Cause of Action and Draft Orders re: Appearance to Defend, Filing of Opposition Papers & Set Down of Matters

HH83-14 : RITENOTE PRINTERS (PVT) LTD and JOHN KANOKANGA vs A.ADAM & COMPANY (PVT) LTD and TARIK ADAM and MOOSA ADAM
Ruled By: CHIGUMBA J

The plaintiffs issued summons against the three defendants on 20 August 2012 seeking payment of:

(a) US$230,000 being losses suffered as a result of failure by the plaintiffs to trade owing to wrongful eviction.

(b) US$25,000 being damages for injuria.

(c) US$50,000 being damages for permanent chronic depression.

(d) US$450,000 being the difference between the value of the business and the price at which it was sold.

(e) US$4,000,000 being the amount the second plaintiff would have made but for the chronic depression he has suffered as a result of wrongful eviction.

(f) US$12,060 plus US$15 per day reckoned from the date of summons to the date of payment, being storage charges incurred by goods attached by the Messenger of Court at the defendants' unlawful instance.

(g) Interest on the sums set out above at the prescribed rate from the date of summons to the date of payment.

(h) Costs of suit.

The plaintiffs averred, in the declaration, that, on 1 November 2010, the defendants unlawfully, wrongfully, and intentionally procured the first plaintiff's eviction from premises known as Number 147 Mbuya Nehanda Road, Harare and from Winston House, 109 Leopold Takawira Street, Harare.

The first plaintiff carried on its printing, photocopying, and related business from those premises which belong to the first defendant.

The plaintiffs averred, further, that, as a result of the aforesaid eviction, they suffered losses by reason of failure to trade from those premises, 147 Mbuya Nehanda Road, for the period ranging from 1 November 2010 to date, and from Winston House from 1 November 2010 to 29 June 2011.

The plaintiffs' claim was founded on injuria, and, on consequent damages arising therefrom, such as loss of business, and chronic depression arising as a result of the defendants' conduct.

On 24 September 2012, the defendants entered appearance to defend themselves in this matter, and filed a combined exception and plea on 30 January 2013.

The exception was based on the fact that paragraphs 5,6,7 and 8 of the plaintiffs' summons allegedly failed to disclose a cause of action, and that, it was not specifically pleaded, that, at the material time, the defendants acted in an unreasonable manner.

It was averred, that, the plaintiffs ought to have specifically pleaded that the defendants foresaw the possibility of harm being occasioned to the plaintiffs by their action of evicting them.

The defendants denied acting unreasonably, and averred that they had been issued with a valid and competent eviction order before the Magistrate's Court, and were entitled to act on it.

The defendants' plea on the merits was to deny that they caused any harm to the plaintiffs, either intentionally or negligently; to deny being at fault in any way in causing the plaintiffs' eviction; and to aver that they acted reasonably at all times.

Intention to cause injuria was denied; knowledge of the second plaintiff's depression was denied; illegal conduct was denied; and the defendants prayed for dismissal of the action together with costs on a higher scale.

The plaintiffs replicated to the exception on 13 February 2013, and reiterated that they clearly pleaded fault on the part of the defendants. The plaintiffs prayed for the dismissal of the defendants' exception, together with costs on a higher scale.

At the pre-trial conference, on 24 September 2013, a joint pre-trial conference minute was filed of record, in terms of which the following issues were referred to trial:

1. Whether or not the plaintiffs' summons and declaration disclose a cause of action at law.

2. Whether or not the second and third defendants have been erroneously joined to the present matter.

3. Whether or not the defendants acted negligently, unlawfully, and wrongfully in evicting the first plaintiff.

4. Whether the plaintiffs sufficiently set up a cause of action warranting the dismissal of the exception to which the defendants have pleaded over.

At the hearing of the matter, counsel for the defendants moved for the 'exception' to be upheld, and for the dismissal of the plaintiffs' claim on the basis that the summons and the declaration did not disclose a cause of action.

Counsel for the defendants opposed this application...,.

Before considering the merits of the exception filed by the defendants, now the first defendant only, after the removal of the second and third defendants as parties to the proceedings, the court considered whether or not the exception was properly before it.

Order 21 of the High Court Rules, 1971 provides as follows:

“137. Alternatives to pleading to merits: forms

(1) A party may —

(a) Take a plea in bar or in abatement where the matter is one of substance which does not involve going into the merits of the case, and which, if allowed, will dispose of the case;

(b) Except to the pleading or to single paragraphs thereof if they embody separate causes of action or defense as the case may be;

(c) Apply to strike out any paragraphs of the pleading which should properly be struck out;

(d) Apply for a further and better statement of the nature of the claim or defence or for further and better particulars of any matter stated in any pleading, notice, or written proceeding requiring particulars.

(2) A plea in bar or abatement, exception, application to strike out, or application for particulars shall be in the form of such part of Form No.12 as may be appropriate mutatis mutandis, and a copy thereof filed with the registrar. In the case of an application for particulars, a copy of the reply received to it shall also be filed.”

The first thing to note is that Rule 137 is entitled “alternatives to pleading on the merits.”

It becomes immediately clear that the defendant's plea and exception, filed of record on 30 January 2013, is not properly before the court.

There are four alternatives to pleading to the merits;

(i) A plea in bar - Order 21 Rule 137(1)(a);

(ii) Exception - Order 21 Rule 137(1)(b);

(iii) An application to strike out - Order 21 Rule137(1)(c); or

(iv) An application for a further and better statement - Order 21 Rule 137(1)(d).

My reading of Rule 137 is that, if it provides alternatives to pleading to the merits, those alternatives cannot be combined with a plea to the merits as the defendants purported to do on 30 January 2013.

The defendant ought to have simply proceeded in terms of Order 21 Rule 137(1)(b) and filed an exception to the summons and declaration.

This view is further supported by Rule 138 which provides as follows:

“138. Procedure on filing special plea, exception or application to strike out

When a special plea, exception, or application to strike out has been filed -

(a) The parties may consent, within ten days of the filing to such special plea, exception or application being set down for hearing in accordance with sub rule (2) of Rule 223;

(b) Failing consent, either party, may, within a further period of four days set the matter down for hearing in accordance with sub rule (2) of Rule 223;

(c) Failing such consent and such application, the party pleading specially, excepting, or applying, shall, within a further period of four days, plead over to the merits if he has not already done so and the special plea, exception, or application shall not be set down for hearing before the trial.”

My reading of Rule 138 is that, after the defendant had filed its exception, on 30 January 2013, it had ten days, until 13 February 2013, within which to engage the plaintiffs and agree to set the exception down for hearing by using the application procedure provided by Order 32 of the Rules of this Court.

If the parties failed to set the exception down for hearing by consent, by 13 February 2013, then, the defendant had a further four (4) days, up to 19 February 2013, to itself set the exception down for hearing using the provisions of Order 32 Rule 138(c) which stipulates, that, where the exception has not been set down, either by consent or solely by the defendant, a further four (4) days is added to the 14 (fourteen) days that will have elapsed since the exception was filed, within which the defendant must plead over to merits, by 25 February 2013 in this case.

After pleading over to merits, Rule 138(c) stipulates that:

“…, the special plea, exception, or application shall not be set down for hearing before trial.”…,.

It is trite, that, the object of a summons or a declaration is to inform the defendant of the cause of action and the facts upon which the claim is based.

See HERBSTEIN & Van WINSEN – Civil Practise of the Superior Courts of South Africa, 4th ed…,.; Haskel v Lebedina Schechter 1930 WLD 296; Erasmus v Slomonitz 1938 TPD 238; Pietpot Gieters Rust White Lime Co v Sand & Co 1916,TPD 687; Bulawayo Pattern Makers (Pvt) Ltd v Motor & Agri Equipment (Pvt) Ltd HB32-98.

In order to uphold an exception, such as the one raised by the defendant, the court must consider whether the plaintiffs “claims, as formulated in the summons and the declaration, are set out clearly, concisely, both in fact and in law.”

If the claims are not clear or concise, in fact and/or in law, the exception must be upheld. In other words, if the averments contained in the plaintiffs summons and declaration disclose:

(a) Sufficient particularity;

(b) Are not contradictory and mutually destructive;

(c) A cause of action, particularly a delictual claim for damages;

(d) Are appropriate in law; then, the exception ought to be dismissed and the matter proceeds to trial.

See Benson v Robinson 1917 WLD 126; Kali v Incorporate General Insurance (Pvt) Ltd 1976 (2) SA 178.

According to HERBSTEIN & Van WINSEN, Civil Practice of the Superior Courts in South Africa, 2nd ed…,:

“The true object of an exception is either, if possible to settle the case or at least a part of it, in cheap and easy fashion or to protect oneself against an embarrassment which is so serious as to merit the costs even of an exception.”

It has been held, in the case of Tobacco Sales Producers (Pvt) Ltd v Eternity Star Investments 2006 (2) ZLR 293, that:

“…, an exception can only be properly filed before the excipient pleads to the merits of the matter…, it is an alternative to pleading to the merits.

Once the excipient pleads, before filing the exception, he is in fact telling the other party that its declaration discloses a cause of action and is neither vague nor embarrassing…,; after the defendant has pleaded, it becomes difficult to ask the plaintiff to remove the vague and embarrassing averments. It also becomes difficult to except to the cause of action.”

I associate myself fully with these findings of my brother judge and find them not only persuasive, but instructive in the simplicity with which they explain the correlation between an exception and a plea to the merits.

It follows that there is no exception before the court.

The defendant purported to except and plead at the same time which is impermissible in terms of Rule 138(c), and incongruous, as one cannot except to summons and declaration on the basis that no cause of action is disclosed, then, in the same breath, plead to the merits.

By pleading to the merits, the defendant implied that the summons and declaration had sufficient particulars to enable it to plead.

Rule 138 clearly stipulates the time period within which an exception ought to be set down for hearing.

Once those time periods elapse, the opportunity to have the exception determined is lost.

By 25 February 2013, the ship had sailed. The defendant no longer had the alternative of having the exception set down for hearing before trial....,.

The exception is dismissed on the basis, that, the time within which it ought to have been determined has lapsed...,.

SC11-21 : TENDAI BONDE vs NATIONAL FOODS LTD and LOVEJOY NYANDORO [as Chairman of Appeals Committee] and CHIPO NHETA [as Chairman of Works Council]
Ruled By: GUVAVA JA

This is an application for leave to appeal from a judgment of the Labor Court. The court a quo found no merit in the application for leave to appeal and dismissed it, on the main, that, the draft notice of appeal did not raise questions of law.

The applicant was dissatisfied with the judgment of the court a quo and filed an application for leave in terms of Rule 60 of the Supreme Court Rules, 2018.

BACKGROUND FACTS

The brief background of this application may be summarised as follows:

The applicant was employed by the first respondent as a Stock Quality Analyst. He was charged with misconduct by the first respondent on the basis that he had been found in possession of unauthorised email communication which was between Group Executives. The first respondent was of the view that the applicant's conduct amounted to an act of un-authorised impingement of emails in the organisation. The applicants conduct was aggravated by the fact that the applicant had allegedly shared this information with other persons without the written consent of the first respondent in terms of the first respondent's IT policy.

Following a charge of misconduct, a hearing before the Disciplinary Committee was set down but was postponed on six separate occasions at the request of the applicant. On the final occasion, the Disciplinary Committee proceeded to hear the matter and found the applicant guilty in absentia.

He was subsequently dismissed from employment.

Following the applicant's dismissal, he proceeded to file an appeal with the Appeals Committee in terms of the Disciplinary Code. Again, the applicant did not attend the hearing before the Appeals Committee and the Committee proceeded to dismiss the appeal and to uphold the decision by the Disciplinary Committee.

The applicant appealed to the Labour Court under LC/B/37/2019 before MURASI J on the basis, that, the hearing committee had erred by not finding that he was wrongfully charged. The applicant further averred that the committee had erred in finding that he was in possession of documents whereas the documents, subject to the charge, had been loaded onto his computer following a breach of his password.

The first respondent raised a point in limine to the effect that the appeal was improperly before the court as the applicant had not appeared before the two lower tribunals, which tribunals had issued default judgments against him, and, as such, these decisions could not be appealed against.

The court proceeded to uphold the point in limine and struck the matter off the roll.

The applicant then made an application for condonation of late filing of an application for review and extension of time within which to file an application for review.

The court a quo dismissed the application.

The court found that the applicant failed to give a reasonable explanation for the delay in making a valid application for review, and that, in any event, he lacked prospects of success on review.

The applicant subsequently sought for leave to appeal to this Court under LC/MT/48/20. The applicant argued, that, the court a quo had made material omissions in its findings and that its discretion had been based on wrong principles of law. He also attached his intended Notice of Appeal to the application.

The court a quo dismissed the application on the basis that the applicant's intended grounds of appeal did not raise questions of law as required by the Labour Court Rules.

Undeterred by this dismissal, the applicant launched this application....,.

At the hearing, the applicant raised a point in limine to the effect that the first respondent's opposing affidavit was fatally defective in that it had omitted to cite the case references.

He also averred, that, the terminology in paragraph 27 of the first respondent's Notice of Opposition was defective in as far as it stated “our prayer” which was an attempt by the first respondent to include persons who had not appeared before the court a quo....,.

Counsel for the first respondent opposed the preliminary points raised by the applicant and argued, that, the failure to list the reference case numbers on the Notice of Opposition does not render the notice of opposition defective as the first respondent had clearly cited the case number SCB67/20.

Counsel further argued, that, the reference to “our prayer” under paragraph 27 of the notice of opposition was erroneously made, and, in any event, did not detract from the actual prayer sought. It was counsel's argument that it was clear from the opposing affidavit that the second and third respondents were not active in the matter and that it was the first respondent which sought relief....,.

The point raised by the applicant sought to impugn the first respondent's opposing affidavit on the basis that it was fatally defective as it does not cite the reference cases in the matter and the prayer sought is stated as “our prayer” suggesting that it is for all the respondents.

Rule 39 of the Supreme Court Rules, 2018 ('the Rules') provides for the procedure under which applications are made before this Court. In terms of Rule 39(3), a respondent has a right to oppose to any application. Rule 39(3) provides as follows:

“The respondent shall have the right to file opposing affidavits within five days of receipt of the application in terms of this rule, and, thereafter, the applicant shall have the right of filing answering affidavits within a further period of five days calculated from the date of receipt of the respondent's opposing affidavits.”

In casu, the first respondent timeously filed its Notice of Opposition and the notice indicates the case number before this Court being SCB67/20.

I find nothing amiss with the Notice of Opposition as presented.

There is no rule of this Court which requires that every affidavit must have a reference of corresponding cases. In fact, the rule of practice is that any affidavit or pleading in a matter must show the case number under which it is made.

The reason for this is obvious.

The respondent must be responding to a particular case which has been brought to the court by the applicant. It enables the Registrar to file the Notice of Opposition in the correct file.

This is particularly important in matters such as this, where there has been protracted litigation between the parties with many cases being filed before the court.

In my view, citation of case numbers is merely a management tool to avoid misfiling of cases. It could never have been the intention that the failure to cite reference files, which have come before the court, would lead to a Notice of Opposition being defective.

It was also the applicant's argument, that, the relief sought by the first respondent, in its Notice of Opposition, was defective as it refered to “our” suggesting that it was for all the respondents and not just the first respondent which had filed the opposition.

It is not in dispute that the second and third respondents have not been actively involved in this matter. It thus follows that a reference to “our” in the respondent's prayer suggests reference to it alone.

All that the respondent sought was a dismissal of the application with costs on a legal practitioner and client scale.

I am not persuaded that the prayer of the first respondent, in the notice of opposition, as framed, renders the opposing affidavit fatally defective. Even if the Court is to give an order for costs against the applicant such costs would be for the first respondent as it is the only respondent before this Court.

The applicant's preliminary points are thus devoid of merit and are accordingly dismissed.

View Appeal
HH677-14 : MAXWELL SIBANDA vs ZAMBE NYIKA/GWASIRA and REGISTRAR OF DEEDS and EVERJOY MEDA
Ruled By: MATANDA-MOYO J

The applicant obtained default judgment against the first respondent in case No. HC12599/11 on 7 March 2012 in the sum of $4,000, delivery of 1,120m3 of sawn timber, or, alternatively, $392,000 together with interest at the prescribed rate plus costs of suit.

The applicant has not executed on the judgment to date.

Initially, the applicant brought this application against the first and second respondents. The third respondent sought to be joined in the matter claiming she had interest therein.

Such joinder was granted.

This is an application for an interdict barring the first respondent from disposing of a certain piece of property, namely, Stand 13552 Salisbury Township of Salisbury Township Lands measuring 1,569m2 held by the first respondent under Deed of Transfer number 5750/94 dated 21 September 1994.

The applicant also seeks an order declaring the above property specially executable in order to satisfy the judgment debt owed to the applicant under case no. HC12599/11.

The applicant also sought costs of suit from the first respondent.

The first respondent opposed the application.

In his opposition, the first respondent sought an order for rescission of judgment in HC case number 12599/11.

The first respondent has failed to meaningfully respond to the present application.

The first respondent seeks to rescind a default judgement via filing of opposition. Such procedure is irregular and not in compliance with the rules of this court.

Rule 63 and Rule 449 of the High Court Rules 1971 deal with applications for rescission of judgment.

Such application will take the format prescribed in Rule 230, that is, must be in Form No.29.

Rule 229A provides for counter applications which are the equivalent of a counter claim in an action matter. It provides:

“(1) Where a respondent files a notice of opposition and opposing affidavit, he may file, together with those documents a counter–application against the applicant in the form, mutatis mutandis, of a court application or a chamber application whichever is appropriate.”

From the above, it follows, therefore, that, a counter relief can be sought against an applicant by a respondent under a separate heading than the notice of opposition and opposing affidavit.

It is a stand-alone claim made against an applicant.

Even if the applicant later withdraws his application, the counter application could be proceeded with.

In the matter in casu, the purported counterclaim by the first respondent is not in terms of the rules of this court and is therefore invalid. The purported counter application for rescission of judgment is therefore improperly before the court and cannot be entertained.

HH298-17 : ZAMBE NYIKA GWASIRA vs MAXWELL SIBANDA and N.Z. INDUSTRIAL & MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE
Ruled By: MATANDA-MOYO J

Rule 236(3) of the High Court Rules provides;“Where the respondent has filed a notice of opposition and an opposing affidavit, and, within one month thereafter, the applicant has neither filed an answering affidavit nor set the matter down for hearing, the respondent, on notice to the applicant, may either -(a) ...

SC20-21 : TIMOTHY MUYAMBO vs HORTBAC PL t/a LITTLE FLOWER ENTERPRISES and JAMES CHIYANGWA and RONALD KITULI and TENDAI BONGA and MINISTER OF LANDS, AGRICULTURE AND RURAL RESETTLEMENT
Ruled By: CHITAKUNYE AJA

This is an application for joinder wherein the applicant seeks to be joined in two appeals pending before this Court, that is, SC304/20 and SC326/20.

The facts leading to this application may be summarised as follows:

The applicant was a holder of an offer letter in respect of Plot 4 of Glebe Farm, Goromonzi. The second, third, and fourth respondents were also holders of offer letters in respect of separate plots on the same farm. The fifth respondent is the authority which issued the offer letters to the applicant and the second, third, and fourth respondents.

The first respondent, on the other hand, claimed title to the farm in question.

Sometime in 2015, the first respondent approached the High Court at Harare in HC7006/15 seeking the setting aside of the applicant's offer letter and declaring such offer letter null and void. It also sought that the fifth respondent issue an offer letter in favour of the first respondent.

The applicant was cited, together with the fifth respondent, as respondents.

On 25 October 2016, the High Court granted an order setting aside and declaring null and void the offer letter issued to the applicant by the fifth respondent. The fifth respondent was ordered to issue an offer letter to the first respondent in respect of the said piece of land.

It is pertinent to note that whilst it was alleged that the order was granted in default of the fifth respondent, it was apparent that the applicant was represented by a legal practitioner in those proceedings.

After the issuance of the order on 25 October 2016, in the presence of the applicant's legal practitioner, no challenge was raised against that order till February 2018 when the fifth respondent belatedly applied for rescission of the default judgment granted against it.

Upon realising that it was out of time, the fifth respondent sought the court's indulgence through an application for condonation for late filing of an application for rescission which application was granted on 16 October 2019.

The fifth respondent's application for rescission was thereafter set down for 14 November 2019.

On that date, the matter was apparently postponed to 28 November 2019. On 28 November, the matter was removed from the roll.

The applicant alleged that the removal from the roll was to await the determination of a matter at Masvingo High Court, HC380/18, involving the first respondent, on the one hand, and the second, third, fourth, and fifth respondents on the other hand, which pertained to the second to fourth respondents' offer letters for Plots at Glebe Farm.

To buttress this point, the applicant tendered a Notice of Set Down for 14 November 2019 and a letter from the Registrar of the High Court.

The two documents did not, however, state the reason for the removal from the roll.

In fact, the Registrar's letter was simply a reminder to the Civil Division of the Attorney General's Office, as the fifth respondent's legal practitioners, that failure to set down the matter removed from the roll within three (3) months would lead to the matter being deemed abandoned in terms of paragraph 10 of Practice Direction 3/13.

HH842-19 : BARIADIE INVESTMENTS (PVT) LTD vs PUWAYI CHIUTSI and TENDAI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. and ELLIOT ROGERS
Ruled By: CHITAPI J

The applicant prays for an order that Deed of Transfer No.708/19 made in favour of the second respondent should be cancelled and that the prior Deed of Transfer No.8421/2000 in the name of the first respondent, and from which transfer in favour of the second respondent was made should be revived.

Upon revival of the prior Deed, the applicant prays for an order that the property conveyanced therein, called Remainder of Subdivision C of Lot 6 of Lot 1890 to 195 (inclusive) measuring 4,377 square metres be transferred, by the third respondent, into the applicant's name.

I must note that the part of the order sought, directing transfer by the third respondent, is incompetent.

The third respondent is the Registrar of Deeds. The Registrar of Deeds does not transfer properties but registers them. A conveyancer, acting under a power of attorney given by the owner of the property or transferor is the one who transfers the property to the transferee. The Registrar of Deeds, as the name clearly denotes, registers the transfer documents subject to all requirements imposed by applicable law being met.

For the benefit of the applicant, the duties of a Registrar are set out in section 5 of the Deeds Registries Act [Chapter 20:05] as read with the Deeds Registries Regulations S.I.236 of 2018.

The court does not create a duty outside what the law permits for the Registrar to perform.

The relief sought, for the court to order the third respondent to transfer the property, assuming that the current holding Deed is cancelled as prayed for is therefore a non sequitur and cannot be granted.

The applicant also prays for costs against the first respondent and any other respondent who opposes the application on the scale of legal practitioner and client.

The basis of the application is succinctly set out in paragraph 8 of the founding affidavit deposed to by the applicant company's Managing Director, Kingstone Hamutendi Munyawarara who stated that he is aware of the facts of the matter. He states as follows in paragraph 8 of the said affidavit:

“8. The application is premised on the fact that the said property was sold to the applicant by the fourth respondent in execution proceedings against the first respondent in HC3331/14. First respondent, whilst aware that the property had already been sold to the applicant by the Sheriff, fourth respondent hereto, purported to sell and transfer the property to the second respondent.”...,.

The applicant's case, as set out in the founding affidavit, was to the following effect:

It averred, that, it was declared the highest bidder at a judicial auction held on 18 September 2017 wherein the first respondent's property, which had been judicially attached, was up for sale to satisfy the judgment in case no. HC3331/14 made in favour of the fifth respondent against the first respondent.

The applicant was declared the highest bidder, having offered US$270,000 for the property.

Following the dismissal of an objection to the confirmation of the sale, filed by the first respondent, the applicant avers that it paid the purchase price of $270,000 to the fourth respondent as confirmed by the letter from the fourth respondent, dated 6 November 2018, addressed to the fifth respondent's legal practitioners as execution creditor.

The applicant paid transfer fees to the fifth respondent's legal practitioners in the sum of US$23,100 on 9 November 2018 as per proforma invoice of the same date prepared by the fifth respondent's legal practitioners.

The applicant attached a copy of judgment no. HH604-18 by MATHONSI J…, wherein the first respondent had, in case no. HC11349/17, challenged the fourth respondent's decision to confirm the sale of the property to the applicant.

Judgment HH604-18 was delivered on 3 October 2018 and the first respondent's challenge to confirmation was dismissed.

Judgment no. HH604-18 also disposed of case no. HC2650/18 brought by the fifth respondent herein as applicant therein. Case no's HC11349/17 and HC2650/18 were consolidated for purposes of hearing.

In case no. HC2650/18, the fifth respondent prayed for a declaratur to be made by the court to the effect that once the Sheriff had confirmed a sale, after dismissal of any objection(s) made in terms of Rule 359(7), then the Sheriff was obliged to pass transfer to the purchaser as provided for in Rule 361 of the High Court Rules (1971).

The court dismissed the application for the declaratur.

In dismissing the application for the declaratur, the learned judge, albeit agreeing that Rule 361 in its wording appeared to support the fifth respondent's interpretation, that, following confirmation of the sale and compliance with sale conditions, the Sheriff was required to transfer the property to the purchaser against payment of the purchase price; it made sense for the Sheriff to await giving transfer to the purchaser until all objection procedures had been exhausted.

The learned judge also held that the court had the discretion to regulate its processes.

In commenting on the provisions of section 14 of the High Court Act [Chapter 7:06] which gives this court jurisdiction to determine existing, future, and contingent rights, the learned judge, after referring to several decided cases, correctly held that the grant of a declaratory order was a discretionary matter for the court.

In my view, there is a further consideration which attaches to the interpretation of Rule 361.

The consideration has to do with rules of statutory interpretation. Rules of court, as with other legislative statutes, are read as a whole and not as a collection of isolated phrases.

Rule 361 should be read together with the rest of the rules regarding execution on immovable property.

Rule 359(8) and (9) provide that the Sheriff's decision to confirm a sale is open to challenge by “any person” who is aggrieved by the Sheriff's decision made in terms of Rule 359(7), that is, to confirm or cancel the sale.

The person challenges the decision by way of court application made within one month of the Sheriff's decision.

In terms of subrule 9 of Rule 359, the court may confirm, vary, or set aside the Sheriff's decision or “make such order as the court considers appropriate in the circumstances.”

It cannot have been the rule maker's intention that the Sheriff should carry out a concomitant transfer of the property upon his or her confirmation of the sale without allowing for the exercise by aggrieved parties of their right to object to court. Such interpretation would render nugatory the rights of objectors aggrieved by the Sheriff's decision.

Therefore, Rule 361 should be read as directing the Sheriff to transfer the property following his or her confirmation of the sale, only after allowing for the objection period of one month to lapse and no aggrieved party has applied to court to set aside the Sheriff's decision, or after all court processes have been exhausted in the event that an aggrieved party has applied to court.

This includes the appeal process which would need to be exhausted where the challenge by an aggrieved person has progressed that far.

It must therefore follow, that, even if l was to cancel the Deed of Transfer in favour of the second respondent, an order of the transfer of the property to the applicant by the fourth respondent can only be made if all court processes have been completed to finality.

