Latest update: 31 October 2016 (6th edition)
CASES DECIDED JULY – DECEMBER 2015
Cases added since the last update are indicated by a vertical line in the left margin.
Administrative law – audi alteram partem rule – embodied in Administrative Justice Act [Chapter 10:28] –
effect of rule – requirement to give notice of proposed action and to allow affected person to make
representations – allegations made against person but not clearly refuted – not necessarily admission of
such allegations
A-G v Mudisi & Ors S-48-15 (Patel JA, Malaba DCJ & Garwe JA concurring) (Judgment delivered 28 July
2015)
See below, under LEGAL PRACTITIONER (Prosecutor-General – control over prosecutors).
Administrative law – review – grounds for – bias – test – reasonable suspicion of bias – must be based on
impression of reasonable lay person
Guild v Min of Lands & Ors HH-891-15 (Dube J) (Judgment delivered 18 November 2015)
The applicant was the owner of a farm which had been expropriated by the State. She had voluntarily given up
half of her farm for resettlement and been left with the remainder, in respect of which she received an offer letter
from the responsible Minister. An offer letter to the second respondent in respect of portion of the remainder
was withdrawn after the applicant made representations and the applicant’s rights in respect of the whole of the
remainder were confirmed by the High Court*. Several months later, the Minister purported to withdraw the
offer made to the applicant and offered her a downsized piece of land, while the second respondent was offered
the rest of her land, which included the infrastructure, although the previous offer letter to him had been
withdrawn because of under-utilisation of what he had been allocated.
The applicant challenged the withdrawal of three main grounds: (a) procedural irregularities, in that no notice
was given to her of the Minister’s intention and she was given no opportunity to make representations, in
contravention of her constitutional right to procedural fairness; (b) irrationality and unreasonableness; and (c)
bias. She also contended that the requirements of s 3 of the Administrative Justice Act [Chapter 10:28] were
violated. The second respondent argued that this was a contractual matter and that the Minister was entitled
under the contract to cancel the offer letter if he deemed it necessary. The withdrawal of the applicant’s offer
letter did not constitute an administrative action and was therefore not reviewable.
Held: in terms of s 2 of the Act, the Minister was an “administrative authority” and when he carries out his
functions of issuing and withdrawing offer letters he is exercising administrative powers. Where an
administrative body enters into a contract with a citizen, it does so in the exercise of powers entrusted upon it by
virtue of its position as a public body. These relationships flow from an exercise of public responsibility
deriving from the enabling statute. The way in which the relationship is established and terminated is different
from the way in which an ordinary common law contract is formed and dissolved. Administrative law principles
govern these relations. The Minister’s conduct therefore came within the ambit of s 3 of the Act and were
reviewable. While the offer letter gave the Minister the power to withdraw or change the terms of the offer, he
had to exercise this power judicially and follow due process.
The Act, as well as s 68 of the Constitution, requires an administrative authority to act lawfully, reasonably and
with procedural fairness. Section 3(2)(a) of the Act prescribes that before an adverse administrative action is
taken, adequate notice of the nature and purpose of the proposed action should be given. This was not done, nor
was the applicant furnished with reasons for the adverse action.
The second respondent was under-utilising the land that had been previously allocated to him, so it was
irrational for the Minister to withdraw the applicant’s offer letter and give a double portion of land to a person
who cannot utilize the farm.
As to bias, a litigant seeking to challenge a decision on the grounds of bias must show (a) that bias was clearly
actually displayed; or (b) that in the circumstances there was a real possibility of bias. In connection with (b),
the test is a reasonable apprehension of bias: whether there exist circumstances which may engender a belief in
the mind of a reasonable observer in the position of a lay person that he would be at a disadvantage. In the
circumstances of this case, the court could not avoid the conclusion that the Minister was indeed biased.
*See Chaureka v Min of Lands & Anor 2014 (1) ZLR 179 (H).
Agency – agent – who is – distinction between employee, agent and independent contractor
Masango & Ors v Kenneth & Anor S-41-15 (Gwaunza JA, Gowora & Patel JJA concurring) (Judgment
delivered 20 July 2015)
See below, under EMPLOYMENT (Employee – who is).
Appeal – Constitutional Court – appeal to – from decision of Supreme Court – no right of appeal existing
unless Supreme Court has made decision on a constitutional matter
Nyamande & Anor v Zuva Petroleum (Pvt) Ltd (2) CC-8-15 (Ziyambi JCC) (Judgment delivered 1 August
2015)
See below, under CONSTITUTIONAL LAW (Constitution of Zimbabwe 2013 – Constitutional Court).
Appeal – criminal matter – from High Court to Supreme Court – High Court making ruling in relation to
application for review of proceedings in magistrates court – no appeal lying against such ruling
Nyambo v Mahwe NO & Anor HH-736-15 (Bhunu J) (Judgment delivered 16 September 2015)
The applicant, who was on trial at the magistrates court, applied for discharge at the close of the State case. The
magistrate refused the application, so the applicant brought the matter on review before the High Court, which
dismissed the application. The applicant then sought leave to appeal to the Supreme Court, in terms of s 44(5)(a)
of the High Court Act [Chapter 7:06]. This section allows a dissatisfied party (the accused or the ProsecutorGeneral) to appeal against an interlocutory order or judgment in relation to any criminal proceedings before the
High Court. Leave must be obtained for such appeal.
Held: the ruling dismissing the application for review was not an interlocutory ruling, but a final one. In any
event, the ruling did not relate to proceedings in the High Court, but to proceedings in the magistrates court. The
applicant had no right of appeal at this stage, though the right of appeal to the High Court remained, once the
proceedings in the magistrates court were complete.
Appeal – Labour Court – appeal to – grounds – raising of new grounds on appeal – when appeal court
should allow point to be raised
Appeal – labour matter – observance of procedural requirements – stringency required in other civil
matters not necessarily ousted because matter is a labour dispute
Gazi v NRZ S-60-15 (Gwaunza JA, Ziyambi & Mavangira JJA concurring) (Judgment delivered 19 October
2015)
The appellant was employed by the respondent. He was dismissed for absenteeism. He did not attend the
disciplinary hearing, although he had been advised of the date, time and venue. The decision of the disciplinary
committee was, in effect, a default one. The appellant nonetheless appealed to the General Manager of the
respondent, who disregarded the fact that the appellant had been in default, and heard the matter on the grounds
raised by the appellant. He upheld the dismissal. The appellant then appealed to the Labour Court, but on new
grounds which related to the reasons for his absence from duty. In effect, the enjoined the Labour Court to
determine matters which had not been placed before the General Manager and which the respondent had not had
the opportunity to respond to. He argued that new points of law can be raised at any time. The respondent
argued that to consider these new points would seriously prejudice the respondent in particular, and employers
in general, in that employees would bring flimsy grounds before internal hearings and then bring “real” grounds
and evidence before an appellate court.
Held: (1) In principle a court of appeal is disinclined to allow a point to be raised for the first time before it.
Generally it will decline to do so unless (a) the point is covered by the pleadings; (b) there would be no
unfairness to the other party; (c) the facts are common cause or well-nigh inconvertible; and (d) there is no
ground for thinking that other or further evidence would have been produced that could have affected the point.
Here, (i) the point of law was not covered in the pleadings; (ii) it was unfair to the respondent to raise the point
of law in question for the first time on appeal, in that the respondent argued its case on the basis that the
appellant was absent from duty without reasonable excuse and the General Manager was not confronted with the
argument that the bedrock of its case was being challenged; (iii) the facts of the matter were not common cause;
and (iv) the appellant, if he had chosen to appear before the disciplinary committee, could have led evidence on
the points he relied on.
(2) As to the appellant’s argument that, this being a labour matter, a less strict approach should be followed,
labour matters are civil in nature and, while the same standards of procedural stringency as are required in
ordinary civil matters may not always apply, those standards are not necessarily ousted merely because the
matter is a labour dispute. This is particularly so where serious legal principles are at issue and where, as in
casu, a party who belatedly clamours for such procedural relaxation is the author of the very predicament that he
finds himself in. But for his own default, the appellant could have properly raised the new legal point he sought
to raise on appeal, and adduced evidence on it, during the disciplinary proceedings. Parties in labour disputes
should remember that it is important to show respect for laid down formalities in the adjudication of disputes
that concern them. Showing disdain for such formalities and later expecting the court to turn a blind eye to such
conduct smacks of double standards and a lack of seriousness on the part of the litigant concerned.
Appeal – Labour Court – appeal to – from decision of arbitrator – appeal only lying on point of law –
appeal relating to facts – what must alleged in grounds of appeal – not essential to allege that misdirection
on facts is so unreasonable that no sensible person could have reached impugned conclusion – necessary
that grounds of appeal are disclosed in clear and concise manner
Zvokusekwa v Bikita RDC S-44-15 (Garwe JA, Ziyambi & Hlatshwayo JJA concurring) (judgment delivered 22
July 2015)
An appeal to the Labour Court from the decision of an arbitrator, like an appeal to the Supreme Court from the
Labour Court, must be based on a point of law. What constitutes a point of law has been stated and restated in a
number of decisions of the Supreme Court. If an appeal is to be related to the facts, there must usually be an
allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who
had applied his mind to the facts would have arrived at such a decision. And a misdirection of fact is either a
failure to appreciate a fact at all, or a finding of fact that is contrary to the evidence actually presented. However,
to constitute a point of law, in all cases where findings of fact are attacked, it is not essential that there be an
allegation that there was a misdirection on the facts which was so unreasonable that no sensible person properly
applying his mind would have arrived at such a decision. The court should look at the substance of the grounds
of appeal and not the form. Legal practitioners often exhibit different styles in formulating such grounds. What
is important is that the grounds must disclose the basis upon which the decision of the lower court is impugned
in a clear and concise manner. If it is clear that an appellant is criticising a finding by an inferior court on the
basis that such finding was contrary to the evidence led or was not supported by such evidence, such a ground
cannot be said to be improper merely because the words “there has been a misdirection on the facts which is so
unreasonable that no sensible person would have arrived at such a decision” have not been added thereto. If it is
evident that the gravamen is that an inferior court mistook the facts and consequently reached a wrong
conclusion, such an attack would clearly raise an issue of law and the failure to include the words referred to
above would not render such an appeal defective.
Appeal – leave – when required – interlocutory rulings – leave generally required – grant or refusal of
interdict – leave not required – provisional stay of execution – whether a form of interdict – distinction
between normal interdict and stay of execution – requirements for each
Gold Reef Mining (Pvt) Ltd & Anor v Mnjiya Consulting Engineers (Pty) Ltd & Anor HH-631-15 (Mafusire J)
(Judgment delivered 20 July 2015)
The first respondent obtained a default judgment against the applicants. It went on to issue a writ of execution.
The applicants’ property was attached. The applicants applied for rescission of the default judgment and
simultaneously applied, on an urgent basis, for a stay of execution pending the determination of their application
for rescission. The judge reserved judgment but directed that the status quo ante would subsist until she had
given her ruling. Despite that directive, the respondent sought to execute. The applicants’ lawyers sought
clarification from the judge, who responded that she had indeed issued a directive during the hearing to the
effect that the respondent would stay execution pending her determination. In due course the judge issued a
provisional stay of execution of the default judgment, pending the determination.
A few weeks later the respondent noted an appeal to the Supreme Court against the provisional order. The notice
of appeal claimed that leave to appeal was not required. Soon after the noting of the appeal, the respondent
instructed the sheriff to proceed with execution. The applicants, within a few days, applied on an urgent basis
for a stay of execution. This was opposed in limine on the grounds that the matter was not urgent and that the
applicants were aware, when the appeal was noted, that the operation of the provisional order was suspended
and that the respondent would proceed to execution. The second ground was that the court was functus officio as
the present application was essentially the same as the earlier one. On the right to appeal without leave, the
respondent argued that this was permissible in terms of s 43(2)(d)(ii) of the High Court Act [Chapter 7:06], as
this was a matter where an interdict had been granted or refused.
The applicants argued that the appeal was a nullity, being in respect of an interlocutory ruling which was not
appealable without leave.
Held: (1) The first point in limine had no merit. The purpose of the appeal was not, and could not have been, to
enable the respondent to proceed with execution. The purpose of the appeal to the higher court must have, or
ought to have been, a genuine desire to correct a perceived wrong by the High Court. An appeal noted solely or
essentially to allow execution to proceed, when the reason for the stay was still there, would have been brazenly
contemptuous and mala fide. The applicants acted as soon as they became aware that the respondent was
proceeding to execution.
(2) On the functus officio argument, the matter dealt with by the first judge was an application for stay pending
resolution, by the High Court, of the application for rescission of judgment. The present matter was an
application for stay pending the determination, by the Supreme Court, of the respondent’s appeal. It was a new
matter, which had not been the issue before the first judge.
(3) The principle is now settled as to where to draw the line between decisions which are purely interlocutory
and therefore not appealable without leave, and those which are final and having a definitive sentence and
therefore appealable as of right. The term “interlocutory” refers to all orders pronounced by the court, upon
matters incidental to the main dispute, preparatory to, or during the progress of, the litigation. Orders of this
kind fall in two classes: (i) those which have a final and definitive effect on the main action; and (ii) those that
are simple, purely and properly interlocutory. A simple interlocutory order, i.e. a preparatory or procedural
order, is not appealable without leave. The provisional order was classically interlocutory because it did not
decide the issue or dispute between the parties. The main dispute was the claim by the respondent against the
applicants; in respect of that, the application for rescission of judgment was itself an interlocutory matter. The
application for stay was even more removed from the main dispute. It was an application within another
application. In no way would it decide the application for rescission, let alone the dispute pending in the main
action.
(4) It is every litigant’s right to appeal to the highest court in the land, but that right in certain situations is
removed or restricted. Section 43 of the High Court Act begins, in subs (1), by granting a blanket right of appeal
to the Supreme Court in all civil cases from any judgment of the High Court, but subject to what the rest of the
section says. The rest of the section, in subs (2)(a) to (c), takes away altogether the right of appeal in the
situations specified therein. For example, no appeal lies from an order of the High Court given by consent of the
parties; or from an order refusing summary judgment. Then in subs (2)(c)(ii) and (d) the right of appeal is
restricted. Leave is required in the situations specified therein. An interlocutory order or judgment given by a
judge is not appealable without leave. In respect of the grant or refusal of an interdict no leave is required to
appeal.
(5) In a broad sense, to grant or refuse a stay of execution is to grant or refuse an interdict, an interdict being a
remedy by a court, either prohibiting somebody from doing something (prohibitory interdict), or ordering him to
do or carry out a certain act (mandatory interdict). But the focus of s 43(2)(d)(ii) is not about applications for
stay of execution as a species of an interdict. Otherwise every order of court, for instance, one directing
someone to pay another a sum of money, would always be an interdict. The distinction between ordinary
interdicts and stays of execution in particular is more apparent when one considers the separate requirements for
each remedy. With an interdict, the applicant must show a clear right in his favour, or, in the case of an interim
interdict, a prima facie right having been infringed, or about to be infringed; an apprehension of an irreparable
harm if the interdict was not granted; a balance of convenience favouring the granting of the interdict, and the
absence of any other satisfactory remedy. On the other hand, in an application for a stay of execution the
requirements are real and substantial justice. Where injustice would otherwise be caused, the court has the
power to, and would, generally speaking, grant relief. The requirements for an application for a stay of
execution, admittedly a species of an interdict, are less onerous than those for an ordinary interdict.
(6) The sole object of the provisional order was to preserve the status quo ante so as to allow for the
determination of the application for rescission of the default judgment. The judge obviously considered that real
and substantial justice would be achieved by granting a stay of execution. To allow that order to be suspended
and execution to take place would render any judgment in favour of the applicants in the application for
rescission a brutum fulmen. In addition, the object of the provisional order would be rendered nugatory. That
would be manifestly intolerable. Execution would be stayed.
Arbitration – arbitration clause – clause providing that dispute should first be settled by adjudicator but
that dissatisfied party could have matter referred to arbitration – clause not providing for separate
dispute resolution mechanisms – adjudication simply the path to arbitration
Conplant Technology (Pvt) Ltd v Wentspring Invstms (Pvt) Ltd HH-965-15 (Mafusire J) (Judgment delivered 16
December 2015)
An arbitration clause provided that, in the event of a dispute which could not be resolved between the parties, it
should be settled by an adjudicator, who would do so as an independent adjudicator and not as an arbitrator. The
adjudicator’s decision would be enforceable as a matter of contractual obligation between the parties. If either
party was dissatisfied with the adjudicator’s decision, that party could notify the other of its intention to refer the
matter to arbitration.
When the plaintiff claimed in the High Court for monies allegedly due under the contract, the defendant referred
to the arbitration clause and said that the matter should be settled by arbitration. The plaintiff, relying on the
decision in Shell Zimbabwe (Pvt) Ltd v Zimsa (Pvt) Ltd 2007 (2) ZLR 366 (H), argued that the arbitration clause
in the agreement had not been intended by the parties to be the procedure of first instance in, or the primary
forum for, resolving disputes, because in that contract, arbitration had to be preceded by adjudication and that
arbitration was an appellate process. As such, it was argued, the arbitration clause could not have the effect of
forcing, or persuading the court, to exercise its discretion in favour of referring the matter to arbitration. The
defendant argued that the Shell case had been wrongly decided because the decision had run counter to the
settled legal position and that it had to be confined to its own set of facts. The defendant cited cases which held
that where there is an arbitration clause in a contract, the court has to refer the dispute to arbitration if one or
other of the parties makes such a request.
Held: to sever mediation, as in the Shell case, or adjudication, as here, from arbitration, and treat the processes
as two distinct and stand-alone dispute resolution mechanisms in their own right, could not be correct. While the
arbitration agreement in casu said that the adjudicator’s decision would be enforceable, it was said to be
enforceable “as a matter of contractual obligation between the parties.” In other words, there was a
consciousness by the parties, in selecting that kind of wording, that adjudication was not by itself the end
process, the outcome of which could be enforced through the judicial process, as one would with an arbitral
award. Rather, or adjudication, was merely a means to an end. It was the footpath to arbitration. No party
entered arbitration except through adjudication.
The provision that the adjudicator would settle the dispute “as an independent adjudicator and not as an
arbitrator” meant that the parties were alive to the fact that adjudication, on its own, was not a dispute resolution
mechanism. If it failed, the matter would have to be referred to arbitration. Adjudication could be cheaper,
quicker, simpler, less formal and more expedient in the resolution of less contentious disputes. The parties
obviously wished to give themselves that opportunity. The adjudication provision was like a pre-trial
conference. The adjudicator, like a judge, would act as an umpire. The major aim would be to enable the parties
themselves to settle the dispute, after affording them an equal chance to ventilate their respective sides of the
case. Failing settlement, the adjudication, or mediation, or pre-trial process, would identify and streamline the
real issues for final determination by arbitration or trial. It is only the outcome of the arbitration process, or of
the trial, that is eventually enforceable through the judicial process.
The authorities indicated that it is not uncommon for an arbitration agreement to make some other process, such
as mediation or adjudication, a condition precedent to arbitration.
Arbitration – award – labour matter – registration – procedure to be followed – courses open to party
seeking to register award
ANZ Ltd v Nyarota HH-591-15 (Muremba J) (Judgment delivered 1 July 2015)
The applicant was formerly employed by the respondent. Following his dismissal, he obtained an arbitral award
which was subsequently quantified. He applied in terms of s 98(14) of the Labour Act [Chapter 28:01] to
register the award and did so as a chamber application. The respondent objected, pointing out that both s 98(14)
of the Labour Act and art 35 of the Model Law contained in the Second Schedule to the Arbitration Act
[Chapter 7:15] refer to an application for registration being made to the High Court as opposed to a judge in
chambers.
Held: as this award arose from a labour dispute, the Labour Act applied. Section 98(14) does not say that an
application must be made to register an arbitral award; it says that a party may “submit for registration” the copy
of the award submitted by the arbitrator to the party. To submit something is to present it; and presenting can be
effected in various ways. The word “court” in s 98(14) refers to the institution. The subsection does not stipulate
the procedure to be used; a party seeking registration of an arbitral award in terms of s 98(14) can simply hand
over the award to the registrar of the High Court for registration, or may make either a chamber application to a
judge or a court application. It is entirely up to the party seeking registration to elect the procedure to adopt. In
any event, in terms of r 229(c) of the High Court Rules (which deals with the adoption of incorrect form of
application) the use of an incorrect form of application shall not in itself be a ground for dismissing the
application unless the judge or court considers that an interested party has been prejudiced by the wrong form of
application and that such prejudice cannot be remedied by directions for the service of the application on that
party, with or without an appropriate order for costs. Here, there was no prejudice because the application was
made on notice.
Arbitration – award – registration of – supply of original or certified copy of award – when must be
supplied – award partially sounding in money, with part not quantified – quantified potions not severable
– need for award as a whole to be registered
Matthews v Craster Intl (Pvt) Ltd HH-707-15 (Mafusire J) (Judgment delivered 19 August 2015)|
An application for the registration of an arbitral award is largely an administrative process. Whilst in such an
application the court is not really being called upon to rubber stamp the decision of an arbitrator, nonetheless, it
is largely giving that decision the badge of authority to enable it to be enforceable. If the court is satisfied that
the award is regular on the face of it, and that it is not deficient in any of the ways contemplated by articles 34
and 36 of the First Schedule to the Arbitration Act [Chapter 7:15], then the court will register it.
Article 35 of the First Schedule is clear: a party wishing to register an arbitral award with the High Court does
so through an application. The application procedure is governed by the High Court Rules, which say in Order
32, among other things, that an application must consist of the written document signed by the party; an
affidavit filed together with that application and to which may be attached documents verifying the facts or
averments set out in the affidavit. The Rules say nothing about the nature of the documents to be attached to the
affidavit, i.e. whether or not they should be originals, certified copies or otherwise. Article 35 says an
authenticated original or certified copy of the award is what must be “supplied”. As to when these may be
“supplied” is not specified. It would be sufficient compliance with the law for the applicant to have attached to
his application a copy of the arbitration award that had been filed with the registrar, and to have tendered the
original in court.
Section 98(14) of the Labour Act [Chapter 28:01] and art 35 of the First Schedule to the Arbitration Act are in
pari materia. On the face of it, both provisions facilitate the registration of arbitral awards with the conventional
courts for the purpose of enforcement.
If an award is one that must sound in money and it does not, then it is incapable of registration. It is incomplete.
Here, the parties went for arbitration to determine the nature and quantum of the terminal package due to the
applicant, but they came out of that arbitration with only two-thirds of the award having been quantified. The
arbitral award did not specify the period of leave due to the applicant. It did not specify the number of those
leave days. It did not specify the quantum. It did not state what the respondent’s leave policies were. An order
that an employer must pay his ex-employee cash-in-lieu of the leave due to him and not taken for the period in
question is not complete.
As to whether the quantified portions of the award could be registered, the governing legislation does not
provide for divisibility of awards made elsewhere when they are submitted for registration with the High Court.
To split the award in that manner would amount to transforming the arbitral award of the arbitrator. The
applicant would have to come back to court later for the registration of the rest of the award, if it were
eventually quantified. The arbitration award as a whole was therefore not capable of registration.
Arbitration – award – setting aside of – failure by arbitrator to give adequate reasons for award – not a
ground to set aside award – dissatisfied party should seek court order compelling arbitrator to furnish
reasons
Soft Drinks Mfg Employers’ Assn v Soft Drinks Mfg Workers’ Union & Ors HH-744-15 (Matanda-Moyo J)
(Judgment delivered 23 September 2015)
In an industrial arbitration over wage claims, the two arbitrators made an award which they intended should give
the employees a raise while at the same time not overburdening the employer with increases that could not be
met. The employees’ association applied to have the award set aside on the grounds, inter alia, that the
arbitrators failed to give reasons for their award. It was argued that the arbitrators engaged in a mediation
exercise and did not adjudicate. They did not explain how the figure for the pay rise was arrived at.
Held: article 31(2) of the Model Law requires that an arbitral tribunal shall state the reasons upon which the
award is based, unless the parties have agreed that no reasons are to be given, but does not provide for the
setting aside of an award for inadequate reasons. Where the arbitrator has legal training, the scope of an
arbitrator’s obligation to give reasons is logically the same as that of a judge. Where an arbitrator is chosen due
to his expertise in a particular trade or calling and has no legal training, all that is expected is nothing more than
basic identification of issues and reasoning from the evidence to the facts and the facts to the conclusion.
Reasons of a judicial standard are not required. An award simply requires a statement of factual findings and
other reasons which led the arbitrator to make such finding. Where the award does not comply with art 21(2),
the appropriate remedy is to approach the court for an order to require the arbitrator to give detailed reasons.
Failure to give reasons should not result in a nullification of the process.
Associations – co-operative society – proof of existence – what is required – such proof not required in
order for society to institute legal proceedings – legal proceedings – locus standi to represent members –
must show a direct and substantial interest in outcome of litigation
Tirivepano Housing Co-op v TSL Ltd & Ors HH-756-15 (Dube J) (Judgment delivered 23 September 2015)
The applicant, a co-operative society, brought an application to restore it and its members (who were not named
in the writ) to a piece of land from which the members were evicted following a declaratory order obtained by
the first and second respondents. The order, which was granted in default, declared that the first respondent was
the registered owner of the land. The respondents raised two preliminary points: (a) the applicant, being a cooperative society, should have furnished proof of its registration as such, as well as its articles or constitution;
(b) the applicant had no locus standi, as it had no direct and substantial interest in the right which was the
subject matter of the litigation and in the outcome of the litigation. The respondent also submitted that the
applicant has failed to show that its members resolved that it represented them and brought the application on
their behalf. The applicant could only bring the application in respect of its own direct harm; it could not bring it
on behalf of people not before the court and who had not authorised it to do so.
Held: (1) Section 19 of the Co-operative Societies Act [Chapter 24:05] provides that a cooperative register and
certificate shall be proof of registration. In other words, any party wishing to prove the existence of a cooperative can do so by producing the cooperative’s register and certificate of registration to prove such fact. The
purpose of the section is merely to underline what suffices as proof of registration of a cooperative. The section
does not dictate that proof of registration of a co-operative is a requisite which ought to be met by a co-operative
instituting proceedings in order to establish the co-operative’s status and powers, nor did it preclude
cooperatives who fail to produce a certificate of registration, its constitution or articles of association at the
commencement of proceedings to be precluded from bringing any proceedings. It is not peremptory for every
co-operative bringing litigation to produce proof of registration.
(2) There is no legal requirement for a party instituting proceedings to file proof of authority to bring
proceedings on behalf of another at the commencement of every proceeding. It is only in instances where a
party’s authority has been challenged that it may be required to produce such proof. The respondent did not in
its opposing affidavit challenge the applicant’s authority to bring this application on behalf of its members. Had
it done so, this could have alerted the applicant of the requirement.
(3) The applicant had not filed any proof to support the assertion that that it was mandated by members of its cooperative to bring these proceedings. A litigant can only bring proceedings where it is able to show that it has a
direct and substantial interest in the subject matter and outcome of the proceedings. It is not sufficient simply to
establish a financial interest in the right sought to be addressed. A financial interest amounts to an indirect
interest in the proceedings. Where a party seeks to represent the interest of its members, it is incumbent upon
such litigant to outline in its application, its affairs or business which justify its participation in the proceedings
in order to vindicate the rights of its members. It had not been shown how the issue regarding whether its
members should remain in occupation of the land in issue was of interest to the applicant and it would be
adversely affected by a judgment of the court.
Aviation – Air Zimbabwe Holdings (Pvt) Ltd – successor company to Air Zimbabwe Corporation – a
private company even though shares owned by the Government – employees not in service of the State
S v Chikumba HH-724-15 (Mafusire J) (Judgment delivered 9 September 2015)
See below, under CRIMINAL LAW (Offences under Criminal Law Code – criminal abuse of public office)
Company – judicial management – judicial manager – appointment of – company a banking institution –
Reserve Bank’s powers under Banking Act to move for placement of company under judicial
management – such powers not invalidating earlier appointment of judicial manager in terms of
Companies Act
Company – judicial management – judicial manager – remuneration of – Master’s powers to fix
remuneration – absence of guidelines or tariff – allegation of excessive fee – court’s powers to inquire into
fee
Tetrad Hldgs Ltd v The Master & Ors HH-898-15 (Mafusire J) (Judgment delivered 18 November 2015)
The applicant bank had been placed under provisional judicial management and the second respondent had been
appointed as provisional judicial manager by the High Court. He had submitted two fee notes for the six month
period he had been in office. The fees were for a very large sum of money, which the applicant strongly
objected to, on the grounds that the fee was unjustified, unconscionable and exorbitant. The first fee note had
been paid, having been approved by the Master, who also approved the second fee note. The applicant
essentially sought an interdict to prevent the payment of the second fee note. Among the other points made, the
applicant argued that the second respondent had not been properly appointed, as the appointment was in
contravention of s 57 of the Banking Act [Chapter 24:20] and that only the Deposit Protection Corporation (the
third respondent) could be appointed. The applicant also argued that the Master’s approval of the fee note was in
breach of the High Court (Gees and Allowances) Rules 2011 (SI 12 of 2011).
Held: (1) it is the practice that, in provisional judicial management proceedings under the Companies Act
[Chapter 24:03], the petitioner himself head-hunts for the judicial manager. He gets him vetted by the Master.
He then presents him before the court for endorsement. This is what happened in this case. Section 57 of the
Banking Act did not say that whenever a banking institution is placed under judicial management, or provisional
judicial management, only the DPC shall be appointed as the judicial manager, or provisional judicial manager.
All that the section did was add the Reserve Bank to the list of those persons that may move for the placement
of a company, that is a banking institution, under, inter alia, judicial management or provisional judicial
management, and to say that where the Reserve Bank has done that, its choice of judicial manager or provisional
judicial manager, shall be confined to the DPC. The Reserve Bank is also empowered, by s 57, to oppose the
placement at the instance of anyone else other than itself, of a company that is a banking institution, under
judicial management, or provisional judicial management, notwithstanding the provisions of the Insolvency Act
or the Companies Act.
(2) The Fees Rules had no application to the payment to judicial managers. Such remuneration was fixed by the
Master in terms of s 308 of the Companies Act. However, there is no tariff. The manager is entitled to such
“reasonable” remuneration as is fixed by the Master. In fixing the remuneration for judicial mangers, the Master
has to take into account the manner the judicial manager has performed his functions and the recommendations
by the members or the creditors of the company relating to such remuneration. It was not clear whether such
fixing of the remuneration by the Master should be done on a case by case basis, or in advance by means of a
tariff produced from time to time. With lawyers, both the party and party tariff and the attorney and client scale
are fixed in advance and there is machinery or a process by which to test the reasonableness of any fees charged.
In casu, the Master had not explained how exactly he fixed the fee. The fee should be further interrogated by the
court, so the application would be granted.
Company – judicial management – purpose of – principles – company seeking judicial management in
order to prevent execution against property which had been mortgaged as security for a debt – not an
acceptable ground for placing company under judicial management – application an abuse of court
process
In re Stand Five Four Nought (Pvt) Ltd HH-767-15 (Mathonsi J) (Judgment delivered 30 September 2015)
The applicant company, through one of its directors, sought an order placing it under judicial management. The
reasons for so doing were that the company registered a mortgage bond over its sole immoveable property as
security for a loan extended to an affiliate company, in which the director held a 20 percent shareholding. The
affiliate company had been placed under provisional judicial management through inability to pay its debts,
including the loan in question. When the creditor failed to obtain satisfaction, it turned to the applicant, which
was the surety and co-principal debtor for the debt. The applicant claimed that it would be just and equitable for
it to be placed under provisional judicial management as this would prevent execution against its property and
its inevitable liquidation. The creditor opposed confirmation of the provisional order for judicial management,
which order had been obtained without notice to the creditor. The creditor argued that to grant such relief would
be contrary to all notions of security for a debt and the principles of freedom and sanctity of contract. In
addition, the application constituted an abuse of court process in order to frustrate and/or delay a just claim
while not laying out a proper case for the grant of a judicial management order.
Held: in terms of s 300 of the Companies Act [Chapter 24:03], a provisional judicial management order may be
granted if it appears to the court that (a) by reason of mismanagement or for any other cause the company is
unable to pay its debts or is probably unable to pay its debts and has not become or is prevented from becoming
a successful concern; and (b) there is a reasonable probability that if the company is placed under judicial
management it will be enabled to pay its debts or meet its obligations and become a successful concern; and (c)
it would be just and equitable to do so.
In terms of s 305, the court may grant a final judicial management order if it appears to the court that there is a
reasonable probability that the company concerned, if placed under judicial management, will be enabled to
became a successful concern and that it is just and equitable to grant such an order. Here, the main reasons for
seeking judicial management were to obtain a moratorium to prevent execution against the mortgaged property
of the applicant. This had nothing to do with the acceptable grounds provided for in the Act. It had nothing to do
with enabling the applicant to become a successful concern. It had not even been shown that the applicant was
not a successful concern or that whatever problems it faced were a result of mismanagement to be cured by the
involvement of a judicial manager. All that the applicant relied on was the “just and equitable” provision. The
reality was that the applicant simply did not want to pay a debt which has benefited its shareholders, who
appeared to have taken a loan in the name of one company in which they had beneficial interest, secured it by
virtue of a property of another company in which they had beneficial interest. When the time came to pay, they
did not do so, but rushed to shelter under judicial management both for the principal debtor and the surety. It
was an abuse to use court process for the purpose for which it was never meant. The provisional order would be
discharged.
Company – liquidation – creditor – secured creditor – who is – holder of mortgage bond issued as
security for loan – bond issued by one company as security for loan to another company – both companies
effectively a single economic unit -- intention of parties – bond valid – holder of bond a secured creditor
CBZ Bank Ltd v Ndlovu NO & Anor HB-137-15 (Makonese J) (Judgment delivered 9 July 2015)
The first respondent was the liquidator for two companies, A and L, which had the same shareholders and the
same executive structure. Before both companies were placed under liquidation, the applicant bank advanced
certain sums of money to company A in terms of a banking facility. Under that facility, the company was
required to register a mortgage bond to secure applicant’s exposure. The managing director of A forwarded title
deeds to a stand in Bulawayo, and a mortgage bond was registered, but against company L. The respondent
refused to treat the bank as a secured creditor against A, saying that the loan had not been made to the L and that
the bank should have registered a security bond against A.
The applicant argued that the mortgage bond was valid and that the applicant ought to be regarded as a secured
creditor, at least in relation to L. It argued that the manner in which A and L had been operating and the manner
in which they dealt with the question of security in this matter justified a rejection of the façade of separate
personality. The two companies were in essence a single economic entity.
Held: (1) L handed the title deed for the registration of the mortgage bond in the first instance. There was
nothing to show that L did this erroneously. At all materials times, L was well aware that its property was being
used as security and that monies were indeed advanced to A by the applicant on that understanding.
(2) A mortgage bond evidences a debtor and creditor relationship. The principles applicable in the construction
of a contract also apply to a mortgage bond. In the generation of the mortgage bond in this matter, the parties
were involved in a commercial transaction. Where parties intend to conclude a contract, think they have
concluded a contract, and proceed to act as if the contract were binding and complete, the court ought rather to
try to help the parties towards what they both intended rather than obstruct them by legal subtleties and assist
one of the parties to escape the consequences of all that he has done and all that he has intended. There could be
no doubt that, on this approach, the parties intended the validity of the mortgage bond as providing real security
for the debt.
(3) The natural and intended consequences of the events was the provision of real security by A. L provided its
title deed in full knowledge that a bond would be registered in favour of the applicant for the facilities extended
to A. The fact that the intentions of the parties were probably not adequately set out was irrelevant and the
placing of reliance on the perceived defects bordered on dishonesty. If there was a defect, it would be a defect of
the debtor’s own making.
(4) The clear intention of the parties was that a bond be registered against the title deed. The fact that the
principal obligation had not been properly expressed did not detract from the validity of the bond. The court had
power to order rectification of the bond to indicate its real nature, a security bond. That was what L intended to
achieve. The applicant held real security to the extent that it was a secured creditor.
Company – liquidation – legal proceedings brought by liquidator of company in liquidation – liquidation
occurring after proceedings have been initiated – leave of court required to continue action
Zimbabwe Allied Bank Ltd v Dengu & Anor HH-583-13 (Muremba J) (Judgment delivered 1 July 2015)
The plaintiff bank issued summons against the defendants, who had signed as sureties and co-principal debtors
in respect of a loan advanced by the bank to a company. The proceedings had past the pre-trial conference stage,
but before the matter could be set down for trial the bank was placed in liquidation in terms of a court order. The
court order provided that the liquidator would have the powers set out in s 221(2)(a) to (h) of the Companies Act
[Chapter 24:03]. The bank’s legal practitioners filed a notice of change of status in terms of r 85A of the High
Court Rules, to include the words “in liquidation” after the bank’s name. The matter was set down for trial, but
the defendants’ legal practitioners stated that the matter could not proceed to trial without the liquidator having
obtained the leave of the court. In saying so, they relied on s 213 of the Act. The plaintiff’s legal practitioners
argued that that section only applies to an action brought against a company on liquidation, not to one brought
by such a company.
