This is an appeal against the whole judgment of the Intellectual Property Tribunal of Zimbabwe (“the Tribunal”) delivered at Harare on 29 May 2019 wherein the Tribunal upheld the appeal noted by the respondent against the decision of the Registrar of Trade Marks.

Aggrieved by that turn of events, the first appellant has noted this appeal to this Court for relief.

The appeal was noted in terms of section 16 of the Intellectual Property Tribunal Act [Chapter 26:08].

The second appellant was not party to the proceedings before the Registrar of Trademarks nor was it party to the subsequent appeal before the Intellectual Property Tribunal of Zimbabwe (the Tribunal).

Similarly, it played no active part in the present appeal.

It has been joined in this appeal because the trade marks forming the subject matter of the appeal were duly registered in its name on 27 January 2016. It thus has a direct and substantial interest in the outcome of this appeal.

Its mere joinder shall have no bearing on the outcome of this appeal. The dispute to be determined is, to all intents and purposes, between the first appellant and the respondent.

The facts of the matter are as follows:

The respondent (hereinafter referred to as “Lion Match South Africa”) owned the first appellant (then registered as Lion Match Rhodesia) during the period 1906 to 1954.

During the year 1954, the respondent sold its business, including its trademarks and goodwill, to the first appellant. It was understood between the parties that the “Lion” brand was alive in the then Rhodesia by reason of that sale. On that understanding, Lion Match South Africa withdrew from Rhodesia.

In 1979, the first appellant changed its name to Lion Match Limited and subsequently became Lion Match (Zimbabwe) Limited, as it is presently known. It continued with the business it had inherited from the respondent.

In 2006, the first appellant experienced financial difficulties and labour unrest. Its operations were interrupted which resulted in its trademarks lapsing.

In the meantime, the respondent started trading within Zimbabwe using the first appellant's trademarks.

It submits, that, it was entitled to use the first appellant's trademarks by virtue of the authority given to it by the first appellant through a letter written by the first appellant's Chief Executive Officer, one Mr Banda.

Not content with trading under the authority of the first appellant, the respondent sought to take over these trade marks for its own.

Believing the first appellant's trademarks had lapsed due to non-use or abandonment, the respondent approached the office of the Registrar with an application to register as its own, the first appellant's trademarks.

The applications are detailed below:

1. On 4 June 2010, Lion Match South Africa applied to register LION (word mark) No.493/10.

2. On 4 June 2010, Lion Match South Africa applied to register the LION SAFETY MATCHES Label No.495/10.

3. On 8 June 2010, Lion Match South Africa applied to register LION DEVICE No.517/10.

After learning of the respondent's applications, the first appellant thereafter applied to register its trademarks in November 2010 as follows:

1. On 3 November 2010, Lion Match Zimbabwe applied to register the LION MATCH (word mark) No.1128/2010.

2. On 3 November 2010, Lion Match Zimbabwe applied to register the LION DEVICE No.1129/2010.

3. On 22 November 2010, Lion Match Zimbabwe applied to register the LION MATCH (word) and LION DEVICE No.1246/10.

On 9 February 2012, Lion Match South Africa filed notices of opposition against the registration of trade-marks No.1127/10, 1128-9/10 and 1246/10.

On 12 July 2012, Lion Match Zimbabwe filed counter statements in respect of trademarks No.1127/10, 1128-9/10 and 1246/10.

The Registrar found in favour of the first appellant and granted its application to register the above trademarks. In doing so, he noted the similarities between the first appellant's trademarks and those applied for by the respondent.

He opined, that, allowing both parties to register these trademarks would lead to confusion in the market as they were visually and conceptually identical.

He noted that the appellant had not used its trademarks since the year 2000.

Relying on the decision of the Canadian Federal Court in Governor Inc v The One Group LLC (Gouverneur) 2015 FC 128 he held, that, the non-use of the appellant's trademarks was justifiable.

In the above case, it was held that non-use of a trademark may be justified by special circumstances which may be determined by a consideration of the following factors:

(i) The length of time the trade mark has been in use;

(ii) Whether there is serious intention on the registrant to shortly resume use, and, most importantly;

(iii) Whether the circumstances alleged to justify non-use were beyond the registrant's control.

Applying these principles, the Registrar found that the first appellant had been affected by external circumstances which were beyond its control. He also found, that, the evidence before him showed that the first appellant had the intention to continue using its trademarks. He also ruled that the lapse of a trademark due to effluxion of time does not equate to abandonment of the trade mark.

For that proposition, he relied on the case of Crash Dummy Movie LLC v Mattel Inc 601 F 3d 1387, Court of Appeal, Federal Circuit 2010 wherein it was held as follows:

“Although Mattel later allowed its trademark to lapse, cancellation of a trademark registration does not necessarily translate into abandonment of common law trademarks rights. Nor does it establish its owner's lack of intent to use the mark.”

For these reasons, the Registrar rejected the argument advanced by the respondent, that, since the first appellant's trademarks are deemed to have lapsed, the first appellant had lost the right to use them.

As for the respondent's claim that it had accrued goodwill since 1995, the Registrar noted that the entry of the respondent in the late 1990's into the Zimbabwean market was improper as the appellant was, at the time, using its trademarks. The respondent's conduct in this regard was illegal. No goodwill can arise out of respondent's illegal activities in Zimbabwe, reasoned the Registrar.

He observed, on the contrary, that the first appellant had enjoyed goodwill in Zimbabwe since 1954 and that the appellant's brand is well known throughout the country.

The Registrar concluded, that, although the first appellant's trade marks had lapsed, they still belonged to the first appellant.

He allowed registration of these trademarks because he was of the view that the appellant possessed prior existing rights which, in the circumstances of the case, had not been eroded.

The Registrar's order reads as follows:

“The grounds of opposition cannot succeed because:

(a) Lion Match Zimbabwe has a proven goodwill of over 100 years. Goodwill is an essential element in passing off. Lion Match has a better standing in that respect.

(b) The issue of non–use is invalid especially construed from a view that it equates to abandonment. Lion Matches proved that they actually did not abandon their marks.

(c) The marks applied for are related to earlier trademarks rights, which have been determined as valid, thus the opponent cannot derive strength (517/2010) in the mark basically invalidly registered.

(d) Trade mark (517/2010) is invalidly protected in Zimbabwe as it is predated by earlier rights.

(e) I find the application for revocation of marks 1127/2010, 1128-9/2010, and 1246/2010 fails.

As such, I hereby declare that the marks applied for by the applicant be sealed.”

It was against that order that the respondent noted an appeal with the Intellectual Property Tribunal of Zimbabwe (the Tribunal). It did so on the following grounds:

“GROUNDS OF APPEAL

1. The Registrar erred in finding, that, the goodwill built by the appellant since the late 1990's in Zimbabwe was a nullity and bordered on illegal conduct. On the contrary, the Registrar ought to have found the appellant traded lawfully and that by June 2010, when the appellant applied to register its Lion trademarks, the appellant's products were well known to a substantial number of consumers in Zimbabwe; that the appellant had a substantial reputation and goodwill in the mark LION in relation to match products; and that the appellant was the true proprietor of the LION trade marks in relation to matches in Zimbabwe.

2. The Registrar erred in finding, that, the respondent had a residual goodwill in the LION trade mark when the evidence showed, inter-alia, that the respondent:

2.1 Had for a long time ceased to trade in the products;

2.2 Had allowed its trade mark registration to lapse in 2006; and

2.3 Had been (and remains) incapable of supplying any of the products to consumers for more that 10 years.

3. The Registrar erred in finding that there was a common law basis for protecting the respondent's trademarks when the registrations had long expired in 2006 and had not been renewed. On the contrary, the Registrar ought to have found that the respondent had abandoned its trademarks, and that it was no longer the true and bona fide proprietor of the LION trade marks in Zimbabwe, and that it is not entitled to enjoy legal protection of trademarks, as provided for at common law and in terms of the Trade Marks Act (the “Act”).

4. The Registrar erred in failing to find, that, the fact that the respondent had filed fresh applications to register its LION trademarks, some five years after its previous trademarks had elapsed, is indicative of the fact that there was no residual goodwill held by the respondent in its LION trademarks.

5. The Registrar erred in finding that historical use and ownership of similar trade marks were relevant factors under the Act in considering the applications in the circumstances of this case.

6. The Registrar erred in dismissing the appellant's opposition, notwithstanding that the appellant had shown that, at all material times, between 2009 and before June 2010, the respondent was aware of the appellant's use of its own LION trade mark in Zimbabwe but elected to take no action.

7. The Registrar erred in failing to find that the respondent had itself permitted the appellant to trade in the goods in Zimbabwe and that authorisation of the respondent's then Chief Executive, Mr. Banda, was binding on the respondent as a matter of law by virtue of section 12 of the Companies Act [Chapter 24:03].

8. The Registrar erred in taking into account economic circumstances where there had been for a long period non-use of the LION trade marks by the respondent in Zimbabwe.

9. The Registrar, after finding that the appellant's and the respondent's trade marks were identical, erred in dismissing the appellant's opposition when the appellant had in fact applied to register its LION trademarks prior to the respondent's application to register its trademarks.”

The relief sought before the Intellectual Property Tribunal of Zimbabwe (the Tribunal) was that the appeal be allowed with costs and that the decision of the Registrar be set aside and be substituted with an order in the following terms:

“1. The appellant's application for registration of the following trade marks in class 34 in Zimbabwe:

1.1 Application No.493/2010 LION filed on 4 June 2010;

1.2 Application No.495/2010 - LION SAFETY MATCHES and sitting Lion Device, filed on 4 June 2010 be and are hereby granted;

2. The following respondents applications for registration in class 34:

2.1 Trade mark application No.1127/2010 LION MATCHES and LION Device;

2.2 Trade mark application No.1246/2010 LION MATCH;

2.3 Trade mark application No.1128-9/2010 LION MATCH (words) and LION Device; be and are hereby refused;

3. The respondent is to pay the costs of suit.”

The Tribunal allowed the appeal with costs and set aside the Registrar's decision. It proceeded to grant the respondent's application as set out above and refused the appellant's application.

In arriving at that decision, the Intellectual Property Tribunal of Zimbabwe (the Tribunal) reasoned as follows:

The first appellant had allowed its trademarks to lapse through non-use for a considerable period. It had accordingly lost its right to use them. Any party could thereafter make an application to register them as its own.

The Tribunal cited various authorities in support of this view, including section 24 of the Trademarks Act and the following cases: New Balance Athletic Shoe Inc v Dajee NO and Others (251/11/2912) ZA SCA 3 (2 March 2012); AM Moola Group Limited v The GAP Inc 2005 (6) SA 568…,.