In the judgment HH604-18, the learned judge made an order that “this order shall not be suspended by any appeal by either party but shall remain in force not withstanding such appeal.”

The first respondent was dissatisfied with the judgment. He noted an appeal against that judgment.

The notice of appeal was not attached to the papers but it appears common cause that such appeal was noted.

The applicant, in its founding affidavit, did not relate to the appeal nor deny its existence save in the answering affidavit, in paragraph 4, where, in denying that the matter is lis pendens, the applicant contended that an order was made that the noting of an appeal would not suspend the operation of judgment no. HH604-18.

The first respondent, on the other hand, averred that his appeal was also against the order decreeing the judgment to remain operational despite the noting of the appeal.

The applicant also averred that the “purported” appeal did not affect this application.

I cannot agree in view of my interpretation that transfer in terms of Rule 361 cannot be proceeded with until the court challenge processes given in Rules 359(8) and (9) have been finalized.

The applicant also attached the judgment of the HONOURABLE BERE JA delivered under case no. SC843/18 and bearing case citation SC02-19.

In that application, the first respondent filed an urgent application seeking interim relief that transfer of the property be stayed pending the determination of his appeal against the judgment HH604-18.

The learned judge dismissed the application for want of form and for the first respondent's failure to apply for condonation or to give an explanation for not using Form 29 or Form 29B of the rules of court.

The learned judge expressed his displeasure at what he described as “errant conduct” by the first respondent in engaging in endless and hopeless litigation to frustrate full execution on the judgment.

The learned judge's remarks were expressed obiter because the first respondent's application was found lacking or wanting as to form.

What, however, did not escape my attention was that neither MATHONSI J…, nor BERE JA made an order specific that the fourth respondent should transfer the property to the applicant.

The learned judges ruled in favour of the continuation of due process of execution.

The first respondent then purported to correct his defective application, which had been dismissed by BERE JA for want of form, by filing another application on 21 January 2019 seeking the same relief as sought in the dismissed application.

Under case no SC15-19, the Honourable GWAUNZA DCJ struck the application off the roll.

I imagine that since the same application had not been struck off the roll by BERE JA, but dismissed, it was incompetent for the first respondent to file the same application seeking the same relief.

The earlier dismissal had the effect of res judicata on the issue.

The first respondent however indicated that his appeal was still pending - a fact which was not disputed by the applicant.

The applicant referred to the judgment of this court in HH209-19 in case no HC1444/2019 delivered by MANZUNZU J on 14 March 2019.

In that case, the applicant filed an urgent application in which he cited all the other parties in the application before me as respondents. Significantly, the applicant herein was the fifth respondent therein.

The first respondent herein was the first respondent therein, the second respondent herein was also second respondent therein, and the third and fourth respondents herein were therein third and fourth respondents. There was a fifth respondent, namely, the Law Society of Zimbabwe which is not cited in the current application.

In the interim relief, and in particular in paragraph (i) of that application, the fifth respondent, as applicant therein, sought the following relief;

“That Deed of Transfer No.708/19, issued in the name of Tendai Mashayamunda, in respect of a piece of land in the district of Salisbury called the remainder of Subdivision C of Lot 6 of Lot 190, 191, 192, 193, 194 and 195 Highlands Estate of Welmold measuring 4,377 square metres be and is hereby cancelled.”

The rest of the relief sought, in both the interim relief and final relief, concerned prayers for orders of the de-registration of the first respondent herein as a legal practitioner, the placement of his legal firm under curatorship, and incidental relief, including costs.

It is common cause that application HC1444/19 was dismissed with costs by MANZUNZU J.

The case was determined on the merits and the decision by MANZUNZU J was therefore final.

In his judgment, MANZUNZU J made certain observations which l find apposite in so far as the present application is concerned. The learned judge stated as follows on page 3 of the cyclostyled judgment;

“Despite the judicial attachment of Chiutsi's immovable property, and, in fact, with a sale having been confirmed by the Sheriff, against all odds, Chiutsi sold the property and transferred ownership to the second respondent.

The applicant's interest in this application is for him to get his money from Chiutsi. The sale of Chiutsi's immovable property to the fifth respondent, by the Sheriff, had at least guaranteed him of his money. He fears the second respondent may pass title to a third party complicating his chances of recovering his money.

Chiutsi said he has now paid $115,000 to the applicant through his lawyers' trust account.

The payment has been acknowledged though there is a dispute as to whether or not such payment is considered as payment towards the judgment debt because, as Mr Biti argued, it goes towards costs.

As I have already pointed out, the applicant's interest is to get his money, otherwise he cannot be seen fighting a case for the fifth respondent as to whether the sale between fifth respondent and Sheriff should proceed. He has no mandate to do so.“

The above pronouncements hold true in the application before me in so far as the interests of the fifth respondent is concerned. His interest, as the judgment creditor in case no. HC3331/14, is to have the judgment order satisfied and must remain so.

What however happened is that in the case before MANZUNZU J, the fifth respondent prayed for cancellation of the Deed of Transfer no.708/19 in favour of the second respondent and left it at that.

He did not ask for any other relief as would have ensured that he gets payment in terms of the judgment granted in his favour.

The fifth respondent noted an appeal to the Supreme Court against the judgment of MANZUNZU J. The appeal was noted on 15 March 2019. It is pending before the Supreme Court under case no. SC140/19.

The first respondent, in the application before me, also raised the defence of lis pendens.

He averred, in his opposing affidavit, that, there was a pending case, HC649/17, in which he challenged the attachment of the property in question and that the matter was still to be resolved.

He also averred that there was further pending litigation in case no. HC8122/17 and that the fourth respondent should not have proceeded with the sale in execution.

He lastly averred, that, he had a pending appeal before the Supreme Court and that in any event the Judicial Services Commission had directed the fourth respondent to stay execution until the Supreme Court had determined the first respondent's appeal made against the judgment of MATHONSI J…,.

The applicant attached a copy of a letter from the Secretary of the Judicial Service Commission, dated 12 November 2018, directing the fourth respondent to stay execution pending appeal.

In response to the defence of lis pendens, the applicant, in its answering affidavit, did not deny the existence of the alleged pending litigations nor the appeal.

It took the position that the gist of its application was that the first respondent had sold to the second respondent the property in question in the full knowledge that the property had been attached by the fourth respondent.

The applicant further averred that the matter was not lis pendens by virtue of the first respondent's pending appeal because the appeal was also against the order that the judgment would remain operational despite the noting of any appeal.

The applicant also averred that BERE JA had dismissed the first respondent's attempt to interdict the transfer of the property to the applicant on the basis of a pending appeal. The applicant stated, in the final sentence in paragraph 4 of the answering affidavit, thus –

“Therefore, the fact that first respondent has noted a purported appeal against Justice MATHONSI's judgment does not affect this application.”

In regard to res judicata, the first respondent averred that the applicant filed an affidavit in case no. HC1444/19 specifically requesting the court to cancel the title deed in favour of the second respondent. The applicant further averred that the dismissal of case no. HC1444/19 by MANZUNZU J rendered the issue of cancellation of the Deed of Transfer to the second respondent res judicata and that this court was functus officio on the issue.

In response to the defence of res judicata, the applicant averred that the judgment of MANZUNZU J did not deal with the merits of the application. The applicant averred that whilst application HC1444/19 was concerned with the protection of the fifth respondent's rights, the applicant in casu was seeking to enforce its rights to transfer to itself the property in question as purchaser.

In regard to the preliminary defences raised, it is trite that the court has an unfettered right to refer to its records: see Mhungu v Mtindi 1986 (2) ZLR 171 in which McNALLY JA…, stated:

“It seems clear from the judgment in which the learned judge a quo granted summary judgment that he made reference to the papers in case no. HC3406/84. In so doing he was undoubtedly right. In general, the court is always entitled to make reference to its own records and proceedings and to take note of their contents…,.”

Guided by the above dicta, I perused the records referred to by the second respondent.

Significantly, and in relation to case no. HC1449/19, decided by MANZUNZU J, the applicant herein did not oppose the application. The applicant in fact supported the application as shown in the affidavit which was filed of record on 28 February 2019. In paragraph 2 of the applicant's affidavit thereon, it is stated;

“2. I have perused the urgent chamber application for the cancellation and setting aside of Title Deed No. 708/2019, together with the certificate of urgency and the founding affidavit of the applicant in support of the application. I confirm that fifth respondent is in support of the application and the relief sought as fifth respondent has an inherent interest in this matter as is apparent from applicant's affidavit itself.”

The applicant then chronicled the history of how it bought the property on the Sheriff's auction; the declaration made by the Sheriff that the applicant was the highest bidder and purchaser; the challenges mounted by the first respondent including attacking the court judgment by MATHONSI J…,.; that the applicant paid the purchase price and transfer fees; the failed interdict applications made by the first respondent in the Supreme Court and determined by BERE JA and GWAUNZA DCJ; the allegation that the first respondent's appeal no. SC734/18 was dismissed for non-compliance with the Rules; and that the sale of the property by the first respondent was fraudulent as the first respondent was aware of the prior sale to the applicant made on 18 September 2017.

The applicant, in paragraph 13 of the affidavit, accused the first respondent herein of having connived with officials of the third respondent herein to perpetrate a fraud by registering the transfer to the second respondent herein. The applicant states as follows in paragraphs 13–16 of its affidavit:

“13…,. The sale and transfer of the property to the second respondent is void and that void transaction must be quashed.

14. The fact is, the title deed in favour of the second respondent is a fraud and it must be cancelled. The actions of the first respondent are criminal in nature and should not be condoned.

15. Fifth respondent has and continues to suffer prejudice at the actions of the first respondent, which, if allowed to stand, will greatly prejudice the applicant, fifth respondent, and our justice system.

16. It is therefore fifth respondent's position that there is sufficient basis for this Honourable Court to grant the relief sought for by the applicant. First respondent also ought to be ordered to pay the costs on a punitive scale.”

It is therefore clear that in case no. HC1449/19 the applicant took advantage of the application filed by the fifth respondent to present its own case to the court.

The relief sought by the fifth respondent was in effect for the benefit of the applicant as well.

In a manner of speaking, the applicant took the position of a co-applicant and prayed to the court that the relief sought by the fifth respondent herein should be granted.

The applicant argued, before MANZUNZU J, for the relief of cancellation of the Deed of Transfer made in favour of the second respondent to be cancelled. In paragraph 15 of its affidavit, the applicant averred that it continued to suffer prejudice as did the fifth respondent.

The applicant adopted the applicant's cause as its own.

The cancellation of the Deed of Transfer, had such relief sought been granted, would have benefitted the applicant.

The present application would not have been made.

The applicant has, by this application, sought the same relief which it looked forward to getting in case no. HC1449/19 before MANZUNZU J.

The extension to the same order then and now sought, that the prior Deed be revived, would simply have followed as a causa causans of the cancellation of the now holding Deed which was the causa sine qua non of the revival of the prior Deed. The same reasoning would apply to the faulty relief sought, that the third respondent transfers the property to the applicant.

I have already pointed out that the third respondent does not transfer property but registers transfers. Transfers are done by the seller to the purchaser.

There can be no doubt the dismissal of the application by MANZUNZU J resulted in the fifth respondent and the applicant being denied the common relief which they sought.

In deciding whether the plea of res judicata applies against the applicant in this case and similarly against the fifth respondent, I need to restate the requirements for a successful plea of res judicata.

In the case of Wilson Nakunyunda Banda and 45 Others v Zimbabwe Iron and Steel Corporation SC54-99, SANDURA JA stated…;

“The requisites of the plea of res judicata have been set out in a number of previous cases. In Pretorious v Barkly East Divisional Council 1914 AD 407. SEARLE J set them out as follows at p409:

As to the first point, the requisites for a plea of res judicata have several times been laid down in this court.

The three requisites of a plea of res judicata, said the Chief Justice in Hiddingh v Denysson L (3 Juta p424) quoting Voet (44.2.3) are that the action in respect of which judgment has been given must have been between the same parties or their privies; concerning the same subject matter; and founded upon the same cause of complaint as the action in which the defence is raised. In order to determine the cause of complaint, the pleadings, and not the evidence in the case, must be looked at.”

The pleadings in case no.1449/19 and in casu are similar.

What has simply happened is that the applicant herein, having made cause with the fifth respondent as applicant in HC1449/19, and lost the case, has decided, out of misplaced ingenuity, to file this application which otherwise involves the same parties, the same subject matter, and founded on the same cause of complaint as was before the court in case no. HC1449/19 which MANZUNZU J dismissed.

The fact that the applicant was a respondent does not alter the position.

A respondent who participates in an application is as much a party to the case as the applicant. Such respondent becomes an interested party who will be affected and bound by the order which the court may grant. The respondent, as much as the applicant, has a right of appeal against the judgment in which such respondent is a party.

In casu, the applicant herein did not appeal against the judgment of MANZUNZU J which means that it did not take issue with the dismissal of the application.

The dismissal of the application meant that the current Deed, in the name of the second respondent, remained extant, yet, in the application, case no. HC1449/19, the applicant had prayed for the order of cancellation of the Deed, as sought by the fifth respondent, to be granted.

In the current application, the applicant now took the leading role and petitioned the court for the same relief as previously sought in case no. HC1449/19 with the fifth respondent, who was applicant in case no. HC1449/19, being now cited again as fifth respondent.

The fifth respondent, for its part, filed what it terms a supporting affidavit on 12 April 2019.

It is a curious supporting affidavit in that it comprises 33 pages compared to only 7 pages which make up the founding affidavit of the applicant. The affidavit has 169 individualized paragraphs containing separate allegations in line with Rule 227(1)(b). The annexures to the supporting affidavit comprise 24 pages. In totality, therefore, the fifth respondent's so-called supporting affidavit, with annexures, comprises 57 pages.

The fifth respondent's affidavit goes further than the applicant's affidavit in expanding on the grounds on which the relief sought by the applicant should be granted. Significantly, the fifth respondent, in the penultimate paragraph of the supporting affidavit, in paragraph 168, stated:

“Ad paragraphs 1 to 28 of the applicant's founding affidavit

168. I have read the founding affidavit of Mr Kingstone Hamutendi Munyawarara. I associate myself with the same. I agree with every contention made therein and l seek that an order be granted in terms of the draft.”

Other than paragraph 168, the fifth respondent, in the bulk of his affidavit, was setting out facts which found the application more comprehensively in content and detail than the applicant had done in the founding affidavit.

In my view, the procedure which was adopted by the fifth respondent is wrong.

Form 29, referred to in Rule 230, on application procedure, calls upon the respondents to oppose the relief sought by the applicant if they wish to do so. This implies that the respondent can also consent to the application expressly by stating so or not file any papers in which case the respondent who does not file any opposing papers is deemed not to be opposed to the order sought.

Where the respondent seeks to bring its own application and the cause of action, subject matter, and the parties are the same, he or she can file his or her own application separately and apply for consolidation of the applications for purposes of hearing.

The fifth respondent did not do this, and, instead, sought to sneak in its own dispute for resolution by the court through the back door in an application brought by another party.

To compound matters, the fifth respondent could not competently seek the court's determination on issue which it brought before the court and judgment which he has appealed against was given by the same court.

The matter is therefore res judicata as far as this court is concerned and lis pendens as far as the Supreme Court appeal is concerned.

This court has inherent power, in terms of section 176 of the Constitution, to regulate its processes, and, in the process of doing so, to guard against abuse of court process by litigants.

The fifth respondent seeks to abuse the court process by asking the court to determine and grant an order which he failed to obtain in case no. HC1449/19 and appealed against that decision.

Obviously, if the order is granted, the appeal becomes academic and may not be pursued leaving this court with two conflicting judgments.

In my view, what was before MANZUNZU J was a dispute which involved all the parties herein.

A decision thereon was granted. One of the parties, namely, the fifth respondent herein, appealed against the judgment. The others, including the applicant, did not do so.

The court is not a gambling place where parties take chances to try their luck where one who led the group failed to get relief which each member of the group was seeking in the prior or failed application.

I therefore found merit in the first respondent's plea of res judicata for the reasons l have outlined.

The dispute before me was determined in case no. HC1449/19, and, save for the fifth respondent herein who was the applicant, parties who did not appeal against the judgment, when in fact they were dissatisfied with it, must live with the judgment.

For the fifth respondent, the matter is not only res judicata in this court, but is lis pendens in the Supreme Court.

View Appeal
HMA13-19 : CONCILIA CHINANZVAVANA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: MAFUSIRE J

In terms of Rule 232 and Rule 233 of the High Court Rules, the respondents have ten days, from the date an application is served upon them, to file their notice of opposition together with one or more opposition affidavits.They are barred if they fail to comply.

HH586-15 : TEMBA MLISWA vs THE CHAIRPERSON (ZEC) and ZIMBABWE ELECTORAL COMMISSION and OTHERS
Ruled By: UCHENA J

The applicant is an independent candidate for the Hurungwe West By-Election scheduled for 10 June 2015. He, by ordinary application, applied for an order suspending the holding of elections in Hurungwe West on 10 June 2015 due to alleged violence and intimidation.

In the alternative, he seeks orders compelling the first (Chairperson, Zimbabwe Electoral Commission), second (Zimbabwe Electoral Commission), fourth (Ignatious Chombo), and sixth to tenth respondents (Chief Nyamhunga, Chief Dandawa, Chief Nematombo, Chief Dendere and Headman Matau) to make statements through fliers and radio correcting the impression created by the third to tenth respondents (ZANU-PF, Ignatious Chombo, Keith Guzha, Chief Nyamhunga, Chief Dandawa, Chief Nematombo, Chief Dendere and Headman Matau) about how voters in the constituency shall go to the polls and vote on 10 June 2015.

The first respondent is the Chairperson of the Zimbabwe Electoral Commission to whom the applicant complained, by letters dated 12 and 14 May 2015, about the violence and intimidation which was being unleashed in Hurungwe West by the third to tenth respondents (ZANU-PF, Ignatious Chombo, Keith Guzha, Chief Nyamhunga, Chief Dandawa, Chief Nematombo, Chief Dendere and Headman Matau).

The second respondent is the Zimbabwe Electoral Commission.

The third respondent is Zimbabwe African National Union (Patriotic Front) ZANU-PF, a political party which fielded the fifth respondent (Keith Guzha) for the Hurungwe West by-election.

The fourth respondent (Ignatious Chombo) is the Secretary for Administration for the third respondent who is being sued in his personal capacity for inciting violence and intimidation in Hurungwe West Constituency.

The fifth respondent (Keith Guzha) is a contestant fielded by the third respondent for election as a Member of Parliament for Hurungwe West in the 10 June by-elections.

The sixth to tenth respondents (Chief Nyamhunga, Chief Dandawa, Chief Nematombo, Chief Dendere and Headman Matau) are traditional leaders who the applicant alleges have been tasked with the role of systematically heading their subjects to polling stations and monitoring how they will vote to identify those who will vote for the applicant.

The eleventh respondent is the President of Zimbabwe, cited in his official capacity as the official responsible for proclaiming dates for elections.

As already said, the applicant applied, by ordinary application, for the above mentioned orders.

He, in that application, sought to have the application set down for the fifth of June 2015 even though he only served the application on the sixth to tenth respondents on 6 June 2015. It was served on the first, second, third, and fourth respondents on 2 June 2015. The Registrar set it down for 8 June 2015. Most of the respondents were served with notices of set down on 8 June 2015.

On 8 June, the respondents counsel raised three preliminary issues:

Counsel for the third and fifth respondents raised a preliminary issue on his clients being entitled to the dies induciae permitted in terms of the Rule the applicant used to file his application.

Counsel for the first and second respondents raised a preliminary issue on whether or not this court has jurisdiction to hear the applicant's application.

Counsel for the fourth and sixth to eleventh respondents raised a preliminary issue alleging that the fourth respondent had been incorrectly cited in his personal capacity.

I, after hearing submissions from the parties, postponed the case to 9 June 2015, when I ruled in favour of the third and fifth respondents preliminary issue and dismissed the first, second and fourth respondents preliminary issues.

I indicated that my reasons for judgment would follow, these are they.

Dies Induciae

In his submission, counsel for the third and fifth respondents argued, that, the applicant consciously chose the procedure through which he brought his application to this Court. That procedure determines the time frames within which the respondents are expected to file their responses.

He submitted, that, where an applicant files an ordinary application in terms of Rule 231(3) of the High Court Rules 1971, which the applicant used, a respondent is, in terms of Rule 232, entitled to file his response within not less than 10 days, exclusive of the day of service, plus one day for every additional 200 kilometres or part thereof where the place of service is more than 200 kilometres from the court where the application is to be heard.

He submitted, that, the application has been prematurely set down as the dies induciae has not yet lapsed and the third and fifth respondents are entitled to file their responses within the time permitted by the Rules.

Counsel for the applicant, instead of relying on the procedure in the High Court Rules which the applicant used in filing the application, and invoking corrective measures, sought to expedite the hearing of the application by invoking the provisions of Rule 31 of the Electoral Court's Rules S.I.74A of 1995.

Rule 31 of the Electoral Court Rules SI74A of 1995 provides as follows;

“The Registrar, and all parties, to any stated case, petition, appeal or application referred to in these rules shall take all steps necessary to ensure that the matter is dealt with as quickly as possible.”

He submitted, that, the applicant gave the respondents three days to respond in view of the provisions of Rule 31 of the Electoral Court Rules S.I.74A of 1995.

This submission is not consistent with what the applicant said in his founding affidavit, on p10 para 12, where he said;

“I have given the respondents three days to respond. This is a modification of the rules of the High Court as contemplated in section 164(4).”

Counsel for the third and fifth respondents, in response, submitted, that, Rule 31 of the Electoral Court Rules SI74A of 1995 is not applicable to the present application as it is not one of the applications mentioned in those Rules.

He analysed the applications covered by the 1995 Electoral Court Rules and demonstrated how those rules do not apply to the applicant's application.

He further submitted, that, the applicant cannot unilaterally decide on the dies induciae especially after choosing the ordinary application procedure instead of using the urgent application procedure in terms of which an applicant can, in terms of the proviso to Rule 232 of the High Court Rules, specify a shorter dies induciae if the court “on good cause shown, agrees to such shorter period.”

He further submitted, that, the applicant should have applied by urgent chamber application accompanied by a certificate of urgency in terms of Rule 244 of the High Court Rules.

The need to hear electoral cases urgently is not in dispute. I accept that such cases should be heard as soon as possible, but, an applicant has to follow the correct procedures to achieve that objective.

It does not assist the smooth and efficient administration of justice, for an applicant to apply for remedies on the 11th hour, and for his legal practitioners to choose a wrong procedure, and, thereafter, expect the court to extricate them from their chosen timing and procedure, without their doing what the law of procedure requires them to do to achieve that objective.

Section 165(4) of the Electoral Act provides for the use of High Court Rules as follows;

“(4) Until rules of court for the Electoral Court are made in terms of this section, the rules of the High Court shall apply, with such modifications as appear to the Electoral Court to be necessary, with respect to election petitions and other matters over which the Electoral Court has jurisdiction.”

Section 165(4) of the Electoral Act makes it clear that modifications of the High Court rules must “appear to the Electoral Court” to “be necessary.” This means, an applicant cannot unilaterally decide that issue, but has to first convince the court of the necessity of the modification.

The applicant did not do so.

He, while using the procedure which gives the respondents the longest dies induciae, unilaterally modified the Rule to reduce that period.

In my view, the applicant should have simply applied by urgent application, which, in terms of Rule 244, allows a judge to call parties to make submissions on the issue of urgency.

Rule 244 of the High Court Rules reads;

“244. Where a chamber application is accompanied by a certificate from a legal practitioner in terms of paragraph (b) of subrule (2) of Rule 242 to the effect that the matter is urgent, giving reasons for its urgency, the registrar shall immediately submit it to a judge, who shall consider the papers forthwith.

Provided, that, before granting or refusing the order sought, the judge may direct that any interested person be invited to make representations, in such manner and within such time as the judge may direct, as to whether the application should be treated as urgent.”…,.

Rule 244 of the High Court Rules makes it clear that urgency has to be determined by a judge after hearing the parties submissions on it.

In this case, it was not possible to determine that issue within an ordinary application in terms of Rule 232, to which Rule 244 does not apply.

It is for these reasons why the third and fifth respondents insistence on the dies induciae provided for in Rule 232 cannot be interfered with, unless the applicant invokes remedial remedies to enable the hearing of its application without having to wait for the expiry of the dies induciae he trapped himself into.

The applicant's application must, therefore, be removed from the roll.

HB31-15 : TAMIRA OVERSEAS S.A. vs AQUIRIUM TRADING (PVT) LTD
Ruled By: TAKUVA J

The applicant applied for an order placing the respondent under provisional liquidation in terms of sections 207, 206(f)(g) as read with section 205(c) of the Companies Act [Chapter 24:03].

This Court, per MAKONESE J, on 18 September 2014, issued the following provisional order:

“1. The respondent, Aquirium Trading (Pvt) Ltd is provisionally wound up, pending the grant of an order in terms of paragraph 3 or the discharge of this order.

2. Subject to subsection (1) of section 274 of the Companies Act [Chapter 24:02], Mr Knowledge Hofisi of Aurifin Capital (Pvt) Ltd is appointed as provisional liquidator of the respondent company with the powers set out in section 221(2)(a) to (g) of the Act.

3. Any interested party may appear before the court, sitting at Bulawayo on 11th December 2014, to show cause why a final order should not be made placing respondent company in liquidation and ordering that the costs of these proceedings shall be costs of liquidation.

4. This order shall be published once in the Zimbabwe Government Gazette and once in the Herald newspaper. Publication shall be in the short form annexed to this order.

5. Any person intending to oppose or support the application on the return day of this order shall -

(a) Give due notice to the applicant at care of its legal practitioners, Messrs G. N. Mlotshwa & Company c/o Majoko and Majoko Legal Practitioners, 1st Floor, Triumphant House, 111a Josiah Tongogara Street, between 11th and 12th Avenue Bulawayo.

(b) Serve on the applicant a copy of an affidavit which he files with the Registrar of the High Court.”

The respondent filed a notice of opposition on 18 October 2014. It also filed its heads of argument on 28 November 2014 and its legal representative appeared in court on 11 December 2014 and opposed the confirmation of the provisional order....,.

The respondent's opposition is based on a number of grounds. Perhaps, it would be instructive to state the brief background facts before I consider the respondent's grounds for opposing the matter.

The respondent company was incorporated in 2004 by one Taleb Mohamad and Sandra Van Rooyen, to, among other things, pursue mining interests in the Midlands Province.

Sometime in 2012, the applicant company, Tamira Overseas SA, sought to invest in Acquirium Trading (Pvt) Ltd. In pursuant of that quest, various tentative agreements were entered into subject to the fulfillment of certain conditions.

On or about the 28th of August 2014, the applicant filed for the respondent's liquidation alleging that the respondent was heavily indebted to the applicant. On 18 September 2014, the applicant obtained the order referred to earlier in this judgment.

Let me come back to the notice of opposition and the grounds thereof. They are as follows:

1. The order for provisional liquidation was improperly prayed for and granted and must be set aside. The respondent submitted, that, it was not served in terms of the Rules before this provisional order was granted.