The defendants also argued that since the liquidator did not obtain the court’s leave to continue with the
proceedings in terms of s 221(2), the plaintiff, which was a company under liquidation, had no locus standi to
litigate. It was also argued that the notice of change of status was invalid, in that r 85A only relates to natural
persons.
The plaintiff argued that in terms of s 221(2) of the Act the liquidator only requires the leave of the court in a
situation where he intends to commence proceedings on behalf of the company. Where proceedings commenced
before placement in liquidation, as happened here, the liquidator does not require the leave of the court to
continue with the proceedings.
Held: (1) s 213 only applies to actions brought against a company in liquidation, not to those brought by the
company. The purpose of seeking leave to proceed against a company in liquidation is to ensure that when a
company goes into liquidation, the assets of the company are administered in a dignified and orderly fashion for
the benefit of all the creditors. No creditor should be able to obtain an advantage over other creditors by
bringing proceedings against the company.
(2) Rule 85A that states that if a party to the proceedings has a change of status, a notice of change of status may
be filed with the Registrar and served on all other parties to the proceedings. Nothing in the rule says that the
rule is only confined to natural persons. At law the definition of a “person” includes both natural and juristic
persons.
(3) The effect of a winding up order is to freeze the company’s affairs in a number of respects and this includes
legal proceedings, attachments and executions (s 213(a) and (b) of the Act). Dispositions of property and share
transfers of the company may only be made with the leave or permission of the court (s 213(c)). The purpose of
seeking the leave of the court is to preserve the assets of the company for the benefit of the creditors. The
powers of the directors cease (s 253). A liquidator is appointed to run the affairs of the company instead. In
terms of s 221, which sets out the powers of the liquidator, there are powers that the liquidator exercises without
further authority. There are some powers that he exercises with the authority of a joint meeting of creditors and
contributories. There are some powers which require him to exercise with the leave of the court. In every case
where a liquidator intends to initiate legal proceedings which have not commenced at all on behalf of the
company, be they of a civil or criminal nature, he cannot do so without seeking the leave of the court.
(4) As to whether leave is required to continue an action that has already started, if he wants to bring any legal
proceedings to court on behalf of the company, be they fresh legal proceedings or proceedings which
commenced before liquidation, he has to seek the leave of the court. When an application for leave to bring an
action is made by the liquidator, the court will exercise its judicial discretion on whether or not to grant it. It will
consider various factors such as the amount and seriousness of the claim; the degree and complexity of the legal
and factual issues involved; the stage to which the proceedings may have progressed; whether the claim has
arguable merit; and whether the proceedings will result in prejudice to the creditors among other factors.
Editor’s note: in terms of s 221(1) of the Companies Act, the liquidator has the power, either –
• with the leave of the court or
with the authority of a resolution of creditors and contributories, duly passed at a joint meeting thereof,
or
• when authorised by the Master in terms of s 218(4)(a)
to bring or defend in the name and on behalf of the company any action or other legal proceeding of a civil
nature.
The Master may also, in terms of the proviso to s 221(2)(a), authorise upon such terms as he thinks fit legal
proceedings for the recovery of any outstanding accounts, the collection of which appears to him to be urgent.
The judgment does not disclose whether the liquidator was authorised in either of those ways. It seems implicit
that he was not so authorised.
•
Constitutional law – Constitution of Zimbabwe 1980 – Declaration of Rights – freedom of expression (s
20(1)) – permissible derogations therefrom – contempt of court – need to protect courts from being
scandalised – law penalising contempt of court reasonably justifiable in a democratic society
Constitutional law – Constitution of Zimbabwe 1980 – Declaration of Rights – prohibition against
discrimination (s 23) – person charged with an offence when another person committing similar act not
charged – not a prohibited form of discrimination
Mutambara v A-G & Anor CC-11-15 (Gwaunza JCC, Chidyausiku CJ, Malaba DCJ, Ziyambi, Garwe, Gora,
Hlatshwayo & Guvava JJCC & Mavangira AJCC concurring) (Judgment delivered 18 November 2015)
In 2008, the applicant, who was then involved in the country’s politics and was a leader of an opposition party,
wrote and caused to be published in an independent weekly newspaper an article entitled “A shameful betrayal
of national independence.” The article was alleged to be contemptuous of the High Court of Zimbabwe and thus
a contravention of s 182(1)(a) of the Criminal Law Code [Chapter 9:23]. The offending words in the article
were:
“In terms of the House of Assembly (sic), the agenda is to seize at least nine seats from the opposition
through recounts and court action leading to re-runs. This explains the 23 recounts ZEC had instituted. There
is clearly criminal collusion between ZEC and ZANU PF. To add insult to injury, this unlikely marriage is
dutifully consummated by a compliant and pliable judiciary typified and exemplified by Judge Tendai
Uchena’s unreasonable and thoughtless decision not to order ZEC to release the Presidential results.”
He contended that his arrest on the charge resulted in the infringement of s 20(1) (freedom of expression), s
21(1) (freedom of association) and s 23 (freedom from discrimination) of the 1980 Constitution. He accordingly
sought a permanent stay of proceedings, alternatively or additionally that s 182(1) of the Code be declared null
and void. He submitted that the purpose of safeguarding freedom of expression was the fact that it lies at the
very foundation of a democratic society and that, consequently, it is a right that is jealously guarded by the
courts. He contended that the statement was one of a political nature, and therefore fell into the category of
political speech which is ordinarily afforded highest protection against interference or restriction under the
constitutional freedom of expression provisions. Since the comment was directed at the decision of the court,
which had some political significance, any reference to the judiciary bordered on the incidental and therefore
could not have been serious. Criticism of public authority including the judiciary is a valuable element of the
freedom of expression because the ability to criticise the courts promotes impartiality, accessibility and
effectiveness, serves as a democratic check on the judiciary and promotes peace and stability. Genuine, albeit
rigorous, criticism of the judiciary is acceptable, as long as it stays within the limits of reasonable courtesy and
good faith. His comment was also debate on the proper role of the judiciary, that is, whether it is best to have an
activist or a deferential judiciary. Nothing in the facts suggested that there was any impairment of the dignity,
reputation or authority of the court.
He also argued that because he had been charged under s 182(1), but the incumbent presidential candidate had in
an earlier made similar comments but had not been charged, he was being unlawfully discriminated against.
Held: (1) there was no dispute as to the content and purpose of the right to the freedom of expression that was
enshrined in the old Constitution, nor was it disputed that such right was not absolute. The offence of contempt
of court exists for purposes of protecting the administration of justice and is thus a permissible derogation from
the freedom of expression. There is a rational connection between the restriction on the exercise of the right to
freedom of expression and the objective pursued. The offence provided for in s 182(1) of the Code was
reasonably justifiable in a democratic society. There was a need to protect the courts from being scandalised.
The first part of the applicant’s statement had political overtones, but he did not stop there. He went on to draw
the judiciary generally, and the High Court in particular, into the perceived conspiracy between ZANU (PF) and
the ZEC. Using language that fell outside the limits of reasonable courtesy and good faith, he charged that the
judiciary – accused by him of being compliant and pliable – would dutifully consummate the unlikely marriage
between ZANU (PF) and ZEC. While the part of the applicant’s statement that cast aspersions on ZEC’s
recounting of the votes and the alleged ZANU (PF) agenda could fall within the ambit of a political statement,
the same could not be said of the part that denigrated the judiciary and the High Court. His words not only
imputed improper and corrupt motives or conduct on those taking part in the administration of justice, but also
excited misgivings as to the integrity, propriety and impartiality brought to the exercise of judicial office; indeed
they created a real or substantial risk of impairing public confidence in the administration of justice. The
statement fell within the ambit of “acts” contemplated by s 182(1). He had not discharged the onus of showing
that the provision went further than was reasonably justifiable in a democratic society.
(2) One cannot hope to escape arrest for committing a crime, on the basis that such arrest would violate one’s
constitutionally guaranteed right to protection against discrimination, simply because another person who may
have committed the same crime was not similarly arrested. While one was entitled to the fundamental rights and
freedoms guaranteed under the Constitution, such entitlement did not absolve one of the duty to respect and
abide by the law. It was because of his perceived breach of the law that the applicant was arrested and charged.
He would escape the consequences of his conduct only if a court absolved him of all guilt, and not because of
any notion of discrimination arising out of the fact that another person who might have engaged in similar
conduct was not likewise charged with the same offence. Clearly, this would not be a defence to the charge,
since every person must face the consequences of his or her own actions. In any event, the other person
mentioned was the incumbent president, who under s 30(1) of the Constitution was immune from prosecution.
Constitutional law – Constitution of Zimbabwe 1980 – Declaration of Rights – s 24(2) – application for
matter to be referred by lower court to Supreme Court – requirement by applicant in criminal matter to
give notice to prosecutor – need for applicant to give evidence in support of application – duty of lower
court to consider whether a constitutional issue has been raised and whether application is frivolous or
vexatious
S v Mwonzora & Ors CC-9-15 (Garwe JCC, Chidyausiku CJ, Malaba DCJ, Ziyambi, Gwaunza, Gowora,
Hlatshwayo, Mavangira & Guvava JJCC concurring) (Order given 11 June 2014; reasons made available 15
October 2015)
The applicants had been charged in the magistrates court with public violence. A number of complaints were
raised by them about the manner of their arrest and subsequent treatment. The matter was postponed on a
number of occasions to enable the court to deal with the matters raised. The applicants then, without giving
notice to the prosecution, applied to the magistrate for the matter to be referred to the Supreme Court in terms of
s 24(2) of the 1980 Constitution, which was then still in force. They tendered a written application in which they
chronicled various violations of their constitutional rights at the instance of the State and other persons. No
evidence was led in support of these allegations. Although the prosecutor opposed the application, the
magistrate held that the issues raised deserved the attention of the Supreme Court, which court, he said, would
need to make a proper enquiry.
Held: the matter was not properly before the Supreme Court. A judicial officer faced with an application for
referral has no option but to refer, unless, in his opinion, the raising of the question is frivolous and vexatious.
The magistrate did not, as he should have, ask himself whether the issues raised were not frivolous and
vexatious; he made no finding that the application was not frivolous or vexatious.
Before permitting an accused person to raise the question whether his constitutional rights have been violated, it
is a requirement that ample written notice of such an application should be given to the State. The prosecution is
entitled to be afforded the time and opportunity to investigate the complaint and to be ready to adduce evidence,
if necessary.
It is insufficient to make a statement from the bar. The applicants should have been called to testify under oath
in order to substantiate their complaints that their rights had been violated. Had that happened, the prosecutor
would then have had the opportunity to cross-examine the applicants and, thereafter, to adduce such evidence as
he may have considered necessary to contradict the allegations made by the applicants. Only after hearing
evidence from both sides would the magistrate have been in a position to make findings of fact, which findings
he would have been bound to take into account in deciding whether or not to refer the issues raised to the
Supreme Court. It is the responsibility of the court referring a matter to resolve any disputes of fact before
making such a referral. The absence of oral evidence can be fatal to an application of this nature because it
completely disables findings to be made on the complaints raised. It is on the basis of those findings that the
Supreme Court is called upon to deal with the allegations raised and, where necessary, afford appropriate relief.
Constitutional law – Constitution of Zimbabwe 2013 – Constitutional Court – appeal to – from decision of
Supreme Court – when party has right of appeal to Constitutional Court against such decision – need for
Supreme Court to have made decision on constitutional matter
Nyamande & Anor v Zuva Petroleum (Pvt) Ltd (2) CC-8-15 (Ziyambi JCC) (Judgment delivered 1 August
2015)
The applicants sought leave to set down an appeal from the Supreme Court on an urgent basis. It was argued
that they had such a right of appeal, in view of the wording of s 167(5)(b) as read with s 169(1) of the
Constitution. The applicants submitted that s 167(5)(b) granted a right of appeal in a case where the alleged
violation, by the Supreme Court, of the applicants’ constitutional right only became apparent after the judgment
was handed down. They argued that it was not necessary to have requested the Supreme Court to refer the
matter to the Constitutional Court in terms of s 175(4).
The respondent argued that an appeal invites a superior court to determine the correctness of the lower court’s
decision on issues which were placed before it. There were no constitutional issues placed before the Supreme
Court for determination, or determined by the Supreme Court. There could, therefore, be no right of appeal since
no decision was made by that court on constitutional matters. The proper recourse available to the applicants
was to bring an application in terms of s 85 of the Constitution if it was felt that a breach of their fundamental
rights had occurred.
Held: the applicants had not established any right to approach the Constitutional Court by way of appeal.
Section 167(5) relates to rules of procedure regulating the manner of approach to the Constitutional Court on
appeal from lower courts. It does not confer a right to appeal on a litigant who has no right of appeal. For this
right, the litigant must look elsewhere in the Constitution. Such a right may be read into s 175(3), which applies
where an order of constitutional invalidity of any law has been made by a court. Failing that, a right of appeal
could only arise where the Supreme Court makes a decision on a constitutional matter.
Constitutional law – Constitution of Zimbabwe 2013 – Constitutional Court – reference of cases to – ways
in which matters may be brought before Constitutional Court – appeal from lower court – only
permissible where lower court has ruled on a constitutional issue – direct application in terms of s 85(1) –
may only be made in respect of alleged breach of Declaration of Rights
Prosecutor-General v Telecel Zimbabwe (Pvt) Ltd CC-10-15 (Gwaunza JCC, Chidyausiku CJ, Malaba DCJ,
Gowora, Mavangira & Guvava JJCC, Chiweshe, Makoni & Bhunnu AJJCC concurring) (Judgment delivered 8
October 2015)
The applicant had been ordered by the Supreme Court to issue a certificate of nolle prosequi to the respondent in
terms of s 16 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The applicant had argued before the
Supreme Court that he had a discretion as to whether or not to do so. He did not raise with the Supreme Court
the issue of whether the requirement to issue a certificate interfered with the independence of his office, as
guaranteed by s 260 of the Constitution*. Dissatisfied with the Supreme Court’s decision, he purported to bring
the matter before the Constitutional Court on the issue of whether the requirement to issue the certificate
interfered with the independence of his office. His application was purportedly in terms of s 167(1)(a) as read
with s 176 of the Constitution. At the hearing, the applicant’s counsel conceded that he had no basis for bringing
the matter before the court, and sought to withdraw the application. The respondent sought an order for costs on
the higher scale.
Held: (1) All that s 167(1) does is state that the Constitutional Court is the highest (and final) court in all
constitutional matters, and that it decides such matters only. The reference in the subsection to “all constitutional
matters” refers to matters properly brought before the Constitutional Court in accordance with the Constitution.
The subsection does not elaborate as to how or on what conditions a party may approach the court for it to
exercise the jurisdiction conferred upon it by that provision. These details are to be found in other provisions of
the constitution. Apart from references and applications under s 131(8)(b) and para 9(2) of the Fifth Schedule
(which were not applicable here), the subsection does not confer on anyone the right to approach the
Constitutional Court directly, even if they have, or perceive themselves to have, a constitutional matter needing
the court’s determination. Section 167(1) must be read in conjunction with the various provisions that do confer
a right to approach the constitutional court directly or indirectly through another process. Section 176 is not one
of such provisions.
(2) Direct applications to the Constitutional Court are to be made only in terms of the provisions referred to
above, as well as in terms of and as provided for in s 85(1). The relief sought and to be granted by the court in
terms of s 85(1) must relate to fundamental rights and freedoms enshrined in the relevant Chapter, and nothing
else. Such relief may include a declaration of the rights said to have been or about to be violated. The applicant
did not allege that the right he alleges was violated by the Supreme Court was an enshrined fundamental right.
(3) Section 176 gives the Constitutional Court inherent powers inherent power to protect and regulate its own
process and to develop the common law or the customary law, taking into account the interests of justice and the
provisions of the Constitution, but does not vest the court with the power to arrogate to itself jurisdictional
authority that reaches outside and beyond the limits imposed in the Constitution.
(4) The present application was neither a referral by the Supreme Court in terms of s 175(4), nor an appeal, as
no constitutional issue was raised or determined in the Supreme Court. This matter was really an appeal brought
under the guise of an application.
(5) The application was indeed not brought properly before the court, and further, it purported to be an
application when in reality it was meant to be an appeal against a final order of the Supreme Court. The
applicant engaged counsel and must have instructed him on the nature of the application to place before the
court. The respondent was put to the unnecessary cost of preparing opposing papers to the application, and
appearing before the court for the hearing. In the light of this, an order of costs on the higher scale was justified.
*See Telecel Zimbabwe (Pvt) Ltd v A-G S-1-14 (reported in 2014 (1) ZLR 47 (S)) – Editor.
Constitutional law – Constitution of Zimbabwe 2013 – Constitutional Court – reference of matter to –
constitutional question arising in lower court – question may only be referred to Constitutional Court by
lower court – grounds on which lower court may refuse to refer question – not open to party to bring
matter directly to Constitutional Court except in limited circumstances
Chihava & Anor v Mapfumo NO & Anor CC-6-15 (Gwaunza JCC, Chidyausiku CJ, Malaba DCJ, Ziyambi,
Garwe, Gowora, Hlatshwayo & Guvava JJCC & Chiweshe AJCC concurring) (Judgment delivered 15 July
2015)
The applicants were the subject of criminal proceedings in the magistrates court. They complained that certain
of their rights under s 70(1) of the Constitution (which sets out the rights of accused persons) had been breached
and sought an order that the proceedings be quashed and a trial de novo ordered. The matter was placed before
the Constitutional Court directly, the applicants taking advantage of a postponement, granted by consent in the
magistrates court, to do so. The respondents took the point in limine that the applicants were not properly before
the court, and that they should have approached the court through a referral of the matter to it by the lower court
in terms of s 175(4) of the Constitution. The applicants argued that under s 85(1) any person acting in his own
interest is entitled to approach “a court” alleging that a fundamental right enshrined in the Constitution had been
breached. The Constitutional Court being “a court”, there was no restriction on approaching that court directly.
Under s 24(1) of the old Constitution, a person alleging a breach of his constitutional rights could approach the
Supreme Court directly for redress. However, under s 24(2) and (3), if a constitutional issue arose in a lower
court, it had to be referred to the Supreme Court by the lower court, and not directly. The only grounds on which
the lower court could refuse to refer the matter was if it considered the raising of the constitutional question to
be frivolous and vexatious. While a litigant could approach the Supreme Court directly if the lower court denied
the application on other grounds, initially an application for referral had to be made to the lower court. Section
175(4) of the present Constitution is an exact replica of s 24(2) of the old Constitution, but there is no equivalent
in the present Constitution to s 24(1) or 24(3) of the old Constitution.
Held: (1) it was possible to interpret the new Constitution as evincing an intention by the legislature to remove
any bar that an applicant under s 24(1) might have confronted, arising from the fact that the issue arose in
proceedings in a lower court, and that the options for redress that were open to an applicant envisaged in the old
ss 24(2) (now s 175 (4)) and 24(3) had been widened. Whether this was correct could only answered on a proper
consideration of relevant rules governing the interpretation of statutes generally and of the constitution in
particular. In this respect, it is pertinent to note that a constitution is itself a statute of Parliament. Therefore, any
rules of interpretation that are regarded as having particular relevance in relation to constitutional interpretation,
can only be additional to the general rules governing the interpretation of statutes.
(2) The general rules could be summarized thus: (a) the legislature is presumed not to intend an absurdity,
ambiguity or repugnancy to arise out of the grammatical and ordinary meaning of the words that it uses in an
enactment; (b) therefore, in order to ascertain the true purpose and intent of the legislature, regard is to be had,
not only to the literal meaning of the words, but also to their practical effect. (c) In this respect, (i) the words in
question must be capable of an interpretation that is “consistent” with the rest of the instrument in which the
words appear; (ii) the state of the law in place before the enactment in question is a useful aid in ascertaining the
legislative purpose and intention, and (iii) where an earlier and a later enactment (or provision) deal with the
same subject matter, then, in the case of uncertainty, the two should be interpreted in such a way that there is
mutual consistency. In addition, in interpreting the rights provisions in a constitution, the interpreter should
follow the submitted triple synthesis of literalism, intentionalism and purposiveness principle, as is done in the
interpretation of any other statute. The court should give a generous and purposive construction to the
constitution’s provisions, particularly the entrenched fundamental rights and freedoms. In this process, the
purpose of the provision in question is to be given particular attention.
(3) Applying these principles to the present situation, there was no gainsaying the fact that a literal and
grammatical meaning ascribed to s 85(1) would be inconsistent with s 175(4). Such meaning would give room
to litigants in proceedings under way in a lower court to abandon such proceedings midstream and without any
ceremony, in order to approach the Constitutional Court directly in terms of that section. Such a meaning would
thus introduce an absurdity and possible chaos to a process that, in terms of the more expansive s 24 of the old
Constitution, was free of such anomalies. The purpose of the old s 24 was to inject order and certainty into the
process by which constitutional issues arising during proceedings before the lower courts were referred to the
Supreme Court: “order” in the sense that the lower court had the opportunity to call and hear evidence on, and
consider, the issue so as to determine whether or not it was frivolous or vexatious. Only if it was not did the
court refer the issue to the Supreme Court. Through this process, the Supreme Court was shielded from a
situation where frivolous and undeserving cases might have been directly brought to it. The effect of the referral
would be a formal deferment of the proceedings in the lower court, pending determination of the constitutional
issues referred to it. More importantly, the risk of parallel proceedings being pursued in the constitutional and
the lower courts, on different aspects of the same case but based on the same facts, was obviated.
(4) The present case was an example of the absurdity that could arise through a literal construction of s 85(1).
There was nothing to show that the lower court was made aware of the approach to the Constitutional Court.
Evidence should have been led in the lower court to enable the magistrate to determine whether to refer the
matter, evidence that might enable the Constitutional Court to properly determine the matter. There could be no
doubt that the certainty and order referred to above would be completely eroded were the courts to operate on
the basis of a literal and grammatical interpretation of s 85(1). This circumstance is not only highly undesirable,
but it would also constitute an affront to the time honoured common law principle that a superior court should
be slow to intervene in ongoing proceedings in an inferior court, except in exceptional circumstances. It was not
the intention of the legislature to oust a procedural regime that ensured order and certainty in the administration
of justice in the courts, and to introduce, in its place, one that would result in absurdity, disorder and ambiguity.
Clearly, the anomalies that would flow from a literal meaning of s 85(1) (a) could not have been intended by the
legislature.
Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – enforcement of rights –
may be subject to time limitations
Ngoni v Min of Home Affairs & Ors HH-658-15 (Tsanga J) (Judgment delivered 29 July 2015)
See below, under POLICE (Actions against).
Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – right to equal protection of
the law (s 56) – right to fair, speedy and public hearing (s 69(2)) – right to fair trial (s 86(3)(e)) – such
rights not breached by provisional sentence procedure
Constitutional law – Constitution of Zimbabwe 2013 – determination of constitutional issue – High Court
having right to determine any constitutional issue other than those reserved for determination by
Constitutional Court – no requirement for High Court to consider whether raising of issue is frivolous or
vexatious – entitled to determine matter on merits
Tetrad Invstm Bank Ltd v Largedata Entprs (Pvt) Ltd HH-730-15 (Chigumba J) (Judgment delivered 17
September 2015)
The High Court has its own constitutional jurisdiction, which it exercises subject to confirmation by the
Constitutional Court of any declaration of constitutional invalidity of an Act of Parliament. Litigants should be
cognizant of the fact that the High Court has its own jurisdiction to declare a statutory provision to be ultra vires
the Constitution. It is not every case of alleged constitutional invalidity of a statute which must be referred to the
Constitutional Court for determination. Section 167(2) of the Constitution sets out clearly those issues that only
the Constitutional Court has exclusive jurisdiction over.
It is not necessary for the High Court to consider whether a constitutional question that has arisen before it is
frivolous or vexatious before dealing with the question on its merits. It is only in contemplation of referral of a
constitutional matter to the Constitutional Court that it becomes mandatory that there be a consideration, by the
court in which the question will have arisen, of the frivolity or vexatiousness of the question that will have
arisen.
The parties in this case agreed to the matter being disposed of as a stated case, the issue being whether the
provisional sentence procedure provided for in Order 4 of the High Court Rules 1971 breached the defendant’s
right under s 69(2) of the Constitution to a fair, speedy and public hearing within a reasonable time before an
independent and impartial court, tribunal or other forum established by law, as well as the right under s 86(3)(e)
to a fair trial.
Held: provisional sentence is a special procedure which is designed to give a plaintiff with a liquid document
and prima facie proof of its claim a speedy judgment without the expense and delay that an ordinary trial action
entails. The essence of the procedure is that it provides a creditor, who is armed with sufficient documentary
proof, with a quick remedy for the recovery of money due to him without resorting to the expensive,
cumbersome and often dilatory machinery of an illiquid action. The key elements of this constitutional provision
are that one must be afforded a hearing, which is fair, and quick. Rule 21 provides that a debtor be allowed to
appear on the set down date in order to acknowledge or deny the signature to the liquid document or the validity
of the claim. Rule 25(1) provides that a defendant may file a notice of opposition together with supporting
affidavits, prior to the date of the hearing. On the date of the hearing, the plaintiff bears the onus, which must be
discharged on a balance of probabilities, to prove that an authentic liquid document exists. The defendant bears
the onus of convincing the court that the balance of probabilities does not support the plaintiff’s claim. This is
the very cornerstone of the constitutionally guaranteed right to a fair hearing, with the emphasis being on
fairness, which implies a strict adherence to the audi alterem partem rule, the right to be heard. The defendant
has two opportunities to be heard in terms of the provisional sentence procedure: (a) on the date of the hearing
of the application for provisional sentence, where it may appear in person to confirm or deny its signature on the
liquid document; and (b) he may enter appearance to defend within one month after any attachment pursuant to
a writ issued as a result of provisional sentence, or, where there is no attachment, within one month of having
satisfied the judgment.
Order 4 of the Rules provides the debtor with the right to file opposing papers, the right to appear in court even
without having filed papers, the right to file heads of argument and the right to argue the matter. The defendant’s
right to a fair trial within a reasonable time is not abrogated by the summary nature of provisional sentence
because there is a right to enter appearance to defend and to have the matter determined on the merits. The
reasonableness of the time is related to the nature of the issues to be determined. If a litigant owes and has no
defence it would contravene the rights of the plaintiff to go through a protracted trial process which may be
concluded after a lengthy period. The provisional sentence procedure also allows the defendant the right to insist
that the plaintiff give security de restituendo, against payment by the defendant.
The respondent’s contention that the provisional sentence procedure also violates s 56(1) of the Constitution (the
right to equal protection of the law) was entirely devoid of merit, for some of the reasons already stated in
relation to the right to a fair trial. The law protects both debtors and creditors, as it should, because that is the
essence of equality before the law.
Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – right to equal protection of
the law (s 56(1)) – right to fair trial within reasonable time (s 69(1)) – accused person charged with
multiple offences, including murder – State proceeding against accused on lesser charges before indicting
him on murder charge – State having valid reasons for proceedings as it did – accused always aware that
he faced murder charge – rights not breached – no entitlement to stay of prosecution on grounds of abuse
of process
S v Mashayamombe HH-596-15 (Zhou J) (Judgment delivered 2 July 2015)
The applicant had been placed on remand on charges of escaping from lawful custody, unlawful entry, theft of a
motor vehicle, rape and murder. He had been in custody, from which he escaped. He gained unlawful entry into
the premises of the deceased. He raped the deceased, and then, it was alleged, murdered her. After murdering
the deceased, the accused stole the deceased’s motor vehicle which he drove from the deceased’s premises.
He was tried before a provincial magistrate on the first two charges; he pleaded guilty and was sentenced to a
term of imprisonment. Two months later he was tried before a regional magistrate on the charges of theft of a
motor vehicle and rape. Again, he pleaded guilty and was sentenced to lengthy periods of imprisonment.
He was then indicted for trial before the High Court on the murder charge. His counsel applied for a permanent
stay of proceedings on the grounds that the manner in which the charges against him were instituted contravened
his rights as enshrined in s 56(1) and s 69(1) of the Constitution of Zimbabwe 2013. These provisions
respectively give the right to equal protection and benefit of the law and the right to a fair and public trial within
a reasonable time before an independent and impartial court. It was argued that that a single transaction
underpinned all the charges, yet the State started by prosecuting him on the least serious of the charges, and had
now indicted him for the most serious of them, murder. That approach was immoral and calculated to, and did,
prejudice the applicant and so rendered the proceedings before the High Court unfair.
Held: (1) a stay of criminal proceedings could be granted where there is an unreasonable delay in the
prosecution of a matter or where, in the circumstances of a case, it is not possible for an accused to be
guaranteed a fair trial by reason of some other factors, such as abuse of criminal procedure, where criminal
proceedings are instituted to achieve a purpose other than that which they are by law designed to achieve. An
abuse of process application should only be granted on an exceptional basis. It is a measure of last resort, to be
adopted where all other possible measures have been exhausted. The abuse of process doctrine is ordinarily
concerned with serious prosecutorial misconduct or with serious breaches of the rights of an accused by state
authorities. It is undesirable to join in the same indictment a murder count and other offences, except where it is
convenient because the facts arise out of one course of conduct. In this instant case the facts did not arise out of
one course of conduct. While the offences were committed by one person, each offence was distinct with its
own elements separate from the others.
(2) The equality provision enshrined in s 56(1) should be given broad, substantive content in order to ensure that
substantive rather than merely formal equality is realised. To that end, equality before the law should entail
entitling everyone to equal treatment by courts of law or equality in the legal process. The section protects
against arbitrary and irrational State action. The impact of the State action must be considered in the assessment
of whether the equality provision was contravened, but if the State has a defensible purpose, together with
reasons for its actions that bear some relationship to the stated purpose, then the action cannot be irrational.
(3) As regards the right to a fair trial protected in s 69(1), the fairness of the trial must be judged by reference to
the specific instances of fairness given in s 70(1) to (5), as well as other notions of fairness and justice which are
not necessarily listed in that section. Those other notions of fairness and justice must reflect the normative value
system upon which our constitutional order is founded. In this case the accused was aware from his initial
remand that he was facing allegations of murder in addition to the other offences which he has been convicted
of. It is not as if he was misled into thinking that the murder allegations would not be proceeded with once the
other charges had been completed. It would be a subversion of justice for him to escape prosecution on the basis
that he had already been convicted of lesser charges. The offences were totally different from each other and did
not arise from one “transaction”. There was no duplication of charges.
Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – right to fair trial (s 69(1)) –
criminal trial – trial judge descending into arena – extent to which he did so violating accused’s right to
fair trial
S v Konson CC-7-15 (Gowora JCC, Chidyausiku CJ, Malaba DCJ, Gwaunza JCC, Garwe JCC, Hlatswayo JCC,
Patel JCC, Guvava JCC & Mavangira AJCC concurring) (Judgment delivered 22 July 2015)
The applicant was convicted of murder in the High court and sentenced to death. In his appeal before the
Supreme Court, the applicant alleged that the High Court had violated his right to a fair trial, as guaranteed
under s 69(1) of the Constitution, by the extent to which the trial judge had descended into the arena. It was
alleged that the record of proceedings showed that the court was not impartial. It is argued the questioning of
the applicant by the trial judge was such that, because of its frequency, length, timing, form, tone, content, it
was apparent that the trial judge was hostile to the applicant. The trial judge asked more questions of the
applicant during cross-examination and re-examination than did the prosecutor.
Held: The object of a criminal trial is for the truth surrounding the commission of the offence to be established.
The role of the judge is therefore an onerous one, as his task is to see that justice is not only done, but that it is
seen to be done. In this exercise he should conduct himself in such a manner that he is not viewed or perceived
to have aligned himself with either the prosecution or the defence. He is not precluded from questioning the
witnesses or the accused person but such questioning must not be framed in such a manner as to convey an
impression that he is conducting a case on behalf of one of the parties. The judge must avoid questions that are
clearly biased and show a predisposition on the part of the judge. The judge should neither lead nor crossexamine a witness. He should so conduct the trial that his open-mindedness, his impartiality and his fairness are
manifest to all those who are concerned in the trial and its outcome, especially the accused.
In this case, the inescapable conclusion that emerged from the record is that the judge descended into the arena
and as a consequence he deprived himself of the detached impartiality required of a judicial officer. The fairness
of the trial was clearly undermined. He had prejudged the issues of the trial that was before him. In view of the
stance assumed by the trial judge, the defence proffered on behalf of the applicant was not properly evaluated
thus further undermining the trial. His right to a fair hearing was clearly violated. The proceedings would be set
aside and a trial de novo before another judge would be ordered.
Editor’s note: at the re-trial, the applicant was convicted and sentenced to 25 years’ imprisonment. See S v
Konson HB-18-16.
Constitutional law – Constitution of Zimbabwe 2013 – Declaration of rights – rights of accused persons –
right of appeal against conviction (s 70(5)) – allows police officer to appeal from ruling of CommissionerGeneral to the High Court
Sadengu v Board President & Anor HH-712-15 (Dube J) (judgment delivered 26 August 2015)
See below, under POLICE (Discipline – trial of member by single officer).
Constitutional law – Constitution of Zimbabwe 2013 – Declaration of rights – rights of accused persons –
right of appeal against conviction (s 70(5)) – does not confer right of appeal where an Act of Parliament
does not provide for it
Tamanikwa v Board President & Anor HH-676-15 (Mathonsi J) (Judgment delivered 5 August 2015)
See below, under POLICE (Discipline – trial of member by single officer).
Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – right to privacy (s 57) –
subpoena requiring party to produce documents necessary for determination of tax appeal by business
rival of party – appellant’s rights to access to information (s 62) and to fair trial (s 69) overriding party’s
rights to privacy
NOC (Pvt) Ltd & Anor v EW (Pvt) Ltd & Anor HH-899-15 (Kudya J) (Judgment delivered 19 November 2015)
See below, under PRACTICE AND PROCEDURE (Subpoena duces tecum).
Constitutional law -- interpretation of Constitution – general rules relating to interpretation of statutes
applicable – additional considerations in interpreting rights provisions in Constitution
Chihava & Anor v Mapfumo NO & Anor CC-6-15 (Gwaunza JCC, Chidyausiku CJ, Malaba DCJ, Ziyambi,
Garwe, Gowora, Hlatshwayo & Guvava JJCC & Chiweshe AJCC concurring) (Judgment delivered 15 July
2015)
See above, under CONSTITUTIONAL LAW (Constitution of Zimbabwe 2013 – Constitutional Court).
Contract – formation – contract between administrative body and citizen – administrative body
exercising administrative powers – relationship between parties governed by administrative law
principles
Guild v Min of Lands & Ors HH-891-15 (Dube J) (Judgment delivered 18 November 2015)
See above, under ADMINISTRATIVE LAW (Review – grounds for).
Contract – formation – quasi-mutual consent – what must be shown – failure by one party to respond to
proposal by other to alter terms of existing suretyship agreement – not an indication of assent to proposal
KHM Société Anonyme v G Mobile (Pvt) Ltd & Ors HH-785-15 HH-785-16 (Mathonsi J) (Judgment delivered 7
October 2016)
The third defendant entered into a deed of suretyship in respect of a loan granted by the plaintiff to the first
defendant. He was at the time a director and shareholder of the first defendant though later he resigned as
director and relinquished his shareholding. Another director was appointed in his place. In the deed, he
renounced all the usual benefits and exceptions and specifically agreed that he could only be released by a
written release signed by the plaintiff. When the first defendant failed to service the loan, the defendants were
sued. A deed of settlement was reached between the plaintiff and the first and second defendants, which reduced
the debt slightly, but the first and second defendants thereafter defaulted and action was brought against the
third defendant. He claimed that the plaintiff did not have a cause of action against him because he had signed
the deed of suretyship in his capacity as a director of the first defendant. He had since retired from that position,
as a result of which the suretyship had expired. He also submitted further that, upon retiring, he had made a
proposal to the plaintiff that the person who was taking over directorship from him be substituted as surety in
his place. A notice to that effect was given to the plaintiff, which was asked in correspondence to sign a deed of
cancellation. The plaintiff did not respond to such correspondence. By its silence, the third defendant argued, the
plaintiff acquiesced to the release of the third defendant as surety. It was argued that this was a case of quasimutual assent.
Held: reliance on that doctrine was misplaced. Quasi-mutual assent would not set in simply because the parties
did not enter into a new agreement. A creditor holding on to the security of a suretyship does not lose that
security merely because the surety, in a bid to be released, sends a proposal, complete with a deed of
cancellation of the suretyship demanding his release and the substitution of a third party not approved by the
creditor, which the creditor does not respond to. The liability of the third defendant as surety and co-principal
debtor was premised, not on his position as director of the first defendant, but upon the deed of suretyship that
he signed. It was that written document which became the true memorial of the relationship between the parties
and not some other issues, imagined or real, not recorded therein.
Contract – breach – remedies – specific performance – discretion vesting in court – compliance with
order for specific performance not possible – such order should not be issued
Contract – validity – agreement to contract in the future – not enforceable – cannot be treated as
substantive contract – contract in breach of statutory provision – such contract void
Hativagone & Anor v CAG Farms (Pvt) Ltd & Anor S-42-15 (Gowora JA, Garwe & Patel JJA concurring)
(Judgment delivered 16 July 2015)
The appellants were owners of a farm. The first respondent had made a written “final offer” to the appellants for
the acquisition of the farm. The appellants accepted the offer and the parties then drew up an “irrevocable
memorandum of understanding” (MOU) in relation to the farm. The MOU specifically provided that its purpose
was to set out the basis upon which the transaction should be concluded and to set out the rights and obligations
upon each party leading to the signing of a sale agreement between the parties.
