Locus Standi re: Factual or Evidential Averments or Pleadings Competently Available to Another Party

CC14-20 : HILTON CHIRONGA and RASHID MAHIYA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HOME AFFAIRS and MINISTER OF DEFENCE and GOVERNMENT OF ZIMBABWE
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATHSWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

One of the crucial elements of the new constitutional dispension ushered in by the 2013 Constitution is to make a decisive break from turning a blind eye to constitutional obligations. To achieve this goal, the drafters of the Zimbabwean Constitution Amendment (No.20) Act 2013 (“the Constitution”) adopted the rule of law and supremacy of the Constitution as some of the core founding values and principles of our constitutional democracy.

For this reason, public office bearers ignore their constitutional obligations at their own peril. Left unchecked, those clothed with State authority, or public power, may quite often find the temptation to abuse such powers irresistible, as Lord Acton famously remarked:

“Power tends to corrupt, and absolute power corrupts absolutely!”

John Emerich Dalberg-Acton, 1st Baron Acton, coined the proverbial saying in 1857 using similar ideas expressed by several of his contemporaries. The fuller expression reads:

“Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority; still more when you super-add the tendency of the certainty of corruption by authority.”

Mechanisms to oversee how public power and State authority is exercised by those so entrusted must be tightened and strengthened. More importantly, if such mechanisms are by command of the supreme law of the land, the Constitution, they must be put in place within a reasonable time to actualise the Constitution as a living document.

To this end, the State, its organs, and functionaries cannot, without consequence, be allowed to adopt a lackadaisical attitude, at the expense of the public interest, in bringing into operation institutions and mechanisms commanded by the supreme law: see the case of Mashongwa v Passenger Rail Agency of South Africa 2016 (3) SA 528 (CC)…,.

However, this case also illustrates the need, on the part of the litigants, to move away from old fashioned Private Law habits when it comes to Constitutional Law litigation. While constitutional litigation may entail the vindication of a private right, it differs from Private Law litigation in that over and above that it seeks to entrench legality and the deepening of the constitutional order for the benefit of the broader public.

This is why it has been said that:

“Where a matter concerns the constitutionality of a law…, the need for certainty may require the court to decide the matter irrespective of whether or not the party advancing the challenge had standing:” MAX du PLESSIS et al 'Constitutional Litigation' Juta, 2013 quoting the South African cases of Lawyers for Human Rights v Minister of Home Affairs 2004 (4) SA 125 (CC)…, and South African Liquor Traders Association v Chairperson, Gauteng Liquor Board 2006 (8) BCLR 901 (CC)…,.

This application seeks to enforce the enactment of the law envisioned in section 210 of the Constitution to provide for “an effective and independent mechanism for receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct.”

It also seeks a declarator that the respondents have breached the Constitution by failing to enact such a law timeously after the coming into operation of the new Constitution and a mandamus for the respondents to gazette the Bill envisioned in section 210 of the Constitution thereof within forty-five days.

At the time of hearing of the application, a period of two years and four, five months had lapsed from the time of coming into operation of the rest of the Constitution, on 22 August 2013, when the President-elect, under the Constitution, assumed office. That delay, of less than two and a half years, might not have been sufficient to satisfy a finding of violation of the Constitution and the application might have failed on that score, with a period of, say, three being deemed to be the sufficient one.

However, post-hearing, intimations or overtures that the matter might be settled by consent of the parties were made necessitating the holding of three Court-presided meetings of the parties over time on the basis that both sides were agreed that the envisaged legislation had to be enacted; and, indeed, both sides agreed that the application was essentially not opposed, but differed slightly on the appropriate timelines for the enactment of the law.

Herein lies the nub of this matter.

Had the constitutional legality principle been put above all else, the application could have been granted immediately with immense public benefit. However, the Private Law litigation habit of “winner takes all” of wanting the other side to be declared a violator of the Constitution stood in the way as did the attitude on the other side of not wanting to make any move unless so ordered.

Had the Court appreciated, then, how deeply entrenched these arcane positions were, relics of Private Law litigation habits, a different approach could have been adopted of immediately issuing the order, with reasons to follow.

It is regretted that this approach was not followed.

FACTUAL BACKGROUND

The applicants are citizens of Zimbabwe who have taken it upon themselves to see to it that the respondents adhere to the constitutionally-created obligations imposed on them by section 210 of the Constitution.

The applicants submit, that, the respondents have done nothing to fulfil their constitutional obligations clearly outlined in the supreme law.

Section 210 of the Constitution requires the enactment of a law to provide for an effective and independent mechanism for receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct.

The applicants aver, that, it has been over two years since the inception of the Constitution and the Act required, in terms of section 210 of the Constitution, has not been put in place.

It is further the applicant's contention, that, the failure by the respondents to enact the law, in terms of section 210 of the Constitution, is a breach of the Constitution. The right to equal protection of the law, under section 56(1) of the Constitution, is under threat, according to the applicants, due to failure or delay in enacting the law directed by section 210 of the Constitution.

The application is opposed.

The respondents submit, that, the law-making process cannot be carried out overnight. The respondents further submitted, that, they are working on making sure that the Act is in place and filed of record a working document they are allegedly focused on as a roadmap towards the eventual enactment of the law in question.

The timeline within which the Act envisaged by section 210 of the Constitution should be enacted sits at the heart of this application.

The applicants, in their final submission to this Court, are seeking the following relief:

1. The respondents failure, to enact the law provided for in terms of section 210 of the Constitution of Zimbabwe, is in breach of the Constitution of Zimbabwe.

2. The failure by the respondents, to enact the law to bring into effect section 210 of the Constitution of Zimbabwe, is a violation of the applicant's right to equal protection and benefit of the law as defined by section 56(1) of the Constitution.

3. The respondents must gazette the Bill envisaged by section 210 of the Constitution of Zimbabwe within 45 days from the date of this order.

4. The respondents, jointly and severally, each paying the other to be absolved pay costs of suit.

ISSUES

The first question this Court is seized with is whether or not the applicants have locus standi to bring this matter before this Court. This question shall be disposed of first before delving into questions arising from the merits of the application.

On the merits of the application, three questions arise and they are the following:

(1) Whether or not the respondent's delay in enacting the law, provided for in terms of section 210 of the Constitution of Zimbabwe, constitutes an unreasonable delay in fulfilling constitutional obligations in terms the Constitution of Zimbabwe.

(2) Whether or not the requirements for a mandamus have been satisfied to order the respondents to gazette the Bill envisaged by section 210 of the Constitution of Zimbabwe within forty five days from the date of this order.

The aforementioned questions, on merit, will be disposed of separately hereunder after addressing preliminary and standing issues.

PRELIMINARY ISSUES

Before proceeding to deal with the merits, there are a number of preliminary issues that call for the Court's attention, although not raised by the parties, but being questions of law.

Their determination is paramount in clarifying what really is before this Court as opposed to what is purportedly so.

THE APPLICANTS FOUNDING AFFIDAVIT IS DEFECTIVE

The founding affidavit in this application is replete with anomalies which render it defective. It is deposed to by the first applicant. He is the one who, under oath, swears to and undertakes to depose to the founding statement forming the basis of the suit. Thereafter, the very same affidavit identifies the second applicant, by naming him, and states, that, the second applicant brings the application 'in his own right.'

It is pertinent to note, that, the second applicant does not, at any point, take the oath or undertake to depose to the founding affidavit.

Neither does he sign the affidavit which is signed by the first applicant.

It does not end there.

The founding affidavit of the first applicant then purports to tell the story of both the applicants.

This it does in the most unusual way. The first applicant appears to be the author of the first to fifth paragraphs of the founding affidavit. He refers to himself in the first person where he states thus: “I am the Applicant herein:” and refers to the second applicant in the second person were he states: “The Second Applicant is Rashid Stuart Mahiya.”

