Citation and Joinder re: Multiple Litigants, Citation by Reference, Common Interests, Common Purpose & Effect on Pleadings

SC36-23 : GLOBAL HORIZON (PVT) LTD and GODFREY CHINDOMU and NOMUSA CHINDOMU vs FMC FINANCE (PVT) LTD and SHERIFF OF THE HIGH COURT N.O. and REGISTRAR OF DEEDS
Ruled By: MAVANGIRA JA

This is a chamber application in which the applicant seeks condonation for failure to comply with Rule 38(1)(a) of the Supreme Court Rules 2018 and for extension of time within which to file and serve a notice of appeal.The application is opposed.FACTUAL BACKGROUNDThe background to the matter is that on ...

FACTUAL BACKGROUND

The background to the matter is that on 11 November 2021, the first respondent, a financial institution, issued provisional sentence summons against the first applicant, a legal entity, and the second and third respondents, who are the legal entity's directors, claiming payment of USD142,392=54.

The provisional sentence summons having been served and the applicants not having acted upon it, a default judgment was entered against them.

The default judgement ordered the applicants, jointly and severally, the one paying, the others being absolved, to pay the first respondent USD142,392=54 payable in Zimbabwe Dollars at the Reserve Bank of Zimbabwe auction rate as at the date of payment together with interest on that amount at the rate of 18 per centum per month plus penalty at the rate of 25 per centum per month from 1 October 2021 to the date of payment in full.

The applicants filed, before the court a quo, an application for rescission of the said default judgment under HC7268/21. They sought an order in the following terms:

“1. The application for rescission of the Provisional Judgment in case number HC6333/21 be and is hereby granted.

2. The Provisional Judgment granted by this court in the matter HC6333/21 be and is hereby discharged.

3. The Applicant be and is hereby granted leave to defend the main action instituted by the 1st respondent under case number HC6333/21.

4. The 2nd Respondent be and is hereby barred from executing the default order pending the finalization of the matter in case number HC6333/21.

5. 1st Respondent be and is hereby ordered to pay costs of suit on a legal practitioner-client scale.”

The application was dismissed on 13 December 2022....,.

Irked by the dismissal, the applicants have now filed this application....,.

The second applicant deposed to the founding affidavit for this application.

SC50-23 : JANE HOVE vs BEREA MINING SYNDICATE and MO3 MINING SYNDICATE and OFFICER IN CHARGE, MINERALS FLORA AND FAUNA UNIT, ZVISHAVANE and PROVINCIAL MINING DIRECTOR, MIDLANDS and M J MUNODAWAFA
Ruled By: CHITAKUNYE JA

The second respondent associated itself with the averments of the first respondent.

SC62-23 : GOLDLOCK INDUSTRIES 2003 (PVT) LTD vs SHERIFF OF ZIMBABWE and INTERFIN BANKING CORPORATION and AL SHAMS GLOBAL BVI LTD and JAYESH SHAH and OTHERS
Ruled By: MAVANGIRA JA, CHITAKUNYE JA and MUSAKWA JA

This is an appeal against the whole judgment of the High Court (the court a quo) in which it dismissed the appellant's application for a declarator.FACTUAL BACKGROUNDThe appellant is a company under liquidation. The first respondent (Sheriff of Zimbabwe) is cited in his official capacity. The second respondent (Interfin Banking ...

This is an appeal against the whole judgment of the High Court (the court a quo) in which it dismissed the appellant's application for a declarator.

FACTUAL BACKGROUND

The appellant is a company under liquidation. The first respondent (Sheriff of Zimbabwe) is cited in his official capacity. The second respondent (Interfin Banking Corporation) is a banking institution incorporated in terms of the laws of Zimbabwe. The third respondent (Al Shams Global BVI Limited) is a company incorporated in terms of the laws of the British Virgin Islands. The fourth respondent (Jayesh Shah) is a male adult who is also the director of the third respondent. The fifth and sixth respondents (Registrar of Deeds and Master of the High Court) have been cited in their official capacities.

On 12 December 2019, the appellant filed an application for a declarator through its liquidator, who was acting in terms of a certificate of appointment issued by the sixth respondent. In that application, the appellant sought a declaration to the effect, that, it is the owner of a certain piece of land known as Stand 666 Marlborough Township Extension 5 of Subdivision A of Strathmore held under Deed of Transfer No. 8810/2003 (hereinafter called the property).

The appellant also wanted delivery of the original copy of the Deed of Transfer No. 8810/2003, under which the property was held, from the first and third respondents.

The events that led to the application are as follows:

On a date that was not specifically stated, the appellant obtained a loan from the second respondent (Interfin Banking Corporation) which was secured under Mortgage No.2069/2010. The second respondent subsequently went under liquidation, but, before that, it ceded the debts and rights in the mortgage bond registered in its favour, to the third respondent (Al Shams Global BVI Limited). The third respondent later obtained a judgment against the appellant and issued a writ against the property which was sold in execution.

During the sale of the property, which had been declared specially executable by the court on 4 May 2016, the appellant instituted voluntary liquidation proceedings. The first respondent (Sheriff of Zimbabwe) placed the property under a caveat on 24 August 2016. The appellant was placed under provisional liquidation on 9 August 2017 and the order was confirmed on 11 October 2017.

The first respondent conducted a sale in execution on 6 February 2017.

Initially, the fourth respondent (Jayesh Shah) was confirmed as the highest bidder but failed to pay the purchase price. The second highest bidder, who happened to be the third respondent (Al Shams Global BVI Limited), was offered the property and was subsequently confirmed as the winning bidder.

The appellant claimed, that, the sale had been confirmed without it being given the required fifteen (15) days notice to object to the sale in terms of the repealed High Court Rules 1971. In addition, the appellant claimed, that, there had been a sham scheme by the third and fourth respondents, with the fourth respondent being a major shareholder of the third respondent. The appellant claimed, that, the fourth respondent was competing with himself by offering the highest bid which he failed to pay so that the third respondent would be declared the second highest bidder.

When the order for the final liquidation of the appellant was granted by the court, on 11 October 2017, the property had not been transferred to the third respondent.

The appellant's liquidator requested the first respondent to give him the title deeds of the property. However, the first and third respondents are said to have refused to hand over the original copy of the Deed of Transfer.

This prompted the appellant to file an application for a declaratur in the court a quo.

It is in that application that the liquidator of the appellant disclosed that he had already sold the property to one Mr Manyika, on 24 July 2017, for the amount of US$190,000 and that the purchaser had paid the full purchase price and was awaiting transfer of the property.

The liquidator submitted, that, he was allowed, at law, to sell the mortgaged property in order to pay off creditors.

The application was opposed by the second respondent who contended, that, it had been unnecessarily joined to the proceedings as it would not be affected by the relief sought by the appellant.

The third respondent also opposed the application and raised four points in limine:

(i) Firstly, the third respondent argued, that, there was an existing matter pending before the court a quo, under HC11203/17, which was premised on the same cause of action as the court application that was before the court.

(ii) The second issue raised was that the non-joinder of Mr Manyika as a party to the proceedings was fatal to the application.

(iii) The third respondent also argued, that, the appellant ought to have sought leave to institute proceedings against the second respondent which was under liquidation.

(iv) In addition, the third respondent contended, that, the application was fatally defective due to the appellant's failure to obtain leave to institute proceedings against it as it is a peregrinus.

In relation to the merits of the case, the third respondent opposed the application on the basis, that, the appellant had no real right of dominium over the property which had been declared specially executable by the court. The third respondent asserted, that, the property had been sold in execution before the appellant was placed in liquidation. It also argued, that, as the property had been bonded owing to the debt due to the third respondent, as ceded by the second respondent, the appellant ought to have sought the consent of the second and third respondents before selling the property.

Moreover, the third respondent prayed for the application to be dismissed, with costs borne by the liquidator of the appellant in his personal capacity.

The fourth respondent also opposed the application. As the fourth respondent had deposed to the third respondent's opposing affidavit, in his capacity as its director, he associated himself with the averments made in that affidavit.

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS
Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

The four appeals are against parts of the High Court's Judgment HB157-23 (“the court a quo”) which was handed down on 27 July 2023.

The appeals are against the decision of the court a quo setting aside the thirteenth respondent's decision to accept the appellants nomination papers as candidates for the impending harmonised general elections.

The four appeals SCB59/23, SCB60/23, SCB61/23 and SCB62/23 were consolidated and heard by this Court on 2 August 2023.

On 3 August 2023, we issued the following order:

1. The appeals be and are hereby allowed with costs.

2. The judgment of the court a quo be and is hereby set aside and substituted as follows:

'The applications be and are hereby dismissed with costs.'

3. The reasons for the court's decision will follow in due course.”

We undertook to furnish reasons for our disposition. These are they.

FACTUAL BACKGROUND

On 21 June 2023, the fourteenth respondent constituted a Nomination Court to receive submissions for the nominations of candidates for the election of constituency members to the National Assembly for the Bulawayo Metropolitan Province. This was in accordance with Proclamation 4 of 2023, gazetted under S.I. 85 of 2023 by the President.