2. That, Messrs G.N. Mlotshwa and Company Legal Practitioners are conflicted out in this matter.

3. That, the application has not been properly brought before the court.

4. That, on the facts, the respondent company should not be placed under liquidation as there are no proper grounds for the placement of the respondent company under liquidation.

5. That, at the very least, the respondent should be placed under judicial management.

In respect of the first ground, it was submitted, on the respondent's behalf, that, before the provisional order was granted, the application for the provisional order was not served on the respondent at its registered address. The application was purportedly served on Heena Joshi who is not a director of respondent.

The notice of set down was not served on anyone.

Further, there was no affidavit of service filed with the court before the order was obtained.

The respondent also contended, that, the manner in which the applicant proceeded under the circumstances is in breach of section 5(2) of the Companies (Winding Up) Rules 1972 which provides;

“Except where the petition is presented by the company itself, a copy of the petition and the notice of set down for hearing shall be served upon the company by delivering of such copy at its registered office or to a responsible person at its place of business, failing such service, to a director or secretary of the company, or, if the company is in voluntary liquidation, to the liquidator. An affidavit of service shall be filed with the petition.”

Reliance was placed on the principle set out in African Gold (Zimbabwe) (Pvt) Ltd v Modest (Pvt) Ltd 1999 (2) ZLR 61 (SC)…, where the court observed as follows:

“A respondent company must not be deprived of the opportunity to put forward its opposition to the grant of an order which will have the effect of causing it to suffer an immediate diminution in personal status and a removal of control over all its assets.

The manifestly serious consequences flow from the issue of a provisional winding up order.

The provisional liquidator is almost invariably vested by the court with the wide powers set out in paragraphs (a) to (h) of section 221(2) of the Companies Act [Chapter 24:03]: see the remarks of HOFMEYER J in Mackay v Cahi 1962 (4) SA 193 (O) at 203G-H, which, though referring to sequestration proceedings, are nonetheless apposite and Walsh v Kugar 1965 (2) SA 756 (E) at 760B.

A fortiori, so it seems to me, the present appellant, being the victim of an inexcusable breach of procedure, the High Court ought to have afforded it the opportunity to oppose the application for the provisional order by the only means available, namely, by setting aside of the order that had been improperly obtained.”…,.

See also Reserve Bank of Zimbabwe v Trust Bank Corporation Ltd HC1070/13.

For this reason, the respondent prayed for the discharge of the provisional order with costs without even considering any other issues.

As pointed out above, the applicant did not file any heads of argument despite having been served with the respondent's heads.

Also, the applicant's principal legal practitioners did not attend and no explanation for their absence was proffered.

Counsel for the applicant submitted, that, he was a mere corresponding legal practitioner who was not versed with the facts of the matter. He indicated that he would stand by the papers filed of record.

There is no proof of service of the application for a provisional order in the record.

Consequently, the only inference is that it was granted on an ex parte basis.

This is irregular and I would discharge the provisional order for this reason.

Had the respondent not prayed for an order that the respondent be placed under judicial management the matter would have ended here.

SC06-14 : ZIMASCO (PRIVATE) LIMITED vs MAYNARD MARIKANO
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

This is an appeal against the judgment of the Labour Court dismissing an application by the appellant to file supplementary heads of argument and setting aside the decision of the appellant to terminate the respondent's contract of employment with itself.

The facts of this case are largely common cause and are these:

The respondent was employed by the appellant as a Medical Officer in 1995. He rose through the ranks to become the Health Services Manager.

In terms of his letter of appointment, the appellant's policies and procedures were incorporated into his employment contract.

On a date that is unclear on the papers, but between February and March 2009, the respondent was involved in a serious road accident whilst about the appellant's business.

The respondent suffered serious injuries to his spine as a result of which he was unable to attend to his official duties from 11 March 2009.

The respondent was allowed to go on sick leave on full pay for a period of ninety (90) days.

At the expiration of that period, the respondent was still unable to resume his duties and took more sick leave.

On 7 September 2009, the appellant's Services Director, a Mr Zvaipa, wrote to the respondent directing him to furnish a copy of his doctor's opinion, failure of which his remuneration and other benefits were to be suspended.

Following further correspondence exchanged between the two, the respondent made it clear, that, he remained in the employ of the appellant until such time as his contract was lawfully terminated.

On 18 September 2009, the appellant then wrote to the respondent advising that since he had exceeded the maximum sick leave permissible in a single year, his contract of employment was being terminated forthwith in terms of section 14(4) of the Labour Act [Chapter 28:01] (“the Act”).

Following this development, the respondent then filed an application for review with the Labour Court on 9 October 2009.

In the application, the respondent alleged, that, the termination was unlawful as the appellant had not followed the procedural steps required at law or in terms of his contract of employment in terminating his employment on medical grounds.

It appears, that, on the same date, the respondent filed what purported to be a notice of appeal against the decision to dismiss him.

It is apparent, however, that, in both cases, the respondent sought an order setting aside the decision to terminate his contract of employment.

The Labour Court treated the matter as an application for review.

After hearing submissions from both parties, the court then reserved its judgment on 15 March 2010.

On 15 November 2010, eight (8) months later, the appellant then filed an application for leave to file supplementary heads of argument. The supplementary heads of argument sought to raise the issue whether or not the Labour Court had jurisdiction to entertain an application for review in the first instance.

The application was opposed by way of a letter to the Registrar. No formal opposing papers were filed.

The Labour Court dealt with the request as part of its judgment.

The court was of the view, that, there should be finality in litigation and that to allow a party to file heads of argument after judgment had been reserved would defeat this principle.

The Court therefore dismissed the application to file supplementary heads of argument.

The court further reached the conclusion, that, an employer does not have the authority to summarily terminate an employee's contract of employment in terms of section 14(4) of the Labour Act [Chapter 28:01], and that, regard being had to the purpose of the Act, namely, the promotion of fair labour standards, the employer was under obligation to conform to the requirements of substantive and procedural fairness and that failure to give notice to an employee of an intention to terminate a contract of employment in terms of section 14(4) of the Act is fatally irregular.

The court further found, that, since the respondent's contract of employment embodied other terms applicable in the event of sickness, the appellant should have fully related to those terms and given the respondent the option either of early retirement or being medicallly boarded.

The court concluded, that, as this had not been done, there had been procedural irregularities, and, consequently, set aside the decision to terminate the contract of employment of the respondent.

It is against that order that the appellant has appealed to this Court.

Both parties to this appeal are agreed that the appeal raises three (3) issues for determination. These are:

(a) Whether or not the Labour Court had jurisdiction to entertain the respondent's application for review at first instance.

(b) Whether the Labour Court erred, as a matter of law, in declining to consider the issue of jurisdiction raised in the application to allow the filing of supplementary heads of argument.

(c) Whether the Labour Court was correct, in holding, as it did, that the right to termination in terms of section 14(4) of the Labour Act was subject to procedure and that any irregularity in those procedures entitled the Labour Court to set aside the termination of the contract of employment.

In particular, whether the appellant was obliged to give the respondent the right to be heard before his contract was terminated, and, secondly, whether the appellant was obliged, in terms of the contract of employment between the respondent and itself, to comply with medical boarding procedures or the availing of an option of early retirement before the contract of employment could be terminated....,.

THE APPLICATION TO FILE SUPPLEMENTARY HEADS OF ARGUMENT ON THE QUESTION OF JURISDICTION

It is common cause that after hearing submissions from the parties, the court a quo reserved judgment in this matter. This was on 15 March 2010.

Exactly eight (8) months later, i.e. on 15 November 2010, the appellant then filed an application to file supplementary heads of argument in which the main issue raised was whether the Labour Court had jurisdiction to deal with the application for review.

It is also common cause that the application was not set down for argument, and that, on 7 March 2011, the respondent's legal practitioners wrote to the Registrar of the Labour Court opposing the application on the basis, firstly, that it was too late for the appellant to seek to file supplementary heads at a time when judgment was awaited, and, secondly, that there was need for finality in litigation.

The court a quo then handed down its judgment on 21 March 2011.

In dismissing the application to file further heads of argument by the appellant, the court a quo remarked:

“In my view, this belated application should be dismissed for the simple reason that labour disputes should be finalised expeditiously, and, to allow a party to file further pleadings after the reservation of judgment would defeat this principle. There must be finality to litigation….,.”

In his submissions, counsel for the appellant accepted, that, in general, once judgment has been reserved, the parties have no right to file any further arguments.

However, the parties have the right to apply to file further heads of argument, and, where the argument relates to a legal matter, especially one of jurisdiction, a court should be slow to refuse to allow such further argument unless to do so would clearly interfere with the workings of the judicial officer concerned.

Whilst the application was filed eight (8) months after judgment had been reserved, it was made four (4) months before judgment was handed down and clearly the matter had not been handled with any degree of urgency.

In his submissions, the respondent argued, that, the appellant should have diligently submitted any further argument within a reasonable time and not eight (8) months after judgment had been reserved.

I am inclined to agree with counsel for the appellant, that, in general, once judgment has been reserved, the parties have no right to file further heads of argument. However, a party has the right to apply to file such heads of argument.

When that happens, as it did in this case, it is incumbent upon the judicial officer seized with the matter to hear both sides, and, thereafter, to make a decision on whether or not to allow such filing.

In this case, this was not done and it appears even the merits of the application were not considered.

The court a quo merely considered the extent of the delay and the need for finality in litigation as sufficient grounds for the dismissal of the application.

I have no doubt in my mind, that, in doing so, the court a quo erred.

As counsel for the appellant correctly pointed out, where an issue of law, particularly one of jurisdiction, is raised, a court should be slow to refuse to allow such further argument unless the court is satisfied that such further argument would not take the matter any further or that it amounts to an abuse of court process.

It is settled law, that, a question of law can be raised at any time, even for the first time on appeal, as long as the point is covered in the pleadings and its consideration involves no unfairness to the party against whom it is directed: see Ahmid v Manufacturing Industries (Pvt) Ltd SC254-96…, and Muchakata v Nertheburn Mine 1996 (1) ZLR 153 (S)…,.

Once the application to file further heads of argument was filed, the court a quo should have set the matter down, and, thereafter, made a proper determination of the request.

The court did not do so and proceeded to consider its judgment without so much as considering whether a valid point of law had been raised.

Only in its judgment did it then give its reason for ignoring the application, namely, that it was belated and that there was need for finality in litigation.

In my view, the court erred in its approach to the application.

The rationale for allowing issues of law to be raised at any time is to enable a court to have all the information, even at a very late stage, so that it is enabled to make a proper decision.

The issue raised was a serious one.

If a court has no jurisdiction that would be the end of the matter and any determination made thereafter would be null and void.

That the court a quo should have allowed the filing of further heads of argument is buttressed by what has happened on appeal before this Court. The issue of jurisdiction has been raised and argued by both parties, notwithstanding that the court a quo had dismissed the request to file supplementary heads on this aspect.

Indeed, this is the first issue that this Court has had to determine in this appeal.

On the facts, therefore, I consider that personal inconvenience to the court a quo was not sufficient ground to refuse to even hear the application. This is a case where the court a quo should have allowed the appellant to file supplementary heads of argument and allow the other side the opportunity to respond before coming to a decision on the matter.

HB38-15 : SIBUCO TRADING (PVT) LTD and EDITH KATAMBARARE vs LEADERS (PVT) LTD and MESSENGER OF COURT
Ruled By: MAKONESE J

The respondent filed an application for Directions in terms of Order 23 of the High Court Rules 1971.On 26 November 2014, I directed that the Urgent Application for Stay of Execution, filed under case number HC2009/14, be set down for argument during the first term of 2015. The matter was ...

HB44-15 : RAILWAYS ARTISAN UNIONS vs NATIONAL RAILWAYS OF ZIMBABWE and OTHERS
Ruled By: TAKUVA J

This is an application for confirmation of a provisional order issued by the Honourable Mr Justice Kamocha on the 31st day of October 2013.

The applicant is a registered trade union representing the artisans employed by the first respondent. It has capacity to sue and be sued in its own name.

The first to fourth respondents (National Railways of Zimbabwe, National Association of Enginemen, Railways Association of Yard Operation Staff and Zimbabwe Amalgamated Railway Workers Union) are signatories to the Parterson Job Evaluation System used at the first respondent's place of employment.

On or about 7 July 2004, the applicant and the respondents entered into an agreement setting out how the job evaluation system was to be conducted.

A procedural manual was drafted and signed by the applicant and all the respondents in July 2006.

In terms of clause 2 of the Parterson Job Evaluation System Procedural Manual, the purpose of the manual is to “set down the principles and procedures to be observed in respect of the classification of all Railway jobs in bands A to F using the Parterson Job Evaluation System.”

Clause 6 sets up a Job Classification/Review Committee whose composition is set out in clause 6.1 as:

“…,. 16 members, 8 of whom shall be appointed by the employer and 2 by each of the registered trade unions who are members of the Railways Employment Council.”

The quorum is established in terms of clause 6.1.5 as follows:

“The quorum of this committee shall be at least 4 members from the employer and at least one member from each of the trade unions. In the event of lack of a quorum, the meeting shall stand adjourned to a date and time to be agreed upon.”

The parties conducted their business in terms of the above manual until problems surfaced, and, in a meeting held on 18 September 2012, wherein the applicant and the fourth respondent's representatives indicated, that, unless the Parterson Job Evaluation System was reviewed they would be uncomfortable to remain as members of the Job Classification/Review Committee.

The third respondent withdrew its members on 27 November 2009.

The applicant also did so on 12 January 2010.

Consequently, no meetings of the Committee were conducted since then.

However, on 10 October 2013, the respondents met, without the applicant's knowledge and consent, and a motion was moved that the Committee should convene its meetings, and, if a party is absent, the meeting should remain adjourned for seven (7) days, and, at the agreed date, those members present shall constitute a quorum.

This proposal was the idea of one Gibson Mhlophe: see annexure H…,.

Indeed, notices were sent out by the secretary to the Railway Employment Council, one W. Chitima, and G. Ndlovu, the HR Manager for the first respondent: see annexures I and J…,.

Pursuant to those notices, a meeting was scheduled for the 23rd of October 2013. However, the meeting was postponed to the 30th of October 2013.

The applicant then sought and was granted a provisional order in the following terms:

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

1. The respondents be and are hereby ordered not to proceed with the meeting of 30 October 2013 to evaluate jobs as it violates the procedural manual.

2. In the event the meeting has already been done, the results of such meeting be declared null and void.”

The terms of the final order sought are:

“That you show cause to this Honourable Court, if any, why a final order should not be made in the following terms:

1. The respondents be ordered to review the Parterson Job Evaluation Committee within 30 days of the order by subjecting it to an external evaluation.”

The applicant's argument is that there must be a review of the Committee's nature and functions in view of the corrupt manner in which it has been discharging its functions.

It was submitted, that, this Committee is a creature of the Manual and is strictly bound by the provisions of the manual in particular clause 6.1.5 thereof.

Further, it was submitted, that, where a quorum should be met in all such meetings, the failure to so comply renders those meetings conducted outside the requirements null and void: see L. Piros & Sons v Piros 1993 (2) ZLR 245 (H) and James North Ltd Can v Matrimson 1989 (1) ZLR 322 (HC).

The applicant also submitted, that, clause 6.1.5 of the Manual is clear and unambiguous in that the quorum of the committee shall be at least four (4) members from the employer and at least one member from each of the trade unions.

Also, it was argued, that, there is no provision in the Manual for the procedure proposed by Mhlophe and adopted by Chitima and Ndlovu.

Finally, it was submitted, that, the procedural manual is not subordinate to the Railway Employment Council constitution and any attempt to refer to it in order to resolve the impasse is a nullity.

The respondents opposed the confirmation of the provisional order on the following grounds:

(a) That, the applicant is barred from filing heads of argument because it did not, within one month of filing an answering affidavit, set the matter down for hearing in compliance with Order 32 Rule 236(4) of the High Court Rules 1971, and, as a result, the respondents have, under case number 272/14, applied for dismissal of this case for want of prosecution in terms of Order 32 Rule 236(4)(b) of this Court's rules.

(b) There is no urgency in that the decision the applicant seeks to be set aside was communicated to it on 10 October 2013 yet it waited until the 29th of October 2013 before approaching the court. Reliance was placed on Kuvarega v Registrar-General and Anor 1998 (1) ZLR 188.

(c) That the applicant has not exhausted domestic remedies provided for in terms of section 74(4) of the Labour Act [Chapter 28:01] before approaching this court.

(d) That the relief sought is incompetent in that the court has no authority to make an agreement for the parties.

(e) That constitutions of voluntary associations should be interpreted in a manner which gives effect to the objects of the association as was held in Mudzumwe & Ors vs MDC & Anor 2012 (1) ZLR 490; Mudzengi & Ors v Hungwe & Anor 2001 (1) ZLR 179; and Garment Workers Union v Vries & Ors 1948 (1) SA 1110…,.

(f) That, the decision the applicant complains of was taken when there was a full quorum and the applicant was simply out-voted.

In my view, the real issue is whether or not the respondents purported amendment of clause 6.1.5 is lawful.

The rest of the points raised by respondents are frivolities. However, I will consider them and provide reasons for their dismissal.

The first point has no merit in that the respondents should have set down case number HC277/14 for hearing.

HH170-22 : DIVVYLAND INVESTMENTS (PVT) LTD vs DAVID CHIWEZA and THE SHERIFF OF ZIMBABWE
Ruled By: FOROMA J

The applicant filed this application as an Urgent Chamber Application seeking the following order:

(1) That the execution of the eviction ordered under SC138/21 and allowed to continue under HH83-22 be allowed pending finalization of the appeal under CV SC63/22.

(2) That the first respondent pays the applicant's costs of suit on the higher scale of legal practitioner and client.

The application is opposed by the first respondent who objected in limine that the matter is not urgent.

After hearing the parties counsels on the point in limine, I reserved the ruling in order to consider the first respondent's notice of opposition which was only brought to my attention right at the end of counsel for the first respondent's address in support of his argument that the application was not urgent.

The applicant was served the said notice of opposition prior to the hearing, and, for this reason, its counsel had no objection to the untimely production of the first respondent's notice of opposition.

I must take this opportunity to remind legal practitioners involved in handling urgent matters filed as urgent chamber or court applications, that, when filing documents in matters where the application has already been allocated to a duty judge they ensure, that, after having the documents stamped by the Registrar at the Civil Registry, they do not leave the copies for the court/duty judge in the Civil Registry but ensure that the said documents are delivered at the duty judge's chambers.

In the event that the clerks at Civil Registry object to parting with the registry copy of the process /document filed, the party filing the process should serve an additional copy on the allocated judge's clerk immediately.

This ensures, that, as the duty judge peruses the record, in preparation for the hearing set down, he/she does peruse a complete file as more often than not some documents only surface at the hearing despite the party filing same having done so in good time. By then, the duty judge will not have had an opportunity to consider such document(s) and this results in the determination of the matter being delayed as very often the matter must be postponed to enable the judge to peruse and consider such documents.

The judge's clerk /assistant cannot be expected to guess that the file he refers to the judge to prepare for the hearing is incomplete on account of some documents floating somewhere in the Civil Registry.

Such postponements as are necessitated by failure to bring documents timeously to the judge tend to defeat the whole purpose of the Urgent Chamber Application procedure.

HH686-20 : NATIONAL ENGINEERING WORKERS UNION and WISE GARIRA and SHEPHERD MASHINGAIDZE vs NATIONAL EMPLOYMENT COUNCIL FOR THE ENGINEERING IRON & STEEL INDUSTRY and OTHERS
Ruled By: MUSHORE J

The first plaintiff is the National Engineering Workers Union. The second plaintiff is the elected President of the first plaintiff, and the third plaintiff is the Secretary General of the first plaintiff.

The first defendant is the National Employment Council for the Engineering and Iron and Steel Industry. The second defendant is the Engineering Iron and Steel Association of Zimbabwe with the third defendant (Bekezela Mangena) being the second defendants current President. The fourth to ninth defendants (Ben Mamabara, Silas Mkodza, Righton Moyo, Dennis Muchenu, Abel Gumpo and Clement Kausa) are employees in the industry.

The plaintiffs instituted a court action against the defendants in which they sought the following order:

“THAT:

1. It is hereby declared that the 4th to 9th defendants are not legitimate members or holders of any office position in the 1st plaintiff and/or 1st Defendant;

2. It is hereby declared that 2nd to 9th Defendants, or anyone claiming though them, have no locus standi to act for or represent, in any capacity whatsoever, the 1st plaintiff and/or the 1st Defendant or any institution/without the express approval of the 1st Defendant;

3. Defendants are hereby interdicted whatsoever in the management/affairs in the 1st Plaintiff or deciding who should represent the 1st plaintiff or deciding who should represent the 1st Plaintiff in the 1st defendant;

4. It is hereby declared that the 2nd Plaintiff (or any person succeeding him as President of the 1st Plaintiff) be allowed to chair the proceedings/business of the 1st defendant up to the 31st of the month of December that follows the lapse of a period of 12 calendar months from the date of this court's order after which the chairmanship of the 1st Defendant shall proceed on a rotational basis and in terms of 1st Defendant's constitution.

5. The 4th to 9th defendants (or anyone acting through them) are hereby interdicted from entering the 1st plaintiff's property/premises or using the 1st plaintiff's name, letterhead, or logogram.

6. The 1st, 2nd and 3rd defendants (or anyone acting through them) are hereby ordered not to deny the Plaintiffs/1st Plaintiff's officials full and unfettered access to all the premises/property and business of the 1st defendant.

7. In respect of all acts, meetings, negotiations, decisions, resolutions, building contracts, collective bargaining agreements, payments or transactions conducted or executed by the Defendants (or some or one of them) at/or in the name of the 1st Defendant or 1st plaintiff, without the participation and approval of the plaintiffs, from 1st November 2018 to the date of this court's order, be and are hereby declared null and void.

8. The chairing of the meetings/business of the 1st defendant by the 3rd defendant or any person who succeeds him before the grant of this order is hereby declared null and void.

9. The 1st defendant pay to the plaintiff the industrial outreach monetary disbursements computed at 1% of the Engineering Monetary Fund's monthly takings, plus 1% of the defendants monthly takings, with effect from the 1st November 2018 to the date of this court order.

10. Any monetary payments purportedly made to the 1st plaintiff through the defendants or through modes/accounts other than 2nd plaintiff, 3rd plaintiff or the 1st plaintiff's official bank accounts, are hereby declared void.

11. The 2nd to 9th defendants shall bear the costs of this suit on an attorney and client scale.”

The plaintiffs claims were met with a special plea being filed by the defendants on three (3) aspects:

(i) The first aspect being a special plea on a lack of locus standi in judicio by all three plaintiffs stating that the first plaintiff body was a bogus union and a fabrication and that it belonged to the second and third plaintiffs who had been ousted by the entire engineering industry.

Further, it was specially pleaded that the second and third plaintiffs were no longer office bearers in the genuine workers union and that they had been dismissed from employment, and, therefore, the second and third plaintiffs had no capacity to sue on behalf of the National Workers Engineering Union.

(ii) The second special plea was that the matter was pending in another court (lis alibi pendens) under case number HC8051/19; in which the defendants claim was to cause the second and third plaintiffs to be barred from instituting proceedings from filing suits in the name of the first plaintiff.

(iii) Lastly, the defendants specially pleaded that matter had already been determined in part (res judicata) in that some of the claims in the declaration had already been determined and disposed of by the Magistrates Court.

The defendants sought a dismissal of the plaintiffs claims in their entirety, if all or any of those special pleas were upheld.

Thereafter, the defendants seemed to have abandoned taking the next procedural steps in pursuing the determination of the special pleas immediately as laid out under Order 20 Rule 138(a) and (b) of the High Court Rules 1971; in that, they failed to set the matter down for the hearing of their special pleas separately.

Order 21 Rule 138 of the High Court Rules reads as follows:

“138 Procedure on filing special plea, exception or application to strike out

When a special plea, exception, or application to strike out has been filed —

(a) The parties may consent within ten days of the filing to such special plea, exception or application being set down for hearing in accordance with subrule (2) of Rule 223;

(b) Failing consent, either party may, within a further period of four days, set the matter down for hearing in accordance with subrule (2) of Rule 223;”

In the result, the special pleas would be held over for determination at the trial in this matter; but, in the meantime, and in terms of (c) the defendants were required to have pleaded over the merits of their respective cases in terms of Rule 138(c) which prescribes that:

“(c) Failing such consent and such application, the party pleading specially, excepting or applying, shall within a further period of four days plead over to the merits if he has not already done so and the special plea, exception or application shall not be set down for hearing before the trial.”

When no pleas on the merits were forthcoming from the defendants, on the 17th of January 2020, the plaintiffs filed a notice to plead and intention to bar and served the same on the defendants.

The defendants elected, deliberately, to withhold their pleas on the merits and cited their reason for that decision as being that they had pending special pleas which were yet to be disposed of by the court.

Such an irreverent approach by the defendants resulted in the defendants being barred from pleading and appearing in accordance with Order 12 Rule 83 of the High Court Rules which states:

“83 Effect of Bar

While a bar is in operation —

(a) The registrar shall not accept for filing any pleading or other document from the party barred; and

(b) The party barred shall not be permitted to appear personally, or by legal practitioner, in any subsequent proceedings in the action or suit; except for the purpose of applying for the removal of the bar.”

Strictly taken, the Registrar ought not have accepted any further pleadings from the defendants; but, assumedly, the Registrar's office would have been hard pressed to pick this up, given the voluminous court filings which are processed in that office, and also because filings on the defendants behalves were being done by registered legal practitioners.

Be that as it may, the matter ended up being enrolled on my opposed roll for determination.

HH391-17 : ANDREW PASCOE vs MINISTRY OF LANDS & RURAL RESETTLEMENT and W. BUNGU and THE ATTORNEY GENERAL N.O.
Ruled By: FOROMA J

Order 32 Rule 232 of the High Court Rules, dealing with the time for opposition to a court application, provides as follows:“232 The time within which a respondent in a court application may be required to file a notice of opposition and opposing affidavit shall be not less than ten ...

HB57-15 : SIPIWO NKOMO vs MLWELIWENKULULEKO NCUBE
Ruled By: MUTEMA J

This is an application for rescission of a default judgment that was granted against the applicant in case number HC548/14.

The facts relevant to the resolution of the dispute between the parties are briefly these:

The applicant sold a BMW X5 motor vehicle registration number ACX 0734 to the respondent. The respondent paid a deposit of $12,000 and took possession of the vehicle. He, however, failed to pay the balance of $12,175.

The applicant then sued for the balance under case number HC2869/13 and obtained default judgment.

As a follow up to the default judgment, a writ of execution was issued which resulted in the vehicle in question being attached by the Deputy Sheriff.

The respondent filed an application for rescission of the default judgement under case number HC548/14.

The applicant's legal practitioners drew up papers to oppose the application, but, before they filed them, the parties reached a settlement which culminated in the signing of an agreement annexure “D” to applicant's founding affidavit. It was drafted in these words:

“MEMORANDUM OF AGREEMENT

It be and is hereby recorded that following a meeting between:

Plaintiff and her legal practitioner Mr G. Nyoni

Defendant and his legal practitioner Mr S.S. Mazibisa

It was agreed without force; duress and undue influence and the parties conscious of what they were doing, that:

1.The execution of Defendant's property be stayed only and strictly on the following conditions:

(a) That, he pays US$5,000 on 15 April 2014 and US$5,175 on the 6th of May 2014.