In view of the statutory legal requirement attendant upon the sale of rural land, the appellants immediately made
an application to the Ministry of Lands for the issuance of a “certificate of no present interest”. The application
was acknowledged and the certificate was issued some time in the same month. In the meantime, in anticipation
of the issuance of the certificate, the respondent had prepared a written agreement of sale. However, the
agreement was not signed due to alleged unwillingness to co-operate on the part of the appellants. A few months
later, the respondent became aware that the farm was being advertised for sale as subdivided plots. Being of the
view that a valid sale agreement had been concluded between itself and the appellants, it approached the High
Court seeking an order declaring that a valid agreement of sale of the farm had been concluded between the
parties and, consequent thereto, an order for specific performance of the sale agreement in its favour. The court
a quo found that an agreement of sale had been entered into and it ordered specific performance in favour of the
respondent.
The appellant argued that (a) the respondent was not entitled to an order for specific performance because the
property had already been subdivided by the time the matter came to court and because there was no valid and
binding agreement between the parties; (b) the MOU did not constitute a valid and binding agreement; (c) the
offer and acceptance and the MOU were both void ab initio having been entered into before the issue of a
certificate of no interest by the Ministry; and (d) the dies induciae of the offer and acceptance and the MOU had
lapsed before the parties could sign, so there was no valid and binding agreement between them.
Held: (1) there were two contracts envisaged after the offer for the purchase of the farm was accepted. The first
was the MOU itself, which would lay the basis for the conclusion of the agreement of sale of the land, the
second was the contract of sale itself. The MOU was a vehicle through which the agreement of sale would be
concluded. The MOU specifically provided that a contract would be concluded upon the obtaining of a
certificate of no present interest. The sale agreement was to be effected at a later date, subject to the terms and
conditions set out in the MOU and, subject also to further negotiations by the parties. The wording of the MOU
itself lent support to an interpretation which was only consonant with a finding that the MOU was not the
agreement of sale in itself. The sale of the farm had not been concluded by the signing of the MOU.
(2) Agreements akin to the one in casu are not enforceable primarily due to the uncertainty which accompanies
such contracts. In agreements to agree in the future, the parties thereto retain a discretion as to whether or not to
agree or disagree in the future. The court a quo prematurely found that an agreement of sale had been entered
into when both parties agreed that the agreement of sale had not yet been concluded and would only be executed
at a later stage.
(3) By the time the application was brought to the High Court, the MOU had expired and there were no rights
arising from the MOU which could be enforced by any of the parties. The respondent had no cause of action.
(4) In terms of s 3 of the Land Acquisition (Disposal of Rural Land) Regulations (SI 287 of 1999) a holder of
rural land cannot sell such land to any other person without having approached the State to exercise its statutory
right of first refusal. If the State is not interested in the land, the relevant Minister will issue a certificate of no
present interest and only then may a party proceed to enter into an agreement of sale with any other party. A
seller has no discretion and must comply with the statutory condition. Where a contract is proscribed by statute,
it is invalid and non-compliance with the condition invalidates the whole contract. The “agreement” which the
court a quo found to exist between the parties was illegal. A sale of rural land before the relevant Minister has
expressed his disinclination to buy the same is prohibited. It is, in addition, an established principle of the law of
contract that an agreement of sale that is subject to the fulfilment of a condition precedent that has not been
fulfilled is not a valid sale.
(4) A whole piece of land is a different entity to subdivided portions of the same. The subdivision of land is not
a matter of form, it is one of substance. Once the appellants obtained a subdivision permit in respect of the farm,
the merx as it originally stood and offered to the respondent had ceased to exist. The grant of an order of specific
performance is discretionary. The principle lex non cogit ad impossibilia states that specific performance should
never be ordered if compliance with the order would be impossible, as it would be here.
Editor’s note: decision of DUBE J in CAG Farms (Pvt) Ltd v Hativagone & Ors HH-157-14 (delivered 2 April 2014)
reversed. The judgment is now reported in 2014 (1) ZLR 440 (H).
Contract – validity – proof of – onus – onus on debtor to prove he has performed his contractual
obligations
Rural Electrification Fund v Machimire S-61-15 (Ziyambi JA, Gwaunza JA & Bere AJA concurring) (Judgment
delivered 2 November 2015)
See below, under SALE (Conditional).
Costs – de bonis propriis – against legal practitioner – making application knowing it was inappropriate
and obtaining judgment by misrepresentation
Mashingaidze v Chipunza & Ors HH-688-15 (Chitakunye J) (Judgment delivered 6 August 2015)
See below, under PRACTICE AND PROCEDURE (Default judgment – rescission)
Costs – higher scale – misconceived litigation – constitutional appeal brought in guise of an application –
respondent put to unnecessary expense – costs on higher scale justified
Prosecutor-General v Telecel Zimbabwe (Pvt) Ltd CC-10-15 (Gwaunza JCC, Chidyausiku CJ, Malaba DCJ,
Gowora, Mavangira & Guvava JJCC, Chiweshe, Makoni & Bhunnu AJJCC concurring) (Judgment delivered 8
October 2015)
See above, under CONSTITUTIONAL LAW (Constitution of Zimbabwe 2013 – Constitutional Court –
reference of cases to).
Court – Constitutional Court – appeal to – from decision of Supreme Court – no right of appeal existing
unless Supreme Court has made decision on a constitutional matter
Nyamande & Anor v Zuva Petroleum (Pvt) Ltd (2) CC-8-15 (Ziyambi JCC) (Judgment delivered 1 August
2015)
See above, under CONSTITUTIONAL LAW (Constitution of Zimbabwe 2013 – Constitutional Court).
Court – High Court – jurisdiction – appellate jurisdiction from inferior tribunals – decision of
Commissioner-General of Police dismissing appeal of member of police force convicted by a single officer
– appeal lying to High Court against such decision
Sadengu v Board President & Anor HH-712-15 (Dube J) (judgment delivered 26 August 2015)
See below, under POLICE (Discipline – trial of member by single officer).
Court – High Court – jurisdiction – appellate jurisdiction from inferior tribunals – decision of
Commissioner-General of Police dismissing appeal of member of police force convicted by a single officer
– no appeal lying to High Court against such decision
Tamanikwa v OIC ZRP Beatrice & Ors HH-616-15 (Tagu J) (Judgment delivered 15 July 2015)
See below, under POLICE (Discipline).
Court – High Court – jurisdiction – constitutional – High Court’s jurisdiction to determine any
constitutional issue other than those reserved for Constitutional Court
Tetrad Invstm Bank Ltd v Largedata Entprs (Pvt) Ltd HH-730-15 (Chigumba J) (Judgment delivered 17
September 2015)
See above, under CONSTITUTIONAL LAW (Constitutional of Zimbabwe 2013 – Declaration of Rights – right
to fair trial).
Court – High Court – jurisdiction – extraterritorial – rape committed outside Zimbabwe – has harmful
effects in Zimbabwe – court has jurisdiction
S v Matunga HH-706-15 (Tagu J) (Judgment delivered 19 August 2015)
An application for bail pending appeal was instituted by a man who had been convicted of rape and sentenced to
18 years by the regional court. The rape had taken place in South Africa, but had only been reported to the
police in Zimbabwe, where the perpetrator was arrested, tried and convicted. His application for bail pending
appeal did not raise the issue of lack of jurisdiction by the Zimbabwean court. The court stated that it was not an
issue to be determined by the appeal court, but then proceeded to address it in assessing whether the bail
application was likely to succeed.
The court cited s 5 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and concluded that a
Zimbabwean court can have jurisdiction over a crime committed wholly outside the country which has produced
harmful effect in Zimbabwe; a rape can have harmful effect even if it is committed outside Zimbabwe. There is
no justification for rigid adherence to the principles of basing jurisdiction upon the place of impact or intended
impact in a global village. The appeal court would not conclude there was lack of jurisdiction. (MN)
Editor’s note: On where the “harmful effects” of a crime are felt, see S v Nkomo 2007 (1) ZLR 357 (S) and the
cases there cited. Whether “harmful effects” would include, for example, ongoing psychological trauma arising
out a rape is yet to be decided by the Supreme Court.
Court – judicial officer – conduct of trial – manner in which judicial officer should conduct trial – extent
to which may question accused person in criminal trial
S v Konson CC-7-15 (Gowora JCC, Chidyausiku CJ, Malaba DCJ, Gwaunza JCC, Garwe JCC, Hlatswayo JCC,
Patel JCC, Guvava JCC & Mavangira AJCC concurring) (Judgment delivered 22 July 2015)
See above, under CONSTITUTIONAL LAW (Constitution of Zimbabwe 2013 – Declaration of Rights – right
to a fair trial).
Court – judicial officer – duties – to create environment conducive to fairness and to be seen to uphold
rights of accused person – duty to guard against excesses of power and abuse of judicial authority
Mukwemu v Sanyatwe NO & Anor HH-765-15 (Mathonsi J) (Judgment delivered 23 September 2015; reasons
furnished 30 September)
The applicant urgently sought a stay of the criminal proceedings brought against him in the magistrates court.
He had enlisted the services of a legal practitioner to represent him, but the practitioner could not appear on the
date on which the trial had been set down and sent an associate to appear and apply for a postponement. The
magistrate would have none of it. Although the associate had been recalled from leave to do make the
application and had no prior knowledge of the case, the magistrate dismissed the application for a postponement
and directed that the trial commence immediately. He would not hear of a referral of the matter to the
Constitutional Court on the ground that the applicant’s right to a fair trial and to be represented by a legal
practitioner of his choice was being violated. The trial began and at the end of the day it was remanded to until a
week later for continuation of trial, a date unilaterally set by the magistrate. The lead counsel could not appear
on that date either and sent his associate back to the court. There he made another bid to have the matter referred
to the Constitutional Court on the same grounds as before. He also made an application for the magistrate to
recuse himself on suspicion of bias. The magistrate not only dismissed the application, but also ordered the
practitioner’s immediate arrest for contempt of court even as the legal practitioner was busy addressing the
court. The practitioner was handcuffed by a prison officer and detained until his release at lunch time. The
applicant launched an application for review, which application was still pending. He requested the magistrate to
defer the trial until the review application had been determined. The magistrate nonetheless set a date for
resumption, so the applicant launched the present application.
Held: (1) A judicial officer must create an environment in his court which is not only conducive to fairness, a
fair trial and justice, but also be seen to be upholding the rights of accused persons. In his court, justice must not
only be done, it must also be seen to be done. Where legal practitioners performing their duties of representing
accused persons in court, no matter how tenacious they are in the pursuit of their client’s rights, are arrested
while sheltering under court privilege, then all pretensions at fairness are thrown out through the window. In
fact, the whole process of the administration of justice is turned into a mockery and in its place is substituted the
law of the jungle, that only might prevails. A judicial officer must always guard against the excesses of power,
against the abuse of judicial authority to settle personal scores.
(2) We live in a tolerant society that recognises the constitutional right of accused persons to be represented by
counsel of their choice in defence of criminal charges. There should never come a time when the business of
representing others becomes a hazardous exercise because a legal practitioner may be dragged away from the
bar at the whim of a judicial officer while conducting a defence. We must be able to draw the line somewhere
and say: this cannot be done.
(3) The dispassionate manner in which a judicial officer is supposed to conduct proceedings was missing in this
matter. In fact, the magistrate appeared determined to try the applicant without further ado and would pull out
all the stops to achieve that, as if an accused person has no rights at all and as if life itself depends on the trial
proceeding. There had been no delay whatsoever and as such one wonders what informs the decision of the
judicial officer to proceed with the trial with indecent haste at the expense of justice and fairness. A stay would
be granted pending the determination of the review proceedings.
Court – judicial officer – functus officio – matter previously disposed of – requirements – need for cause
of action and relief sought to be the same
Golden Reef Mining (Pvt) Ltd & Anor v Mnyiya Consulting Engrs (Pty) Ltd & Ors HH-722-15 (Mangota J)
(Judgment delivered 7 September 2015)
See below, under PRACTICE AND PROCEDURE (Execution – stay of).
Court – judicial officer – impartiality – duty of – meaning of impartiality – recusal – apprehension of bias
– must be based on reasonable grounds – circumstances must be such that a reasonable person would
apprehend bias
Zhou v Katiyo NO & Anor HH-774-15 (Hungwe J) (Judgment delivered 22 September 2015)
When faced with an application for recusal, a judicial officer must consider and weigh up two important
obligations; namely the duty to hear every case that comes before him or her and the duty to apply the law
impartially, without fear, favour or prejudice. Impartiality does not require the magistrate to be neutral; rather, it
is a state of mind in which the magistrate is disinterested in the result and is open to persuasions by the evidence
and submissions. It is that quality of open-minded readiness to persuasion – without unfitting adherence to
either party or to the judge’s own predictions, preconceptions and personal views – that is the keystone of a
civilised system of adjudication. In contrast, bias denotes a state of mind that is in some way predisposed to a
particular result or that is closed with regard to the issues. The question is whether a reasonable, objective and
informed person would on the correct facts reasonably apprehend that the judge has not or would not bring an
impartial mind to bear upon the adjudication of the case, that is, a mind open to persuasion by the evidence and
submissions of counsel. The perception of bias must be reasonable in two respects: (a) the perception must be
reasonable: it must be based on reasonable grounds and there must be a reasonable apprehension that the judicial
officer will be biased; an apprehension that the judicial officer may be biased is not sufficient. (b) In addition,
the person apprehending the bias must be a reasonable and objective person in the position of the litigant who is
informed of the facts.
Court – jurisdiction – peregrinus – how jurisdiction may be established – options open to court
Bulgargeomin Ltd v Govt of Bulgaria & Ors HH-732-15 (Chigumba J) (Judgment delivered 17 September
2015)
See below, under PROPERTY AND REAL RIGHTS (Ownership – acquisition).
Court – jurisdiction – peregrinus – need for defendant to be present or have property within the
jurisdiction – not necessary to arrest such person or attach property – jurisdiction may be founded by
issuance of process
Gwisai v Shamuyedova & Ors HH-623-15 (Uchena J) (Judgment delivered 15 July 2015)
Under s 15 of the High Court Act [Chapter 7:06], the court may exercise jurisdiction over a peregrinus (a)
founded on or confirmed by the arrest of any person or attachment of any property; (b) who is or which is in
Zimbabwe, and (c) can permit or direct the issue of process, for service in or outside Zimbabwe (d) without
ordering such arrest or attachment. This means that if the property or person is outside the country it or he
cannot be attached or arrested. The absence of a person who can be arrested or property which can be attached
to found or confirm jurisdiction is a critical consideration in deciding whether or not the court has jurisdiction
and can issue process. The absence of a person who can be arrested or property that can be attached has the
effect of defeating the principle of effectiveness, which is central to the issue of whether or not a court has
jurisdiction. However, if the court believes that there is a person to be arrested or property to be attached to
found or confirm jurisdiction within Zimbabwe, it can grant an application for edictal citation. The issuance of
that process will, because of the presence of a person or property to be arrested or attached to found or confirm
jurisdiction, itself found or confirm the court’s jurisdiction.
Editor’s note: see also Fairdrop (Pvt) Ltd v Capital Bank Corp Ltd & Ors HH-305-14 (a judgment of Mathonsi J,
delivered 18 June 2014, contained in the summaries for 2014(1)).
Court – recusal – grounds for recusal – bias – reasonable grounds for apprehension of bias sufficient –
need for a real likelihood of bias to appear – onus on person alleging bias
S v Nhire & Anor HH-619-15 (Hungwe J) (Judgment delivered 15 July 2015)
The trial magistrate requested a judicial review of a part-heard trial, after the complainant in the matter alleged
that the accused person was a friend of or related to the magistrate and that magistrate should recuse himself.
Although the magistrate denied the allegation, he nonetheless considered that at the heart of the test for recusal
lies the principle that justice should not only be done but be seen to be done; on this basis, justice would not be
seen by the complainant to be done if the trial magistrate were not to recuse himself.
Held: All too often judicial officers are faced with allegations of bias, some justified, but most not borne out by
the facts. It is important that judicial officers handle this criticism with utmost sensitivity as the perception of
bias might, unfortunately, crystalize into fact. Various tests have been proposed, which are to the effect that in
considering whether there is a real likelihood of bias, the court does not look at the mind of the judicial officer
himself. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the
expense of the other. The court looks at the impression which would be given to other people. Even if he was as
impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a
real likelihood of bias on his part, then he should not sit, and if he does sit, his decision cannot stand.
Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough; there must
be circumstances from which a reasonable man would think it likely or probable that the judicial officer would,
or did, favour one side unfairly at the expense of the other. The court will not enquire whether he did, in fact,
favour one side unfairly. The principle enshrined in the authorities is that no reasonable man should, by reason
of the situation or action of a judicial officer, have grounds for suspecting that justice will not be administered in
an impartial and unbiased manner. A judicial officer should therefore so conduct the trial that his openmindedness, his impartiality and his fairness are manifest to all those who are concerned in the trial and its
outcome, especially the accused.
Two considerations are built in. The first is that in considering the application for recusal, the court as a starting
point presumes that judicial officers are impartial in adjudicating disputes. This in-built aspect entails two
further consequences. On the one hand, it is the applicant for recusal who bears the onus of rebutting the
presumption of judicial impartiality. On the other, the presumption is not easily dislodged. It requires “cogent”
or “convincing” evidence to be rebutted. The second in-built aspect of the test is that “absolute neutrality” is
something of a chimera in the judicial context. This is because judges are human. They are unavoidably the
product of their own life experiences, and the perspective thus derived inevitably and distinctively informs each
judge’s performance of his or her judicial duties. But colourless neutrality stands in contrast to judicial
impartiality. Impartiality is that quality of open-minded readiness to persuasion – without unfitting adherence to
either party, or to the judge’s own predilections, preconceptions and personal views – that is the keystone of a
civilised system of adjudication. Impartiality requires, in short, “a mind open to persuasion by the evidence and
the submissions of counsel”; and, in contrast to neutrality, this is an absolute requirement in every judicial
proceeding.
Courts considering recusal applications asserting a reasonable apprehension of bias must accordingly give
consideration to two contending factors. On the one hand, it is vital to the integrity of our courts and the
independence of judges and magistrates that ill-founded and misdirected challenges to the composition of a
bench be discouraged. On the other, the courts’ very vulnerability serves to underscore the pre-eminent value to
be placed on public confidence in impartial adjudication. In striking the correct balance, it is as wrong to yield to
a tenuous or frivolous objection as it is to ignore an objection of substance.
Criminal law – defences – private defence – defence of property – when killing in defence of property will
operate as a complete defence
S v Mupawaenda HH-40-16 (Hungwe J) (Judgment delivered 4 November 2015)
Where an accused is charged with a crime involving the killing of another person, he is not entitled to rely upon
defence of property to exonerate him unless the following requirements are all satisfied: (a) he resorted to killing
after taking all other possible steps to protect the property concerned; (b) the property concerned could not have
been defended by any other means except killing; (c) the property concerned was of vital importance to him;
and (d) he reasonably believed that he would not receive adequate compensation for any destruction, damage or
injury caused to the property concerned by the unlawful attack.
In determining whether or not these requirements have been satisfied in any case, a court shall take due account
of the circumstances in which the accused found himself, including any knowledge or capacity in which he may
have had and any stress or fear that may have been operating on his mind. In determining whether or not any
means used by a person to avert an unlawful attack were reasonable, or whether or not any harm or injury
caused to an attacker was proportionate to that liable to be caused by an unlawful attack, a court will have regard
to the nature of the property which the person was trying to protect and its value to him.
Criminal law – offences under Criminal Law Code – criminal abuse of public office (s 174(1)) – public
officer – who is – employee of private company wholly owned by Government – not an employee of the
State
S v Chikumba HH-724-15 (Mafusire J) (Judgment delivered 9 September 2015)
The applicant sought bail pending appeal. This was his second application, the first having been refused. He was
the former chief executive officer of Air Zimbabwe, employed by Air Zimbabwe Holdings (Pvt) Ltd. He and
another former employee had been convicted of criminal abuse of duty as a public officer, in contravention of s
174(1)(a) of the Criminal Law Code [Chapter 9:23], arising out of insurance contracts which they sought
without going through the proper procedures.
The appeal was against conviction and sentence. In respect of the former, the grounds of appeal were essentially
factual.
This being a second application, it was necessary, in terms of s 123 of the Criminal Procedure and Evidence Act
[Chapter 9:07], to show that there were facts which were not placed before the judge who determined the
previous application and which had arisen or been discovered after the determination. The facts relied on were
that it was only when counsel had been briefed to give advice on the way forward that it was discovered that the
applicant was wrongly convicted, as Air Zimbabwe was not one of the entities envisaged by the Code and that
he was not a public officer as defined in s 169, not being a person holding or acting in a paid office in the
service of the State, a statutory body or a local authority. This aspect had been completely overlooked by both
the prosecution and the defence. It was overlooked in the first bail application. The applicant sought to amend
his grounds of appeal by adding these averments to the grounds previously filed.
The State argued that the fact that the applicant’s counsel “discovered” that he was not a public officer was not a
discovery. This was a fact that was always in existence right from the beginning. It had never been an issue.
Held: (1) It may be that mere remissness or negligence or lack of diligence in failing to place all relevant facts
before the court would not ordinarily amount to new facts, or changed circumstances, where a person, or
somebody on his behalf, eventually becomes aware of those facts. If, with the exercise of due diligence, such
facts would have been made available, the court should not too readily accept them as new facts amounting to
changed circumstances. The test whether in a subsequent bail application there are changed circumstances or
not, may be compared to an application for leave to introduce fresh evidence on appeal. The factors to consider
should include whether or not the fresh evidence could reasonably lead to a different verdict, and whether there
is a reasonable explanation why such facts were not placed before the court. In exceptional cases, relief may be
granted if the court is satisfied that a reasonable probability exists that a conviction would not stand if the further
evidence were accepted. The court should only decline to receive further evidence where it would not be in the
interests of justice to do so. The ultimate determinant therefore is the interests of justice.
(2) If the applicant had been bringing a new bail application purely and solely on the same set of facts as those
considered previously, that would have been irregular and in violation of s 123 of the Criminal Procedure and
Evidence Act. But he was bringing the second bail application on the basis of a new point which was both a
point of fact and a point of law. This point was fundamental to the prospects of success of the applicant’s appeal
and was so profound as to strike at the root of the very conviction in respect of which the applicant was serving
time.
(3) In an application for bail pending appeal, it is not the function of the judicial officer to satisfy himself
beyond any measure of doubt whether or not the grounds of appeal are doomed to fail. If the applicant has some
fighting chance on appeal, then, all the other relevant factors being neutral, the applicant must be entitled to
relief. The question, then, is not whether the appeal will succeed. The standard is much lower. It is whether the
appeal is free from predictable failure.
(4) Air Zimbabwe Holdings and Air Zimbabwe (Pvt) Ltd were private companies formed by shares and
registered in terms of the Companies Act [Chapter 24:03]. Air Zimbabwe (Pvt) Ltd was designated as the
successor company to the defunct Air Zimbabwe Corporation, which was a statutory body. The Corporation was
dissolved. The fact that the Government was a shareholder in the airline did not make it the employer and did
not make the applicant a public officer.
Criminal law – offences under Criminal Law Code – contempt of court (s 182(1)) – constitutionality of –
permissible derogation from right to freedom of speech
Mutambara v A-G & Anor CC-11-15 (Gwaunza JCC. Chidyausiku CJ, Malaba DCJ, Ziyambi, Garwe, Gora,
Hlatshwayo & Guvava JJCC & Mavangira AJCC concurring) (Judgment delivered 18 November 2015)
See above, under CONSTITUTIONAL LAW (Constitution of Zimbabwe 1980 – Declaration of Rights –
freedom of expression).
Criminal law – offences under Criminal Law Code – theft of trust property – what constitutes trust
property – money paid is deposit on purchase price – not trust property – debtor-creditor relationship
only established
S v Mugandani HH-635-15 (Hungwe J) (Judgment delivered 29 July 2015)
Only property held under a deed of trust; or by agreement; or under any enactment; or on terms requiring the
holder to hold the property on behalf of another or account for it to another; or hand over the property to a
specific person; or deal with it in a particular way, constitutes trust property for the purposes of s 112 of the
Criminal Law Code [Chapter 9:23]. Money handed over as a deposit for the purchase of goods is not trust
property. In that situation, a debtor-creditor relationship is created. The money paid is a fungible which may be
used by the recipient as his own, as long as he acknowledges his debt to the depositor.
Criminal procedure – bail – pending appeal – principles – should be positive grounds for granting bail –
not necessary that exceptional grounds should exist – prospects of success – approach to be taken to –
should be arguable or have substance
S v Pfumbidzayi HH-726-15 (Zhou J) (Judgment delivered 10 September 2015)
Where bail after conviction is sought, the onus is on the applicant to show why justice requires that he should be
granted bail. The proper approach is not that bail will be granted in the absence of positive grounds for refusal
but that in the absence of positive grounds for granting bail it will be refused. First and foremost, the applicant
must show that there is a reasonable prospect of success on appeal. Even where there is a reasonable prospect of
success, bail may be refused in serious cases, notwithstanding that there is little danger of the applicant
absconding. The court must balance the liberty of the individual and the proper administration of justice and
where the applicant has already been tried and sentenced it is for him to tip the balance in his favour. It is also
necessary to balance the likelihood of the applicant absconding as against the prospects of success, these two
factors being
interconnected because the less likelihood are the prospects of success the more inducement
there is to abscond. Where the prospect of success on appeal is weak, the length of the sentence imposed is a
factor that weighs against the granting of bail. Conversely, where the likely delay before the appeal can be heard
is considerable, the right to liberty favours the granting of bail.
It is not a requirement that “exceptional circumstances” should exist to justify release on bail. What are required
are positive grounds to show that bail must be granted.
Where the High Court is faced with an appeal against refusal to grant bail pending appeal, the court will
consider whether the magistrates court misdirected itself, having regard to the above principles. The court does
not deal with the matter as if it is the court of first instance in an application for bail.
In relation to prospects of success, the High Court is not sitting as the appellate court to consider the
appropriateness or otherwise of the conviction and sentence. The approach in assessing the prospects of success
is not to ask whether the appeal will or should succeed but whether it is arguable or has substance, in the sense
of it not being manifestly doomed to failure. If the appeal is not a predictable failure or the inquiry as to whether
it has prospects of success is reached only after what approximates a hearing of the appeal itself then the court
must be inclined to conclude that the appeal has prospects of success.
Criminal procedure – bail – pending appeal – second application – need to show facts which have arisen
or been discovered since last application – realisation of point of law striking at root of conviction – may
be considered in decision as to whether to grant bail – not necessary for judicial officer to consider appeal
doomed to failure – appeal must be free from predictable failure
S v Chikumba HH-724-15 (Mafusire J) (Judgment delivered 9 September 2015)
See above, under CRIMINAL LAW (Offences under Criminal Law Code – criminal abuse of public office)
Criminal procedure – prosecution – stay of – grounds – abuse of process – accused person charged with
multiple offences, including murder – State proceeding against accused on lesser charges before indicting
him on murder charge – State having valid reasons for proceedings as it did – accused always aware that
he faced murder charge – constitutional rights not breached – no entitlement to stay of prosecution on
grounds of abuse of process
S v Mashayamombe HH-596-15 (Zhou J) (Judgment delivered 2 July 2015)
See above, under CONSTITUTIONAL LAW (Constitution of Zimbabwe 2013 – Declaration of Rights – right
to equal protection of the law).
Criminal procedure – trial – conduct of – role of judicial officer – extent to which judicial officer may
question accused person – if fairness of trial undermined, accused’s constitutional right to fair trial may
be violated
S v Konson CC-7-15 (Gowora JCC, Chidyausiku CJ, Malaba DCJ, Gwaunza JCC, Garwe JCC, Hlatswayo JCC,
Patel JCC, Guvava JCC & Mavangira AJCC concurring) (Judgment delivered 22 July 2015)
See above, under CONSTITUTIONAL LAW (Constitution of Zimbabwe 2013 – Declaration of Rights – right
to a fair trial).
Criminal procedure (sentence) – general principles – community service – where such service should be
rendered – sexual offender being required to perform community service at a primary school –
inappropriateness of
S v Chigogo HH-943-15 (Tsanga J) (Judgment delivered 3 December 2015)
See below, under CRIMINAL PROCEDURE (SENTENCE) (Offences under Criminal Law Code – sexual
relations with young person)
Criminal procedure (sentence) – offences under Criminal Law Code – kidnapping – matters which should
be considered – normal factors should be taken into account
S v Makunike HH-770-15 (Chigumba J) (Judgment delivered 16 September 2015)
The accused was convicted of kidnapping by a senior magistrate. She had pleaded guilty. She admitted to
abducting a small boy aged 3-4 years from his parents and taking him to Botswana where he was kept for at
least 3 years. Her reason for doing so was that she was barren. Desperate to save her marriage, she stole the
minor and presented him to her husband as his biological child borne by her. The magistrate considered that the
offence was committed in aggravating circumstances and that a sentence well above his sentencing jurisdiction
was appropriate. He referred the record to the Prosecutor-General in terms of s 225 of the Criminal Procedure
and Evidence Act [Chapter 9:07]. The Prosecutor-General ordered that the matter be transferred to the High
Court for sentence.
Held: (1) before transferring a matter for sentence, the Prosecutor-General has a duty to carefully consider any
request by a trial magistrate to have a matter referred to the High Court for a higher penalty. He should consider
(a) the relevant provisions of the law in terms of which the accused was charged and convicted; (b) the
aggravatory and mitigatory factors; and (c) relevant case law and determine whether if in fact the trial magistrate
is correct that a stiffer penalty is appropriate. The Prosecutor-General must decide for himself what the
appropriate sentence would be in the circumstances instead of rubber stamping the opinion of the trial
magistrate. It is not every case in which a trial magistrate forms the opinion that a stiffer penalty would be more
appropriate which must be referred to the High Court for sentencing unless the circumstances of the case, and
the law, support such an opinion. A careful analysis of the issues to be taken into consideration in assessing
sentence should be undertaken by the Prosecutor-General.
(2) The nature and seriousness of the crime ought to take precedence in awarding punishment. Kidnapping is
always a serious offence, since it involves deprivation of liberty, particularly freedom of movement, freedom to
be where one wants to be, and so on. Kidnapping for the purpose of rape or ransom has generally attracted
stiffer penalties, whereas offenders who have altruistic or other non-violent motives have been treated with
leniency. Kidnapping is a serious offence which occasions emotional trauma on the victim and on those left
behind who assume the worst and fear that they will never see their loved one again. It is important, however,
that the process of sentencing be a rational and objective one and trial magistrates must strive to balance the
interests of society and the need to deter other would be offenders. The court must have regard to the rights of
the accused to be punished in accordance with the circumstances of the case, and the need to rehabilitate the
victim, while appeasing the anger and despair of the victim’s loved ones. Magistrates should not allow their
emotions to cloud their judgment as to which sentence is appropriate in the circumstances. Without evidence in
the record on the point, it was a misdirection by the magistrate to allude to the current prevalence of kidnappings
for ritual purposes. The appropriate sentence here was 4 years’ imprisonment, of which one year would be
suspended.
Criminal procedure (sentence) – offences under Criminal Law Code – sexual relations with young person
– large age difference between man and girl – duty of courts to give effect to spirit of Constitution and
international instruments, to protect children from sexual abuse
S v Chigogo HH-943-15 (Tsanga J) (Judgment delivered 3 December 2015)
The accused, aged 37 and married, was convicted of having extra-marital sexual relations with a 15 year old
girl, in contravention of s 70(1)(a) of the Criminal Law Code [Chapter 9:23]. He was sentenced to 30 months’
imprisonment, half of which was suspended on conditions of future good behaviour and half on condition that
he performed community service at a school. The accused had been having sexual relations with the girl for
some months before she became pregnant. He claimed that they were in love. The issue on review was whether
a custodial sentence would have been more appropriate.
Held: the continued lenient attitude towards grown men who abuse young girls and then get off lightly with their
offence on the basis of “intended marriage” to the complaint is not in consonance with the spirit of the
Constitution in discouraging marriage of girls below the age of 18. Section 78(1) of the Constitution, which
deals with marriage rights, provides that “every person who has attained the age of eighteen years has the right
to found a family”. It thus places a restriction on marriageable age. Whilst there is still need to harmonise the
existing laws with the Constitution, with this constitutional framing of marriage, the customary reality whereby
marriage is not linked to age but to puberty cannot continue to find justification in law and practice. It is the
duty of the courts to actively take steps to pass judgments that are in harmony with the Constitution, as well as
children’s rights as contained in the various instruments that we are a party to, such as the African Charter on
the Rights and the Welfare of the Child.
The import of the magistrate’s decision was to lend the law’s approval to early marriage, when the opposite
message is what the courts should be conveying. It is vital that s 70 of the Criminal Law Code be embraced as a
law which specially exists to protect children from sexual abuse by prosecuting violators and according them
appropriate punishment. Child marriages are unlikely to end where the courts continue to pass sentences that go
against the intended letter and spirit of the Constitution and of international instruments. Courts should be wary
of letting a child sexual abuser get off the hook lightly just because the abuser and parents of the child negotiate
a marriage when the matter comes to light. This is usually done to circumvent punishment, on the part of the
abuser, and for financial gain in the form of lobola, on the part of the family. A complainant is vulnerable
because of her immaturity, when the reality is that child marriages often lead to physical violence, psychological
abuse and depression, in addition to interfering with her education. The protection of child victims is minimised
when courts deem it inappropriate interference where parties or families have agreed to a marriage within the
context of their own cultural setting. Legal and non-legal non-governmental organisations in our midst have
firmly put the unacceptability of child marriages on the agenda. They have the clear advantage of understanding
problems and difficulties on that arise from early marriage from a grounded perspective. Courts therefore need
to be alive to the overall picture regarding the non-acceptability of child marriages so as to work towards a
common goal.
It also made little sense to sentence a 37 year old man who had been charged with a sexual offence and who had
clearly shown a lack of respect for appropriate age boundaries to perform his community service at a primary
school where there are girl children. Magistrates must therefore give proper thought to the issue of where it
would be appropriate for an accused to perform community service.
Criminal procedure (sentence) – statutory offences – domestic violence (s 4(1) of the Domestic Violence
Act [Chapter 5:16]) – single act of violence – should be sentenced on basis of assault under Criminal Law
Code unless part of pattern of physical abuse
S v Shonhiwa HH-900-15 (Hungwe J, Chiweshe JP concurring) (Judgment delivered 8 October 2015)
The appellant was convicted of contravening s 4(1) of the Domestic Violence Act [Chapter 5:16], following a
scuffle he had had with his girlfriend when she snatched his cell-phone from him. Her eye was injured but it was
only 8 months later that she sought treatment. He was sentenced to a term of imprisonment.
Held: the legislature intended to limit domestic violence which constitutes criminal conduct to instances of
physical and sexual abuse only. Relief for other conduct which constitutes domestic violence under s 3(1) is by
way of a protection order as provided in Part 3 of the Act. Physical abuse is defined in s 3(2)(a) as “…any act or
threatened act of physical violence towards a complainant.” In order to sustain a conviction, it had to be shown
that the accused committed an act of physical violence directed at the complainant. As such the State had to
prove an intention to act violently against the person of the complainant. The facts showed that the appellant
was engaged in a tussle with the complainant in order to regain possession of his mobile phone and that she was
struck by accident.
While a single act of assault can constitute domestic violence, in terms of the penalty provisions, the law ought
to create a distinction between a single act of assault and persistent pattern of physical abuse. Other jurisdiction
maintains this distinction. In order to attract the stiff penalties set out under the Act, there must be a pattern of
some form of abuse prior to the act complained of, or leading to a prosecution. Where, as here, a single act is
charged as an act of domestic violence the usual penalty provisions set out in the Criminal Law Code ought to
be applied. Unless a pattern is revealed such as would qualify the complainant to apply for a protection order in
terms of the Act, one must treat the first act as an out of character event rather than discriminate against the
offender on the basis of the status of the complainant.
Criminal procedure (sentence) – suspended sentence – failure by accused to comply with conditions of
suspension – actions which court may take – once court has acted, may not revisit decision, even of
circumstances have changed
S v Chinyemba HH-629-15 (Musakwa J) (Judgment delivered 17 July 2015)
In terms of s 358(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] a court may pass sentence in
respect of any offence other than in respect of an offence specified in the Eighth Schedule and order the
suspension of the operation of the whole or any part of the sentence for any period not exceeding five years on
conditions the court may specify in the order. The condition may relate to compensation for pecuniary loss. If, in
terms of s 358(4), the accused fulfils the conditions of suspension the suspended sentence shall not be enforced.
In terms of s 358(5), if a magistrate has reason to believe that a condition of any postponement or suspension
made in terms of subs (2) has been contravened, he may, whether before or after the expiration of the period of
postponement or suspension, order the offender to be brought before the court. The court may commit him to
undergo the sentence which may then be or has been lawfully passed or, in its discretion, the reasons for which
must be recorded, on good cause shown by the offender, grant a further postponement or suspension, subject to
such conditions as might have been imposed at the time of the original postponement or suspension.