It is not clear at what stage the second applicant takes over the reins of authorship to the first applicant's founding affidavit, but, it appears to be possibly at about the sixth paragraph of the founding affidavit. At paragraph 6.2, the first applicant is referred to in the second person where it says:

“In my line of work, I have witnessed the agonies of the violence perpetrated against our citizens in unmitigated proportions, in particular, the first applicant, by the State and its agents.”

It appears from the above remarks, that, it is the second applicant who now puts forth his own story through the first applicant's founding affidavit.

From the above, it is clear, that, apart from being mentioned by the first applicant, there is no affidavit before the court that can be attributed to the second applicant.

Therefore, the founding affidavit before the court is that of the first applicant.

The second applicant, in a strange and unusual manner 'infuses' his own averments in an affidavit sworn to and signed by the first applicant.

Thus, effectively, there is no affidavit placed before this Court by the second applicant.

The founding affidavit also only identifies two respondents, the first and second respondents. The third and fourth respondents are not identified as respondents save for their citation on the face of the application.

Further to that, at paragraph 8.1 of the founding affidavit, the authorship appears to have reverted back to the first applicant were it is stated that:

“The Applicant and I are ordinary citizens of Zimbabwe and Human rights activists.”

Such back and forth approach is unacceptable. It leaves the facts muddled, not being clear which averments are to be attributed to which applicant. Such breadth-taking bundling is unacceptable, embarrassing, and an unworthy handiwork of one who is a senior legal practitioner.

Further to that, and more seriously, the applicant's affidavit also makes serious allegations against persons who are not cited as parties to the application. Neither were they served with the application to enable them to answer to the allegations made therein.

The founding affidavit, at paragraphs 8.4 to 8.12 (inclusive) alleges that certain individuals believed to be members of the security sector terrorised the first applicant and his family. It alleges vicious assaults and intimidation which resulted in the death of some of the first applicant's family members.

It is now well established at law, that, in the face of such serious allegations, the persons whose conduct is impugned ought be cited and afforded a chance to put across their own case.

In view of the fact that this has not been done, the allegations should be struck out, and, paragraphs 8.4 to 8.12 (inclusive) are accordingly struck off the record.

The second applicant then purports to affirm the first applicant's affidavit through a supporting affidavit that merely states, that, the second applicant confirms the first applicant's averments and makes them his own. In addition, the second applicant deposes to an answering affidavit in circumstances where he has not deposed to a proper affidavit.

That cannot be.

This Court ought not to consider it, the answering affidavit of the second applicant, as it stands on nothing.

It is trite that an application stands or falls on the averments made in the founding affidavit: see HERBSTEIN & Van WINSEN, the Civil Practice of the Superior Courts in South Africa, 3rd ed (hereinafter 'Herbstein & Van Winsen or the Authors')…, where the authors stated that:

“The general rule, however, which has been laid down repeatedly is that an applicant must stand or fall by his founding affidavit and the facts alleged therein; and, that, although sometimes it is permissible to supplement the allegations contained in that affidavit, still, the main foundation of the application is the allegation of facts stated therein, because, these are the facts which the respondent is called upon either to affirm or deny. If the applicant merely sets out a skeleton case in his supporting affidavits, any fortifying paragraphs in his replying affidavits will be struck out.”

From the above remarks, it is clear that the second applicant's replying affidavit ought to be struck out as well.

It is pertinent to note, that, the second applicant's answering affidavit, of five pages, purports to answer to a number of issues, that include locus standi, and, a substantial portion of it relates to section 210 of the Constitution.

Therefore, if struck out, in addition to other anomalies identified, this Court is left with very little on which the application is premised and from which this Court ought to be informed.

However, because the application raises the issue of legality, the court would want to be slow in dismissing such an application offhand, even in the face of these glaringly gross technical glitches, notwithstanding the invidious position which the few remaining valid threadbare averments place the court in.

The application seeks to enforce the constitutional obligations as set out in section 210 of the Constitution, and this Court, as the apex court on constitutional matters, is equally obligated to see to it that constitutional obligations are fulfilled.

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:...,.

Misjoinder of the 2nd to 18th respondents in HC2128/21 and their Citation

The first and nineteenth respondents took the point, that, there was mis-joinder of the second to eighteenth respondents.

In the case of Zimbabwe Teachers Association & Ors v Minister of Education 1990 (2) ZLR 48, it was held…, that a party is entitled to participate in a suit if it has a direct and substantial interest in the subject-matter and outcome of the application. What is required is a legal interest, not a financial interest which is only an indirect interest in the litigation.

In this case, the respondents are the persons who held or occupied the offices of judges of the Constitutional Court and Supreme Court. The question of whether they should retire at the age of seventy years or they have an election to have their stay in office extended affects them directly. In fact, the second respondent reached seventy years old on 15 May 2021, and the extension of his term of office, beyond the age of seventy, is a question to be determined in the instant matters.

Whether the 15th, 16th and 17th respondents are affected by the order, if granted, is a matter that pertains to the merits of the case. The fact is that they are cited and relief is being sought against them as well.

In any event, the first and nineteenth respondents cannot plead a case on behalf of parties who have not defended the suit.

HH207-13 : MODCRAFT ENGINEERING (PVT) LTD vs TENDA BUSES (PRIVATE) LIMITED and DAMASCUS MUTARE
Ruled By: MATHONSI J

The plaintiff, a duly incorporated engineering company which is involved in, inter alia, the manufacture of fuel tanks, instituted summons action against the defendant, a bus company, for damages arising out of a motor vehicle accident which occurred on 8 November 2009 at the intersection of Mharapara and Seke Roads in Chitungwiza.

The accident involved a Scania Horse registration number AAZ 4708 which was pulling a fuel tanker, registration number AAS 9480, both belonging to Modcraft Transport (Pvt) Ltd, another registered company which is a sister company of the plaintiff and was being driven by Vengai Mapfumo, and an omnibus, registration number AAS 4056, belonging to the defendant which was being driven by the defendant's driver, one Damascus Mutare.

I must state, that, initially, the plaintiff sued both the bus company and its driver Damascus Mutare, but, subsequently, withdrew the claim against the driver without giving any reason.

It pursued the action only against the bus company.

The plaintiff's declaration reads as follows;

“1. Plaintiff is MODCRAFT ENGINERING (PRIVATE) LIMITED, a company registered with limited liability in terms of the laws of Zimbabwe. Its address for service is that of his (sic) legal practitioners detailed below.

2. The first defendant is TENDA BUSES (PRIVATE) LIMITED. Its address for service is Number 119 Mutare Road, Msasa, Harare.

3. The second is DAMASCUS MUTARE. His address for service is that of the first defendant.

4. On 8 November 2009, along Mharapara Road and Seke Road, Chitungwiza around 0545 hours, the plaintiff's vehicle horse, AAZ 4708, and trailer AAS 9480 was involved in an accident with the second defendant who was driving, during the course and scope of his duties with the first defendant, its bus number AAZ 4056.

5. The first defendant is vicariously liable for the actions of the second defendant pursuant to the above.

6. The accident was caused by the sole negligence of the defendant in one or all of the following respects:

6.1. He was driving at an excessive speed under the circumstances.

6.2. He failed to give way to traffic which had the right of way and caused accident.

6.3. He failed to avoid an accident which was imminent.

7. As a result of the accident, the plaintiff's vehicle was damaged on its 3x12R22.5 tubeless tyres; 2 x12R22.5 tubeless rims; left hand side mudguards; front hanger; outlet pipe tank guard; left side tank.

8. The plaintiff has not repaired the vehicle and it has sourced quotations for the repairs and supply of new tyres, the lowest being US$13,800. The residue being the pre and after accident value difference is more than the costs of repairs.

9. As a result of the accident, the plaintiff suffered repair damages and supply of new tyres in the sum of USD13,800 which amount, despite damage (sic), defendants refuses (sic) fail and/or neglect to pay.”

The plaintiff then prayed for judgment accordingly.