(b) That, he pays US$578 paid by Plaintiff to Sheriff of Zimbabwe; Sheriff's further costs and commission; interest of US$250 and costs as will be taxed, all by the 27th of May 2014.

2. The BMW X5 registration number ACX 0734 shall be removed by plaintiff from the Sheriff of Zimbabwe, at Defendant's expense (i.e. storage charges) and kept at Plaintiff's place or other safe place until the defendant has fully paid all monies detailed in paragraph (1) above.

3. Should the Defendant fail to make any one of the payments mentioned in (1) above, the plaintiff shall, without notice to the Defendant, take the vehicle to a car dealer (sellers of second hand vehicles) for the car to be sold by private treat at such reasonable price as will be determined thereat.

4. This memorandum shall stand as Defendant's mandate to the Plaintiff and the said car dealer to sell and transfer the car to the would-be purchaser.

DATED at BULAWAYO on this the 26 day of MARCH 2014.”

It was signed by both parties and their respective legal practitioners.

As a result of the agreement, the application and opposition for rescission under case number HC548/14 could not be pursued.

The respondent failed to meet the payments stipulated in the agreement of 26 March 2014 and the vehicle was taken to a dealer, but, the highest offer received was US9,000. There followed a series of correspondence between the parties legal practitioners concerning the value of the vehicle and whether the respondent should pay the applicant's costs.

On 3 September 2014, the current legal practitioners of the respondent wrote to the applicant's legal practitioners as follows:

“RE: M. NCUBE vs SIPIWO NKOMO

The above matter refers and to our previous conversation.

Kindly note, that, I am preparing a payment plan which is to commence at the end of September 2014 inclusive of clearing the balance if that option is still possible then.

In the meantime, may I please have photocopies of all the filed pleadings since Messrs Cheda and Partners seem to have lost the whole file in their moving offices. I have tried to photocopy directly from the High Court, but, at a dollar per page, it was too stiff, hence the favour that I now seek.”

The respondent was obliged with the documents he requested, which papers he then used to pursue his application for rescission of judgment in case number HC548/14 which had been laid in abeyance by the memorandum of agreement alluded to above - without alerting the applicant.

On 23 October 2014, the respondent obtained a default judgment, with costs, rescinding the judgment the applicant had obtained in HC2869/13.

The applicant says she was shocked to receive a letter, on 19 November 2014, written to her legal practitioners by the respondent's current legal practitioners to this effect:

“RE: MLWELIWENKULULEKO NCUBE vs SIPIWO NKOMO HC548/14 X REF HC2869/13

The above matter refers and to the attached court order.

Be advised that we have since obtained a rescission of judgment of the order which was in favour of your client. Mr Ncube had clearly wanted this matter to rest and had resigned himself to losing both the BMW X5 and the money, a sum of US$12,000, plus other monies that he had paid to the sheriff.

What he then found unfair was the fact that your client wanted to further make him pay a sum in excess of US$2,000 as legal costs when she had both the car and the money. Clearly, that was for all to see, a gross injustice.

In light of the rescission of judgment may the status quo before the judgment be restored, and the matter proceed through normal trial route and Mr Ncube pays the balance which was owing. Failing which, may your client make arrangements to refund the money paid to her by Mr Ncube, by the 1st of December, 2014.

As yours took back possession of the vehicle, which she is using, as we are told by Mr Ncube that he has seen her use the motor vehicle, there is therefore no legal basis for her not to return the money since she had taken back the motor vehicle and enjoys its use.”

That letter elicited a response from the applicant's legal practitioners in this vein:

“We refer to the above matter and to your 19 November 2014 letter. We are, we should confess, shocked by your stance which borders on lack of candour and dishonesty. There is a memorandum of agreement that you signed. Did you disclose it to the court? We are interested in this because we saw the papers in court and the agreement was not part thereof. Can we hear from you urgently as we are determined to take this back to court and to show the court that it was, in our view, at least, misled.”

This letter provoked no response from the respondent hence the current application.

At the hearing of the application, counsel for the respondent attempted, in vain, to introduce cases not cited in the respondent's heads of argument on the basis that he was only briefed by Ndove, Museta and Partners the day before.

I disallowed it in terms of Rule 238(2c) because Ndove, Museta and Partners had been served with the notice of set down on 12 February 2015 but briefed counsel on the eleventh hour. No explanation for that was forthcoming.

As if that was not enough, counsel for the respondent went on to smuggle into the hearing new issues that appear not anywhere in the papers in an endeavour to persuade the court to dismiss the application.

I will proceed to deal with those technical issues that he raised first before adverting to those raised in the opposing affidavit and the heads of argument.

1. That the application is improperly before the court on account of the bar effected upon the applicant which bar was still in force

For this proposition, counsel for the respondent sounded reliance on Rule 233(3) of the High Court Rules which provides, that, a respondent who fails to file notice of opposition and opposing affidavit shall be barred as read with Rule 83(b) of the High Court Rules which provides, that, while a bar is operative, the party barred shall not be permitted to appear in any subsequent proceedings in the suit except for the purpose of applying for the removal of the bar.

With respect, that cannot be a correct exposition of the adjectival law regarding barring.

The correct meaning of Rule 83(b) of the High Court Rules presupposes that the bar would be the last procedural stage in the matter hence the party barred must apply for its removal first before being given any right of audience pertaining to other aspects of the suit.

In casu, the position is different in that while the applicant was barred for failure to file notice of opposition and opposing affidavit, the matter proceeded beyond the stage of barring and the respondent was granted a default court order.

It is this default judgment which the applicant is seeking to have rescinded, and, the applicant cannot be expected to first apply for the removal of the bar before she can be heard in the application of rescission of the default judgment.

It is sometimes jokingly said, that, it is ironic for the pot to call the kettle black.

The respondent is forgetting, that, in HC2869/13, the applicant obtained a default judgment after the former had been barred for failure to file appearance to defend but he applied for rescission of that judgment in HC548/14 without first applying for upliftment of bar!

In the event, the point raised holds no water.

HB58-15 : TRIANIC INVESTMENTS (PVT) LTD and MEYER DRAY vs NQOBILE KHUMALO and FRANCESCA MUFAMBI and OFFICER-IN-CHARGE (FILABUSI) ZIMBABWE REPUBLIC POLICE
Ruled By: MOYO J

This is an urgent application. The interim relief sought is couched in the following manner:“(1) That, execution of case number 2167/14 be and is hereby stayed pending the finalization of the application for rescission of judgment under HC141/15.(2) The respondents be and are hereby interdicted from interfering with the mine ...

CC05-21 : RITA MBATHA vs CONFEDERATION OF ZIMBABWE INDUSTRIES and THE SHERIFF OF ZIMBABWE
Ruled By: GARWE AJCC, GOWORA AJCC and PATEL AJCC

The matter was filed as an urgent court application and not an urgent chamber application.There is a difference in the manner of treatment of the two by the Registrar and the court itself.An urgent chamber application must be placed before the judge in chambers upon its filing; whereas, an urgent ...

HB12-21 : ADHESIVE PRODUCTS MANUFACTURERS (PVT) LTD vs PARKAM ENTERPRISES (PVT) LTD (Under provisional judicial management of N. Motsi) and ASSISTANT MASTER OF THE HIGH COURT N.O.
Ruled By: DUBE-BANDA J

This application was set down during vacation, i.e. on the Motion Court for 17 December 2020.

When this matter was called, Mr Moyo, counsel for the applicant rose and made a submission that the papers were in order, and he prayed for an order in terms of the draft order. Mr Mazibiko stood up and said he was representing the first respondent.

I noted that the first respondent was not served with the notice of set down. Mr Mazibuko might have only become aware of the application because the matter was called out in his presence in the Motion Court....,.

Mr. Mazibuko attacked the validity of the service of the application...,.

The applicant sued out this court application on 12 August 2020. A copy of the application was served by the Sheriff, on the first respondent, on 9 September 2020. Again, another copy of the application was served by a clerk in the employ of the applicant's legal practitioners on 8 October 2020.

There is proof that the Assistant Master of the High Court was served with a copy of the application.

The first respondent, on the papers before me, had not filed a notice of opposition....,.

I then took the view that the first respondent was barred for failure to file a notice of opposition and opposing affidavit within the time allowed by the rules of court, then, the application was not opposed.

The bar against the first respondent, in such circumstances, is automatic and brings about a default: Rule 233(3) of the High Court Rules 1971 provides that a respondent who has failed to file a notice of opposition and opposing affidavit in terms of subrule (1) shall be barred.

I took the view, that, in this application, Mr Mazibuko had no right of audience before court, because the first respondent was barred. The effect of a bar is that while it is in operation, the party barred shall not be permitted to appear personally, or through a legal practitioner, in any subsequent proceedings in the action or suit; except for the purpose of applying for the removal of the bar: see Rule 83(b) of the High Court Rules 1971.

It is clear from Rule 83(b) of the High Court Rules, that, once a party is barred, the matter is treated as unopposed unless the party so barred makes an application before that court for the upliftment of the bar.

It is also clear, that, in making the application to uplift the bar, the party that has been barred can either file a chamber application to uplift the bar, or, where this has not been done, the party can make an oral application at the hearing: see Grain Marketing Board v Muchero SC59-07.

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

IntroductionThis judgment is in respect of two matters, HC2128/21 and HC2166/21. The two matters were heard together because the substance of their complaints is the same.Both matters were brought by way of application. HC2128/21 was instituted as an urgent court application while HC2166/21 was brought as an urgent chamber application.Both ...

Introduction

This judgment is in respect of two matters, HC2128/21 and HC2166/21. The two matters were heard together because the substance of their complaints is the same.

Both matters were brought by way of application. HC2128/21 was instituted as an urgent court application while HC2166/21 was brought as an urgent chamber application.

Both applications are opposed by some of the respondents.

Opposing papers, answering affidavits, and heads of argument were filed following a case management meeting with the parties representatives at which the dates for filing the papers were set by consent.

In case no. HC2128/21 the applicant, a legal practitioner and director of the Zimbabwe Human Rights NGO Forum, cited the Minister of Justice, Legal and Parliamentary Affairs, and all the judges of the Constitutional Court and Supreme Court as well as some of the judges of the High Court, on the basis that they are acting judges of the Supreme Court or have been called upon to act as such.

The judges were cited in official capacities.

The Judicial Service Commission (JSC) was joined in the proceedings, at its instance, at the case management conference.

In HC2166/21 the respondents cited are the Judicial Service Commission (JSC), the Chief Justice of Zimbabwe, Honourable Luke Malaba N.O. and the Attorney General N.O. The applicants in that case are Young Lawyers Association of Zimbabwe and Frederick Charles Moses Mutanda, a liberation war veteran.

Background

On 7 May 2021, the Constitution of Zimbabwe Amendment (No.2) Act 2021 became law after being assented to by the President. The contentious aspects of the Amendment Act which are the subject of the instant applications are found in its section 13.

That section repealed section 186 of the Constitution 2013 and substituted it with a new section 186.

Upon gathering that section 186 of the Constitution, introduced by the Amendment, would apply to the second to eighteenth respondents (Luke Malaba, Elizabeth Gwaunza, Paddington Garwe, Rita Makarau, Anne-Mary Gowora, Ben Hlatshwayo, Bharat Patel, Antonia Guvava, Susan Mavangira, Chinembiri Energy Bhunu, Tendai Uchena, Nicholas Mathonsi, Charles Hungwe, Felistus Chatukuta, Alfas Chitakunye, Samuel Kudya and Lavender Makoni) the applicants instituted the two applications. The applicant in Case No. HC2128/21 seeks the following relief:

“IT IS DECLARED THAT:

1. In accordance with provisions of sections 186(1)(a) and 186(2) (of the Constitution of Zimbabwe 2013) in their original form and notwithstanding provisions of Constitutional Amendment Number 2, second to eighteenth respondents hold office they reach the age of seventy years, whereupon they must, by operation of law, retire.

2.The attempt to subvert the position encapsulated in the "original" section 186(1)(a) and 186(2) of the Constitution of Zimbabwe 2013 is contrary to law and therefore in breach of applicant's right to the protection of the law as set out in section 56(1) of the Constitution of Zimbabwe 2013.

IT IS CONSEQUENTLY ORDERED THAT:

3. LUKE MALABA, must or did, at midnight on 15 May 2021, cease to hold the office of CHIEF JUSTICE OF ZIMBABWE.

4. Any action, conduct, or deed of LUKE MALABA post the 15th of May 2021, purportedly as CHIEF JUSTICE OF ZIMBABWE, is null and void and of no effect.

5. ln accordance with the provisions of section 181 of the Constitution 2013, with effect from midnight on the 15th of May 2021, ELIZABETH GWAUNZA became/becomes the ACTING CHIEF JUSTICE OF ZIMBABWE until such a time as a substantive CHIEF JUSTICE OF ZIMBABWE is appointed.

6. In accordance with the provisions of section 181 of the Constitution 2013, with effect from midnight on the 15th of May 2021, PADDINGTON GARWE became/becomes the ACTING DEPUTY CHIEF JUSTICE OF ZIMBABWE until such a time as a substantive DEPUTY CHIEF JUSTICE OF ZIMBABWE is appointed.

7.There shall be no order as to costs."

During argument, counsel for the applicant abandoned the relief sought in paragraph 6 of the draft order and moved that the draft be amended accordingly.

We point out, that, notwithstanding the statement suggesting that what is being sought in paragraphs 3-7 of the draft order is consequential relief, the relief is clearly in the form of a declaration.

The second to eighteenth respondents did not file opposing papers.

They will therefore be taken not to have opposed the application: see Prosser & 35 Others v Ziscosteel Company Ltd HH201-93 and Panganai and 20 Others v Kadir & Sons (Pvt) Ltd HH26-95.

We do not accept the submission by their counsel that they oppose the application without filing opposing papers. This is because the directions issued on 12 May 2021 required the respondents to file opposing papers if they were opposing the application. Their grounds of opposition would have to be contained in the opposing affidavits.

ln Case No. HC2166/21 the applicant sought declaratory relief as follows:

“IT IS DECLARED THAT:

1. The first respondent (Judicial Service Commission) in failing to activate the provisions of section 180 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 and/or the provisions of section 180 of the Constitution of Zimbabwe as amended by Constitution of Zimbabwe Amendment (No.2) Act 2021 (No.2 of 2021) diligently and without delay violated section 324 of the Constitution of Zimbabwe as amended.

2. The second respondent (Chief Justice Luke Malaba) cannot, by virtue of section 328(7) of the Constitution of Zimbabwe, as amended, benefit from the term limit extension as introduced by an amendment of section 186 by the Constitution of Zimbabwe Amendment (No.2) Act 2021.

3. As a consequence of 2 above, the second respondent shall vacate office as the Chief Justice of Zimbabwe on (sic) midnight of 15 May 2021.

4. Any action, conduct, act, or deed of second respondent post the 15th of May 2021, purportedly as Chief Justice of Zimbabwe, is null and void and of no force or effect.

5. Any attempt to continue in office by second Respondent as Chief Justice of Zimbabwe and/or any continuation in office by second respondent, purportedly as Chief Justice of Zimbabwe, violates applicants right of access to a court of law established by law and applicants right to protection of the law in accordance with section 69(4) and section 56(1) of the Constitution 2013 as amended.

6. The second respondent, in any event, can no longer be a judge of the Constitutional Court for more than 15 years in violation of section 186(1) of the Constitution 2013 as amended.

7. ln the alternative, section 14 of the Constitution of Zimbabwe Amendment (No.2) Act 2021 (No.2 of 2021) is invalid for violating section 56(3) of the Constitution 2013 and is accordingly struck down.

8. There shall be no order as to costs."

The relief set out in the first paragraph was not persisted with as it was predicated upon a misreading of the Constitutional provisions pertaining to the appointment of a Chief Justice in Zimbabwe.

The applicants were under the mistaken belief that the first respondent, the Judicial Service Commission (JSC) had the mandate to call for candidates to participate in an interview.

Section 180 of the Constitution provides that the Chief Justice is appointed by the President after consultation with the Judicial Service Commission (JSC).

The relief sought in paragraphs 2, 3, 4 and 5 is the same one being sought by the applicant in HC2128/21 save for the reference to section 69(4) of the Constitution.

The relief sought in paragraph 6 of the draft order was abandoned during argument. Also, the applicant did not make any submissions in support of the alternative relief being sought in paragraph 7 of the draft order.

We take it that this relief, seeking the declaration of invalidity in respect of section 13 (which was incorrectly referred to as section 14) of the Constitution of Zimbabwe Amendment (No.2) Act 2021, is not being persisted with.

Preliminarv Issues and Obiections

The parties raised preliminary issues and objections:...,.

The Form Used in the Court Application

The respondents objection is that the court application filed on behalf of the applicant is not in Form 29, as is required by Rule 230 of the High Court Rules 1971. The respondents point out, that, the form filed does not alert the respondents to their procedural rights, such as the consequences of any failure to oppose the application.

The only missing portion of Form 29 is the one that warns the respondents, that, if they fail to file their opposing papers within the dies induciae, then, the matter would be dealt with as an unopposed application. In all the other respects, the Form complies with the requirements of Form 29. The dies induciae are not contained in the Form 29 itself but are stated in Rule 232.

The failure to state the period of ten days cannot, therefore, be a failure to comply with Form 29.

The other requirements of Form 29, like the need to file a notice of opposition and opposing affidavit; the need to serve opposing papers; and the entitlement to attach annexures to the opposing affidavits, are stated.

Given that this application was filed under a certificate of urgency, and with truncated periods for filing papers, and would be subject to the directions to be issued by the judges who would be seized with the case, we do not believe that it would have been up to the applicant to warn the respondents of the consequences of a failure to file opposing papers within the proposed dies induciae which were, after all, proposed by the applicants.

These would be subject to whatever directions that the court would give.

These directions were given with the consent of all the parties. No prejudice was occasioned by the failure to state the consequences of a failure to file the opposing affidavit within the period proposed. Those who intended to oppose the applications did file their opposing papers in accordance with the directions issued.

We take note of, and draw attention to, the provisions of section 85(3)(c) of the Constitution 2013, which state that:

“The court, while observing the rules of natural justice, is not unreasonably restricted by procedural technicalities."

Given that all the parties had the opportunity, by consent, to file the opposing and answering affidavits and heads of argument, the objection pertaining to the form used cannot be sustained having regard to the important constitutional questions which arise from the papers.

For these reasons, we dismiss the objection.

HMT45-19 : JAMES DRYNAN vs MAGISTRATE N. N KUTURE and ZIMBABWE NATIONAL ROADS ADMINISTRATION
Ruled By: MUZENDA J

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

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

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

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

BACKGROUND

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

HH636-15 : SALTLAKES HOLDINGS (PVT) LTD and TEMBA MLISWA vs CBZ BANK LIMITED and THE SHERIFF OF ZIMBABWE N.O.
Ruled By: CHIGUMBA J

This is an urgent chamber application for stay of execution pending the determination of an application for rescission of judgment.

The certificate of urgency was signed by Mr. Takunda Samuel Gumbo, who stated that the applicants property had been attached by the second respondent, at the instance of the first respondent, and that, the applicants stood to be irreparably prejudiced if the relief sought was not granted.

Goods were attached on 29 June 2015 and the application was filed a day later. Execution was due on the 2nd of July 2015.

The applicants had applied for the rescission of the default judgment obtained against them by the first respondent under case number HC6111/15.

It was submitted, that, a normal court application would render the outcome of the application for rescission of judgment irrelevant - a brutum fulmen.

Mr. George Marere, a director of the first applicant, deposed to the founding affidavit in which he averred the following:

(i) Firstly, on urgency: that the relief sought renders this matter 'inherently urgent'.

(ii) Execution of the writ would cause irreparable harm to the applicants.

(iii) There is no cause of action against the applicants in the main matter so the application for rescission of judgment has good prospects of success.

(iv) The first respondent fraudulently inflated the principal sum claimed and that is a triable issue which can only be resolved by the adducing of evidence.

(v) The first respondent is not entitled to the amount it is claiming, in that, it is charging usurious interest, amongst other things.

(vi) If the default judgment is executed, the applicants stand to lose their livelihood.

Mr. Thomas Tsvangirai Gambiza deposed to the opposing affidavit on behalf of the first respondent.

He averred, that, this matter was not urgent because no evidence was adduced to buttress the requirements of urgency. A matter is not rendered urgent simply because an application for rescission of judgment has been filed and is pending resolution.

He attached a letter dated 3 December 2014, addressed to the applicants legal practitioners, which was a warning to them that default judgment was about to be obtained because the appearance to defend was defective as it was filed out of time. He submitted, that, the application for rescission of judgment has no prospects of success.

The test for urgency is settled. It has been held that:

“Applications are frequently made for urgent relief. What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent, if, at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the Rules.”

See Kuvarega v Registrar General and Anor 1998 (1) ZLR 189.

It has also been held that:

“For a court to deal with a matter on an urgent basis, it must be satisfied of a number of important aspects. The court has laid down guidelines to be followed. If, by its nature, the circumstances are such that the matter cannot wait, in the sense that, if not dealt with immediately, irreparable prejudice will result, the court can be inclined to deal with it on an urgent basis. Further, it must be clear that the applicant did, on his own part, treat the matter as urgent. In other words, if the applicant does not act immediately and waits for doomsday to arrive, and does not give a reasonable explanation for that delay in taking action, he cannot expect to convince the court that the matter is indeed one that warrants to be dealt with on an urgent basis….,.”

See Mathias Madzivanzira & 2 Ors v Dexprint Investments (Private) Limited & Anor HH145-02; Church of the Province of Central Africa v Diocesan Trustees, Diocese of Harare 2010 (1) ZLR 364 (H); Williams v Kroutz Investments (Pvt) Ltd & Ors HB25-06; and Lucas Mafu & Ors v Solusi University HB53-07.

In my view, which I previously expressed in the case of Finwood Investments (Private) Limited & Anor v Tetrad Investment Bank Limited & Anor (an unreported HH-2014 case. See also Denenga v Ecobank HH177-14, in order for a matter to be deemed urgent, the following criteria, which have been established in terms of case law, must be met:

“A matter will be deemed urgent if:

(a) The matter cannot wait at the time when the need to act arises.

(b) Irreparable prejudice will result if the matter is not dealt with straight away without delay.

(c) There is prima facie evidence that the applicant treated the matter as urgent.

(d) Applicant gives a sensible, rational, and realistic explanation for any delay in taking action.

(e) There is no satisfactory alternative remedy.”

It is my view, that, the requirements of urgency were not met in this matter because the evidence supports the conclusion, that, the applicants failed to act when the need to act arose on 3 December 2014.

No explanation has been proffered at all as to why the applicants did not respond to the letter in which they were advised that their appearance to defend was defective. No explanation at all has been proffered as to why no application was made to uplift the automatic bar. We have not been favored with an explanation as to why the appearance to defend was filed outside the prescribed time period. We have not had the courtesy of being favored with a reasonable explanation as to why the notice of entry of appearance to defend was not served on the first respondent's legal practitioners of record within the prescribed time period.

The matter could not wait in December 2014 when the need to act arose.

In the absence of any explanation from the applicants, which is sensible, rational, or realistic, we conclude that there was deliberate, if not careless, abstention from acting when the need to act arose.

There is no evidence that the applicant acted when the need to act arose.

The urgency is self-created, and it is not the type of urgency envisioned by the Rules of this court which would operate in favor of allowing the applicants to shortchange other litigants by being allowed to jump the queue.

There is no prima facie evidence that the applicants treated the matter as urgent.

Prejudice which might be occasioned from the loss of money is not irreparable; the applicants can always be restituted. There is nothing 'inherently urgent' about these circumstances.

However, out of abundance of caution, I will address the merits of the matter.

HB29-17 : CLAUDIOUS MANAMELA and BRIGHTON NANGA and SAZIWE DUBE and ENOCK MARUME vs COMMISSIONER GENERAL ZIMBABWE REPUBLIC POLICE and OFFICER ON CHARGE NJUBE POLICE STATION and APOSTOLIC FAITH MISSION OF AFRICA
Ruled By: KAMOCHA J

Order 32 Rule 227(2)(b) of the rules of this court..., recites that:“(2) Every written application and notice of opposition shall —(a)…,.(b) Be signed by the applicant or respondent, as the case may be, or by his legal practitioner.”

HH125-17 : GRANDWELL HOLDINGS vs ZIMBABWE CONSOLIDATED DIAMOND COMPANY LTD and COMMISSIONER GENERAL, ZIMBABWE REPUBLIC POLICE and MBADA DIAMONDS (PVT) LTD
Ruled By: TSANGA J

In March 2016, the applicant, Grandwell Holdings (Grandwell), which owns a 50% shareholding in Mbada Diamonds [Private] Limited (Mbada), a joint venture initiative for diamond mining in Chiadzwa, obtained an interim order under HC1977/16 (HH193-16).

The other 50% shareholding in Mbada is owned by Marange Resources [Private] Limited (Marange), a Government-owned company.

According to the applicant, the elements of the order which was granted entitled its security personnel, and its entire chain, to return to Chiadzwa in order to safeguard its assets. Among these are said to be diamond ore and unprocessed diamonds that are kept in a vault. The diamond ore, which has been crushed, awaits removal of diamonds.

What is not in dispute is that from March last year, the applicant's security personnel went on site as per the order by the court in HC1977/16.

What has brought the applicants back to court, on an urgent basis, is its allegation that their security personnel at the diamond site have now been removed and that massive looting of their diamond ore has taken place at the instance of the first respondent, Zimbabwe Consolidated Diamond Company Limited (ZCDC), and continues to take place - aided and abetted by the Zimbabwe Republic Police (the police), as the second respondent.

The ore is said to being loaded without any recording or chain of command making it impossible to ascertain what is being taken.

With the core mingling of the diamond ore with that being mined by the Zimbabwe Consolidated Diamond Company Limited (ZCDC), the fear is that it would be impossible to tell which diamonds come from which ore and that therein lies the irreparable harm.

Mbada Diamonds [Private] Limited's security personnel have been sterilised by these actions of ZCDC.

To compound the problem, the Zimbabwe Consolidated Diamond Company Limited (ZCDC) is said to have brought onto the mining site security personnel previously hired by Mbada Diamonds [Private] Limited who know how to open the vault locks. As such, a real fear is that of the diamonds being stolen.

Further, if the ore and the diamonds are taken, an equally real fear is that the pending appeal before the Supreme Court would be rendered nugatory.

Having invested US$100m in Mbada Diamonds [Private] Limited, Grandwell Holdings says it has a real and substantial interest in protecting the interests of Mbada Diamonds and its own investment.

An attempt is said to have been made to file the application on behalf of Mbada Diamonds [Private] Limited, but, it had failed to secure the signatures of representatives on the Board of Mbada Diamonds who represent Marange Resources [Private] Limited.

Grandwell Holdings, being a 50% shareholder in Mbada Diamonds [Private] Limited had therefore brought a derivative action to enforce the rights of Mbada Diamonds and to seek a possessory remedy to restore possession.