It further held, that, the respondent's applications for registration were lodged well ahead of those for the first appellant, and, consequently, should prevail on the principle of first come first served; a principle acknowledged by this Court in Philip Morris Products Inc v Marlboro Shirt Company SA Ltd 2001 (2) ZLR 399 (S).

The Intellectual Property Tribunal of Zimbabwe (the Tribunal) criticised the Registrar for treating the application by the first appellant as one for restoration of its trademark, whereas it was a fresh application for registration of trademarks made in terms of section 11 of the Regulations.

It also noted, that, prior to its application, the first appellant had, through its CEO, Mr. Banda, obtained permission to use the first appellant's trademarks.

Aggrieved by the decision of the Tribunal, the appellant has noted this appeal to this Court for relief.

The grounds of appeal in this Court are as follows:

“1. The learned Judge in the Tribunal erred in finding that there was an intention to abandon or that the trade marks forming the subject of the instant dispute were abandoned.

2. Further, and in any event, the learned Judge in the Tribunal erred in failing to place any emphasis on or satisfying himself that the mandatory provisions set out in section 24 of the Trade Marks Act [Chapter 26:04] had been satisfied.

3. The learned Judge in the Tribunal erred in finding that the trade marks forming the subject of the instant dispute had been lawfully removed from the register.

4. The learned Judge in the Tribunal erred in law in finding that no rights were retained by appellants, one or either of them, following the lapse of the trade marks in question, and, in particular, the learned Judge in the Tribunal erred in disregarding the provisions of section 14(1) of the Trademarks Act [Chapter 26:04].

5. The learned Judge in the Tribunal erred in failing to have regard to the fact that appellants, or one or either of them, had established a reputation and had goodwill in respect of the trademarks.

6. The leaned Judge in Tribunal erred in upholding the application for registration brought by respondent.”

The appellants seek the following relief:

“1. The appeal be and is hereby allowed with costs.

2. The judgment of the Tribunal be set aside and the following is substituted:

'The appeal against the decision of the Registrar be and is hereby dismissed with costs.'”

The sole issue for determination in this appeal is whether the appellant's registered trade-marks had lapsed and were, as such, open to use by other parties.

In coming to the conclusion that the appellant's trade marks had lapsed, the Intellectual Property Tribunal of Zimbabwe (the Tribunal) dealt extensively with the law regarding lapse and loss of trademarks in general.

However, the Tribunal failed to deal with one decisive factor which was raised before the Registrar by the appellants.

At paragraph 4 of its founding affidavit, the first appellant stated as follows:

“4. Applicant has a valid Trade Mark on the register, Trade Mark 172/99 which is due for renewal in February 2019. This mark comprises a sitting lion and the words 'lion reds, superior quality safety matches' and registered subject to disclaimers.”

Further, at paragraph 5 of the same affidavit it is stated as follows:

“5. The applicant's Trade MARK 'Lion Match' accompanied by a device of a sitting lion in numerous variations have been in use in Zimbabwe since 1906 as evidenced by the following marks:

                                        device                          34

The appellant's contention, inter alia, is that Trade Mark 172/99 above is still on the register and was due for renewal in February 2019.

The respondent has not disputed this fact, although it says it has lodged an application to de-register trade mark 172/99.

Until such an order for de-registration is granted, trade mark 172/99 remains alive and available for use by the appellants.

It is common cause that the respondent wishes to register the appellant's trade marks on the basis that they have lapsed.

However, Trade Mark 172/99 has not lapsed.

The lapsed trademarks which the respondent seeks to register bear a substantial resemblance to Trade Mark 172/99 which is still registered and therefore valid.

Accordingly, the Tribunal's decision allowing the application by the respondent runs foul to the provisions of section 14(1)(a) of the Trade Marks Act [Chapter 26:04] which provides:

“Prohibition of registration or maintenance of registration of deceptive, etc matter

14(1) A mark -

(a) The use of which would be likely to deceive or cause confusion; or

(b)…,.; or

(c)…,.; or

(d)…,.; or

(e)…,.; or
shall not be registered as a Trade Mark.”

The Intellectual Property Tribunal of Zimbabwe (the Tribunal) erred in ordering registration of the respondent's trademark when there was already in existence a similar trade mark registered in the name of the appellant, namely, trade-mark 172/99. The resemblance between the appellant's trade mark 172/99 and the respondent's proposed trademarks would have caused confusion in the market.

For this reason, the appeal must succeed. Costs shall follow the result.

It is accordingly ordered as follows:

1. The appeal succeeds with costs.

2. The judgment of the Intellectual Property Tribunal of Zimbabwe be and is hereby set aside and in its place substituted the following:

“The appeal against the decision of the Registrar be and is hereby dismissed with costs.”

The cardinal issue for determination in this case is the appellant's right to be heard vis-a-vis its obligation to obey the law before being heard.

In legal parlance, the issue has to do with the application of the age old dirty hands doctrine as determined through the cases and amplified by this court in the case of Associated Newspapers of Zimbabwe (Pvt) Ltd v Minister of State for Information and Publicity and Ors 2004 (1) ZLR 538 (S).

The factual and legal basis upon which the appeal is founded is this:

The appellant is engaged in the cellular communication industry. The Labour Act [Chapter 28:01] provides for a system of Collective Bargaining Agreements regulating the employment relationships of employers and employees in their respective industries. To that end, section 82(1)(a) of the Labour Act provides that:

“Where a collective bargaining agreement has been registered, it shall, with immediate effect from the date of publication in terms of section eighty-five or such other date as may be specified in the agreement, be binding on the parties to the agreement, including all members of such parties and all employers, contractors, and their respective employees in the undertaking or industry to which the agreement relates.”

By General Notice 106 of 2010, in the Government Gazette of 20 May 2010, the Registrar gave notice to extend the scope of the National Employment Council for the Communications and Allied Services Sector to include the interests of Cellular Communications. The General Notice reads:

“It is hereby notified, in terms of section 61 of the Labour Act [Chapter 28:01], an application has been received for the variation of scope of registration of the National Employment Council for the communications, computer networks, internet and E-mail providers, broadcasting, courier services in the Communications and Allied Sector in Zimbabwe.

Any person who wishes to make representation relating to the application is invited to lodge such representation with the Registrar of Labour, Private Bag 7707, Causeway, Harare within 30 days of publication of this notice and state whether or not he wishes to appear in support of such representation at any accreditation proceedings.”

Pursuant to the Notice, the appellant embarked on a concerted effort to challenge the authenticity of the National Employment Council registration certificate in a series of letters, culminating in the Registrar of Labour writing to the appellant, on 24 February 2011, confirming the authenticity of the registration certificate in question. The letter reads in part:

“We write to confirm that the certificate of registration of the Employment Council with the change of name and variation of scope is authentic and was issued by this Ministry.”

Despite such authentication, the appellant persisted with its bid to challenge the authenticity of the certificate of registration through its lawyers.

The Registrar, however, considered that there were no valid objections and proceeded to publish the Collective Bargaining Agreement for the Communications and Allied Services Industry, Statutory Instrument 1 of 2012, in the Government Gazette of 6 January 2012 with the result that it became law and binding on that date in terms of section 82(1)(a) of the Labour Act.

PATEL JA: On the question of locus standi, I entirely concur that the applicant has established the requisite standing to institute this application.

Pursuant to section 18(1) of the former Constitution, which guarantees the protection of the law and constitutional due process, he undoubtedly has the right to have general elections held when they are due as prescribed by the law.

By the same token, section 18(1a) of that Constitution bestows upon him a legitimate expectation that the President, the first respondent, will exercise his functions as a public officer in fixing election dates in accordance with the law.

The fact that he has an alternative Administrative Law remedy by way of mandamus does not, in my view, preclude his entitlement to approach this Court for constitutional relief.

In this regard, I respectfully adopt the reasoning and conclusions of the learned CHIEF JUSTICE.

The rule of law also dictates that decisions must be based on and sanctioned by the law.

In the result, it is ordered that the application be and is hereby dismissed with costs.

Section 71 of the Constitution reads:

“(1)…,.

(2) Subject to section 72, every person has the right, in any part of Zimbabwe, to acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of all forms of property, either individually or in association with others.

(3) Subject to this section and to section 72, no person may be compulsorily deprived of their property except where the following conditions are satisfied —

(a) The deprivation is in terms of a law of general application;

(b) The deprivation is necessary for any of the following reasons —

(i) In the interests of defence, public safety, public order, public morality, public health or town and country planning; or

(ii) In order to develop or use that or any other property for a purpose beneficial to the community;

(c) The law requires the acquiring authority —

(i) To give reasonable notice of the intention to acquire the property to everyone whose interest or right in the property would be affected by the acquisition;

(ii) To pay fair and adequate compensation for the acquisition before acquiring the property or within a reasonable time after the acquisition; and

(iii) If the acquisition is contested, to apply to a competent court before acquiring the property, or not later than thirty days after the acquisition, for an order confirming the acquisition.”

It is not contested that the applicants, as customers, had a special property interest in the value of the money in their bank account with the first respondent: Standard Bank of SA Ltd v Oneanate Investments (Pty) Ltd 1995 (4) SA 510 (C).

It is beyond contest that such a right was one protected under section 71(1) of the Constitution....,.

Whilst the deprivation might have been in terms of a law of general application in terms of section 71(3)(a), among other things, the reasons advanced by the respondents as the purpose for which they deprived the applicants of their right do not fall within the constitutional framework of section 71(3)(b) of the Constitution.

Whilst the third respondent explains that the currency reforms became necessary, essentially to balance the Government books, to restore market confidence, to shore up exports, to deal with the liquidity crunch, and so on, critically, none of the specific interests listed in section 71(3)(b) of the Constitution have been invoked or claimed.

In terms of these, deprivation should be in the interests of defence, public safety, public order, public morality, public health or town and country planning.

In dismissing the application for the referral of the matter to the Supreme Court, the magistrate commented:

“Accused now wants to renege from her commitment that she would only be prosecuted if only Cyril Muderede was acquitted because the facts forming the basis of the court charges were similar. Cyril Muderede has now been acquitted, so, the natural interpretation of their agreement should follow. Accused participated in circumstances which caused the delay so she should not cry foul, because, if she had no hand in this matter, the State could have proceeded to cause the trial of both matters at the same time but in different courts.

Accordingly, I find that the application is just meant to further delay proceedings and it is frivolous and vexatious. Accordingly, the application is dismissed.”

It is common cause, that, at the time of the making of the application, there had been a delay of over five years in the prosecution of the matter.

That this delay was presumptively prejudicial is without doubt.

The applicant was entitled to challenge the decision of the State to prosecute her on a charge of fraud in respect of which she had been charged more than five years previously.

The delay was such as to trigger an inquiry into the possible violation of the applicant's rights to the protection of the law....,.