Once a magistrate decides to commit an accused person to serve a suspended sentence or to grant a further
postponement, he becomes functus officio. He cannot revisit his decision other than in terms of s 201(1), which
allows a wrong judgment or sentence to be amended. The correction of a decision cannot be premised on
changed circumstances.
Criminal procedure (sentence) – transfer of case to High Court for sentence – referral of matter to
Prosecutor-General by magistrate – need for Prosecutor-General to make his own decision as to what
sentence would be appropriate and not rubber-stamp magistrate’s opinion
S v Makunike HH-770-15 (Chigumba J) (Judgment delivered 16 September 2015)
See above, under CRIMINAL PROCEDURE (SENTENCE) (Offences under Criminal Law Code –
kidnapping).
Customs and excise – duty – classification of goods for duty purposes – variation of classification – power
of Commissioner-General to vary classification – not limited to doing so on appeal – erroneous
classification – not a waiver of duty
Customs and excise – fine – fine imposed by Commissioner-General for contravention of Act – may only
be imposed where such contravention is admitted – collection of fine – may not be collected by garnishee
order
Econet Wireless (Pvt) Ltd v ZRA & Ors HH-964-15 (Musakwa J) (Judgment delivered 14 December 2015)
The first respondent (the ZRA) imposed retrospective duty of nearly US$16 million on the applicant arising
from the importation of base stations for its cellular telephone network. A 300% penalty was also imposed. The
appellant appealed to the Fiscal Appeal Court. It also brought the present application to the High Court. The
issues were whether the first respondent was entitled to review its earlier classification of the goods and whether
it was entitled to impose and collect the penalty (a) without the agreement of the applicant and (b) through a
garnishee order on the applicant’s bank.
The base stations had been imported as disassembled components, instead of as assembled base stations. If the
individual components of telecommunication equipment constituted a base station, they would not attract duty.
The components were not all imported in the same consignments. The respondents claimed that following a
post-clearance audit regarding imports made by the applicant between January 2009 and June 2013 certain
anomalies were detected. These included the importation of certain telecommunication equipment other than
equipment that constituted a base station. In other instances, the applicant is said to have imported individual
components that could have constituted a base station had they been imported at the same time and moved into a
bonded warehouse. The respondents’ contention was that the equipment was imported under the guise of a base
station.
In clearing the goods, the applicant acted through agents.
Held: (1) Under s 87(2) of the Customs and Excise Act [Chapter 23:02], the Commissioner of the ZRA is
empowered to vary a classification of goods. He is not limited to doing so an appeal; he may vary or set aside a
classification of goods, if he is satisfied, whether on appeal by the importer of goods or in any other
circumstances, that the classification was incorrect. He may also in terms of s 223A(4) of the Act undertake a
post-clearance audit in relation to goods that have previously been released.
(2) With regard to the argument that the respondents had waived their right to duty, a party relying on waiver
has the onus to show that the other party had full knowledge of its rights and abandoned such rights expressly or
impliedly. The classification of goods in their correct tariff cannot be viewed as a right. It is a duty and where it
is not done correctly, it must be rectified. The duty to classify goods rests on the first respondent’s officers or
the second respondent, the Commissioner-General. In the event of an error in the classification of such goods,
such classification could be varied by the Commissioner-General. An erroneous classification of goods could
not be viewed as waiver of duty payable on the class of goods affected by such erroneous classification.
(3) The noting of an appeal to the Fiscal Appeal Court did not, in terms s 14 of the Fiscal Appeal Court Act
[Chapter 23:05], suspend the decision of the second respondent.
(4) Under s 200 of the Customs and Excise Act, where there has been an admitted contravention of the Customs
and Excise Act, the offender is liable to pay a fine determined by the Commissioner-General. If criminal
proceedings have been instituted, the prior consent of the Prosecutor-General is required before a fine may be
imposed. Here the offence was not admitted, nor had criminal proceedings been instituted. In addition, although
under s 201A of the Act a garnishee order may be made in respect of duty, a fine did not constitute duty and
could not be collected by garnishee order.
Editor’s note: see also NOC (Pvt) Ltd & Anor v EW (Pvt) Ltd & Anor HH-899-15, summarised below under
PRACTICE AND PROCEDURE (Subpoena duces tecum), for an issue raised in the appeal to the Fiscal Appeal
Court.
Damages – delictual – injuria – omissions – failure by police and medical officers to help rape victim –
victim subsequently becoming pregnant – trauma and stress suffered by victim – appropriate damages
Mapingure v Min of Home Affairs & Ors HH-857-15 (Muremba J) (Judgment delivered 4 November 2015)
The applicant was raped by robbers at her home. She immediately lodged a report with the police and requested
that she be taken to a doctor to be given medication to prevent pregnancy and any sexually transmitted infection.
Later that day, she was taken to hospital and attended to by a doctor. She repeated her request, but the doctor
only treated her for an injured knee. He said that he could only attend to her request for preventive medication in
the presence of a police officer and that the medication had to be administered within 72 hours of the sexual
intercourse having occurred. She went to the police station the following day and was advised that the officer
who dealt with her case was not available. She then returned to the hospital, but the doctor insisted that he could
only treat her if a police report was made available. Three days after the rape, she attended the hospital with
another police officer. At that stage, the doctor informed her that he could not treat her as the prescribed 72
hours had already elapsed. Eventually, a month after the rape, the appellant’s pregnancy was formally
confirmed.
She claimed damages for physical and mental pain, anguish and stress suffered and for maintenance for the
child until the child turned 18. The basis of the claim was that the employees of the three Ministries concerned
were negligent in their failure to prevent the pregnancy or to expedite its termination. She averred that she went
through physical and mental pain, anguish and stress, having to endure a pregnancy, which was the result of
rape, for nine months, followed by the labour pains of delivery. She said that she was stressed throughout the
whole period of her unwanted pregnancy. Her claim was dismissed by the High Court.
On appeal, the Supreme Court held that it could not be doubted that the applicant did suffer harm as a result of
the failure to prevent pregnancy by the respondents’ employees. The police had failed in their duty to assist the
applicant timeously in having her pregnancy prevented by the doctor. It was also held that the doctor had failed
to carry out his professional duty to avert the pregnancy when it could have been reasonably prevented. These
omissions took place within the course and scope of their employment with the respondents. Accordingly, the
respondents were vicariously liable to compensate the applicant in respect of the harm occasioned through the
failure to prevent her pregnancy. However, in quantifying or assessing the applicant’s entitlement to damages
the chain of causation could not be extended beyond the period of one month after the applicant was raped, i.e.
when her pregnancy was confirmed. The responsibility for taking steps to terminate the pregnancy after it had
been confirmed fell squarely on the applicant’s shoulders. The matter was remitted to the High Court for
quantification of damages. In remitting the case the Supreme Court stated that in assessing the appropriate
amount the High Court should take into account the applicant’s personal, social and economic circumstances.
The applicants counsel cited cases of unwanted pregnancies from other jurisdictions.
Held: those cases were distinguishable as they all arose out of contractual relationships. In any event, given the
great difference between the economies of Zimbabwe and those other countries, it was unsafe to take guidance
as to the amount.
Here, the applicant was raped, which itself was traumatic. The possibility of falling pregnant coupled with the
risk of being infected with transmissible infections scared and traumatised the applicant immensely. She spent
three days at the police station and at the hospital. Her pleas to the police officers and the doctor fell on deaf
ears. No one seemed keen to assist her. There was no explanation why some other police officer could not help
her in the absence of the investigating officer. There was also no explanation why the doctor was insisting on
the need for a police report before preventative medication could be administered.
It was unfortunate that the applicant did not file a supplementary affidavit outlining her personal, social and
economic circumstances. In that affidavit she should also have fully explained the mental pain, anguish and
stress that she went through during the relevant period. There could be no doubt that the applicant was
devastated by what befell her. However, in the absence of an affidavit by the applicant explaining this, the court
could not fully appreciate the intensity of the pain and suffering that she experienced. Intensity of pain is one of
the factors that are considered in assessing the quantum of damages and the test is a subjective one. It was only
in heads of argument that there was mention of morning sickness, vomiting, nausea, dizziness, fatigue and
inability to work. However, the applicant went through a horrific and traumatic experience. The respondents’
employees should have done their best to ensure that she received the necessary assistance on time. They knew
that time was of the essence and that this was a matter of life and death for the applicant, but they simply chose
not to help her at all. They acted as if she was to blame for what had befallen her. Damages of $6500 would be
awarded, rather than the $10 000 claimed.
Editor’s note: the original High Court judgment (a judgment of BERE J) is reported in 2012 (2) ZLR 472 (H) and
the Supreme Court’s judgment in 2014 (1) ZLR 369 (S).
Delict – actio inuriarum – malicious prosecution – what must be established – need to show defendant
instigated the prosecution – need to show that prosecution failed – meaning – would include prosecuting
authority declining to prosecute or to support conviction on appeal – need for authority’s decision to be
bona fide and untainted – when decision tainted, prosecution could not be said to have failed
Nherera v Shah HH-845-15 (Mathonsi J) (Judgment delivered 4 November 2015)
The plaintiff was chairman of the board of a State-owned transport company. Following information made
available to the police by the defendant, the plaintiff was arrested on charges of corruption. He was tried at the
magistrates court in Harare, convicted and sentenced to a term of imprisonment, part of which was suspended.
At the trial, the defendant gave evidence, having had assurances from the Attorney-General that, although
possibly an accomplice, he would be granted immunity from prosecution.
After the trial, the State opposed the grant of bail pending appeal, in the magistrates court, on appeal to the High
Court and on review by the Supreme Court. His appeal to the High Court, however, succeeded as the AttorneyGeneral’s Office conceded the appeal in terms of s 32 of the High Court Act [Chapter 7:06]. He then sued the
defendant for damages for malicious prosecution and detention.
It emerged in evidence that the individual who was Attorney-General at the time of the plaintiff’s appeal (but
not at the earlier proceedings) was once the plaintiff’s legal practitioner. When the plaintiff had previously sued
the defendant for damages for defamation arising out of utterances made by the defendant at a board meeting,
this lawyer had represented the plaintiff. The lawyer had at the material time represented the company and a
board member in the board which was chaired by the plaintiff himself. He had also attended the board meeting
where the defendant made the accusations of solicitation of a bribe against the plaintiff. The lawyer later
testified at the criminal trial as a defence witness and gave evidence exonerating the plaintiff from wrong doing.
The defendant did not, at any point, report the matter to the police. He was arrested by the police on corruption
charges before the plaintiff was arrested and charged. The decision to arrest the plaintiff was taken, not
following a report made by the defendant, but after discussions within the structures of the State. There was no
evidence of an initial report lodged by the defendant to the police.
At the close of the plaintiff’s case, the defendant applied for absolution from the instance on the basis that the
plaintiff had not made out a case upon which the defendant may be called upon to answer. It was submitted
there was no evidence supporting the cause of action set out in the declaration, namely that the defendant
procured the arrest, prosecution and imprisonment of the plaintiff. The evidence had not shown that the
defendant instigated the plaintiff’s arrest, prosecution and imprisonment; that what the defendant did was
without reasonable and probable cause; that the defendant was actuated by an improper motive; and finally that
the proceedings terminated in the plaintiff’s favour.
Held: the onus is on the plaintiff to prove on a balance of probabilities that the defendant caused him to be
arrested, detained or prosecuted and that he acted without reasonable and probable cause and was actuated by
malice. In respect of instigation, it must be shown that the defendant acted with the purpose of having the
plaintiff prosecuted and that a prosecution resulted from the defendant’s actions. The well-known formulations
of instigation are: was the defendant then instrumental in making or prosecuting the charge? The test is whether
the defendant did more than tell the police officer the facts and leave him to act on his own judgment. The mere
fact that the defendant placed information before the police during interrogation and that the State activated the
criminal justice system against the plaintiff on the basis of that information is not enough to establish the
requirement of instigation. The plaintiff is required to show more than the disclosure of information to the State.
As to whether the prosecution could be said to have failed, a refusal by the Prosecutor-General to prosecute
would be considered as a failure of the prosecution, provided that such a refusal was bona fide and not tainted at
all. Here, the failure of the prosecution came at the appeal stage when the State decided to make an about turn
and refused to support the conviction, thereby depriving the appeal court an opportunity to formulate its own
opinion on the merits of the appeal. The concession came as a surprise, because the prosecution had, prior to
that, strenuously opposed the appeal on the basis that it was devoid of any merit. The notice conceding the
appeal that was given by an Attorney General’s Office under the leadership of someone very close to the case,
someone who should not have participated at all. Although a refusal to prosecute is proof that the prosecution
has failed, that necessitates a decision by a State counsel, who was not a defence witness and not the legal
representative of the accused person, declining to prosecute. Accordingly, the involvement of the current
Attorney-General in that process had tainted the outcome of the appeal to the extent that the requirement that the
prosecution must have failed could not be said to have been satisfied.
Absolution would, therefore, be granted.
Election – election petition – parliamentary election – access to ballot papers and other residue of election
– “harmonised” elections – access to papers necessarily involving access to papers relating to presidential
and local authority elections – petition not thereby converted to one relating to election of the President –
Electoral Court having jurisdiction – lack of rules for how to deal with this situation – not a reason for
Electoral Court not to make suitable order
Timba v Chief Elections Officer & Ors S-69-15 (Gwaunza JA, Ziyambi & Guvava JJA concurring) (Judgment
delivered 17 November 2015)
The appellant was an unsuccessful candidate in a parliamentary constituency during the “harmonised” elections
held in 2013. During those elections, voting also took place for the office of President and for local authority
elections. The appellant brought an election petition, challenging the result, and also sought an order from the
Electoral Court directing the Electoral Commission to deliver to, and for inspection by, him all records relating
to the constituency in the election and all closed and sealed ballot boxes, sealed cardboard boxes and sealed
packets referred to in s 70(1) of the Electoral Act [Chapter 2:13], in order that he could prosecute the election
petition. The Electoral Court dismissed the application on three grounds: (a) that the granting of the order sought
by the appellant would result in him simultaneously accessing election residue pertaining to the presidential and
local government election results in circumstances where no pending petitions existed in relation to those
results; (b) in any event, any challenge or petition regarding the presidential election would be a matter in
which, in terms of s 167(2)(b) of the Constitution, only the Constitutional Court would have jurisdiction, and
access to election residue pertaining to that election could only be by way of an appropriate order granted by
that court; and (c) that the absence of any rules governing selective access to election material stored together
with that pertaining to the other two components of the harmonised elections created a lacuna in the law whose
effect was to disable the court from granting the order sought. On appeal, the issues were whether the Electoral
Court in fact had jurisdiction and whether the lacuna in the law existed.
It was not in dispute that the Commission had decided, for practical reasons, that at each polling station there
was one copy of the voters’ roll, for the joint purposes of the three sets of elections. Statistics such as the
number of voters turned away and the number of assisted voters were also dealt with on a joint basis. An order
granting the relief sought would necessarily have given him access to election material relating to the
presidential and the local government elections, although he had no use for such other election residue, and
neither the President nor the other candidates in the parliamentary and local government elections for the same
constituency had cause to seek relief similar to the one that the appellant was seeking.
Held: (1) the issues before the court a quo did not require the court to hear or determine a dispute relating to the
office of the President. Further, an order made in terms of s 70(4) of the Electoral Act (under which the
Electoral Court may make an order for a packet with ballot papers to be opened in the event of an election
petition) would not amount to exercising jurisdiction in terms of s 167(2)(b) of the Constitution. Section
167(2)(b) of the Constitution was clear and unambiguous in its meaning. It was concerned primarily with
disputes relating to election to the office of the President. The dispute in casu did not relate to such an election
but to the election of an aspiring member to the House of Assembly. An interpretation that sought to import into
s 167(2)(b) a meaning to the effect that only the Constitutional Court has jurisdiction to hear any election
dispute that mentions the President, even where the relief sought has nothing to do with any matter related to his
election to that office, amounts to a misapprehension of both the meaning and ambit of the provision. Such a
liberal interpretation would open the floodgates for undeserving applications to be brought before the
Constitutional Court. The dispute in casu was not upgraded to one envisaged by s 167(2) merely because the
unsealing of boxes and packets in question would have exposed election residue relating to the election of the
President. The court a quo should have heard the matter on its merits.
(2) It was necessary to consider whether or not all interested parties to this dispute were brought before the court
a quo. It was safe to assume that, with the election materials sought to be accessed by the appellant being stored
together with those relating to the presidential and local government elections, candidates in the latter two
elections must have had a vested interest in the subject matter of the litigation, as well as the relief sought
therein. They may have wished to have their views known to, and considered by, the court, on whether or not in
the absence of a challenge to their election, the “residue” relating to their respective election results should be
uncovered. This was particularly so given that the unsealing of the boxes in question would have been at the
instance of another candidate, not themselves. Theirs was the type of interest generally qualified as being “direct
and substantial” and necessitated their being joined as parties to the dispute. Candidates in the elections, other
than the applicant, had a direct and substantial interest in both the subject matter of the litigation, and its
possible outcome. The unsealing of and access to the boxes and packets containing such the material. The latter
would have simultaneously exposed their own election residue. Thus, those candidates constituted “necessary”
parties. The court should not deal with the matter without those parties being joined. To grant an order requiring
the unsealing of the ballot boxes in the absence of those who had participated in such sealing would be to visit
unfairness, if not prejudice, on the affected candidates.
(3) Although in terms of normal procedure, the dispute could be remitted to the court a quo court for a hearing
of the merits, an order to that effect would, in practical terms, be a brutum fulmen. The election petition had
been heard and judgment had been reserved, without the benefit of the evidence the appellant sought to have
placed by the court a quo. The petition was now a fait accompli and remittal would serve no purpose.
(4) On the supposed lacuna in the law, had all interested parties been cited and heard, and assuming the
appellant would have proved his case, the court would have been properly placed to grant an order in terms of s
70(5) of the Act. The order would have set out such conditions for the unsealing of the boxes and packets as
would safeguard the rights of all other interested parties. While any rules the legislature might wish to enact in
this respect may serve to elaborate on the type of conditions that may guide the process of unsealing election
boxes without at the same time exposing material not related to a particular candidate, the absence of such rules
did not constitute a lacuna of the nature found by the court a quo to exist.
Employment – arbitration – award – registration in magistrates court – notice to other party not required
Josam Enterprises (Pvt) Ltd v Svenhe & Anor HH-714-15 (Dube J) (Judgment delivered 26 August 2015)
The respondent was the former employee of the applicant. Following arbitration of a labour dispute, the
respondent registered the award made with the magistrates court in 2014. In 2015 the applicant’s property was
attached. In June 2015 the applicant secured a rule nisi for a stay of execution, but confirmation was refused in
July. The applicant then filed this application with the High Court for a stay of execution and simultaneously
filed an application for review. Its argument was based on the fact that the award should not have been
registered without an application for notice to the other party, thus giving an opportunity for a challenge to be
made. The issuing of the writ of execution was irregular since the registration was irregular. The respondent
argued that the award was registered under the Labour Act [Chapter 28:01], not the Arbitration Act [Chapter
7:15], and hence notice to the other party was not required for registration.
Held: s 98(14) of the Labour Act makes it clear that an arbitral award can be registered in the magistrates court
without giving notice to the other party; no procedure is outlined as registration is a purely administrative
process. Article 35 of the First Schedule to the Arbitration Act, which provides for a notice to the other party on
registration, covers registration in the High Court only and Articles 34 and 36 of the Act do not apply to labour
disputes. Hence no review would find any irregularity. The balance of convenience favoured the respondent and
the application to stay execution was denied. (MN)
Employment – collective bargaining agreement – interpretation of – need to read agreement as a whole –
salary increases to be “based on” inflation rate – other factors not to be considered – inflation rate not
merely a starting point for wage negotiations
Banking Employers’ Assn of Zimbabwe v Zimbabwe Bank & Allied Workers’ Union S-34-15 (Guvava JA,
Ziyambi & Garwe JJA concurring) (Judgment delivered 9 July 2015)
The appellant was the employers’ association for the banking industry, while the respondent was the union
which represented the workers for that industry. Following protracted negotiations, they signed an agreement
which was later reduced into a Collective Bargaining Agreement (published as SI 150 of 2013). It was agreed
that the CBA resolved the dispute over salaries then pending in the Labour Court and that the parties withdrew
all pending disputes relating to salary reviews. The clause dealing with salary reviews stated that the parties had
agreed to “base salary reviews on year-on-year inflation figures prevailing at the relevant time”, and stipulated
the source of such figures. A later clause (clause 9) provided that “the issue of actual(s) will be dealt with by
individual institutions”.
A disagreement about how to interpret the Agreement led to the matter being referred to arbitration. The
appellant’s stand was that any salary increment which would be in line with the inflation figures for that year
(4.9%) in order to stop any further disputes, while the respondent was of the view that the inflation figure would
form the starting point of any future negotiations that they would have with the employer. The union’s demand
was for 23.5%. The arbitrator awarded a 10% increase, and this was upheld by the Labour Court, which held
that the inflation figure was a starting point, not the end point and that the arbitrator was not bound by it.
Held: In order to give a proper interpretation to the intention of the parties, it was incumbent upon the lower
court to examine the whole agreement and not just to rely on a single word. The decision to award a 10% salary
increase completely defeated the intention of the parties in coming up with a formula to implement future salary
increments. If the parties had intended to introduce other factors in determining future salary reviews, they
would have said so in no uncertain terms. The fact that they agreed on a unitary yardstick to determine future
salary reviews meant that they had no intention of introducing other factors, which would introduce uncertainty
in the determination of their salary reviews. Having regard to the wording of the CBA, an interpretation which
would include other factors, such as cost of living, the prevailing wage and the take home pay, would be doing
violence to the ordinary grammatical meaning of the word “base” and would be clearly out of context with the
other provisions of the agreement. There was no basis for the figure of 10%, which was a “thumb suck”. A
proper reading of clause 9 was that individual institutions which were performing better than the others
financially and were in a position to pay a salary increment higher than the one agreed to by the appellant and
the respondent could do so. Workers who had evidence that their institution were performing better than the
others could then negotiate with their employers for a salary increment which was higher than the basic inflation
rate.
Employment – collective bargaining agreements – who may be parties thereto – what may be included in
such agreements – benefits not included in agreement cannot be imposed by arbitrator or court – dispute
relating to interest only – arbitrator’s role merely conciliatory
NRZ v Zimbabwe Rlys Artisans Union & Ors S-46-15 (Ziyambi JA, Gwaunza & Guvava JJA concurring)
(Judgment delivered 27 July 2015)
Collective bargaining agreements are governed by Part X of the Labour Act [Chapter 28:01. They are to be
negotiated by the parties mentioned therein: registered trade unions, employers and employers’ organizations or
federations thereof. They may relate to any conditions of employment which are of mutual interest to the parties
thereto, including any or all of the items listed in s 74(3) of the Act. Among these items are benefits for
employees and housing and transport facilities or, in their absence, an allowance for the same. The statute does
not confer a right on any of the parties, without agreement of the others, to have included in their collective
bargaining agreement any of the subjects on the list, because a collective bargaining agreement is a contract
between the parties to it and only they can set the terms by which they will be bound. It follows that any benefits
to be included in the collective bargaining agreement must be agreed by the parties. They cannot be imposed by
an arbitrator, or indeed any court, in the same way that a court cannot write a contract for the parties.
Allowances, not having been negotiated by the parties and therefore not forming part of their collective
bargaining agreement, are not a right or entitlement available for appropriation by the employees. This would be
a matter for the parties to bargain and reach agreement on. It is not a matter where a court could intervene. A
court can only intervene to enforce any agreement the parties have concluded.
Under s 93(1) of the Act, a labour officer to whom a dispute or unfair labour practice has been referred, or to
whose attention it has come, is required to attempt to settle it through conciliation or, if agreed by the parties, by
reference to arbitration. However, where there is no legal right which is being sought to be enforced, the dispute
being one of interest only, the arbitrator’s role in such circumstances would merely be a conciliatory one.
Employment – contract – contracts other than contracts without limitation as to time – casual, seasonal
and fixed term contracts of employment – distinction between – when such contract converts to one
without limitation as to time – succession of fixed term contracts – not “casualisation” of labour
Simbi (Steelmakers) (Pvt) Ltd v Shamu & Ors S-71-15 (Patel JA, Garwe & Gowora JJA concurring) (Judgment
delivered 20 November 2015)
The 43 respondents were employed by the appellant on monthly contracts that were continuously renewed. In
the longest instance, the employee’s contract had been renewed for six years. In May 2010 the appellant
terminated all 43 contracts on notice without giving any reason other than that the contracts had expired. The
dispute was referred to arbitration, the respondents claiming that they had, by virtue of s 12(3) of the Labour Act
[Chapter 28:01], become permanent employees. The arbitrator upheld their claim and ordered reinstatement or
damages. The Labour Court dismissed an appeal by the appellant. The court referred to various international
labour standards that require safeguards against the recourse to fixed term contracts that are designed to avoid
the protection of employees from the termination of their employment without valid reason. The court found
that the relevant provisions of the Labour Act conform with these standards in order to protect workers from
short term contracts generally. In particular, where a short term contract is repeated for more than six weeks in
any period of four consecutive months, it becomes a contract of permanent employment by virtue of s 12(3) of
the Act. It held that the practice of repeated short term contracts constitutes “casualisation” of labour prohibited
by the Act as read with the governing international standards and that this is buttressed by s 46(1) of the
Constitution, which enjoins the courts to take international law into account, and by s 65(4) of the Constitution,
which requires the implementation of equitable and satisfactory conditions of work.
Held: (1) The Labour Act draws a clear distinction between casual or seasonal workers and employees on fixed
term contracts. “Casual work” is work for which an employee is engaged by an employer for not more than a
total of six weeks in any four consecutive months, while “seasonal work” is work that is, owing to the nature of
the industry, performed only at certain times of the year. On the other hand, fixed term contracts are specifically
distinguished in s 12(2)(b), which requires the employer to provide written particulars of “the period of time, if
limited, for which the employee is engaged”, and in s 12B(3)(b), which relates to the consequences of
termination of a fixed term contract in certain circumstances. Section 12(3) recognises three different and
distinct categories of employment, i.e. a contract of fixed duration, a contract for casual, seasonal or piece work,
and a periodic contract without limit of time. In a contract of fixed duration, the duration or date of termination
of the contract is clearly stipulated, whereas in a periodic contract without limit of time it is not expressly
specified. Ordinarily, the same would apply to contracts for casual, seasonal or piece work, being contracts the
duration of which cannot be specifically delimited due to the nature of the work that they involve. However,
once a contract for casual work exceeds the prescribed period of a total of six weeks in any four consecutive
months, it is deemed to have become a contract of employment without limit of time. It is this indeterminate
nature of its duration that entails the deemed conversion of a casual contract into one of indefinite employment
in terms of the proviso to s 12(3). On a literal and grammatical interpretation of s 12(3), and without any
attendant absurdity, the proviso clearly does not apply to an employee on a fixed term contract. There are other
differences: (a) under s 12(4), the periods of notice required to terminate contracts of employment vary
according to the duration of the given contract, being only one day in the case of casual or seasonal work; (b)
under s 12(5), there are different periods of probation and different notice periods during probation in respect of
casual or seasonal work as compared with all other contracts of employment; (c) a casual worker is not entitled
to the minimum conditions of employment laid down in the Labour Act or in subsidiary regulations or collective
bargaining agreements – which is why a casual worker usually receives remuneration at a rate that is higher than
the minimum rate so as to compensate for the loss of other prescribed benefits; (d) in the industry in question,
the Collective Bargaining Agreement specifically differentiates between the two forms of employment, by
defining a casual worker as one “who is not engaged as a contract worker” and a contract worker as one “who is
engaged for a specified period, task or project”. The respondents were not casual workers who graduated to the
status of permanent employees.
(2) The object of s 12 of the Labour Act is to regulate the duration and termination of employment contracts.
The proviso to s 12(3) is confined to casual workers and cannot be construed to extend to employees on fixed
term contracts. Section 12(3) does not, whether explicitly or by necessary implication, prevent an employer
from engaging employees for successive fixed terms, provided that they continue to enjoy the full rights and
benefits that are accorded under Part IV of the Act and to which they are entitled as fixed term employees. By
the same token, employers cannot be burdened or penalised by having fixed term employees foisted upon them
on a permanent basis. In this regard, the Labour Court cannot invoke its equitable jurisdiction, on the basis of
advancing social justice in the workplace, to insinuate into s 12(3) an interpretation that is simply not supported
by its unambiguous language. To do so involves the double sin of doing violence to what Parliament itself has
enacted as well as rewriting the terms of a contract that has been freely and voluntarily entered into, by altering
something so fundamental as its agreed and intended duration. In short, the concept of casualisation of labour
does not form part of s 12 as originally framed, i.e. before its amendment by Act No. 5 of 2015.
(3) In terms of s 46 of the Constitution, a court, when interpreting the Declaration of Rights, “must take into
account international law and all treaties and conventions to which Zimbabwe is a party”, as well as all other
relevant factors. Section 327(2) provides that a treaty does not bind Zimbabwe until it has been approved by
parliament and does not form part of the law of Zimbabwe unless it has been incorporated into law by an Act of
Parliament. Under subs (6), a court, when interpreting legislation, must adopt any reasonable interpretation that
is consistent with any international treaty, convention or agreement that is binding on Zimbabwe.
(4) In interpreting the Labour Act so as to avoid or minimise the casualisation of labour, the Labour Court relied
upon the Termination of Employment Convention 1982 (No. 158) and its supplementary Termination of
Employment Recommendation 1982 (No. 166), these being instruments formulated under the auspices of the
International Labour Organisation. However, the court a quo overlooked the fact that these instruments
explicitly entitle Member States to exclude certain categories of employed persons from all or some of their
provisions. These categories include workers engaged under contracts for a specified period of time or for a
specified task, workers on probation or a qualifying period of employment, and workers engaged on a casual
basis for a short period. In any case, Zimbabwe has not ratified these instruments, so they are not binding on
Zimbabwe and cannot be invoked as definitive or decisive aids to the interpretation of our legislation. Moreover,
unless and until those provisions are specifically domesticated, they can be nothing more than persuasive guides
in interpreting and applying the law. And even then, they certainly cannot be applied so as to override or negate
clear provisions embodied in Acts of Parliament.
Employment – disciplinary proceedings – suspension pending investigation and hearing – employer
elected to suspend employee on full pay – not open to employer to subsequently change to suspension
without pay even if delays caused by employee’s decision to bring proceedings on review
Takawira v UZ HH-907-15 (Tsanga J) (Judgment delivered 20 November 2015)
The applicant, an employee of the respondent, had been suspended by the Vice-Chancellor with pay pending an
investigation into allegation of misconduct. At the disciplinary hearing, the applicant had objected to the
composition of the disciplinary committee because of the likelihood of bias, as the committee was made up of
subordinates to the Vice-Chancellor who was the complainant. When her application for recusal was rejected,
she filed an application for review in the Labour Court and an application with the High Court for an order
staying any further disciplinary hearings until the review in the Labour Court was finalised. The ViceChancellor then notified the applicant that she was now being suspended without pay until the matter was
finalised. The applicant brought the present application for interim relief, that her pay be reinstated, and a final
order that the respondent’s purported variation of the terms of her suspension be declared unlawful.
The respondent argued that the applicant was causing the delay and could not expect to be paid when not
working.
Held: the fact that the applicant would not be working pending finalisation of the review matter was not the
point. The point was that the election to suspend with pay was made at the time of suspension. The fact that the
applicant had lodged a review application of the disciplinary committee’s dismissal of her request for its recusal
could not be used against her to reverse the clear choice that had been made by the employer regarding the terms
of the suspension. While the prolonged hearing might indeed give the impression that she would be now on a
prolonged paid holiday, it was the respondent who made the choice to remove her from the work environment in
the initial instance. Indeed, from the factual averments filed, it was unclear why she needed to be investigated
and suspended from work. She could not be penalised for having made that complaint by suspending her
without pay when she had already been told that her suspension was with pay. The fact that her complaint
prolonged the matter was neither here nor there.
Employment – dismissal – constructive – what must be shown – requirement for employee to act
promptly – failure to do so indicating election to continue in employment – employee – transfer of to
another town – employer’s right to transfer employees – need for employee to show good cause why
should not be transferred
Rainbow Tourism Group v Nkomo S-47-15 (Ziyambi JA, Garwe & Hlatshwayo JJA concurring) (Judgment
delivered 27 July 2015)
The respondent was “head hunted” by the appellant and appointed as general manager of the appellant’s leading
hotel in Harare. He was initially appointed, at the beginning of 2011, for a three month probationary period; the
letter of appointment stated that he would then be on a 5 year “executive employment” contract, which was to
be negotiated. In the event, this contract was never negotiated and the respondent became an employee on a
contract without limit of time. Within the first year of his employment, an audit team reported violations of the
respondent’s motor vehicle loan scheme and other irregularities. When tasked with these, the respondent did not
reply directly, but complained about his conditions of services. Nonetheless, he continued in service, but in
August 2012 the appellant expressed its dissatisfaction with the respondent’s performance, as the hotel was
running at a loss instead of the expected profit.
Despite the concerns expressed, the situation did not change, and the appellant told the respondent in late
November 2012 that it proposed to transfer him to a hotel at Victoria Falls, at the same salary and remuneration,
to expose him to the operation of a resort hotel. The following day, the respondent’s legal practitioners wrote to
the appellant, saying that the respondent had been specifically appointed as general manager of the hotel in
Harare and that no provision was made therein for transfer within the group. In addition the appellant, it was
alleged, was aware that the respondent’s wife required specialist medical care and facilities which were not
available in Victoria Falls. Accordingly, the respondent could not accept the transfer. The appellant replied that
its assessment of the business was such that there was need for the transfer and that the respondent would be
required to transfer on 1 January 2013. Reference was made to the respondent’s conditions of employment
which it was said were contained in a booklet referred to the respondent’s letter of appointment.
The respondent lodged a claim of constructive dismissal with a labour officer and the matter was referred to
arbitration. He did not report for duty on 1 January 2013 and the appellant notified the respondent of a
disciplinary hearing for being absent without leave for 5 days or more. His legal practitioners said that he had
ceased to be an employee because he was constructively dismissed, and the respondent did not attend the
hearing. At the hearing, the respondent was found guilty of misconduct and invited to tender submissions in
mitigation. The arbitration hearing took place subsequently, and the arbitrator ordered the respondent’s
reinstatement. The Labour Court upheld the arbitrator’s award.
The main issue on appeal to the Supreme Court was whether the respondent was constructively dismissed in
terms of s 12B(3) of the Labour Act [Chapter28:01], on the basis that the appellant deliberately made continued
employment intolerable for the respondent. The appellant took the stance that the respondent had remained in
employment and had drawn a salary up to the end of January 2013, and that like all other executive employees,
was bound by the transferability clause in the code of conduct governing the appellant and its employees. The
respondent contended that because he was not given the booklet referred to in the letter of appointment, he was
not bound by its terms and was not transferable.
Held: (1) the letter of transfer stated in clear terms why the respondent was being transferred. In view of the
respondent’s failings, the appellant might have been justified in terminating the employment contract on notice,
but chose transfer instead. There being no reduction of benefits, there was nothing to make the respondent’s
continued employment intolerable. Since the respondent’s employment contract had become one without limit
of time, he was bound by the general rules of transferability in the organization. Since no further contract was
negotiated, there could not be read into that contract an appointment to a specific post, for a specific period and
at a specific place only.
(2) The right to transfer an employee from one place to another is the prerogative of the employer. It is the
employer who knows better where the services of an employee are required. The employer’s discretion in
determining which employee should be transferred and to which point of the employer’s operations is not to be
readily interfered with except for good cause shown.
(3) The respondent was the general manager of the Harare hotel and it was childish to submit that he was
ignorant of the code because it was not given to him. In his position, he would have been responsible for
drawing the attention of subordinate employees to the code of conduct. It would be an affront to intelligence to
say that he remained, and was content to remain, blissfully unaware of its contents throughout the period of his
employment with the appellant which spanned two years. The same would apply to any code applicable to
executives if that were applicable to the respondent.
(4) There was nothing in the record, either of the respondent’s recruitment or in his employment with the
appellant, to suggest that the respondent’s wife was an invalid and, still less, that the appellant was aware of it.
In any event, unless his contract specifically provided (which it did not) for his employment in Harare and
nowhere else, because of his wife’s medical condition, that condition could not restrict the appellant in the
exercise of its right to transfer the respondent as it deemed fit. The respondent, as an employee, was bound by
the transferability clause in the appellant’s code of conduct. Any difficulties which he had with the transfer
should have been discussed with the appellant when he was given an opportunity to do so. Instead, when asked
for his views, he chose to correspond through legal practitioners. The respondent had not discharged the onus of
showing that the appellant’s conduct was such that it made his employment with the appellant intolerable.