The determinant facts of this appeal emanate from the events that transpired on 21 June 2023 at the Nomination Court.

The appellants appeared before the Nomination Court for their nominations as candidates for elections scheduled for 23 August 2023. The nomination officer accepted their nominations and registered them as candidates.

The respondents, except for the thirteenth to fifteenth respondents, applied to the court a quo for the setting aside of the appellants (respondents a quo) nominations. They alleged, that, their nomination papers were in disarray. They further alleged that when the appellants lodged their papers, before 4pm, they were advised to correct them. The respondents further alleged, that, the appellants thereafter filed their corrected papers out of time, after 4pm, in violation of the Electoral Act [Chapter 2:13] (“the Act”). They further alleged that, by 4pm, the appellants were outside the courtroom frantically trying to rectify their nomination papers. They further asserted, that, such nominations were null and void.

In response, some of the appellants asserted that their papers were in order and that they lodged them with the nomination officer who accepted them before 4pm. The other appellants stated, that, their papers had errors which were pointed out by the Nomination Court and were corrected and filed with the nomination officer before 4pm. Some of the appellants maintained, that, they were in court with their corrected papers which were accepted before 4pm.

In his opposing affidavit, the 13th respondent, Innocent Ncube, in his official capacity as the Provincial Elections Officer, and, for and on behalf of the Zimbabwe Electoral Commission (“ZEC”) and the Chairperson of ZEC, indicated that the nomination papers were procedurally and timeously lodged between 10am and 4pm. He also pointed out that the designated courtroom could only accommodate 12 to 15 people at any time. During the proceedings, at 3:55pm, he announced that all prospective candidates who were queuing outside because of his administrative decision (to allow 12 to 15 people at any time) should hand over their nomination papers to the police officer as the court was due to close at 4pm. The police officer collected all the nomination papers and handed them over to the thirteenth respondent before 4pm. Thereafter, the nomination officer would call in those whose papers he would be processing.

In respect of the form, Annexure “B” relied upon by the applicants a quo, he pointed out that it was a register in which the secretary captured the times when the nomination forms were inputted into the Zimbabwe Electoral Commission's (ZEC) records. In other words, he stated that the form was for the purpose of data capture into ZEC's system and not a record reflective of the time when the nomination papers were lodged with the nomination officer.

On the basis of the above facts, the court a quo found for the applicants a quo (now respondents). It held that the appellants nominations had been lodged after the stipulated cut-off time of 4pm. It, therefore, declared the nominations of the appellants as null and void.

PROCEEDINGS BEFORE THE COURT A QUO

The parties made submissions on both the preliminary points and the merits before the court a quo, after which the court a quo rendered a composite judgment for all the applications, which had been consolidated by consent.

Counsel for the thirteenth, fourteenth, and fifteenth respondents raised a preliminary point, that, the court a quo had no jurisdiction. He submitted that all the applications ought to have been filed in the Electoral Court.

Counsel for the first to the sixth appellants associated himself with the submissions made by counsel for the thirteenth, fourteenth, and fifteenth respondents on jurisdiction.

He further submitted, that, there was no application before the court because the first to twelfth respondents had irregularly truncated the dies induciae. Counsel also argued that the respondents had no locus standi and that the applications were based on hearsay evidence. He submitted that the first to twelfth respondents had not attended the Nomination Court but sought to rely on social media reports and a document, Annexure “B” which was differently interpreted by the Electoral Commission.

He also argued in limine, that, there were material disputes of fact that could not be resolved on paper.

He further submitted, that, there was a material non-joinder of Citizens Coalition for Change party (CCC) which had sponsored some of the appellants. In support of this assertion, he contended that the party would be prejudiced in obtaining proportional representation seats.

Finally, on preliminary points, counsel submitted that the applications were an abuse of the court process.

Counsel for the seventh to twelfth appellants in SCB59/23 associated himself with the preliminary points raised by counsel for the thirteenth, fourteenth, and fifteenth respondents and counsel for the first to the sixth appellants. He emphasised that the applications were based on hearsay evidence and that only the Electoral Court had exclusive jurisdiction to hear the applications.

Counsel for the first to fourth appellants in SCB61/23 associated himself with submissions made by counsel who addressed the court before him.

Counsel for the appellants in SCB60/23 also associated himself with submissions that had been made by counsel before him.

Per contra, counsel for the first to twelfth respondents opposed all the preliminary points raised, characterising them as meritless.

He relied on the case of Kambarami v 1893 Mthwakazi Restoration Movement Trust and Others SC66-21 for the proposition, that, the court had jurisdiction. Regarding the validity of the applications, he submitted that the parties had attended a case management meeting and agreed on truncating the dies induciae.

On locus standi, he submitted that the respondents had a legitimate interest in the nomination proceedings because they had a direct and substantial interest in the outcome of the process. In relation to the applications being based on hearsay evidence, he contended, that, the respondents relied on public information and that there was Annexure “B” which supported their position. He further submitted that there were no material disputes of fact. A robust approach would resolve the matter.

Counsel for the first to twelfth respondents further submitted, that, the applications a quo were not an abuse of the court process given the substantial interests which the respondents had in the nomination of candidates for the constituencies where they were registered voters.

Finally, in relation to the non-joinder of Citizens Coalition for Change party (CCC) he argued that the party had no direct and substantial interest in the acceptance of the nomination papers.

The court a quo deferred the determination of the preliminary points to the end of the hearing and sought to be addressed on the merits.

Counsel for the first to twelfth respondents submitted, in support of the applications, that, the nominations ought to be nullified since they were accepted after 4pm in defiance of section 46 of the Electoral Act [Chapter 2:13]. He further submitted that the nomination officer unlawfully opened the court to specifically allow the affected candidates to present their papers out of time. He argued that the police officer who collected the papers was not a nomination officer. Annexure “B” confirmed that the nomination papers were filed out of time.

Counsel for the thirteenth to fifteenth respondents submitted that Annexure “B” was not a document reflective of the times when the nomination papers were lodged with the nominations officer. Further, he submitted, that, the nomination papers were submitted and received before the cut-off time of 4pm on the day in question. He emphasised that the officers of the Zimbabwe Electoral Commission (ZEC) who placed evidence before the court, through their supporting affidavits, spelt out that no nomination papers were submitted after 4pm. Finally, he submitted that there was no breach of section 46 of the Electoral Act.

Counsel for the first to the sixth appellants in SCB59/23 submitted, that, the respondents were relying on hearsay evidence that the social media was awash with; information that the appellants nomination papers were in disarray and filed out of time. He pointed out that the appellants filed their papers in compliance with section 46 of the Electoral Act before 1600 hours. Further, in opposing the allegations, he relied on the Zimbabwe Electoral Commission (ZEC) and the nomination officer's evidence that Annexure “B” was not a document indicative of the lodgement of nomination papers, but, that the time reflected on it related to the time of data capture.

Counsel for the seventh to twelfth appellants in SCB59/23 was also critical of Annexure “B” and he agreed with submissions by counsel for the first to the sixth appellants in SCB59/23 on it. He submitted that the respondents were relying on hearsay evidence and that they failed to discharge the onus and to prove the factual basis of their allegations. Their evidence was speculative as they relied on social media assertions.

Counsel for the appellants in SCB60/23 associated himself with submissions made by counsel who addressed the court before him. He emphasised, that, his clients submitted their nomination papers on time. He further added that the collection of nomination papers by the police officer, at the instruction of the nomination officer, did not amount to contravening section 46 of the Electoral Act.

Counsel for the first to fourth appellants in SCB61/23 associated themselves with counsel for the other appellants submissions.

DETERMINATION OF THE COURT A QUO

The court a quo gave a composite judgment. It dismissed all the preliminary points and made a finding that Annexure “B” was a document prepared by a Zimbabwe Electoral Commission (ZEC) official and that it spoke for itself, that, the nomination papers were submitted after 4pm. It found that the submission of papers from the appellants, through the police officer, was unlawful. It thus declared the nominations as null and void and issued the following order:

“IT IS DECLARED THAT:

1. That, the decision of the 1st Respondent, sitting as a nomination court at Bulawayo on 21 and/or 22 June 2023 to accept the following Respondents nomination papers and candidature in the elections scheduled to be conducted on 23 August 2023 was in contravention of section 46(7) & (8) of the Electoral Act [Chapter 2:13].

2. That, the decision of the 1st Respondent, sitting as a Nomination Court at Bulawayo on 21 and/or 22 June 2023, to accept the following Respondents nomination papers and candidature in the elections scheduled to be conducted on 23 August 2023 is declared null and void and is hereby set aside.

ACCORDINGLY, IT IS ORDERED THAT:

3. 1st Respondent is prohibited from including the names of the following Respondents in the preparation of ballot papers to be used in the general elections scheduled to be conducted on 23 August 2023.