The basis upon which Grandwell Holdings says that Mbada Diamonds [Private] Limited has been despoilt is paragraph 7 of the Order that was granted in HC1977/16. The paragraph was couched as follows:

“Paragraph 7

For the purposes of safeguarding assets, all of the fifth respondent's security personnel, with all their chain of command, shall be entitled, authorised, and empowered to remain at the fifth respondent's mining site at Chiadzwa Diamond Concession, as directed in paragraph 2 of the order of this court on 29 February 2016, until the resolution of this matter.”

The police, as second respondents, were said not to have appealed against the order, whilst the Zimbabwe Consolidated Diamond Company Limited (ZCDC) which had indeed appealed, had only done so against the finding that it had committed acts of spoliation.

The appeal was therefore said to be in part, leaving paragraph 7, in essence, extant.

In addition, the fact, that, there was no appeal against the presence of security personnel, as per the court order, which is said to be extant, was said to be supported by the fact, that, for almost a year Mbada Diamonds [Private] Limited's security personnel remained firmly on site even as the appeal was pending.

However, the Zimbabwe Consolidated Diamond Company Limited's position is that any removal that has taken place has been as per the court order and arises from the fact, that, the mining grants which were acknowledged to have expired in the said order of the court have not been renewed.

Spoliation per se is denied.

The police say they are there in terms of their constitutional mandate, in section 219 of the Constitution, to maintain peace and order and safeguard property. They have asserted, that, they cannot be interdicted from carrying out a lawful mandate. Furthermore, their standpoint is that no police report was made regarding any theft to diamonds.

They too, essentially, deny despoiling Mbada Diamonds [Private] Limited.

Points in Limine

Several technical points in limine were raised on behalf of the Zimbabwe Consolidated Diamond Company Limited (ZCDC) and the Commissioner of Police....,.

Counsel for the applicant also raised an objection on the failure by the counsel of the Commissioner of Police to serve his affidavit on time despite it having been attested to on 15 February well before the hearing which was on the 20th.

This was said to reinforce malafides on the part of the respondent and was said to justify a special order as to costs.

The explanation given by counsel for the second respondent, for the delay, in my view, raised sufficient doubt as to whether the delay was intentional or even malafide.

He had been out of town at the time that it had been filed.

HH363-13 : TAKANAYI MUREYI vs FORTUNE CHARUMBIRA
Ruled By: MTSHIYA J

This matter came before me as an urgent chamber application. I then set it down and heard the parties legal practitioners on 26 August 2013.

After hearing the legal practitioners, I dismissed the application with costs.

On 13 September 2013, the applicant's legal practitioners, Messrs Musendekwa and Mtisi, wrote to my clerk requesting that I give reasons for my decision to dismiss the application. These are they.

In his urgent application, filed on 21 August 2013, the applicant sought the following relief:

“FINAL ORDER SOUGHT

1. The respondent be and is hereby interdicted from uttering any hate language denouncing me and my political party.

2. The respondent be and is hereby ordered to stop forthwith engaging in any political activities in Masvingo West Constituency.

3. The respondent shall pay costs of suit on attorney-client scale.

INTERIM ORDER

1. That pending the determination of the final order the respondent is interdicted from -

(i) Coercing his subjects from attending political meetings or rallies.

(ii) Threatening his subjects with death or evictions for supporting applicant and MDC-T.

SERVICE OF THE INTERIM ORDER

The applicant's legal practitioners be and are hereby given leave to serve this provisional order on the respondent.”

The applicant herein was a candidate in the harmonized elections conducted on 31 July 2013. He contested and lost the Masvingo West National Assembly seat. He contested the seat on the ticket of the Movement for Democratic Change (MDC-T) led by the former Prime Minister, Morgan Tsvangirai.

In his founding affidavit, he states, that, he has since filed a petition with the Electoral Court under case number EC35/13 challenging the results of the election on the basis of “multiple electoral malpractices and irregularities which marred the election.”

The respondent, whom the applicant alleges to have “continued to conduct meetings and/or rallies in the Masvingo West Constituency denouncing him and his party MDC-T” is a traditional Chief in the Constituency....,.

There were no opposition papers filed, but, counsel for the respondent, submitted, that, the respondent denied the allegations of threats and intimidation directed against the applicant and other villagers.

HH233-17 : PETER VALENTINE vs MYDALE INTERNATIONAL MARKETING (PVT) LTD and GOLDEN RWAYI
Ruled By: CHITAKUNYE J

This is an application for the rescission of a default judgment entered by this court against the applicant on 14 March 2017 in HC669/16. That order was to the effect that:

“1. 1st respondent be sentenced to 24 months imprisonment of which 12 months is suspended for good behaviour, effective 12 months.

2. 1st respondent to pay costs on attorney and client scale.”

The application is opposed by the second respondent.

On the date of the hearing, the applicant raised a point in limine on the locus standi of the second respondent and the fact that the applicant had not been served personally with the application for contempt of court that led to the default judgment.

The second respondent's counsel, on the other hand, also raised a point in limine; alleging, that, as the applicant had not attached the default judgement in question, there was no cause of action.

After counsel had made their respective submissions, I indicated that they must proceed with arguments on the main matter and my decision of the points in limine will be in the main judgement....,.

The applicant and the second respondent are virtually involved in a battle for directorship of the first respondent. This battle has had its twists and turns all pointing to an acrimonious relationship between the two parties.

It is common cause, that, on 24 April 2013, the respondents obtained an order, by default, in HC2470/13, in which the applicant and Francis Katsande were interdicted from holding themselves out as representatives of the first respondent, Mydale International Marketing (Pvt) Ltd.

It is this order that the respondents, upon seeing that the applicant and Francis Katsande were not complying with, approached this court, on 25 January 2016, with an application for contempt of court. The respondents sought an order that:

“1. 1st and 2nd respondents be sentenced to 24 months imprisonment of which 12 months is suspended for good behaviour, effective 12 months each.

2. 1st and 2nd respondents pay costs on attorney and client scale.”

Prior to that matter, in HC1687/10, in an order dated 20 June 2012, the first respondent, represented by the said F Katsande, as instructed by the applicant, had obtained judgement in its favour. That order included, inter alia, a directive that Venturas and Samukange Legal Practitioners surrender a sum of $28,500 to the Registrar of the High Court who would, in turn, release the money to the applicant (1st respondent in this case) upon appropriate proof of the directorship of the applicant.

In that regard, clause 5 of HC1687/10 provided that:

“The Registrar of the High Court be and is hereby directed to release to the Applicant the said amount in paragraph 4 hereof upon appropriate proof of the directorship of the Applicant.”

After the 24 April 2013 judgement, F Katsande continued to represent the first respondent, as instructed by the applicant, in matters pertaining to the recovery of the $28,500.

In furtherance of the directive in clause 5, in HC1687/10, on 20 April 2016, the Registrar of the High Court wrote a letter to the Registrar of Companies seeking assistance in ascertaining the directors of the first respondent.

In his response of 28 April 2016, the Registrar of Companies indicated, that, according to his records the current directors of the first respondent (Mydale International Marketing P/L Company) were Alison Alan Leslie and Valentine Peter.

In this regard, the company's CR14 was duly attached.

As far as records at the company's registry are concerned, therefore, the applicant is a director of the first respondent.

The sum in question was subsequently released to F Katsande Legal Practitioners in their capacity as Mydale International Marketing P/L's legal practitioners.

It is in that regard, that, the applicant, though interdicted, continued to give instructions to Katsande & Partners to represent the first respondent in these courts.

In the meantime, on 25 January 2016, the second respondent filed the contempt of court application against the applicant and Francis Katsande.

In his application, as reflected in HC669/16, he sought civil imprisonment of the applicant and Francis Katsande in the terms alluded to above.

This is the application which was granted in default of the applicant on 14 March 2017.

Francis Katsande attended the hearing as a party to the matter and not representative of the applicant.

The applicant alleged, that, he received a notice of set down of the application for contempt through his gardener on the date the hearing was to take place.

He duly attended court – albeit, ill prepared.

The notice of set down showed, that, the hearing was to be before MANGOTA J. When he got to court, he found out that the matter was in fact to be heard before TAGU J.

When the contempt of court proceedings commenced in Court J, he raised issue with the manner in which service of the process had been done and that he had only learnt, at court, that it was an application for contempt of court.

He indicated that he needed time to respond to the application.

As he had not had time to prepare for the hearing, he sought the court's indulgence to enable him to respond to the application.

As a consequence, the court adjourned, and, to his understanding, court was to resume at 3:30pm in the same court room on the same date.

He thus went away and hurriedly prepared his notice of opposition and returned to the same courtroom at about 3:30pm.

He waited, and, as no court official came, he approached the presiding judge's clerk to inquire on the matter.

It was then that he was advised, that, the matter had in fact been heard in the judge's chambers, and, as he was in default, a default order for him to be imprisoned for 100 days had been granted.

He thereafter sought advice after which he filed this application for rescission and for leave to file a supplementary affidavit, if rescission is granted, within 12 days of the date of the order.

In order to avert incarceration, he also made an urgent chamber application for stay of execution of the default order.

That application was granted, hence, he was not arrested.

The second respondent opposed the application. He contended, that, the applicant was in wilful default and had no prospects of success on the main application....,.

The main issue before me is whether or not the default order of 14 March 2017 should be rescinded or not.

The onus is on the applicant to show that there is good and sufficient cause for this court to rescind that default order.

Rule 63 of the High Court Rules 1971 provides that:

“(1) A party against whom judgement has been given in default, whether under these rules or under any other law, may make a Court Application not later than one month after he has had knowledge of the judgement, for the judgement to be set aside.

(2) If the Court is satisfied, on an application in terms of sub rule (1,) that there is good and sufficient cause to do so, the court may set aside the judgement concerned and give leave to defendant to defend or to plaintiff to prosecute his action, on such terms as to costs and otherwise as the Court considers just.”

The onus is thus on the applicant to show that there is good and sufficient cause for the court to set aside the judgment.

In Stockil v Griffiths 1992 (1) ZLR 172 (S)…, GUBBAY CJ aptly noted that:

“The factors which a court will take into account in determining whether an applicant for rescission has discharged the onus of proving 'good and sufficient cause' as required to be shown by Rule 63 of the High Court of Zimbabwe Rules 1971, are well established. They have been discussed and applied in many decided cases in this country: see, for instance, Barclays Bank of Zimbabwe Ltd v CC International (Pvt) Ltd SC16-86 (not reported); Roland and Another v McDonnell 1986 (2) ZLR 216 (S) at 226E-H; Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) at 211C-F.

They are:

(i) The reasonableness of the applicant's explanation for the default;

(ii) The bona fides of the application to rescind the judgement; and

(iii) The bona fides of the defence on the merits of the case which carries some prospect of success.

These factors must be considered not only individually but in conjunction with one another and with the application as a whole.”

What emerges from the plethora of cases is that the phrase 'good and sufficient cause' has been interpreted to mean, that, for one to succeed in an application for rescission of judgement one must satisfy the following factors:

(i) The explanation for the reason for the default must be reasonable;

(ii) The bona fide of the application to rescind the judgement;

(iii) The bona fide of the defence on the merits of the case which has some prospects of success.

In discussing the above elements, and what weight to attach to each, CHINHENGO J aptly noted, in V Saitis & Company (Pvt) Ltd v Fenlake (Pvt) Ltd 2002 (1) ZLR 378 (H)…, that:

“Each element of the test of good and sufficient cause may be decisive on its own in any particular case but that does not mean that it becomes the only element or that the court has lost regard of the other elements of establishing good and sufficient cause.”

In Zimbabwe Banking Corp. Ltd v Masendeke 1995 (2) ZLR 400 (S) McNALLY JA had earlier opined that:

“Wilful default occurs when a party freely takes a decision to refrain from appearing with full knowledge of the service or set down of the matter.”

In Deweras Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corp Ltd 1998 (1) ZLR 368 (S)…, McNALLY JA pronounced as follows on 'good and sufficient cause' where the aspect of wilful default is raised:

“While it may generally be true to say that when there is wilful default there will usually not be good and sufficient cause, I believe we fetter our discretion improperly if we lay down a fixed rule, that, when there is wilful default there is no room for good and sufficient cause. I favour the definition of wilful default offered by KING J in Maujean t/a Audio Video Agencies v Standard Bank of South Africa Ltd 1994 (3) SA 801 (C) at 803H-I:

'More specifically, in the context of a default judgment 'wilful' connotes deliberateness in the sense of knowledge of the action and of its consequences, i.e its legal consequences; and a conscious and freely taken decision to refrain from giving notice of intention to defend, whatever the motivation for this conduct might be.'

See also Morkel v ABSA Bank Ltd & Anor 1996 (1) SA 899 (C).

But, it is precisely in the 'motivation' mentioned in that passage that one might find 'good and sufficient cause.'

I respectfully agree with the dicta of INNES J in the oft-cited case of Cairns Executors v Goarn 1912 AD 181 at 186 passim. In particular, His Lordship said:

'It would be quite impossible to frame an exhaustive definition of what would constitute sufficient cause to justify the grant of indulgence. Any attempt to do so would merely hamper the exercise of a discretion which the Rules have purposely made very extensive and which it is highly desirable not to abridge.'”

In casu, it is common cause that the applicant had attended the morning session. It was the afternoon session that he did not attend.

His explanation was that he understood the time for resumption as 3:30pm and he indeed came at that time. The second respondent, on the other hand, contended that the time for resumption was 2:30pm.

He did not, however, dispute that the applicant in fact came at 3:30pm.

It is my view, that, it is not uncommon for parties to a matter to misunderstand the time a matter has been stood down to.

In as far as the efforts the applicant said he took upon returning to court cannot be refuted, it is only fair and just that he be given a benefit of the doubt and accept that he may indeed have mistaken the time for 3:30pm hence his attendance at that time.

I am thus of the view, that, his explanation, in the circumstances of this case, moreso as a self actor at the time, is reasonable.

It cannot be said with any seriousness, that, the applicant deliberately absconded from attending court when he knew his liberty was at stake. The probability is that he misunderstood the time for resumption.

Had it been a deliberate default, he surely would not have turned up at 3:30pm, when, in all probability, he would have been handing himself for imprisonment.

In fact, the impression one gets from the litany of cases to which the parties have appeared before this court over is that the applicant was intent on fighting for what he believed to be his rights and those of the first respondent.

The next issue is that of prospects of success.

The applicant alleged, that, the contempt of court application was not served on him at all. What he received was a notice of set down.

In such circumstances, he ought to have been personally served with the application itself.

It is trite that a party to contempt proceedings must be personally served.

In Mydale International (Pvt) Ltd v Dr Rob Kelly HH04-10 GOWORA J…, aptly stated that:

“It would seem to have escaped the attention of the learned counsel for the applicant that a party against whom an order for contempt is sought must not only be personally cited but that process for such citation must be personally served on the respondent.”

In casu, the applicant alleged that he was not served with the application.

The second respondent, in disputing this, stated, that, the applicant was served with the application in the same way he was served with the Notice of Set Down - which was via his gardener.

By implication, the second respondent conceded that no personal service was effected....,.

In as far as it was not disputed that the applicant only learnt, at court, that the matter he had been invited to court for was one of contempt of court, it follows, that, he was not given adequate time to prepare his response.

He asserted, that, he only had about four (4) hours before returning to court to respond to the application.

In the absence of evidence that he had been properly served with the application in good time in terms of the Rules, I am inclined to grant him leave to file a supplementary affidavit as the one he filed was prepared hurriedly to meet the courts timeline of resuming the hearing in the afternoon of the same day....,.

1....,.

2. The applicant is hereby granted leave to file a supplementary affidavit in HC669/16 within 12 days of the date of this order.

HH969-15 : IAN MASAMBA and IGNATIUS MASAMBA vs DIRECTOR – ZIMSEC
Ruled By: MUNANGATI-MANONGWA J

The first and second plaintiffs in this matter are son and father, respectively, and are self-actors.The plaintiffs issued summons against the defendant claiming damages for what they termed “professional negligence for mental suffering” in the sum of US$1,200,000. In the very summons, the first plaintiff went on to claim against ...

Appealed
HB03-14 : SIBONGILE NDLOVU vs GUARDFORCE INVESTMENTS (PVT) LTD and REGISTRAR OF DEEDS (NO) and DEPUTY SHERIFF (NO)
Ruled By: MAKONESE J

This is a Chamber Application in terms of Rule 236(3)(b) of the High Court Rules 1971.

On 20 March 2013, the applicant obtained default judgment against the first respondent, ordering it to effect a reversal of transfer in respect of a property known as subdivision B of Lot B Upper Rangemore (measuring 8,1191 hectares) within 30 days from the date of the order. In the event that the first respondent failed to effect the transfer within the stated 30 day period, the third respondent was empowered to sign all relevant documents to enable transfer to be effected.

The first respondent was not satisfied with the judgment and applied for its rescission on 3 May 2013.

The applicant filed an opposing affidavit on 9 May 2013.

The first respondent did not take further steps to have the matter finalised, and, after a period of two months, the applicant took a decision to file a Chamber Application For Dismissal For Want of Prosecution in terms of Order 236(3)(b) of the High Court Rules.

The first respondent has filed a Notice of Opposition and opposing affidavit.

The first respondent accepts, that, in terms of Order 236(3)(b) of the High Court Rules, steps ought to have been taken by the first respondent to set down the application for rescission of judgment within one month of the notice of opposition and opposing affidavit being filed.

The first respondent's legal practitioner explains, that, it was his intention to brief counsel to attend to the matter, but did not have the time to complete the brief due to pressing commitments. He took a decision to seek the assistance of a professional assistance to handle the matter. The first respondent's legal practitioner states, that, he sent a text message to his legal secretary in the following terms:

“In the Guardforce matter, just in case the other side apply to dismiss the rescission application for want of prosecution, ask Mr Collier to brief counsel to draw heads and file.”

It would seem, that, the brief was not undertaken by the first respondent's legal practitioner, Mr Collier, who took leave on 8 July 2013.

The first respondent's explanation is that, at all material times, its intention was to set the matter down for hearing, but, due to pressure of work, this was not done.

It is apparent, however, that, even after a lapse of eight (8) months, no answering affidavit nor heads of argument had been filed.

The primary issue for determination by this court is simply whether the explanation given by the first respondent is candid and satisfactory.

It is clear, that, there was negligence on the part of the first respondent in prosecuting its case.

In the case of Beitbridge RDC v Russel Construction 1998 (2) ZLR 190 (S) SANDURA JA stated that:

“Whilst it is true that the fault was largely that of the former and present legal practitioners who failed to act and to take appropriate action to protect the appellant's interests, that fact, in my view, does not assist the appellant. This court has, on a number of occasions, clearly stated, that, non-compliance with or a wilful disdain of the rules of the court by a party's legal practitioner should be treated as non-compliance or a wilful disdain by the party himself.”

See also S v Mcnab 1986 (2) ZLR 280 (S) and Masama v Borehole Drilling 1993 (1) ZLR 11.

The excuse proffered by the first respondent's legal practitioner is that he was too busy and delegated the matter to a junior legal practitioner by sending a text message to his legal secretary.

This, in my view, is not a reasonable and satisfactory explanation.

I take this approach for the reason, that, if legal practitioners were to claim, that, because they were too busy and so they failed to act on their matters, the justice delivery system would be severely compromised.

Legal practitioners must always be aware that they operate within time limits and in terms of laid down procedures. The purpose of such time limits is for litigants to know when they are expected to act. Where the legal practitioner fails to act, he has a duty to the court to give a credible and convincing explanation why he failed to act timeously.

It is clear, that, the first respondent's legal practitioner, in delegating an important matter to a junior legal practitioner, was taking a casual approach to the matter.

He did not speak to the junior legal practitioner, but, transmitted a text message to a secretary, who was then expected to relay the information to the junior lawyer.

It is my firm view, that, time has come for legal practitioners to adhere to the time limits set in the Rules. The approach ought to be, that, the court may only excuse failure to act where the explanation given is credible.

A litigant who chooses a legal practitioner to act on their behalf expects the legal practitioner to adhere to time limits set in the Rules.

In the present matter, the legal practitioner did not give due attention to the case, conscious of the risk he was exposing the first respondent to.

The courts should decline to exercise judicial discretion where the explanation proffered is not credible, even where the fault of the legal practitioner will have adverse consequences on a litigant.

In the case of Ndebele v Ncube 1992 (1) ZLR 288, McNALLY JA stated…, that:

“The time has come to remind the legal profession of the old adage, vigilantibus nondormlentibus jura subveniunt, roughly translated, the law will help the vigilant and not the sluggard.

In casu, in spite of the lengthy explanation by the first respondent's legal counsel, I am not persuaded that a reasonable and credible explanation has been tendered to tilt the balance in favour of the first respondent.

I would, accordingly, grant the application for dismissal of the first respondent's claims for want of prosecution.

The first respondent is to bear the costs of suit.

Appealed
HB42-14 : MINISTER OF HIGHER & TERTIARY EDUCATION vs BMA FASTENERS (PVT) LTD and CHRISTOPHER MASWI N.O. (as Provisional Judicial Manager of BMA FASTENERS) and MASTER OF THE HIGH COURT OF ZIMBABWE N.O.
Ruled By: MAKONESE J

This will be the fourth judgment in a series of applications that have been filed by the parties to this dispute.

The Chamber Application before the court has been styled as a Chamber Application or leave to “litigate” and “institute” action against the first respondent, a company under judicial management.

Whilst on the merits the application may have succeeded, the respondents have raised a number of procedural matters which require consideration by the court before going into the merits of the application.

The applicant prays for an order couched in the following terms:

“(i) That Applicant be granted leave to execute against first respondent's attached 800 harrows.

(ii) That the Applicant be granted leave to institute legal proceedings against 1st Respondent for any further outstanding levies due in terms of section 3 of the Manpower Planning and Development (Levy) Notice, Statutory Instrument 74/99 and any such surcharge imposed from the period starting from August 2011 to the date of this order.

(iii) That 1st Respondent and 2nd Respondent, Mr. Christopher Masani, pay costs of this application jointly and severally each paying the other to be absolved on an attorney and client scale.”

In case number HC3078/11, the applicant sued and obtained judgment against BMA Fasteners for US$9,350=13. The judgment was obtained on 12 January 2012 and a Writ of Execution was issued out of this court on 14 March 2012.

The Deputy Sheriff subsequently placed under judicial attachment harrows belonging to BMA Fasteners.

Efforts to execute the writ were fruitless as the respondents made various applications to stay the sale in execution.

The first respondent has now obtained an order of this court placing it under judicial management. Paragraph (c) of the Order provides as follows:

“All actions and applications and executions of all writs, summons, and other process against the respondent company shall be stayed and not proceeded without the leave of the Honourable Court.”

The application before the court is for leave of this court to execute the Writ issued by this court and to institute further proceedings to recover all due and outstanding levies.

The applicant contends, that, the provisional judicial manager is abusing the due process of the court to frustrate execution of the writs.

The respondents have raised the following points in limine:

The Form of the Application

It is trite law, that, a Chamber Application must comply with the rules governing Chamber applications. Chamber Applications are provided for by Order 32 Rule 241 of the High Court Rules.

Rule 241(2) of the High Court Rules states, that, where a Chamber Application is to be served on an interested party, it should be in Form No.29 with appropriate modificiations.

In terms of Rule 232 of the High Court Rules, a respondent shall be entitled to not less than ten (10) days to file opposing affidavits. In urgent matters, the court may specify a shorter period than ten (10) days.

Counsel for the applicant contends, that, the proviso in Rule 241(2) of the High Court Rules, that the urgent application “…, shall be in Form No.29 with appropriate modifications” meant that the applicant could vary the period of 10 days to 5 days.

With respect, there is no order of this court granting leave to the applicant leave to give the respondents five (5) days within which to respond.

Counsel for the applicant was constrained to accept, that, once a matter is not treated as an Urgent Chamber Application, then, the normal rules regarding time limits given to the respondents ought to have applied.

The applicant's attempt to vary the period to five (5) days was clearly wrong and fatal to the application.

The provisions of Rule 232 of the High Court Rules apply in that this matter, once it is accepted that this is not an Urgent Chamber Application, a respondent shall be entitled to not less than ten (10) days to file opposing affidavits.

The applicant cannot abridge the time limits within which the respondent is entitled to file the opposing papers without the leave of the court.

See the case of Zimbabwe Open University v Mazambwe 2009 (1) ZLR 101.

The applicant has not adopted the proper form of the application, and, consequently, the court cannot condone departure from the Rules.

In any event, the applicant has not made an application to depart from the Rules.

The application is therefore defective in that regard - and is fatally so.

SC32-22 : CUTHBERT DUBE vs PREMIER MEDICAL INVESTMENTS (PVT) LTD and PREMIER SERVICE MEDICAL AID SOCIETY
Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

On 7 July 2021, the High Court (“the court a quo”) dismissed an application brought against the respondents by the appellant for want of prosecution with costs. It also ordered the appellant to pay the costs of the application brought by the first and second respondents for the dismissal of ...

THE FACTS

Both respondents are incorporated in terms of the laws of this country and are sister companies. The second respondent is a medical aid society while the first respondent is its investment vehicle.

For quite some time, the appellant was the second respondent's Chief Executive Officer, a position he vacated prior to the commencement of the proceedings forming the basis of this appeal.

On 27 March 2018, the appellant brought a court application in the court a quo for a declaratory order to the effect that he was the holder of ten million shares, representing a 20% shareholding in the first respondent. He also sought a declaration that the conduct of the first and second respondents, of regarding him as not being a shareholder, was unlawful, null and void and of no force or effect. He also sought costs on the scale of legal practitioner and client.

The basis of the application, as stated in the founding affidavit, was that the appellant had purchased the ten million shares of the first respondent on 29 July 2010. He attached a copy of a share certificate issued to him and signed by two directors of the first respondent whose names are not disclosed in the certificate.

While alleging that he paid for the shares, he did not produce proof of such payment.

According to the appellant, what prompted him to make the application for a declaratory order was the first and second respondents refusal to acknowledge him as the holder of the shares in question. This followed a meeting of the second respondent held on 21 May 2015 which resolved not to ratify the award of the 20% shareholding in the first respondent to the appellant.

On 11 April 2018, the respondents filed opposition to the application for the declaratory orders.

The opposing affidavit was deposed to by Jeremiah Bvirindi, the chairman of the Board of Directors of the second respondent, who denied that the appellant was ever a shareholder of the first respondent.

The respondents also took the view that there were disputes of fact and put in issue the circumstances under which the appellant had purported to acquire the shares at a time he was the Chief Executive Officer of the second respondent.

According to the respondents, the appellant obtained the share certificate he relied on “either illegally, fraudulently, or without following due process” as set out in the first respondent's Regulations.

Significantly, the respondents confirmed that the appellant had deposited a cheque of Z$6,585,672,555=75 into the second respondent's bank account.

The respondents view was that a mere deposition of the above amount in the Bank account was improper and motivated by fraudulent intent on the part of the appellant.

In any event, so the respondents argued, while the payment for the 15% shares (not 20%), should have been made on 25 April 2007, it was only made on 19 March 2008 when the amount had been ravaged by inflation rendering it inequitable to the value of the shares.

It was also the respondents case that the purported sale of the 15% shares and a donation of 5% shares to the appellant was done without the authority of the Board and/or the shareholders. The appellant took advantage of his position as the Chief Executive Officer to influence the sale to their prejudice.