(5) Where an employer commits a breach which goes to the root of the employment contract the employee is
entitled to treat himself as discharged from further performance. He is constructively dismissed. However, he
must act promptly. If he continues for any length of time without leaving, he will lose his right to treat himself
as discharged. He will be regarded as having elected to affirm the contract. The respondent did not leave at the
instant nor did he give notice and say he would be leaving at the end of the notice. He continued to attend at
work and to do as he was instructed in the letter of transfer. He continued to receive his salary and benefits right
up to the end of January 2013. His was not the conduct of one constructively dismissed. He was properly
dismissed for absenteeism. The appeal would be allowed.
Employment – dismissal – grounds for – breach of conduct of conduct – disclosure by employee of
confidential company information without authority – employee a member of workers’ committee and
disclosing such information during reconciliation proceedings – employee’s first duty is to employer –
status as member of workers’ committee not exempting him from duty to comply with code of conduct
Chidembo v Bindura Nickel Corp Ltd S-35-15 (Gwaunza JA, Hlatshwayo JA & Mavangira AJA concurring)
(Judgment delivered 2 July 2015)
The appellant was employed by the respondent and was chairman of a workers’ committee. He was dismissed
from employment for disclosing confidential information during conciliation proceedings. The code of conduct
provided that “Information with respect to any confidential product, plan or business transaction of the group, or
personal information regarding employees, including their salaries, or any business information must not be
disclosed by any employee unless and until proper authorisation for such disclosure has been obtained”. In the
course of the conciliation proceedings, which were attended by both employer and employee representatives, a
request was made to the appellant who was present as the workers’ committee chairman, for a list, if he had it,
of employees affected by alleged salary anomalies. The appellant duly submitted the list, except that it showed
employees’ salaries, in addition to their names. His defence was that the information was disclosed during a
lawful conciliation hearing and in the appellant’s capacity as a worker representative, not as an employee. This
was done as a bona fide step to prove the workers’ case. It was not an act done in the normal course and scope
of the contract of employment of the appellant. Since the disclosure of the list was clearly done in the pursuit of
the employees’ interest, it was lawful.
Held: The distinction between confidential information required by an individual worker and that required by a
workers’ representative is a useful and indeed critical one, but it was questionable whether divulging of such
information would nevertheless be lawful, even if it is done in blatant violation of an express provision of the
code of conduct. In spite of his position as chairman of the workers’ committee, the appellant was an employee
of the respondent, to whom at all times he bore the duty of trust and loyalty. His conduct in relation to the
respondent was regulated and governed by the code of conduct. An act of misconduct committed by a worker
outside the workplace and in his (also work related) capacity as a workers’ committee member would be
unlawful as long as it impacted directly on the employer’s private interests and, in addition, constituted a
violation of the employer’s code of conduct. A worker’s status as a workers’ committee member would not
clothe him with a cloak of immunity against misconduct charges. The appellant’s status as a workers’ committee
chairman did not turn what was unlawful into a lawful act. His conduct became unlawful the moment he
disclosed the information without the authority of the respondent.
Employment – dismissal – grounds for – conduct inconsistent with the fulfilment of the express or implied
conditions of his employment – penalty – employer’s general discretion as to whether to dismiss employee
guilty of such conduct – when appeal court may interfere – conduct causing no real prejudice – dismissal
unreasonable – appeal court entitled to interfere
Celsys Ltd v Ndeleziwa S-49-15 (Gwaunza JA, Hlatshwayo & Patel JJA concurring) (Judgment delivered 29
July 2015)
The respondent was employed by the appellant as a stores foreman. He ordered some sheet board for the
appellant, but the supplier sent board of a smaller size. The respondent altered the copy of the receipt voucher to
reflect the size actually received. This was contrary to the appellant’s standard operating procedures, which
required that defective goods be returned to the supplier. The respondent did not tell the relevant machine
operator about the incorrect size of board; the operator reported the matter to the respondent’s superiors, who
took the view that the respondent had, by altering the voucher, been trying to conceal his defective work or
inefficiency. He was charged with an act or omission inconsistent with the fulfilment of the express or implied
conditions of his employment, found guilty and dismissed. A domestic appeal failed, but the national
employment council for the industry ruled that dismissal was too harsh and ordered his reinstatement, coupled
with a monetary penalty. The Labour Court upheld the NEC’s finding.
The respondent did not deny the charge but argued that the penalty was too harsh. He said that the reason for
acting as he did was to clarify the real position for accounting purposes, so that the appellant would not pay
more than it needed to.
The issues on appeal were whether the appellant exercised its discretion reasonably in dismissing the
respondent, and whether the Labour Court was correct in interfering with that discretion.
Held: (1) it is well established that the court will not interfere with the discretion of an employer to dismiss an
employee found guilty of misconduct, provided that the alleged misconduct goes to the root of the employment
contract, unless there has been misdirection or unreasonableness on the part of the employer. In the absence of a
misdirection or unreasonableness on the part of the employer in arriving at the decision to dismiss an employee,
an appeal court will generally not interfere with the exercise of the employer’s discretion.
(2) The standard operating procedures required the respondent to act in a certain way when a wrong order was
delivered. To that extent and notwithstanding what the respondent considered, on his own, to be the best way to
rectify the error, he clearly acted contrary to the express or implied conditions of his contract of employment.
Such conduct is generally regarded as going to the root of the employment contract. Where an employer takes a
serious view of an employee’s misconduct, it has a clear discretion as to what penalty to impose after finding
such employee guilty of the misconduct in question.
(3) Here, though, the misconduct in question, having been committed for the reasons given by the respondent,
and not having caused the appellant any real prejudice, financial or otherwise, was so trivial, so inadvertent, so
aberrant or otherwise so excusable, that the remedy of summary dismissal was not warranted. The appellant
acted unreasonably in dismissing the respondent from employment, and therefore misdirected itself, so entitling
the NEC and the Labour Court to interfere.
Employment – dismissal – unfair – fixed term contract – dismissal at conclusion of contract – dismissal
not in terms of employment code – only unfair if employee had legitimate expectation of re-engagement
and another person was engaged instead – damages in lieu of reinstatement – time within which dismissed
employee could reasonably expect to find employment – evidence essential
Diamond Mining Corp v Tafa & Ors S-70-15 (Ziyambi JA, Gowora & Bhunu JJA concurring) (Judgment
delivered 16 October 2015)
The respondents had been engaged by the appellant on fixed term contracts. Two weeks before the expiry of
their contracts, they were relieved of their duties and paid their terminal benefits, including notice pay, cash in
lieu of leave and their salaries for the last month of service. They brought proceedings alleging unfair dismissal
and seeking reinstatement without loss of salary or benefits. The matter went to arbitration, and the arbitrator
found that the respondents had not been dismissed in terms of a code of conduct. He found their dismissals to be
unfair and ordered the payment of various sums of money. The Labour Court, on appeal, held that the dismissals
were not in terms of a code of conduct and were ipso facto unfair. It held that the respondents were entitled to
damages for a period of twelve months.
Held: (1) the notice given to the respondents was in compliance with the provisions of s 12(4)(d) of the Labour
Act [Chapter 28:01]. All that was owed to the respondents at the time of the termination of the contracts was
payment for the unexpired portion of their contracts and any benefits which may have accrued to them by virtue
of the conditions of their employment.
(2) Not every termination of employment made outside a code of conduct is, in terms of the Act, unfair.
Although under s 12B(2), an employee is unfairly dismissed if the employer fails to show that the employee was
dismissed in terms of a code of employment, but this is subject to subs (3). In the case of a fixed term contract,
the dismissal is unfair only if the employee had a legitimate expectation of being re-engaged and another person
was engaged instead of the employee. The respondents, not having alleged or established that the provisions of
subs (3) were applicable in their circumstances, consequently failed to establish that they were unfairly
dismissed. The Labour Court therefore erred in upholding the arbitrator’s finding that the respondents were
unfairly dismissed.
(3) No evidence was led by the respondents before the arbitrator of the details of their claims for overtime and
terminal benefits. There were, however, before the arbitrator, the letters of termination signed by the
respondents and containing detailed calculations of the terminal benefits awarded to, and accepted by, them.
What the respondents did was simply to set out what they believed was owing to them. The arbitrator ought to
have heard evidence in support of the claims because the onus lay on the respondents to establish them.
(4) With regard to the award of damages by the Labour Court, since the respondents were not unfairly dismissed
they had no claim against the appellant who had already paid them all that they were lawfully entitled to.
Secondly, the Labour Court could not, without hearing evidence, arbitrarily decide how long it would
reasonably take the respondents to find employment. This was a matter on which the Labour Court was required
to hear evidence from both parties, after which it could arrive at a conclusion based on that evidence.
Employment – dismissal – wrongful – damages in lieu of reinstatement – assessment of – evidence – need
for tribunal to have evidence to show when employee could reasonably have expected to find alternative
employment
Delta Beverages (Pvt) Ltd v Murandu S-38-15 (Gwaunza JA, Hlatshwayo JA & Chiweshe JJA concurring)
(Judgment delivered 2 July 2015)
The respondent was employed by the appellant company and had been suspended from work in 2000 for alleged
misconduct. A labour officer found that there were no grounds for the respondent’s dismissal and ordered his
reinstatement, alternatively that he be paid an agreed exit package is cash in lieu of reinstatement. A dispute
arose over the payment and quantification of the damages. The matter was heard by an arbitrator, who died
before it was resolved. In 2011 it was placed before another arbitrator who, in 2012, ordered back pay from the
date of suspension until the date of reinstatement. He also ordered 36 months’ salary as damages in lieu of
reinstatement. The total amount was denominated in local currency, which was in use at the time of the
respondent’s dismissal. The arbitrator then converted the amount to US dollars, at the official rate that prevailed
at the time. The Labour Court upheld the arbitrator’s award. On appeal to the Supreme Court, the appellant
argued that (1) there was no evidence in the record to support the arbitrator’s award of 36 months’ salary; and
(2) the respondent was not entitled to damages and back pay in US dollars, when the lawful currency at the date
the order of reinstatement or payment of damages was made (July 2002) was Zimbabwe dollars, and, when the
cause of action arose, and the alleged damages were suffered, the Zimbabwe dollar was the currency in use. The
appellant did not take issue with the award, per se, of back pay and damages to the respondent. Its main concern
was with on the period of 36 months awarded in terms of damages and the conversion of both amounts from
Zimbabwe to United States dollars. The arbitrator had held that considering his age, health and qualifications,
the respondent could have obtained reasonable alternative employment within 36 months. No evidence was led
before the arbitrator was to the respondent’s age, health and qualifications, though the Labour Court assumed
that the arbitrator would have received evidence.
Held: (1) the arbitrator erred by awarding the respondent 36 months’ salary as damages in lieu of reinstatement
without hearing any evidence as to his age, health and qualifications. The Labour Court, being none the wiser
concerning whether or not the arbitrator had direct knowledge of these issues, resorted to speculation. There was
no basis for the court to make, much less rely on, this particular speculation. Even assuming that the court’s
speculation was correct – that the arbitrator must have had before him the details in question – this did not
absolve the court from its obligation to assess the evidence in question and satisfy itself that the decision of the
arbitrator was justified on such evidence. The Labour Court, as an appellate court, abdicated its responsibility in
this respect.
(2) The arbitrator compounded his error by not, additionally, considering other factors normally taken into
account in making assessments of this nature. Specifically, he did not consider whether or not the respondent
made any effort to mitigate his loss, nor the economic environment prevailing in 2002 and the prospects, if any,
that such environment offered in terms of alternative employment. He should have heard evidence as to how
long it would reasonably take a person in the position of the dismissed employee to find alternative
employment.
(3) The respondent took no effort to secure alternative employment, but simply decided to settle into a life of
subsistence farming. He therefore neglected to discharge the duty, as was incumbent upon him, to mitigate his
loss.
(4) The court could take judicial notice of the fact that in 2002 the prospects of obtaining alternative
employment were much better than four years later, when the economic meltdown of the country began. The
respondent could, if he had wanted, found alternative employment in a much shorter period than the 36 months
assessed by the arbitrator. Six months’ salary would have adequately compensated him.
(5) The Labour Court, as a court of equity, is the only court vested with jurisdiction to compute and convert of
various Zimbabwe dollar amounts into US dollars. Not being vested with such jurisdiction, the arbitrator fell
into an error of law by seeking to convert the back pay, benefits and damages awarded to the respondent from
Zimbabwe dollars into US dollars. The arbitrator compounded his error by settling on a conversion rate whose
validity was in doubt. Equity would demand that a formula be found to give effect to the employee’s entitlement
to payment of, and the employer’s obligation to pay, the debt in question. Failure to award him the damages in a
currency that would realistically compensate him for the harm suffered would undermine the Labour Act’s
purpose of advancing equity, social justice and democracy at the workplace.
Editor’s note: Madhatter Mining Co v Tapfuma S-51-14 is summarised in the summaries for 2014 (2), and will
appear in the Law Reports for that period.
Employment – employee – who is – distinction between employee, agent and independent contractor –
tests – control and supervision – liability of employer for delicts of servant but not for those of agent or
contractor – contractor not able to bind employer in contract
Masango & Ors v Kenneth & Anor S-41-15 (Gwaunza JA, Gowora & Patel JJA concurring) (Judgment
delivered 20 July 2015)
The difference between an agent and an independent contractor is that an agent is bound to act in the matter of
the agency subject to the directions and control of the principal, whereas an independent contractor merely
undertakes to perform certain specified work, or produce a certain specified result, the manner and means of
performance of production being left to his discretion, except as far as they are specified by the contract. This
distinction cannot be ignored, because the contract between master and servant is one of letting and hiring of
services (locatio conductio operarum), whereas the contract between the principal and a contractor is the letting
and hiring of some definite piece of work (locatio conductio operis). In the former case the relation between the
two contracting parties is much more intimate than in the latter, the servant becoming subordinate to the master,
whereas in the latter case the contractor remains on a footing of equality with the employer. The crucial
difference between these two cases lies in the fact that where a master engages a servant to work for him the
master is entitled under the contract to supervise and control the work of the servant. He is entitled at any time
to order the servant to desist, and if the matter is sufficiently serious may even dismiss him for disobedience.
“Control” in this context includes the right of an employer to decide what work is to be done by the employee,
the manner in which it is to be done by him, the means to be employed by him in doing it, the time when and the
place where it is to be done by him. Supervision implies the right of the employer to inspect and direct the work
being done by the employee.
An independent contractor is his own master, free of his employer’s control and representing no one else, when
performing the obligations he is called to perform under the contract which he has entered into with his
employer, such obligations not being those of contracting legal relations with third parties on behalf of his
employees.
A principal is liable for the delict of his agent where such agent is a servant, but not where he is a contractor or
sub-contractor or their servant. Similarly, an agent has authority to bind his principal in contract whereas the
independent contractor has no such power.
Remuneration by commission, although not by itself decisive, is a strong indication against a relationship of
master and servant.
The fact that the principal provides a motor vehicle is not in itself proof that the agent is a servant.
Judgment of MAFUSIRE J in Masango v Farmers’ Commodity Stock Exchange (Pvt) Ltd & Related Cases 2013 (2)
ZLR 163 (H) upheld.
Employment – Labour Court – appeal to – cannot be changed to review by court without hearing
submissions by parties
Triangle Ltd v Sigauke S-52-15 (Ziyambi JA, Hlatshwayo JA & Mavangira JA concurring) (Judgment delivered
18 August 2015)
The respondent had been found guilty of theft and dismissed by his employer, the appellant, after a disciplinary
hearing in terms of the company’s code of conduct. His appeal to the Labour Court was successful and it
ordered a new trial within 30 days, failing which he must be reinstated by the employer. The appeal had been
grounded on the fact that the disciplinary committee which heard his case was chaired by the departmental
manager who had carried out the investigation, constituting an irregularity as he was an interested party. The
appellant appealed against the Labour Court’s ruling.
The appellant argued that there had been no irregularity since the hearing by the same person who carried out
the investigation was provided for in the code of conduct. Nevertheless the Labour Court found that there was
an irregularity and allowed the appeal, ordering the retrial. However, where there is an irregularity the correct
procedure is to follow a review process, not an appeal. The Labour Court in effect converted the appeal into a
review process, but did so not before or during the hearing, but afterwards, when making its judgment. This did
not allow for the parties to make submissions on the change of process. The appellant also raised further
objections to the improper content of the Labour Court’s order, and claimed that it erred in not bringing the
matter to finality when it had in fact found that on a balance of probabilities the theft had been committed. The
respondent claimed that r 12 of the Labour Court Rules in effect allows for informality and setting aside of the
rules, hence the Labour Court’s approach was acceptable.
Held: the Labour Court is bound by rr 15 and 16 which provide for appeals and reviews respectively. It has no
general power to dispense with its own rules. Rule 26 allows it to dispense with rules before or during a hearing,
not after the hearing is concluded. The Labour Court’s conduct in proceeding to convert the appeal into a
review, and doing so after the hearing, was not supported by and was therefore ultra vires its powers as set out
in the Act and Rules. The failure to allow submissions from the parties before its decision to convert the appeal
to a review was an infringement of natural justice. (MN)
Employment – Labour Court – appeal to – from decision of arbitrator – appeal only lying on point of law
– appeal relating to facts – what must alleged in grounds of appeal – not essential to allege that
misdirection on facts is so unreasonable that no sensible person could have reached impugned conclusion
– necessary that grounds of appeal are disclosed in clear and concise manner
Zvokusekwa v Bikita RDC S-44-15 (Garwe JA, Ziyambi & Hlatshwayo JJA concurring) (judgment delivered 22
July 2015)
See above, under APPEAL (Labour Court appeal to – from decision of arbitrator).
Employment – Labour Court – application of equitable principles – court’s duty to secure equity and
social justice – debt owed in currency no longer in use – court having jurisdiction to find formula to give
effect to employee’s entitlement
Delta Beverages (Pvt) Ltd v Murandu S-38-15 (Gwaunza JA, Hlatshwayo JA & Chiweshe JJA concurring)
(Judgment delivered 2 July 2015)
See above, under EMPLOYMENT (Dismissal – wrongful).
Employment – misconduct – penalty for – misconduct going to root of relationship – employer entitled to
dismiss employee – extent to which appeal tribunal may interfere with such penalty – need for
misdirection to be shown
Carnaud Metal Box v Ruzvezve S-56-15 (Ziyambi JA, Gowora & Mavangira JJA concurring) (Judgment
published 18 November 2015)
The respondent had been dismissed by the appellant’s disciplinary committee for misusing company property.
He had, without permission, brought his own material to be worked on with the company’s machines. He
appealed, successfully, to the appeals committee of the general engineering committee of the industry, having
raised mitigating factors such as his length of service. The appeals committee reduced the penalty. The appellant
appealed to the Labour Court, arguing that the appeals committee had substituted its own penalty without having
made a finding of of misdirection, gross unreasonableness or unfairness on the part of the employer which
finding would justify its interference with the penalty imposed. The Labour Court took the view that the
determination of the appropriate penalty was within the discretion of the appeals committee and gratuitously
added additional relief not prayed for by the respondent. These included damages for wrongful dismissal.
On appeal to the Supreme Court, four issues were raised: (1) whether the Labour Court erred in upholding the
appeals committee’s decision to interfere with the penalty; (2) whether the respondent’s length of service and
proximity to retirement were special circumstances justifying the reversal of the dismissal; (3) whether the
Labour Court erred in dealing with the issue of damages; and (4) whether the appellant could have been ordered
to pay damages when no quantification had been done.
Held: (1) the Code of Conduct prescribed a penalty of dismissal for the misconduct in respect of which the
respondent was found guilty. The employer took the view that the respondent had committed a serious offence
warranting dismissal. An employer is entitled, upon conviction of an employee of misconduct which goes to the
root of their relationship, to dismiss him. There is no fixed rule of law defining the degree of misconduct which
will justify dismissal. There may be conduct in a servant which will not justify the determination of the contract
of service but misconduct inconsistent with the fulfillment of the express or implied conditions of service will
justify dismissal. The decision as to what penalty must be imposed on an employee found guilty of misconduct
is in the discretion of the employer, who is the first tribunal in disciplinary proceedings. The Labour Court’s
finding that the discretion lay with the appeals committee was a misdirection, which led to the failure by that
court to properly consider the real issue before it: whether the appeals committee had properly interfered with
the penalty imposed by the employer in the exercise of its discretion. The appeals committee gave no reason for
its interference with the penalty imposed, save that it considered the length of his service and other mitigating
factors which factors had been considered by the disciplinary committee. It identified no misdirection on the
appellant’s part in imposing the penalty that it did. Sitting as an appellate tribunal, it could not interfere with the
exercise by the appellant employer of its discretion to dismiss the respondent. In so doing it erred in law, as did
the Labour Court in upholding the appeals committee’s decision.
(2) While s 12B(4) of the Labour Act [Chapter 28:01] requires an adjudicating authority to consider mitigating
factors such as length of service in determining whether action other than dismissal is justified, this does not
give unbounded licence to the courts to alter a punishment of dismissal imposed by an employer in a proper
exercise of its discretion. To do so would be to depart from all established legal principles in terms of which an
employer cannot be obliged to employ someone with whom he can no longer maintain an employer employee
relationship. It would deprive the employer of its discretion as to the appropriate penalty to be imposed in any
given case; and invite chaos in the area of employment law. That cannot have been the intention of the
legislature.
(3) The issue of damages was not before the Labour Court. Accordingly, once it upheld the appeal the only
competent order was one of reinstatement on the terms ordered by the appeals committee, with an alternative
order of damages in lieu of reinstatement. Thereafter, the parties could, if they so wished, approach the court for
quantification of the damages in lieu of reinstatement after the hearing of evidence. The question of the
retirement of the respondent being a contentious one, it was necessary that evidence be led to enable the court to
make a proper determination on the quantum of damages payable in lieu of reinstatement.
Employment – termination – on notice – not a breach of Labour Act – common law right to terminate
employment on notice not limited or abolished
Nyamande & Anor v Zuva Petroleum (Pvt) Ltd (1) S-43-15 (Chidyausiku CJ, Gwaunza, Garwe, Hlatshwayo &
Guvava JJA concurring) (Judgment delivered 17 July 2015)
The appellants’ employment was terminated on notice, as provided in their contracts of employment, and were
paid cash in lieu of notice. An arbitrator considered that the termination was unlawful because it had not been in
terms of a code of conduct, but the Labour Court allowed an appeal by the respondent, the employer. It held that
neither s 12(4) nor s 12B of the Labour Act [Chapter 28:01] abolished the employer’s right to terminate
employment on notice. On appeal to the Supreme Court, it was agreed that at one time both the employer and
the employee had a common law right to terminate an employment relationship on notice.
Held: (1) That common law right in respect of both the employer and the employee could only be limited,
abolished or regulated by an Act of Parliament or a statutory instrument that is clearly intra vires an Act of
Parliament. It is also a well-established principle of statutory interpretation that a statute cannot effect an
alteration of the common law without saying so explicitly. Applying the golden rule of statutory interpretation –
that words be given their primary meaning – there were no words in s 12B of the Act that either expressly or by
necessary implication abolished the employer’s common law right to terminate an employment relationship by
way of notice. Section 12B, as the main heading of that section reveals, deals with dismissal and the procedures
to be followed in those instances where an employment relationship is to be terminated by way of dismissal
following misconduct proceedings. The section also sets out in some detail what constitutes unfair labour
practice, which it outlaws. Termination of employment on notice is not among the conduct that s 12B of the Act
outlaws as unfair labour practice.
(2) Section 8 of the Act sets out in some detail conduct that is outlawed as unfair labour practice. Termination of
employment on notice is not among the conduct outlawed by s 8.
(3) Section 12B deals with the method of termination of employment known as “dismissal”. While dismissal is
one method of termination of employment, it is not the only method; it is one of several methods of terminating
employment. Another is retrenchment. Where the relationship between the employer and the employee has
deteriorated to untenable levels through no fault of either party the relationship can be terminated. Section 12B
of the Act does not deal with the general concept of termination of employment. It concerns itself with
termination of employment by way of dismissal in terms of a code of conduct. It sets out that which must be
followed or done in terms of either an employment code of conduct or a national code of conduct. It does not
concern itself with termination of employment by ways other than dismissal.
(4) Section 12(4) deals with the concept of termination of employment on notice in terms of a contract of
employment. It regulates the period of notice, setting out the time periods that apply when employment is being
terminated on notice. The notice periods do not apply when an employee is dismissed, as in such event no notice
is required. Section 12(4) explicitly applies to both the employer and the employee. There was no possible
reason why, despite the explicit language of the section, it should apply to the employee only and not to the
employer; or why the section should exist to regulate a non-existent right. The subsection could only have
meaning if there was a substantive right, in this case the common law right to terminate employment on notice,
to which it pertained. This is especially so when one considers that all that s 12(4) does is to facilitate the
exercise of an existent common law right.
Editor’s note: s 12 of the Act was amended by Act 5 of 2015 (which came into effect on 26 August 2015, but with
retrospective effect to 17 July 2015, the date of this judgment) to state that no employer shall terminate a contract
of employment on notice except where (a) the termination is in terms of an employment code; or (b) both parties
mutually agree; or (c) the contract is for a fixed duration or for the performance of some specific service; or (d)
pursuant to retrenchment. An urgent application by the employees to appeal to the Constitutional Court was
dismissed on 1 August on the grounds of lack of urgency and because there was no right to appeal from a
decision of the Supreme Court, no constitutional issues having been placed before that court.
Other litigation as to the effect and constitutionality of the amendment is pending.
Employment – wrongful dismissal – damages in lieu of reinstatement – punitive damages – when may be
awarded – untenable employment relationship – such untenability arising from unlawful dismissal –
quantum of punitive damages – evidential basis must exist for figure awarded – award of punitive
damages in addition to damages in lieu of reinstatement – not permissible
Mvududu v ARDA S-58-15 (Patel JA, Malaba DCJ & Gwaunza JA concurring) (Judgment delivered 20 October
2015)
The appellant was employed by the respondent as its CEO/general manager. A little over a year after his
appointment he was sent on special leave and three months after that was notified by the respondent that it had
decided to terminate his employment. The matter was then referred to an arbitrator, who found that the appellant
had been unlawfully dismissed and ordered his reinstatement with effect from the date of his purported
dismissal. Thereafter, negotiations for reinstatement having failed, the matter was again referred to the arbitrator
for quantification of damages in lieu of reinstatement. He ordered back-pay and benefits to the date of his first
award, cash in lieu of leave, 60 months’ salary as damages for loss of employment and 60 months’ salary as
punitive damages for failure to reinstate, together with interest. In awarding punitive damages, the arbitrator
sought to reinforce the primacy of reinstatement as the most appropriate remedy for unlawful dismissal. He
considered that the respondent had not given any cogent reason why reinstatement was not possible. This stance
could not be condoned and that was why he decided to award punitive damages over and above damages in lieu
of reinstatement, in order to protect the primary remedy of reinstatement from being eroded by errant employers
like the respondent.
On the question of reinstatement, correspondence between the parties’ legal practitioners showed that the
respondent opted to pay damages in lieu of reinstatement because there was an irretrievable breakdown of the
relations between the parties. The appellant’s legal practitioners, in a “without prejudice” letter, did not
challenge this assertion and indicated that the issue would be what damages should be paid. Three months later,
after other correspondence had been exchanged without reaching an agreement, the appellant reversed his
position and disagreed that reinstatement was not a viable option.
The appellant appealed to the Labour Court on several grounds pertaining to the question of his reinstatement,
the date of termination of his employment, his correct monthly salary and his entitlement to contractual benefits.
The respondent in turn cross-appealed, defending the propriety of its decision not to reinstate the appellant, and
challenged the arbitrator’s award of punitive damages and his failure to deduct certain amounts allegedly owed
by the appellant to the respondent. The Labour Court dismissed the appeal and partially allowed the crossappeal. It found, having regard to the relevant correspondence, that the possibility of reinstatement was not part
of the arbitrator’s mandate. It also set aside the arbitrator’s award of punitive damages.
On appeal to the Supreme Court, the grounds of appeal were largely identical to those before the Labour Court.
Held: (1) It was clear that the appellant had initially accepted the respondent’s election and taken the position
that his reinstatement was not in issue. He was content to proceed with the matter on the basis that his
entitlement to the payments due should be quantified, either by agreement or by arbitration. The fact that this
position was taken in a letter written without prejudice did not detract from its significance. The ambit of
protection from the admissibility of evidence conferred by the “without prejudice” rule is not unqualified. An
admission made in “without prejudice” correspondence is admissible where the facts sought to be established
thereby do not relate to the substance of the negotiations contained in such correspondence. Here, what was
being negotiated “without prejudice” by the parties was not the appellant’s reinstatement but his back-pay and
benefits and the quantum of damages payable in lieu of reinstatement. Further, the notice from the arbitrator
about the second arbitration was that the hearing would be about the quantification of damages in lieu of
reinstatement. Other notices from the arbitrator were to the same effect. The appellant’s legal practitioners did
nothing to disabuse the arbitrator or the respondent of the notion that quantification was the sole issue.
(2) Different considerations apply under provisos (ii) and (iii) to s 89(2)(c)(iii) of the Labour Act in determining
the untenability of the employment relationship in question. Where the question to be decided is whether to
award damages or reinstatement, the onus is on the employer to prove such untenability, taking into account the
size of the employer, the preferences of the employee, the situation in the labour market and any other relevant
factors. These criteria relate to the practicability of reinstatement and the continuation of the employment
relationship as assessed from an objective economic or commercial standpoint. However, once it is decided that
reinstatement is no longer feasible by dint of any one or more of the specified factors and that damages should
be awarded instead, the sole criterion to be applied is whether the untenable employment relationship arose from
the unlawful or wrongful dismissal of the employee by the employer. What is relevant at that stage is the
employer’s fault in the manner or circumstances in which he dismissed the employee and the extent of his
blameworthiness in causing the irretrievable breakdown of the employment relationship. It is only in this
situation that the question of punitive damages comes into play and where the discretion to award such damages
may be exercised in order to penalise the employer for his culpable conduct. Provisio (iii) does not envisage the
award of double damages, i.e. punitive damages in addition to damages in lieu of reinstatement. Rather, what
may be imposed is an award of damages in lieu of reinstatement that is punitive in nature and effect. In other
words, what is contemplated is a single award of punitive damages that exceeds what would ordinarily be
awarded as damages in lieu of reinstatement, i.e. in the absence of any aggravating circumstance occasioned by
the manner in which the employer dismissed the employee.
(3) Finally, there was no evidence produced to computing the punitive damages in the sum equivalent to 60
months’ salary. While damages need not be quantified with mathematical precision, there must be some
evidentiary basis for calculating damages, even if they be punitive damages.
Estate agents – discipline – striking off register for disgraceful conduct – reinstatement – no provision in
legislation allowing for reinstatement – power to reinstate could not be read into legislation
Stevenson v Estate Agents Council & Anor S-7-16 (Gowora JA, Ziyambi & Mavangira JJA concurring)
(Judgment delivered 2 October 2015)
The appellant was, in 1993, struck off the register of estate agents after having been found guilty of disgraceful
conduct by the first respondent, the Estate Agents Council. Her appeal against that penalty was dismissed and
the penalty upheld by the Supreme Court in 1996. In December 2014, the appellant applied to the Council to be
reinstated to the register, but the Council refused the application on the grounds that once a member has been
deregistered, he or she cannot be reinstated. An appeal to the Administrative Court failed, that court holding that
it had no jurisdiction to grant the order sought.
On appeal to the Supreme Court, the appellant’s counsel accepted that the Estate Agents Act [Chapter 27:17],
did not not confer power of restoration of an estate agent to the register of estate agents after deregistration, but
argued that the court a quo should have read that power into the Act since it was an obvious omission. He
submitted that the court should read into the Act a provision which enabled the appellant to be restored onto the
register of estate agents. The Act did not prevent reinstatement and, as a consequence, the court had the power
to restore the appellant onto the register. He argued further that it could not have been intended that, once an
estate agent had been deregistered, such deregistration was for all time. However, he accepted that for a court
do so would be tantamount to legislating for Parliament.
Held: whilst the Act provided for deregistration, it did not provide for a situation where an agent in the
appellant’s situation could be reinstated. It was not for the court to assume a power where none is provided for
in the enabling legislation. It was not within the province of the courts to legislate for Parliament, whose
intention is to be deduced from the clear wording of the statute. There was no an ambiguity in the relevant
sections providing for disciplinary actions and the sanctions attendant on a finding of guilt. Any suggestion that
the court should import provisions from statutes wherein the reinstatement of professionals in similar
circumstances as the appellant was provided for would be misplaced. If the legislature had intended to make
provision for deregistered estate agents to be reinstated on the register, it would have done so. It chose not to do
so and the court could not read into the Act what was not provided for.
Editor’s note: for the original Supreme Court judgment, see Mitchell v Estate Agents Council 1996 (1) ZLR 222
(S).
Evidence – cautionary rule – evidence of a trap – dangers inherent in relying on evidence of a trap –
evidence from police traps – temptation for such witnesses to ensure success of trap
S v Jecheche HH-781-15 (Hungwe J, Chiweshe JP concurring) (Judgment delivered 7 October 2015)
A “trap” has been defined as a person who, with a view to securing a conviction of another, proposes certain
criminal conduct to him, and ostensibly takes part therein. In other words, he created the occasion for someone
else to commit the offence. The concept of “trap” should not, though, exclude a person who did not propose the
criminal conduct but who, after someone else proposed it, participated in the planning and execution of the
proposed criminal offence with a view to convicting the offender.
The evidence of traps needs to be approached with caution, and there are dangers inherent in police trap cases.
They have every reason to ensure that the trap succeeds and could go to any extent to ensure this at the expense
of the truth. This may result in failing to resist the temptation to embellish evidence. The evidence of a police
trap should be treated with caution because such persons may have a motive in giving evidence which may
outweigh their regard to the truth. In the case of persons who have previously been convicted, trapping has the
undesirable feature that it puts temptation in the way of those least able to resist. In any case, such persons might
not have offended but for the fact that a trap was used.
Evidence – judicial notice – matters of which judicial notice may be taken – economic state of country
Delta Beverages (Pvt) Ltd v Murandu S-38-15 (Gwaunza JA, Hlatshwayo JA & Chiweshe JJA concurring)
(Judgment delivered 2 July 2015)
See above, under EMPLOYMENT (Dismissal – wrongful).
Evidence – privilege – document – written communication endorsed as being “without prejudice” –
admission made in such communication – admissible when facts sought to be established thereby do not
relate to substance of negotiations contained in such correspondence
Mvududu v ARDA S-58-15 (Patel JA, Malaba DCJ & Gwaunza JA concurring) (Judgment delivered 20 October
2015)
See above, under EMPLOYMENT (Wrongful dismissal)
Evidence – privilege – document – written communication endorsed as being “without prejudice” – when
may regarded as privileged – court’s discretion to admit such communication
Kazingizi & Anor v Equity Properties (Pvt) Ltd HH-797-15 Mathonsi J) (Judgment delivered 14 October 2015)
The plaintiffs, who were husband and wife, signed a written undertaking to enter into a sale agreement in
respect of a piece of land. The undertaking was countersigned by representatives of the defendant, a firm of
estate agents. The plaintiffs agreed to, and did, pay a deposit on the property. It was part of the undertaking that
the defendants undertook to repay any money paid with delay, if the agreement of sale did not eventuate. When
the defendant produced its standard agreement of sale, the plaintiffs did not agree with the terms. They decided
not to enter into the sale agreement and demanded a refund of their deposit. In reply, the defendant wrote a
“without prejudice” letter agreeing to refund the deposit within 90 days, in instalments. It paid back less than
half, in dribs and drabs, but when the plaintiffs brought an action, the defendant entered appearance to defend,
prompting the plaintiffs to seek summary judgment. The defendant asserted that it was not obliged to refund the
balance (a) because its “without prejudice” offer to refund was not accepted; (b) because the plaintiffs refused to
sign a cancellation agreement; and (c) because in the undertaking letter, the plaintiffs gave up any right to
negotiate the terms of the sale agreement and as such were bound by the standard agreement even though it was
never agreed. No direct claim was made to privilege except what was raised by the defendant’s counsel from the
bar.
Held: The expression “without prejudice” is often written across the face of a document or communicated
expressly to convey the message that the party communicating the document will not be prejudiced by the
subsequent communications which are conducted with a view to the settlement of a dispute. Parties who do not
know what they are doing or why they are doing it often inscribe the maxim on correspondence out of fear of
being held to account for what they would have communicated, but there would be no reason for a party who
accepts liability to refund money and is making a payment plan to then send the payment plan on a “without
prejudice” basis. Documents do not necessarily have to be marked “without prejudice” for them to be protected.
Conversely, merely labelling a document “without prejudice” does not necessarily confer any privilege on the
contents. What is important is whether the communication is considered privileged from an objective point of
view.
As a general rule, statements that are made expressly or impliedly on a “without prejudice” basis in the course
of bona fide negotiations for the settlement of a dispute will not be allowed in as evidence. The resolution of a
dispute with a genuine view to settlement appears to be the main consideration. If the settlement is thereafter
reached, the negotiations leading up to it should be available to the court since the whole basis of the nondisclosure would have fallen away. The parties to negotiations may also consent to the admission of “without
prejudice” communications. Exceptional circumstances, such as the use of such communications to prove
certain things, e.g., that it contains a threat, may permit a departure from the general rule.