4. Respondents shall jointly and severally pay the costs of suit.

OBERT MANDUNA; ERECK GONO; DOUGLAS NCUBE; GIFT SIZIVA; SANPOULUS MAPLANKA; PRINCE DUBE; NQOBIZITHA NDLOVU; DESMOND MAKAZA; BAJILA COLLINS DESCENT; SICHELESILE MAHLANGU; DESIRE MOYO; ALELAIDE MHLANGA; NOMPILO BHEBHE; SURRENDER KAPOIKILU; RAPHAEL PASHOR SIBANDA; NTANDOYENKOSI MINENHLE GUMEDE; FRANK MHLANGA.

5. The application against Zvikwete Innocent Mbano be and is hereby dismissed with costs.

6. The application against ADMORE GOMBA, NIGEL NDLOVU, SONENI MOYO, DINGILIZWE TSHUMA, STRIKE MKANDLA & ALBERT MHLANGA be and is hereby withdrawn.”...,.

SUBMISSIONS BEFORE THIS COURT

(a) Preliminary Issues

Counsel for the first to the twelfth respondents raised three preliminary issues....,.

The second point raised was that the appeals were fatally defective because the appellants appealed against the whole judgment instead of the parts that affected them.

He further pointed out that some of the appeals did not cite some of his clients who were applicants before the court a quo. This was particularly argued to be the case with SCB60/23. In his view, such an omission denied parties who were before the High Court the right of audience. It was contended, that, the appeals could not be valid appeals if they left out interested parties....,.

Eventually, all parties agreed that in light of the decision of the Constitutional Court in the case of Chamisa v Mnangagwa CC21-19 it was not necessary to dwell on the preliminary issues. Moreso considering the role of the court in matters of public importance as set out in the cited case.

Counsel for the first to twelfth respondents abandoned the preliminary points and accepted that the appeal be determined on the merits.

View Appeal
HH159-13 : KINGDOM MERCHANT BANK LIMITED vs JAYESH SHAH and SATURN TRADING AND INVESTMENTS LIMITED
Ruled By: MATHONSI J

On 6 July 2004, the applicant issued summons against the respondents, jointly and severally and in solidium, for payment of US$900,000 which it alleged was overpayment of a loan advanced by the second respondent to the applicant for onward lending to third parties.

It alleged, that, in terms of the agreement between the parties, the second respondent would receive repayments directly from third parties, and, if any over-payment occurred, such would be refunded to the applicant.

The applicant averred, that, in breach of the parties agreement, the second respondent had failed to refund the money.

In the alternative, the applicant pleaded that the second respondent had been unjustly enriched by the over payment at the expense of the applicant.

It further averred, that, the first respondent was at all material times a director and/or agent of the second respondent who was fully aware of the agreement, and, in the exercise of his duties with the second respondent, the first respondent was obliged to exercise care towards the applicant.

In breach of that duty of care, the first respondent had carried out the second respondent's business negligently, recklessly, fraudulently, and without due care, resulting in the applicant suffering loss in the amount claimed.

The first and second respondents defended the suit, and, in due course, filed a joint plea in which they put in issue the existence of the loan agreement and the terms alleged.

They also disputed the overpayment and the amount claimed, averring that they were under no obligation to pay the applicant the amount claimed or any amount.

In respect of the allegation of unjust enrichment, they averred, in paragraph 10, as follows:

“10 Ad Paragraph 8 (Alternative claim)

This is denied. The defendants deny that the (sic) they were enriched as alleged in the sum of USD900,000 or at all. The second defendant (the first respondent in casu) denies this and puts the plaintiff to the proof thereof.”

The first respondent also denied owing the applicant a duty of care and denied the allegations of negligence, recklessness, or fraud in the conduct of the second respondent's business.

At the pre-trial conference held before a judge, on 26 September 2006, the applicant obtained leave, with the consent of the respondents, to amend its declaration by the deletion of paragraph 4 and the substitution of the following paragraph:

“4. In or about April 2002, and at Harare, the parties entered into two contracts in terms of which the first defendant lent and advanced US$4,000,000 and US$2,500,000 respectively to the plaintiff at the latter's special request and instance for onward lending to third parties.”

The amendment granted by consent at the pre-trial conference also incorporated an amendment of the discovery affidavit to include in the schedule of discovered documents “copies of the memorandum of agreements between the plaintiff and the defendant.”

The matter was then set down for trial on 29 January 2007, but, was postponed sine die for some reason.

Much later, on 30 November 2007, the applicant's legal practitioners wrote to the first respondent's legal practitioners requesting their consent to amend the applicant's declaration further. They stated:

“Re: KINGDOM MERCHANT BANK LIMITED v SATURN TRADING AND INVESTMENTS LIMITED AND JAVESH SHAH: CASE NO. HC8618/04

We refer to the above matter. Please take note that we wish to amend our client's declaration. The proposed amendment, for purposes of clarity and convenience, will be done by substitution in terms of Order 20 Rule 133. Please find attached hereto copy of our client's Amended Declaration. We request your consent to amendment so that the same may be filed by consent.

Further, the proposed amendment will not cause any prejudice to your client as it is unlikely to affect his defence to the claim. Please kindly let us hear from you within (5) five days from the date of service of this letter on you.”

Needless to say, that, the first respondent did not accede to the request for his consent. His legal practitioners responded by letter, dated 6 December 2007, which reads:

“KINGDOM MERCHANT BANK LIMITED v SATURN TRADING AND INVESTMENTS LIMITED AND JAVESH SHAH: CASE NO. HC8618/04

We refer to your letter to us dated 30th November 2007 and the annexed draft amended declaration.

We regret to advise, that, we cannot accede to the consent that you seek as we do not believe that your client has any valid legal grounds or basis for seeking such an amendment, and, in any event, we believe that no court will grant the amendment at this stage. Accordingly, should your client wish to proceed, it must file a court application, on notice to ourselves, giving the usual ten (10) days period within which we may object to the application to amend the declaration.

In the meantime, our client's rights, in respect of your proposed amendment and the principal claim already framed, remain fully reserved.”

Faced with that scenario, the applicant was forced to launch this application for leave to amend the declaration in terms of Order 20 Rule 132 of the High Court of Zimbabwe Rules 1971 alleging that the amendment is necessary to clarify the existing causes of action, inter alia, to bring up unjust enrichment, fraud, and theft as a further alternative cause of action against the first respondent personally.

The applicant insisted, that, the amendment was merely a lucid and clearer exposition of the claim which does not raise a different cause of action, and that no prejudice would be suffered by the respondents who had already pleaded denying any form of liability.

The first respondent opposed the application, essentially on the basis that the proposed amendment has come rather late in the day, being made more than four years after the action was instituted, after the trial had been postponed on 29 January 2007. For that reason, any cause of action that may have existed has long prescribed in terms of the law.

The first respondent takes the view, that, it is not the practice of this court to allow wholesale amendments and substitution of a declaration.

According to the first respondent, the application is meant to delay the finalisation of the matter and to frustrate his application for dismissal of the applicant's claim for want of prosecution, which was filed as HC401/07.

This is particularly so as any amended declaration would have to be served on the second respondent, which is a peregrinus, outside this jurisdiction.

I should, straight away, dispose of the last two submissions.

It is now a matter of record, that, the applicant obtained an order of this court, on 4 October 2007, granting leave to serve summons and declaration, and other processes, on the second respondent, a peregrinus, at an address in the British Virgin Islands.

That issue should therefore not detain us in this matter any further.

In addition, it is also on record, that, the first respondent's application for dismissal of the applicant's action in HC8618/04 for want of prosecution, which was filed as HC444/08 was disposed of by a consent order granted on 8 October 2008.

Again, submissions on that point have been overtaken by events and should not detain us at all.

Order 20 Rule 132 of the High Court Rules, under which this application has been made, provides:

“Subject to rules 134 and 151, failing consent by all parties, the court or a judge may, at any stage of the proceedings, allow either party to alter or amend his pleadings, in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purposes of determining the real question in controversy between the parties.”…,.

In terms of Rule 133, where the amendments are so numerous or of such a nature that the making of them in writing would render the document difficult or inconvenient to read, copies of the pleadings, as amended, should be filed.

This is what the first respondent has referred to as a wholesale substitution of the declaration.

In our law, the granting or refusal of leave to amend is a matter entirely in the discretion of the court. The discretion reposed in a judge must be judicially exercised. A court will generally grant such amendments as are necessary for the purpose of determining the real question in controversy between the parties: see Copper Trading Co. (Pvt) Ltd v City of Bulawayo 1997 (1) ZLR 134 (S)…,.

In Copper Trading Co. (Pvt) Ltd v City of Bulawayo 1997 (1) ZLR 134 (S), the Supreme Court (per KORSAH JA) went on to state…, that:

“It is paramount that the discretion reposed in the court, in respect of amendments, be exercised in a manner which allows the issues between the parties to be fairly tried. The fact that the amendment might lead to the defeat of the other party is not the kind of prejudice which should weigh with the court: GMF Kontrakteurs (Edms) Bpk & Anor v Pretoria City Council 1978 (2) SA 219 (T) at 222C–F.”

