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SC123-23 - ARISTON MANAGEMENT SERVICES vs ECONET WIRELESS ZIMBABWE LIMITED

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Procedural Law-viz final orders re ex tempore judgment iro entitlement of litigants to written reasons for judgment.
Procedural Law-viz final orders re extempore orders iro entitlement of litigating parties to written reasons for judgement.
Procedural Law-viz final orders re setting aside of an arbitral award.
Law of Contract-viz arbitration re registration of an arbitral award.
Procedural Law-viz appeal re jurisdictional considerations.
Procedural Law-viz affidavits re form.
Procedural Law-viz pleadings re nullity of proceedings.
Procedural Law-viz final orders re procedural irregularities.
Procedural Law-viz final orders re case law authorities iro the doctrine of stare decisis.
Procedural Law-viz judicial precedent re the doctrine of stare decisis iro composition of the Bench.
Procedural Law-viz rules of evidence re documentary evidence iro commissioning.
Procedural Law-viz affidavit re commissioning iro section 8 of the Justices of the Peace and Commissioners of Oath Act [Chapter 7:09].
Procedural Law-viz affidavits re commissioning iro section 2 of S.I.183 of 1998.
Procedural Law-viz case law authorities re the doctrine of horizontal stare decisis iro composition of the Bench.
Procedural Law-viz pleadings re non-pleaded issues iro matters raised for the first time on appeal.
Procedural Law-viz pleadings re matters not specifically pleaded iro issues introduced for the first time on appeal.
Procedural Law-viz pleadings re belated pleadings iro submissions made for the first time on appeal.
Procedural Law-viz appeal re belated pleadings iro issues raised for the first time on appeal.
Procedural Law-viz non pleaded matters re issues introduced for the first time on appeal iro point of law.
Procedural Law-viz issues not specifically pleaded re matters raised for the first time on appeal iro points of law.
Procedural Law-viz belated pleadings re submissions made for the first time on appeal iro question of law.
Procedural Law-viz court management re consolidation of matters.
Procedural Law-viz court management re joinder of actions.
Procedural Law-viz final orders re handing down of judgment iro severability of judgments.
Procedural Law-viz final orders re procedural irregularities iro discretion of the court to interfere.
Procedural Law-viz procedural irregularities re discretion of the court to interfere iro section 25 of the Supreme Court Act [Chapter 7:13].
Procedural Law-viz costs re no order as to costs.
Procedural Law-viz costs re no costs order.
Procedural Law-viz final orders re procedural irregularities iro discretion of the court to strike a matter from the roll.

Appeal re: Findings of Fact or Exercise of Discretion Made by Lower Court iro Jurisdictional Considerations


This is the unanimous judgment of this Court.

This is an appeal against the judgement of the High Court handed down on 20 July 2023 dismissing the appellant's application to set aside an arbitral award and registering that award.

On 2 October 2023, the respondent filed a notice of objection in terms of Rule 51 of the Supreme Court Rules 2018, that, the appellant's founding affidavit filed in support of the application seeking to set aside the arbitral award in the court a quo was defective in that it was undated. The respondent submitted, that, for that reason, there was no valid application before the court a quo.

The respondent urged the court to dismiss the appeal with costs on that basis.

At the commencement of the hearing, counsel for the respondent, relying on the authority of Mandishaya v Sithole HH798-15, which is a judgment of two Judges of the High Court, submitted that the founding affidavit of the appellant, in the court a quo, was invalid as it was un-dated.

Per contra, counsel for the appellant submitted that the Mandishaya v Sithole HH798-15 judgment is wrong. He argued, that, section 8 of the Justices of the Peace and Commissioners of Oath Act [Chapter 7:09], which governs the administering of an oath, does not require the insertion of a date on an affidavit. Counsel further referred to section 2 of SI 183/98, which prohibits a Commissioner of Oaths from administering an oath in a matter in which he or she has an interest.

Counsel for the appellant also referred to the case of Firstel Cellular (Pvt) Ltd v Net One Cellular (Pvt) Ltd 2015 (1) ZLR 94 (S) which dealt with a matter where a wrong stamp had been appended by the Commissioner of Oaths.

In our view, that case is not useful for present purposes.

In Mandishaya v Sithole HH798-15, the court remarked that the deponent of an affidavit must take the oath in the presence of the Commissioner. Equally, the Commissioner must append his or her signature on the statement in the presence of the deponent. The court went on to say, that, the Commissioner must also endorse the date on which the oath was administered and that those acts must occur contemporaneously.

The reason behind that requirement is for the court to be satisfied, that, the oath was administered at a given date, in the presence of both the deponent and the Commissioner. Without the date, the court may never be able to ascertain if the oath was properly administered in accordance with the law.

The court a quo was bound by the Mandishaya v Sithole HH798-15 judgment, being a judgement of the two Judges.

Even though the issue was not argued a quo, it could be raised for the first time on appeal as it is a point of law.

We do not agree with counsel for the appellant, with his argument that the judgment was wrongly decided.

There is merit in the preliminary objection. It ought to be upheld. It renders the application for setting aside the award a nullity....,.

It follows that, absent a valid application a quo, there can be no valid appeal before this Court.

Pleadings re: Belated Pleadings, Matters Raised Mero Motu by Court and Doctrine of Notice iro Approach


This is the unanimous judgment of this Court.