The defendant entered appearance to defend and filed a plea in which it denied that there was a road accident as alleged by the plaintiff.

It averred, further, that, its driver was not acting within the course and scope of his employment but was on a frolic of his own when the collision occurred.

It also made more averments, including that the plaintiff's driver was not properly licenced to drive the vehicle; the vehicle did not have a certificate of fitness; and that the plaintiff's vehicle was not mechanically sound.

The matter was referred to trial on the following issues;

1. Whether the defendant was aware of the road accident.

2. Who caused the accident?

3. Whether the defendant's driver was acting within the course and scope of his employment by the defendant.

4. Whether the plaintiff's motor vehicle was properly licenced, insured, and with the relevant certificate of fitness.

5. What damages, if any, were caused to the plaintiff's truck and trailer and the quantum of those damages.

In order to prove its case, the plaintiff led evidence from two (2) witnesses, namely, Vengai Mapfumo and Freddy Hickey.

Vengai Mapfumo is the holder of a class 2 driver's licence which he obtained in 1993. He produced his driver's licence which shows that he was re-tested in accordance with the law in 2008, which retest was due to expire in 2012, and was therefore valid at the time the accident occurred in 2009.

Vengai Mapfumo testified, that, on the fateful day, he was driving a tanker, laden with petrol, just before 6pm. As he was turning at the intersection of Mharapara and Seke roads, enjoying a right of way against the Tenda Bus which was facing a stop sign, he glanced at his rear view mirror and realised that the bus had not stopped and was about to collide with his trailer which was following behind the horse.

He hooted to alert the driver of the bus, but, it was too late, as it went on to collide with his tanker trailer causing the damage set out in the plaintiff's declaration.

Vengai Mapfumo stated, that, he confronted the driver of the bus who quickly apologised to him saying that he was tired as his bus had been hired earlier on to ferry passengers and he had driven the whole day on that assignment.

After that, he had been re-assigned to ferry other passengers.

He made reference to the police accident book page where his statement had been recorded at the scene of the accident and he signed it.

He denied that his vehicle had any mechanical fault prior to the accident.

Freddy Hickey is the Managing Director of the plaintiff's company, who is hands on and runs the workshop and supervises the activities of the company.

He stated, that, the Scania horse and the trailer are owned by a sister company of the plaintiff, namely, Modcraft Transport (Pvt) Ltd which is also registered.

He made reference to the two (2) registration books of the vehicles showing that, indeed, the vehicles are registered in the name of Modcraft Transport (Pvt) Ltd of Corner Harare and Willow Roads New Ardbennie, Harare.

They are not owned by the plaintiff, neither is the fuel which was being ferried at the time of the accident.

Freddy Hickey stated, that, the plaintiff and Modcraft Transport (Pvt) Ltd are separate entities although the directors are the same. They operate from different premises.

He stated, that, the plaintiff repaired the damaged tanker after the defendant had promised to do so, but failed, and business was being lost when the tanker remained off the road.

He told of how the plaintiff had obtained three (3) quotations from panel beaters of repute for the repairs to the tanker:

Noaluc Panel Beaters & Spray Painters had quoted $15,594 for the repairs; Floyd Enterprises (Pvt) Ltd quoted US$17,814; while Adec Panel Beaters (Pvt) Ltd quoted $15,514.

The plaintiff, being an engineering concern which does the same job, weighed in with a quotation of $13,800 which was far less than what was quoted by the other repairers.

For that reason, the plaintiff undertook the job and sought to recover from the defendant, which was liable - its driver having caused the accident.

It is for this reason that the quotation of 9 November 2009, from the plaintiff, was addressed to the defendant.

Freddy Hickey produced the insurance cover note and certificates of fitness in respect of the horse and trailer to put to bed the claim, by the defendant, that, they were not insured and unroadworthy.

At the close of the plaintiff's case, counsel for the defendant made an application for absolution from the instance on essentially three (3) grounds:

(i) Firstly, he submitted, that, the plaintiff, being a separate entity from Modcraft Transport (Pvt) Ltd, the owner of the motor vehicle which was damaged in the accident, does not have a right of action against the defendant. It is the wrong party to sue.

(ii) Secondly, counsel for the defendant argued, that, the figure of $13,800 being claimed was a “thumb suck” which has not been substantiated as shown by the figure of $12,000 before VAT which has not been broken down to show what it is that the plaintiff did.

(iii) Thirdly, counsel for the defendant submitted, that, as the plaintiff's claim against the defendant is premised on vicarious liability, the decision to withdraw the claim against Damascus Mutare, the defendant's driver, was fatal to the plaintiff's case. It could not proceeded against the defendant vicariously where the employee has not been cited.

Counsel for the plaintiff opposed the application.

He submitted, that, the plaintiff and Modcraft Transport (Pvt) Ltd are intertwined; they have the same directors, and, as such, no difference exists between them.

While conceding that it was bad corporate governance to run the entities inter-changeably, given that they are both registered, he took the view, that, the plaintiff's case remains as the transport company is run like a division of the plaintiff.

On the issue of the driver, counsel for the plaintiff submitted, that, the defendant, having admitted that Damascus Mutare was the driver, the onus shifted to it to prove that he was acting outside the course and scope of his employment as such.

I am of the view that the last two (2) grounds for seeking absolution relied upon by counsel for the defendant are completely devoid of merit and should not detain us at all.

The plaintiff has led evidence and produced quotations, which have not been challenged at all, which show that three (3) other reputable panel beaters would have undertaken the repairs at a cost far more than what is claimed by the plaintiff.

For the defendant to then say that the amount of $13,800, which is significantly lower, should be proved to the last ingredient is to clutch at straws.

In my view, the defendant is lucky that the plaintiff repaired the tanker itself at less the cost and is not claiming $15,514 which was the lowest quoted figure.

The citation or lack of it of the defendant's driver, cannot be a basis for absolution from the instance.

If the plaintiff has made a case against the defendant, it matters not that the driver has not been cited, the defendant will have to disprove the plaintiff's case.

Where an application for absolution is made at the close of the plaintiff's case, what the court has regards to was stated in the leading case of Gascoyne v Paul and Hunter 1917 TPD 170 in the following:

“At the close of the case for the plaintiff, therefore, the question which arises for consideration is: Is there evidence upon which a reasonable man might find for the plaintiff?…,.

The question therefore is, at the close of the case for the plaintiff, was there such evidence before the court upon which a reasonable man might, but, should not give judgment against Hunter.”

See HERBSTEIN and Van WINSEN, The Civil Practice of the Superior Courts in South Africa, Juta & Co Ltd, 3rd ed…,.

In Bailey N.O. v Trinity Engineering (Pvt) Ltd & Others HH181-02 MATIKA J quoted with approval the pronouncement of HANCK J in Quintessence Co-ordinators (Pty) Ltd v Government of the Republic of Transkei 1993 (3) SA 184 (TK)…, where he said:

“The legal test to be applied at this stage appears to be common cause; namely, whether there is evidence upon which a reasonable man might find for the plaintiff: Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 at 409.”

In the case of Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H)…, SMITH J followed the pronouncement of BEADLE CJ in Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 RLR 1 at 5D where he said:

“The test, therefore, boils down to this: Is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff?

What is a reasonable mistake in any case must always be a question of fact, and cannot be defined with any greater exactitude than by saying that it is the sort of mistake a reasonable court might make – a definition which helps not at all.”

At 5-6 BEADLE CJ went on to say:

“Before concluding my remarks of the law on this subject, I must stress that rules of procedure are made to ensure that justice is done between the parties, and, so far as possible, courts should not allow rules of procedure to be used to cause an injustice.

If the defence is something peculiarly within the knowledge of a defendant, and the plaintiff has made out some case to answer, the plaintiff should not lightly be deprived of his remedy without first hearing what the defendant has to say.

A defendant who might be afraid to go into the box should not be permitted to shelter behind the procedure of absolution from the instance.

