Pleadings re: Abandoned Pleadings

HHMT06-20 : BOTHWELL NYAMANDE vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

On 14 August 2019, the appellant appeared before the Senior Magistrate sitting at Mutare facing a charge of Robbery as defined in section 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].The State alleged, that, on 13 August 2019, and at Kale Church Federation, Dangamvura, Mutare, the appellant ...

HH109-08 : LLOYD GAMBIZA vs PIKIRAI TAZIVA
Ruled By: GOWORA J

On 1 March 2007, the plaintiff issued summons out of this court for an order as follows:“(a) An order declaring the agreement, Annexure A to the particulars of the claim, dated 18 December 2006, to have been validly cancelled and incapable of performance.(b) An order for the return to the ...

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HH385-13 : WEBSTER RUSHESHA (as legal guardian of Panashe Rushesha and Tivonge Rushesha) and RASAR INVESTMENTS (PVT) LTD vs ALEXIOUS DERA and ZIMCOR TRUSTEES LTD and FRANK BUYANGA and BOKA INVESTMENTS (PVT) LTD and MATTHEW BOKA and REGISTRAR OF DEEDS
Ruled By: ZHOU J

This is an action instituted by the plaintiff claiming the following relief which is set out in the summons:

“1. An order declaring that:

(i) The purported sale between first and second defendants for the sale of 100% shareholding in second plaintiff, on or about 12th February 2009, and all actions flowing therefrom, including but not limited to the removal of directors and appointment of new directors; and

(ii) The sale and transfer of Stand 671 Mount Pleasant Township 20 of Lot 57 of Mount Pleasant, commonly known as 3 Justice McNally Close, Mount Pleasant, Harare to 5th defendant represented by 4th defendant, are null and void;

(b) The minor children, Panashe Ralph Rushesha and Tivonge Sacha Rushesha, remain the sole shareholders in 2nd plaintiff; and

(c) The directors of 2nd plaintiff, as at 12 February 2009, remain directors unless lawfully removed or through resignation (sic).

2. An order that:

2.1 4th defendant, or, failing it, the Deputy Sheriff, takes all necessary steps to transfer Stand 671 Mount Pleasant Township 20 of Lot 57 of Mount Pleasant, commonly known as 3 Justice McNally Close, Mount Pleasant, Harare, back into the name of the 2nd plaintiff;

2.2 4th defendant and all those claiming occupation through it vacate 3 Justice McNally Close, Mount Pleasant, Harare within fourteen (14) days from the date of judgment; and

2.3 2nd to 5th defendants, jointly and severally, the one paying the others to be absolved: pay for an assessment and report, within fourteen (14) days of such report, by an independent property expert appointed by the High Court, of 3 Justice McNally Close, Mount Pleasant, Harare of any structural changes or damage, other than fair wear and tear, caused to 3 Justice McNally Close, Mount Pleasant, Harare since 12th February 2009 and the costs of repairs or reconstruction; and

(ii) Pay 2nd plaintiff the amount recommended within thirty days of such assessment.

3. An order barring 6th defendant from transferring the property referred to in 6 (sic) above to any third party until transfer to 2nd plaintiff is concluded.

4. In any event, costs of suit on an attorney and client scale to be paid by 1st to 5th defendants, the one paying the others to be absolved.”...,.

Turning to the merits of the claim, the background to the dispute may be summarised as follows:

The first plaintiff is a medical practitioner of Zimbabwean origin. He is presently resident in the United Kingdom together with his wife and children. He is married to the second witness, Aquilina Rudo Rushesha. They had two sons together before they moved to the United Kingdom, namely, Panashe Ralph Rushesha (hereinafter referred to as “Panashe”) and Tivonge Sacha Rushesha (hereinafter referred to as “Tivonge”).

The first defendant, Alexious Mashingaidze Dera, is his brother-in-law, being a brother to his wife.

When the trial commenced, Panashe Ralph Rushesha had attained majority age, and was, by consent, substituted as the third plaintiff.

The first plaintiff's evidence was that before he went to the United Kingdom he acquired an immovable property known as Stand 671 Mount Pleasant Township 20 of Lot 57 of Mount Pleasant, also known as 3 Justice McNally Close, Mount Pleasant, Harare (hereinafter referred to as “the property”).

He asked the first defendant, who is an accountant by profession, to help him form a company in which the shareholders would be the two children mentioned above.

The second plaintiff is the company which was then established for the benefit of the children.

The reason for incorporating the company, according to the first plaintiff, was to have the immovable property registered in the name of the company.

The directors of the company were to be Acquilina Rudo Rushesha and the first defendant.

The property was duly registered in the name of the second plaintiff and was its only asset.

He stated that the name of the second plaintiff derives from the middle names of his two children. “Ra” is from the name 'Ralph; “Sa” is from the name 'Sacha'; while the “R” comes from their surname, Rushesha.

At the time that the property was acquired Panashe was ten years old while Tivonge was about a year old.

The witness paid the purchase price for the property using his own resources.

When the first plaintiff and his family moved to the United Kingdom, in 2003, they leased the property to the South African Embassy. The first defendant was their contact person on some matters relating to the property, but, the rentals were paid directly into his account.

Thus, the first defendant did not receive any rentals in respect of the property; neither did he spend any money on the property.

In or about June 2010, the first plaintiff and his family discovered that the first defendant had sold shares in the second plaintiff to the second defendant, represented by the third defendant. That discovery was only made when the first plaintiff's wife came to Zimbabwe from the United Kingdom.

They discovered that the shares had been sold for a sum of US$36,350.

Subsequent to the sale of the shares in the second plaintiff, the immovable property was then sold to the fourth defendant, represented by the fifth defendant.

The first plaintiff spoke to the fifth defendant by telephone. The fifth defendant advised him that he had purchased the property from the first defendant.

In that conversation, the fifth defendant admitted that he had known that the property belonged to the first plaintiff's wife.

The first plaintiff stated, that, different amounts were given as to the price at which the immovable property had been sold. Initially, a sum of US$90,000 was mentioned. Later on, a figure of US$125,000 was stated as having been paid for the immovable property.

The first plaintiff denied that he authorised the sale of the shares in the second plaintiff or the sale of the immovable property. He, in fact, still holds the original Deed of Transfer for the property.

The first plaintiff described the improvements on the property.

There is a house with three bedrooms. All three bedrooms have bathrooms and toilets; it has three lounges; a kitchen; and a garage on top of which is a tiled entertainment area. There are two rooms next to the garage which the witness stated that he intended to use as offices. The house is fully alarmed. There is a borehole on the property. The other amenities at the property include a gazebo; a swimming pool; a 75 metre driveway with lights; and car shades which can accommodate three motor vehicles.

The second witness for the plaintiff was Aquilina Rudo Rushesha, wife of the first plaintiff.

She is the mother of the two children, Panashe and Tivonge. She was one of the directors of the second plaintiff company at the time that it was incorporated. She never resigned her directorship. She came to Zimbabwe from the United Kingdom in June 2010. That was when she discovered that the immovable property had been alienated by her brother, the first defendant.

She approached the police to help her access the property. She also approached Gerald Mlotshwa, a legal practitioner. A meeting was held which culminated in an affidavit being prepared and sworn to by the first defendant.

The plaintiffs also called Fortune Tapiwa Chasi who is a relative of the first plaintiff's family.

He testified that he knew both the third and fifth defendants at a personal level. The witness was notified of the sale of the property to the Boka company by the first plaintiff. He spoke to the fifth respondent about the matter. From his conversation with the fifth defendant, the latter knew that the first defendant had borrowed money from the second plaintiff and used the immovable property as security for the loan.

The fifth defendant also stated to him, that, he was aware that the property did not belong to the first defendant but to the first plaintiff.

He also communicated to the third defendant, by telephone and e-mail, about the transactions relating to the immovable property. The third defendant stated to him, that, matters related to that were to be directed to his legal practitioners, and that his affairs should be separated from those of the second defendant.

The last witness called to testify for the plaintiffs was the first defendant, Alexious Mashingaidze Dera.

He was, at all material times, a director of the second plaintiff. As stated above, he is a brother to Aquilina Rudo Rushesha and a brother-in-law to the first plaintiff. Although he was cited as the first defendant he did not enter appearance to defend the matter. He only came as a witness at the instance of the plaintiffs after being subpoenaed to attend.

His testimony was that, in February 2009, he obtained a loan in the sum of US$36,350 from the third defendant in order to finance his business of purchasing sugar from Triangle for resale.

As security for the loan, the witness then entered into an agreement for the sale of the shares in the first plaintiff to the second respondent, a company in which the third defendant has an interest.

The agreement of sale was reduced to writing.

His name is recorded as the seller and beneficial owner of “the 2 issued shares in the company” the second plaintiff.

The memorandum acknowledges that the second plaintiff is the registered owner of the immovable property in dispute.

He stated that he repaid to the second and third defendants an amount of money between US$7,000 and US$10,000 in an attempt to liquidate the debt, but, could not catch up with the increasing interest which was being charged on the amount loaned.

He stated that he had known the fifth respondent as a friend prior to meeting the third defendant. He was introduced to the third defendant by the fifth defendant. He then approached the third respondent for a loan which he was duly given as stated above.

When he was having problems in repaying the loan, the third defendant approached the fifth defendant to inquire as to whether the witness had property which could be sold to raise money to repay the balance outstanding on the loan which had gone up to US$70,000.

Interest was being charged on the outstanding amount every month.

In his evidence, the fifth respondent then went and paid to the third respondent the amount outstanding. At the time that the fifth respondent paid off the amount, it had gone up to about US$90,000. The witness stated, that, the fifth defendant wanted to be paid US$100,000 for having settled the debt owed to the second and third defendants.

He deposed to an affidavit prepared by Mr Mlotshwa, a legal practitioner who had been instructed by the first plaintiff's wife, on 24 June 2010. The affidavit was produced as part of the plaintiff's documents.

The second defendant led evidence through one Simon Charehwa who is its Public Officer.

His evidence was that the second defendant, represented by Frank Buyanga, the third defendant, purchased shares in the second plaintiff from Alexious Mashingaidze Dera, the first defendant.

The witness stated, that, the person who dealt directly with the plaintiff was the third defendant.

He, the witness, was responsible for compilation of the information in the files of the second defendant.

He stated, that, Alexious Mashingaidze Dera handed over to Frank Buyanga share certificates relating to the shares as well as resolutions authorising the sale.

The share certificate, according to the witness, was taken to the United Kingdom.

The rest of the documents were kept in the file at the local office. The witness identified a document at page 7 of Exhibit 2 as the resolution which was given by Alexious Dera to the third defendant.

At the time that the transactions were conducted, he was a Clerk.

In cross-examination, he readily admitted that he was not involved when the agreement between the first defendant and the second defendant, acting through the third defendant, was concluded.

He stated that the shares in the first plaintiff were purchased for US$36,350.

He stated, that, the house in dispute, which was the only asset of the first plaintiff, was sold by the second defendant, to the fourth defendant, for a sum of US$110,000, in September 2009.

He stated, that, he knew the first defendant prior to the transaction relating to the shares of the first plaintiff as he used to render accounting services to the third defendant on a part-time basis.

The fifth defendant gave evidence on his behalf as well as on behalf of the fourth defendant.

He is a director of the fourth defendant which is a family company. He stated that he purchased the immovable property in dispute on 15 September 2009. At the time of the agreement, he was shown a Form CR14 and a Form CR6 and a resolution by one James Nqindi.

According to him, James Nqindi and Frank Buyanga were the directors of the second plaintiff at the time that he purchased the property.

He stated that he first knew the first defendant in 2007. He denied that they were friends, but that he was just someone he knew.

The witness stated, that, he had known the third defendant since 2004. He stated, that, the property was vacant at the time that he purchased it. He indicated to the Court, that, the fourth defendant was prepared to relinquish the property if it was paid back the money it had paid for the property. He stated that he purchased the property from the second plaintiff.

The fourth defendant took transfer of the property in 2010.

He described the main structure on the property as a four-bedroomed house, with four bathrooms, a kitchen, lounge, dining room and an additional lounge or office. There is an outbuilding for employees, as well as a swimming pool and a gazebo. At the time of the purchase, there was, according to him, a derelict tennis court. He removed the tennis court with the intention of resurfacing it. The property, which is about an acre, is walled and gated. The main house is partly a double storey, with a room upstairs. The main bedroom has a dressing area. There is a borehole.

The issues which were referred to trial are set out in the joint pre-trial conference minute as follows:

1. Whether or not a valid agreement of sale of shares, allegedly belonging to the minor children (herein represented by the first plaintiff), was entered into between the first and second and third defendants.

2. Whether or not the changes relating to second plaintiff's directors and shareholders, effected as a result of any such agreement, is valid. If not, whether or not such directors and shareholders should revert back (sic) to the period before the 12th of February 2009.

3. Whether or not the second defendant validly entered into an agreement for the sale of the immovable property, being Stand Number 671 Mount Pleasant Township 20 of Lot 57 of Mount Pleasant with fourth and fifth defendants. If not, whether the registration of title into the fourth defendant (sic) must be set aside and the original deed reinstated.

4. Whether or not the plaintiffs have any claim for damages against the second to fifth defendants arising out of the structural alterations to the immovable property. If they have a claim, what the quantum of damages recoverable is.

5. Whether or not, if the plaintiffs succeed, the fourth defendant should remain in possession of the immovable property on the basis of a lien and until any such claim as it may have (has) been realized....,.

The last issue to be determined is whether the fourth defendant has a lien over the immovable property pending compensation.

A lien is a right of retention, ius retentionis, which a party has over the property of another person in respect of which he or she or it has incurred expenditure on: see Nexbak Investments (Pvt) Ltd & Anor v Global Electrical Manufacturers (Pvt) Ltd & Anor 2009 (2) ZLR 270 (S)…,.

Such ius retentionis is pleaded in paragraph 13 of the plea filed on behalf of the fourth and fifth defendants.

However, no evidence was led of any improvements which were effected on the property by the fourth respondent. Indeed, neither the fourth nor fifth defendants indicated an intention to make any claim based on improvements during the course of the trial. There was also no mention of a claim to retain possession of the property in order to secure payment of compensation by the fifth defendant when he gave his evidence.

Even in the closing submissions, the fourth defendant did not make any reference to the lien.

In the circumstances, there is nothing to sustain ius retentionis over the property by the fourth defendant.

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HH661-16 : M COMPANY (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

This is an income tax appeal filed in the High Court in terms of section 65 of the Income Tax Act [Chapter 23:06].

The two questions for determination are:

(i) Whether the appeal is valid; and

(ii) Whether the commission paid to two foreign agents for facilitating the sale of tobacco constituted fees for services of a technical, managerial, administrative or consultative nature as contemplated by section 30 of the of the Income Tax Act and the Seventeenth Schedule to the Income Tax Act.

THE BACKGROUND

The appellant, an exporter and seller of processed tobacco from Zimbabwe, is a locally registered company. It entered into two successive sales and marketing agreements with two foreign companies on 1 April 2004 (annexure 1 of respondent's case and p1-2 of appellant's bundle) and 1 April 2011 (annexure 2 of respondent's case and p3-4 of appellant's bundle) respectively, for the sale of export tobacco in foreign markets.

The sales were on commission of 7.5% of the aggregate net export sales and FCA Zimbabwe sales value of each export, respectively.

In 2007, the respondent audited the affairs of the appellant. It decided that the commission paid for the period to 2005 constituted fees for services of a technical and administrative nature performed by the overseas agent on behalf of the appellant for which the appellant was liable for withholding non-resident tax in terms of the Seventeenth Schedule to the Income Tax Act.