This is an appeal against the judgement of the High Court handed down on 20 July 2023 dismissing the appellant's application to set aside an arbitral award and registering that award.

On 2 October 2023, the respondent filed a notice of objection in terms of Rule 51 of the Supreme Court Rules 2018, that, the appellant's founding affidavit filed in support of the application seeking to set aside the arbitral award in the court a quo was defective in that it was undated. The respondent submitted, that, for that reason, there was no valid application before the court a quo.

The respondent urged the court to dismiss the appeal with costs on that basis.

At the commencement of the hearing, counsel for the respondent, relying on the authority of Mandishaya v Sithole HH798-15, which is a judgment of two Judges of the High Court, submitted that the founding affidavit of the appellant, in the court a quo, was invalid as it was un-dated.

Per contra, counsel for the appellant submitted that the Mandishaya v Sithole HH798-15 judgment is wrong. He argued, that, section 8 of the Justices of the Peace and Commissioners of Oath Act [Chapter 7:09], which governs the administering of an oath, does not require the insertion of a date on an affidavit. Counsel further referred to section 2 of SI 183/98, which prohibits a Commissioner of Oaths from administering an oath in a matter in which he or she has an interest.

Counsel for the appellant also referred to the case of Firstel Cellular (Pvt) Ltd v Net One Cellular (Pvt) Ltd 2015 (1) ZLR 94 (S) which dealt with a matter where a wrong stamp had been appended by the Commissioner of Oaths.

In our view, that case is not useful for present purposes.

In Mandishaya v Sithole HH798-15, the court remarked that the deponent of an affidavit must take the oath in the presence of the Commissioner. Equally, the Commissioner must append his or her signature on the statement in the presence of the deponent. The court went on to say, that, the Commissioner must also endorse the date on which the oath was administered and that those acts must occur contemporaneously.

The reason behind that requirement is for the court to be satisfied, that, the oath was administered at a given date, in the presence of both the deponent and the Commissioner. Without the date, the court may never be able to ascertain if the oath was properly administered in accordance with the law.

The court a quo was bound by the Mandishaya v Sithole HH798-15 judgment, being a judgement of the two Judges.

Even though the issue was not argued a quo, it could be raised for the first time on appeal as it is a point of law.

We do not agree with counsel for the appellant, with his argument that the judgment was wrongly decided.

There is merit in the preliminary objection. It ought to be upheld. It renders the application for setting aside the award a nullity.

Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Grounds of Appeal iro Belated Pleadings ito Approach


This is the unanimous judgment of this Court.

This is an appeal against the judgement of the High Court handed down on 20 July 2023 dismissing the appellant's application to set aside an arbitral award and registering that award.

On 2 October 2023, the respondent filed a notice of objection in terms of Rule 51 of the Supreme Court Rules 2018, that, the appellant's founding affidavit filed in support of the application seeking to set aside the arbitral award in the court a quo was defective in that it was undated. The respondent submitted, that, for that reason, there was no valid application before the court a quo.

The respondent urged the court to dismiss the appeal with costs on that basis.

At the commencement of the hearing, counsel for the respondent, relying on the authority of Mandishaya v Sithole HH798-15, which is a judgment of two Judges of the High Court, submitted that the founding affidavit of the appellant, in the court a quo, was invalid as it was un-dated.

Per contra, counsel for the appellant submitted that the Mandishaya v Sithole HH798-15 judgment is wrong. He argued, that, section 8 of the Justices of the Peace and Commissioners of Oath Act [Chapter 7:09], which governs the administering of an oath, does not require the insertion of a date on an affidavit. Counsel further referred to section 2 of SI 183/98, which prohibits a Commissioner of Oaths from administering an oath in a matter in which he or she has an interest.

Counsel for the appellant also referred to the case of Firstel Cellular (Pvt) Ltd v Net One Cellular (Pvt) Ltd 2015 (1) ZLR 94 (S) which dealt with a matter where a wrong stamp had been appended by the Commissioner of Oaths.

In our view, that case is not useful for present purposes.

In Mandishaya v Sithole HH798-15, the court remarked that the deponent of an affidavit must take the oath in the presence of the Commissioner. Equally, the Commissioner must append his or her signature on the statement in the presence of the deponent. The court went on to say, that, the Commissioner must also endorse the date on which the oath was administered and that those acts must occur contemporaneously.

The reason behind that requirement is for the court to be satisfied, that, the oath was administered at a given date, in the presence of both the deponent and the Commissioner. Without the date, the court may never be able to ascertain if the oath was properly administered in accordance with the law.

The court a quo was bound by the Mandishaya v Sithole HH798-15 judgment, being a judgement of the two Judges.

Even though the issue was not argued a quo, it could be raised for the first time on appeal as it is a point of law.

We do not agree with counsel for the appellant, with his argument that the judgment was wrongly decided.

There is merit in the preliminary objection. It ought to be upheld. It renders the application for setting aside the award a nullity.

Founding Affidavits re: Approach, Amendment, Form, Framing, Commissioning, Authentication and Execution


This is the unanimous judgment of this Court.

This is an appeal against the judgement of the High Court handed down on 20 July 2023 dismissing the appellant's application to set aside an arbitral award and registering that award.