The delay in bringing the applicant to trial is reckoned from 25 June 2007 when she was charged: see Shumba v Attorney-General 1997 (1) ZLR 589, 592G (S).

The fact that charges were withdrawn in 2008 is irrelevant. The clock continued ticking.

See In re Mlambo 1991 (2) ZLR 339 (S)…,.

This is an application for condonation for non-compliance with the Rules of this Court and for an extension of time within which to file and serve a notice of appeal in terms of the same Rules.

The respondents oppose the application.

The first respondent is a medical aid society registered in terms of the Medical Services Act [Chapter 15:13]. The second respondent is said to be the investment vehicle of the first applicant.

Both respondents are managed by two separate boards of directors.

It is common cause that the applicant was, in terms of his contract of employment, the Chief Executive Officer of the first respondent.

In a judgment handed down by two judges of the Labour Court on 10 March 2017, two awards made in favour of the applicant were set aside and in their place the court substituted an order dismissing the applicant s claims before the arbitrator.

Dissatisfied, the applicant appealed to this Court against that judgment on 1 March 2019.

The notice of appeal reflected that it had been filed pursuant to Rule 29 of the now repealed Supreme Court Rules.

At the hearing of the appeal, the matter was, by consent, struck off the roll for the reason that the appeal should more properly have been noted in terms of the then Supreme Court (Miscellaneous Appeals and References) Rules.

This was on 14 March 2019.

Prior to the above developments, in a practice directive issued as 3/13 by the late former Chief Justice of Zimbabwe, on 29 November 2013, the following requirement was, inter alia, made applicable to all the superior courts of Zimbabwe:

“Where a matter has been struck off the roll for failure by a party to abide by the Rules of the Court, the party will have thirty (30) days within which to rectify the defect, failing which the matter will be deemed to have been abandoned. Provided that a Judge may, on application, and for good cause shown, reinstate the matter, on such terms as he deems fit.”

So far as I am aware, the practice directive, together with a number of others issued at about the same time, were not discussed amongst judges of this Court....,.

In Absa Bank Limited v Lekuku (32700/2013) (2014) ZAGPJHC 274 (14 October 2014) the court expressed the view, that, where a practice directive is a product of a collective discussion of the judges in a particular division, a court should not tamper with the provisions of the Practice Manual and that the matter was better left in the hands of the Judge President who, after consulting the judges of that division, can advise the Chief Justice to amend the relevant portions of the Practice Directive.

In the case of Practice Directive 3/13, it is a fact that it was not the product of discussions amongst the judges of this Court. It was issued by the then Chief Justice, without any input from judges, in order to manage the figures of inactive matters that gave the impression that there was backlog in uncompleted cases.

The Environmental Management Committee of the City Council met on 23 July 2018, and, it was at that meeting that the committee resolved that a permit be granted authorizing the development of one hundred and twenty one cluster houses on Meadows of Monavale.

The meeting commenced at 14:10 hours and finished at 14:50 hours having, in forty minutes, considered fourteen applications that sought various permits from the City Council, including the application for a development permit filed by the appellants.

The record of deliberations of that committee reveal that there was no proper inquiry undertaken by the committee. In all cases, the minutes show that the committee merely accepted the recommendation of the Director of Works, after which it proceeded to resolve that permits be granted. No questions were asked. No clarification was sought. Considering that this was the Council's environmental management committee, a number of issues should have been debated.

This was not done.

The fact that the development was to take place on a wetland was not discussed. That this particular wetland is the largest in Harare and is protected under the Ramsar Convention was also not even discussed.

The minutes also referred to two letters of objection. In fact they were four.

Whilst counsel for the appellant argued that the letters were all similar, there is some difference in the content of those letters. It is not clear which two letters of objections were being referred to in the deliberations of the committee or what the fate of the other two letters were.

Further, the letter written to the appellants by the Director of Works, advising of the grant of the development permit, had no relationship to the papers that had been presented to the City Council. Whilst the environmental impact assessment certificate referred to a housing development on Stand 201 Monavale, the letter advising of the grant of the permit refers to 121 cluster houses to be constructed on the Meadows of Monavale.

Although an environmental impact assessment certificate had been issued by the Environmental Management Agency, amongst the conditions stipulated by the City Council, in granting the permit, was the need for an environmental impact assessment report and soil tests to be carried out before commencement of the project.

The first to the fourth respondents are correct, that, there was a disconnect between the environmental impact assessment certificate and the development permit issued by the Council. The conditions proposed on the certificate were not incorporated in the permit. As the court a quo correctly noted, there was no alignment between the two sets of documents. One is specific whilst the other is vague.

It is not in dispute in this matter, that, the City Council granted the development permit on the basis of the environmental impact assessment certificate issued by the Environmental Management Agency.

On a closer examination of the two sets of documents, it becomes clear that there were serious inconsistencies which, as the court a quo remarked, could not have been condoned by the City Council.

The development permit refers to the land to be developed as the Meadows of Monavale whilst the environmental impact assessment certificate refers to the land as “Stand 201 Monavale.”

That there is no such Stand is common cause.

The suggestion by the appellants, that, the anomaly was condoned later by the City Council would suggest that this was done ex post facto. There can be no denying the fact, that, at the time the application came up for a determination, no such condonation had been sought or granted. The minutes reveal that the issue of condonation did not arise at any stage of the proceedings before the environmental management committee.

At that stage, there was a clear discrepancy in the papers which the City Council should have queried.

The subsequent condonation, if any was granted, would not have had the effect of regularising papers placed before the City Council previously. The environmental impact assessment was issued in respect of the smaller portion of land previously intended to constitute Stand 201 whilst the development permit was issued in respect of the entire piece of land measuring 16,2885 hectares.

The discrepancies did not end there.

The certificate refers to the nature of the development as a housing development whilst the permit referred to “erection of 121 cluster houses.” Neither document defined what it meant by a housing development or cluster houses. Moreover, the conditions that the Environmental Management Agency attached to the certificate were not incorporated as part of the conditions attaching to the development permit.

The certificate, for example, made it obligatory for a buffer zone to be maintained, and, further, that there had to be sub-surface flow constructed wetlands to treat grey water as well as retention ponds. It further directed the construction of houses on special foundation and that all sewage be connected to an existing sewer line as septic tanks and soakaways were not allowed. The sinking of boreholes was also disallowed. The development permit basically ignored those conditions and came up with its own list of requirements, including the need to obtain another environmental impact assessment certificate and conduct soil tests.

There were material inconsistencies between two documents which were supposed to speak to each other in order to protect this ecologically sensitive piece of land.

The conclusion by the court a quo, that the one did not support the other, cannot be said to be erroneous....,.

In its determination, the court found that the piece of land in question, being a wetland, could be irretrievably damaged, and that, in these circumstances, reliance should be placed on the precautionary principle which postulates, that, where, due to available scientific evidence, there is uncertainty as to the future impact of a proposed development, authorities must err on the side of caution and insist on adequate precautionary measures to safeguard against contamination of underground water.

Whilst accepting that the appellants possessed rights of ownership in respect of the property, the court found, that, such right could be attenuated in light of section 86(2)(f) of the Constitution, protecting wetlands, which provides that fundamental rights may be limited in terms of a law of general application for the general good.

I am of the view, that, the court a quo should not have proceeded to deal with the merits of the dispute between the parties. It had found that, procedurally, the environmental impact assessment certificate and the development permit had not been properly issued. This was a determination based on procedure.

That being the case, the matter should have ended there.

This would give any interested party the opportunity of correcting any procedural abnormalities made so that the matter would then come up before the two authorities for another determination once the procedural pre-requisites had been attended to.

By proceeding to deal with the core of the dispute between the parties on the merits, the court a quo imprudently created a situation where its determination effectively resolved the dispute between the parties - even though the proceedings that preceded the grant of the certificate and permit were themselves irregular.

Put another way, having found that there was no proper application before the Council, the court a quo should not have proceeded to determine the matter on the merits.

Where a court, or any administrative authority, finds that procedural prerequisites have not been complied with in an application, it does not dismiss the application. It should strike the matter of the roll. This would enable the affected party to correct the procedure and thereafter approach the court again for the ventilation of the real dispute between the parties.

See Edward Tawanda Madza & Ors v The Reformed Church in Zimbabwe Daisyfield Trust and Three Ors SC71-14; Portland Holdings Ltd v Tuperlostep Investment (Proprietary) Limited and Another SC03-15; Air Zimbabwe (Private) Ltd & Another v Stephen Nhuta & Two Others SC65-14.

The findings made by the court on the merits were irregular and therefore stand to be set aside.

Both the environmental impact assessment certificate and the development permit were not properly issued. The court a quo was correct in so determining.

Having found the two documents to have been irregularly issued, the court a quo should have allowed the appeal on that basis alone.

Such an approach would have permitted the appellants to take steps to correct these documents. It was irregular, having found that the application before the City Council was invalid for want of correct procedure, for the court a quo to delve into the merits of the main dispute between the parties and proceed to dismiss the matter.

In the exercise of our review powers under section 25 of the Supreme Court Act [Chapter 7:13], the determination on the merits stands to be set aside.

In the result, this Court makes the following order:

1.The determination of the court a quo on the merits, being irregular, is set aside.

2. Both appeals before this Court are otherwise dismissed with costs.

This is a matter on appeal from a decision of the High Court handed down on 19 October 2011. It concerns the powers of the Attorney-General, the respondent, in the specific context of private prosecutions by corporate entities.

The factual circumstances of this matter are common cause.

In early 2010, four senior employees of the appellant were charged with a massive fraud of about US$1,700,000 perpetrated against the appellant.

Because of the respondent's position that there was overwhelming evidence against the accused persons, all of them were initially denied bail. At a later stage, the charges against them were withdrawn before plea following a directive by the respondent that there was insufficient evidence to prosecute.

Consequently, the appellant sought a certificate nolle prosequi which was withheld and declined by the respondent.

The appellant then applied to the High Court, on review, for that decision to be set aside as being both unlawful and grossly irrational.

The High Court held, that, a private company, as distinct from a private individual, had no locus standi to institute a private prosecution.

The learned judge a quo adopted, and applied, the position taken by the South African Appellate Division in interpreting the equivalent statutory provisions in South Africa.

He accordingly decided, that, it was not necessary to determine the further question as to the respondent's discretion to withhold his certificate.

The first issue, on appeal, is whether or not a private company is entitled to bring a private prosecution.

The second issue, which is inter-related with the first, is whether the respondent has the discretion to issue or withhold his certificate nolle prosequi where he declines to prosecute at the public instance.