It is always in the discretion of the court to determine whether to admit or not to admit without prejudice
communications. In exercising its discretion the court may remove the privilege attaching to such
communication if it deems that the admissibility of such communication is essential in proving certain things,
such as the credibility of a witness, or if it considers that the upholding of the privilege would be contrary to
public policy, for instance where the communication contains a threat or an act of insolvency.
There is nothing privileged in a payment plan. This one was a classical case for the removal of the privilege
attaching to the letter.
On the merits, the defendant did not even begin to set out any defence which, if established, would entitle it to
succeed. Where a person has two courses of action open to him, as the defendant had, to either refuse to refund
the money on lawful grounds or refund it, and he unequivocally elects to take one of them, he cannot afterwards
take the other course of action. The defendant agreed to repay. It commenced repayments. It must therefore
repay and could not be allowed to twist and turn. It simply had no defence to talk about.
Family law – child – guardianship and custody – when may be taken from biological parent and
transferred to another person – child’s best interests primary – parent neglecting children and their
welfare – appropriate to transfer guardianship and custody to relative who had taken care of them
Mukundu v Chigumadzi & Ors HH-818-15 (Uchena J) (Judgment delivered 15 September 2015)
The applicant sought an order granting her guardianship and custody of her late daughter’s two minor children.
She did so because she wanted authority to obtain a passport for one of the children, who had been granted a
scholarship to attend a college in Ghana.
The first respondent was their biological father, who had separated from their mother some 5 years before her
death and was now living abroad. He had remarried and had a child from the second marriage. After her
daughter’s death, the applicant looked after the children but had to seek the assistance of a charity to help pay
their school fees. The first respondent objected, on the grounds that he wanted the children to continue their
education in Zimbabwe and that he could fund it. The evidence was that he had done very little to support the
children and paid nothing in the way of maintenance or for education.
Held: (1) The disposition of a litigant is judged from his conduct as demonstrated by what he has done or not
done and not by what he promises to do in the future. The first respondent had in the past neglected his children
to the extent of their having to drop out of school until the applicant had to seek assistance. He neglected them
and their mother to the extent of denying them education, health care services, nutrition and shelter. He left them
in that condition until the applicant came to their rescue. He therefore has demonstrated his attitude towards his
children.
(2) Any determination which affects the rights of a child should be guided by the child’s best interests. This is
demanded by s 81(2) of the Constitution, as well as by international instruments, such as art 3 of the United
Nations Convention on the Rights of the Child and art 4 of the African Charter on the Rights of and Welfare of
the Child. The court as upper guardian of all minors, had a duty to adequately protect the rights of a child. In
appropriate cases the court may have to protect the children from harmful conduct by the child’s own biological
parent. The case was therefore not a contest between the applicant’s and the first respondent’s rights over the
minor children. It was about the best interests of the children.
(3) Section 81(1)(d) to (f) of the Constitution entitles every child to family or parental care, or to appropriate
care when removed from the family environment to be protected from economic and sexual exploitation, from
child labour, and from maltreatment, neglect or any form of abuse; and to education, health care services,
nutrition and shelter. These rights should be assessed in order to determine whether it would be appropriate to
grant custody and guardianship to the applicant. Ordinarily, custody and guardianship should be reserved for a
child’s biological parents, but s 81(1)(d) envisages circumstances which may lead to a child being removed from
the family environment. Here, the father’s neglect of the children and their welfare justified the removal of the
children from the custody and guardianship of the biological parent to that of the maternal grandmother who had
consistently been there for them and took care of their best interests.
Intellectual property – industrial designs – registration – who may apply for registration – trustees acting
as assignees of a trust – may apply for registration in name of trust
Mukono Family Trust’s Trustees v Karpeg Invstms (Pvt) Ltd & Ors HH-908-15 (Muremba J) (Judgment
delivered 25 November 2015)
The plaintiffs issued summons against the defendants, citing an infringement of intellectual property rights
registered in the name of the first plaintiff, a trust. The defendants filed an exception, saying there was no cause
of action as only persons in law could, in terms of s 8 of the Industrial Designs Act [Chapter 26:02], register a
design. A trust, they said, is not a legal person and, having no legal personality, could not be a person who could
seek and obtain registration of a design or any other trade mark or sign in terms of the Act or any other Act.
They submitted that the design in issue was registered in the name of a trust and not in the names of the trustees.
The plaintiffs argued that the wrong procedure was used by the defendants, who should have proceeded by way
of a special plea, not by way of exception.
Held: (1) A claim can be excepted to on the grounds that it is vague and embarrassing that the defendant does
not know what claim he has to answer or that it does not disclose a cause of action. An exception can be upheld
where a defendant admits the plaintiff’s allegation, but pleads that as a matter of law the plaintiff is not entitled
to the relief claimed by him. In an exception, the excipient is confined to the four corners of the pleadings. New
facts may not be introduced to make such a determination on whether or not the pleading is excipiable. Special
pleas are, on the other hand, established by the introduction of fresh facts from outside the circumference of the
pleading and these facts have to be established by evidence. Facts have to be placed before the court in order to
show that there is a defect. Here, the defect complained of was not apparent from the declaration. When the
defendants said the registration was a nullity because it did not comply with the provisions of the Industrial
Designs Act, it then became imperative for to look at the Act and see what it says about registration of designs.
On this basis alone, the exception should be dismissed.
(2) A trust is not a juristic person and has no corporate personality. It does not have a separate existence from
that of the trustees. Its property is therefore vested in the trustees as individuals. Nonetheless, it can own
property.
(3) Under s 9 of the Act, an application for the registration of an industrial design may be made by a person
claiming to be the proprietor of the design or an assignee. In the case of a trust, it is the trustees, as assignees of
the trust, who apply for the registration of designs in favour of the trust in terms of s 8. There is nothing in the
Act which prohibits the registration of designs in the name of a trust.
Interpretation of statutes – ambiguity or omission – power to read words into legislation where ambiguity
or omission exists – no ambiguity – court not entitled to legislate for Parliament by reading in words to
cover apparent omission
Stevenson v Estate Agents Council & Anor S-7-16 (Gowora JA, Ziyambi & Mavangira JJA concurring)
(Judgment delivered 2 October 2015)
See above, under ESTATE AGENTS (Discipline).
Interpretation of statutes – Constitution – Declaration of Rights – international instruments and treaties
– requirement for court to take such into account when interpreting Declaration of Rights – need for such
instrument to form part of law of Zimbabwe before court required to take it into account
Interpretation of statutes – meaning of words – international instruments – instrument not forming part
of law of Zimbabwe – no more than persuasive guide – cannot be used to override or negate clear
provisions of Act of Parliament
Simbi (Steelmakers) (Pvt) Ltd v Shamu & Ors S-71-15 (Patel JA, Garwe & Gowora JJA concurring) (Judgment
delivered 20 November 2015)
See above, under EMPLOYMENT (Contract).
Interdict – interim – requirements for – prima facie right – applicant seeking interdict preventing
disposal of property – applicant relying on as yet unregistered order of foreign court following divorce –
order awarding her property in Zimbabwe – respondent also claiming rights in property – interim
interdict granted pending litigation over property
Makoni v Makoni & Anor HH-820-15 (Mwayera J) (Judgment delivered 22 October 2015)
The applicant and the first respondent were a married couple. They had obtained a divorce in England, and a
decree nisi, which was later confirmed by the English Court, was granted. It was essentially for the dissolution
of the marriage and the transfer of all the immovable matrimonial assets in England and Zimbabwe to the
applicant, the wife. Among other properties, the respondent was to transfer all of his legal estates and beneficial
interest in all of a property in Harare. To protect the rights conferred by the decree nisi, the applicant sought an
interdict to stop the respondent from disposing of the property, as well as an interdict stopping the respondent
from transferring the property unless ordered by a court of competent jurisdiction. She also sought an interdict
barring the respondent from removing her belongings from the property without her written permission. At the
hearing she sought to amend the relief to reflect that she was not relying on a decree nisi but on a decree
absolute since the decree nisi had been confirmed at the time of hearing. She argued that she had a clear right by
virtue of the English court order.
The respondent opposed the application on the basis that the applicant failed to establish the requirements for a
final interdict. He also argued that no clear right existed or had been established, given that the applicant was
relying on an unregistered foreign court order, that order not having registered in Zimbabwe in terms of the
Civil Matters (Mutual Assistance) Act [Chapter 8:02]. He, in other proceedings, was seeking a declaratur in
respect of the property, to establish his rights over it.
Held: (1) before registration, which is at the discretion of the court concerned, there is no judgment to talk about
insofar as enforcement is concerned. However, there was an extant English court order. The facts of the matter
did not establish a clear right but a prima facie right, which emanated from the rule nisi which was confirmed by
the decree absolute of the English Court. Even in the absence of registration of that order or in absence of the
order, the applicant, by virtue of marriage to the respondent, would have a claim to the property in question. A
prima facie right, even if open to doubt, would work in favour of establishment of a right entitling the applicant
to an interim relief.
(2) Based on the normal requirements for the issue of an interim interdict, the applicant had established a prima
facie right to the property. Given the existence of the English court order and the pending litigation, the
applicant’s fears, that her rights would be detrimentally affected if an interim interdict were not granted, were
well founded. She need not wait for the harm to be occasioned. An interim interdict in the face of pending
litigation involving the property in question was the only available remedy which will avert injustice either way.
Such relief would preserve the rights of the parties until the rights were fully ventilated.
Interpretation of statutes – general principles – establishing meanings of words – applicability of general
rules to interpretation of constitutions – additional considerations in interpreting rights provisions in a
constitution
Chihava & Anor v Mapfumo NO & Anor CC-6-15 (Gwaunza JCC, Chidyausiku CJ, Malaba DCJ, Ziyambi,
Garwe, Gowora, Hlatshwayo & Guvava JJCC & Chiweshe AJCC concurring) (Judgment delivered 15 July
2015)
See above, under CONSTITUTIONAL LAW (Constitution of Zimbabwe 2013 – Constitutional Court).
Land – acquisition – offer letter – nature of letter – contract between State and offeree – dispute arising
out of withdrawal of offer letter – dispute to be determined by administrative law principles
Guild v Min of Lands & Ors HH-891-15 (Dube J) (Judgment delivered 18 November 2015)
See above, under ADMINISTRATIVE LAW (Review – grounds for).
Land – acquisition – preliminary notice of acquisition issued – notice not withdrawn in accordance with
requirements of legislation although acquiring authority abandoned attempt to confirm acquisition –
notice remaining in force – land subsequently included in Schedule 7 of 1980 Constitution – former owner
not entitled to order declaring acquisition unlawful – original owner a black Zimbabwean – not a reason
why land should not be acquired
Naval Phase Farming (Pvt) Ltd & Ors v Min of Lands & Ors HH-768-15 (Chigumba J) (Judgment delivered 30
September 2015)
The applicant companies were owned by the third applicant, a black Zimbabwean. He had acquired the
companies and the farms that the companies owned. The first respondent, the Minister of Lands, purported to
acquire the farms and to allocate them to the remaining respondents. The Minister then applied to the
Administrative Court for confirmation of the acquisitions, as was then required by law, but then withdrew the
applications. The court held that the effect of the withdrawal was to nullify the notices of acquisition. In spite of
this, the farms were later gazetted for acquisition and subsequently listed in Schedule 7 of the former
Constitution. Offer letters were thereafter issued to the second to fourth respondents.
The applicants sought an order declaring that the acquisition was invalid and ordering the ejectment of the
second to fourth respondents. They contended that; in order for the land reform programme to comply with the
provisions of the former and the current Constitution, it must not target the replacement of some indigenous
owners or settlers on agricultural land with others. Land reform must not be a tool of patronage or nepotism.
Agricultural land already owned or occupied by indigenous Zimbabweans could not be said to be land required
for resettlement purposes within the meaning of s 16A of the former Constitution as read with ss 72, 289 and
290 of the current Constitution of Zimbabwe.
Held: (1) section 16B(3) of the former Constitution precluded an aggrieved party from challenging in court the
compulsory acquisition of agricultural land. Further, once the land was listed in Schedule 7, its acquisition could
not be challenged by reference to the Land Acquisition Act. A litigant cannot challenge the fact of acquisition of
agricultural land on the basis of a perceived violation of rights conferred on the litigant by the Declaration of
Rights in Chapter III of the former Constitution, such as ss 18 and 23. However, the process of acquisition could
be challenged on the grounds that it was not in accordance with s 16B(2) of the 1980 Constitution, and it would
be necessary to determine whether the state of facts on the existence of which s 16 B (2) (a) provided that the
acquisition of agricultural land must depend, existed, in the circumstances of this case.
(2) For a spoliation order to be granted, it had to be shown that the the first respondent and/or any of the second
to fourth respondents deprived the applicants of possession forcibly and wrongfully. There was no admissible
evidence to controvert their denials of such wrongdoing. The issue that remained to be determined was whether,
the first respondent, by causing the listing of the applicants’ farms in Schedule 7 of the former Constitution, did
so wrongfully, such as to constitute dispossession of the applicants of their property, and to entitle them to a
spoliation order.
(3) A declaratory order, if issued, would not found a cause of action to evict the respondents. The applicants
would first have to show that the second to fourth respondents did not hold valid title which authorized them to
occupy the farms. Even then, it is only the Minister, pursuant to Schedule 7 of the former Constitution, who
could cancel the fourth to sixth respondents’ offer letters and offer the land to the applicants. If the court were to
declare that the acquisition of their farms was contrary to the stipulated procedure, the applicants would have to
approach the court again, on notice to the Minister, for an order de-listing their farms from Schedule 7. Such an
order would be subject to confirmation by the Constitutional Court, being an order which purportedly alters the
former Constitution in its Schedule 7. Having been found to have fallen short of establishing the requirements of
spoliation, the applicants were not entitled to restoration of the status quo ante, especially ten years later, as
spoliation is by its nature, a remedy which must be granted as a matter of urgency, to discourage litigants from
taking the law into their own hands. What remained to be seen is whether the applicants were entitled to the
declaratur that they were seeking.
(4) Under s 5(7) of the Land Acquisition Act, a notice of acquisition could be withdrawn by publishing a notice
in the Gazette and serving it on the persons on whom the notice had been served. This was not done, and the
withdrawal of the application for confirmation did in itself not result in the nullification of the preliminary
notice, which remained in force for ten years. The Administrative Court could have ordered the Minister to
withdraw the notice, but did not do so. The land remained validly identified in terms of s 5 of the Act and so
were duly itemised in Schedule 7.
(5) Neither the former nor the current Constitutions entrenched a policy that agricultural land must not be taken
away from a black African Zimbabwean and given to another black African Zimbabwean. It is not correct to say
that land that is already owned or occupied by “indigenous” (meaning black) Zimbabweans could not be said to
be land required for resettlement purposes within the meaning of s 16B of the former Constitution. The section
had no reference at all to race or colour. Whether acquisition and distribution of agricultural land is to continue,
from whom land is acquired and to whom it is allocated are questions for the executive and are not justiciable.
(6) The applicants had not produced sufficient or admissible evidence that the any of the respondents forcibly or
wrongfully deprived them of their farms, by threats, intimidation or violence or by wrongful application of the
law, whether in terms of the Land Acquisition Act or s 16B of the former Constitution. They were not entitled to
the declaratur that they sought. They lost all rights in the farms to the first respondent except the right to
compensation.
Legal practitioner – Prosecutor-General – control over prosecutors – authority to prosecute – when may
withdraw such authority – need to observe principles of natural justice and provisions of Administrative
Justice Act [Chapter 10:28]
Legal practitioner – public prosecutor – status of – delegate of Prosecutor-General – authority to
prosecute – when may be withdrawn – requirement for Prosecutor-General to observe principles of
natural justice and provisions of Administrative Justice Act [Chapter 10:28]
A-G v Mudisi & Ors S-48-15 (Patel JA, Malaba DCJ & Garwe JA concurring) (Judgment delivered 28 July
2015)
The respondents were public prosecutors employed as such by the Public Service Commission (now the Civil
Service Commission). They were assigned by the Commission to the Attorney-General’s Office (now the
Prosecutor-General’s Office). They were all members of the Zimbabwe Law Officers Association (the
Association) and were elected as office-bearers of its executive committee in July 2011. In September 2011,
acting under the auspices of the Association, the respondents, together with a majority of their colleagues,
resolved to embark on a work stoppage in order to redress their salary related grievances. The appellant wrote to
the respondents asking them to respond within 7 days to various allegations of unbecoming conduct not befitting
a law officer. The respondents, in a letter from the Association, purported to reply to some of the allegations, but
subsequently, through a letter from their current lawyers, challenged the legal basis for the appellant’s letter. His
reaction was to withdraw their authority to prosecute and, through his deputies, to direct them not to carry out
their duties as prosecutors, not to deal with any dockets in their offices, to vacate their respective offices and to
hand over their office keys. They complied, under protest, and brought an urgent application in the High Court
alleging that the appellant had breached their rights to administrative justice. The High Court held that the
Attorney-General had committed a material error of law by withdrawing his authority to prosecute and referring
the respondents to the Commission for further processing according to law. The proper procedure was to
suspend them pending a full inquiry, leading either to their discharge from the Commission or their full
reinstatement. Accordingly, the letter from the appellant to the respondents, as well as all the consequential
instructions issued by his deputies, were declared to be null and void and were set aside. The court ordered that
the respondents should be restored to their positions without any loss of rights.
On appeal, the appellant argued that the court a quo erred at law in nullifying the appellant’s letter withdrawing
the delegated prosecutorial authority given to the respondents. He also argued that the court erred at law in
nullifying the decision of his deputies to stop the respondents from carrying out their prosecutorial duties and
using their offices.
Held: (1) By virtue of s 11(1) of the Criminal Procedure and Evidence Act [Chapter 9:07], all public
prosecutors are charged with the duty of prosecuting in the magistrates courts to which they are attached. Proof
of such delegation is ordinarily evidenced by a certificate to prosecute signed and issued by the AttorneyGeneral. This is clearly recognised in s 180(1)(g) of the Act which enables every accused person to challenge
the authority of any prosecutor appearing at his trial, by pleading that he has no title to prosecute. It follows that
a certificate to prosecute is a legal requirement that extends to all public prosecutors. It constitutes formal
evidence of the Attorney-General’s delegated authority to prosecute and its withdrawal or expiry carries the
legal effect of terminating that authority. Section 76(5) of the Constitution empowers the Attorney-General to
exercise his prosecutorial functions under s 76(4) “through other persons acting in accordance with his general
or specific instructions”. This position is replicated in s 11(1) of the Criminal Procedure and Evidence Act
which designates public prosecutors as “representatives of the Attorney-General and subject to his instructions”.
Public prosecutors thus carry out their prosecutorial duties as delegates of the Attorney-General and in that
capacity are subject to his general or specific instructions. To put it differently, the Attorney-General, as the
principal repository of prosecutorial authority, is empowered to supervise, direct and instruct every public
prosecutor in the performance of his functions and, conversely, the latter is required to obey and comply with
every lawful order or instruction given by the former. In the event that a prosecutor fails to carry out his
mandate in accordance with any such order or instruction, the Attorney-General is entitled, subject to the
dictates of due process, to withdraw the prosecutorial authority delegated to that prosecutor.
(2) This must be so not only as a matter of administrative efficacy but also as a matter of legal principle. In
terms of s 114(1a) of the Constitution, every power conferred by the Constitution includes any other powers that
are reasonably necessary or incidental to its exercise. Section 24(1) of the Interpretation Act [Chapter 1:01]
provides to the same effect in relation to every power to do any act or thing conferred upon any person or
authority under any enactment. In addition, there is the time honoured common law principle that the power to
do or create a particular thing ipso jure encompasses and carries with it the power to undo or abolish that thing.
(3) A prosecutor who is divested of his prosecutorial functions can no longer be deployed as a prosecutor. While
this may be inevitable, it is a matter that falls outside the Attorney-General’s remit and squarely within the
purview of the Commission. The latter may opt either to institute disciplinary measures against its officer or
redeploy him to such other duties as he may be deemed suitable for and qualified to perform.
(4) One of the fundamental precepts of natural justice, encapsulated in the maxim audi alteram partem, is the
right of every person to be heard or afforded an opportunity to make representations before any decision is taken
that might impinge upon his rights, interests or legitimate expectations. This precept of the common law forms
part of the larger duty imposed upon every administrative authority to act legally, rationally and procedurally
and is now codified in s 3(1)(a) of the Administrative Justice Act [Chapter 10:28] as the duty to “act lawfully,
reasonably and in a fair manner”. The obligation to act in a fair manner is further expanded in s 3(2) to require
the giving of “adequate notice of the nature and purpose of the proposed action” and “a reasonable opportunity
to make adequate representations” as well as “adequate notice of any right of review or appeal where
applicable”. The Attorney-General was an administrative authority as defined in s 2 of Act and was subject to
the requirements of s 3(1)(a) as read with s 3(2). An employer, whether under a contract of employment or
under a secondment arrangement, has the common law right to summarily dismiss an employee who is
insubordinate or wilfully disobedient to the extent of undermining or destroying the very core and substratum of
their relationship. However, the appellant reacted with undue haste by immediately withdrawing the
respondents’ prosecutorial mandate. He took a massive leap from the inchoate letters penned by the respondents
and their lawyers to the conclusion that they had admitted all the allegations against them. He made no attempt
to substantiate the allegations against them or have these allegations investigated by means of disciplinary
inquiry, as he could have done by instructing the Director of Public Prosecutions, qua head of department, to
institute disciplinary proceedings in terms of the applicable Public Service Regulations.
(5) As for the unquestionably insubordinate conduct of the respondents, the appellant was perfectly entitled to
withdraw their prosecuting authority as an appropriate and necessary disciplinary measure. However, he could
only do so in accordance with the governing tenets of natural justice embodied in s 3 of the Administrative
Justice Act. The respondents were professionals engaged in the business of prosecuting criminal cases on behalf
of the State. They had a legitimate expectation of continuing to prosecute in that capacity and could not be
deprived of the right to do so without just cause. What the appellant should have done, at the very least, was to
write to each of the respondents, identifying with greater particularity the specific allegations levelled against
them individually, indicating that their open defiance of his authority justified the withdrawal of their
prosecutorial mandate, and warning that he intended to withdraw that mandate unless they were able to persuade
him otherwise. The unavoidable conclusion was that the appellant acted precipitately and in breach of the
requirements of s 3 of the Administrative Justice Act. A strict standard of compliance with those requirements
was expected of him in his dealings with the respondents, particularly in his capacity as the legal supremo of the
Government at the relevant time.
Editor’s note: the judgment appealed against was Mudisi & Ors v Tomana NO & Ors 2012 (1) ZLR 305 (H), a
judgment of HLATSHWAYO J (as he then was).
Police – actions against – time limitations applicable – reasons for such limitations – time limitations not
necessarily unconstitutional – action against police officer for delict committed while on duty – action in
personal capacity – time limitation still may be applicable
Ngoni v Min of Home Affairs & Ors HH-658-15 (Tsanga J) (Judgment delivered 29 July 2015)
The plaintiff issued summons claiming damages arising out of an assault upon him by the third defendant, a
police officer, and his unlawful detention. The third defendant had gratuitously assaulted him and detained him
for 30 minutes after he went to the police station in question to investigate the alleged arrest of members of the
party to which he belonged. The assault took place on 24 May 2014. Summons was issued on 17 February 2015
and served on 24 February 2015. It was not clear why there was such a delay in bringing the claim.
Section 70 of the Police Act [Chapter 11:10] requires that any civil proceedings instituted against the State or a
member in respect of anything in relation to the Police Act must be commenced within eight months after the
cause of action arose. In view of this provision, the plaintiff withdrew his claim against the Minister of Home
Affairs and the Commissioner-General of Police, the first and second defendants, but continued with his action
against the third defendant, in his personal capacity. He argued that the third defendant was not acting in terms
of the Police Act and that the provisions of the State Liabilities Act [Chapter 8:14] and the Police Act should
not remove liability from police officers who act outside the ambit of their professional duties. He argued that
the third defendant was acting over zealously and abusing his powers and functions as a police officer and had
forfeited the protection of the law in that he did not act reasonably or in good faith and without culpable
ignorance or negligence. As such, he did not enjoy the protection granted by the Police Act in terms of the
necessity for the action to be brought within a specified time period.
The third defendant argued that civil suits arising out of action by public officials acting in their official
capacities and within the scope of their employment are claims against the State. He argued that he was acting
within the scope of his employment and his action was carried out in terms of the Police Act. He argued the
proceeding against him in his personal capacity were equally out of time, as there was a nexus between acts
done by members of the police force and the State, even if these acts were contrary to the performance of their
duties.
Held: (1) rights guaranteed by the Constitution are not necessarily immune from being time barred, even though
the right itself remains otherwise unaffected. Constitutional rights can be subject to time barring in terms of the
time frame during which proceedings are to be brought. Thus, the time limit placed by the Police Act was not of
necessity in violation of the constitutional right to seek compensation for unlawful arrest and detention effected
by another person. The underlying reasons for limiting the time frame within which a remedy is to be sought
may still be pertinent where an officer is sued in his personal capacity, given the link to his work in general.
(2) There are three reasons for limiting the time within which to bring an action against the police: (1) to afford
the State the opportunity of investigating the incident and considering whether it should meet the claim instead
of incurring costs; (2) to allow the State, which can incur vicarious liability on behalf of its employees, to
identify the individual responsible for the delict; and (3) the public interest served by the notice and shortened
prescription period in that the State is enabled thereby to take prompt action against an employee who might be
abusing his authority or wide discretionary powers.
(3) The first and second reasons were not applicable, but the plaintiff’s efforts to pursue the same action against
the third defendant in his personal capacity would nonetheless still embroil his employers in the matter outside
the time limits. Granted, not all situations where one is a police officer automatically result in vicarious
responsibility or the risk of unlawful harm to others. Much depends on the facts. Here, however, when the
plaintiff instituted his legal proceedings, his action was against the police officer in question in his official
capacity. He regarded the police officer’s employers as vicariously liable for his actions. What changed the
plaintiff’s mind about his original standpoint was that he was out of time with his claim. It was solely on this
basis that he now purported to proceed against the officer in his personal capacity on the understanding that the
time limit would be in terms of the Prescription Act. The third defendant’s plea in bar on the grounds of
prescription would be upheld.
Police – discipline – trial of member by single officer for disciplinary offence in terms of s 34 of Police Act
[Chapter 11:10] – appeal to Commissioner-General in terms of s 34(7) of Act – Commissioner-General
dismissing such appeal – constitutional right of appeal to High Court against Commissioner-General’s
decision
Sadengu v Board President & Anor HH-712-15 (Dube J) (judgment delivered 26 August 2015)
The applicant, a police constable, was charged under para 35 of the schedule to the Police Act [Chapter 11:10],
tried by a single officer and sentenced to 14 days in detention. On appeal to the Commissioner General, the
conviction and sentence were confirmed. He then lodged an appeal with the High Court. While the appeal was
pending, the ZRP called a suitability board to determine the officer’s fitness to remain in the police service. He
then sought a provisional order to stay procedures of the Board until his appeal was heard by the High Court.
The court had to determine whether the applicant had a right of appeal to the High Court, and whether he
satisfied the requirements for an interdict. The court noted that s 171(1)(d) of the Constitution provides that the
High Court enjoys appellate jurisdiction only when it is provided by an Act of Parliament, and the Police Act
does not so provide. However, the appeal had been brought in terms of s 70(5) of the Constitution which
confers a general right of appeal to a higher court. The Commissioner-General was not a higher court, thus the
applicant’s right of appeal had not yet been exercised. By not providing for an appeal to the High Court, the
Police Act was out of alignment with the Constitution and the applicant should not be deprived of his
constitutional right simply because the laws have not yet been aligned.
The court also relied on the concept of inherent jurisdiction developed from the common law. The judge
adhered to the maxim that it is the duty of a good judge to interpret his jurisdiction liberally (est boni judicis
ampliare jurisdictionem) and reached the conclusion that jurisdiction is only ousted when an Act of Parliament
specifically provides that it is ousted. Hence the High Court does have jurisdiction to hear appeals arising from
trials by a single officer, when they are confirmed by the Commissioner-General.
However, in casu, the applicant was unable to establish the requirements for an interdict, and the interdict was
not granted. (MN)
Editor’s note: see Tamanikwa v Board President & Anor HH-676-14 (summarised below), where MATHONSI J
concluded that s 70(5) does not give a right of appeal unless one is provided by elsewhere.
Police – discipline – trial of member by single officer for disciplinary offence in terms of s 34 of Police Act
[Chapter 11:10] – appeal to Commissioner-General in terms of s 34(7) of Act – Commissioner-General
dismissing such appeal – constitutional right of appeal to High Court against Commissioner-General’s
decision
Tamanikwa v Board President & Anor HH-676-15 (Mathonsi J) (Judgment delivered August 5 2015)
The applicant, a police constable, had been convicted and sentenced to 10 days under para 34 of the Schedule to
the Police Act [Chapter 11:10]. Both conviction and sentence were confirmed by the Commissioner-General of
Police. The constable then lodged an appeal to the High Court under s 70(5) of the Constitution. When the
Police called for a suitability board to assess his suitability for continued employment in the ZRP, the applicant
then applied to the High Court for an interdict preventing the board from being held until after the appeal could
be heard.
The case hinged on the question whether or not the applicant had a clear right of appeal from the CommissionerGeneral’s ruling. The court examined two recent conflicting judgments on the matter where a similar issue of
its appellate jurisdiction was raised: Chatukuta v Nleya NO & Ors HH-705-14, where the court held that a right
of appeal existed where no Act specifically excluded it: and Jani v OIC ZRP Mamina & Ors HH-550-15, where
the court reached the opposite conclusion, ruling that since there was no provision for an appeal in the Police
Act, there was no right to an appeal. In casu, the court preferred to follow the Jani precedent and held that it had
no appellate jurisdiction in the matter. Section 70(5) did not confer such jurisdiction. Both the High Court Act
[Chapter 7:06] and the Constitution s 171(1)(d) made it clear that the court’s appellate jurisdiction exists only
where an Act provides for it. The appellate jurisdiction could not be imposed merely because it is not excluded.
(MN)
In Mubanga v OIC ZRP Suburban District HQ & Ors HH-815-15 HUNGWE J also concluded that since there was
no provision for an appeal in the Police Act, there was no right to an appeal. – Editor.
Police – discipline – trial of member by single officer for disciplinary offence in terms of s 34 of Police Act
[Chapter 11:10] – appeal to Commissioner-General in terms of s 34(7) of Act – Commissioner-General
dismissing such appeal – no appeal lying to High Court against Commissioner-General’s decision
Tamanikwa v OIC ZRP Beatrice & Ors HH-616-15 (Tagu J) (Judgment delivered 15 July 2015)
The applicant was a police constable who had been tried on a disciplinary charge before a single officer and
sentenced to a short period of imprisonment in the police detention barracks. He appealed to the CommissionerGeneral of Police in terms of s 34(7) of the Police Act [Chapter 11:10]. His appeal was dismissed and he was
ordered to undergo the period of detention. He filed an appeal to the High Court, relying on s 70(5) of the
Constitution, which gives the right to “[a]ny person who has been tried and convicted of an offence … subject to
reasonable restrictions that may be prescribed by law, to … appeal to a higher court against the conviction and
sentence.” He also sought an interdict restraining the respondents from detaining him. The respondents argued
that the application was not properly before the court, as the Police Act does not provide for a further appeal to
the High Court against the decision of the Commissioner-General. They also argued that the appellate powers of
High Court are conferred to it in terms of s 34(1) of the High Court Act [Chapter 7:06].
Held: (1) other than what is provided for in terms of s 34(7) of the Police Act, there is no provision for an appeal
to the High Court from a decision of a single officer. A right of appeal to the High Court is given under s 33,
which allows a person convicted by a board of officers to appeal to the High Court and sets out the procedure to
be followed. If the legislature wanted to allow the decision of the Commissioner General to be appealed to the
High Court it would have expressly said so. It followed that once the Commissioner General has dismissed the
appeal from the single officer that would be the end of the matter.
(2) Section 171(1)(d) of the Constitution gives the High Court has such appellate jurisdiction as may be
conferred on it by an Act of Parliament. The applicable Act here was the Police Act, which did not give such
jurisdiction. It only conferred jurisdiction where a member has been tried, convicted and sentenced by a board of
officers. In respect of a single officer, the High Court could only be involved where the Commissioner-General
has referred the case to it through the Prosecutor-General because of the perceived inadequacy of the sentence.
Editor’s note: in Chatukuta v Nleya NO & Ors 2014 (2) ZLR 852 (H) (judgment delivered 19 December 2014),
MAWADZE J reached the opposite conclusion. See also Sadengu v Board President & Anor HH-712-15, above.
Practice and procedure – abuse of process – subpoena duces tecum – subpoenaed party claiming that
production of relevant documents burdensome – subpoena specific as to which documents were required
– not a fishing expedition – subpoena upheld
NOC (Pvt) Ltd & Anor v EW (Pvt) Ltd & Anor HH-899-15 (Kudya J) (Judgment delivered 19 November 2015)
See below, under PRACTICE AND PROCEDURE (Subpoena duces tecum).
Practice and procedure – affidavit – founding affidavit – must contain allegations supporting party’s case
– impermissibility of raising new matter in replying affidavit
Rural Electrification Fund v Machimire S-61-15 (Ziyambi JA, Gwaunza JA & Bere AJA concurring) (Judgment
delivered 2 November 2015)
See below, under SALE (Conditional).
Practice and procedure – application – chamber application – procedure when application is opposed –
must be treated like court application – need for applicant to file heads of argument and to apply for set
down – failure to do so may result in opposing party applying to dismiss matter for want of prosecution
Permanent Secretary, Ministry of Higher & Tertiary Education v College Lecturers’ Assn & Ors HH-628-15
(Mathonsi J) (Judgment delivered 22 July 2015)
A chamber application that is opposed is treated like a court application and must be allocated to a judge for set
down on the opposed roll. Such an application cannot be disposed of without the parties filing heads of
argument and seeking a set down of the matter on the opposed roll. That would infringe the audi alteram
partem rule. An applicant must prosecute his application in terms of the rules relating to court applications
because it is, for all intents and purposes, a court application. Where the applicant does not file heads of
argument when represented by a legal practitioner or bother setting down the matter for hearing, the opposing
party can apply to have the matter dismissed for want of prosecution.
Practice and procedure – application – ex parte application – need for utmost good faith to be shown by
applicant – reasons for such requirement – effect of failure to show utmost good faith – whether such
principle should be extended to proceedings other than ex parte proceedings
Nehanda Housing Co-op Soc & Ors v Moyo & Ors HH-987-15 (Mafusire J) (Judgment delivered 30 December
2015)
An ex parte application is one made in the absence of the party who will be affected by the order that the court
is asked to grant. The utmost good faith must be observed by litigants making such applications, by placing
before the court material facts that might affect the granting of the provisional order. Failure to disclose, or
suppression of, material facts disentitles the applicant to the relief which he seeks, or disentitles him to keep the
one he had already obtained. Non-disclosure, or suppression of, such facts need not be wilful or mala fide to
incur the penalty of rescission of the order obtained ex parte. The court will not go into the merits.
It has been held in South Africa that there is no reason to extend this principle to motion proceedings, as
material non-disclosure, mala fides, dishonesty and the like in relation to such proceedings may, and in most
instances, should be dealt with by making an adverse or punitive order as to costs but cannot serve to deny a
litigant relief to which he would otherwise have been entitled. Conversely, however, there is no reason not to
extend the principle to motion proceedings, as the underlying reason why an applicant may be non-suited where
he conceals material information from the court is to protect the court itself, that is, to protect its integrity. It is
to prevent an abuse of its process. There are several instances when a litigant’s infraction or misconduct is so
gross as to warrant the court withdrawing its jurisdiction altogether, in spite of the inherent power reposed in it
to punish such misconduct by a punitive order of costs. For example, a litigant coming to court with dirty hands
has no right of audience. A litigant guilty of contempt of court may not be heard. A litigant who continuously
overburdens the courts with endless frivolous or spurious suits may be silenced perpetually. The court’s decision
to refuse to entertain a matter on the merits because of some wrong done by the petitioning litigant must, to a
large extent, depend on the nature of the litigant’s misconduct and the circumstances surrounding it.
Furthermore, in an urgent chamber application, particularly one accompanied by a certificate of urgency, a
judge may well decide the case solely on the basis of the applicant’s papers if he is satisfied that the matter is
indeed urgent and that a prima facie case for relief has been made out. The respondent’s right to be heard in
terms of the audi alteram partem rule of natural justice may be deferred to the return date. But immeasurable
damage may be caused if the applicant’s papers are misleading by reason of, for example, a material nondisclosure.