On 2 October 2023, the respondent filed a notice of objection in terms of Rule 51 of the Supreme Court Rules 2018, that, the appellant's founding affidavit filed in support of the application seeking to set aside the arbitral award in the court a quo was defective in that it was undated. The respondent submitted, that, for that reason, there was no valid application before the court a quo.

The respondent urged the court to dismiss the appeal with costs on that basis.

At the commencement of the hearing, counsel for the respondent, relying on the authority of Mandishaya v Sithole HH798-15, which is a judgment of two Judges of the High Court, submitted that the founding affidavit of the appellant, in the court a quo, was invalid as it was un-dated.

Per contra, counsel for the appellant submitted that the Mandishaya v Sithole HH798-15 judgment is wrong. He argued, that, section 8 of the Justices of the Peace and Commissioners of Oath Act [Chapter 7:09], which governs the administering of an oath, does not require the insertion of a date on an affidavit. Counsel further referred to section 2 of SI 183/98, which prohibits a Commissioner of Oaths from administering an oath in a matter in which he or she has an interest.

Counsel for the appellant also referred to the case of Firstel Cellular (Pvt) Ltd v Net One Cellular (Pvt) Ltd 2015 (1) ZLR 94 (S) which dealt with a matter where a wrong stamp had been appended by the Commissioner of Oaths.

In our view, that case is not useful for present purposes.

In Mandishaya v Sithole HH798-15, the court remarked that the deponent of an affidavit must take the oath in the presence of the Commissioner. Equally, the Commissioner must append his or her signature on the statement in the presence of the deponent. The court went on to say, that, the Commissioner must also endorse the date on which the oath was administered and that those acts must occur contemporaneously.

The reason behind that requirement is for the court to be satisfied, that, the oath was administered at a given date, in the presence of both the deponent and the Commissioner. Without the date, the court may never be able to ascertain if the oath was properly administered in accordance with the law.

The court a quo was bound by the Mandishaya v Sithole HH798-15 judgment, being a judgement of the two Judges.

Even though the issue was not argued a quo, it could be raised for the first time on appeal as it is a point of law.

We do not agree with counsel for the appellant, with his argument that the judgment was wrongly decided.

There is merit in the preliminary objection. It ought to be upheld. It renders the application for setting aside the award a nullity.

Documentary Evidence, Certification, Commissioning, Authentication and the Best Evidence Rule re: Approach


This is the unanimous judgment of this Court.

This is an appeal against the judgement of the High Court handed down on 20 July 2023 dismissing the appellant's application to set aside an arbitral award and registering that award.

On 2 October 2023, the respondent filed a notice of objection in terms of Rule 51 of the Supreme Court Rules 2018, that, the appellant's founding affidavit filed in support of the application seeking to set aside the arbitral award in the court a quo was defective in that it was undated. The respondent submitted, that, for that reason, there was no valid application before the court a quo.

The respondent urged the court to dismiss the appeal with costs on that basis.

At the commencement of the hearing, counsel for the respondent, relying on the authority of Mandishaya v Sithole HH798-15, which is a judgment of two Judges of the High Court, submitted that the founding affidavit of the appellant, in the court a quo, was invalid as it was un-dated.

Per contra, counsel for the appellant submitted that the Mandishaya v Sithole HH798-15 judgment is wrong. He argued, that, section 8 of the Justices of the Peace and Commissioners of Oath Act [Chapter 7:09], which governs the administering of an oath, does not require the insertion of a date on an affidavit. Counsel further referred to section 2 of SI 183/98, which prohibits a Commissioner of Oaths from administering an oath in a matter in which he or she has an interest.

Counsel for the appellant also referred to the case of Firstel Cellular (Pvt) Ltd v Net One Cellular (Pvt) Ltd 2015 (1) ZLR 94 (S) which dealt with a matter where a wrong stamp had been appended by the Commissioner of Oaths.

In our view, that case is not useful for present purposes.

In Mandishaya v Sithole HH798-15, the court remarked that the deponent of an affidavit must take the oath in the presence of the Commissioner. Equally, the Commissioner must append his or her signature on the statement in the presence of the deponent. The court went on to say, that, the Commissioner must also endorse the date on which the oath was administered and that those acts must occur contemporaneously.

The reason behind that requirement is for the court to be satisfied, that, the oath was administered at a given date, in the presence of both the deponent and the Commissioner. Without the date, the court may never be able to ascertain if the oath was properly administered in accordance with the law.

The court a quo was bound by the Mandishaya v Sithole HH798-15 judgment, being a judgement of the two Judges.

Even though the issue was not argued a quo, it could be raised for the first time on appeal as it is a point of law.

We do not agree with counsel for the appellant, with his argument that the judgment was wrongly decided.

There is merit in the preliminary objection. It ought to be upheld. It renders the application for setting aside the award a nullity.

Final Orders re: Composition of Bench iro Precedents, Stare Decisis, Disparate Facts & Effect of Ex Post Facto Legislation


This is the unanimous judgment of this Court.

This is an appeal against the judgement of the High Court handed down on 20 July 2023 dismissing the appellant's application to set aside an arbitral award and registering that award.

On 2 October 2023, the respondent filed a notice of objection in terms of Rule 51 of the Supreme Court Rules 2018, that, the appellant's founding affidavit filed in support of the application seeking to set aside the arbitral award in the court a quo was defective in that it was undated. The respondent submitted, that, for that reason, there was no valid application before the court a quo.