Part III of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CP&E Act) regulates the institution of private prosecutions. Section 13 confers the right to prosecute in the following terms:

“In all cases where the Attorney-General declines to prosecute for an alleged offence, any private party, who can show some substantial and peculiar interest in the issue of the trial arising out of some injury which he individually has suffered by the commission of the offence, may prosecute, in any court competent to try the offence, the person alleged to have committed it.”

Persons, other than those referred to in section 13 of the Criminal Procedure and Evidence Act, who are entitled to prosecute, are identified in section 14 of the Criminal Procedure and Evidence Act:

“The following shall possess the right of prosecution –

(a) A husband, in respect of offences committed against his wife;

(b) The legal guardians or curators of minors or mentally disordered or defective persons, in respect of offences committed against their wards;

(c) The wife or children or, where there is no wife or child, any of the next-of-kin of any deceased person, in respect of any offence by which the death of such person is alleged to have been caused;

(d) Public bodies and persons, on whom the right is specially conferred by statute, in respect of particular offences.”

Section 16 of the Criminal Procedure and Evidence Act deals with the grant of certificates nolle prosequi by the Attorney General and their production for the purpose of criminal proceedings. It provides as follows:

“(1) Except as is provided by subsection (2), it shall not be competent for any private party to obtain the process of any court for summoning any party to answer any charge, unless such private party produces to the officer authorised by law to issue such process a certificate signed by the Attorney-General that he has seen the statements or affidavits on which the charge is based and declines to prosecute at the public instance, and, in every case in which the Attorney General declines to prosecute, he shall, at the request of the party intending to prosecute, grant the certificate required.

(2) When the right of prosecution referred to in this Part is possessed under any statute by any public body or person, in respect of particular offences, subsection (1) shall not apply.”

Before addressing the status of corporate entities in the prosecutorial context, it seems necessary to delineate the historical background to private prosecutions generally.

As was recognised and restated in section 89 of the former Lancaster House Constitution:

“Subject to the provisions of any law for the time being in force in Zimbabwe relating to the application of African customary law, the law to be administered by the Supreme Court, the High Court, and by any courts in Zimbabwe subordinate to the High Court shall be the law in force in the Colony of the Cape of Good Hope on 10th June 1891 as modified by subsequent legislation having in Zimbabwe the force of law.”

According to DUGARD: South African Criminal Law and Procedure – Vol. IV Introduction to Criminal Procedure (1977)…, the Roman-Dutch law of criminal procedure and evidence remained in force at the Cape until the early 19th century.

Following various alterations to the structure of the courts in the Cape, this adjectival law was radically anglicised by Ordinance No.40 (1828) and Ordinance No.72 (1830) to form the foundations of our modern law (ibid. at p25).

As regards the institution of prosecutions, the British Government accepted that the conditions prevailing in the Cape did not permit the unmodified adoption of the English system of private prosecution. Accordingly, the right of prosecution was vested in the Attorney-General, but, where he declined to prosecute, a private individual might prosecute in respect of an injury to himself or to someone under his care (ibid. at p25).

In principle, therefore, the law governing private prosecutions, both in Zimbabwe and in South Africa, does not originate in the Roman-Dutch law but is derived from the English common law.

In England, during the 17th and 18th centuries, the system of criminal procedure that prevailed was predominantly one of private prosecutions. No public official was designated as a public prosecutor, either locally or nationally, although the local justice of the peace sometimes assumed that role.

In essence, private citizens were responsible for preserving the peace and maintaining law and order. Crimes were regarded as being committed, not against the State, but against a particular individual or family. Thus, the prosecution of almost all criminal offences was usually initiated and conducted by the victim or his or her relative.

The distinctive feature of the common law was that it was not a privilege, but the duty, of the private citizen to preserve the peace and bring offenders to justice. Consequently, no authority was vested in the King to dictate if, and when, a private individual could institute criminal proceedings.

With the passage of time, King's attorneys were appointed to intervene in matters of particular interest to the King or to initiate and conduct prosecutions in his name. This led to the origin and evolution of the so-called law officers of the Crown, vested with the specific function of advising and litigating on behalf of the King.

The late 19th century saw the passage of the Prosecution of Offences Act 1879 which first introduced the office of Director of Public Prosecutions. However, this Act did not fundamentally undermine private prosecutions because public prosecutors enjoyed very limited authority.

Again, the successor Act of 1908 did not substantially increase the powers of public prosecutors.

It was only with the enactment of the Prosecution of Offences Act 1985 that England established an effective system of public prosecution through the Crown Prosecution Service. Even then, this Act continued to preserve a limited right of private prosecution.

The above historical synopsis demonstrates, that, the right of private prosecution originates in the reparation of individual injuries and the vindication of individual as opposed to corporate rights.

The interests that the right to prosecute is conceived to safeguard are manifold. They are certainly not confined to purely pecuniary loss or the kind of injury that might ordinarily be sustained by corporate entities in the normal course of their business.

This rationale is aptly and eloquently captured by Van Den HEEVER AJP in Attorney-General v Van der Merwe and Bornman­­ 1946 OPD 197…,.:

“Prosecution is not primarily designed to recover compensation. I do not think, therefore, that the expression 'substantial and peculiar interest' was intended…, to convey only a pecuniary interest in respect of which the prosecutor may obtain compensation or restitution. The object of the phrase was clearly to prevent private persons from arrogating to themselves the functions of a public prosecutor and prosecuting in respect of offences which do not affect them in any different degree than any other member of the public; to curb, in other words, the activities of those who would otherwise constitute themselves public busybodies.

The interest the legislature had in mind may be pecuniary, but, may also be such that it cannot sound in money – such imponderable interests, for example, as the chastity and reputation of a daughter or ward, the inviolability of one's person or the persons of those dear to us.

Permission to prosecute in such circumstances was conceived as a kind of safety-valve.

An action for damages may be futile against a man of straw and a private prosecution affords a way of vindicating those imponderable interests - other than the violent and crude one of shooting the offender. The vindication is real: it consoles the victim of the wrong; it protects the imponderable interests involved by the deterrent effect of punishment, and it sets at naught the inroad into such inalienable rights by effecting ethical retribution. Finally, it effects atonement, which is a social desideratum.”

In the case of Salisbury Bottling Co. (Pvt) Ltd & Ors v Central African Bottling Co. (Pvt) Ltd 1958 (1) SA 750 (FC) all the parties involved were corporate entities.

Our Federal Supreme Court canvassed the right of private prosecution under section 19 of [Cap 28] (the predecessor to section 13 of the Criminal Procedure and Evidence Act [Chapter 9:07]) as an alternative remedy to the grant of damages or an interdict.

In that context, the court did not draw any specific distinction as between private individuals and companies. However, it did not consider or make any definitive ruling on the point presently under review.

The authority relied upon, and followed, by the court below, in rejecting the appellant's locus standi to prosecute, is the South African case of Barclays Zimbabwe Nominees (Pvt) Ltd v Black 1990 (4) SA 720 (AD).

The court in that case held, that, the phrase “private person” in section 7(1)(a) of the Criminal Procedure Act No.51 of 1977 (the equivalent of section 13 in the Criminal Procedure and Evidence Act [Chapter 9:07]), as read in the context of section 7 and the Act as a whole, should be interpreted as meaning only a natural person.

MILNE JA, delivering the unanimous decision of the Appellate Division, elaborated several reasons for arriving at that conclusion:

(i) The definitions of the word “private” in the Oxford Dictionary (2nd ed.) are indicative of natural rather than artificial characteristics (at 722E-F and 723B-C);

(ii) The reference to “some injury which he individually suffered” is peculiarly apposite in the case of natural persons (at 723C-G);

(iii) Section 8(1) of the 1977 Act (the equivalent of our section 14(d) of the Criminal Procedure and Evidence Act) draws a clear distinction between natural persons and corporate bodies (at 725A-B);

(iii) Section 10(2) of the 1977 Act, which requires the signature of the indictment, charge sheet or summons, specifically differentiates between a private prosecutor and a corporate body (at 725C-E); and lastly

(iv) The need to obviate any resort to self-help, as articulated in Attorney-General v Van der Merwe and Bornman­­ 1946 OPD 197 underscores the point that “a corporate body, as such, has no human passions and there can be no question of the company, as such, resorting to violence” (at 726F-G).

Although, as was clearly recognised by the learned judge a quo, the South African and Zimbabwean statutes are broadly in pari materia, I think it necessary to highlight certain critical differences between them.

(i) First and foremost, section 7(1) of the South African Act confers the right to prosecute on “any private person…, either in person or by a legal representative”; section 13 of the Criminal Procedure and Evidence Act provides that “any private party…, may prosecute.”

(ii) Secondly, the right to prosecute under statute is exercisable in terms of section 8(1) of the South African Act by “any body upon which or person upon whom” such right is expressly conferred; by virtue of section 14(d) of the Criminal Procedure and Evidence Act, it is exercisable by “public bodies and persons on whom” it is specially conferred.

(iii) Thirdly, there is no equivalent in the Criminal Procedure and Evidence Act of section 10(2) of the South African Act which requires the signature of the indictment, charge sheet or summons by the “prosecutor or his legal representative.”

(iv) Fourthly, section 11(1) of the South African Act refers to the failure of “the private prosecutor” to appear on the day set down for trial; section 18(1) of the Criminal Procedure and Evidence Act refers to such failure by “the prosecutor, being a private party.”

Ultimately, the most fundamental distinction between the two statutes is the usage of “private person” in the South African Act as contrasted with the references to “private party” in the Criminal Procedure and Evidence Act.

The word “person” in its principal sense, is defined in The Shorter Oxford English Dictionary 3rd ed. 1978 as “an individual human being; a man, woman, or child”. However, in its legal sense, it is defined to mean “a human being (natural person) or body corporate or corporation (artificial person), having rights or duties recognised by law.”

Again, in the legal context, the word “party” is defined as “each of two or more persons (or bodies of people) that constitute the two sides in an action at law, a contract, etc.”

In my view, these definitions, coupled with the differences that I have highlighted as between the South African and Zimbabwean statutes, tend to diminish the persuasive authority of the Appellate Division's otherwise cogent reasoning in Barclays Zimbabwe Nominees (Pvt) Ltd v Black 1990 (4) SA 720 (AD).

In England, as I have stated earlier, the Prosecution of Offences Act 1985 [Cap 23] now provides the regulatory framework for a comprehensive system of public prosecution.

Section 1 of this Act establishes the Crown Prosecution Service consisting of the Director of Public Prosecutions, Crown Prosecutors, and other subordinate staff.

In terms of section 3, the Director of Public Prosecutions, acting under the superintendence of the Attorney-General, is charged with the duty of, inter alia, taking over the conduct of all criminal proceedings instituted on behalf of any police force, as well as instituting criminal proceedings in important or difficult cases or where it is otherwise appropriate to do so.