It is common cause that the appellant did not act upon the notice of opposition filed by the respondents within the time allowed by the rules of court or at all. This prompted the respondents to file the initial application for dismissal of the application for want of prosecution under case number HC11129/18.

The application was opposed by the appellant and subsequently set down for hearing in March 2019.

Again, it is common cause that on the date of the hearing, following negotiations between the parties, the respondents withdrew the initial application for dismissal for want of prosecution. This was on the understanding that the appellant would purge his default by filing the outstanding pleadings in the main application and prosecute it.

He did not.

PROCEEDINGS IN THE COURT A QUO

When the appellant did not honour his undertaking to prosecute the main matter for about five (5) months, the respondents filed the second application for dismissal for want of prosecution in terms of Rule 236(3)(b) of the High Court Rules 1971 on 2 August 2019.

It is that application which forms the basis of the present appeal.

In the founding affidavit, again deposed to by the chairman of the Board of Directors of the second respondent, on behalf of both of them, the respondents stated, that, following their filing of their opposition on 11 April 2018, the appellant had neither filed an answering affidavit nor set the matter down for hearing.

The respondents chronicled the appellant's tardiness in the handling of his application which saw him failing to file heads of argument even in the initial application for dismissal.

They stated, that, even after being accorded the second chance to redeem himself, the appellant had snubbed the opportunity and done absolutely nothing until a second application for dismissal was lodged.

After stating that they had elected to file the application for dismissal for want of prosecution instead of setting the main matter down for hearing, as they are entitled to do in terms of the Rule, the respondents ended there.

They urged the court to grant the order for dismissal on that basis alone.

In opposing the application, the appellant took issue with the authority of the deponent of the founding affidavit to represent the respondents.

He contended that one person could not lawfully represent two separate artificial persons and that the resolutions relied upon by the respondents were invalid by reason that the signatories names were not declared.

His only explanation for the delay in prosecuting the application was that, to the knowledge of the respondents, he had “not been feeling well for a long time” which affected his ability to give instructions to his legal practitioners to file an answering affidavit.

The appellant insisted, that, he owns 20% shares in the first respondent and should be allowed to pursue his claim, otherwise his property rights would be infringed.

It is also important to note that the appellant made two assertions which have a bearing on the resolution of this appeal:

In paragraph 6 of his opposing affidavit, in response to the accusation that he had not filed an answering affidavit or taken steps to set the matter down, the appellant stated that:

“6. Ad para 8-9

These averments have been overtaken by events. On 19 August 2019, I filed my answering affidavit and heads of argument in HC2821/18. What remains is for the applicants herein, as respondents therein, to file their heads of argument.”

Regarding the question whether the respondents had made a good case for the relief sought, the appellant stated, at paragraph 8:

“8. Ad para 11-14

8.1. I do not accept that the applicants have met (sic) the case for the order they are seeking.

8.2. The founding affidavit does not advance any grounds for the court to exercise its discretion in favour of dismissal instead of determining the main matter on the merits. The applicants just want a dismissal because they are asking for it.”

The court a quo found that it was both convenient and logical for the deponent of the founding affidavit to represent the respondents as he had knowledge of the shareholding structure of the first respondent. In the court a quo's view a company has the liberty to authorize anyone it deems fit and proper to represent it in litigation.

It found that the delay in responding to the pleadings was evidence of the appellant's non-committal to finalize the matter, because, if it had been of importance to him, the appellant would have pursued the matter with diligence.

In the court a quo's view, the unsubstantiated claims of illness by the appellants were not an acceptable reason for the delay.

It granted the application for dismissal for want of prosecution.

PROCEEDINGS BEFORE THIS COURT

The appellant was aggrieved. He launched this appeal on the following grounds:

1. The court a quo misdirected itself and erred in law in not finding, in limine, that the respondents were not properly before it for the reason that the deponent to the respondents founding affidavit had no lawful authority to institute the proceedings on their behalf.

2. In dismissing the appellant's application under HC2821/18 for want of prosecution, the court a quo improperly exercised its discretion in that it only took into account one factor, namely, the reasonableness of the explanation for inaction, instead of also taking into account other mandatory factors such as possible prejudice to the respondents appellant's (sic), prospects of success on the merits, and the balance of convenience.

3. As an alternative to 2, the court a quo improperly exercised its discretion and erred in law in dismissing the appellant's application under HC2821/18 for want of prosecution without an analysis of, and application of its mind to all the mandatory factors to be taken into account before such dismissal.

4. With the court a quo having refused to take into account the established fact that the appellant's application under HC2821/18 had been ready for set down for a considerable period, its decision to dismiss the application for want of prosecution was so unreasonable that no reasonable court, applying its mind to the circumstances of the case, could ever have made such a decision.

5. The court a quo's finding that the appellant's explanation for the delay in prosecuting his application was inexcusable, was so unreasonable that no reasonable court, applying its mind to the circumstances of the case, could ever have made such a decision.

I mention, in passing, that, some of the five (5) grounds of appeal are repetitive and inconcise. They do not meet the threshold set by Rule 44.

As the issue was not raised with the parties at the hearing of the appeal, it shall not be considered in the determination of the appeal.

ISSUE FOR DETERMINATION

From the grounds of appeal and submissions made by counsel only one issue commends itself for determination in this appeal: it is whether the court a quo properly exercised its discretion in granting the application for dismissal for want of prosecution.

SUBMISSIONS ON APPEAL

At the commencement of the hearing, counsel for the appellant submitted, that, while not abandoning grounds of appeal 1, 4 and 5 for which he stood by heads of argument filed for the appellant, he would motivate the appeal on grounds of appeal 2 and 3. In his view, those two (2) grounds are dispositive of the appeal. In fact, ground 3 is in the alternative to ground 2.

Counsel for the appellant submitted, that, there are three (3) factors which are relevant in considering an application for dismissal of an application for want of prosecution in terms of the old Rule 236(3) or (4) of the High Court Rules. These are:

(a) The length of the delay and the explanation for it;

(b) The prospects of success on the merits; and

(c) The balance of convenience and the possible prejudice to the applicant caused by the delay.

He relied on the authority of Guardforce Investments (Pvt) Ltd v Ndlovu & Ors SC24-16.

It was submitted, that, when deciding the matter, the court a quo only considered the reasonableness of the explanation for the delay. Upon concluding that it was insufficient, the court a quo promptly granted the application without more. It did not consider the remaining two (2) relevant factors to be taken into account in exercising its discretion. For that reason, the judgment of the court a quo should be interfered with.

Per contra, counsel for the respondents submitted, that, grounds of appeal 2 and 3 raise brand new points of law not placed before the court a quo, without justification.

She submitted, that, even the case law authority relied upon by the appellant was not placed before the court a quo. Counsel suggested, that, the appellant cannot be allowed to do so as those points were not pleaded.

Counsel for the respondents submitted further, that, even were one to consider the two (2) factors to be taken into account by the court before exercising its discretion to grant or dismiss an application for dismissal for want of prosecution, the onus to set those out is on the appellant, who was the respondent a quo. It is him, according to counsel, who should show the prospects of success of his application and the absence of prejudice over and above providing a reasonable explanation for the delay.

Counsel for the respondents also made the point, that, the filing of an answering affidavit and heads of argument in the main case, by the appellant, was of no moment. He was precluded from doing so upon receiving the application for dismissal for want of prosecution.

In making that submission, counsel relied on the authority of the High Court judgment in Melgund Trading (Pvt) Ltd v Chinyama & Partners 2016 (2) ZLR 547 (H).

In Melgund Trading (Pvt) Ltd v Chinyama & Partners 2016 (2) ZLR 547 (H) the High Court remarked…,;

“The respondent suggests, that, because it filed an answering affidavit and caused the application for upliftment of bar before this application was dealt with, this application has been overtaken by events.

Rule 236(3) does not state so.

It is not a defence for a respondent who has been served with an application for dismissal for want of prosecution to plead that he subsequently made arrangements for the application to be set down.

Once a litigant has been served with an application for dismissal in terms of Rule 236(3), he cannot file any other process in pursuance of the proceedings under scrutiny. The application for dismissal has to be dealt with first. Once an application for dismissal for want of prosecution has been filed, it must be determined on the merits unless it is withdrawn or the bar is uplifted by consent.

If the courts were to allow a respondent who has failed to comply with the requirements of Rule 236(3)(b), to jump and set down the application complained against to defeat the application for dismissal, this would be tantamount to the courts allowing respondents to pull the carpet from under the feet of applicants.

The action that a respondent takes after an application for dismissal has been made is of no consequence. The only option open to him is to oppose the application for dismissal and let it be dealt with on the merits.”

Unfortunately, the High Court did not cite any authority for the above proposition.

In fact, one of the authorities cited in that judgment is Ndlovu v Guardforce Investments (Pvt) Ltd & Ors 2014 (1) ZLR 25 (H), a judgment which is of no consequence.

More importantly, as shall be seen shortly, the pronouncement by the High Court cited above, sought to overturn the judgment of the Supreme Court in Guardforce Investments (Pvt) Ltd v Ndlovu & Ors SC24-16.

ANALYSIS

Rule 236(3) of the High Court Rules (now Rule 59(15) of the High Court Rules 2021) does not set out the factors to be considered by a judge or the court on an application for dismissal for want of prosecution.

CHIDYAUSIKU CJ, however, set out those factors in the case of Guardforce Investments (Pvt) Ltd v Ndlovu & Ors SC24-16, at pp5-6, as:

“The discretion to dismiss a matter for want of prosecution is a judicial discretion, to be exercised taking the following factors into consideration -

(a) The length of the delay and the explanation thereof;

(b) The prospects of success on the merits;

(c) The balance of convenience, and the possible prejudice to the applicant caused by the other party's failure to prosecute its case on time.

Dealing with the delay and the explanation for the delay, there is no doubt that there was a delay in this matter.

However, the delay and the explanation thereof in this matter, alone, cannot form the basis for the dismissal. The other factors should also have been considered in determining whether or not to dismiss the application for rescission for want of prosecution. This is a serious misdirection.”…,.

Later in that page, going on to p7, the learned Chief Justice went on to state:

“There is no rule of law which barred the appellant from proceeding with its application for rescission of the default judgment despite the making of the application for dismissal for want of prosecution.

In fact, under Rule 236 of the High Court Rules, when faced with an application for dismissal of an application, the High Court is enjoined to consider options other than dismissing the application for want of prosecution.

The fact that the appellant sat around and did not attend to the setting down of the application for rescission of the default judgment is a factor that weighs against the appellant.

If anything, the chamber application ought to have triggered the appellant to attend to the finalization of the application for rescission of the default judgment. The only way the appellant could have shown that it was serious about the application for rescission was to proceed to have the matter set down after it was served with the chamber application for dismissal for want of prosecution.”…,.

See also Mashangwa & Anor v Makandiwa & Ors SC95-21.

In my view, this completely resolves the present appeal.

The jurisprudence coming out of this Court is completely at variance with that of the High Court.

The judgment in Guardforce Investments (Pvt) Ltd v Ndlovu & Ors SC24-16 was delivered on 31 May 2016. The one in Melgund Trading (Pvt) Ltd v Chinyama & Partners 2016 (2) ZLR 547 (H) was only delivered on 16 November 2016 - at a time when this Court had already set out the law.

The High Court was bound, by virtue of the stare decisis principle, to follow the judgment of this Court in Guardforce Investments (Pvt) Ltd v Ndlovu & Ors SC24-16.

See Commercial Farmers Union v Mhuriro & Ors 2000 (2) ZLR 405 (S)…,.

By the same token, the court a quo in the present case was bound to follow the requirements set out in Guardforce Investments (Pvt) Ltd v Ndlovu & Ors SC24-16 when it exercised its discretion to dismiss the appellant's application for want of prosecution.

It did not.

Instead, the court a quo only considered the extent of the delay and the reasonableness of the explanation for it. It ignored the prospects of success on the merits and the balance of convenience or prejudice.

By the authority of Guardforce Investments (Pvt) Ltd v Ndlovu & Ors SC24-16, this was a misdirection.

This Court is, therefore, at large on appeal.

Earlier on in this judgment, I made reference to portions of the appellant's opposing affidavit which unequivocally drew the court a quo's attention to the factors that it was required to take into account in exercising its discretion.

He made it clear, that, the inquiry on the delay was not the only factor. He also drew attention to the filing of the answering affidavit and heads of argument as measures taken to prosecute the application.

All that was overlooked by the court a quo.

This was a misdirection.

Apart from that, the appellant maintained his claim for ownership of the 20% shareholding in the first respondent.

There was evidence that a payment had been made for the shares. Indeed, both the payment and the existence of the agreement were acknowledged by the respondents.

The interests of justice require that the propriety of the appellant's claim be interrogated fully and that a decision on the merits be made. This is not a case for closing the door on the appellant merely on the basis of the inordinate delay in prosecuting the application.

In my view, the court a quo did not take into account relevant considerations in exercising its discretion to allow the application. This gives this Court a foothold to interfere with that discretion: see Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S).

The appeal has merit and ought to succeed.

Regarding the issue of costs, both a quo and before this Court, there is no explanation why the authorities upon which the matter has now been resolved were not brought to the attention of the court a quo.

This is moreso regard being had that the principles set out in Guardforce Investments (Pvt) Ltd v Ndlovu & Ors SC24-16 were captured in the opposing affidavit.

To that extent, counsel for the appellant conceded that their case could have been presented more elegantly.

In the exercise of the court's discretion on costs, the appellant will not be awarded the costs a quo.

The costs on appeal are well deserved and there is no reason why they should not follow the result.

I say so because the respondents persisted with their contestation of the appeal without regard to the authorities set out in the appellant's heads of argument filed as far back as 26 November 2021.

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

1. The appeal succeeds with costs.

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

“The application is hereby dismissed with each party to bear its own costs.”

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.

ISSUES

Although the appellants raised five grounds in their notice of appeal, the matter, in my view, stands to be disposed on three issues viz;

1. Whether or not the court a quo erred in failing to dismiss the respondents application for want of prosecution.

2. Whether or not the court a quo reviewed and contradicted an extant earlier judgment of a judge of parallel jurisdiction thereby violating the principles of res judicata and estoppel.

3. Whether or not the court a quo erred and misdirected itself in determining the matter regardless of the existence of alleged conflicting material averments which could not be resolved on affidavit.

APPLICATION OF THE LAW TO THE FACTS

1. Whether or not the court a quo erred in failing to dismiss the respondents application for want of prosecution

In their first ground of appeal, the appellants take issue with the fact that the court a quo erred and misdirected itself in that having found that the respondents had, by their admission, failed to prosecute their cause within the prescribed period, it ought to have dismissed it for want of prosecution, as no special circumstances existed for it to exercise its discretion in their favour.

The law on applications for dismissal for want of prosecution is settled.

In Guardforce Investments (Private) Limited v Ndlovu & Others SC24-16 the court said:

“The respondent applied to have the appellant's case dismissed for want of prosecution in terms of Rule 236(3) of the High Court Rules, which provides as follows:

'236 Set down of Applications

(3) Where the respondent has filed a notice of opposition and opposing affidavit, and, within one month thereafter, the applicant has neither filed an answering affidavit nor set matter down for hearing, the respondent, on notice to the applicant, may either –

(i) Set the matter down for hearing in terms of Rule 223; or

(ii) Make a chamber application to dismiss the matter for want of prosecution; and the judge may order the matter to be dismissed with costs or make such other order on such terms as he thinks fit.'

The discretion to dismiss a matter for want of prosecution is a judicial discretion, to be exercised taking the following factors into consideration –

(a) The length of the delay and the explanation thereof;

(b) The prospects of success on the merits;

(c) The balance of convenience and the possible prejudice to the applicant caused by the other party's failure to prosecute its case on time.”

For the appellants to establish that the court a quo misdirected itself in the manner alleged, they have to satisfy this Court that they met all the requirements as set out in Guardforce Investments (Private) Limited v Ndlovu & Others SC24-16.

In casu, the appellants did not satisfy these requirements.

They did not relate at all to the prospects of success they had in the main matter. They did not show that they suffered prejudice due to the respondents non-timeous action.

The grant or refusal of an application for dismissal for want of prosecution is an exercise of discretion. Rule 236(3) of the High Court Rules clearly bestowed discretion on the court a quo on whether to grant or dismiss the application.

In casu, the court a quo exercised its discretion not to dismiss the main matter because the respondents had filed their answering affidavit, heads of argument, and applied for set down of the matter following service of the application for dismissal upon them.

In this light, the court a quo found that despite the delay in filing their answering affidavit and heads of argument, there was no utter disregard of the rules of the court. It further found, that, the explanation given by the respondents, in the circumstances, was reasonable, and, that Rule 236 of the High Court Rules, was not mandatory.

It gave the court a discretion which must be exercised in the interest of justice and finality to litigation.

For this Court to vacate the court a quo's exercise of discretion, certain requirements have to be met.

The laid down test has to be pleaded and met.

It has to be shown that the court a quo, in its exercise of discretion, was motivated by ulterior motives and not the dispensation of justice. It has to be shown, that, the exercise of discretion in the manner the court a quo did was actuated by malice, bias, improper motives, and any other considerations extraneous to the court's conduct prescribed by the law: see Barros & Anor v Chimphonda 1999 (1) ZLR 58 (SC); Barclays Bank of Zimbabwe Limited v Mahachi SC62-04; Robinson v Minister of Lands and Anor 1994 (2) ZLR 171 (S)…,.

In my view, the appellants have not met the test.

They have not shown that the exercise of the court's discretion was motivated by ulterior motives. They have further not proved that there was malice and any other extraneous consideration that influenced the court a quo to exercise its discretion in the manner it did.

There being no proper basis laid out for interfering with the decision of the court a quo, this ground of appeal has no merit and ought to be dismissed.

HH471-17 : HARARE SPORTS CLUB vs ZIMBABWE CRICKET and COMMERCIAL ARBITRATION CENTRE
Ruled By: MANGOTA J

The second respondent, who was cited for purposes of the applicant's intended order, did not oppose the application.

View Appeal
HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR
Ruled By: TAGU J

The two matters were consolidated to avoid conflicting judgments as the two matters involving the same parties, and same issues, were ready for arguments at almost the same time before different judges.

At the hearing of the two matters, counsels for the parties did not make oral submissions but agreed that the two matters be decided on the papers filed of record.

The following is the background to the two matters.

Upenyu and Blessing Mashangwa (the Mashangwas) are husband and wife respectively. They are members of the United Family International Church (UFIC).

Emmanuel and Ruth Makandiwa (the Makandiwas) are also husband and wife respectively. The Makandiwas are leaders (prophet and prophetess respectively) of United Family International Church (UFIC).

In case HC7214/18 the Mashangwas filed summons in this Honourable Court containing six claims against the Makandiwas and the United Family International Church for a total sum of US$6,535,000 to be paid jointly and severally, the one paying the other to be absolved.

In their declaration, the Mashangwas claimed that:

(1) In the year 2012, at Harare, and in church, the Makandiwas fraudulently and misrepresented to the Mashangwas that anyone with a bank debt or loan was to be cancelled as it was the season of miraculous cancellation of debts after the Makandiwas were informed, privately, that the Mashangwas had an existing ZB Bank loan to the tune of US$500,000.

As a result of the misrepresentation, the Mashangwas were induced not to pay the ZB Bank loan, and, in the result, the Bank executed on the Mashangwas property being 14 Edinburgh Road, Harare for $500,000 thereby losing their house valued at $700,000.

(2) In the same year, the Makandiwas misrepresented, in church, that one Tichaona Mawere was a great lawyer who would not lose a case, when, in fact, Mr Tichaona Mawere was an unregistered legal practitioner.

Acting on the misrepresentation, the Mashangwas handed over their McDowell file to the said Tichaona Mawere for a claim of US$1,698,000 and expended in fees an amount of US$37,000. Tichaona Mawere then produced fake court orders and the Mashangwas lost a total sum of US$1,735,000.

(3) In the years ranging from 2014 to 2016, the Mashangwas were called on stage, in church, by the Makandiwas and were announced as a successful example in their Ministry (UFIC).

Acting on this misrepresentation, the Mashangwas made various direct contributions to the Makandiwas and the church money amounting to US$1,100,000.

(4) The Mashangwas were also paraded in church, on the stage, by the Makandiwas, as the chosen people by God to have succeeded in business.

As a result of the misrepresentation, the Mashangwas marketed the Makandiwas prophecies to the tune of US$2,000,000.

(5) and (6) In claims (5) and (6), they alleged that the Makandiwas defamed them thereby destroying their reputation and causing monetary loss to the tune of USD500,000.

Having been served with the summons, the Makandiwas entered appearance to defend the claims.

They proceeded to address a letter, in terms of Rule 140 of the High Court Rules 1971, to the Mashangwas pointing out that the claims were vague and embarrassing and that they did not disclose a cause of action, and asked whether they were suing in contract or delict; and, as regards claim (5) and (6) asked whether the claims were in defamation or injuria.

The Mashangwas did not respond to the letter, causing the Makandiwas to file an exception on 30 August 2017 to the Mashangwas pleadings in terms of Order 21 Rule 137(1)(b) in case HC7214/18.

The exception was heard on 6 November 2017 by MANGOTA J in respect of all the six claims but was dismissed on 12 January 2018 and the Mashangwas were ordered to amend their declaration in respect of claims (5) and (6), and, the Makandiwas to plead, and thereafter, the matter was to proceed in terms of the High Court Rules 1971.

However, after the dismissal of their exception, the Makandiwas filed another court application on 23 February 2018 for the dismissal of the Mashangwas claims in terms of Order 11 Rule 75(1) of the High Court Rules 1971 in HC1774/18.

The Mashangwas, having felt that the Makandiwas had neglected or failed to timeously prosecute the court application which they instituted under case HC1774/18, filed a chamber application for dismissal on 8 May 2018 under HC4197/18.

Both applications were ready for hearing at almost the same time, before different judges, hence the consolidation of the two applications.

ISSUES FOR DETERMINATION

This court is therefore being asked to decide two issues simultaneously:

(i) The first issue is whether the Makandiwas application should be dismissed for want of prosecution as prayed for by the Mashangwas in HC4197/18.

In the event of this court granting the relief asked by the Mashangwas, this would be the end of the matters and this court will not deal with the Makandiwas application.

(ii) However, in the event that this court dismisses the Mashangwas application for dismissal, the court will proceed to deal with the second issue pertaining to the Makandiwas application for dismissal of the Mashangwas claims in the main case under HC7214/17.

SHOULD THE APPLICATION FOR DISMISSAL FOR WANT OF PROSECUTION BE GRANTED

This application is being made by the Mashangwas in terms of Order 32 Rule 236(3)(b) of the High Court Rules 1971. The Rule provides that:

“Where the respondent has filed a notice of opposition and an opposing affidavit, and, within one month thereafter, the applicant has neither filed an answering affidavit nor set the matter down for hearing, the respondent, on notice to the applicant, may either -

(a) Set the matter down for hearing in terms of Rule 223; or

(b) Make a chamber application to dismiss the matter for want of prosecution, and, the judge may order the matter to be dismissed with costs or make such other order on such terms as he thinks fit.”

In this case, the respondents filed a court application on 23 February 2018 in terms of Rule 75(1) of the High Court Rules 1971 under case number HC1774/18 and it was served on the applicants on the same day.

On 9 March 2018, the applicants filed opposing papers and they were served upon the respondents on 13 March 2018.

The respondents were supposed to file an answering affidavit within a month, that is, by 14 April 2018 or set down the matter for hearing. The respondents only filed their answering affidavit on 22 May 2018 - more than a month later.

The respondents opposed the application for dismissal for want of prosecution.

However, the respondents conceded that they did not file their answering affidavit and heads of argument within thirty (30) days prescribed in Rule 238 of the High Court Rules.

Their argument being that their counsel was served with the Notice of Opposition on 14 March 2018, towards the end of term, and was heavily committed during that period. They further submitted, that, the period for filing answering affidavit and heads of argument coincided with the Easter break, and this court was on vacation.

However, they argued that Rule 236(3)(b) of the High Court Rules does not create a bar, and, that they have since filed their answering affidavit, heads of argument, and a Notice of Set Down - a clear sign that they intended to prosecute their case.

Be that as it may, they argued that dismissal for want of prosecution is a discretionary matter hence they were not barred.

They said this is founded on the public policy of requirement for finality to litigation.

The court is therefore not obligated to dismiss the principal case simply because Rule 236(3)(b) of the High Court Rules has been invoked. The applicant must plead facts that show where the interests of justice lie. The applicant must show demonstrable proof that the respondents intended to abandon the principal application.

In the face of evidence that the respondents intend to prosecute the matter, and have indeed prosecuted the matter by filling their answering affidavit, filed heads of argument, applied for set down, and the record has been paginated, the application must be dismissed.

Then, the court is enjoined to make any other order it deems fit in the interest of justice, which is to allow the principal application to be heard on the merits.

The test applicable in a matter of this nature is well established.

In African Star Diamonds (Pvt) Ltd v Muchanja & Ors HH313-17 it was held:

“Rule 236 is one of the remedies available to a litigant who wishes to overcome an abuse of court process by an un-interested applicant. The position of the law is settled. In Scotfin v Mtetwa 2001 (1) ZLR 249 at 250D-E CHINHENGO J stated as follows -

'Rule 236, as amended by section 7 of the High Court (Amendment) Rules 2000 (No.35), was intended to ensure the expeditious prosecution of matters in the High Court. The Rule was deliberately designed to ensure, that, the court may dismiss an application if the principal litigant does not prosecute the case with due expedition. The Rule gives the judge a discretion either to dismiss the matter or to make such other order as he may consider to be appropriate in the circumstances.

I think, however, the overriding consideration for the judge is to exercise his or her discretion in such a manner as would give effect to the intention of the law maker. The primary intention of the law-maker, as I have stated to be, is to ensure that matters brought to the court are dealt with, with due expedition.

The order in which the judge may issue, if it is one of dismissal, is in effect a default judgment.

But, in considering the application, the judge can only make an order, other than a dismissal, if the respondent has opposed the application and shown good cause why the application should not be dismissed.'

See also Munyikwa v Jiri HH338-15; Moon v Moon HB94-05; and Ndlovu v Chigaazira HB104-05.”

Further, in Melgund Trading (Private) Limited v Chinyama & Partners HH703-16 it was held as follows;

“An application for dismissal of prosecution brought in terms of Rule 236(3)(b) assists in putting to an end to proceedings that are instituted and not attentively followed up.

There is a huge backlog of applications in the court. The situation is compounded by litigants who file applications and neglect to pursue them. Rule 236 is a suitable mechanism to assist in case management.

A litigant who has failed to pursue his application is required to explain his failure to prosecute his application timeously.

The approach of the court in applications for dismissal for want of prosecution was stated in Karengwa v Mpofu HB628-15 as follows:

'The court usually looks at the reasons for failing to act timeously. Where failure to act is the result of an utter disregard of the rules of the court and prescribed time limits, the courts are extremely reluctant to give any further indulgence to the defaulting party.'

See also Sibongile Ndlovu v Guardforce Investments (Pvt) Ltd HB03-14.