On 5 April 2007, the respondent submitted schedules showing the appellant's withholding tax liability on the tobacco sales commissions payable to the overseas agent.

The tax adviser of the appellant objected to the schedules and imposition of withholding tax on the sales commissions.

On 10 August 2007, the respondent disallowed the objection.

A notice of appeal was filed on 24 August 2007.

The appellant's case was not filed within 60 days of the service of the notice of appeal or at all. In accordance with the provisions of section 65(3) of the Income Tax Act, the appeal lapsed.

The appellant continued to remit non-residents withholding tax to the respondent until the advent of the multi-currency era.

On 24 October 2013, officials of the respondent conducted a routine audit visit at the premises of the appellant during which the Finance Director of the appellant indicated that further remittals had stopped in consequence of the unresolved 2007 appeal.

In a further meeting of 5 December 2013, the appellant requested and was provided with a schedule of the non-residents tax on fees payable from January 2009 to October 2013.

The schedules consisted of 11 columns showing the period covered, the amount of commission paid, the withholding tax rate, the witholding tax due, the penalty charged at 100%, the period covered in respect of interest computation, the period of delay in paying, the interest rate, and the amount of tax due.

The principal amount of the non-residents tax on fees due was in the sum of US$4,252,647=57. An equivalent amount was imposed as penalty and a further US$795,988=62 was imposed as interest.

The penalties were later reduced by half leaving the revised total liability of US$5,974,959=97.

The appellant responded to the schedule by way of the objection letter dated 10 December 2013, which was served on the respondent on the same day.

It disputed that the commissions constituted the fees contemplated in section 30 and the Seventeenth Schedule of the Income Tax Act. It undertook to pay the outstanding principal amount in four instalments between 13 December and 20 January 2014. In consequence of the undertaking, the respondent further waived the reduced penalty and interest by e-mail of 19 December 2013.

The appellant, however, paid the principal amount by 20 December 2013.

A meeting was held between the appellant's tax advisers and the respondent on 13 December 2013. The parties appeared to have agreed, in that meeting, that, the objection had been improperly made.

However, the appellant filed a notice of appeal on 25 March 2014 and served it on the respondent on the following day. The appeal was based on the deemed decision arising from the failure to respond to the letter of objection within three months as contemplated by section 62(4) of the Income Tax Act. The parties filed their respective cases on 28 May 2014 and 13 August 2014.

THE PRELIMINARY OBJECTION

The respondent took the point, that, as it did not issue any assessment on the appellant on 5 December 2013 or any other date, the objection of 10 December 2013, and the subsequent notice of appeal of 25 March 2014, was invalid and of no force or effect.

The appellant contended, inter alia, that the appeal was validated by paragraph (y) of the Eleventh Schedule to the Income Tax Act.

Both counsel correctly submitted, that, the 2007 appeal was abandoned by the appellant.

The effect was that the appellant accepted liability for the non-residents tax on fees, which it failed to withhold and remit to the respondent. In addition, it also accepted that the commissions paid during the period prior to August 2007 constituted fees for services of a technical, administrative, managerial or consultative nature.

It was common cause that the 2007 matter was not pending and could not preclude the appellant from objecting, as it did, to liability for failing to remit non-residents tax on fees for the period from January 2009 to October 2013.

The suggestion, in the respondent's pleadings and minutes of meetings, that the present matter could not be objected to on the basis of the 2007 appeal was clearly devoid of any merit.

HH188-17 : BEN MUNDANGEPFUPFU and ALBAN MUNDANGEPFUPFU vs INNOCENT CHISEPO
Ruled By: MUREMBA J

The facts of this matter, being common cause, the counsels agreed to proceed by way of a Special Case. Consequently, they filed a statement of agreed facts and heads of argument.

The agreed facts are as follows:

On 10 October 2008, the defendant, and one Samuel Raymond Manatsa (hereinafter called Manatsa) entered into an agreement of sale in terms of which the defendant sold to Manatsa a Nissan Hardbody 2.7 litres diesel truck.

On 8 October 2008, the plaintiffs had agreed to act as guarantors for Samuel Raymond Manatsa in the event that he failed to meet his obligations towards the defendant.

The plaintiffs surrendered their title deed, being Deed of Transfer 6291/1998 for a property known as Stand 2846 Highfield Township, Harare as security.

The purchase price of the motor vehicle was US$22,000.

At the time Samuel Raymond Manatsa and the defendant entered into the agreement, they had not sought statutory approval authorising payment in foreign currency as required by the provisions of Statutory Instrument 109/1996, SI109 of 1996.

Samuel Raymond Manatsa failed to perform his obligations in terms of the agreement with the defendant. He failed to pay the purchase price.

As a result, the defendant instituted legal proceedings against him and obtained judgment in case number HC1640/2010 on 17 November 2010.

The judgment was obtained in default.

On 15 December 2010, the defendant instituted legal proceedings against the plaintiffs, under case number HC9295/10, seeking the following order:

“(a) The 1st and 2nd respondents are jointly and severally liable with Samuel Raymond Manatsa to pay and shall pay the sum of US$22,000 jointly and severally to the applicant within ten (10) days of service of this order.

(b) The property known as Stand 2846 Highfield Township held under Deed of Transfer No. 6291/1998 is specially executable by writ of execution in terms of this order and also in terms of the order in Case No. HC1640/2010.

(c) The respondents shall pay the costs of this application on the legal practitioner and client scale.”

The application was opposed by the plaintiffs.

On 18 February 2015, the application was dismissed for want of prosecution under case no. HC105/2015.

On the other hand, another court, unaware of the dismissal that had been granted, granted the application under case number HC9295/10, in June 2015, as a default judgement.

The plaintiffs made an application for its rescission which was granted in default under case number HC9174/15.

The defendant has since made an application for the rescission of that default judgment under case number HC2692 B/2016 which application is still pending.

On 4 April 2011, the plaintiffs had instituted the current proceedings against the defendant seeking the following order:

“(a) Delivery of title deed of property No.2846 Highfield Township, Harare within 7 days of being served a copy of the order.

(b) Costs of suit.”

The defendant opposed the claim and made a counter claim seeking the following order:

“(a) An order that the plaintiff pays the defendant the sum of US$22,000 jointly and severally each paying the other to be absolved.

(b) An order that Stand 2846 Highfield, Harare to be declared specially executable.

(c) Costs of suit on a legal practitioner and client scale.”

At the pre-trial conference, the parties agreed on the issues for trial and the matter was referred to trial; but, on the date of the trial, counsels agreed to proceed by way of a Special Case.

They agreed on the following issues for determination:

1. Is the agreement between the plaintiffs and defendant null and void for want of requisite statutory clearance and authority to transact in United States dollars?

2. In the event that the court finds it unlawful, can the agreement be saved by the legal exceptions that apply in such cases?

3. Whether or not the defendant's counter-claim is res judicata?

4. If the counterclaim is not res judicata, whether or not the prayer should be granted?

I will now turn to deal with these issues one by one....,.

(ii) Whether or not the defendant's counter claim is res judicata?

It is common cause, that, the defendant's counterclaim in the present matter is similar to the claim that he made under HC9295/10.

In both matters, the defendant wants the plaintiffs to be ordered to pay him US$22,000 being the purchase price of the motor vehicle that he sold to Samuel Raymond Manatsa for which the plaintiffs acted as guarantors. He also wants the plaintiffs Stand, for which he holds title deeds, to be declared specially executable. He further wants them to pay costs of suit on a legal practitioner and client scale.

It is not in dispute, that, at the moment, HC9295/2010 is still pending.

The plaintiffs obtained a default judgment dismissing it for want of prosecution and the defendant has since made an application for its rescission under case number HC2692B/2016.

Counsel for the plaintiffs, citing the case of Kawondera v Mandebvu 2006 (1) ZLR 1105, submitted that the requisites for a successful plea of res judicata are that the prior action:

(i) Must have been between the same parties or their privies;

(ii) Must have concerned the same subject matter;

(iii) Must have been founded on the same cause of action.

Counsel for the plaintiffs also cited the case of Towers v Chitapa 1996 (2) ZL 261 submitting, that, in that case, it was held that a default judgment previously handed down could pose as an insuperable obstacle to a claim in the future based on the application of the principle of res judicata.

Counsel for the plaintiffs argued, that, in light of the authorities he had cited, the defendant's claim is res judicata and should therefore be dismissed.

On the other hand, counsel for the defendant submitted, that, the defendant's counter-claim is not res judicata.

He submitted, that, the requirements for a successful plea of res judicata have been laid out in a number of cases such as Tobacco Sales (Pvt) Ltd v Eternity Start Investments 2006 (2) ZLR 293 (H); Flowerdale Investments (Pvt) Ltd and Another v Bernard Construction (Pvt) Ltd and Others 2009 (1) ZLR 110 (S); and Banda & Ors v Zisco 1999 (1) ZLR 340 (SC).

Counsel for the defendant went on to submit, that, the essential elements of res judicata are:

(i) The action in respect of which judgment has been given must concern the same parties.

(ii) The action or judgment must involve the same subject matter.

(iii) The action in which judgment is given must be founded in the same cause of action or complaint.

(iv) With respect to requirement of the judgment, it must be a final and definitive judgment.

It was counsel for the defendant's argument, that, in casu, whilst the parties are the same; the action involves the same subject matter; and the cause of action is the same; the two judgments that were granted in HC9295/2010 are not final and definitive.

He said that the plaintiffs obtained judgment by way of an application for dismissal for want of prosecution which is not a definitive and final judgment.

He also said that the defendant also obtained judgment in default of appearance by the plaintiffs.

Counsel for the defendant submitted, that, as a result, the requirements for res judicata have not been met.

The special plea of res judicata means, that, the same matter has been decided in another court of competent jurisdiction and may not be pursued further by the parties. The matter would have been judged on the merits, and, as such, it may not be re-litigated.

This plea is a declinatory plea meaning, that, it is meant to quash or put an end to the proceedings.

I am in agreement with the essential elements of res judicata as enumerated or outlined by counsel for the defendant, because, he made mention that there should be judgment in the matter and the judgment must be a final and definitive judgment.

The doctrine of res judicata is meant to bar or preclude continued litigation of a case on the same issues between the same parties. It means, that, the matter cannot be revised again, either in the same court or in a different court.

Put differently, the doctrine means that the same matter cannot be reconsidered by the same court or by a different court. It is a legal concept that is meant to prevent -

(i) Injustice to the parties of a case supposedly finished.

(ii) Unnecessary wasting of resources in the courts.

(iii) Future judgments from contradicting earlier ones.

In casu, it has been stated, in the Statement of Agreed Facts, that, pursuant to a default judgement that the plaintiffs obtained, the defendant applied for its rescission and that application is still pending.

To begin with, a default judgment is a court judgment that is granted in favour of either party when the opposing party fails to respond. It can spell the end of a lawsuit and become a final judgment if the opposing party does not seek to reverse it.

However, if the opposing party seeks to reverse it, by making an application for its rescission, it does not become a final judgment.

In HC9295/10, the defendant has since made an application to have the default judgment, which was obtained by the plaintiffs dismissing his claim, rescinded.

This means, that, the default judgment that the plaintiffs obtained is not yet a final judgment.

It will only become a final judgment if the defendant's application for rescission fails, or, if the defendant withdraws the application for rescission.

Therefore, at this juncture, the counter claim cannot be said to be res judicata.

One of the requirements or elements of res judicata, being the need for there to be a final judgment, has not yet been met.

(iii) If the counter-claim is not res judicata whether or not the prayer should be granted?

Although counsels put this as an issue for determination, none of them addressed it in their heads of argument.

I would not know if the omission was an oversight or deliberate.

Be that as it may, I realised that it was an issue that I could determine without recalling counsels to address me on.

HMT26-20 : AYAN TRADING (PRIVATE) LIMITED vs CLEARSKY (PRIVATE) LIMITED
Ruled By: MWAYERA J and MUZENDA J

Grounds 6 and 8 of the Notice of Appeal were abandoned by the appellant's counsel on the date of hearing.

CC02-23 : INNOCENT GONESE vs PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and PRESIDENT OF ZIMBABWE
Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC

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 ...

Appealed
SC06-22 : JOEL SILONDA (SUBSTITUTED BY EXECUTOR, VUSUMUZI SILONDA) vs VUSUMUZI NKOMO
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

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

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.

THE PARTIES RESPECTIVE CLAIMS IN THE COURT A QUO

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 FINDINGS OF THE COURT A QUO

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.

SC09-22 : MOVEMENT FOR DEMOCRATIC CHANGE (TSVANGIRAI) and DOUGLAS MWONZORA and DR THOKOZANI KHUPE vs LILIAN TIMVEOS and THABITHA KHUMALO and OTHERS
Ruled By: GUVAVA JA, MAKONI JA and CHITAKUNYE JA

In motivating the appeal, counsel for the appellants, on reflection, abandoned the first two grounds relating to findings on urgency. He also seemed to have abandoned grounds 4 and 10 as he did not address these grounds.

SC11-22 : ZIMBABWE ANTI-CORRUPTION COMMISSION vs GIBSON MANGWIRO and CHRISTOPHER CHISANGO
Ruled By: KUDYA AJA

CostsIn each of the preceding applications, the applicant has been mulcted with an adverse order of costs either on the ordinary scale or on the higher scale.Counsel for the respondents prayed for costs on a higher scale. In the opposing affidavit, the respondents sought costs de bonis propriis against Mr ...

SC39-23 : LINDA KOPECKY and MARK KOPECKY and TSHOLOFELO TRUST and DIANE THORNTON and SLIPPER SHELL INVESTMENTS (PVT) LTD vs CITY OF HARARE and SPIRIT LIFE CHURCH
Ruled By: BHUNU JA, MAKONI JA and MWAYERA JA

This is an appeal against the whole judgment of the Administrative Court handed down by MANDEYA J on 13 May 2022.After hearing submissions from counsel for the parties, the court dismissed the appeal with costs indicating that reasons for the order would be given in due course.These are the reasons.THE ...

This is an appeal against the whole judgment of the Administrative Court handed down by MANDEYA J on 13 May 2022.

After hearing submissions from counsel for the parties, the court dismissed the appeal with costs indicating that reasons for the order would be given in due course.

These are the reasons.

THE FACTS

The second respondent is the owner of a certain property known as No.1 Petersham Road, Malborough, Harare (the “property”). The appellants are residents of the neighbourhood within which the property is located. The first respondent is a Municipality, Local Planning Authority and an administrative body tasked with the mandate of rendering services to the residents of Harare.

The second respondent, on 9 December 2021, made an application to the first respondent for change of use of its property from residential to use as a church.

The application was opposed by the appellants who feared that the use of the property, as a church, would cause noise pollution thereby disturbing the peace and tranquillity of the neighbourhood. They accordingly filed their objections with the first respondent.

After considering the objections from the appellants, the first respondent granted the application subject to certain conditions. These conditions included, inter alia, a prohibition of the use of certain musical instruments in a way that would disturb the peace of other neighbours. The permit stipulated that the second respondent would construct a sound proof auditorium which was to be inspected by the first respondent's Department of Works.

PROCEEDINGS IN THE COURT A QUO

Dissatisfied by the decision of the first respondent, the appellants lodged an appeal in the Administrative Court (“the court a quo”).