I might usefully quote here what was said by SUTTON J in Erasmus v Boss 1930 CPD 204 at 207:

'In Theron v Behr 1918 CPD 443, JUTA J, at 451, states, that, according to the practice in this court in later years, judges have become very loathe to decide upon questions of fact without hearing all the evidence on both sides.'

We, in this territory, have always followed the practice of the Cape courts.

In case of doubt at what a reasonable court (might) do, a judicial officer should always, therefore, lean on the side of allowing the case to proceed.”

In casu, the plaintiff pleaded its case on the basis that it is the owner of both the Scania horse and tanker trailer which were involved in an accident with the defendant's bus.

It led evidence to the effect, that, the bus driver was negligent as he drove tired and lacking in concentration, thereby failing to observe a stop sign and colliding with the tanker.

The plaintiff also led evidence, with supporting documentation, that, the vehicle belonged to a sister company, which is duly incorporated, Modcraft Transport (Pvt) Ltd.

The driver, Damascus Mutare, was employed by the latter as he drove the vehicle on the fateful day.

In this jurisdiction, the separate legal persona concept is the cornerstone of our Company Law.

It provides, that, a company, once registered at the company registry, acquires a legal personality of its own divorced from that of its members. It enjoys perpetual succession, can sue and be sued in its own right, and, generally, stands alone outside directors or shareholders.

For that reason, no one, not even its directors or its sister incorporations, can sue or be sued on its behalf.

Like in any other legal concept, there are exceptions to the application of the legal persona principle which may result in the lifting of the veil of incorporation.

Those exceptions do not obtain in this case.

Clearly, therefore, it was incompetent for the plaintiff to sue on behalf of its sister company as it did not acquire locus standi in judicio merely by being a sister company. Nor did it gain a right of action by virtue of its close relationship to Modcraft Transport (Pvt) Ltd, the wronged party.

The plaintiff is therefore non-suited and there is no way in the world in which the court might make a reasonable mistake and give judgment in favour of the plaintiff.

The evidence led makes a very good case for Modcraft Transport (Pvt) Ltd and not the plaintiff.

In the circumstances, my hands are therefore firmly tied. In the result, I make the following order, that:

1. Absolution from the instance is hereby granted.

2. The plaintiff shall bear the costs of suit.

HMT53-19 : SHINGIRAI VAMBE vs RUSAPE TOWN COUNCIL
Ruled By: MWAYERA J and MUZENDA J

The appellant instituted summons at Rusape Magistrate Court claiming $5,000 from the respondent being general damages arising from the alleged unlawful destruction of the appellant's temporary structure constructed at No.7688 without a valid court order as well as for harassing the appellant's wife at the latter's work place without the appellant's consent.

After the issuing out of the summons, the appellant served the respondent with various court processes, and, on 9 April 2019, the appellant filed an application for default judgment.

Unfortunately, on 19 April 2019, the learned magistrate dismissed the application.

Un-amused by the dismissal, the appellant noted an appeal on 16 August 2019 outlining the grounds of appeal as follows:

“1. The respondent failed to plead hence the request for default judgment.

2. The learned magistrate erred to take into cognizance the appellant served the respondent with all the papers including the ones he further requested, but, for the second time, he defaulted to submit his plea.

3. The learned magistrate erred in failing to take cognizance that the appellant had stated, in case No. 2030/17 that the demolition of the temporal structure was illegal and it would attract costs.

4. The learned magistrate erred in failing to take into cognizance, that, the appellant applied for an interdict against the respondent in case 2030/17 and (he), the respondent, went further to demolish the appellant's structure without a court order.

5. The learned magistrate failed to consider, that, the appellant was allowed to erect a temporal structure after he had approached the Housing Director for approval.

6. The learned magistrate erred in failing to take into cognizance that no building plan is required in the Model Building By Laws Part 4 section 39 (1, 2, 3 and 4).

7. The learned magistrate erred in failing to take cognizance that the section she quoted from the respondent's papers does not apply to the contract and structure that the appellant had put up, the section consists of enforcement and prohibition orders.

8. The learned magistrate failed to take into cognizance that the respondent had harassed the appellant's wife without any reason to do so, on the matter she was not aware of.

9. The learned magistrate failed to take into cognizance that it was not the respondent's call to demolish the structure without a court order, thus, no need for the appellant to appeal for case no. 2030/17.”...,.

There is also need to comment on the appellant's claim, pertaining to his wife, where the appellant claimed damages from the respondent “for harassing my wife at her work place, without my concern (sic) (including my family to my personal business) (whatever appellant meant by that).

The wife is an adult, she can sue the respondent for relief in her own capacity - not through the appellant.

HMT12-20 : CHENESO MUVANDI vs CITY OF MUTARE and MATIVENGA MHISHI N.O. (as Executor of the Estate Late Washington Jekanyika)
Ruled By: MUZENDA J

The applicant made an application seeking the following order:“IT IS HEREBY ORDERED THAT:1. The cancellation of the Memorandum of Agreement of Sale of Stand No.11234 Darlington Extension, Mutare Township, measuring approximately 1,1759 hectares, entered into by the City of Mutare and Washington Jekanyika, jointly together with Cheneso Muvandi, is a ...

The applicant made an application seeking the following order:

“IT IS HEREBY ORDERED THAT:

1. The cancellation of the Memorandum of Agreement of Sale of Stand No.11234 Darlington Extension, Mutare Township, measuring approximately 1,1759 hectares, entered into by the City of Mutare and Washington Jekanyika, jointly together with Cheneso Muvandi, is a nullity, of no force and effect.

2. The Memorandum of Agreement of Sale of Stand No.11234 Darlington Extension, Mutare Township, measuring approximately 1,1759 hectares, entered into by the City of Mutare and Washington Jekanyika, jointly together with Cheneso Muvandi, is declared valid.

3. The 1st respondent shall pay costs of suit on a higher scale of attorney and client.”

The application is opposed by the first respondent, the City of Mutare.

BACKGROUND

On 20 July 2016, Clayhill Trading (Private) Limited entered into an agreement of sale of a piece of land, namely, Stand No.11234 Darlington Extension, Mutare Township, measuring 1,1759 hectares, with the applicant and her late husband, Washington Jekanyika.

The purchase price was US$62,000.

Clause 3 of the agreement of sale stipulated the payment plan: US$20,000 was payable against the signing of the agreement; US$20,000 was payable three (3) weeks after the signing of cession papers; the balance of US$22,000 was going to be liquidated through monthly instalments of US$4,000 commencing 30 September 2016.

The preamble to the memorandum of agreement of sale between the seller and buyer provided, that, the buyers had to demand transfer from the Municipality of Mutare of such immovable property so purchased by the buyer; however, the seller was responsible for the payment of all cession costs, including the City Council's cession fees and capital gain tax, if any (clause 8 of the agreement of sale).

During the same year, 2016, the first respondent, City of Mutare, entered into an agreement of sale with the applicant and her husband.

Under clause 2 of this agreement, the purchase price “was the intrinsic value paid by Clayhill (Pvt) Ltd.”

Clause 14 thereto stipulates, that, the purchasers shall demand transfer of the Stand from the seller upon completion on the main building.

The agreement of sale does not state any conditions for breach or grounds for cancellation of the agreement of sale.

On 24 September 2019, the City of Mutare wrote a letter to the applicant's legal practitioners indicating that the agreement of sale between itself, the applicant, and her husband had been cancelled.

The first respondent alleged in the letter the applicant's late husband, Mr W. Jekanyika had misrepresented to the City Council that he had fully paid the purchase price of the property to the developer, Clayhill and that Clayhill had since cancelled the first agreement of sale.

As a result of the “fraud” committed by the purchasers, the first respondent was cancelling the agreement of sale.

A lot of correspondences were exchanged between the City Council's legal practitioners and the purchasers lawyers but nothing came out of the correspondences until the applicant approached this court.

Clayhill (Pvt) Ltd had since issued summons against the purchasers claiming an amount of US$28,000 for arrear payments.