In D D Transport (Pvt) Ltd v Abbot 1988 (2) ZLR 92 (S)…, GUBBAY CJ quoted with approval the sentiments of WESSELS J in Whittaker v Ross & Anor 1911 TPD.., that:

“This court has the greatest latitude in granting amendments and it is very necessary that it should have. The object of the court is to do justice between the parties. It is not a game we are playing, in which, if some mistake is made, the forfeit is claimed. We are here for the purpose of seeing that we have a true account of what actually took place, and we are not going to give a decision upon what we know to be wrong facts.”

Indeed, the modern approach of this court has always been in favour of granting applications for leave to amend whenever the amendment facilitates the proper ventilation of the dispute between the parties: see C F Hutchison and N Atkinson N.O. v Logan HH91-98; Ncube v Moyo HB105-10.

In Commercial Union Assurance Co. Ltd v Waymark N.O. 1995 (2) SA 73 (T) which was quoted with approval by CHINHENGO J in UDC Limited v Shamva Flora (Pvt) Ltd 2000 (2) ZLR 210 (H)…, principles governing amendments were set out as:

“1. The court has a discretion whether to grant or refuse an amendment.

2. An amendment cannot be granted for the mere asking, some explanation must be offered therefore.

3. The applicant must show, that, prima facie, the amendment has something deserving of consideration, a triable issue.

4. The modern tendency lies in favour of an amendment if such 'facilitates the proper ventilation of the dispute between the parties'.

5. The party seeking the amendment must not be mala fide.

6. It must not 'cause an injustice to the other side which cannot be compensated by costs.'

7. The amendment should not be refused simply to punish the applicant for neglect.

8. A mere loss of time is no reason, in itself, to refuse the application.

9. If the amendment is not sought timeously, some reason must be given.”

I propose to be guided by these principles in deciding this application.

I have already made reference to the provisions of Rule 132 of the High Court Rules, that, an amendment can be made at any stage of proceedings.

In casu, the matter was once set down for trial, but, the trial did not take off. It currently awaits set down. Therefore, nothing turns on the timing of the application for amendment as the parties have ample time, before the set down, to deal with the amendment.

Counsel for the applicant submitted, that, the proposed amendment was informed by a desire to clarify the cause of action and introduces no new cause of action.

The first respondent, who appeared in person and presented his case very well and with authority, submitted that the averment that he was unjustly enriched personally was not contained in the original declaration and that its introduction at this late stage is prejudicial to him because that claim has prescribed.

I do not agree.

The applicant's claim has always been for payment of $900,000 against the second respondents, jointly and severally. The first respondent had already been roped in on the allegation of negligence, fraud, and acting without due care. Unjust enrichment had already been pleaded, and it is the clarity of that pleading which was lacking.

To my mind, there is therefore a pressing need to effect an amendment that would properly ventilate the real dispute between the parties.

I am unable to find any prejudice that can be suffered by the first respondent if the proposed amendment is granted.

He was always being sued for $900,000 in his personal capacity and the claim, on the basis of unjust enrichment, was always there, only that it had not been pleaded with sufficient clarity, hence the need to effect an amendment.

The applicant has given a satisfactory explanation for seeking the amendment and it is desirable, in light of the numerous changes in the declaration, that a new declaration, as amended, incorporating all the amendments, be filed in terms of Rule 133 of the High Court Rules.

I am persuaded, that, indeed, the proposed amendment bellies real triable issues. For instance, it is pertinent that the trial court decides the issue of whether the first respondent was unjustly enriched at the expense of the applicant.

To my mind, the proposed amendment is an honest one, propelled by a genuine desire to succinctly ventilate the dispute between the parties. To the extent that it does not introduce new material, it cannot, by any stretch of the imagination, be said to be mala fide and cannot cause an injustice between the parties.

I have already stated, that, this is a matter that is yet to be set down for trial, and, as such, the timing of the amendment is certainly not an issue. The parties still have more than enough time to deal with it. In all circumstances, justice demands that the amendment be granted in order to effectively arm the court to determine the dispute between the parties.

In the result, it is ordered that:

1. The applicant be and is hereby granted leave to amend its declaration by the substitution of the original declaration with the draft annexed to this application as annexure “D”.

2. The said amended declaration shall be filed within five days of this order and a copy served upon the respondents.

3. The respondents be and are hereby granted leave to amend any of their pleadings, if they so wish, within twenty days of service of the amended declaration upon them.

4. The costs of this application shall be costs in the main action.

Appealed
SC04-17 : JAYESH SHAH vs KINGDOM MERCHANT BANK LIMITED
Ruled By: GWAUNZA JA, GUVAVA JA and MAVANGIRA JA

This is an appeal against the whole of the judgment of the High Court handed down on 22 May 2013. This was a matter in which the court granted the respondent leave to further amend its declaration.

The background to the matter may be summarised as follows:

On 6 July 2004, the respondent issued summons against the appellant and Saturn Trading and Investments Limited (“Saturn Trading”) jointly and severally and in solidum for payment of US$900,000 [Nine Hundred Thousand United States Dollars]. The respondent alleged, that, this amount represented overpayment of a loan advanced to Saturn Trading for onward lending to third parties.

In terms of their alleged agreement, the respondent purported that Saturn Trading would receive repayments directly from the third parties concerned, and, if any over-payment occurred, such would be refunded to the respondent.

Allegedly, in breach of the parties agreement, Saturn Trading failed to refund money which had been overpaid to it.

The respondent then sued Saturn Trading in the High Court, claiming, in its declaration, that, it had been unjustly enriched by the overpayment at the respondent's expense. Further in that suit, the respondent sued the appellant on the grounds that as director, agent, or alter ego of Saturn Trading, he was fully aware of the transactions in question, and, hence, had a duty of care towards the respondent. In breach of that duty, the respondent charged that the appellant had carried out Saturn Trading's business negligently, recklessly, fraudulently and without due care resulting in the respondent suffering loss in the amount claimed.

It is common cause that both Saturn Trading and the appellant defended the suit, disputing the existence and terms of the alleged loan agreement, the alleged over-payment, and any duty of care whatsoever towards the respondent, on the part of the appellant.

At the pre-trial conference which was held on 26 September 2006, the respondent obtained leave, with the consent of the appellant, to amend its declaration by the deletion of a certain paragraph and its substitution with another.

After the pretrial conference, the matter was set down for trial on 29 January 2007, but, for reasons which are not apparent from the papers, it was postponed sine die.

Some ten months later, on 30 November 2007, the respondent's legal practitioners wrote to the appellant's legal practitioners requesting their consent to further amend its declaration.

The appellant's legal practitioners did not accede to the request.

This prompted the respondent to file an application for leave to amend its declaration in terms of Order 20 Rule 132 of the High Court of Zimbabwe Rules 1971. According to the respondent, this was in order to clarify the existing causes of action.

The appellant opposed the application on the basis, that, the amendment had come late in the day, since it was being made four (4) years after the action was originally instituted, and, as such, the new causes of action which the amendment sought to bring had prescribed.

The court a quo granted the respondent leave to amend its declaration, and any other pleadings which they wished to have amended.

The appellant was aggrieved by this decision and filed this appeal.

Before I turn to address the issues raised by the appeal, it is important to note, that, in this appeal, the Court is being called upon to interfere with the exercise of a discretion by the judge a quo.

The judge correctly stated as follows in this respect:

“In our law, granting or refusal of leave to amend is a matter entirely in the discretion of the court.”

That the court has this discretion is evident in Rule 132 of Order 20 of the High Court Rules. The Rule provides, that, the court may allow a party, at any stage of the proceedings, to amend his pleadings and that:

“.., all such amendments shall be made as may be necessary for purposes of determining the real question in controversy between the parties.”

While Rule 132 of the High Court Rules is made subject to Rule 134, I do not find the latter Rule to be applicable to the circumstances of this case, since it specifically deals with an amendment to the pleadings that has the effect of including or substituting a cause of action arising after the issue of summons.

This has not been claimed in casu.

This court, however, has the power to interfere with the exercise of the court a quo's discretion in appropriate circumstances, as aptly explained as follows in HERBSTEIN & Van WINSEN, 5th ed…,.;

“The court, on appeal, will interfere where the exercise of the discretion has not been proper, or has been based upon a wrong principle, or upon a wrong view of the facts; where the court has purported to exercise its discretion without sufficient legal grounds for doing so….,.”

See also Barrows & Anor v Chimphonda 1999 (1) ZLR 58 (S)…,.

The appellant contends, that, the court a quo improperly exercised its discretion in granting the respondent leave to amend its declaration. This is because, he further contends, the court relied not only on wrong principles of the law, it also failed to take into account a crucial and relevant factor, that is, the issue of prescription.

As is evident from the appellant's grounds of appeal, the two issues on the basis of which it is alleged that the court a quo improperly excercised its discretion relate to the question of whether or not the proposed amendment raised new causes of action, and, if so, whether, in the circumstances of the case, the new causes of action had prescribed.

Whether or not the amendment brings about new causes of action

Counsel for the appellant argued, that, the court a quo should not have granted leave to amend the declaration for the reason that the amendment has the effect of introducing unjust enrichment, fraudulent misrepresentation, and theft, as new causes of action.