An applicant bringing an application for dismissal for want of prosecution is required to show that there has been a failure to take necessary steps to bring a claim to finality in terms of the rules, and, secondly, that the delay is inexcusable or that there is no honest, satisfactory, and reasonable explanation for the delay.

The burden on the respondent is simply to explain the delay.

The conduct of the respondent is also paramount. The court is required to consider all relevant and surrounding circumstances of the case. The court must explore the period of the delay complained against the reasons and explanation for it, and consider the prejudice, if any, caused to the other party.”

In casu, and in my view, after considering the circumstances of this matter, particularly that the respondents have since filed their answering affidavit, heads of argument, and applied for set down, which caused both applications to be set down at almost the same time before different judges, it is clear that the respondents intended to prosecute their case.

The respondents merely delayed to file their answering affidavit and heads of argument. There was no utter disregard of the rules of court. The reasons for the delay is reasonable. This is not a case where the respondents did nothing at all until the application for dismissal was made.

While the court accepts that indeed the time limits were not met, Rule 236 of the High Court Rules is not mandatory. It gives the court a discretion which must be exercised in the interest of justice and finality to litigation.

Rule 236(3)(b) of the High Court Rules says, and I repeat:

“Where the respondent has filed a notice of opposition and an opposing affidavit, and, within one month thereafter, the applicant has neither filed an answering affidavit nor set the matter down for hearing, the respondent, on notice to the applicant, may either -

(a) Set the matter down for hearing in terms of Rule 223; or

(b) Make a chamber application to dismiss the matter for want of prosecution, and the judge may order the matter to be dismissed with costs or make other order on such terms as he thinks fit.”…,.

The applicants in this application had two options, either to set the matter down themselves for hearing, in terms of Rule 223 of the High Court Rules, or to apply for discharge. They decided to apply for discharge.

On the other hand, the judge is given a discretion to either order a discharge or make other order on such terms as he thinks fit.

This court, therefore, after considering the circumstances of the case, the reasons for the delay, and the fact that both applications are ready for argument at almost the same time, decided to order that the application for dismissal for want of prosecution be dismissed and that the main matter be heard on the merits.

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

This is an Urgent Chamber Application wherein the applicant seeks the following relief:“1. The 2nd respondent and all persons claiming occupation through it shall remove or cause the removal of themselves and all such persons occupying the mining claim, being Valentine 56 held under registration number GA 2786.2. Failing such ...

SC31-15 : WECTOR ENTERPRISES (PVT) LTD vs LUXOR (PVT) LTD
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and MAVANGIRA AJA

On 25 February 2014, the respondent (Luxor), as the plaintiff, issued, simultaneously, a summons and a declaration claiming, inter alia:

“(a) Cancellation of the lease agreement between the Plaintiffs and the Defendants on the 31st January 2005;

(b) Payment of the sum of US$11,127=55 being arrear rentals, operational costs, and rates as at 25 January 2013, for Shop 1 Luxor House, Fife Street/9th Avenue, Bulawayo;

(c) Eviction of the Defendant(s) from Shop 1 Luxor House, Fife Street/9thAvenue, Bulawayo together with all those who claim title through him;

(d) Payment of holding over damages of US$1,000 per month calculated from 1st January 2013 to the date of eviction and/or cancellation of the lease agreement;

(e) Costs of suit on a client Attorney (sic) scale.”

On 11 March 2013, the summons were served on the appellants by the Deputy Sheriff, Bulawayo who explained to them the exigencies thereof.

No appearance to defend was entered.

On 4 April 2013, Luxor applied for default judgment. The matter was duly set down for hearing on the roll of unopposed matters, and, on 11 April 2013, default judgment was granted by the High Court as prayed, save that costs were granted on the ordinary scale.

On 22 April 2013, a Writ of Execution and Ejectment was served on the appellants by the Deputy Sheriff. The date of ejectment was set for the 25 April 2013.

Certain items of movable property, as well as a motor vehicle, were attached and removed by the Deputy Sheriff pending their sale in execution on 9 May 2013.

On 29 April 2013, the appellants were evicted in terms of the writ.

On 7 May 2013, the appellants filed a court application for rescission of the default judgment.

They based their application on Order 49 Rule 449(1)(a) of the High Court Rules 1971.

They alleged, that, the default judgment was erroneously granted in that it disclosed no cause of action. In particular, they alleged that there was no allegation in the declaration of a breach of the lease agreement nor was there a computation as to how the amount claimed was arrived at.

The application was opposed by Luxor, whose opposing affidavit was deposed to by one Simon Moyo, a partner in Knight Frank estate agents, who are the letting agents of Luxor.

He averred that he was authorized to depose to the affidavit on behalf of Luxor and could swear to the facts.

He denied that the judgment was erroneously given and alleged that not only were the averments in the summons and declaration sufficient to sustain the cause of action alleged, which was a failure to pay rent and operational costs, but, that documentary evidence in the form of a schedule of payments by the appellants, deeds of suretyship signed by the second and third appellants, and a schedule showing the balance outstanding as at January 25, 2013 were produced to the Court which granted the application for default judgment.

The appellants, it was alleged, had followed the wrong procedure and should have brought their application in terms of Rule 63 of the High Court Rules.

Their failure to take action after service of the summons, coupled with their inaction even when they were served with the writ of execution and eventually evicted on 29 April 2013, was a clear indication that they had no defence to Luxor's claim.

In their answering affidavit, the appellants alleged that the opposing affidavit of Simon Moyo was not properly before the court in that he had no authority (in the form of a resolution by Luxor) to act on behalf of Luxor.

Further, there was no need for the appellants to enter appearance to defend, because, upon receipt of the summons, they approached Luxor and the parties reached an agreement that the court process be stayed as an agreement to settle the rental arrears was reached.

One notes, in passing, that the fact that the rentals were in arrears was accepted by the appellants.

The learned Judge found no merit in the application and dismissed it with costs, hence this appeal.

THE APPEAL

Two main points were taken by the appellants. They were:

(i) That, the court a quo erred in dismissing the application when there was clearly no cause of action; and

(ii) Secondly, that the deponent of Luxor's opposing affidavit had no authority to represent the respondent since not only had no resolution of the directors of Luxor been produced authorizing him to do so, but, in addition, one Mr Stirling, whom the appellants alleged to be a director of Luxor, had instructed Knight Frank not to proceed with the matter against the appellants.

The second point was taken in limine and I deal with it first.

THE AUTHORITY OF MR MOYO

It was submitted, on behalf of Luxor, that, Mr Moyo was not the litigant but had merely deposed to the affidavit, in terms of the High Court Rules, as one who could attest to the facts since he had represented Knight Frank as agent for Luxor in most of the dealings with the appellants in connection with the lease.

In my view, the criticism leveled against the respondent in this regard is misplaced.

The appellants served the court application on the legal practitioners for Luxor. The legal practitioners in question had been acting on behalf of Luxor in the past proceedings between the parties.

It is trite that a company, being an artificial person, must be represented by a legal practitioner.

All that Luxor was called upon to do, in response to the application filed by the applicants, was to file a notice of opposition in Form No.29A together with one or more opposing affidavits: see Rule 233(1) of the High Court Rules.

This is what it did.

The notice of opposition was filed by its legal practitioners.

The appellants cannot blow hot and cold. By serving the application on Luxor's legal practitioners, they have accepted that Luxor is represented by its legal practitioners in the litigation.

They cannot now deny that Luxor is the party litigating.

The affidavit by Simon Moyo is merely an accompanying affidavit filed in terms of Rule 233 of the High Court Rules.

SC41-21 : YSMIN MAHOMMED vs TAWURAYI KASHIRI
Ruled By: KUDYA AJA

This is a chamber application for condonation of the late filing of an appeal and extension of time within which to appeal launched in terms of Rule 43(1) of the Supreme Court Rules 2018.The application is opposed.BACKGROUND FACTSThe applicant and the respondent are joint owners of an immovable property, Stand ...

BACKGROUND FACTS

The applicant and the respondent are joint owners of an immovable property, Stand 24 Philadelphia Township of Philadelphia, Harare held under Deed of Transfer 4986/02.

On 16 February 2017, they executed a Deed of Settlement on the disposal of the immovable property in question, whose terms were incorporated in consent orders granted by the High Court in other cases that were pending between them.

The parties agreed to engage two estate agents, Guest and Tanner and Dawn Properties, to value the immovable property. The mean of the two valuations was to be the value of the property. If, however, any party was dissatisfied with any of the two valuations, the parties legal practitioners would jointly choose a third estate agent, whose valuation would be final.

Thereafter, the applicant had the right to buy out the respondent's one-half share in the property within six (6) months of receipt of the acceptable valuation, failing which the respondent had the same right to buy out the applicant's one half share within a further period of six (6) months.

In the event that the parties failed to exercise their respective rights, the property was to be sold by private treaty, with the parties sharing the net proceeds equally.

The parties jointly instructed the two estate agents to value the property. Dawn Properties valued it at US$250,000 while Guest and Tanner valued it at US$292,000.

The two valuators submitted their respective reports on 28 March 2017 and 30 March 2017 to the parties respective legal practitioners.

The applicant's legal practitioners failed to appreciate the valuation methodology applied by Guest and Tanner. Consequently, on 26 May 2017, they sought the estate agent's comments on these aspects without copying their correspondence to the respondent's legal practitioners.

In response, the estate agent cryptically asserted that the valuation amount constituted a typographical error and proceeded to rectify the earlier amount by substituting it with the lower figure of US$192,000.

The respondent's legal practitioners were oblivious of the communication between the applicant's legal practitioners and Guest and Tanner. They simply filed away the original valuation report without much thought.

The respondent's legal practitioners forwarded the corrected Guest and Tanner valuation report to the applicant's legal practitioners. Apparently, the respondent's legal practitioners, again, simply filed away the rectified report.

Thereafter, the respondent's legal practitioners computed the value of the property at US$221,000 being the mean of the lower Guest and Tanner figure and the Dawn Properties figure.

The respondent exercised his right of first refusal, and, on the directions of the applicant's legal practitioners, deposited, within the prescribed payment period, on 5 January 2018, the one-half share due to the applicant in the sum of US$110,500 into her nominated bank account and transmitted proof of payment.

Thereafter, he sought transfer of the property into his name, but, the applicant refused to co-operate.

He applied to the High Court for an order compelling the applicant to make transfer. She contested it on the basis, that, the respondent's legal practitioners were guilty of material fraudulent non-disclosure of failing to copy the inquiry letter to Guest and Tanner to her legal practitioners, which induced her to accept payment of US$110,500.

She averred that the material non-disclosure influenced Guest and Tanner to reduce the value of the property to her prejudice.

The court a quo accepted that the respondent's legal practitioners had acted unethically, but, dismissed the objection and granted the application for the transfer of the applicant's one-half share in the property to the respondent.

The applicant appealed to this Court on two grounds of appeal in case number SC909/2018. The appeal was heard on both the preliminary point raised by the respondent and on the merits, on 30 June 2019.

The preliminary point raised was that the two grounds of appeal were prolix and argumentative.

Judgment was reserved and handed down on 24 October 2019, as Judgment No. SC85-19. The appeal was determined on the preliminary point.

The two grounds of appeal were found to be “prolix and argumentative.” The appeal was accordingly struck off the roll on the basis that the Notice of Appeal was fatally defective.

On 13 November 2019, the applicant's legal practitioners of record wrote to the Registrar of this Court seeking the correction of the judgment in terms of Rule 73 of the Supreme Court Rules as read with Rule 449(1)(b) of the High Court Rules.

Out of an abundance of caution, the applicant filed the present application on 21 November 2019.

It was opposed on 28 November 2019.

The answering affidavit was irregularly filed on 6 December 2019, outside the period prescribed in Rule 43(5) of the Supreme Court Rules 2018.

The matter was set down in chambers on 20 December 2019 and removed from the roll for the reason, that, the letter of 13 November 2013, seeking correction of the judgment of this Court, constituted lis pendens.

The applicant managed to save her application by withdrawing the letter of 13 November 2019, on 27 January 2020.

Consequently, the respondent filed his heads of argument on 30 January 2020, while the applicant did so on 4 February 2020.

The application is silent on the events between that date and 2 October 2020, when the matter was placed before me - without the heads of argument.

I set it down for hearing on 9 October 2020, on which date the parties handed copies of their heads of argument from the bar.

At the hearing, the respondent raised five preliminary points. These concerned:

(i) The use of the wrong form;
(ii) The lack of authority by the deponent to the founding affidavit to depose to it;
(iii) Lis pendens;
(iv) Defective grounds of appeal in the draft Notice of Appeal; and
(v) An invalid draft order.

I heard argument on both the preliminary points and on the merits.

I indicated to the parties that I would not proceed to determine the matter on the merits if I upheld any of the preliminary points raised, and reserved judgment.

I deal with each preliminary point in turn.

THE PRELIMINARY POINTS

THE USE OF THE WRONG FORM

The respondent contended, that, in the absence of a specified form prescribed for use by the Rules of this Court in respect of the present application, the applicant should, in terms of Rule 73 of the Supreme Court Rules, have resorted to Rule 241 of the High Court Rules, which prescribes the use of Form 29, with appropriate modifications, in a chamber application such as this one.

Rule 73 of the Supreme Court Rules provides that:

“In any matter not dealt in these rules, the practice and procedure of the Supreme Court shall, subject to any direction to the contrary by the court or a judge, follow as closely as may be, the practice and procedure of the High Court in terms of the High Court Act [Chapter 7:06] and the High Court Rules.”

And Rule 241 of the High Court Rules states that:

“241 Form of chamber applications

(1) A chamber application shall be made by means of an entry in the chamber book and shall be accompanied by Form 29B duly completed, and, except as is provided in subrule (2), shall be supported by one or more affidavits setting out the facts upon which the applicant relies. Provided that, where a chamber application is to be served on an interested party, it shall be in Form No.29 with appropriate modifications.”

Counsel for the respondent submitted, that, the form used in the present application was defective for want of compliance with Form 29 with appropriate modifications.

Counsel for the appellant made the contrary submission, that, the form used by the applicant fully complied with the requirements stipulated in the proviso to Rule 241 of the High Court Rules.

While counsel for the respondent conceded, that, the format used by the applicant is the one that has always been used before this Court in this kind of application, he contended that the format fell short of the requirements prescribed by MAFUSIRE J in Base Mineral Zimbabwe (Pvt) Ltd & Anor v Chiroswa Minerals (Pvt) Ltd & Ors HH559-14 at p7-8 of the cyclostyled judgment. The learned judge said that:

“The proviso to Rule 241(1) permits the modification of Form 29 where the chamber application has to be served. What would constitute 'appropriate modifications' is not stated.

Why then does it become important that every time a chamber application has to be served, the applicant should abandon Form 29B and switch over to Form 29?

In my view, once the chamber application becomes one that must be served, then, the respondent is entitled to a period within which to file opposing papers.

The 'appropriate modifications' would include, in my view, a fusion of the contents of Form 29 and those of Form 29B. In other words, it becomes a hybrid, containing both '…, the plethora of procedural rights…,' of Form No. 29, including the dies induciae, and a summary of the grounds of application of Form No. 29B.

The difference between Form 29B and Form 29 is that the former specially prescribes the insertion of a summary of the grounds of the application ex facie the application and predicates the application on a draft order. The latter, unlike the former, is a 'Take Notice' form predicated upon a draft order specifically premised on a 'plethora of procedural rights' (see Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H)) alerting a respondent of the time frame within which to take action and the appropriate documentation.

The distinction between the main provision and the proviso in Rule 241(1) is that the main provision supplies the documentation that is missing ex facie Form 29B while the proviso supplies that information ex facie Form 29.

It is significant, that, the proviso designates the use of Form 29 and not Form 29B in peremptory language for chamber applications to be served on interested parties.

In my view, this specific designation 'ousts' the inclusion of 'the summary of the grounds of the application' required on the face of Form 29B.”

The appropriate modifications contemplated in the proviso have nothing to do with the ex facie contents required by Form 29B but have everything to do with the different time frames or dies induciae within which the notices of opposition are required to be filed.

The appropriate modifications are not a requirement for applications predicated on Form 29. Their absence or omission would not render the application for condonation and extension of time within which to file an appeal defective, let alone fatally defective.

I am satisfied that while the notice does not comply with the requirements of Form 29B, it faithfully follows the prescript of Form 29 and fully complies with the practice generally prevailing in this Court.

The first preliminary point is dismissed for lack of merit.

HH73-15 : FUNGAI NHAU vs MEMORY KAFE and CHIPO NKUDZI
Ruled By: MATHONSI J

The two defendants have taken a “plea in bar/abatement” against a claim brought against them by the plaintiff seeking an order for their eviction from Stand 11347 Joseph Msika Housing Co-operative, Hatcliffe, Harare and costs of suit.

In his declaration, the plaintiff pleaded, in relevant part, as follows:

“4. In or about November 2006, plaintiff was allocated Stand No.11347 Joseph Msika Housing Co-operative, Hatcliffe by Joseph Msika Co-operative Ltd, a member of the Harare North Housing Co-operatives Union Ltd.

5. Plaintiff duly paid for the land, road, sewer, and water reticulation services in respect of the allocated Stand.

6. The plaintiff, after being authorised by the Co-operative, proceeded to effect improvements on the property by excavating the foundation, concrete footing, and erected the foundation and a four (4) roomed house.

7. Sometime in September 2012, the defendants unlawfully and violently evicted the plaintiff, together with his family, and took occupation of the property together with the improvements.

8. The Stand is registered in the name of the plaintiff in the City of Harare and Joseph Msika Housing Co-operative Ltd records.

9. There being no contractual relationship between defendants and either the plaintiff or Joseph Msika Housing Co-operative Ltd or Harare North Housing Co-operative Union, the plaintiff therefore seeks an order divesting the defendants of possession and use of the property and vesting the same with the plaintiff.

10. The defendants have, despite demand by the plaintiff, refused and/or neglected to vacate the property.”

The defendants, as I have stated, have taken issue with that claim, and, in their long winding “special plea in bar/abatement” filed in terms of Rule 137 of the High Court of Zimbabwe Rules 1971, the defendants aver that the plaintiff does not have locus standi in judicio to bring the action for eviction as the land in question is un-alienated State land and only the State can institute such eviction action.

As the plaintiff is not an agent of the State, has no real rights over the land, and the purported sale of the land to him by the co-operative is a nullity since there is no Deed of Transfer that was executed, the plaintiff cannot sue for eviction.

The second basis for the bar is that the plaintiff has not exhausted domestic remedies available to him given that there is a dispute between Joseph Msika Housing Co-operative, which sold the land to the plaintiff, and another co-operative, Casa Nova Housing Co-operative which allocated the same piece of land to the second defendant.

In light of that, there being a dispute between two registered co-operatives, it should be resolved in terms of sections 115 and 116 of the Co-operative Societies Act [Chapter 24:05].

Thirdly, the defendants averred, that, the order that the plaintiff seeks is impossible of performance by reason that Stand 11347 from which eviction is sought does not exist given that the land in question is yet to be surveyed in terms of the Land Survey Act [Chapter 20:12].

I must hasten to point out, that, after exchanging a few “war stories” with counsel for the defendants he quickly abandoned the third leg of the plea in bar having rightly accepted its lack of merit.

It is in respect of the first two objections that I must decide....,.

Counsel for the plaintiff took issue with the set down of the matter arguing, that, there was no compliance with Rule 138 of the High Court Rules dealing with such matters. Counsel for the defendants disputed that in correspondence between the parties, maintaining that he was entitled to his day in court.

Having come to the conclusion that the special plea is without merit, it may be unnecessary to deal with the issue of set down.

Suffice to say though, that, the matter was not set down in accordance with the Rules. In fact, the defendants should have pleaded over to the merits of the matter the moment they failed to satisfy the requirements of Rule 138 of the High Court Rules.

SC10-24 : ELPHAS MAPHISA vs CLEVER SIBANDA N.O. (as executor dative of the Estate of the late Melusi Sibanda) and OTHERS
Ruled By: GWAUNZA DCJ, MAKONI JA and CHITAKUNYE JA

This is an appeal against the whole judgment of the High Court (the court a quo) handed down on 27 January 2022 dismissing the appellant's application. After hearing submissions, we dismissed the appeal, on 20 July 2023, for lack of merit. We indicated that our reasons will follow. These are ...

THE FACTS

The appellant and the first (Clever Sibanda), fifth to eleventh respondents (Ettah Sibanda, Joyce Sibanda, Elphina Sibanda, Khefeni Sibanda, Maxwell Sibanda, Siyolisiwe Sibanda and Sibusisiwe Sibanda) are all surviving children of the late Melusi Sibanda who died on 5 September 2005.

On 7 May 2019, Clever Sibanda was appointed executor dative of the estate of the late Melusi Sibanda by Letters of Administration issued on that date.

The second respondent (Nqobile Mloyi) purchased an immovable property, being House Number 501 Nkulumane, Bulawayo from the estate of the late Melusi Sibanda during its administration by the executor dative.

Though the appellant alleges that he was named heir in a document purporting to be a Will of the deceased, such assertion did not curry favour with the appointing authority, hence, the appointment of Clever Sibanda as executor dative (executor) on 7 May 2019.

The appointment has not been challenged and is extant.

At a meeting called by and held before the third respondent (the Deputy Master of the High Court of Zimbabwe), on 25 June 2019, it was resolved, that, the late Melusi Sibanda's immovable property, that is, House Number 501 Nkulumane, Bulawayo registered under a Deed of Transfer number 3478/2001 (“the property”), would be sold with the consent of all the beneficiaries thereto.

The meeting was attended by the appellant and some of the cited beneficiaries.

The minutes of the above meeting, before the Deputy Master of the High Court of Zimbabwe, quote the appellant as having stated as follows in respect of the property:

“Rental was $120 per month to 2019, I have collected the rentals as the heir I was chosen by my father, I am responsible to bring these siblings together. I have archived (sic) to take care of my mother, share the cattle, buried my father. I was supposed to take care of my siblings; I am surprised that they say they do not know the Will. At law, the house can be sold according to my father legacy, they can share rent if possible. I agree to let the house be sold.”

On 12 March 2020, the Deputy Master of the High Court of Zimbabwe, upon the executor's application, issued a certificate of consent to sell the house otherwise than by public auction in terms of section 120 of the Administration of Estates Act [Chapter 6:01].

On 1 September 2020, the executor duly entered into an agreement of sale of the aforesaid property with the second respondent. He duly received the purchase price, and, it was submitted that he distributed the proceeds amongst the beneficiaries.

The appellant was aggrieved by the disposal of the immovable property.

He alleged, that, neither himself nor his other siblings, who are also beneficiaries, had been consulted and hence they had not consented to the sale.

Accordingly, on 9 March 2021, he approached the third respondent (the Deputy Master of the High Court of Zimbabwe) for a meeting.

During that meeting, he had an opportunity to peruse the file pertaining to the Estate Late Melusi Sibanda. He noted that a certificate, in terms of section 120 of the Administration of Estates Act [Chapter 6:01] (the Act) had been issued on 12 March 2020. He also noted, that, the immovable property had been valued at US$15,000.

Armed with this information, the appellant filed a court application “for unlawful disposal of deceased's immovable property.”

That application was essentially a challenge to the issuance of a certificate in terms of section 120 of the Administration of Estates Act by the Deputy Master of the High Court of Zimbabwe, which authorized the executor to sell, otherwise than by public auction, the deceased's only immovable property.

In his founding affidavit, the appellant alleged, that, no due inquiry was undertaken by the Deputy Master of the High Court of Zimbabwe before the issuance of the certificate and that not all of the children of the late Melusi Sibanda had given their consent for the disposal of the property. He averred, that, this was contrary to the agreement of 25 June 2019 that this property would only be sold with the consent of all the beneficiaries.

The application was opposed by the second respondent who averred, that, he was an innocent purchaser of the property in question. Further, he denied that the beneficiaries had not been consulted, and, in this regard, he attached affidavits from the beneficiaries consenting to the sale.

In the second respondent's view, the executor's action was bona fide as all the beneficiaries had consented to the sale.

At the hearing of the application, the appellant and the second respondent raised preliminary objections which were all dismissed by the court a quo.

On the merits, the court a quo held, that, the appellant could not competently challenge the sale because the deceased's property had been properly sold. It found, that, at the meeting of 25 June 2019, the appellant is recorded as having unequivocally accepted that the house be sold. In regards to the value of the property, the court a quo made a finding, that, no legal basis had been established for interfering with the decision of the Deputy Master of the High Court of Zimbabwe in issuing his authority under section 120 of the Administration of Estates Act. Accordingly, the court a quo dismissed the appellant's application with costs.

Aggrieved by the decision of the court a quo, the appellant noted the present appeal on four grounds of appeal. These are:

GROUNDS OF APPEAL

“1. The court a quo grossly erred in making a finding that the “applicant has not made a case for the relief he is seeking” yet the appellant's Court Application for Unlawful Disposal of the Deceased's Immovable Property was heard in contravention of peremptory rules of the High Court Rules 1971 for filing and serving the notice of opposition and peremptory rules of the High Court Rules 2021 for setting down opposed matters. The court a quo misunderstood and/or misinterpreted the appellant's points in limine.

2. The court a quo grossly misdirected itself in making a finding that “applicant has not made a case for the relief he is seeking” yet the court a quo conveniently mis-interpreted the resolution of the meeting held on 25 June 2020 (sic) and ignored the executor's letter.

3. The court a quo grossly erred in making a finding that “applicant has not made a case for the relief he is seeking” yet the court a quo did not apply the law according to section 5(1)(a) of the Deceased Estates Succession Act [Chapter 6:02].

4. The court a quo grossly misdirected itself in making a finding that “the applicant has not made a case for the relief he is seeking” yet the Deputy Master of the High Court failed to conduct proper due diligence in terms of section 120 of the Administration of Estates Acts [Chapter 6:01].”

The appellant prayed for the appeal to be allowed and for the setting aside of judgment of the court a quo.

He also prayed for:

(i) The setting aside of the certificate issued by the Deputy Master of the High Court of Zimbabwe in terms of section 120 of the Administration of Estates Act;

(ii) The setting aside of the sale of the immovable property in question;

(iii) The placement of a caveat on the said property;

(iv) For the Deputy Master of the High Court of Zimbabwe to ensure, that, all beneficiaries consent to the sale before the property can be validly sold; and

(v) That, the Registrar of Deeds is forbidden from transferring the property to anyone without an order of the court and that if any transfer had occurred it be reversed.

The court holds, that, only two issues commend themselves for determination, and, these are:

1. Whether or not the court a quo erred in dismissing the appellant's preliminary points, that, the application was heard in contravention of Rule 233 of the High Court Rules 1971 and Rule 59 of the High Court Rules 2021.

2. Whether or not the court a quo erred and misdirected itself in finding, that, the immovable property was sold with the consent of all the beneficiaries and in accordance with the law governing the administration of deceased estates.

SUBMISSIONS BEFORE THIS COURT

The appellant submitted, inter alia, that, the court a quo erred in making a finding that he had failed “to make a case for the relief he was seeking” yet his application challenging the unlawful disposal of the deceased's immovable property was heard in contravention of peremptory rules of the High Court Rules 1971 for filing and serving the notice of opposition and peremptory rules of High Court Rules 2021 for setting down opposed matters. He submitted, that, the court a quo misunderstood and/or misinterpreted his points in limine.