It is important to note, that, there is no allegation nor prayer by Clayhill for the cancellation of the agreement of sale or a misrepresentation on the part of the applicant and her late husband.

The first respondent, in its opposing papers, contends, that, the applicant's application should fail for failing to join Clayhill Trading (Private) Limited as a party to the proceedings.

As already addressed in the foregoing above, the first respondent went on to state, that, the applicant and her husband breached the terms of their agreement with Clayhill by failing to pay the full purchase price and that led to the cancellation of the agreement of sale by letter of 21 November 2016 written by Clayhill Property Development: hence, the agreement of sale between City of Mutare and the applicant and her husband was a nullity, because, at the time it was drafted, the City Council did not hold any rights, interest or title in the Stand; instead, such rights were vested with Clayhill; and, as such, the cancellation of the agreement was above board; and, before the cancellation of that agreement, the applicant's legal practitioners were fully appraised of the whole scenario of the events.

To the respondent, the relief being sought by the applicant has no basis.

The second respondent is an estate of the late Washington Jekanyika. The executor had notified the Registrar of the court that he will abide by the decision of this court.

Both the applicant and first respondent had raised preliminary points in their respective papers; and, I directed the legal practitioners to holistically address the court by commencing with points in limine and then the main issues....,.

On the merits of the application, the following issues are uncontroverted, in my respectful view:

(1) The applicant and her husband, the late Washington Jekanyika, purchased Stand No.11234 Darlington Extension, Mutare for $62,000; paid cash of $20,000 upon signing of the agreement of sale; and, from the calculation between the cost price and balance being claimed on the summons alluded to above, it is clear that the applicant paid another instalment of $14,000, to make a total of US$34,000.

(2) At the agreement of sale between Clayhill Trading (Private) Limited and the applicant, another agreement of sale was concluded between City of Mutare, the applicant, and the late W. Jekanyika.

(3) The applicant took occupation of the purchased Stand and started to develop it.

(4) The selling company is suing the applicant for an amount of $28,000 as balance outstanding. The company (Clayhill Trading (Private) Limited) is not praying for the cancellation of the agreement of sale on grounds of fraudulent misrepresentation nor for the cancellation of sale between the City of Mutare and the purchaser.

(5) In terms of the agreement of sale concluded between the applicant and City of Mutare (first respondent) there is virtually no clause pertaining to which conditions would justify cancellation of the contract concluded between the parties. Though not addressed by the parties, it appears the first respondent was paid by the developer before the developer (Clayhill Trading (Private) Limited) was allowed to offer such Stands for sale to the public.

(6) City of Mutare remained the title holder, both for purposes of cession or transfer; that is why the second agreement of sale, between the applicant and the first respondent, had to be drafted.

Transfer of ownership between City of Mutare and the applicant would only be processed after the property had been fully developed.

All these aspects are common cause and this court asked the first respondent its basis for opposing the application.

If Clayhill Trading (Private) Limited is fully paid the balance, it means the matter between it and the applicant would have been resolved; and, by necessary implication, the subject Stand has to remain with the applicant and the estate of her husband.

After going through the opposing papers filed on behalf of the first respondent, it is apparent, that, the first respondent, mero motu, proceeded to cancel the agreement of sale it had entered into with the purchaser without having heard from them.

That was not proper: see See U-Tow Trailers (Pvt) Ltd v City of Harare and Another 2009 (2) ZLR 259 (H) per MAKARAU JP…,.

As long as the administrative authority is involved in making such decisions, it is required to comply with the dictates of administrative justice; that requirement applies even when the first respondent was acting in terms of a contract: see U-Tow Trailers (Pvt) Ltd v City of Harare and Another 2009 (2) ZLR 259 (H)…,.

The first respondent was duty bound to hear the applicant and her husband first and even ask them to reduce their response in writing.

No such evidence was produced by the first respondent.

Hence, cancellation of the agreement was arbitrary and cannot be allowed to stand.

The first respondent also contended, that, what prompted her to cancel the agreement was that the late Washington Jekanyika fraudulently did not disclose that he had not fully paid the purchase price to Clayhill Trading (Private) Limited.

This court will not dwell much on this issue simply because the first respondent stated, that, it learnt this from Clayhill Trading (Private) Limited; and, as already covered hereinabove, the summons issued by Clayhill Trading (Private) Limited do not allude to any fraud on the part of W. Jekanyika - what Clayhill Trading (Private) Limited needs is its payment of the balance of $28,000.

In any case, fraud should not only be pleaded but must be established by way of tangible evidence.

I am hence satisfied, that, the first respondent failed to justify its cancellation of the agreement of sale with the applicant and her husband on a balance of probabilities; there is no condition which could have been relied upon in the agreement of sale, which, if breached by the purchasers, could have justified the cancellation of such a contract: see Muzondo and Others v Usayiwevanhu and Others HH107-12; SPF & Anor v LBCCT/ALB & Anor 26492/13 [2016] ZAG PPHC 378; Chikwanira v Mutonhora & Anor HH224-16; Mkandla & Anor v Ncube & Anor HB93-14.

Costs

The applicant prayed for costs on a punitive scale of attorney-client.

A lot of correspondence between the first respondent's office and the applicant's legal practitioners exchanged hands, including documents pertaining to the matter; more particularly, the summons issued by the developer Clayhill Trading (Private) Limited where it was claiming $28,000 from the purchasers.

Surely, at that stage of proceedings, and letter written by the applicant's lawyers to the first respondent about that, should have caused the first respondent to reconsider its stance about the application.

It did not.

Even after heads of argument were filed and served on the first respondent, it persisted with the opposition of the application.

The court is aware, that, any order of costs adversely affect the rate payer; but, the aptitude of the first respondent's action Clerk exhibits a nonchalant attitude bordering on recklessness and abuse of court process - all done in the name of public entity whose resources should better be ploughed towards service delivery than defending indefensible, unilateral, and unjust conduct by its officials.

This judgment must be brought to the attention of the Mayor and councillors, to censure, in the strongest terms, the behaviour of the Town Clerk: see Binza v Acting Director of Works & Anor 1998 (2) ZLR 364 (H).

In future, legal costs of this type should be met by the city official personally; however, in this case, the first respondent stated, that, he was authorised to oppose the matter by the Council, so, the Council/public entity will be ordered to pay the applicant's wasted legal costs.

As a result, the following order is granted:

1. The cancellation of the Memorandum of Agreement of Sale of Stand 11234 Darlington Extension, Mutare Township, measuring 1,1759 hectares, entered into by the City of Mutare and Washington Jekanyika, jointly together with Cheneso Muvandi, is a nullity, of no force.

2. The Memorandum of Agreement of Sale of Stand No.11234 Darlington Extension, Mutare Township, measuring approximately 1,1759 hectares, entered into by the City of Mutare and Washington Jekanyika, jointly together with Cheneso Muvandi, is declared valid.

3. The first respondent to pay the applicant's costs on attorney-client scale.

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 MAIN MATTER BE DISMISSED IN TERMS OF ORDER 11 RULE 75(1) OF THE HIGH COURT RULES

After the dismissal of their exception in HC7214/17 the Makandiwas pleaded to the main case and filed this application for summary dismissal of the principal case as being frivolous and vexatious in terms of Order 11 Rule 75(1) of the High Court Rules 1971 (the Rules).

The principal case contained the six claims brought against them by the Mashangwas as outlined above. I shall endeavor to deal with each of the claims where possible.

Suffice to state, at this stage, that Rule 75 of the High Court Rules provides that:

“75 Application for Dismissal of Action

(1) Where a defendant has filed his plea, he may make a court application for the dismissal of the action on the ground that it is frivolous or vexatious.

(2) A court application in terms of subrule (1) shall be supported by affidavit made by the defendant or a person who can swear positively to the facts or averments set out therein, stating that in his belief the action is frivolous or vexatious and setting out the grounds for his belief.