Counsel for the respondent, on the other hand, contends that leave to amend was correctly granted by the court a quo in terms of Rule 132 of the High Court Rules, which permits amendments in respect of any cause of action.

Despite his initial submission that all the allegations had been pleaded in the original declaration and that the amendment merely sought to clarify these allegations, counsel for the respondent, during the hearing, conceded that theft was indeed sought to be introduced as a new cause of action.

He argued, in respect of personal unjust enrichment of the appellant, and fraud, that the proposed amendment was aimed only at clarifying the claims originally made in the initial declaration.

The court a quo was persuaded by the submissions made in this respect for the respondent, as is evident from the following remarks on p6 of its judgment:

“The first respondent (appellant in casu)…, submitted that the averment that he was unjustly enriched personally was not contained in the original declaration, and that, its introduction at this stage is prejudicial to him because that claim has prescribed.

I do not agree.

The applicant's claim has always been for payment of $900,000 against the second respondents (sic) jointly and severally. The first respondent had already been roped in on the allegation of negligence, fraud and acting without due care. Unjust enrichment had already been pleaded, and, it is the clarity of that pleading which was lacking. To my mind, there is therefore a pressing need to effect an amendment that would properly ventilate the real dispute between the parties.”…,.

A closer look at the disputed claims of fraudulent misrepresentation and unjust enrichment, as articulated in the original declaration, would, in my view, assist in the determination of whether or not they constituted new causes of action.

The respondent (as plaintiff) in its declaration pleaded as follows:

“By reason of the said overpayment, the first defendant has been unjustly enriched in the sum of US$900,000 at the expense of the plaintiff.

At all material times, the second defendant (appellant in casu) was the director and/or agent for the first defendant and was fully aware of the aforesaid contract between the plaintiff and the first defendant.

In the exercise of his duties, the second defendant was negligent in one or more of the following:

(a) He carried first defendant's business recklessly; and/or

(b) He carried first defendant's business negligently; and/or

(d) He carried first defendant's business without due care.

By reason of the said negligence of the second defendant:

(a) The plaintiff suffered loss/damages in the sum of US$900,000 being overpayment to the first defendant; and/or

(b) The first defendant was unjustly enriched in the sum of US$900,000 being overpayment to the first defendant.”…,.

Fraudulent Misrepresentation

What is evident from this claim, on a strict interpretation of the simple meaning of the words employed, is that the basis for suing the appellant jointly and severally with Saturn Trading, in so far as the alleged fraudulent representation is concerned, was the perception that he was negligent by virtue of having 'fraudulently' run the business of Saturn Trading. Further, one may understand the words to evince a perception that the appellant was also 'negligent' by virtue of 'negligently' running the affairs of Saturn Trading.

There is, in my view, no doubt that this part of the claim was clumsily drafted.

It not only seeks to define fraudulent behaviour as 'negligence' it also nonsensically seems to suggest that one may be 'negligent' by acting negligently!

The respondent itself conceded this shortcoming on its part when it stated in its application in the court a quo, that, the claims had been 'insufficiently and imperfectly' pleaded in its original declaration.

Be that as it may, it is apparent that the question of fraudulent representation linked to the appellant was one that exercised the minds of both the respondent and the appellant, although it was not succinctly and clearly articulated in the declaration.

Evidence of the appellant's appreciation of the issue is found in the joint plea of the appellant and Saturn Trading a quo, where the former categorically denied that he had acted 'recklessly, negligently or fraudulently' in carrying out Saturn Trading's business 'as alleged or at all'....,.

Unjust Enrichment

As already indicated, the learned judge a quo took the view that unjust enrichment (of both the appellant and Saturn Trading') had 'already' been pleaded and all that remained was to clarify the said pleading.

The basis of this finding was paragraph 10 of the joint plea of the appellant and Saturn Trading, which was a response to the respondent's allegation (in its declaration) that the second defendant, Saturn Trading, had been unjustly enriched as a consequence of the appellant's conduct in running its affairs.

The appellant and Saturn Trading responded as follows in their plea:

“10. Ad Para 8 (Alternative Claim)

This is disputed. The defendants deny that they were enriched as alleged in the sum of USD900,000 or at all. The 2nd Defendant denies this and puts the Plaintiff to the proof thereof.”…,.

While, on the face of it, one may conclude that the appellant pleaded to a claim not made against him, I find the real significance of his response to be the insight it gave as to what, in the appreciation of the parties, was the real dispute between them.

As in the case of the alleged fraudulent misrepresentation, this appreciation could only have been buttressed by the relief that the respondent sought, jointly, against the appellant and Saturn Trading...,.

SC34-17 : ZIMSLATE QUARTZITE (PVT) LTD and ARMINCO INVESTMENTS (PVT) LTD and TINASHE CHIMANIKIRE and MOHMED MAHMED vs CENTRAL AFRICAN BUILDING SOCIETY
Ruled By: ZIYAMBI AJA

On 29 January 2016, the applicants noted an appeal against a judgment of the High Court dated 20 January 2016 in which the applicants were ordered, jointly and severally, the one paying the others to be absolved, to pay to the respondent the sum of US$324,815=49 plus interest thereon at the rate of 20 per cent per annum from 24 October 2013, such interest to be calculated monthly in advance on the said sum and capitalized, to the date of payment in full.

It was further ordered, that, the immovable property, being certain piece of land situate in the district of Marandellas called Stand 130 Marandellas Township, measuring 3,1474 hectares, held by the second applicant under Deed of Transfer Number 4905/2002, be declared executable in recovery of the said sum and that the applicants pay costs of suit on the scale of legal practitioner and client.

In the notice of appeal, the address for service was given as that of the applicants legal practitioners, namely, 10 Mold Crescent, Avondale, Harare for the first, second, and third applicants, and 2nd Floor Tanganyika House, Cnr 3rd Street & K. Nkrumah Ave, Harare for the fourth applicant.

Also in the notice of appeal was a statement to the effect, that, the applicants undertook to pay security for the costs of the appeal as soon as they were determined by the Registrar.

Rule 34(1) of the Rules of this Court (“the Rules”) requires such costs to be paid at the time of filing the notice of appeal or within a period of not more than five days unless an undertaking is made, to the Registrar of the High Court, to pay the costs as soon as they are determined.

Rule 34(1) of the Supreme Court Rules provides:

“(1) The appellant, unless he has been granted leave to appeal in forma pauperis, shall, at the time of the noting of an appeal in terms of Rule 29 or within such period therefrom, not exceeding five days, as the Registrar of the High Court may allow, deposit with the said Registrar the estimated cost of the preparation of the record in the case concerned:
Provided that the Registrar of the High Court may, in lieu of such deposit, accept a written undertaking by the appellant or his legal representative for the payment of such cost immediately after it has been determined.”

It is not clear whether any undertaking was made to the Registrar of the High Court.

I entertain grave doubt as to whether the statement in the notice of appeal amounts to an undertaking as required by the Rule which stipulates that the undertaking must be made in writing 'to the Registrar of the High Court'.

However, be that as it may, on 26 May 2016, the Registrar of the High Court wrote to the applicants instructing them to deposit $3,200 with the Registrar, as costs for preparation of the appeal record, within five days of service of the letter upon them. A copy of the letter, annexed to the application, was delivered at the first to third applicants address for service on 5 June 2016.

The applicants legal practitioners were not found at that address. They had relocated. No forwarding address was left.

In terms of Rule 10 of the Rules, the applicants were to advise the Registrar of any change of address.

They did not do so.

On 6 July 2016, the Registrar of this Court wrote to the applicants legal practitioners advising them that the appeal was deemed to have lapsed in terms of Rule 34(5) of the Rules. The letter, a copy of which is annexed to the applicants founding affidavit, is directed to all the applicants at their respective addresses for service.

The applicants did not respond despite the acknowledgement by Mr Musarira, who filed the supporting affidavit on behalf of the applicants, that:

“First to third Applicants new address for service is 5 Lomagundi Road, Harare, upon which the letter of lapse was served.”…,.

On 14 July 2016, the respondent's legal practitioners wrote to the applicants legal practitioners noting, that, their appeal had been dismissed and demanding payment in terms of the judgment by close of business on 19 July 2016 failing which they would proceed to execute the judgment without further notice.

The letter addressed to the fourth applicant's legal practitioners was signed by the latter in acknowledgement of receipt. The letter to the first to third applicants was not acknowledged.

The respondents aver, that, upon enquiry with the Law Society of Zimbabwe as to the whereabouts of the applicants legal practitioners, they were furnished with the address from which the legal practitioners had moved.

On 22 July 2016, the applicants filed an application 'for REINSTATEMENT OF APPEAL AND EXTENSION OF TIME WITHIN WHICH THE APPEAL SHOULD BE HEARD IN TERMS OF RULE 31 OF THE SUPREME COURT RULES AS READ WITH PARAGRAPH 5 OF PRACTICE DIRECTIVE 3/13.'

That application was struck off the roll with costs on 14 February 2017 by GUVAVA JA who heard it.