In any event, section 6 explicitly preserves the right of private prosecution as follows:

“(1) Subject to subsection (2) below, nothing in this Part shall preclude any person from instituting any criminal proceedings or conducting criminal proceedings to which the Director's duty to take over the conduct of proceedings does not apply.

(2) Where criminal proceedings are instituted in circumstances in which the Director is not under a duty to take over their conduct, he may nevertheless do so at any stage.”

Prior to 1985, the importance of the private right to prosecute is illustrated by the reliance placed upon it by LORD WOOLF CJ in R (Hunt) v Criminal Cases Review Commission [2001] QB 1108 at para 20:

“Great importance has always been attached to the ability of an ordinary member of the public to prosecute in respect of breaches of the criminal law.”

The continuing survival of that right, to the extent provided for by section 6 of the 1985 Act, was vouchsafed by the House of Lords in Jones v Whalley [2007] 1 AC 63.

Any judicial curtailment of the right was not readily countenanced. As was observed by MITTING J in R (Ewing) v Davis [2007] EWHC 1730 (Admin) at para 23:

“…, if the right of private prosecution is to be taken away or subjected to limitation, it is for Parliament to enact and not for the courts, by decision, to achieve.”

The position of corporate entities in England is no different.

That the right of private prosecution can be exercised by a corporate body was confirmed by the Divisional Court in R (Gladstone PLC) v Manchester City Magistrates Court [2005] 1 WLR 1987.

More recently, the correctness of that position was re-affirmed by the Court of Appeal and the Supreme Court in a case involving the Financial Service Authority (the FSA).

The central issue in that case was whether the Financial Service Authority (the FSA) had the power to prosecute offences other than those referred to in sections 401 and 402 of the Financial Services and Markets Act 2000.

The Financial Service Authority (the FSA) contended, that, as a body corporate with legal personality, it had the common law power to bring prosecutions in respect of other offences.

The Financial Service Authority (the FSA) is a company limited by guarantee, incorporated in June 1985. The Memorandum and Articles of Association of the FSA express its objects and powers in broad terms.

The Act of 2000 did not create the Financial Service Authority (the FSA) or turn it into a statutory corporation, but, assumed its existence as a body corporate.

The Court of Appeal (Criminal Division), in R v Rollins and McInerney [2009] EWCA (Crim) 1941, rejected the contention, that, sections 401 and 402 of the Act, together, created a complete regime of offences that the Financial Service Authority (the FSA) could prosecute. It was held by RICHRADS LJ, at para 30:

“For our part, we can see no reason why the general right of private prosecution should not be enjoyed by the FSA. The right is not excluded by FSMA 2000 or any other statutory provision to which our attention has been drawn, and the powers conferred on the FSA, by its Memorandum of Association, are easily wide enough to cover the institution of criminal proceedings within the scope of its objects.”

The Court of Appeal accordingly concluded, that, the Financial Service Authority (the FSA) did have the power to prosecute offences beyond those referred to in sections 401 and 402 of the Act.

This decision was upheld on appeal to the Supreme Court in R v Rollins [2010] UKSC 39.

It was held, that, a corporation enjoyed the same power to prosecute as did any individual under the common law right of private prosecution. Sir JOHN DYSON SCJ, delivering the judgment of the court, enunciated this position as follows, at paras 8-9:

“Every person has the right to bring a private prosecution: see, for example Gouriet v Union of Post Office Workers [1978] AC 435, 497H per Lord Diplock. The right to bring private prosecutions has been expressly preserved by section 6 of the Prosecution of Offences Act 1985….,.

Nothing in section 6(1) excludes bodies corporate from the definition of 'any person'.

A corporation may therefore bring a prosecution provided that it is permitted to do so by the instrument that gives it the power to act. As Lord Mance noted in Jones v Whalley [2007] 1 AC 67 at para 38, private prosecutions 'may be initiated by private bodies such as high street stores, by charities such as NSPCC and RSPCA, or by private individuals….,.'”

For these reasons, the broad prosecutorial right of the Financial Service Authority (the FSA) was confirmed at paras 11-14:

“The general position, therefore, is that the FSA has always been able to bring any prosecution subject to statutory restrictions and conditions and provided that it is permitted to do so by its Memorandum and Articles of Association. Most statutes which create offences do not specify who may prosecute or on what conditions. Typically, they simply state that a person who is guilty of the offence in question shall be liable to a specified maximum penalty, it being assumed that anybody may bring the prosecution….,.

The general position before the enactment of FSMA was that the FSA had the power of a private individual to prosecute, provided that this fell within the scope of its objects and prosecution was not precluded or restricted by the terms of the relevant statute.”

Turning to the relevant provisions of the Criminal Procedure and Evidence Act, I would accept that some of the phraseology employed in section 13 of the Criminal Procedure and Evidence Act, in particular, the reference to “some injury which he individually has suffered” strongly supports the proposition that the right to prosecute conferred by that provision is confined to natural as opposed to artificial persons.

On the other hand, the references to “public bodies and persons” and “public body or person” in sections 14 and 16 of the Criminal Procedure and Evidence Act respectively, suggest otherwise.

The term “private party” itself, as used in Part III of of the Criminal Procedure and Evidence Act, is defined in section 12, in a fashion that is plainly tautologous and unhelpful, to mean:

“a person authorized by section thirteen or fourteen to prosecute any offence.”

In the context of the Criminal Procedure and Evidence Act as a whole, section 2 contemplates a broad definition of “person” in the following terms:

“'person' and 'owner' and other like terms, when used with reference to property or acts, include corporations of all kinds, and any other association of persons capable of owning or holding property or doing acts, and they also, when relating to property, include any department of the State.”

A broader connotation of the words under review is further supported by section 3(3) of the Interpretation Act [Chapter 1:01] which provides that in every enactment:

“'person' or 'party' includes –

(a) Any company incorporated or registered as such under an enactment; or

(b) Any body of persons, corporate or un-incorporated; or

(c) Any local or other similar authority.”

Also relevant for present purposes is section 9 of the Interpretation Act which prescribes rules as to gender and number as follows:

“(1) Unless the context otherwise requires, words importing female persons include male persons and juristic persons and words importing male persons include female persons and juristic persons.

(2) Words in the singular include the plural and words in the plural include the singular.”

One of the paramount principles of statutory construction is that the law should not be subject to casual change.

As was succinctly put by LORD DEVLIN in National Assistance Board v Wilkinson [1952] 2 QB 648:

“It is a well-established principle of construction, that, a statute is not to be taken as effecting a fundamental alteration in the general law unless it uses words that point unmistakably to that conclusion.”

BENNION: Statutory Interpretation…, elaborates the principle against casual change as follows:

“It is a principle of legal policy, that, law should be altered deliberately rather than casually, and that Parliament should not change either common law or statute law by a sidewind, but only by measured and considered provision. In the case of common law, or Acts embodying common law, the principle is somewhat stronger than in other cases.

It is also stronger the more fundamental the change is.

The court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislator intended to observe this principle. The court should therefore strive to avoid adopting a construction which involves accepting that Parliament contravened the principle.”

Having regard to the English authorities cited above, it is clear that the common law right of private prosecution was not confined to natural persons, but extended, as well, to juristic and artificial entities.

That common law right migrated to the Cape Colony through Ordinance No.40 (1828) and Ordinance No.72 (1830) and remained intact until 10 June 1891, at which stage it became an integral part of our law (cf. section 89 of the former Constitution).

The critical question is whether the right of private prosecution, as embodied in statute, has been modified by the Criminal Procedure and Evidence Act (or its predecessors) so as to exclude private corporations from its ambit.

The governing rule of statutory interpretation dictates, that, the provisions of Part III of the Criminal Procedure and Evidence Act should be construed, insofar as is consistent with their language and context, so as to preserve the common law components of the right to prosecute rather than to diminish or extinguish them.

I do not perceive, in these provisions, any clear or positive legislative intention to alter pre-existing rights or to constrict the common law position relative to corporations.

This interpretation is fortified by the reality that a company is, in essence, an association of persons and therefore should, albeit subject to its obvious physical limitations, enjoy the same rights and privileges as the individual members comprising it - including the right of prosecution.

The fact that it is devoid of human passions and has no personal interests to protect should not, in principle, detract from that right.

Its interests may be of a purely material or pecuniary character, but, they constitute a proper basis for the right to prosecute.

This was clearly recognised in Attorney-General v Van der Merwe and Bornman­­ 1946 OPD 197…, and in Levy v Benatar 1987 (1) ZLR 120 (S)…,.

To answer the question posed above, it seems to me that a liberal and inclusive construction of section 13 of the Criminal Procedure and Evidence Act accords not only with the definition of “person” and “party” in section 2 of that Act but also with the broad definition of those terms in section 3(3) of the Interpretation Act.

It also accords with the rule of interpretation prescribed by section 9(1) of the Interpretation Act, viz. that words importing male persons include female persons and juristic persons.

Moreover, this construction is neither inconsistent with the context of section 13 of the Criminal Procedure and Evidence Act nor does it lead to any absurdity.

I accordingly take the view, that, the right of private prosecution conferred by that provision vests in natural as well as artificial persons - including private corporations.

The requirements for the issuance of a certificate nolle prosequi are crisply spelt out in section 13 of the Criminal Procedure and Evidence Act.

As was expounded by GUBBAY JA in Levy v Benatar 1987 (1) ZLR 120 (S)…,.:

“The private party concerned must show:

(i) Some substantial and peculiar interest;

(ii) In the issue of the trial;

(iii) Arising out of some injury;

(iv) Which he individually has suffered;

(v) In consequence of the commission of the offence…..,.

These five requirements are in addition to the obligation to obtain from the Attorney-General a certificate of nolle prosequi, for the practice has always been for the State jealously to guard its right to prosecute offenders: see Landsdown and Campbell South African Criminal Law and Procedure Vol. 5 at 120.”

Moreover, as the learned authors cited in the above passage point out at p121:

“The mere possession of the Attorney General's certificate does not in itself confer an absolute right of private prosecution. In the absence of such a right, the court will interdict the person proposing to prosecute privately.”

In other words, notwithstanding the possession of a certificate, the court may, in the exercise of its inherent power to prevent abuse of process, interdict a private prosecution pursuant to such certificate.

This inherent power, to restrain a private prosecution, was emphasised by ROPER J in Solomon v Magistrate, Pretoria & Another 1950 (3) SA 603 (W)…,.:

“The Court has an inherent power to prevent abuse of its process by frivolous or vexatious proceedings…, and though this power is usually asserted in connection with civil proceedings, it exists, in my view, equally, where the process abused is that provided for in the conduct of a private prosecution. In such a case, as I have postulated, therefore, this Court would, in my opinion, by virtue of its inherent power, be entitled to set aside a criminal summons issued by its own officials or to interdict further proceedings upon it.”