They were challenging the decision of the first respondent on the basis, that, the provisions of the Regional Town and Country Planning Act [Chapter 29:12] (“the Act”) were not complied with before the application was granted. They averred, that, the second respondent neglected to provide all the relevant information required in applications of that nature, in particular, they alleged that it neglected to provide information relating to the external area to be covered by the building, the number of floors of the building, the extent and location of parking facilities for motor vehicles.

Furthermore, they queried the citation of the name of the second respondent in the application. They submitted, that, the Regional, Town and Country Planning Act requires that the owner of the property makes the application or it be done with the consent of the owner.

Their argument was that the owner of the property in question is Spirit Life Church International yet the application before the first respondent was launched by Spirit Life Church. It was their case that Spirit Life Church is a non-existent entity.

The appellants further argued, that, all the interested parties were not notified of the application for the change of use of the property. It was their case that the large number of people who would attend church service would result in noise pollution despite the stipulated precaution.

They contended, that, the permit did not make provision for the costs associated with connection of a sewer system for the church. They also argued, that, the application was granted after the time frame within which to consider it had lapsed.

In response to the appeal, the respondents argued, that, due process of the law was followed before the application was granted.

They disputed the allegation that the notice was not given to all the interested parties and that the application was considered out of time.

With regards to the citation of the second respondent, it submitted that the omission of the word 'International' did not render the second respondent non-existent. They argued that there was no confusion as to the identity of the second respondent.

Further, it was argued that the application form contained all the relevant information to enable the first respondent to consider the application.

The court a quo dismissed the appeal.

It found, that, the argument that the application was considered outside the time frame provided for by the law was unmeritorious as the timeframe was extended by a letter written by the second respondent to the first respondent dated 30 November 2021.

It also dismissed the argument that the respondent did not provide all relevant information. The court held that the application form was to be filled to the extent appropriate.

It found that all the interested parties were notified.

The court a quo dismissed the argument that the first respondent would incur additional costs associated with constructing a sewer line for the church on the basis that the appellants had not motivated that argument.

Aggrieved by the decision of the court a quo, the appellants appealed to this Court on the following grounds:

GROUNDS OF APPEAL

1. The court a quo misdirected itself when it determined the matter on the mistaken basis that the party that had applied for the permit had granted an extension of the period during which the first respondent herein was obliged to determine that application.

2. The court a quo erred when it failed to determine that the second respondent's failure to provide the information that was required under sections 10, 11 and 12 of the application form invalidated the application on the basis that it violated the peremptory provisions of section 26(1) of the Regional Town and Country Planning Act.

3. The court a quo erred when it failed to determine that the application for the development permit was invalid for the reason that the purported applicant therein, Spirit Life Church, does not exist.

4. The court a quo erred when it failed to determine that the permit that was purportedly granted to the second respondent was invalid for failing to make a provision for the cost of connecting the proposed development to the sewer line.

5. The court a quo erred when it failed to nullify the permit on the basis that the same had been granted on the basis of falsehoods which were contained in the application.

RELIEF SOUGHT

The appellants pray that the appeal be allowed with costs and the decision of the court a quo be set aside and substituted with a decision setting aside the decision of the first respondent to grant the permit, and, that the first respondent dismisses the application for the permit. They also prayed for costs of suit.

ISSUES FOR DETERMINATION

(1) Whether or not the court a quo erred in failing to find that due process was not followed before the first respondent granted the permit to the second respondent.

(2) Whether or not the incorrect citation of the name of the second respondent, in the application before the first respondent, was fatal.

PROCEEDINGS BEFORE THIS COURT

APPLICATION OF THE LAW TO THE FACTS

(1) Whether or not the court a quo erred in failing to find that due process was not followed before the first respondent granted the permit to the second respondent

In motivating the appeal, counsel for the appellants argued, that, section 26(1) of the Regional, Town and Country Planning Act was not complied with in that the second respondent omitted to fill in Part 2 and 3 of the application form. His argument was that the permit was granted in the absence of all the relevant information required.

He further argued, that, the application was made by a non-existent entity.

His argument was that the Regional Town and Country Planning Act makes it clear that the application ought to be made by the registered owner of the property or with the consent of the owner.

He based his argument on the authority of John v Delta Beverages Ltd SC40-17 wherein it was held, that, the omission of the word “Pvt” was fatal as there was no party called Delta Beverages Ltd.

Further, he submitted that the permit was a nullity as it did not make provision for the costs associated with construction of a sewer system.

In response, counsel for the first respondent argued, that, section 26(1) of the Regional Town and Country Planning Act does not prescribe the information that ought to be contained in the application form. He submitted, that, the form was filled to the satisfaction of the first respondent, hence, the argument that section 26 of the Regional, Town and Country Planning Act was not complied with lacks merit.

It was his argument, that, the application form was complemented by the justification report which contained the full information required, hence, it cannot be said that insufficient information was supplied when the application for the permit was made.

Counsel for the first respondent further argued, that, the decision by the first respondent involves an exercise of discretion. He submitted that this Court should be slow to interfere with an exercise of discretion. His case was that the appellants do not allege that the discretion was exercised injudiciously warranting interference by this Court.

With regards the citation of the second respondent, he argued that the omission of the word 'International' was not fatal. His case was that unlike the omission of the words '(Pvt) Ltd' the omission of the word International does not have legal connotations. He argued that John v Delta Beverages Ltd SC40-17 was distinguishable from this case.

In addition, he submitted that there was already a sewer line in place which the church could connect to....,.

COSTS ASSOCIATED WITH SEWER LINE

Further, the appellants contend that the court a quo failed to take into account the fact that the permit was granted without making provision for the costs associated with connecting a sewer line for the church.

The court a quo found that the argument relating to the costs of the sewer line was not motivated hence it ought to be treated as abandoned.

The consequence of not motivating all the grounds of appeal was enumerated in the case of Equity Properties (Pvt) Ltd v Alsham Global BVI Limited SC101-21, in which this Court held that:

“It is trite that a failure to motivate a ground of appeal is treated as an abandonment of that ground. The second preliminary point raised is upheld and ground number 4 is accordingly struck out from the notice of appeal.”

In light of the above authority, it can be concluded that the court a quo was correct in treating the ground as having been abandoned. The ground of appeal number 4 is therefore not properly before the court.

The appellants grief before this Court should have been that they argued the issue before the court a quo and it erred by finding that they abandoned the ground.

Whilst still on this point, I must observe that ground of appeal number 5 was not motivated before this Court.

On the authority of Equity Properties (Pvt) Ltd v Alsham Global BVI Limited SC101-21, I take it that it was abandoned and should be dismissed.

SC47-22 : ISMAIL LUNAT vs MOHAMMED PATEL
Ruled By: CHATUKUTA JA

This is an opposed chamber application for condonation of non-compliance with the rules and extension of time in which to appeal in terms of Rule 43(1) of the Supreme Court Rules 2018 (the rules).The application was filed on 6 October 2021.The applicant intends to appeal against the whole judgment of ...

This is an opposed chamber application for condonation of non-compliance with the rules and extension of time in which to appeal in terms of Rule 43(1) of the Supreme Court Rules 2018 (the rules).

The application was filed on 6 October 2021.

The applicant intends to appeal against the whole judgment of the High Court handed down on 12 December 2019 under HB196-19.

BACKGROUND FACTS

The following facts are largely common cause.

On 11 January 2019, the applicant signed an acknowledgment of debt in favour of the respondent in the sum of USD$384,177. The applicant undertook to pay the amount by 20 March 2019.

He failed to pay the debt.

The respondent issued summons against the applicant on the basis of the acknowledgement of debt.

On 12 December 2019, summary judgement was entered in the respondent's favour for payment of the sum of US$384,177 or its equivalent, with interest, at the prevailing interbank rate.

The applicant timeously noted an appeal against that judgment to this Court on 17 December 2019 under SCB48/19.

On 6 February 2020, the respondent was granted by the High Court leave to execute the summary judgment pending the appeal.

On 2 March 2020, the applicant was called upon by the Registrar of the High Court to pay costs for the preparation of the appeal record.

The applicant, acting on advice from his legal practitioners, decided not to pay the costs.

He, instead, took a decision to abandon the appeal and settle the judgment debt. He deposited an amount of ZW$384,177 into the respondent's attorneys trust account on 17 March 2020.

The payment was at the parity rate of 1:1 notwithstanding the order by the court a quo that the rate to be applied was the prevailing inter-bank rate.

On 7 July 2020, the Registrar of the Supreme Court, acting in terms of Rule 46(5) of the Supreme Court Rules 2018 wrote to the applicant's legal practitioners advising them that the appeal had been deemed to have lapsed.

On 24 March 2021, the applicant unsuccessfully sought an interim order for stay of execution of the judgment under HB196-19, and, as final relief, a declaratur that he had acquitted his indebtedness by paying the amount of ZW$384,177.

The applicant noted an appeal under SC117/20 against the dismissal of his application.

The matter was struck off the roll on 19 July 2021 for the reason that the appeal was fatally defective.

Undeterred, the applicant sought condonation of non-compliance with the rules and extension of time in which to appeal on 28 August 2021 under SCB35/21.

The application was dismissed on 8 November 2021 in SC142-21.

The respondent, thereafter, commenced civil imprisonment proceedings against the applicant.

This prompted the applicant to file the present application on 6 October 2021.

ISSUE FOR DETERMINATION

The issue for determination, in my view, is whether the applicant has satisfied the requirements for an application for condonation for the late noting of an appeal and extension of time in which to appeal.

SUBMISSIONS BY THE PARTIES

Applicant's Submissions

Counsel for the applicant conceded, that, there has been an inordinate delay in seeking the condonation. She conceded that the applicant's legal practitioners took a deliberate decision to abandon the appeal. She further conceded that the explanation tendered by the applicant was evidently unreasonable in view of the deliberate abandonment of the appeal.

She also conceded, that, the applicant ought to have proceeded in terms of Rule 48 of the Supreme Court Rules 2018 which rule sets out the procedure which an appellant should follow if he/she/it chooses to abandon an appeal.

She conceded that the applicant's conduct was indefensible.

Counsel for the applicant submitted, that, in spite of the concessions regarding the applicant's infractions, this Court ought to grant the application for condonation nonetheless on the basis that the applicant has prospects of success on appeal.

She submitted, that, the applicant intends to raise an unassailable point of law in his prospective appeal.

The point had not been raised before the lower court and would be raised in the intended appeal as a new point of law.

She further argued, that, the other prospective grounds of appeal in the draft notice of appeal raise arguable issues warranting the granting of the condonation.

She however conceded that punitive costs, as prayed for by the respondent, were warranted even if the applicant succeeds in this appeal.

Respondent's Submissions

Riding on the concessions by counsel for the applicant, counsel for the respondent submitted that the applicant was not entitled to the relief sought.

He submitted that the requirements for such an application must be considered cumulatively. He also submitted that the applicant would not be entitled to the indulgence of the court in light of the concessions made. Furthermore, that the applicant does not have prospects of success on appeal and that the application should be dismissed with costs on a punitive scale.

Counsel for the respondent, however, raised other issues which, in my view, are irrelevant to the determination of the application in view of the concessions by the applicant.

THE LAW

The requirements for an application of this nature are well established. They are:

1. The extent of the delay;

2. The reasonableness of the explanation for the delay;

3. The prospects of success on appeal;

4. Respondent's interest in the finality of the judgment in his/her/its favour;

5. Convenience of the court; and

6. Avoidance of unnecessary delay in the administration of justice.

See Kombayi v Berkhout 1988 (1) ZLR 53 (S)…,.; HERBSTEIN & Van WINSEN, The Civil Practice of the Supreme Court of South Africa, 4th ed…,.

The requirements were rehashed by ZIYAMBI JA in Zimslate Quartzite (Pvt) Ltd & Ors v Central African Building Society SC34-17 where she 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.”…,.

Therefore, in considering whether or not the Court should grant the applicant in casu the indulgence sought, I have to consider the reasons advanced by the applicant in his explanation for the failure to comply with the Rules.

The court retains a discretion on whether to condone the non-compliance with the Rules taking into account the principles of justice, fair play, and the established factors that have to be considered in the exercise of this discretion.

A party seeking condonation and extension of time must satisfy the court that a valid and justifiable reason exists as to why compliance did not occur and why non-compliance should be condoned.

Further, regardless of the prospects of success, a court may decline to grant condonation where it considers the explanation for failure to comply with the Rules unacceptable.

It was stated in Kodzwa v Secretary for Health & Anor 1999 (1) ZLR (S) 313 that:

“Whilst the presence of reasonable prospects of success on appeal is an important consideration which is relevant to the granting of condonation, it is not necessarily decisive.

Thus, in the case of a flagrant breach of the Rules, particularly where there is no acceptable explanation for it, the indulgence of condonation may be refused - whatever the merits of the appeal may be.

This was made clear by Muller JA in PE Bosman Transport Works Committee & Ors v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A) at 799D-E, where the learned Judge of Appeal said:

'In a case such as the present, where there has been a flagrant breach of the Rules of this court in more than one respect, and where, in addition, there is no acceptable explanation for some periods of delay and, indeed, in respect of other periods of delay, no explanation at all, the application should, in my opinion, not be granted whatever the prospects of success may be.'

The same point was made by Hoexter JA in Rennie v Kamby Farms (Pty) Ltd 1989 (2) SA 124 (A) at 131G-J where the learned Judge of Appeal said:

'In applications of this sort, the prospects of success are, in general, an important, although not decisive, consideration.

It has been pointed out (Finbro Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein & Ors 1985 (4) SA 773 (A) at 789C) that the court is bound to make an assessment of the petitioner's prospects of success as one of the factors relevant to the exercise of the court's discretion unless the cumulative effect of the other relevant factors in the case is such as to render the application for condonation obviously unworthy of consideration.

It seems to me, that, in the instant case, the cumulative effect of the factors which I have summarised…, above is by itself sufficient to render the application unworthy of consideration; and that this is a case in which the court should refuse the application irrespective of the prospects of success.'”…,.

See also Jaison Kokerai Machaya v Lameck Nkiwane Muyambi SC04-05.

APPLICATION OF THE LAW

Extent of the delay

The judgment under HB196-19, that the applicant seeks to appeal against, was handed down on 12 December 2019.

The applicant was required to have noted the appeal on or before 9 January 2020.

This application was filed 21 months out of time.

The notice of appeal that was timeously filed under SCB48/19 was deemed to have lapsed on 7 July 2020.

The present application was filed 15 months after the lapse of the appeal.

The inordinate delay has been properly conceded by the applicant.

REASONABLENESS OF THE EXPLANATION FOR THE DELAY

It is the applicant's submission that the reason for his delay was that he had received advice, which advice he accepted, from one of the senior partners at the firm of his legal practitioners, to settle the debt in accordance with the dictates of the case of Zambezi Gas v N.R. Barber and Anor SC03-20.

He paid the debt in Zimbabwean dollars, which the respondent did not accept on the grounds that the applicant was required to pay the debt at the prevailing interbank rate, or in US dollars, as ordered in HB196-19.

The applicant contended that he instructed his legal practitioner to brief counsel to review his case.

It is then that it became clear to him that any argument on the invalidity of a judgment under SC48/19 would best be made in an appeal against the judgment itself.

He discovered that his original notice of appeal was not in accordance with the Rules as it did not clearly and concisely state the grounds of appeal and the exact prayer sought.

He then decided not to seek the reinstatement of the appeal and opted to pursue the present route.

Counsel for the applicant conceded that the explanation was not satisfactory.

In spite of the concession, it is necessary to interrogate the explanation as it must be considered cumulatively with the other requirements.