The applicants aver, that, it was struck off because neither Rule 31 nor Practice Directive 3 of 2013 provides for such an application.

In that application, the applicants blamed the Registrar for making no effort to ascertain the new address of the applicants legal practitioners.

The present application was filed on 17 February 2017.

It is, in essence, the same application filed before GUVAVA JA save that the citation of the Rule, in terms of which the application is brought, has been omitted. It is entitled: APPLICATION FOR REINSTATEMENT OF APPEAL AND EXTENSION OF TIME WITHIN WHICH TO APPEAL.

In the draft order, the applicants seek the following order:

“1. The appeal under S-33-16 be and is hereby reinstated.

2. The registrar shall determined (sic) the costs of the record and ensure same is served on all the Applicants address for service.

3. Respondent shall pay costs of suit.”...,.

I move on to determine the merits of the application, in particular, whether cause has been shown by the applicants for the grant of relief in terms of Rule 34(5) of the Supreme Court Rules.

The relief sought by the applicants is set out above…,.:

“1. The appeal under S-33-16 be and is hereby reinstated.

2. The registrar shall determined (sic) the costs of the record and ensure same is served on all the Applicants address for service.

3. Respondent shall pay costs of suit.”

Counsel for the applicants addressed me on the question of the reason for the delay and the prospects of success on appeal.

She submitted, that, this was a proper case for condonation to be granted and for the applicants to be allowed to argue their case on appeal. The applicants, she argued, should not be visited with the consequences of the negligence of their legal practitioners. She argued that there were at least arguable prospects of success on appeal in that the court a quo had found there was no agreement of loan between the first applicant and the respondent, and that, therefore, the suretyship agreements signed by the second to fourth applicants could not stand. In any event, the amount owing was disputed by the applicants, and the court a quo had erred in failing to deal with the argument proffered by the applicants on that issue.

The difficulty with counsel for the applicants submissions, regarding the grant of condonation, is that condonation was not sought by the applicants. Neither in the founding affidavit nor in the draft order filed is any indication given that condonation is being sought.

In an application of this nature, and, indeed, in any application which is necessitated by a breach of the Rules, it is imperative that condonation of failure to comply with the Rule in question be applied for, because, in each case, the applicant is seeking an indulgence from the court.

The impression conveyed in the affidavits filed on behalf of the applicants is that the applicants are entitled to the order sought. No regret is expressed for the infringement of the Rule.

The tone of the founding affidavit is that no fault was to be attributed to the applicants or their legal practitioners, and, that all blame lay at the door of the Registrar who was accused of serving the letter, advising of the costs to be paid, at the wrong address, having failed to ascertain the correct address of the legal practitioners who had relocated.

The fourth applicant is represented by a different firm of legal practitioners. He supported the averments in the founding affidavit.

However, he does not deny receiving the letter. His explanation for the failure to comply with Rule 34(1) of the Supreme Court Rules is that he 'does not remember' being served with a letter from the Registrar requesting costs. Like his co-applicants, he has given no explanation for the delay in filing an application for relief in terms of Rule 34(5) of the Supreme Court Rules. The record shows the 'letter of lapse' (dated 6 July 2016) was received by the first to third applicants. The fourth applicant did not deny receipt of that letter.

In my view, the applicants conduct in this matter exhibits disdain for the Rules.

An applicant, who has infringed the rules of the court before which he appears, must apply for condonation, and, in that application, explain the reasons for the infraction. He must take the court into his confidence and give an honest account of his default in order to enable the court to arrive at a decision as to whether to grant the indulgence sought.

An applicant who takes the attitude that indulgences, including that of condonation, are there for the asking does himself a dis-service as he takes the risk of having his application dismissed.

This is not a proper case, in my view, for exemption of the applicants from the total disregard for the Rules exhibited by their legal practitioners: see Friendship v Cargo Carriers Ltd & Anor 2013 (1) ZLR 1 (S).

The applicants have aligned themselves with their legal practitioners in this regard.

They have not shown that they were desirous of prosecuting the appeal or that the appeal has been noted in good faith and carries prospects of success.

While they dispute the actual amount ordered by the judgment to be paid to the respondents, they have not made payment of the amounts that they acknowledge to be owing.

That fact, together with their failure to make payment of the costs or estimated costs of preparation of the record, and the prayer in the draft order requiring the Registrar, again, to assess the costs and serve the assessment on their legal practitioners indicates, clearly, in my view, the lack of seriousness with which they view the appeal noted.

Why should the Registrar re-assess the costs which have already been advised to them?

It appears to me, that, any right thinking legal practitioner would hastily approach the High Court and make payment in the interests of progress. It is evident that the applicants are employing delaying tactics.

On the question of reinstatement, the explanation given by the applicants is that the notification by the Registrar, of the quantum of costs to be paid by them, was served at their previous address and did not reach them.

The fourth applicant was content to take solace in some form of loss of memory.

They all placed the blame on the Registrar for failing to serve the letter requesting payment of the costs at the correct address of the first to third applicants.

The explanation given is totally unsatisfactory.

It offers no valid excuse for their non-compliance with the requirements of Rule 34 of the Supreme Court Rules. The applicants were granted the indulgence of a deferment of compliance with the mandatory requirements of Rule 34(1) of the Supreme Court Rules.

An applicant, desirous of pursuing its appeal would, at the very least, have made enquiries with the Registrar, from time to time, as to the amount required to be paid. By 26 May 2016, when the Registrar wrote to the applicants legal practitioners, no enquiries had been made by the applicants. That was well after a total of seven months had elapsed from the date of noting of the appeal.

It seems to me, that, one would be justified in concluding, in these circumstances, that, the applicants had abandoned any intention of prosecuting their appeal.

Since the onus lay on the applicants to ensure that the Registrar was notified of their change of address, the blame placed on the Registrar by the applicants is misplaced. They have only themselves to blame.

In my view, no cause has been shown by the applicants to justify the grant of relief in terms of Rule 34(5) of the Supreme Court Rules.

The application is, therefore, dismissed with costs.

Appealed
SC34-18 : MINISTER OF MINES and ZIMBABWE MINING DEVELOPMENT CORPORATION and MARANGE RESOURCES PL and ZIMBABWE CONSOLIDATED DIAMOND COMPANY vs GRANDWELL HOLDINGS PL and MBADA DIAMONDS PL and ANOR
Ruled By: PATEL JA, GUVAVA JA and UCHENA JA

This is an appeal against part of the judgment of the High Court granting a spoliation order, and other consequential relief, in an application at the instance of a shareholder on behalf of a company.

The facts leading to the application before the court a quo are as follows:

The first respondent (Grandwell Holdings (Private) Limited), a private foreign company, entered into a commercial arrangement with the Government of Zimbabwe for the purpose of mining diamonds in the Chiadzwa area in Manicaland Province.

In 2009, the third appellant (Marange Resources ((Private) Limited), a wholly owned subsidiary of the second respondent (Zimbabwe Mining Development Corporation), and Grandwell Holdings (Private) Limited signed an agreement.

The agreement resulted in the incorporation of the second respondent, Mbada Diamonds (Private) Limited, a private company, owned 50 percent by the first respondent, and 50 percent by the third appellant. Mbada Diamonds was to mine diamonds at Chiadzwa on special grants granted to Marange Resources (Private) Limited.

Marange Resources (Private) Limited and Zimbabwe Mining Development Corporation are companies controlled by the Government of Zimbabwe. This extended Government's influence to the operations of Mbada Diamonds, through Marange Resources (Private) Limited, which has a 50 percent shareholding in Mbada Diamonds.

In 2015, the Government of Zimbabwe, through the first appellant (Minister of Mines and Mining Development), crafted a policy to merge all diamond mining companies at Chiadzwa into one single entity, the fourth appellant (Zimbabwe Consolidated Diamond Company).

The parties engaged, with a view of agreeing over this initiative. Meetings were convened from about March 2015.

Grandwell Holdings was hesitant, but said it was not opposed in principle. It required a blueprint on the merger to enable it to decide whether or not Mbada Diamonds should join the merger. Communication between parties to the proposed merger continued in good faith. According to Grandwell Holding's chairman, David Kassel, Grandwell Holding's engagement was bona fide.

The engagement continued till the events of 22 February 2016.

According to paragraphs 43 and 44 of the first respondent's founding affidavit, the shareholders of Mbada Diamonds held a meeting to resolve on whether or not Mbada Diamonds should join the proposed merger of diamond mining companies. That meeting ended with what the first respondent called a deadlock as the shareholders could not agree on whether or not to join the merger without further information.

Marange Resources (Private) Limited (the third appellant) was willing to join the merger on the available information. Grandwell Holdings, though not opposed to the merger, was taking a cautious approach. It wanted a blueprint with information which could help it make a decision on that issue. It had placed it on record, that, it was, in principle, not opposed to the merger.

According to paragraph 39 of its founding affidavit, it was not taking a position of non-cooperation, as it would “seek to accommodate Government requirements wherever reasonably possible.”