This broad principle was confirmed, but with some caution, by HOEXTER JA in Phillips v Botha 1999 (2) SA 555 (SCA)…,.:

“Where the Court finds an attempt made to use, for ulterior purposes, machinery devised for the better administration of justice, it is the Court's duty to prevent such abuse. This power, however, is to be exercised with great caution and only in a clear case….,. The question is whether the private prosecution of the respondent was either instituted or thereafter conducted by the appellant for some collateral and improper purpose, such as the extortion of money, rather than with the object of having criminal justice done to an offender.”

In the more recent South African case of Singh v Minister of Justice and Constitutional Development & Another (5072/05) [2006] ZAKZHC 20, it was argued that the National Director of Public Prosecutions (the NDPP) was obliged to issue to the applicant a certificate nolle prosequi once there had been a decision that he had declined to prosecute, and that it was not necessary for a private prosecutor to prove some substantial and peculiar interest in the issue of the trial.

It was held, per HOLLIS AJ, that, upon a proper construction of section 7 of Act No.51 of 1977 the National Director of Public Prosecutions (the NDPP) was not obliged to do so unless the requirements of section 7(1)(a) had been met.

It was necessary for the applicant to provide a factual basis proving that he had some substantial and peculiar interest in the issue of the trial, arising out of some injury which he has individually suffered in consequence of the commission of the alleged offence.

BENNION: Statutory Interpretation at p625, dealing specifically with rights in relation to law and legal proceedings, opines that:

“One aspect of the principle against doubtful penalisation is that, by the exercise of State power, the rights of a person in relation to law and legal proceedings should not be removed or impaired, except under clear authority of law.”

In his ensuing commentary on the principle, the learned author makes the following observation, at p626:

“The right to bring, defend and conduct legal proceedings without unwarranted interference is a basic right of citizenship….,. While the court has control, subject to legal rules, of its own procedure, this does not authorize any ruling which abridges the basic right.”

The language of section 16(1) of the Criminal Procedure and Evidence Act is categorically clear, viz. a private prosecutor must produce “a certificate signed by the Attorney-General that he has seen the statements or affidavits on which the charge is based and declines to prosecute at the public instance.”

Moreover “in every case in which the Attorney General declines to prosecute he shall, at the request of the party intending to prosecute, grant the certificate required.”

In any event, in construing this provision, we must also have regard to the Attorney-General's constitutionally guaranteed independence and wide discretion in matters of criminal prosecution.

Taking this into account, it seems to me that the exercise of his discretion vis-a-vis any intended private prosecution involves a two-stage process:

The first stage is for him to decide whether or not to prosecute at the public instance. If he declines to do so, the next stage comes into play, i.e. to decide whether or not to grant the requisite certificate.

In so doing, he must take into account all the relevant factors prescribed in section 13 of the Criminal Procedure and Evidence Act, to wit, whether the private party in question “can show some substantial and peculiar interest in the issue of the trial arising out of some injury which he individually has suffered by the commission of the offence.”

If he cannot show any such interest, the Attorney-General is entitled to refuse to issue the necessary certificate.

However, where the private party is able to demonstrate the required “substantial and peculiar interest” and attendant criteria, the Attorney-General is then bound to grant the certificate nolle prosequi.

At that stage, his obligation to do so becomes peremptory and section 16(1) of the Criminal Procedure and Evidence Act can no longer be construed as being merely permissive or directory.

This conclusion clearly does not impinge on the Attorney-General's principal discretion to prosecute or not to prosecute at the public instance. That decision is an incident of his constitutional primacy in the sphere of criminal prosecution and is generally not reviewable.

Indeed, as is expressly recognized in section 20 of the Criminal Procedure and Evidence Act, even after a private prosecution has commenced, he is entitled to apply for the proceedings to be stopped in order to institute or continue the prosecution at the public instance.

However, once he has declined to prosecute and is met with a request for private prosecution by a party that satisfies the “substantial and peculiar interest” requirement of section 13 of the Criminal Procedure and Evidence Act, he has no further discretion in the matter and is statutorily bound by section 16(1) of the Criminal Procedure and Evidence Act to issue the requisite certificate.

It follows from all of the foregoing, that, the appellant, qua private corporation, is entitled to institute a private prosecution in terms of section 13 of the Criminal Procedure and Evidence Act.

However, this entitlement is subject to the issuance of a certificate nolle prosequi under section 16(1) upon the respondent being satisfied that the appellant meets the requirements of section 13.

According to the appellant's founding affidavit in the proceedings a quo, it has incurred a massive loss in the amount of US$1,700,000 arising from the alleged fraudulent activities of its former employees. The respondent takes issue with the evidence required to establish fraud but does not dispute the nature and extent of the prejudice suffered by the appellant.

On the papers, therefore, the appellant has clearly demonstrated a substantial and peculiar interest in the issue of the intended prosecution and trial arising out of an injury which it has suffered by the commission of the alleged offence.

The appellant also avers, that, at the stage of bail proceedings, the evidence against the four accused persons was found to be so overwhelming as to entail the refusal of bail by the Magistrates Court.

Three weeks later, charges against all four accused were withdrawn before plea on the ground of insufficient evidence.

After a further three weeks, following the appellant's request to mount a private prosecution, the respondent withheld and declined to issue his certificate nolle prosequi.

The reasons stated for that decision, in the respondent's letter of 23 April 2010, were that “the evidence [in the police docket] does not establish a criminal offence against the four suspects” and that it would be “contra bonos mores for me to grant my certificate in this matter.”

However, nothing was stated in the letter as to his evaluation of the nature and extent of the appellant's interest in the matter or the relationship between the alleged offence and the injury sustained by the appellant.

The appellant's grounds for seeking to review the respondent's decisions before the court a quo are essentially twofold, to wit:

(i) Gross irrationality in his assessment of the evidence in the docket; and

(ii) Misdirection at law in his application of section 16(1) of the Criminal Procedure and Evidence Act.

The locus classicus on judicial review in England is the decision of the House of Lords in Council for Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935 (HL). LORD DIPLOCK, at 950-951, described the grounds of review as follows:

“The first ground I would call 'illegality' the second 'irrationality' and the third 'procedural impropriety'.

That is not to say that further development on a case by case basis may not, in course of time, add further grounds.

I have in mind, particularly, the possible adoption in the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community; but, to dispose of the instant case, the three already well-established heads that I have mentioned will suffice.

By 'illegality' as a ground for judicial review, I mean that the decision-maker must understand, correctly, the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the State is exercisable.

By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness': see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680 [1948] 1 KB 223.

It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.

Whether a decision falls within this category is a question that judges, by their training and experience, should be well equipped to answer, or else there would be something badly wrong with our judicial system.

To justify the court's exercise of this role, resort, I think, is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards (Inspector of Taxes) v Bairstow [1955] 3 All ER 48 [1956] AC 14 of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred, though un-identifiable, mistake of law by the decision-maker.

'Irrationality' by now can stand on its own feet as an accepted ground on which a decision may be attacked by judicial review.

I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision.

This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But, the instant case is not concerned with the proceedings of an administrative tribunal at all.”

LORD ROSKILL, at 953-954, adverted favourably to the “new nomenclature” devised by LORD DIPLOCK but adopted a slightly different approach which, in essence, retains the same classification:

“But, your Lordships are vitally concerned with that branch of judicial review which is concerned with the control of executive action. This branch of public or administrative law has evolved, as with much of our law, on a case by case basis and no doubt hereafter that process will continue.

Thus far, this evolution has established that executive action will be the subject of judicial review on three separate grounds:

(i) The first is where the authority concerned has been guilty of an error of law in its action, as, for example, purporting to exercise a power which in law it does not possess.

(ii) The second is where it exercises a power in so unreasonable a manner that the exercise becomes open to review on what are called, in lawyers shorthand, Wednesbury principles: see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680 [1948] 1 KB 223.

(iii) The third is where it has acted contrary to what are often called 'principles of natural justice.'”

In Patriotic Front-Zimbabwe African People's Union v Minister of Justice, Legal and Parliamentary Affairs 1985 (1) ZLR 305 (SC), the question that fell for resolution was whether the courts could test the validity of anything done by the President.

DUMBUTSHENA CJ, at 325-326, commended the decision in Council for Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935 (HL) as follows:

“More recently, the House of Lords laid down the grounds upon which administrative actions are subject to judicial review. These grounds appeal to me not only because they were pronounced by an eminent Law Lord, but also because they make clear the wide extent of the theatre of operation in which courts can test the validity of prerogative actions.”

The learned Chief Justice then proceeded, at 327-328, to adopt and apply the grounds of review expounded by the House of Lords:

“I respectfully agree with Lord Diplock's three grounds on the reviewability of decisions taken under royal prerogative (in our case Executive prerogative), which clearly state the grounds upon which actions taken under executive prerogative can be attacked by the courts.

I have no doubt in my mind, that, the Electoral Act (Modification) Notice 1985 and Proclamation 2 of 1985…, are reviewable by the court on the grounds so ably stated by Lord Diplock.”

Section 26 of the High Court Act [Chapter 7:06] declares the inherent power, jurisdiction, and authority vested in the High Court to review all proceedings and decisions of all inferior courts, tribunals, and administrative authorities within Zimbabwe.

In terms of section 28 of the High Court Act, upon the review of any civil proceedings or decision, the High Court may, subject to any other law, set aside or correct the proceedings or decision.

The principles of judicial review enunciated by Lords Diplock and Roskill, and, subsequently, adopted by Dumbutshena CJ, are now codified in section 3(1)(a) of the Administrative Justice Act [Chapter 10:28].

This provision enjoins every administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests, or legitimate expectations of any person to “act lawfully, reasonably, and in a fair manner.”

Subsections (2) and (3) of section 4 of the Administrative Justice Act restate and elaborate the inherent powers of the High Court to grant relief in respect of any reviewable irregularity.

These include the power to confirm or set aside the decision under review or refer the matter back to the administrative authority concerned for consideration or reconsideration. Additionally, the High Court may give such directions as it may consider necessary or desirable to achieve and ensure compliance by the administrative authority with section 3 of the Administrative Justice Act as well as the relevant law or empowering provision.

Dealing with the irrationality ground invoked by the appellant, I do not think that the respondent's assessment of the evidence against the accused persons in question can properly be subjected to review.

As I have already stated, that is a function that forms part of his constitutional prerogative and cannot ordinarily be questioned by the courts.

Even if it were held to be reviewable, it cannot be said, on the facts in casu, that his decision is so irrational in its defiance of logic or accepted moral standards that no reasonable person in his position who had applied his mind to the matter could have arrived at it.

On the other hand, turning to the legality of the respondent's decision not to issue his certificate, it is clear that he has failed to exercise his statutory powers on a proper legal footing.