The reason for the delay proffered by the applicant is very simple.

It is that he took a deliberate decision not to pay costs for the preparation of the record of appeal upon being requested to do so by the Registrar. Instead of pursuing the appeal under SC48/19, he sought to pursue other options to satisfy the judgment debt.

To say the explanation was not satisfactory is an understatement. The explanation was hopelessly unsatisfactory for a number of reasons:

(i) Firstly, the applicant made a calculated decision not to pursue the appeal. He decided to settle the judgment debt at the parity rate in spite of the dictates of the judgement which required him to pay the debt at the inter-bank rate.

The import of the decision he took is that the applicant chose to disregard a court judgment which was extant.

The judgment remained binding because the applicant deliberately chose not to test the correctness of the judgment that he now seeks to appeal against.

He, instead, decided to apply his own rate to pay off the judgment debt which was contrary to the rate prescribed in the judgment.

This was a clear disdain and open defiance of an order of court as it was incumbent upon the applicant to pay at the prevailing interbank rate.

(ii) Secondly, after the applicant opted on a rate to apply, other than the interbank rate, he hit a brick wall when the respondent indicated that he had not fully discharged the judgement debt.

He decided to seek a stay of execution in circumstances where the respondent had successfully obtained an order for execution of the judgment pending appeal under HB196-19.

Leave to execute had in fact been granted unopposed.

The application for stay of execution was filed on 24 March 2021, a year after the Registrar had requested the applicant to pay costs for preparation of the appeal record.

The appeal under SC48/19 had been deemed, by virtue of Rule 46(5) of the Supreme Court Rules, to have lapsed by operation of law.

The application for stay of execution was therefore launched notwithstanding the fact that there was no pending appeal against the judgment HB196-19 - which appeal the applicant had unilaterally and intentionally abandoned.

There was no legal basis for the application for stay as there was no pending appeal.

The applicant further sought a declaratur, as the final relief, on the basis that he had discharged his indebtedness by paying the judgment debt at the parity rate.

This, again, was notwithstanding the extant judgment under HB196-19 which stipulated that payment be at the interbank rate.

In essence, the applicant was seeking, in the final order, to set aside the judgment under HB196-19 through an urgent chamber application.

The final relief sought was therefore not competent.

(iii) Thirdly, the applicant was not a self-actor. He was represented by counsel at all times. He disregarded the Rules of Court on the advice of his legal practitioners.

He stated, in paragraph 16 of the founding affidavit, that:

“16. The understanding of my legal practitioners, which I share, was that, in the wake of the judgment of this Honourable Court in the Zambezi Gas case, and given the date of the debt in this matter, I was entitled to pay ZW384,177 as the parity rate applied to the debt.”

The applicant agreed with the advice given by his legal practitioners. He is therefore not blameless. The applicant, being represented, ought to have known of the probable ramifications that could arise due to his abandonment of the appeal.

(iv) Fourthly, instead of pursuing an appeal against the judgment under HB196-19, the applicant, acting on the advice of counsel, unsuccessfully sought to challenge the judgment by the High Court dismissing his application for stay of execution - not only once, but twice.

(v) Fifthly, the decision to pursue his appeal again was only prompted by the respondent's decision to institute civil imprisonment proceedings. It is only then that he decided to have counsel briefed. Prior to the civil imprisonment proceedings, the applicant was happy to delay the execution of the judgment under HB196-19 by pursuing incompetent proceedings a quo and before this Court.

In spite of the concession by the applicant, that the delay is inordinate and that the explanation for the delay is unsatisfactory, a litigant who wantonly disregards the Rules of this court (and brazenly states so in his founding affidavit) does not deserve the indulgence of the court.

The indulgence of the court should be reserved for parties who inadvertently do not comply with the Rules.

In Ndebele v Ncube 1992 (1) ZLR 288 (S) at 290C-D it was held that:

“It is the policy of the law that there should be finality in litigation. On the other hand, one does not want to do injustice to litigants. But, it must be observed that in recent years applications for rescission, for condonation, for leave to apply or appeal out of time, and for other relief arising out of delays either by the individual or his lawyer, have rocketed in numbers. We are bombarded with excuses for failure to act. We are beginning to hear more appeals for charity than for justice. Incompetence is becoming a growth industry. Petty disputes are argued and then re-argued until the costs far exceed the capital amount in dispute….,.”

It was further held, at 290E-F, that:

“There will always be cases where the delay is due to some reasonable incapacity to act in time, or to some understandable oversight such as the misfiling or misplacing of a document. This is not such a case….,. The time had come to call a halt to the throwing of good money after bad….,.”…,.

The import of the averments by the applicant is, that, despite having deliberately disregarded the Rules on the advice of counsel, he can come back two years later to seek the indulgence of this Court.

The impression created by the applicant's averments and concessions is that condonation is for the asking solely on the basis that the applicant's appeal is arguable.

To extend indulgence under the present circumstances would, in my view, bring the administration of justice into disrepute.

INTEREST OF THE RESPONDENT IN THE FINALITY TO LITIGATION

One of the considerations in deciding whether or not to grant condonation is the respondent's interest in the finality of the judgment of the court.

The respondent obtained judgment on 12 December 2019. After the applicant noted an appeal against the judgment, the respondent obtained an order for leave to execute on 6 February 2020.

The respondent caused the execution of the judgment. He successfully opposed the application by the applicant for stay of execution. He resisted the appeal under SC117/20. He opposed the application for condonation for late noting of appeal under SCB35/21. He instituted civil imprisonment proceedings against the applicant.

The respondent has clearly exhibited an interest in the finality of the litigation between him and the applicant.

The respondent has obviously proceeded, for the past two years, under the impression that the applicant no longer intends to pursue the appeal - only to be landed with an application to resuscitate the appeal wilfully abandoned two years ago.

In order to forestall the civil proceedings instituted by the respondent, the applicant now wishes to appeal against the judgment granted in 2019.

As stated in Jaison Kokerai Machaya v Lameck Nkiwane Muyambi SC04-05 …,.:

“The notion that condonation of a breach of the Rules is there for the asking ought to be dispelled. And, there must be finality to litigation.

It is an injustice to a party who has been waiting to execute his judgment to be forced to suffer the effects of the disregard by the other party's legal practitioners of the Rules of Court, namely, the delaying of the execution of his judgment.”

It appears the applicant's attitude is that the longer it takes for the respondent to enjoy the benefits of the judgment under HB196-19 the better for him. This cannot be countenanced by the law as there must be finality to litigation.

PROSPECTS OF SUCCESS

The applicant argued that he intends to introduce new points of law in his intended appeal.

I have therefore considered that the question whether the applicant has prospects of success is not decisive: Kodzwa v Secretary for Health & Anor 1999 (1) ZLR (S) 313.

The applicant could have prosecuted his appeal under SC48/19 and raised in that appeal the very point of law, in that appeal, which it now seeks to raise in the proposed appeal.

In The Ampthill Peerage [1977] AC 547…, LORD WILBERFORCE remarked as follows:

“Any determination of dispute of fact may, the law recognises, be imperfect; the law aims at providing the best and safest conclusion compatible with human fallibility, and, having reached that solution, it closes the book. The law knows, and we all know, that, sometimes fresh material may be found which perhaps might lead to a different result, but, in the interest of peace, certainty, and security it prevents further inquiry.”

The prospects of success, or lack thereof, of the applicant's prospective appeal are outweighed by the other requirements for condonation.

This is borne out by counsel for the applicant's concession that the applicant's infractions warrant an order of punitive costs.

COSTS

Costs follow the cause. Counsel for the applicant conceded that punitive costs were warranted in the present case.

DISPOSITION

The application is beset by infractions of the Rules of this Court. The delay by the applicant in seeking the condonation is considerable and clearly inordinate. The explanation tendered in support of the application is also unsatisfactory - especially when considering the concession by the applicant's counsel that the infraction was deliberate. The applicant does not deserve the indulgence of the court.

In the result, the application is dismissed with costs on a legal practitioner and client scale.

SC56-22 : CENTRAL AFRICAN BUILDING SOCIETY vs FINORMACG CONSULTANCY (PRIVATE) LIMITED and RETIRED JUSTICE L.G. SMITH
Ruled By: GUVAVA JA, CHATUKUTA JA and MUSAKWA JA

COSTSThe 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.

SC59-22 : DELTA BEVERAGES (PRIVATE) LIMITED vs BLAKEY INVESTMENTS (PRIVATE) LIMITED
Ruled By: BHUNU JA, MAKONI JA and CHITAKUNYE AJA

COSTSIn the grounds of appeal, the appellant had alleged that the court a quo erred and misdirected itself in awarding costs on a punitive scale when such was not warranted.This ground of appeal was, however, not pursued in the heads of argument and in motivating the appeal before this court.Where ...

Appealed
SC95-21 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

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.FACTUAL BACKGROUNDThe appellants are husband and wife and were, at one point, members of the United Family International Church (“UFIC”), the third respondent in casu.The ...

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.

FACTUAL BACKGROUND

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:

CLAIM ONE

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.

CLAIM TWO

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.

CLAIM THREE

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.”

CLAIM FOUR

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.

CLAIM FIVE

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.”

CLAIM SIX

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.

CLAIM THREE

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.

CLAIM FIVE

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.”

CLAIM SIX

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.

DETERMINATION BY THE COURT A QUO

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.

GROUNDS OF APPEAL

“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.”

SC88-22 : LOT SYATIMBULA vs CITY OF VICTORIA FALLS (FORMERLY VICTORIA FALLS MUNICIPALITY)
Ruled By: GWAUNZA DCJ, MATHONSI JA and CHIWESHE JA

Following a successful appeal to this Court against a judgment of the High Court ordering the eviction of the appellant from House Number 484 Jakaranda Drive, Victoria Falls (the house) when it had not heard the merits of the dispute, but only points in limine, this Court handed down judgment which reads in part as follows:

“1….,.

2. The appeal succeeds with each party bearing its own costs.

3. The judgment of the court a quo on the merits is set aside.

4. The matter be and is hereby remitted to the court a quo for determination of the merits before a different judge.”…,.

After hearing the application in terms of the judgment of this Court, the High Court (the court a quo) handed down judgment on 17 March 2022 directing the eviction of the appellant and all those claiming occupation through him from the house. The appellant was also ordered to pay the costs of suit.

This appeal is against that judgment.

THE FACTS

The respondent, a local authority established in terms of the Urban Councils Act [Chapter 24:03], is the owner of the house which it holds in terms of a Deed of Grant. It employed the appellant as its Director of Housing and Community Services and allocated the house to him as an employment benefit.

The appellant's employment was terminated on 31 March 2017 following disciplinary proceedings instituted against him for misconduct.

When called upon to vacate the house, as a consequence of his loss of employment, the appellant resisted.

The respondent then brought an application for a rei vindicatio seeking the appellant's eviction from the house together with all those claiming occupation through him.

The appellant opposed the application raising certain points in limine, namely, that the Town Clerk, who had deposed to the founding affidavit, had no authority to do so.

In addition, the appellant took the point that the matter was lis pendens given that the respondent had also instituted eviction proceedings in the Magistrates Court. The latter proceedings were withdrawn.

After dismissing these points in limine the court a quo proceeded, without hearing submissions on the merits, to determine the merits.

As already stated, on appeal, this court upheld the appeal, set aside the court a quo's judgment and remitted the matter to it for a determination of the merits by a different judge.

Therefore, when the court a quo re-engaged the matter, its mandate was to determine the merits.

The issue before it was whether the appellant was entitled to remain in occupation of the house by dint of some enforceable right he had against the respondent.

PROCEEDINGS BEFORE THE COURT A QUO

Before the court a quo, counsel for the appellant sought to introduce a further point in limine based on the citation of the respondent in the proceedings. It was submitted, that, there was a mis-citation of the respondent as Victoria Falls Municipality which was a non-existent entity. It should have been cited, so it was argued, as Municipality of Victoria Falls.

As a corollary to that, it was submitted, on behalf of the appellant, that, the respondent had failed to prove one of the requirements of a rei vindicatio, namely, ownership of the house. This stemmed from the fact that the Deed of Grant recorded the owner of the house as Municipality of Victoria Falls and not City of Victoria Falls.

Per contra, counsel for the respondent submitted that the judgment of this court was clear that the court a quo was required to engage the matter on the merits and not on preliminary points as urged of it by the appellant. In that regard, so it was argued, the appellant was out of order in raising fresh preliminary points.

The court a quo found, that, the matter had been remitted to it for a specific purpose, namely, a determination of the merits and nothing else. It refused to be drawn to the point in limine as it fell outside the purview of the directions issued by this court.

On the merits, counsel for the respondent submitted that the requirements for the grant of a rei vindicatio, that is, the respondent being the owner of the house which the appellant was occupying without its consent, had been satisfied.

In resisting the application, the appellant submitted that he had a right of retention of the house emanating from the fact that he was appealing the decision to dismiss him from employment and that there existed a compromise arrangement between the parties in terms of which the respondent agreed to let him remain in occupation until he was paid certain sums of money owed to him.

On that aspect, the court a quo found that the fact that the appellant was appealing against the decision to dismiss him did not accord him a right to hold on to the respondent's house.

Regarding the alleged compromise, the court a quo found that no compromise agreement existed between the parties. It took the view that the letter of 19 April 2018, relied upon by the appellant, did not come anywhere near proving the existence of a compromise.

In the court a quo's view, the letter in question only recorded the appellant's own position in the dispute, that he would only vacate the premises upon being paid US$10,000. The letter was not responded to, and, as such, could not tie down the respondent to something it did not agree to.

PROCEEDINGS BEFORE THIS COURT

The appellant was aggrieved by that outcome. He noted an appeal to this court on four grounds, the essence of which is to impugn the court a quo's finding that the requirement of the actio rei vindicatio had been satisfied.

In addition, the appellant also challenged the court a quo's refusal to engage the point in limine he sought to motivate.

Only two issues commend themselves for determination in this appeal. These are:

1. Whether the court a quo erred in refusing to deal with the point in limine relating to the citation of a non-existent entity.

2. Whether the court a quo erred in granting the remedy of an actio rei vindicatio.

At the hearing of the appeal, counsel for the respondent, initially raised two preliminary points which, in his view, were dispositive of the appeal:

(i) The first related to the part of the Notice of Appeal wherein the appellant stated, that, he was appealing against “part of the judgment” of the court a quo. In his view, this rendered the appeal fatally defective in that the appeal was effectively against the whole judgment of the court a quo.

(ii) Secondly, counsel for the respondent sought to impugn the appellant's grounds of appeal numbers 1 and 3 which he said do not meet the requirements of Rule 37(1) of this Court's Rules because they are not clear and concise.

After exchanges with the court, counsel for the respondent abandoned both preliminary points.

For his part, counsel for the appellant also quickly abandoned his reliance on the challenge of the respondent's ownership of the house because it is common cause that the respondent is the owner of the house in question.

Counsel for the appellant motivated the appeal solely on the basis that there exists a compromise agreement in terms of which the appellant has a right of retention until such time that he is paid certain sums of money he believes he is entitled to.

Appealed
SC92-22 : VALENTINE ZISWA and MARGARET ZISWA vs GRAEME CHADWICK and LANDOS FARM (PRIVATE) LIMITED
Ruled By: UCHENA JA, MAKONI JA and KUDYA AJA

On 11 March 2015, the High Court granted part of the claim sought by Valentine Ziswa and his wife Margaret Ziswa (the cross appellants) against Graeme Shaun Chadwick and Landos (Pvt) Ltd (the cross respondents).