(3) A deponent may attach to his affidavit, filed in terms of subrule (2), documents which verify his belief that the action is frivolous or vexatious.”

In their supporting affidavits, the Makandiwas prayed that the principal case must accordingly be summarily dismissed pursuant to Rule 75(1) of the High Court Rules, and contended, among other things, that the action in the principal case is not only both frivolous and vexatious, but also a self–evident gross and contemptuous abuse of the process of this court on the bases that -

“1. The plaintiffs have deliberately pleaded and founded their purported causes of action on deliberate and easily demonstrable falsehoods;

2. Each of the six (6) claims suffers from predictable failure and so groundless that no reasonable person could ever hope to obtain relief therefrom;

3. The principle case has not been brought with the bona fide intention of obtaining relief;

4. The proceedings have been brought with the sole and mala fide intention of annoying and harassing us. It as such amounts to the unmitigated abuse and contempt of this court and the process thereof; and

5. The principal case is inconsistent with reason and common sense, and, as such, unworthy of serious consideration.”

The respondents (the Mashangwas) opposed the application. They took seven points in limine. The points were:

(1) Matter passed in rem judicatam;

(2) Estopel;

(3) Disputes of fact;

(4) Unlawful reversal of order of proceedings;

(5) Attempt to avoid the consequences of a valid acknowledgement;

(6) Mala fides and abuse of court process; and

(7) Provisions of the Rules not available to applicants.

On the merits, they contended, among other things, that, Mr Makandiwa is a common fraudster, a false prophet who has no relationship with God, is a liar who lied about a lawyer called Tichaona Mawere, and many other ills....,.

AD MERITS

The Makandiwas filed this application in terms of Rule 75(1) of the High Court Rules 1971 for the summary dismissal of frivolous and vexatious action proceedings instituted by the Mashangwas in an action pending before this court under case number HC7214/17.

The respondents made six claims.

Their cause of action in claims 1-4 is said to fall into the delict of fraud. The fifth claim is said to relate to the delict of injurious falsehoods. The sixth claim has been held to fall under the delict of injuria.

A common thread runs through these claims.

They plead that they were members of the third applicant (United Family International Church), a Christian Church founded by the first and second applicants (Emmanuel Makandiwa and Ruth Makandiwa). They further allege that they either received prophesies or representations in church or that certain injurious publications were made of and concerning them or their business. Hence, they claimed various sums all aggregating to a staggering six and a half million United States Dollars.

The applicants pleaded to each of the six claims. They denied the allegations.

Their pleas were filed in contemplation of the present application for dismissal.

The applicants placed before the court a detailed verifying affidavit that traversed and attached incontrovertible evidence which they said exposed the falsity of the facts pleaded by the plaintiffs in their declaration.

The applicants, thereafter, filed the present application for the dismissal of the suit as frivolous and vexatious.

The application is strongly opposed by the respondents.

THE LAW

Rule 75 of the High Court Rules allows a defendant, who has pleaded, to apply for the summary dismissal of the action on the grounds that it is vexatious.

The defendants must, on notice of motion, positively swear to the facts and verify their belief that the action is vexatious and deserving of summary dismissal.

The purpose of this procedure is the same as that of the procedure for summary judgment or provisional sentence.

The court, if satisfied, has the inherent jurisdiction to disallow and dismiss proceedings that are frivolous or vexatious: see Ushewokunze Housing Co-oporative Society Limited v Crest Breeders International (Private) Limited HH529-16; Rogers v Rogers & Another 2008 (1) ZLR 330…,.; and S v Coopers & Others 1977 (3) SA 475…,.

The test to be applied can be explained in no better words than those of MAKARAU JP…, in Stationery Box (Pvt) Ltd v Natcon (Pvt) Ltd & Anor HH64-10 as follows:

“The test to be applied in summary judgment applications is clear and settled. The onus resting on a defendant resisting summary judgment has been described as amongst the lightest that the rules of procedure cast on the litigants. He does not have to prove his defence. He must merely allege facts, which, if he can succeed in establishing them at the trial, would entitle him to succeed in his defence.

The defence so set up must, however, be plausible and bona fide.

Obviously implied in this test, but oft overlooked by legal practitioners, is that the defendant must raise a defence. The facts alleged must lead to and establish a defence that meets the claim squarely. If the facts that he alleges, fascinating as they may be and which he may very well be able to prove at the trial of the matter, do not amount to a defence at law, the defendant would not have discharged the onus on him and summary judgement must be granted.

To defend a claim arising out of a contract of sale, the purchaser must attack either the existence of the agreement itself or the fact that the goods sold were not delivered to him. If other defences are raised, they must be raised explicitly. It is not the function of the court to put words into the defendant's mouth and thereby establish a possible defence on his behalf when the defendant fails to do so in his opposing affidavit.”

In the present case, the respondents ultimately denied any liability to the plaintiffs.

This application, therefore, turns on the law of summary dismissal of cases on the basis that they are frivolous and vexatious.

Order 11 Rule 75(1) of the High Court Rules, which provides for this procedure, states that the defendant may make an application for the summary dismissal of the case, after filing of his plea, on the grounds that it is frivolous and vexatious.

My sole duty is to determine whether or not the claims are frivolous and vexatious....,.

CLAIM FIVE AS AMENDED

The crux of this claim is that the applicants allegedly published defamatory material against the respondents company that sells perfumes to the extent that the company was forced to close.

The defamation, if at all it was made, it was made against the company and not the respondents.

However, the claim was denied by the applicants.

The law is trite and settled, that, a company is, at law, a separate persona that can sue for the wrongs committed against it or be sued for the wrongs it commits. This is principle and cannot be deviated from.

The principle is that the award made thereto is the company's assets and benefits and not the shareholders or directors.

The respondents are directors and/or shareholders of the company in question.

In Zimbabwe Electricity Supply Authority v Modus Publications (Pvt) Ltd 1996 (2) ZLR 256 (HC) the court said:

“Dealing with the first ground, it is settled law that a trading corporation, being in law a person distinct from its members, and having therefore a reputation of its own to maintain, can sue for a defamatory statement which affects it in its trade, business, or property whether or not actual damage is proved: see McKERRON The Law of Delict 7ed at p181; Boka Enterprises (Pvt) Ltd v Manatse & Anor 1989 (2) ZLR 117 (H)."

In this claim, the fact that the respondents are the alter ego cannot take their matter any further.

It is therefore frivolous and vexatious, as well as abusive, for the people that run the company to sue for wrongs allegedly committed against the company in their names, without even joining the company to the proceedings, other than to harass and annoy the applicants.

The claim is equally and summarily dismissed in terms of Rule 75(1) of the Rules of this Honourable Court.

SC85-22 : BERNARD MUTANGA vs TSITSI MUTANGA
Ruled By: MAVANGIRA JA, UCHENA JA and MUSAKWA JA

This is an appeal against the entire judgment of the High Court delivered on 5 February 2020.

The court a quo held that eighty-five percent (85%) of Number 16 Hawkshead Drive, Borrowdale, also known as Lot 1 of Lot 4 of Lot FA Quinnington situate in the District of Salisbury, measuring 1,2770 Morgen held under Title Deed 3999/96 be awarded to the respondent as her sole and absolute share with the appellant being awarded the remaining 15 per cent share.

BACKGROUND FACTS

The appellant and the respondent married in terms of the Marriage Act [Chapter 5:11] in 1996. Both parties were business partners involved in the property sector. The appellant was into property development and the respondent was into real estate management. Both were directors of a company called Bern-win Development Company.

This company was liquidated, and the parties lost everything.

They were advised, by their lawyers, to separate their business properties from their family assets by forming Trusts.

Consequently, Mai-Kai Property Development Trust was formed in January 2000 and Paradza Trust in July 2000. The beneficiaries of both Trusts were Tsitsi Mutanga, Bernard Tanatsa Mutanga, Lucinda Ropafadzo Mutanga, and Rusiya Mutekenya, who is the appellant's mother.