On the merits, he submitted, that, the court a quo mis-interpreted the resolution of the meeting held on 25 June 2019 and ignored the executor's letter, resulting in it holding that the appellant failed to make a case for the relief he sought.

He further took issue with the court a quo's alleged failure to apply section 5(1)(a) of the Deceased Estates Succession Act [Chapter 6:02].

Lastly, he submitted that the Deputy Master of the High Court of Zimbabwe failed to conduct due inquiry in terms of section 120 of the Administration of Estates Act before issuing the authority to sell.

Per contra, counsel for the respondent submitted, that, regarding service of the notice of opposition, the appellant admitted that he was served with the first notice of opposition. He further submitted, that, the appellant also admitted to receiving the second notice of opposition as well.

In this regard, counsel submitted that the court a quo was correct in holding that the appellant did not suffer any prejudice.

Counsel further contended, that, rules are made for the benefit of the court and that the court, in terms of Rule 4C of the then applicable High Court Rules 1971, had the power to condone a departure from the rules as the appellant had been served. The infractions the appellant alluded to in his preliminary points were properly condoned by the court a quo.

On the merits, counsel submitted, that, at a meeting held on 25 June 2019, before the Deputy Master of the High Court of Zimbabwe, where it was resolved that the immovable property would be sold by consent of all beneficiaries, the appellant consented to the sale of the house.

He contended, that, the minutes of the said meeting were never challenged by the appellant; as such, he could not approbate and reprobate. He submitted that the court a quo correctly found, that, according to the minutes, the appellant had consented to the sale.

Further, counsel submitted that the other beneficiaries deposed to affidavits in which they consented to the sale of the house.

In this light, he averred that the Deputy Master of the High Court of Zimbabwe did carry out due inquiry as required of him. Counsel, as a result, prayed that the appeal be dismissed with costs.

ANALYSIS

1. Whether or not the court a quo erred in dismissing the appellant's preliminary point that the application was heard in contravention of Rule 233 of the High Court Rules 1971 and Rule 59 of the High Court Rules 2021

The nub of the ground of appeal, relating to the preliminary points dismissed by the court a quo, is that the application a quo was heard contrary to the rules of the High Court.

The appellant's gripe seemed to be, that, he had not been properly served with the notice of opposition as it was not addressed to him. He thus argued that the matter be treated as unopposed.

However, the court a quo made a specific finding of fact, that, the second respondent's notice of opposition was filed and served in accordance with the Rules as the appellant had admitted receipt of the Notice of Opposition.

“Applicant, by his own version, first found the first copy of a notice of opposition in the letter box, and was again, on the 5th November 2021, served with a second copy of the notice. Again, the copy of a notice of opposition in the court file is copied to the applicant. However, applicant's name and address is in long-hand. The notice is clearly copied to the applicant. This is what the rules require.”

It is apposite to note, that, the second respondent's notice of opposition was filed on 10 May 2021.

On that date, the High Court Rules of 1971 were still in force. Rule 233(1) of the High Court Rules 1971 provided that:

“(1) The respondent shall be entitled, within the time given in the court application, in accordance with rule 232, to file a notice of opposition in Form No.29A, together with one or more opposing affidavits.”

The date stamp on the application shows that it was filed on 26 April 2021. It was served on the second respondent on 27 April 2021. The second respondent filed his notice of opposition on 10 May 2021 and subsequently served it at the appellant's address by placing it in a letter box - after a person found at the address refused to accept service.

In terms of Rule 232 of the High Court Rules, a notice of opposition and affidavit attached thereto is required to be filed in not less than ten days, exclusive of the date of service.

The respondent must soon thereafter serve a copy of the notice of opposition on the applicant.

A respondent who fails to file a notice of opposition and opposing affidavit within the period specified in the court application shall be barred.

In casu, the appellant's contention was not that the second respondent had failed to act within the dies induciae, but, that the notice of opposition filed was not properly addressed to him.

The alleged infraction, as noted by the court a quo, was that the applicant's name and address were hand-written and not in typed form.

The appellant having admitted to receiving the notice of opposition, did not allude to any prejudice he suffered as a consequence of his address being handwritten as opposed to being typewritten.

It was such an infraction that the court a quo held as not fatal and condoned it in the interest of justice.

As aptly noted in Darangwa v Kadungure SC126-21…,.:

“The rules of court are designed for the benefit of the court and the proper administration of justice. As has been said, they are 'not laws of Medes and Persians:' see Scottish Rhodesian Ltd v Honiball 1973 (2) SA 747 (R) at p748. The rules are just the court's tools fashioned for the court's own use and are not an end in themselves to be observed for their own sake: see Federated Trust Ltd v Botha 1978 (3) SA 645 at 654.”

This Court will not easily interfere with findings of fact by a lower court or tribunal unless it is satisfied, that, such findings are contrary to the evidence adduced or so outrageous in their defiance of logic that no reasonable person could have arrived at them: see Nyahondo v Hokonya & Ors 1997 (2) ZLR 475 (S) and Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S).

In casu, the facts evident from the record of proceedings show, that, the second respondent's notice of opposition was filed within the requisite period and served within time at the appellant's address of service.

The appellant admitted receipt thereof. His only gripe was that the pleadings were not addressed to him in the typed form.

He did not refer to any Rule to the effect, that, the address on pleadings must be in typed or printed form. The pleadings filed of record show that the appellant's name and address were handwritten. That is the 'infraction' the court a quo, in the exercise of its discretion, condoned.

The court holds the view, that, the court a quo cannot be faulted for condoning such an 'infraction' if any, in the interest of justice. There is thus no merit in the appellant's argument on this aspect of the preliminary point.

SC10-24 : ELPHAS MAPHISA vs CLEVER SIBANDA N.O. (as executor dative of the Estate of the late Melusi Sibanda) and OTHERS
Ruled By: GWAUNZA DCJ, MAKONI JA and CHITAKUNYE JA

THE FACTS

GROUNDS OF APPEAL

SUBMISSIONS BEFORE THIS COURT

ANALYSIS

The nub of the ground of appeal, relating to the preliminary points dismissed by the court a quo, is that the application a quo was heard contrary to the rules of the High Court....,.

On the contention, that, the matter was set down contrary to peremptory rules of the High Court Rules 2021, relating to the setting down of opposed applications, the appellant was not clear as to which Rule, in particular, he believed had not been complied with.

As a self-actor, we allowed him to make his submission on the particular aspects he felt had not been properly determined.

The appellant submitted, that, the second respondent should not have filed his heads of argument before the matter had been set down. His understanding of the applicable rules was that a respondent could only file its heads of argument after the court application had been set down. In his view, it is only the applicant who can file heads of argument before the matter is set down.

In this regard, the court a quo concluded, that, there was nothing in Rule 59 of the High Court Rules 2021 providing that heads of argument could not be filed before an application was issued with a set-down date. At p5 of its judgment, the court a quo stated thus:

“Applicant's complaint is that second respondent's heads of argument were filed before this matter was provided with a set-down date. I take the view, that, this is a flimsy and meritless preliminary point. Rule 59(60) (sic) cannot be interpreted to mean, that, heads of argument cannot be filed before an application has been provided with a set down date. In fact, Rule 65(10) is clear that a matter cannot be set-down if the papers are incomplete, and, my view is that if heads of argument have not been filed, the papers would be incomplete and the matter would not be ripe to be provided with a set down date. This preliminary point has no merit and is refused.”

The finding of the court a quo is beyond reproach.

It is pertinent to refer to the applicable sub-rules at the outset. Rule 59 subrules 18,19,20, 24 and 25 of the High Court Rules 2021 provide, inter alia, as follows:

“(18) If, at the hearing of an application, exception, or application to strike out, the applicant or excipient, as the case may be, is to be represented by a legal practitioner -

(a) Before the matter is set down for hearing, the legal practitioner shall file with the registrar heads of argument clearly outlining the submissions he or she intends to rely on and setting out the authorities, if any, which he or she intends to cite; and...,.

(b) Immediately after awards (sic), he or she shall deliver a copy of the heads of argument to every other party and file with the registrar proof of such delivery.

(19) An application, exception, or application to strike out shall not be set down for hearing at the instance of the applicant or excipients, as the case may be, unless —

(a) His or her legal practitioner has filed with the registrar in accordance with sub-rule (18) —

(i) Heads of argument; and

(ii) Proof that a copy of the heads of argument has been delivered to every other party; and

(b) In the case of an application, the pages have been numbered in accordance with Rule 58(1).

(20) Where an application, exception or application to strike out has been set down for hearing in terms of Rule 65, and any respondent is to be represented at the hearing by a legal practitioner, the legal practitioner shall file with the registrar, heads of argument clearly outlining the submissions relied upon by him or her and setting out the authorities, if any, which he or she intends to cite, and, immediately thereafter, he or she shall deliver a copy of the heads of argument to every other party.

(21) Heads of argument referred to in sub-rule (20) shall be filed by the respondent's legal practitioner not more than ten days after heads of argument of the applicant or excipients, as the case may be, were delivered to the respondent:

Provided that —

(i) No period during which the court is on vacation shall be counted as part of the ten-day period;

(ii) The respondent's heads of argument shall be filed at least five days before the hearing as long as the respondent shall not have been barred in terms of sub-rule (22).

(22) Where heads of argument that are required to be filed are not filed within the period specified in sub-rule (21), the respondent concerned shall be barred and the court or judge may deal with the matter as unopposed or direct that it be set down for hearing on the unopposed roll.

(23)…,.

(24) In relation to any application, exception, or application to strike out which has been set down by a respondent, any reference —

(a) In sub-rule (18) to the applicant or excipient, shall be construed as a reference to the respondent;…,.

(b) In sub-rules (20), (21), or (22) to a respondent, shall be construed as a reference to the applicant or excipients.

(25) Where an applicant, excipient, or respondent is not to be represented at the hearing by a legal practitioner, he or she may, if he or she so wishes, file heads of argument, in which event he or she shall comply with sub-rules (18) or (20) as the case may be.”

It is apparent from the above, that, where an applicant is to be represented by a legal practitioner at the hearing, the mandatory requirement is upon the applicant's counsel to file heads of argument and seek the setting down of the matter. The respondent, who is to be represented by a legal practitioner will then be required to file his heads of argument within ten days from when they are served with the applicant's heads of argument - and not from the date of set down.

On the other hand, where the applicant or excipient is not to be represented by a legal practitioner, there is no mandatory requirement for him to file heads of argument. He is, however, given the discretion to file heads of argument if he so wishes: see sub-rule 25.

The mandatory requirement to file heads of argument is upon a party who is legally represented and not a self actor. Where the applicant is not legally represented, but the respondent is legally represented, the mandatory requirement is upon the respondent's legal practitioner to file heads of argument before he seeks the setting down of the matter.

Sub-rule 24 specifically provides this when it states, that, any reference to the applicant in sub-rule 18 shall be construed as a reference to the respondent, and, any reference to the respondent in sub rules 20, 21 and 22 shall be construed as a reference to the applicant.

Once that reversal of responsibilities is understood, it invariably entails that the second respondent's legal practitioner was mandated to file heads of argument before he could seek the setting down of the application.

It is the filing of the heads of argument, as he did, which made the application ripe for setting down.

A recast sub-rule 18 would thus read:

“(18) If, at the hearing of an application, exception or application to strike out, the respondent, as the case may be, is to be represented by a legal practitioner —

(a) Before the matter is set down for hearing, the legal practitioner shall file with the registrar heads of argument clearly outlining the submissions he or she intends to rely on and setting out the authorities, if any, which he or she intends to cite; and…,.

(b) Immediately afterwards, he or she shall deliver a copy of the heads of argument to every other party and file, with the registrar, proof of such delivery.”

It is common cause, that, it is the second respondent's legal practitioner who applied for the setting down of the application. Had he not filed the heads of argument, the matter would not have been set down. He therefore had to file the heads of argument.

The court holds, that, the court a quo was correct in dismissing this leg of the appellant's preliminary point on the issue of non-compliance with rules of the High Court Rules 2021 relating to the setting down of opposed applications.

The first ground of appeal has no merit.

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Cause of Action and Draft Orders re: Appearance to Defend, Filing of Opposition Papers & Set Down of Matters

HH83-14 : RITENOTE PRINTERS (PVT) LTD and JOHN KANOKANGA vs A.ADAM & COMPANY (PVT) LTD and TARIK ADAM and MOOSA ADAM Ruled By: CHIGUMBA J

SC11-21 : TENDAI BONDE vs NATIONAL FOODS LTD and LOVEJOY NYANDORO [as Chairman of Appeals Committee] and CHIPO NHETA [as Chairman of Works Council] Ruled By: GUVAVA JA

View Appeal HH677-14 : MAXWELL SIBANDA vs ZAMBE NYIKA/GWASIRA and REGISTRAR OF DEEDS and EVERJOY MEDA Ruled By: MATANDA-MOYO J

HH298-17 : ZAMBE NYIKA GWASIRA vs MAXWELL SIBANDA and N.Z. INDUSTRIAL & MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE Ruled By: MATANDA-MOYO J

SC20-21 : TIMOTHY MUYAMBO vs HORTBAC PL t/a LITTLE FLOWER ENTERPRISES and JAMES CHIYANGWA and RONALD KITULI and TENDAI BONGA and MINISTER OF LANDS, AGRICULTURE AND RURAL RESETTLEMENT Ruled By: CHITAKUNYE AJA

HH842-19 : BARIADIE INVESTMENTS (PVT) LTD vs PUWAYI CHIUTSI and TENDAI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. and ELLIOT ROGERS Ruled By: CHITAPI J

View Appeal HMA13-19 : CONCILIA CHINANZVAVANA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and OTHERS Ruled By: MAFUSIRE J

HH586-15 : TEMBA MLISWA vs THE CHAIRPERSON (ZEC) and ZIMBABWE ELECTORAL COMMISSION and OTHERS Ruled By: UCHENA J

HB31-15 : TAMIRA OVERSEAS S.A. vs AQUIRIUM TRADING (PVT) LTD Ruled By: TAKUVA J

SC06-14 : ZIMASCO (PRIVATE) LIMITED vs MAYNARD MARIKANO Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

HB38-15 : SIBUCO TRADING (PVT) LTD and EDITH KATAMBARARE vs LEADERS (PVT) LTD and MESSENGER OF COURT Ruled By: MAKONESE J

HB44-15 : RAILWAYS ARTISAN UNIONS vs NATIONAL RAILWAYS OF ZIMBABWE and OTHERS Ruled By: TAKUVA J

HH170-22 : DIVVYLAND INVESTMENTS (PVT) LTD vs DAVID CHIWEZA and THE SHERIFF OF ZIMBABWE Ruled By: FOROMA J

HH686-20 : NATIONAL ENGINEERING WORKERS UNION and WISE GARIRA and SHEPHERD MASHINGAIDZE vs NATIONAL EMPLOYMENT COUNCIL FOR THE ENGINEERING IRON & STEEL INDUSTRY and OTHERS Ruled By: MUSHORE J

HH391-17 : ANDREW PASCOE vs MINISTRY OF LANDS & RURAL RESETTLEMENT and W. BUNGU and THE ATTORNEY GENERAL N.O. Ruled By: FOROMA J

HB57-15 : SIPIWO NKOMO vs MLWELIWENKULULEKO NCUBE Ruled By: MUTEMA J

HB58-15 : TRIANIC INVESTMENTS (PVT) LTD and MEYER DRAY vs NQOBILE KHUMALO and FRANCESCA MUFAMBI and OFFICER-IN-CHARGE (FILABUSI) ZIMBABWE REPUBLIC POLICE Ruled By: MOYO J

CC05-21 : RITA MBATHA vs CONFEDERATION OF ZIMBABWE INDUSTRIES and THE SHERIFF OF ZIMBABWE Ruled By: GARWE AJCC, GOWORA AJCC and PATEL AJCC

HB12-21 : ADHESIVE PRODUCTS MANUFACTURERS (PVT) LTD vs PARKAM ENTERPRISES (PVT) LTD (Under provisional judicial management of N. Motsi) and ASSISTANT MASTER OF THE HIGH COURT N.O. Ruled By: DUBE-BANDA J

View Appeal HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS Ruled By: ZHOU J, CHAREWA J and MUSHORE J

HMT45-19 : JAMES DRYNAN vs MAGISTRATE N. N KUTURE and ZIMBABWE NATIONAL ROADS ADMINISTRATION Ruled By: MUZENDA J

HH636-15 : SALTLAKES HOLDINGS (PVT) LTD and TEMBA MLISWA vs CBZ BANK LIMITED and THE SHERIFF OF ZIMBABWE N.O. Ruled By: CHIGUMBA J

HB29-17 : CLAUDIOUS MANAMELA and BRIGHTON NANGA and SAZIWE DUBE and ENOCK MARUME vs COMMISSIONER GENERAL ZIMBABWE REPUBLIC POLICE and OFFICER ON CHARGE NJUBE POLICE STATION and APOSTOLIC FAITH MISSION OF AFRICA Ruled By: KAMOCHA J

HH125-17 : GRANDWELL HOLDINGS vs ZIMBABWE CONSOLIDATED DIAMOND COMPANY LTD and COMMISSIONER GENERAL, ZIMBABWE REPUBLIC POLICE and MBADA DIAMONDS (PVT) LTD Ruled By: TSANGA J

HH363-13 : TAKANAYI MUREYI vs FORTUNE CHARUMBIRA Ruled By: MTSHIYA J

HH233-17 : PETER VALENTINE vs MYDALE INTERNATIONAL MARKETING (PVT) LTD and GOLDEN RWAYI Ruled By: CHITAKUNYE J

HH969-15 : IAN MASAMBA and IGNATIUS MASAMBA vs DIRECTOR – ZIMSEC Ruled By: MUNANGATI-MANONGWA J

Appealed HB03-14 : SIBONGILE NDLOVU vs GUARDFORCE INVESTMENTS (PVT) LTD and REGISTRAR OF DEEDS (NO) and DEPUTY SHERIFF (NO) Ruled By: MAKONESE J

Appealed HB42-14 : MINISTER OF HIGHER & TERTIARY EDUCATION vs BMA FASTENERS (PVT) LTD and CHRISTOPHER MASWI N.O. (as Provisional Judicial Manager of BMA FASTENERS) and MASTER OF THE HIGH COURT OF ZIMBABWE N.O. Ruled By: MAKONESE J

SC32-22 : CUTHBERT DUBE vs PREMIER MEDICAL INVESTMENTS (PVT) LTD and PREMIER SERVICE MEDICAL AID SOCIETY Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

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

HH471-17 : HARARE SPORTS CLUB vs ZIMBABWE CRICKET and COMMERCIAL ARBITRATION CENTRE Ruled By: MANGOTA J

View Appeal HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR Ruled By: TAGU J

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

SC31-15 : WECTOR ENTERPRISES (PVT) LTD vs LUXOR (PVT) LTD Ruled By: ZIYAMBI JA, HLATSHWAYO JA and MAVANGIRA AJA

SC41-21 : YSMIN MAHOMMED vs TAWURAYI KASHIRI Ruled By: KUDYA AJA

HH73-15 : FUNGAI NHAU vs MEMORY KAFE and CHIPO NKUDZI Ruled By: MATHONSI J

SC10-24 : ELPHAS MAPHISA vs CLEVER SIBANDA N.O. (as executor dative of the Estate of the late Melusi Sibanda) and OTHERS Ruled By: GWAUNZA DCJ, MAKONI JA and CHITAKUNYE JA

SC10-24 : ELPHAS MAPHISA vs CLEVER SIBANDA N.O. (as executor dative of the Estate of the late Melusi Sibanda) and OTHERS Ruled By: GWAUNZA DCJ, MAKONI JA and CHITAKUNYE JA

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HH83-14 : RITENOTE PRINTERS (PVT) LTD and JOHN KANOKANGA vs A.ADAM & COMPANY (PVT) LTD and TARIK ADAM and MOOSA ADAM
Ruled By: CHIGUMBA J

SC11-21 : TENDAI BONDE vs NATIONAL FOODS LTD and LOVEJOY NYANDORO [as Chairman of Appeals Committee] and CHIPO NHETA [as Chairman of Works Council]
Ruled By: GUVAVA JA

View Appeal
HH677-14 : MAXWELL SIBANDA vs ZAMBE NYIKA/GWASIRA and REGISTRAR OF DEEDS and EVERJOY MEDA
Ruled By: MATANDA-MOYO J

HH298-17 : ZAMBE NYIKA GWASIRA vs MAXWELL SIBANDA and N.Z. INDUSTRIAL & MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE
Ruled By: MATANDA-MOYO J

SC20-21 : TIMOTHY MUYAMBO vs HORTBAC PL t/a LITTLE FLOWER ENTERPRISES and JAMES CHIYANGWA and RONALD KITULI and TENDAI BONGA and MINISTER OF LANDS, AGRICULTURE AND RURAL RESETTLEMENT
Ruled By: CHITAKUNYE AJA

HH842-19 : BARIADIE INVESTMENTS (PVT) LTD vs PUWAYI CHIUTSI and TENDAI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. and ELLIOT ROGERS
Ruled By: CHITAPI J

View Appeal
HMA13-19 : CONCILIA CHINANZVAVANA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: MAFUSIRE J

HH586-15 : TEMBA MLISWA vs THE CHAIRPERSON (ZEC) and ZIMBABWE ELECTORAL COMMISSION and OTHERS
Ruled By: UCHENA J

HB31-15 : TAMIRA OVERSEAS S.A. vs AQUIRIUM TRADING (PVT) LTD
Ruled By: TAKUVA J

SC06-14 : ZIMASCO (PRIVATE) LIMITED vs MAYNARD MARIKANO
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

HB38-15 : SIBUCO TRADING (PVT) LTD and EDITH KATAMBARARE vs LEADERS (PVT) LTD and MESSENGER OF COURT
Ruled By: MAKONESE J

HB44-15 : RAILWAYS ARTISAN UNIONS vs NATIONAL RAILWAYS OF ZIMBABWE and OTHERS
Ruled By: TAKUVA J

HH170-22 : DIVVYLAND INVESTMENTS (PVT) LTD vs DAVID CHIWEZA and THE SHERIFF OF ZIMBABWE
Ruled By: FOROMA J

HH686-20 : NATIONAL ENGINEERING WORKERS UNION and WISE GARIRA and SHEPHERD MASHINGAIDZE vs NATIONAL EMPLOYMENT COUNCIL FOR THE ENGINEERING IRON & STEEL INDUSTRY and OTHERS
Ruled By: MUSHORE J

HH391-17 : ANDREW PASCOE vs MINISTRY OF LANDS & RURAL RESETTLEMENT and W. BUNGU and THE ATTORNEY GENERAL N.O.
Ruled By: FOROMA J

HB57-15 : SIPIWO NKOMO vs MLWELIWENKULULEKO NCUBE
Ruled By: MUTEMA J

HB58-15 : TRIANIC INVESTMENTS (PVT) LTD and MEYER DRAY vs NQOBILE KHUMALO and FRANCESCA MUFAMBI and OFFICER-IN-CHARGE (FILABUSI) ZIMBABWE REPUBLIC POLICE
Ruled By: MOYO J

CC05-21 : RITA MBATHA vs CONFEDERATION OF ZIMBABWE INDUSTRIES and THE SHERIFF OF ZIMBABWE
Ruled By: GARWE AJCC, GOWORA AJCC and PATEL AJCC

HB12-21 : ADHESIVE PRODUCTS MANUFACTURERS (PVT) LTD vs PARKAM ENTERPRISES (PVT) LTD (Under provisional judicial management of N. Motsi) and ASSISTANT MASTER OF THE HIGH COURT N.O.
Ruled By: DUBE-BANDA J

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

HMT45-19 : JAMES DRYNAN vs MAGISTRATE N. N KUTURE and ZIMBABWE NATIONAL ROADS ADMINISTRATION
Ruled By: MUZENDA J

HH636-15 : SALTLAKES HOLDINGS (PVT) LTD and TEMBA MLISWA vs CBZ BANK LIMITED and THE SHERIFF OF ZIMBABWE N.O.
Ruled By: CHIGUMBA J

HB29-17 : CLAUDIOUS MANAMELA and BRIGHTON NANGA and SAZIWE DUBE and ENOCK MARUME vs COMMISSIONER GENERAL ZIMBABWE REPUBLIC POLICE and OFFICER ON CHARGE NJUBE POLICE STATION and APOSTOLIC FAITH MISSION OF AFRICA
Ruled By: KAMOCHA J

HH125-17 : GRANDWELL HOLDINGS vs ZIMBABWE CONSOLIDATED DIAMOND COMPANY LTD and COMMISSIONER GENERAL, ZIMBABWE REPUBLIC POLICE and MBADA DIAMONDS (PVT) LTD
Ruled By: TSANGA J

HH363-13 : TAKANAYI MUREYI vs FORTUNE CHARUMBIRA
Ruled By: MTSHIYA J

HH233-17 : PETER VALENTINE vs MYDALE INTERNATIONAL MARKETING (PVT) LTD and GOLDEN RWAYI
Ruled By: CHITAKUNYE J

HH969-15 : IAN MASAMBA and IGNATIUS MASAMBA vs DIRECTOR – ZIMSEC
Ruled By: MUNANGATI-MANONGWA J

Appealed
HB03-14 : SIBONGILE NDLOVU vs GUARDFORCE INVESTMENTS (PVT) LTD and REGISTRAR OF DEEDS (NO) and DEPUTY SHERIFF (NO)
Ruled By: MAKONESE J

Appealed
HB42-14 : MINISTER OF HIGHER & TERTIARY EDUCATION vs BMA FASTENERS (PVT) LTD and CHRISTOPHER MASWI N.O. (as Provisional Judicial Manager of BMA FASTENERS) and MASTER OF THE HIGH COURT OF ZIMBABWE N.O.
Ruled By: MAKONESE J

SC32-22 : CUTHBERT DUBE vs PREMIER MEDICAL INVESTMENTS (PVT) LTD and PREMIER SERVICE MEDICAL AID SOCIETY
Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

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

HH471-17 : HARARE SPORTS CLUB vs ZIMBABWE CRICKET and COMMERCIAL ARBITRATION CENTRE
Ruled By: MANGOTA J

View Appeal
HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR
Ruled By: TAGU J

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

SC31-15 : WECTOR ENTERPRISES (PVT) LTD vs LUXOR (PVT) LTD
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and MAVANGIRA AJA

SC41-21 : YSMIN MAHOMMED vs TAWURAYI KASHIRI
Ruled By: KUDYA AJA

HH73-15 : FUNGAI NHAU vs MEMORY KAFE and CHIPO NKUDZI
Ruled By: MATHONSI J

SC10-24 : ELPHAS MAPHISA vs CLEVER SIBANDA N.O. (as executor dative of the Estate of the late Melusi Sibanda) and OTHERS
Ruled By: GWAUNZA DCJ, MAKONI JA and CHITAKUNYE JA

SC10-24 : ELPHAS MAPHISA vs CLEVER SIBANDA N.O. (as executor dative of the Estate of the late Melusi Sibanda) and OTHERS
Ruled By: GWAUNZA DCJ, MAKONI JA and CHITAKUNYE JA