The respondent urged the court to dismiss the appeal with costs on that basis.

At the commencement of the hearing, counsel for the respondent, relying on the authority of Mandishaya v Sithole HH798-15, which is a judgment of two Judges of the High Court, submitted that the founding affidavit of the appellant, in the court a quo, was invalid as it was un-dated.

Per contra, counsel for the appellant submitted that the Mandishaya v Sithole HH798-15 judgment is wrong. He argued, that, section 8 of the Justices of the Peace and Commissioners of Oath Act [Chapter 7:09], which governs the administering of an oath, does not require the insertion of a date on an affidavit. Counsel further referred to section 2 of SI 183/98, which prohibits a Commissioner of Oaths from administering an oath in a matter in which he or she has an interest.

Counsel for the appellant also referred to the case of Firstel Cellular (Pvt) Ltd v Net One Cellular (Pvt) Ltd 2015 (1) ZLR 94 (S) which dealt with a matter where a wrong stamp had been appended by the Commissioner of Oaths.

In our view, that case is not useful for present purposes.

In Mandishaya v Sithole HH798-15, the court remarked that the deponent of an affidavit must take the oath in the presence of the Commissioner. Equally, the Commissioner must append his or her signature on the statement in the presence of the deponent. The court went on to say, that, the Commissioner must also endorse the date on which the oath was administered and that those acts must occur contemporaneously.

The reason behind that requirement is for the court to be satisfied, that, the oath was administered at a given date, in the presence of both the deponent and the Commissioner. Without the date, the court may never be able to ascertain if the oath was properly administered in accordance with the law.

The court a quo was bound by the Mandishaya v Sithole HH798-15 judgment, being a judgement of the two Judges.

Even though the issue was not argued a quo, it could be raised for the first time on appeal as it is a point of law.

We do not agree with counsel for the appellant, with his argument that the judgment was wrongly decided.

There is merit in the preliminary objection. It ought to be upheld. It renders the application for setting aside the award a nullity.

Pleadings re: Claims, Counter-Claim, Claim in Reconvention and Counter Application iro Effect of Composite Orders


This is the unanimous judgment of this Court.

This is an appeal against the judgement of the High Court handed down on 20 July 2023 dismissing the appellant's application to set aside an arbitral award and registering that award.

On 2 October 2023, the respondent filed a notice of objection in terms of Rule 51 of the Supreme Court Rules 2018, that, the appellant's founding affidavit filed in support of the application seeking to set aside the arbitral award in the court a quo was defective in that it was undated. The respondent submitted, that, for that reason, there was no valid application before the court a quo.

The respondent urged the court to dismiss the appeal with costs on that basis.

At the commencement of the hearing, counsel for the respondent, relying on the authority of Mandishaya v Sithole HH798-15, which is a judgment of two Judges of the High Court, submitted that the founding affidavit of the appellant, in the court a quo, was invalid as it was un-dated.

Per contra, counsel for the appellant submitted that the Mandishaya v Sithole HH798-15 judgment is wrong. He argued, that, section 8 of the Justices of the Peace and Commissioners of Oath Act [Chapter 7:09], which governs the administering of an oath, does not require the insertion of a date on an affidavit. Counsel further referred to section 2 of SI 183/98, which prohibits a Commissioner of Oaths from administering an oath in a matter in which he or she has an interest.

Counsel for the appellant also referred to the case of Firstel Cellular (Pvt) Ltd v Net One Cellular (Pvt) Ltd 2015 (1) ZLR 94 (S) which dealt with a matter where a wrong stamp had been appended by the Commissioner of Oaths.

In our view, that case is not useful for present purposes.

In Mandishaya v Sithole HH798-15, the court remarked that the deponent of an affidavit must take the oath in the presence of the Commissioner. Equally, the Commissioner must append his or her signature on the statement in the presence of the deponent. The court went on to say, that, the Commissioner must also endorse the date on which the oath was administered and that those acts must occur contemporaneously.

The reason behind that requirement is for the court to be satisfied, that, the oath was administered at a given date, in the presence of both the deponent and the Commissioner. Without the date, the court may never be able to ascertain if the oath was properly administered in accordance with the law.

The court a quo was bound by the Mandishaya v Sithole HH798-15 judgment, being a judgement of the two Judges.

Even though the issue was not argued a quo, it could be raised for the first time on appeal as it is a point of law.

We do not agree with counsel for the appellant, with his argument that the judgment was wrongly decided.

There is merit in the preliminary objection. It ought to be upheld. It renders the application for setting aside the award a nullity.

In view of the fact, that, the court a quo rendered a composite judgment in respect of the two applications, the invalid application and its outcome are capable of severance.

The application for registration, being a separate application, is not affected.

It follows that, absent a valid application a quo, there can be no valid appeal before this Court.

We therefore propose to proceed in terms of section 25 of the Supreme Court Act [Chapter 7:09], which allows this Court to review and set aside irregular proceedings.

Regarding costs, our view is that each party should bear its own costs because the respondent ought to have raised this defect to the application earlier.