It was the intention of both parties that Paradza Trust be the asset holding Trust while Mai-Kai Property Development Trust would be the property selling Trust.

The proceeds of the business were pooled together and used to buy assets for the family which were registered under Paradza Trust.

Unfortunately for the parties, their marital relationship broke down and the respondent issued summons for divorce in which she cited irretrievable breakdown of the marriage as the cause for divorce. She further sought an order for distribution of the assets of the parties.

PROCEEDINGS BEFORE THE COURT A QUO

During the proceedings in the court a quo, the parties agreed on all ancillary issues including custody and maintenance of their children save for the distribution of one immovable property which is No.16 Hawkshead Drive, Borrowdale (hereinafter referred to as the property).

According to the appellant, the property was not an asset of the spouses.

He claimed, that, the property belonged to a private company called Brabourn Investments (Private) Ltd and that the company was wholly owned by Brabourn Trust of which the respondent was neither a trustee nor a beneficiary.

The appellant further claimed, that, the reason why the property could not be distributed in terms of section 7 of the Matrimonial Causes Act was that Paradza Trust had failed to raise the purchase price and hence the sale was not perfecta.

He also claimed that it was at that point that Brabourn Trust purchased the shares in Brabourn Investments (Private) Limited.

He however failed to produce evidence to the effect that Paradza Trust had failed to raise the purchase price and that the contract had been cancelled.

According to the evidence adduced by the respondent during the trial, the property was acquired through the purchase of shares in Brabourn Investments (Private) Limited by Paradza Trust.

Paradza Trust purchased 100 per cent paid up shares in Brabourn Investments (Private) Limited which represented ownership of the property. The effect of such acquisition was that the property now vested in Paradza Trust in which the appellant, the respondent, their children, and the appellant's mother were beneficiaries.

The respondent claimed that the property in dispute was an asset owned by both parties, and, as such, was distributable in terms of section 7 of the Matrimonial Causes Act [Chapter 5:13].

The respondent further testified, that, Brabourn Trust which was purported to own Brabourn Investments (Private) Limited, was fraudulent.

She highlighted to the court, that, the Trust Deed creating Brabourn Trust was null and void as it did not have the mandatory protocol number; that the dates in the Deed were inconsistent with the sequence of events; and, lastly that the legal practitioner who purported to have drafted and registered the Trust Deed was still at law school at the time of such registration, and, as such, was not yet practicing law.

Basing on the evidence placed before it, the court a quo held that No.16 Hawkshead Drive, Borrowdale was an asset that belonged to Paradza Trust.

It further held that the property was distributable in terms of section 7 of the Matrimonial Causes Act.

It also held that Brabourn Trust was a stratagem by the appellant to thwart the respondent's claim to the property.

The property was then distributed, with the respondent being awarded an 85 per cent share in the property while the appellant received the remaining 15 per cent share.

Aggrieved by the decision of the court a quo, the appellant noted an appeal to this Court on the following grounds:

1. The court a quo misdirected itself in finding that number 16 Hawkshead Drive, Borrowdale was a family asset and registered in Paradza Trust that could be distributed, a finding which is contrary to the evidence presented.

2. The court a quo misdirected itself in finding that the Brabourn Trust Deed was null and void.

3. The court a quo erred at law when it concluded that Paradza Trust was the original purchaser of Brabourn Investments (Private) Limited with 100 per cent paid up shares, being the only one with a claim to number 16 Hawkshead Drive, Borrowdale.

4. The court a quo erred at law when it concluded, that, the respondent was entitled to a share of number 16 Hawkshead Drive, Borrowdale, not just as a spouse but as a beneficiary of Paradza Trust, when there was no evidence that Paradza Trust acquired the property.

5. The court a quo misdirected itself in granting an order that number 16 Hawkshead Drive, Borrowdale also known as Lot 1 of Lot 4 FA Quinnington situate in the District of Salisbury held under title deed number 3999/96 measured 1,2770 Morgen instead of 1,0938 hectares.

SUBMISSIONS ON APPEAL

The appellant's counsel argued, that, the property in dispute did not belong to the appellant individually, and that it had not been purchased by and was not owned by Paradza Trust. He submitted, that, it did not fall under the ambit of property that was distributable under section 7 of the Matrimonial Causes Act as it was owned by a third party, which is Brabourn Investments (Private) Limited.

He further argued, that, besides the agreement of sale of the 100 per cent shares in Brabourn Investments (Private) Limited, there is no proof of transfer to Paradza Trust, which further clarifies the position that the property belonged to Brabourn Trust.

Counsel for the respondent, per contra, argued that the property belongs to Paradza Trust.

She submitted that the parties lived on the premises until the time they decided to lease it out.

She further submitted that to date, the property belongs to Paradza Trust and all monies derived from that property go to the beneficiaries of the Trust, who, at the time of registration were Rusiya Mutekenya (appellant's mother), their two children, Bernard Tanatsa Mutanga, Lucinda Ropafadzo Mutanga, and the respondent herself.

As will become apparent shortly, both counsels were asked to address this Court on the non-joinder of the trustees of Paradza Trust.

Counsel for the appellant submitted, that, the trustees of Paradza Trust should have been joined in the proceedings a quo. On the other hand, counsel for the respondent submitted that the issue of joinder was defeated by the appellant's claim that the property belonged to Brabourn Trust. That is why the chairman of the Trust was subpoenaed to testify before the court a quo.

Counsel for the respondent also placed reliance on section 7 of the Matrimonial Causes Act which provides that a court can direct that property of one spouse be transferred to another spouse.

ANALYSIS

In view of the non-determination by the court a quo of an issue that was argued before it, this appeal stands to be disposed of on that very issue.

It therefore becomes unnecessary to advert to the appellant's grounds of appeal.

At the onset of trial in the court a quo, counsel who appeared for the appellant highlighted to the court a quo that it was now seized with an issue in relation to whether or not the trustees who administered the property should be ordered to transfer property to either of the parties, when the trustees had not been cited in the proceedings.

He further submitted, that, there had been a material non-joinder of interested parties in the proceedings in that the court a quo was being asked to distribute the property of other people who were not parties to the proceedings.

Counsel who appeared for the appellant a quo went further to submit, that, while in terms of the rules a Trust can be cited in its own name, it does not hold property in its own name, but it does so for the benefit of the beneficiaries. Hence, the trustees should have been cited.

Lastly, he submitted that it would be more convenient, just, and proper for the administration of justice for the Trust to be joined to the proceedings to enable it to protect the interests of the beneficiaries.

Counsel for the respondent a quo drew the court a quo's attention to the joint pre-trial conference minute in which one of the issues was whether any trustees should be ordered to transfer assets to the parties. She further submitted that, that was why the joint pre-trial conference minute had been crafted in such a fashion.

She also submitted, that, there had been difficulties in establishing the identities of the trustees.

The appellant was also blamed for not furnishing the respondent with all the documentation that had been requested.

One of the issues in the joint pretrial conference minute was:

“Whether it would be fair and equitable to order any Trustees to transfer any of the Trust assets to either of the parties.”

The court a quo resolved to proceed with the matter notwithstanding that the issue of joinder had been raised.

In its judgment at the conclusion of the proceedings, the court a quo did not address the issue of joinder of the trustees.

I agree with counsel for the appellant a quo's submissions regarding the non-joinder of interested parties to the proceedings - especially the trustees. This is the same submission made by counsel for the appellant on appeal following questions from the Bench.

The duty of an Appellate Court is to determine whether a trial court came to the correct conclusion of the case that was placed before it. In this respect see the cases of Goto v Goto 2001 (2) ZLR 519 (S) and Cole v Government of the Union of South Africa 1910 AD 263.

A court is enjoined to determine all issues placed before it unless the issue that it determines to the exclusion of other issues is dispositive of the dispute before it: see the case of Longman Zimbabwe (Pvt) Ltd v Midzi and Others 2008 (1) ZLR 198 (S).

