of whether the applicant has an arguable case on appeal or whether the case cannot be categorised as hopeless.

In the case of Essop v S [2016] ZASCA 114, the court, in defining prospects of success, held that;

“What the test for reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that, a court of appeal could reasonably arrive at a conclusion different to that of the trial court.

In order to succeed, therefore, the appellant must convince this court, on proper grounds, that, he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding.

More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal, or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”…,.

In casu, the contention made by the respondent, in relation to failure to address prospects of success in the founding affidavit, has merit.

The applicant ought to have explained, in detail, why it believes its intended appeal has prospects of success rather than merely stating so. The applicant has an obligation to satisfy the Court, that, once an application for condonation is granted, it has prospects of succeeding on the merits of the matter. These prospects need to be explained, in depth, in order to convince the Court to grant the application.

The applicant failed to advance a case upon which its prospects of success can be assessed. Instead, it only referred to the grounds of appeal.

In the final analysis, I hold that the delay in noting an appeal was inordinate and the explanation for the delay is inadequate. In addition, the applicant failed to properly canvass the prospects of success in its founding affidavit. The application cannot succeed. Costs will follow the event.

It is accordingly ordered, that, the application for condonation of late noting of appeal and extension of time within which to file an appeal be and is hereby dismissed with costs.

It is common cause, that, by her version, the applicant obtained the judgment a few days before the dies induciae for filing an appeal had expired. She, however, did not state when she attended the funeral in Chipinge such that she could not meet with her legal practitioners in order to map the way forward.

Of interest is the fact, that, she also alleged that she got delayed in making this application as a result of the malfunctioning of the Integrated Electronic Case Management System (IECMS) platform. It was her assertion, that, her legal practitioners fruitlessly tried to upload the application from 21 November 2022 until 5 December 2022 when it was actually uploaded.

In Chiutsi v The Sheriff of the High Court and Ors SC02–19…, this Court stated that:

“A litigant's explanation for his or her non–compliance must be devoid of any undertones of a complacency regarding the observance of the rules of court and it must be adequate and tolerable.”

In casu, the applicant's explanation for the delay is difficult to believe.

This is because the applicant is not certain on when her legal practitioners obtained the court a quo's judgment. The fact, that, the first and second respondents managed to get the same judgment on 21 October 2022, without encountering all these problems which allegedly bedevilled the applicant, does not help the applicant's cause.

In addition, if the applicant's legal practitioners truly experienced challenges in accessing the judgment, and in uploading the application on the Integrated Electronic Case Management System (IECMS) platform, they ought to have deposed to an affidavit in support of the applicant's assertions on the difficulties they encountered.

Their failure to do so suggests their lack of confidence in the story being sold by their client.

Such a conclusion is not far-fetched, in that, during the hearing of the application, the applicant's legal practitioner conceded, that, the delay in successfully uploading the application, from 21 November to 5 December 2022, was because they had not paid the required fees - yet the applicant had not alluded to this. She had, instead, stated that it was due to the malfunctioning of the Integrated Electronic Case Management System (IECMS) platform.

It is apposite to note, that, paragraphs 12 to 16 and 28 of the applicant's founding affidavit comprise hearsay evidence.

The fruitless efforts to obtain a copy of the judgment, and in uploading the current application on the IECMS platform, were allegedly encountered by the applicant's legal practitioners, in the absence and without the participation of the applicant, save for the events of the date of handing down the judgment.

It was therefore imperative for the applicant's legal practitioners to depose to a supporting affidavit on the challenges alluded to by the applicant in her founding affidavit if such assertions were to have any probative value.

In the absence of such a deposition, only the paragraphs that do not contain hearsay evidence will be considered.

It is trite, that, hearsay evidence in an affidavit is inadmissible in the absence of an explanation as to why direct evidence is unavailable.

It is trite, that, when an application is improperly before the Court, there will be no application for the court to relate to. The matter which is improperly enrolled faces the fate of being struck off the roll.

In the case of Ahmed v Docking Station Safaris (Private) Limited t/a CC Sales SC70-18…, this Court made the following pertinent remarks:

“In view of the above, it is clear, that, the applicant has approached this court with a wrong application. The circumstances to make an application for condonation for non-compliance with the rules and extension of time within which to file and serve a notice of appeal. This, the applicant failed to do.

The net effect of bringing a wrong application before the court is that there will be virtually nothing placed before it, and, to that end, the application cannot stand.”..,.