It was therefore not a deadlock as to whether or not Mbada Diamonds could eventually join the merger. The difference between the shareholders was, therefore, merely on their then current positions.

On 22 February 2016, the Government, through the Secretary for Mines and Mining Development, wrote to Mbada Diamonds advising it, among other things, that it had discovered that the special grants entitling it to mine diamonds had expired, and that, with no title, Mbada Diamonds had to cease all mining activities with immediate effect and vacate the mining site.

Mbada Diamonds was given 90 days to remove all its equipment and other valuables. Any further access to the mining site would be upon request to the first appellant (Minister of Mines and Mining Development).

On the same day, the first appellant called a press conference to announce the new development, that, Mbada Diamonds, and other diamond mining companies, no longer had valid special grants or other rights on the basis of which they could continue with their mining operations. The first appellant further announced, that, those companies should cease operating and vacate the mining locations within 90 days. The first appellant specifically directed those companies to remove all their machinery, equipment, and other related materials from the mining locations.

On 27 February 2016, the first respondent brought an urgent chamber application in the court a quo seeking an interdict and a spoliation order.

The first respondent alleged, that, when the first appellant issued a press statement, Mbada Diamonds operations were forcibly stopped by armed police assisted by some of Mbada Diamonds senior employees. It alleged, that, after the first appellant's announcement, the police, and officials from the first appellant, moved into Mbada Diamond's processing plants and shut them down. Mbada Diamonds security team was disbanded and evicted from site and other employees were forcibly evicted both from their work stations and their on-site residences. Security systems were paralysed.

The first respondent also alleged, that, Marange Resources (Private) Limited, the other shareholder of Mbada Diamonds, was in support of the initiative to consolidate the mining companies into a single entity and was therefore acting in concert with the first appellant to despoil the second respondent (Mbada Diamonds).

The evidence on record does not support the allegation that Marange Resources (Pvt) Ltd directly participated in despoiling Mbada Diamonds.

It merely proves Marange Resource's willingness to join the merger before receiving further information while Grandwell Holdings needed further information before it could decide on whether or not Mbada Diamonds should join the merger.

It was on these facts that the first respondent sought an interim order declaring, that, the conduct of the appellants, in removing Mbada Diamonds representatives from its mining site and effectively assuming control of Mbada Diamond's mine, constitutes an act of spoliation.

The first respondent also sought an order directing the appellants to vacate Mbada Diamond's mining site with immediate effect and interdicting the appellants from interfering with Mbada Diamonds operations.

Mbada Diamonds, through an affidavit signed by its Chief Executive Officer, Luciyano, supported the first respondent's application.

The application was opposed by the appellants, who raised several preliminary points, including that the first respondent, as a shareholder of Mbada Diamonds, had no locus standi to institute an action on behalf of the company.

The appellants argued, that, Mbada Diamonds should have made the application to enforce its rights.

The first respondent argued, that, it was entitled to institute proceedings on behalf of the company through a derivative action. The appellants argued that derivative action was not available to the first respondent.

The court a quo dismissed the preliminary point raised by the appellants and held, that, derivative action was available to the first respondent. The court a quo held, that, it would have been futile for the first respondent to seek a resolution to sue the appellants given the stance Marange Resources (Private) Limited had already taken towards the intended merger.

The court a quo found, that, since Marange Resources (Private) Limited was acting in concert with the other appellants, it would have been futile for the first respondent to have called for a meeting to resolve that Mbada Diamonds should vindicate its rights. The court a quo held that the circumstances of the case justified the procedure adopted by the first respondent.

In any event, the court a quo also found that the first respondent, as a shareholder of the second respondent, had a direct interest in the second respondent, and, therefore, had the necessary locus standi to institute the proceedings.

On the merits, the court a quo held that the appellants committed an act of spoliation on the second respondent (Mbada Diamonds). The court therefore granted the application for spoliation.

The first appellant was aggrieved by that decision and appealed to this court on the following grounds:

1. The court a quo erred in not finding, that, to the extent the first respondent had alleged facts which went beyond the question of spoliation, and, rather, sought to assert a right to mine, and consequently, of possession; the appellant was entitled to demonstrate the absence of the same, and that, upon the court a quo accepting the absence of such rights, the first respondent could not be granted the relief of spoliation.

2. The court a quo erred in finding, that, the shareholder's derivative action was available to the first respondent when the founding affidavit had not made out a case for the same, and that, in any event, the first respondent had locus standi in judicio to institute the proceedings.

3. The court a quo further erred in finding, that, the first respondent had peaceful and undisturbed possession of the mining concessions, in its capacity as project manager, and that, therefore, it was entitled to spoliatory relief in its personal capacity when the founding affidavit did not make such allegation and relief was not sought on that basis.

4. The court a quo further erred in finding, that, the appellant had committed an act of spoliation against the fifth respondent when, in the circumstances, the appellant was not found to have done anything to evict the fifth respondent from mining concessions.

5. The court a quo further erred in entitling, authorising, and empowering the fifth respondent's security personnel, with all its chain of command, to remain at the mining concessions until resolution of a matter that was resolved on 22 February 2016 when the relevant statutory functionary exercised his discretion against the further extension/renewal of the special mining grants in question.

The second, third and fourth appellants (Zimbabwe Mining Development Corporation, Marange Resources (Pvt) Ltd and Zimbabwe Consolidated Diamond Company) were also aggrieved by the decision of the court a quo and appealed to this Court on the following grounds:

1. The court a quo erred in finding, that, the appellants had committed acts of spoliation against the first and second respondents in the absence of evidence, or even an allegation, that the appellants evicted the said respondents and in the face of evidence from the sixth respondent to the effect that its actions and presence at the mining site were for purposes of preventing unlawful mining activities as well as securing State property.

2. The court a quo erred in finding, that, the first respondent had been despoiled when no evidence had been placed before it, or even alleged, regarding any peaceful and undisturbed possession of the mining site or spoliation by the appellants.

3. The court a quo erred in finding, that, the first respondent had locus standi and/or that the shareholder's derivative action was available to the first respondent in the absence of evidence that the second respondent was unwilling or unable to institute the proceedings.

4. The court a quo erred in concluding, that, the appellants (including the first appellant) were effectively a single economic unit when their relationship is defined by law and each acted or exercised its rights as provided by law.

Having read the record and considered the submissions made by counsel for the appellants and the first respondent, I find that, although the appeal is premised on many grounds, only two issues arise for determination:

1. Whether or not the first respondent had locus standi to bring the application on behalf of the second respondent through derivative action, or, whether or not derivative action was available to the first respondent.

2. Whether or not the appellants despoiled the second respondent....,.

Once it has been found, that, the first respondent had locus standi to bring the application, then, the second issue must be determined....,.

Whether or not the Appellants Despoiled the Second Respondent

In my view, the facts of this case disclose a classic text book case of spoliation.

In the case of Botha & Anor v Barrett 1996 (2) ZLR 73 (S) GUBBAY CJ stated as follows…,.:

“It is clear law, that, in order to obtain a spoliation order, two allegations must be made and proved. These are:

(i) That, the applicant was in peaceful and undisturbed possession of the property; and
(ii) That, the respondent deprived him of the possession, forcibly or wrongfully, against his consent.”

In order to make a determination of whether or not the second respondent was despoiled, it is necessary to prove the two factors stated above.

I propose to deal with each factor in turn.

(i) Whether or not the second respondent was in peaceful possession

It was submitted, firstly, by the appellants, that, the second respondent was not in peaceful possession as the special grants entitling it to mine had expired. The appellants argument was that, since the possession was unlawful, it could not be peaceful.

It has been stated in a number of cases, that, issues of rights are irrelevant in spoliation proceedings.

In Yeko v Oana 1973 (4) SA 735 (AD)…, it was stated that:

“The fundamental principle of the remedy is that no one is allowed to take the law into his own hands. All that the spoliata has to prove is possession of a kind which warrants the protection accorded by the remedy, and that he was unlawfully ousted.”

In the case of Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 248 (H) the court remarked:

“Lawfulness of possession does not enter into it. The purpose of the mandamus van spolie is to preserve law and order and to discourage persons from taking the law into their own hands. To give effect to these principles, it is necessary for the status quo ante to be restored until such time as a competent court of law assess the relative merits of the claims by each party….,. In fact, the classic generalisation is sometimes made, that, in respect of spoliation actions, even a robber or thief is entitled to be restored possession of the stolen property.”

It is apparent from the facts of this case, that, the first respondent, being a 50 per cent shareholder of the second respondent, was in possession of the mining fields through the second respondent.

Possession, in legal terms, depicts both the mental and physical elements.

It is not in dispute, that, the second respondent was in physical possession of the mining fields at the relevant time and was carrying out mining operations.

Secondly, the appellants also alleged that there was no evidence on the record that the appellants had committed the acts complained of.

The first appellant stated, that, the mere fact that he had called a press conference, and stated that the possession of the respondents was unlawful, does not in itself amount to spoliation. In any event, he argues, that, he was not at the scene nor was any evidence given to link him to the persons who had despoiled the respondents.

It is not in dispute that agents of the State descended on the mine premises on 22 February 2016.