Practice and procedure – application – form in which application must be made – need for application to
be in format provided by rules of court – failure to use such format – need for application for
condonation – application otherwise a nullity
Marick Trading (Pvt) Ltd v Old Mutual Life Assurance Co (Pvt) Ltd & Anor HH-667-15 (Mafusire J) (Judgment
delivered 31 July 2015)
In terms of r 341(1) of the High Court Rules, a chamber application must, if served on an interested party, be in
Form 29, with appropriate modifications. In other circumstances, it must be in Form 29B. Legal practitioners are
frequently using a completely different format. All that is required of litigants is simply to copy and paste either
Form 29B or Form 29, the latter with appropriate modifications. Form 29 is for use in ordinary court
applications, or those chamber applications that require to be served. One of its most important features is that it
sets out a plethora of procedural rights. It alerts the respondent to those rights. For example, in notifying the
respondent of the court application, the form also notifies the respondent of his right to oppose the application
and warns him of the consequences of failure to file opposing papers timeously. Form 29B, for simple chamber
applications, requires that the substantive grounds for the application be stated, in summary fashion, on the face
of that form. Nothing can be more elementary.
The courts, both in this jurisdiction and elsewhere, have repeatedly drawn attention to the need to follow the
rules on this matter. An application, like a summons commencing action, is the founding process by which a
matter is brought to court for determination. Where there is a non-compliance with the Rules, the applicant must
apply for condonation and give reasons for its failure to comply. There must be a plausible reason why there has
been a failure to comply. If the application is incurably defective, then there cannot be anything before the court
to sit over in judgment.
Practice and procedure – court order – execution – out-of-court agreement subsequent to the order –
cannot be executed on the basis of the original order – a new order required
Goldsearch Technical Services (Pvt) Ltd v Mukonoweshuro & Anor HH-711-15 (Tsanga J) (Judgment delivered
26 August 2015)
The applicant owed the respondent a sum of money which had been made the subject of a court order providing
for payment of the capital amount plus interest. Subsequently, the applicant approached the respondent and they
reached an agreement privately on altered terms of payment at a higher interest rate and including collection
costs. The applicant then paid off the amounts included in the original order, and neglected to pay the extra
amounts agreed on. The respondent then used the order to execute against the applicant’s property. The
applicant obtained a provisional order preventing the sheriff from proceeding.
This case was a hearing to confirm the provisional order. The applicant claimed that the original order could not
be used by the respondent to execute on the basis of the agreement, which was not enforceable, and to execute
the respondent would have to obtain a new court order.
Held, that the original court order could not be used to execute since the amounts it provided for had already
been paid. A new order would be required. (MN)
Practice and procedure – default judgment – rescission – when can be applied for by a person not party
to the action
Mashingaidze v Chipunza & Ors HH-688-15 (Chitakunye J) (Judgment delivered 6 August 2015)
A person not a party to a default judgment, but affected by the order given, applied for rescission of that
judgment. The applicant had purchased a property which had been transferred several times from the original
owner, the respondent in this case, who was residing in the property. Title had been transferred to the applicant,
after which he charged the respondent rent. When the respondent stopped paying rent after some time, the
applicant issued summons for eviction. A pre-trial conference was held, at which there was an attempt to
determine whether the respondent had any defence. However, before the trial took place, the respondent
initiated process to cancel the transfer of the property from him to the second respondent, and all subsequent
transfers, including that to the applicant. There were five defendants, including the applicant. The applicant
entered a plea, but none of the other defendants entered appearance to defend.
The first respondent then applied for a default judgment against the other four defendants, but did not notify the
applicant, nor was the applicant notified when a default judgment was issued nullifying his title to the property.
The first respondent’s legal practitioner did not respond to the applicant’s lawyer’s request for a reply regarding
the eviction process, and when she did, failed to mention that a default judgment had been obtained. Only two
days before the trial for the eviction, six months later, did the applicant become aware of the default judgment
and the respondent’s legal practitioner refused to disclose the order until the trial was in progress. Due to the
ambush nature of the disclosure, that trial was adjourned.
The applicant then applied for rescission of the default judgment. The respondent argued that since the
applicant was not a party to the application for default judgment, he had no locus standi to apply for rescission.
The applicant claimed that under r 449 (1) (a) of the High Court Rules 1971 he was entitled to apply for
rescission as the order affected his interests even though he was not a party to the case. He was also applying
for rescission on the basis of fraud.
Held: (1) under r 449(1)(a) a court can grant rescission of an order erroneously sought or erroneously granted in
the absence of any party affected, and in order to correct an injustice. (2) The court erred in making the default
order as it proceeded in spite of the absence of the applicant, resulting in his title being surreptitiously being
taken away from him without his participation in the process. (3) The default judgment was obtained by
misrepresentation because the respondent’s legal practitioner made an application which she knew was not
appropriate as the relief sought affected a party who had entered appearance to defend. (4) The default
judgment was rescinded. (5) Costs de bonis propriis were awarded against the respondent’s legal practitioner
personally as she was guilty of dishonest and unethical behaviour. (MN)
Practice and procedure – exception – letter to other party before formally filing exception – failure to
write such letter – letter not a pre-requisite to filing of exception – may affect any subsequent order of
costs – request for further particulars – when may be appropriate instead of exception
Kotze v Parham & Anor HH-733-15 (Chigumba J) (Judgment delivered 16 September 2015)
If a party wishes to except to the other side’s pleadings, r 140(1)(b) of the High Court Rules 1971 allows that
party, before filing an exception, to address a letter to the other party, pointing out the alleged defect and calling
upon the other party to amend his pleading so as to remove the cause of complaint. Such a letter is, however, not
a pre-requisite to the filing of an exception, but a rule designed to justify the attendant cost of taking an
exception. If an exception is not upheld, then in making an appropriate award as to costs, the court must
consider whether the defendant wrote to the plaintiff and requested that the complaint be attended to, before
noting the exception. A more punitive order as to costs would be appropriate where the defendant did not write
such a letter prior to filing the exception. The rule, though, is couched in permissive language; there is nothing
peremptory about it, which suggests that it is not mandatory that a letter be written.
Similarly r 137, which provides alternatives to pleading to the merits, is couched in permissive terms. It is not a
requirement that a defendant must request for further particulars rather than except to the pleadings. Rule 137
may apply to those pleadings capable of being rendered true and concise by the leading of evidence, where the
alleged defect in the pleadings which is complained of is one of fact. Where the defect in the pleadings is one of
failure to make the necessary averments to found a cause of action, on a question of law, then the defect in the
pleadings goes to the root, and is incapable of being cured by a request for further particulars. It is trite that a
successful exception under these circumstances results in an amendment.
Practice and procedure – exception – when may be taken – excipient confined to pleadings – where new
facts are introduced, need to proceed to way of special plea
Mukono Family Trust’s Trustees v Karpeg Invstms (Pvt) Ltd & Ors HH-908-15 (Muremba J) (Judgment
delivered 25 November 2015)
See above, under INTELLECTUAL PROPERTY (Industrial designs).
Practice and procedure – exception to summons – failure to file exception within time limits – effect –
need for party to seek condonation – upholding of exception – effect – unsuccessful party entitled to apply
for leave to amend pleadings if court does not grant leave mero motu – dismissal of action – rarely
granted
Sammy’s Group (Pvt) Ltd v Meyburgh NO & Ors S-45-15 (Ziyambi JA, Hlatshwayo JA & Mavangira AJA
concurring) (Judgment delivered 23 July 2015)
While the rules of court do not provide for an automatic bar against a defendant who files an exception outside
the prescribed time limits, documents filed in contravention thereof cannot, in the absence of condonation of the
non-compliance with the rules, have any legal validity. The sanction must be that the pleading is invalid by
virtue of its non-compliance with the rules. There would be no basis on which a court could entertain such
pleadings.
For the purposes of an exception no facts (except agreed facts) may be adduced by either party and an exception
may thus only be taken when the defect objected against appears ex facie the pleading itself, nor can the court
rely on any facts or evidence not contained within the pleading excepted to.
The upholding of an exception to a declaration or a combined summons does not carry with it the dismissal of
the action. The unsuccessful party may then apply for leave to amend his pleading. It is the invariable practice of
the courts, in cases where an exception has been taken to an initial pleading that it discloses no cause of action,
to order that the pleading be set aside and the plaintiff be given leave, if so advised, to file an amended pleading
within a certain period of time. This practice a fortiori applies where an exception is granted on the ground that
the pleading is vague and embarrassing, a ground which strikes at the formulation of the cause of action and not
its legal validity.
In the rare case in which a departure from this practice may be permissible, the court should give reasons for the
departure. An order dismissing the plaintiff’s claim is a drastic remedy and the courts have inclined towards the
grant, where an exception is upheld, of leave to the plaintiff to amend the offending pleadings.
Leave to amend is often granted irrespective as to whether or not, at the hearing of the argument on the
exception, the plaintiff applied for such leave. Where the court does not grant leave to amend when making an
order setting aside the pleading, the plaintiff is entitled to make such application when judgment setting aside
the pleading has been delivered.
Practice and procedure – execution – attachment of immoveable property – property registered in name
of judgment debtor – judgment creditor having prima facie right to attach such property – claimant
entitled to show special circumstances exist for setting aside of order of attachment – property sold to
claimant before issue of summons against judgment debtor – transfer not effected through no fault of
claimant – all other necessary steps taken by claimant to effect purchase – special circumstances
established
Deputy Sheriff, Harare v Moyo & Anor HH-640-15 (Muremba J) (Judgment delivered 22 July 2015)
The claimant in these interpleader proceedings sought an order setting aside the attachment of the property he
lived in. He had bought the house from the judgment debtor, a former employee of the judgment creditor, a
bank. The bank had subsequently obtained judgment against its former employee following losses caused by the
employee’s fraudulent activities. The claimant had paid the purchase price for the property. Tax and rate
clearance certificates had been obtained and the necessary papers had been lodged with the deeds office for
transfer to be effected. The claimant had been given vacant possession of the house and had sold the house he
previously lived in. However, transfer could not be effected because another company had previously obtained
judgment against the seller. That company had then obtained a provisional order from the High Court which
enabled it to register a caveat against the property, prohibiting transfer of the property from the seller to the
claimant or to any third party pending confirmation of discharge of the provisional order. At the time of the
hearing of the interpleader proceedings the provisional order in question was still in force. It had neither been
confirmed nor discharged.
The judgment creditor argued that the attachment of the house was lawful because the house was registered in
the name of the judgment debtor and not in the name of the claimant. It argued that the agreement of sale was
not proof of ownership of the house and that the agreement of sale only gave the claimant personal rights as
against the seller and not real rights, which remained vested in the seller who still had the property registered in
her name.
Held: Whilst it is correct that a judgment creditor has the right to have attached and sold in execution property
registered in the name of the judgment debtor, that right is merely a prima facie one. The claimant may show
that there are special circumstances why such an order should not be granted. Here, there were such
circumstances. Equity (fairness and justice) demanded that judgment be entered in favour of the claimant. The
claimant had set out facts and allegations which showed that, save for the registration of the property into his
name from the judgment debtor and her husband, he did everything else which a purchaser of an immovable
property is expected to do. He had the agreement of sale. He paid the purchase price. He was given vacant
possession of the property. He paid transfer fees. The judgment debtor was willing to effect transfer of the
property to him. Had it not been for the caveat registration would have been effected.
When the judgment creditor issued summons, the claimant had long before bought the property from the
judgment debtor. The papers for transfer or registration of the property had already been submitted to the Deeds
Office and registration had failed because of the caveat. When the judgment creditor served the summons at the
property in question the claimant was already in occupation thereof. The claimant’s legal practitioners even
advised the judgment creditor not to serve process to do with the judgment debtor on this property but the
judgment creditor’s lawyers did not take heed, arguing that the property was registered in the judgment debtor’s
name. So the judgment creditor was well aware that the claimant was saying he had bought the property from
the time it served the summons. In these circumstances, to allow execution to proceed simply because the
property was still in the judgment debtor’s name would be a gross injustice. This was not a case where the
judgment creditor obtained judgment before the claimant purchased the property from the judgment debtor.
Practice and procedure – execution – sale – Sheriff’s duties – requirement to adhere to rules of court –
effect of failure to do so – when omission or irregularity does not vitiate sale – Sheriff’s duties on
receiving claim of ownership of property being sold in execution
Tallspring Invstms (Pvt) Ltd & Anor v The Sheriff & Ors HH-889-15 (Dube J) (Judgment delivered 15
November 2015)
The Sheriff is required to adhere to the rules of court and ensure that he conducts judicial sales in terms of
procedures outlined in the rules. Efficacy of judicial sales can only be achieved if officers tasked with the
function of conducting such sales conduct their business above board. Failure to conduct sales properly and in
accordance with the rules has the effect of bringing the administration of justice into disrepute. This results in
the public losing confidence in judicial sales. However, not every omission or irregularity with the conduct of
the sale will result in a sale being set aside. The objector has to show that the omission complained against is an
essential formality and that the omission is serious and material. Further, he is required to show that he has
suffered prejudice resulting from the failure to conform to the rules. Failure to check whether an immoveable
property is unencumbered, as required by r 348(2) of the High Court Rules, would be a failure vitiating the sale.
Where a claim over ownership of a property which is subject of a sale is brought to the attention of the Sheriff
during the hearing of objections, the Sheriff should not ignore such claims. He is expected to investigate the
claim at that stage. He should only confirm the sale where he is satisfied that the claim is frivolous and lacks
merit and is designed to cause delays. He is not required to delve into complicated issues of title or fraud which
questions should be left to courts of law. Where the challenge reveals that the objection has merit, this is a good
enough reason to desist from confirming the sale.
Practice and procedure – execution – stay of pending appeal – application for – factors to consider –
equity and justice, as well as prospects of success, must be considered
Golden Reef Mining (Pvt) Ltd & Anor v Mnyiya Consulting Engrs (Pty) Ltd & Ors HH-722-15 (Mangota J)
(Judgment delivered 7 September 2015)
Default judgment was entered against the applicants at the instance of the first respondent, which then sought
execution. The applicants brought an application for rescission, as well as a stay of execution. The application
for rescission was dismissed and the applicants filed an appeal with the Supreme Court against the order for
dismissal of the application. Despite the pending appeal, the first respondent made every effort to execute on the
applicants’ property. The applicants brought an urgent application to prevent the sale in execution until such
time as the appeal was heard, arguing that they would suffer irreparable harm. Pending the hearing of the
application, the High Court granted a temporary interdict, restraining the sheriffs from selling the applicant’s
goods.
The first respondent argued that the court did not have jurisdiction, as it was functus officio and that the
application should have been heard in the Supreme Court, as the High Court could not make an assessment of
the applicant’s prospects of success on appeal. It also argued that, whilst the principle which states that an
appeal suspends execution of a judgment appealed against was or is a correct reflection of the law, the intended
appeal was aimed at the dismissal of the application for rescission of judgment and not at the default judgment
itself. It submitted that the default judgment was not disturbed by the appeal, and remained intact.
Held: (1) section 171(1) of the Constitution, which gives the High Court full and original jurisdiction over all
civil and criminal matters in Zimbabwe, showed clearly and unambiguously that the court had the necessary
jurisdiction.
(2) While an application for stay of execution pending the hearing of an appeal does involve an assessment of
the applicant’s prospects of success, the court’s ability to make the assessment is not excluded. At any rate, the
assessment is not the only factor which determines the propriety or otherwise of the application. Other matters
come into play, including the interests of justice as between the parties. An application for stay of execution, by
its nature, falls into the area of equity relief. Where, therefore, equity demands that it be granted in the interests
of justice, the court hearing the application is, as a general principle, enjoined to consider and, where
appropriate, grant it. Section 176 of the Constitution of Zimbabwe confers power on the court to regulate its
processes as well as to develop the common law or the customary law, taking into account the interests of
justice. The writ of execution was a process of the court, and the court had every right and every authority to
control that writ in the interests of the attainment of real and substantial justice.
(3) If the Supreme Court dismissed the appeal, the default judgment would remain undisturbed and, therefore,
enforceable. However, if the Supreme Court upheld the appeal, the default judgment could not be enforced as it
would have been rescinded by an order of that court. The parties would, in that regard, have reverted to the
status quo ante which prevailed before the default judgment was granted to the first respondent. the appeal is
inter-linked to both the dismissal of the application for rescission and the default judgment itself. The Supreme
Court’s determination of the appeal was a sine qua non of the enforceability or otherwise of the default
judgment. It followed that the applicants’ appeal to the Supreme Court suspended both the dismissal of the
application for rescission and the default judgment which the court entered in favour of the first respondent.
(4) The requirements of the common law term functus officio are (i) the same parties (idem actor); (ii) the same
cause of action (eadem petendi causa); and (iii) the same thing (relief) demanded (eadem res). Here, whilst the
parties to the present application were the same, the cause of action was not the same, nor was the relief which
the applicants were seeking in casu the same as the relief which they sought when they applied for rescission.
The application for stay of execution pending appeal was a new matter.
(5) The relief which the applicants were seeking was based on principles of equity. Real and substantial justice
must not only be done, it must also be seen to be done. Not granting the applicants the relief which they were
seeking would cause them to suffer irreparable harm of a serious magnitude. The balance of convenience
favoured the position that execution be stayed until the applicants’ appeal had been heard and determined.
(6) The court’s sworn duty is to do justice and not injustice to parties who appear before it. The parties should
not to take an unfair advantage over each other, as that remains a recipe for a multiplicity of litigation. Parties
must, at all times, respect each other’s positions and prosecute and/or defend their cases in terms of laid down
principles of the court’s practices and procedures. They should not be allowed to rush each other into flouting
processes of the court or court orders. They must have the necessary patience to exhaust the procedures of court
and, at all times, allow due process to take place before they proceed to assert what they say rightly and lawfully
belongs to them.
Practice and procedure – judgment – judgment sounding in foreign currency – losses suffered in local
currency – how damages to be calculated – labour matter – Labour Court having equitable jurisdiction to
find formula to give effect to employee’s entitlement
Delta Beverages (Pvt) Ltd v Murandu S-38-15 (Gwaunza JA, Hlatshwayo JA & Chiweshe AJA concurring)
(Judgment delivered 2 July 2015)
See above, under EMPLOYMENT (Dismissal – wrongful).
Practice and procedure – judgment – validity – court making decision on matters not before it – court
granting relief that was not sought or prayed for – irregularity of such decision
Indium Invstms (Pvt) Ltd v Kingshaven (Pvt) Ltd & Ors S-40-15 (Gowora JA, Chidyausiku CJ, Gwaunza &
Hlatshwayo JJA & Mavangira JA concurring) (Judgment delivered 16 July 2015)
The appellant company was the owner of a property which was leased by the first respondent, a company
effectively owned by the second and third respondents, who were husband and wife. The lease agreement was
for a period of one year. The second and third respondents were shareholders in a close corporation in South
Africa. This entity owned a property in Johannesburg, which was the subject of a mortgage. When the bank in
whose favour the mortgage was registered called up the mortgage, the second and third respondents and the
close corporation obtained a loan from one S. A second agreement was for the sale by the second and third
respondents of the entire shareholding in the appellant company to S and another person. This agreement gave
the second and third respondents the option to re-purchase the shares in the appellant, an option that was not
exercised. The third agreement was the lease agreement between the appellant and the first respondent. The
appellant sued for cancellation of the contract due to failure to pay rent and later, after the lease expired, sued
for the eviction of the respondents. The High Court dismissed the claims, holding that the agreement to take
over the appellant company was a pactum commissorium and the transactions were in fraudem legis and invalid.
It was argued on appeal that the court a quo had not dealt with the case that was placed before it. The matter
before the court was principally the cancellation of the lease agreement between and consequential relief. It was
essentially an actio rei vindicatio. What the court a quo did was to turn its focus on a completely different issue
which it could not competently determine and to make findings which could not be supported.
Held: (1) neither the close corporation, nor S, nor the other person who bought the shares in the appellant, were
cited as parties and the court could not have properly considered the legality of the agreements in their absence.
To do so was irregular. The only parties before the court were the appellant and the respondents, and the lease
agreement was the only document properly before the court. The only dispute for determination was that arising
from the lease agreement in respect of which the court had to determine the respective rights and obligations of
the parties before it. In the absence of a counter-claim for declarations of invalidity in respect of the agreements
discussed above, the court could not grant relief to the effect that the agreements were invalid. At best the court
ought to have granted absolution from the instance. Instead, it gave the respondents far reaching relief which
they had neither sought nor prayed for. If the respondents were under the impression that the underlying
agreements which gave rise to the lease agreement were invalid, it behoved them to bring proceedings as a preemptive attack on the agreements. This they chose not to do, even though in their plea they had indicated that
they would. The court accordingly misdirected itself in resolving a dispute that was not before it. Some of the
parties to the dispute in question were not before it and they were denied the right to be heard in their own
cause. For a party who has a real interest in the matter in dispute before a court to be bound by a judgment of the
court such party should be cited.
(2) The respondents having admitted that the appellant was the owner of the property, all that the court a quo
had to determine was whether the first respondent had any legal right to remain in possession of the same.
Therefore, the simple task before the court a quo was to decide whether or not a lease agreement existed
between the parties as alleged, and, thereafter to determine whether or not the claim for eviction on the lease
was well founded. This the court failed to do. It went on to make wider pronouncements on relationships that
were not before it. It thereby misdirected itself. Once an owner proves that the property is his and that the
defendant originally obtained possession of the res pursuant to a contract, the owner is obliged to prove that
such a contract has expired or that he was entitled to cancel it and has indeed terminated it. The only defences
available to a defendant in the position of the respondent are that he had a right to possess, that he was not in
possession, or that the plaintiff is not the owner. None of these defences were pleaded and indeed could not have
been. The lease agreement was valid and had expired. The eviction of the respondents would follow.
(3) The appellant’s claims for consequential relief, including arrear rentals and holding over damages, had not
been properly dealt with by the court a quo and would have to be properly ventilated and determined before that
court. Those aspects of the matter would be remitted to the court a quo.
Judgment of HUNGWE J in Indium Invstms (Pvt) Ltd v Kingshaven (Pvt) Ltd & Ors HH-157-13 (delivered on 22
May 2013) reversed.
Practice and procedure – matrimonial matter – notice of set down – notice to defendant – advisability of
establishing whether defendant will be present at hearing
Shoniwa v Shoniwa HH-57-16 (Chitapi J) (Judgment delivered 24 December 2015)
In matrimonial matters, where there is a claim for a final order of divorce, for judicial separation or for nullity of
marriage, and the defendant has failed to enter appearance, the plaintiff may serve on the defendant notice to
plead in terms of r 272(1)(a) of the High Court Rules, putting the defendant on terms to plead, answer or except,
or make a claim in reconvention. Thereafter the plaintiff may, in terms of r 272(2)(b), set the matter down for
trial, but shall serve personal notice of set down upon the defendant. In such case the court shall not proceed to
trial unless it is satisfied that the personal notice of the defendant has been drawn to the fact that the matter has
been set down for trial or that for good and sufficient reason the giving of personal notice is impracticable.
It would be good practice for legal practitioners acting for the plaintiffs, in circumstances where they have
utilized r 272(2)(b) and served the notice of set down personally upon the defendant, to enquire, prior to the
hearing, whether the defendant would be present so they can discuss any matters arising with the defendant
beforehand. Another way of dealing with the situation is to request that the defendant be called by the Registrar
before applying for default judgment. The court would then be alerted to the presence or absence of the
defendant. Whilst the court should be satisfied on the presence or absence of the defendant, in practice it should
be the plaintiff, who will be seeking to utilize the rule to get a default order, who should take the initiative to
establish whether or not the defendant has attended court in answer to the notice of set down whose service will
have been effected at the instance of the plaintiff.
Practice and procedure – parties – citation of – parties having interest in matter before court – effect of
failure to cite parties – such parties not bound by court’s decision
Indium Invstms (Pvt) Ltd v Kingshaven (Pvt) Ltd & Ors S-40-15 (Gowora JA, Chidyausiku CJ, Gwaunza &
Hlatshwayo JJA & Mavangira JA concurring) (Judgment delivered 16 July 2015)
See above, under PRACTICE AND PROCEDURE (Judgment – validity).
Practice and procedure – parties – company – company in liquidation – action commenced before
company placed in liquidation – liquidator must obtain leave of court to continue action
Zimbabwe Allied Bank Ltd v Dengu & Anor HH-583-13 (Muremba J) (Judgment delivered 1 July 2015)
See above, under COMPANY (Liquidation).
Practice and procedure – parties – co-operative society – litigation instituted by – proof of registration,
etc – not required in order to institute proceedings
Tirivepano Housing Co-op v TSL Ltd & Ors HH-756-15 (Dube J) (Judgment delivered 23 September 2015)
See above, under ASSOCIATIONS (Co-operative society).
Practice and procedure – parties – foreign state – action against – citation of government of that state –
not fatal – state functions carried out by government of the day
Bulgargeomin Ltd v Govt of Bulgaria & Ors HH-732-15 (Chigumba J) (Judgment delivered 17 September
2015)
See below, under PROPERTY AND REAL RIGHTS (Ownership – acquisition).
Practice and procedure – parties – joinder – necessary party – who is – need to join such party – effect of
failure to do so
Timba v Chief Elections Officer & Ors S-69-15 (Gwaunza JA, Ziyambi & Guvava JJA concurring) (Judgment
delivered 17 November 2015)
See above, under ELECTION (Election petition).
Practice and procedure – parties – locus standi – society bringing proceedings on behalf of members
without such members being named or joined – need for society to show it had a direct and substantial
interest in outcome of litigation
Practice and procedure – parties – party instituting proceedings on behalf of another – when proof of
authority to do so is required
Tirivepano Housing Co-op v TSL Ltd & Ors HH-756-15 (Dube J) (Judgment delivered 23 September 2015)
See above, under ASSOCIATIONS (Co-operative society).
Practice and procedure – pleadings – exception and special plea – distinction between – exceptions must
be limited to objections or defences that arise ex facie declaration itself – matters which should be raised
by way of special plea – where averment of some new fact is required, objection should be raised by way
of special plea – other party may rebut defence raised
NEC, Construction Industry v Zimbabwe Nantong Intl (Pvt) Ltd S-59-15 (Patel JA, Malaba DCJ & Gwaunza JA
concurring) (Judgment delivered 20 October 2015)
The appellant had issued summons in the High Court against the respondent claiming various sums of money,
plus interest. After the exchange of pleadings, but before filing its plea, the respondent filed an exception to the
claim, the objection being that the High Court lacked jurisdiction to entertain the claim as it was a labour matter.
The respondent also averred that part of the claim had prescribed by effluxion of time and that the rate of
interest claimed exceeded the prescribed rate of interest.
The High Court found that the claim was premised on a collective bargaining agreement, and thus was a labour
matter. The court held that it was an abuse of court process for the appellant to approach the High Court after
the jurisdictional issue was raised by the respondent and dismissed the appellant’s claim with costs on a legal
practitioner and client scale.
On appeal, apart from challenging the entirety of the court’s ruling pertaining to its jurisdictional competence,
the appellant raised the procedural point that the court erred in entertaining a challenge to its jurisdiction by way
of an exception as opposed to a special plea. Argument at the appeal hearing was confined to this procedural
point. The respondent argued that the distinction between an exception and a special plea was one of form and
not of substance. By virtue of r 106 of the High Court Rules, it was argued, no technical objection may be raised
to any pleading on the ground of any alleged want of form. Although an objection to jurisdiction is usually
raised by special plea, the failure to do so is not necessarily fatal.
Held: in South Africa, the traditional approach, based on the cases, has been to differentiate between an
exception and a special plea on the basis the latter raises some special defence not apparent ex facie the
declaration. However, the trend lately in South Africa is that the courts are inclined to look at the true nature and
substance of the matter in question as opposed to its form. The nature of the defence determines whether
evidence is required and whether the defence should have been raised at the outset or whether it can be raised on
appeal.
In this country, the practice has been to employ the procedure of excepting for those objections which go to the
root of the declaration and allege that the declaration does not disclose a cause of action at all. The purpose of a
special plea is to permit a defendant to achieve prompt resolution of a factual issue which founds a legal
argument that disposes of the plaintiff's claim. There are three kinds of special pleas: (a) the plea in bar, by
which a party may interpose a purely formal objection to the jurisdiction of the court; (b) the plea in abatement,
which avers some good ground, not disclosed in the declaration, which is otherwise admitted, for denying the
plaintiff relief; and (c) the “dilatory” plea, which advances some fact, not disclosed in the declaration, which is
otherwise admitted, and which entitled the defendant to a stay of proceedings.
Since a special plea involves the averment of a new fact, it is susceptible of replication and of a hearing at which
evidence on this new fact alone may be led.
Rule 106, which precludes technical objections on the ground of any alleged want of form, is confined to the
application of r 99, which regulates the form and content of pleadings. It does not extend to the application of r
137, which prescribes alternatives to pleading to the merits and the forms to be utilised for any such alternative.
There are two reasons: (a) r 137 is set out in an entirely separate Order 21 dealing specifically with special pleas
and exceptions; (b) more importantly, although r 137(2) is concerned with the form of special pleas and
exceptions, the more crucial aspect of r 137 is subr (1) which is designed to regulate the procedure to be
followed in raising exceptions or special pleas and explicitly differentiates between special pleas on the one
hand and exceptions on the other.
As a general rule, then, exceptions taken by a defendant must be limited to objections or defences that arise ex
facie the declaration itself. These would include averments that the declaration or part thereof does not disclose
a valid cause of action or is vague and embarrassing. On the other hand, where the point taken constitutes a
special defence, such as absence of jurisdiction, res judicata or prescription, the procedure to be followed is by
way of special plea. In these instances the defence relied upon is not evident ex facie the declaration and
involves the averment of some new fact or facts to be proved with fresh matter. The procedure by way of special
plea enables the plaintiff to rebut the defence raised by replication and the adduction of further evidence where
necessary. In exceptional cases, however, where the special defence in question is apparent ex facie the
declaration itself, the court may allow the matter to be decided on exception. This is subject to the qualification
that the plaintiff has nothing to adduce in rebuttal and will not be prejudiced by a decision being taken on
exception.
In this matter, although the issue of the court’s jurisdiction should normally have been raised in a special plea,
the previous pleadings had fully ventilated the question. There was nothing further that either party might have
adduced, whether by way of further pleadings or through fresh evidence, to enable the court to determine the
propriety or otherwise of its jurisdiction over the matter. Nor was the appellant prejudiced in any fashion by the
matter having been allowed to proceed on exception rather than by way of special plea. Consequently, it could
not be said that the court a quo erred in entertaining a challenge to its jurisdiction raised through an exception.
The High Court’s judgment is to be found in NEC, Construction Industry v Zimbabwe Nantong Intl (Pvt) Ltd HH626-14, a judgment of CHIGUMBA J, delivered on 14 November 2014. It will be reported in ZLR 2014 (2), which is
currently being typeset. – Editor.
Practice and procedure – pleadings – extent to which parties are bound by pleadings – enquiry at trial
normally limited to issues raised in pleadings
Makgatho v Old Mutual Life Assurance (Zimbabwe) Ltd S-57-15 (Garwe JA, Gwaunza & Patel JA concurring)
(Decision announced 13 March 2014; reasons made available 23 October 2015)
See below, under SURETYSHIP (Surety – liability of).
Practice and procedure – provisional sentence – constitutionality of procedure – procedure not in breach
of Declaration of Rights
Tetrad Invstm Bank Ltd v Largedata Entprs (Pvt) Ltd HH-730-15 (Chigumba J) (Judgment delivered 17
September 2015)
See above, under CONSTITUTIONAL LAW (Constitutional of Zimbabwe 2013 – Declaration of Rights – right
to fair trial).
Practice and procedure – provisional sentence – liquid document – what constitutes a “liquid” document
– when liquidity of document is destroyed
Sanctuary Ins (Pvt) Ltd v Micromart (Pvt) Ltd & Anor HH-896-15 (Matada-Moyo J) (Judgment delivered 11
November 2015)
Provisional sentence or summary judgment may be claimed by a plaintiff who holds a “liquid document”
acknowledging a debt, in writing. A liquid document is simply a document showing a liquidated sum of money,
for example a cheque or promissory note. A document is liquid if such document on its own, without resorting
to extrinsic evidence, shows an unconditional acknowledgment of indebtedness in an ascertained amount of
money, the payment of which is due to the creditor. No extrinsic evidence should be required to establish the
indebtedness. Once that is necessary the liquidity of the document is destroyed. Similarly, once there are
conditions to be fulfilled before payment could be made, such document does not qualify as liquid. If the
undertaking to pay depends on future events, again such document is not liquid.
Practice and procedure – res judicata – requirements – need for relief sought to be the same
Golden Reef Mining (Pvt) Ltd & Anor v Mnyiya Consulting Engrs (Pty) Ltd & Ors HH-722-15 (Mangota J)
(Judgment delivered 7 September 2015)
See above, under PRACTICE AND PROCEDURE (Execution – stay of).
Practice and procedure – subpoena duces tecum – subpoena issued by party in another matter – objection
to – subpoenaed party claiming documents not necessary – determination of relevance of documents a
matter for the court
NOC (Pvt) Ltd & Anor v EW (Pvt) Ltd & Anor HH-899-15 (Kudya J) (Judgment delivered 19 November 2015)
The second respondent (the ZRA) imposed retrospective duty on the first respondent arising from the
importation of three base stations. A 300% penalty was also imposed. The first respondent appealed to the Fiscal
Appeal Court. At the hearing, it intended to call a former clearing agent who cleared base station components on
behalf of the first applicant. These, it said, were classified under a duty free tariff regime, but were the same as
those imported by the first respondent. This, the first respondent said, showed that it was being discriminated
against, in violation of the Constitution and the law. The first applicant objected to the production of its base
station components importation documents by this witness, while the second respondent claimed client taxpayer
privilege in terms of s 34A of the Revenue Act [Chapter 23:11]. The first respondent accordingly applied in
terms of s 6(1) and (2) of the Fiscal Appeal Court Act [Chapter 23:05] as read with s 62(2) of the Constitution
of Zimbabwe for a subpoena duces tecum against the second applicant, the managing director of the first
applicant. This was granted and duly served. The applicants sought the setting aside of the subpoena. The first
ground was that the requested information was irrelevant to the determination of the real issues in the main
proceedings between the first respondent, as the appellant, and the second respondent, as the respondent. The
second ground related to the right to privacy guaranteed by s 57 of the Constitution. The first applicant was
averse to the disclosure of its tax structure and trade secrets over a period of 15 years to a competitor and the
general public. The third ground was that the subpoena was unduly oppressive to both applicants and was an
abuse of process. The first applicant would lose the valuable services of its chief executive officer during his
time at court, while the second would suffer the inconvenience of adding value to a competitor at the expense of
his own employer. It was common cause that the production of documents covering a period of 15 years would
be burdensome to the applicants.
Held: (1) One of the factual sub-issues the first respondent sought to establish by reference to the importation of
first applicant related to the identification of the components the Commissioner regarded as constituting a base
station. The first respondent had averred what the position was, which averment was disputed by the
Commissioner. The documents sought by the first respondent contained this information. They would assist the
court unravel the truth and determine whether or not the appellant was correctly classified in tandem with its
peers and whether it is liable to pay duty and suffer penalties. The first respondent needed the documents
because it bore the onus to show on a balance of probabilities that it was not required to pay duty on the base
station components. It believed that it would be able to discharge this onus from the information in the
documents. The documents were relevant to the determination of the real issues between the first and second
respondents. In any event, it was presumptuous of the applicants to counsel the first respondent on how to
prosecute its appeal and to determine the relevance of the documents. The latter was a decision for the court.
(2) The first respondent also had constitutional rights that would be affected: the right of access to any
information held by any person for the enjoyment, enforcement or protection of any right (s 62) and the right to
a fair hearing (s 69). The latter right could not be restricted (s 89(3)). The rule of law and the right to a fair
hearing require that evidence which establishes the truth be laid before the court. Sections 6 and 7 of the Fiscal
Appeals Court Act, as read with r 9 of Fiscal Appeal Court Rules, are laws of general application, which compel
a competent witness to testify and assist the court unravel the truth. The applicants were competent and
compellable witnesses. They had information which guaranteed a fair trial to the first respondent, the appellant,
in the main proceedings. A court may override the right of privacy in search for the truth. In any event, in terms
of r 19(3) of the Fiscal Court Appeal Rules, the court had the power to exclude such information from the public
domain.
(3) The present subpoena duces tecum was in a class of its own. The duty and penalties imposed amount to a
large sum of money which had far reaching consequences to the survival of the first respondent. It must be
afforded every lawful opportunity to present and argue its case to the best of its ability. The oral testimony and
the production of documents from a competent and compellable witness could not be gainsaid. The second
applicant was a competent and compellable witness. That he was a managing director was beside the point. He
had the authority and ability to testify on the pertinent issues found in the subpoenaed documents. Collating the
documents would be an arduous and burdensome, but not impossible, task. It was a burden that must be carried
to establish whether the respondent in the main proceedings was treating the appellant in a discriminatory way
contrary to the law. The first respondent was not on a fishing expedition. It always desired to call the evidence
of the former agent to testify on these very documents. That witness did not keep custody of the documents he
processed for the first applicant. It was necessary to call the custodian of those documents. To do so was not an
abuse of process.