In the result, it be and is hereby ordered as follows:

1. The matter be and is hereby struck off the roll with no order as to costs.

2. In terms of section 25(2) of the Supreme Court Act [Chapter 7:13], the proceedings in the application to set aside the arbitral award are hereby set aside.

Pleadings re: Nullity of Proceedings, Void or Voidable Acts, Peremptory Provisions and the Flowing of Rights Therefrom


This is the unanimous judgment of this Court.

This is an appeal against the judgement of the High Court handed down on 20 July 2023 dismissing the appellant's application to set aside an arbitral award and registering that award.

On 2 October 2023, the respondent filed a notice of objection in terms of Rule 51 of the Supreme Court Rules 2018, that, the appellant's founding affidavit filed in support of the application seeking to set aside the arbitral award in the court a quo was defective in that it was undated. The respondent submitted, that, for that reason, there was no valid application before the court a quo.

The respondent urged the court to dismiss the appeal with costs on that basis.

At the commencement of the hearing, counsel for the respondent, relying on the authority of Mandishaya v Sithole HH798-15, which is a judgment of two Judges of the High Court, submitted that the founding affidavit of the appellant, in the court a quo, was invalid as it was un-dated.

Per contra, counsel for the appellant submitted that the Mandishaya v Sithole HH798-15 judgment is wrong. He argued, that, section 8 of the Justices of the Peace and Commissioners of Oath Act [Chapter 7:09], which governs the administering of an oath, does not require the insertion of a date on an affidavit. Counsel further referred to section 2 of SI 183/98, which prohibits a Commissioner of Oaths from administering an oath in a matter in which he or she has an interest.

Counsel for the appellant also referred to the case of Firstel Cellular (Pvt) Ltd v Net One Cellular (Pvt) Ltd 2015 (1) ZLR 94 (S) which dealt with a matter where a wrong stamp had been appended by the Commissioner of Oaths.

In our view, that case is not useful for present purposes.

In Mandishaya v Sithole HH798-15, the court remarked that the deponent of an affidavit must take the oath in the presence of the Commissioner. Equally, the Commissioner must append his or her signature on the statement in the presence of the deponent. The court went on to say, that, the Commissioner must also endorse the date on which the oath was administered and that those acts must occur contemporaneously.

The reason behind that requirement is for the court to be satisfied, that, the oath was administered at a given date, in the presence of both the deponent and the Commissioner. Without the date, the court may never be able to ascertain if the oath was properly administered in accordance with the law.

The court a quo was bound by the Mandishaya v Sithole HH798-15 judgment, being a judgement of the two Judges.

Even though the issue was not argued a quo, it could be raised for the first time on appeal as it is a point of law.

We do not agree with counsel for the appellant, with his argument that the judgment was wrongly decided.

There is merit in the preliminary objection. It ought to be upheld. It renders the application for setting aside the award a nullity.

In view of the fact, that, the court a quo rendered a composite judgment in respect of the two applications, the invalid application and its outcome are capable of severance.

The application for registration, being a separate application, is not affected.

It follows that, absent a valid application a quo, there can be no valid appeal before this Court.

We therefore propose to proceed in terms of section 25 of the Supreme Court Act [Chapter 7:09], which allows this Court to review and set aside irregular proceedings.

Regarding costs, our view is that each party should bear its own costs because the respondent ought to have raised this defect to the application earlier.

In the result, it be and is hereby ordered as follows:

1. The matter be and is hereby struck off the roll with no order as to costs.

2. In terms of section 25(2) of the Supreme Court Act [Chapter 7:13], the proceedings in the application to set aside the arbitral award are hereby set aside.

Final Orders re: Procedural Irregularities iro Approach ito Discretion to Condone, Interfere, Dismiss, Remit or Strike


This is the unanimous judgment of this Court.

This is an appeal against the judgement of the High Court handed down on 20 July 2023 dismissing the appellant's application to set aside an arbitral award and registering that award.

On 2 October 2023, the respondent filed a notice of objection in terms of Rule 51 of the Supreme Court Rules 2018, that, the appellant's founding affidavit filed in support of the application seeking to set aside the arbitral award in the court a quo was defective in that it was undated. The respondent submitted, that, for that reason, there was no valid application before the court a quo.

The respondent urged the court to dismiss the appeal with costs on that basis.

At the commencement of the hearing, counsel for the respondent, relying on the authority of Mandishaya v Sithole HH798-15, which is a judgment of two Judges of the High Court, submitted that the founding affidavit of the appellant, in the court a quo, was invalid as it was un-dated.

Per contra, counsel for the appellant submitted that the Mandishaya v Sithole HH798-15 judgment is wrong. He argued, that, section 8 of the Justices of the Peace and Commissioners of Oath Act [Chapter 7:09], which governs the administering of an oath, does not require the insertion of a date on an affidavit. Counsel further referred to section 2 of SI 183/98, which prohibits a Commissioner of Oaths from administering an oath in a matter in which he or she has an interest.

Counsel for the appellant also referred to the case of Firstel Cellular (Pvt) Ltd v Net One Cellular (Pvt) Ltd 2015 (1) ZLR 94 (S) which dealt with a matter where a wrong stamp had been appended by the Commissioner of Oaths.

In our view, that case is not useful for present purposes.