It was alleged, in the founding affidavit, that, Zimbabwe Mining Development Corporation (ZMDC) and Marange Resources were the implementing agents of the scheme which culminated in Mbada Diamonds being removed from the mining site.

The evidence given by the second respondent clearly stated, that, the armed police were hired by the first to fourth appellants.

In my view, it would be an absurdity to find, that, the police and the other officials would have acted in the manner they did without the authorisation and knowledge of the first appellant.

The acts complained of were carried out immediately after the delivery of the letter from the Permanent Secretary of the first appellant stating that the special grants had expired. This was immediately followed by the press conference held by the first appellant, reiterating that position and giving the second respondent notice to vacate the mining claims.

It seems to me that the facts, as set out, establish that the first appellant was primarily instrumental in the removal of the second respondent from the mining site.

I am satisfied, that, the court a quo correctly found that the second respondent was in peaceful possession before the appellants acted in common purpose in removing the second respondent from its peaceful possession of the mining site.

(ii) Whether or not the second respondent was forcibly and wrongfully deprived of possession

It is not in dispute that on 22 February 2016, after the press conference by the first appellant, armed police and officials from the Ministry of Mines moved onto the mining site, which was being operated by the second respondent, and forcibly shut down its operations.

The security team of the second respondent was disabled, and its employees were evicted from both their work stations and their on-site accommodation.

These actions were conducted without a court order.

All Mbada Diamonds employees were rounded up and their communication with the outside world was cut off. They were also subsequently forced off and barred from the mining site.

The officials proceeded to switch off the machines and equipment which were in operation. The armed police officers remained on site and stopped employees from accessing the plant. Mbada Diamonds employees were threatened with violence and were forced to leave the mine during the evening of 23 February 2016.

The third respondent, the Commissioner General of Police, confirmed that the police had acted in the manner complained of.

In my view, in spite of the protestations of the third respondent, the police would not have acted in such a manner if they had not been called upon to do so by the appellants, who stood to benefit from the unlawful removal of the second respondent.

There is no doubt in my mind, that, these facts show that the second respondent was removed without its consent. The removal was unlawful as it was carried out without due process.

It seems to me that the factors which must be proved in order to grant spoliatory relief had been met, and, the court a quo was correct to grant the order as prayed.

In the result, both appeals in this matter must fail. It is accordingly ordered that the appeals herein be and are hereby dismissed with costs.

PATEL JA: I have read the separate opinions rendered by UCHENA JA and GUVAVA JA on the two issues for determination in this matter. I fully endorse and concur with their respective conclusions for the following reasons:...,.

As for the second issue, revolving around the question of spoliation, I can do no more than adopt the succinct reasoning of GUVAVA JA.

There can be no doubt that Mbada Diamonds was in peaceful and undisturbed possession of the mining location in question at the relevant time, irrespective of the continuing validity or otherwise of its special grants, and, notwithstanding the supposed expiry of its right to carry out mining operations in that location.

It is equally indisputable that the appellants, acting in concert, contrived to abruptly and unceremoniously deprive Mbada Diamonds of its possession of the mining location, forcibly and wrongfully against its consent, through the agency of the Commissioner General of Police and his cohorts.

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Citation and Joinder re: Multiple Litigants, Citation by Reference, Common Interests, Common Purpose & Effect on Pleadings

SC36-23 : GLOBAL HORIZON (PVT) LTD and GODFREY CHINDOMU and NOMUSA CHINDOMU vs FMC FINANCE (PVT) LTD and SHERIFF OF THE HIGH COURT N.O. and REGISTRAR OF DEEDS
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Ruled By: MAVANGIRA JA, CHITAKUNYE JA and MUSAKWA JA

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Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

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Ruled By: MATHONSI J

Appealed
SC04-17 : JAYESH SHAH vs KINGDOM MERCHANT BANK LIMITED
Ruled By: GWAUNZA JA, GUVAVA JA and MAVANGIRA JA

SC34-17 : ZIMSLATE QUARTZITE (PVT) LTD and ARMINCO INVESTMENTS (PVT) LTD and TINASHE CHIMANIKIRE and MOHMED MAHMED vs CENTRAL AFRICAN BUILDING SOCIETY
Ruled By: ZIYAMBI AJA

Appealed
SC34-18 : MINISTER OF MINES and ZIMBABWE MINING DEVELOPMENT CORPORATION and MARANGE RESOURCES PL and ZIMBABWE CONSOLIDATED DIAMOND COMPANY vs GRANDWELL HOLDINGS PL and MBADA DIAMONDS PL and ANOR
Ruled By: PATEL JA, GUVAVA JA and UCHENA JA

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Citation and Joinder re: Multiple Litigants, Citation by Reference, Common Interests, Common Purpose & Effect on Pleadings

SC36-23 : GLOBAL HORIZON (PVT) LTD and GODFREY CHINDOMU and NOMUSA CHINDOMU vs FMC FINANCE (PVT) LTD and SHERIFF OF THE HIGH COURT N.O. and REGISTRAR OF DEEDS Ruled By: MAVANGIRA JA

SC50-23 : JANE HOVE vs BEREA MINING SYNDICATE and MO3 MINING SYNDICATE and OFFICER IN CHARGE, MINERALS FLORA AND FAUNA UNIT, ZVISHAVANE and PROVINCIAL MINING DIRECTOR, MIDLANDS and M J MUNODAWAFA Ruled By: CHITAKUNYE JA

SC62-23 : GOLDLOCK INDUSTRIES 2003 (PVT) LTD vs SHERIFF OF ZIMBABWE and INTERFIN BANKING CORPORATION and AL SHAMS GLOBAL BVI LTD and JAYESH SHAH and OTHERS Ruled By: MAVANGIRA JA, CHITAKUNYE JA and MUSAKWA JA

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

View Appeal HH159-13 : KINGDOM MERCHANT BANK LIMITED vs JAYESH SHAH and SATURN TRADING AND INVESTMENTS LIMITED Ruled By: MATHONSI J

Appealed SC04-17 : JAYESH SHAH vs KINGDOM MERCHANT BANK LIMITED Ruled By: GWAUNZA JA, GUVAVA JA and MAVANGIRA JA

SC34-17 : ZIMSLATE QUARTZITE (PVT) LTD and ARMINCO INVESTMENTS (PVT) LTD and TINASHE CHIMANIKIRE and MOHMED MAHMED vs CENTRAL AFRICAN BUILDING SOCIETY Ruled By: ZIYAMBI AJA

Appealed SC34-18 : MINISTER OF MINES and ZIMBABWE MINING DEVELOPMENT CORPORATION and MARANGE RESOURCES PL and ZIMBABWE CONSOLIDATED DIAMOND COMPANY vs GRANDWELL HOLDINGS PL and MBADA DIAMONDS PL and ANOR Ruled By: PATEL JA, GUVAVA JA and UCHENA JA

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Law Portal
Zimbabwe

SC36-23 : GLOBAL HORIZON (PVT) LTD and GODFREY CHINDOMU and NOMUSA CHINDOMU vs FMC FINANCE (PVT) LTD and SHERIFF OF THE HIGH COURT N.O. and REGISTRAR OF DEEDS
Ruled By: MAVANGIRA JA

SC50-23 : JANE HOVE vs BEREA MINING SYNDICATE and MO3 MINING SYNDICATE and OFFICER IN CHARGE, MINERALS FLORA AND FAUNA UNIT, ZVISHAVANE and PROVINCIAL MINING DIRECTOR, MIDLANDS and M J MUNODAWAFA
Ruled By: CHITAKUNYE JA

SC62-23 : GOLDLOCK INDUSTRIES 2003 (PVT) LTD vs SHERIFF OF ZIMBABWE and INTERFIN BANKING CORPORATION and AL SHAMS GLOBAL BVI LTD and JAYESH SHAH and OTHERS
Ruled By: MAVANGIRA JA, CHITAKUNYE JA and MUSAKWA JA

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS
Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

View Appeal
HH159-13 : KINGDOM MERCHANT BANK LIMITED vs JAYESH SHAH and SATURN TRADING AND INVESTMENTS LIMITED
Ruled By: MATHONSI J

Appealed
SC04-17 : JAYESH SHAH vs KINGDOM MERCHANT BANK LIMITED
Ruled By: GWAUNZA JA, GUVAVA JA and MAVANGIRA JA

SC34-17 : ZIMSLATE QUARTZITE (PVT) LTD and ARMINCO INVESTMENTS (PVT) LTD and TINASHE CHIMANIKIRE and MOHMED MAHMED vs CENTRAL AFRICAN BUILDING SOCIETY
Ruled By: ZIYAMBI AJA

Appealed
SC34-18 : MINISTER OF MINES and ZIMBABWE MINING DEVELOPMENT CORPORATION and MARANGE RESOURCES PL and ZIMBABWE CONSOLIDATED DIAMOND COMPANY vs GRANDWELL HOLDINGS PL and MBADA DIAMONDS PL and ANOR
Ruled By: PATEL JA, GUVAVA JA and UCHENA JA