According to the decision in Arafas Mtausi Gwaradzimba v C.J. Petron and Company (Proprietary) Limited SC12-16 failure by a court to consider an issue placed before it amounts to gross irregularity.

Therefore, the failure by the court a quo to determine whether the trustees should have been joined to the proceedings amounts to gross irregularity.

DISPOSITION

In terms of section 25 of the Supreme Court Act [Chapter 7:13], the Supreme Court has certain powers that are vested in it which include the power to review proceedings and decisions of lower courts.

Of particular importance is subsection (2) which provides, that, the powers to review can be exercised whenever it comes to the attention of a judge or the Supreme Court that an irregularity has occurred in any proceedings notwithstanding that such proceedings or decision is not the subject of appeal.

It has come to this Court's attention, that, there was an irregularity in the proceedings of the court a quo, and, such irregularity is not the subject of appeal. The irregularity pertains to the court a quo's omission to determine the issue of joinder despite the fact that such issue was argued before the court a quo.

In light of the disposition of the appeal on a ground not raised in the notice of appeal, the appellant will not be awarded costs.

The matter will have to be remitted to the court a quo for hearing afresh before another judge since the trial judge is no longer on the Bench.

This will be subject to joinder of other interested parties.

In the result, it is ordered as follows:

(1) The appeal be and is hereby allowed.

(2) The judgment of the court a quo be and is hereby set aside.

(3) The matter is remitted to the court a quo for hearing afresh before another Judge.

(4) Each party shall bear its own costs.

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

That an agent cannot sue on behalf of a principal, was set out in AMI Zimbabwe (Pvt) Ltd v Casalee Holdings (Successors) (Pvt) Ltd 1997 (2) ZLR 77 (SC)…, thus:“Without such a cession of action, Casalee Zim cannot sue AMI on behalf of Casalee Belgium because an agent cannot sue ...

HH188-14 : XAVIER P MAKUMBINDE vs KUDZAI RUZVIDZO and JOEL MAZANHANGA
Ruled By: MAFUSIRE J

The applicant sought an order nullifying the sale of a certain vehicle by the first respondent to the second respondent. At the end of the hearing I granted the order sought in terms of the draft. The order read as follows:“1. The agreement of sale by and between the 1st ...

“1. The agreement of sale by and between the 1^st and 2^nd Respondents in respect of the motor vehicle Nissan March ACP 3268 be and is hereby declared unlawful.

2. Applicant be and is hereby declared the lawful owner of the Nissan March ACP 3268.

3. Respondents jointly and severally shall pay costs of suit.”

I gave the reasons for my decision ex tempore. However, the second respondent has now asked for them in writing.

Here they are.

In December 2012, the first respondent purported to sell the vehicle in question…, to the second respondent. Apparently, it had been a swap deal. For the purchase price, the second respondent had surrendered his own vehicle, also a Nissan March, and had topped it up with cash. At the hearing, there was a conflict as to how exactly the sale had been arranged and what exactly had been the agreed purchase price. But it was common cause that the sale vehicle had belonged to the applicant.

At the time of the purported sale, the applicant had been in Kariba. The sale vehicle had been in Harare. The respondents had also been in Harare. The first respondent had contacted the applicant by phone that he had found a buyer for the sale vehicle. The applicant had arranged with his sister to make the sale vehicle available for inspection by the potential buyer. The buyer was the second respondent. The next thing was that the first respondent had sold the vehicle to the second respondent. The sale document was a crude Agreement in long hand on Kingstons Limited's stationery. It read as follows:

“I, RUZVIDZO KUDZAI, ID 63-1035356 V24, residing at Glennorah, do hereby solemnly and sincerely swear/declare the following:-Sold my Nissan March Reg no. ACP 3268 as an swop and top with a Nissan March Reg ABY 5930 with cash top of USD800 paid USD600 Balance of USD200 to be paid on or before the 15^th of December of 2012.”

The document was signed by the second respondent as “BUYER”; the first respondent as “SELLER” and by two other persons as witnesses.

The first respondent did not file any opposing papers.

The second respondent, through his legal practitioners, who later renounced agency, did. However, almost all the averments in the second respondent's opposing affidavit were inadmissible hearsay. He alleged he had been aware that the applicant had been communicating with the first respondent. He referred to a certain phone text message allegedly from the applicant to the first respondent which he said had been shown to the criminal court. Apparently, the matter had been to the Criminal Court at the instance of the applicant. He had reported a case of theft of the sale vehicle against the first respondent. However, it seems the first respondent not been convicted. It also appeared that it was the applicant who had ended up paying a deposit fine to the police for a false report. The applicant claimed he had been coerced to pay the fine. He also claimed that he had filed a complaint against the conduct of the police. However, I found none of these details relevant.

The major ground of opposition by the second respondent to the relief sought had been that the applicant had legitimately sold the vehicle to him through the first respondent as his agent. He claimed it was only because the applicant had been unhappy with the quantum of the cash top up that the second respondent had paid that he was now reneging on the Agreement. The applicant had allegedly wanted US1,000=, the second respondent averred. But he had refused to pay such an exorbitant amount. He had agreed to only US800= which he had paid. The second respondent also claimed that the applicant had felt let down by his agent, the first respondent, in that he had demanded an amount of commission which the applicant had felt had been exorbitant and unjustified.

Given what was common cause, namely, that the sale vehicle had belonged to the applicant; given that the purported Sale Agreement had patently been false and therefore a nullity, and given that the transfer of possession of the vehicle to the second respondent had been predicated on such a nullity I considered that the onus to prove a genuine sale of the vehicle had lain on the second respondent. I considered that the second respondent had come nowhere near discharging that onus.

The second respondent's affidavit had essentially been hearsay testimony. There had been no opposition from the first respondent who had been central to the whole dispute.

It was on that basis that I granted the relief sought.

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

HH188-14 : XAVIER P MAKUMBINDE vs KUDZAI RUZVIDZO and JOEL MAZANHANGA
Ruled By: MAFUSIRE J

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Law Portal Zimbabwe

Locus Standi re: Factual or Evidential Averments or Pleadings Competently Available to Another Party

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

HH207-13 : MODCRAFT ENGINEERING (PVT) LTD vs TENDA BUSES (PRIVATE) LIMITED and DAMASCUS MUTARE Ruled By: MATHONSI J

HMT53-19 : SHINGIRAI VAMBE vs RUSAPE TOWN COUNCIL Ruled By: MWAYERA J and MUZENDA J

HMT12-20 : CHENESO MUVANDI vs CITY OF MUTARE and MATIVENGA MHISHI N.O. (as Executor of the Estate Late Washington Jekanyika) Ruled By: MUZENDA 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

SC85-22 : BERNARD MUTANGA vs TSITSI MUTANGA Ruled By: MAVANGIRA JA, UCHENA JA and MUSAKWA JA

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

HH188-14 : XAVIER P MAKUMBINDE vs KUDZAI RUZVIDZO and JOEL MAZANHANGA Ruled By: MAFUSIRE J

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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

HH207-13 : MODCRAFT ENGINEERING (PVT) LTD vs TENDA BUSES (PRIVATE) LIMITED and DAMASCUS MUTARE
Ruled By: MATHONSI J

HMT53-19 : SHINGIRAI VAMBE vs RUSAPE TOWN COUNCIL
Ruled By: MWAYERA J and MUZENDA J

HMT12-20 : CHENESO MUVANDI vs CITY OF MUTARE and MATIVENGA MHISHI N.O. (as Executor of the Estate Late Washington Jekanyika)
Ruled By: MUZENDA 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

SC85-22 : BERNARD MUTANGA vs TSITSI MUTANGA
Ruled By: MAVANGIRA JA, UCHENA JA and MUSAKWA JA

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

HH188-14 : XAVIER P MAKUMBINDE vs KUDZAI RUZVIDZO and JOEL MAZANHANGA
Ruled By: MAFUSIRE J