In Mandishaya v Sithole HH798-15, the court remarked that the deponent of an affidavit must take the oath in the presence of the Commissioner. Equally, the Commissioner must append his or her signature on the statement in the presence of the deponent. The court went on to say, that, the Commissioner must also endorse the date on which the oath was administered and that those acts must occur contemporaneously.

The reason behind that requirement is for the court to be satisfied, that, the oath was administered at a given date, in the presence of both the deponent and the Commissioner. Without the date, the court may never be able to ascertain if the oath was properly administered in accordance with the law.

The court a quo was bound by the Mandishaya v Sithole HH798-15 judgment, being a judgement of the two Judges.

Even though the issue was not argued a quo, it could be raised for the first time on appeal as it is a point of law.

We do not agree with counsel for the appellant, with his argument that the judgment was wrongly decided.

There is merit in the preliminary objection. It ought to be upheld. It renders the application for setting aside the award a nullity.

In view of the fact, that, the court a quo rendered a composite judgment in respect of the two applications, the invalid application and its outcome are capable of severance.

The application for registration, being a separate application, is not affected.

It follows that, absent a valid application a quo, there can be no valid appeal before this Court.

We therefore propose to proceed in terms of section 25 of the Supreme Court Act [Chapter 7:09], which allows this Court to review and set aside irregular proceedings.

Regarding costs, our view is that each party should bear its own costs because the respondent ought to have raised this defect to the application earlier.

In the result, it be and is hereby ordered as follows:

1. The matter be and is hereby struck off the roll with no order as to costs.

2. In terms of section 25(2) of the Supreme Court Act [Chapter 7:13], the proceedings in the application to set aside the arbitral award are hereby set aside.

Court Management re: Co-Hearing, Joint Hearing, Consolidated & Joinder of Action Proceedings iro Effect of Composite Orders


This is the unanimous judgment of this Court.

This is an appeal against the judgement of the High Court handed down on 20 July 2023 dismissing the appellant's application to set aside an arbitral award and registering that award.

On 2 October 2023, the respondent filed a notice of objection in terms of Rule 51 of the Supreme Court Rules 2018, that, the appellant's founding affidavit filed in support of the application seeking to set aside the arbitral award in the court a quo was defective in that it was undated. The respondent submitted, that, for that reason, there was no valid application before the court a quo.

The respondent urged the court to dismiss the appeal with costs on that basis.

At the commencement of the hearing, counsel for the respondent, relying on the authority of Mandishaya v Sithole HH798-15, which is a judgment of two Judges of the High Court, submitted that the founding affidavit of the appellant, in the court a quo, was invalid as it was un-dated.

Per contra, counsel for the appellant submitted that the Mandishaya v Sithole HH798-15 judgment is wrong. He argued, that, section 8 of the Justices of the Peace and Commissioners of Oath Act [Chapter 7:09], which governs the administering of an oath, does not require the insertion of a date on an affidavit. Counsel further referred to section 2 of SI 183/98, which prohibits a Commissioner of Oaths from administering an oath in a matter in which he or she has an interest.

Counsel for the appellant also referred to the case of Firstel Cellular (Pvt) Ltd v Net One Cellular (Pvt) Ltd 2015 (1) ZLR 94 (S) which dealt with a matter where a wrong stamp had been appended by the Commissioner of Oaths.

In our view, that case is not useful for present purposes.

In Mandishaya v Sithole HH798-15, the court remarked that the deponent of an affidavit must take the oath in the presence of the Commissioner. Equally, the Commissioner must append his or her signature on the statement in the presence of the deponent. The court went on to say, that, the Commissioner must also endorse the date on which the oath was administered and that those acts must occur contemporaneously.

The reason behind that requirement is for the court to be satisfied, that, the oath was administered at a given date, in the presence of both the deponent and the Commissioner. Without the date, the court may never be able to ascertain if the oath was properly administered in accordance with the law.

The court a quo was bound by the Mandishaya v Sithole HH798-15 judgment, being a judgement of the two Judges.

Even though the issue was not argued a quo, it could be raised for the first time on appeal as it is a point of law.

We do not agree with counsel for the appellant, with his argument that the judgment was wrongly decided.

There is merit in the preliminary objection. It ought to be upheld. It renders the application for setting aside the award a nullity.

In view of the fact, that, the court a quo rendered a composite judgment in respect of the two applications, the invalid application and its outcome are capable of severance.

The application for registration, being a separate application, is not affected.

It follows that, absent a valid application a quo, there can be no valid appeal before this Court.

We therefore propose to proceed in terms of section 25 of the Supreme Court Act [Chapter 7:09], which allows this Court to review and set aside irregular proceedings.

Regarding costs, our view is that each party should bear its own costs because the respondent ought to have raised this defect to the application earlier.

In the result, it be and is hereby ordered as follows:

1. The matter be and is hereby struck off the roll with no order as to costs.

2. In terms of section 25(2) of the Supreme Court Act [Chapter 7:13], the proceedings in the application to set aside the arbitral award are hereby set aside.

Final Orders re: Approach iro Handing Down of Judgment ito Implied Determination and the Severability of Judgments


This is the unanimous judgment of this Court.

This is an appeal against the judgement of the High Court handed down on 20 July 2023 dismissing the appellant's application to set aside an arbitral award and registering that award.