Having declined to prosecute at the public instance, he should have considered whether or not the appellant satisfied the “substantial and peculiar interest” requirement of section 13 of the Criminal Procedure and Evidence Act.

He did not do so, but, proceeded to decline his certificate nolle prosequi on the basis that there was insufficient evidence to prosecute.

He consequently failed to correctly understand and give effect to the requirements of section 16(1) of the Criminal Procedure and Evidence Act which regulated his decision-making power.

Put differently, by withholding his certificate, he was guilty of an error of law by purporting to exercise a power which, in law, he did not possess. He thereby contravened his duty to act lawfully in accordance with the peremptory injunction of section 16(1) of the Criminal Procedure and Evidence Act.

This constitutes a manifest misdirection at law rendering his decision reviewable on the ground of illegality.

It follows, that, the court a quo should have found in favour of the appellant on the first ground of review pleaded by it, viz. that the respondent misdirected himself at law in exercising his discretion under section 16(1) of the Criminal Procedure and Evidence Act [Chapter 9:07].

As I have already indicated, the High Court is endowed with wide powers of review, including the power to set aside and correct the decision under review or refer the matter back for reconsideration or give directions to ensure compliance with the law.

In the present matter, in light of the appellant having demonstrated its “substantial and peculiar interest in the issue of the trial” in terms of section 13 of the Criminal Procedure and Evidence Act, no useful purpose would be served by remitting the matter to the respondent for reconsideration.

The best recourse in the circumstances of this case would be to grant the relief prayed for by the appellant in the High Court.

In the result, the appeal is allowed with costs. The judgment of the court a quo is set aside and substituted with the following:

“1. The decision by the respondent to refuse to grant a certificate nolle prosequi to the applicant be and is hereby set aside.

2. The respondent is directed and ordered, within 5 days of the date of this order, to issue a certificate to the applicant that he declines to prosecute the fraud charge at the public instance.

3. The respondent shall pay the costs of this application.”

Section 16B was interpreted in the case of Mike Campbell (Pvt) Ltd & Ors v Minister of National Security Responsible for Land, Land Reform and Resettlement & Anor 2008 (1) ZLR 17 (S) where MALABA JA…, at p43F-G to 44A said:

“By the clear and unambiguous language of section 16B(3) of the Constitution, the Legislature, in the proper exercise of its powers, has ousted the jurisdiction of courts of law from any of the cases in which a challenge to the acquisition of agricultural land, secured in terms of section 16B(2)(a) of the Constitution, could have been sought.

The right to protection of law, for the enforcement of the right to fair compensation, in case of breach by the acquiring authority of the obligation to pay compensation, has not been taken away.

The ouster provision is limited, in effect, to providing protection from judicial process to the acquisition of agricultural land identified in a notice published in the Gazette in terms of section 16B(2)(a).

An acquisition of the land referred to in section 16B(2)(a) would be a lawful acquisition. By a fundamental law, the Legislature has unquestionably said that such an acquisition shall not be challenged in any court of law. There cannot be any clearer language by which the jurisdiction of the courts is excluded.”

The decision of the court in Mike Campbell (Pvt) Ltd & Ors v Minister of National Security Responsible for Land, Land Reform and Resettlement & Anor 2008 (1) ZLR 17 (S) settles the issue before this Court.

It confirms the ouster of the right of the former owner to approach the courts challenging the acquisition of his or her land. It further confirms, that, the provision ousts the jurisdiction of the courts. It further confirms, that, an acquisition in terms of section 16B(2)(a) is a lawful acquisition.

Once an acquisition is found to be lawful, the provisions of section 16B(3) come into operation barring the former owner from challenging the acquisition in the courts, and the courts from entertaining such a challenge.

The High Court (the 'court a quo') granted an application filed by the first respondent, on an urgent basis, for spoliatory relief. The appellant, disgruntled by the decision, appealed to this Court.

At the commencement of the hearing, counsel for the appellant raised a point in limine, that, the second respondent's heads of argument were improperly before the court as they were filed in support of the appeal. He thus prayed that they be struck out with no order as to costs.

Counsel for the second respondent was not opposed to the striking out of the heads of argument. As a result, an order by consent was issued striking out the second respondent's heads of argument.

There was, therefore, no appearance for the second respondent before the court.

The first respondent is the holder of an offer letter for subdivision 6 of Braemar Farm in Seke District (the farm) under the jurisdiction of the Manyame Rural District Council. The farm was allocated to him on 17 November 2009 and is 122,540ha in extent. The farm had been gazetted on 3 September 2004 in the Government Gazette Extraordinary Vol. LXXXII, No. 72.

The acquisition of the farm by Government is still extant.

On 10 May 2022, the first respondent filed an urgent chamber application for a spoliation order against the appellant.

The first respondent alleged, that, on 5 May 2022, at around 3:00pm, the appellant instructed his workers to build a two roomed house and a surrounding wall in his cattle grazing area. The appellant proceeded to dig trenches for the wall and completed building the two-roomed house.

Upon enquiring from the appellant about the reason why he had built a structure on his farm, the appellant responded, that, he had been allocated the piece of land by the second and third respondents for the purpose of constructing a school.

The first respondent requested for a meeting with the appellant as a means to iron out the issue, but, the appellant declined to attend.

The first respondent reported the invasion by the appellant to the police, but, did not get much assistance. The first respondent, thereafter, made an application for a spoliation order in a bid to recover the portion of the farm that had been taken by the appellant.

The appellant opposed the application.

In his opposing affidavit, he raised five preliminary objections:

(i) Firstly, he alleged, that, the first respondent had no cause of action against him.

It was the appellant's position, that, he was entitled to occupy and possess the portion of the farm as it was now Stand Number 7727 Nyatsime Township (the 'Stand'). The appellant further stated, that, he acquired the Stand through a lease agreement entered into between him and the second respondent.

He further stated, that, the Stand was not part of a farm but was a planned urban settlement which fell under the jurisdiction of the Manyame-Chitungwiza Joint Committee.

The appellant also stated, that, the land on which the first respondent was entitled to occupy was different from where his Stand was situated as evidenced by the layout plan and site plan for the area;

(ii) The second preliminary point was that the remedy of spoliation was wrongly sought. It was the appellant's view, that, any charge against the appellant should have been for trespass and not spoliation;

(iii) The third point was that the application was made using the wrong form thus failing to comply with the rules of court;

(iv) The fourth point was that the matter was not urgent; and finally

(v) That the first respondent ought to have joined the Minister of Local Government and Public Works as well as the Manyame-Chitungwiza Joint Committee to the proceedings.

On the basis of these preliminary points, the appellant sought an order that the application be dismissed.

On the merits of the matter, the appellant denied sending his workers onto the first respondent's farm. He argued, that, the piece of land belonged to him and that he was developing it in order to build a school. He maintained, that, the first respondent was never in peaceful and undisturbed possession of the land where the appellant built his structure as such piece of land did not belong to him. The appellant further averred, that, the first respondent was mistaken in thinking that the Stand was part of his farm as evidenced by the lease agreement.

The second respondent opposed the application and raised a preliminary point, that, the application was not urgent.

On the merits, the second respondent averred, that, the gazetted land, on which the farm stood, had since been placed under the jurisdiction of the Manyame-Chitungwiza Joint Committee as established under S.I. 211/21.

The second respondent averred, that, the Stand was allocated to the appellant lawfully with all processes duly followed.

It was also the second respondent's averment, that, the offer letter issued to the first respondent had since been withdrawn by the fourth respondent.

The second respondent thus prayed for the dismissal of the application.

The third respondent also opposed the application and raised two preliminary points:

(i) The first point being, that, there was non-joinder of the Manyame-Chitungwiza Joint Committee; and

(ii) Secondly, that, the matter was not urgent.

On the merits of the matter, the third respondent averred, that, the first respondent failed to furnish any proof that he was in peaceful and undisturbed possession of the land occupied by the appellant. Further, that, the first respondent failed to fulfil the requirements to be satisfied in an application for spoliation.

Not to be outdone, the fourth respondent also opposed the application and raised the preliminary point, that, the matter was not urgent.

On the merits, the fourth respondent averred, that, the offer letter giving the first respondent authority over the farm was withdrawn on 7 February 2015 and the land was subsequently parceled out to the Ministry of Local Government and Public Works.

Thus, the fourth respondent suggested that the offer letter in the possession of the first respondent was null and void and therefore he had no legal right to be on the farm.

The court a quo, in dealing with the application, found no merit in the preliminary points raised. The court a quo held, that, an application for spoliation is urgent by its nature and thus the application was properly before it. It also found, that, there was a valid cause of action before it as the first respondent had an offer letter in his possession which gave him a right to be on the land. It held further, that, the form which had been used by the first respondent was not the correct one but found that there was substantial compliance with the Rules. It further found, that, non joinder of a party to proceedings did not necessarily vitiate the proceedings.

With regards to the merits of the case, the court a quo found, that, the land occupied by the first respondent was a commercial farm held by the fourth respondent. As it was a commercial farm, it fell outside the jurisdiction of the Ministry of Local Government and Public Works, the second, and third respondents. They thus had no mandate over the farm.

The court found, that, the Minister of Local Government and Public Works had no power or authority to establish or expand an urban settlement. The court held, that, the second and third respondents could not come on the first respondent's farm and impose conditions on that land.

It held further, that, the appellant had no legal basis to take the land from the first respondent as this was the sole prerogative of the President.

The court a quo noted, that, the actions by the second respondent, in issuing a lease agreement to the appellant, amounted to an exercise of authority reposed only in the President and that such actions were therefore illegal and criminal.

The court a quo accordingly found, that, the first respondent was despoiled of his farm and granted the application for spoliation against the appellant. It also ordered, that, the appellant, and all those claiming occupation through him, must vacate the farm. It made a further order, that, the appellant must remove all structures which he had constructed and refill all the trenches that he had dug on the farm.

Aggrieved by the decision of the court a quo, the appellant appealed to this Court on the following grounds of appeal;

“(1) The court a quo erred in finding, that, the requirements for spoliation were satisfied in circumstances where the 1st respondent failed to establish that the appellant was in occupation of subdivision 6 of Braemar Farm Plot thereby despoiling him.

(2) The court a quo erred in granting spoliatory relief in circumstances where there was no evidence before it that the appellant's lease agreement with 2nd respondent related to a farm and not a designated Stand.

(3) The court a quo erred in affording the relief of spoliation in circumstances where there existed material dispute of fact as to which land belonged to the appellant and which land belonged to the respondent.

(4) The court a quo erred in holding, that, the matter was urgent in circumstances where the urgency was self-created by the 1st respondent.

(5) The court a quo erred in determining, that, the appellant had a cause of action against the appellant in circumstances where they were in occupation of different pieces of land.