Prescription – interruption – occurs when process instituted and pursued to final successful conclusion –
does not apply to other defendants joined to the process after the initial prescription period has expired
Gwiriri v Star Africa Corp Ltd & Anor HH-674-15 (Dube J) (Judgment delivered August 5 2015)
The plaintiff suffered a workplace accident in 2006 for which he claimed compensation from NSSA and
received compensation from the NSSA Workers Compensation Insurance Fund in 2007 as well as a monthly
pension. In 2008 he issued summons against his former employer, the defendant, claiming damages for loss of
income, pain and suffering, permanent disfigurement, loss of future earnings and future medical expenses; he
claimed that the compensation paid by NSSA was inadequate. The High Court awarded damages, but the
defendant appealed to the Supreme Court, which, in 2011, set the High Court’s judgment aside, apparently on a
technicality, without hearing the merits. The plaintiff issued new summons in 2011, claiming compensation on
the same basis, but this time joining NSSA as the second defendant.
The defendants raised the issue of prescription, maintaining that the matter had prescribed, this summons having
been issued more than five years from the date of the cause of action.
Held, (1) according to s 19(3) of the Prescription Act [Chapter 8:11], prescription is interrupted when judicial
process is instituted, and remains interrupted until the case is pursued to a successful conclusion by the plaintiff
– i.e. until he obtains a judgment in his favour. The plaintiff may continue to pursue his case until successful and
prescription remains interrupted. Since the plaintiff did not succeed with his claim, he was entitled to continue
with judicial process until he does
(2) Where a suit has been timely filed against one defendant the filing of that suit does not interrupt prescription
as against other defendants not served with the process. Since the first summons was issued only against the first
defendant and not the second, prescription of any claim against the second defendant was not interrupted.
Hence the claim against the second defendant had prescribed and the case fell away. (MN)
Property and real rights – ownership – acquisition – by prescription – requirements – need for possession
to be adverse to rights of owner – acknowledgment of owner’s rights means possession not adverse to
owner
Bulgargeomin Ltd v Govt of Bulgaria & Ors HH-732-15 (Chigumba J) (Judgment delivered 17 September
2015)
The applicant was a company registered in Bulgaria. In 2008 it had taken over all the assets and rights of a
company with the same name, which had been wholly owned by the State of Bulgaria. The predecessor
company had in 1981 entered into an agreement with the Bulgarian Government whereby the company would
fund the purchase of two properties in Harare. The properties were bought in the name of the State of Bulgaria
and, according to the Ambassador, managed by staff at the Embassy, but were occupied by the company, which
used them for its own purposes. The applicant sought to have the properties transferred into its name on the
basis of acquisition by prescription, in terms of s 4 of the Prescription Act [Chapter 8:11]. It claimed that it had
been in uninterrupted possession of the properties for over 30 years and that it or its predecessor was responsible
for the management and the maintenance of the properties, as if it owned the properties, during that period. The
first respondent was alleged to have acquiesced in the open possession of the properties by the applicant.
Finally, it was submitted on behalf of the applicant that the first respondent never used the properties in question
or for state related activities, rendering the nature of the transaction commercial, and private, and giving our
courts jurisdiction to determine this application.
Four preliminary points were raised in opposition. First, it was said that the applicant had sued the wrong party,
the “Government of the Republic of Bulgaria”, which is not the state. It should have sued the Republic of
Bulgaria. Secondly, the applicant had attempted to sue a peregrinus without complying with s 15 of the High
Court Act [Chapter 7:06]. Thirdly, the court had no jurisdiction to deal with this matter because the first
respondent or the state enjoyed immunity from suit and legal proceedings in terms of the Four preliminary
points were raised, firstly that the applicant had sued the wrong party, the government of the Republic Of
Bulgaria, which is not the state, and secondly that applicant had attempted to sue a peregrines without
complying with s 15 of the High Court Act [Chapter 7:06]. The third point was that the court has no jurisdiction
to deal with this matter because the first respondent or the state enjoys immunity from suit and legal proceedings
in terms of the Privileges and Immunities Act [Chapter 3:02] and s 326 of the Constitution of Zimbabwe 2013,
which incorporates customary international law as part of the law of Zimbabwe. The acquisition, use,
management and maintenance of the properties was a “governmental act of the state”, so any attempt to
determine the application would involve an inquiry or challenge in respect of a sovereign act, or a public act
(jure imperii). Finally, it was argued that there were material disputes which could not be resolved without
doing injustice. With regard to the merits, the first respondent submitted that the applicant was at law a
partnership and all the partners should have been joined.
Held: (1) Once an entity becomes a state it acquires international personality and participates in the affairs of the
international community. This participation is conducted by the government of the state, which will inevitably
change from time to time. The matter could not be defeated by reason of the alleged mis-citation of the first
respondent as “the Government” instead of “the state”. Nothing turned on the alleged mis-citation, since it is
accepted as a position of international law that state functions are facilitated by the government of the day.
(2) In terms of r 7(b) of the High Court Rules, an “association” is a partnership, a syndicate, a club or any other
association of persons which is not a body corporate; and under r 8, associates may sue and be sued in the name
of their association.
(3) Section 15 of the High Court Act is couched in permissive language, which denotes a wide discretion. The
court has a choice of three options; to order attachment of property; to order arrest; or to order issue of process
in order to found jurisdiction. The court has jurisdiction in any case where the subject matter is situated within
its territorial jurisdiction, by virtue of being forum rei sitae. This is so, whether the action is in rem or in
personam. Leave for substituted service had already been granted, indicating that the court had already
exercised its jurisdiction in favour of founding jurisdiction by the issue of process.
(4) A sovereign may claim immunity only in respect of governmental activity or property, but not in respect of
purely commercial transactions. Here, the first respondent did not enjoy absolute immunity in the circumstances
before the court. This transaction was commercial in nature, which left the first respondent with restrictive
immunity.
(5) Neither the applicant nor its predecessor ever had title to the properties. Title to the properties had, from
1981 to date, been vested in the state of Bulgaria. What the applicant “acquired” from its predecessor was
“cession of possessory rights in the properties”, as expressly stated in the agreement between the parties. The
applicant contended that it had occupied the properties for its own benefit for a period in excess of thirty years.
It behaved as an owner would, and did not pay rent. The first respondent did not assert any of its rights over the
property because the properties were registered in its name purely for convenience and for administrative
purposes. In addition to the need to prove uninterrupted possession for thirty years, the party claiming
acquisitive prescription has to go further and prove that such possession, by both the party and its predecessors
in title, was open and adverse to the rights of the owner. Neither the applicant nor its predecessor possessed the
properties “without recognizing the title of the owner”. The papers filed of record were replete with admissions
that the properties have always been registered in the name of the Republic of Bulgaria. The applicant failed to
prove that its possession was adverse to the rights of the state of Bulgaria, even though its possession was open.
In the absence of proof that possession was in dispute of the title of the owner, the essential elements of adverse
possession were simply not established. If the possessor acknowledges the rights of the owner, his ownership
ipso facto ceases to be adverse to him and his claim must fail.
Revenue and public finance – Commissioner-General of Revenue Authority – advance tax ruling by –
procedure required for such ruling to be obtained – opinion issued before 2007 – non-binding private
opinion unless Commissioner-General otherwise directs – use which may be made of non-binding opinion
– duty of Commissioner-General to collect tax due – not entitled to give unlawful tax break – entitled to
rectify errors and collect tax which is due – cannot be estopped from acting lawfully
Revenue and public finance – income tax – taxable income – bonus shares – what are – issue of dividends
by company with option given to shareholder either to accept cash or shares in lieu – such shares not
bonus shares and liable to withholding tax
Delta Corp Ltd v ZRA HH-621-15 (Hlatshwayo J) (Judgment delivered 14 July 2015)
In 1996 a firm of accountants wrote to the Commissioner of Taxes, asking whether, where a company, in
declaring a dividend, allows its shareholders the option of accepting cash or shares, those who opt for shares
receive “bonus shares”, which are not taxable. The Commissioner wrote back to say that in that situation no
dividend is paid and the shares are bonus shares. What the company was doing was capitalising a portion of its
profits. The appellant company, acting on the strength of that letter, did not pay withholding tax on scrip
dividends issued after the letter was written.
Ten years later, the Commissioner-General of the respondent (the successor to the Commissioner of Taxes)
wrote to the appellant, requesting it to deduct and account for withholding tax for the previous three years on
scrip dividends issued, as these were dividends and not bonus shares. The appellant objected, averring that in
1996 the Commissioner of Taxes had given a ruling upon the strength of which the appellant had acted. Such
ruling was binding on the respondent. On appeal, the respondent argued that the letter to the accountants did not
amount to a tax ruling, and in any event if any benefit did accrue from the letter, it accrued to the accountants.
Held: (1) an advance tax ruling is defined at length in the 4th Schedule to the Revenue Authority Act [Chapter
23:11], which sets out in detail the steps that must be taken to get such a ruling. All those requirements must be
present for any enquiry to be classified as an application for a tax ruling. Once the enquiry made is lacking in
one or more material respects, it cannot be said to be an application for a tax ruling and in the absence of such
application, any correspondence from the taxing authority cannot be construed as a tax ruling. One cannot
obtain one without the other. The letter by the accountants fell woefully short of the requirements set out in the
Schedule.
(2) Even if the letter to the accountants could qualify as an advance tax ruling, under s 5(3) of the 4th Schedule
any written statement by the Commissioner-General issued before January 2007 was by operation of law a nonbinding private opinion unless the Commissioner-General had directed otherwise, which he had not done. Such
an opinion may not be cited in court in proceedings that do not involve the person to whom it was issued: in this
case, the accountants.
(3) In terms of ss 26 and 28 of the Income Tax Act [Chapter 23:06], shareholders are liable to pay tax on their
dividends. The company distributing such dividends is at law required to withhold such tax when it distributes
the dividends and remit the tax to the respondent. The very act of declaring a dividend is distribution of an
amount to the shareholders. At this stage, before any further considerations are made, the amount so declared is
a dividend and subject to withholding tax. The fact that the shareholders are then allowed an election after the
declaration of the dividend matters not. By then, taxes would already have accrued by operation of law. The act
of declaring a dividend is not linked to the choice the shareholders are given in whether to accept cash or take a
scrip dividend.
(4) For the shares to be considered bonus shares, it must have been a capitalisation of the undistributed profits at
the instance of the company. “Bonus shares” are shares which are given out by the company to its shareholders
on a pro-rated basis and they are paid for from the company’s undistributed reserve profits. The declaration of a
dividend is in its own a distribution of profit. Once a dividend is paid out and the shareholder is given the option
to use such cash dividend to buy more shares, such shares so bought are not bonus shares. This was no more
than the shareholder electing to use his dividend to purchase more equity in the company. The election to
receive shares in lieu of a cash dividend in itself is a purchase of shares. The choice given to the shareholder is
that which shows that the profits have been distributed and the shareholder has elected to use his dues to buy
more equity. Since a shareholder who accepts the dividend in cash is liable to pay tax, the fact that another has
elected to deal with his dividend in a different manner does not make the dividend so received and utilised any
less a dividend.
(5) Regarding the retrospective effect of the respondent’s measures, the revenue authority is not entitled at law
to give anyone unlawful tax breaks and prejudice the fiscus. Where the revenue authority has made an error, it is
allowed to rectify it, even retrospectively. The authority is not precluded from assessing a tax legally due only
because the taxpayer has relied upon the authority’s prior mistaken view of the law. The appellant could not
require the respondent to continue acting unlawfully in order that its actions be fair. The main duty on the
respondent is to act lawfully and, in demanding the withholding tax, it acted lawfully. There can be no question
of the respondent acting unfairly when it acts in accordance with the law, in other words lawfully. Implicit in
lawfulness is fairness. Tax law is strict liability law. The fact that the respondent’s predecessor made a mistake
upon which it relied could not save the appellant. It would be still required to remit all taxes as is required at
law.
Revenue and public finance – income tax – allowable deductions – expenditure and losses incurred for the
purpose of trade – losses due to theft – when deductible – theft by directors and other persons in control
of business – such losses not deductible
M (Pvt) Ltd v Commr-Genl, ZRA HH-665-15 (Kudya J) (Judgment delivered 30 July 2015)
The appellant objected to its assessment for income tax on the basis that theft of monies by managerial or
subordinate non-managerial employees who were not shareholders was an unavoidable inherent risk sustained in
the generation of taxable income that was a deductible loss under s 15(2)(a) of the Income Tax Act [Chapter
23:06].
The theft was not perpetrated by a shareholder or any person having a direct interest in the appellant’s business.
The cash discrepancy was confirmed in the report of an independent firm of accountants; the report established
that the systems administrator, the credit controller and the managing director were the only ones with access to
the cash stolen.
The appellant’s customers were obliged to pay in cash and, therefore, there was a real risk of theft. The theft
suffered was incidental to the carrying on of the appellant’s business activities and inseparable therefrom.
The respondent ruled that the appellant had failed to exclude managerial employees from the theft.
Held: (1) The statement of agreed facts, as read with the documentation, did not establish that on the balance of
probabilities a theft occurred. The appellant had no properly maintained cash book and it was difficult to find
that cash payments that constitute the unaccounted funds were not made in the course of business.
(2) The parties’ representatives in oral argument removed the appellant’s managing director from possible
submission, but the basis for doing so was not revealed.
(3) On whether or not an employer who suffers a loss in consequence of a theft of monies which is perpetrated
by a person or persons other than a shareholder or an owner, and such theft occasions loss to his business, is
entitled to a deduction under s 15(2)(a) of the Act, in terms of s 63 the onus lies on the taxpayer to prove on a
balance of probabilities that the Commissioner was wrong in disallowing the deduction of the sum.
(4) The non-exclusion of the managing director from the list of possible defalcators was fatal to the appellant’s
case as misappropriations by a managing director are excluded from deduction as losses on the ground that they
are not regarded as a necessary incident or inseparable from the taxpayer’s trading activities.
(5) Deduction is not allowable of losses occasioned by the wrongful acts of a proprietor, including a partner, and
through the acts of a managing director, a manager of a company who “is in the position of a proprietor”, and a
director. Embezzlement by ordinary managers would be deductible.
(6) The onus was on the appellant to establish that the systems administrator and the bookkeeper were not
managers. This it failed to do.
(7) The impression left by the conduct of both the systems administrator and bookkeeper was that they were
unaccountable independent centres of power and authority in the appellant. They behaved and were permitted to
behave as managers in the position of a proprietor. A proprietor, as the owner of the business, especially of a
small private business, would appear to have wide latitude to do as he pleases, especially with the money in his
business. The making of drawings from the business does not invite opprobrium from anyone and no report is
made to law enforcement agents to bring the owner to book for “misappropriating” his funds. The approach to
the investigation was lackadaisical. It seems the appellant was not keen to identify the culprits and bring them to
book. It behaved as if it was afraid to confront the proprietor of the company. The cumulative impact of these
factors was that the managers who stole the money were managers in the position of a proprietor. (DT)
Revenue and public finance – income tax – appeal – what matters may be raised on appeal – matters not
raised in letter of objection to tax ruling may not be raised on appeal
Revenue and public finance – income tax – capital allowances – construction of buildings – allowances
based on income tax value of buildings – after change of currency, owner basing allowances on
replacement value – such allowances disallowed
GC (Pvt) Ltd v ZRA HH-759-15 (Kudya J) (Judgment delivered 25 September 2015)
The respondent (the ZRA) issued to the appellant three amended assessments for income tax for the years 2009
to 2011, disallowing capital allowances based on the 2009 market values of the appellant’s eight commercial
properties, rather than on their income tax values (ITVs), and imposed a penalty of 50% of the tax chargeable in
each year of assessment. The properties were classified as industrial buildings in terms of the Fourth Schedule to
the Income Tax Act [Chapter 23:06]. The first owner of the properties claimed annual capital allowances of the
construction of the immovable properties in terms of para 6 (1)(b)(i) to the Fourth Schedule, as read with s
15(2)(c) of the Act, at the rate of 5% per annum. The claim would cease after a period of 20 years. Before
exhausting its 20 year entitlement, the first owner sold the properties to the second owner, a wholly owned
subsidiary, and the acquisition costs were again based on the ITVs. The tax authorities also allowed the second
owner to claim capital allowances over a period of 20 years at 5% per annum.
The properties were transferred to the appellant in 2003 from the second owner thereof. During the years 20032008 the appellant claimed, and the ZRA accepted, capital allowances at the rate of 5% per annum based on the
ITVs of the second owner.
Before the end of 2008, all construction costs, the ITVs and the acquisition costs of the first and second owners
and the appellant were shown in their respective books of account and tax returns in Zimbabwe currency. Assets
and liabilities denominated in foreign currencies were converted to Zimbabwe dollars at rates of exchange ruling
at the end of the financial year, while transactions in foreign currencies were translated to Zimbabwe dollars at
rates of exchange ruling at the time of the transactions. The second was that freehold properties were stated at
the valuation established at the time of restructuring and floatation of the second owner in 1990 and subsequent
additions were shown at cost.
On 29 January 2009, the Government introduced the multi-currency regime and the local currency ceased to be
the functional currency of account. The Government and the Reserve Bank of Zimbabwe did not, until 15 June
2015, in s 6 of the Reserve Bank of Zimbabwe (Demonetisation of Notes and Coins Notice SI 70 of 2015,
establish the rate of exchange between the Zimbabwe dollar and the new currencies of account to allow for the
conversion of existing obligations and balances in Zimbabwe dollars into these currencies. However, by
amendment to the Finance Act, the Commissioner of the ZRA was empowered to approve for taxation purposes
the conversion rates of balances denominated in Zimbabwe dollars prior to 1 January 2009, but only after
issuing a binding general ruling indicating how he would exercise his discretion. This ruling was issued in
October 2010 and backdated. The ruling sought to provide the basis upon which the Commissioner would
approve conversion rates of Zimbabwe dollar closing balances to United States dollar closing balances put
forward by taxpayers in their tax returns in the absence of an official exchange rate between the two currencies.
In respect of assets acquired in Zimbabwe dollars, the notice stated that these would be converted to balances in
foreign currency that approximately equivalent to replacement value, less notional wear and tear.
The appellant converted the values of the buildings and claimed wear and tear allowances before the publication
of the General Notice on the ITVs of the properties. The appellant argued that in the ruling the Commissioner
abandoned the income tax values in favour of the replacement values.
On the penalty, the appellant argued that its constitutional right to equal benefit of the law were infringed by it
being penalised whereas other tax offenders benefitted from a tax amnesty.
Held: (1) replacement value denotes the estimated cost of erecting a building similar to the one under valuation.
It is not synonymous with the cost of acquisition. In terms of para 3(1)(a) as read with paras 6(1)(b)(i) and para
8(3) of the Fourth Schedule to the Income Tax Act, the basic legal position in respect of claims for wear and tear
allowances under group reconstructions is that where the transferor and transferee elect to claim such
allowances under the ITVs of the transferor, the transferee will continue to claim them on those ITVs for a
maximum of 20 years. Replacement value cannot legally be substituted for income tax value. The appellant was
only entitled to claim capital allowances based on the ITV balances claimable from the date each property was
constructed.
(2) The appellant did not raise the issue of the penalties in its letter of objection and could not raise the issue for
the first time on appeal. While the appellant was entitled to object, it did not do so, with the result that the
Commissioner did not make any decision or deemed decision on penalties. In tax appeals the High Court is a
court of concomitant jurisdiction with the Special Court for Income Tax Appeals Both courts are required by s
65(4) of the Income Tax Act to entertain argument at the appeal hearing limited to the grounds raised in the
notice of objection.
(3) Because the appellant deducted the wrong capital allowance, the Commissioner was obliged by the
provisions of s 46 (1) of the Act to impose additional tax.
(4) The legal challenge to the interpretation of the general binding ruling was honestly made and no moral
turpitude attached to the challenge or arose from the finding against the appellant. That, however, was not the
only measure of its moral blameworthiness. The appellant sought to unduly benefit from higher deductions than
prevailed before the introduction of the multicurrency regime.
(5) The interests of society demand that wrongdoers be punished to inculcate both personal and general
deterrence. The punishment expiates the tax sins of the errant taxpayer and serves to rehabilitate it into the ranks
of honest and law abiding taxpayers.
(6) The constitutional issue was an important one, but because it has not been raised in the objections was not
properly before the court and could not be dealt with.
Revenue and public finance – value added tax – whether foreign company liable to pay VAT –
evidentiary treatment of public document – importer of the goods – operating a business in Zimbabwe –
responsibility for payment of VAT – currency of VAT payment
At Intl Ltd v ZRA HH-823-15 (Kudya J) (Judgment delivered 21 October 2015)
The appellant foreign company was a supplier of basic commodities to Zimbabwean companies, including
goods falling within the Basic Commodities Supply Side Intervention (BACOSSI) facility unveiled by the
Reserve Bank of Zimbabwe in October 2007.
The respondent conducted a tax investigation which revealed non-payment of VAT on supplies made in a 2½
year period. It established that the appellant paid commission to a domestic company, D&T, on invoiced
supplies. The respondent demanded that D&T should pay VAT of the invoiced income paid to the appellant.
The appellant objected, arguing that it did not have any tax liability in Zimbabwe as it did not have a selfestablished presence in the country; did not import the stocks itself; and supplied its stock to agents who
operated on a commission basis.
The four issues for determination were: (1) was the appellant the importer of the goods; (2) did the appellant
operate a business in Zimbabwe; (3) in terms of s 6 of the Value Added Tax Act [Chapter 23:12], who was
responsible for the payment of VAT on the imported BACOSSI goods and the imported non-BACOSSI goods;
and (4) was the appellant liable to pay any outstanding VAT in foreign currency?
Held: (1) The respondent should have filed the relevant documentation required by r 5(c) of the Fiscal Appeal
Court Rules and should do so in all future cases.
(2) The bills of entry relating to the goods did not name the appellant as the importer. In terms of s 12 of the
Civil Evidence Act, the contents of such public documents were prima facie correct and the evidentiary onus
shifted to the respondent to prove otherwise.
(3) On the facts, D&T acted at all times as an agent importer on behalf of the appellant. Accordingly,
notwithstanding the contents of the bills of entry and other documents compiled by or at the instance of the
appellant to the contrary, the appellant was the owner or possessor of the goods with beneficiary interest in them
before they entered Zimbabwe and who brought them into Zimbabwe and thus was the importer of the goods.
(4) In view of the wide definition of “trade” in s 2 of the VAT Act, it was irrelevant, when considering whether
the appellant was carrying on business in Zimbabwe, that the appellant had not registered for VAT pursuant to
ss 23(4)(b) and 56(1) and (3) of the VAT Act.
(5) The appellant was carrying on the business of supplying goods in Zimbabwe through the agency of D&T.
The agent received commission and not the purchase price of the goods sold; it released the goods on the
instructions of the appellant after the appellant had received payment.
(6) Both parties accepted that the obligation to pay duty and VAT rested with the importer. As the appellant was
the importer, it was responsible in terms of 6 of the VAT Act for the payment of VAT.
(7) The appellant received payment for the goods it supplied in foreign currency. Pursuant to s 69(1) of the VAT
Act the appellant was not exonerated from liability by virtue of not being VAT registered as VAT is deemed to
be included in the purchase price. The appellant accordingly remained liable for payment of VAT in foreign
currency. (DT)
Review – grounds for – bias – magistrate filing opposing affidavit – such affidavit giving impression of
supporting one side to dispute – proper approach to be taken by magistrate – error in law – failure by
administrative authority to address its mind to question before it – authority misunderstanding issue and
considering wrong question
Makandi Tea & Coffee Estate (Pvt) Ltd v A-G & Anor HH-595-15 (Makoni J) (Judgment delivered 1 July 2015)
The applicant was a company engaged in farming. The farm had been expropriated. The farm being included in
a bilateral agreement between Zimbabwe and Germany, the applicant registered a request for arbitration with
the International Centre for Settlement of Investment Disputes (ICSZD), against the Government of Zimbabwe
(the State) in relation to the land. The State subsequently defended those proceedings, which were still pending.
In terms of s 7 of the Arbitration (International Investment Disputes) Act [Chapter 7:03], if there are
proceedings pending under the Act a party may apply to have proceedings stayed in any other court in relation
to the same matter. The applicant was summoned on charges of occupying gazetted land without lawful
authority. In relation to these charges, the applicant had previously applied for referral to the Supreme Court of
certain questions relating to the violation of the Declaration of Rights, the issue being whether or not the
applicant had been denied the right to the protection of law as guaranteed under s 18(1) of the Constitution. The
magistrate (the second respondent) had dismissed the application. In the present proceedings, the applicant
sought a stay under s 7 of the Act, arguing that the criminal proceedings were proceedings within the
contemplation of section 7 of the Act. The magistrate dismissed the application on the grounds that there was no
difference between the two applications.
The applicant sought a review of the magistrate’s decision, arguing inter alia that the magistrate’s decision was
one that no reasonable court could have come to. The magistrate chose to file an answering affidavit, in which
he took offence at the use of the Wednesbury formulation, stating that it was contemptuous of his office and of
the entire judicial system. The applicant argued that the magistrate should not have deposed to an answering
affidavit, in which clearly supported one side.
Held: (1) the proper approach to be taken by the magistrate would have been to set out facts which he
considered would be of assistance to the court and end there. In the alternative, he could have asked a
representative of the first respondent to file the opposing affidavit on behalf of the respondents. The use of the
Wednesbury phraseology was not uncommon and was not meant to be an attack on the person of the second
respondent or his office.
(2) The magistrate failed completely to apply his mind to the question raised by the second application, which
was whether s 7 of the Act was applicable. This issue was clearly different from the application under the
Declaration of Rights to refer to matter to the Supreme Court. In so doing, he reached a decision that was so
unreasonable that no reasonable authority could ever have come to it. The decision would, accordingly, be set
aside.
Sale – conditional – payment by cheque – sale conditional on cheque being honoured
Rural Electrification Fund v Machimire S-61-15 (Ziyambi JA, Gwaunza JA & Bere AJA concurring) (Judgment
delivered 2 November 2015)
The respondent bought a motor vehicle from the appellant, his then employer. The vehicle was registered in the
respondent’s name. The sale agreement provided that the respondent would have to pay the full purchase price
before transfer into his name. The respondent deposited a cheque for the full purchase price, but the cheque was
dishonoured. The cheque was re-deposited and again dishonoured. Some four years after the sale, the
respondent was suspended from his employment. One of the charges of misconduct was that he had failed to pay
for the motor vehicle. That charge was withdrawn when the respondent raised the argument that the issue
relating to the vehicle had prescribed. The following year, the appellant requested the respondent to hand in the
car to be held in trust pending investigations. He complied with the request, but two months later requested the
immediate return of the car. This was followed by an application, seeking an order that the car be returned to
him. In its response, the appellant denied that the car had been paid for. The High Court found that the
respondent had paid the purchase price and was entitled to the return of the car.
In his founding affidavit, the respondent, though aware that the issue of payment was being disputed, did not
produce any evidence of payment. It was only in an affidavit replying to the appellant’s averment of nonpayment that the respondent produced a deposit slip showing the second deposit of the original cheque.
Held: (1) An applicant’s case stands or falls on the allegations made in its founding affidavit and the facts
alleged therein. If he sets out only a skeleton case in that or other supporting affidavits, any fortifying
paragraphs in the answering affidavit will be struck out. The respondent did not attach to the founding affidavit
any proof of payment; he sought to prove his case in his answering affidavit. That evidence ought to have been
struck out.
(2) Even if the evidence that was tendered was properly before the court a quo, the deposit slip constituted only
prima facie proof that payment was made and was inadequate to discharge the onus on the respondent to prove
payment. He merely redeposited the original cheque and did not issue a replacement. Payment by cheque is
regarded as conditional upon its being honoured when duly presented. If the cheque is dishonoured then there
has been no payment.
(3) The onus is on a debtor to prove that he has paid or performed his contractual obligation. If he fails to
discharge that onus, leaving the matter in doubt, judgment must be given against him. The respondent had failed
to prove that he paid for the vehicle, and so ownership did not pass to him. His application should have been
dismissed.
Judgment of MTSHIYA J in Machimire v Rural Electrification Fund HH-470-13 (judgment delivered 4 December
2013) reversed.
Statutes – Agricultural Finance Act [Chapter 18:02] – loan made by Agricultural Bank – bank’s right to
stipulate that it may attach and dispose of immovable property given as security for loan – requirement
to give notice to debtor by registered post – substantial compliance with requirement sufficient – not fatal
if notice given by other means – seizure and disposal of property – effect same as attachment by Sheriff –
sale at auction having same effect as judicial sale in execution
Matanda v Agricultural Bank of Zimbabwe Ltd & Ors S-77-15 (Patel JA, Ziyambi & Gwaunza JJA concurring)
(Judgment delivered 16 November 2015)
The appellant had undertaken to stand as guarantor and surety for a loan advanced to a relative of his by the first
respondent, the Agricultural Bank of Zimbabwe. He duly signed a deed of suretyship as surety and co-principal
debtor and offered his property as security for the loan. The loan was not repaid. The bank sent a registered
letter of demand to the debtor, who made an undertaking to repay. However, he failed to do so, and the estate
agent mandated to auction the appellant’s property gave notice of the sale to the appellant. The loan remained
outstanding, and the property was attached and sold to the second respondent, who took transfer and later
applied for the eviction of the appellant. The appellant sued the first and the second respondents to nullify the
attachment and sale of the stand, cancel its transfer to the second respondent and restore its title into his name.
The High Court dismissed the application.
On appeal, the appellant argued that the bank had failed to comply with the mandatory provisions of s 38 of the
Agricultural Finance Act [Chapter 18:02] relative to notice of the intended sale, in respect of both he debtor and
the appellant, and that the sale was therefore invalid. It was argued that s 38(2) of the Act created a mandatory
obligation to post a registered letter of demand to the borrower before the security given in respect of any
advance could be attached and disposed of by the bank. The second ground of appeal was the sale of the
property having been tainted with serious irregularities, there could be no procedural and lawful transfer of the
property to the second respondent.
Held: (1) In terms of s 38(1), where the borrower fails to repay any sum due in respect of the advance or
commits any other actual or potential breach referred to in that subsection, the outstanding advance coupled with
any interest thereon becomes immediately repayable. In that event, the bank is entitled to sue for and recover the
whole or any part of the debt and/or refuse to disburse any part of the advance which remains unpaid. Under
subs(2), where security has been given for any advance, the bank may stipulate as a condition of the advance
that, if any advance becomes repayable in terms of subs (1), it shall be entitled, subject to subs (3) and ten days
after posting a registered letter of demand, to seize and dispose of the security. Subsection (2) does not per se
prescribe the requirements subject to which seizure and disposal of a security may eventuate. Rather, it sets out
the terms that the first respondent may stipulate as a condition of any advance in respect of which security is
given. Moreover, the use of the word “shall” relates to its stipulated future entitlement to seize and dispose of
the security and not to any supposed peremptory requirement to post a registered letter of demand to the
borrower.
By virtue of subs (3), the bank “shall be entitled” to exercise the powers of seizure and disposal conferred by the
stipulated condition. However, the exercise of these powers by the bank is subject to two prerequisites. The first
is that it has posted a registered letter of demand to the borrower at his last known address or at the address
given by him. The second is that a period of ten days must have elapsed since the posting of that letter.
The bank is entitled to attach and dispose of immovable property given as security for a loan without recourse to
the courts, so long as the procedure prescribed by s 38 has been followed. The plain language of s 38 cannot be
read to ascribe any measure of peremptoriness to the requirement under scrutiny. That being so, it is not a
requirement that would ordinarily command strict and exact compliance. The purpose of the requirement is to
ensure that the borrower (which term includes any surety) is given not less than ten days’ notice, in the form of a
letter of demand, before the first respondent is entitled to take possession and dispose of the security in question.
This is the critical essence of the requirement and, therefore, the fact that such notice is not by way of registered
post does not necessarily negate the underlying objective of due notice. Registered post is not always practical,
particularly in remote or rural areas. So long as the borrower is duly notified of the outstanding debt and the
intended seizure and disposal, there would have been substantial and sufficient compliance with the requirement
so as not to invalidate any subsequent attachment and disposal of the security. On the facts, both the borrower
and the appellant were fully aware of the outstanding debt and the impending sale of the property in order to
satisfy that debt, well before it was actually sold. The requirement of due notice contemplated by s 38 of the Act
was substantially and sufficiently complied with so the subsequent sale of the secured property could not be held
to have been irregular or invalid.
(2) Under para 2 of the Second Schedule to the Act, the seizure of a security by the bank in terms of s 38 has the
same effect as an attachment by the Sheriff under a writ of execution issued by the High Court. This must, by
necessary implication, extend as well to the disposal or sale of the security. The second respondent bought the
property in good faith at a public auction. The sale had the effect of a judicial sale in execution and could not
now be reversed or set aside.
Judgment of MATHONSI J in Mutume v Matanda; Matanda v Agricultural Bank of Zimbabwe Ltd HH-492-15
(judgment delivered 3 June 2015) upheld.
Succession – intestate – heirs ab intestato – widow – widow’s entitlement to matrimonial home – need for
widow to have been living in house immediately before husband’s death – widow having left home
decades earlier and not having contributed towards purchase thereof – not entitled to more than a child’s
share of the estate
Chinzou v Masomera NO & Ors HH-593-15 (Chitakunye J) (Judgment delivered 9 July 2015)
The applicant and her late husband were married in 1965. In 1972 he was offered tenancy of a house in a suburb
of Harare. In about 1977, the couple separated and the applicant left the matrimonial home. In 1981 the house
was offered to the applicant’s husband for purchase, which offer he duly accepted. Subsequently he purported to
marry another woman, with whom he lived at the house and by whom he had children. He died intestate in
2012. The first respondent, the executor dative, accepted the applicant as the surviving spouse, the second
marriage not being valid. In considering all the potential beneficiaries, he allocated equal shares to each of the
beneficiaries, resulting in the applicant receiving a child’s share of the estate. The house was the only major
asset for distribution. The applicant sought to have the distribution account changed to make her the sole
beneficiary of the house. The executor had considered this issue and concluded that it could not be said that the
applicant was living in the house immediately before the deceased died and so was not entitled to receive the
house in terms of s 3A of the Deceased Estates Succession Act [Chapter 6:02]. The applicant argued that the
interpretation of the term “immediately before the person’s death” in s 3A be construed to include her situation
since she was the only surviving spouse. A purposive approach would meet the justice of the case.
Held: In considering the matter of the statute, its scope and purpose and the background of the legislation in
question, it was appropriate to identify the mischief that was intended to be addressed by the section. The
intention of the legislature was that a surviving spouse in an intestate estate should not be uprooted from the
house or domestic premises he or she lived in immediately before the death of the deceased person, and
provided such property formed part of the deceased person’s estate. The applicant had last lived in the premises
37 years before the death of the deceased. That could not by any stretch of imagination be termed “immediately”
before deceased’s death. It could not have been the intention of the legislature that either of the spouses, who
had lived separately for such a long period as 37 years, in a situation which was a de facto divorce, would be
entitled to come back at the demise of the other spouse and be awarded the house as his or her exclusive
property to the exclusion of children of the marriage and subsequent unions who had been born and lived at the
house. There should have been links of living as husband and wife prior to the deceased person’s death. In casu,
such links were no longer there but for the marriage certificate. Further, the purchase of the house having been
made after the applicant and her husband separated, she could not argued that she had contributed towards the
acquisition of the house. She was not entitled to any more than a child’s share.
Suretyship – surety – liability of – identical with that of principal debtor – action against surety in event
of breach by debtor – no requirement for creditor to advise surety of breach – no requirement to make
separate demand on surety nor to proceed against principal debtor first
Makgatho v Old Mutual Life Assurance (Zimbabwe) Ltd S-57-15 (Garwe JA, Gwaunza & Patel JA concurring)
(Decision announced 13 March 2014; reasons made available 23 October 2015)
The appellant bound himself as surety and co-principal debtor for the due fulfilment of all obligations by his son
in relation to funding provided by the respondent to the son for a university degree. He argued that the
respondent had an obligation to advise him of the unsatisfactory performance of his son before instituting
proceedings. A related issue raised in the grounds of appeal was whether the respondent had an obligation to sue
the son first before instituting legal action against the appellant.
Held: the liability of a surety and co-principal debtor is joint and several with that of the principal debtor and is
no more, nor less than, nor different from, that of the latter. There is no general legal obligation on a creditor to
advise the surety and co-principal debtor of the breach by the principal debtor, because, in law, they become one
and the same, once the principal debtor is put in mora. There is no requirement for a separate demand and the
failure to make demand on a co-principal debtor may only have an effect on the question of costs, in the event
that the co-principal debtor makes payment on receipt of summons. There is no requirement in law that a
creditor should first proceed against the principal debtor before doing so against the surety and a co-principal
debtor. In addition, the appellant specifically renounced the benefits of excussion and division in the surety
agreement, so he could not now be heard to argue that his son should have been sued in the first instance.
Editor’s note: the judgment appealed against was that of MAKARAU JP (as she then was) in Old Mutual Life
Assurance Co (Pvt) Ltd v Makgatho HH-39-07.
Trust – nature of – not a separate legal persona – ownership of property by – trust may own property –
such property vested in trustees – registration of industrial design in name of trust – application may be
made by trustees as assignees
Mukono Family Trust’s Trustees v Karpeg Invstms (Pvt) Ltd & Ors HH-908-15 (Muremba J) (Judgment
delivered 25 November 2015)
See above, under INTELLECTUAL PROPERTY (Industrial designs).