The court a quo dismissed the claims of the cross-appellants as against the second cross-respondent in their entirety and granted part of the claims as against the first cross respondent.

The cross appellants seek a reversal of the dismissal orders issued a quo.

The order issued by the court a quo reads as follows:

“In the result, it is ordered that:

1. The plaintiffs claims against the second defendant are hereby dismissed with costs.

2. The plaintiffs claim (a) against the first defendant succeeds only in the sum of $8,808 which the first defendant is directed to pay the plaintiffs.

3(a) The plaintiffs claim (e) partially succeeds to the extent of the 4km LTC Electric cable while the rest is hereby dismissed.

(b) The first defendant shall pay to the plaintiffs the sum of $84,000 being the replacement value of the LTC electric cable removed from the plaintiffs farm.

4. The first defendant shall pay the plaintiffs the sum of $780 being value of labour hired to clear tobacco stalks and related expenses.

5. The plaintiffs claims (b), (c), (d), (f), (g), (j) and (l) are hereby dismissed.

6. Absolution from the instance is granted in respect of plaintiffs claims (h) and (k).

7. The plaintiffs shall pay 20% of the first defendant's costs of suit.”

The first cross appellant is Valentine Ziswa (Ziswa) while the second cross-appellant is his wife, Margaret Ziswa. I will cumulatively refer to them in this judgment as the lessor.

The first cross-respondent is Graham Shaun Chadwick (Chadwick) and the second cross-respondent is Landos (Pvt) Ltd (the Company).

Graham Shaun Chadwick was a director in Landos (Pvt) Ltd, which he also used as his special purpose vehicle or agent to conduct his farming operations on Ziswa Farm (the farm) and on three other surrounding farms, namely, Gijima, Kelvin, and Landos.

THE BACKGROUND

On 20 March 2015, Graham Shaun Chadwick filed a defective Notice of Appeal against the cross appellants, which did not indicate the part of the judgment he sought to impugn.

He, thereafter, filed a contested chamber application for condonation and extension of time within which to appeal on 11 January 2018, which was dismissed with costs on 21 March 2018.

The effective disposal of the main appeal in this manner left the cross appeal pending.

FACTS

On or before 1 September 2008, Valentine Ziswa and Graham Shaun Chadwick entered into a verbal agreement for the lease of the farm and the inventoried equipment. The description, quantities, and state of the leased equipment was recorded in the comprehensive inventory the parties drew in October 2008.

The tobacco season in Zimbabwe generally runs from September to August and sales generally take place between March and June.

Graham Shaun Chadwick was on the farm during the 2008-2009, 2009-2010, 2010-2011, and 2011-2012 seasons (hereinafter called the first, second, third, and fourth seasons, respectively).

On 9 January 2009, Valentine Ziswa and Graham Shaun Chadwick signed a 10-year lease agreement.

On the same date, Valentine Ziswa and his wife (the First Partner) executed a second “Joint Venture Agreement” (JVA) with Graham Shaun Chadwick (Second Partner) for the “long term development” of the farm.

The two agreements were backdated to 1 September 2008.

Graham Shaun Chadwick not only leased the farm and the inventoried property, but, in addition, undertook to erect permanent structures (in each season) of an equivalent value to the seasonal rental payable.

In terms of clause 1 and clause 2, Graham Shaun Chadwick leased “the land, together with all buildings and other permanent improvements and certain immovables” for the ten year period from 1 September 2008 to 31 August 2018 for the purpose of growing “30ha of tobacco, 40ha of maize, 20ha of wheat and any other crop agreed between the parties.”

In terms of clause 3, the rental payable would be “6 per cent on the US$ of the gross turnover of the crops produced on the said land inclusive of bonuses and hailstorm insurances.”

In respect of tobacco, the rent was to be paid into the lessor's FCA by stop order raised at the auction floor, and cash payments were to be made in respect of other crops.

In addition to the rental, Graham Shaun Chadwick would, in terms of clause 4(d), be responsible for the repairs and maintenance of tractors and the inventoried equipment leased to him with effect from 1 September 2008.

Lastly, clause 9 stipulated that:

“This agreement constitutes the entire agreement between the parties, and no representation or undertakings given by one of them to the other of them prior to the execution hereof, and no variation of the conditions hereof, shall have any force or effect unless recorded in writing and executed by the parties hereof.” (The underlining covers the handwritten portions of the otherwise typeset agreement).

The Joint Venture Agreement (JVA) substantially duplicates the lease agreement. Clause 3 thereof reads as follows:

“3. The rent payable by the lessee to the lessor shall be 6 per cent per centum of the gross turnover in respect of the crops produced on the said land, and payment of such rent/lease shall be secured by means of STOP ORDER given by the lessee in favour of the Company against proceeds of tobacco sold through TOBACCO SALES FLOOR. Such PAYMENT shall be executed and registered as soon (sic) may be after the signing of this lease. 31 MARCH, 3 APRIL, 6 END OF JULY. MAIZE 1.5 TON MONTHLY.” (The underlined words and figures are handwritten)

It was common cause that the two agreements are complementary and separate and distinct. The requirements of the Joint Venture Agreement (JVA) were additional to the rental payable.

It was also common cause, that, Graham Shaun Chadwick was an active councillor for the Zimbabwe Tobacco Association (ZTA) for six (6) years and had been its Vice-President for another two (2) years.

He introduced the Zimbabwe Tobacco Association (ZTA) proforma lease and Joint Venture (JV) agreements, and, together with Valentine Ziswa, supplemented and annotated the terms and conditions therein by hand.

Graham Shaun Chadwick grew maize during the first season only and abandoned it in subsequent seasons in preference to the more lucrative tobacco crop. He never grew wheat on the farm.

Graham Shaun Chadwick did not abide by the direct deduction method prescribed in the agreements. He did not disclose to the lessor his prior preferential stop order obligations to the Zimbabwe Leaf Tobacco Company (Pvt) Ltd.

By 10 May 2010, Graham Shaun Chadwick had repaired a weir, put in a pump and generator, laid underground irrigation pipes, erected a centre pivot, paid for the labour for the reconstruction of a burnt down tobacco barn “maintained” all 14 barns by putting in place the necessary appurtenances for curing tobacco, repaired furnaces and sheds, and, at a cost of US$2,700 constructed 11 two roomed staff houses.

By letter dated 22 February 2011, Graham Shaun Chadwick offered to increase lease rental to 8%.

The offer was not accepted.

Instead, the lessor made the counter offer proposed in the detailed draft agreement, which the lessor signed on 13 March 2011.

The counter-offer was, in turn, rejected by Graham Shaun Chadwick.

Between 10 January 2012 and 18 May 2012, the parties failed to amicably resolve the lessor's demands for arrear rentals, maintenance of the leased equipment, and the repatriation of leased property that Graham Shaun Chadwick allegedly took to other farms.

In frustration at the impasse, the lessor sought to exercise a lien over the tobacco produce that was on the farm.

They were, by consent, interdicted by Graham Shaun Chadwick and Landos (Pvt) Ltd, on 24 May 2012 in case No. HC5477/12.

On 10 June 2012, the Ziswas instigated the arrest of Graham Shaun Chadwick for theft of some of the 2008 inventoried property. The complete police docket, compiled by Sergeant N'andu (IO), was produced by consent as exhibit 5.

Sergeant N'andu (the IO) first attended at the farm on 12 June 2012. On 19 June 2012, he conducted a verification or “exit” inventory with Valentine Ziswa and a proxy of Graham Shaun Chadwick, at the direction of the Area Public Prosecutor for Rusape (APP).

By letter dated 2 July 2012, Graham Shaun Chadwick cancelled the lease agreement and immediately vacated the farm.

On 5 September 2012, the Area Public Prosecutor for Rusape declined to prosecute, adjudging the criminal complaint to be a civil dispute.

On 26 September 2012, the lessor issued summons against the defendants claiming an aggregate sum of US$456,699 under 13 heads. These comprised of the following claims:

(a) Arrear rentals of US$64,160 for the fourth farming season;

(b) A refund of rates and levies of US$1,980 paid to the Makoni Rural District Council for the fourth farming season;

(c) The lessor's share of the hailstorm insurance proceeds of US$5,500 in respect of the second farming season;

(d) The outstanding developments for the first three farming seasons, represented by the value of the centre pivot that was removed from the farm, in the sum of US$67,507;

(e) Other enumerated property valued at US$187,707 that was also removed from the farm;

(f) The estimated damages to recovered property of US$15,905;

(g) US$7,600 for the damage to the fence and gates on the farm;

(h) US$15,008 for the repairs to the damaged tobacco barns and flue pipes;

(i) US$780 for removing the fourth season tobacco stalks;

(j) US$26,313 for vandalized overhead water storage tanks, pipes, workers houses, electrical underground cables, dams, pump unit, boreholes, and transformer;

(k) US$15,000 for maize deliveries contractually due to the lessor during the second to fourth farming seasons;

(l) US$4,240 for the tobacco seedlings grown on the farm and sold to other farmers;

(m) US$45,000 damages for loss of income in respect of the 2012/2013 tobacco cropping season caused by the premature and abrupt termination of the agreements.

THE PROCEEDINGS A QUO

The lessor made the following contentions:

The two agreements had separate and distinct obligations. Landos (Pvt) Ltd had a direct and substantial interest in the two agreements, and was, together with Graham Shaun Chadwick, therefore liable for the various contractual breaches that gave rise to the 13 claims.

The lessor's documentary and oral evidence established both liability and quantum in respect of claim (a), (d), (e), (f), (g), (h), (j), (k) and (l) at the higher rate of 8 per cent and not at the 6 per cent in the two agreements.

The lessor abandoned claim (m) and conceded that Graham Shaun Chadwick and Landos (Pvt) Ltd be absolved from the instance in respect of claims (b), (c) and (i) on the ground that the lessor had failed to established the due amounts.

SC103-22 : BENSON MAKACHI and MR. MUGAVA and SIMON NOTA and SILAS GWESHE and GIBSON MUTSAKA and EVERSON BREAKFAST and DAVISON CHIVESO and FREDSON GAMA vs EVANGELICAL CHURCH OF ZIMBABWE
Ruled By: UCHENA JA, CHITAKUNYE JA and CHATUKUTA JA

Counsel for the respondent raised a preliminary point, that, the appeal had been deemed abandoned as the appellants heads of argument did not address the grounds of appeal.Per contra, counsel for the appellants submitted that they had motivated each ground of appeal.He submitted that the issue is really one of ...

SC106-22 : ROLEN TRADING (PRIVATE) LIMITED vs PARKSIDE HOLDINGS (PRIVATE) LIMITED
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

On 24 July 2013, the High Court granted judgment in favour of the respondent herein. Consequent thereto, the court ordered that the appellant vacate premises known as Shops 1 and 2 Benhay Art House, situated at 120 Chinhoyi Street, Harare and pay the sum of USD22,730=99 being arrear rentals, and ...

View Appeal
HBHB160-21 : BLANKET MINE (1983) (PVT) LTD vs FISANI MOYO and VALENTINE MINE (Represented by THOMSON MOYO) and ZIMBABWE REPUBLIC POLICE, GWANDA and PROVINCIAL MINING DIRECTOR N.O.
Ruled By: KABASA J

As for the interdict which the applicant alludes to in its draft order, such was not ventilated, and I therefore will not grant an order that speaks to issues not properly articulated in the applicant's papers.

View Appeal
HH240-15 : VALENTINE ZISWA and MARGARET ZISWA vs GREAEME CHADWICK and LANDOS FARM (PVT) LTD
Ruled By: MATHONSI J

The first plaintiff is a farmer who owns Ziswa Farm (“the farm”) otherwise known as Farm 23 of Lawrencedale Estate in the District of Makoni, Rusape which farm he prefers to rent out while staying on it, as he currently rents it out to his neighbour, he having rented it out to the first defendant prior to that and yet to another person before the first defendant came in.

The second plaintiff is his wife, who, apart from the fact that she was cited as a party along with the first defendant in a joint venture agreement concluded between the couple and the first defendant, on 9 January 2009, has been cited in these proceedings in extremely unclear circumstances.

The first defendant is a commercial farmer, a tobacco grower of note, conducting such business generally at Landos Farm, Halfway House in Headlands and is a director of the second defendant, a duly incorporated company.

The plaintiffs instituted proceedings against the defendant, and, in their summons and declaration, they set out an array of claims, thirteen (13) in all, arising out of a lease agreement signed between the first plaintiff and the first defendant on 9 January 2009 on which date a second agreement titled “Memorandum of Joint Venture Agreement” was also signed between the first and second plaintiffs on the one hand and the first defendant on the other hand.

The plaintiffs averred, that, sometime in 2008 they had entered into a long term development lease agreement with the defendants for the use of the farm and that although the first defendant had signed as the tenant, the actual farming was done through the second defendant.

In terms of the lease agreement, the defendants were expected to put up and maintain infrastructure at the farm, like the construction of 44 houses for workers, dam, and barn construction.

The relationship between the parties deteriorated over time resulting in the defendants cancelling the lease agreement on 2 July 2012 before vacating the farm without notice.

The plaintiffs averred further, that, when the defendants vacated the farm they unlawfully removed certain items of property belonging to the plaintiffs valued at US$186,701 which amount they claimed.

The defendants badly damaged the plaintiffs property valued at $15,905.

They removed fences and gates as they vacated, whose value is $7,600.

During the tenancy, the defendants damaged four (4) barns which were falling at the time they left, while two (2) barns were badly cracked and supported by poles. This was in breach of the agreement of the parties requiring the defendants to keep the barns in good and perfect condition and to repair them to usable state when vacating.

The plaintiffs claimed $5,008 being the costs of repairing the barns.

In further breach of the agreement, the defendants left the farm without removing and destroying tobacco stalks from the land and seed beds which exercise the plaintiffs had to undertake at a cost of $780 including a fine paid to the Environmental Management Agency.

The plaintiffs claimed a sum of $26,313 being the value of their property and machinery including overhead water storage tank and pipes, workers houses, underground cables, water reservoir, cast iron pipes, pump unit, electricals at boreholes and at transformers.

The plaintiff averred further, that, in terms of the lease agreement, the defendants were obliged to deliver to them certain quantities of maize but failed to deliver 50 metric tonnes of maize worth $15,000 which amount the plaintiffs claimed.

They claimed a sum of $45,000 damages for loss of income for the 2012-2013 farming season they would have realised if the defendants had not prematurely terminated the lease agreement and without notice.

A sum of $64,160 was claimed for arrear rentals for the 2011-2012 tobacco crop, being 8% of the gross turnover in respect of crops produced at the farm in terms of the agreement given that 220,000kgs of tobacco were produced during that cropping season.

A sum of $1,980 refund of what the plaintiffs paid for rates and levies to Makoni Rural District Council was claimed, which should have been paid by the defendants in terms of the lease agreement.

The plaintiffs claimed $5,500 being their share of the hailstorm insurance claim made by the defendants to their insurers for the 2009-2010 and 2010-2012 seasons.

A sum of $67,506 was claimed as the value of a centre pivot and generator, which, although purchased by the defendants, they should have left at the farm for the plaintiffs benefit as part of the long term development of the plaintiffs farm.

They claimed $4,240 being 8% of the tobacco seedlings grown on their farm by the defendants.

The defendants have contested the claims, and, in their plea, they took issue with the citation of the second defendant as a party to the proceedings given that there was no agreement, of whatever nature, between the plaintiffs and the second defendant.