(6) The court a quo erred in ordering the appellant to pay costs of suit on a higher scale in the absence of evidence on record justifying such a course.”

Counsel for the appellant submitted, that, the appellant had proved, before the court a quo, that, the land that the first respondent alleged to have been dispossessed of by the appellant was non-existent.

Counsel argued, that, the offer letter issued to the first respondent was withdrawn by the fourth respondent, and, as such, he had no legal right to occupy the land.

He further argued, that, the court a quo ignored SI 211/21 that had empowered the appellant to use the land in issue.

Counsel further argued, that, there is evidence on record to show that the fourth respondent had informed the court that the farm no longer existed as it was now Council land.

Counsel submitted, that, the judgment in Commercial Farmers Union & Ors v Minister of Lands and Rural Settlement & Ors 2010 (2) ZLR 576 (S) made it unlawful to seek spoliatory relief for anyone who was in occupation of acquired agricultural land.

He further argued, that, spoliation cannot occur in relation to a thing that does not exist, and, hence, that the court a quo granted relief that was a brutum fulmen.

Counsel for the first respondent submitted, that, the issue of the withdrawal of the offer letter was raised for the first time during the hearing before the court a quo. Neither the fourth respondent nor the appellant had produced a copy of the notice of withdrawal of the offer letter.

Counsel further submitted, that, the matter had to be postponed to allow for the withdrawal letter to be furnished to the court.

He further argued, that, there was no due process to notify the first respondent that there was a withdrawal of the offer letter.

It was counsel's argument, that, the second respondent had no jurisdiction to enter into a lease agreement with the appellant over gazetted agricultural land. He maintained, that, the farm is not under the jurisdiction of the second respondent and the appellant could not legally enter into a lease agreement over that land.

Counsel thus prayed for the dismissal of the appeal.

One issue arises from the grounds of appeal and the submissions made by counsel before this Court. The issue to be determined by this Court is whether or not the court a quo erred in granting the first respondent's application for spoliation.

Spoliation proceedings hail from a common law remedy which is meant to discourage members of the public from taking the law into their own hands: see Mswelangubo Farm (Pvt) Ltd & Ors v Kershelmar Farms (Pvt) Ltd & Ors SC80-22; Chiwenga v Mubaiwa SC86-20.

The remedy encourages members of society to follow due process in obtaining or acquiring any res they believe belongs to them in circumstances where they have been unlawfully disposed. The mandement van spolie is therefore a possessory remedy aimed at the restoration of possession where a party is unlawfully deprived of its prior peaceful and undisturbed possession of property.

The facts of each matter determine whether or not spoliation or unlawful disposition has occurred.

It is trite, that, in spoliation proceedings, the lawfulness or otherwise of the possession is not an issue. Spoliation simply requires the restoration of the status quo ante pending the determination of the dispute of right between the parties: see Augustine Banga & Anor v Solomon Zawe & Ors SC54-14.

The essential elements to be fulfilled in an application for spoliation were enunciated in the case of Botha and Another v Barrett 1996 (2) ZLR 73 (S) where GUBBAY CJ…, stated that:

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

(a) That, the applicant was in peaceful and undisturbed possession of the property; and

(b) That, the respondent deprived him of the possession forcibly or wrongfully against his consent.”

The requirements were further discussed in Streamsleigh Investments (Pvt) Ltd v Autoband (Pvt) Ltd 2014 (1) ZLR 736…,. The court held as follows:

“It has been stated in numerous authorities, that, before an order for mandamus van spolie may be issued, an applicant must establish that he was in peaceful and undisturbed possession and was deprived illicitly.”

See also Nino Bonino v De Lange 1906 TS 120…, where the court, in outlining the scope of the mandamus van spolie, stated as follows:

“It is a fundamental principle, that, no man is allowed to take the law into his own hands. No one is permitted to depose another, forcibly or wrongfully, against his consent of possession of property whether movable or immovable. If he does so, the court will summarily restore the status quo ante and will do that as a preliminary to any enquiry or investigation into the merits of the dispute.”

The above authorities make it clear, that, the underlying principle in an application for spoliation is to quickly restore possession and ward off self-help.

In making such an application, the applicant must show that he was in peaceful and undisturbed possession and that possession was illegally taken without his consent.

I will deal with these requirements seriatim.

There is no doubt, that, the first respondent was peacefully minding his own business on the farm when the appellant started building on his grazing land. He was the holder of an offer letter which had been issued to him by the fourth respondent in 2009. The offer letter gave him the legal right to live and carry out farming operations on the farm. He was carrying out farming operations at that farm for over thirteen (13) years. He had set aside part of the farm for grazing his cattle.

In opposing the application, the appellant submitted, that, the first respondent could not claim that he was in peaceful possession of the farm. He argued that the first respondent's offer letter had been withdrawn, and, as such, he had no legal right to occupy the farm.

It was not in dispute, that, the purported withdrawal of the offer letter was never communicated to the first respondent as the hard copy of the notice was only provided to the court when the matter was heard. In fact, it was not part of the documents filed by the respondents a quo and the court had to adjourn the proceedings to enable the fourth respondent to produce it.

A perusal of the notice of withdrawal reflected, that, it had been issued on 27 May 2022 and was not served on the first respondent.

It was also apparent, that, the notice was issued after the invasion by the appellant on the farm had occurred.

Clearly, therefore, at the time when the appellant was building structures and digging trenches, the first respondent had a valid offer letter.

That effectively disposes of the issue of the first respondent's possession of the farm.

The plan and diagram on p20 of the appeal record stipulates, that, the land which is described as a road shall be transferred to the City of Harare for road purposes.

The road reservation is still extant as it was never set aside.

Hence, the respondent, as the owner of the property in question, was not obliged to consult the appellant first before making preparations for constructing a road.

This is an appeal against the whole judgment of the High Court (the court a quo) which granted an eviction order to the respondent against the appellant and all those claiming occupation through him with costs.

The first respondent is a church organization whereas the appellant is a member of a housing co-operative known as Joseph Musika Housing Cooperative. Although the Housing Cooperative was a party to the proceedings in the court a quo, it has not appealed against the court's judgment against it.

The second respondent is a Government Minister and owner of the State land in dispute. The disputed piece of land is commonly known as Stand Number 16549 Hatcliff, Harare (the Stand).

On 25 April 2014, the first respondent successfully applied for a lease of the Stand from the second respondent for use as a church site. The second respondent granted the first respondent a lease agreement on 15 April 2019 in respect of Stand Number 16549 Hatcliffe, Harare. A copy of the lease agreement was adduced in evidence as Annexure C.

Notwithstanding the issuance of the lease agreement to the first respondent, the appellant took occupation of the same land under the auspices of his housing co-operative. He thereafter denied the first respondent access to the Stand.

The appellant claims lawful occupation of the Stand through his membership of the Housing Co-operative which made an application to the second respondent for land for residential Stands in collaboration with the appellant.

The Minister acknowledged the application for land by the co-operative.

On 14 September 2017, he wrote to the appellants requesting them to furnish a properly drawn diagram showing the existing development and pay the requisite fees.

There was no compliance with the Minister's request.

The Minister then turned to the respondent and accepted its application for a lease.

The appellant however argued, that, he had a legitimate expectation to be allocated the Stand following the Minister's acknowledgment of receipt of their application and his request for diagrams and payment of the necessary fees.

The court a quo found, that, the first respondent had a real and substantial interest in the matter as lease holder to the disputed property. It further found, that, there was no material dispute of fact hindering the court from determining the application on the papers before it.

It found no merit in the appellant's assertion, that, the first respondent's lease agreement was fraudulent. The learned judge a quo determined that, apart from a bald assertion, there was no evidence to support the applicant's averment that the lease agreement was fraudulent.

Placing reliance on the presumption of validity of Government documents, he held that the first respondent's lease agreement is authentic and valid.

The court a quo found no merit in the appellant's plea of legitimate expectation. It held, that, the appellant had only occupied the Stand in 2020 and not 2012 as he claims.

On the basis of such findings of fact and law, the court a quo upheld the first respondent's application for eviction and issued the following order:

“IT IS ORDERED THAT:

1. The first and second respondents, and all those claiming occupation through them, be and are hereby ordered to vacate Stand Number 16549 Hatcliff, Harare within seven (7) days from the date of this order.

2. Should the first and second respondents, and all those claiming occupation through them, fail to comply with paragraph 1 above, the Sheriff of the High Court be and is hereby ordered to evict them forthwith and demolish any structures erected at No.16549 Hatcliff, Harare.

3. The first respondent be and is hereby ordered to pay costs of suit on an ordinary scale.”

Aggrieved, the appellant appealed to this Court on the following three (3) grounds of appeal:

“1. The court a quo erred and misdirected itself in holding, that, the appellants took occupation of the land in question in 2020 instead of 2012 resulting in the court granting the order of eviction under the mistaken belief that the appellants took occupation of the land when the respondent had already been granted a lease by the second respondent.

2. The court a quo erred and misdirected itself in holding, that, no dispute of facts existed in the matter, when it was clear that the parties were not in agreement as to when the appellants took occupation of the land and which exact piece of land the appellants were in occupation of.

[3] The court a quo erred and misdirected itself in failing to uphold the appellant's argument that a legitimate expectation had been created, hence, the third respondent could not have proceeded to issue a lease to a third party in respect of the same piece of land, in clear breach of the legitimate expectation it had created.”

On the basis of the above grounds of appeal, the appellant prayed for the setting aside of the court a quo's judgment and its substitution with an order dismissing the applicant's application.

The grounds of appeal raise one issue for determination as to whether the court a quo correctly ordered the eviction of the appellant from the Stand.

The facts clearly establish, that, the appellant did not apply for land to the Minister in his own right. It is the co-operative which applied for land for distribution to its members.

There was therefore no contractual link between him and the Minister.

He looked forward to be allocated his portion of the land, not by the Minister but by the co-operative, by virtue of his membership of the association.

In the absence of a contractual relationship between the Minister and the appellant, no rights or obligations arose between them in relation to the co-operative's application for land.

In legal parlance, there was no privity of contract between them.

In the absence of a contractual relationship between the appellant and the Minister, the appellant could not hold the Minister to account for the lease agreement he concluded with the first respondent in respect of the Stand. No legitimate expectation could arise in the absence of any contractual relationship between them.

It is only the co-operative, which had applied for land to the Minister, which could raise the issue of legitimate expectation.

The co-operative swept the rug from underneath the appellant by failing to appeal against the judgment of the court a quo.

This is because the appellant claims to occupy the disputed Stand through the cooperative. Its failure to appeal means, that, it has capitulated and that leaves the appellant with no leg to stand on as he was riding on the back of the co-operative in his claim for legitimate occupation of the Stand.