On 2 October 2023, the respondent filed a notice of objection in terms of Rule 51 of the Supreme Court Rules 2018, that, the appellant's founding affidavit filed in support of the application seeking to set aside the arbitral award in the court a quo was defective in that it was undated. The respondent submitted, that, for that reason, there was no valid application before the court a quo.

The respondent urged the court to dismiss the appeal with costs on that basis.

At the commencement of the hearing, counsel for the respondent, relying on the authority of Mandishaya v Sithole HH798-15, which is a judgment of two Judges of the High Court, submitted that the founding affidavit of the appellant, in the court a quo, was invalid as it was un-dated.

Per contra, counsel for the appellant submitted that the Mandishaya v Sithole HH798-15 judgment is wrong. He argued, that, section 8 of the Justices of the Peace and Commissioners of Oath Act [Chapter 7:09], which governs the administering of an oath, does not require the insertion of a date on an affidavit. Counsel further referred to section 2 of SI 183/98, which prohibits a Commissioner of Oaths from administering an oath in a matter in which he or she has an interest.

Counsel for the appellant also referred to the case of Firstel Cellular (Pvt) Ltd v Net One Cellular (Pvt) Ltd 2015 (1) ZLR 94 (S) which dealt with a matter where a wrong stamp had been appended by the Commissioner of Oaths.

In our view, that case is not useful for present purposes.

In Mandishaya v Sithole HH798-15, the court remarked that the deponent of an affidavit must take the oath in the presence of the Commissioner. Equally, the Commissioner must append his or her signature on the statement in the presence of the deponent. The court went on to say, that, the Commissioner must also endorse the date on which the oath was administered and that those acts must occur contemporaneously.

The reason behind that requirement is for the court to be satisfied, that, the oath was administered at a given date, in the presence of both the deponent and the Commissioner. Without the date, the court may never be able to ascertain if the oath was properly administered in accordance with the law.

The court a quo was bound by the Mandishaya v Sithole HH798-15 judgment, being a judgement of the two Judges.

Even though the issue was not argued a quo, it could be raised for the first time on appeal as it is a point of law.

We do not agree with counsel for the appellant, with his argument that the judgment was wrongly decided.

There is merit in the preliminary objection. It ought to be upheld. It renders the application for setting aside the award a nullity.

In view of the fact, that, the court a quo rendered a composite judgment in respect of the two applications, the invalid application and its outcome are capable of severance.

The application for registration, being a separate application, is not affected.

It follows that, absent a valid application a quo, there can be no valid appeal before this Court.

We therefore propose to proceed in terms of section 25 of the Supreme Court Act [Chapter 7:09], which allows this Court to review and set aside irregular proceedings.

Regarding costs, our view is that each party should bear its own costs because the respondent ought to have raised this defect to the application earlier.

In the result, it be and is hereby ordered as follows:

1. The matter be and is hereby struck off the roll with no order as to costs.

2. In terms of section 25(2) of the Supreme Court Act [Chapter 7:13], the proceedings in the application to set aside the arbitral award are hereby set aside.

Appeal re: Consolidated Matters, Joinder of Actions, Co-Hearing or Joint Hearing Suits


This is the unanimous judgment of this Court.

This is an appeal against the judgement of the High Court handed down on 20 July 2023 dismissing the appellant's application to set aside an arbitral award and registering that award.

On 2 October 2023, the respondent filed a notice of objection in terms of Rule 51 of the Supreme Court Rules 2018, that, the appellant's founding affidavit filed in support of the application seeking to set aside the arbitral award in the court a quo was defective in that it was undated. The respondent submitted, that, for that reason, there was no valid application before the court a quo.

The respondent urged the court to dismiss the appeal with costs on that basis.

At the commencement of the hearing, counsel for the respondent, relying on the authority of Mandishaya v Sithole HH798-15, which is a judgment of two Judges of the High Court, submitted that the founding affidavit of the appellant, in the court a quo, was invalid as it was un-dated.

Per contra, counsel for the appellant submitted that the Mandishaya v Sithole HH798-15 judgment is wrong. He argued, that, section 8 of the Justices of the Peace and Commissioners of Oath Act [Chapter 7:09], which governs the administering of an oath, does not require the insertion of a date on an affidavit. Counsel further referred to section 2 of SI 183/98, which prohibits a Commissioner of Oaths from administering an oath in a matter in which he or she has an interest.

Counsel for the appellant also referred to the case of Firstel Cellular (Pvt) Ltd v Net One Cellular (Pvt) Ltd 2015 (1) ZLR 94 (S) which dealt with a matter where a wrong stamp had been appended by the Commissioner of Oaths.

In our view, that case is not useful for present purposes.

In Mandishaya v Sithole HH798-15, the court remarked that the deponent of an affidavit must take the oath in the presence of the Commissioner. Equally, the Commissioner must append his or her signature on the statement in the presence of the deponent. The court went on to say, that, the Commissioner must also endorse the date on which the oath was administered and that those acts must occur contemporaneously.

The reason behind that requirement is for the court to be satisfied, that, the oath was administered at a given date, in the presence of both the deponent and the Commissioner. Without the date, the court may never be able to ascertain if the oath was properly administered in accordance with the law.

The court a quo was bound by the Mandishaya v Sithole HH798-15 judgment, being a judgement of the two Judges.

Even though the issue was not argued a quo, it could be raised for the first time on appeal as it is a point of law.