In respect of the first defendant, they averred that he complied with all the terms of his agreement with the plaintiffs and denied owing the plaintiffs any money.

The relationship between the parties suffered as a result of the plaintiff's endless interference with farming operations and peaceful enjoyment of the property resulting in a court order being sought and granted interdicting such interference.

The first defendant had to cancel the lease agreement after the plaintiffs had preferred false and malicious criminal charges against him.

The defendants averred that at the termination of the lease, a verification exercise was conducted by the parties which established that all the plaintiffs property had been accounted for, and, as such, none was removed or damaged.

In addition, the fact that the plaintiffs had forcibly taken possession of the farm and equipment, meant that the defendants could not be expected to account for the damage to any property during that period.

They denied vacating the farm secretly or removing fences and gates in the process, especially as the parties were aware of the termination and the defendants vacation of the farm. They denied vandalising any property and that the plaintiffs were entitled to any damages for loss of income.

The parties agreed on the issues for trial at the pretrial conference, which are captured in their joint pre-trial conference minute as:

(a) Whether there was an agreement between the parties as pleaded by the plaintiffs;

(b) Whether the defendants fully complied with the terms and conditions of the agreement;

(c) Whether some of the plaintiffs claims have prescribed, if so, which ones specifically; and

(d) Whether the plaintiffs are entitled to the claims set out in the summons.

Only the first plaintiff gave evidence while the second plaintiff chose not to. They also called witnesses, namely, Assistant Inspector Nixon N'andu, Canaan Nyamombe, and Fanuel Phange.

It was the evidence of the first plaintiff (Ziswa) that prior to the first defendant (Chadwick) approaching him in 2008 he had been leasing his farm to someone else, and that, after Chadwick left unceremoniously in July 2012, he again let out the farm to a neighbour of his, Mr Coleman of Mersy Farm, who, upon taking over, repaired the eight (8) barns which Chadwick had left in a falling condition.

Himself and Chadwick negotiated the lease agreement, which was reduced to writing; the latter having printed a standard form agreement obtained from the National Tobacco Association out of his computer.

He stated that they negotiated every clause, and, as they did so, they added annotations in long hand, which unfortunately were not initialled or counter-signed by the parties, although every page was initialled at the bottom.

After signing the lease agreement, they also prepared and signed a Joint Venture Agreement (JVA) at the instance of Chadwick who wanted it to be signed to protect the parties, given that politically leasing farms was unacceptable while joint venture agreements were tolerated.

As far as he was concerned, the real agreement between the parties was a lease and not a joint venture, which is why the Joint Venture Agreement (JVA) also spoke of a lease and rentals. He referred to both agreements which are part of exhibit 1.

Although both agreements were signed with Chadwick, the witness insisted that they were concluded with both Chadwick and the second defendant, Landos Farm (Pvt) Ltd (Landos) - a claim which is difficult to sustain given that Landos, as an incorporation, was not cited at all in both agreements.

He sought to hold Landos Farm (Pvt) Ltd liable because Chadwick introduced himself as its director and used its letterhead in correspondence.

Some payments were made by Landos.

His claim is based on both agreements.

He explained, that, while the written agreements were signed on 9 January 2009 he had already allowed the defendants to commence farming in August 2008 and that the written agreements only recorded what the parties had agreed.

It is significant that the lease agreement does not necessarily contain some of the necessary details, with the first clause omitting the name of the farm and its hectarage. It also omits the lease period and the date of commencement.

It only has the date of termination entered in pen.

On the various additions to the document, appended in barely legible ink, Ziswa said some were entered by himself while some were made by Chadwick as the two negotiated the terms of the agreement.

The lease provides, in clause 2, that the land was leased for purposes of growing tobacco on 30 hectares, maize on 40 hectares, 20 hectares of wheat or another crop agreed between the parties.

Ziswa said, practically, Chadwick only grew maize during the first year and did not do so for the remainder of the time he was on the farm, electing to concentrate on tobacco farming. He never grew wheat or any other crop for that matter.

The payment of rent is provided for in clause 3 which reads:

“The rent payable by the Lessee to the Lessor shall be 6% on the US$ of the gross turnover in respect of the crops produced on the said land, and, payment of such rent/lease shall be secured by means of direct payment into a FCA given by the lessee in favour of the Company against proceeds of tobacco sold through the Lessee's contract, and, in the case of other such as maize/wheat in equivalue (sic) it shall be executed and registered as soon as may be after the signing of this lease. An advance payment shall be discussed if necessary.”

Despite this provision, Ziswa testified that his claim was for 8% of the gross turnover which he justified by reference to a letter written by Chadwick, on a Landos letterhead, on 22 February 2011, which reads:

“Dear Mr Ziswa

RE: JOINT VENTURE OFFER FOR 2010-2011 SEASON FOLLOWING

I am writing to present my offer on the subject stated above. I am hoping my proposal will be acceptable to you and will be effective for the next three seasons.

I am proposing that I pay you 8% of the gross realisation from the tobacco sales as my joint venture offer. This will be for the sole use of your whole farm.

Please consider that this is the best that I can do. May I refer you to the cost of production document that I sent you earlier on. If I go beyond this offer, the whole enterprise ceases to be viable. I believe this offer presents a win win situation for both parties.

This really is the best that I can do. May you please inform me of your decision by or before 15 March so as to enable me to make preparations for the coming season.

Yours faithfully

Greame Chadwick”…,.

Although Ziswa said he accepted the offer, he did not say when and how this was done.

He did not produce any document of acceptance, neither did he expand on where the acceptance was communicated to Chadwick.

This gives credence to Chadwick's argument, that, his offer was never accepted and that the 6% contained in the lease agreement remained in force.

It is noteworthy that Chadwick appeared to have been writing in his personal capacity even though he used Landos's letterhead.

Ziswa said that the lease was to subsist for an initial period of 5 years but they then “moved to 8 years” and that it was “a developmental lease agreement” enjoining Chadwick to embark on improvements of a permanent nature on the farm, like the construction of dams, staff housing, improving barns and other infrastructural development.

He never did, except for the construction of 11 staff houses out of an agreed total of 44 houses. Even the 11 constructed were not completed. He only repaired one barn which had been burnt down prior to the commencement of the lease. Even in respect of that one, the parties did it together, with Ziswa providing the bricks. Chadwick, however, left the barns falling and supported by poles.

He said the failure to insert the lease period on the agreement was an oversight. So was the failure to insert the name of the leased farm and the date of commencement of the lease, but, it was 1 September 2008 while termination was at the end of August 2018 at the completion of 10 years.

It turns out it was not 5 years, neither was it 8 years, but, Ziswa did not explain when the lease period changed to 10 years.

He stated, that, at the commencement of the lease, they were to hand over to Chadwick their assets located at that farm which the latter was to use for his farming activities.

In that regard, and in the process of identifying and handing over those assets, they produced an inventory at entry point listing these assets. He made reference to p20 to 26 of exhibit 1, the inventory in question, saying all the listed assets were handed over in good working order.

The inventory has a column with the title “Quantity” which he says is where they endorsed not only the quantity of the items involved but also the condition of the items so that if the item was not in good order that would be stated in that column. The fact that there would be no comment on an item meant that it was in good order.

A look at that inventory shows only a couple of comments.

The first relates to diesel tanks with the comment “on stand”. The second relates to an MF tractor with the comments “1 No Wheels.” Other than the description of the disc harrow as “1 red in colour” nothing supports Ziswa's claims on the condition of the items whose state was not given throughout.

Both parties kept their copy of the inventory.

Ziswa went on to say, that, although most of his claims are not based on the written agreements, they had a lot of discussions which resulted in agreements not reduced to writing.

As far as he is concerned, a verbal agreement is also binding. He referred, in that regard, to the agreement on the construction of dams.

After going through the list of items which he said were handed over to Chadwick, including what he said were new “flue pipes not fitted to the barns but kept at the sheds” as well as his own stock of fertilisers not for use by Chadwick, Ziswa went on to say that the tenant had taken over the items and grew tobacco for four (4) years with him being paid due rentals for 2009, 2010, and 2011. He was however not paid anything for the last year the tenant was at the farm, which is 2012.

The claim for arrear rent therefore relates to the 2011 to 2012 tobacco growing season.

In arriving at the 8% of the tobacco produced for that season (as opposed to 6% stated in the agreement), he had to estimate using the sale sheets of Landos which he obtained.

He went through those sale sheets stating that he had to resort to estimation because the tenant did not give him the information.

Based on the sale sheets, and the other information on the tobacco that was produced, they computed that 220,000kgs of tobacco was sold during that year and his 8% of it is the sum of $64,160 being claimed as arrear rental for the 2011-2012 growing season.

When the plaintiffs wrote a letter of demand to Chadwick, on 23 July 2012, they stated that 205,800kgs of tobacco had been realized at the farm during that period, which had been sold at $4=10 per kg giving a gross of $843,780. They were entitled to 10% of it which is $84,378.

It is not clear where 10% cropped up from, but, they claimed it all the same.

In their summons, the claim was reduced to 8% of the gross turnover estimated at 220,000kgs giving the $64,160 being claimed.

Ziswa stated, that, in terms of the parties agreement, the tenant was obliged to pay rates and levies due to Makoni Rural District Council which, for the year 2011-2012, was $1,980. As the tenant did not pay in January 2012, he was forced to pay on their behalf. He would like to be reimbursed that amount.

He stated, that, although he received a receipt upon payment, he was unable to produce it.

In support of his claim, that the tenant was obliged to pay rates, Ziswa made reference to a letter written by Chadwick, again on the Landos letterhead, on 9 November 2010, which reads, in relevant part, as follows:

“Dear Mr Ziswa

RE: RESPONSE TO YOUR LETTER DATED 5/11/10

1. Landos Farm agrees to make a payment of: $1,440 (that had been paid for rates); $750 (for 50 cords of wood @ $15); $350 (barn fire); Total 2,540.

The money will be paid in on Wednesday the 10th of November 2010. The proof of payment will be on the farm on Thursday the 14th of November 2010 as well as for you to collect.”

Unfortunately, Ziswa did not see the need to produce the letter of 5 November 2010 which was being responded to.

He however maintained that the payment of rates was the responsibility of the tenant - even though the lease agreement had no such provision.

In respect of the claim for $5,500, Ziswa stated that the tenant was obliged to insure the tobacco crop against hailstorm destruction. In the event that the tobacco crop is destroyed by hailstorm, the insurer would pay for it.

Hailstorm destroyed the tobacco crop and the tenant claimed from his insurance and was paid, but he did not transmit to him 8% share due in terms of the lease agreement. He is entitled to a percentage of the gross turnover and would also be entitled to the same percentage of insurance payment made for destroyed crops. He is not aware of the exact amount involved because Chadwick refused to give him the figures.

He has had to estimate the figure based on the investigations which he carried out involving his discussions with the employees of the insurer who came to the farm for an inspection.

He did not disclose what those investigations revealed, only stating that he estimated the figure based on his experience and the damage he observed on the crop - an explanation not helpful at all.

Asked as to why the claim for hailstorm insurance, involving a 2009-2010 crop, would be made by summons served on 26 November 2012, outside the prescriptive period of three (3) years, Ziswa dithered.

He then said that “in the heat of things” there was a typing error in the summons because his hailstorm claim is for the 2011-2012 cropping season and not 2009-2010 claimed in the summons.

Significantly, no attempt was made to amend the pleadings.

Pressed by counsel on how he could possibly justify a claim in which he had no figure, Ziswa offered to withdraw the hailstorm claim accepting that it could not be proved.

In respect of the claim for the replacement value of the centre pivot and generator, Ziswa had a difficult time indeed.

He said that the tenant had purchased these movable assets and brought them to the farm for use during the tenure of the lease. He had, however, taken them away at the end. As far as he is concerned, these items fall under the long term development provision of the parties agreement, meaning that they should accrue to the farm. As such, they should be returned or their value paid.

As to how such items should qualify for permanent improvements, he could not explain.

His problems were compounded by the fact, that, he had, through a letter written on his behalf by his legal practitioners, on 12 April 2012, written to Chadwick, stated in part that:

“Of essence, the agreement was that of long term development partnership in terms of which you are obliged to undertake permanent structural development on the farm, such as construction and other infrastructure development. We have noted with concern that you have failed to meet your side of the bargain. You undertook to built (sic) 44 houses for the workers, however, only 11 have been constructed to date. You have bought a centre pivot for irrigation. However, it does not qualify as long term development because it depreciates in value. Also, there is a huge list of farm equipment that has broken down which you have not bothered to repair.”

There you have it.

The plaintiffs themselves did not regard the centre pivot as a long term developmental addition, and, by any stretch of the imagination, the generator cannot be said to be either.

The plaintiffs themselves understood long term to apply to construction of workers houses, dam, and barn construction, and other infrastructural development.

Nothing more needs to be said about that.

On the value of the property either allegedly removed from the farm and not returned, or those damaged by the tenant and not repaired, Ziswa reiterated that all the property given to the tenant, at commencement, was not only usable but also in good working order.

He pointed out, that, at no time did they make life difficult for the tenant because he had free access to the farm at all times and had guards looking after the farm.

It was only after he discovered that they were removing his property from the farm and refusing to return it, and failing to pay to him what was due in terms of the agreement, that he moved in with three (3) of his own guards and closed the barns to prevent the tenant from removing any tobacco produce.

The tenant removed an electricity line running from the first to the second dam, wires and poles were all removed. The implements listed in the pleadings were also removed, including underground pipes.

He produced exhibit 2, an album of photographs showing the state of some of the items which had been given to the tenant at the commencement of the lease agreement. The photographs were taken by his wife, the second plaintiff, and their legal practitioner, in the presence of police inspector N'andu at the time that the defendants vacated the farm.

Unfortunately, none of the photographs depicts the appearance of any of the items at the commencement of the lease agreement, and would, naturally, be unhelpful standing on their own, for comparison.

Ziswa stated, that, Chadwick had used most of his equipment during the lease but broke down most of them with some of the damage being inflicted deliberately.

For more than two (2) years, Chadwick had not repaired the damaged equipment.

He made reference to a list of items, p15 of exhibit 1, which he said was property stolen and removed from the farm, and another list, p18, which he said was property removed and returned in a damaged state.

Although in the summons he was claiming sums of $187,707 as the value of the property removed and not returned, $15,905 as the value of property removed and returned in a damaged state, $7,600 as the value of fences and gates removed or badly damaged by the tenant, and $15,008 being the cost of repairing the damaged tobacco barns, Ziswa said he has since seen the light.

He now realizes that he cannot sustain those claims given that the items involved were not new at the time the tenant took them.

He is therefore not claiming the values contained in the summons but would now defer to the testimony of an expert witness, Fanuel Phange, an accountant who penned exhibits 3 and 3a representing the depreciated values of all the items involved.

He said that he is the one who gave Phange the list of all the items involved and their description. He used the original inventory to do so. He gave Phange the quantities and the quotations for the cost of each unit, which he had sourced himself.

With all that information, he instructed Phange to depreciate the values of the items using international accounting standards. He did, and came up with a grand total of $385,943 which he now craves.

On the claim for $708 for labour hired to clear tobacco stalks from the fields and seed beds, as well as the penalty paid to the Environmental Management Agency (EMA), Ziswa said he hired 10 or 15 casual workers at $4 a day for one week. He hired a tractor for $200, bought diesel for $150 and paid a fine of $150 to EMA.

He could not properly break it down.

If he hired 10 workers for 7 days (assuming that is the number of days as opposed to 5 working days), he would have paid each one of them $28 per week and all of them $280. If he hired 15, the figure would be much higher by $140 meaning he paid $420. Working on the lesser figure, he would have paid $780 under this head. The higher figure would yield a total of $920.

Ziswa said, in terms of the parties agreement, which again is not captured in the written lease and Joint Venture Agreement (JVA), the tenant owes him 50 metric tonnes of maize.

They had agreed that Chadwick would deliver to him 18 tonnes of maize in the first year, 12 tonnes the second year and then moving to 18 tonnes annually from the maize he was required to grow at the farm. He therefore owes 50 metric tonnes valued at $15,000.

In arriving at the value, he inquired from GMB what the value of the maize was, and was told that it was $300 per tonne adding to $15,000 he is claiming.

Again, he does not have a quotation to support the claim.

Ziswa testified, that, during the final year that the tenant occupied his farm, he had grown tobacco seedlings at the farm. He used these seedlings to grow the main crop of tobacco from which he is claiming a share. Chadwick also took some of the seedlings to his other farms and sold some to unnamed individuals in unknown quantities.

According to him, seedlings constitute a crop, and, as the agreement stated that he was entitled to a percentage of the crop grown at his farm, he was therefore entitled to 8% of all the seedlings not used to grow the main crop at the farm.

He stated, that, he had established that seedlings were sold for $200 during the 2011-2012 cropping season. He counted the number of seed beds at the farm over and above what was required at the farm to come up with a claim that would turn William Shakespeare's Shylock “The Merchant of Venice” very green with envy.

Regrettably, he did not tell us what amount of seedlings were required at the farm, how many seed beds were there, how the figure claimed is arrived at, and, more importantly, how “the young one” of a tobacco crop could qualify for a crop and found a basis for a monetary claim.

He however conceded, that, prior to the 2011-2012 season he had not been paid for seedlings and had not submitted a claim, stating that in previous seasons he had not asked for payment for seedlings because relations had not soured.

It is therefore a claim not based on the agreement, but clearly actuated by malice and a strong desire to claim virtually everything, especially considering that the initial claim under this head was $10,200 made in the letter of demand, which was pruned down to the $4,240 now being claimed.

The final claim of $45,000 for loss of income and damages allegedly sustained as a result of the premature termination of the lease, was withdrawn by Ziswa in his evidence in chief.

He said after consultation with his lawyers, he has decided to abandon that claim because he “wants this claim to be clean on things damaged and money not paid.”

It is a concession properly made in light of the abundance of evidence, including a court order granted by this court by consent, pointing to interference with farming activities by the plaintiffs which led to the termination of the lease.

Appealed
SC55-24 : JAYESH SHAH vs PROFESSOR CHARLES NHERERA
Ruled By: GWAUNZA DCJ, GUVAVA JA and CHATUKUTA JA

The appellant abandoned grounds 3 and 7 which were raising constitutional issues not dealt with in the court a quo.

Appealed
SC78-23 : SAVIOUR KASUKUWERE vs LOVEDALE MANGWANA and ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: GUVAVA JA, BHUNU JA and CHATUKUTA JA

On 28 July 2023, this Court dismissed, with no order as to costs, an appeal against the judgment of the High Court under judgment number HH418-23 dated 12 July 2023.At the end of the proceedings, this Court indicated that the reasons for this decision would be availed in due course. ...

On 28 July 2023, this Court dismissed, with no order as to costs, an appeal against the judgment of the High Court under judgment number HH418-23 dated 12 July 2023.

At the end of the proceedings, this Court indicated that the reasons for this decision would be availed in due course. Set out hereunder are the Court's reasons thereof.

THE PARTIES

The appellant is a prospective Presidential candidate in the forthcoming Presidential Election slated for 23 August 2023. The first respondent is a registered voter in Ward 1 Mhondoro Ngezi Constituency. The second respondent is the Zimbabwe Electoral Commission (ZEC), established in terms of section 238 of the Constitution of the Republic of Zimbabwe Amendment (No.20) 2013 (the Constitution). It is responsible for the administration of elections in Zimbabwe. The third respondent is the Minister of Justice, Legal and Parliamentary Affairs. He is cited in his official capacity.

FACTUAL BACKGROUND

The facts founding the instant appeal are as follows:

On 21 June 2023, the appellant, amongst other prospective candidates, successfully lodged his nomination papers as a Presidential candidate before the Nomination Court. The first respondent became aware of the appellant's nomination and acceptance of candidature through the social media.

He took exception to the acceptance of the appellant's candidature.

In a letter dated 22 June 2023, addressed to the Chief Elections Officer, the first respondent stated, that, the appellant had not been resident in his constituency, and in the country, for a continuous period of eighteen (18) months.

He further stated, that, the appellant did not therefore meet the requirements set out under section 91(c)–(d) of the Constitution.

He also stated that section 23(1) and (3) of the Electoral Act [Chapter 2:13] (the Act) mandated that a registered voter ceased to be retained on the voters roll if he had not resided in that constituency for a continuous period of eighteen (18) months.

In reply to the letter, the second respondent advised the first respondent to approach the Electoral Court for relief.

The first respondent, thereafter, filed, in the High Court, an urgent court application under section 85(1)(a) of the Constitution alleging that his fundamental rights under section 56(1), section 67(1)(a) and 67(3) had been violated.

He contended, that, the decision of the Nomination Court to accept the nomination for candidature of the appellant violated section 91(1)(c)–(d) as read together with paragraph 1(2) of the 4th Schedule to the Constitution as read with section 23(3) of the Electoral Act.

The first respondent averred, that, he approached the High Court as he was of the view that the Electoral Court does not have the jurisdiction to issue declaratory relief.

He further averred, that, the Electoral Act and Electoral (Applications Appeals and Petitions) Rules 1995 (S.I.74A of 1995) (the Electoral Rules) did not provide him with any relief.

In opposing the application, the appellant raised several preliminary objections:

He stated, that, the court a quo did not have the jurisdiction to hear and determine electoral matters in which the Electoral Court has exclusive jurisdiction. He argued, that, the first respondent could have proceeded in terms of section 28(1) and 33(1) of the Electoral Act.

He further stated, that, the first respondent had no locus standi to bring the application.

The appellant further alleged, that, the first respondent approached the court a quo on wrong choice of law, and in violation of the principle of subsidiarity.

On the merits, the appellant stated that the first respondent failed to show how the decision of the Nomination Court violated his constitutional rights.

The appellant admitted that he temporarily left the country on medical grounds but denied that he was out of the country for a continuous period of eighteen (18) months.

The second respondent filed a notice indicating that it would abide by the decision of the court a quo.

FINDINGS BY THE COURT A QUO

On the preliminary points raised, the court a quo made the following findings:

(a) On jurisdiction, that it had jurisdiction in terms of section 171(1)(a) and (c) as read with section 85(1) of the Constitution;

(b) In respect to locus standi of the first respondent, it found that he had the locus by virtue of section 85(1)(a) of the Constitution, which accords an individual the right to approach a court alleging a violation of his fundamental rights;

(c) On wrong choice of law, it found that the Electoral Court does not have the necessary jurisdiction to issue declaratory orders. It further found, that, the application was not a review disguised as a declarator as the first respondent had no remedy of review under any other law; and

(d) On the question of breach of the principle of subsidiarity, it held that the first respondent had no other remedy under any other law but to approach a court under section 85(1)(a) of the Constitution.

On the merits, the court a quo made the following findings:

(a) That, once the first respondent had made a negative averment, which was admitted by the appellant, that the appellant had left the country, the onus shifted to the appellant to prove that he was not out of the country and his constituency for a continuous period of eighteen (18) months;

(b) That, the appellant had failed to discharge the reverse onus placed upon him;

(c) In interpreting section 23(3) of the Electoral Act, it held that once a person is absent from the country, and, therefore his/her constituency, for the prescribed period, he/she is deemed, by operation of law, to have ceased to be a registered voter.

It further found, that, cessation of registration as a voter in turn disqualifies one from nomination as a Presidential candidate;

(d) That, the appellant was not resident in the country, and, as such, not resident in his constituency for a continuous period of eighteen (18) months.

Accordingly, the court found, that, the appellant had ceased to be a registered voter, and, consequently did not qualify for nomination as a Presidential candidate.

Following the above findings, the court a quo issued the following order:

“IT IS DECLARED:

1. That, the decision of the Nomination Court sitting at Harare on 21 June 2023 to accept first respondent's nomination paper and candidature for election to the office of the President of the Republic of Zimbabwe in the elections scheduled to be conducted on 23 August 2023 was a violation of the provisions of section 91(1)(c) and (d) read together with paragraph 1(2) of the Fourth Schedule of the Constitution of Zimbabwe 2013 as further read together with section 23(2) of the Electoral Act.

2. That, the decision of the Nomination Court sitting at Harare on 21 June 2023 to accept first respondent's nomination paper and candidature for election to the office of the President of the Republic of Zimbabwe in the elections scheduled to be conducted on 23 August 2023 is in violation of applicant's constitutional rights as set out in sections 56(1), 67(2)(a) and 67(3)(a) of the Constitution of Zimbabwe 2013.

3. That, the decision of the Nomination Court sitting at Harare on 21 June 2023 to accept first respondent's nomination paper and candidature for election to the office of the President of the Republic of Zimbabwe in the elections scheduled to be conducted on 23 August 2023 is declared null and void and of no force and effect and hereby set aside.

4. That, first respondent is not a candidate for election to the office of President of Zimbabwe in the elections scheduled to be conducted on 23 August 2023.

ACCORDINGLY, IT IS ORDERED:

5. Second and third respondents shall not include the name of first respondent in the preparation of ballot papers to be used in the elections scheduled to be conducted on 23 August 2023.

6. First respondent is interdicted from representing of holding himself out to the general public and electorate in Zimbabwe of abroad, whether physically or through any form of media, as a candidate for election to the office of the President of Zimbabwe in elections scheduled to be held on 23 August 2023.

7. Each party shall bear its own costs.”

Dissatisfied with the court a quo's decision, the appellant filed the instant appeal on the following grounds:

“GROUNDS OF APPEAL

1. The court a quo erred at law in finding that it had the requisite jurisdiction to deal with the matter when the dispute before it clearly emanated from the Electoral Act [Chapter 2:13], and, in particular, sections 23, 28 and 33 thereof.

2. By finding that the 1st respondent had locus standi in judicio and adopting a liberal approach to it in a clearly non-constitutional matter, the court a quo committed an error at law which must be impeached by this Court.

3. By finding that the General Notice 1128-2023 made in terms of section 106 of the Electoral Act [Chapter 2:13] did not constitute law, the court a quo grossly erred and misdirected itself as it ignored the provisions of section 15A and 20 of the Interpretation Act [Chapter 1:01].

4. By entertaining the application on constitutional basis as it did, the court a quo erred and violated the constitutional principle of subsidiarity as it ignored specific provisions in the Electoral Act [Chapter 2:13], Administrative Justice Act [Chapter 10:28] and/or common law, which provide specific, adequate, and satisfactory remedies to the 1st respondent.

5. A fortiori, the court a quo erred in making an uncanny finding, that, the decision of the Nomination Court did not constitute a reviewable decision at law thereby dismissing the preliminary point that the application was a disguised review process.

6. The court a quo further erred in placing reverse onus to the appellant to prove his residence status in violation of the law and in complete disregard of the averments that were made by the 1st respondent in evidence.

7. Further, the court a quo erred in making a finding that the averments pertaining to the residence status of the appellant, as made by the 1st respondent, were in the negative thereby improperly applying the law.

8. Related to ground number 7 above, the court a quo grossly misdirected itself in making a factual finding that the appellant was not or has not been in the country for a period stipulated in section 23(3) of the Electoral Act in the absence of evidence establishing the same.

9. In taking purported judicial notice of the alleged absence of the appellant from Zimbabwe, the High Court erred, in using the principle of judicial notice to assist the 1st respondent in discharging an onus that he had miserably failed to establish on the founding papers.

10. The court a quo erred and misconstrued section 23 of the Electoral Act in deeming the appellant removed from the voters roll without having regard to section 28 of the same which posits a process which must be followed in removing a registered voter from the voters roll thereby disqualifying him as a Presidential candidate for the forthcoming plebiscite.

11. All in all, the court a quo erred at law by granting as it did, an unspeaking order with the result that no one knows what relief exactly was granted in the absence of an un-issued draft order which does not form part of the disposition of the judgment.

12. The court a quo erred at law in granting an application without making a positive finding on the infringement of section 67 of the Constitution.

RELIEF SOUGHT

The appellant prays that the appeal be allowed with costs and that the judgment of the court a quo, handed down under EC10/23, on 12 July 2023, be set aside and in its place and stead thereof be substituted with the following:

'IN THE MAIN, the court declines its jurisdiction.

IN THE ALTERNATIVE, the application is struck off the roll with costs.

IN THE ALTERNATIVE, the application is dismissed with costs on an attorney-client scale.'”

By consent, the above grounds were amended by adding the following:

“13. In dealing with the question of the perceived absence of the appellant from a constituency, and not cessation of residence in a constituency, the court a quo erred, and, by so doing, conducted a wrong enquiry leading to a judgment that is contrary to the dictates of section 23(3) of the Electoral Act.

The court a quo erred at law in disposing of the matter before it on the basis of perceived absence from a constituency when the law upon which the application was predicated, section 23(3) of the Electoral Act, relates to cessation to reside in a constituency, a totally different concept that has its own different requirements.”

PROCEEDINGS BEFORE THIS COURT

Prior to the hearing of this appeal, the appellant had, by letter dated 21 July 2023, and addressed to the Registrar, requested the appointment of a five-member Bench to determine whether or not the case of Kambarami v 1893 Mthwakazi Restoration Movement Trust & Ors SC66-21 was properly decided.

At the commencement of the proceedings, the appellant abandoned the request and submitted that the matter should proceed before the Bench as constituted.

Counsel for the second and counsel for the third respondent submitted that they would abide by the decision of the court....,.

VALIDITY OF THE NOTICE OF APPEAL

The second preliminary objection related to the validity of the Notice of Appeal.

The first respondent argued, that, the Notice of Appeal was defective in a number of respects, inter alia, in that:

1. The grounds of appeal lacked clarity and precision, were prolix, and attack every finding of the court a quo in violation of Rule 37(1)(d) as read with Rule 44(1) of the Supreme Court Rules 2018;

2. The failure by the appellant to properly cite, in the Notice of Appeal, the second respondent's correct address is contrary to Rule 11 of the Supreme Court Rules; and

3. The appellant seeks, in its prayer, several forms of relief in the alternative and therefore the relief sought is not exact.

The first respondent abandoned the objections in the second and third paragraphs, and, in our view, properly so.

This leaves the first paragraph for the Court's consideration....,.

Grounds 11 and 12 were not motivated by the appellant, either in the heads of argument or in oral submissions.

Ground 11 related to the issuance of an unspeaking order. Ground 12 attacked the court a quo's finding for failing to make a finding on the violation of fundamental rights.

It is trite that a ground not motivated is deemed abandoned. Both grounds 11 and 12 are accordingly deemed abandoned.

SC110-22 : CONSTRUCTION RESOURCES AFRICA (PVT) LTD vs CENTRAL AFRICAN BUILDING AND CONSTRUCTION COMPANY (PVT) LTD t/a CENTRAL AFRICAN BUILDING
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

I note that the question of the equities of the order made a quo, which was raised in the second part of the fifth ground of appeal, was not canvassed in the court a quo or motivated in this Court.I consider it to have been abandoned, and will, therefore, not ...