We do not agree with counsel for the appellant, with his argument that the judgment was wrongly decided.

There is merit in the preliminary objection. It ought to be upheld. It renders the application for setting aside the award a nullity.

In view of the fact, that, the court a quo rendered a composite judgment in respect of the two applications, the invalid application and its outcome are capable of severance.

The application for registration, being a separate application, is not affected.

It follows that, absent a valid application a quo, there can be no valid appeal before this Court.

We therefore propose to proceed in terms of section 25 of the Supreme Court Act [Chapter 7:09], which allows this Court to review and set aside irregular proceedings.

Regarding costs, our view is that each party should bear its own costs because the respondent ought to have raised this defect to the application earlier.

In the result, it be and is hereby ordered as follows:

1. The matter be and is hereby struck off the roll with no order as to costs.

2. In terms of section 25(2) of the Supreme Court Act [Chapter 7:13], the proceedings in the application to set aside the arbitral award are hereby set aside.

Costs re: No Order as to Costs or No Costs Order iro Approach


This is the unanimous judgment of this Court.

This is an appeal against the judgement of the High Court handed down on 20 July 2023 dismissing the appellant's application to set aside an arbitral award and registering that award.

On 2 October 2023, the respondent filed a notice of objection in terms of Rule 51 of the Supreme Court Rules 2018, that, the appellant's founding affidavit filed in support of the application seeking to set aside the arbitral award in the court a quo was defective in that it was undated. The respondent submitted, that, for that reason, there was no valid application before the court a quo.

The respondent urged the court to dismiss the appeal with costs on that basis....,.

Even though the issue was not argued a quo, it could be raised for the first time on appeal as it is a point of law...,.

Regarding costs, our view is that each party should bear its own costs because the respondent ought to have raised this defect to the application earlier....,.

1. The matter be and is hereby struck off the roll with no order as to costs.

EXTEMPORE

MATHONSI JA: This is the unanimous judgment of this Court. This is an appeal against the judgement of the High Court handed down on 20 July 2023 dismissing the appellant's application to set aside an arbitral award and registering that award.

On 2 October 2023, the respondent filed a notice of objection in terms of Rule 51 of the Supreme Court Rules, 2018, that the appellant's founding affidavit filed in support of the application seeking to set aside the arbitral award in the court a quo was defective in that it was undated. The respondent submitted that for that reason there was no valid application before the court a quo. The respondent urged the court to dismiss the appeal with costs on that basis.

At the commencement of the hearing Mr Mafukidze who appeared for the respondent, relying on the authority of Mandishaya v Sithole HH 798/15, which is a judgment of two Judges of the High Court, submitted that the founding affidavit of the appellant in the court a quo was invalid as it was undated.

Per contra Mr Magwaliba who appeared for the appellant submitted that the Mandishaya judgment is wrong. He argued that section 8 of the Justices of the Peace and Commissioners of Oath Act [Chapter 7:09], which governs the administering of an oath, does not require the insertion of a date on an affidavit. Counsel further referred to section 2 of S.I. 183/98, which prohibits a commissioner of oaths from administering an oath in a matter in which he or she has an interest.

Mr Magwaliba also referred to the case of Firstel Cellular (Pvt) Ltd v Net One Cellular (Pvt) Ltd 2015 (1) ZLR 94 (S) which dealt with a matter where a wrong stamp had been appended by the Commissioner of Oaths.

In our view that case is not useful for present purposes.

In the Mandishaya case the court remarked that the deponent of an affidavit must take the oath in the presence of the Commissioner. Equally, the Commissioner must append his or her signature on the statement in the presence of the deponent. The court went on to say that the Commissioner must also endorse the date on which the oath was administered and that those acts must occur contemporaneously.

The reason behind that requirement is for the court to be satisfied that the oath was administered at a given date in the presence of both the deponent and the Commissioner. Without the date, the court may never be able to ascertain if the oath was properly administered in accordance with the law.

The court a quo was bound by the Mandishaya judgment being a judgment of the two Judges. Even though the issue was not argued a quo, it could be raised for the first time on appeal as it is a point of law.

We do not agree with Mr Magwaliba for the appellant, with his argument that the judgment was wrongly decided.

There is merit in the preliminary objection. It ought to be upheld. It renders the application for setting aside the award a nullity.

In view of the fact that the court a quo rendered a composite judgment in respect of the two applications, the invalid application and its outcome are capable of severance.

The application for registration, being a separate application, is not affected.

It follows that, absent a valid application a quo, there can be no valid appeal before this Court.

We therefore, propose to proceed in terms of section 25 of the Supreme Court Act [Chapter 7:09], which allows this Court to review and set aside irregular proceedings.

Regarding costs, our view is that each party should bear its own costs because the respondent ought to have raised this defect to the application earlier.

In the result, it be and is hereby ordered as follows:

1. The matter be and is hereby struck off the roll with no order as to costs.

2. In terms of section 25(2) of the Supreme Court Act [Chapter 7:13] the proceedings in the application to set aside the arbitral award are hereby set aside.

GUVAVA JA: I agree

MAKONI JA: I agree














Atherstone & Cook, appellant's legal practitioners

Mtetwa & Nyambirai, 1st respondent's legal practitioners

Gill Godlonton & Gerrans, 2nd respondent's legal practitioners

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