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Law Portal
Zimbabwe

Pleadings re: Abandoned Pleadings

HHMT06-20 : BOTHWELL NYAMANDE vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

HH109-08 : LLOYD GAMBIZA vs PIKIRAI TAZIVA
Ruled By: GOWORA J

View Appeal
HH385-13 : WEBSTER RUSHESHA (as legal guardian of Panashe Rushesha and Tivonge Rushesha) and RASAR INVESTMENTS (PVT) LTD vs ALEXIOUS DERA and ZIMCOR TRUSTEES LTD and FRANK BUYANGA and BOKA INVESTMENTS (PVT) LTD and MATTHEW BOKA and REGISTRAR OF DEEDS
Ruled By: ZHOU J

View Appeal
HH661-16 : M COMPANY (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

HH188-17 : BEN MUNDANGEPFUPFU and ALBAN MUNDANGEPFUPFU vs INNOCENT CHISEPO
Ruled By: MUREMBA J

HMT26-20 : AYAN TRADING (PRIVATE) LIMITED vs CLEARSKY (PRIVATE) LIMITED
Ruled By: MWAYERA J and MUZENDA J

CC02-23 : INNOCENT GONESE vs PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and PRESIDENT OF ZIMBABWE
Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC

Appealed
SC06-22 : JOEL SILONDA (SUBSTITUTED BY EXECUTOR, VUSUMUZI SILONDA) vs VUSUMUZI NKOMO
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

SC09-22 : MOVEMENT FOR DEMOCRATIC CHANGE (TSVANGIRAI) and DOUGLAS MWONZORA and DR THOKOZANI KHUPE vs LILIAN TIMVEOS and THABITHA KHUMALO and OTHERS
Ruled By: GUVAVA JA, MAKONI JA and CHITAKUNYE JA

SC11-22 : ZIMBABWE ANTI-CORRUPTION COMMISSION vs GIBSON MANGWIRO and CHRISTOPHER CHISANGO
Ruled By: KUDYA AJA

SC39-23 : LINDA KOPECKY and MARK KOPECKY and TSHOLOFELO TRUST and DIANE THORNTON and SLIPPER SHELL INVESTMENTS (PVT) LTD vs CITY OF HARARE and SPIRIT LIFE CHURCH
Ruled By: BHUNU JA, MAKONI JA and MWAYERA JA

SC47-22 : ISMAIL LUNAT vs MOHAMMED PATEL
Ruled By: CHATUKUTA JA

SC56-22 : CENTRAL AFRICAN BUILDING SOCIETY vs FINORMACG CONSULTANCY (PRIVATE) LIMITED and RETIRED JUSTICE L.G. SMITH
Ruled By: GUVAVA JA, CHATUKUTA JA and MUSAKWA JA

SC59-22 : DELTA BEVERAGES (PRIVATE) LIMITED vs BLAKEY INVESTMENTS (PRIVATE) LIMITED
Ruled By: BHUNU JA, MAKONI JA and CHITAKUNYE AJA

Appealed
SC95-21 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

SC88-22 : LOT SYATIMBULA vs CITY OF VICTORIA FALLS (FORMERLY VICTORIA FALLS MUNICIPALITY)
Ruled By: GWAUNZA DCJ, MATHONSI JA and CHIWESHE JA

Appealed
SC92-22 : VALENTINE ZISWA and MARGARET ZISWA vs GRAEME CHADWICK and LANDOS FARM (PRIVATE) LIMITED
Ruled By: UCHENA JA, MAKONI JA and KUDYA AJA

SC103-22 : BENSON MAKACHI and MR. MUGAVA and SIMON NOTA and SILAS GWESHE and GIBSON MUTSAKA and EVERSON BREAKFAST and DAVISON CHIVESO and FREDSON GAMA vs EVANGELICAL CHURCH OF ZIMBABWE
Ruled By: UCHENA JA, CHITAKUNYE JA and CHATUKUTA JA

SC106-22 : ROLEN TRADING (PRIVATE) LIMITED vs PARKSIDE HOLDINGS (PRIVATE) LIMITED
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

View Appeal
HBHB160-21 : BLANKET MINE (1983) (PVT) LTD vs FISANI MOYO and VALENTINE MINE (Represented by THOMSON MOYO) and ZIMBABWE REPUBLIC POLICE, GWANDA and PROVINCIAL MINING DIRECTOR N.O.
Ruled By: KABASA J

View Appeal
HH240-15 : VALENTINE ZISWA and MARGARET ZISWA vs GREAEME CHADWICK and LANDOS FARM (PVT) LTD
Ruled By: MATHONSI J

Appealed
SC55-24 : JAYESH SHAH vs PROFESSOR CHARLES NHERERA
Ruled By: GWAUNZA DCJ, GUVAVA JA and CHATUKUTA JA

Appealed
SC78-23 : SAVIOUR KASUKUWERE vs LOVEDALE MANGWANA and ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: GUVAVA JA, BHUNU JA and CHATUKUTA JA

SC110-22 : CONSTRUCTION RESOURCES AFRICA (PVT) LTD vs CENTRAL AFRICAN BUILDING AND CONSTRUCTION COMPANY (PVT) LTD t/a CENTRAL AFRICAN BUILDING
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

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Law Portal Zimbabwe

Pleadings re: Abandoned Pleadings

HHMT06-20 : BOTHWELL NYAMANDE vs THE STATE Ruled By: MWAYERA J and MUZENDA J

HH109-08 : LLOYD GAMBIZA vs PIKIRAI TAZIVA Ruled By: GOWORA J

View Appeal HH385-13 : WEBSTER RUSHESHA (as legal guardian of Panashe Rushesha and Tivonge Rushesha) and RASAR INVESTMENTS (PVT) LTD vs ALEXIOUS DERA and ZIMCOR TRUSTEES LTD and FRANK BUYANGA and BOKA INVESTMENTS (PVT) LTD and MATTHEW BOKA and REGISTRAR OF DEEDS Ruled By: ZHOU J

View Appeal HH661-16 : M COMPANY (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY Ruled By: KUDYA J

HH188-17 : BEN MUNDANGEPFUPFU and ALBAN MUNDANGEPFUPFU vs INNOCENT CHISEPO Ruled By: MUREMBA J

HMT26-20 : AYAN TRADING (PRIVATE) LIMITED vs CLEARSKY (PRIVATE) LIMITED Ruled By: MWAYERA J and MUZENDA J

CC02-23 : INNOCENT GONESE vs PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and PRESIDENT OF ZIMBABWE Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC

Appealed SC06-22 : JOEL SILONDA (SUBSTITUTED BY EXECUTOR, VUSUMUZI SILONDA) vs VUSUMUZI NKOMO Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

SC09-22 : MOVEMENT FOR DEMOCRATIC CHANGE (TSVANGIRAI) and DOUGLAS MWONZORA and DR THOKOZANI KHUPE vs LILIAN TIMVEOS and THABITHA KHUMALO and OTHERS Ruled By: GUVAVA JA, MAKONI JA and CHITAKUNYE JA

SC11-22 : ZIMBABWE ANTI-CORRUPTION COMMISSION vs GIBSON MANGWIRO and CHRISTOPHER CHISANGO Ruled By: KUDYA AJA

SC39-23 : LINDA KOPECKY and MARK KOPECKY and TSHOLOFELO TRUST and DIANE THORNTON and SLIPPER SHELL INVESTMENTS (PVT) LTD vs CITY OF HARARE and SPIRIT LIFE CHURCH Ruled By: BHUNU JA, MAKONI JA and MWAYERA JA

SC47-22 : ISMAIL LUNAT vs MOHAMMED PATEL Ruled By: CHATUKUTA JA

SC56-22 : CENTRAL AFRICAN BUILDING SOCIETY vs FINORMACG CONSULTANCY (PRIVATE) LIMITED and RETIRED JUSTICE L.G. SMITH Ruled By: GUVAVA JA, CHATUKUTA JA and MUSAKWA JA

SC59-22 : DELTA BEVERAGES (PRIVATE) LIMITED vs BLAKEY INVESTMENTS (PRIVATE) LIMITED Ruled By: BHUNU JA, MAKONI JA and CHITAKUNYE AJA

Appealed SC95-21 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

SC88-22 : LOT SYATIMBULA vs CITY OF VICTORIA FALLS (FORMERLY VICTORIA FALLS MUNICIPALITY) Ruled By: GWAUNZA DCJ, MATHONSI JA and CHIWESHE JA

Appealed SC92-22 : VALENTINE ZISWA and MARGARET ZISWA vs GRAEME CHADWICK and LANDOS FARM (PRIVATE) LIMITED Ruled By: UCHENA JA, MAKONI JA and KUDYA AJA

SC103-22 : BENSON MAKACHI and MR. MUGAVA and SIMON NOTA and SILAS GWESHE and GIBSON MUTSAKA and EVERSON BREAKFAST and DAVISON CHIVESO and FREDSON GAMA vs EVANGELICAL CHURCH OF ZIMBABWE Ruled By: UCHENA JA, CHITAKUNYE JA and CHATUKUTA JA

SC106-22 : ROLEN TRADING (PRIVATE) LIMITED vs PARKSIDE HOLDINGS (PRIVATE) LIMITED Ruled By: MAKARAU JA, GOWORA JA and BERE JA

View Appeal HBHB160-21 : BLANKET MINE (1983) (PVT) LTD vs FISANI MOYO and VALENTINE MINE (Represented by THOMSON MOYO) and ZIMBABWE REPUBLIC POLICE, GWANDA and PROVINCIAL MINING DIRECTOR N.O. Ruled By: KABASA J

View Appeal HH240-15 : VALENTINE ZISWA and MARGARET ZISWA vs GREAEME CHADWICK and LANDOS FARM (PVT) LTD Ruled By: MATHONSI J

Appealed SC55-24 : JAYESH SHAH vs PROFESSOR CHARLES NHERERA Ruled By: GWAUNZA DCJ, GUVAVA JA and CHATUKUTA JA

Appealed SC78-23 : SAVIOUR KASUKUWERE vs LOVEDALE MANGWANA and ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS Ruled By: GUVAVA JA, BHUNU JA and CHATUKUTA JA

SC110-22 : CONSTRUCTION RESOURCES AFRICA (PVT) LTD vs CENTRAL AFRICAN BUILDING AND CONSTRUCTION COMPANY (PVT) LTD t/a CENTRAL AFRICAN BUILDING Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

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Law Portal
Zimbabwe

HHMT06-20 : BOTHWELL NYAMANDE vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

HH109-08 : LLOYD GAMBIZA vs PIKIRAI TAZIVA
Ruled By: GOWORA J

View Appeal
HH385-13 : WEBSTER RUSHESHA (as legal guardian of Panashe Rushesha and Tivonge Rushesha) and RASAR INVESTMENTS (PVT) LTD vs ALEXIOUS DERA and ZIMCOR TRUSTEES LTD and FRANK BUYANGA and BOKA INVESTMENTS (PVT) LTD and MATTHEW BOKA and REGISTRAR OF DEEDS
Ruled By: ZHOU J

View Appeal
HH661-16 : M COMPANY (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

HH188-17 : BEN MUNDANGEPFUPFU and ALBAN MUNDANGEPFUPFU vs INNOCENT CHISEPO
Ruled By: MUREMBA J

HMT26-20 : AYAN TRADING (PRIVATE) LIMITED vs CLEARSKY (PRIVATE) LIMITED
Ruled By: MWAYERA J and MUZENDA J

CC02-23 : INNOCENT GONESE vs PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and PRESIDENT OF ZIMBABWE
Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC

Appealed
SC06-22 : JOEL SILONDA (SUBSTITUTED BY EXECUTOR, VUSUMUZI SILONDA) vs VUSUMUZI NKOMO
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

SC09-22 : MOVEMENT FOR DEMOCRATIC CHANGE (TSVANGIRAI) and DOUGLAS MWONZORA and DR THOKOZANI KHUPE vs LILIAN TIMVEOS and THABITHA KHUMALO and OTHERS
Ruled By: GUVAVA JA, MAKONI JA and CHITAKUNYE JA

SC11-22 : ZIMBABWE ANTI-CORRUPTION COMMISSION vs GIBSON MANGWIRO and CHRISTOPHER CHISANGO
Ruled By: KUDYA AJA

SC39-23 : LINDA KOPECKY and MARK KOPECKY and TSHOLOFELO TRUST and DIANE THORNTON and SLIPPER SHELL INVESTMENTS (PVT) LTD vs CITY OF HARARE and SPIRIT LIFE CHURCH
Ruled By: BHUNU JA, MAKONI JA and MWAYERA JA

SC47-22 : ISMAIL LUNAT vs MOHAMMED PATEL
Ruled By: CHATUKUTA JA

SC56-22 : CENTRAL AFRICAN BUILDING SOCIETY vs FINORMACG CONSULTANCY (PRIVATE) LIMITED and RETIRED JUSTICE L.G. SMITH
Ruled By: GUVAVA JA, CHATUKUTA JA and MUSAKWA JA

SC59-22 : DELTA BEVERAGES (PRIVATE) LIMITED vs BLAKEY INVESTMENTS (PRIVATE) LIMITED
Ruled By: BHUNU JA, MAKONI JA and CHITAKUNYE AJA

Appealed
SC95-21 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

SC88-22 : LOT SYATIMBULA vs CITY OF VICTORIA FALLS (FORMERLY VICTORIA FALLS MUNICIPALITY)
Ruled By: GWAUNZA DCJ, MATHONSI JA and CHIWESHE JA

Appealed
SC92-22 : VALENTINE ZISWA and MARGARET ZISWA vs GRAEME CHADWICK and LANDOS FARM (PRIVATE) LIMITED
Ruled By: UCHENA JA, MAKONI JA and KUDYA AJA

SC103-22 : BENSON MAKACHI and MR. MUGAVA and SIMON NOTA and SILAS GWESHE and GIBSON MUTSAKA and EVERSON BREAKFAST and DAVISON CHIVESO and FREDSON GAMA vs EVANGELICAL CHURCH OF ZIMBABWE
Ruled By: UCHENA JA, CHITAKUNYE JA and CHATUKUTA JA

SC106-22 : ROLEN TRADING (PRIVATE) LIMITED vs PARKSIDE HOLDINGS (PRIVATE) LIMITED
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

View Appeal
HBHB160-21 : BLANKET MINE (1983) (PVT) LTD vs FISANI MOYO and VALENTINE MINE (Represented by THOMSON MOYO) and ZIMBABWE REPUBLIC POLICE, GWANDA and PROVINCIAL MINING DIRECTOR N.O.
Ruled By: KABASA J

View Appeal
HH240-15 : VALENTINE ZISWA and MARGARET ZISWA vs GREAEME CHADWICK and LANDOS FARM (PVT) LTD
Ruled By: MATHONSI J

Appealed
SC55-24 : JAYESH SHAH vs PROFESSOR CHARLES NHERERA
Ruled By: GWAUNZA DCJ, GUVAVA JA and CHATUKUTA JA

Appealed
SC78-23 : SAVIOUR KASUKUWERE vs LOVEDALE MANGWANA and ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: GUVAVA JA, BHUNU JA and CHATUKUTA JA

SC110-22 : CONSTRUCTION RESOURCES AFRICA (PVT) LTD vs CENTRAL AFRICAN BUILDING AND CONSTRUCTION COMPANY (PVT) LTD t/a CENTRAL AFRICAN BUILDING
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA